State Of Washington, V Kim B. White ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 43981 -6 -II
Respondent,
V.
KIM BERNARD WHITE, UNPUBLISHED OPINION
WORSWICK, C. J. — After a jury trial, Kim White was convicted of one count of second
degree robbery. White appeals, arguing that the trial court committed two instructional errors:
1) violating his right to a unanimous verdict by failing to give a Petrich' instruction and ( 2)
violating his right to a jury trial by misleading the jury about its power to acquit even if the
evidence proved every element beyond a reasonable doubt. Because no Petrich instruction is
required for a continuing course of criminal conduct and the invited error doctrine prohibits
White from complaining about the jury instructions, we affirm.
1
State v. Petrich, 101 Wash. 2d 566, 572, 683 P.2d 173 ( 1984), overruled on other grounds by
State v. Kitchen, 110 Wash. 2d 403, 405 -06, 756 P.2d 105 ( 1988).
No. 43981 -6 -II
FACTS
At about 3: 00 AM on April 18, 2012, White and another man entered a 24 -hour
Walgreens store in Spanaway. Two employees, Deanna Teague and Kersten Gouveia, were
stocking shelves at the time. The men asked for assistance finding some items. White filled a
shopping basket with merchandise while the other man went outside.
Teague and Gouveia were suspicious of the men. On her way outside for a smoking
break, Gouveia disabled the automatic door so that no other people could enter.
When White said he was ready, Teague went behind the checkout counter. But White
said, "[ T] hank you," and jogged toward the door without paying. 3 Verbatim Report of
Proceedings ( VRP) at 44. The door did not open as White approached, and Teague asked him to
return the merchandise. 3 VRP at 45. Teague then grabbed the shopping basket and a " tug of
war" ensued. 3 VRP at 45.
White knocked the door open and pulled Teague outside, where she fell and lost her grip
on the basket. _Believing that White was hurting Teague, Gouveia pushed and struck White.
Gouveia then grabbed onto the basket, holding on until White pushed her and she fell in the
parking lot. Taking about $ 150 worth of merchandise in the basket, White ran across the street
toward a gas station, where he was arrested by police who had responded to Teague' s 911 call.
The State charged White with one count of first degree robbery, asserting that he forcibly
took property " from the person or in the presence of D. Teague or
and / K[.] Gouveia." Clerk' s
Papers ( CP) at 1. At White' s request, the trial court also instructed the jury on second degree
robbery and third degree theft as lesser -included offenses.
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No. 43981 -6 -II
The State and White each proposed a complete packet of jury instructions. 2 But White
did not propose, and the trial court did not give, a Petrich instruction informing the jury that it
must unanimously decide whether White used force against Teague or against Gouveia.
White based his three proposed to- convict instructions on WPIC 37. 02, 37. 04, and 70. 11,
respectively. These proposed instructions told the jury that " it will be your duty to return a
verdict of guilty" if the evidence proved all elements beyond a reasonable doubt. CP at 148, 152,
3
154. The trial court gave identical to- convict instructions to the jury.
2
The State' s proposed instructions are not part of the record on appeal. But White agreed with
the State' s characterization of the competing sets of instructions as " virtually the same except for
the lesser included instructions." 4 VRP White did not object on any grounds to the State' s
at 5.
instructions or to the instructions ultimately given by the trial court.
3 The trial court' s to- convict instruction for first degree robbery stated:
To convict the defendant of the crime of Robbery in the First Degree, each
of the following six elements of the crime must be proved beyond a reasonable
doubt:
1) That on or about the 18th day of April, 2012 the defendant unlawfully
took personal property from the person or in the presence of another[;]
2) That the defendant intended to commit theft of the property;
3) That the taking was against the person' s will by the defendant' s use or
threatened use of immediate force, violence or fear of injury to that person;
4) That the force or fear was used by the defendant to obtain or retain
possession of the property or to prevent or overcome resistance to the taking;
5) That in the commission of these acts or in the immediate flight
therefrom the defendant inflicted bodily injury; and
6) That any of these acts occurred in the State of Washington.
If you find from the evidence that these elements have been proved
beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a
reasonable doubt as to any one of these elements, then it will be your duty to
return a verdict of not guilty.
CP at 62 ( instruction 8). The to- convict instruction for second degree robbery (instruction 17)
was identical in substance, except that it omitted the fifth element regarding the infliction of
injury.
No. 43981 -6 -II
The jury found White guilty of second degree robbery. White appeals.
ANALYSIS
White argues that the trial court committed two instructional errors.4 First, White argues
that the trial court violated his right to a unanimous verdict by failing to give a Petrich
instruction. Second, White argues that the trial court' s to- convict instructions violated his right
to a jury trial by misleading the jury about its power to nullify.
