State v. Teal

• Decision Date: 28 July 2003
• Docket Number: No. 42889-6-I.,42889-6-I.
• Citation: 117 Wash.App. 831,73 P.3d 402
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent/Cross-Appellant, v. Dewayne H. TEAL, Appellant/Cross-Respondent.

73 P.3d 402

117 Wash.App. 831

STATE of Washington, Respondent/Cross-Appellant, v. Dewayne H. TEAL, Appellant/Cross-Respondent.

No. 42889-6-I.

Court of Appeals of Washington, Division 1.

July 28, 2003.

Eric Broman, Bruce Koch, Nielsen, Broman, & Koch, PLLC, Seattle, WA, for Appellant.

Seth Fine, James Krider, Paul Stern, Snohomish Co. Prosecuting Att. Office, Everett, WA, for Respondent.

BECKER, C.J.

Dewayne "Hubba" Teal appeals from his conviction for first degree robbery, and his resulting sentence of life in prison as a persistent offender. We reject his challenge to the sufficiency of the evidence. Although there was insufficient evidence to convict him as a principal, the trial court gave an instruction explaining accomplice liability. This instruction permitted the State to argue an accomplice theory even though the "to convict" instruction referred only to the acts of "the defendant". We conclude, however, that Teal is entitled to a new trial because the accomplice instruction was erroneously worded in such a manner that the jury may have convicted Teal as an accomplice to a drug deal rather than to the robbery with which he was charged.

According to testimony presented by the State, the robbery occurred on July 10, 1997. Dewayne Teal's brother, Rueben Hinton, arranged to purchase cocaine from Larone Wright. Teal loaned Hinton $700 to buy the drugs. Teal also drove Hinton to meet Wright at an apartment complex in Lynnwood, and waited in the car while Hinton approached Wright's car. After Hinton got in the car, he suddenly shot Wright twice, and went through Wright's pockets before running off. Wright testified that he was missing about $125 after the shooting.

Wright rolled out of the car and lay on the ground. He said he saw Teal come up to Wright's car and take things out of it. Later, he discovered a case containing compact discs was missing. Teal denied taking anything out of Wright's car. He testified he was waiting for Hinton to complete the drug deal but fled in his car when he realized shots had been fired. He said as he was driving away, he saw someone else run up to Wright's car.

The instructions included a "to convict" instruction setting forth the elements of first degree robbery, an accomplice liability instruction, and a special verdict to determine for the purpose of sentence enhancement whether Teal, if guilty, was armed with a firearm during commission of the crime.¹ In closing argument, the State presented its theory that Teal was an accomplice to Hinton. The jury convicted Teal on a charge of first degree robbery, and found in the special verdict that he was armed with a firearm at the time of the robbery.

"TO CONVICT" INSTRUCTION

Often, in cases where the State employs a theory of accomplice liability, the "to convict" instruction will state that the crime is proved if "the defendant or an accomplice" commits certain acts that establish the elements of the crime. See e.g., State v. Swenson, 104 Wash. App. 744, 758, 9 P.3d 933 (2000),

review denied, 148 Wash.2d 1009, 62 P.3d 890 (2003); State v. Haack, 88 Wash.App. 423, 427, 958 P.2d 1001 (1997),

review denied, 134 Wash.2d 1016, 958 P.2d 314 (1998). In this case, the "to convict" instruction referred only to the defendant as the actor whose conduct must establish the elements:

To convict the defendant of the crime of Robbery in the First Degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about the 10th day of July, 1997, the defendant unlawfully took personal property to-wit: money and/or CD's from the person or in the presence of another, to-wit: Larone Wright;

(2) That the defendant intended to commit theft of the property;

(3) That the taking was against Larone Wright's will by the defendant's use or threatened use of immediate force, violence or fear of injury to that person;

(4) That the force or fear was used by the defendant to obtain or retain possession of the property or to prevent or overcome resistance to the taking;

(5) That in the commission of these acts or in immediate flight therefrom the defendant displayed what appeared to be a firearm; and

(6) That the acts occurred in the State of Washington.

