                                                                             FILED 

                                                                           JUNE 2,2015 

                                                                  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. 31857-5-111
                                               )
                     Respondent,               )
                                               )         UNPUBLISHED OPINION
             v.                                )
                                               )
THOMAS L. PARKER,                              )
                                               )
                     Appellant.                )

       BROWN, A.C.J. -     Thomas L. Parker appeals his 2013 Franklin County second

degree robbery conviction. He contends: (1) the information omitted an essential element

of the offense of second degree robbery, that he used or threatened to use force to retain

the stolen items, (2) the trial court should have instructed the jury on the lesser included

offense of third degree theft, and (3) the trial court erred by including two prior Arkansas

convictions in his offender score. In his pro se statement of additional grounds for

review, he asserts that he had ineffective assistance of trial and appellate counsel. We

affrrm his judgment and sentence.
No. 31857-5-111
State v. Parker

                                          FACTS

       The charge here arose in November 2012, when a Rite Aid employee-Zachariah

Briggs~saw    Mr. Parker take two bottles of tequila off the store shelf and secrete them in

his pants. After Mr. Parker left the store without paying (setting off the alarm), Mr.

Briggs approached, and Mr. Parker immediately lowered his head and rammed his

shoulder into him. Another Rite Aid employee witnessed Mr. Briggs struggling to subdue

Mr. Parker and went to help. At this point, Mr. Parker threw the bottles of tequila on the

ground and hit Mr. Briggs in the face. The Rite Aid employees eventually subdued Mr.

Parker and callyd police.

       The State charged Mr. Parker with one count of second degree robbery, alleging:

               That the said Thomas L. Parker in the County of Franklin, State of
       Washington, on or about November 27,2012, then and there, with intent to
       deprive the owner of property, did unlawfully take such personal property,
       to wit: two bottles of tequila which belonged to a person other than the
       accused, in the presence of Zak N. Briggs, against such person's will by use
       or threatened use of immediate force, violence, or fear of injury to the
       person.

Clerk's Papers (CP) at 132. The jury found him guilty as charged.

       At sentencing, the State recommended an offender score of six, including three

prior Arkansas convictions of residential burglary, theft of property, and theft by

receiving, two Washington convictions of residential burglary and second degree

burglary, and one additional point for committing the current crime while on community

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No. 31857-5-III
State v. Parker

custody (RCW 9.94A.525). The standard range with an offender score of6 is 33 to 43

months. RCW 9.94A.510; RCW 9.94A.515; RCW 9A.56.210. Finding that "[r]ecent

changes in the theft statute result[] in an offender score that does not reflect the

legislature's intent," the trial court imposed an exceptional sentence downward of29

months. CP at 23.

                             A. Sufficiency of the Information

       Mr. Parker first contends the information was deficient because it did not include a

necessary element-use of force to retain the property--or specific facts alleging that he

used force to retain the property. He claims that the failure to describe the specific

conduct constituting the crime was legally and factually deficient.

       A charging document must contain all the essential elements of a crime to inform a

defendant of the charge and to allow preparation for a defense. State v. KWona-

Garramone, 166 Wn. App. 16,22,267 P.3d 426 (2011), review denied, 174 Wn.2d 1014

(2012). To determine the essential elements ofa charged crime, we look to the statutory

language and construe it to avoid an absurd result. Id. (citing State v. Tinker, 155 Wn.2d

219,221, 118 P.3d 885 (2005); and State v. Engel, 166 Wn.2d 572,578,210 P.3d 1007

(2009)).

       The standard of review for a challenge of the criminal information depends on the

timing of the challenge. KWona-Garramone, 166 Wn. App. at 23. If the defendant

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No. 31857-5-III
State v. Parker

challenged the sufficiency of the infonnation before or at trial,. we construe the

infonnation strictly. State v. Vangerpen, 125 Wn.2d 782, 788, 888 P.2d 1177 (1995). "If,

however, a defendant moves to dismiss an allegedly insufficient charging document after

a point when the State can no longer amend the infonnation, such as when the State has

rested its case,'~ the infonnation is construed liberally in favor of validity. Kiliona-

Garramone, 166 Wn. App. at 23.

       Because Mr. Parker did not challenge the sufficiency of the infonnation until after

the State rested its case, we liberally construe the language of the charging document in

favor of validity. Id. Under this standard, we detennine whether the necessary facts

appear in any fonn or fair construction of the language in the charging document, and if

so, whether Mr. Parker can show that he was nonetheless actually prejudiced by a lack of

notice. State v. Kjorsvik, 117 Wn.2d 93, 105-06, 812 P .2d 86 (1991); Kiliona-

Garramone, 166 Wn. App. at 25.

