        Fl LE
       IN CLERKS OFFICE
SUPREME CCUF<T, STATE OF WASHING'roN                        Thl~ oplnlon"'was filed for   record
                 >EP 2 6 2013                               at'Jl'~t~

                                                                  Ronald R. Carpenter
                                                                  ~uprerne Court Clerk



              IN THE SUPREME COURT OF THE STATE OF WASHINGTON


 In the Matter of the Personal Restraint of
                                )                           No. 86241-9
                                )
 BENJAMIN B. BROCKIE,           )
                                )                             En Bane
                    Petitioner. )
 _ _ _ _ _ _ _ _ _ _ _ _ _ _)                       Filed         SEP 2 6 2013


           OWENS, J. -- Based on the robberies of a Pizza Hut and two banks, Benjamin

 Brockie was convicted of2 counts of :first degree robbery, 15 counts of first degree

  kidnapping, and 2 counts of making bomb threats. Brockie asks us to vacate those

  convictions because the jury was instructed on a means of committing first degree

  robbery that was not included in the charging information. Since Brockie fails to

  show actual and substantial prejudice resulting from the erroneous instruction, we

  deny his request for relief.

                                          FACTS

           In 2002, Brockie was accused of robbing a Pizza Hut, an Inland Northwest

  Bank, and a Safeway Federal Credit Union and of kidnapping the staff and patrons of

  those establishments in the course of the robberies. During his trial, the evidence
In re Pers. Restraint of Brockie
No. 86241-9


showed that the robber displayed what appeared to be a gun throughout the robberies.

During closing arguments, the prosecutor made references to the gun when he referred

to the robber as a "gumnan" and described how the employees were forced "at

gunpoint" to remove money from a vault. See Mot. to Vacate J. and Sentence (treated

as a personal restraint petition), Ex. D at 807. Throughout the trial, Brockie

maintained that he was not involved in the robberies.

       By law, there are distinct ways-or means-to commit first degree robbery. At

issue in this case is the fact that the means in Brockie's charging information did not

match the means described in the jury instructions. Brockie's charging information

for the robberies indicated that "in the commission of and immediate flight therefrom,

the defendant displayed what appeared to be a firearm or other deadly weapon,"

which is one of the alternative means of committing first degree robbery. See Mot. to

Vacate J. and Sentence, Ex. Bat 1-2; former RCW 9A.56.200(1)(b) (1975).

However, the jury instructions described two alternative means for first degree

robbery: "A person commits the crime of robbery in the first degree when in the

commission of a robbery he or she is armed with a deadly weapon or displays what

appears to be a firearm or other deadly weapon." Resp. toPers. Restraint Pet., Attach.

I, Instruction 8 (emphasis added); former RCW 9A.56.200(l)(a)-(b).

        The jury ultimately found Brockie guilty of 2 counts of first degree robbery, 15

counts of first degree kidnapping, and 2 counts of making bomb threats. Brockie filed



                                            2
In re Pers. Restraint of Brockie
No. 86241-9


a pro se motion to vacate his judgment and sentence, contending that his convictions

should be vacated because the jury was instructed on an uncharged alternative means

of committing first degree robbery. The superior court transferred the motion to the

Court of Appeals as a timely successive personal restraint petition (PRP), and the

Court of Appeals eventually transferred it to this court.

                                   ISSUE PRESENTED

       Has Brockie shown actual and substantial prejudice resulting from the first

degree robbery jury instruction on uncharged alternative means?

                                       ANALYSIS

        Failing to properly notify a defendant of the nature and cause of the accusation

of a criminal charge is a constitutional violation. U.S. CONST. amend. VI; WASH.

CONST. art. I, § 22; State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). To

obtain relief through a PRP, a petitioner alleging a constitutional error must

demonstrate "actual and substantial prejudice." In re Pers. Restraint of Cook, 114

Wn.2d 802, 810,792 P.2d 506 (1990). Accordingly, we must first determine whether

the jury instruction on the alternative means in Brockie's case was error. The parties

dispute whether this determination should be based on our long-standing case law on

jury instructions on uncharged alternative means or our more recently developed test

on errors in ~harging information. As described below, we continue to apply the rules

developed through our jury instruction cases. Applying these rules, we must



                                             3
In re Pers. Restraint of Brockie
No. 86241-9


determine whether the jury instruction was error. If so, we then determine whether

the error resulted in prejudice.