If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.²

A separate instruction defined accomplice liability:

A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.

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.³

The prosecutor, in closing argument, went through the elements in the "to convict" instruction and explained that the jury should read the instruction as though it said "defendant or an accomplice": "the final thing is that during the acts or in immediate flight therefrom, the defendant or an accomplice shows a firearm.... Now I put the accomplice in ... parenthesis".⁴ The prosecutor continued:

And although it is worded in words such as, that in the commission of the acts, or in flight therefrom the defendant displayed what appeared to be a firearm, don't get caught up in the technicality of the language. This applies to accomplices equally. If they do this crime together and do different parts of it, then they're responsible for each other's conduct. But you don't see the word accomplice in here because it is assumed to be that way.⁵

Teal's first argument is that the evidence of his guilt was insufficient because his own conduct did not establish the elements of first degree robbery as set forth in the "to convict" instruction. Insufficiency of the evidence to prove all elements of a crime beyond a reasonable doubt requires the conviction to be reversed and dismissed. In re Winship, 397 U.S. 358, 361-64, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Even when the "to convict" instruction contains an unnecessary element, if the State does not object to it, the State assumes the burden of proving that element beyond a reasonable doubt. State v. Hickman, 135 Wash.2d 97, 954 P.2d 900 (1998) (conviction dismissed for lack of evidence of venue, an element inadvertently included in the "to convict" instruction.).

Teal's argument can be summarized as follows: the purpose of the "to convict" instruction is to set forth the elements of the charge which the State must prove beyond a reasonable doubt. When the State employs a theory of accomplice liability, the "to convict" instruction must communicate that the elements can be established by the conduct of the defendant or an accomplice. If the "to convict" instruction refers only to the conduct of the defendant, accomplice liability is beyond the scope of the instruction, and the State assumes the burden of proving that the defendant's conduct established all the elements of the crime without reference to the conduct of an accomplice.

The rule is well-established that instructions must be read together and viewed as a whole. See, e.g., Haack, 88 Wash.App. at 427,

958 P.2d 1001. As a general rule, however, the "to convict" instruction must provide a complete statement of the elements of the crime charged. It is error to omit an element from an instruction that otherwise purports to give a complete statement of the elements of the charged crime. State v. Emmanuel, 42 Wash.2d 799, 817-21, 259 P.2d 845 (1953) (bribery prosecution; "to convict" instruction omitted the essential element that applications were pending before the allegedly bribed public official). See also State v. Smith, 131 Wash.2d 258, 930 P.2d 917 (1997); State v. Miller, 131 Wash.2d 78, 929 P.2d 372 (1997); State v. Eastmond, 129 Wash.2d 497, 919 P.2d 577 (1996). That the omitted element is arguably present in another instruction does not cure the error. The jury is not required to search the other instructions to see if another element alleged in the information should have been added to those specified in the "to convict" instruction. Emmanuel, 42 Wash.2d at 819,

259 P.2d 845.

Accomplice liability, contrary to Teal's argument, is not an element of the crime charged. Nor is it an alternative means of committing a crime. State v. Haack, 88 Wash.App. at 428, 958 P.2d 1001. The elements of the crime are the same for both a principal and an accomplice. State v. Carothers, 84 Wash.2d 256, 264, 525 P.2d 731 (1974), overruled on other grounds in State v. Harris, 102 Wash.2d 148, 685 P.2d 584 (1984)

. An information need not allege accomplice liability in order to state the nature of the charge; charging the accused as a principal is adequate notice of the potential for accomplice liability. State v. Rodriguez, 78 Wash.App. 769, 774, 898 P.2d 871 (1995), review denied, 128 Wash.2d 1015 (1996). It follows that the Emmanuel rule, requiring that all elements be listed in a single instruction, is not violated when accomplice liability is described in a separate instruction.

Including accomplice language—"the defendant or an accomplice"—in the "to convict" instruction is an approved practice. See Haack, 88 Wash.App. at 426-31,

958 P.2d 1001. But it is not a required practice, and...