FILED 

JANUARYI2, 2016 

In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) 

) No. 32759-1-111 

Respondent, ) 

) 

v. ) 

) 

TREVOR W. MYERS, ) UNPUBLISHED OPINION 

) 

Appellant. ) 

FEARING, J. - We ask whether one who brandishes a gun may be convicted of 

robbery as a principal when a companion possesses the stolen goods at the moment ofthe 

brandishment. Consistent with prior case law, we answer the question in the affinnative. 

We affinn the conviction ofTrevor Myers for first degree robbery. We also affinn 

Myers' community custody conditions. 

FACTS 

Trevor Myers and Jennifer Kiperash visited the Shadle Park Walmart chain store 

in north Spokane. At the time ofthe shopping excursion, Jennifer Kiperash was married 
No. 32759-I-III 

State v. Myers 

to Myers and was also known as Jennifer Myers. We refer to her as Kiperash in this 

OpInIOn. 

Jennifer Kiperash and Trevor Myers entered the Walmart store electronics 

department, where Myers removed a pair of walkie-talkies from a magnetically locked 

peg. The two ambled to other parts ofthe store and bypassed the check-out counters. 

Kiperash exited the store, but as she passed through the security sensor, a magnetized tag 

on the walkie-talkies triggered the store's security sensor alarm. Myers followed behind 

Kiperash by five to ten feet and also exited the Walmart store. 

The Walmart store alarm alerted store Assistant Manager Kari Cooper. Cooper 

confronted Jennifer Kiperash as the latter proceeded into the store vestibule, and Cooper 

asked Kiperash for her purchase receipt. Kiperash ignored Cooper and continued toward 

the store parking lot at a hurried pace. Trevor Myers suddenly inserted himself between 

Cooper and Kiperash. Myers, while twenty feet from Cooper, pointed what looked like a 

black handgun at Cooper and said either "Don't qo it" or "Back the fuck up." Report of 

Proceedings (RP) at 45, 98. Cooper raised her hands and fled into the store where she 

phoned 9-1-1. Walmart patrons, who witnessed the encounter, saw Kiperash enter the 

passenger side of a tan sedan in the parking lot and Myers enter the driver side of the 

sedan before the car sped away. 

Spokane Patrol Officers James Erickson and Jeremy McVay heard dispatch 

describe a getaway vehicle used after a robbery at the Shadle Park Walmart. Within 

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No. 32759-I-II1 

State v. Myers 

seconds, the officers spotted a vehicle matching the car description. The car journeyed 

south on Ash Street. Officer Erickson drove the marked police vehicle behind the 

getaway vehicle and a chase, reaching speeds of eighty miles per hour, ensued. The 

chase ended when Officer Erickson performed a maneuver that resulted in the getaway 

car crashing into a utility pole and residential fence in Spokane's lower South HilL 

Trevor Myers exited the car but only ran twenty yards before Officer James 

Erickson apprehended him. Officers also arrested Jennifer Kiperash at the scene. An 

officer recovered, from the getaway car, two new walkie-talkies matching those sold at 

Walmart and batteries befitting the walkie-talkies. Law enforcement officers also found 

a box of .357 caliber ammunition in a backpack in the car and a second box in the yard 

near the crash. When arresting Myers, Officer Erickson confiscated an empty black gun 

holster from Myers' front pants pocket. Law enforcement never found a gun. 

PROCEDURE 

The State of Washington charged Trevor Myers with first degree robbery and 

attempt to elude a police vehicle. At the conclusion of the trial evidence, the trial court 

instructed Myers' jury on the elements of first degree robbery. Jury instruction 11 read: 

To convict the defendant of the crime of robbery in the first degree, 

each ofthe following elements ofthe crime must be proved beyond a 

reasonable doubt: 

(1) That on or about July 1,2013, the defendant unlawfully took 

personal property from the person or in the presence of another; 

(2) That the defendant intended to commit theft of the property; 

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No. 32759-I-II1 

State v. Myers 

(3) That the taking was against the person's will by the defendant's 

use or threatened use of immediate force, violence, or fear ofinjury to that 

person or to the person of another; 

(4) That force or fear was used by the defendant to obtain or retain 

possession ofthe property or to prevent or overcome resistance to the 

taking; 

(5) That in the commission ofthese acts or in the immediate flight 

therefrom the defendant displayed what appeared to be a firearm or other 

deadly weapon; and 

(6) That any ofthese acts occurred in the State ofWashington. 

