       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                       )
                                           )       No. 74927-7-1
                      Respondent,          )
                                           )       DIVISION ONE
              v.                           )
                                           )
DARIN JEROME GATSON,                       )       UNPUBLISHED OPINION
                                           )
                      Appellant.           )       FILED: October 30, 2017
                                           )
       BECKER, J. — A security guard was injured by falling down stairs as he

was pursuing appellant for shoplifting from a department store. Appellant was

convicted of first degree robbery by inflicting bodily injury. He contends he was

entitled to an instruction on theft as a lesser included offense. Given the

uncontroverted evidence that appellant's conduct was a proximate cause of the

guard's fall, the trial court properly concluded a jury could not find theft to the

exclusion of robbery. We reject other assignments of error and affirm the

conviction.

                                        FACTS

       Gatson stole clothing from a department store on October 4, 2014. A

security guard who observed the theft followed Gatson as he left the store.

Gatson started running, and the guard gave chase. The guard caught up to
No. 74927-7-1/2

Gatson on a staircase and grabbed him. The guard testified that at the top of the

staircase, Gatson "spun around real quick" and "made a thrusting motion real

hard" toward the guard's stomach. The guard felt something strike him. He

"pushed back" at Gatson and then fell down the stairs. Gatson ran away. The

guard sustained a cut and bruise on his stomach and an ankle injury. He told

police he had been stabbed with a knife.

       Gatson was arrested and charged with first degree robbery. First degree

robbery requires a showing that the defendant used a deadly weapon, was

armed with a deadly weapon, or inflicted bodily injury. RCW 9A.56.200. The

information alleged that Gatson was armed with a deadly weapon—"a sharp,

bladed instrument"—and that he inflicted bodily injury.

       The defense position at trial was that Gatson committed theft, not robbery.

Gatson did not testify. The guard testified that although he originally believed

Gatson stabbed him with a knife, he did not actually see whether Gatson was

holding anything when he made the thrusting motion. Accordingly, the

prosecutor announced that the State would seek conviction only on the "inflicted

bodily injury" prong of first degree robbery.

       The jury returned a guilty verdict. Gatson received a 129-month sentence.

He appeals from the judgment and sentence.

                  THEFT AS A LESSER INCLUDED OFFENSE

       Gatson requested an instruction on third degree theft as a lesser included

offense. He assigns error to the trial court's refusal of this request.




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No. 74927-7-1/3

       An instruction on a lesser offense is warranted when (1) each of the

elements of the lesser offense are necessary elements of the offense charged

(the legal prong) and (2)the record, viewed in the defendant's favor, supports an

inference that the lesser crime was committed (the factual prong). State v.

Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382(1978); see also

ROW 10.61.006. If a jury could rationally find a defendant guilty of the lesser

offense and not the greater offense, the jury must be instructed on the lesser

offense. State v. Henderson, 182 Wn.2d 734, 736, 344 P.3d 1207 (2015).

       Here, as in the trial court, the parties agree that the legal prong is

satisfied. The elements of third degree theft are necessary elements of first

degree robbery. State v. Herrera, 95 Wn. App. 328, 330 n.1, 977 P.2d 12(1999).

Gatson contends the factual prong of the Workman test was also satisfied.

       A person commits theft when he wrongfully obtains or exerts unauthorized

control over another's property or services, or the value thereof, with intent to

deprive the victim of the property or services. ROW 9A.56.020(1)(a); see also

ROW 9A.56.050. A person commits robbery when he "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."

ROW 9A.56.190. First degree robbery, unlike theft, requires proof that the

defendant inflicted bodily injury (among other alternatives). ROW 9A.56.200.

       The trial court determined that the record lacked evidence from which a

jury could rationally find Gatson committed theft to the exclusion of robbery. We


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review a trial court's decision regarding the factual prong of the Workman rule for

an abuse of discretion. Henderson, 182 Wn.2d at 743.

       The staircase had a knobbed railing, and the cut and bruise on the guard's

stomach were located near where his badge and radio would have been. Gatson

contends a jury did not necessarily have to find that the guard sustained his

injuries when Gatson made the thrusting motion; they could find instead that the

guard incurred the injuries when he fell down the staircase with his radio and

badge pressed against his stomach. In Gatson's view, the possibility of that

scenario supports an inference that he did not "inflict" the guard's injuries.

