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

STATE OF WASHINGTON,                            )       No. 79215-6-I
                                                )
                           Respondent,          )
                                                )
                   v.                           )
                                                )       UNPUBLISHED OPINION
TAKAO, FRANCO ALLI,                             )
DOB: 02/21/1985,                                )
                                                )
                           Appellant.           )

      BOWMAN, J. — Franco Alli Takao appeals his conviction for second degree

robbery. He argues that the court denied him his constitutional right to a

unanimous jury verdict by failing to give a unanimity instruction. Because

Takao’s actions were a continuing course of conduct, no unanimity instruction

was required. We affirm.

                                           FACTS

      On the evening of September 3, 2018, Stefani Salvadalena drove her 89-

year-old roommate Floyd Olson to a Bank of America ATM.1 Salvadalena waited

in the car while Olson withdrew $200 from the machine. Olson walked back

toward the car carrying the cash in his hand.




      1   Automated teller machine.


     Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79215-6-I/2


       Takao approached Olson and struck up a conversation. A nearby

witness, Stefanie Vitous, testified that she could see the money in Olson’s hand

as the two men spoke. Salvadalena became suspicious of Takao and opened

her door to tell Olson to get in the car.

       Olson testified that Takao then “put a hand on me, and gave me a shove,

and grabbed the money, and ran.” Olson also testified that he had a “grip” on the

money and Takao “jerked it” out of his hand. Olson stated he fell when Takao

pushed him on his shoulder and again when he tried to chase Takao.

       Salvadalena initially testified that she saw Takao “swiftly, in one quick

motion, push[ ] at Floyd, and then grab[ ] his money out of his hand. Floyd fell to

the ground.” She later clarified that she did not necessarily see the push. Vitous

said she did not see Takao push Olson but she looked up when she heard a

noise “like a grunt” and saw Olson “on all fours” as Takao fled. Jesus Ovalle was

standing across the street. He heard Salvadalena scream and rushed over to

find Olson lying on the ground and Takao running away. Ovalle gave chase but

was unable to catch Takao. Vitous called 911.

       A police K-9 unit found Takao hiding nearby with the cash. Olson, Vitous,

and Ovalle all positively identified Takao as the person who took Olson’s money.

Video evidence from a Bank of America security camera showed Olson fall to the

ground, but the camera was too far away and not of sufficient quality to capture

the incident in its entirety.

       The State charged Takao with second degree robbery. At trial, Takao

admitted that he took the money. But he argued that there was conflicting



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evidence as to whether he pushed Olson and that he did not use force to take

Olson’s money. Takao argued that he simply grabbed the money from Olson’s

hand, an act that is not legally sufficient to convict him of robbery. In rebuttal, the

State argued that even assuming Takao did not push Olson, the evidence was

sufficient to support a conviction of robbery.

       The court instructed the jury as to the elements of both second degree

robbery and the lesser charge of theft in the first degree. The court instructed the

jury that to convict Takao of robbery in the second degree, they needed to find

that “force or fear was used by the defendant to obtain or retain possession of

the property or to prevent or overcome resistance to the taking.”

       The jury found Takao guilty of robbery in the second degree. The court

sentenced Takao to a standard-range sentence of four months. Takao appeals.

                                       ANALYSIS

       Takao argues that the court erred by failing to instruct the jury on

unanimity. We disagree.

       Criminal defendants in Washington have a constitutional right to a

unanimous jury verdict. CONST. art. 1, § 21; State v. Smith, 159 Wn.2d 778, 783,

154 P.3d 873 (2007). If the State presents evidence of multiple acts of

misconduct that could support conviction of a single count, the State must elect a

single act on which it will rely or the trial court must instruct the jury that it must

unanimously agree that the State proved a specific criminal act beyond a

reasonable doubt. State v. Coleman, 159 Wn.2d 509, 511-12, 150 P.3d 1126

(2007). But in cases involving a “ ‘continuing course of conduct,’ ” the State does



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not need to elect a single act nor does a trial court need to provide a unanimity

instruction. State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989) (quoting

State v. Petrich, 101 Wn.2d 566, 571, 683 P.2d 173 (1984), abrogated on other

grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988)).

