### FILED JUNE 2,2015 In the Office ofthe ClerkofCourt WA StateCourtofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 31857-5-111 ) Respondent, ) ) UNPUBLISHED OPINION 

### v. ) ) THOMAS L.PARKER, ) ) Appellant. ) BROWN,A.C.J.

- Thomas L. Parker appeals his 2013 Franklin County second degree robbery conviction. He contends: (1) the information omitted an essential element ofthe offense ofsecond degree robbery, thathe used orthreatenedto use force to retain the stolenitems, (2) the trial court shouldhave instructedthejury onthe lesser included offense ofthird degree theft, and (3) the trial court erred by including twopriorArkansas convictions inhis offender score. In his pro se statement ofadditional grounds for review, he asserts thathe had ineffective assistance oftrial and appellate counsel. We affrrm hisjudgmentand sentence.No. 

### 31857-5-111 State 

### v. Parker FACTS The charge here arose in November 

### 2012, when a Rite Aid employee-Zachariah**Briggs~saw** Mr. Parkertake two bottles oftequila offthe store shelfand secrete them in his pants. AfterMr. Parker leftthe store without paying (setting offthe alarm), Mr. Briggs approached, and Mr. Parker immediately lowered his head and rammed his shoulder into him. AnotherRite Aid employee witnessed Mr. Briggs struggling to subdue 

### Mr. Parker and went to help. At this point, Mr. Parkerthrew the bottles oftequila on the ground and hit Mr. Briggs in the face. TheRite Aid employees eventually subdued Mr. Parker and callyd police. The State chargedMr. Parker with one count ofsecond degree robbery, alleging: That the said Thomas L. Parker in the County ofFranklin, State of Washington, on or about November 

### 27,2012, then and there, with intentto deprive the owner ofproperty, did unlawfully take suchpersonal property, to wit: two bottles oftequila which belonged to aperson otherthan the accused, in the presence ofZak N. Briggs, against such person's will by use orthreatened use ofimmediate force, violence, or fear ofinjury to the person. Clerk's Papers (CP) at 132. Thejury found him guilty as charged. At sentencing, the State recommended an offender score ofsix, including three priorArkansas convictions ofresidential burglary, theft ofproperty, and theftby receiving, two Washington convictions ofresidential burglary and second degree burglary, and one additional point for committing the current crime while on community 2No. 31857-5-III State v. Parker custody (RCW 9.94A.525). The standardrange with an offender score of6 is 33 to 43 months. RCW9.94A.510; RCW 9.94A.515; RCW 9A.56.210. Finding that "[r]ecent changes in the theft statute result[] in an offender score that does not reflectthe legislature's intent," the trial court imposed an exceptional sentence downward of29 months. CP at 23. A. Sufficiency ofthe Information Mr. Parker first contends the information was deficient because it did not include a necessary element-use offorce toretain theproperty--or specific facts alleging that he used force toretain theproperty. He claims that the failure to describe the specific conduct constituting the crime was legally and factually deficient. A charging document mustcontain all the essential elements ofa crime to inform a defendant ofthe charge and to allow preparation for a defense. State v. KWonaGarramone, 166 Wn. App. 16,22,267 P.3d 426 (2011), review denied, 174 Wn.2d 1014 (2012). To determine the essential elements ofacharged crime, we look to the statutory language and construe it to avoid an absurd result. Id. (citing State v. Tinker, 155 Wn.2d 219,221, 118 P.3d 885 (2005); andState v. Engel, 166 Wn.2d 572,578,210 P.3d 1007 (2009)). The standard ofreview for a challenge ofthe criminal information depends on the timing ofthe challenge. KWona-Garramone, 166 Wn. App. at 23. Ifthe defendant 3No. 31857-5-III State v. Parker challenged the sufficiency ofthe infonnation before or at trial,. we construe the infonnation strictly. State v. Vangerpen, 125 Wn.2d 782, 788, 888 P.2d 1177 (1995). "If, however, a defendant moves to dismiss an allegedly insufficient charging document after

