State Of Washington, Resp. vs. Leonard Burgess Iii, App

2015 APR 27 	ArilO:M*
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
LEONARD WHITFIELD BURGESS
Appellant.
No. 70903-8-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	April 27, 2015
Leach, J. — Leonard Burgess appeals his conviction for robbery in the first
degree. 	He argues that because he did not use force in his initial taking of a cell
phone, the State failed to prove an essential element of the charged offense. 	He
also contends that the trial 	court committed instructional errors and 	requests
correction of a scrivener's error in his judgment and sentence. 	We remand for
correction of the judgment and sentence with instructions to add the second
alternative 	means 	of committing 	robbery 	in the first 	degree. 	But sufficient
evidence supports the conviction, 	no 	evidence supports 	Burgess's 	proposed
lesser included instruction, and the pattern reasonable doubt instruction did not
dilute the State's burden or mischaracterize the jury's role. 	We affirm Burgess's
conviction.

No. 70903-8-1 / 2
Background
In February 2013 	at about 3:00 	a.m., 	airport shuttle van 	driver 	Paul
Sarkowsky sat in his van in a Safeway parking lot, waiting for a passenger. 	A
man, 	later identified as Burgess, approached 	him and asked to 	use his cell
phone. 	At first, Sarkowsky refused, but after further conversation, he agreed to
let him use the phone. 	Sarkowsky dialed the number Burgess wished to call,
handed him the phone, and turned his attention away to allow Burgess privacy.
At that point, Burgess ran away with the phone. 	Sarkowsky chased him.
Burgess 	ran from 	the 	parking 	lot onto a 	street and 	ended 	up 	in the
backyard of a house occupied by Maria Litvinenko. 	Sarkowsky followed Burgess
into the yard. 	Burgess 	pulled 	out a 	knife 	and 	told 	Sarkowsky to 	back off.
Sarkowsky told 	him 	he 	just wanted 	his 	phone back. 	The two 	scuffled, and
Sarkowsky sustained slash wounds on his finger and chest.
Awakened by the scuffle, Litvinenko came out onto her porch and saw the
two men. 	Sarkowsky told her to call the police, then backed out of the yard,
followed 	by 	Burgess. 	Once 	Burgess 	left 	Litvinenko's 	yard, 	he 	ran 	north.
Sarkowsky waited for the police.
After 15 to 20 minutes searching the area with the aid of a police dog,
officers found Burgess several blocks away, under a truck in the backyard of a
home. 	Burgess did not have either the cell phone or a knife, and officers did not
find either item during their search. 	Sarkowsky identified Burgess as the man
-2-

No. 70903-8-1 / 3
who took his phone. 	Sarkowsky was taken to a hospital, where he received
stitches in his finger and chest.
Several hours later, Sarkowsky returned to the area with his wife and
used her cell phone to locate his phone. 	They found it between the tire of a car
and the curb on the street north of Litvinenko's home.
The State charged Burgess with robbery in the first degree with a deadly
weapon 	enhancement. 	The trial court rejected the defense's 	proposed jury
instruction on the lesser included offense of theft in the third degree. 	The court
also rejected defense's proposed reasonable doubt instruction, which omitted the
optional sentence in the pattern instruction that describes "beyond a reasonable
doubt" as having "an abiding belief in the truth of the charge."
The jury convicted Burgess of robbery in the first degree but did not find
that he was armed with a deadly weapon. 	Burgess appeals.
Analysis
First, Burgess contends that his conviction violated his due process rights
because the State failed to prove an essential element of the crime as charged:
that his taking of Sarkowsky's cell phone was by the use or the threat of force.
The 	State 	must 	prove 	every 	element 	of 	a 	charged 	crime 	beyond 	a
reasonable doubt.1 	Jury instructions "'must make the relevant legal standard
1 In re Winship, 397 U.S. 358, 364, 90 S. 	Ct. 	1068, 25 L. Ed. 	2d 368
(1970).

