### FILED 

### JANUARYI2, 2016 In the Office ofthe ClerkofCourt W A StateCourt ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 32759-1-111 Respondent, ) ) 

### v. ) ) TREVORW. MYERS, ) UNPUBLISHED OPINION ) Appellant. ) FEARING, J.

- We ask whether one whobrandishes a gun may be convicted of robbery as a principal when a companion possessesthe stolen goods at the moment ofthe brandishment. Consistentwithprior 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 ParkWalmart chain store in north Spokane. Atthe time ofthe shopping excursion, Jennifer Kiperash was marriedNo. 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 TrevorMyers entered the Walmart store electronics department, where Myers removed a pair ofwalkie-talkies from a magnetically locked peg. The two ambled to otherparts ofthe store and bypassedthe check-out counters. Kiperash exited the store, but as she passed through the security sensor, a magnetized tag
onthe walkie-talkies triggered the store's security sensor alarm. Myers followed behind Kiperashby five to ten feet and also exited the Walmart store. The Walmart store alarm alerted store AssistantManager Kari Cooper. Cooper confronted Jennifer Kiperash as the latterproceeded into the store vestibule, and Cooper asked Kiperash for herpurchase receipt. Kiperash ignored Cooper and continued toward the store parking lot at a hurriedpace. TrevorMyers suddenly inserted himselfbetween Cooper and Kiperash. Myers, while twenty feet from Cooper, pointed what looked like a blackhandgun at Cooper and said either "Don'tqo it" or "Backthe 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 ofa tan sedan in the parking lot and Myers enterthe driver side ofthe 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 

### 2No. 32759-I-II1 State 

### v. Myers seconds, the officers spotted a vehicle matching the car description. The carjourneyed south on Ash Street. Officer Erickson drove the markedpolice vehicle behind the getaway vehicle and a chase, reaching speeds ofeighty miles per hour, ensued. The chase ended when OfficerErickson performed a maneuver that resulted in the getaway
car crashing into a utilitypole and residential fence in Spokane's lower South

### HilL TrevorMyers exited the car but only ran twenty yards before OfficerJames 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 boxin the yard
near the crash. When arresting Myers, OfficerErickson confiscated an empty black gun holster from Myers' front pantspocket. Law enforcement never found a gun. PROCEDURE The State ofWashington charged Trevor Myers with first degree robbery and attemptto elude apolice vehicle. Atthe conclusion ofthe trial evidence, the trial court instructed Myers'jury on the elements offirst degree robbery. Jury instruction 

### 11 read: To convict the defendant ofthe crime ofrobbery in the first degree, each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: (1) That on orabout July 1,2013,the defendant unlawfully took personal property from the person orin the presence ofanother; (2) That the defendant intended to commit theft ofthe property;


### 3No. 32759-I-II1 

### State 

### v. Myers (3) That the taking was against the person's willby the defendant's use orthreatened use ofimmediate force, violence, or fear ofinjury to that person or to theperson ofanother; (4) That force or fear was used by the defendant to obtain orretain possession ofthe property orto 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, butduring closing arguments asked for a supplemental instruction. Thetrial court denied the State's request for a late instruction on accomplice liability. Thejury found Myers guilty ofboth first degree robbery and attemptto elude a police vehicle. Myers appeals only the former conviction. Thetrial court sentencedTrevorMyers to a total of 171 months ofconfinement and imposed community custody conditions including: While on community custody, the defendant shall:
... (4) not consume controlled substances exceptpursuantto lawfully issued prescriptions; (5) not unlawfully possess controlled substances while on community custody. CP at 126. Thetrial court also orderedthat Myers shall not "use orpossess[]
... Marijuana
... or products containing Tetrahydrocannabionol [sic] (THC)." CP at 126. LAW AND ANLAYSIS On appeal, TrevorMyers contends: (1) the evidence did not support a conviction 4No. 32759-1-III State v. Myers
for first degree robbery because he no longerpossessed 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 supportthe conviction, but agrees that the community custody conditions should be modified. We agree with the State. We affirm the conviction but remand for modification ofthe community custody conditions. First Degree Robbery TrevorMyers challenges the sufficiency ofthe evidence for his conviction for first degree robbery. We repeat the familiar principles ofsufficiency ofevidence challenges. Evidence is sufficient ifa rational trier offact could find each element ofthe 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 thejury'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 offact weighs the evidence and gauges the credibility ofwitnesses. 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 ofthe 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). Thejury convicted TrevorMyers offirst degree robbery under RCW 9A.56.200. 

