No. 26375-1-II.The Court of Appeals of Washington, Division Two.
Filed: May 17, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Kitsap County, No. 99-1-00752-1, Hon. Jay B. Roof, August 11, 2000, Judgment or order under review.
Counsel for Appellant(s), Eric M. Fong, Rovang Fong Associates, 569 Division St Ste a, Port Orchard, WA 98366.
Counsel for Respondent(s), Jeremy A. Morris, Kitsap Co. Deputy Pros. Atty., Msc 35, 614 Division St, Port Orchard, WA 98366.
DAVID H. ARMSTRONG, J.
Thomas Rivera appeals his convictions for three counts of second degree assault. Rivera was part of a group that went looking for Immanuel Taylor. When the group located Taylor’s house, Brad Foster fired a number of shots into the house, killing Taylor. The State charged Rivera as an accomplice with assaulting three other occupants of the house. The trial court instructed the jury that Rivera was guilty as an accomplice if he knew his conduct would facilitate a crime rather than the crime with which he was charged. On appeal, Rivera contends that the flawed instruction requires reversal. He also argues that the evidence was insufficient to convict him of the assaults. We find the evidence sufficient to support Rivera’s convictions and we hold the instruction error was harmless. Accordingly, we affirm.
FACTS
On the day of the shooting, Thomas Rivera and Immanuel Taylor argued and offered to fight when they met at a gas station. Later, Taylor went to Stephen Lacy’s house to buy marijuana. He took the marijuana, but did not pay.
Rivera and Lacy talked with some friends about finding Taylor and beating him up. The group drove around looking for Taylor. At some point, the car Rivera was in stopped; another passenger got a gun and gave it to Brad Foster. Rivera thought he knew where Taylor was and directed the group to the house, but Taylor was not there. Members of the group in another car located Taylor, and a passenger telephoned Rivera.
The group arrived at Taylor’s house; Rivera, Foster, and others got out of the cars and walked toward the house. One person ran up to the door and kicked it. Some of the group thought Taylor was reaching for a gun. Foster started shooting into the house, killing Taylor but missing three others in the house. The State charged Rivera, as an accomplice, with assaulting these three victims and with murdering Taylor.
Several witnesses thought they saw Rivera with a gun. Others testified that he complained after the shooting that his gun had jammed. But the jury found him not guilty of unlawful possession of a firearm. He stipulated to a prior felony.
At trial, the prosecutor argued that Rivera was guilty of assault and murder as an accomplice because he knew the group intended to assault Taylor and helped bring the gun to the scene. Rivera’s defense was that he was just tagging along, he did not aid any crime, and he did not plan an assault.
The judge gave an accomplice instruction that the State now concedes was defective. The jury found Rivera guilty of three counts of second degree assault with a firearm enhancement. They returned no verdict on charges of first and second degree murder. The State retried Rivera on the murder charges only, and the second jury found him not guilty of first degree felony murder, but returned no verdict on the second degree charge. (The State charged felony murder under the theory that the person who kicked the door, committed an attempted burglary.)
ANALYSIS I. Accomplice Liability
A defendant is liable as an accomplice only if he knew that his actions would promote or facilitate the charged crime. RCW 9A.08.020; State v. Cronin, 142 Wn.2d 568, 578, 14 P.3d 752 (2000). Here, the jury instructions allowed the jury to find Rivera guilty if he knew that his actions would promote or facilitate `a crime.’ The State concedes the error, but argues that it was harmless because the State presented neither evidence nor argument that Rivera helped commit any crime other than assault.
We presume that an instructional error was prejudicial; the State has the burden to show that it was harmless. State v. Stein, 144 Wn.2d 236, 27 P.3d 184 (2001). A constitutional error is harmless if the court concludes beyond a reasonable doubt that any reasonable jury would reach the same result absent the error. State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996).
In Cronin, the same defective instruction was not harmless because the jury could have relied on evidence of crimes other than the charged crime to find accomplice liability. The jury convicted Cronin of premeditated first degree murder with one aggravating factor. Cronin, 142 Wn.2d at 577. The aggravating factor was that the murder was `committed in the course of, in furtherance of, or in immediate flight from a robbery in the first or second degree or a kidnapping in the first degree.’ Cronin, 142 Wn.2d at 577 n. 9. The jury found that Cronin did not personally premeditate the killing but convicted him as an accomplice to premeditated murder. Cronin, 142 Wn.2d at 577-78, 581. The Supreme Court reversed because the trial court’s instructions allowed the jury to convict Cronin by finding that he knew that his actions would promote or facilitate any crime, including either the uncharged robbery or kidnapping. See also Stein, 144 Wn.2d at 248 (holding a defective accomplice liability instruction not harmless because the jury may have found guilt as an accomplice to attempted murder and burglary based on conspiracy to intimidate).
In the companion case to Cronin, the court found the same instruction harmful error and it overturned defendant Bui’s conviction of first degree assault with a firearm. Cronin, 142 Wn.2d at 580-81. Bui, the driver, turned his car around to chase another car. When he stopped his car, a passenger in his car shot at the other car. Cronin, 142 Wn.2d at 571. To be guilty as an accomplice to assault, Bui had to know generally that he was aiding the commission of assault. Cronin, 142 Wn.2d at 580. But the jury could have inferred, by the judge’s unclear response to its question, that Bui could have been an accomplice by facilitating a verbal exchange. Cronin, 142 Wn.2d at 581. Since Bui had to knowingly aid at least a physical confrontation to aid an assault, the error was not harmless. Cronin, 142 Wn.2d at 581. Notably, the court did not hold that Bui had to know that the assault would involve a firearm. Unlike in Cronin and Stein, here the State argued only that Rivera knew he was encouraging and helping Foster commit an assault. And the jury convicted Rivera only of assault. The State did raise other possible crimes that were committed that day, including burglary. But if the jury believed that Rivera knew of and intended to assist in burglary, it would have convicted him of felony murder. It did not. We conclude that there is no likelihood the jury was confused as to what crime Rivera intended to assist. Thus, the flawed instruction was harmless error; we are satisfied beyond a reasonable doubt that the jury would have reached the same result without the error.
II. Sufficiency of the Evidence
Rivera also argues that the evidence was insufficient to prove that he knowingly acted as an accomplice. App. br. at 24-28.
Rivera was angry with Taylor and wanted to beat him up. He helped gather friends to do that. He was in the car when Foster got the murder weapon. He gave directions to one location for Taylor; then, after a phone call, he told the driver where to actually find Taylor. He approached the house with Foster and others and was still there when Foster fired into the house. This was sufficient to prove that Rivera, with knowledge of the intended assault, helped plan and commit it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). But Rivera argues that since he and Foster did not talk, and specifically did not discuss using a gun, he could not have aided Foster in second degree assault. Accomplice liability, however, does not depend on the accomplice and principal planning the particulars of the crime or even discussing how they will carry it out. State v. Roberts, 142 Wn.2d 471, 512, 14 P.3d 713
(2000). Specifically, the State was not required to prove that Rivera knew Foster intended a deadly assault. State v. Rice, 102 Wn.2d 120, 126, 683 P.2d 199 (1984); State v. Davis, 101 Wn.2d 654, 682 P.2d 883 (1984). Rather, Rivera was liable as an accomplice to second degree assault if he had `general knowledge that he was aiding in the commission of the crime of assault.’ Cronin, 142 Wn.2d at 580. He did and, accordingly, we affirm.
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.
WE CONCUR: HUNT, C.J., QUINN-BRINTNALL, J.