IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON STATE OFWASHINGTON, ] No. 74027-0-1 Respondent, ] DIVISION ONE

V. BRIAN MICHAEL JERUE, ] UNPUBLISHED 0 Appellant. > FILED: November 14, 2016 

### Cox, J. — Brian Michael Jerue appeals his jury conviction ofrobbery in 

### the second degree. He argues that insufficient evidence supports his conviction because the State failed to prove that he used or threatened to use force when 

### stealing liquor from a store. He also contends thatthe trial court violated his constitutional right to confrontation by precluding him from cross-examining a witness about his violation ofcompany policy prohibiting physical confrontation. We hold thatthere is sufficientevidence to supportJerue's conviction. We also 

### hold that the trial court properly exercised its discretion by excluding irrelevant evidence ofthe witness's actions. We affirm. 

### OnApril 15, 2015, Mitchell Irons was working as a loss preventionofficer at a Safeway store inMarysville. That night he observed a man, who was later identified as Brian Jerue, enterthe store, walk to the liquor aisle, and take two 

### bottles ofwhiskey. Irons watched the man walk out of the store without paying for the bottles. Irons was abouttwenty feet away when he followed Jerue out of 

### the store through the south exit. When they were both outside, Irons confronted Jerue. He put both of his hands on the back ofJerue's shoulders, identified

1No. 74027-0-1/2 

### himselfas a loss prevention officerand "swung himaround." Irons' employer has
a company policy against physical contactwiththose being apprehended. Jerue and Irons engaged in a physical confrontation that resulted inboth 

### ofthem ending up on the ground. Irons broughtJerue back inside the store, keeping his hand on Jerue's leftshoulder. Atleast one ofthe two whiskey bottles had been leftoutside the store. Once inside, however, Jerue unzipped his jacket, slipping out of itand out of Irons' grasp. He ran through the store and out through the north exit. Irons followed him backto the south exit, where Jerue 

### grabbled the smallerwhiskey bottle and started running through the parking lot. Irons chased after him untilthe pair reached the southeastcornerofthe parking lot. Atthat point Jerue turned around and raised the whiskey bottle over his head. He yelled at Irons, asking ifIrons had ever been hitoverthe head with a bottle. Jerue also stated that he was a convicted felon and he wasn't afraid to hit Irons with the whiskey bottle. Irons was scared that Jerue would hit him with the bottle if he continued to pursue him. He backed away and watched Jerue run out ofthe parking lot toward the street. Irons called 911 and provided the dispatcherwith a description ofJerue. 

### Police located Jerue walking nearby and apprehended him. Theyfound a bottle ofwhiskey in his possession that stillhad the Safeway securitytag on it.No. 74027-0-1/3
Jerue was charged with one count ofsecond degree robbery and one count of third degree assault. Before trial, the State moved to exclude evidence that Irons violated his employer's company policy when he used physical contact to apprehend Jerue. The defense opposed the motion. It did so on the theory that Irons lied or exaggerated events when he told police that Jerue threatened him because he did not wantto get introuble for his own aggressive actions. The trial court concluded Irons' violation ofemployee policy was not relevant because Irons never denied it. The courtwas willing to allow Jerue to revisitthe issue depending on the results of Irons' defense interview. The next day, Jerue argued that Irons admitted during his interview 

### violating policy at least 5 to 10 times when trying to apprehend shoplifters, due to excitement and adrenaline. The trial court concluded that while Irons' prior 

### incidents ofaggressive contact could be analyzed under ER 404 as character evidence, the violation of policy had no relevance. 

### Thejury found Jerue guilty on both charges. However, on double jeopardy grounds, the court sentenced Jerue solely on the conviction for second degree robbery. The trialcourt also found him to be indigent and appointed an attorney for this appeal. Jerue appeals. EVIDENCE OF USE OR THREATENED USE OF FORCE 

### Jerue firstargues thatthe evidence was insufficient to prove that he "used
or threatened to use force orviolence in committing the theft." We disagree.No. 74027-0-1/4


### Due process requires the State to prove all necessary facts ofthe crime 

### charged beyond a reasonable doubt.1 The testfor determining the sufficiency of the evidence is whether, afterviewing the evidence inthe lightmostfavorable to the State, any rational trier of fact could have found guiltbeyond a reasonable 

