State of Washington v. Edward Leon Nelson

FILED
MAY 2, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE

STATE OF WASHINGTON, ) No. 34032-5-111
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
EDWARD LEON NELSON, )
)
Appellant. )

LAWRENCE-BERREY, J. - A jury found Edward Leon Nelson guilty of attempted

first degree robbery with a firearm enhancement and also found him guilty of attempting

to elude a pursuing police vehicle. In a bifurcated trial, the jury found Mr. Nelson not

guilty of unlawful possession of a firearm in the first degree.

Mr. Nelson appeals his conviction for attempted first degree robbery. He argues:

( 1) the to-convict instruction omitted the essential nonstatutory element that the victim

have a possessory, ownership or representative interest in the property, (2) sufficient

evidence does not support his conviction for attempted first degree robbery, (3) the

firearm enhancement should be vacated for lack of sufficient evidence and inconsistent

verdicts, and (4) the trial court erred in refusing to instruct the jury on the lesser included
No. 34032-5-III
State v. Nelson

offense of unlawful display of a firearm. He also raises three separate arguments in his

statement of additional grounds for review (SAG).

We conclude 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 we also conclude the error was

harmless beyond a reasonable doubt. We otherwise reject Mr. Nelson's arguments and

affirm his convictions.

FACTS
Background facts

Myung Meinhold was on duty at the pharmacy counter at a Rite Aid store in

Yakima, Washington, on August 15, 2014. She noticed Mr. Nelson, who continually

would go to the back of the line as customers came and went. Eventually, he came back

with a roll of paper towels and handed Ms. Meinhold a note asking for oxycodone. He

then lowered his chin and looked down at his hand. Ms. Meinhold followed his gaze and

noticed he was holding a black pistol. She testified the pistol was not pointed at her, but

was pointed "towards the roof." Report of Proceedings (RP) at 51. He said, "you're

going to get this for me or I'm going to shoot you in ten seconds." RP at 52.

2
No. 34032-5-111
State v. Nelson

Ms. Meinhold told Mr. Nelson she did not have access to the oxycodone and had

to get the pharmacist. Ms. Meinhold had the pharmacist, Thomas Newcomer, quickly

come to the counter.

Mr. Newcomer glanced at Mr. Nelson's note, and Mr. Nelson asked him for oxy-

30s, meaning 30 milligram oxycodone pills. Mr. Newcomer believed the note was some

sort of fake prescription. He did not see Mr. Nelson's gun and was not aware that Mr.

Nelson even had a gun. He began to walk toward the secured oxycodone, paused, and

decided he did not want to supply oxycodone to someone without a valid prescription. He

then told Mr. Nelson the store was out of oxycodone.

Mr. Nelson next demanded cash. Only then did Mr. Newcomer realize Mr. Nelson

intended to rob the store. Mr. Newcomer said he did not have access to cash, and said he

would call the manager. Mr. Nelson immediately fled the store with the paper towels.

The facts leading to Mr. Nelson's arrest are known to the parties and need not be

recited because they do not bear on the issues raised on appeal.

Procedural facts

By third amended information, the State charged Mr. Nelson with attempted first

degree robbery of Ms. Meinhold and/or Mr. Newcomer, attempting to elude a pursuing

police vehicle, and first degree unlawful possession of a firearm. Because the third

3
I No. 34032-5-111
State v. Nelson

charge required introducing evidence of Mr. Nelson's prior convictions, the parties

agreed to bifurcate that charge from the first two.

The State presented the evidence recited above to the jury. The State also sought

to present a videotaped interview between Mr. Nelson and law enforcement. Mr. Nelson

objected. The trial court excused the jury to hear and consider Mr. Nelson's objections.

Mr. Nelson objected to several parts of the video and argued those parts were

substantially more prejudicial than probative. After careful review of the transcript, the

parties agreed to excise certain portions of the interview so that the jury would not see the

unduly prejudicial parts of the interview. The trial court admitted the remainder of the

videotape without objection.

After the State rested, the trial court asked Mr. Nelson if he had anything to

address. Mr. Nelson responded that he did. First, Mr. Nelson moved to dismiss the

portion of the attempted first degree robbery charge that listed Mr. Newcomer as a victim.

Mr. Nelson argued there was insufficient evidence that Mr. Newcomer was threatened

with the use of force. After the State responded, the trial court granted Mr. Nelson's first

motion.

