No. 20894-0-IIIThe Court of Appeals of Washington, Division Three. Panel Eight.
Filed: December 18, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 01-1-00473-6. Judgment or order under review. Date filed: 01/28/2002.
Counsel for Appellant(s), William D. Edelblute, Attorney at Law 200 N Mullan Rd Ste 119, Spokane, WA 99206-6827.
Counsel for Respondent(s), Kevin Michael Korsmo, Deputy Prosecutor 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
KURTZ, J.
Jeremy A. Krasin was convicted of first degree assault after he severely beat and permanently injured Daniel Vorpahl. The fight was initiated by one of Mr. Krasin’s companions who punched and kicked Mr. Vorpahl after Mr. Krasin had rendered him unconscious. On appeal, Mr. Krasin contends that the court erred by giving an accomplice instruction. He also contends that the prosecutor committed misconduct in his closing remarks. We affirm Mr. Krasin’s conviction.
FACTS
Jeremy A. Krasin was charged with one count of first degree assault. Neighbors who witnessed portions of the assault testified at trial. Janet Knox testified that she was awakened at 2:00 a.m. by the sound of arguing and loud voices. She saw two men standing in the street, arguing. One of the men was trying to get the other one to leave. She left the window to retrieve a telephone, and when she returned, one of the men, later identified as Mr. Krasin, was `stomping and kicking someone lying on the sidewalk.’ Report of Proceedings (RP) at 74. The victim was Daniel Vorpahl. Ms. Knox called 911 and continued to watch out her window.
At that point, the man who had been trying to convince Mr. Krasin to leave the scene climbed into his truck and drove away. Ms. Knox testified that she watched Mr. Krasin walk across the street, up onto a porch of a house. He then turned around, and walked back to where Mr. Vorpahl was lying on the ground. Mr. Krasin yelled at Mr. Vorpahl to get up, and he tried to lift him, but he fell and dropped Mr. Vorpahl. He again attempted this, with the same results.
Ms. Knox testified that at that point, `[i]t seemed to make him angry that the guy wouldn’t get up. And he started kicking and stomping on him again.’ RP at 78. She stated that Mr. Vorpahl was like a rag doll, and was very limp.
Ms. Knox stated that Mr. Krasin appeared intoxicated, he stumbled and, at one point, he fell to his knees.
A second neighbor, Shaun Heller, also testified about the assault. Mr. Heller was awakened by loud, vulgar language and swearing. When he looked out his window, Mr. Heller saw Mr. Krasin `thrusting his foot onto the head of this gentleman that was on the ground. And he wasn’t moving, from what I could tell. And it was over and over again.’ RP at 90. Mr. Heller estimated that Mr. Krasin stomped Mr. Vorpahl’s head between 10 and 15 times, and kicked him another 6 times.
Mr. Heller testified that during the assault, another man was standing at the scene. The other man was attempting to try to push Mr. Krasin away from Mr. Vorpahl, but he was unsuccessful.
Spokane City Police Officer Brent Austin was one of the first officers to arrive at the scene. He contacted Mr. Krasin and noted that he had blood on his hands, clothing, pants, and shoes. He placed Mr. Krasin in the back of his patrol car, and went to check on Mr. Vorpahl. Mr. Vorpahl appeared to have severe head injuries and was unconscious.
Officer Austin stated that he could smell a strong odor of alcohol coming from Mr. Krasin. Mr. Krasin was having a hard time standing. Officer Austin read Mr. Krasin his Miranda[1] warning, and Mr. Krasin agreed to waive his rights. Mr. Krasin initially told the officer that he had not assaulted anyone. He then denied that he had blood on his hands and clothing.
Detective Lonnie Tofsrud testified that he met with Mr. Krasin at the police department. Mr. Krasin had spoken with, but not retained, an attorney and he said he did not want to talk to an attorney before talking to the detective. The detective advised Mr. Krasin of his constitutional rights.
Mr. Krasin told the detective that he had limited recall of the events surrounding the assault. He stated that he had consumed several pitchers of beer and a significant amount of tequila. He recalled that during the course of the evening, he had been to Outback Jack’s, Satellite Diner, and Gabby’s Bar and Grill. He said that he had been drinking with Jason Rayson.
