case involves review of a trial court "to convict"
attempted first degree robbery instruction. Petitioner Edward
Nelson contends that the State had to prove that the employee
he was attempting to rob had ownership, representative, or
possessory interest in the property. For this proposition he
relies on the holding in State v.
Richie and argues that this "essential
element" of representative or possessory interest should
have been included in the "to convict" instruction.
The Court of Appeals here held that "the trial
court's ["to convict"] instruction for
attempted first degree robbery lacked an essential element
and unconstitutionally relieved the State of its burden of
proving each element beyond a reasonable doubt, " but
concluded that this was harmless error. State v.
Nelson, No. 34032-5-III, slip op. at 2 (Wash.Ct.App. May
2, 2017) (unpublished),
We hold that the State has to prove only two essential
elements in a prosecution of criminal attempt: (1) intent to
commit a specific crime, and (2) any act which is a
substantial step toward the commission of that crime.
Although we affirm the Court of Appeals in result, we reject
as unnecessary Richie's holding that in order to
prove that an employee acted in his or her representative
capacity, it must be established that he or she had care,
custody, control, or management of the property. We further
hold that the "to convict" instruction in this case
was constitutionally adequate.
and Procedural History
following is a summary of the facts. On August 15, 2014,
Myung Meinhold, a pharmacy technician employed by Rite Aid,
was working in the store's pharmacy department. She was
helping customers at the pharmacy checkout counter when she
first noticed Nelson. Nelson kept going to the back of the
line every time a new customer would come up behind him.
Eventually, Nelson came up to the checkout counter with a
roll of paper towels. He also had in his hand a note, which
he showed to Meinhold. Meinhold saw the note, which contained
a demand for oxycodone, but could not read it. Nelson told
Meinhold he needed oxycodone and pointed to a gun he was
holding in his other hand. The pistol was not pointed
directly at Meinhold, but she saw the gun and heard Nelson
say, "[Y]ou're going to get this for me or I'm
going to shoot you in ten seconds." 3 Verbatim Report of
Proceedings (VRP) (Jan. 6, 2016) at 52.
told Nelson that she did not have access to the oxycodone and
would have to get the pharmacist, Thomas Newcomer. Meinhold
testified that she frantically attempted to explain to the
pharmacist that Nelson had a gun and was demanding oxycodone.
Newcomer testified that he was on the phone when Meinhold
approached him and that he initially thought Nelson had a
fake prescription. The pharmacist did not see Nelson's
gun and told Nelson he did not have oxycodone in stock. When
Nelson next demanded money, the pharmacist finally realized
Nelson was trying to rob the store. The pharmacist testified
that he had no cash on his person and that he told Nelson he
was going to call the store manager to "get whatever
he's asking for." 3 VRP (Jan. 6, 2016) at 79. Nelson
quickly left the store and was later apprehended by police.
State charged Nelson with attempted first degree robbery. The
State alleged that "with intent to commit the crime of
First Degree Robbery . . . [Nelson] took a substantial step
towards unlawfully taking the property of another, from the
person or in the presence of. . . Meinhold and/or . . .
Newcomer." Clerk's Papers (CP) at 31. The case was
tried to a jury. At the close of the State's case, Nelson
moved to dismiss the attempted robbery charge as to the
pharmacist on the basis that "[t]here was no deadly
force ever presented to Mr. Newcomer." 5 VRP (Jan. 11,
2016) at 401. The State argued that because Nelson was
charged with attempted first degree robbery and not the
completed crime, "[a]ll that's required is that
[Nelson] intended to commit the crime of first degree robbery
and that he took a substantial step." 5 VRP (Jan. 11,
2016) at 401. Nelson also moved to dismiss the charge as to
Meinhold, arguing that Meinhold "had no access to the
property taken" and that "the critical issue is the
relationship of the property to the person that was
threatened, " citing to Richie from Division
Two and State v. Lathamfrom Division One, neither
one of which deals with the crime of attempted robbery. 5 VRP
(Jan. 11, 2016) at 402. The trial court reasoned that
"it's an issue of theft, " and that "the
[S]tate doesn't have to prove who owned the property,
just that it was a theft that was intended." 5 VRP (Jan.
11, 2016) at 402, 403.
trial judge nevertheless "excise[d]" Newcomer from
the final jury instructions on the attempted robbery charge
for insufficient evidence. 5 VRP (Jan. 11, 2016) at 406. The
trial judge noted, however, that Meinhold's "status
as an employee of the owner [was] sufficient to satisfy the
rule of [Richie]." 5 VRP (Jan. 11, 2016) at
405. The trial court stated that it intended to instruct the
jury "in the elements instruction on attempted first
degree robbery, that the [S]tate has to prove that Ms.
Meinhold was an employee of the owner of the property"
with regard to the ownership, or representative or possessory
interest element. 5 VRP (Jan. 11, 2016) at 343.
trial court rejected Nelson's proposed instruction that
relied on the holding of Richie for the definition
of first degree robbery. The language Nelson proposed would
have instructed the jury that robbery is a taking of personal
property from "a person who had ownership,
representative or possessory interest in the property."
CP at 42. His proposed "to convict" instruction
would have required the State to prove that Meinhold had
ownership, representative or possessory interest in the
property, without alluding to her employee or agent status.
Defense attorney Aaron Dalan in colloquy with the court
I'm intending to argue-whatever instructions the court
decides to give, employee or whatever, the [S]tate still has
to prove possession. It's one of the elements. I think
the jury could-maybe they won't. Maybe they'll say,
no; she had possession. ... I think the jury could conclude
there's not a sufficient possessory interest on the part
of Ms. Meinhold to complete the greater crime or to
justify saying it's an attempt.
6 VRP (Jan. 12, 2016) at 421 (emphasis added). Nelson
objected to instruction 7, which, in defining the crime of
robbery, also instructed the jury that "[a] person with
a representative interest includes an agent, employee or
other representative of the owner of the property." CP
at 66; 6 VRP (Jan. 12, 2016) at 415. He also objected to the
"to convict" instruction requiring the State to
prove only that Meinhold "was an employee of the owner
of the property, " as to the ownership element of the
specific underlying crime charged. CP at 67.
resulting "to convict" jury instruction 8 at issue
was given as follows:
To convict the defendant of the crime of Attempted First
Degree Robbery in Count 1, each of the following elements of
the crime must be proved beyond a reasonable doubt:
(1) That on or about August 15, 2014, the defendant did an
act that was a substantial step towards unlawfully taking
personal property from the person or in the presence of
another, Myung B. Meinhold;
(2) That Myung B. Meinhold was an employee of the owner of
(3) That the defendant intended to commit theft of the
(4) That the attempt to take was against the person's
will by the defendant's use or threatened use of
immediate force, violence, or fear of injury to that person;
(5) 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 or to prevent knowledge of the
(6) (a) That in the commission of these acts or in immediate
flight therefrom the defendant was armed with a deadly
(b) That in the commission of these acts or in the immediate
flight therefrom the defendant displayed what appeared ...