Second, Mr. Nelson moved to dismiss the portion of the attempted first degree

robbery charge that listed Ms. Meinhold as a victim. Mr. Nelson argued there was

4
No. 34032-5-111
State v. Nelson

insufficient evidence that Ms. Meinhold had access to the oxycodone. Mr. Nelson, citing

State v. Richie 1 and State v. Latham,2 also argued there was insufficient evidence Ms.

Meinhold had an ownership, representative, or possessory interest in the oxycodone. The

State responded, "That might be a good argument if he had been charged with a

completed crime, but he's been charged with the attempt. The legal and factual

impossibility is not a defense." RP at 404. Mr. Nelson responded that classifying the

crime as an attempt does not negate the State's obligation to prove that Ms. Meinhold had

a representative interest in the oxycodone. The trial court concluded that Ms. Meinhold's

status as an employee was sufficient for her to have a representative interest in the

property under Richie and denied Mr. Nelson's second motion.

The trial court directed the bailiff to bring the jury back. Once back, Mr. Nelson

rested his case.

The parties then discussed jury instructions. Mr. Nelson's proposed to-convict

instruction for attempted first degree robbery required the jury to find that Ms. Meinhold

had a possessory, ownership, or representative interest in the property sought to be taken.

The trial court, consistent with its earlier ruling, rejected that instruction.

1
191 Wn. App. 916, 365 P.3d 770 (2015).
2
35 Wn. App. 862, 670 P.2d 689 (1983).

5
No. 34032-5-III
State v. Nelson

Mr. Nelson also requested the trial court to instruct the jury on a lesser included

offense, unlawful display of a firearm. The trial court rejected that instruction, too.

The trial court determined it would give the following to-convict instruction:

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 displaced what appeared to be a firearm; and
(7) That any of these acts occurred in the State of Washington.

Clerk's Papers (CP) at 67. Mr. Nelson objected to the instruction. He also took

exception to the trial court's failure to give his requested instructions, as discussed

previously.

6
No. 34032-5-111
State v. Nelson

The trial court also instructed the jury on the definition of a firearm so the jury

could answer the special verdict on count I-whether Mr. Nelson was armed with a

firearm when he committed attempted robbery:

For purposes of the special verdict as to Count One, the State must
prove beyond a reasonable doubt that the defendant was armed with a
firearm at the time of the commission of the crime of Attempted First
Degree Robbery. A "firearm" is a weapon or device from which a
projectile may be fired by an explosive such as gunpowder.

CP at 83.

The jury found Mr. Nelson guilty of attempted first degree robbery and, by special

verdict, found that Mr. Nelson was armed with a firearm when he committed the crime.

The jury also found Mr. Nelson guilty of attempting to elude a pursuing police vehicle.

In the bifurcated trial, the same jury acquitted Mr. Nelson of first degree unlawful

possession of a firearm. This appeal timely followed.

ANALYSIS

1. OMISSION OF ESSENTIAL ELEMENT FROM THE TO-CONVICT INSTRUCTION

Mr. Nelson argues the trial court's to-convict instruction omitted an essential

element of robbery in the first degree, and the omission unconstitutionally relieved the

State of its burden to prove an element beyond a reasonable doubt. The State responds

7
No. 34032-5-111
State v. Nelson

that the to-convict instruction was proper; but even if it was improper, any error was

harmless.

This court reviews alleged errors of law in jury instructions de novo. State v. Fehr,

185 Wn. App. 505, 514, 341 P.3d 363 (2015). A jury instruction is erroneous if it relieves

the State of its burden to prove every element of a crime. State v. DeRyke, 149 Wn.2d

906, 912, 73 P.3d 1000 (2003). "A to-convict instruction must contain all essential

elements of a crime because it serves as a yardstick by which the jury measures the

evidence to determine the defendant's guilt or innocence." Richie, 191 Wn. App. at 927.

"The fact that another instruction contains the missing essential element will not cure the

error caused by the element's absence from the to-convict instruction." Id. at 927-28.

In Richie, a Walgreens employee who had not begun her shift attempted to prevent

the defendant from leaving Walgreens without first paying for two bottles of alcohol. Id.

at 920. As the defendant passed the employee, the defendant hit the employee with one

of the bottles over her head and escaped. Id. at 920-21. He later was arrested. Id. at 921.

