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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

No. 68443-4-1 DIVISION ONE

Respondent,
v.

UNPUBLISHED OPINION

ELIJAH S. HALL,

Appellant.

FILED: July 8, 2013

Schindler, J. -- Elijah S. Hall seeks reversal of his jury conviction for felony

murder in the first degree, arguing that the State did not prove beyond a reasonable
doubt the predicate offense of attempted robbery in the first degree. Because sufficient

evidence supports attempted robbery in the first degree, we affirm the conviction of
felony murder in the first degree.
FACTS

Seventeen year-old Elijah Hall "wanted to get some money" because he was

"tired of being broke." Hall decided he would go to the Pit Stop Express convenience

store and " 'show [the clerk] the gun and he would hand the money over.'" Hall had been to the Pit Stop Express many times before and knew the convenience store clerk,

28-year-old Manish Melwani. At approximately 6:00 a.m. on Sunday, July 26, 2009,
Hall left home to go to the Pit Stop Express to commit robbery. Hall wore dark

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sunglasses, a black knit cap, a black bandana, a black jacket, and carried a backpack
and a snub-nosed semi-automatic revolver.

A security camera located behind the counter of the Pit Stop Express recorded

the attempted robbery and shooting. The camera shows Hall, clad in his disguise,
entering the convenience store at 6:28 a.m. Melwani is not behind the counter where

the cash register is located. After looking at items in the store for about one minute,

Hall goes behind the counter. Hall then leans over the cash register's keyboard and
monitor and presses the cash register keys. A customer enters the store, sees Hall,
and immediately leaves. The customer calls 911.

After unsuccessfully trying to open the register, Hall crouches down under the
counter and opens drawers under the counter. Hall then stands up and continues trying to get into the cash register by pressing the keys. Hall briefly steps away and returns
wearing gloves. While Hall continues to try to open the cash register, the camera

shows Melwani return from the back of the store. Hall crouches down and immediately reaches for the snub-nosed revolver in the waistband of his pants. Melwani approaches
the counter and confronts Hall. As Hall stands up, he removes the gun from his pants

and points the gun at Melwani.
When Melwani walks around the counter toward Hall, Hall shoots Melwani in the

stomach. Melwani then attempts to grab the gun away from Hall. Hall and Melwani
struggle over the gun for approximately two minutes. During the struggle, two
customers walk in but immediately leave and call 911.
Hall then rushes at Melwani and knocks Melwani off balance. Hall shoots

Melwani a second time, this time in the right thigh. Hall then hits Melwani twice in the

No. 68443-4-1/3

forehead with the gun, dazing him, and leaves the store. Melwani chases after Hall but
collapses at the store entrance.

Officers from the Seattle Police Department and medical personnel responded to

the 911 calls. Medical personnel took Melwani to Harborview Medical Center. After

initial attempts to treat Melwani, he later died from the two gunshot wounds. Officers found a pair of sunglasses discarded near the store's counter and

retrieved the videotape recording from the security camera. In an effort to identify the
shooter, the police department released still frames from the video to the media.

After the 5:00 p.m. news segment aired that night, a citizen contacted police

about clothing that was discarded outside an apartment building a few blocks from the

Pit Stop Express. Officers found a black knit cap, a black bandana, gloves, and a black
jacket in a duffel bag.

While police were collecting the evidence, Detective James Cooper noticed a

young man and woman, later identified as Hall and his girlfriend Kiara Todd, watching
police collect the evidence. Detective Cooper told Hall and Todd the police were

investigating the Pit Stop Express robbery. Hall told Detective Cooper that he heard two gunshots that morning. The police department had not released any information
about the number of shots fired.

The next day, Hall's friend Jaylyn Johnson spoke to police. Johnson told the

police that he and Hall lived together. Johnson told police that the sunglasses the
shooter wore belonged to his mother, and the black bandana belonged to him. Johnson
also said he had seen the shooter's jacket in the laundry room of the home he shared
with Hall.

No. 68443-4-1/4

The police interviewed Hall. During the interview, Hall admitted shooting
Melwani. Hall told police officers," 'I hoped that I would show him the gun and he would
be scared and he would hand over the money.'" The State charged Hall with felony murder in the first degree and unlawful possession of a firearm in the second degree. The State alleged that while attempting
to commit robbery in the first degree, Hall killed Manish Melwani. During a six-day jury trial, the State called a number of witnesses to testify, including the Pit Stop Express customers who called 911, police officers and detectives,
a forensic expert, and the medical examiner. The court admitted the security camera
videotape into evidence.

