# FlLE IN CLERKS OFFICE SUPREME CCUF<T, STATE OF WASHING'roN 

### >EP 262013**Thl~** oplnlon"'was filedfor

# record**at'Jl'~t~** Ronald R. Carpenter**~uprerne** Court Clerk
IN THE SUPREME COURTOF THE STATE OF WASHINGTON
Inthe Matter ofthe Personal Restraint of ) No. 86241-9 ) BENJAMINB. BROCKIE, ) ) EnBane Petitioner. )

______________ ) Filed 

### SEP 262013 OWENS, J.

-- Based on the robberies ofa PizzaHut and two banks, Benjamin Brockie was convicted of2 counts of:first degree robbery, 15 counts offirst degree kidnapping, and 2 counts ofmaking bomb threats. Brockie asks us to vacate those convictions because thejurywas instructed on a means ofcommitting 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 ofrobbing aPizzaHut, an InlandNorthwest Bank, and a SafewayFederal CreditUnion and ofkidnapping the staffand patrons of those establishments inthe course ofthe robberies. Duringhis trial, the evidenceIn re Pers. Restraint of Brockie No. 86241-9 showed that the robber displayed what appeared to be a gunthroughoutthe robberies. During closing arguments, the prosecutor made references to the gunwhenhereferred to the robber as a "gumnan" and described howthe employees were forced "at gunpoint" to remove money from a vault. See Mot. to Vacate J. and Sentence (treated
as a personalrestraintpetition), Ex. D at 807. Throughout the trial, Brockie maintained thathe was not involved in the robberies. By law, there are distinct ways-ormeans-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 thejury instructions. Brockie's charging information for the robberies indicated that "inthe commission ofand immediate flight therefrom, the defendant displayed what appearedto be a firearm or other deadly weapon," which is one ofthe alternative means ofcommitting first degree robbery. See Mot. to Vacate J. and Sentence, Ex. Bat 1-2; former RCW 9A.56.200(1)(b) (1975). However, thejury instructions described two alternative means for first degree robbery: "Aperson commits the crime ofrobbery in the first degree when in the commission ofa robbery he or she is armedwith 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). Thejuryultimately found Brockie guilty of2 counts offirst degree robbery, 15 counts offirst degree kidnapping, and 2 counts ofmaking bomb threats. Brockie filed

2In re Pers. Restraint of Brockie No. 86241-9

a pro se motion to vacate hisjudgment and sentence, contending that his convictions should be vacated because thejurywas instructed on an uncharged alternative means ofcommitting first degree robbery. The superior courttransferredthe motion to the Court ofAppeals as atimely successive personal restraint petition (PRP), and the Court ofAppeals eventually transferred it to this court. ISSUE PRESENTED Has Brockie shown actual and substantial prejudice resulting from the first degree robberyjury instruction onuncharged alternative means? ANALYSIS Failing to properly notify a defendant ofthe nature and cause ofthe accusation ofa 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 reliefthrough 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 thejury instruction onthe 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 ourjury instruction cases. Applying these rules, we must

3In re Pers. Restraint of Brockie No. 86241-9 determine whether thejury instruction was error. Ifso, we then determine whether the error resulted in prejudice. 

### I. We Apply OurPrior Case Law onJuryInstructions, Not the Kjorsvik Charging Information Test Defendants must be informed ofthe charges against them, includingthe
manner ofcommitting 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
atrial courtto instructthejuryonuncharged 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 thatthe error was harmless. Bray, 52 Wn. App. at 34-35. This is based on our rule that "[e]rroneous instructions given on behalfofthe party in whose favor the verdict was returned are presumedprejudicial unless it affirmatively appears they were harmless." State v. Rice, 102 Wn.2d 120, 123, 683 P.2d 199 (1984). In a separate line ofcases, we have addressed errors in charging information that are first raised in appeal. Kjorsvik, 117 Wn.2d at 105-06. The two-prong Kjorsvikrule differs from thejuryinstruction test described above in terms ofthe standards for both prejudice and burden ofproof. Underthe two-prong Kjorsvikrule, the reviewing court first liberally construes the charging information to determine if the defendant actually received notice. 

