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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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Appellant. FILED: April 25, 2016 SC<
Leach, J. — Lorenzo Stewart appeals his conviction and sentence for first
degree robbery while armed with a deadly weapon. He argues (1) the jury was
improperly instructed on an uncharged alternative means of committing the
crime, (2) the trial court's instructions relieved the State of its burden of proof,
and (3) he received ineffective assistance of counsel for his attorney's failure to
propose a jury instruction providing the definition of "armed." We affirm because
the charging information adequately notified Stewart he would face charges
based on being "armed" with a deadly weapon, there was no instructional error,
and he fails to establish that but for counsel's alleged error the result would have
been different at trial.
FACTS
Joshua Miller, a Home Depot loss prevention officer, saw Lorenzo Stewart
walk toward the store. Miller observed Stewart get a shopping cart and place a
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number of bulky items in his cart. Stewart then pushed the cart to the return
desk.
At the return register, Stewart told Chelsea Sneed, a cashier, that the
items were from his employer and that he had returned additional merchandise
the day before. After Sneed processed the return, she gave Stewart a store
credit card with a balance of $290.05.
After watching this, Miller approached Stewart, identified himself, and
asked him to come to the office. When Miller attempted to guide Stewart, he
became upset and said, "Don't touch me, I can walk on my own." Stewart then
veered toward the exit. Miller testified that he "tried to cut off his advance a little
bit more with my body." But Miller explained that Stewart then pulled out a knife:
At that point I will quote, he said, Tm-a cut you, damn it." At [that]
point I heard a flick at his right waist, and I threw my body
backwards and tried to kick off of his shin, and as I did that, I saw a
blade pass across my face.
Miller said the blade came within five to six inches of his face.
Stewart ran toward the exit. Miller followed. Miller called 911 and told the
operator, "I'm an asset protection specialist at the Home Depot. I just had a
shoplifter pull a knife on me." Miller said the knife was "the length of my hand
folded, so probably about four and a half, five inches." Miller described Stewart
to the operator and said that Stewart was traveling north on Aurora.
Edmonds Police Officer Kraig Strum responded to the 911 call. He heard
another officer radio that he had found Stewart on Aurora. When Officer Strum
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arrived, he saw the officer approach Stewart. Stewart said, "I don't know you,
man," and fled.
The officers pursued Stewart on foot across Aurora Avenue and into an
industrial complex. Eventually, Stewart fell. Officer Strum detained and frisked
Stewart. He did not find a knife.
Edmonds K-9 Officer Jason Robinson arrived and began retracing
Stewart's path with his dog. The dog led Officer Robinson back through the
industrial area. There he found a knife in the middle of the parking lot. The dog
indicated to Officer Robinson that the knife was associated with the scent he had
been following. The knife was a switchblade-style knife, had a silver clip, and
was approximately four inches long.
An officer drove Miller to the site of Stewart's arrest for identification.
Edmunds Police Officer Jodi Sackville was with Stewart when Miller drove by.
She testified that Stewart looked at the car and yelled, "[Tjhat's the asshole that
tried to stop me." King County Deputy Sheriff Josephine McNaughton, who was
also present, asked Stewart why he pulled his knife. Stewart responded, "I carry
a knife every day, it is my God given right to carry a knife. That man had no right
to put his hands on me. If I would have slashed a knife at that man, you wouldn't
have been able to talk to him."
The State charged Stewart by amended information with one count of
robbery in the first degree. The information asserted a deadly weapon sentence
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enhancement, alleging Stewart was "armed" with a knife at the time he
committed the robbery. After a four-day trial, a jury convicted Stewart of the
robbery charge and found by special verdict that he was armed with a deadly
weapon when committing the crime. Stewart received a low-end standard-range
sentence of 57 months for the robbery conviction and 24 months for the
sentencing enhancement for a total sentence of 81 months.
Stewart appeals.
ANALYSIS
Uncharged Alternative Means
Stewart claims that the trial court improperly instructed the jury on an
uncharged alternative means of committing first degree robbery. Specifically, he
claims that the State charged him with "displaying" a deadly weapon, but the trial
court instructed the jury that it could convict Stewart if it found he was "armed"
with a deadly weapon.
The state and federal constitutions provide criminal defendants the right to
be notified of the nature and cause of the accusation against them.1
[Wjhere the statute provides that a crime may be committed in
different ways or by different means, it is proper to charge in the
information that the crime was committed in one of the ways or by
one of the means specified in the statute, or in all the ways.[2]
1 Wash. Const, art. I, § 22; U.S. Const, amend. IV; State v. Kiorsvik, 117
Wn.2d 93, 97, 812 P.2d 86 (1991).
