                                                                        FILED
                                                                COURT OF APPEALS DIV I
                                                                 STATE OF WASHINGTON "

                                                                   26I8 AUG -6 AM 9:50



  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE

STATE OF WASHINGTON,                       )       No. 76154-4-1
                                           )
                      Respondent,          )
                                           )
         v.                                )
                                           )
CURTIS LAMONT WHITFIELD,                   )       UNPUBLISHED OPINION
                                           )
                      Appellant.           )       FILED: August 6, 2018
                                           )

       VERELLEN, J. — Curtis Whitfield appeals his conviction for first degree
robbery. Because the evidence does not support an inference that Whitfield

committed theft rather than robbery, we conclude the court did not abuse its

discretion when it denied Whitfield's request to instruct the jury on the lesser

included offense.

       Whitfield also assigns error to the giving of jury instruction 8, defining the

term "threat." Although we conclude jury instruction 8 was given in error, in light of

the other instructions, it was not reversible error.

       Therefore, we affirm.

                                        FACTS

       On December 8, 2014, Whiffield entered the White Center branch of U.S.

Bank and approached the teller. According to the teller, Christina Ponce, Whitfield
No. 76154-4-1/2



said, "Give me $10,000 or I'll kill you."1 Ponce gave Whiffield all the money in her

drawer. A tracking device was included with the money, some of the serial

numbers were recorded, and Ponce triggered the alarm. Around 30 minutes later,

police found Whitfield nearby in possession of bills with matching serial numbers.

       The State charged Whitfield with first degree robbery. At trial, Whitfield

denied threatening to kill Ponce. The court denied Whiffield's request for a jury

instruction on the lesser included offense of theft. The jury found Whitfield guilty

as charged.

       Whitfield appeals.

                                      ANALYSIS

I. Lesser Included

       Whitfield contends the trial court abused its discretion when it refused to

instruct the jury on the lesser included offense of theft.

       "A defendant is entitled to an instruction on a lesser included offense when

(1) each of the elements of the lesser included offense is a necessary element of

the charged offense and (2)the evidence in the case supports an inference that

the lesser crime was committed."2 Courts refer to the first part of the test as the

"legal prong" and the second part as the "factual prong."3 On appeal, the State

does not contest the legal prong.



           Report of Proceedings(RP)(Sept. 22, 2016) at 413.
       2   State v. Henderson, 182 Wn.2d 734, 742, 344 P.3d 1207(2015).
       3   State v. Berlin, 133 Wn.2d 541, 546, 947 P.2d 700 (1997).




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No. 76154-4-1/3



       We review a trial court's decision under the factual prong for abuse of

discretion.4 In determining the factual prong, we review "the evidence in the light

most favorable to the party requesting the instruction."5 The evidence must raise

an inference that only the lesser included offense was committed instead of the

charged offense.6

       Whitfield was charged with first degree robbery. A person commits robbery

      when he or she unlawfully takes personal property from the person
      of another or in his or her presence against his or her will by the use
      or threatened use of immediate force, violence, or fear of injury to
      that person or his or her property or the person or property of
      anyone. Such force or fear must be used to obtain or retain
      possession of the property, or to prevent or overcome resistance to
      the taking; in either of which cases the degree of force is immaterial.
      Such taking constitutes robbery whenever it appears that, although
      the taking was fully completed without the knowledge of the person
      from whom taken, such knowledge was prevented by the use of
      force or fear.171

       Whitfield requested the jury be instructed on the lesser included offense of

theft. Theft means "[t]o wrongfully obtain or exert unauthorized control over the

property or services of another or the value thereof, with intent to deprive him or

her of such property or services."5 Theft does not include the "use or threatened

use of immediate force, violence, or fear of injury."




      4    Henderson, 182 Wn.2d at 743.
      5    State v. Wade, 186 Wn. App. 749, 772, 346 P.3d 838(2015).
      6    State v. Fernandez-Medina, 141 Wn.2d 448, 455,6 P.3d 1150(2000).
       7   RCW 9A.56.190.
      8    RCW 9A.56.020.




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No. 76154-4-1/4



       According to Ponce, the bank teller, Whitfield said, "Give me $10,000 or I'll

kill you."9 Ponce gave Whitfield all the money in her drawer. A tracking device

was included with the money, some of the serial numbers were recorded, and the

teller triggered the alarm.

       At trial, Whitfield testified he never intended to rob the bank and rather, he

mistakenly believed he had money in his account:

       Not once did I threaten that teller; not once did I ever say the word
       "kill" to Christina Ponce. You know why I didn't have to say the word
       "threat"—"kill" to Ms. Christina Ponce? Because I only went, asking
       for the money I thought I had in that bank.E19]

Whitfield claimed he only told the teller, "Give me my money."11 And Whitfield

argued the teller lied when she testified that he threatened to kill her. But it is not

enough that the jury may disbelieve some evidence.12

       Whitfield contends his denial that he threatened Ponce, along with the lack

of other evidence of a threat, raises an inference that only theft was committed

instead of robbery.

