No. 17862-5-III.The Court of Appeals of Washington, Division Three. Panel Nine.
Filed: January 23, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Adams County, No. 98-1-00041-4, Hon. Wallis Friel, September 21, 1998, Judgment or order under review.
Counsel for Appellant(s), Donald G. Miller, Attorney At Law, 422 W. Riverside Ste. 518, Spokane, WA 99201.
Counsel for Respondent(s), Gary J. Brueher, Prosecuting Attorney, Adams Co. Prosecutor, 210 W. Broadway, Ritzville, WA 99169.
Randy J. Flyckt, 210 W. Broadway Vve., Ritzville, WA 99169.
Leslie K. Magryta, 515 W. Francis Ste. 5, Spokane, WA 99205-6413.
KENNETH H. KATO, J.
Alvaro Mendoza appeals his conviction for second degree assault. He contends the trial judge’s inability to hear the evidence deprived him of a fair trial, the evidence was insufficient to convict him, and the court erred by denying his post-trial motion to vacate the judgment. We affirm.
Zeferino Villarreal hit Lupe Mariscal on the head with a baseball bat in a confrontation between two groups of men in Othello on March 13, 1998. Just before the assault, Mr. Mendoza, a member of Mr. Villarreal’s group, had exhorted others to fight `one on one.’
The State charged Mr. Mendoza with second degree assault. At trial, the primary question was whether he was an accomplice of Mr. Villarreal.
The court found Mr. Mendoza guilty after a bench trial.
We first address the issue whether the trial court abused its discretion by denying Mr. Mendoza’s motion to vacate the judgment. Another member of Mr. Villarreal’s group was Daniel Osuna, who entered into a plea agreement. As a result of the agreement, charges against Mr. Osuna arising from the incident were dismissed with prejudice. At Mr. Mendoza’s trial, the prosecutor stated the agreement required that Mr. Osuna testify truthfully. The State did not call Mr. Osuna as a witness.
However, Mr. Osuna did testify as a defense witness. He testified Mr. Mendoza’s exhortation to fight `one on one’ was an instruction to Mr. Villarreal to fight without the bat. He also testified a member of Mr. Mariscal’s group threatened to use a gun. The prosecutor impeached Mr. Osuna’s credibility with his prior statements to officers.
Mr. Osuna testified his plea agreement required only that he tell the truth. A police officer testified Mr. Osuna was not told he had to testify in a certain way.
After trial, Mr. Mendoza filed a motion to vacate the judgment pursuant to CrR 7.8(b)(3), alleging the State had engaged in prosecutorial misconduct. Mr. Mendoza supported the motion with an affidavit of Mr. Osuna’s attorney, John F. Strohmaier. The affidavit stated Mr. Strohmaier met with the Adams County Prosecuting Attorney, David Sandhaus, before Mr. Osuna’s sentencing. The affidavit stated:
In spite of our agreement, Mr. Sandhaus advised me that his offer to my client was only based upon my client’s providing information that would help convict Mr. Mendoza. He further commented why else would he make this offer unless Mr. Osuna could provide such testimony and that without it the offer would be revoked.
Clerk’s Papers at 107.
The court denied the motion to vacate, finding there was insufficient proof that Mr. Sandhaus had changed the terms of Mr. Osuna’s plea agreement. The court further observed that Mr. Osuna’s testimony was basically exculpatory, even though it was `overwhelmingly inconsistent and unbelievable.’
A trial court’s decision on a CrR 7.8(b) motion for relief from judgment is reviewed for abuse of discretion. State v. Hardesty, 129 Wn.2d 303, 317, 915 P.2d 1080 (1996). Mr. Mendoza’s motion was based entirely on his allegation that Mr. Sandhaus engaged in misconduct by requiring, as part of the plea agreement with Mr. Osuna, that he testify in a way that helped to convict Mr. Mendoza. However, the court expressly rejected this allegation, based on the evidence presented at trial. There was no factual basis for the motion, and the court did not abuse its discretion by denying it.
Moreover, to obtain a reversal of a conviction on the basis of prosecutorial misconduct, a defendant must establish that the conduct had a prejudicial effect, which means there must be a substantial likelihood the conduct affected the verdict. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). Even if the Osuna plea agreement were improper, Mr. Mendoza was not prejudiced by it because Mr. Osuna’s testimony was essentially exculpatory. Although he was thoroughly impeached with his prior inculpatory statements to officers, this evidence was not substantive proof of Mr. Mendoza’s guilt, see State v. Johnson, 40 Wn. App. 371, 377, 699 P.2d 221 (1985), a fundamental principle of which the trial court presumably was aware.