A. Failure To Give a Petrich Instruction
White first claims that the trial court violated his right to a unanimous verdict by failing
to give a Petrich instruction directing the jury to unanimously find whether White used force
against Teague or against Gouveia.5 We disagree.
In Washington, a jury may find a criminal defendant guilty only if it unanimously
concludes that he committed the charged offense. State v. Petrich, 101 Wash. 2d 566, 569, 683
P.2d 173 ( 1984), overruled on other grounds by State v. Kitchen, 110 Wash. 2d 403, 405 -06, 756
P.2d 105 ( 1988). When the record contains evidence_ multiple acts that could constitute an
of
offense but the State charges the defendant with only a single count, then either the State must
elect the act constituting the offense or the trial court must instruct the jury that they must agree
unanimously on the act constituting the offense. Petrich, 101 Wash. 2d at 572.
4 White' s assignments of error fail to identify the challenged instructions by number, as RAP
10. 3( g) requires. Nonetheless, it is clear that he challenges ( 1) the absence of Petrich instruction
and ( 2) the to- convict instructions.
5 White may raise this issue for the first time on appeal because a trial court' s failure to give a
Petrich instruction is a manifest error affecting a constitutional right. State v. Holland, 77 Wn.
App. 420, 424, 891 P.2d 49 ( 1995); see RAP 2. 5( a)( 3).
6 The State did not make an election here.
M
No. 43981 -6 -II
A Petrich instruction is appropriate only if the, record contains evidence of several
distinct criminal acts. Petrich, 101 Wash. 2d at 571; State v. Handran, 113 Wash. 2d 11, 17, 775 P.2d
453 ( 1989). But a Petrich instruction is not appropriate where, considering the evidence in a
commonsense manner, the record shows one continuing course of criminal conduct. 7 Handran,
113 Wash. 2d at 17. The record shows a continuing course of conduct when there is evidence that
the defendant took " a series of actions intended to secure the same objective." State v. Fiallo-
Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 ( 1995). One continuing course of conduct may
occur even though the defendant directed his conduct at two different victims. State v.
Thompson, 169 Wn. App. 436, 475, 290 P.3d 996 ( 2012), review denied, 176 Wash. 2d 1023
2013).
Considered in a commonsense manner, the record shows one continuing course of
conduct in which White used force against Teague and Gouveia to secure the same objective: the
theft of Walgreens' s merchandise. Given this one continuing course of conduct, a Petrich
instruction was not appropriate._Handran, 113 Wash. 2d at 17. This argument fails.
7 White does not argue that he engaged in more than one course of conduct.
E
No. 43981- 6- 11
B. Duty To Return a Guilty Verdict
White also challenges the trial court' s to- convict instructions, claiming that they violated
his right to a jury trial by telling the jury of its " duty to return a verdict of guilty" if the evidence
8
proved all elements beyond a reasonable doubt. CP at 62, 71, 73. In response, the State
contends that the invited error doctrine prohibits White from making this argument. We agree
with the State..
The invited error doctrine " prohibits a party from setting up an error at trial and then
complaining of it on appeal." State v. Pam, 101 Wash. 2d 507, 511, 680 P.2d 762 ( 1984). Where a
defendant has proposed instructions that the trial court gave to the jury, the defendant. cannot
appeal on the ground that his own proposed instructions violated his constitutional rights. State
v. Henderson, 114 Wash. 2d 867, 868, 792 P.2d 514 ( 1990). Here, White proposed three to- convict
instructions, and the trial court gave them. Therefore the invited error doctrine prohibits White
from arguing that the to- convict instructions violated his right to a jury trial, and we do not
consider his argument.
8
White claims that RAP 2. 5( a)( 3) also allows him to raise this issue for the first time on appeal.
But no Washington case has decided whether a to- convict instruction containing the phrase " it
will be your duty to return a verdict of guilty" presents a manifest error affecting a constitutional
right. See State v. Meggyesy, 90 Wash. App. 693, 697 -98, 958 P.2d 319 ( 1998) ( invoking RAP
1. 2( c) and considering the assigned error in a consolidated appeal where one appellant
challenged the instruction at trial and the other did not). Regardless, RAP 2. 5( a)( 3) does not
allow a defendant to make an argument that is prohibited by the invited error doctrine. State v.
Henderson, 114 Wash. 2d 867, 869 -70, 792 P.2d 514 ( 1990); see also State v. Corbett, 158 Wn.
App. 576, 592 -93, 242 P.3d 52 ( 2010) ( distinguishing invited error from a mere failure to object
to a constitutionally erroneous instruction).
2
No. 43981 -6 -II
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
Worswick, C. J.
We concur:.
7