Fl LE 

IN CLERKS OFFICE 

SUPREME CCUF<T, STATE OF WASHING'roN 

>EP 2 6 2013 

Thl~ oplnlon"'was filed for record at'Jl'~t~ 

Ronald R. Carpenter 

~uprerne Court Clerk 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

In the Matter of the Personal Restraint of ) No. 86241-9 

) 

BENJAMIN B. BROCKIE, ) 

) En Bane 

Petitioner. ) 

______________ ) Filed SEP 2 6 2013 

OWENS, J. -- Based on the robberies of a Pizza Hut and two banks, Benjamin 

Brockie was convicted of2 counts of :first degree robbery, 15 counts of first degree 

kidnapping, and 2 counts of making bomb threats. Brockie asks us to vacate those 

convictions because the jury was instructed on a means of committing first degree 

robbery that was not included in the charging information. Since Brockie fails to 

show actual and substantial prejudice resulting from the erroneous instruction, we 

deny his request for relief. 

FACTS 

In 2002, Brockie was accused of robbing a Pizza Hut, an Inland Northwest 

Bank, and a Safeway Federal Credit Union and of kidnapping the staff and patrons of 

those establishments in the course of the robberies. During his trial, the evidence 
In re Pers. Restraint of Brockie 

No. 86241-9 

showed that the robber displayed what appeared to be a gun throughout the robberies. 

During closing arguments, the prosecutor made references to the gun when he referred 

to the robber as a "gumnan" and described how the employees were forced "at 

gunpoint" to remove money from a vault. See Mot. to Vacate J. and Sentence (treated 

as a personal restraint petition), Ex. D at 807. Throughout the trial, Brockie 

maintained that he was not involved in the robberies. 

By law, there are distinct ways-or means-to commit first degree robbery. At 

issue in this case is the fact that the means in Brockie's charging information did not 

match the means described in the jury instructions. Brockie's charging information 

for the robberies indicated that "in the commission of and immediate flight therefrom, 

the defendant displayed what appeared to be a firearm or other deadly weapon," 

which is one of the alternative means of committing first degree robbery. See Mot. to 

Vacate J. and Sentence, Ex. Bat 1-2; former RCW 9A.56.200(1)(b) (1975). 

However, the jury instructions described two alternative means for first degree 

robbery: "A person commits the crime of robbery in the first degree when in the 

commission of a robbery he or she is armed with a deadly weapon or displays what 

appears to be a firearm or other deadly weapon." Resp. toPers. Restraint Pet., Attach. 

I, Instruction 8 (emphasis added); former RCW 9A.56.200(l)(a)-(b). 

The jury ultimately found Brockie guilty of 2 counts of first degree robbery, 15 

counts of first degree kidnapping, and 2 counts of making bomb threats. Brockie filed 

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In re Pers. Restraint of Brockie 

No. 86241-9 

a pro se motion to vacate his judgment and sentence, contending that his convictions 

should be vacated because the jury was instructed on an uncharged alternative means 

of committing first degree robbery. The superior court transferred the motion to the 

Court of Appeals as a timely successive personal restraint petition (PRP), and the 

Court of Appeals eventually transferred it to this court. 

ISSUE PRESENTED 

Has Brockie shown actual and substantial prejudice resulting from the first 

degree robbery jury instruction on uncharged alternative means? 

ANALYSIS 

Failing to properly notify a defendant of the nature and cause of the accusation 

of a criminal charge is a constitutional violation. U.S. CONST. amend. VI; WASH. 

CONST. art. I, § 22; State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). To 

obtain relief through a PRP, a petitioner alleging a constitutional error must 

demonstrate "actual and substantial prejudice." In re Pers. Restraint of Cook, 114 

Wn.2d 802, 810,792 P.2d 506 (1990). Accordingly, we must first determine whether 

the jury instruction on the alternative means in Brockie's case was error. The parties 

dispute whether this determination should be based on our long-standing case law on 

jury instructions on uncharged alternative means or our more recently developed test 

on errors in ~harging information. As described below, we continue to apply the rules 

developed through our jury instruction cases. Applying these rules, we must 

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In re Pers. Restraint of Brockie 

No. 86241-9 

determine whether the jury instruction was error. If so, we then determine whether 

the error resulted in prejudice. 

