State v. Plakke, 5486-II

• Citation: 639 P.2d 796,31 Wn.App. 262
• Decision Date: 15 January 1982
• Docket Number: No. 5486-II,5486-II
• Parties: The STATE of Washington, Respondent, v. Brian PLAKKE, Appellant.
• Court: Court of Appeals of Washington

Page 262

31 Wn.App. 262

639 P.2d 796

The STATE of Washington, Respondent, v. Brian PLAKKE, Appellant.

No. 5486-II.

Court of Appeals of Washington, Division 2.

Jan. 15, 1982.

As Amended Feb. 17, 1982.

Timothy K. Ford, Seattle, for appellant.

C. Dan Clem, Kitsap County Prosecutor, Port Orchard, for respondent.

PETRIE, Acting Chief Judge.

Defendant, Brian Plakke, was convicted as an accomplice to the crime of first degree robbery. ¹ Sentence was deferred, and he was placed on probation for 3 years. On appeal, the primary issue is whether accomplice liability to first degree robbery requires proof beyond a reasonable doubt that the alleged accomplice was aware of his principal's possession of a deadly weapon during the commission of the crime. We answer in the affirmative and remand for entry of conviction of second degree robbery.

At approximately 10 p. m. on July 23, 1979, 18-year-old Brian Plakke and a co-defendant, Steven Juhlin, entered a Port Orchard motel. Juhlin asked the night manager about a room. Defendant Plakke browsed through travel brochures. The manager informed Juhlin there were no rooms available. Juhlin pulled a knife and demanded money. The manager complied and handed him the cash drawer contents. Both defendants fled in a pickup truck.

Plakke testified that he and Juhlin had been drinking heavily that evening and had gone out about 9:30 p. m. for cigarettes. While driving through Port Orchard, Juhlin made several remarks about how they could pick up some quick cash by robbing a local business. Plakke contended he made light of Juhlin's "plans." Juhlin stopped the truck and entered the motel. Plakke followed. Plakke thought Juhlin was going to "check things out" but did not anticipate that Juhlin would commit a robbery. Until Juhlin brandished the knife at the night manager, Plakke allegedly was not aware his companion was armed. Defendant's account of his unpurposeful participation in the armed robbery was supported by his girlfriend's testimony that on returning to the house he acted nervous and uncomfortable.

The trial court instructed the jury on accomplice liability, RCW 9A.08.020, and first degree robbery, RCW 9A.56.200, and also presented the jury a special verdict form as follows:

Was the defendant, Brian Plakke, or an accomplice armed with a deadly weapon at the time of the commission of the crime?

The trial record reveals that during deliberations the jury submitted questions to the court concerning the relationship between the elements of first degree robbery and the deadly weapon special verdict form. The court directed the jury to re-read the instructions. Three hours later the jury returned a guilty verdict on first degree robbery and answered the special verdict form, "Yes."

When polled, the jury foreman and another juror stated that they believed if they found defendant guilty of first degree robbery, they were required to answer the special verdict form "Yes." Over defense counsel's objections the court then submitted this special verdict form:

Was the defendant, Brian Plakke, an accomplice as defined above to the act of being armed with a deadly weapon during the commission of the crime of first degree robbery?

The jury retired for further deliberations and subsequently returned an answer, "No", to the above special verdict form. Post-trial motions were denied, and this appeal followed.

Defendant urges the trial court erred in refusing to submit his "to convict" and second degree robbery instructions to the jury. He contends that under the instructions given, ² the jury was permitted to find first degree robbery accomplice liability without finding defendant knew of the weapon's presence during the crime.

We review briefly the tenets of accomplice liability, robbery, and burden of proof. An accomplice is liable as a principal when with knowledge that it will promote or facilitate the commission of the crime, he solicits, commands, encourages, or requests such other person to commit it. RCW 9A.08.020(3)(a) (i). It must be established that the accomplice was "ready to assist" in the commission of a crime. State v. Rotunno, 95 Wash.2d 931, 631 P.2d 951 (1981). The intent necessary for accomplice liability is "guilty knowledge" that the defendant is promoting or facilitating the commission of a crime. State v. McKeown, 23 Wash.App. 582, 593, 596 P.2d 1100 (1979).

Our statutory scheme differentiates the degrees of robbery and their concomitant range of punishment on the basis of: (1) use or presence of a firearm or deadly weapon (or what appears to be), and (2) infliction of grievious bodily harm. RCW 9A.56.190-.210. We are concerned only with the former element. Thus, culpability on the part of a principal turns on the risk, or apparent risk, of harm he creates when he

unlawfully takes personal property from the person of another ... by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone ...

RCW 9A.56.190.

Finally, we note that, to find a defendant guilty, the State must prove every element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Kroll, 87 Wash.2d 829, 558 P.2d 173 (1976).

We conclude that the 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. See State v. McKeown, supra 23 Wash.App. at 591-93, 596 P.2d 1100 and cases cited therein. 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 on second degree robbery.

Our ruling is in accord with the rule adopted by the Ninth and First Circuits, i.e., the prosecution bears the burden to prove a defendant's knowledge of the weapon's presence before he can be subjected to accomplice liability for armed (aggravated) robbery. United States v. Short, 493 F.2d 1170 (9th Cir. 1974); United States v. Sanborn, 563 F.2d 488 (1st Cir. 1977). Accord, Commonwealth v Ferguson, 365 Mass. 1, 309 N.E.2d 182 (1974). But see Commonwealth v. Yeager, 599 S.W.2d 458 (Ky.1980); State v. Coats, 301 N.C. 216, 270 S.E.2d 422 (1980). Generally, an accomplice should be held liable only for the degree or grade of crime which is consistent with his own mental culpability. See 1 C. Torcia, Wharton's Criminal Law § 35 at 180 (1978).

Defendant requests as relief a new trial on the information as charged with directions to instruct additionally on second degree robbery. An appellate court's choice of remedies is not limited by a defendant's requests. Burks v. United States, 437 U.S. 1, 17-18, 98 S.Ct. 2141, 2150-2151, 57 L.Ed.2d 1 (1978). Further, in fashioning a remedy, we are subject to the restrictions of the double jeopardy clause. United States Const.Amend. 5; Wash. State Const. Art. I § 9. Constitutional protections prohibit a second prosecution for the same offense after acquittal. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).

In this case the jury returned a verdict of complicity to first degree robbery. Second degree robbery is a lesser included offense of first degree robbery because the latter necessarily contains all the elements of the former. RCW 9A.56.190-.210. State v. Wheeler, 22 Wash.App. 792, 593 P.2d 550 (1979). See State v. Roybal, 82 Wash.2d 577, 583, 512 P.2d 718 (1973). By returning a verdict of first degree robbery, the jury found that defendant performed those acts which would support a determination of guilt to the lesser included offense of second degree robbery....