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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                             No. 68443-4-1


                        Respondent,              DIVISION ONE


                 v.

                                                 UNPUBLISHED OPINION
ELIJAH S. HALL,

                        Appellant.               FILED: July 8, 2013

       Schindler, J. — Elijah S. Hall seeks reversal of his jury conviction for felony

murder in the first degree, arguing that the State did not prove beyond a reasonable

doubt the predicate offense of attempted robbery in the first degree. Because sufficient

evidence supports attempted robbery in the first degree, we affirm the conviction of

felony murder in the first degree.

                                          FACTS

       Seventeen year-old Elijah Hall "wanted to get some money" because he was

"tired of being broke." Hall decided he would go to the Pit Stop Express convenience

store and " 'show [the clerk] the gun and he would hand the money over.'" Hall had

been to the Pit Stop Express many times before and knew the convenience store clerk,

28-year-old Manish Melwani. At approximately 6:00 a.m. on Sunday, July 26, 2009,

Hall left home to go to the Pit Stop Express to commit robbery. Hall wore dark
No. 68443-4-1/2


sunglasses, a black knit cap, a black bandana, a black jacket, and carried a backpack

and a snub-nosed semi-automatic revolver.

       A security camera located behind the counter of the Pit Stop Express recorded

the attempted robbery and shooting. The camera shows Hall, clad in his disguise,

entering the convenience store at 6:28 a.m. Melwani is not behind the counter where

the cash register is located. After looking at items in the store for about one minute,

Hall goes behind the counter. Hall then leans over the cash register's keyboard and

monitor and presses the cash register keys. A customer enters the store, sees Hall,

and immediately leaves. The customer calls 911.

      After unsuccessfully trying to open the register, Hall crouches down under the

counter and opens drawers under the counter. Hall then stands up and continues trying

to get into the cash register by pressing the keys. Hall briefly steps away and returns

wearing gloves. While Hall continues to try to open the cash register, the camera

shows Melwani return from the back of the store. Hall crouches down and immediately

reaches for the snub-nosed revolver in the waistband of his pants. Melwani approaches

the counter and confronts Hall. As Hall stands up, he removes the gun from his pants

and points the gun at Melwani.

      When Melwani walks around the counter toward Hall, Hall shoots Melwani in the

stomach. Melwani then attempts to grab the gun away from Hall. Hall and Melwani

struggle over the gun for approximately two minutes. During the struggle, two

customers walk in but immediately leave and call 911.

       Hall then rushes at Melwani and knocks Melwani off balance. Hall shoots

Melwani a second time, this time in the right thigh. Hall then hits Melwani twice in the
No. 68443-4-1/3


forehead with the gun, dazing him, and leaves the store. Melwani chases after Hall but

collapses at the store entrance.

       Officers from the Seattle Police Department and medical personnel responded to

the 911 calls. Medical personnel took Melwani to Harborview Medical Center. After

initial attempts to treat Melwani, he later died from the two gunshot wounds.

       Officers found a pair of sunglasses discarded near the store's counter and

retrieved the videotape recording from the security camera. In an effort to identify the

shooter, the police department released still frames from the video to the media.

       After the 5:00 p.m. news segment aired that night, a citizen contacted police

about clothing that was discarded outside an apartment building a few blocks from the

Pit Stop Express. Officers found a black knit cap, a black bandana, gloves, and a black

jacket in a duffel bag.

       While police were collecting the evidence, Detective James Cooper noticed a
young man and woman, later identified as Hall and his girlfriend Kiara Todd, watching
police collect the evidence. Detective Cooper told Hall and Todd the police were
investigating the Pit Stop Express robbery. Hall told Detective Cooper that he heard
two gunshots that morning. The police department had not released any information
about the number of shots fired.

       The next day, Hall's friend Jaylyn Johnson spoke to police. Johnson told the
police that he and Hall lived together. Johnson told police that the sunglasses the
shooter wore belonged to his mother, and the black bandana belonged to him. Johnson
also said he had seen the shooter's jacket in the laundry room of the home he shared

with Hall.
No. 68443-4-1/4


      The police interviewed Hall. During the interview, Hall admitted shooting

Melwani. Hall told police officers," 'I hoped that I would show him the gun and he would

be scared and he would hand over the money.'"