### I d. at 105. Ifso, the court proceeds to a prejudice analysis. 

### I d. at 106. Ifnot, the court does notproceed to a prejudice analysis. State v. McCarty, 140 Wn.2d 420, 425-26, 998 P.2d 296 (2000).
4In re Pers. Restraint of Brockie No. 86241-9
Inthis case, the parties dispute whetherBrockie'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 thatthejury was instructed on an uncharged alternative means. We now clarify that the two-prong Kjorsviktest does not apply to suchjury instruction cases,1 as doing so would require overturning the Severns line ofcases and
we see no reasonto do so. 2. Brockie's ChargingInformationDidNotPutHim onNotice of theAlternative Meansfor His Robbery Charges The State asserts that the charging document's phrase "the defendant displayed what appearedto 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 weaponin orderto display a weapon. Butthe State's argument fails because one may display what appears to be a deadly weapon without being armed with an actual deadly

1In 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 ajury instruction challenge. A careful reading ofKosewicz shows that we reviewed the defendants' felony and aggravated murder charges, for which there were nojury instructions on uncharged alternative means. 174 Wn.2d at 688-92. Although this court discussedjury instructions on uncharged alternative means in relation to the separate kidnapping charges in Kosewicz, id. at 690, those instructions were analyzed by the Court ofAppeals 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. 5In 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, aperson 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 treatthe 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 ofdisplaying what appeared to be a firearm or other deadly weapon, the charging information limited Brockie's notice to thatparticular
means. Nothing in the charging informationput Brockie onnotice that he might be charged withthe alternative means offirst degree robbery while armed with a deadly weapon. 3. AlthoughIt Was Error To Instruct the Jury on the UnchargedAlternative Means, Brockie Has NotShownActualandSubstantialPrejudice Uncharged alternative means cases on direct appeal and in a PRP implicate different burdens ofproof. In uncharged alternative means cases on direct appeal, Washington courts have held that instructing thejury onuncharged alternative means

6In re Pers. Restraint ofBrockie No. 86241-9 is presumed to beprejudicial unless the State can show thatthe error was harmless. 2 See Bray, 52 Wn. App. at 34-36 ("An erroneous instruction given onbehalfofthe party in whose favor the verdict was returned is presumedprejudicial unless it affirmatively appears that the error was harmless."). On collateral review the burden shifts. Ifa constitutional error is subjectto 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 petitionerto obtain relief. In re Pers. Restraint of Hagler, 97 Wn.2d 818, 825-26, 650 P.2d 1103 (1982). This rule is based onthe fundamental principle that "[a] personalrestraint petition, like a petition for a writ ofhabeas corpus, is not a substitute for an appeal." I

### d. at 824. Collateral reliefis limited because it "undermines the principles offinality oflitigation, degrades the prominence ofthe trial, and sometimes costs society the right to punish admitted offenders." 

### Id. "[I]n order to prevail in a collateral attack, apetitioner must show thatmore likely than not he was prejudicedbythe 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. Restraintof 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 errorthat 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 aharmless error standard on direct appeal. See Brechtv. Abrahamson, 507 U.S. 619, 629-30, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993).
7In re Pers. Restraint of Brockie No. 86241-9 actual prejudice "in light ofthe totality ofcircumstances." In re Pers. Restraint of Music, 104 Wn.2d 189, 191,704P.2d 144 (1985). Those circumstances include "the jury instructions given, the arguments ofcounsel, weight ofevidence ofguilt, and other relevant factors in evaluating whether a particular instruction caused actual prejudice." 

### !d. At the heart ofBrockie's claim is that he may have been convicted offirst degree robbery through an uncharged alternative means. Thus, the question is: Based
onthe evidence Brockie has presented, is it more likely than notthat he was convicted offirst degree robbery for being armed with a deadly weapon rather than displaying what appears to be a deadly weapon? Inthis case, the answer is no. Throughout the trial, the evidence consistently showed that the robber displayed what appeared to be a gun throughoutthe 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 onthe facts in this particular case, anyjurorthat 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 ofany 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

8In re Pers. Restraint of Brockie No. 86241-9 mounted a different defense ifhe 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 ifhis 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 petitionerto show actual and substantial prejudice. Inthis case, Brockiehas failed to make such a showing and we therefore deny his petition.

9In re Pers. Restraint of Brockie No. 86241-9



### WE CONCUR:

10