He told the detective that he became involved in an argument with someone he did not know in the area of 14th and Pittsburgh, where he lived. He said that the person punched him and the two fell to the ground. He said that a third person — who he would not identify — pulled the person away from Mr. Krasin and started smashing the person’s face into the pavement.
Mr. Krasin admitted that he kicked Mr. Vorpahl three or four times, but stated that he could not get any footing because the ground was too icy. He told the detective that Mr. Vorpahl put his hands over his face while he was being kicked. Mr. Krasin admitted that at some point Mr. Vorpahl became unresponsive, and Mr. Krasin continued to kick him two or three times after he stopped flinching. Mr. Krasin stated, “I admit I beat this guy up more than I should have.” RP at 155.
Eventually, Detective Tofsrud determined that the third person at the scene who eventually drove away was Mr. Krasin’s friend, Garth Cummings. Mr. Cummings told the detective that during the evening, Mr. Vorpahl was driving, another man was in the passenger seat, and Mr. Krasin and Mr. Cummings were in the back seat.
When the altercation began, Mr. Cummings stated that he initially punched Mr. Vorpahl in the face, which sent him to the ground. Those two struggled for a time, and then Mr. Krasin became involved. Mr. Cummings admitted that after Mr. Vorpahl was unconscious, he punched him in the stomach a few times, and kicked him in the head.
Dr. Richard Lambert testified that Mr. Vorpahl had severe facial trauma, facial lacerations, and evidence of fractures to the facial bones. He had a closed head injury with an epidural hematoma and some evidence of bleeding in the brain.
Dr. Mark Varga testified that as a result of his injuries, Mr. Vorpahl has problems with attention and is unable to make enough progress to proceed to vocational goals or goals such as reading. He had been a barber, but now is unable to function independently. His speech therapy was suspended because of his inability to carry over from lesson to lesson.
Dr. Scott Mabee testified that Mr. Krasin was alcohol dependent, and his ability to consider the consequences of his actions were impaired by alcohol on the night of the assault. He further opined that Mr. Krasin did not necessarily want to inflict great bodily harm.
In rebuttal, the State called Dr. Clay Jorgensen who testified that he found no mental disorders in Mr. Krasin that would have caused a diminished capacity.
Over Mr. Krasin’s objection, the court gave instruction number 5, which provided in part:
To convict the defendant of the crime of assault in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 18th day of February, 2001, the defendant or an accomplice assaulted Daniel Vorpahl.
(2) That the assault was committed by a force or means likely to produce great bodily harm or death;
(3) That the defendant acted with intent to inflict great bodily harm; and
(4) That the acts occurred in the State of Washington.
Clerk’s Papers (CP) at 115.
Instruction number 6, also related to accomplice liability, stated in part:
A person is an accomplice in the commission of the crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or
(2) aids or agrees to aid another person in planning or committing the crime.
The word `aid’ means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.
CP at 116.
During the prosecutor’s rebuttal closing argument, he concluded, `On behalf of Mr. Vorpahl’s family and myself, I’m requesting that you find the defendant guilty of first degree assault. Thank you.’ RP at 395.
The jury convicted Mr. Krasin. He was sentenced to 123 months. He appeals.
ANALYSIS
Did the court err in giving instruction number 5? Mr. Krasin contends that the court erred in giving instruction number 5. He argues that no evidence existed that he acted as an accomplice and, therefore, the court should not have instructed the jury on accomplice liability.
A person is guilty of the substantive crime committed by another if he or she acts as an accomplice. RCW 9A.08.020(1), (2).
(3) A person is an accomplice of another person in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the commission of the crime, he
(i) solicits, commands, encourages, or requests such other person to commit it; or
(ii) aids or agrees to aid such other person in planning or committing it[.]
RCW 9A.08.020(3); see State v. Rice, 102 Wn.2d 120, 124-25, 683 P.2d 199
(1984).
Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case and when read as a whole properly inform the jury of the applicable law. State v. McLoyd, 87 Wn. App. 66, 71, 939 P.2d 1255 (1997), aff’d sub nom. State v. Studd, 137 Wn.2d 533, 973 P.2d 1049 (1999). In this case, evidence was presented that Mr. Cummings began the assault on Mr. Vorpahl, and that Mr. Krasin then continued the beating. Mr. Cummings admitted that he kicked and punched Mr. Vorpahl a few more times after Mr. Krasin had left Mr. Vorpahl unconscious. In this case, sufficient evidence exists that Mr. Krasin aided Mr. Cummings in an assault upon Mr. Vorpahl. As such, the instruction was properly supported by substantial evidence.
