2015 APR 27 ArilO:M*

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON STATE OFWASHINGTON, Respondent,

v. LEONARD WHITFIELD BURGESS Appellant. No. 70903-8-1 DIVISION ONE UNPUBLISHED OPINION FILED: April27, 2015 

### Leach, J. — Leonard Burgess appeals his convictionfor robbery inthefirst degree. He argues that because he did not use force in his initialtaking of a cell phone, the Statefailed to prove an essential elementofthe 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 thejury'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. Atthatpoint, Burgess ran awaywiththe phone. Sarkowskychased him. Burgess ran from the parking lot onto a street and ended up in the backyard of a house occupied by Maria Litvinenko. Sarkowskyfollowed 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 Sarkowskysustained slash wounds on his fingerand chest. 

### Awakened bythe scuffle, Litvinenko came outonto herporch and sawthe 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. Sarkowskywaited 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 eitherthe cell phone or a knife, and officers did not 

### find either item during their search. Sarkowsky identified Burgess as the man

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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. Theyfound itbetween the tire of a car and the curb on the street north ofLitvinenko's home. 

### The State charged Burgess with robbery inthe first degree with a deadly weapon enhancement. The trial court rejected the defense's proposed jury instruction on the lesser included offense oftheft inthe 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 beliefinthetruth ofthe charge." Thejury convicted Burgess of robbery inthe first degree but did not find thathe was armed with a deadlyweapon. Burgess appeals. Analysis First, Burgess contends thathis conviction violated his due process rights becausethe Statefailed to prove an essential elementofthe crime as charged: thathis taking ofSarkowsky's cell phone was by the use orthethreatofforce. 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 ofthe 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 ofthe court's instructions, may reduce the possibility thatthejury misconstrued its instructions.5 When reviewing a challenge to the sufficiency of the evidence, we view the evidence inthe light most favorable to the prosecution and ask whether any rational trier offact could have found the essential elements ofthe 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

2State v. Borsheim, 140Wn. App. 357, 366, 165 P.3d417 (2007) (internal quotation marks omitted) (quoting State v. Watkins, 136Wn. App. 240, 241, 148 P.3d 1112 (2006)). 

### 3State v. Witherspoon, 180 Wn.2d 875, 884, 329 P.3d 888 (2014) (citing Statev. Willis. 153Wn.2d 366, 374, 103 P.3d 1213 (2005)). 4Witherspoon, 180Wn.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 thatjury had to find separate and distinct actsfor each ofthe guilty verdicts). 6Statev. Hosier. 157Wn.2d 1, 8, 133 P.3d 936 (2006). 7 Hosier. 157Wn.2dat8. 8State v. Salinas, 119Wn.2d 192, 201, 829 P.2d 1068 (1992). 9Statev. Camarillo, 115Wn.2d 60, 71, 794 P.2d 850 (1990).

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### 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 inthefirst 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 ofanother; (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 fearof injury to thatperson; (4) Thatforce or fearwas used by the defendantto obtain or retain possession ofthe propertyto preventor overcome resistance to thetaking; (5) (a) That inthe commission ofthese acts or in immediate flighttherefrom the defendantwas armed with a deadlyweapon or (b) That in the commission of these acts or in immediate flight therefrom the defendantinflicted 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 ofrobbery: 

### 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 ofthe property, or 

### to prevent or overcome resistance to the taking; in either of which 

### casesthe degree of force isimmaterial.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 itappearsthat, although the taking was fully completed without the knowledge of the person from whom taken, such knowledgewas prevented bythe 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 provethe third elementofthe to-convict instruction: that "the taking was againstthe person's will by the defendant's use
or threatened use ofimmediateforce, violence orfearof 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 mustbe accomplished by force, extends to obtaining and to retaining possession ofanotherperson's property as well as to preventing orovercoming resistance to thetaking. 