### 5No. 32759-1-III State v. Myers
Under RCW 9A.56.190, the general definition ofrobbery states that: A person commits robbery when he or she unlawfully takes personal property from the person ofanother or in his orherpresence against his orher will by the use or threatened use ofimmediate force, violence, or fear ofinjury to that person orhis orherproperty or the person orproperty ofanyone. Such force or fear must be used to obtain or retain possession ofthe property, orto prevent or overcome resistance to the taking; in either ofwhich cases the degree offorce is immateriaL Any force orthreat, no matter how slight, which induces an ownerto part with his property is sufficientto 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 orthreat offorce mustrelate to obtaining orretaining possession. Johnson, 155 Wn.2d at 611. For first degree robbery under RCW 9A.56.200, one could be "armedwith a deadly weapon" either "[i]nthe commission ofa robbery orofimmediate flight therefrom." Thus, one may be guilty of robbery ifhe or she obtains property through threat offorce orretains possession while in immediate flight through threat offorce. In either case, the threat offorce is part ofthe taking. State v. Witherspoon, 180 Wn.2d 875,884-85,329 P.3d 888 (2014). TrevorMyers argues that, because he did not retainpossession ofthe walkie-talkie set he removed from the Walmartpeg, he could not have used force orfear to retain possession as required by RCW 9A.56.190. He claimsthat, because Jennifer Kiperash toted the walkie-talkies whenhe threatened force, he did not utter his threatto retain 6No. 32759-I-III State v. Myers possession. He contends that he must have held possession ofthepilfered goods at the time ofhis threat for the evidence to support a conviction for robbery as aprincipal. Accordingto Myers, the evidence only supports his conviction as an accomplice. Thus, the omission ofajury instruction on accomplice liability defeated the prosecution. Consistent with his contentions, TrevorMyers emphasizes the language of jury instruction II and argues that, based on the instruction, the State needed to establishthat he used force to prevent orovercome resistance to "his"taking ofthe merchandise. We observe that thejury instruction does not limit gUilt to an instance when the force allowed "his" orMyers' taking ofthe goods. Subsection 4 ofthe instruction listed one ofthe elements as: (4) That force or fear was used by the defendant to obtain orretain possession ofthe property orto prevent orovercome 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. TrevorMyers' 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. Underthe transactional view ofrobbery, use offorce does not need to be contemporaneous with the physical taking ofproperty, 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 7No. 32759-1-III State 

### v. Myers (1990). Under this view, the evidence could convict Myers ofrobbery as long as his threat offorce procured the retention ofthe goods. Possession is "[t]he fact ofhaving orholding property in one'spower; the exercise ofdominion over property." BLACK'S LAW DICTIONARY l351 (lOth ed. 2014). By aiming a gun at Kari Cooper, TrevorMyers employed compulsion to allow Jennifer Kiperash to remove the stolen walkie-talkie setto their getaway car. Under these facts, a reasonablejurycould 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 carparked 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. Witherspoonjoinedhis accomplice in the car and drove away. As they departed, the victim noticed her belongings in the back ofthe car. Witherspoon challenged his robbery conviction for sufficiency ofthe evidence. Our Supreme Court affirmed under the 8No. 32759-1-111 State v. Myers
transactional view ofrobbery. The evidence did not need to place any ofthe stolen property in the hands ofor on the person ofWitherspoon. 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 ofthe 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 ofthe evidence grounds. She claimed that no evidence supported the force element since she earlierpassed the playerto another before using any force. We rejected the argument under the transactional view ofrobbery. TrevorMyers also argues insufficiency ofevidence 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 ifheuses force to retain possession ofthe goods. Instruction 11 restated this provision ofthe robbery statute. Use offorce to retain property that was initially taken peaceably is robbery. State v. Handburgh, 119 Wn.2d at 293 (1992). Community Custody Conditions TrevorMyers contends that the community custody condition thatprohibits his
use ofmarijuana 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). 9No. 32759-1-III State v. Myers
We disagree. Thetrial court lacks authority to impose a community custody condition unless authorized by the legislature. State v. Warnock, 174 Wn. App. 608, 611,299P.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 partto standardized sentencing forms. One prohibition extends to consumption ofcontrolled substances except with a lawful prescription. A second prohibition covers unlawful possession ofcontrolled substances, but does not specifically except substances with a prescription. One mightread the second prohibition
as eschewing a ban on controlled substances with a prescription since theprohibition only encompasses unlawful possession. The third prohibition proscribes use or possession ofmarijuana 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 orpossession ofmarijuana exceeds any statutory authority because it does not containthe exception for prescription use found in RCW 9.94A.703(2)(c). The statute's section reads:

10No. 32759-I-III State v. Myers
When a court sentences a person to a term ofcommunity custody, the court shall impose conditions ofcommunity custody as provided in this section. (2) Waivable conditions. Unless waivedby the court, as part ofany term ofcommunity 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 ofany term ofcommunity custody, the court may order an offender to: (f) Comply with any crime-relatedprohibitions. The community custody conditionprohibiting use and possession ofmarijuana survives, under RCW 9.94A.703(2)(c), ifmarijuana is a "controlled substance," or, under RCW 9.94A.703(3)(f), ifmarijuanawas crime-related. Since TrevorMyers' convictions did not relate to use orpossession ofmarijuana, marijuanamust be a controlled substance for the community custody condition in Myers' sentence to survive. Despite the state's legalization ofuse ofsmall amounts ofmarijuana, marijuana remains a controlled substance, particularly in light offederal 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 commissionrules." Marijuana is a Schedule I drug under the United

11No. 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 ofa "controlled substance" to the extentthe 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 ofmedical 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 orpossession ofmarijuana and products containing THC. A majority ofthe panel has determined this opinionwill not be printed in the Washington Appellate Reports, but it will be t1led for public record pursuant to RCW 2.06.040.



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WE CONCUR:
Lawrence-Berrey, J. 

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