                                                                           FILED
                                                                         ARIL 24, 2018
                                                                 In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                            )
                                                )        No. 34575-1-III
                       Respondent,              )
                                                )
          v.                                    )
                                                )
B.T.,                                           )        UNPUBLISHED OPINION
                                                )
                       Appellant,               )
                                                )
J.E.T.,                                         )
                                                )
                       Defendant.               )

          FEARING, J. — Bob Tresh appeals his conviction in juvenile court for first degree

robbery. He contends that a bench trial violated his constitutional right to a jury trial and

that insufficient evidence supported his conviction. We disagree with both contentions

and affirm his conviction.

                                            FACTS

          We bestow pseudonyms on all minors, including the appellant. This prosecution

arises from appellant Bob Tresh’s participation in a theft from a Safeway store where

principal witness and victim Joshua Morency worked.
No. 34575-1-III
State v. B.T.


       On April 17, 2016, Joshua Morency arrived minutes late to work as a clerk at a

Safeway grocery store. His work duties included stocking shelves, assisting customers,

sweeping, mopping, and garbage collection. As he arrived in his car on April 17,

Morency looked for a parking spot in the parking lot when he stopped to allow a male,

later identified as Joseph Tate, to cross the parking lot to enter the store. Morency parked

and walked through the parking lot toward the store while wearing his Safeway name tag

and carrying a bright orange vest with fluorescent stripes. As Morency approached the

store entrance, Tate fled the store with a twelve pack of Corona beer. Because of Tate’s

speed and youthful appearance, Morency believed the teenager had stolen the beer. Tate

jumped into a parked car occupied by three other teenagers, including Bob Tresh. The

car’s occupants yelled at the driver, Elaine Rush, to leave the parking spot.

       Joshua Morency reacted to Joseph Tate’s conduct by photographing, with his cell

phone, Tate and the car he entered to show the Safeway loss prevention officer. Morency

did not confront Tate or the occupants of the car because Safeway directs its employees

to not resist thefts. After he photographed the car and turned his back to the car in order

to enter the store, Morency heard someone yell “hey, hey.” Report of Proceedings (RP)

at 29. Morency turned to see fifteen-year-old Bob Tresh holding a handgun in the air.

Morency grew frightened from worry that Tresh might shoot him to avoid trouble.

Elaine Rush testified at trial that she first noticed Tresh handling the gun when she placed

the car in reverse within its parking spot.

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No. 34575-1-III
State v. B.T.


         After entering the grocery store, Joshua Morency informed the Safeway Loss

Prevention Officer Nicholas Bacus that someone selected a case of Corona and exited the

store too quickly to have purchased the beer. Bacus called the police, who arrived at the

Safeway within minutes. Morency showed an officer the pictures he had captured on his

phone.

         Yakima law enforcement officers traveled to the address of the pictured vehicle’s

registered owner. A vehicle that matched the photograph was parked near the address,

and four young adults still occupied the car. Joshua Morency also journeyed to the

address and identified each occupant as being involved in the theft at the Safeway store.

After garnering a search warrant for the vehicle, officers found the stolen twelve-pack

case of Corona and a backpack. The backpack contained a black and silver 9mm

handgun, three Xanax pills, and Bob Tresh’ state and school identification.

                                        PROCEDURE

         The State of Washington charged Bob Tresh in juvenile court with possession of a

controlled substance and first degree robbery as an accomplice with a firearm

enhancement. Tresh never argued to the juvenile court that the constitution afforded him

a jury trial. During the bench trial, Tresh did not testify or call any witness to testify.

The juvenile court convicted Tresh as charged.




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No. 34575-1-III
State v. B.T.


                                  LAW AND ANALYSIS

                                          Jury Trial

       On appeal, Bob Tresh contends that a bench trial violated his constitutional right

to a jury trial and that insufficient evidence supported his conviction for first degree

robbery. We address these assignments of error in such order.