### doubt.2 Upon reviewing a criminalcase, allreasonable inferences from the evidence must be drawn in favor ofthe State and interpreted most strongly 

### againstthe defendant.3 Direct and circumstantial evidence are equally reliable; however "inferences based on circumstantial evidence must be reasonable and 

### cannot be based on speculation."4 Robbery encompasses any "taking of.
. . property [that is] attended with such circumstances ofterror, or such threatening by menace, word or gesture as in common experience is likely to create an apprehension ofdanger and induce a 

### man to part withpropertyfor the safety of his person."5 Second degree robbery requires that the accused take personal property "from the person of another or 

### in his or her presence against his or herwill by the use or threatened use of 

### immediateforce, violence, or fear ofinjurytothat person."6 We use an objective test to determine whether "the defendant used intimidation" and "an ordinary

1State v. Colquitt. 133 Wn. App. 789, 796, 137 P.3d 892 (2006). 2State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). 3ld, 4State v. Vasauez. 178Wn.2d 1, 16, 309 P.3d 318 (2013). 5State v. Witherspoon. 180 Wn.2d 875, 884, 329 P.3d 888 (2014). 6RCW9A.56.190.No. 74027-0-1/5
person inthe victim's position could reasonably infer a threat of bodily harm from the defendant's acts."7 

### RCW 9A.04.110(28) defines "threat" as itapplies to robbery offenses. Underthe statute, to "'[t]hreat[en]' means to communicate, directly or indirectly 

### the intent" to takethe applicable action.8 In the robbery context, therefore, the "threatened use of immediate force, violence, orfear of injury" means a direct or indirect communication ofthe intentto use immediate force, violence, or cause 

### injury.9 Athreat need not be explicit to qualify but may be implied by words or conduct.10 Here, it is undisputed that Jerue raised the bottle over his head and indicated that he "wasn't scared" to hit Irons in the head with it. Irons testified 

### that he was afraid and that he "[absolutely" felt likehe would get hit if he continued to approach Jerue. An ordinary person in his position would likewise 

### reasonably infer that Jerue threatened to use force. Inaddition, Jerue's statements that he was "not afraid to do it," and that he did not care aboutthe 

### consequences, because of his prior conviction, reinforced the seriousness of his threat. 

### Jerue argues that insufficientevidence supports thefindingthat he used
or threatened to use force, violence, or the fear of injury to obtain the liquor. 

### According to Jerue, there was no threat ofviolence or injury to Irons when he

7Witherspoon. 180 Wn.2d at 884. 8RCW 9A.04.110(28). 9State v. Shcherenkov. 146Wn. App. 619, 624, 191 P.3d 99 (2008). 10 State v. Farnsworth. 185 Wn.2d 768, 771, 374 P.3d 1152(2016).No. 74027-0-1/6
asked whether Irons had "ever been hit over the head with a bottle." In view of 

### the undisputed evidence we justdiscussed, this argument is untenable. 

### Jerue argues that raising the bottle and asking Irons if he had everbeen hit with a bottle before was not an implied threat because "he did not lunge 

### toward him or otherwise act as ifhe were going to hit him." This is unpersuasive. 

### The classic example of a legitimate impliedthreat is brandishing a 

### weapon.11 Here, Jerue brandished the bottle overhis head and implied his intent to use it to hitIrons ifhe continued his pursuit. WhetherJerue refrained from 

### making additional physical advances toward Irons is of no consequence. "Any
... threat, no matterhow slight, which induces an ownerto part with his property is 

### sufficient to sustain a robbery conviction."12 Viewed inthe light most favorable to the State, the evidence was sufficientto supportthejury's finding thatJerue 

### obtained store property through the use of orthreatened use of "immediate force, violence, orfear of injury." RIGHT TO CONFRONTATION 

### Jerue nextargues that the trial court violated his right to confrontation by excluding from his cross-examination of Irons the latter's violation ofcompany 

### policy regarding physical contactwith those being apprehended. We hold there
was no violation of his right to confrontation.

