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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. ELIJAH S. HALL, Appellant. No. 68443-4-1 DIVISION ONE

UNPUBLISHED OPINION
FILED: July 8, 2013 Schindler, J. — Elijah S. Hall seeks reversal of his jury conviction for felony murder inthe first degree, arguing that the State did not prove beyond a reasonable doubt the predicate offense of attempted robbery in the first degree. Because sufficient evidence supports attempted robbery inthe first degree, we affirm the conviction of felony murder inthe first degree. FACTS Seventeen year-old Elijah Hall "wanted to get some money" because he was 

### "tired ofbeing broke." Halldecided he would go to the Pit Stop Express convenience 

### store and " 'show [the clerk] the gun and he would hand the money over.'" Hall had been to the PitStop Express many times before and knew the convenience store clerk, 

### 28-year-old Manish Melwani. Atapproximately 6:00 a.m. on Sunday, July 26, 2009, Hall lefthome to go to the Pit Stop Express to commit robbery. Hall wore darkNo. 68443-4-1/2 

### sunglasses, a blackknit cap, a blackbandana, a black jacket, and carried a backpack and a snub-nosed semi-automatic revolver. 

### A security camera located behind the counter of the PitStop Express recorded 

### the attempted robbery and shooting. The camera shows Hall, clad in his disguise, entering the convenience store at 6:28 a.m. Melwani is not behind the counterwhere 

### the cash register is located. After looking at items inthe store for about one minute, 

### Hall goes behind the counter. Hall then leans over the cash register's keyboard and monitor and presses the cash register keys. A customer enters the store, sees Hall, and immediately leaves. The customer calls 911. After unsuccessfully trying to open the register, Hallcrouches down under the counter and opens drawers under the counter. Hall then stands up and continues trying to get into the cash register by pressing the keys. Hall briefly steps away and returns wearing gloves. While Hall continues to try to open the cash register, the camera shows Melwani return from the back ofthe store. Hall crouches down and immediately reaches for the snub-nosed revolver in the waistband of his pants. Melwani approaches the counter and confronts Hall. As Hall stands up, he removes the gun from his pants and points the gun at Melwani. When Melwani walks around the counter toward Hall, Hall shoots Melwani in the stomach. Melwani then attempts to grab the gun away from Hall. Hall and Melwani struggle over the gun for approximately two minutes. During the struggle, two customers walk in but immediately leave and call 911. Hall then rushes at Melwani and knocks Melwani off balance. Hall shoots Melwani a second time, this time inthe right thigh. Hallthen hits Melwani twice intheNo. 68443-4-1/3 

### forehead withthe gun, dazing him, and leaves the store. Melwani chases after Hall but collapses at the store entrance. Officers from the Seattle Police Department and medical personnel responded to 

### the 911 calls. Medical personnel took Melwani to Harborview Medical Center. After 

### initial attempts to treat Melwani, he later died from the two gunshotwounds. Officers found a pair ofsunglasses discarded nearthe store's counter and 

### retrieved the videotape recording from the security camera. In an effort to identify the shooter, the police department released still frames from the video to the media. 

### After the 5:00 p.m. news segment aired that night, a citizencontacted police 

### about clothing that was discarded outside an apartment building a few blocksfrom the 

### Pit StopExpress. Officers found a blackknitcap, a blackbandana, gloves, and a black jacket in a duffel bag. 

### While police werecollecting the evidence, Detective James Coopernoticed a 

### young man and woman, lateridentified as Hall and his girlfriend Kiara Todd, watching police collecttheevidence. Detective Coopertold Hall andTodd thepolice were 

### investigating thePit Stop Express robbery. Hall told Detective Cooperthat heheard two gunshots thatmorning. The police department had not released any information about the number of shots fired. 

