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State v. Todd

Court of Appeals of Washington, Division 3

October 17, 2017

STATE OF WASHINGTON, Respondent,
v.
SKYLERK. TODD, Appellant.

          PUBLISHED OPINION

          LAWRENCE-BERREY, A.U.J.

         Lawrence-Berrey, A.C.J. - Skyler K. Todd appeals his second degree robbery conviction. He argues the to-convict instruction was deficient for excluding an essential element of robbery, and the trial court violated his constitutional right to a unanimous jury verdict by not giving a unanimity instruction. We disagree and affirm.

         FACTS

         Factual background

         On September 6, 2015, Mr. Todd entered a Home Depot store located in Spokane, Washington. Two Home Depot loss prevention employees, Nathaniel Terrell and Brent Doan, were present and on duty at the time. The two employees were dressed in plain clothes to blend in with regular shoppers, but each wore an identification badge on their hip to display when making a stop. Mr. Todd immediately attracted the attention of the employees because he entered the store at a fast pace, was wearing noticeably baggy clothing, and walked immediately to the high theft area of the store. Mr. Terrell and Mr. Doan began watching Mr. Todd closely.

         Mr. Todd stopped and grabbed an expensive Leatherman brand knife off a shelf. He tore open the packaging and placed the knife into one of his pockets. Mr. Todd immediately began to walk back toward the store entrance and passed the self-checkout area of the store without stopping at any of the self-checkout stands. Mr. Doan and Mr. Terrell positioned themselves to intercept him at the doors.

         As Mr. Todd reached the doors Mr. Doan stepped in front of him and said, '"Excuse me.'" Report of Proceedings (RP) at 157. Mr. Todd turned around and saw Mr. Terrell, who was holding up his identification badge. Mr. Todd immediately began running to escape the two employees.

         Mr. Todd ran into Mr. Doan and pushed past him. The employees stopped Mr. Todd as he was attempting to jump on a pallet of concrete. Mr. Todd grabbed Mr. Doan's shirt and ripped it, knocked Mr. Doan's glasses off, and scratched Mr. Doan's hand. Another customer, Jeremy Proctor, approached at this time and helped the two employees subdue Mr. Todd. At an undetermined point-but after the men began to subdue Mr.

         Todd-the Leatherman fell out of Mr. Todd's pocket onto the ground. Throughout the scuffle, the two employees identified themselves to Mr. Proctor and Mr. Todd as asset protection employees for Home Depot. The employees recovered the Leatherman, detained Mr. Todd, and called law enforcement.

         Procedural background

         The State charged Mr. Todd with one count of second degree robbery. Mr. Todd did not deny attempting to steal the Leatherman tool. Rather, he contended he did not use force to obtain, retain, or overcome resistance to the taking of the item; but instead used force to escape two assailants, whom he claimed he did not know were Home Depot employees.

         The trial court prepared jury instructions based on instructions proposed by the parties. The court's definitional instruction for second degree robbery stated:

A person commits the crime of robbery in the second degree 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. The person from whom the property is taken must have an ownership, representative, or possessory interest in the property taken.
A threat to use immediate force or violence may be either expressed or implied. 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 ...

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