      The State charged Hall with felony murder in the first degree and unlawful

possession of a firearm in the second degree. The State alleged that while attempting

to commit robbery in the first degree, Hall killed Manish Melwani.

       During a six-day jury trial, the State called a number of witnesses to testify,

including the Pit Stop Express customers who called 911, police officers and detectives,

a forensic expert, and the medical examiner. The court admitted the security camera

videotape into evidence.

       Forensic scientist Kari O'Neill identified Hall's DNA1 on the discarded bandana

and the interior of the gloves the officers found with the clothing at the apartment

building. O'Neill also testified that the blood on the exterior of the gloves belonged to

Melwani. King County Chief Medical Examiner Richard Harruff testified that Melwani

died as a result of the gunshot wounds to the abdomen and the thigh.

       Hall testified, admitted he was the person shown in the security camera video,

and that he attempted to disguise himself. Hall also admitted telling the police that" 'I

thought that the plan was going to be, okay, I planned, he would be behind the counter,

itwas going to be easier, I could just scare him with the gun.'" Hall testified that he

knew he needed the clerk in order to open the cash register.




       1(Deoxyribonucleic acid.
No. 68443-4-1/5


       In addition to instructing the jury on felony murder in the first degree and

attempted robbery in the first degree, the court agreed to instruct the jury on the lesser

included offense of felony murder in the second degree.

       During closing argument, defense counsel told the jury that the State had not

proved the elements of attempted robbery in the first degree because Melwani was not

present "during the whole course of the encounter with the cash register." The defense

argued, in pertinent part:

              [Hall] didn't take or attempt to take the personal property from the
       person or in the presence against a person's will. Mr. Manish Melwani is
       not out there during the whole course of the encounter with the cash
       register.
              We don't see my client trying to take anything or take anything in
       his presence. He certainly doesn't do anything to take anything from Mr.
       Manish Melwani's person.

       In addressing the defense argument, the prosecutor argued, in pertinent part:

             When [defense counsel] tells you it is not from the person, or in the
       presence of, really we can never have a [robbery] that occurs, if the clerk
       has their back turned, or if the clerk is in the back room and the clerk
       interrupts.
               . . . Importantly, when you think about attempted robbery first
       degree, what did this young man plan for?
               He planned for an encounter with someone, when he formed his
       intent. That's what he prepared and planned for.

       The jury convicted Hall as charged of felony murder in the first degree and

unlawful possession of a firearm in the second degree. The court sentenced Hall to 331

months confinement.
No. 68443-4-1/6


                                        ANALYSIS

       Hall challenges his conviction for felony murder in the first degree. Hall asserts

the State did not prove beyond a reasonable doubt the predicate offense of attempted

robbery in the first degree. Hall argues the jury instruction defining robbery required the

State to prove that the attempted taking occurred in the presence of another, and there

was no evidence he used force when he first attempted to take money from the cash

register.

       The State bears the burden of proving every element of the crime beyond a

reasonable doubt. State v. A.M.. 163 Wn. App. 414. 419. 260 P.3d 229 (2011). In

determining the sufficiency of the evidence, we must view the evidence in the light most

favorable to the State, and determine whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. State v. Salinas. 119

Wn.2d 192, 201, 829 P.2d 1068 (1992). In reviewing a challenge to the sufficiency of

the evidence, we draw all reasonable inferences from the evidence in favor of the State

and interpret the evidence most strongly against the defendant. Salinas. 119 Wn.2d at

201. A defendant claiming insufficiency of the evidence "admits the truth of the State's

evidence." State v. Myers. 133 Wn.2d 26, 37, 941 P.2d 1102 (1997). We review jury

instructions and questions of law de novo. State v. DeRyke, 149 Wn.2d 906, 910, 73

P.3d 1000 (2003).

       To convict Hall of felony murder in the first degree, the State had to prove that

while attempting to commit robbery in the first degree, he caused the death of Melwani.