The State charged the defendant with first degree robbery. Id. The trial court instructed

the jury on robbery, but the to-convict instruction did not require the State to prove that

the victim had an interest in the stolen bottles of alcohol. Id. at 928. The Richie court

held that Washington's common law of robbery makes "clear that a defendant cannot be

8
No. 34032-5-III
State v. Nelson

convicted of robbery unless the victim has an ownership, representative, or possessory

interest in the property taken." Id. at 924. Failure to include this essential nonstatutory

element in a robbery to-convict instruction unconstitutionally relieves the State of its

burden of proving each essential element of the crime beyond a reasonable doubt. Id. at

928. The Richie court held that the trial court erred because it did not include the

nonstatutory essential element.

Here, as in Richie, the trial court did not include the essential nonstatutory element

in the to-convict robbery instruction. The trial court therefore erred.

2. HARMLESS ERROR BEYOND A REASONABLE DOUBT

"[A]n erroneous jury instruction that omits an element of the charged offense or

misstates the law is subject to harmless error analysis." State v. Thomas, 150 Wn.2d 821,

844, 83 P.3d 970 (2004). "[A]n instruction that omits an element of the offense does not

necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for

determining guilt or innocence." Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827,

144 L. Ed. 2d 3 5 (1999). "The Neder test for determining the harmlessness of a

constitutional error is 'whether it appears beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.'" Thomas, 150 Wn.2d at 845

(internal quotation marks omitted).

9
No. 34032-5-111
State v. Nelson

Here, as in Richie, the State argued the employee victim had a sufficient

representative capacity over the property. "[A] person with a representative capacity

would include a bailee, agent, employee, or other representative of the owner ifhe or she

has care, custody, control, or management of the property." Richie, 191 Wn. App. at 925

(emphasis added). Because of the qualifier in the above language, an employee does not

necessarily have representative capacity over all of an employer's property.

Mr. Nelson argues there is no evidence Ms. Meinhold had care, custody, control,

or management of the property. He argues Ms. Meinhold did not have access to the

oxycodone that was locked in a safe, and Ms. Meinhold had to ask the pharmacist on duty

to get the locked oxycodone. The State responds that Ms. Meinhold is a pharmacy

technician and, as a pharmacy technician, she had the right to handle oxycodone. But the

State failed to offer any evidence that Ms. Meinhold had such a right. The State did not

ask Ms. Meinhold to discuss any of her job duties.

The State also argues Mr. Nelson was charged and convicted of attempted first

degree robbery. The trial court defined the State's burden for proving an anticipatory

offense: "A person commits the crime of Attempted First Degree Robbery when, with

intent to commit that crime, he does any act that is a substantial step toward the

commission of that crime." CP at 63. A substantial step is an act that is "strongly

10
No. 34032-5-III
State v. Nelson

corroborative" of the actor's criminal purpose. State v. Luther, 157 Wn.2d 63, 78, 134

P.3d 205 (2006) (citing State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002)).

Here, Mr. Nelson, while holding a black pistol at his side, drew Ms. Meinhold's

attention to the pistol and threatened to kill her unless she gave him oxycodone in 10

seconds. This act alone is "strongly corroborative" of Mr. Nelson's criminal purpose.

Ms. Meinhold said she did not have access to the oxycodone, went to the pharmacist, and

asked him to immediately go to the counter. The pharmacist saw Mr. Nelson's note,

began to get the oxycodone, paused, and then told Mr. Nelson the store was out of the

drug. Had the pharmacist not lied to Mr. Nelson, Mr. Nelson would have obtained the

oxycodone because of his armed threat to kill Ms. Meinhold. This evidence allows a jury

to reach but one conclusion-Mr. Nelson's armed threat to kill Ms. Meinhold was a

substantial step toward committing theft of the oxycodone. We, therefore, conclude that

the trial court's instructional error was harmless beyond a reasonable doubt.

3. FIREARM ENHANCEMENT

Mr. Nelson next contends this court should vacate the firearm enhancement. He

raises two arguments. He first argues there was insufficient evidence that the gun was

operable, as required by RCW 9.41.010(9). He also argues the jury returned inconsistent

verdicts: a special verdict finding that he was armed with a firearm when he committed

11
No. 34032-5-III
State v. Nelson

the crime of attempted first degree robbery; and, later, a not guilty verdict for first degree

unlawful possession of a firearm. We disagree with his arguments.

