                                                                         FILED 

                                                                       NOV. 13,2014 

                                                               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. 31759-5-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
COURTNEY CORY ARBUCKLE,                       )        UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO,   J. - Courtney Arbuckle appeals his convictions for first degree burglary,

with accompanying special verdict finding that he was armed with a firearm, and theft of a

firearm. We conclude that the defendant was not prejudiced by an alleged instructional

error and the evidence was sufficient. The convictions are affrrmed.

                                           FACTS

       The noted charges arose from the burglary of a lumber yard that was largely captured

on surveillance cameras. Mr. Arbuckle and Daniel Spivey triggered a silent alarm when

they broke into the lumber yard. When the two entered the store area, they were recorded

by security cameras. The business owner was alerted and, observing on the cameras that

one of the men in the video was armed with a gun, called the police and drove to his store.

The owner and an officer arrived at the same time the two men were leaving. The two men

fled on foot from the officer, leaving a van behind.
No. 31759-5-III
State v. Arbuckle


       A pellet gun and several stolen items were found near the van. The business owner

reported that additional items were missing, including a .22 caliber pistol. A detective

located Mr. Arbuckle after discovering the van was registered to Arbuckle's girl friend.

After his arrest, Mr. Arbuckle gave a detailed statement to the detective and identified Mr.

Spivey as his confederate. He told the detective that Spivey was armed with a gun during

the burglary.

       The case was tried to a jury. Mr. Arbuckle testified that Spivey had been armed with

only a fake gun (the pellet gun) and that the .22 pistol was not present and had not been

stolen. The court instructed the jury that in order to answer "Yes" to the firearm special

verdict, it must find a nexus between the burglary and the firearm. The court, however,

declined the defense request to similarly instruct the jury about a nexus requirement on the

burglary charge.

       The jury convicted Mr. Arbuckle as charged, rejecting his contention that he was

only guilty of lesser offenses because no gun was stolen. He then timely appealed to this

court from a standard range sentence.

                                         ANALYSIS

       Mr. Arbuckle challenges the sufficiency of the evidence to support the firearm

finding and the burglary and theft of a firearm convictions, as well as the absence of a

"nexus" instruction on the burglary charge. We address the sufficiency arguments together

before turning to the instructional claim.

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State v. Arbuckle


                                 Sufficiency ofthe Evidence

       Mr. Arbuckle argues that the evidence did not support the jury's verdicts that he

committed the two offenses or that he was "armed" with a firearm during the commission of

the burglary. Specifically, he argues that the evidence was insufficient to establish that the

.22 pistol was stolen or that either of the burglars was armed with a genuine firearm.

       Very well settled standards govern review of these claims. Evidence is sufficient

to support a conviction if it permits the trier-of-fact to find beyond a reasonable doubt

each element of the offense. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216,221-22,616 P.2d 628 (1980). In

reviewing such challenges, an appellate court will construe the evidence in the light most

favorable to the prosecution. Id. "All reasonable inferences from the evidence must be

drawn in favor of the State and interpreted most strongly against the defendant."

State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068 (1992). The reviewing court does

not reweigh evidence. Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717,

225 P.3d 266 (2009).

       Theft ofa Firearm

       As charged and instructed here, the State was required to prove that Mr. Arbuckle

wrongly obtained or exercised unauthorized control over a firearm with the intent to

deprive the owner of that firearm. Clerk's Papers (CP) at 157. Mr. Arbuckle's argument




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No. 3l759-5-II1
State v. Arbuckle


on this count is that no firearm was taken during the burglary. He denied that one was

taken and notes that the owner had last seen the weapon three weeks before the burglary.

       Properly viewed, the evidence supports the conviction. The victim testified that a

functional .22 caliber pistol was stored behind the counter at the lumber yard and was

missing after the burglary. The two burglars were seen on camera in the area where the gun

had been stored. Mr. Arbuckle admitted to taking a chisel that had been stored in the same

location as the gun, and other items from that same area also were reported stolen. On this

evidence, the jury could conclude that the .22 caliber pistol was taken with the intent to

deprive the owner of the gun. Accordingly, the evidence justified the jury's verdict.

       First Degree Burglary

       Mr. Arbuckle, consistent with his claim that the firearm was not stolen, argues that

the evidence did not support the burglary verdict due to lack of proof that a weapon was

possessed during the crime. First degree burglary, as charged here, required the State to

prove that the defendant entered or remained unlawfully in a building with the intent to

commit a crime against person or property therein while he or an accomplice was armed

with a deadly weapon. CP at 147. The State argued that either the .22 caliber pistol stolen

in the burglary or the gun seen in Mr. Spivey's possession on the video was the deadly

weapon with which the burglars were armed.

      Our decision on the firearm theft largely controls the result on this challenge. The

burglars were armed when the .22 caliber pistol was stolen and taken from the store, making

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State v. Arbuckle


it available to them during the crime and flight therefrom. In addition, the surveillance

evidence also showed that Spivey was armed throughout the course of the proceedings. The

jury could see the weapon and several witnesses identified it as a genuine firearm. Mr.

