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State v. Nelson

Supreme Court of Washington, En Banc

June 14, 2018

STATE OF WASHINGTON, Respondent,
v.
EDWARD LEON NELSON, Petitioner.

          JOHNSON, J.

         This 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[1] 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 May 2, 2017) (unpublished), http://www.courts.wa.gov/opinions/pdf/340325_ord.pdf. 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.

         Facts and Procedural History

         The 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.

         Meinhold 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.

         The 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. Latham[2]from 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.

         The 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.

         The 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 stated:

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.

         The 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 the property;
(3) That the defendant intended to commit theft of the property;
(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 taking;
(6) (a) That in the commission of these acts or in immediate flight therefrom the defendant was armed with a deadly weapon; or
(b) That in the commission of these acts or in the immediate flight therefrom the defendant displayed what appeared ...

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