IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 71632-8-1
Respondent, DIVISION ONE
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WILLIAM ALDRICH SANCOMB, UNPUBLISHED ro
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Cox, J. - Defendants are entitled to a lesser included offense instruction
when "the evidence in the case supports an inference that [only] the lesser crime
was committed."1 In this case, the court did not abuse its discretion when it ruled
that a lesser included offense instruction was not warranted because no
affirmative evidence raised an inference that William Sancomb committed theft
rather than robbery. The prosecutor did not commit misconduct. Sancomb's
counsel was not ineffective for failing to object to the alleged misconduct. And
Sancomb fails to raise any claims in his statement of additional grounds that
warrant relief. We accept the State's concessions that two scrivener's errors in
the judgment and sentence should be corrected on remand. Accordingly, we
affirm Sancomb's conviction, but remand for correction of the two scrivener's
errors in the judgment and sentence.
1 State v. Henderson, No. 90154-6, 2015 WL 847427, at *4 (Wash. Feb. 26,
2015).
No. 71632-8-1/2
The State charged Sancomb with second degree robbery while armed
with a deadly weapon. The State alleged that Sancomb took candy and soda
from a hotel's convenience store without paying for them by the use or
threatened use of force.
At trial, the hotel desk clerk testified that she saw Sancomb take several
items from the hotel's small convenience store and begin to walk away. She
then followed Sancomb, asking him about payment. She testified that Sancomb
asked if she "want[ed] to die for candy" and showed her a knife. Sancomb then
left the hotel.
Officers apprehended Sancomb a short distance from the hotel. At trial,
one officer testified that Sancomb had stated that he had not robbed the hotel.
Sancomb did not deny taking the items without paying, but told the officer that it
had not been a robbery. The officer testified that Sancomb said he had not hurt
anyone, "just left the place," and "just walked out the door."
Sancomb asked the court to instruct the jury on the lesser included
offense of third degree theft. The court declined, determining that there was no
affirmative evidence that Sancomb had committed only theft.
The jury found that Sancomb guilty of second degree robbery but found
that he was not armed with a deadly weapon.
Sancomb appeals.
LESSER INCLUDED OFFENSE INSTRUCTION
Sancomb argues that he was entitled to an instruction on third degree
theft. We disagree.
No. 71632-8-1/3
Instructing juries on lesser included offenses "is crucial to the integrity of
our criminal justice system because when defendants are charged with only one
crime, juries must either convict them of that crime or let them go free."2 This
choice creates a risk that the jury will "resolve its doubts in favor of conviction."3
Consequently, courts "err on the side of instructing juries on lesser
included offenses."4 Courts should instruct the jury about a lesser included
offense if the jury could find that the defendant committed only the lesser
included offense.5
We analyze whether a defendant is entitled to a lesser included offense
instruction under the test announced in State v. Workman.6 Under this test, the
defendant is entitled to an instruction when "(1) each of the elements of the
lesser offense is a necessary element of the charged offense and (2) the
evidence in the case supports an inference that the lesser crime was
committed."7
The court "view[s] the evidence in the light most favorable to the party who
requested the instruction" when determining whether the evidence raised an
2 Henderson. 2015 WL 847427, at *1.
3 Id, (quoting Keeble v. United States. 412 U.S. 205, 212-13, 93 S. Ct. 1993, 36
L.Ed. 2d 844 (1973)).
5ld
6 90 Wn.2d 443, 584 P.2d 382 (1978).
7 Henderson. 2015 WL 847427 at *4.
No. 71632-8-1/4
inference.8 But it is not enough that the jury may disbelieve some evidence.
Instead, there must be affirmative evidence that the defendant committed only
the lesser included offense.9
We review a trial court's decision under Workman's second prong for
abuse of discretion.10
Sancomb first argues that we should review the trial court's decision de
novo. But our supreme court recently reaffirmed that we review this question—
whether evidence supports an inference that a lesser crime was committed—for
abuse of discretion.11 Thus, we reject this argument.
In this case, the parties agree that each element of third degree theft is a
necessary element of robbery. Thus, the question before us is whether the
evidence raised an inference that Sancomb committed only theft.