In a criminal case, the State must provide sufficient evidence to prove each

element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307,316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). A defendant may raise a challenge to

the sufficiency of the evidence for the first time on appeal. State v. Colquitt, 133 Wn.

App. 789, 795-96, 137 P.3d 892 (2006).

a. Sufficient circumstantial evidence the gun was operable

In evaluating the sufficiency of the evidence, the court must determine whether,

when viewing the evidence in the light most favorable to the State, any rational trier of

fact could have found guilt beyond a reasonable doubt. State v. Pirtle, 127 Wn.2d 628,

643,904 P.2d 245 (1995). A claim of insufficiency admits the truth of the State's

evidence and all reasonable inferences from that evidence. State v. Kintz, 169 Wn.2d

537,551,238 P.3d 470 (2010). Reviewing courts also must defer to the trier of fact "on

issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the

evidence." Thomas, 150 Wn.2d at 874-75. This court does not reweigh the evidence and

substitute its judgment for that of the jury. State v. Green, 94 Wn.2d 216, 221, 616 P .2d

12
No. 34032-5-111
State v. Nelson

628 ( 1980). For sufficiency of evidence claims, circumstantial and direct evidence carry

equal weight. State v. Varga, 151 Wn.2d 179,201, 86 P.3d 139 (2004).

Ms. Meinhold testified the gun appeared to be real. Also, Mr. Nelson directed Ms.

Meinhold's attention to the gun he held at his side and threatened he would kill her in 10

seconds unless she gave him oxycodone. Testimony that the gun appeared real, coupled

with evidence that the defendant used the gun in committing a crime, is sufficient

circumstantial evidence to sustain a jury's finding that the gun was operable. State v.

Tasker, 193 Wn. App. 575,594,373 P.3d 310, review denied, 186 Wn.2d 1013, 380 P.3d

496 (2016). Mr. Nelson asks this court to overrule Tasker, but fails to explain why the

type of circumstantial evidence required by Tasker is insufficient. We decline to overrule

Tasker.

b. Inconsistent verdicts

"Where the jury's verdict is supported by sufficient evidence from which it could

rationally find the defendant guilty beyond a reasonable doubt, we will not reverse on

grounds that the guilty verdict is inconsistent with an acquittal on another count." State v.

Ng, 110 Wn.2d 32, 48, 750 P.2d 632 (1988). As discussed above, sufficient evidence

supports the firearm enhancement. We, therefore, will not reverse the inconsistent

verdict.

13
No. 34032-5-111
State v. Nelson

4. LESSER INCLUDED OFFENSE

Mr. Nelson next contends the trial court erred when it denied his request to instruct

the jury on the lesser included offense of unlawful display of a firearm.

A defendant is entitled to an instruction on a lesser included offense if two prongs

are established. State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). The

legal prong is "each of the elements of the lesser offense must be a necessary element of

the offense charged." Id. The factual prong is the evidence in the case must support an

inference that only the lesser crime was committed. Id. at 448.

Unlawful display of a firearm is a lesser included offense of attempted first degree

robbery. Id. Mr. Nelson therefore has met the legal prong of the Workman test.

To establish the factual prong, "evidence must affirmatively establish the

defendant's theory of the case-it is not enough that the jury might disbelieve the

evidence pointing to guilt." State v. Fernandez-Medina, 141 Wn.2d 448,456, 6 P.3d

1150 (2000). This court must view the evidence in the light most favorable to the party

that requested the instruction. Id. at 455-56.

A person is guilty of unlawfully displaying a firearm if the person displays a

firearm in a manner that manifests an intent to intimidate another or warranting alarm in

another. See RCW 9.41.270(1). Mr. Nelson fails to satisfy the factual prong. We

14
No. 34032-5-111
State v. Nelson

previously held the evidence was insufficient for a trier of fact to find the device was a

firearm. Also, there was no affirmative evidence that Mr. Nelson committed unlawful

display of a firearm to the exclusion of attempted first degree robbery. Here, the

unrefuted evidence is that Mr. Nelson threatened to kill Ms. Meinhold unless she

facilitated his theft of oxycodone. For these reasons, we reject Mr. Nelson's argument.