### Thenext day, Hall's friend Jaylyn Johnson spoke topolice. Johnson told the 

### police thatheand Hall lived together. Johnson told policethatthesunglasses the shooterwore belongedtohis mother, and theblack bandanabelonged tohim. Johnson also said he had seen the shooter's jacketin the laundry room of the home he shared
with Hall.No. 68443-4-1/4 

### The police interviewed Hall. Duringthe interview, Hall admitted shooting Melwani. Hall told police officers," 'I hoped that Iwould show him the gun and he would be scared and he would hand overthe money.'" The State charged Hall with felony murder inthe first degree and unlawful possession of a firearm inthe second degree. The State alleged that while attempting to commit robbery inthe first degree, Hall killed Manish Melwani. During a six-dayjury trial, the State called a number ofwitnesses to testify, including the Pit Stop Express customers who called 911, police officers and detectives,

a forensic expert, and the medical examiner. The court admitted the security camera videotape into evidence. Forensic scientist Kari O'Neill identified Hall's DNA1 on the discarded bandana and the interior ofthe gloves the officers found with the clothing at the apartment 

### building. O'Neill also testified that the blood on the exterior of the gloves belonged to 

### Melwani. King County ChiefMedical Examiner Richard Harrufftestified that Melwani died as a result of the gunshot wounds to the abdomen and the thigh. Halltestified, admitted he was the person shown inthe security camera video, 

### and that he attempted to disguise himself. Hall also admitted telling the policethat" 'I thought that the plan was going to be, okay, Iplanned, he would be behind the counter, itwas going to be easier, Icould just scare him with the gun.'" Hall testified that he knew he needed the clerk in order to open the cash register.

1(Deoxyribonucleic acid.No. 68443-4-1/5 

### In addition to instructing the juryonfelony murderin the first degree and attempted robberyin the first degree, the courtagreed to instruct the jury on the lesser included offense of felony murder in the second degree. During closing argument, defense counsel told the jury that the State had not proved the elements ofattempted robbery inthe firstdegree because Melwaniwas not 

### present "during the whole course of the encounterwith the cash register." The defense argued, in pertinent part: 

### [Hall] didn't take or attempt to take the personal property from the person or inthe presence against a person's will. Mr. Manish Melwani is not out there during the whole course of the encounter with the cash register. 

### We don't see my client trying to take anything or take anything in his presence. He certainly doesn't do anything to take anything from Mr. Manish Melwani's person. In addressing the defense argument, the prosecutor argued, in pertinent part: When [defense counsel] tells you it is not from the person, or inthe presence of, really we can never have a [robbery] that occurs, ifthe clerk has their back turned, or ifthe clerk is in the back room and the clerk interrupts.

. . . Importantly, when you think about attempted robbery first degree, what did this young man plan for? He planned for an encounter with someone, when he formed his intent. That's what he prepared and planned for. Thejury convicted Hall as charged offelony murder in the first degree and unlawful possession of a firearm inthe second degree. The court sentenced Hall to 331
months confinement.No. 68443-4-1/6

ANALYSIS 

### Hall challenges his conviction for felony murder inthe firstdegree. Hall asserts the State did not prove beyond a reasonable doubt the predicate offense ofattempted robbery inthe first degree. Hallargues thejury instruction defining robbery required the State to prove that the attempted taking occurred inthe presence ofanother, and there

was no evidence he used force when he first attempted to take money from the cash register. The State bears the burden of proving every element ofthe crime beyond a reasonable doubt. State v. A.M.. 163 Wn. App. 414. 419. 260 P.3d 229 (2011). In determining the sufficiency ofthe evidence, we must view the evidence inthe lightmost favorable to the State, and determine whether any rational trier offact could have found the essential elements ofthe crime beyond a reasonable doubt. State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In reviewing a challenge to the sufficiency of the evidence, we draw all reasonable inferences from the evidence in favor of the State and interpret the evidence most strongly against the defendant. Salinas. 119 Wn.2d at 

### 201. Adefendant claiming insufficiency ofthe evidence "admits the truth ofthe State's evidence." State v. Myers. 133 Wn.2d 26, 37, 941 P.2d 1102 (1997). We reviewjury 

### instructions and questions of law de novo. State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003). 

### To convict Hall of felony murder inthe first degree, the State had to prove that 

### while attempting to commit robbery inthe firstdegree, he caused the death ofMelwani. RCW9A.32.030(1)(c).No. 68443-4-1/7 

### To prove attempted robberyin the first degree, the State had to establish that 

### while armed with a deadly weapon, Hall intended to takepersonal property against Melwani's will and took a substantial step toward the commission of the crime. RCW 

### 9A.28.020(1), RCW 9A.56.190,2 RCW 9A.56.200. A"substantial step" is conduct strongly corroborative of the actor's criminalpurpose. State v. Aumick. 126 Wn.2d 422, 427, 894 P.2d 1325 (1995). Thejury can infer intent from all ofthe facts and circumstances. State v. 

