State v. Trout

• Decision Date: 25 January 2005
• Docket Number: No. 21633-1-III.,21633-1-III.
• Parties: STATE of Washington, Respondent, v. Adam Larson TROUT, Appellant.
• Court: Washington Court of Appeals

105 P.3d 69

125 Wn. App. 403

125 Wash. App. 403

STATE of Washington, Respondent, v. Adam Larson TROUT, Appellant.

No. 21633-1-III.

Court of Appeals of Washington, Division 3, Panel Three.

January 25, 2005.

Carl E. Hueber, Winston & Cashatt Lawyers, Spokane, WA, William D. McCool, Attorney at Law, Walla Walla, WA, for Appellant.

Scott W. Johnson, Benton County Prosecutor's Office, Kennewick, WA, for Respondent.

SWEENEY, A.C.J.

This appeal follows a jury's finding of guilty for two counts of first degree robbery and one count of second degree assault. Adam Trout challenges the sufficiency of the evidence to support accomplice liability, essentially because the object of the intended robbery and assault changed between the time it was planned, in his apartment, and when it occurred. This record amply supports the jury's finding of guilt based on his participation in these crimes, before, during, and after. He also assigns error to the trial court's conclusion that his statement to police was voluntary. The trial judge's conclusion is again amply supported by this record. Finally he claims prosecutorial misconduct during final argument. But the State's remarks are either proper comments on the evidence or certainly not so egregious as to require reversal. We therefore affirm Mr. Trout's convictions.

FACTS

On Christmas Day 2001, Jason Fox broke into Nicholas Bunn's car and stole his car stereo system and a ceramic vase Nicholas¹ intended for his mother for Christmas. Nicholas told Adam Trout that he wanted to beat Jason with a bat.

Nicholas and others gathered at Adam's apartment to hang out and drink alcohol the next evening, December 26. Nicholas called Jason from Adam's apartment. And they had a heated discussion about Jason's theft. Jason challenged Nicholas to come over and take the stereo out of his car. Adam Trout, his brother Jarom Trout, Jordon Connor, and Cole Spencer all agreed to accompany Nicholas to Jason's apartment. The group armed themselves before leaving. Nicholas took a bat. Jordon took a gun. And Jarom took a knife.

Jason left the apartment he shared with his girl friend, Jennifer Wilson, around midnight. Jason's cousin, Trina Brooks, also lived in the apartment. Trina's boyfriend, Jeremy Anderson, was also in the apartment. So Jennifer, Trina, and Jeremy remained in the apartment.

The five men (Adam, Jarom, Jordon, Cole, and Nicholas) arrived at Jason's apartment after midnight. Jennifer heard a knock on the door and saw a gloved finger over the peephole. She opened the door a crack to peek out. Jennifer saw at least five men; one with a gun, one with a baseball bat, and another with a knife. She tried to close the door. They forced their way in. She tried to hide. The intruders crowded into a bedroom where Trina and Jeremy were sleeping. They shouted, "where's Jason?" Report of Proceedings (RP) at 610, 633, 771.

Some of the intruders jumped Jeremy. Nicholas assaulted Jennifer, Trina, and Jeremy with the baseball bat. One of the intruders held a gun to Jeremy's head. Jeremy was knocked unconscious. One of the intruders (the one with the gun) instructed the others to assault the girls. Trina and Jennifer were then assaulted. The intruders took the money in Jennifer's pockets and her car keys. They took $50 from Trina as well as her identification and debit card. They took a video game player from the apartment. Nicholas took the vase on his way out. And he took Jennifer's car. Adam drove Nicholas's car. The intruders tied everyone in the apartment up with telephone cords and Christmas lights. The apartment dwellers waited until there was no more noise or activity and then went for help.

At trial, Trina testified Adam Trout was in the bedroom the entire time. She recognized Adam as the "nice guy." RP at 790, 791, 933, 934.

Police arrested Adam. The State charged him with two counts of first degree robbery for crimes against Jennifer and Trina and one count of second degree assault against Jeremy, all while armed with a deadly weapon.

Adam moved to suppress his written and oral statements to police because a detective promised lenient treatment to the first one to testify. The trial judge ultimately concluded there was no causal relationship between the implied promise and Adam's inculpatory statement and that the statement was voluntary. RP at 1376-77. The jury was instructed on accomplice liability. Adam was found guilty.

DISCUSSION

SUFFICIENCY OF THE EVIDENCE

Adam submits that he did not solicit, command, encourage, or request another to commit the crimes charged. Nor did he aid another in planning or committing the crimes charged, nor did he agree to aid. And so therefore the evidence is insufficient to convict him as an accomplice to these crimes.