Robbery requires that property be taken "by the use or threatened use of
immediate force, violence, or fear of injury."12 Theft, on the other hand, lacks a
threat or force element.13 Thus, Sancomb was entitled to a lesser included
offense instruction if the evidence raised an inference that he took the items
without force or threat of force.
8id
9 State v. Fernandez-Medina. 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000).
10 Henderson, 2015 WL 847427 at *5.
11 Henderson. 2015 WL 847427 at *5.
12RCW9A.56.190.
13 RCW 9A.56.020.
No. 71632-8-1/5
Here, the court did not abuse its discretion by failing to instruct the jury on
the lesser included offense instruction. The court applied the proper legal
standard and concluded that the statements Sancomb made to the officer were
not affirmative evidence that Sancomb had committed only theft.
The State elicited the following testimony from the officer who transported
Sancomb to jail:
[Prosecutor:] Did [Sancomb] tell you that he didn't think this
incident should be a robbery because he did not hurt anyone?
[Officer:] He did, yes.
[Prosecutor:] Did he also tell you that he just left the place
and he didn't push [the clerk]?
[Officer:] Yes.
[Prosecutor:] Did he also tell you that he just walked out the
door?
[Officer:] Yes.™
Sancomb argues that these statements were affirmative evidence that he
committed only theft. He is mistaken.
The court correctly identified that the determinative question was whether
there was affirmative evidence that Sancomb committed only the lesser included
offense. The court considered these statements under the relevant standard and
determined that this evidence did not raise an inference that Sancomb committed
only the lesser crime. It stated:
I don't believe that Mr.—that simply Mr. Sancomb's statement to the
officer riding in the car constitutes affirmative proof, in the words of
14 Report of Proceedings (October 30, 2013) at 75.
No. 71632-8-1/6
[the relevant case law] that, you know, are sufficient to create a
basis for giving the lesser included [offense instruction]. Basically
what you are asking the jury to do is simply to disbelieve some of
[the clerk's] testimony. Now, they can certainly do that if there is
evidence to the contrary and there is a choice for them to make.
But at this point I wouldn't give the lesser included [instruction].
Obviously you can confer with Mr. Sancomb on whether he wants
to testify. And obviously, if he testifies and provides a basis for a
lesser included, then I'd give it.[15)
Looking at Sancomb's three statements in context, the court did not abuse
its discretion. Sancomb denied using force—he stated that he did not hurt the
clerk, "just walked out," and left without pushing the clerk.16 But his statements
that he took the items without force are not affirmative evidence that he took the
items without threat of force.17 Sancomb did not deny showing the hotel clerk a
knife or asking if she wanted to die. Thus, the statements were not affirmative
evidence that Sancomb had committed only theft.
In sum, the trial court did not abuse its discretion when it declined to
instruct the jury on third degree theft.
Sancomb argues that "a reasonable juror could have concluded Sancomb
merely stole food, without any force or violence, thereby committing only third-
degree theft."18 But this argument fails to acknowledge that Sancomb could have
committed robbery without force or violence, provided that he made a threat of
force or violence. Accordingly, this argument is not persuasive.
15 Report of Proceedings (October 31, 2013) at 167.
16 Report of Proceedings (October 30, 2013) at 75.
17 (Emphasis added.)
18 Brief of Appellant at 7.
No. 71632-8-1/7
Finally, Sancomb argues that the court applied the wrong legal standard.
Sancomb points to the court's statement that it might give a lesser included
offense instruction if Sancomb testified. Sancomb argues that this statement
shows that the court applied an incorrect standard. He is mistaken.
The court properly considered the evidence that Sancomb claimed
supported an inference that he committed only theft. The court then found that
this evidence was insufficient to raise the necessary inference. When the court
stated that it might give the instruction if Sancomb testified, it was merely stating
that his testimony might produce such evidence. The court did not state that
defendants must testify to receive lesser included offense instructions. Thus, the
court did not apply an incorrect legal standard.