       Bob Tresh asserts a constitutional right to a jury trial under U.S. CONST. amend.

VI and WASH. CONST. art. I, §§ 21 and 22. Nevertheless, both the United States Supreme

Court and the Washington Supreme Court have held that a juvenile charged with a crime

lacks a constitutional right to a jury trial under the respective constitutions. In McKeiver

v. Pennsylvania, 403 U.S. 528, 541, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971), the nation’s

high Court held that juvenile court proceedings are not criminal prosecutions within the

meaning and reach of the Sixth Amendment and thus a juvenile lacks a Sixth Amendment

right to a jury trial. Our state high court has consistently ruled that a juvenile lacks a

right to a jury trial under the Washington Constitution. State v. Chavez, 163 Wn.2d 262,

272, 180 P.3d 1250 (2008); Monroe v. Soliz, 132 Wn.2d 414, 419, 939 P.2d 205 (1997);

State v. Schaaf, 109 Wn.2d 1, 16, 743 P.2d 240 (1987); State v. Lawley, 91 Wn.2d 654,

659, 591 P.2d 722 (1979); In re the Welfare of Estes v. Hopp, 73 Wn.2d 263, 265, 438

P.2d 205 (1968). One member of this court agrees with the arguments asserted by Tresh

in favor of a right to a jury trial, but this court must follow the precedent of the two

higher courts.

                                               4
No. 34575-1-III
State v. B.T.


       We note that Bob Tresh did not seek a jury trial before the superior court and did

not argue before the superior court that he held a constitutional right to a jury. Thus,

Tresh waived the right to assert this purported right on appeal. Since no Washington

Supreme Court or United States Supreme Court decision affords the juvenile a right to a

jury trial, Tresh does not show manifest constitutional error needed to forward his

assignment of error on appeal. RAP 2.5(a)(3).

                                   First Degree Robbery

       Bob Tresh also challenges the sufficiency of evidence to convict him of first

degree robbery. In reviewing a challenge to the sufficiency of the evidence, courts

review the evidence in the light most favorable to the State. State v. Green, 94 Wn.2d

216, 221, 616 P.2d 628 (1980). We uphold the verdict if any rational trier of fact could

have found each element proved beyond a reasonable doubt. State v. Gentry, 125 Wn.2d

570, 596-97, 888 P.2d 1105 (1995). A challenge to the sufficiency of the evidence

admits the truth of the State’s evidence and all inferences reasonably drawn therefrom.

State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff’d, 95 Wn.2d 385, 622 P.2d

1240 (1980). The State may use circumstantial evidence to prove any element of a crime.

State v. Garcia, 20 Wn. App. 401, 405, 579 P.2d 1034 (1978).

       RCW 9A.56.190 creates the crime of robbery. The statute declares:

              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

                                              5
No. 34575-1-III
State v. B.T.


       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.

Robbery in the first degree constitutes:

               (1) A person is guilty of robbery in the first degree if:
               (a) In the commission of a robbery or of immediate flight therefrom,
       he or she:
               (i) Is armed with a deadly weapon; or
               (ii) Displays what appears to be a firearm or other deadly weapon; or
               (iii) Inflicts bodily injury; or
               (b) He or she commits a robbery within and against a financial
       institution as defined in RCW 7.88.010 or 35.38.060.

RCW 9A.56.200.

       Bob Tresh challenges two of the elements of first degree robbery. First, Tresh

argues that the State of Washington failed to establish that he employed force to take or

retain the stolen property. He contends he displayed the firearm only after the

completion of the taking and the escape. Yet, Washington has a transactional analysis of

robbery whereby the force or threat of force need not precisely coincide with the taking.

