FILED
JUNE 28, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34768-1-III
Petitioner, )
)
v. )
)
LASHAWN DOUXSHAE JAMEISON, ) PUBLISHED OPINION
)
Respondent, )
)
KWAME DAVON BATES )
ANTHONY GILBERT WILLIAMS )
)
Defendants. )
FEARING, J. — We address intriguing questions worthy of a criminal law class
examination, but which carry monumental consequences to the accused Lashawn
Jameison. This appeal primarily asks whether an accused, who, in response to an
antagonist retrieving a gun, also arms himself and hides behind a vehicle, suffers
accomplice liability for homicide when, without the accused shooting his firearm, the
antagonist fires his gun and the bullet strikes and kills an innocent bystander. The State
argues that the accused bears liability because he encouraged his adversary to fire the
gun. The State emphasizes that Lashawn Jameison later exchanged gunfire.
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The appeal also asks whether the same accused may be convicted of a drive-by
shooting when he retrieves a gun from the car in which he arrived to the scene of the
homicide but crouches behind another car at the time he returns fire. We affirm the trial
court’s summary dismissal of the homicide charges and twelve of fourteen of the drive-
by shooting charges. We affirm the dismissal of the drive-by shooting charges based on
our decision in State v. Vasquez, 2 Wn. App. 2d 632, 415 P.3d 1205 (2018), decided after
the trial court ruling.
FACTS
This prosecution arises from a confrontation between Kwame Bates and defendant
Lashawn Jameison, on the one hand, and Anthony Williams, on the other hand, during
which skirmish Williams fired his gun and killed bystander Eduardo Villagomez. A
video partially captures the confrontation and shooting.
On the night of January 17-18, 2016, Lashawn Jameison and Kwame Bates joined
a group of five hundred young adults at the Palomino Club in Spokane to celebrate
Martin Luther King Day. Bates drove Jameison to the club in a white Toyota Camry
owned by Bates’ girlfriend, which car gains significance as events transpire. Bates
parked the Camry on Lidgerwood Street in front of a Department of Licensing building
adjacent to the club. A Chrysler parked behind the Camry on the street. We do not know
the time of night that Bates and Jameison arrived at the celebration.
The Palomino Club closed at 2 a.m. on January 18. As Lashawn Jameison and
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Kwame Bates exited the club at closing, another patron, Anthony Williams, shoved
Sierra, a female friend of Bates. The shove began a deadly chain of events. As a result
of the push, Bates and Williams argued. Jameison did not participate in the quarrel.
Williams jumped a metal fence bordering the club parking lot, retrieved a handgun from
a car parked in the adjacent Department of Licensing parking lot, and returned to the
entrance of the club. Williams paced to and from the club building, the adjacent lot, and
Lidgerwood Street.
Both Kwame Bates and Lashawn Jameison, knowing that Anthony Williams
possessed a firearm, returned to the white Toyota Camry and armed themselves. Both
Bates and Jameison lawfully owned firearms. During this activity, other patrons of the
Palomino Club departed the building and walked to their cars parked in the club parking
lot, in the adjacent parking lot, and on the street.
Lashawn Jameison, with gun in hand, retreated and separated himself from
Kwame Bates and Anthony Williams. Jameison hid at the rear of the Chrysler parked
behind the Camry while Bates stood by a power pole near the Camry. Bates and
Williams, with Williams then in the Department of Licensing parking lot, faced one
another as Martin Luther King Day celebrants continued to walk to their cars. According
to Bates, he “does not back down” from a fight as long as the fight is fair. Clerk’s Papers
(CP) at 158. Jameison crouched behind the Chrysler.
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A friend of Anthony Williams drove the friend’s car into the parking lot.
Williams stepped behind his friend’s vehicle and discharged his gun in Bates’ direction.
The bullet missed Bates and struck Eduardo Villagomez, a bystander walking along the
street. Villagomez slumped to the street. Tragically an unsuspecting driver of a car
drove over Villagomez’s stricken body. Villagomez died as a result of the bullet wound
and the force of the vehicle.
