State v. Nelson

FIUE
IN CLERKS OFFICE
This opinion was filed for record

SUPREME COURT,3WE OF WASt^jQTON at ^ on 3011
1 ,DATE JUN 1 4 2018
CHtEFJUSTtCe SUSAN L CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 94712-1

Respondent,

V. En Banc

EDWARD LEON NELSON,

Petitioner.
Filed JDN 1 4 2018

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^ 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"]

'191 Wn. App. 916, 365 P.3d 770(2015).
State V. Nelson (Edward Leon), No. 94712-1

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 May 2, 2017)(unpublished),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
State V. Nelson (Edward Leon), No. 94712-1

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 ofProceedings(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
State V. Nelson (Edward Leon), No. 94712-1

(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 "[tjhere 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. LathanP-

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 [SJtate 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 ofthe owner [was] sufficient to satisfy the rule of[Richiey 5 VRP (Jan.

35 Wn. App. 862,670 P.2d 689(1983).
State V. Nelson (Edward Leon), No. 94712-1

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 [Sjtate has to prove

that Ms. Meinhold was an employee of the owner ofthe 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 ofRichie 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 [Sjtate still has to prove possession.
It's one ofthe 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 tojustify 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
State V. Nelson (Edward Leon), No. 94712-1

ofthe 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 ofthe 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 ofthe
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 ofthe 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 ofthese acts or in the immediate
flight therefrom the defendant displayed what appeared to be a
firearm; and
(7) That any of these acts occurred in the State of Washington.

CP at 67. Jury instruction 7, as given, defined for the jury the crime of robbery and

further stated that "[a] person with a representative interest includes an agent.
State V. Nelson (Edward Leon), No. 94712-1

employee or other representative of the owner of the property." CP at 66. Jury
I

instruction 4 defined the crime of attempted first degree robbery.^

As relevant here, the jury found Nelson guilty of attempted first degree

robbery.'^ The Court of Appeals, Division Three, affirmed, the majority holding in

relevant part that the "to convict" instructibn for attempted first degree robbery

lacked an "essential nonstatutory element in the to-convict robbery instruction."

Nelson, No. 34032-5-III, slip op. at 9. The!court found the instruction error

harmless beyond a reasonable doubt. Judge Pennell authored a concurring opinion,
1

positing that the perceived flaw in the instructions did not concern an essential

element ofthe crime charged because Nelson, unlike the defendant in Richie, was

charged with an attempt and not the substantive crime. Nelson petitioned this court

for review, which we granted "only on t\\Q State of Washington v. Richie]my

instruction issue." Order, State v. Nelson, No. 94712-1 (Wash. Noy. 8, 2017).

^ Jury instruction 4 reads:"A person commits the crime of Attempted First Degree
Robbery when, with intent to commit that crime, be does any act that is a substantial step toward
the commission of that crime." CP at 63.

The jury also found Nelson guilty of attempting to elude a pursuing police vehicle and,
by special verdict, that be was armed with a firearm when be committed the crime. He was found
to be a persistent offender under RCW 9.94A.570 and senteneed to life without parole.
State V. Nelson (Edward Leon), No. 94712-1

Issue

Is a victim's ownership or representative capacity an essential element of the

crime of attempted first degree robbery that must be included in the "to convict"

instruction?

Analysis

Nelson alleges that the trial court's "to convict" instruction was

constitutionally deficient because it omitted "an essential element of the charge."^

Pet. for Review at 2."We review alleged errors of law injury instructions de

novo." State v. Boss, 167 Wn.2d 710, 716, 223 P.3d 506(2009)(citing State v.

Miller, 156 Wn.2d 23, 27, 123 P.3d 827 (2005))."An omission or misstatement of

the law in a jury instruction that relieves the State of its burden to prove every

element of the crime charged is erroneous." State v. Thomas, 150 Wn.2d 821, 844,

83 P.3d 970(2004). Such an omission or misstatement may nevertheless be subject

to harmless error analysis. Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827,

144 L. Ed. 2d 35 (1999); Thomas, 150 Wn.2d at 844. The test articulated by the

Supreme Court in Neder is "whether it appears 'beyond a reasonable doubt that the

error complained of did not contribute to the verdict obtained.'" Neder, 527 U.S. at

^ In his supplemental briefing, Nelson attempts to reformulate the issue raised in his
petition by arguing that "the jury must be advised of the elements of the completed crime to
properly assess the defendant's intent to commit it," and that the omission "here was erroneous
and harmful." Suppl. Br. ofPefr at 8.

