zOIWm A.i 3- 33 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. DRAKE MICHAEL MCDANIEL, Appellant. No. 72430-4-1 DIVISION ONE UNPUBLISHED OPINION

FILED: November 24, 2014 Trickey, J. — Drake McDaniel appeals from the judgment entered on a jury's verdictfinding him guilty offirst degree robbery and first degree unlawful possession ofa firearm. He contends that (1) the trial court erred by declining to instruct the jury on a lesser included offense to first degree robbery and (2) his constitutional right to a public trial was violated. Finding no error, we affirm. FACTS On April 24, 2012, Jazmyne Montgomery drove Donteise Mosely to a Walgreen's parking lot and parked next to a Cadillac. Mosely had arranged to sell marijuana to a man named Budha. He stored the marijuana in a lunch boxin the trunk ofMontgomery's vehicle. Mosely also placed a smaller bag of marijuanain the glove compartment. McDaniel exited the Cadillac and entered the rear passenger's side of Montgomery's vehicle. Mosely did not recognize McDaniel, who had identified himselfas "YB."1 Mosely and McDaniel shared a marijuana cigarette.

3 Report ofProceedings (RP) at 239.No. 72430-4 / 2 Moselyshowed McDaniel the small bag of marijuana from the glove compartment. Shortly thereafter, McDaniel pointed a gun at Moselyand said that he was robbing him. At around the same time, another man—later identified as Jonathan Williamsemerged from the passenger's side of the Cadillac. Williams opened the driver's side door where Montgomery was sitting and pressed whatMontgomery believed to be a gun against herhip. Williams ordered Montgomery to look away from him. Mosely testified he could see Williams pushing Montgomery against the car frame and holding what appeared to be a black pistol. Mosely gave McDaniel the bag ofmarijuana and unlatched the trunk from the inside of the vehicle. McDaniel removed the keys from the vehicle's ignition and took 

### Montgomery's purse. McDaniel then wenttothe trunkto remove the lunch box containing marijuana. McDaniel andWilliams drove away in the Cadillac. McDaniel was soon arrested, and the State charged him with two counts ofrobbery 

### in the first degree (counts Iand II) and unlawful possession ofafirearm in the first degree (count III). Count Iconcerned therobbery ofMontgomery's property. McDaniel testified at trial. When asked why Williams was standing next to the 

### driver's side window during the incident, McDaniel responded that Williams was simply 

### greeting Mosely and Montgomery. McDaniel also testified that Mosely pointed agun at him afterdiscovering thathe had used counterfeitbills to payforthe marijuana. According toMcDaniel, atthat point, Williams wenttothedriver's side windowtoascertain whatwas 

### occurring inside the vehicle. When he saw Mosely with agun in hand, Williams made a 

### gesture intimating that he had a gun. McDaniel denied seeing Williams with afirearm, however, during the incident. He also denied using force to take Montgomery's purse.No. 72430-4 / 3 Defense counsel presented the theory that McDaniel committed theft, and not first degree robbery, because McDaniel did not use or threaten to use force when taking Montgomery's property. Accordingly, defense counsel proposed that the jury be instructed on third degree theft as a lesser offense offirst degree robbery as charged in count I. The trial court denied defense counsel's request. Ajury convicted McDaniel offirst degree robbery, as charged in count I, and first degree unlawful possession ofafirearm, as charged in count III. Thejuryfound McDaniel notguilty offirst degree robbery ofmarijuana as charged in count II. McDaniel appeals. ANALYSIS Jury Instructions McDaniel firstcontends that the trial court erroneously declined to instruct the jury on third degree theft as a lesserincluded offense offirst degree robbery. We disagree. Washington statutes provide that a defendant charged with an offense has an 

### "'unqualified right'" to have thejury pass on a lesser included offense ifthere is "'even the 

### slightest evidence'" that he may have committed only that offense. State v. Parker, 102 Wn.2d 161, 163-64, 683 P.2d 189 (1984) (quoting Statev. Young, 22Wash. 273, 276- 

### 77, 60 P. 650 (1900)). Atwo-pronged test is applied to determine when a lesser included offense instruction mustbe given: First, each elementofthe lesserincluded offense must 

### be a necessary element of the offense charged (the legal prong) and, second, the evidence in the case must support an inference that the lesser included crime was 