Forensic scientist Kari O'Neill identified Hall's DNA1 on the discarded bandana and the interior of the gloves the officers found with the clothing at the apartment

building. O'Neill also testified that the blood on the exterior of the gloves belonged to

Melwani. King County Chief Medical Examiner Richard Harruff testified that Melwani
died as a result of the gunshot wounds to the abdomen and the thigh.
Hall testified, admitted he was the person shown in the security camera video,

and that he attempted to disguise himself. Hall also admitted telling the police that" 'I thought that the plan was going to be, okay, I planned, he would be behind the counter, itwas going to be easier, I could just scare him with the gun.'" Hall testified that he
knew he needed the clerk in order to open the cash register.

1(Deoxyribonucleic acid.

No. 68443-4-1/5

In addition to instructing the jury on felony murder in the first degree and
attempted robbery in the first degree, the court agreed to instruct the jury on the lesser
included offense of felony murder in the second degree. During closing argument, defense counsel told the jury that the State had not
proved the elements of attempted robbery in the first degree because Melwani was not

present "during the whole course of the encounter with the cash register." The defense
argued, in pertinent part:

[Hall] didn't take or attempt to take the personal property from the
person or in the presence against a person's will. Mr. Manish Melwani is not out there during the whole course of the encounter with the cash register. We don't see my client trying to take anything or take anything in his presence. He certainly doesn't do anything to take anything from Mr. Manish Melwani's person.

In addressing the defense argument, the prosecutor argued, in pertinent part: When [defense counsel] tells you it is not from the person, or in the presence of, really we can never have a [robbery] that occurs, if the clerk
has their back turned, or if the clerk is in the back room and the clerk interrupts.

. . . Importantly, when you think about attempted robbery first degree, what did this young man plan for? He planned for an encounter with someone, when he formed his intent. That's what he prepared and planned for. The jury convicted Hall as charged of felony murder in the first degree and

unlawful possession of a firearm in the second degree. The court sentenced Hall to 331
months confinement.

No. 68443-4-1/6

ANALYSIS

Hall challenges his conviction for felony murder in the first degree. Hall asserts the State did not prove beyond a reasonable doubt the predicate offense of attempted
robbery in the first degree. Hall argues the jury instruction defining robbery required the State to prove that the attempted taking occurred in the presence of another, and there
was no evidence he used force when he first attempted to take money from the cash
register.

The State bears the burden of proving every element of the crime beyond a
reasonable doubt. State v. A.M.. 163 Wn. App. 414. 419. 260 P.3d 229 (2011). In

determining the sufficiency of the evidence, we must view the evidence in the light most
favorable to the State, and determine whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. State v. Salinas. 119

Wn.2d 192, 201, 829 P.2d 1068 (1992). In reviewing a challenge to the sufficiency of
the evidence, we draw all reasonable inferences from the evidence in favor of the State

and interpret the evidence most strongly against the defendant. Salinas. 119 Wn.2d at

201. A defendant claiming insufficiency of the evidence "admits the truth of the State's
evidence." State v. Myers. 133 Wn.2d 26, 37, 941 P.2d 1102 (1997). We review jury

instructions and questions of law de novo. State v. DeRyke, 149 Wn.2d 906, 910, 73
P.3d 1000 (2003).

To convict Hall of felony murder in the first degree, the State had to prove that

while attempting to commit robbery in the first degree, he caused the death of Melwani.
RCW9A.32.030(1)(c).

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To prove attempted robbery in the first degree, the State had to establish that

while armed with a deadly weapon, Hall intended to take personal property against
Melwani's will and took a substantial step toward the commission of the crime. RCW

9A.28.020(1), RCW 9A.56.190,2 RCW 9A.56.200. A"substantial step" is conduct
strongly corroborative of the actor's criminal purpose. State v. Aumick. 126 Wn.2d 422,
427, 894 P.2d 1325 (1995).
The jury can infer intent from all of the facts and circumstances. State v.

Bencivenaa. 137 Wn.2d 703, 709, 974 P.2d 832 (1999). "[Wjhere the design of a
person to commit a crime is clearly shown, slight acts done in furtherance of this design
will constitute an attempt." State v. Nicholson. 77 Wn.2d 415, 420, 463 P.2d 633
(1969).

A person commits robbery by unlawfully taking personal property by the use or threatened use of force to retain the property. State v. Johnson. 155 Wn.2d 609, 610, 121 P.3d 91 (2005). "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." RCW 9A.56.190. The definition of "robbery" also includes "the retention, via force against the property owner, of property initially taken
peaceably or outside the presence of the property owner." State v. Handburgh. 119

Wn.2d 284, 293, 830 P.2d 641 (1992).3 A person commits robbery in the first degree if
during the commission of a robbery, or in flight therefrom, the person inflicts bodily
injury. RCW 9A.56.200(1)(a)(iii).

2We note the legislature amended RCW 9A.56.190 in 2011 to add the words "or her" after "his"
throughout the statute. Laws of 2011, ch. 336,

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