8
State V. Nelson (Edward Leon), No. 94712-1

15 (quoting Chapman v. California, 386'U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d
I'

705 (1967))).

We first note that "[i]n considering the dimensions of attempt law, the

purposes served by this crime must constantly be kept in mind." 2 Wayne R.

LaFave, Substantive Criminal Law § i 1.2(b) at 292(3d ed. 2017). The law of

attempt serves several penological objectives, the most obvious of which are to

stop, deter, and reform a person who has unsuccessfully attempted to commit a

crime. Attempt law provides a basis for arid makes possible "preventive action by

the police before the defendant has come dangerously close to committing the

intended crime." LaFave,supra, at 291. While general deterrence is also a

consideration, a threat of punishment for the attempt is "unlikely to deter a person

who is willing to risk the sanction providejd for the crime which is his object."

LaFave, supra, at 292. This court has consistently maintained that "[t]he attempt

statute focuses on the actor's criminal intent, rather than the impossibility of

convicting the defendant of the completed crime." State v. Townsend, 147 Wn.2d

666, 679, 57 P.3d 255 (2002); accord State v. Luther, 157 Wn.2d 63, 74, 134 P.3d

205 (2006). '

Our current revised criminal code was modeled in part on the American Law

Institute's Model Penal Code (Proposed Official Draft 1962). See State v. Johnson,

173 Wn.2d 895, 905-06, 270 P.3d 591 (2012)(discussing the Model Penal Code
State V. Nelson (Edward Leon), No. 94712-1

and the crime of attempt as codified in RCW 9A.28.020). The Model Penal Code

provides, in relevant part, that

[a] person is guilty of an attempt to commit a crime if, acting with the
kind of culpability otherwise required for commission of the crime, he
[or she]:
(a) purposely engages in conduct that would constitute the
crime if the attendant circumstances were as he [or she] believes them
to be.

ModelPenal Code § 5.01. While the crime of attempt in Washington is codified

in RCW 9A.28.020, as a preliminary matter it is notable that the question of a

victim's ownership or representative capacity is viewed through the lens ofthe

perpetrator as he or she believed the circumstances to be at the time of the attempt.

It is generally of no consequence in the context of an anticipatory or inchoate

offense, what the actual attendant circumstances were at the time the actor engaged

in proscribed conduct. See, e.g., Luther, 157 Wn.2d at 73 ("[A]n attempt

conviction results because ofthe defendant's 'bad intent' to commit the crime and

the fact that had things been as the defendant believed them to be, he or she would

have completed the offense."); see also RCW 9A.28.020(2)(providing that "it is

no defense to a prosecution of. . . attempt that the crime charged to have been

attempted was, under the attendant circurhstances, factually or legally

impossible"). This means that in the attempted first degree robbery at issue here,

the question is not whether the victim had any type of actual possessory interest in

10
State V. Nelson (Edward Leon), No. 94712-1

I

the property, but rather what the perpetrator believed the attendant circumstances

to be. There is no dispute that Nelson believed that the pharmacy technician, as

well as the pharmacist, while on the job, had the requisite ownership,

representative, or possessory interest in the oxycodone. Absent such a belief, no

reason would exist for Nelson to demand that Meinhold or Newcomer give him the

prescription drug. Thus, the inquiry here is qualitatively different from the inquiry
I,

the petitioner would have the jury and thiS'court engage in—it is entirely irrelevant

whether Meinhold did, infact, have access to the drug in her representative

capacity as an employee. ;

Nevertheless, because the crime of attempt is statutorily codified, the

substantive inquiry into whether a victim's ownership or representative capacity is

an essential element of the crime of attempted first degree robbery starts with the

language of the statute defining the crime of attempt. That statute reads, in relevant

part: !

(1) A person is guilty of an attempt jto commit a crime if, with intent
to commit a specific crime, he or she does any act which is a
substantial step toward the commission ofthat crime.
(2)If the conduct in which a person engages otherwise
constitutes an attempt to commit a crime, it is no defense to a
prosecution of such attempt that the;crime charged to have been
attempted was, under the attendant circumstances, factually or legally
impossible of commission.