apoint when the State can no longer amend the infonnation, such as when the State has rested its**case,'~** the infonnation is construed liberally in favor ofvalidity. KilionaGarramone, 166 Wn. App. at 23. Because Mr. Parker did not challenge the sufficiency ofthe infonnation until after the State rested its case, we liberally construe the language ofthe charging document in favor ofvalidity. Id. Under this standard, we detennine whether the necessary facts appear in any fonn or fair construction ofthe language in the charging document, and if so, whether Mr. Parker can show that he was nonetheless actually prejudiced by a lack of notice. State v. Kjorsvik, 117 Wn.2d 93, 105-06, 812 P.2d 86 (1991); KilionaGarramone, 166 Wn. App. at 25. Here, the infonnation alleged Mr. Parker "with intent to deprive the owner of property, did unlawfully take such personal property, to wit: two bottles oftequila" in the presence ofMr: Briggs, and against suchperson's will by use or threatened use offorce. CP at 132. The essential elements ofrobbery are defined in RCW 9A.56.l90, partly stating a person commits robbery "whenhe or she unlawfully takes personal property from the person ofanother or in his or herpresence against his or her will by the use or 4No.3l857-5-III State v. Parker threatened use ofimmediate force." This force or fear "mustbe used to obtain or retain possession ofthe property, or to prevent orovercome resistance to the taking." RCW 9A.56.l90. The language ofthe information closely tracks the statutory language and specifically names the personal property taken (two bottles oftequila), as well as the person who was present at the taking and against whom force was used to take and retain the tequila (Mr. Briggs). Consequently, the necessary facts are included and gave Mr. Parker ample notice ofthe charge against him. B. Lesser Included Offense Mr. Parker next contends the trial court erred in denying his motion for ajury instruction on third degree theft as a lesser included offense ofsecond degree robbery. A defendant is entitled to a lesser included offense instruction when: (1) each element ofthe lesser offense is a necessary element ofthe charged offense, and (2) the evidence supports

an inference that the lesser offense was actually committed. State v. Henderson,

_ Wn.2d_,344P.3d 1207, 1211 (2015) (citing State v. Workman, 90 Wn.2d 443,447-48, 584 P.2d 382 (1978)). Both Mr. Parker and the State agree the elements ofthird degree theft-wrongfully obtaining or exerting unauthorized control over the property ofanother with intentto deprive-arenecessary elements ofsecond degree robbery. RCW 9A.56.020, .050, .190, .210. The issue then is whetherthe evidence supports an inference that only third degree 5No. 31857-5-III State 

### v. Parker theft was committed. We review the trial court's decision for abuse ofdiscretion. Henderson, 344 PJd at 1212. Here, the evidence does not support an inference that only third degree theft occurred. Robbery involves the unlawful taking orretaining ofproperty with the use of force or fear. State v. Handburgh, 119 Wn.2d 284, 293, 830 P.2d 641 (1992). Mr. Parker admitted a struggle occurred here, testifying that the Rite Aid employees grabbed him for

no reason. Accordingly, his own testimony established he used force, and does not support an inference that he committed solely theft. C. Ineffective Assistance ofCounsel The evidence offorce shows Mr. Parker's claim ofineffective assistance of counsel lacks merit. To prove ineffective assistance ofcounsel, an appellant must show his attorney's performance fell below an objective standard ofreasonableness andthis deficiency prejudicedthe defense. Stricklandv. Washington, 466 U.S. 668,687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Mr. Parker contends his counsel should have moved at trial to dismiss the charge (erroneously referred to as "2nd degree assault" (statement ofadditional grounds for review at 1)), and should have sought dismissal on appeal on the basis thatthe evidence does not show that he used or threatened the use of force when taking the tequila. Becausethese challenges would not have been successful



### 6No. 31857-5-III State v. Parker at trial or on appeal, he cannot showprejudice to support a claim ofineffective assistance ofcounsel. D. Offender Score Mr. Parker assigns error to the trial court's inclusion oftwo prior Arkansas convictions in his offender score of6. He contends the 2005 Arkansas convictions of residential burglary and theft ofproperty are not legally comparable to Washington offenses and should have been excluded under RCW 9.94A.525(3). The State asserts this issue is moot because Mr. Parkerhas completedhis confinement in Washington and is currently serving a sentence in an Arkansas prison. We agree. An issue is moot ifthis court can no longerprovide the requested relief. State v. Ross, 152 Wn.2d 220,228,95 P.3d 1225 (2004). We may still decide an issue, however, ifit involves matters ofcontinuing and substantialpublic interest. State v. Hunley, 175 Wn.2d 901,907,287 P.3d 584 (2012). The remedy for an incorrect offender score is to remand to the superior court for resentencing with the correct score. State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003). This resentencing may result in less confinement. See Ross, 152 Wn.2d at 228. Even ifMr. Parkerreturns to Washington to serve his term ofcommunity custody, and

even ifhereceives a reduced sentence due to a remand for correction ofthe offender score, any excess time he served in prison cannotbe credited toward his sentence of 7No. 31857-5-111 State v. Parker community custody. See State v. Jones, 172 Wn.2d 236,242-43,257 PJd 616 (2011). And he does not show that this issue involves matters ofcontinuing and substantial public interestjustifying a decision. Thus, becausethis court can no longer provide him effective relief, we find that the challenge ofhis offender score is moot. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

Brown, A.C.J. WE CONCUR:

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