    I. We Apply Our Prior Case Law on Jury Instructions, Not the Kjorsvik Charging
       Information Test

       Defendants must be informed of the charges against them, including the

manner of committing the crime. State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332

( 1988). Beginning with the Severns case in 1942, we have long held that it is error for

a trial court to instruct the jury on uncharged alternative means. See, e.g., State v.

Severns, 13 Wn.2d 542, 548, 125 P.2d 659 (1942). On direct appeal, it is the State's

burden to prove that the error was harmless. Bray, 52 Wn. App. at 34-35. This is

based on our rule that "[e]rroneous instructions given on behalf of the party in whose

favor the verdict was returned are presumed prejudicial unless it affirmatively appears

they were harmless." State v. Rice, 102 Wn.2d 120, 123, 683 P.2d 199 (1984).

        In a separate line of cases, we have addressed errors in charging information

that are first raised in appeal. Kjorsvik, 117 Wn.2d at 105-06. The two-prong

Kjorsvik rule differs from the jury instruction test described above in terms of the

standards for both prejudice and burden of proof. Under the two-prong Kjorsvik rule,

the reviewing court first liberally construes the charging information to determine if

the defendant actually received notice. Id. at 105. If so, the court proceeds to a

prejudice analysis. Id. at 106. If not, the court does not proceed to a prejudice

analysis. State v. McCarty, 140 Wn.2d 420, 425-26, 998 P.2d 296 (2000).


                                             4
In re Pers. Restraint of Brockie
No. 86241-9


       In this case, the parties dispute whether Brockie's claim is an error injury

instructions (and thus Severns should apply) or an error in the charging document (and

thus Kjorsvik should apply). Thus, a threshold issue in this case is whether the

Kjorsvik charging document test applies when a defendant claims for the first time on

appeal or in a PRP that the jury was instructed on an uncharged alternative means.

We now clarify that the two-prong Kjorsvik test does not apply to such jury

instruction cases, 1 as doing so would require overturning the Severns line of cases and

we see no reason to do so.

    2. Brockie's Charging Information Did Not Put Him on Notice of the Alternative
       Means for His Robbery Charges

        The State asserts that the charging document's phrase "the defendant displayed

what appeared to be a firearm or other deadly weapon" could mean either displaying

or being armed with a deadly weapon, since one has to be armed with a weapon in

order to display a weapon. But the State's argument fails because one may display

what appears to be a deadly weapon without being armed with an actual deadly


1
  In contrast to the State's assertion, State v. Kosewicz, 174 Wn.2d 683, 278 P.3d 184,
cert. denied, 133 S. Ct. 485 (2012), did not apply aKjorsvik analysis to a jury instruction
challenge. A careful reading of Kosewicz shows that we reviewed the defendants' felony
and aggravated murder charges, for which there were no jury instructions on uncharged
alternative means. 174 Wn.2d at 688-92. Although this court discussed jury instructions
on uncharged alternative means in relation to the separate kidnapping charges in
Kosewicz, id. at 690, those instructions were analyzed by the Court of Appeals under our
jury instructions case law (including Severns), not the Kjorsvik charging information test,
and were not reviewed by this court. See Kosewicz, 174 Wn.2d at 690-91; State v.
Kosewicz, noted at 150 Wn. App. 1055, 2009 WL 1765941; State v. Brown, noted at 156
Wn. App. 1035, 2010 WL 2403353.

                                             5
In re Pers. Restraint of Brockie
No. 86241-9


weapon (such as when a person displays a realistic-looking toy gun). See, e.g., State

v. Hauck, 33 Wn. App. 75, 77, 651 P.2d 1092 (1982). Similarly, a person may be

armed with, but not display, a deadly weapon (such as a gun hidden in a person's

pocket). The legislature clearly intended to treat the two alternative means of

committing robbery in the first degree as distinct, and the State's reading would

improperly collapse the two.

       By specifying the means of displaying what appeared to be a firearm or other

deadly weapon, the charging information limited Brockie's notice to that particular

means. Nothing in the charging information put Brockie on notice that he might be

charged with the alternative means of first degree robbery while armed with a deadly

weapon.

