FILED 


JUNE 2,2015 


In the Office of the Clerk of Court 


WA State Court of Appeals, 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) UNPUBLISHED OPINION 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, that he used or threatened to use force to retain 

the stolen items, (2) the trial court should have instructed the jury on the lesser included 

offense ofthird degree theft, and (3) the trial court erred by including two prior Arkansas 

convictions in his offender score. In his pro se statement of additional grounds for 

review, he asserts that he had ineffective assistance oftrial and appellate counsel. We 

affrrm his judgment and 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. Parker take two bottles of tequila off the store shelf and secrete them in 

his pants. After Mr. Parker left the store without paying (setting off the alarm), Mr. 

Briggs approached, and Mr. Parker immediately lowered his head and rammed his 

shoulder into him. Another Rite Aid employee witnessed Mr. Briggs struggling to subdue 

Mr. Parker and went to help. At this point, Mr. Parker threw the bottles of tequila on the 

ground and hit Mr. Briggs in the face. The Rite Aid employees eventually subdued Mr. 

Parker and callyd police. 

The State charged Mr. Parker with one count of second degree robbery, alleging: 

That the said Thomas L. Parker in the County of Franklin, State of 

Washington, on or about November 27,2012, then and there, with intent to 

deprive the owner of property, did unlawfully take such personal property, 

to wit: two bottles of tequila which belonged to a person other than the 

accused, in the presence of Zak N. Briggs, against such person's will by use 

or threatened use of immediate force, violence, or fear of injury to the 

person. 

Clerk's Papers (CP) at 132. The jury found him guilty as charged. 

At sentencing, the State recommended an offender score of six, including three 

prior Arkansas convictions of residential burglary, theft of property, and theft by 

receiving, two Washington convictions of residential burglary and second degree 

burglary, and one additional point for committing the current crime while on community 

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No. 31857-5-III 

State v. Parker 

custody (RCW 9.94A.525). The standard range with an offender score of6 is 33 to 43 

months. RCW 9.94A.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 reflect the 

legislature's intent," the trial court imposed an exceptional sentence downward of29 

months. CP at 23. 

A. Sufficiency of the Information 

Mr. Parker first contends the information was deficient because it did not include a 

necessary element-use of force to retain the property--or specific facts alleging that he 

used force to retain the property. He claims that the failure to describe the specific 

conduct constituting the crime was legally and factually deficient. 

A charging document must contain all the essential elements of a crime to inform a 

defendant of the 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 ofa charged 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); and State v. Engel, 166 Wn.2d 572,578,210 P.3d 1007 

(2009)). 

The standard of review for a challenge of the criminal information depends on the 

timing of the challenge. KWona-Garramone, 166 Wn. App. at 23. If the defendant 

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No. 31857-5-III 

State v. Parker 

challenged the sufficiency of the 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 

a point 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 of validity. KilionaGarramone, 166 Wn. App. at 23. 

Because Mr. Parker did not challenge the sufficiency of the infonnation until after 

the State rested its case, we liberally construe the language of the charging document in 

favor of validity. Id. Under this standard, we detennine whether the necessary facts 

appear in any fonn or fair construction of the 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 of tequila" in the 

presence ofMr: Briggs, and against such person's will by use or threatened use of force. 

CP at 132. The essential elements of robbery are defined in RCW 9A.56.l90, partly 

stating 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 

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No.3l857-5-III 

State v. Parker 

threatened use of immediate force." This force or fear "must be used to obtain or retain 

possession of the property, or to prevent or overcome resistance to the taking." RCW 

9A.56.l90. The language of the information closely tracks the statutory language and 

specifically names the personal property taken (two bottles of tequila), 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 of the charge against him. 

B. Lesser Included Offense 

Mr. Parker next contends the trial court erred in denying his motion for a jury 

instruction on third degree theft as a lesser included offense of second degree robbery. A 

defendant is entitled to a lesser included offense instruction when: (1) each element of the 

lesser offense is a necessary element of the charged offense, and (2) the evidence supports 

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

Wn.2d _,344 P.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 of third degree theft-wrongfully 

obtaining or exerting unauthorized control over the property of another with intent to 

deprive-are necessary elements of second degree robbery. RCW 9A.56.020, .050, .190, 

.210. The issue then is whether the evidence supports an inference that only third degree 

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No. 31857-5-III 

State v. Parker 

theft was committed. We review the trial court's decision for abuse of discretion. 

Henderson, 344 PJd at 1212. 

Here, the evidence does not support an inference that only third degree theft 

occurred. Robbery involves the unlawful taking or retaining of property 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 of Counsel 

The evidence of force shows Mr. Parker's claim of ineffective assistance of 

counsel lacks merit. To prove ineffective assistance of counsel, an appellant must show 

his attorney's performance fell below an objective standard of reasonableness and this 

deficiency prejudiced the defense. Strickland v. 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 of additional grounds for review at 1)), and should have sought dismissal on 

appeal on the basis that the evidence does not show that he used or threatened the use of 

force when taking the tequila. Because these challenges would not have been successful 

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No. 31857-5-III 

State v. Parker 

at trial or on appeal, he cannot show prejudice to support a claim of ineffective assistance 

of counsel. 

D. Offender Score 

Mr. Parker assigns error to the trial court's inclusion of two prior Arkansas 

convictions in his offender score of 6. He contends the 2005 Arkansas convictions of 

residential burglary and theft of property 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. Parker has completed his confinement in Washington and is 

currently serving a sentence in an Arkansas prison. We agree. 

An issue is moot if this court can no longer provide the requested relief. State v. 

Ross, 152 Wn.2d 220,228,95 P.3d 1225 (2004). We may still decide an issue, however, 

if it involves matters of continuing and substantial public 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 if Mr. Parker returns to Washington to serve his term of community custody, and 

even ifhe receives a reduced sentence due to a remand for correction of the offender 

score, any excess time he served in prison cannot be credited toward his sentence of 

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No. 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 of continuing and substantial public 

interest justifying a decision. Thus, because this court can no longer provide him 

effective relief, we find that the challenge of his offender score is moot. 

Affirmed. 

A majority of the 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: 

~. 

Feari~ 

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