[No. 25660-0-III. Division Three. December 27, 2007.]
[1] Criminal Law Trial Instructions Formula Instruction Review Standard of Review. A challenge to the sufficiency of a "to-convict" instruction in a criminal trial is reviewed by an appellate court de novo. [2] Criminal Law Trial Instructions Formula Instruction Sufficiency Test. A "to-convict" instruction in a criminal trial is sufficient if it allows the parties to argue their theories of the case, does not mislead the jury, and, when read as a whole, properly informs the jury of the law to be applied. [3] Appeal Review Issues Not Raised in Trial Court Constitutional Rights Test. Under RAP 2.5(a)(3), an appellate court may consider an issue raised for the first time on appeal if it involves a manifest error affecting a constitutional right. To warrant review under the rule, the asserted error must be truly of constitutional magnitude and must not be harmless. [4] Criminal Law Review Issues Not Raised in Trial Court Instructions Formula Instruction Manifest Constitutional Error. A criminal defendant's claim that the trial court gave an erroneous "to-convict" instruction implicates manifest error affecting a constitutional right that may be raised for the first time on appeal under RAP 2.5(a)(3). [5] Criminal Law Trial Instructions Formula Instruction Omission of Element Nature of Error In General. A convicted offender's claim that the trial court failed to instruct the jury on an element essential to the offense charged in the to-convict instruction given at trial, thereby relieving the State of its duty to prove all of the elements of the offense beyond a reasonable doubt as required by due process of law, alleges error of sufficient constitutional magnitude to be raised for the first time on appeal. [6] Criminal Law Trial Instructions Formula Instruction All Elements Necessity. The "to-convict" instruction given in a criminal trial must contain every element of the crime charged. The jury in a criminal trial has the right to regard the "to-convict" instruction as a complete statement of the law and is not required to search other instructions in order to add elements necessary for conviction. The defendant is denied a fair trial if the jury must guess at the meaning of an essential element of the crime charged or if it might assume that an essential element need not be proved. [7] Criminal Law Trial Instructions Formula Instruction Omission of Element Review Harmless Error. The omission of an essential element from the "to-convict" instruction given in a criminal trial is harmless error if the reviewing court is convinced beyond a reasonable doubt that any reasonable jury would reach the same result absent the error. [8] Robbery Elements Taking Alternative Means. RCW 9A.56.190 states two alternative means of committing the crime of robbery: (1) taking personal property from the victim's person or (2) taking personal property in the victim's presence. [9] Criminal Law Trial Instructions Formula Instruction Alternative Means of Committing Offense Omission Effect. Where an alternative means of committing an offense is omitted from the "to-convict" instruction given in a criminal trial, the State assumes the burden of proving the elements of the offense as instructed. The omission of an alternative means of committing the offense does not constitute the omission of an essential element of the charge. [10] Robbery Instruction Alternative Means of Committing Offense Omission Effect. In a prosecution for robbery under chapter 9A.56 RCW, a "to-convict" instruction stating that a robbery is committed by taking property "from the person of another" while omitting language that a robbery is committed by taking property "in the presence of" another states a single means of committing robbery and requires the State to prove the elements of the offense as instructed. The omission of the "in the presence of" alternative does not omit an essential element of the offense and does not render the instruction erroneous. [11] Trial Instructions Purpose. Instructions are intended to enable jurors to apply rules of law to the facts of the case. [12] Trial Instructions Sufficiency Test. The instructions given in a trial are sufficient to satisfy the requirement of a fair trial if, when taken as a whole, they are readily understood, not misleading to the ordinary mind, and properly inform the jury of the applicable law. [13] Trial Instructions Language Discretion of Court. The wording of jury instructions is a matter