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.
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.
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.
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.
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.
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.
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.
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 ...