Affirmed by unpublished opinion per Armstrong, J., concurred in by Worswick, A.C.J., and Van Deren, J.
Valinda Reynolds appeals her bench trial conviction of second degree robbery. She argues that (1) the State failed to prove that she stole property and used force to obtain or retain the property; (2) because of her documented mental health problems, she lacked the mental capacity to formulate the specific intent necessary to commit the crime; and (3) counsel ineffectively represented her by failing to argue diminished capacity as an affirmative defense. Finding no error, we affirm.
FACTS On the evening of January 22, 2008, Rite Aid theft prevention employee, Christopher Comstock, watched Valinda Reynolds enter the Tacoma Rite Aid store, pick up the store's shopping flyer, and place three small tubes of cocoa butter inside the flyer. Comstock left the retail floor for the surveillance area where he continued to watch Reynolds. He saw her pick up a bag of diapers, open the bag, and remove one diaper. Next, she picked up some baby bottle nipples, wrapped them in the diaper, and replaced the diaper in its package. She also put the flyer (with the cocoa butter) inside her purse, along with a bottle of lotion that she picked up. Reynolds proceeded to the checkout counter with purse and diapers in hand.
When Reynolds's credit card was declined, she told the cashier she would get the necessary cash from her car. Reynolds then left the store, taking her purse but leaving the diaper bag behind. Comstock followed her outside and directed her to return to the store.
Reynolds kept walking toward her car, telling Comstock that she was retrieving money to pay for the diapers. He told her it was "too late for that," and pulled her away from the car. Verbatim Report of Proceedings at 30. Reynolds attempted to escape Comstock's grasp by kicking, hitting, and scratching. With the help of another Rite Aid employee, Comstock returned Reynolds to the store where they detained her until the police arrived. Although the police arrested Reynolds, they apparently did not search her purse.
The State charged Reynolds with second degree robbery. The court declared a mistrial during the middle of Reynolds's first trial when a psychiatric evaluator declared her incompetent. After treatment at Western State Hospital, Reynolds regained her competency.
At Reynolds's second trial, she denied committing the crime but did not assert the affirmative defense of diminished capacity. The trial judge found Reynolds guilty as charged.
ANALYSIS I. Sufficiency of the Evidence Reynolds claims the State failed to prove beyond a reasonable doubt that she took Rite Aid's property from Rite Aid and used force either to get or keep the property.
We review a trial court's decision following a bench trial to determine whether substantial evidence supports the challenged findings and whether the findings support the conclusions of law. State v. Hovig, 149 Wn. App. 1, 8, 202 P.3d 318 (2009). In a criminal case, the State must provide sufficient evidence to prove each element of the charged offense beyond a reasonable doubt. State v Teal, 152 Wn.2d 333, 337,96 P.3d 974 (2004). We test the sufficiency of the evidence by asking whether, viewed in the light most favorable to the State, the evidence is sufficient for any rational trier of fact to find guilt beyond a reasonable doubt. State v.Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
To convict Reynolds of second degree robbery, the State had to prove that she took personal property from another with the intent to steal it and used force in taking or keeping the property. State v. Johnson, 155 Wn.2d 609, 610-11,121 P.3d 91 (2005) (citing RCW 9A.56.190). Any force or threatened force, however slight, is sufficient to sustain a robbery conviction. State v. O'Connell, 137 Wn. App. 81, 95,152 P.3d 349 (2007). Moreover, a perpetrator who peacefully obtains the stolen property but uses violence during flight commits robbery. See State v. Manchester,57 Wn. App. 765, 770, 790 P.2d 217 (1990).
Comstock testified that he saw Reynolds wrap tubes of cocoa butter in the store's shopping flyer and place the flyer in her purse. He also saw her put ointment and a lotion bottle in her purse. When she checked out, the cashier rang up only the diapers. Once outside, when Comstock identified himself and asked Reynolds to return to the store, she refused and a struggle ensued. During the struggle, Reynolds hit and scratched Comstock's arms, and after falling to the ground, kicked him multiple times. Viewed in the light most favorable to the State, this evidence was sufficient to prove that Reynolds unlawfully took Rite Aid property and used force attempting to keep the property.
In addition, Reynolds argues that she lacked the mental capacity to formulate the intent to commit theft. She relies on the expert testimony used during her first trial to determine her competency. Reynolds does not explain the legal framework for this argument, but it appears to be a further challenge to the evidence. If Reynolds contends that the incompetency finding in the her first trial establishes as a matter of law that she lacked the necessary intent to commit robbery, the argument fails. She cites no authority for the proposition and we are aware of none. RAP 10.3(a)(6); State v. Thomas,150 Wn.2d 821, 874, 83 P.3d 970 (2004) (without argument or authority to support it, an assignment of error is waived). If she contends that, considering her mental health background, the evidence is insufficient to prove her intent to steal, the argument again fails. Reynolds offered no expert testimony as to her ability to form the necessary intent at the time of the crime's commission. Nor did she ask the trial court to consider her mental health record on this issue. The evidence was more than sufficient to prove that she intended to steal the items from Rite Aid. She concealed the items in the store flyer, did not offer them to the cashier, and attempted to escape when Comstock detained her.
II. Ineffective Assistance of Counsel Reynolds further contends her counsel's failure to argue diminished capacity below deprived her of effective representation.
Both the federal and state constitutions guarantee an accused effective representation by counsel. SeeU.S. Const. amend. VI; Wash. Const. art. I, § 22. To prove that counsel was ineffective, Reynolds must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced her. State v. McFarland, 127 Wn.2d 322,334-35, 899 P.2d 1251 (1995). Counsel's performance is deficient when it falls below an objective standard of reasonableness.State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the trial outcome would have differed. In re Pers. Restraint ofPirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
Here, Reynolds cannot show prejudice. She presented no expert testimony that her mental condition impaired her ability to form the requisite specific intent — a necessary showing to establish diminished capacity. State v. Ellis,136 Wn.2d 498, 521, 963 P.2d 843 (1998). Her mental health providers did not evaluate Reynolds's mental capacity at the time of the crime because she refused to cooperate: "[I]t is the standard practice (sic) . . . to refrain from providing opinions regarding one's mental state at the time of the alleged offense if the defendant is not willing to engage in the interviewprocess." Clerk's Papers at 50-52 (emphasis added). And the finding that she was incompetent at the time of her first trial does not, alone, shed any light on whether she lacked the capacity to form intent at the time of her crime. Because Reynolds offered no evidence that she lacked the mental capacity to intend to steal at the time of the crime, we cannot find that counsel's failure to raise the issue prejudiced her. Reynolds's claim that counsel failed to effectively represent her fails.1
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, J. and WORSWICK, A.C.J., concur.