We then review the evidence in a light most favorable to the State. State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficient evidence admits the truth of the State's evidence. State v. Pacheco, 70 Wash.App. 27, 38-39, 851 P.2d 734 (1993), rev'd on other grounds, 125 Wash.2d 150, 882 P.2d 183 (1994). All reasonable inferences from the evidence must be drawn in favor of the State. Salinas, 119 Wash.2d at 201, 829 P.2d 1068. And we, of course, defer to the trier of fact's resolution of conflicting testimony, evaluation of witness credibility, and generally its view of the persuasiveness of the evidence. State v. Lubers, 81 Wash.App. 614, 619, 915 P.2d 1157 (1996). We will affirm if any rational trier of fact could have found the essential elements of the crime. Salinas, 119 Wash.2d at 201, 829 P.2d 1068. Also a jury can infer the specific criminal intent of a criminal defendant where it is a matter of logical probability. State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980).

Robbery requires the unlawful taking of personal property of another or in that person's presence "against his will by the use or threatened use of immediate force, violence, or fear of injury." RCW 9A.56.190. Additionally, first degree robbery requires that the defendant be "armed with a deadly weapon; or ... [d]isplays what appears to be a firearm or other deadly weapon; or ... [i]nflicts bodily injury." RCW 9A.56.200(1)(a).

Assault in the second degree requires the knowing infliction of bodily harm designed to cause "such pain or agony as to be the equivalent of that produced by torture." RCW 9A.36.021(1)(f).

Criminal liability applies equally to a principal and an accomplice because they share equal responsibility for the substantive offense. State v. Rodriguez, 78 Wash.App. 769, 772-73, 898 P.2d 871 (1995). A person is legally accountable for the conduct of another when he is an accomplice to that person. RCW 9A.08.020(2)(c).

A person is guilty as an accomplice if, "[w]ith knowledge that it will promote or facilitate the commission of the crime, he (i) solicits, commands, encourages, or requests such other person to commit it; or (ii) aids or agrees to aid such other person in planning or committing it." RCW 9A.08.020(3)(a). To convict as either an accomplice or a principle, the jury need only be convinced that the crime was committed and that the defendant participated in it. State v. Teal, 152 Wash.2d 333, 339, 96 P.3d 974 (2004). It is the intent to facilitate another in the commission of the crime by providing assistance through presence and actions that makes an accomplice criminally liable. State v. Galisia, 63 Wash.App. 833, 840, 822 P.2d 303 (1992). The State must show that the defendant aided in the planning or commission of the crime and had knowledge of the crime. State v. Berube, 150 Wash.2d 498, 511, 79 P.3d 1144 (2003).

And "[w]hile an accomplice may be convicted of a higher degree of the general crime he sought to facilitate, he may not be convicted of a separate crime absent specific knowledge of that general crime." State v. King, 113 Wash.App. 243, 288, 54 P.3d 1218 (2002) (citing In re Pers. Restraint of Sarausad, 109 Wash.App. 824, 836, 39 P.3d 308 (2001)), review denied, 149 Wn.2d 1013, 1015 (2003). But it is also clear now that the culpability of an accomplice cannot extend beyond the crimes of which the accomplice actually has knowledge. State v. Bolar, 118 Wash.App. 490, 502, 78 P.3d 1012 (2003) (citing State v. Roberts, 142 Wash.2d 471, 511, 14 P.3d 713 (2000)), review denied, 151 Wn.2d 1027 (2004). For instance, a defendant cannot be convicted of robbery as an accomplice if he intends merely that the principal commit theft. State v. Grendahl, 110 Wash.App. 905, 911, 43 P.3d 76 (2002).

Adam's challenge to the sufficiency of the evidence here focuses on the specifics of where he was (not inside during the robbery and assault but rather at the doorway) and what he did (he himself did not rob or assault anyone). But even a casual review of this evidence in a light most favorable to the State suggests otherwise. First, all of those committing these crimes sat in Adam's apartment, in his presence, and hatched the plan to go and recover property belonging to one of them by force or the threat of force. He then drove off with the group knowing that three of them had armed themselves with deadly weapons. One of the victims, Jennifer, testified that when she opened the door she saw at least five people on the porch, "[a]nd they all came barging in." RP at 630. She testified that there were five men in the room at the time one of the men asked Trina "[w]here's the money at?" RP at 637.

Trina identified one of the men as the "nice guy" because he initially said, "`[w]e're not gonna hurt you. We're just here for Jason.'" RP at 790, 917, 933, 934, 944. She said that the "nice guy" talked to her a second time where he said, "[a]re you ever gonna let Jason or your cousin stay with you again?" RP at 793, 917, 930, 944, 990. Trina stated: "He talked to me about ever letting Jason stay with me again, and basically by asking me that I think that's saying if you let him stay with you again this is gonna...