       The State argues Whitfield may not request a theft instruction because his

testimony about his mistaken belief is inconsistent with such an instruction. "The

jury may always disbelieve any portion of a witness's testimony,'but if the




       9    RP (Sept. 22, 2016) at 412.
       19   RP (Sept. 27, 2016) at 820.
       11   Id. at 827.
       12   See Fernandez-Medina, 141 Wn.2d at 455-56.




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No. 76154-4-1/5



defendant would urge as an alternative theory that he committed only [the included

crime], some evidence must be presented affirmatively to establish that theory.'"13

       At trial, Whitfield advanced a single theory, that he did not intend to take the

money from the bank, that he was only asking for money he believed was in his

account. If believed, this theory would require the jury to acquit Whitfield of the

charged crime of robbery and the requested lesser included of theft. "Where

acceptance of the defendant's theory of the case would necessitate acquittal on

both the charged offense and the lesser included offense, the evidence does not

support an inference that only the lesser was committed."14

       Because the evidence does not support an inference that Whitfield

committed theft rather than robbery, we conclude the court did not abuse its

discretion when it in denied Whitfield's request to instruct the jury on the lesser

included offense.

II. Jury Instruction

       Whitfield argues jury instruction 8 defining threat misstates the law. For this

reason, Whitfield asks this court to reverse his conviction.

       The panel reviews errors of law in jury instructions under the de novo

standard.15 "Jury instructions are proper when they permit the parties to argue


       13  State v. Rodriquez, 48 Wn. App. 815, 820, 740 P.2d 904(1987)
(alteration in original)(quoting State v. Wheeler, 22 Wn. App. 792, 797, 593 P.2d
550(1979)).
        14 State v. Speece, 56 Wn. App. 412, 419, 783 P.2d 1108 (1989), affirmed,

115 Wn.2d 360, 798 P.2d 294 (1990).
        15 State v. Barnes, 153 Wn.2d 378, 382, 103 P.3d 1219 (2005).




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No. 76154-4-1/6



their theories of the case, do not mislead the jury, and properly inform the jury on

the applicable law."16

       Even if a jury instruction is improper, reversal is appropriate only if the error

is prejudicial. "It is reversible error to instruct the jury in a manner that would

relieve the State of [its] burden" to prove "every essential element of a criminal

offense beyond a reasonable doubt."17 But "[i]f the instructions as a whole fairly

state the law, then there is no prejudicial error."18

       Here,jury instruction 8 provided, "Threat means to communicate, directly or

indirectly, the intent to cause bodily injury in the future to the person threatened or

to any other person."16 But under the statute defining robbery,"A person commits

robbery when he or she unlawfully takes personal property from the person of

another or in his or her presence against his or her will by the use or threatened

use of immediate force, violence, or fear of injury to that person."26

       In State v. Gallaher, Division Three of this court considered an identical

threat instruction where the defendant was convicted of second degree robbery.21

The court determined the threat instruction was improper "[i]nsofar as the




       16 Id.
       17   State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245(1995).
       18   State v. Gallaher, 24 Wn. App. 819, 823,604 P.2d 185 (1979).
       18   Clerk's Papers(CP)at 61.
       28   RCW 9A.56.190 (emphasis added).
       21   24 Wn. App. 819,604 P.2d 185(1979).




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No. 76154-4-1/7


instruction includes threats of harm to take place subsequent to the robbery.1)22

Similarly here, jury instruction 8, defining threat, was given in error.

       In Gallaher, Division Three concluded,"[T]he instructions considered as a

whole adequately advise the jury that a threat of immediate force was required to

convict the defendant of a robbery."23 There, the jury instruction defining robbery

and the to convict instruction correctly identified that the defendant must use or

threaten the use of "immediate force" to be guilty of robbery.24

       Here, the jury instruction defining robbery was virtually identical to the

instruction in Gallaher:

              A person commits the crime of robbery when he or she
       unlawfully and with intent to commit theft thereof takes personal
       property from the person or in the presence of another who has an
       ownership, representative, or possessory interest in that property,
       against that person's will by the use or threatened use of immediate
       force, violence, or fear of injury to that person or to the person's
       property.[251

       And the to convict instruction given in this case correctly stated:

             To convict the defendant of the crime of robbery in the first
       degree, each of the following six elements of the crime must be
       proved beyond a reasonable doubt:


              (3) That the taking was against the person's will by the
       defendant's use or threatened use of immediate force, violence or
       fear of injury to that person.[26]

       22   Id. at 822.
       23   Id.
       24   Id.
       25 CP at 59(emphasis added).
       26 CP at 64(emphasis added).




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No. 76154-4-1/8


       Because the other instructions correctly identified the requirement of

immediate force, the instructions did not relieve the State of its burden to prove

every element of the crime beyond a reasonable doubt. Although we conclude

jury instruction 8 was given in error, in light of the other instructions, it was not a

reversible error.

       Therefore, we affirm.




WE CONCUR:




  l      ustI,40T-




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