State v. Brown

• Decision Date: 23 January 1984
• Docket Number: No. 11543-0-I,11543-0-I
• Citation: 36 Wn.App. 549,676 P.2d 525
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. David L. BROWN, Defendant, Larry D. Myles, and Valerie Washington, and each of them, Appellants.

Page 549

36 Wn.App. 549

676 P.2d 525

STATE of Washington, Respondent, v. David L. BROWN, Defendant Larry D. Myles, and Valerie Washington, and each of them, Appellants.

No. 11543-0-I.

Court of Appeals of Washington Division 1.

Jan. 23, 1984.

Rehearing Denied April 20, 1984.

Washington Appellate Defender, Elizabeth K. Selleck, Seattle (Court appointed), for appellants.

Norman K. Maleng, King County Pros. Atty., Sharon Creeden, James A. Trujillo, Deputy Pros. Attys., Seattle, for respondent.

CALLOW, Judge.

Larry Myles and Valerie Washington appeal a jury verdict finding them guilty of first degree burglary while armed with a deadly weapon and firearm.

Washington contends the trial court erred when it failed to instruct the jury that the State had the burden of proving beyond a reasonable doubt she knew her accomplices were armed during commission of the burglary. Both defendants assign error to the trial court's failure to instruct the jury that theft requires an intent to permanently deprive a rightful owner of his property and the court's failure to give the defendants' proposed instructions on the claim of title defense.

On August 29, 1981, Larry Myles, Valerie Washington and David Brown went to the apartment of Washington's ex-husband, Donald Morrow. The testimony was in conflict as to the purpose of their visit. The defendants claimed Morrow stole a purse and gun from Washington's apartment earlier that day. Morrow denied he visited Washington that day or that he took anything from her apartment. Morrow claimed Washington was angry at him since he could not find their son's birth certificate and had threatened to come over and look for it herself. Witnesses for both the defense and the State corroborated Morrow's and the defendants' stories.

On the way to Morrow's apartment, the three went by Brown's house in Tacoma. Brown went to his apartment, stuck a gun in his pants, and walked out to the car. Washington denied any knowledge of the reason for stopping by Brown's apartment. She also claimed she was unaware that either Brown or Myles had possession of a gun during the incident.

After arriving at Morrow's apartment complex, Brown and Myles walked upstairs to Morrow's second floor apartment. Washington claimed she remained downstairs until after Brown and Myles had entered the apartment. However witnesses testified they saw Washington outside the front door before Brown kicked the door in and that Washington entered the apartment after Myles. Myles knocked on Morrow's partially ajar front door. Morrow's godmother, Ramona George, jumped up and shut the door since she did not recognize either Myles or Brown. George claimed Washington had not yet come into her field of vision. After motioning at the window that they wished to speak with Morrow, Brown kicked the door in and entered the apartment flourishing a gun. Myles entered after him. Washington claims she never entered the apartment and stood in the doorway during the entire incident.

Just before Brown kicked the door in, Morrow came out of his bedroom and saw Myles through the living room window. He claims he saw Washington standing near Myles and called the police. Morrow claims he saw the gun in Brown's hand as soon as Brown kicked the door in, immediately dropped the phone, ran to his bedroom, and jumped through the plate glass window.

After Brown and Myles entered the apartment, Brown either handed the gun to Myles or Myles took the gun from him. In any event, Myles remained in possession of the gun until they left the apartment. Myles claims he never pointed the gun at anyone, and after looking in the bedrooms for Morrow, put the gun in his pants. There was testimony to the contrary.

When the defendants realized that Morrow had escaped through the second-floor window, Washington suggested they take Morrow's stereo to secure the return of the purse and gun. The police arrived as the defendants were loading the stereo into their van. Myles or Brown then tossed the gun into the bushes where it was retrieved by the police the next day.

Brown, Myles and Washington were charged with burglary in the first degree while armed with a deadly weapon and firearm. The underlying crimes alleged were theft and assault. Codefendant David Brown failed to appear for the omnibus hearing and was not present during the trial. The jury found Myles and Washington guilty as charged. Washington and Myles consolidated their appeals.

The first issue applies only to defendant Valerie Washington. Washington claims the trial court erred by not instructing the jury that the State had the burden of proving beyond a reasonable doubt that Washington knew her accomplices were armed at the time of the crime. She claims the trial court's failure to instruct the jury on the State's burden of proof mandates reversal of her conviction for first degree burglary and vacation of the deadly weapon and firearm special verdict.

