State v. Phillips

• Citation: 444 P.3d 51
• Decision Date: 01 July 2019
• Docket Number: No. 77562-6-I,77562-6-I
• Court: Court of Appeals of Washington
• Parties: STATE of Washington, Respondent, v. Earl Ray PHILLIPS, Appellant.

444 P.3d 51

STATE of Washington, Respondent,

v.Earl Ray PHILLIPS, Appellant.

No. 77562-6-I

Court of Appeals of Washington, Division 1.

FILED: July 1, 2019

Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Prosecuting Attorney King County, King Co. Pros./App. Unit Supervisor, Donna Lynn Wise, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Dwyer, J.

¶1 Earl Ray Phillips was charged with robbery in the second degree and convicted after a jury trial. On appeal, he avers that the information charging him with the offense was constitutionally defective in that it did not include all of the elements of the offense of robbery in the second degree. He also perceives error in the absence of a jury instruction on the defense of good faith claim of title. Finally, he asserts that he received ineffective assistance of counsel because his attorney did not propose a good faith claim of title instruction. Finding no error, we affirm.

I

¶2 Clifford Van Horne, night manager at a Red Apple Market in Seattle, saw Earl Phillips enter the store, select a case of 18 beer bottles from the refrigerator, and walk past the store’s checkout counter without paying for the item. Van Horne followed Phillips past the counter. Accosting Phillips as he was leaving the building, Van Horne grabbed the case of beer and told Phillips to return the item. Phillips attempted to strike Van Horne, but Van Horne ducked and was not hit.

¶3 Oscar Cerrillo, a store cashier on duty at the time, also saw Phillips attempt to leave without paying for the beer. Cerrillo followed Van Horne and attempted to assist him in the physical struggle with Phillips. Phillips, for his part, pushed back and refused to surrender the beer.

¶4 Phillips insisted that he had a receipt for the item, but both Van Horne and Cerrillo, having seen him bypass the checkout counter without paying for it, did not believe him. Both employees told Phillips that he would be free to go upon relinquishment of the beer, but Phillips did not yield. As this struggle was ongoing, the case of beer fell to the ground, breaking some of the glass bottles within.

¶5 At this point, Troy Jenks, a regular customer at the Red Apple, drove into the store’s parking lot and saw the two employees scuffling with Phillips. Jenks was able to restrain Phillips and held him on the ground while Van Horne left to telephone the police. While he was being restrained by Jenks, Phillips bit Jenks’s bicep with sufficient force to puncture the skin. Jenks continued to restrain Phillips until the police arrived on the scene. Upon arrival, Seattle Police Officer Nathan Bertsch searched Phillips and did not find a receipt for purchase of the beer.

¶6 Phillips was charged with robbery in the second degree and assault in the third degree. The information charging Phillips with robbery in the second degree stated:

That the defendant Earl Ray Phillips in King County, Washington, on or about February 8, 2017, did unlawfully and with intent to commit theft take personal property of another, to-wit: merchandise, from the person and in the presence of Clifford Van Horne and Oscar [Cerrillo], who had an ownership, representative, or possessory interest in that property, against his will, by the use or threatened use of immediate force, violence and fear of injury to such person or his property and to the person or property of another;

Contrary to RCW 9A.56.210 and 9A.56.190, and against the peace and dignity of the State of Washington.

¶7 At the close of the trial, the jury found Phillips guilty on both counts. However, prior to sentencing, Phillips moved for a new trial based on his trial counsel’s failure to propose a jury instruction on self-defense. The trial court granted the motion only as to Phillips’s conviction for assault in the third degree. The State chose not to retry the assault charge and it was dismissed. The trial court imposed a standard range sentence of 70 months of incarceration on the robbery conviction.¹

II

¶8 Phillips first contends that the information charging him with robbery in the second degree was constitutionally deficient. This is so, he avers, because it did not specifically state that he had used force or fear to obtain or retain possession of the property at issue. We disagree with his contention that this is an essential element of robbery such that its omission amounted to constitutional error.

