State v. Rotunno, 47569-5

• Decision Date: 30 July 1981
• Docket Number: No. 47569-5,47569-5
• Citation: 95 Wn.2d 931,631 P.2d 951
• Parties: STATE of Washington, Respondent, v. Kathy Louise ROTUNNO, Petitioner.
• Court: Washington Supreme Court

Page 931

95 Wn.2d 931

631 P.2d 951

STATE of Washington, Respondent, v. Kathy Louise ROTUNNO, Petitioner.

No. 47569-5.

Supreme Court of Washington, En Banc.

July 30, 1981.

Wallace, Powell & Giboney, Byron G. Powell, Spokane, for petitioner.

Donald C. Brockett, Spokane County Prosecutor, Clark Colwell, Deputy Pros. Atty., Spokane, for respondent.

DORE, Justice.

Annie Logsdon, a retired schoolteacher, shared her home in Spokane with Patrick Queen and Harold Behrens, also retirees. Logsdon left Spokane on October 15, 1977 for an extended visit with relatives. On November 16, Behrens went to a local bar where he met a woman, Diana Goettel. Together they went to the home of petitioner, Kathy Rotunno. The three spent the remainder of the afternoon and part of that evening together, drinking intoxicating beverages and spending Behrens' money. ¹ Subsequently, the trio went to Behrens' residence for further drinking. When Behrens' liquor supply was exhausted, he went upstairs to Queen's quarters in search of additional liquor. Behrens testified that Goettel and petitioner went through the upstairs rooms in search of alcohol. Behrens subsequently passed out or fell asleep. ²

Queen returned home and found his room in disarray. Behrens awoke the next morning and found a number of his valued possessions missing. The two men also discovered that Logsdon's room had been disturbed. When Logsdon telephoned home on November 19 and was told of the incident, she asked Queen to lock the door to her bedroom, which he did at that time. Logsdon returned home on December 13, unlocked the door to her room and discovered that her jewelry was missing.

Although other women were in Logsdon's home during her absence, the State charged Goettel and petitioner ³ with first degree theft. On the State's motion, the defendants were tried separately. Goettel was acquitted and petitioner convicted as an accessory to first degree theft. Petitioner's conviction was affirmed by a divided Court of Appeals. State v. Rotunno, 27 Wash.App. 901, 621 P.2d 191 (1980). Discretionary review was granted by this court on March 27, 1981. We reverse and remand.

The jury was given instruction No. 6, which reads as follows:

A person who is an accomplice in the commission of a crime is guilty of that crime.

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 aids another person in planning or committing the crime. The word "aid" means all assistance whether given by words, acts, encouragement, support or presence.

Petitioner argues that this instruction misstates the law on accomplice liability because it would have allowed a jury to find such liability if the jury believed that petitioner was present at the scene of the crime with knowledge that her presence would promote or facilitate the commission of the crime.

This court has repeatedly stated that one's presence at the commission of a crime, even coupled with a knowledge that one's presence would aid in the commission of the crime, will not subject an accused to accomplish liability. To prove that one present is an aider, it must be established that one is " 'ready to assist' " in the commission of the crime. In re Wilson, 91 Wash.2d 487, 491, 588 P.2d 1161 (1979). This interpretation of the law has been embodied in the Washington pattern instructions, WPIC 10.51, from which instruction No. 6 was taken. However, the instruction given at petitioner's trial omitted the last sentence of that pattern instruction which reads as follows:

A person who is present at the scene and is ready to assist by his or her presence is aiding in the commission of the crime.

The majority of the Court of Appeals admitted that the instruction, as given, was "inartfully drawn, but conveyed the law". State v. Rotunno, supra, 27 Wash.App. at page 905, 621 P.2d 191. That court, while agreeing with petitioner that knowing presence was, by itself, insufficient for a finding that an accused was an aider, also agreed with the State that the instruction allowed petitioner to argue her theory of the case to the jury. We agree with the dissenting opinion that the instruction as given did not sufficiently inform the jury that to convict petitioner, it must find that she was "ready to assist" in the perpetration of the crime. State v. Rotunno, supra at 906, 621 P.2d 191 (McInturff, J., dissenting).

Even though a bystander's presence alone may, in fact, encourage the principal actor in his criminal ... conduct, that does not in itself make the bystander a participant in the guilt. It is not the circumstance of "encouragement" in itself that is determinative, rather it is encouragement plus the intent of the bystander to encourage that constitutes abetting. We hold that something more than presence alone plus knowledge of ongoing activity must be shown to establish the intent requisite to finding Wilson to be an accomplice in this instance.

In re Wilson, supra, 91 Wash.2d at page 492, 588 P.2d 1161. In that case, a juvenile seemed to be part of a group which had stolen...