                                                                          FILED
                                                                       APRIL 11, 2019
                                                               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. 35960-3-III
                     Respondent,             )
                                             )
        v.                                   )
                                             )
MICHAEL R. MINGS,                            )         UNPUBLISHED OPINION
                                             )
                     Appellant.              )
                                             )

        FEARING, J. — Under RCW 10.61.006, a defendant has the right to a lesser

included offense instruction to the jury under limited circumstances. In this appeal, we

address whether Michael Mings’ conduct supported a ruling that third degree theft was a

lesser included offense of second degree robbery. We hold in the negative and affirm the

trial court.

                                         FACTS

        At 4:00 a.m., Michael Mings entered a 24-hour Rite Aid store and walked to the

pharmacy counter. Pharmacist Thomas Keefe worked alone in the store pharmacy.

Keefe noticed Mings to be agitated. Mings approached the pharmacy window and asked

Keefe if the pharmacy possessed blue oxycodone pills. Blue pills deliver a higher dose of
No. 35960-3-III
State v. Mings


the opioid. Keefe scanned the drug safe and responded affirmatively. Mings then

silently handed Keefe a handwritten card: “GIVE ME THE BOTTLES FOR

OXYCODONE 30 mg . . . And Boxes of Fentanyl patches. I don’t want to hurt you or

myself. Make it in less than a minute. Nothin Funny.” Ex. 6.

       Thomas Keefe testified at trial that he felt threatened by Michael Mings’ note and

feared for his and Michael Ming’s safety. Pharmacist Keefe returned to the drug safe and

grabbed three “tracker bottles” from a pressure-sensitive plate that immediately sent a

silent alarm to law enforcement. Report of Proceedings at 117-18. The bottles contained

pills other than controlled substances. Mings took the bottles and turned to leave, but,

before he left the store, he examined the pills. He returned to the pharmacy counter and

informed Keefe that he received the wrong pills. Keefe replied that the delivered pills

were the only oxycodone in the safe. Mings left the store.

       The State of Washington charged Michael Mings with second degree robbery. He

testified at trial that he attempted to write the demand note so that Thomas Keefe would

not feel threatened. Defense counsel proposed lesser included jury instructions for first

degree theft and third degree theft. The trial court denied both requests. The court ruled

that first degree theft did not satisfy the legal test for a lesser included offense and that

the evidence did not justify a third degree theft instruction. The jury returned a guilty

verdict for second degree robbery.



                                               2
No. 35960-3-III
State v. Mings


                                       DISCUSSION

       On appeal, Michael Mings challenges only the trial court’s denial of his proposed

jury instruction on third degree theft. A party requesting a lesser included offense

instruction must satisfy a two-pronged test, also known as the Workman test: (1) a legal

prong that requires a showing that all elements of the lesser offense are necessary

elements of the charged offense; and (2) a factual prong that requires production of

evidence that supports an inference that only the lesser crime was committed to the

exclusion of the greater crime charged. State v. Condon, 182 Wn.2d 307, 316, 343 P.3d

357 (2015); State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). If both

prongs are satisfied, the requesting party is entitled to the lesser included offense

instruction. State v. Condon, 182 Wn.2d at 316.

       The State and Michael Mings agree to the fulfillment of the first prong of the

Workman rule because the elements of third degree theft are necessary elements of

second degree robbery. Third degree theft includes the elements of wrongful taking of

the property of another with intent to deprive and the property is no more than $250 in

value. RCW 9A.56.020(1)(a), .050(1)(a). The elements of second degree robbery

include unlawful taking of another’s property in his or her presence by the use or

threatened use of force or fear. RCW 9A.56.190, .210. Consequently, we confine our

analysis to the second prong of the Workman rule.



                                              3
No. 35960-3-III
State v. Mings


       To determine whether the evidence suffices to support the giving of an instruction,

we view the evidence in the light most favorable to the party requesting the instruction.

State v. Henderson, 182 Wn.2d 734, 742, 344 P.3d 1207 (2015); State v. Fernandez-

Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000). Specifically, a lesser included

offense instruction should be given if the evidence would permit a rational juror to find

the defendant guilty of the lesser offense and not guilty of the greater offense. State v.

Fernandez-Medina, 141 Wn.2d at 456; State v. Warden, 133 Wn.2d 559, 563, 947 P.2d

708 (1997). We review the trial court’s decision regarding the factual prong of the

Workman rule for abuse of discretion. State v. Henderson, 182 Wn.2d at 743.

       The distinguishing element between robbery and theft is the use or threatened use

of force. State v. Farnsworth, Jr., 185 Wn.2d 768, 775, 374 P.3d 1152 (2016). A person

commits robbery when he or she unlawfully takes property from another person by the

use or threatened use of immediate force or fear of injury. RCW 9A.56.190. Theft, the

wrongful taking of another’s property with the intent to deprive, does not require any use

of force. RCW 9A.56.020(1)(a). Although the threat of force in a robbery is usually

explicit, sometimes the accused implies the threat by communication or conduct. State v.

Farnsworth, 185 Wn.2d at 776.

       We must decide whether the demand note Michael Mings handed to pharmacist

Thomas Keefe contained an implied threat of force or injury. To determine whether a

threat was implied, we ask if an ordinary person in the victim’s position could reasonably

                                              4
No. 35960-3-III
State v. Mings


infer that the note threatened bodily harm. State v. Farnsworth, 185 Wn.2d at 776; State

v. Witherspoon, 180 Wn.2d 875, 884, 329 P.3d 888 (2014). An unequivocal demand,

unsupported by the pretext of any lawful entitlement to the controlled substances,

constitutes an implicit threat to use force. State v. Collinsworth, 90 Wn. App. 546, 553,

966 P.2d 905 (1997); State v. Farnsworth, 185 Wn.2d at 777.

       Michael Ming’s note unequivocally demanded bottles of oxycodone and fentanyl,

controlled substances to which he lacked any entitlement. The language of the note

necessarily intimated violence by stating, “I dont want to hurt you or myself. Make it in

less than a minute. Nothin funny.” Ex. 6. An ordinary person could reasonably infer

that the note threatened bodily harm. Thomas Keefe testified that he feared for his safety.

       Although Michael Mings testified that he did not intend to threaten pharamacist

Thomas Keefe when he handed the demand note, the language of the note and the

demand for controlled substances late at night, in a nearly empty store, conveyed an

implied threat of force designed to compel the pharmacist to give Mings the opioids.

Because this evidence supported the elements of second degree robbery and did not

support an inference that Ming only committed third degree theft, the trial court properly

refused the instruction on the lesser included offense.

                                      CONCLUSION

       Under the undisputed facts of this case, the evidence did not support an inference

that Micahel Mings committed only third degree theft to the exclusion of second degree

                                             5
No. 35960-3-III
State v. Mings


robbery. Consequently, the trial court did not abuse its discretion in refusing to instruct

the jury on third degree theft. We affirm the conviction of Mings for second 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.




WE CONCUR:




Siddoway, J.


Q.
Pennell, A.CJ.




                                              6