State v. McKim, 98 Wash.2d 111, 653 P.2d 1040 (1982), held that in order for a "deadly weapon enhancement provision to apply to an unarmed codefendant, the State must prove beyond a reasonable doubt that the accused knew his or her accomplice was armed with a deadly weapon at the time of the commission of the crime." (Emphasis added.) McKim, at 118, 653 P.2d 1040.

Washington's trial occurred before the Supreme Court entered its opinion in McKim. Thus, she did not request the court to instruct the jury on the State's burden of proof regarding accomplice liability and the deadly weapon statutes, nor did Washington take exception to the trial court's failure to so instruct.

Except for instructional error which invades a constitutional right of the accused, an appellate court will not consider errors claimed in instructions given or refused unless there was an exception taken at trial adequate to direct the trial judge's attention to the claimed error.

State v. Van Pilon, 32 Wash.App. 944, 948, 651 P.2d 234 (1982). See State v. Theroff, 95 Wash.2d 385, 622 P.2d 1240 (1980). The deadly weapon and firearm special verdict instructions did not inform the jury of the State's burden of proof regarding Washington's knowledge of whether her accomplices were armed.

An instruction which prejudicially relieves the State of its burden of proof or prejudicially deprives the defendant of the benefit of having the jury pass upon a significant and disputed issue invades the defendant's right to a fair trial.

State v. Van Pilon, supra, 95 Wash.2d at 948, 651 P.2d 234. See State v. Louie, 68 Wash.2d 304, 413 P.2d 7 (1966). Prejudice may be demonstrated where an erroneous instruction is applied to a close factual question. State v. Van Pilon, supra, 95 Wash.2d at 948-49, 651 P.2d 234.

The jury was erroneously instructed that if one accomplice is found armed with a deadly weapon, all co-participants are deemed armed. However, McKim held that the State must prove actual or constructive possession of a weapon by the defendant before a defendant's sentence may be enhanced by a deadly weapon special verdict. It is not disputed that Washington did not possess a deadly weapon during commission of the burglary. Whether Washington constructively possessed the weapon, by virtue of her knowledge of the presence of the gun, is disputed. Thus, Washington's right to a fair trial was prejudiced by the trial court's instruction.

McKim interpreted the statutory language of the accomplice liability and deadly weapon statutes. The court concluded that the new accomplice liability statute's "applicability is limited to accountability for crimes." McKim, 98 Wash.2d at 116, 653 P.2d 1040. The deadly weapon statutes do not define crimes. State v. Claborn, 95 Wash.2d 629, 637, 628 P.2d 467 (1981). Thus, the State could not rely on the complicity statute as the triggering device for a deadly weapon penalty enhancement. Instead, McKim "look[ed] to the operative language of RCW 9.95.015." McKim, 98 Wash.2d at 116, 653 P.2d 1040. RCW 9.95.015 requires a finding of "whether or not the accused was armed with a deadly weapon". (Emphasis added.) RCW 9.95.015. McKim concluded that the statute requires a finding that the defendant was either personally armed or constructively armed with a deadly weapon during commission of the offense before a deadly weapon sentence enhancement could be imposed.

The phrase "constructively armed with a deadly weapon" means the accused's accomplice must have been actually armed with a deadly weapon and the accused must have had knowledge that the accomplice was so armed.

McKim, at 117, 653 P.2d 1040. The court then struck the special verdict as to the deadly weapon penalty enhancement since the jury was improperly instructed on the standard of proof regarding the deadly weapon allegations. The deadly weapon special verdict entered against Washington is reversed.

The issue in McKim was limited to the State's burden of proof in regards to the deadly weapon enhancement statutes. While the decision entered in State v. McKim reversed the deadly weapon special verdict, McKim's conviction for first degree robbery was affirmed. Nonetheless, Washington cites State v. Plakke, 31 Wash.App. 262, 639 P.2d 796 (1982), and State v. Van Pilon, supra, to support her claim that her conviction for first degree burglary must be reversed. Plakke held that the State had the burden of proving beyond a reasonable doubt that an accomplice to first degree robbery knew his co-participant was armed with a deadly weapon. Plakke stated:

[T]he statutory scheme and constitutional precepts impose criminal liability commensurate with the actor's mental culpability or mens rea. To impose principal liability, the accomplice must "share" in his principal's guilty knowledge. Accordingly, when the evidence permits a finding that an alleged accomplice to first degree robbery is unaware of the presence of a weapon or what appears to be a weapon, the alleged accomplice is entitled to an instruction...