Mr. Mendoza also points to several other events at trial as evidence of prosecutorial misconduct, such as repeated attempts to admit evidence of his gang membership, whispering to a witness, reference to Mr. Osuna’s refusal to take a polygraph test, dismissal of subpoenaed witnesses, references in closing argument to Mr. Mendoza’s failure to testify, and unknown incidents off the record. But Mr. Osuna essentially concedes the lack of prejudice by noting: `If this had been a jury trial, . . . many of the above actions might have warranted a mistrial.’ He has failed to establish the prejudice required for reversal of the conviction.
We next discuss whether the evidence was sufficient to convict Mr. Mendoza. In this context, we must view the proof in a light most favorable to the prosecution and must determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628
(1980). We must draw all reasonable inferences in the State’s favor and interpret them most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). The same standard applies regardless of whether the case is tried to a jury or to the court. See State v. Little, 116 Wn.2d 488, 491, 806 P.2d 749 (1991). The elements of a crime may be established by either direct or circumstantial evidence, and one type of evidence is no less valuable than the other. State v. Thompson, 88 Wn.2d 13, 16, 558 P.2d 202, appeal dismissed, 434 U.S. 898
(1977); State v. Brooks, 45 Wn. App. 824, 826, 727 P.2d 988 (1986).
The court found Mr. Mendoza guilty as an accomplice under RCW 9A.36.021(1)(a), which provides that a person is guilty of second degree assault if he `[i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm.’ A person may be guilty of a crime committed by another person if he acts as an accomplice. RCW 9A.08.020(2)(c).
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; or
(b) His conduct is expressly declared by law to establish his complicity.
RCW 9A.08.020(3).
Mr. Mendoza first contends that, by exhorting others to fight `one on one,’ he at best was promoting commission of fourth degree assault, not second degree assault, because he did not suggest using the baseball bat. However, a `one on one’ fight logically does not preclude an assault that causes substantial bodily harm. Moreover, several witnesses testified that all or many of the men in Mr. Mendoza’s group carried bats or sticks. A reasonable inference is that Mr. Mendoza’s exhortation was at least an encouragement to use these bats or sticks to assault one or more of the other men.[1]
To the extent Mr. Mendoza argues there was no proof he intended the infliction of substantial bodily harm, the law in Washington `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). Having encouraged or promoted the assault, Mr. Mendoza cannot escape accomplice liability for the resulting serious injury.[2]
Mr. Mendoza also relies on evidence that, after first striking Mr. Mariscal with his fist, Mr. Villarreal retreated a few steps. Mr. Mariscal apparently then approached Mr. Villarreal and was struck by the bat. Without citation to authority, Mr. Mendoza contends that either Mr. Villarreal’s initial assault or his subsequent retreat was `an intervening factor’ that in some way absolves Mr. Mendoza of accomplice liability. RCW 9A.08.020(5)(b) provides that a person is not an accomplice if `[h]e terminates his complicity prior to the commission of the crime, and either gives timely warning to the law enforcement authorities or otherwise makes a good faith effort to prevent the commission of the crime.’ There is no evidence Mr. Mendoza did either of these things. The evidence was sufficient.
Finally, we address Mr. Mendoza’s contention that he was denied a fair trial by the trial judge’s inability to hear the testimony. Mr. Mendoza did not raise this issue at trial. Without citation to authority, he contends on appeal that the court’s inability to hear the evidence created `a structural error in due process.’ The record does not support the argument. Indeed, the trial judge’s frequent interruptions suggest he was fully involved in the trial and unconstrained about insisting on hearing all of the testimony. The court’s oral decision reflects the judge’s complete familiarity with the evidence. Whatever the merits of Mr. Mendoza’s argument in the abstract, he has failed to establish a `manifest error affecting a constitutional right.’ RAP 2.5(a)(3) (emphasis added); see State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251
(1995). We decline to address this issue for the first time on appeal.
The conviction is affirmed.
A 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.
WE CONCUR: KURTZ, C.J., SWEENEY, J.