Clerk's Papers (CP) at 87. 

Initially the State did not offer an instruction on accomplice liability, but during 

closing arguments asked for a supplemental instruction. The trial court denied the State's 

request for a late instruction on accomplice liability. The jury found Myers guilty of both 

first degree robbery and attempt to elude a police vehicle. Myers appeals only the former 

conviction. 

The trial court sentenced Trevor Myers to a total of 171 months of confinement 

and imposed community custody conditions including: 

While on community custody, the defendant shall: ... (4) not 

consume controlled substances except pursuant to lawfully issued 

prescriptions; (5) not unlawfully possess controlled substances while on 

community custody. 

CP at 126. The trial court also ordered that Myers shall not "use or possess[] ... 

Marijuana ... or products containing Tetrahydrocannabionol [sic] (THC)." CP at 126. 

LAW AND ANLAYSIS 

On appeal, Trevor Myers contends: (1) the evidence did not support a conviction 

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No. 32759-1-III 

State v. Myers 

for first degree robbery because he no longer possessed the stolen property when he 

threatened the clerk, and (2) the trial court imposed community custody conditions 

beyond its statutory authority. The State argues that the evidence was sufficient to 

support the conviction, but agrees that the community custody conditions should be 

modified. We agree with the State. We affirm the conviction but remand for 

modification of the community custody conditions. 

First Degree Robbery 

Trevor Myers challenges the sufficiency of the evidence for his conviction for first 

degree robbery. We repeat the familiar principles of sufficiency of evidence challenges. 

Evidence is sufficient if a rational trier of fact could find each element of the crime 

beyond a reasonable doubt. State v. Green, 94 Wn.2d 216,221-22,616 P.2d 628 (1980). 

Both direct and indirect evidence may support the jury's verdict. State v. Brooks, 45 Wn. 

App. 824, 826, 727 P .2d 988 (1986). This court draws all reasonable inferences in favor 

ofthe State. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Only the trier 

of fact weighs the evidence and gauges the credibility of witnesses. State v. Carver, 113 

Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989). The State assumes the burden of 

proving otherwise unnecessary elements of the offense when such elements are included 

without objection in ajury instruction. State v. Willis, 153 Wn.2d 366, 374-75, 103 P.3d 

1213 (2005). 

The jury convicted Trevor Myers of first degree robbery under RCW 9A.56.200. 

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No. 32759-1-III 

State v. Myers 

Under RCW 9A.56.190, the general definition of robbery states that: 

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 of the property, or to prevent or 

overcome resistance to the taking; in either ofwhich cases the degree of force is 

immateriaL 

Any force or threat, no matter how slight, which induces an owner to part with his 

property is sufficient to sustain a robbery conviction. State v. Handburgh, 119 Wn.2d 

284,293,830 P.2d 641 (1992). 

Washington follows a transactional approach to robbery. State v. Johnson, 155 

Wn.2d 609, 610-11, 121 P.3d 91 (2005). The force or threat of force must relate to 

obtaining or retaining possession. Johnson, 155 Wn.2d at 611. For first degree robbery 

under RCW 9A.56.200, one could be "armed with a deadly weapon" either "[i]n the 

commission of a robbery or of immediate flight therefrom." Thus, one may be guilty of 

robbery if he or she obtains property through threat of force or retains possession while in 

immediate flight through threat of force. In either case, the threat of force is part of the 

taking. State v. Witherspoon, 180 Wn.2d 875,884-85,329 P.3d 888 (2014). 