       To determine whether multiple acts constitute a continuing course of

conduct, we evaluate the facts in a “commonsense manner.” Handran, 113

Wn.2d at 17. We consider the time separating the criminal acts as well as

whether the criminal acts involved the same parties, location, and ultimate

purpose. State v. Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996). Evidence

that the charged conduct occurred at different times and places tends to show

that several distinct acts occurred, while evidence that a defendant engaged in a

series of actions intended to secure the same objective supports a continuous

course of conduct. State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294

(1995).

       Olson testified that Takao “put a hand on me, and gave me a shove, and

grabbed the money, and ran.” Salvadalena testified that Takao acted “swiftly, in

one quick motion.” The Bank of America security video shows that the events

occurred in less than a minute. Takao’s actions were clearly a continuing course

of conduct.

       However, Takao claims that the prosecutor’s rebuttal argument focused

the jury on only one act—taking money from Olson’s hand—to convict him.

Takao contends that taking money from a person’s hand is not a legally sufficient

use of force to support his robbery conviction and that failure to give a unanimity



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instruction renders the jury verdict ambiguous as to whether the jury relied on

that legally insufficient act to convict him. Takao’s argument is not persuasive.

       The prosecutor did not urge the jury to focus on just one act of force

during closing argument. The prosecutor consistently maintained that the

evidence showed Takao pushed Olson and he addressed the incident as a

continuing course of conduct. However, in Takao’s closing argument, defense

counsel maintained that the State did not present sufficient credible evidence to

prove that Takao pushed Olson. Counsel then argued that taking money from

Olson’s hand is not a sufficient act of force to convict Takao of robbery.

       In response, the prosecutor reminded the jury that Olson “said he was

pushed, the money was taken, and the shoulder — distinctive — hand on his

shoulder, pushed.” The prosecutor then turned to Takao’s theory of the case:

       Let’s assume [Olson] wasn’t pushed. Never touched. Still a
       robbery.
                      . . . [Olson] was holding [money] in his hand, using
       force to keep his money. . . . Theft is when it was yanked out of his
       hand. That’s the force.
                      Theft in the First Degree is a pickpocket. . . . [T]he
       defendant . . . yanks it out of the pocket, doesn’t use any force . . . .
       Mr. Takao, [he] yanked the money from [Olson]’s hand, that still is a
       robbery.

The prosecutor’s rebuttal was not an effort to encourage the jury to focus on the

single act of taking money from Olson’s hand. It was plainly an attempt to

address the facts as argued by the defense, should the jury find them to credible.

       Regardless, the act of taking money from Olson’s hand under the

circumstances of this case is sufficient evidence of force to support a conviction

of robbery in the second degree. “Evidence is sufficient to support a conviction if,



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after viewing the evidence in the light most favorable to the State, it allows any

rational trier of fact to find all of the elements of the crime charged beyond a

reasonable doubt.” State v. DeVries, 149 Wn.2d 842, 849, 72 P.3d 748 (2003).

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 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.

RCW 9A.56.190.

       Takao argues that the force used to take the money from Olson’s hand

was only that necessary to effectuate the transfer of property and, therefore,

cannot be sufficient to support a conviction for robbery. But Olson testified that

he was holding his money “in a grip.” He said that Takao pushed him on the

shoulder, grabbed the money, and “jerked” the cash from his hand. Any force,

however slight, which induces the victim to relinquish his property, is sufficient to

sustain a robbery conviction. State v. Ammlung, 31 Wn. App. 696, 704, 644 P.2d

717 (1982). Viewing this evidence in a light most favorable to the State, a juror

could find beyond a reasonable doubt that Takao used force to overcome

Olson’s resistance to the taking.




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      Because Takao engaged in a continuing course of conduct, no unanimity

instruction was required. We affirm the second degree robbery conviction.




WE CONCUR:




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