       A defendant inflicts bodily injury when his conduct is a proximate cause of

the injury. State v. Decker, 127 Wn. App. 427, 429, 111 P.3d 286(2005), review

denied, 156 Wn.2d 1012(2006). In Decker, a clerk chased after the defendant

who had just stolen some items inside a convenience store. The defendant was

in the passenger seat of a getaway car. When the clerk leaned in to the open

window on the driver side, the defendant grabbed his arm. The clerk flailed

about, trying to free himself as the car rolled forward, and was injured. Decker,

127 Wn. App. at 429. This court applied the rule that "criminal liability attaches

where the conduct is the actual and proximate cause of the result." Decker, 127

Wn. App. at 432. The evidence was sufficient to support a finding that the

defendant inflicted the injury because there was a "direct causal link" between his

conduct and the clerk's injuries: If Decker had not grabbed the clerk's arm, the

clerk would not have been injured. Decker, 127 Wn. App. at 432.




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No. 74927-7-1/5

       Here, the record establishes that Gatson's conduct—stealing

merchandise, running from the guard—led to the encounter on the stairs.

Gatson made a thrusting motion towards the guard, causing the guard to push

back and then fall down the stairs. When asked what caused him to fall, the

guard testified, "Getting struck and trying to push away." This uncontroverted

evidence establishes a direct causal link between Gatson's conduct and the

guard's injuries; without Gatson's conduct, the guard would not have been

injured.

       Gatson observes that Decker involved a sufficiency of the evidence claim,

for which the record is viewed in the light most favorable to the State. By

contrast, we review claims for a lesser instruction in the light most favorable to

the defendant. Henderson, 182 Wn.2d at 736. Nevertheless, Gatson's argument

that the word "inflict" requires a more precise causal connection than the word

"cause" is analogous to the argument this court rejected in Decker. The

encounter at the top of the stairs was undisputed. Under Decker, a jury hearing

the evidence in this record could not rationally find that Gatson committed theft

without also finding that he inflicted bodily injury.

       Decker employed the familiar definition of proximate cause as"a cause

which in direct sequence, unbroken by any new, independent cause, produces

the event complained of and without which the injury would not have happened."

Decker, 127 Wn. App. at 432, quoting State v. Gantt, 38 Wn. App. 357, 359, 684

P.2d 1385 (1984). Gatson claims that the analysis of proximate cause in Decker




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has been substantially undermined by a later Supreme Court decision, State v.

Bauer, 180 Wn.2d 929, 329 P.3d 67(2014).

       The defendant in Bauer left his gun on a bedroom dresser in his

girlfriend's house. Bauer, 180 Wn.2d at 933. Her son took the gun to his

elementary school, where it accidentally discharged and injured another child.

Bauer, 180 Wn.2d at 932. The State charged Bauer with assault in the third

degree, alleging that, with criminal negligence, he "cause[d] bodily harm to

another person by means of a weapon or other instrument or thing likely to

produce bodily harm." Bauer, 180 Wn.2d at 932 (alteration in original), quoting

RCW 9A.36.031(1)(d). On discretionary review of the trial court's denial of a

motion to dismiss, the Supreme Court did not alter the well established rule that

tort and criminal situations are exactly alike as to cause in fact or, as it is

sometimes called, "but for" causation. Bauer, 180 Wn.2d at 936. But the court

determined that legal cause in criminal cases differs from, and is narrower than,

legal cause in tort cases. Bauer, 180 Wn.2d at 940. Analyzed in terms of legal

causation, the connection between Bauer's conduct and the child's injuries was

too attenuated to support criminal liability. Bauer, 180 Wn.2d at 942.

       Bauer's stricter standard for legal causation in criminal cases applies

when a defendant's negligent acts were "incapable of causing injury directly."

Bauer, 180 Wn.2d at 939. Bauer does not call into question older cases

imposing criminal liability when the defendant actively participated in the

"immediate physical impetus of harm" and the "initial act was not only intentional,




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No. 74927-7-1/7

but felonious, and capable of causing harm in and of itself." Bauer, 180 Wn.2d at

939-40.

              No appellate criminal case in Washington has found legal
      causation based on negligent acts similar to those in the civil cases
      above that were incapable of causing injury directly. This is
      apparent in the facts of the cases cited by the State in support of its
      argument that it may charge Bauer with third degree assault. For
      example, in State v. Leech, this court held that an arsonist "caused"
      the death of a firefighter who responded to the arson fire, despite
      the fact that the firefighter may have been negligent in his
      firefighting. 114 Wn.2d 700, 705, 790 P.2d 160 (1990). The
      arsonist, however, intentionally started the fire—clearly an
      intentional criminal act capable of causing harm in and of itself.
      In State v. Perez-Cervantes, we held that a person who stabs
      another may be liable for the other's death even if drug abuse also
      contributed to the death. 141 Wn.2d 468,6 P.3d 1160 (2000). In
      contrast to this case, that defendant performed an intentional
      criminal act—stabbing--that directly caused harm. And in State v.
      Christman, the Court of Appeals applied causation principles to
      determine that a person who gives illicit drugs to another may be
      liable for the other's death from overdose even if other drugs from
      another source also contributed to the death. 160 Wn. App. 741,
      249 P.3d 680[, review denied, 172 Wn.2d 1002](2011). Once
      again, the initial act was not only intentional, but felonious, and
      capable of causing harm in and of itself.
              Bauer's act of gun ownership, in contrast, is not felonious or
      criminal. His decision to keep loaded weapons around the house is
      not, in itself, a crime in this state, either.