       Here, the infonnation alleged Mr. Parker "with intent to deprive the owner of

property, did unlawfully take such personal property, to wit: two bottles of tequila" in the

presence ofMr: Briggs, and against such person's will by use or threatened use of force.

CP at 132. The essential elements of robbery are defined in RCW 9A.56.l90, partly

stating 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

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No.3l857-5-III
State v. Parker

threatened use of immediate force." This force or fear "must be used to obtain or retain

possession of the property, or to prevent or overcome resistance to the taking." RCW

9A.56.l90. The language of the information closely tracks the statutory language and

specifically names the personal property taken (two bottles of tequila), as well as the

person who was present at the taking and against whom force was used to take and retain

the tequila (Mr. Briggs). Consequently, the necessary facts are included and gave Mr.

Parker ample notice of the charge against him.

                               B. Lesser Included Offense

       Mr. Parker next contends the trial court erred in denying his motion for a jury

instruction on third degree theft as a lesser included offense of second degree robbery. A

defendant is entitled to a lesser included offense instruction when: (1) each element of the

lesser offense is a necessary element of the charged offense, and (2) the evidence supports

an inference that the lesser offense was actually committed. State v. Henderson, _

Wn.2d _,344 P.3d 1207, 1211 (2015) (citing State v. Workman, 90 Wn.2d 443,447-48,

584 P.2d 382 (1978)).

      Both Mr. Parker and the State agree the elements of third degree theft-wrongfully

obtaining or exerting unauthorized control over the property of another with intent to

deprive-are necessary elements of second degree robbery. RCW 9A.56.020, .050, .190,

.210. The issue then is whether the evidence supports an inference that only third degree

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No. 31857-5-III
State v. Parker

theft was committed. We review the trial court's decision for abuse of discretion.

Henderson, 344 PJd at 1212.

       Here, the evidence does not support an inference that only third degree theft

occurred. Robbery involves the unlawful taking or retaining of property with the use of

force or fear. State v. Handburgh, 119 Wn.2d 284, 293, 830 P .2d 641 (1992). Mr. Parker

admitted a struggle occurred here, testifying that the Rite Aid employees grabbed him for

no reason. Accordingly, his own testimony established he used force, and does not

support an inference that he committed solely theft.

                          C. Ineffective Assistance of Counsel

       The evidence of force shows Mr. Parker's claim of ineffective assistance of

counsel lacks merit. To prove ineffective assistance of counsel, an appellant must show

his attorney's performance fell below an objective standard of reasonableness and this

deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668,687-88, 104

S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Mr. Parker contends his counsel should have

moved at trial to dismiss the charge (erroneously referred to as "2nd degree assault"

(statement of additional grounds for review at 1)), and should have sought dismissal on

appeal on the basis that the evidence does not show that he used or threatened the use of

force when taking the tequila. Because these challenges would not have been successful




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No. 31857-5-III
State v. Parker

at trial or on appeal, he cannot show prejudice to support a claim of ineffective assistance

of counsel.

                                    D. Offender Score

       Mr. Parker assigns error to the trial court's inclusion of two prior Arkansas

convictions in his offender score of 6. He contends the 2005 Arkansas convictions of

residential burglary and theft of property are not legally comparable to Washington

offenses and should have been excluded under RCW 9.94A.525(3). The State asserts this

issue is moot because Mr. Parker has completed his confinement in Washington and is

currently serving a sentence in an Arkansas prison. We agree.

       An issue is moot if this court can no longer provide the requested relief. State v.

Ross, 152 Wn.2d 220,228,95 P.3d 1225 (2004). We may still decide an issue, however,

if it involves matters of continuing and substantial public interest. State v. Hunley, 175

Wn.2d 901,907,287 P.3d 584 (2012).

       The remedy for an incorrect offender score is to remand to the superior court for

resentencing with the correct score. State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192

(2003). This resentencing may result in less confinement. See Ross, 152 Wn.2d at 228.

Even if Mr. Parker returns to Washington to serve his term of community custody, and

even ifhe receives a reduced sentence due to a remand for correction of the offender

score, any excess time he served in prison cannot be credited toward his sentence of

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No. 31857-5-111
State v. Parker

community custody. See State v. Jones, 172 Wn.2d 236,242-43,257 PJd 616 (2011).

And he does not show that this issue involves matters of continuing and substantial public

interest justifying a decision. Thus, because this court can no longer provide him

effective relief, we find that the challenge of his offender score is moot.

       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.




                                           Brown, A.C.J.
WE CONCUR:




 ~.                    

Feari~ 





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