Mr. Krasin also argues that instruction number 5 misstated the law. He contends that under the instruction, if Mr. Krasin simply had the intent to inflict great bodily harm, but that another person committed the assault, Mr. Krasin could have been found guilty. Mr. Krasin misapprehends the law surrounding accomplice liability.
`The complicity rule in Washington is that any person who participates in the commission of the crime is guilty of the crime and is charged as a principal.’ State v. Silva-Baltazar, 125 Wn.2d 472, 480, 886 P.2d 138
(1994).
In State v. Carothers, 84 Wn.2d 256, 264, 525 P.2d 731 (1974),[2] our Supreme Court stated:
The legislature has said that 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 or nature of his participation. Whether he holds the gun, holds the victim, keeps a lookout, stands by ready to help the assailant, or aids in some other way, he is a participant. The elements of the crime remain the same.
For example, in State v. Sweet, 138 Wn.2d 466, 980 P.2d 1223 (1999), Mr. Sweet and his friend, Robert Slaton, appeared at the house of Mr. Sweet’s aunt. Mr. Sweet hid in the back of Mr. Slaton’s truck. Mr. Slaton severely beat the aunt, and then the two burglarized the house.
Mr. Sweet was convicted of assault. He argued that he was not in the residence for the assault and burglary. The Supreme Court held that his presence or absence was immaterial based upon accomplice liability. `It is sufficient for [Mr. Sweet] to have done `something in association with the principal to accomplish the crime.” Id. at 479 (quoting State v. Boast, 87 Wn.2d 447, 456, 553 P.2d 1322 (1976)).
In another case, a to-convict instruction was affirmed that stated in part to convict the defendant of first degree attempted murder, the jury had to find beyond a reasonable doubt that “the defendant, or one with whom he was an accomplice, did an act which was a substantial step toward the commission of Murder in the First Degree.” State v. Trujillo, 112 Wn. App. 390, 402, 49 P.3d 935 (2002), review denied, 149 Wn.2d 1002 (2003). The court stated that to hold an individual liable as an accomplice, the State must prove that a person who solicits the commission of the crime or aids in the planning or committing the offense necessarily had knowledge of it. Id. at 404.
In short, instruction number 5 in this case accurately reflected the law of accomplice liability. Under that theory, just as in Sweet, Mr. Krasin could be found guilty of first degree assault if he had the requisite intent, but his friend carried out the assault, and Mr. Krasin was determined to be an accomplice.
In this case, the to-convict instruction did not misstate the law. The jury could have found Mr. Krasin guilty as the principal of the assault, or as the accomplice to Mr. Cummings’s assault. In either event, substantial evidence supported both theories. The court did not err.
Did the State commit misconduct in closing argument? The State concedes that the prosecutor committed misconduct in his closing remarks when he asked the jury to bring back a guilty verdict for him, as well as for the victim’s family. Mr. Krasin did not object to the remarks during trial.
To establish prosecutorial misconduct, the defendant must show the impropriety of the conduct as well as its prejudicial effect. State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105 (1995) (quoting State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991)); State v. Millante, 80 Wn. App. 237, 251, 908 P.2d 374 (1995). A conviction will be reversed only if “there is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict.” State v. Luvene, 127 Wn.2d 690, 701, 903 P.2d 960 (1995) (quoting State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991)).
The failure to object to a prosecutor’s improper remark constitutes a waiver of the error “unless the remark is deemed to be so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.” Gentry, 125 Wn.2d at 640 (quoting Hoffman, 116 Wn.2d at 93). Reversal of the defendant’s conviction is not required if the error could have been cured by a curative instruction which the defense did not request. Gentry, 125 Wn.2d at 640 (quoting Hoffman, 116 Wn.2d at 93).
In this case, Mr. Krasin has failed to establish that the prosecutor’s remarks were so flagrant or ill-intentioned that any prejudice caused could not have been cured by an instruction. This contention is without merit.
We affirm Mr. Krasin’s conviction.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, C.J. and SWEENEY, J., concur.
(1966).