PROSECUTORIAL MISCONDUCT
Sancomb argues that the prosecutor committed misconduct. Specifically,
he argues that the prosecutor inappropriately elicited irrelevant facts from a
witness and appealed to the emotions of the jury. We disagree.
To prevail on a claim of prosecutorial misconduct, the defense must
establish that the prosecutor's conduct was both improper and prejudicial.19
If a defendant fails to object at trial, we grant relief only ifthe remark was
"so flagrant and ill-intentioned that an instruction could not have cured the
resulting prejudice."20 "Under this heightened standard, the defendant must
show that (1) 'no curative instruction would have obviated any prejudicial effect
19 State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012).
20 Id. at 760-61.
No. 71632-8-1/8
on the jury' and (2) the misconduct resulted in prejudice that 'had a substantial
likelihood of affecting the jury verdict.'"21
Additionally, when the defendant fails to object, it "'strongly suggests to a
court that the argument or event in question did not appear critically prejudicial to
an appellant in the context of the trial.'"22
We review alleged prosecutorial misconduct in context. This includes "the
context of the total argument, the issues in the case, the evidence [addressed in
the argument], and the instructions given to the jury.'"23
A prosecutor may not "deliberately appeal[] to the jury's passion and
prejudice and encourage[] the jury to base the verdict on the improper argument
'rather than properly admitted evidence.'"24 But not all closing argument that may
elicit an emotional response is improper. In State v. Berube. the prosecutor
argued that the defendant had fled to his mother's house to hide from the
police.25 He stated:
21 Id at 761 (quoting State v. Thoraerson. 172 Wn.2d 438, 455, 258 P.3d 43
(2011)).
22 State v. McKenzie. 157 Wn.2d 44, 53 n.2, 134 P.3d 221 (2006) (quoting State
v. Swan. 114 Wn.2d 613, 661, 790 P.2d 610 (1990)).
23 Emery, 174 Wn.2d at 764 n.14.
24 In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 711, 286 P.3d 673 (2012)
(quoting State v. Furman, 122Wn.2d 440, 468-69, 858 P.2d 1092 (1993)).
25 171 Wn. App. 103, 119, 286 P.3d 402 (2012).
8
No. 71632-8-1/9
How sad is it that a mother and a son would go for 13 years
without seeing each other? And how happy his mother must have
been when he came to see her. And how disappointed must she
have been when she learned that he came because he was
running from the law?[26]
This court held that this argument did not warrant reversal because
"Berube's mother testified she loved her son, and it was not an unreasonable
inference that she would be saddened and disappointed by the circumstances."
Additionally, the prosecutor did not rely on evidence outside the record or use
inflammatory language.27 The court also noted that "[t]he statements, even if
improper, were not flagrant and ill-intentioned, were easily curable by instruction,
and do not warrant notice for the first time on appeal."28
Sancomb first argues that the prosecutor committed misconduct by
eliciting irrelevant testimony from the hotel clerk. But most of the allegedly
irrelevant information was relevant, providing context for her testimony. And
Sancomb failed to object to any of this evidence.
During direct examination, the prosecutor asked the hotel clerk about her
background. This included the fact that she had emigrated from Uganda and
worked multiple jobs. The prosecutor also asked the clerk about her two sons.
Sancomb did not object either to any of these questions or the clerk's answers.
We note that Sancomb himself asked the clerk about the other jobs that
she worked, and later argued that she was tired from her other jobs, which
26 id
27 Id.
28
Id.
No. 71632-8-1/10
affected her perception of events. And the fact that the clerk emigrated from
Uganda was also relevant, because her ability to understand Sancomb's
statements was important. In fact, Sancomb extensively cross-examined the
clerk about her understanding of his statements.
To the extent other evidence may have not been directly relevant,
Sancomb nevertheless failed to object. This failure suggests that such evidence
did not appear prejudicial at trial.29 Additionally, eliciting this testimony was not
so flagrant and ill-intentioned that the court could not have cured the prejudice
with an instruction.
Sancomb next argues that the prosecutor's closing argument improperly
used the clerk's background to appeal to the jury's sympathies.
