STATE v. PHAIR, 138 Wn. App. 1038 (2007)

No. 57626-7-I.The Court of Appeals of Washington, Division One.
May 14, 2007.

Appeal from a judgment of the Superior Court for Whatcom County, No. 05-1-01314-4, Ira Uhrig, J., entered December 16, 2005.

Affirmed by unpublished per curiam opinion.

PER CURIAM.

Robert Phair appeals his conviction for theft in the second degree as an accomplice. He argues his conviction must be reversed because the court gave an erroneous accomplice liability instruction and there was insufficient evidence to convict him. Because the erroneous jury instruction constitutes harmless error and there was sufficient evidence to convict him, we affirm.

FACTS
On August 29, 2005, Jeanne Schwab, the assistant manager of a Safeway store in Lynden, Washington, saw Phair, his daughter, and a young woman get out of a car and walk into the store, while other people remained in the car and waited outside. Schwab went inside the store and saw Phair and the young woman quickly filling separate shopping carts with “high-end things.” Schwab contacted Dary Blankers, the store manager. Blankers observed what was going on and called the police. Blankers and Schwab watched the woman push her shopping cart out of the store without paying. Blankers ran after her and confronted her, but she left the groceries, ran to the car, and drove away. Schwab confronted Phair inside the store and told him to come with her. Instead, he went back to the meat department and started putting meat back in the meat case. Schwab told him to stop putting the meat back and come talk to the police. Schwab says Phair admitted that he had no way of paying for the food, but told her he had not done anything wrong because he did not take anything out of the store. He initially denied that he and the woman who drove away were together, but later admitted that they were. Schwab calculated the value of the items in both carts. Phair’s cart contained items worth $335.51. His companion’s abandoned cart contained items worth $566.23.

At trial, the court gave a “to-convict” instruction, proposed by the State, to the jury that provided in relevant part:

To convict the defendant of the crime of theft in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about August 29, 2005, the defendant did act as an accomplice to another who wrongfully obtained or exerted unauthorized control over property of another;
(2) That the property exceeded $250 in value;
(3) That the defendant did act as an accomplice to another who intended to deprive the other person of the property; and
(4) That the acts occurred in the State of Washington.

The instruction defining accomplice liability proposed by the State and submitted to the jury provided that:

A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of a 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 a 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.

The jury convicted Phair of theft in the second degree as an accomplice. On December 16, 2005, the trial court sentenced him to a standard range sentence of 90 days. He appeals.

DISCUSSION
“It is a misstatement of the law to instruct a jury that a person is an accomplice if he or she acts with knowledge that his or her actions will promote any crime.”[1] I State v. Cronin, the Washington Supreme Court held that it is error to use an accomplice liability instruction that references “a crime” instead of “the crime,” because it suggests the jury can find the defendant guilty as an accomplice for a crime other than the specific crime charged.[2] But the use of an erroneous accomplice instruction does not require reversal, if the State can prove beyond a reasonable doubt that the error was harmless, meaning that “the error complained of did not contribute to the verdict obtained.”[3]

The State concedes that the accomplice liability instruction given at Phair’s trial was erroneous, but argues it was harmless and, thus, does not require reversal. Phair relies on the holding in State v. Bui, which was consolidated wit State v. Cronin, that reversal is required when there is a possibility that the jury convicted the defendant as an accomplice based on his participation in an uncharged crime.[4] Phair argues the State cannot prove that the erroneous instruction was harmless because the jury could have considered an uncharged crime, specifically Phair’s attempted theft of the groceries. But the court gave only one instruction on accomplice liability, and one cannot be an accomplice of oneself. It is irrelevant what other uncharged crimes the jury could have convicted Phair for as a principal. Because only one crime was at issue, referring to the crime as “a crime” instead of “the crime” was harmless, since there were no other crimes for which the jury could have mistakenly found Phair to be an accomplice.

Further, this case is distinguishable from Bui, in which the State argued in its closing that the jury could convict Bui as an accomplice if he facilitated the commission of “any crime” and then listed possible uncharged crimes the jury could find he facilitated.[5] This case is more similar to State v. Moran.[6] There, we held that the use of the erroneous instruction did not constitute reversible error because the prosecutor “did not emphasize the `a crime’ language in the instruction and did not tell the jury it could find accomplice liability based on an uncharged crime.”[7] Here, the prosecution argued that Phair was an accomplice to only one crime, the second degree theft committed by his female companion. It did not rely on the erroneous instruction or suggest that Phair aided in any other uncharged crimes. We hold that there is no question but that the jury verdict would have been the same absent the erroneous instruction and, thus, the error is harmless.

In his Statement of Additional Grounds, Phair essentially argues that there was insufficient evidence to convict him. When reviewing a challenge to the sufficiency of the evidence, we must determine, considering the evidence in the light most favorable to the prosecution, whether “`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'”[8] We draw all reasonable inferences from the evidence in the prosecution’s favor and interpret the evidence most strongly against the defendant.[9] We assume the truth of the prosecution’s evidence and all inferences that the trier of fact could reasonably draw from it.[10] We defer to the trier of fact to resolve any conflicts in testimony, to weigh the persuasiveness of evidence, and to assess the credibility of the witnesses.[11] Circumstantial evidence is as probative as direct evidence.[12]

Here, witnesses testified that Phair entered the store with a woman and that both of them began loading their shopping carts with groceries. Those same witnesses saw the woman take the groceries out of the store without paying and flee the scene, and Phair admitted they were together. The entire incident was also recorded by the store’s security cameras. Phair claims the recording created by the security system was tampered with, but there is no evidence in the record to support this assertion. We hold there was sufficient evidence for the jury to find Phair guilty of theft in the second degree as an accomplice.

We affirm.

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