No. 70903-8-1/4
manifestly apparent to the average juror.'"2 	A jury instruction not objected to
becomes the law of the case.3 	And the State assumes the burden of proving
each element in a to-convict instruction, even where an element increases the
State's burden.4 	The presentation of evidence and argument at trial, together
with the totality of the court's instructions, may reduce the possibility that the jury
misconstrued its instructions.5
When reviewing a challenge to the sufficiency of the evidence, we view
the evidence in the light most favorable to the prosecution and ask whether any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.6 	We draw all reasonable inferences from the evidence in
favor of the 	State.7 	A defendant challenging the sufficiency of the 	evidence
"admits 	the 	truth 	of the 	State's 	evidence."8 	We 	do 	not 	review 	credibility
determinations, which are for the trier of fact.9 	Thus, we defer to the jury on
2 State v. Borsheim, 140 Wn. App. 357, 366, 165 P.3d 417 (2007) (internal
quotation marks omitted) (quoting State v. Watkins, 136 Wn. App. 240, 241, 148
P.3d 1112 (2006)).
3 State v. Witherspoon, 180 Wn.2d 875, 884, 329 P.3d 888 (2014) (citing
State v. Willis. 153 Wn.2d 366, 374, 103 P.3d 1213 (2005)).
4 Witherspoon, 180 Wn.2d at 884.
5 See State v. Corbett. 158 Wn. App. 576, 592-93, 242 P.3d 52 (2010)
(totality of instructions, evidence, and arguments made it clear that jury had to
find separate and distinct acts for each of the guilty verdicts).
6 State v. Hosier. 157 Wn.2d 1, 8, 133 P.3d 936 (2006).
7 Hosier. 157Wn.2dat8.
8 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
9 State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
-4-

No. 70903-8-1 / 5
issues of conflicting testimony, witness credibility, and 	persuasiveness of the
evidence.10
The to-convict instruction 	required 	the State to 	prove six 	elements of
robbery in the first degree beyond a reasonable doubt:
(1) 	That on 	or 	about 	February 	18, 	2013, 	the 	defendant
unlawfully 	took 	personal 	property 	from 	the 	person 	or 	in 	the
presence of another;
(2) 	That 	the 	defendant 	intended 	to 	commit 	theft 	of 	the
property;
(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;
(4) That force or fear was used by the defendant to obtain or
retain possession of the property to prevent or overcome resistance
to the taking;
(5) (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 immediate flight
therefrom the defendant inflicted bodily injury; and
(6) 	That 	any 	of 	these 	acts 	occurred 	in 	the 	State 	of
Washington.
This instruction incorporated the terms of RCW 9A.56.190, which defines
the crime of 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.111]
10 In re Pers. Restraint of Martinez. 171 Wn.2d 354, 364, 256 P.3d 277
(2011).
11 The final sentence of this provision, 	not at issue here, reads, "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."

No. 70903-8-1 / 6
Burgess argues that because it is undisputed that Sarkowsky willingly
handed him his phone, the State did not prove the third element of the to-convict
instruction: 	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."
We disagree. 	Washington courts have adopted a "transactional" view of
robbery "'that does not consider the robbery complete until the assailant has
effected 	his escape.'"12 	RCW 9A.56.190's definition of robbery 	reflects this
transactional view. 	The taking described in the statute's first sentence, which
must be accomplished by force, extends to obtaining and to retaining possession
of another person's property as well as to preventing or overcoming resistance to
the taking.
State v. Handburqh,13 in which our Supreme Court analyzed and adopted
this 	transactional 	view, 	involved 	a 	juvenile defendant who took 	the victim's
bicycle in her absence. 	The defendant argued that because he did not take the
victim's bicycle "'in her presence,'" the State could not prove every element of
robbery.14 	Our 	Supreme 	Court 	concluded, 	however, 	that 	evidence 	of the
defendant's subsequent use of force to 	retain 	possession and overcome the
victim's resistance to the taking was sufficient to support a conviction for robbery.
The court held that "the force necessary to support a robbery conviction need not
12 State v. Handburqh. 119 Wn.2d 284, 290, 830 P.2d 641 (1992) (quoting
State v. Manchester, 57 Wn. App. 765, 770, 790 P.2d 217 (1990)).
13 119 Wn.2d 284, 285-86, 830 P.2d 641 (1992).
14 Handburqh, 119 Wn.2d at 287.
-6-