Bauer, 180 Wn.2d at 938-39.

       Unlike the defendant in Bauer, Gatson committed intentional and felonious

acts. He stole merchandise and struck the guard. His conduct was not

attenuated from the guard's injuries; it was the immediate physical impetus of

harm, like the defendant's conduct in Decker. Accordingly, we conclude nothing

in Bauer diminishes the force of the Decker analysis in the circumstances of this

case. The trial court correctly denied Gatson's request for a lesser included

offense instruction.

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No. 74927-7-1/8

                       EXPERT WITNESS INSTRUCTION

       Gatson contends the trial court erred by giving an expert witness

instruction. The instruction provided as follows:

             A witness who has special training, education, or experience
      may be allowed to express an opinion in addition to giving
      testimony as to facts.
             You are not, however, required to accept his or her opinion.
      To determine the credibility and weight to be given to this type of
      evidence, you may consider, among other things, the education,
      training, experience, knowledge, and ability of the witness. You
      may also consider the reasons given for the opinion and the
      sources of his or her information, as well as considering the factors
      already given to you for evaluating the testimony of any other
      witness.

      The instruction tracked the pattern instruction in 11 Washington Practice:

Washington Pattern Jury Instructions: Criminal 6.51 at 211 (4th ed. 2016). The

note on use says,"Use this instruction if requested in a case in which expert

testimony has been admitted."

       Gatson contends that providing the instruction was error because none of

the witnesses were qualified as experts. He argues that because the only

witnesses who testified to having special training were police officers, the

instruction amounted to an unconstitutional comment on the evidence conveying

the judge's opinion "that the police officers were experts notwithstanding the fact

that they had not been endorsed as such at trial."

       We disagree. "A jury instruction that does no more than accurately state

the law pertaining to an issue" is not an impermissible comment on the evidence

by the judge. State v. Woods, 143 Wn.2d 561, 591, 23 P.3d 1046, cert. denied,

534 U.S. 964(2001). Gatson does not claim the instruction misstated the law.


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No. 74927-7-1/9

There is no reason to believe the jurors understood it as an endorsement of the

veracity of the officers. Gatson has not demonstrated it was error to provide the

instruction.

                       PROSECUTORIAL MISCONDUCT

       Gatson alleges three instances of prosecutorial misconduct. He must

demonstrate that the conduct was both improper and prejudicial. State v.

Lindsay, 180 Wn.2d 423, 431, 326 P.3d 125(2014).

       First, Gatson contends the prosecutor mischaracterized the testimony of a

bystander witness. The witness testified that on the day of the crime, she

observed a crowd gathered outside the store and saw some kind of commotion,

but she "didn't know exactly what was going on." She testified that once she got

closer, "a man had stood up and said, 'I've been stabbed." The prosecutor

argued in closing that the woman saw Gatson strike the guard "with a weapon":

      [She]saw something going on when she was about to cross the
      street.... She saw, and she thought it was goofing off or maybe it
      was more serious, but she saw that there was something going on.
      Well, we know what that something was now. She saw the
      defendant striking [the guard] with a weapon.

The court overruled a defense objection that the prosecutor was arguing facts not

in evidence.

       The defense objection was well taken. The guard had retreated from his

initial impression that he had been stabbed, and the jury heard no other evidence

that Gatson had a weapon. On appeal, the State contends the prosecutor's

argument should be understood, in context, as merely summarizing the woman's

testimony that she did witness the event but she did not realize what was actually


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No. 74927-7-1/10

happening. The State misses the point. The witness heard the guard say that

he had been stabbed, but she did not say she saw a weapon. The prosecutor

should not have used language suggesting that the existence of a weapon was a

fact. Nevertheless, because the State was by this time proceeding only on the

"inflicts bodily injury" prong of first degree robbery, the reference to a weapon

had less sting than if the existence of a weapon was a matter to be proved. The

trial court gave the jury the usual instruction that argument is not evidence. We

conclude the reference to a weapon, though improper, was not prejudicial.