11 Shcherenkov, 146 Wn. App. at 626 (citing State v. Demerv. 144 Wn.2d 753, 755, 30 P.3d 1278(2001)). 12 State v. Handburqh. 119 Wn.2d 284, 293, 830 P.2d 641 (1992).No. 74027-0-1/7 

### We review de novo constitutional claims, as questions oflaw.13 A 

### defendant has a constitutional right to presenttestimony in his defense and to 

### confront and cross-examine adverse witnesses.14 However, "the right to crossexamine adverse witnesses is not absolute."15 

### The confrontation rightand associated cross-examination are limited by general considerations of relevance.16 Relevant evidence is evidence that has "anytendency to make the existence ofany factthat is ofconsequence to the determination ofthe action more probable or less probable than itwould be without the evidence."17 Relevant evidence is admissible unless otherwise 

### prohibited; a defendantdoes not have a constitutional right to present irrelevant evidence.18 

### Generally, evidence of bias is relevantto a witness's credibility.19 Where a case stands orfalls on thejury's beliefordisbeliefofessentially one witness, that 

### witness' credibility or motive must be subjectto close scrutiny.20 Jerue argues that the evidence was at least minimally relevantto Iron's possible bias and motive to lie. He contends that Irons' credibility was central to the case because he was the only witness. According to Jerue, thejury was

13 State v. Jones. 168 Wn.2d 713, 719, 230 P.3d 576 (2010). 14Washington v. Texas. 388 U.S. 14, 19, 23, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967), accord State v. Hudlow. 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983). 15 State v. Darden. 145 Wn.2d 612, 620, 41 P.3d 1189(2002). 16Jd at 621 (citing ER 401. 403: Hudlow. 99 Wn.2d at 15). 17ER401. 18 ER 402; Hudlow. 99 Wn.2d at 15. 19 State v. Lubers. 81 Wn. App. 614, 623, 915 P.2d 1157(1996). 20 State v. Wilder. 4 Wn. App. 850, 854, 486 P.2d 319 (1971); State v. Peterson. 2 Wn. App. 464, 466-67, 469 P.2d 980 (1970); State v. Tate. 2 Wn. App. 241, 247, 469 P.2d 999 (1970). See also State v. Wilson. 70 Wn.2d 638, 642-43, 424 P.2d 650 (1967).No. 74027-0-1/8 

### entitled to considerwhether Irons had exaggerated Jerue's use of force to justify his own aggressive actions and mitigate any consequences of violating his employer's policy. The central question is whetherJerue used or threatened to use force, 

### violence, or injury to person in his commission ofthe offense. Irons' admitted 

### violation ofcompany policy is not relevantto this question. This is particularly true because Jerue does not argue that he acted in self-defense.21 We also note that Irons admitted to violating the policy and the store 

### managerwitnessed the violation when she saw him "tackle" Jerue. So, thejury
was aware ofthis information when deciding this case. Finally, Jerue had otheropportunities to cross-examine Irons and raise questions about his credibility. Forexample, Jerue's attorney questioned Irons about his failure to mention Jerue's threat to the 911 dispatcher as well as other discrepancies in Irons' testimony regarding the incident. There was no violation ofJerue's right to confrontation. APPELLATE COSTS Jerue argues that no costs should be imposed because the trial court found him to be indigent. We agree. 

### InState v. Sinclair.22this court recently determined that RAP 15.2(f) created a presumption ofcontinued indigency throughout review. Unless a trial

21 The State correctly points out self-defense is not available as a defense to robbery (State v. Lewis, 156 Wn. App. 230, 239, 233 P.3d 891 (2010), and thatJerue could have asserted self-defense as to the assault charge, but he chose notto. 22192 Wn. App. 380, 393, 367 P.3d 612 (2016). 8No. 74027-0-1/9


### courtfinds that an indigent defendant's financial condition has improved, we 

### presumethatthe defendant continues to be indigent.23 Here, the trial court imposed onlywhat itdeemed to be mandatory legal financial obligations, finding that Jerue was "absolutely buried underfinancial obligations given his criminal history." The trial courtalso entered an Orderof Indigency authorizing Jerue to seek review at public expense. 

### On this record, there is a presumption ofcontinued indigency thatthe State has failed to overcome. The State argues that "[tjhere is no reason inthe record to presume [Jerue] will be unable to obtain employmentwhen released" based on his age and his sentence length of 38 months. Jerue's financial declaration, however, shows that he was unemployed and receiving public assistance, with no financial assets and liabilities of around $10,000. We therefore exercise ourdiscretion to deny appellate costs to the State. We affirm thejudgment and sentence. No appellate costs shall be awarded to the State. 

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WE CONCUR:



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23 Id.