Trevor Myers argues that, because he did not retain possession of the walkie-talkie 

set he removed from the Walmart peg, he could not have used force or fear to retain 

possession as required by RCW 9A.56.190. He claims that, because Jennifer Kiperash 

toted the walkie-talkies when he threatened force, he did not utter his threat to retain 

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No. 32759-I-III 

State v. Myers 

possession. He contends that he must have held possession ofthe pilfered goods at the 

time of his threat for the evidence to support a conviction for robbery as a principal. 

According to Myers, the evidence only supports his conviction as an accomplice. Thus, 

the omission of a jury instruction on accomplice liability defeated the prosecution. 

Consistent with his contentions, Trevor Myers emphasizes the language ofjury 

instruction II and argues that, based on the instruction, the State needed to establish that 

he used force to prevent or overcome resistance to "his" taking ofthe merchandise. We 

observe that the jury instruction does not limit gUilt to an instance when the force allowed 

"his" or Myers' taking ofthe goods. Subsection 4 ofthe instruction listed one of the 

elements as: 

(4) That force or fear was used by the defendant to obtain or retain 

possession ofthe property or to prevent or overcome resistance to the 

taking.... 

CP at 87. One may read the instruction as applying to force used so that a 

colleague may retain possession ofthe pilfered merchandise. 

Trevor Myers' appeal fails because the law does not demand he physically carry 

the pilfered merchandise at the exact time he threatened force in order to satisfy the 

elements ofrobbery as a principal. Under the transactional view ofrobbery, use of force 

does not need to be contemporaneous with the physical taking of property, and the 

robbery is not complete until the assailant has affected escape. State v. Handburgh, 119 

Wn.2d 284, 290 (1992); State v. Manchester, 57 Wn. App. 765, 770, 790 P.2d 217 

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No. 32759-1-III 

State v. Myers 

(1990). Under this view, the evidence could convict Myers ofrobbery as long as his 

threat of force procured the retention ofthe goods. 

Possession is "[t]he fact of having or holding property in one's power; the exercise 

of dominion over property." BLACK'S LAW DICTIONARY l351 (lOth ed. 2014). By 

aiming a gun at Kari Cooper, Trevor Myers employed compulsion to allow Jennifer 

Kiperash to remove the stolen walkie-talkie set to their getaway car. Under these facts, a 

reasonable jury could conclude that Kiperash and Myers shared possession ofthe walkietalkies because the couple operated together to exercise dominion over the property. 

Myers also held actual possession ofthe walkie-talkies when they were on the floor of 

the car he drove. 

State v. Witherspoon, 180 Wn.2d 875 (2014) and State v. Truong, 168 Wn. App. 

529,277 P.3d 74 (2012) control this appeal. In the former case, Alvin Witherspoon and 

his accomplice entered a house and stole several objects. The victim arrived home to find 

an unknown car parked in her driveway, so she exited her car and approached the vehicle. 

Alvin Witherspoon appeared from the side ofthe house with his left hand behind his 

back. The victim asked Witherspoon what he had behind his back, and he replied that he 

had a pistol. The victim saw no stolen objects in Witherspoon's possession. 

Witherspoon joined his accomplice in the car and drove away. As they departed, the 

victim noticed her belongings in the back of the car. Witherspoon challenged his robbery 

conviction for sufficiency ofthe evidence. Our Supreme Court affirmed under the 

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No. 32759-1-111 

State v. Myers 

transactional view of robbery. The evidence did not need to place any of the stolen 

property in the hands of or on the person of Witherspoon. 

Another similar case is State v. Truong, 168 Wn. App. 529 (2012). A quintet of 

women boarded a Seattle bus, on which the victim listened to music on an MP3 player. 

Sindy Truong, a member of the group, grabbed the music player and handed it to another 

group member. Truong and a companion attacked the victim when he confronted the five 

women. Truong challenged her first degree robbery conviction on sufficiency of the 

evidence grounds. She claimed that no evidence supported the force element since she 

earlier passed the player to another before using any force. We rejected the argument 

under the transactional view of robbery. 

Trevor Myers also argues insufficiency of evidence because he did not employ 

force when he took the walkie-talkies from the merchandising rack. Nevertheless, under 

RCW 9A.56.190, one commits robbery ifhe uses force to retain possession of the goods. 

