State of Washington v. Skyler Keneth Todd
34536-0
| Wash. Ct. App. | Oct 17, 2017Background
- On Sept. 6, 2015, Skyler K. Todd took a Leatherman tool at a Home Depot; loss-prevention employees (plainclothes, badge displayed) attempted to stop him, a scuffle ensued, the tool fell out of Todd's pocket, and employees detained him.
- Todd admitted attempting the theft but claimed any force was used to escape alleged assailants, not to commit robbery, asserting he did not know they were Home Depot employees.
- Charged with second-degree robbery; jury instructions included statutory and nonstatutory elements but the to‑convict instruction did not repeat the phrase "or to prevent or overcome resistance to the taking."
- During deliberations, the jury asked whether that omitted phrase applied to an element; the court replied only to reread all instructions.
- Jury convicted; trial court sentenced Todd to 50 months confinement + 18 months community custody; Todd appealed arguing (1) defective to‑convict instruction omitted an essential element and (2) lack of a unanimity instruction on alternative means violated his right to a unanimous verdict.
Issues
| Issue | Todd's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the to‑convict instruction omitted the essential element that force may be used "to prevent or overcome resistance to the taking" | Instruction omitted that phrase, relieving State of proving all elements beyond a reasonable doubt | The to‑convict instruction included the three statutory and two nonstatutory elements; omission of the phrase did not omit the element | Court held the instruction properly set forth all five elements; no reversible error |
| Whether failure to require jury unanimity as to whether property was taken "from the person" or "in the presence of another" violated constitutional unanimity | Jury must be unanimous as to which alternative means applied; absence of unanimity instruction violated Doyle right | "From the person" and "in the presence of another" describe similar conduct, not distinct alternative means | Court held the two are not alternative means; no unanimity error |
| Whether failure to require jury unanimity as to whether force was used to "obtain" or to "retain" possession violated unanimity | Jury must be unanimous on whether force was used to obtain or retain; instruction error denied unanimity | "Obtain" and "retain" are facets of the same course of conduct, not distinct alternative means | Court held both are sufficiently similar and not alternative means; no unanimity error |
Key Cases Cited
- Fehr v. State, 185 Wn. App. 505 (instructional error review standard)
- DeRyke v. State, 149 Wn.2d 906 (to‑convict instruction must include all elements)
- Richie v. State, 191 Wn. App. 916 (missing element in to‑convict instruction not cured by other instructions)
- Allen v. State, 159 Wn.2d 1 (intent to commit theft = nonstatutory element of robbery)
- Peterson v. State, 168 Wn.2d 763 (framework for analyzing alternative‑means statutes)
- Sandholm v. State, 184 Wn.2d 726 (factors for determining alternative means)
- Woodlyn v. State, 188 Wn.2d 157 (when evidence supports only one means, unanimity assumptions problematic)
- Emery v. State, 174 Wn.2d 741 (right to unanimity extends to alternative means)