SAG ISSUES

A. JURISDICTION

Mr. Nelson contends that the trial court lacked jurisdiction. Mr. Nelson argues that

jurisdiction is lacking because the elected prosecutor did not respond to a written request

for information sent by Mr. Nelson. We disagree with Mr. Nelson's argument.

The State establishes trial court jurisdiction by presenting evidence that any or all

of the essential elements of the offenses occurred in the state. State v. L.J.M, 129 Wn.2d

386, 392, 918 P.2d 898 (1996); see also RCW 9A.04.030(1). This court reviews

jurisdictional questions de novo. State v. Squally, 132 Wn.2d 333, 340, 937 P.2d 1069

(1997).

Here, the State sufficiently established the crimes took place in Washington. Ms.

Meinhold testified she lives in Yakima and was working at the Rite Aid store on Nob Hill

Avenue, which is where Mr. Nelson threatened her. Officer Jamie Gonzalez testified he

15
No. 34032-5-III
State v. Nelson

was working in Yakima when he attempted to question Mr. Nelson, and Mr. Nelson then

fled in his Mercedes at a high speed and eluded .him. Substantial evidence supports the

jury's finding (as set forth in the to-convict instructions) that the crimes occurred in the

State of Washington. Because that finding is supported by substantial evidence, we

conclude the trial court had jurisdiction.

B. CONFLICT OF INTEREST

Mr. Nelson asserts that his appellate counsel "is a conflict of interest and

compelled to lie." SAG at 1. Mr. Nelson makes the same contentions against his trial

counsel.

This court considers an issue raised in a SAG only when the SAG adequately

informs this court of the nature and occurrence of the alleged error. RAP 10.lO(c); State

v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008). This court is not obligated to

search the record in support of claims made in the SAG. State v. Thompson, 169 Wn.

App. 436, 493, 290 P.3d 996 (2012).

Mr. Nelson does not cite to the record to support his arguments. Mr. Nelson,

without elaboration, simply asserts counsel are conflicts of interest. Contrary to his

assertion, the record establishes that Mr. Nelson was satisfied with trial counsel. Mr.

Nelson personally spoke at sentencing in allocution. His first words were, "[f]irst and

16
No. 34032-5-III
State v. Nelson

foremost, I'd like to thank my attorney, Mr. Dalan, for his time and effort that he put forth

on my behalf in this case, his professionalism." RP at 542. Mr. Nelson does not

adequately inform this court of the nature and occurrence of his allegations, and we

decline to review these alleged errors.

C. INEFFECTIVE ASSISTANCE OF COUNSEL

Mr. Nelson argues he received ineffective assistance of counsel. Mr. Nelson

contends his counsel was ineffective because he "continually coersd [sic] me to waive my

6th Amendment Right." Suppl. SAG at 1. He also asserts his counsel was ineffective for

failing to object to the admission of Mr. Nelson's videotaped police interview. We

disagree.

1. Sixth Amendment rights

Although the Sixth Amendment protects numerous rights, Mr. Nelson appears to

refer by argument only to the right to a speedy trial.

CrR 3 .3 generally requires the State to bring an in-custody defendant to trial within

60 days of arraignment; if not, the trial court will dismiss the case with prejudice.

CrR 3.3(b). The threshold for a constitutional speedy trial violation, however, is higher

than that for a violation of CrR 3.3. State v. Fladebo, 113 Wn.2d 388,393, 779 P.2d 707

(1989); see also U.S. CONST. amend. VI; CONST. art. I,§ 22. The constitutional right to a

17
No. 34032-5-III
State v. Nelson

speedy trial is not violated by passage of a fixed time but instead the expiration of a

reasonable time. State v. Monson, 84 Wn. App. 703, 711, 929 P.2d 1186 (1997). This

court reviews de novo an allegation that the constitutional rights to speedy trial have been

violated. State v. Iniguez, 167 Wn.2d 273,280, 217 P.3d 768 (2009). Because some

delay is both necessary and inevitable, the appellant bears the burden of demonstrating

that the delay between the initial accusation and the trial was unreasonable and created a

presumptively prejudicial delay. Id. at 283. If this showing is made, this court next

considers several nonexclusive factors in order to determine whether the appellant's

constitutional speedy trial rights were violated. Id. These factors are: the length and

reason for the delay, whether the defendant has asserted his right, and the ways in which

the delay caused prejudice. Barker v. Wingo, 407 U.S. 514,530, 92 S. Ct. 2182, 33 L.