The prosecutor's closing argument did emphasize the hotel clerk and her
background. He began his argument as follows:
[The hotel clerk] is the mother of two children. She works
two jobs in order to support her family. She has her one kid who is
in high school and her other kid was in college. She came all the
way from Uganda so she could provide—to the US so she could
provide her family with a better life. But on June 6, 2013, all that
[she] has been working hard for, all the struggles that she has gone
through were put at risk. They were put at risk the day that Mr.
Sancomb took this knife and threatened her life.[30]
This argument was not an appeal to the passions and prejudice of the
jury. Instead, this case resembles Berube. The clerk's testimony supported the
prosecutor's argument. Thus, just as in Berube, the prosecutor did not either rely
on evidence outside of the record or use inflammatory language.
29 McKenzie. 157 Wn.2d at 53 n.2 (quoting Swan, 114 Wn.2d at 661).
30 Report of Proceedings (October 31, 2013) at 190.
10
No. 71632-8-1/11
Moreover, as in Berube, Sancomb's counsel failed to object. This
suggests that the prosecutor's argument did not appear prejudicial at trial.31 And
even assuming that the prosecutor's statements were improper, Sancomb fails to
show that they were so flagrant and ill-intentioned that an instruction could not
have cured any prejudice.
Sancomb also argues that the prosecutor violated the "golden rule" by
asking "jurors to put themselves in [the clerk's] shoes."32 Prosecutors may not
appeal to the passions of the jury, but it is unclear whether "golden rule"
arguments are prohibited in criminal cases. Our supreme court has suggested
that this prohibition may not apply to criminal cases.33
Regardless, the prosecutor's argument was permissible. Some of the
"golden rule" content was argument about the hotel clerk's memory. Sancomb
had argued that the clerk was mistaken, and Sancomb had not threatened her.
In response, the prosecutor argued that the clerk was unlikely to misremember a
threat. He stated:
I don't know if you've ever been threatened, but you can all
imagine that that threat is something that sticks with you; it's
something that stays with you. That threat is a violation of your
dignity as a person. And there was no doubt in [the clerk's] mind
that a threat was made to herJ34]
This was not improper.
31 McKenzie, 157 Wn.2d at 53 n.2 (quoting Swan, 114 Wn.2d at 661).
32 Brief of Appellant at 11.
33 State v. Borboa. 157 Wn.2d 108, 124 n.5, 135 P.3d 469 (2006).
34 Report of Proceedings (October 31, 2013) at 230.
11
No. 71632-8-1/12
Even assuming that part of the State's alleged "golden rule" argument was
improper, Sancomb's counsel failed to object, which suggests that the argument
did not seem prejudicial at trial. Additionally, Sancomb fails to show that this
argument was so flagrant and ill-intentioned that it could not be cured by an
instruction.
Finally, Sancomb argues that the prosecutor "urge[d] the jury to convict
based on what might happen in other cases."35 It appears that the prosecutor
began to make such an improper argument. He stated, "[l]f you believe the
defense's theory of the case, it makes it extremely difficult for all those cases
where a person is alone in their attack and there's—."36 But at that point,
defense counsel objected, and the court sustained the objection. The prosecutor
then moved on to a different argument.
Because Sancomb's objection was sustained before the prosecutor
finished his argument, Sancomb cannot show that this argument was prejudicial.
Additionally, Sancomb's counsel did not request a curative instruction,
suggesting that one was not necessary.
INEFFECTIVE ASSISTANCE OF COUNSEL
Sancomb argues that his counsel was constitutionally ineffective by failing
to object. Specifically, Sancomb argues that his counsel should have objected to
the prosecutor's alleged misconduct, which we described above. We disagree.