11
State V. Nelson (Edward Leon), No. 94712-1

RCW 9A.28.020. Thus,the crime of attempt on its face contains two essential

elements the State has to prove to secure a conviction:(1)intent to commit a

specific crime and (2)any act constituting:a substantial step toward the

commission of that crime. See State v. Aumick, 126 Wn.2d 422,429, 894 P.2d

1325 (1995)("[T]his court and the Court of Appeals have repeatedly recognized

that attempt consists oftwo elements:(1)intent, and (2) a substantial step."). In the

context ofthe crime at issue, attempted first degree robbery, that means that the

State must prove that the actor must have(1)intended to commit first degree

robbery and (2)undertaken any act constituting a substantial step toward the

commission of first degree robbery.

The relevant "to convict" attempt Washington Pattern Jury Instructions

provides two options for instructing the jury on the crime of attempt. WPIC 100.01

mimics the statutory definition, written as a complete sentence, while WPIC

100.02 lists each of the three^ elements ofthe crime of attempt separately. 1 lA

Washington Practice: Washington Pattern Jury Instructions: Criminal

100.01, at 432, 100.02, at 434(4th ed. 2016)(WPIC). Comments to the WPICs

suggest that there are two alternative methods of formulating the "to convict"

instructions acceptable in attempt prosecutions:(1)stating the two essential

^ The third element as stated in the WPICs is that the act must occur in Washington. This
element is disregarded for purposes of the analysis here.

12
State V, Nelson (Edward Leon), No. 94712-1

elements of attempt and providing a separate definition of the crime the actor
, li

intended to commit, or(2)providing the statutory definition of attempt and

providing a separate elements instruction delineating the elements ofthe crime the

defendant intended to commit and using the word "attempt" along with those

elements.

Ofthe two approaches to formulating the "to convict" instruction suggested
' !'

in the WPICs comments, the first approach appears to be more streamlined and in

line with the statutory definition. Neither requires the State to prove each element

of the underlying substantive crime. The actor's intent to engage in actions that
I i:
would bring about the crime and an act constituting a substantial step are the only

elements the State has to prove. Providipgu separate definition to the jury ofthe

nature and the elements ofthe underlying prime serves the purpose of educating
■ i'

the jury on what the crime would have looked like if completed. But this definition

is not required to be included in the "to convict" instruction. This means that the

argument that Meinhold's ownership or representative capacity, an essential

element ofthe crime of robbery, is also an;essential element of the crime of

attempted first degree robbery, fails.

A separate concern alluded to by Nelson is the structure of the jury

instructions as given. The trial court opted to provide the statutory definition ofthe

crime of attempt separately, and for the "to convict" instruction to list the elements

13
State V. Nelson (Edward Leon), No. 94712-1

of the crime the defendant intended to corrimit, which, according to the WPICs,

also calls for using the word "attempt" along with those elements. As given, the

trial court's "to convict" instruction here, excerpted supra, contained superfluous

provisions in several respects. It included several elements of the crime of first

degree robbery that the State was not required to prove where a defendant is

charged with an attempt crime. The "to convict" instruction here included "[t]hat

force or fear was used by the defendant to obtain or retain possession ofthe

property or to prevent or overcome resistance to the taking or to prevent

knowledge of the taking." CP at 67(emphasis added). Similarly, it provided "[t]hat

Myung B. Meinhold was an employee ofthe owner of the property."^ CP at 67.

The prosecutor's arguments at trial to bring this distinction to the trial judge's

attention were unsuccessful. See, e.g., 5 VRP (Jan. 11, 2016) at 401-02. As given

in this case, the "to convict" instruction, while perhaps not perfect, expressed the
1

necessary basic elements and included the elements of attempt. Its only "flaw,"

arguably, was it required the State in this case to establish more than necessary.

That does not constitute reversible error.

^ For purposes of attempt, the "to convict" instruction should have at most required proof
only that Nelson intended or attempted to use force and that he believed Meinhold had an
ownership, representative, or possessory interest in the property Nelson was attempting to take.