2 State v. Severns, 13 Wn.2d 542, 548, 125 P.2d 659 (1942).
No. 73163-7-1/5
When the manner of committing a crime is an element of the offense, the
defendant must be informed of this element in the information in order to prepare
a proper defense.3 We presume any instruction that allows a jury to convict on
an uncharged alternative means prejudices the defendant, and on direct appeal
the State must prove the error was harmless beyond a reasonable doubt to avoid
reversal.4
RCW 9A.56.200 describes three alternative means of committing robbery
in the first degree:
(a) In the commission of a robbery or of immediate flight
therefrom, he or she:
(i) Is armed with a deadly weapon; or
(ii) Displays what appears to be a firearm or other deadly
weapon; or
(iii) Inflicts bodily injury.
Here, the State's amended information charged Stewart with robbery in
the first degree on the grounds that "in the commission of and in immediate flight
therefrom, the defendant displayed what appeared to be a deadly weapon, to-wit:
a knife." (Emphasis added.) The amended information also asserted a
sentencing enhancement, alleging, "Lorenzo Stewart at said time of being armed
with a deadly weapon, to-wit: a knife, under the authority of RCW 9.94A.825 and
9.94A.533(4)." (Emphasis added.)
3 State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332 (1988).
4 State v. Laramie, 141 Wn. App. 332, 342-43, 169 P.3d 859 (2007).
No. 73163-7-1/6
The court's instructions to the jury, however, stated that "[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." (Emphasis added.) Stewart
argues this was error.
Stewart relies principally on In re Personal Restraint of Brockie.5 There,
as here, the information alleged that Brockie committed first degree robbery on
the grounds that he "displayed what appeared to be a firearm or other deadly
weapon."6 The jury instructions, however, stated two alternative means of
committing first degree robbery, namely, that "he or she is armed with a deadly
weapon or displays what appears to be a firearm or other deadly weapon."7 The
court concluded this was error because "[njothing 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."8 But using the different
standard of review for personal restraint petitions, the court found that based on
the record, any juror who found Brockie was armed with the weapon would have
necessarily also concluded that he displayed it.9 The court denied Brockie's
petition.
5 178 Wn.2d 532, 538, 309 P.3d 498 (2013).
6 Brockie. 178 Wn.2d at 535.
7 Brockie, 178 Wn.2d at 535.
8 Brockie. 178 Wn.2d at 538.
9 Brockie. 178 Wn.2d at 539.
No. 73163-7-1/7
On direct appeal, the appellate court presumes that erroneous instructions
given on behalf of the State prejudiced the defendant unless the record
affirmatively shows the error was harmless.10 Stewart claims the record does not
show this because, unlike Brockie, the record here includes evidence that he was
armed with but did not display the knife. For instance, he told police it was his
"God given right to carry a knife." (Emphasis added.) He stated, "If I would have
slashed a knife at that man, you wouldn't have been able to talk to him." Thus, in
Stewart's view, it is possible the jury found he was armed with but did not display
the knife. Assuming Stewart received no notice of the alternative means of being
"armed" with a deadly weapon, this would be prejudicial error.
But a charging document need not use the exact words of the statute if it
uses words conveying the same meaning that give reasonable notice to the
defendant of the charge.11 Here, the sentencing enhancement allegation for the
robbery charge accused Stewart "of being armed with a deadly weapon" at the
time he committed the robbery. Read together, the robbery charge and related
sentencing enhancement allegation gave Stewart notice that he should expect to
defend against the charges of "displaying" and being "armed" with a deadly
weapon. Thus, the discrepancy between the charging information and the to-
convict instruction did not prejudice him. It was not reversible error.
10 Brockie. 178 Wn.2d at 538-39.
11 In re Pers. Restraint of Benavidez. 160 Wn. App. 165, 170, 246 P.3d
842(2011).
No. 73163-7-1/8
Stewart replies that the language in the sentencing enhancement is
insufficient to provide notice because the jury only considers the enhancement if
it finds him guilty of the predicate crime. We disagree. The question is whether
Stewart received fair notice of the alternative means of being "armed" with a
deadly weapon in the charging information, not the order in which the jury
considers the crime and sentencing enhancement during deliberations.
Stewart's alternative means challenge fails.