¶9 Pursuant to both the Constitution of the United States and the Washington Constitution, an accused has a right to be informed of the criminal charges against him or her to enable adequate preparation of a defense. U.S. CONST . amend. VI ; WASH. CONST . art. I, § 22 (amend. X). To ensure the protection of this right, a defendant must be provided a charging document setting forth every material element of the charge or charges against the defendant, along with all essential supporting facts. State v. McCarty, 140 Wash.2d 420, 425, 998 P.2d 296 (2000).

¶10 "The standard of review for evaluating the sufficiency of a charging document is determined by the time at which the motion challenging its sufficiency is made." State v. Taylor, 140 Wash.2d 229, 237, 996 P.2d 571 (2000). When a defendant challenges the sufficiency of the charging document before a verdict is rendered, the charging language must be strictly construed. Taylor, 140 Wash.2d at 237, 996 P.2d 571. If the defendant challenges the sufficiency after the verdict is rendered, the charging document must be construed liberally in favor of validity. Taylor, 140 Wash.2d at 237, 996 P.2d 571.

¶11 A challenge to the sufficiency of a charging document involves a question of constitutional due process and may be raised for the first time on appeal. See State v. Leach, 113 Wash.2d 679, 691, 782 P.2d 552 (1989) ("An appellant may at any time claim an error which was not raised in the trial court if the error affects a constitutional right."); RAP 2.5(a)(3). When an appellant raises such a challenge for the first time on appeal, as here, we employ the two-prong test set forth in State v. Kjorsvik, 117 Wash.2d 93, 106, 812 P.2d 86 (1991) ("The standard of review we here adopt will require at least some language in the information giving notice of the allegedly missing element(s) and if the language is vague, an inquiry may be required into whether there was actual prejudice to the defendant.").

¶12 To satisfy the first prong, we must liberally construe the language of the charging document to determine if it contains the necessary elements of the crime charged. McCarty, 140 Wash.2d at 425, 998 P.2d 296. If the charging document can be construed as containing the required elements, even if only in vague terms, we must then determine if the language resulted in any actual prejudice to the defendant (the second prong of the test). McCarty, 140 Wash.2d at 425, 998 P.2d 296. However, if the necessary elements cannot be found in or even fairly inferred from the charging document, we presume prejudice without reaching the second prong of the test. McCarty, 140 Wash.2d at 425, 998 P.2d 296. The remedy for an insufficient charging document is reversal and dismissal of the charges without prejudice to the State’s ability to refile. State v. Quismundo, 164 Wash.2d 499, 504, 192 P.3d 342 (2008).

¶13 "A person is guilty of robbery in the second degree if he or she commits robbery." RCW 9A.56.210(1). The elements of robbery are set forth in the definitional statute, RCW 9A.56.190 :

A person commits robbery when he or she unlawfully takes personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury to that person or his or her property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.

(Emphasis added.)

¶14 Phillips contends that the information in his case did not properly set forth all of the essential elements of the crime of robbery in the second degree, as it did not recite the second sentence of RCW 9A.56.190 (emphasized above). In response, the State asserts that this sentence is merely definitional and exists only to explain the "transactional" understanding of how robbery occurs, and not to broaden the elements of robbery set forth in the first sentence. Given that Phillips did not raise this issue in the trial court, we apply the standard of review set forth in Kjorsvik, 117 Wash.2d at 106, 812 P.2d 86. Thus, we must first determine whether the language of the amended information included all of the essential elements of the crime of robbery in the second degree. This requires us to explicate the essential elements of that crime.

¶15 Washington law incorporates a "transactional" view of the crime of robbery, meaning that a robbery need not involve the use of force in the initial taking of property but, rather, may involve the use of force to retain property already taken or to impede the rightful owner’s efforts to retrieve it. State v. Handburgh, 119 Wash.2d 284, 293, 830 P.2d 641 (1992). Under this transactional view, a taking of property is "ongoing until the assailant has effected an escape." State v. Truong, 168 Wash. App. 529, 535-36, 277 P.3d 74 (2012).

¶16 A Supreme Court decision, State v. Johnson, 155 Wash.2d 609, 121 P.3d 91 (2005), illustrates the implications of this transactional view. There, a man who used force to effect an escape only after abandoning stolen property was held not to have committed robbery. The court explained:

The trial

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