within the trial court's discretion. [14] Trial Instructions Sufficiency Definition of Terms Discretion of Court. Whether a word used in an instruction requires further definition is a matter of judgment to be exercised by the trial court. [15] Criminal Law Trial Instructions Definition of Element Discretion of Court. When instructing the jury in a criminal trial, it is for the trial court to determine whether a word used in an instruction requires further definition. [16] Criminal Law Trial Instructions Technical Terms. In a criminal case, the trial court is required to define for the jury technical words and expressions but not words and expressions that are of common understanding and that are self-explanatory. This is known as the technical term rule. The purpose of the rule is to ensure that criminal defendants are not convicted by a jury that misunderstands the applicable law. A term is technical if its legal definition differs from the common understanding of the word. Whether a term is technical is left to the trial court's discretion. [17] Robbery Elements Intent To Commit Theft "Theft" Definitional Instruction Necessity. In a prosecution for robbery in which the trial court instructs as an element of the charge that "the defendant intended to commit theft of the property," the word "theft" is a term of sufficiently common understanding as not to require further definition. [18] Criminal Law Trial Instructions Definition of Element Preservation for Review Failure To Raise in Trial Court. A criminal defendant may not raise for the first time on appeal a claim that the trial court erroneously failed to define an element of the offense charged. The court's failure to provide a definition is not an issue of constitutional magnitude. [19] Criminal Law Trial Taking Case From Jury Sufficiency of Evidence Law of the Case Instructions. Whether the evidence presented in a criminal trial is sufficient to sustain a verdict under the instructions given to the jury is determined by the law as set forth in the instructions. [20] Criminal Law Trial Taking Case From Jury Sufficiency of Evidence Review Interpretation of Evidence. When the sufficiency of the evidence supporting a criminal conviction is challenged on appeal, all reasonable inferences from the evidence are drawn in favor of the State and interpreted most strongly against the defendant. [21] Criminal Law Trial Taking Case From Jury Sufficiency of Evidence In General. The evidence presented in a criminal trial is sufficient to support a conviction if any rational trier of fact could find the elements of the crime beyond a reasonable doubt. [22] Robbery Elements Taking Car Keys. A taking of car keys from the person of another against the person's will by the use of force or fear will support a conviction of robbery under chapter 9A.56 RCW. [23] Robbery Elements Intent To Commit Theft Taking and Use of Car Keys. For purposes of a charge of robbery under chapter 9A.56 RCW, a taking of car keys from the person of another and immediate use of the keys to take and drive the car away is sufficient to establish the element of intent to commit theft. [24] Criminal Law Trial Misconduct of Prosecutor Burden of Proof Test. A criminal defendant alleging prosecutorial misconduct has the burden of establishing that the prosecutor's conduct was both improper and prejudicial. [25] Criminal Law Trial Misconduct of Prosecutor Prejudice What Constitutes. Prosecutorial misconduct requires a new trial only if the misconduct was prejudicial to the defendant. Prosecutorial misconduct is prejudicial when, in context, there is a substantial likelihood that the misconduct affected the jury's verdict. The burden of proving prejudice is on the defendant claiming prosecutorial misconduct. [26] Criminal Law Trial Misconduct of Prosecutor Review Failure To Raise in Trial Court Effect. A criminal defendant's failure to object to alleged prosecutorial misconduct during trial constitutes a waiver of the objection unless the misconduct was so flagrant and ill-intentioned that no curative instruction would have obviated the resulting prejudice. The "flagrant and ill-intentioned" standard requires the same strong showing of prejudice as the test for manifest constitutional error under RAP 2.5(a). [27] Criminal Law Trial Misconduct of Prosecutor Discovery Violation Witness's Prior Conviction Proof Sufficiency. A claim of prosecutorial misconduct based on the allegation that the State failed to disclose the criminal record of a witness