FILED
COURT OF APPEALS DIV I
STATE OF WASHINGTON "
26I8 AUG -6 AM 9:50
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 76154-4-1
)
Respondent, )
)
v. )
)
CURTIS LAMONT WHITFIELD, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: August 6, 2018
)
VERELLEN, J. — Curtis Whitfield appeals his conviction for first degree
robbery. Because the evidence does not support an inference that Whitfield
committed theft rather than robbery, we conclude the court did not abuse its
discretion when it denied Whitfield's request to instruct the jury on the lesser
included offense.
Whitfield also assigns error to the giving of jury instruction 8, defining the
term "threat." Although we conclude jury instruction 8 was given in error, in light of
the other instructions, it was not reversible error.
Therefore, we affirm.
FACTS
On December 8, 2014, Whiffield entered the White Center branch of U.S.
Bank and approached the teller. According to the teller, Christina Ponce, Whitfield
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said, "Give me $10,000 or I'll kill you."1 Ponce gave Whiffield all the money in her
drawer. A tracking device was included with the money, some of the serial
numbers were recorded, and Ponce triggered the alarm. Around 30 minutes later,
police found Whitfield nearby in possession of bills with matching serial numbers.
The State charged Whitfield with first degree robbery. At trial, Whitfield
denied threatening to kill Ponce. The court denied Whiffield's request for a jury
instruction on the lesser included offense of theft. The jury found Whitfield guilty
as charged.
Whitfield appeals.
ANALYSIS
I. Lesser Included
Whitfield contends the trial court abused its discretion when it refused to
instruct the jury on the lesser included offense of theft.
"A defendant is entitled to an instruction on a lesser included offense when
(1) each of the elements of the lesser included 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."2 Courts refer to the first part of the test as the
"legal prong" and the second part as the "factual prong."3 On appeal, the State
does not contest the legal prong.
Report of Proceedings(RP)(Sept. 22, 2016) at 413.
2 State v. Henderson, 182 Wn.2d 734, 742, 344 P.3d 1207(2015).
3 State v. Berlin, 133 Wn.2d 541, 546, 947 P.2d 700 (1997).
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We review a trial court's decision under the factual prong for abuse of
discretion.4 In determining the factual prong, we review "the evidence in the light
most favorable to the party requesting the instruction."5 The evidence must raise
an inference that only the lesser included offense was committed instead of the
charged offense.6
Whitfield was charged with first degree robbery. A person commits robbery
when he or she unlawfully takes personal property from the person
of another or in his or her presence against his or her will by the use
or threatened use of immediate force, violence, or fear of injury to
that person or his or her property or the person or property of
anyone. Such 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 cases the degree of force is immaterial.
Such taking constitutes robbery whenever it appears that, although
the taking was fully completed without the knowledge of the person
from whom taken, such knowledge was prevented by the use of
force or fear.171
Whitfield requested the jury be instructed on the lesser included offense of
theft. Theft means "[t]o wrongfully obtain or exert unauthorized control over the
property or services of another or the value thereof, with intent to deprive him or
her of such property or services."5 Theft does not include the "use or threatened
use of immediate force, violence, or fear of injury."
4 Henderson, 182 Wn.2d at 743.
5 State v. Wade, 186 Wn. App. 749, 772, 346 P.3d 838(2015).
6 State v. Fernandez-Medina, 141 Wn.2d 448, 455,6 P.3d 1150(2000).
7 RCW 9A.56.190.
8 RCW 9A.56.020.
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According to Ponce, the bank teller, Whitfield said, "Give me $10,000 or I'll
kill you."9 Ponce gave Whitfield all the money in her drawer. A tracking device
was included with the money, some of the serial numbers were recorded, and the
teller triggered the alarm.
At trial, Whitfield testified he never intended to rob the bank and rather, he
mistakenly believed he had money in his account:
Not once did I threaten that teller; not once did I ever say the word
"kill" to Christina Ponce. You know why I didn't have to say the word
"threat"—"kill" to Ms. Christina Ponce? Because I only went, asking
for the money I thought I had in that bank.E19]
Whitfield claimed he only told the teller, "Give me my money."11 And Whitfield
argued the teller lied when she testified that he threatened to kill her. But it is not
enough that the jury may disbelieve some evidence.12
Whitfield contends his denial that he threatened Ponce, along with the lack
of other evidence of a threat, raises an inference that only theft was committed
instead of robbery.
