State of Washington v. Edward Leon Nelson, 34032-5

Background

On Aug. 15, 2014, Edward Nelson approached a Rite Aid pharmacy counter, gave a note requesting oxycodone, displayed a black pistol at his side, and threatened to shoot clerk Myung Meinhold unless she produced drugs.
Meinhold summoned pharmacist Thomas Newcomer; Newcomer saw the note, began to retrieve oxycodone, then told Nelson the store was out; Nelson fled with paper towels.
Nelson was charged with attempted first degree robbery (victims alleged: Meinhold and Newcomer), attempting to elude police, and first degree unlawful possession of a firearm; the possession charge was bifurcated due to prior convictions evidence.
Jury convicted Nelson of attempted first degree robbery with a firearm enhancement and attempting to elude; acquitted him of first degree unlawful possession of a firearm at bifurcated trial.
Nelson challenged the robbery to-convict instruction for omitting the nonstatutory element that the victim have an ownership/possessory/representative interest in the property, argued insufficiency of evidence, sought vacation of the firearm enhancement, and requested a lesser-included instruction for unlawful display of a firearm.
The Court of Appeals held the to-convict instruction omitted the essential nonstatutory element (error), but found the error harmless beyond a reasonable doubt; it rejected Nelson’s other challenges and affirmed.

Issues

Issue	Nelson's Argument	State's Argument	Held
Instructional omission of victim’s possessory/representative interest	To-convict instruction omitted essential nonstatutory element (ownership/possessory/representative interest), relieving State of burden	Instruction was proper; any error harmless	Instruction omitted the element (error) but error was harmless beyond a reasonable doubt; conviction affirmed
Sufficiency of evidence for attempted first-degree robbery	Insufficient evidence Meinhold had access/representative capacity over oxycodone; attempt requires same element	Attempt liability does not require actual ability to complete the theft; substantial step shown by armed threat	Evidence of substantial step and intent was sufficient for attempted robbery; conviction upheld
Firearm enhancement & operability / inconsistent verdicts	Gun may not have been operable; inconsistent verdicts (firearm enhancement guilty vs. possession acquittal)	Circumstantial evidence (appearance + use in threat) sufficed to infer operability; inconsistency alone does not mandate reversal when evidence suffices	Evidence supported operability; inconsistent verdict not reversible; enhancement stands
Lesser included instruction (unlawful display of firearm)	Trial court should have instructed on unlawful display as lesser included offense	Evidence established attempt to commit robbery; no affirmative evidence supporting only the lesser offense	Legal prong met but factual prong failed; no instruction required; conviction stands

Key Cases Cited

State v. Richie, 191 Wn. App. 916 (Wash. Ct. App.) (robbery requires victim have ownership, possessory, or representative interest)
State v. DeRyke, 149 Wn.2d 906 (Wash. 2003) (to-convict instruction must include every element; cannot relieve State of burden)
State v. Thomas, 150 Wn.2d 821 (Wash. 2004) (harmless-error framework for omitted-element instruction)
Neder v. United States, 527 U.S. 1 (U.S. 1999) (omitted-element instructional errors subject to harmlessness inquiry)
Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for sufficiency of the evidence review)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
State v. Ng, 110 Wn.2d 32 (Wash. 1988) (inconsistent verdicts do not require reversal when guilty verdict is supported by sufficient evidence)
State v. Tasker, 193 Wn. App. 575 (Wash. Ct. App.) (testimony that gun appeared real plus use in crime can support inference of operability)