for the prosecution in violation of CrR 4.7 is not cognizable absent a sufficient record from which it can be concluded that the State engaged in misconduct or that any misconduct was prejudicial to the defense. Nature of Action: Prosecution for first degree robbery. Superior Court: The Superior Court for Spokane County, No. 06-1-01745-6, Kathleen M. O'Connor, J., on October 30, 2006, entered a judgment on a verdict of guilty. Court of Appeals: Holding that the trial court did not err by omitting the words "in the presence of" in the to-convict instruction given to the jury or by failing to define "theft" for the jury, and that the evidence was sufficient to support the conviction, the court affirms the judgment. Jordan B. McCabe-, for appellant. Steven J. Tucker-, Prosecuting Attorney, and Kevin M. Korsmo-, Deputy, for respondent. Ά1 KULIK, J. Eric Edward O'Donnell appeals his conviction for first degree robbery. Mr. O'Donnell contends the trial court erred by omitting the words "in the presence of" in the "to convict" jury instructions and by failing to define "theft." Mr. O'Donnell also contends there was insufficient evidence to prove robbery. The State proved that Mr. O'Donnell took car keys from Kimberly Taylor. Thus, the alternative means of committing robberytaking property in the presence ofwas unnecessary. "Theft" has been held to be of sufficient common understanding and meaning and, thus, does not require definition. Finally, sufficient evidence supports the conviction. Accordingly, we affirm. FACTS Ά2 Mr. O'Donnell was charged with first degree robbery by information, based on acts that occurred on March 7, 2006. Ά3 In the spring of 2006, Kimberly Taylor and Mr. O'Donnell took a trip to Oregon together. During the course of the trip, personal property belonging to Mr. O'Donnell ended up in Ms. Taylor's car. The property consisted of Mr. O'Donnell's personal effects and clothing. Ms. Taylor maintains that she was unable to return the property to Mr. O'Donnell after returning to Spokane. Ά4 On March 7, 2006, Mr. O'Donnell encountered Ms. Taylor outside the Sage Bar in Spokane. Ms. Taylor's car was parked behind the tavern in the Liberty Tire and Auto Service parking lot. When Ms. Taylor left the tavern to walk her dog, she was approached by Mr. O'Donnell. Ά5 Ms. Taylor testified that she and Mr. O'Donnell took a brief walk with her dog, but upon returning to her car, Mr. O'Donnell grabbed Ms. Taylor by the throat, pushed her up against the car, and stated: "this is how it was gonna be." Report of Proceedings (RP) at 40. Ms. Taylor assumed that Mr. O'Donnell was upset over the property. Ms. Taylor testified that while Mr. O'Donnell had one hand around her neck, he was grabbing for her car keys with the other. The keys were hooked to her belt loop. Ms. Taylor stated that she was scared and unable to breathe. Ms. Taylor unfastened her keys so that he would let go of her, fearing that if she did not give them to him "he'd probably kill me or rip my throat out." RP at 41. The choking left red marks and bruises on Ms. Taylor's neck. Photographs of the marks were taken by the police and were admitted into evidence. Ά6 Ms. Taylor said, "[h]e wanted the keys to my car and, pretty much, he took them from me." RP at 40. After getting the keys, Mr. O'Donnell tried to take the dog out of Ms. Taylor's arms but was unable to do so because Ms. Taylor resisted. Mr. O'Donnell then got in Ms. Taylor's vehicle and drove away. Ά7 Steven Liberty and Scott Box, employees of Liberty Tire, witnessed the incident and called the police. Mr. Liberty testified that he saw Mr. O'Donnell and Ms. Taylor yelling at each other, and saw Mr. O'Donnell holding Ms. Taylor by the neck. Mr. Liberty testified that after Mr. O'Donnell let go of Ms. Taylor, Mr. O'Donnell took the car. Mr. Liberty also testified that he saw fingerprints on Ms. Taylor's neck. Ά8 Detective Scott Anderson was assigned to investigate the incident. Detective Anderson visited two addresses listed for Mr. O'Donnell2700 and 2600 South Assembly. Ms. Taylor's carwith stolen license plates on itwas found one block from the 2700 South Assembly apartment complex. The detective made arrangements to have the vehicle towed. Thomas Tate, the tow truck driver, testified that when he arrived to tow the vehicle, a man he identified as Mr. O'Donnell approached him. Mr. Tate testified that Mr. O'Donnell had the keys to the car and took out two or three boxes of tools. Ά9 Procedural History. Mr. O'Donnell was charged