Ed. 2d 101 (1972).

Here, Mr. Nelson does not surpass the initial showing that the delay was

presumptively prejudicial. Although there was a delay of approximately 17 months

between arrest and trial, Mr. Nelson was charged with a very serious offense, as well as

attempting to elude a police vehicle after an extensive pursuit. He also faced life

imprisonment without the possibility of parole, as this was his third serious violent felony.

Given the severity of both the charges and the potential sentence, 17 months is a

18
No. 34032-5-111
State v. Nelson

reasonable amount of time for Mr. Nelson and the State to prepare for trial. Because Mr.

Nelson does not meet his burden in showing a presumptively prejudicial delay, this court

need not consider the factor test.

2. Failure to object to videotaped police interview

Mr. Nelson claims his counsel was ineffective for failing to object to the admission

of his videotaped interview with law enforcement.

A criminal defendant has a Sixth Amendment right to effective assistance of

counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984). "A claim of ineffective assistance of counsel is an issue of constitutional

magnitude that may be considered for the first time on appeal." State v. Ky/lo, 166 Wn.2d

856, 862, 215 P .3d 177 (2009). The claim is reviewed de nova. State v. Suther by, 165

Wn.2d 870, 883, 204 P.3d 916 (2009). To establish ineffective assistance of counsel, a

defendant must prove the following two-pronged test:

( 1) [D]efense counsel's representation was deficient, i.e., it fell below an
objective standard of reasonableness based on consideration of all the
circumstances; and (2) defense counsel's deficient representation prejudiced
the defendant, i.e., there is a reasonable probability that, except for
counsel's unprofessional errors, the result of the proceeding would have
been different.

State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing State v.

Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). There is a strong presumption

19
No. 34032-5-III
State v. Nelson

that counsel's performance was reasonable. State v. Grier, 171 Wn.2d 17, 42,246 P.3d

1260(2011 ). To rebut this presumption, the defendant bears the burden of establishing

that no conceivable legitimate tactic exists to explain counsel's performance. Id.

Contrary to Mr. Nelson's assertion, his counsel did object to the videotaped

interview. The trial court excused the jury and the parties carefully went through the

transcript of the police video to identify the portions that were unduly prejudicial to Mr.

Nelson. During the discussion, the State and trial court agreed to excise several

prejudicial portions of the video that had little probative value. The record shows that

Mr. Nelson's counsel carefully assessed the videotaped interview and successfully

prevented the jury from viewing several prejudicial portions. Mr. Nelson does not meet

his burden in showing that counsel's performance fell below an objective standard of

reasonableness in this instance.

APPELLATE COSTS

Mr. Nelson requests that this court deny the State an award of appellate costs in the

event the State substantially prevails. Mr. Nelson has complied with our June 2016

"General Order" and has satisfactorily shown he lacks the current or likely future ability

to pay appellate costs. We therefore grant his request and deny the State an award of

appellate costs.

20
No. 34032-5-III
State v. Nelson

Affirmed.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

j
I CONCUR:

21
 No. 34032-5-111

PENNELL, J. (concurring)- I concur in the court's decision affirming Edward

Nelson's conviction. I also agree that the trial court's instructions did not accurately

recount the standard for whether a robbery victim has representative capacity over a piece

of property. I write separately because I disagree that this flaw in the instructions went to

an essential element of the crime charged.

Unlike State v. Richie, 191 Wn. App. 916, 365 P.3d 770 (2015), this case does not

involve a charge of first degree robbery. Instead, Mr. Nelson was charged with attempted

first degree robbery. Attempted first degree robbery only has two elements: (1) the

defendant intended to commit the crime of robbery, and (2) in furtherance of that intent,

the defendant took a substantial step toward the commission of the crime of robbery.

RCW 9A.28.020(1); State v. Kier, 164 Wn.2d 798, 807, 194 P.3d 212 (2008). Neither of

these elements requires the State to prove the victim of the attempted robbery had

ownership or representative capacity over the property the defendant intended to steal.

Although a victim's ownership or representative capacity is not an element of

attempted robbery, it is a nonstatutory element of robbery. Richie, 191 Wn. App. at 924.

To adequately instruct a jury on attempted robbery, a court must educate the jury on the

definition of robbery. Thus, in an attempted robbery case, the court's instructions must

include an instruction accurately outlining the elements of robbery.

