Opinion
No. 62067-3-I.
January 19, 2010.
Appeal from a judgment of the Superior Court for Whatcom County, No. 08-1-00649-5, Steven J. Mura, J., entered July 29, 2008.
Affirmed by unpublished opinion per Schindler, C.J., concurred in by Grosse and Cox, JJ.
Craig Carlis seeks reversal of his conviction for first-degree robbery. Carlis argues that the court erred in giving a jury instruction defining threat to include a threat to inflict future harm. Carlis further contends that his counsel provided ineffective assistance by failing to object to the erroneous jury instruction. We affirm.
FACTS
On May 19, 2008, Robert Dowdle was at his apartment with several of his friends, when two men arrived to purchase marijuana from him. Dowdle testified that he had met one of the men, named "Greg or Craig," once before. Dowdle took the men to his bedroom upstairs. After Dowdle retrieved a bag containing approximately four to six grams of marijuana from his bedroom closet and turned around to face the men, Carlis pulled a firearm out of his waistband and held it six to twelve inches from his face. Carlis told Dowdle he would not pay for the marijuana and demanded Dowdle give him all the drugs and money he had. When Dowdle told Carlis he did not have any more drugs, Carlis said "'you have got to have more'" and "'this can't be it.'" The other person who accompanied Carlis, Simrandeep Kang, took the bag of marijuana from Dowdle, and searched the room. Kang then searched Dowdle's pockets. Kang took Dowdle's cell phone and wallet, which contained approximately $500 in cash. Dowdle testified that throughout the robbery, Carlis kept the gun pointed at him. Dowdle said the two men warned him not to call the police, or they would return. Carlis looked at Dowdle's identification and told him "'now I know who you are.'" Carlis and Kang then instructed Dowdle not to move and left the apartment. After he heard the door shut, Dowdle went to the top of the stairs and told his friends that he had been robbed.
One of Dowdle's friends called 911 and handed the phone to Dowdle. Dowdle reported the crime to a dispatcher and provided a description of Carlis and Kang. Later that evening, the police found Carlis and Kang at a nearby apartment. With Carlis's help, the police also found a firearm hidden inside the apartment. Carlis and Kang were identified by Dowdle and by one of Dowdle's friends who saw the men when they entered Dowdle's apartment.
Dowdle did not at first admit that drugs had been taken in addition to the cell phone and money.
Following a three-day trial, a jury convicted Carlis of first-degree robbery and first-degree burglary. The jury also returned special verdicts, finding that Carlis was "armed with a firearm" when he committed the crimes of first-degree robbery and first-degree burglary.
Carlis was tried together with Kang. Kang was charged and convicted only on the robbery count.
ANALYSIS
For the first time on appeal, Carlis contends that the court erred in instructing the jury that it could find him guilty of first-degree robbery based on threats to harm the victim in the future. Carlis contends that this instruction constitutes a manifest error affecting a constitutional right and requires reversal of his robbery conviction. Jury instruction No. 9 defines threats as follows: "[t]hreat means to communicate, directly or indirectly, the intent to cause bodily injury immediately or in the future to the person threatened or to any other person."
Generally, an issue cannot be raised for the first time on appeal unless it is a "manifest error affecting a constitutional right." RAP 2.5(a)(3). This inquiry involves a two-part test: (1) whether the alleged error is truly constitutional and (2) whether the alleged error is manifest. State v. Kronich, 160 Wn.2d 893, 899, 161 P.3d 982 (2007). "An error is manifest when it has practical and identifiable consequences in the trial of the case." State v. Stein, 144 Wn .2d 236, 240, 27 P.3d 184 (2001).
As the State concedes, Jury Instruction No. 9 should not have been given. In State v. Gallaher, 24 Wn. App. 819, 604 P.2d 185 (1979), this court held that a jury instruction defining threat as including threats of harm taking place after the robbery is error. At Gallaher's trial, the victim, an employee at a fast food restaurant, testified that after Gallaher robbed the restaurant, he turned to him and said if he "reported the robbery, then he should know that [Gallaher] 'was pretty good with the shotgun.'" Gallaher, 24 Wn. App. at 821. As in this case, the court instructed the jury that the term "threat" "means to communicate, directly or indirectly the intent: to cause bodily injury in the future to the person threatened or to any other person." Id.
On appeal, Gallaher argued that this instruction was error because under RCW 9A.56.190, the statute defining robbery, the threat used must be a threat to use immediate force, as opposed to a communicated intent to cause injury in the future. The court agreed, noting that "[o]f necessity, a threat is always a communication of intent to cause future harm. However, the definition of 'robbery' requires that the threatened harm be in the immediate future, i.e., while the robbery is taking place." Gallaher, 24 Wn. App. at 821-22 (Italics omitted).
However, a constitutional error may be so insignificant as to be considered harmless. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). To determine whether the trial court's error in giving the instruction was harmless, we must conclude beyond a reasonable doubt that the error did not contribute to the ultimate verdict. State v. Berube, 150 Wn.2d 498, 505, 79 P.3d 1144 (2003). Here, although there was evidence of threats by Carlis and Kang after the robbery was complete, the uncontroverted evidence established that the robbery was accomplished by the threat of immediate force — the use of a firearm. Dowdle testified that Carlis aimed a firearm at him throughout the robbery. And the firearm special verdict reflects that the jury found beyond a reasonable doubt that Carlis was armed with a firearm during the commission of first-degree robbery. Consequently, we conclude beyond a reasonable doubt that the erroneous definition for threat for purposes of Carlis's robbery conviction did not contribute to the ultimate verdict.
As in this case, the instructional error in Gallaher was not reversible error because of the instructions as a whole given in that case and the evidence presented at trial. Gallaher, 24 Wn. App. at 822-23.
Carlis next claims that his lawyer's failure to object to the erroneous jury instruction denied him the right to effective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If a defendant fails to satisfy either part of the test, the court need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Here, because the error was not prejudicial, his claim fails.
In his statement of additional grounds for relief, Carlis contends that the evidence was insufficient to support his convictions on both the burglary and robbery counts. With respect to his burglary conviction, Carlis contends the evidence was insufficient to establish that he "unlawfully" entered or remained on the premises, because Dowdle invited him to enter the apartment. As to the robbery conviction, he claims the State failed to prove an unlawful taking of property because Dowdle's possession of marijuana was illegal and because the State failed to prove that Dowdle owned the other items taken. We reject both of these contentions.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, any rational trier of fact may find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201.
With respect to Carlis's burglary conviction, "[u]nlawful presence and criminal intent must coincide for a burglary to occur." State v. Allen, 127 Wn. App. 125, 137, 110 P.3d 849 (2005). Unlawful remaining occurs "when (1) a person has lawfully entered a building pursuant to invitation, license or privilege; (2) the invitation, license or privilege is expressly or impliedly limited; (3) the person's conduct violates such limits; and (4) the person's conduct is accompanied by intent to commit a crime in the building." Allen, 127 Wn. App. at 133. Carlis's conduct of bringing a firearm into the apartment constitutes evidence of his intent to commit a crime therein. His conduct of robbing Dowdle at gunpoint exceeded the implied limits of his permission to enter. As to the robbery conviction, it may reasonably be inferred that the property taken from Dowdle's pockets and his bedroom closet belonged to him. Nevertheless, in order to establish robbery, the State was not required to prove that Dowdle owned the property taken from him by force, nor that his possession of those items was legal.
We affirm.
WE concur.