with first degree robbery. The information alleged that first degree robbery occurred when Mr. O'Donnell "with the intent to commit theft, did unlawfully take and retain personal property, that the defendant did not own, from the person and in the presence of KIMBERLY L. TAYLOR, against such person's will, by use or threatened use of immediate force, violence or fear of injury to said person . . . and in the commission of and immediate flight therefrom, the defendant inflicted bodily injury upon KIMBERLY L. TAYLOR." Clerk's Papers (CP) at 1 (emphasis added). Ά10 Jury Instructions. The trial court instructed the jury on first degree robbery and the lesser crime of second degree robbery. Specifically, the court gave the following "to convict" instructions at issue: INSTRUCTION NO. 7 To convict the defendant of the crime of robbery in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about the 7th day of March, 2006, the defendant unlawfully took personal property from the person 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; (5) That in the commission of these acts the defendant inflicted bodily injury; and (6) That any of these acts occurred in the State of Washington. CP at 20. INSTRUCTION NO. 13 To convict the defendant of the crime of robbery in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about the 7th day of March, 2006, the defendant unlawfully took personal property from the person of another; (2) That the defendant intended to commit theft of the property; (3) That the taking was against that 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 or to prevent or overcome resistance to the taking; and (5) That any of these acts occurred in the State of Washington. CP at 26. Ά11 The defense did not object to these jury instructions. The jury made a written inquiry to the court, "requesting further clarification of the legal description of INTENT." CP at 30. The trial court's response instructed the jury to "[p]lease reread your instructions." CP at 30. ANALYSIS Ά12 To Convict Instruction. Mr. O'Donnell contends that the trial court erred by issuing defective "to convict" instructions to the jury and that these instructions were insufficient to support a conviction for first degree robbery. He argues the instructions were erroneous because they failed to include an essential element of the crime charged and because they included the additional element of "intent to commit theft." Ά18 Mr. O'Donnell assigns error to two of the trial court's jury instructions. Mr. O'Donnell contends that when the court failed to include the language "or in the presence of" in the "to convict" robbery instructions, the court omitted an essential element of the crime charged. Ά20 Additionally, a person is guilty of robbery in the first degree if: (a) In the commission of a robbery or of immediate flight therefrom, he or she: (i) Is armed with a deadly weapon; or (ii) Displays what appears to be a firearm or other deadly weapon; or (iii) Inflicts bodily injury. RCW 9A.56.200(1). Ά21 Washington's robbery statute clearly sets forth two ways to commit a taking of another's personal property. See RCW 9A.56.190. "The statute thus defines robbery to include two alternatives: taking from a victim's person or taking property in a victim's presence." State v. Chamroeum Nam, 136 Wn. App. 698, 705, 150 P.3d 617 (2007). Ά23 Mr. O'Donnell contends that the instruction here failed to identify all of the elements necessary for the jury to render a guilty verdict. But Mr. O'Donnell's argument is without merit. By omitting the in the "presence" language, the court did not omit an essential element of the crime of robbery. The court merely omitted one of the alternative means of committing the taking element. Id. Therefore, the trial court did not err by omitting language from the "to convict" instructions. Ά24 Next, Mr. O'Donnell contends that the "to convict" instruction included an extraneous element of "intent to commit theft." Mr. O'Donnell points out that while the State had to prove the additional "intent to commit theft" element, the instructions fail to define the term "theft." He contends that without the essential elements of theft, the instructions cannot support his conviction. Ά27 A term is considered technical when its legal definition differs from the common understanding of the word. Olmedo, 112 Wn. App. at 534. Whether a term is considered technical is left to the trial court's discretion. Id. Significantly here, "theft" has specifically been held