       Second, Gatson contends the prosecutor used facts not in evidence to

inflame jurors' passion and prejudices. In defense closing argument, counsel for

Gatson said that the guard did not suffer "much of an injury." The prosecutor's

rebuttal was "Defense counsel said, 'It wasn't much of an injury.' And she's right,

there wasn't a knife wound in his throat as he's laying there bleeding out." The

court overruled a defense objection to this comment.

       Gatson asserts that the comment invoked inflammatory imagery that

distracted the jury from its proper function as a rational decision-maker. We

disagree. The comment was within the bounds of a proper response to the

defense argument.

       Third, Gatson contends the prosecutor trivialized the State's burden of

proof by describing the reasonable doubt standard as the "exact same" standard

used in all criminal trials:

              Defense counsel stood up here and talked at length about
       the burden of proof, beyond a reasonable doubt. That burden of
       proof is the exact same burden of proof that is used across the hall,
       down the hall, in every courtroom on this floor, on every courtroom

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No. 74927-7-1/11

      on the lower floors, the upper floors, in every courtroom in the state
      of Washington, in every courtroom across the nation; and it's the
      exact same standard that has been used since the time our country
      began. It's the same standard.

Defense counsel objected on the basis that the prosecutor was misstating the

law. The objection was overruled, and the prosecutor continued along the same

line of argument:

      In any criminal case, it is the exact same standard. So, let me be
      clear on that. What I'm saying is, the standard in a criminal case of
      beyond a reasonable doubt is the exact same standard in every
      criminal case, here, Idaho, North Dakota, New York; it's the same
      one. And that standard, that burden, it's absolutely satisfied by the
      evidence in this particular case.

      Gatson contends the prosecutor's argument compared the reasonable

doubt standard to everyday decision making, an approach disapproved in

Lindsay. In that case, the prosecutor explained the reasonable doubt standard

with a narrative about approaching a crosswalk and seeing a car coming: "He

has the red light, you've got a walk sign, you look at him, he sees you, he's

slowing down, he nods and you start walking. You're walking because beyond a

reasonable doubt you're confident you can walk across that crosswalk without

getting run over." Lindsay, 180 Wn.2d at 436. The challenged comments here

are not analogous to the crosswalk narrative in Lindsay.

      Gatson contends the prosecutor was arguing that the jury should not

hesitate to bring in a guilty verdict because other defendants have been routinely

convicted under this standard all over the country. We do not find that message

conveyed in the challenged comments. They are reasonably viewed as a

response to defense counsel's explanation of the reasonable doubt standard as


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No. 74927-7-1/12

"the highest burden of proof in our legal system" and the State's "awesome

burden of proof."

       In summary, none of the instances of alleged prosecutorial misconduct

provide a basis for reversal.

                    STATEMENT OF ADDITIONAL GROUNDS

       Gatson filed a statement of additional grounds as allowed by RAP 10.10.

One ground relates to an implied element of the charge. An essential, implied

element of first degree robbery is that the victim had an ownership,

representative, or possessory interest in the property taken. State v. Richie, 191

Wn. App. 916, 919, 924, 365 P.3d 770(2015). Gatson questions whether the

State proved this element.

       The evidence provided no basis for the jury to find that the victim, the

security guard, was acting in any other capacity than as an employee of the

department store when the crime occurred. The guard was conducting routine

video surveillance when he observed Gatson take the merchandise; he then

followed Gatson while staying in radio contact with his supervisor; he identified

himself outside the store as a loss prevention officer. This is sufficient evidence

of a connection between the guard and the stolen property to sustain the robbery

conviction. Richie, 191 Wn. App. at 926.

       The implied element was not included in the to-convict instruction. But

omission of an essential element from a to-convict instruction is harmless if

uncontroverted evidence supports the omitted element. State v. Brown, 147

Wn.2d 330, 340-41, 58 P.3d 889(2002). Here, the uncontroverted evidence


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No. 74927-7-1/13

summarized above established the guard's representative interest in the stolen

property and rendered the error harmless. Further review is not warranted.

      Gatson's statement of additional grounds also alleges that by withholding

or failing to preserve a radio, badge, belt, and sweatshirt worn by the guard when

the robbery occurred, the State violated Brady v. Maryland, 373 U.S. 83, 83 S.

Ct. 1194, 10 L. Ed. 2d 215 (1963). Gatson derives this allegation from trial

counsel's argument that the State's failure to keep these items demonstrated

weakness in the State's proof. The State violates due process by suppressing

evidence favorable to an accused upon request when the evidence is material

either to guilt or punishment. Brady, 373 U.S. at 87. Because the record does

not show that evidence was "suppressed" within the meaning of Brady, further

review is not warranted.

      Affirmed.



                                                      c,kete,
WE CONCUR:




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