    3. Although It Was Error To Instruct the Jury on the Uncharged Alternative
       Means, Brockie Has Not Shown Actual and Substantial Prejudice

        Uncharged alternative means cases on direct appeal and in a PRP implicate

different burdens of proof. In uncharged alternative means cases on direct appeal,

Washington courts have held that instructing the jury on uncharged alternative means




                                           6
In re Pers. Restraint ofBrockie
No. 86241-9


is presumed to be prejudicial unless the State can show that the error was harmless. 2

See Bray, 52 Wn. App. at 34-36 ("An erroneous instruction given on behalf of the

party in whose favor the verdict was returned is presumed prejudicial unless it

affirmatively appears that the error was harmless.").

       On collateral review the burden shifts. If a constitutional error is subject to

harmless error analysis on direct appeal, that same error alleged in a PRP must be

shown to have caused actual and substantial prejudice in order for the petitioner to

obtain relief. In re Pers. Restraint ofHagler, 97 Wn.2d 818, 825-26, 650 P.2d 1103

(1982). This rule is based on the fundamental principle that "[a] personal restraint

petition, like a petition for a writ of habeas corpus, is not a substitute for an appeal."

I d. at 824. Collateral relief is limited because it "undermines the principles of finality

of litigation, degrades the prominence of the trial, and sometimes costs society the

right to punish admitted offenders." Id.

       "[I]n order to prevail in a collateral attack, a petitioner must show that more

likely than not he was prejudiced by the error." Id. at 826. The court determines



2
  We note that this case does not involve a constitutional error that is per se prejudicial on
direct appeal. A constitutional error that is per se prejudicial on direct appeal cannot be
shown to be harmless. In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 328-29, 823
P .2d 492 (1992) (on direct appeal, a defendant does not have to show prejudice for an
error that is per se prejudicial because harm is presumed). In contrast, in an uncharged
alternative means case, the State has the opportunity to show harmlessness. See Bray, 52
Wn. App. at 34-36. For the same reason, this case does not involve a structural error
because structural errors are not subject to a harmless error standard on direct appeal. See
Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993).

                                              7
In re Pers. Restraint of Brockie
No. 86241-9


actual prejudice "in light of the totality of circumstances." In re Pers. Restraint of

Music, 104 Wn.2d 189, 191,704 P.2d 144 (1985). Those circumstances include "the

jury instructions given, the arguments of counsel, weight of evidence of guilt, and

other relevant factors in evaluating whether a particular instruction caused actual

prejudice." !d.

       At the heart of Brockie's claim is that he may have been convicted of first

degree robbery through an uncharged alternative means. Thus, the question is: Based

on the evidence Brockie has presented, is it more likely than not that he was convicted

of first degree robbery for being armed with a deadly weapon rather than displaying

what appears to be a deadly weapon? In this case, the answer is no. Throughout the

trial, the evidence consistently showed that the robber displayed what appeared to be a

gun throughout the robberies. There is no indication that the trial included any

discussion or claim that the robber was armed with a deadly weapon but did not

display it. Thus, based on the facts in this particular case, any juror that found the

robber was armed with a deadly weapon necessarily would have found that the robber

displayed the weapon-the alternative means that was properly described in the

charging information.

        Moreover, Brockie's defense at trial was complete denial of any involvement in

the robberies. He did not make any arguments about whether or not he displayed or

was armed with a weapon. And Brockie does not argue here that he would have



                                             8
In re Pers. Restraint of Brockie
No. 86241-9


mounted a different defense if he had been charged with being armed during the

robbery. Since he has not demonstrated actual and substantial prejudice, we deny his

request to vacate his robbery convictions.

       Brockie also argues that if his robbery convictions are vacated, his related

convictions should also be vacated. Because we are not vacating his robbery

convictions, we do not reach that issue.

                                    CONCLUSION

       A PRP is an extraordinary remedy that requires a petitioner to show actual and

substantial prejudice. In this case, Brockie has failed to make such a showing and we

therefore deny his petition.




                                             9
In re Pers. Restraint of Brockie
No. 86241-9




WE CONCUR:




                                   10