to be a "term of sufficient common understanding to allow the jury to convict of robbery." State v. Ng, 110 Wn.2d 32, 44, 750 P.2d 632 (1988). Ά28 Moreover, even if the trial court erred by failing to define "theft," Mr. O'Donnell may not challenge the jury instruction on appeal because failure to provide a definition is not an issue of constitutional magnitude. Id. Ά31 However, Mr. O'Donnell confuses the issues. The State carried the burden of proving beyond a reasonable doubt that Mr. O'Donnell took personal property from Ms. Taylor and the record contains sufficient evidence to support this. Ms. Taylor testified that Mr. O'Donnell took personal propertyher car keysfrom her person. The testimony satisfies the State's burden where the jury instruction required the jury to find that Mr. O'Donnell unlawfully took personal property from the person of another. The fact that the keys are of little monetary value is irrelevant, as the robbery statute makes no mention of such requirement. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW Ά33 In his statement of additional grounds for review, Mr. O'Donnell contends that because the prosecution failed to disclose evidence favorable to his case, he was deprived of due process. He alleges that the State failed to disclose information to him prior to trial that he may have used to impeach the State's witness. Specifically, the impeachment evidence he refers to is a Utah conviction of the complaining witness, Ms. Taylor. During trial, Ms. Taylor testified as follows: [Prosecuting Attorney]: Ms. Taylor, do you have a prior conviction out of the state of Utah? A. Yes, I do. [Prosecuting Attorney]: Can you describe what that is, please. A. What the charges are? [Prosecuting Attorney]: Yes. A. It's racketeering, money laundering, pimping and pandering, and having a whore house. [Prosecuting Attorney]: How long ago was that? A. A couple years ago, maybe three. RP at 35. Ά34 Mr. O'Donnell asserts that both CrR 4.7(a)(1)(vi) and CrR 4.7(a)(4) require the prosecuting attorney to disclose to defense counsel any record or prior criminal convictions within the knowledge, possession, or control of the prosecuting attorney of any person whom the prosecuting attorney intends to call as a witness. Mr. O'Donnell alleges that when the prosecuting attorney elected to keep this information from defense counsel until the day of trial, he engaged in misconduct and violated the rules of criminal discovery. Arguing that this kind of error cannot be harmless, Mr. O'Donnell seeks a new trial. Ά38 Addressing CrR 4.7, the court in Copeland stated: "It is the long settled policy in this state to construe the rules of criminal discovery liberally in order to serve the purposes underlying CrR 4.7, which are to provide adequate information for informed pleas, expedite trial, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process." State v. Copeland, 89 Wn. App. 492, 497, 949 P.2d 458 (1998) (internal quotation marks omitted) (quoting State v. Dunivin, 65 Wn. App. 728, 733, 829 P.2d 799 (1992)). Ά39 Mr. O'Donnell fails to establish prosecutorial misconduct. There is no evidence in the record establishing when Mr. O'Donnell's counsel received the information regarding Ms. Taylor's Utah conviction. However, the record indicates that Mr. O'Donnell's counsel interviewed Ms. Taylor in August 2006. During this interview, defense counsel discussed issues related to Ms. Taylor's criminal record. Ά40 Defense counsel made no mention in the record of receiving any information on the day of trial or in any way indicated that the Utah conviction was a surprise. When meeting with the judge before jury selection, counsel for both parties discussed ER 609 material regarding the defendant, Mr. O'Donnell, and the victim, Ms. Taylor. When discussing Ms. Taylor's criminal history and the Utah conviction, defense counsel did not make any statement suggesting there may have been prosecutorial misconduct. Ά41 Even assuming the prosecutor engaged in misconduct, Mr. O'Donnell has failed to demonstrate "flagrant and ill-intentioned" misconduct or prejudice. During trial, both the prosecution and the defense counsel asked Ms. Taylor about the Utah conviction. On direct examination, the prosecution directly asked Ms. Taylor about the conviction six questions into her testimony. Under these facts, Mr. O'Donnell's claim of prosecutorial misconduct is without merit. Ά42 We affirm Mr. O'Donnell's conviction for first degree robbery. BROWN and STEPHENS, JJ., concur.