No. 70903-8-1 / 7
be used in the initial acquisition of the property. 	Rather, the retention, via force
against the property owner, of property initially taken peaceably or outside the
presence of the property owner, is robbery."15
Here, 	after 	fleeing 	with 	Sarkowsky's 	phone, 	Burgess 	overcame
Sarkowsky's resistance to the taking by slashing him with a knife. 	The court's
instructions 	informed 	the jury that to convict Burgess of robbery in the first
degree, jurors needed to find that Burgess used or threatened to use "immediate
force, violence or fear of injury" and that this force or fear could be "used by the
defendant to 	obtain 	or 	retain 	possession 	of the 	property [or] to 	prevent or
overcome resistance to the taking." 	Under Washington law, "a taking can be
accomplished either by forcibly acquiring the property from the owner's person or
in his presence or by acquiring possession of property in the owner's absence
and 	using 	force, 	violence, 	or 	threats 	to 	retain 	possession."16 	Under this
transactional view, the State did not assume the separate burden of proving that
Burgess used force in the initial taking. 	Here, as in Handburqh, in light of the
evidence, 	argument, 	and 	the 	instructions 	as 	a 	whole, 	the 	State 	presented
sufficient 	evidence 	for 	the 	jury 	to 	find 	that 	Burgess 	used 	force 	to 	retain
possession of Sarkowsky's property.
Next, Burgess contends that the trial court erred by rejecting his proposed
instruction on the lesser included offense of theft in the third degree. 	He argues
15 Handburqh, 119 Wn.2d at 293.
16 Handburqh. 119 Wn.2d at 288 (citing Manchester, 57 Wn. App. at 769).

No. 70903-8-1 / 8
that "affirmative evidence showed Mr. Burgess no longer had the stolen phone
when force or fear was used."
A defendant "may be found guilty of an offense the commission of which is
necessarily included within that with which he or she is charged in the indictment
or information."17 	We review de novo a challenge to jury instructions based on
an error of law.18 	But where the trial court rejects an instruction based on the
facts of the case, we review the court's decision for abuse of discretion.19
A defendant is entitled to an instruction on a lesser included offense where
(1) each element of the lesser offense is a necessary element of the charged
offense (the legal prong) and (2) the evidence in the case supports an inference
that only the lesser crime was committed (the factual 	prong).20 	The included
offense must arise from 	the same act or transaction alleged 	in the charged
offense.21 	When applying the factual prong of the two-part test, we view the
evidence in the light most favorable to the party requesting the instruction.22 	But
the 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."23
17 RCW 10.61.006.
18 State v. Clausing, 147 Wn.2d 620, 626-27, 56 P.3d 550 (2002); State v.
Hunter, 152 Wn. App. 30, 43, 216 P.3d 421 (2009).
19 Hunter. 152 Wn. App. at 43.
20 State v. Huven Bich Nguyen, 165 Wn.2d 428, 434, 197 P.3d 673 (2008)
(citing State v. Workman. 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)); State v.
Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000).
21 	Huven 	Bich Nguyen. 	165 Wn.2d at 435 (citing State v. Porter, 	150
Wn.2d 732, 738-40, 82 P.3d 234 (2004)).
22 Fernandez-Medina, 141 Wn.2d at 455-56.
23 Fernandez-Medina. 141 Wn.2d at 456.
-8-

No. 70903-8-1 / 9
Here, the parties agree that theft is necessarily included in the crime of
robbery, satisfying the legal prong of the test. 	Both the charged offense and the
proposed lesser included offense instruction involve the same act or transaction.
Burgess contends that his case also satisfies the factual prong because "there
was affirmative evidence that Mr. Burgess had abandoned the phone before he
reached the yard in which he and Mr. Sarkowsky scuffled."
We disagree. 	The evidence supports exactly the opposite inference: 	that
Burgess did not abandon the phone until after his confrontation with Sarkowsky.
Sarkowsky testified that he saw the phone in Burgess's hand as he fled the
Safeway parking lot and that although he saw Burgess drop other items, he did
not see him drop the phone during the chase. 	Sarkowsky also testified that when
he asked Burgess why he wanted the phone, 	Burgess said he wanted it for
money. 	Sarkowsky stated that Burgess told him to "back off' but did not tell him
he no longer had the phone. 	Finally, Sarkowsky and his wife found the phone
later that morning 	in a 	location 	north of 	Maria 	Litvinenko's backyard, 	in the
direction 	Burgess fled 	after his 	confrontation with 	Sarkowsky. 	This strongly
suggests that Burgess did 	not abandon the phone until after he 	used force
against Sarkowsky to retain possession of it.
The evidence does not support an inference that Burgess committed only
the lesser included offense of theft in the third degree. 	The trial court did not
abuse its discretion by rejecting Burgess's proposed instruction.
-9-