Washington's pattern jury instructions suggest two methods for issuing criminal

attempt instructions. The most straightforward manner is for the court to issue a
No. 34032-5-111
State v. Nelson

to-convict instruction limited to the essential elements of attempt. 1 A separate instruction

can then be provided delineating the elements of the crime that was the object of the

attempt. An alternative is to provide an instruction setting forth the definition of attempt,

and then drafting the to-convict instruction by "using the word 'attempt' along with the

elements of the underlying offense." 1 lA WASHINGTON PRACTICE: WASHINGTON

PATTERN JURY INSTRUCTIONS: CRIMINAL 100.01, cmt. at 432 (4th ed. 2016) (WPIC).

When the underlying offense has a complex series of elements (as is true for first degree

robbery), this latter approach can be convoluted since a to-convict instruction must

contain all elements of the crime charged. See State v. Smith, 131 Wn.2d 258, 263,

930 P.2d 917 (1997) (the to-convict "instruction must contain all of the elements of the

crime because it serves as a 'yardstick' by which the jury measures the evidence to

determine guilt or innocence") (quoting State v. Emmanuel, 42 Wn.2d 799,819,259 P.2d

845 (1953)).

The trial court here opted for the latter, more convoluted approach. The result was

a flawed instruction. As written, the instruction misidentified the requisite nature of the

defendant's intent. It should have been specified as intent to commit first degree robbery,

not theft of property. In addition, the substantial step portion of the instruction was too

narrow and failed to reflect a relationship with the defendant's intent. These errors are in

1
l lA WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL 100.02, at 434 (4th ed. 2016).

2
No. 34032-5-III
State v. Nelson

addition to the trial court's incorrect substitution of Myung Meinhold's employee status

for the requirement of representative capacity, as pointed out by the majority.

Assuming the trial court provided a definition of attempt under WPIC 100.01, an

acceptable alternative to the trial court's to-convict instruction would be:

To convict the defendant of the crime of Attempted First Degree
Robbery in Count 1, the following elements must be proved beyond a
reasonable doubt:
(1) On or about August 15, 2014, the defendant did an act which
was a substantial step towards the commission of First Degree Robbery;
(2) That act was done with intent to commit First Degree Robbery;
and
(3) That act occurred in the State of Washington.

The completed crime of First Degree Robbery has the following
elements:
(a) The defendant took property from the person or presence of
another, Myung B. Meinhold;
(b) Myung B. Meinhold owned, was acting as a representative of
the owner of, or was in possession of the property taken;
(c) The defendant intended to commit theft of the property;
(d) The taking was against Myung B. Meinhold's will by the
defendant's use or threatened use of immediate force, violence, or fear of
injury to Myung B. Meinhold;
(e) Force or fear was used by the defendant to obtain or retain
possession of the property;
(f) In the commission of these acts the defendant displayed what
appeared to be a firearm or other deadly weapon; and
(g) The acts occurred in the State of Washington.

See 11 WPIC 37.02, at 716-17. In addition, because the State submitted its case under a

theory of representative capacity, a separate instruction should have been given defining

a representative of an owner as a "bailee, agent, employee or other representative of the

3
No. 34032-5-III
State v. Nelson

owner if he or she has care, custody, control, or management of the property." Richie,

191 Wn. App. at 925. As pointed out by the majority, not all employees have care,

custody, or control over an employer's property. Accordingly, defining representative

capacity by employment status is inappropriate.

While the trial court's to-convict instruction was legally inaccurate, reversal is

unwarranted. The only instructional error raised by Mr. Nelson pertains to the trial

court's substitution of Ms. Meinhold's employee status for the requirement of proof of

representative capacity. Because this case only involved an attempt, Ms. Meinhold's lack

of actual capacity over the property sought by Mr. Nelson had no bearing on the State's

case. Impossibility is not a defense to an attempt. RCW 9A.28.020(2). Regardless of

whether Ms. Meinhold actually could have obtained the drugs for Mr. Nelson, the State's

evidence showed Mr. Nelson thought she could. By demanding drugs from Ms.

Meinhold under threat of deadly force, Mr. Nelson evinced an intent to commit the crime

of first degree robbery and took a substantial step toward doing so. The trial court's

instructional error was harmless.

Pennell, J.

4