Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  41059-1-II

                             Respondent,

       v.

JOHN LEE BURNS,

                             Appellant.

STATE OF WASHINGTON.                                   (consolidated with No. 41143-1-II)

                             Respondent,

       v.
                                                           UNPUBLISHED OPINION
JESSUP BERNARD TILLMON,

                             Appellant.

       Quinn-Brintnall, J.   --   At a consolidated trial on April 13, 2010, a jury found John Lee 

Burns and Jessup Bernard Tillmon guilty of one count of first degree burglary, three counts of 

first degree kidnapping, and four counts of first degree robbery for their role in a December 2009 

home invasion.  The jury also found by special verdict that both Burns and Tillmon committed all 

eight offenses while armed with firearms.  RCW 9.94A.533(3).   

Consol. Nos. 41059-1-II / 41143-1-II

       Burns and Tillmon appeal three of the four robbery convictions, arguing that an 

incomplete jury instruction shifted the State's burden such that insufficient evidence supports the 

convictions.  Burns and Tillmon further contend that this court must vacate the firearm 

enhancements associated with all of the verdicts because the trial court misstated the law on 

acquittal in relation to special verdicts.  Finally, Burns and Tillmon argue that they received 

ineffective assistance of counsel because their counsel did not object to unanimity language in the 

special verdict jury instructions.  

       Because insufficient evidence supports three of the four robbery verdicts in light of the 

State's proposed incomplete jury instructions given at trial, we reverse those convictions.  We 

also hold that Burns and Tillmon may not challenge the special verdict jury instructions for the 

first time on appeal and their ineffective assistance claims lack merit.  Accordingly, we reverse 

counts  VI,  VII, and VIII and  their attendant firearm sentence enhancements but remand for 

resentencing on the remaining counts with their firearm enhancements, which the appellants do 

not challenge on appeal.   

                                            FACTS

Background 

       At approximately four in the morning on December 27, 2009, Tillmon and Burns forcibly 

entered and then burglarized the Thurston County home of Zachary Dodge, Nicholas Oatfield, 

and Nick and Aaron Ormrod.  All four young men were home at the time of the incident as well 

as Dodge's girlfriend, Brittany Burgess, and two close friends, Casey Jones and Malcolm Moore, 

who were spending the night before going to paintball practice with the housemates early the next 

day.  In the course of the break-in, the armed intruders forced everyone present to gather in the 

                                               2 

Consol. Nos. 41059-1-II / 41143-1-II

dining room on their stomachs while they ransacked other parts of the home for valuables.  

       Although the robbers stole property from many of the rooms in the home, only Dodge was 

robbed prior to being forced into the dining room.  One of the intruders took Dodge's laptop and 

the money in his wallet before escorting him and Burgess to the dining room at gunpoint.  

Oatfield and both Ormrods were unaware of what the intruders stole until after the suspects fled 

the scene:  roughly $150 was stolen from Oatfield's wallet, as well as $50 from Aaron Ormrod's 

wallet.  The television from Nick Ormrod's bedroom was also stolen.

       Thurston County Deputy Sheriff Rod Ditrich arrived on the scene just as the suspects 

were fleeing and eventually arrested Tillmon after Tillmon called to turn himself in.  Olympia 

Police Officer Duane Hinrichs successfully apprehended a second suspect near the scene, later 

identified as Burns.1  

Procedural History

       On December 29, the State charged Burns and Tillmon by information with burglary, 

multiple counts of kidnapping, and robbery -- all while armed with firearms.  On February 23, 

2010, the State submitted a third amended information with the charges it eventually brought to 

trial.  These charges were: (1) first degree burglary, (2) first degree kidnapping of Moore, (3) 

first degree kidnapping of Jones, (4) first degree kidnapping of Burgess, (5) first degree robbery 

of Dodge, (6) first degree robbery of Oatfield, (7) first degree robbery of Aaron Ormrod, and (8) 

first degree robbery of Nick Ormrod.  RCW 9A.52.020(1);               RCW 9A.40.020; RCW 

9A.56.200(1).  The State sought deadly weapon firearm enhancements for all eight counts.  RCW 

1 Thurston County sheriffs later arrested a third suspect, Deshone Herbin.  Thurston County 
Superior Court consolidated Burns's, Tillmon's, and Herbin's trials, but the jury was unable to 
reach a unanimous verdict in regards to Herbin and the trial court declared a mistrial.  

                                               3 

Consol. Nos. 41059-1-II / 41143-1-II

9.94A.533(3).