Arbuckle's statement to the detective likewise admitted that Spivey was armed with a gun.

       This evidence again supported the jury's determination.

       Special Verdict

       For similar reasons, Mr. Arbuckle argues that the evidence did not support the jury's

affirmative finding on the firearm special verdict. He contends that the State did not prove

that the .22 caliber pistol was stolen or that the gun in Spivey's possession was a genuine

firearm. To return the special verdict, the jury had to unanimously find beyond a reasonable

doubt that the defendant was armed with a firearm during the burglary and there was a

connection between the firearm, the defendant, and the crime. CP at 170.

       Once again, the theft of the firearm largely resolves the analysis of this claim. The

thief was armed when he took that gun, effectively arming both burglars. There certainly

was a connection between the defendant and the weapon and the burglary-the stolen gun

was one of the fruits of the burglary.

       Similarly, the evidence relating to Spivey's possession of a firearm also supported

the special verdict. The video showed him carrying a weapon and several witnesses

identified it as a genuine gun. Mr. Arbuckle's admission to the detective likewise stated

Spivey possessed a gun. Finally, we have no difficulty concluding that a burglar displaying

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No. 31759-5-II1
State v. Arbuckle


a fireann in the course of committing his crime establishes the necessary connection

between the crime, the gun, and the suspect.

       As with the charged counts, the evidence supported the jury's special verdict.

Sufficient evidence supported each of the three challenged verdicts.

                                       Nexus Instruction

       Additionally, Mr. Arbuckle contends that the court erred in failing to include the

burglary charge in its nexus instruction. The court expressly instructed the jury that it

needed to find a nexus between the defendant, the gun, and the burglary in order to return an

affinnative finding on the special verdict form. The court declined to include the burglary

charge in its nexus instruction. On the facts of this case, the failure to give the instruction

was, at worst, harmless error.   1


       Appellant bases his argument on State v. Brown, 162 Wn.2d 422, 173 P.3d 245 (2007).

There the court applied the nexus requirement to both the fireanns enhancement and the first

degree burglary charge at issue there. Id. at 431-35. Although Brown dealt with the

sufficiency of the evidence rather than a jury instruction, it is suggestive that the nexus

instruction should probably have extended to the burglary charge as well as the special

verdict. Division Two of this court, however, reached a contrary result in State v. Hernandez,


        I The defendant's proposed definitional instruction is not in the record of this case.
However, there is a fairly clear discussion of the instruction and the court indicated that it gave
all but the last sentence of the proposed defense instruction. Report of Proceedings at 426-28.
The State does not contest appellant's ability to present this argument.

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No. 31759-5-III
State v. Arbuckle


172 Wn. App. 537,543-44,290 P.3d 1052 (2012), in part relying on the discussion in

In re Personal Restraint Petition ofMartinez, 171 Wn.2d 354, 366-68, 256 P.3d 277 (2011).

       We need not weigh in on this debate because Mr. Arbuckle was not harmed by the

failure to extend his requested definitional instruction. Typically, courts are afforded broad

discretion in the wording ofjury instructions. Petersen v. State, 100 Wn.2d 421,440-41,

671 P.2d 230 (1983). Instructional error is presumed prejudicial, but can be shown to be

harmless. State v. Rice, 102 Wn.2d 120, 123,683 P.2d 199 (1984). A nonconstitutional

error such as this one2 is harmless if it did not, within reasonable probability, materially

affect the verdict. State v. Zwicker, 105 Wn.2d 228, 243, 713 P.2d 1101 (1986). Even

constitutional error, such as the omission of an element from a "to convict" instruction, is·

harmless error if it is clear beyond a reasonable doubt that the error did not contribute to the

verdict. Neder v. United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)

(citing Chapman v. California, 386 U.S. 18,87 S. Ct. 824, 17 L. Ed. 2d 705 (1967));

State v. Thomas, 150 Wn.2d 821, 840-41, 83 P.3d 970 (2004). Under either standard, the

alleged error was harmless.

       The jury found a connection between the defendant, the gun, and the crime when it

returned the properly instructed special verdict. The same connection necessarily existed

for the charged burglary offense as it did for the special verdict. Having found the one


2      Only instructional errors involving the burden of proof or the elements of a crime
constitute constitutional error. State v. O'Hara, 167 Wn.2d 91, 105,217 P.3d 756 (2009).

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No. 31759-5-III
State v. Arbuckle


connection, any error in failing to expressly require the jury to find the connection on the

burglary offense was harmless because the jury was considering the same offense and the

same facts on both the charged crime and the underlying enhancement.

       There was no prejudice from the alleged error. Accordingly, Mr. Arbuckle is not·

entitled to any relief.

       Affirmed.

       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:
                                                  ~lmsmO'J.




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