STATE v. GAMBLE, 25793-9-II (Wash.App. 3-18-2003)

No. 25793-9-IIThe Court of Appeals of Washington, Division Two.
Filed: March 18, 2003

Appeal from Superior Court of Clark County Docket No: 99-1-00537-6 Judgment or order under review Date filed: 04/05/2000

Counsel for Appellant(s), James J Sowder, Attorney at Law, 1600 Daniels, P.O. Box 27, Vancouver, WA 98666-0027.

Counsel for Respondent(s), Philip A. Meyers, Attorney at Law, P.O. Box 5000, Vancouver, WA 98666-5000.

QUINN-BRINTNALL, A.C.J.

A jury found Jacob Gamble guilty of first degree felony murder and second degree felony murder. He appeals, claiming numerous errors at trial, including insufficient evidence of his liability to robbery as an accomplice, and abuse of discretion by the trial court in excluding certain testimony and not granting a mistrial. We hold the evidence of Gamble’s knowing participation in the robbery was insufficient. Thus, we reverse the robbery-based first degree felony murder conviction. Although the evidence conclusively establishes that Gamble was a principal in the assault on Dan Carroll, and we would otherwise affirm the jury’s verdict finding him guilty of second degree felony murder and remand with directions that the trial court enter a judgment and sentence Gamble on that charge, our Supreme Court’s recent opinion in In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002) (motion for reconsideration pending), calls into question the viability of such a ruling. Thus, we direct the parties to provide additional briefing on the effects of Andress on the available remedies in this case.

FACTS
On March 26, 1999, a fight broke out at a party at the Young house in Vancouver, Washington. Kevin Phommahasay’s friend, Derrek Durham, called Curtis Esteban on Carroll’s cell phone, luring Esteban to the party. Phommahasay was angry with Esteban for saying derogatory things about Phommahasay’s brother and had announced his intention to beat him.[1]
Phommahasay began the fight by hitting Esteban in the head with a beer bottle as he and Carroll approach the front porch of the Young house where Phommahasay and Gamble stood. When Carroll went to assist Esteban, Gamble punched him with his fist. Carroll fell to the ground, hitting his head on the sidewalk. Several people, including Gamble, then kicked Carroll in the head as he lay on the ground. One of them, Ryan May, took Carroll’s cell phone.

Although the partygoers gave conflicting stories about other details, every witness agreed on one thing: Carroll did not move once his head hit the sidewalk. Carroll died several days later from injuries received in the attack.

Phommahasay pleaded guilty to attempted assault of Esteban. May pleaded guilty to second degree felony murder. Gamble went to trial. A jury found Gamble guilty of first degree felony murder stemming from the robbery and second degree felony murder stemming from the assault. He was sentenced to 320 months for the first degree murder charge. The court did not enter a judgment and sentence on the jury’s second degree murder verdict.

Gamble appeals, raising a number of issues. He argues that there was insufficient evidence to support the jury’s verdict finding him guilty of robbery and his liability for the robbery as an accomplice. He also argues that there was error in the accomplice liability jury instruction, abuse of discretion for allowing the State to amend the Information prior to trial and in not granting a mistrial because of juror confusion, and error in excluding certain testimony. Gamble argues pro se that the judge should not have told the jury that his was not a death penalty case.

ANALYSIS
Insufficient Evidence of Gamble’s Participation in the Robbery Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). `A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.’ Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). In determining whether the necessary quantum of proof exists, the reviewing court need not be convinced of the defendant’s guilt beyond a reasonable doubt, but only that substantial evidence supports the State’s case. State v. Fiser, 99 Wn. App. 714, 718, 995 P.2d 107, review denied, 141 Wn.2d 1023
(2000). Substantial evidence is evidence that `would convince an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed.’ State v. Hutton, 7 Wn. App. 726, 728, 502 P.2d 1037
(1972). In finding substantial evidence, we cannot rely upon guesswork, speculation, or conjecture. Hutton, 7 Wn. App. at 728.