### Bencivenaa. 137Wn.2d 703, 709, 974 P.2d 832 (1999). "[Wjherethe design of a person to commit a crime is clearly shown, slightacts done in furtherance of this design will constitute an attempt." State v. Nicholson. 77 Wn.2d 415, 420, 463 P.2d 633 (1969). 

### Aperson commits robbery by unlawfully taking personal property by the use or threatened use of force to retain the property. State v. Johnson. 155 Wn.2d 609, 610, 121 P.3d 91 (2005). "Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; ineither of whichcases the degree of force is immaterial." RCW9A.56.190. The definition of "robbery" also includes "the retention, via force against the property owner, of property initially taken peaceably or outside the presence ofthe property owner." State v. Handburgh. 119 

### Wn.2d 284, 293, 830 P.2d 641 (1992).3 Aperson commits robbery in thefirst degreeif during the commission of a robbery, or in flighttherefrom, the person inflicts bodily injury. RCW 9A.56.200(1)(a)(iii).

2Wenote thelegislature amended RCW 9A.56.190 in 2011 to add thewords "orher" after "his" throughout the statute. Laws of2011, ch. 336, § 379. 

### 3(Emphasis in original.)No. 68443-4-1/8 

### Hall relies on thejury instruction defining robbery to argue that because Melwani
was not at the cash register when Hall first attempted to open it, the attempted taking
was not made "in the presence ofanother." Jury Instruction No. 9 defined "robbery" as follows: 

### Aperson commits the crime of robbery when he or she unlawfully and with intent to commit theft thereoftakes personal property from the 

### person or in the presence ofanother againstthat person's will by the use or threatened use of immediate force, violence, orfear of injury to that 

### person or to that person's property or to the person or property of anyone. The force or fear must be used to obtain or retain possession ofthe 

### property or to prevent or overcome resistance to the taking, in either of which cases the degree of force is immaterial. The taking constitutes 

### robbery, even ifdeath precedes the taking,wheneverthe taking and a homicide are part ofthe same transaction. 

### Hall's argument iscontraryto the "transactional" analysis ofrobberyfirst setforth in State v. Manchester. 57Wn. App. 765, 770, 790 P.2d 217 (1990), and adopted by the supreme court in Handburqh. 119 Wn.2d at 290-91. In Manchester, the defendant took cigarettes from a grocery store and left 

### without paying. Manchester. 57Wn. App. at766. Outside thestore, Manchester flashed a knife at a security guardwho attempted to stop him. Manchester. 57Wn. 

### App. at766. The courtrejected Manchester's argumentthathedid nottake property in a person's presence because the storeemployees were a significantdistance away, and that he did not use force against anyone until after the taking was completed. 

### Manchester. 57Wn. App. at768. Thecourtheld that thetransactional view ofrobbery "does not considerthe robbery complete until the assailant has effected his escape." 

### Manchester. 57Wn. App. at770. Thecourtdefined "presence" as "ataking of 

### something 'sowithin [thevictim's] reach, inspection, observation orcontrol, thathe could, ifnot overcomewith violence orprevented byfear, retain his possession ofit.'"

8No. 68443-4-1/9 

### Manchester. 57Wn. App. at7684 (quoting 4 C. Torcia, Wharton's Criminal Law § 473 (14th ed. 1981)). The court concluded the defendant's arguments "ignore[d] the plain language ofthe statute: 'force or fear.
. . used to . .. retain possession ofthe property, 

### or to prevent orovercome resistance to the taking.'" Manchester. 57Wn. App. at7695 (quoting RCW 9A.56.190). In Handburqh. our supreme court agreed with the analysis in Manchester. Handburqh. 119 Wn.2d at 290-91, 293. The court rejected the common law view that force used during a robbery must be contemporaneous with the taking, and adopted the modern transactional view of robbery. Handburqh. 119 Wn.2d at 290-91; see also Johnson, 155 Wn.2d at 611. In adopting the transactional view 