### committed (the factual prong). State v. Workman. 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).No. 72430-4/4 Here, there is no dispute as to the legal prong. The State contends, however, that the evidence does not support the factual prong. Consequently, only the factual prong is

at issue here. We review a decision on the factual prong for abuse ofdiscretion. State v. LaPlant, 157Wn.App. 685,687, 239 P.3d 366 (2010). To satisfy the factual prong, some evidence must be presented that affirmatively establishes the defendant's theory on the lesser included offense. State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990) (citing State
v. Rodriguez, 48 Wn. App. 815, 820, 740 P.2d 904, review denied, 109 Wn.2d 1016 (1987)), overruled on other grounds by State v. Blair, 117 Wn.2d 479, 816 P.2d 718 (1991). When determining whether the evidence at trial supported the giving of an instruction, we view the supporting evidence in the light mostfavorable to the party that 

### requested the instruction. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150(2000). 

### As previously mentioned, McDaniel asserted the theory attrial that hecommitted theft, not robbery, because he did not use or threaten to use force when taking 

### Montgomery's property. "Theft" means "[t]o wrongfully obtain or exert unauthorized control overthe property or services ofanother orthe value thereof, with intentto deprive him orherofsuch property or services." RCW 9A.56.020(1 )(a). Aperson is guilty ofthird 

### degree theft if he or she commits theft of property that does not exceed $750 in value. RCW9A.56.050(1)(a). The essential elements offirst degree robbery, under the to-convict instructions 

### provided here, included: (1) unlawfully taking property from Montgomery; (2) acting with intent tocommit theft oftheproperty; (3) committing thetaking "against theperson's willNo. 72430-4 / 5 bythedefendant's oranaccomplice's useorthreatened useofimmediateforce, violence or fear of injury to that person;" (4) and using "force or fear
... to obtain or retain 

### possession of the property orto prevent or overcome resistance to the taking" ofthat property.2 Thus, the primary distinction between third degree theft and first degree 

### robbery as charged here was whether McDaniel or Williams used orthreatened to use force during the commission of the crime. Here, McDaniel hasfailed todemonstratethattheevidence affirmatively supported the inference that he committed third degreetheft. Tosupport his argument, he relies on 

### his own testimony attrial, where he denied possessing a gun, denied seeing Williams 

### with a gun, and denied using force while taking Montgomery's purse. But additional evidence adduced at trial showed that Williams, as an accomplice, threatened to use 

### force during the crime. Montgomerytestified thatWilliams had pressed agun againsther while McDaniel seized herpurse and keys. Moselycorroborated Montgomery's testimony 

## by describing his observation ofWilliams holding agun against Montgomery during the robbery. Indeed, McDaniel testified thatwhen he sawWilliams gesture toward his waist, he "believed thateither [Williams] had agun orhe was trying to make the impressionthat 

### he had agun."3 The evidence did not affirmatively establish that no force or threat of force was used during the commission ofthe crime. McDaniel fails to establish that a lesser included offense instruction was appropriate. The trial court did not abuse its

discretion.

2Clerk's Papers at 62; RCW 9A.56.190. 3 6 RP at 636.No. 72430-4 / 6
Public Trial Right McDaniel next contends that his constitutional right to a public trial was violated4 when the trial court failed to conduct a Bone-Club5 analysis before directing trial counsel to exercise peremptory challenges in writing and during a side bar discussion, which, he argues, constituted a closure. During jury selection, counsel exercised theirperemptory challenges byindicating thejurors theywished to excuse on a written form. This process was not reported by the court reporter, as the record indicates: (Peremptory challenges exercised.)
THE COURT: Counsel. (Side barheld which was not reported.)161 However, the peremptory challenges were held while court was in session and while the courtroom was accessible to the public. After receiving the written form, thetrial court announced, and the reporter recorded, the selected jurors and excused the 

### remaining prospectivejurors. Later that day, the trial court filed the written form listing the jurorsexcused by counsel's peremptory challenges. 

### Washington appellate courts have repeatedly rejected this argument and similar ones. State v. Webb Wn. App. , 333 P.3d 470 (2014); State v. Dunn. 180 Wn. 

### App. 570, 321 P.3d 1283 (2014); Statev. Love, 176Wn. App. 911, 309 P.3d 1209 (2013), petition for review filed. No. 89619-4 (Wash. Nov. 21, 2013). We decline to departfrom those decisions here. The trial court committed no error.

4 The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution guarantee a defendant's right to a public trial. 5 State v. Bone-Club. 128 Wn.2d 254, 906 P.2d 325 (1995). 6RP (Jury Voir Dire) at 26.No. 72430-4 / 7

Affirmed.

WE CONCUR: 

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