Gamble argues that the evidence was insufficient to prove that he and May were accomplices in the crime of robbery. The law has long recognized that an accomplice, having agreed to participate in a criminal act, runs the risk of having the primary actor exceed the scope of the preplanned illegality. State v. Davis, 101 Wn.2d 654, 658, 682 P.2d 883 (1984). Anyone who participates in the commission of a crime is guilty of the crime and should be charged as a principal, regardless of the degree of participation. Davis, 101 Wn.2d at 658-59. However, accomplice liability does not necessarily attach to all crimes committed by the principal. ‘[K]nowledge by the accomplice that the principal intends to commit `a crime’ does not impose strict liability for any and all offenses that follow.’ State v. Roberts, 142 Wn.2d 471, 513, 14 P.3d 713 (2000). ‘[The] individual must have acted with knowledge that he or she was promoting or facilitating the crime for which [the] individual was eventually charged.’ State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000). See also State v. Stein, 144 Wn.2d 236, 246, 27 P.3d 184 (2001) (accomplice liability statute clearly requires knowledge of the specific crime, not merely any foreseeable crime committed as a result of the complicity). Stated differently, a person is not an accomplice if, knowingly participating in the commission of one crime, he or she unwittingly aids in the commission of another.

Here, the record establishes that Gamble assaulted Carroll first by punching him and then by kicking him as he lay on the ground. Both May and Gamble kicked Carroll. Thus, each is a principal in the assault, which was the basis for the second degree felony murder charge. See, e.g., State v. Lindahl, 114 Wn. App. 18, 56 P.3d 589 (2002).

But only May took the phone. The investigation of the robbery centered on who received the phone from May and how it returned to Carroll’s grandmother at the hospital. There was no testimony that Gamble planned, knew of, or otherwise participated in the taking or keeping of the phone. There was no testimony that Gamble encouraged May to take the phone. Thus, the robbery (which formed the basis of the first degree felony murder charge) was not `the crime’ that May and Gamble shared.

In Davis, the Court held that an accomplice is guilty of first degree robbery even though he did not know the other actor had a gun. Davis, 101 Wn.2d at 655-56. Roberts clarified Davis by stating, `The Davis court did not suggest, however, that the accomplice liability statute allowed conviction of an accomplice for any criminal result that occurred so long as the accomplice agreed to participate in any crime whatsoever.’ Roberts, 142 Wn.2d at 511.

Here, we are not faced with a case where the defendant disputes liability for the degree of the crime as in Davis (first or second degree robbery). This case is more like Roberts, where the question is whether sufficient evidence demonstrates that the accomplice (Gamble) knowingly aided or assisted another (May) with committing the crime (robbery) beyond their shared actions (assaulting Carroll). Although there was no evidence that Gamble limited his liability by withdrawing or preventing the robbery from occurring (see RCW 9A.08.020(5)(b)), the evidence on this record is insufficient to establish beyond a reasonable doubt that Gamble knowingly assisted in the commission of the robbery. See State v. Amezola, 49 Wn. App. 78, 88-90, 741 P.2d 1024 (1987). Thus, because the robbery was a separate and distinct act beyond the shared participation of Gamble in the assault, we reverse the first degree felony murder conviction. Having reversed the first degree felony murder conviction, we decline to address Gamble’s remaining challenges to this conviction.

The Second Degree Felony Murder Conviction

Gamble argues that the trial court erred by using the accomplice liability jury instruction found defective in Roberts, 142 Wn.2d 471, and Cronin, 142 Wn.2d 568.[2] We hold that because the jury was instructed that it must find that Gamble was assaulting Carroll as a principal, there was no error.

Questions of law are reviewed de novo. State v. Armstrong, 109 Wn. App. 458, 461, 35 P.3d 397 (2001), review denied, 146 Wn.2d 1013
(2002). Due process requires the State prove every fact necessary to constitute the crime beyond a reasonable doubt. In re Delinquency of Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The State bears the burden of showing that a constitutional error was harmless. State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996).