No. 70903-8-1/10
Burgess also challenges the trial court's reasonable doubt instruction. 	He
contends 	that 	the 	court 	erred 	by 	instructing 	the 	jury 	that 	"[i]f, 	from 	such
consideration, you 	have an abiding belief in the truth 	of the charge, you are
satisfied beyond a reasonable doubt."24 	Burgess argues, "By equating proof
beyond a reasonable doubt with a 'belief in the truth' of the charge, the court
confused the critical role of the jury." Burgess analogizes to State v. Emery,25 in
which our Supreme Court held that the prosecutor's statement during closing
argument that the jury's job was to "'speak the truth'" mischaracterized the jury's
role. 	Burgess argues, "The 'belief in the truth' language encourages the jury to
undertake an impermissible search for the truth and invites the error identified in
Emery."
In State v. Federov,26 however, we recently rejected exactly this argument.
Unlike 	the 	prosecutor's 	improper 	argument 	in 	Emery, 	the 	"abiding 	belief
language in the pattern instruction did not tell the jury that its job was to "speak
the truth" or otherwise misadvise the jury about its role. 	Nor did it dilute the
State's burden of proof. 	"Here, read in context, the 'belief in the truth' phrase
accurately informs the jury its '"job is to determine whether the State has proved
the charged offenses beyond a reasonable doubt.'"27 	The instruction accurately
24 The trial court used 11 Washington Practice: Washington Pattern Jury
Instructions: 	Criminal 4.01, 	at 85 (3d 	ed. 	2008), 	which 	includes the optional
"abiding belief language.
25 174 Wn.2d 741, 760, 278 P.3d 653 (2012).
26 181 Wn. App. 187, 199-200, 324 P.3d 784, review denied, 181 Wn.2d
1009(2014).
27 Federov. 181 Wn. App. at 200 (quoting Emery, 174 Wn.2d at 760).
-10-

No. 70903-8-1/11
stated the law, and the trial court did not err in rejecting Burgess's proposed
instruction that would have omitted the "abiding belief language.
Finally, 	Burgess 	requests 	the 	correction 	of 	a 	scrivener's 	error 	in his
judgment and sentence. 	The State charged Burgess with robbery in the first
degree based on two alternative means. 	The jury could find Burgess committed
the crime "when in the commission of a robbery or in immediate flight therefrom
he or she is armed with a deadly weapon or inflicts bodily injury." 	The court's
verdict form did not require that the jury specify under which alternative means it
convicted Burgess. 	The judgment and 	sentence, 	however, 	includes only the
deadly weapon alternative, RCW 9A.56.200(1)(a)(i). 	It does not include any
reference to RCW 9A.56.200(1)(a)(iii), the bodily injury alternative.
To remedy a scrivener's error in a judgment and sentence that did not
prejudice the defendant, we remand to the trial court for correction.28 	Although
the State contends that "the error [Burgess] complains of is not an error," it "does
not object to remand to correct this omission." 	We remand to the trial court with
instructions 	to 	correct 	the 	judgment 	and 	sentence 	by 	adding 	RCW
9A.56.200(1 )(a)(iii), the second alternative means of conviction for robbery in the
first degree.
Conclusion
Because the evidence supports Burgess's conviction, but not Burgess's
proposed lesser included offense instruction, and the court's reasonable doubt
28 State v. Moten. 95 Wn. App. 927, 929, 934-35, 976 P.2d 1286 (1999).
-11-

No. 70903-8-1/12
instruction did not misadvise the jury or dilute the State's burden of proof, we
affirm. 	We remand to the trial court with instructions to correct a scrivener's error
in Burgess's judgment and sentence by adding RCW 9A.56.200(1 )(a)(iii), the
"bodily injury" means of conviction for robbery in the first degree.
^
WE CONCUR:
da%^
-12-