### of robbery, the Court described a factual scenario markedly similar to the facts in
this case: 

### Aperson takes money from the cash register of a seemingly unattended convenience store, thereby committing theft. Before the thief flees, the owner comes out of the back room and confronts him. Seeing the owner, 

### the thief points a gun at him.
... In our opinion,
... the theft should be considered a robbery, even ifno additional property is taken; the retention 

### of the cash, by the use orthreatened use of force in the presence of the store owner, is more than theft. The robbery statute was intended to 

### punish this very combination ofcrimes. Handburqh. 119 Wn.2d at 290-91. 

### Hall also contends the State did not prove that he used force orfear during the 

### attempt to steal the money. Hall argues that the jury instruction omitted a sentence used inthe instruction in Handburqh and set forth in the Washington pattern jury 

### instruction defining robbery. See Handburqh. 119Wn.2d at 287-88. The omitted sentence states that "[s]uch taking constitutes robbery whenever itappears that, 4(Alteration in original.)

(Alterations in original.)No. 68443-4-1/10 

### although the taking was fully completedwithoutthe knowledge of the personfrom whom taken, such knowledge was prevented by the use of force or fear." 11 Washington 

### Practice: Washington PatternJury instructions: Criminal 37.50, at 674 (3d ed. 2008) (WPIC). The omitted sentence is in brackets. The WPIC states that the sentence shall be used only where itapplies to the facts ofthe case. WPIC 37.50, at 674. Here, the 

### bracketed language was clearly inapplicable to Hall's case. There is no dispute that Melwani knew Hallwas attempting to steal money from the cash register and confronted Hall during the attempt. Viewing the evidence inthe light most favorable to the State, the State presented 

### sufficient evidence to find Hallcommitted attempted robbery inthe firstdegree inthe presence of Melwani. Hall planned to steal money at Pit Stop Express convenience store by showing his gun to the clerk. Hall testified that he planned to " 'show [Melwani] the gun and he would hand the money over.'" Hall went to the Pit Stop Express armed with a snub-nosed revolver and wearing a disguise. Hall testified he knew he would need Melwani's help to get into the cash register. The cash register was locked and 

### access to the cash registerwas underMelwani's control.6 Melwani confronted Hall while he was attempting to open the register. Sufficient evidence also supports finding that Hall used force or fear during his attempt to steal the money from the register. There is no question that Hall used force 

### to "overcome resistance to thetaking."7 Thevideo shows that the attempts to steal the

6See Manchester, 57Wn. App. at 768(defining "presence" as ataking ofsomething within a victim's control). 7RCW9A.56.190. 10No. 68443-4-1/11 

### money and use of force were part of an ongoing transaction. Hall's efforts to get money out of the cash register occurred within seconds ofMelwani confronting him and Hall shooting Melwani. In his statement of additional grounds, Hall claims the court abused its discretion 

### indenying the motion to continue he made the day before trial. Hall's argument is
without merit. In July 2011, the court permitted Hall's counsel to withdraw and allowed another lawyer at The Defender Association to represent Hall. The court's decision was expressly based on the representation that "[t]he defense is not seeking a continuance ofthe current trial date in order to effectuate this substitution." Substitute counsel assured the court that "his substitution would not impact the trial date, that he would not seek a continuance." 

### Nonetheless, in September, the attorney filed a motion to continue the trial date 

### in order to prepare. The court granted the motion and continued the trial until 

### September 28 but on the condition of no further continuances. The day before trial, the presiding criminaljudge denied the motion to continue the trial date. We review a trial court's decision for an abuse ofdiscretion. State v. Nguyen. 

### 131 Wn. App. 815, 819, 129 P.3d 821 (2006). Atrial court abuses its discretion when it bases its decision on untenable grounds or reasons. Nguyen, 131 Wn. App. at 819. Here, the court granted the defense requestfor two continuances but denied the 

### request that was made the day before trial. The court did not abuse its discretion by denying the motion to continue.

11No. 68443-4-1/12 We reject Hall's argument that thejury instruction required the State to prove
more than the express statutory elements of robbery, and conclude sufficient evidence supports thejury verdict.
Affirmed. 

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WE CONCUR: 

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