14
State V. Nelson (Edward Leon), No. 94712-1

As discussed earlier, the underlyiiigl crime being attempted may be defined
i

separately, as was done in this case, because the purpose is to inform and educate

the jury on what the defendant intended tojlaccomplish.^ Nelson argues that because
r

"the State chose to include all ofthe elements ofthe completed offense in the 'to

convict' instruction rather than proffering a separate instruction setting out the
I

elements of the completed charge," the State "undertook the obligation ... to
i

prove the elements beyond a reasonable doubt." Suppl. Br. of Pet'r at 18.
i
I

A "to convict" instruction must contain all the elements ofthe crime

"because it serves as a 'yardstick' by which the jury measures the evidence to
1,

determine guilt or innocence." State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917

(1997). We have also held in State v. DeRyke that "a reviewing court may not rely

on other instructions to supply the element missing from the 'to convict'

instruction. DeRyke, 149 Wn.2d 906, 910,173 P.3d 1000(2003)(citing Smith, 131

Wn.2d at 262-63). Important to the case here, DeRyke also reiterated that an

attempt crime contains only two elements:! intent to commit a specific crime and

taking a substantial step toward the commission ofthat crime, and that an attempt

instruction does not have to provide the elements of the crime allegedly attempted.

149 Wn.2d at 910-11. In DeRyke, we nevertheless held that the "to convict"

See CP at 66 (jury instruction 7 defining the crime of robbery).

15
State V. Nelson (Edward Leon), No. 94712-1

instruction that did not specify the degree of the rape allegedly attempted was

error.

The record reveals that unlike DeRyke, the trial court's "to convict"

instruction here was a list of all the elements of first degree robbery allegedly

attempted, and therefore DeRyke is not directly applicable. The fact that the jury

was provided the statutory definitions ofthe crimes of both first degree robbery,

CP at 65, and robbery® that address the elements ofthe underlying crime charged,

separately, is not dispositive. The dispositive question is whether the "to convict"

instruction contained the two elements of attempt and informed the jury of the

crime with which Nelson was charged with sufficient clarity. We hold that it did.

While including Meinhold's employee status in the "to convict" instruction

resulted in the State having to prove it, generally the State does not need to prove

in an attempt prosecution the element of an ownership, representative or

possessory interest. RCW 9A.28.020(2) provides that legal or factual impossibility

® Jury instruction 7 reads:
"A person commits the crime of robbery when he 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, the person had an ownership, representative or possessory interest in the property,
by the use or threatened use of immediate force, violence, or fear of injury to that person. 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 either of which case the degree of force is immaterial.
"A person with a representative interest includes an agent, employee or other
representative of the owner of the property." CP at 66(emphasis added).

16
State V. Nelson (Edward Leon), No. 94712-1

is not a defense to an attempt. Here, requiring the State to prove that Meinhold

"was an employee of the owner of the property" for purposes of attempt is more

than sufficient to ensure that the State met,its burden of proving that Nelson

believed that Meinhold had some representative interest in the oxycodone.

Therefore, we conclude that the "to convict" instruction given in this case perhaps

contained unnecessary provisions but was sufficiently accurate not to constitute

error.'®

As indicated earlier, review was granted to address the holding ofRichie.

Given the two essential elements of the crime of attempted first degree robbery, the

analysis from Richie is not directly applicable. In Richie, an off-duty employee

attempted to prevent the defendant from walking out with two bottles of brandy he

failed to pay for; the defendant struck the employee over the head with one ofthe

bottles before fleeing with the merchandise. He was charged and convicted of first

degree robbery. On appeal. Division Two bf the Court of Appeals held that a

nonstatutory element that the victim have an ownership, representative, or

possessory interest in the property stolen was an essential implied element ofthe

We also take this opportunity to suggest what a correctly drafted "to convict"
instruction could look like and agree with the concurrence by Judge Pennell that if the trial court
here chose to provide a definition of"attempt" urider WPIC 100.01, the "to convict" instruction
should include the two essential elements of attempt and a general description ofthe underlying
crime and its elements—the latter only for purposes of educating the jury on the object ofthe
attempt. The description of the crime attempted may also be provided separately.

17
State V. Nelson (Edward Leon), No. 94712-1

crime or robbery. It noted that RCW 9A.56.190, which defines the crime of

robbery, does not require that the victim have an ownership, representative, or

possessory interest in the property, but relied on existing case law^ ^ to conclude

that the element of an ownership, representative or possessory interest is essential.

Relying on earlier cases, the Richie court reversed the conviction and held that in

order for an employee to have a representative interest in property, she has to have

"care, custody, control, or management ofthe property." Richie, 191 Wn. App. at

925 (citing Latham, 35 Wn. App. at 865). ,

This reasoning by the Court of Appeals in Richie must be rejected.