I. We Apply Our Prior Case Law on Jury Instructions, Not the Kjorsvik Charging 

Information Test 

Defendants must be informed of the charges against them, including the 

manner of committing the crime. State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332 

( 1988). Beginning with the Severns case in 1942, we have long held that it is error for 

a trial court to instruct the jury on uncharged alternative means. See, e.g., State v. 

Severns, 13 Wn.2d 542, 548, 125 P.2d 659 (1942). On direct appeal, it is the State's 

burden to prove that the error was harmless. Bray, 52 Wn. App. at 34-35. This is 

based on our rule that "[e]rroneous instructions given on behalf of the party in whose 

favor the verdict was returned are presumed prejudicial unless it affirmatively appears 

they were harmless." State v. Rice, 102 Wn.2d 120, 123, 683 P.2d 199 (1984). 

In a separate line of cases, we have addressed errors in charging information 

that are first raised in appeal. Kjorsvik, 117 Wn.2d at 105-06. The two-prong 

Kjorsvik rule differs from the jury instruction test described above in terms of the 

standards for both prejudice and burden of proof. Under the two-prong Kjorsvik rule, 

the reviewing court first liberally construes the charging information to determine if 

the defendant actually received notice. I d. at 105. If so, the court proceeds to a 

prejudice analysis. I d. at 106. If not, the court does not proceed to a prejudice 

analysis. State v. McCarty, 140 Wn.2d 420, 425-26, 998 P.2d 296 (2000). 

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In re Pers. Restraint of Brockie 

No. 86241-9 

In this case, the parties dispute whether Brockie's claim is an error injury 

instructions (and thus Severns should apply) or an error in the charging document (and 

thus Kjorsvik should apply). Thus, a threshold issue in this case is whether the 

Kjorsvik charging document test applies when a defendant claims for the first time on 

appeal or in a PRP that the jury was instructed on an uncharged alternative means. 

We now clarify that the two-prong Kjorsvik test does not apply to such jury 

instruction cases, 1 as doing so would require overturning the Severns line of cases and 

we see no reason to do so. 

2. Brockie's Charging Information Did Not Put Him on Notice of the Alternative 

Means for His Robbery Charges 

The State asserts that the charging document's phrase "the defendant displayed 

what appeared to be a firearm or other deadly weapon" could mean either displaying 

or being armed with a deadly weapon, since one has to be armed with a weapon in 

order to display a weapon. But the State's argument fails because one may display 

what appears to be a deadly weapon without being armed with an actual deadly 

1 In contrast to the State's assertion, State v. Kosewicz, 174 Wn.2d 683, 278 P.3d 184, 

cert. denied, 133 S. Ct. 485 (2012), did not apply aKjorsvik analysis to a jury instruction 

challenge. A careful reading of Kosewicz shows that we reviewed the defendants' felony 

and aggravated murder charges, for which there were no jury instructions on uncharged 

alternative means. 174 Wn.2d at 688-92. Although this court discussed jury instructions 

on uncharged alternative means in relation to the separate kidnapping charges in 

Kosewicz, id. at 690, those instructions were analyzed by the Court of Appeals under our 

jury instructions case law (including Severns), not the Kjorsvik charging information test, 

and were not reviewed by this court. See Kosewicz, 174 Wn.2d at 690-91; State v. 

Kosewicz, noted at 150 Wn. App. 1055, 2009 WL 1765941; State v. Brown, noted at 156 

Wn. App. 1035, 2010 WL 2403353. 

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In re Pers. Restraint of Brockie 

No. 86241-9 

weapon (such as when a person displays a realistic-looking toy gun). See, e.g., State 

v. Hauck, 33 Wn. App. 75, 77, 651 P.2d 1092 (1982). Similarly, a person may be 

armed with, but not display, a deadly weapon (such as a gun hidden in a person's 

pocket). The legislature clearly intended to treat the two alternative means of 

committing robbery in the first degree as distinct, and the State's reading would 

improperly collapse the two. 

By specifying the means of displaying what appeared to be a firearm or other 

deadly weapon, the charging information limited Brockie's notice to that particular 

means. Nothing in the charging information put Brockie on notice that he might be 

charged with the alternative means of first degree robbery while armed with a deadly 

weapon. 