Gamble assaulted Carroll. Gamble testified that he punched Carroll and the forensic evidence established that the punch, coupled with Carroll’s falling and hitting his head on the sidewalk, proximately caused Carroll’s death. The `to convict’ instruction required the jury to find Gamble himself, and not an accomplice, committed the assault:

To convict the defendant Jacob Gamble of the crime of Murder in the Second Degree as charged in Count II, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about the 26th day of March, 1999, the defendant [Gamble] was committing Assault in the Second Degree;
(2) That in the course of and in furtherance of such crime or in immediate flight from such crime, the defendant Jacob Gamble, or an accomplice, caused the death of Daniel Carroll;
(3) That Daniel Carroll was not a participant in the crime; and
(4) That the acts occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

Clerk’s Papers (CP) 123 (emphasis added).

Thus, the accomplice liability jury instruction did not operate during the jury deliberations for the assault-based crime. Because this jury was required to find beyond a reasonable doubt that Gamble `was committing Assault in the Second Degree,’ we need not address the constitutionality of the accomplice liability given here.[3]

Failure to Give Self-Defense Instruction

Gamble also challenges the court’s failure to instruct the jury on self-defense. Gamble argues that he produced sufficient evidence to require the court to give a self-defense jury instruction. We disagree. To be entitled to an instruction on self-defense, the defendant need only produce `any evidence’ of self-defense. State v. Gogolin, 45 Wn. App. 640, 643, 727 P.2d 683 (1986). A jury may find self-defense on the basis of the defendant’s subjective, reasonable belief of imminent harm from the victim. State v. LeFaber, 128 Wn.2d 896, 899, 913 P.2d 369 (1996). Deadly force may only be used in self-defense if the defendant reasonably believes he is threatened with death or great personal injury. State v. Walden, 131 Wn.2d 469, 474, 932 P.2d 1237 (1997). We review the trial court’s decision not to give a self-defense jury instruction under an abuse of discretion standard. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998).

Our review of this record reveals that there was not enough evidence to warrant instructing the jury on self-defense. Gamble, a six-foot-three young man weighing 190 pounds was part of a group of young men who had planned a fight. Unprovoked, he punched an unarmed five-foot-nine young man weighing 127 pounds as that young man sought to defend his friend (Esteban) who had been hit in the head with a beer bottle by Gamble’s cohort, Phommahasay. Gamble was not and did not testify to being afraid of Carroll. Moreover, as an aggressor, Gamble was not entitled to rely on a claim of self-defense. See 11 Washington Pattern Jury Instructions: Criminal 16.02, at 47 (Supp. 1998) (WPIC) (`As a general rule, one who is an aggressor or who provokes an altercation in which another is killed cannot invoke the right of self-defense to justify or excuse the homicide.’).

Gamble also argues that he was entitled to a separate instruction that the State bears the burden of proving Gamble did not act in self-defense when he assaulted Carroll. State v. Heggins, 55 Wn. App. 591, 779 P.2d 285
(1989), addressed this issue squarely. In that case, this court said, [I]t is clear that the instruction was intended to apply to both intentional murder and to the felony murder alternative. The jury was instructed that in order to convict of felony murder, the State must prove as one element of the crime ‘[t]hat the defendant was attempting to commit assault in the second degree.’ When reading the instructions as a whole, therefore, the jury would have understood that the State had the burden of proving the absence of self-defense with regard to each element of the murder charge, including the attempt to commit second degree assault element. It would have been surplusage to add another self-defense instruction pertaining specifically to second degree assault.

Heggins, 55 Wn. App. at 600 (footnote omitted). The evidence did not support the giving of a self-defense instruction and the trial court properly declined to give one.[4]

The Remaining Issues

Gamble raises a number of other issues which are nondispositive. Hence, we address them briefly as follows:

I. Impeachment of Witnesses

Gamble argues that when May testified, Gamble should have been allowed to admit evidence that May had not been sentenced and that there was inherent bias in his testimony. Gamble is correct that he should have been allowed to present evidence that May was testifying prior to being sentenced. Thus, because the State could have recommended a longer sentence based on the testimony, the potential for bias existed. A defendant’s right to impeach a witness with evidence of bias is guaranteed under the constitutional right to confront witnesses. State v. Johnson, 90 Wn. App. 54, 69, 950 P.2d 981 (1998) (citing Davis v. Alaska, 415 U.S. 308, 316-18, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)). In determining whether the trial court’s ruling infringing on the defendant’s right to impeach was harmless error, we review the untainted evidence to determine if it is so overwhelming that it necessarily leads to a finding of guilt. State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182
(1985), cert. denied, 475 U.S. 1020 (1986).

