State v. Nelson

STATE OF WASHINGTON, Respondent, v. EDWARD LEON NELSON, Appellant.

No. 34032-5-III

Court of Appeals of Washington, Division 3

May 2, 2017

UNPUBLISHED OPINION

Order Filed Date: June 6, 2017

PANEL Judges Lawrence-Berrey, Fearing, and Pennell

ORDER DENYING MOTION FOR RECONSIDERATION AND AMENDING OPINION

GEORGE FEARING CHIEF JUDGE.

The court has considered appellant's motion for reconsideration and is of the opinion the motion should be denied. Therefore, IT IS ORDERED the motion for reconsideration of this court's decision of May 2, 2017 is denied.

IT IS FURTHER ORDERED that the opinion filed on May 2, 2017, shall be amended as follows: Section 4 entitled "Lesser included offense" on pages 14 and 15 shall be deleted and the following shall be inserted in its place:

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 first prong is the legal prong and requires that each element of the lesser offense be a necessary element of the offense charged. Id. The second prong is the factual prong and requires that the evidence in the case support an inference that only the lesser crime was committed. Id. at 448. In addition, 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." State v Fernandez-Medina, 141 Wn.2d 448, 456, 6 P.3d 1150 (2000).

Mr. Nelson fails to satisfy the factual prong. There was no affirmative evidence that Mr. Nelson committed only 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 this reason, we reject Mr. Nelson's argument.

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 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.

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 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 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.

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.

The trial court also instructed the jury on the definition of a firearm so the jury could answer the special verdict...