3. Although It Was Error To Instruct the Jury on the Uncharged Alternative 

Means, Brockie Has Not Shown Actual and Substantial Prejudice 

Uncharged alternative means cases on direct appeal and in a PRP implicate 

different burdens of proof. In uncharged alternative means cases on direct appeal, 

Washington courts have held that instructing the jury on uncharged alternative means 

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In re Pers. Restraint ofBrockie 

No. 86241-9 

is presumed to be prejudicial unless the State can show that the error was harmless. 2 

See Bray, 52 Wn. App. at 34-36 ("An erroneous instruction given on behalf of the 

party in whose favor the verdict was returned is presumed prejudicial unless it 

affirmatively appears that the error was harmless."). 

On collateral review the burden shifts. If a constitutional error is subject to 

harmless error analysis on direct appeal, that same error alleged in a PRP must be 

shown to have caused actual and substantial prejudice in order for the petitioner to 

obtain relief. In re Pers. Restraint of Hagler, 97 Wn.2d 818, 825-26, 650 P.2d 1103 

(1982). This rule is based on the fundamental principle that "[a] personal restraint 

petition, like a petition for a writ of habeas corpus, is not a substitute for an appeal." 

I d. at 824. Collateral relief is limited because it "undermines the principles of finality 

of litigation, degrades the prominence of the trial, and sometimes costs society the 

right to punish admitted offenders." Id. 

"[I]n order to prevail in a collateral attack, a petitioner must show that more 

likely than not he was prejudiced by the error." Id. at 826. The court determines 

2 We note that this case does not involve a constitutional error that is per se prejudicial on 

direct appeal. A constitutional error that is per se prejudicial on direct appeal cannot be 

shown to be harmless. In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 328-29, 823 

P .2d 492 (1992) (on direct appeal, a defendant does not have to show prejudice for an 

error that is per se prejudicial because harm is presumed). In contrast, in an uncharged 

alternative means case, the State has the opportunity to show harmlessness. See Bray, 52 

Wn. App. at 34-36. For the same reason, this case does not involve a structural error 

because structural errors are not subject to a harmless error standard on direct appeal. See 

Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993). 

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In re Pers. Restraint of Brockie 

No. 86241-9 

actual prejudice "in light of the totality of circumstances." In re Pers. Restraint of 

Music, 104 Wn.2d 189, 191,704 P.2d 144 (1985). Those circumstances include "the 

jury instructions given, the arguments of counsel, weight of evidence of guilt, and 

other relevant factors in evaluating whether a particular instruction caused actual 

prejudice." !d. 

At the heart of Brockie's claim is that he may have been convicted of first 

degree robbery through an uncharged alternative means. Thus, the question is: Based 

on the evidence Brockie has presented, is it more likely than not that he was convicted 

of first degree robbery for being armed with a deadly weapon rather than displaying 

what appears to be a deadly weapon? In this case, the answer is no. Throughout the 

trial, the evidence consistently showed that the robber displayed what appeared to be a 

gun throughout the robberies. There is no indication that the trial included any 

discussion or claim that the robber was armed with a deadly weapon but did not 

display it. Thus, based on the facts in this particular case, any juror that found the 

robber was armed with a deadly weapon necessarily would have found that the robber 

displayed the weapon-the alternative means that was properly described in the 

charging information. 

Moreover, Brockie's defense at trial was complete denial of any involvement in 

the robberies. He did not make any arguments about whether or not he displayed or 

was armed with a weapon. And Brockie does not argue here that he would have 

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In re Pers. Restraint of Brockie 

No. 86241-9 

mounted a different defense if he had been charged with being armed during the 

robbery. Since he has not demonstrated actual and substantial prejudice, we deny his 

request to vacate his robbery convictions. 

Brockie also argues that if his robbery convictions are vacated, his related 

convictions should also be vacated. Because we are not vacating his robbery 

convictions, we do not reach that issue. 

CONCLUSION 

A PRP is an extraordinary remedy that requires a petitioner to show actual and 

substantial prejudice. In this case, Brockie has failed to make such a showing and we 

therefore deny his petition. 

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In re Pers. Restraint of Brockie 

No. 86241-9 

WE CONCUR: 

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