RCW9A.32.030(1)(c).
No. 68443-4-1/7


          To prove attempted robbery in the first degree, the State had to establish that

while armed with a deadly weapon, Hall intended to take personal property against
Melwani's will and took a substantial step toward the commission of the crime. RCW

9A.28.020(1), RCW 9A.56.190,2 RCW 9A.56.200. A"substantial step" is conduct
strongly corroborative of the actor's criminal purpose. State v. Aumick. 126 Wn.2d 422,

427, 894 P.2d 1325 (1995).

        The jury can infer intent from all of the facts and circumstances. State v.

Bencivenaa. 137 Wn.2d 703, 709, 974 P.2d 832 (1999). "[Wjhere the design of a

person to commit a crime is clearly shown, slight acts done in furtherance of this design

will constitute an attempt." State v. Nicholson. 77 Wn.2d 415, 420, 463 P.2d 633

(1969).

        A person commits robbery by unlawfully taking personal property by the use or

threatened use of force to retain the property. State v. Johnson. 155 Wn.2d 609, 610,

121 P.3d 91 (2005). "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." RCW 9A.56.190. The definition of "robbery" also

includes "the retention, via force against the property owner, of property initially taken

peaceably or outside the presence of the property owner." State v. Handburgh. 119

Wn.2d 284, 293, 830 P.2d 641 (1992).3 A person commits robbery in the first degree if
during the commission of a robbery, or in flight therefrom, the person inflicts bodily

injury. RCW 9A.56.200(1)(a)(iii).



       2We note the legislature amended RCW 9A.56.190 in 2011 to add the words "or her" after "his"
throughout the statute. Laws of 2011, ch. 336, § 379.
        3(Emphasis in original.)
No. 68443-4-1/8


       Hall relies on the jury instruction defining robbery to argue that because Melwani

was not at the cash register when Hall first attempted to open it, the attempted taking

was not made "in the presence of another." Jury Instruction No. 9 defined "robbery" as

follows:

                 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 against that person's will by the use
       or threatened use of immediate force, violence, or fear of injury to that
       person or to that person's property or to the person or property of anyone.
       The 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. The taking constitutes
       robbery, even if death precedes the taking, whenever the taking and a
       homicide are part of the same transaction.

       Hall's argument is contrary to the "transactional" analysis of robbery first set forth
in State v. Manchester. 57 Wn. App. 765, 770, 790 P.2d 217 (1990), and adopted by the

supreme court in Handburqh. 119 Wn.2d at 290-91.

           In Manchester, the defendant took cigarettes from a grocery store and left

without paying. Manchester. 57 Wn. App. at 766. Outside the store, Manchester
flashed a knife at a security guard who attempted to stop him. Manchester. 57 Wn.
App. at 766. The court rejected Manchester's argument that he did not take property in
a person's presence because the store employees were a significant distance away,
and that he did not use force against anyone until after the taking was completed.

Manchester. 57 Wn. App. at 768. The court held that the transactional view of robbery
"does not consider the robbery complete until the assailant has effected his escape."
Manchester. 57 Wn. App. at 770. The court defined "presence" as "a taking of
something 'so within [the victim's] reach, inspection, observation or control, that he
could, if not overcome with violence or prevented by fear, retain his possession of it.'"

                                                8
No. 68443-4-1/9


Manchester. 57 Wn. App. at 7684 (quoting 4 C. Torcia, Wharton's Criminal Law § 473
(14th ed. 1981)). The court concluded the defendant's arguments "ignore[d] the plain

language of the statute: 'force or fear. . . used to . .. retain possession of the property,

or to prevent or overcome resistance to the taking.'" Manchester. 57 Wn. App. at 7695

(quoting RCW 9A.56.190).

       In Handburqh. our supreme court agreed with the analysis in Manchester.