35 Brief of Appellant at 13.
36 Report of Proceedings (October 31, 2013) at 230-31.
12
No. 71632-8-1/13
Both the federal and state constitutions provide the right to counsel.37 The
defendant bears the burden of proving ineffective assistance of counsel.38 "[T]he
defendant must show that (1) counsel's representation was deficient, that is, it fell
below an objective standard of reasonableness and (2) there was prejudice,
measured as a reasonable probability that the result of the proceeding would
have been different."39
Washington courts are "highly deferential to counsel's performance."40
We presume that counsel provided effective representation.41 We give particular
deference to "strategic decisions".42
Lawyers often fail object during closing arguments, "'absent egregious
misstatements.'"43 Failing to object during closing argument is generally "within
the wide range of permissible professional legal conduct."44
Here, Sancomb fails to show that his counsel performed in a deficient
manner. Counsel's performance was not deficient in failing to object to the
allegedly irrelevant questions in the clerk's direct examination. As explained
37 U.S. Const, amend. VI; Const, art. I, § 22.
38 State v. Humphries, 181 Wn.2d 708, 719, 336 P.3d 1121 (2014).
39 id at 719-20.
40 In re Pers. Restraint of Gomez. 180 Wn.2d 337, 348, 325 P.3d 142 (2014).
41 Id
42 ]d at 356.
43 In re Pers. Restraint of Davis, 152 Wn.2d 647, 717, 101 P.3d 1 (2004) (quoting
United States v. Necoechea. 986 F.2d 1273, 1281 (9th Cir. 1993)).
44
Id.
13
No. 71632-8-1/14
earlier, these questions were generally relevant. And Sancomb's counsel used
some of this information in his cross-examination and argument.
Sancomb's counsel was also not ineffective for failing to object to the
State's allegedly improper closing argument. Sancomb's counsel chose to
respond to the State's allegedly improper arguments rather than to object. In
closing argument, he urged the jury to focus on the relevant issues—not the hotel
clerk's emotions:
[The State] want[s] you to draw on your emotions. Right? It's clear.
[The prosecutor is] holding a knife in front of you, he's talking about
[the hotel clerk] being a mother working all these jobs, being an
immigrant, coming here to America for a better life and supporting
her kids. And he goes on. Even drawing on your emotions to say,
what would your response be if someone was wielding a knife on
you. Right? Trying to draw on your emotions.
And I just want to caution you—right?—Jury Instruction
Number One, it states in there that you must not let your emotions
overcome your rational thought process. You must reach your
decision based on the facts proved to you and on the law given to
you, not on sympathy, prejudice, or personal preference. To
assure that all parties receive a fair trial, you must act impartially
and with an earnest desire to reach a proper verdict.[45]
Thus, Sancomb's counsel appropriately addressed the State's arguments.
His decision to do so in rebuttal, rather than with an objection, was tactical.
Thus, his performance was not deficient.
SCRIVENER'S ERRORS
Sancomb argues that remand is necessary to correct scrivener's errors in
his judgment and sentence. Specifically, a checked box on the judgment and
sentence indicates that the jury found a deadly weapon enhancement, although it
45 Report of Proceedings (October 31, 2013) at 220-21.
14
No. 71632-8-1/15
did not. And Appendix B, which lists Sancomb's prior criminal history, lists a theft
by taking conviction from Utah, when it should list a theft by taking conviction
from Georgia.
The State properly concedes these are scrivener's errors. We accept this
concession and conclude that remand for correction of these errors is
appropriate to avoid potential confusion.46
STATEMENT OF ADDITIONAL GROUNDS
Sancomb also raises several issues in his statement of additional
grounds. We cannot review these claims on the record before us.
Sancomb's first two arguments relate to an earlier mistrial in his case. But
the record on appeal does not include information about this mistrial.
Sancomb's remaining claims are about disagreements he had with his
counsel. But the record before us does not contain information about these
disputes. On direct appeal, we "may consider only facts within the record" when
reviewing a claim of ineffective assistance of counsel.47 Sancomb "must file a
personal restraint petition if [he] intends to rely on evidence outside of the trial
record."48
46 In re Pers. Restraint of Mayer, 128 Wn. App. 694, 701, 117 P.3d 353 (2005).
47 State v. Grier. 171 Wn.2d 17, 29, 246 P.3d 1260 (2011).
48 id
15
No. 71632-8-1/16
We affirm the conviction, but remand for correction of the two scrivener's
errors in the judgment and sentence.
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WE CONCUR:
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16