       Trial began on April 1, 2010, and closing arguments concluded on April 9.  In its 

instructions to the jury, the court gave the following "to convict" robbery instructions for both 

Tillmon and Burns for all four robbery counts:  

              To convict the defendant . . . of the crime of robbery in the first degree,
       . . . each of the following six elements of the crime must be proved beyond a 
       reasonable doubt:
              (1) That on or about December 27, 2009, the defendant or an accomplice 
       unlawfully took personal property from the person of another, [victim's name],
              (2) That the defendant or an accomplice intended to commit theft of the 
       property;
              (3) That the taking was against the person's will by the defendant's or 
       accomplice's use or threatened use of immediate force, violence, or fear of injury 
       to that person or to that person's property or to the person or property of another;
              (4) That force or fear was used by the defendant or an accomplice to obtain 
       or retain possession of the property;
              (5)(a) That in the commission of these acts or in immediate flight therefrom 
       the defendant or an accomplice was armed with a deadly weapon; or 
                   (b) That in the commission of these acts or in the immediate flight 
       therefrom the defendant or an accomplice displayed what appeared to be a firearm 
       or other deadly weapon; and
              (6) That any of these acts occurred in the State of Washington. 

Clerk's Papers (CP) (Burns) at 203-14 (emphasis added).  

       In explaining the special verdict firearm enhancement forms, the court gave the jury the 

following instruction (instruction 50):

       Because this is a criminal case, all twelve of you must agree in order to answer the 
       special verdict forms.  In order to answer the special verdict forms "yes," you must 
       unanimously be satisfied beyond a reasonable doubt that "yes" is the correct 
       answer.  If you unanimously have a reasonable doubt as to this question, you must 
       answer "no". 

CP at 217 (Burns).  Burns and Tillmon did not object to this instruction.  

       The jury returned its verdicts on April 13, 2010, finding Burns and Tillmon guilty of all 

                                               4 

Consol. Nos. 41059-1-II / 41143-1-II

eight counts with firearm enhancements attached to each count.  On August 10, the trial 

                                               5 

Consol. Nos. 41059-1-II / 41143-1-II

court sentenced Tillmon to 311 months confinement and Burns to 431 months confinement.2  

Burns and Tillmon timely appeal. 

                                         DISCUSSION

Robbery Instruction

       Burns and Tillmon both contend that, under the "law of the case" doctrine,3 the trial 

court's jury instructions for the first degree robbery charges created an additional burden on the 

State -- the necessity to prove that Tillmon and Burns took property  "from the person of 

another" -- a burden it failed to meet.  We agree.  Accordingly, we reverse Burns's and Tillmon's 

convictions related to the robberies of Oatfield and both Ormrods.  

       We review jury instructions de novo, "within the context of the jury instructions as a 

whole."  State v. Jackman, 156 Wn.2d 736, 743, 132 P.3d 136 (2006).  Jury instructions, "taken 

in their entirety, must inform the jury that the State bears the burden of proving every essential 

element of a criminal offense beyond a reasonable doubt."  State v. Pirtle, 127 Wn.2d 628, 656, 

904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996).  

       "In criminal cases, the State assumes the burden of proving otherwise unnecessary 

elements of the offense when such added elements are included without objection in the 'to 

convict' instruction."  State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998).  On appeal, "a 

2 Both sentences were well below the standard range -- the State noted that the top end of the 
range would have been "67.10 years in prison" (Report of Proceedings (Aug. 10, 2010) at 6) -- as 
the trial court only added one firearm enhancement (of eight possible) to Tillmon's sentence and 
three (of eight) firearm enhancements to Burns's sentence.  The trial court explained the 
discrepancy between Tillmon's and Burns's sentences as resulting from Tillmon turning himself in 
and possible mental health issues resulting from Tillmon's recent war zone deployment.  

3 Under the "law of the case" doctrine, jury instructions not objected to become the law of the 
case.  State v. Hames, 74 Wn.2d 721, 725, 446 P.2d 344 (1968). 

                                               6 

Consol. Nos. 41059-1-II / 41143-1-II

defendant may assign error to elements added under the law of the case doctrine."  Hickman, 135 

Wn.2d at 102.  When a defendant challenges the sufficiency of the evidence in light of an 

incomplete or incorrect jury instruction, we determine whether sufficient evidence exists to sustain 

the conviction based on the given instruction.  See, e.g., Tonkovich v. Dep't of Labor & Indus., 

31 Wn.2d 220, 225, 195 P.2d 638 (1948) ("It is the approved rule in this state that the parties are 

bound by the law laid down by the court in its instructions. . . . In such case, the sufficiency of the 

evidence to sustain the verdict is to be determined by the application of the instructions and rules 

of law laid down in the charge.").  