Handburqh. 119 Wn.2d at 290-91, 293. The court rejected the common law view

that force used during a robbery must be contemporaneous with the taking, and

adopted the modern transactional view of robbery. Handburqh. 119 Wn.2d at

290-91; see also Johnson, 155 Wn.2d at 611. In adopting the transactional view

of robbery, the Court described a factual scenario markedly similar to the facts in

this case:

       A person takes money from the cash register of a seemingly unattended
       convenience store, thereby committing theft. Before the thief flees, the
       owner comes out of the back room and confronts him. Seeing the owner,
       the thief points a gun at him. ... In our opinion, ... the theft should be
       considered a robbery, even if no additional property is taken; the retention
       of the cash, by the use or threatened use of force in the presence of the
       store owner, is more than theft. The robbery statute was intended to
       punish this very combination of crimes.

Handburqh. 119 Wn.2d at 290-91.

       Hall also contends the State did not prove that he used force or fear during the

attempt to steal the money. Hall argues that the jury instruction omitted a sentence

used in the instruction in Handburqh and set forth in the Washington pattern jury

instruction defining robbery. See Handburqh. 119 Wn.2d at 287-88. The omitted

sentence states that "[s]uch taking constitutes robbery whenever it appears that,

       4(Alteration in original.)
        (Alterations in original.)
No. 68443-4-1/10


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." 11 Washington

Practice: Washington Pattern Jury instructions: Criminal 37.50, at 674 (3d ed.

2008) (WPIC).

         The omitted sentence is in brackets. The WPIC states that the sentence shall be

used only where it applies to the facts of the case. WPIC 37.50, at 674. Here, the

bracketed language was clearly inapplicable to Hall's case. There is no dispute that

Melwani knew Hall was attempting to steal money from the cash register and confronted

Hall during the attempt.

         Viewing the evidence in the light most favorable to the State, the State presented

sufficient evidence to find Hall committed attempted robbery in the first degree in the

presence of Melwani. Hall planned to steal money at Pit Stop Express convenience

store by showing his gun to the clerk. Hall testified that he planned to " 'show [Melwani]

the gun and he would hand the money over.'" Hall went to the Pit Stop Express armed

with a snub-nosed revolver and wearing a disguise. Hall testified he knew he would

need Melwani's help to get into the cash register. The cash register was locked and

access to the cash register was under Melwani's control.6 Melwani confronted Hall
while he was attempting to open the register.

         Sufficient evidence also supports finding that Hall used force or fear during his

attempt to steal the money from the register. There is no question that Hall used force

to "overcome resistance to the taking."7 The video shows that the attempts to steal the



         6See Manchester, 57 Wn. App. at 768 (defining "presence" as a taking of something within a
victim's control).
         7RCW9A.56.190.

                                                   10
No. 68443-4-1/11


money and use of force were part of an ongoing transaction. Hall's efforts to get money

out of the cash register occurred within seconds of Melwani confronting him and Hall

shooting Melwani.

       In his statement of additional grounds, Hall claims the court abused its discretion

in denying the motion to continue he made the day before trial. Hall's argument is

without merit.


       In July 2011, the court permitted Hall's counsel to withdraw and allowed another

lawyer at The Defender Association to represent Hall. The court's decision was

expressly based on the representation that "[t]he defense is not seeking a continuance

of the current trial date in order to effectuate this substitution." Substitute counsel

assured the court that "his substitution would not impact the trial date, that he would not

seek a continuance."

       Nonetheless, in September, the attorney filed a motion to continue the trial date

in order to prepare. The court granted the motion and continued the trial until

September 28 but on the condition of no further continuances. The day before trial, the

presiding criminal judge denied the motion to continue the trial date.

       We review a trial court's decision for an abuse of discretion. State v. Nguyen.

131 Wn. App. 815, 819, 129 P.3d 821 (2006). Atrial court abuses its discretion when it

bases its decision on untenable grounds or reasons. Nguyen, 131 Wn. App. at 819.

Here, the court granted the defense request for two continuances but denied the

request that was made the day before trial. The court did not abuse its discretion by

denying the motion to continue.




                                              11
No. 68443-4-1/12


       We reject Hall's argument that the jury instruction required the State to prove

more than the express statutory elements of robbery, and conclude sufficient evidence

supports the jury verdict.

       Affirmed.




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WE CONCUR:




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