State v. Manchester, 57 Wn. App. 765, 770, 790 P.2d 217 (1990). The taking continues

until the assailant effects an escape. State v. Manchester, 57 Wn. App. at 770. A robbery

continues as an ongoing offense so that force used to obtain the property, force employed




                                             6
No. 34575-1-III
State v. B.T.


to retain the stolen property, or force exerted to effect an escape satisfies the force

element of robbery. State v. Robinson, 73 Wn. App. 851, 856, 872 P.2d 43 (1994).

       We agree that Joseph Tate had completed his physical taking of the beer before

Bob Tresh brandished his firearm. But, contrary to Tresh’ contention, the occupants of

the car had not accomplished their escape. The car remained in the Safeway parking lot.

Elaine Rush, the driver, testified to seeing Tresh flaunt the gun when she pulled from the

parking spot. Joshua Morency had not entered the grocery store and walked in the

parking lot when Tresh yelled “Hey” two times while pointing the gun in the air. The

wielding of the gun understandably frightened Morency because he viewed Tresh as

using the gun in a threatening manner in order to avoid capture for theft. A rational trier

of fact could have found that Tresh displayed the weapon to effectuate an escape.

       Bob Tresh next argues that the State failed to show that the person Tresh

threatened with the gun, Joshua Morency, owned or acted as a representative of the

owner of the stolen property. For the taking of property in the presence of a person to

constitute a robbery under RCW 9A.56.190, that person must have (1) an ownership

interest in the property taken, (2) some representative capacity with respect to the owner

of the property taken, or (3) actual possession of the property taken. State v. Richie, 191

Wn. App. 916, 923, 365 P.3d 770 (2015).

       Safeway owned the purloined beer, so we must determine if Joshua Morency

functioned as a representative of the grocery chain. A person with a representative

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No. 34575-1-III
State v. B.T.


capacity includes a bailee, agent, employee, or other representative of the owner if he or

she has care, custody, control, or management of the property. State v. Richie, 191 Wn.

App. at 925. Stealing property in the presence of the owner’s employee can support a

robbery conviction because the employee has the implied responsibility of exercising

control over the property. State v. Blewitt, 37 Wn. App. 397, 399, 680 P.2d 457 (1984).

       In State v. Richie, 191 Wn. App. 916 (2015), a Walgreens store employee arrived

early for her work shift. She entered the store wearing a coat over her store badge and

store shirt. The employee selected a beverage to drink and ambled to the front register to

pay for the beverage. The employee noticed Michael Richie walk toward the liquor

section of the Walgreens. Richie then walked toward the front of the store carrying one

bottle of alcohol in each hand and passed the employee at the register. The employee

blurted, “‘Sir, you need to pay for that here. Let me help you.’” State v. Richie, 191

Wn. App. at 920. Richie struck the employee in the head with one of the bottles and fled

the store. On appeal, Richie argued that the Walgreens employee did not act in a

representative capacity at the time of the assault because she was not on duty and her coat

covered her Walgreens name tag and shirt. This court found a rational jury could have

found she acted in the scope of her employer’s interests at the time of the robbery

regardless of whether she had begun her shift.

       State v. Richie controls this appeal. As a store clerk, Joshua Morency held actual

duties over the store inventory and in assisting customers and implied, if not express,

                                             8
No. 34575-1-III
State v. HT.


responsibility of controlling Safeway property. Whether Morency had begun his shift

lacks relevancy. As he walked through the parking lot bearing the bright orange vest,

Morency's Safeway nametag was visible. Morency photographed the vehicle so he could

save "evidence" to show the loss prevention officer. He took this action in order to

benefit the company. As such, a rational trier of fact could find that Morency acted in a

representative capacity of Safeway.

       Bob Tresh also argues that Joshua Morency's taking of photographs for a future

investigation of a crime does not a:t'!}Ount to a means of resistance. Because we hold that

Tresh employed force,. we need not address this additional argument.

                                       CONCLUSION

       We affirm Bob Tresh's juvenile court conviction for first degree robbery.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                              Fearing, J.

WE CONCUR:



Lawrence.J3errey, C.J:        c.. ~-

                                             9