Instruction 11 restated this provision of the robbery statute. Use of force to retain 

property that was initially taken peaceably is robbery. State v. Handburgh, 119 Wn.2d at 

293 (1992). 

Community Custody Conditions 

Trevor Myers contends that the community custody condition that prohibits his 

use of marijuana was not authorized by statute. A trial court may only impose sentences 

that statutes authorize. State v. Albright, 144 Wn. App. 566, 568, 183 P.3d 1094 (2008). 

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No. 32759-1-III 

State v. Myers 

We disagree. 

The trial court lacks authority to impose a community custody condition unless 

authorized by the legislature. State v. Warnock, 174 Wn. App. 608, 611,299 P.3d 1173 

(2013). We review a trial court's statutory authority to impose a particular community 

custody condition de novo. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 

(2007). 

The prohibitions imposed on Trevor Myers during community custody suffer from 

inconsistency, due in large part to standardized sentencing forms. One prohibition 

extends to consumption of controlled substances except with a lawful prescription. A 

second prohibition covers unlawful possession of controlled substances, but does not 

specifically except substances with a prescription. One might read the second prohibition 

as eschewing a ban on controlled substances with a prescription since the prohibition 

only encompasses unlawful possession. The third prohibition proscribes use or 

possession of marijuana or products containing THC and does not mention a prescription. 

RCW 9.94A.703 controls conditions a court must or may impose on one released 

into community custody. Trevor Myers contends that the condition prohibiting him from 

use or possession ofmarijuana exceeds any statutory authority because it does not 

contain the exception for prescription use found in RCW 9.94A.703(2)(c). The statute's 

section reads: 

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No. 32759-I-III 

State v. Myers 

When a court sentences a person to a term of community custody, 

the court shall impose conditions of community custody as provided in this 

section. 

(2) Waivable conditions. Unless waived by the court, as part of any 

term of community custody, the court shall order an offender to: 

(c) Refrain from possessing or consuming controlled substances 

except pursuant to lawfully issued prescriptions. 

Myers also argues that the prohibition is not crime related and, thus, not authorized by 

RCW 9.94A.703(3)(f). This statutory provision declares: 

(3) Discretionary conditions. As part of any term of community 

custody, the court may order an offender to: 

(f) Comply with any crime-related prohibitions. 

The community custody condition prohibiting use and possession of marijuana 

survives, under RCW 9.94A.703(2)(c), if marijuana is a "controlled substance," or, under 

RCW 9.94A.703(3)(f), ifmarijuana was crime-related. Since Trevor Myers' convictions 

did not relate to use or possession of marijuana, marijuana must be a controlled substance 

for the community custody condition in Myers' sentence to survive. 

Despite the state's legalization of use of small amounts ofmarijuana, marijuana 

remains a controlled substance, particularly in light of federal law still banning 

marijuana. RCW 69.50.l01(d) defines a "controlled substance" as "a drug, substance, or 

immediate precursor included in Schedules I through V as set forth in federal or state 

laws, or federal or commission rules." Marijuana is a Schedule I drug under the United 

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No. 32759-1-III 

State v. Myers 

States Controlled Substance Act. 21 U.S.C. § 812. Therefore, marijuana, as a 

community custody condition can survive because it is a "controlled substance." 

RCW 9.94A.703(2)(c) excepts, from the community custody prohibition, the use 

of a "controlled substance" to the extent the use is pursuant to a prescription. This 

exception does not control because one can never obtain a prescription for marijuana use. 

RCW 69.50.308. Even in the context of medical marijuana, the user obtains an 

"authorization," not a prescription, from a health care provider. RCW 69.51A.030(2)(a). 

CONCLUSION 

We affirm Trevor Myers' conviction for first degree robbery and his sentence, 

including the community custody condition disallowing use or possession of marijuana 

and products containing THC. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be t1led for public record pursuant to RCW 

2.06.040. 

,

3. 


WE CONCUR: 


Lawrence-Berrey, J. 

j 

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