Co-defendant witness May testified that the robbery was entirely his own doing and that the other person who kicked Carroll as he lay on the ground was Phommahasay, not Gamble. May testified that he did not even see Gamble in the yard. Thus, while the trial court erred by not allowing Gamble to present May’s possible bias in testifying before his sentencing, the error could not have prejudiced Gamble or affected the outcome of the trial. It was harmless beyond a reasonable doubt.

II. Admitting other Testimony

Gamble argues the trial court should not have admitted the testimony of Adam Jerome and Todd Reese because their testimony was irrelevant or, alternatively, too prejudicial. `The evidence was prejudicial in that it simply showed a character of wanting to fight.’ Br. of Appellant at 30. In both instances, the defense did not object to the statements. ER 103 requires all objections to be timely and specific. Failure to raise an objection at the trial court level precludes a party from raising it on appeal. DeHaven v. Gant, 42 Wn. App. 666, 669, 713 P.2d 149 (citing Symes v. Teagle, 67 Wn.2d 867, 873, 410 P.2d 594 (1966); State ex rel. Partlow v. Law, 39 Wn. App. 173, 178, 692 P.2d 863 (1984)), review denied, 105 Wn.2d 1015 (1986). Thus, this issue is not preserved for our review.

III. Sentencing

Gamble argues that the trial court erred by not sentencing him on the second degree felony murder verdict. He also asserts double jeopardy violations. We have reversed the first degree felony murder conviction so there is no double jeopardy violation. See State v. Schwab, 98 Wn. App. 179, 189, 988 P.2d 1045 (1999) (while convictions for the same criminal conduct would violate double jeopardy, because one conviction was reversed, there was no double jeopardy).

Moreover, the trial court did not enter judgment or sentence Gamble for the second degree felony murder. Instead, the court stayed the judgment and sentence on Count II by separate order. Gamble’s right to be free from double jeopardy was not violated.

IV. Was the Jury incorrectly informed this was not a death penalty case?

In Washington, the question of the sentence to be imposed is never a proper issue for the jury’s deliberation, except in capital cases. State v. Townsend, 142 Wn.2d 838, 846, 15 P.3d 145 (2001). Gamble argues pro se that the jury should not have been told during voir dire that this was not a death penalty case, citing Townsend, 142 Wn.2d at 840.[5] We agree that in Townsend our Supreme Court ruled that a jury is not to be informed that the case at issue is not a death penalty case. We note, however, that the jury was instructed, `The fact that punishment may follow conviction cannot be considered by you except insofar as it may tend to make you careful.’ CP at 108. We presume the jury followed this instruction. State v. Pastrana, 94 Wn. App. 463, 480, 972 P.2d 557, review denied, 138 Wn.2d 1007 (1999). Therefore the error was harmless. State v. Murphy, 86 Wn. App. 667, 671-72, 937 P.2d 1173 (1997), review denied, 134 Wn.2d 1002 (1998).

We reverse Gamble’s first degree felony murder conviction for insufficient evidence of Gamble’s knowing participation in the robbery of Carroll’s cell phone. We direct the parties to file additional briefs addressing the effect of In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002), on this case.

The court retains jurisdiction of the entire case until after it has received briefs and issued a supplement opinion on the effects, if any, that Andress has on this case. This opinion is not a decision terminating review within the meaning of Titles 12 and 13 of the Rules of Appellate Procedure.

The first degree felony murder conviction is reversed, and the second degree felony murder conviction will be further reviewed in due course. 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 pursuant to RCW 2.06.040, it is so ordered.

BRIDGEWATER and MORGAN, JJ., concur.