### 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 nottake 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 resistanceto the taking was sufficientto supporta convictionfor robbery. The courtheld that "theforce necessaryto supporta robbery conviction need not

12 State v. Handburqh. 119Wn.2d 284, 290, 830 P.2d 641 (1992) (quoting Statev. Manchester, 57 Wn. App. 765, 770, 790 P.2d 217 (1990)). 13 119Wn.2d 284, 285-86, 830 P.2d 641 (1992). 14Handburqh, 119 Wn.2d at 287.

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### be used inthe initialacquisition ofthe property. Rather, the retention, via force against the property owner, of property initiallytaken peaceably or outside the 

### presence ofthe 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 findthat 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 eitherby forcibly acquiring the propertyfrom 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 ofproving 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 ofSarkowsky's property. 

### Next, Burgess contends thatthe trial court erred by rejecting his proposed instruction on the lesser included offense oftheft inthe third degree. He argues

15Handburqh, 119Wn.2d at293. 

### 16Handburqh. 119 Wn.2d at288 (citingManchester, 57 Wn. App. at 769).No. 70903-8-1 / 8
that "affirmative evidence showed Mr. Burgess no longer had the stolen phone when force orfear was used." Adefendant "maybefound guilty ofan offensethe commission ofwhich is necessarily included within thatwith which he or she is charged inthe indictment


### or information."17 We review de novo a challenge to jury instructions based on an error of law.18 Butwhere the trial court rejects an instruction based on the facts ofthe case, we reviewthe court's decision for abuse ofdiscretion.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 inthe 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 lightmost favorable to the partyrequesting the instruction.22 But the evidence "must affirmatively establish the defendant's theory ofthe case—it 

### is notenoughthat the jury mightdisbelievethe evidencepointing toguilt."23

17RCW 10.61.006. 18 State v. Clausing, 147Wn.2d 620, 626-27, 56 P.3d 550 (2002); Statev. Hunter, 152Wn. App. 30, 43, 216 P.3d 421 (2009). 

### 19 Hunter. 152Wn. App. at43. 20 State v. Huven Bich Nguyen, 165Wn.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 at455-56. 23Fernandez-Medina. 141 Wn.2d at456.
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### Here, the parties agree that theft is necessarily included in the crime of robbery, satisfying the legal prong ofthe 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 inwhich he and Mr. Sarkowskyscuffled." We disagree. The evidence supports exactlythe 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 himdrop the phone during the chase. Sarkowskyalsotestified thatwhen he asked Burgess why he wanted the phone, Burgess said he wanted it for money. Sarkowsky stated that Burgess told him to "back off' butdid nottell 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 Sarkowskyto 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 argumentthatthejury'sjob was to "'speakthe truth'" mischaracterized thejury's 

### role. Burgess argues, "The 'beliefinthe truth' language encourages thejury to undertake an impermissible search for the truth and invites the error identified in Emery." 

### InStatev. Federov,26however, 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 thejury 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 thejury its '"job is to determine whetherthe 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 belieflanguage. 

### 25 174Wn.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. at200 (quoting Emery, 174 Wn.2d at 760).
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### stated the law, and the trial court did not err in rejecting Burgess's proposed instruction that would have omitted the "abiding belieflanguage. 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 couldfind Burgess committed the crime "whenin the commission of a robbery or in immediate flight therefrom he or she is armed with a deadly weapon or inflicts bodilyinjury." The court's verdict form did not require thatthejury specify underwhich 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 referenceto RCW 9A.56.200(1)(a)(iii),the bodily injuryalternative. 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 contendsthat "the error [Burgess] complains of is not an error," it"does not objectto remand to correctthis omission." We remand to the trial courtwith 

### instructions to correct the judgment and sentence by adding RCW 9A.56.200(1)(a)(iii), the second alternative means of conviction forrobbery inthe 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 

### 28Statev. Moten. 95 Wn. App. 927, 929, 934-35, 976 P.2d 1286 (1999).

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### 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 ofconvictionfor robbery inthefirst degree.


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WE CONCUR: 

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