The State argues Whitfield may not request a theft instruction because his
testimony about his mistaken belief is inconsistent with such an instruction. "The
jury may always disbelieve any portion of a witness's testimony,'but if the
9 RP (Sept. 22, 2016) at 412.
19 RP (Sept. 27, 2016) at 820.
11 Id. at 827.
12 See Fernandez-Medina, 141 Wn.2d at 455-56.
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defendant would urge as an alternative theory that he committed only [the included
crime], some evidence must be presented affirmatively to establish that theory.'"13
At trial, Whitfield advanced a single theory, that he did not intend to take the
money from the bank, that he was only asking for money he believed was in his
account. If believed, this theory would require the jury to acquit Whitfield of the
charged crime of robbery and the requested lesser included of theft. "Where
acceptance of the defendant's theory of the case would necessitate acquittal on
both the charged offense and the lesser included offense, the evidence does not
support an inference that only the lesser was committed."14
Because the evidence does not support an inference that Whitfield
committed theft rather than robbery, we conclude the court did not abuse its
discretion when it in denied Whitfield's request to instruct the jury on the lesser
included offense.
II. Jury Instruction
Whitfield argues jury instruction 8 defining threat misstates the law. For this
reason, Whitfield asks this court to reverse his conviction.
The panel reviews errors of law in jury instructions under the de novo
standard.15 "Jury instructions are proper when they permit the parties to argue
13 State v. Rodriquez, 48 Wn. App. 815, 820, 740 P.2d 904(1987)
(alteration in original)(quoting State v. Wheeler, 22 Wn. App. 792, 797, 593 P.2d
550(1979)).
14 State v. Speece, 56 Wn. App. 412, 419, 783 P.2d 1108 (1989), affirmed,
115 Wn.2d 360, 798 P.2d 294 (1990).
15 State v. Barnes, 153 Wn.2d 378, 382, 103 P.3d 1219 (2005).
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their theories of the case, do not mislead the jury, and properly inform the jury on
the applicable law."16
Even if a jury instruction is improper, reversal is appropriate only if the error
is prejudicial. "It is reversible error to instruct the jury in a manner that would
relieve the State of [its] burden" to prove "every essential element of a criminal
offense beyond a reasonable doubt."17 But "[i]f the instructions as a whole fairly
state the law, then there is no prejudicial error."18
Here,jury instruction 8 provided, "Threat means to communicate, directly or
indirectly, the intent to cause bodily injury in the future to the person threatened or
to any other person."16 But under the statute defining robbery,"A person commits
robbery when he or she unlawfully takes personal property from the person of
another or in his or her presence against his or her will by the use or threatened
use of immediate force, violence, or fear of injury to that person."26
In State v. Gallaher, Division Three of this court considered an identical
threat instruction where the defendant was convicted of second degree robbery.21
The court determined the threat instruction was improper "[i]nsofar as the
16 Id.
17 State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245(1995).
18 State v. Gallaher, 24 Wn. App. 819, 823,604 P.2d 185 (1979).
18 Clerk's Papers(CP)at 61.
28 RCW 9A.56.190 (emphasis added).
21 24 Wn. App. 819,604 P.2d 185(1979).
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instruction includes threats of harm to take place subsequent to the robbery.1)22
Similarly here, jury instruction 8, defining threat, was given in error.
In Gallaher, Division Three concluded,"[T]he instructions considered as a
whole adequately advise the jury that a threat of immediate force was required to
convict the defendant of a robbery."23 There, the jury instruction defining robbery
and the to convict instruction correctly identified that the defendant must use or
threaten the use of "immediate force" to be guilty of robbery.24
Here, the jury instruction defining robbery was virtually identical to the
instruction in Gallaher:
A person commits the crime of robbery when he or she
unlawfully and with intent to commit theft thereof takes personal
property from the person or in the presence of another who has an
ownership, representative, or possessory interest in that property,
against that person's will by the use or threatened use of immediate
force, violence, or fear of injury to that person or to the person's
property.[251
And the to convict instruction given in this case correctly stated:
To convict the defendant of the crime of robbery in the first
degree, each of the following six elements of the crime must be
proved beyond a reasonable doubt:
(3) That the taking 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.[26]
22 Id. at 822.
23 Id.
24 Id.
25 CP at 59(emphasis added).
26 CP at 64(emphasis added).
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Because the other instructions correctly identified the requirement of
immediate force, the instructions did not relieve the State of its burden to prove
every element of the crime beyond a reasonable doubt. Although we conclude
jury instruction 8 was given in error, in light of the other instructions, it was not a
reversible error.
Therefore, we affirm.
WE CONCUR:
l ustI,40T-
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