       Here, the State proposed "to convict" robbery instructions based on 11  Washington 

Practice:  Washington Pattern Jury Instructions:  Criminal 37.02, at 667 (3d ed. 2008) (WPIC), 

which reads, in relevant part,

              To convict the defendant of the crime of robbery in the first degree, each of 
       the following six elements of the crime must be proved beyond a reasonable doubt:
       (1)    That on or about   (date)  , the defendant unlawfully took personal property 
              from the person [or in the presence] of another. 

       But the State's proposed jury instructions, which the trial court gave, omitted the "or in 

the presence of another" language from WPIC 37.02.  Because the trial court did not include the 

optional "or in the presence of another" language from WPIC 37.02 in its defendant-specific "to 

convict" robbery instructions,4 the State was required to prove that either appellant (or an 

accomplice) took property "from the person" rather than "in the presence" of the named robbery 

victim. At trial, the State presented no evidence that Oatfield, Aaron Ormrod, or Nick Ormrod 

had property stolen from their person.  

4 These instructions were numbers 36, 39, 42, and 45 for Tillmon and 37, 40, 43, and 46 for 
Burns.  

                                               7 

Consol. Nos. 41059-1-II / 41143-1-II

       Because the State failed to prove the elements as stated in its proposed instruction -- that 

each victim had property taken from his person -- insufficient evidence supports the three robbery 

convictions related to Oatfield and the Ormrods.  Accordingly, we reverse these convictions and 

remand with instructions that the trial court dismiss them and their attendant firearm sentence 

enhancements with prejudice.  Hickman, 135 Wn.2d at 103 ("Retrial following reversal for 

insufficient evidence is 'unequivocally prohibited' and dismissal is the remedy.").

Special Verdict Unanimity Instruction  

       Burns and Tillmon next contend that the trial court committed reversible error by 

instructing the jury that unanimity was required to answer "no" on the special verdict firearm 

enhancements and that their sentence enhancements should be vacated for purposes of 

resentencing.5 Burns and Tillmon failed to challenge this instruction at trial.  But both contend 

that the Supreme Court's recent decision in State v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 

(2010), allows them to challenge the instruction for the first time on appeal.  The State concedes 

that giving a unanimity instruction was error but contends that proper remedy is "to vacate the 

sentence enhancements and remand for re-impanelling of a new jury to determine the sentence 

enhancements." Brief of Resp't at 11.  

       We have held, in both State v. Grimes, 165 Wn. App. 172, 267 P.3d 454 (2011), and State 

v. Bertrand, 165 Wn. App. 393, 267 P.3d 511 (2011), that an appellant may not challenge a 

Bashaw error for the first time on appeal.  Thus, we do not accept the State's concession or 

address the merits of Burns's and Tillmon's unpreserved challenges to the special verdict 

5 Because we are reversing three of the four robbery counts, those attendant firearm 
enhancements must also be dismissed.  Accordingly, only five firearm enhancements are 
implicated by this assignment of error. 
                                               8 

Consol. Nos. 41059-1-II / 41143-1-II

unanimity instructions.  RAP 2.5(a).  

Ineffective Assistance 

       Last, Burns and Tillmon both argue that in failing to object to the unanimity language in 

the trial court's special verdict jury instructions, they received ineffective assistance of counsel.  

However, as the State points out, the jury here received its instructions from the trial court on 

April 9, 2010 -- almost three months before the Supreme Court filed its Bashaw decision.  Burns 

and Tillmon do not argue that Bashaw applies retroactively.  Instead, they simply ignore the 

temporal discrepancy.  Prior to Bashaw, the pattern jury instruction (11A WPIC 160.00, at 630 

(3d ed. 2008)) used at Tillmon and Burns's trial was routinely given.  We find no fault in defense 

counsel's failure to foresee that, after their clients' trial, the Supreme Court would take issue with 

the unanimity language in WPIC 160.00.  

       Accordingly, we reverse Tillmon's and Burns's three robbery convictions related to 

Oatfield and Nick and Aaron Ormrod and remand to the trial court with directions to dismiss the 

three convictions, and the three firearm sentence enhancements attendant to those counts, with 

prejudice and for resentencing on the remaining counts and enhancements.  

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                 QUINN-BRINTNALL, J.
We concur:

                                               9 

Consol. Nos. 41059-1-II / 41143-1-II

ARMSTRONG, J.

PENOYAR, C.J.

                                               10