Instructional Error
Next, Stewart argues that the sentencing enhancement instructions
relieved the State of its burden to show the knife was a "deadly weapon." He did
not object to the instructions below.
At the outset, the State claims that Stewart has failed to explain why he
can raise this issue. In most cases, appellate courts decline to consider issues
raised for the first time on appeal.12 RAP 2.5(a)(3) provides an exception for
claims of manifest error affecting a constitutional right.13 Stewart fails to cite or
discuss RAP 2.5 and thus arguably fails to demonstrate his entitlement to
appellate review. But he identified the error as constitutional in his briefing and
argues that it affected the outcome at trial. Even assuming he properly raises the
issue, we find no error.
12 RAP 2.5(a); State v. Kirkman. 159 Wn.2d 918, 926, 155 P.3d 125
(2007).
13 Kirkman, 159 Wn.2d at 926.
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No. 73163-7-1/9
"'Jury instructions are sufficient when they allow counsel to argue their
theory of the case, are not misleading, and when read as a whole properly inform
the trier of fact of the applicable law.'"14 Jury instructions must convey that the
State bears the burden of proving each essential element of the offense beyond
a reasonable doubt.15 "It is reversible error if the instructions relieve the State of
this burden."16 Generally, the Sixth Amendment requires that the jury must find
any fact increasing the penalty for a crime beyond a reasonable doubt.17
We review jury instructions de novo to ensure they accurately state the
law, do not mislead the jury, and allow the parties to argue their theories of the
case.18
RCW 9.94A.825 defines a deadly weapon for the purposes of a
sentencing enhancement and states:
For the purposes of this section, a deadly weapon is an
implement or instrument which has the capacity to inflict death and
from the manner in which it is used, is likely to produce or may
easily and readily produce death. The following instruments are
included in the term deadly weapon: . . . any knife having a blade
longer than three inches.
(Emphasis added.)
14 State v. Sibert. 168 Wn.2d 306, 315, 230 P.3d 142 (2010) (quoting
Bodinv. Citvof Stanwood. 130 Wn.2d 726, 732, 927 P.2d 240 (1996)).
15 Sibert, 168Wn.2dat315.
16 Sibert, 168Wn.2dat315.
17 Blakelv v. Washington. 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed.
2d 403 (2004).
18 State v. Willis, 153 Wn.2d 366, 370, 103 P.3d 1213(2005).
No. 73163-7-1/10
Here, jury instruction 17 stated that a knife with a three-inch blade was a
per se deadly weapon for the purposes of the sentencing enhancement:
For purposes of a special verdict the State must prove
beyond a reasonable doubt that the defendant was armed with a
deadly weapon at the time of the commission of the crime.
A knife having a blade longer than three inches is a deadly
weapon.
For the first degree robbery charge, the court instructed the jury on the
definition of a deadly weapon:
Deadly weapon means any weapon, device, instrument,
substance, or article, which under the circumstances in which it is
used, attempted to be used, or threatened to be used, is readily
capable of causing death or substantial bodily harm.
Stewart makes two claims. First, he contends jury instruction 17 failed to
inform the jury that it had to find the knife blade was longer than three inches to
answer "yes," the knife was a deadly weapon, on the special verdict form.
Instead, he argues the jury instruction merely provided one example of a deadly
weapon. Second, he argues the special verdict form contains no definition of
deadly weapon. As a result, Stewart argues the jurors may have doubted the
knife found by officers was the knife he used at Home Depot, yet still believed he
used a knife not presented at trial. According to Stewart, this would allow the jury
to convict him of using a deadly weapon even if it believed he used a knife blade
that was less than three inches long.
Again, we disagree. Miller described the knife in his 911 call as the length
of his "hand folded, so probably about four and a half, five inches." The knife
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No. 73163-7-1/11
recovered after Stewart's arrest was located along the path he fled and was
identified by a police dog as associated with the scent it was tracking. The four-
inch knife was shown to the jury. No evidence of another knife was presented at
trial. Thus, the overwhelming evidence established that Stewart brandished a
four-inch knife at Miller. If the jury concluded Stewart had a knife at the time of
the robbery, it necessarily had to conclude the knife was longer than three inches
based on the trial evidence.
Any knife with a blade longer than three inches is a deadly weapon as a
matter of law.19 When the State alleges that the defendant used a per se deadly
weapon, "[tjhe jury should be instructed the implement is a deadly weapon as a
matter of law."20 The instruction does not, as Stewart contends, merely provide
an example of a deadly weapon. We conclude the trial court did not err by
instructing the jury that the knife was a per se deadly weapon.