Requiring the State to establish care, custody, control, or management ofthe

property by an employee for purposes of proving representative interest is

unnecessary. As we have previously stated,"By describing the crime ofrobbery as

it did, the legislature established an offense which is dual in nature—^robbery is a

property crime and a crime against the person." State v. Tvedt, 153 Wn.2d 705,

711, 107 P.3d 728 (2005)."The unit of prosecution is defined both by the taking of

property and that the forcible taking be from orfrom the presence ofa person

against his or her will." Tvedt, 153 Wn.2d at 715 (second emphasis added). Taking

'' See, e.g., Latham, 35 Wn. App. 862(holding that although anyone having a right to
possession superior to that ofthe robbery defendant is deemed to be the owner as against that
defendant, vehicle passenger was not a victim because he lacked authority to act conceming the
vehicle and was not in possession ofthe vehicle at the time the alleged robbery occurred).

18
State V. Nelson (Edward Leon), No. 94712-1

personal property from the person or his or her presence implies that that person,

and not the defendant, has a superior possessory right to the item being taken.

For example, a person who forcibly takes groceries being delivered to the

customer's car by a store employee who is on her break is guilty of robbery

regardless of whether that employee had care, custody, control, or management of

the property. Robbery can occur even where the victim in possession ofthe item

has no legally cognizable claim to that property, such as robbing a thief ofthe

property; or where the property is illegal to possess, such as robbing a drug dealer

of his or her drugs. While it is certainly true in a robbery prosecution that a victim

must be alleged and the evidence established who the victim is in relation to the

property taken, be it a store clerk, a pharmacy technician, a thief, or a drug dealer,

the State does not need to separately prove, and the "to convict" instruction need

not include, that the victim had care, custody, control, or management ofthe

property. We overrule Richie, Latham, and other cases to the extent they hold

otherwise.

Conclusion

We affirm the Court of Appeals but clarify that the ownership,

representative, or possessory interest is not an essential element of the crime of

attempted first degree robbery and that the Court of Appeals incorrectly

determined that it was. We further conclude that here the "to convict" instruction

19
State V. Nelson (Edward Leon), No. 94712-1

was sufficient.

J

WE CONCUR:

,CC

;S?

20
State V, Nelson

No. 94712-1

Gonzalez, J.(concurring)—I concur with the majority. I write separately to

stress that a first degree robbery charge might well be sustainable when the

property was taken from a customer, notjust an employee. The majority opinion

provides an example where an employee is robbed while delivering groceries to a

customer's car. It concludes that the State is not required to prove, and the "to

convict" instruction does not need to include, that the employee had "care, custody,

control, or management of the property." Majority at 19. I completely agree.

Similar principles might well apply when a customer tries to stop the theft. For

example, if a thief reaches into an open cash register and a customer, the only

witness, tries to stop the theft, a trier offact might well conclude the customer

"was acting as a representative ofthe owner." 11 WASHINGTON Practice:

Washington Pattern Jury Instructions: Criminal 37.02(2)(4th ed. 2016).

With these observations, I concur.
State V. Nelson, No. 94712-1 (Gonzalez, J., concurring)
State V. Nelson (Edward Leon), No. 94712-1
(Gordon McCloud, J., concurring)

No. 94712-1

GORDON McCLOUD, J. (concurring)—I agree with the majority that this

case involves an attempted robbery, not a completed crime. Majority at 2. I further

agree with the majority that the elements of sueh an attempt crime are (1) intent to

commit the target crime, here the robbery, and (2)"any act which is a substantial

step toward the commission of that crime." Id.-, ROW 9A.28.020(1). Since the

elements instruction in this case contained those two elements,^ I also agree with the

majority that we should affirm.

That decision is the only holding in this case. In fact, the majority correctly

explains that its other statements about the continuing validity ofState v. Richie, 191

Wn. App. 916, 365 P.3d 770(2015), are irrelevant to its decision to affirm. It states,

"As indicated earlier, review was granted to address the holding of Richie. Given

the two essential elements ofthe crime ofattempted first degree robbery,the analysis

ixom Richie is not directly applicable." Majority at 17. I agree.

^ Clerk's Papers at 66(jury instmction 7).
1
State V. Nelson (EdwardLeon), No. 94712-1
(Gordon McCloud, J., concurring)

For that reason, the majority's decision to go on and purportedly overrule

Richie is completely unnecessary. It is an interesting expression of opinion, but it

has no bearing on the outcome ofthis case.

I therefore respectfully concur.
State V. Nelson (Edward Leon), No. 94712-1
(Gordon McCloud, J., concurring)