Ineffective Assistance of Counsel
Stewart claims his attorney was ineffective for failing to request an
instruction defining the term "armed" where there was evidence Stewart merely
possessed the weapon. We disagree.
19 RCW 9.94A.825.
20 State v. Rahier, 37 Wn. App. 571, 576, 681 P.2d 1299 (1984). Rahier
was decided based on RCW 9.95.040, a statute predating the Sentencing
Reform Act of 1981 (SRA), ch. 9.94A RCW. But the case applies because the
SRA's definition of deadly weapon for enhancement is unchanged. 11
Washington Practice: Washington Pattern Jury Instructions: Criminal 2.07
cmt. at 41 (3d ed. 2008) (citing State v. Sullivan. 47 Wn. App. 81, 733 P.2d 598
(1987)); State v. Samanieoo. 76 Wn. App. 76, 79-80, 882 P.2d 195 (1994).
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No. 73163-7-1/12
A defendant claiming ineffective assistance of counsel has the burden of
showing that (1) counsel's performance was deficient and (2) counsel's deficient
performance prejudiced the defendant's case.21 To show prejudice, Stewart
must show "a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different."22 The claim fails if the
defendant does not establish either prong.23 Counsel's performance is deficient
if it falls below an objective standard of reasonableness.24 Our review of
counsel's performance is highly deferential, and we strongly presume
reasonableness.25
To establish deficient performance, Stewart must show that (1) had
counsel requested the instruction, the trial court likely would have given it and (2)
defense counsel's failure to request the instruction was not a legitimate tactical
decision.26 Our Supreme Court has held that a person is "armed" as a matter of
law if "a weapon is easily accessible and readily available for use, either for
offensive or defensive purposes," and a nexus exists between the defendant, the
21 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
22 Strickland. 466 U.S. at 694.
23 Strickland. 466 U.S. at 700.
24 State v. McFarland. 127 Wn.2d 322, 334, 899 P.2d 1251 (1995).
25 McFarland. 127 Wn.2d at 335.
26 State v. Powell. 150 Wn. App. 139, 154-55, 206 P.3d 703 (2009).
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No. 73163-7-1/13
weapon, and the crime.27 "Jury instructions need not, however, expressly
contain 'nexus' language."28
Stewart argues that his attorney's failure to request a "nexus" instruction
constitutes deficient performance. He argues he told officers it was his "'God
given right to carry a knife' but that he did not pull it on Miller." Based on this
assertion, Stewart argues "it is possible [the jury] answered 'yes' to the special
verdict based solely on Stewart's admission to carrying a knife, which is legally
insufficient to qualify as being armed."
His argument is unpersuasive. Stewart's statement did not encompass a
denial of pulling or using a knife. He claimed during his arrest that it was his
"God given right to carry a knife," then stated, "That man had no right to put his
hands on me. If I would have slashed a knife at that man, you wouldn't have
been able to talk to him."
Furthermore, overwhelming evidence supports the conclusion that Stewart
did not merely possess the knife but used it during the robbery. Miller's
unrebutted testimony was that he heard a "flick," threw himself back, and saw a
blade pass within five or six inches of his face. After giving chase, officers
recovered the knife on the same path Stewart used to flee. The jury also heard
27 State v. Valdobinos. 122 Wn.2d 270, 282, 858 P.2d 199 (1993); State v.
Brown. 162 Wn.2d 422, 431, 173 P.3d 245 (2007).
28 State v. Barnes. 153 Wn.2d 378, 383, 103 P.3d 1219 (2005).
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No. 73163-7-1/14
Stewart's confrontational statement about Miller where he said, "[T]hat's the
asshole that tried to stop me."
A defendant is entitled to a jury instruction if substantial evidence in the
record supports his theory.29 We do not find substantial evidence in the record to
support the nexus instruction. To the contrary, the overwhelming evidence
demonstrated that Stewart did not merely possess a knife but used it in the
commission of the crime.
For the same reason, Stewart does not show a reasonable probability that
but for his attorney's failure to request the instruction the result at trial would have
been different. Indeed, the trial evidence clearly showed Stewart actually used
the knife during the robbery. This is sufficient to establish that the knife was
easily accessible and readily available for either offensive or defensive purposes
and was used in connection with the robbery.
Stewart's claim for ineffective assistance of counsel fails.
We affirm.
WE CONCUR:
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29 Powell. 150 Wn. App. at 154.
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