After Anthony Williams’ discharge of gunfire, Kwame Bates ran from the power
pole and joined Lashawn Jameison behind the stationary Chrysler. Seconds after
Williams fired the first shot, Bates and Jameison stood, returned fire, and crouched again
behind the Chrysler. Jameison fired, at most, two shots toward Williams. Williams
returned additional shots toward Bates and Jameison. Bates rose again and returned fire
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as Williams entered the vehicle driven by his friend. The friend drove the vehicle from
the parking lot and club. Bates and Jameison entered the Camry and also departed the
neighborhood.
Because the State contends inferences from the facts support accomplice liability,
we now repeat and quote evidence in its unedited form and as presented to the trial court.
Spokane Police Department Detective Marty Hill reviewed a security video, and, based
on this viewing, wrote in an amended statement of investigating officer:
This individual is a black male dressed in a bright red top (later
identified as Lashawn D. Jameison, BM, 04/18/1994). . . . Jameison
appears to be crouching down behind the Chrysler 300 as if hiding prior to
being joined by Bates.
CP at 8. Detective Hill added:
A sedan, later found to be driven by Jazzmine Dunlap, pulls into the
lot[,] and a male approaches the driver rear door. This male, later identified
as Anthony G. Williams, B/M, 08/18/1993, then begins to fire shots at
Jameison and Bates who are secreted behind the Chrysler 300. The victim,
later identified as Eduardo Villagomez, HM, 01/15/1995, and his three
companions, later identified as Carlos Villagomez, Miguel L. Martinez, and
Rosario A. Ayala, are on Lidgerwood St. to the north and directly in the
line of fire, but not involved in this gunfire. Williams appears to be
engaging Bates. Williams appears to fire first at Bates, who then retreats to
the Chrysler 300 where Jameison had secreted himself. Jameison and Bates
are observed shooting south towards Williams, exchanging gunfire.
CP at 9 (emphasis added) (boldface omitted).
In his amended statement of investigating officer, Detective Marty Miller shares
the story as told by Kwame Bates during an interview by Miller:
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As he [Bates] approached his car, the white 1993 Toyota Camry . . . ,
he did see L-Jay [Lashawn Jameison] behind the Chrysler 300. Bates put
himself standing in the street to the east of his car. Bates said the male with
the gray sweatshirt [Anthony Williams] approached him from the parking
lot of the DMV [Department of Motor Vehicles] building. Bates stated this
male was yelling at him and he thought he and this unknown male were
going to have a fair fight. Bates stated he does not back down from fights
as long as they are fair.
Bates stated this unknown male pulled out his firearm. Bates said he
ran to his right and jumped behind the Chrysler 300 as the male began
shooting. Bates said he could hear bullets striking the Chrysler. Bates
admitted that he returned fire towards this male as the male was running
towards a gray colored car. Bates indicated that he fired between six and
seven shots. Bates said when the male entered the car, he did not continue
to shoot anymore, but he and L-Jay jumped into the white 1993 Toyota
Camry . . . and they drove away.
Bates said it happened so fast, “I thought it was over for me.”
CP at 12.
Stephanie Collins, a deputy prosecuting attorney, signed a statement outlining
facts in chronological order. Collins declared in part:
11. A Chevy Cruze pulls into the DOL [Department of Licensing]
lot—later determined to be driven by a friend of Williams’, Jazzmine
Dunlap. The car stops in the DOL lot and Williams approaches it.
Williams faces Lidgerwood and is walking back and forth along the
driver’s side of the car;
12. Williams and Bates square off. They are approximately 30-60
feet apart. Bates is facing Williams in the DOL lot. Williams is facing
Bates, whose [sic] is on Lidgerwood.
CP at 133-34 (emphasis added).
PROCEDURE
The State of Washington charged Lashawn Jameison with first degree murder by
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extreme indifference and, in the alternative, first degree manslaughter as the result of the
death of Eduardo Villagomez. The State acknowledged that Anthony Williams shot
Eduardo Villagomez but charged Jameison with accomplice liability. The State also
charged Jameison with fourteen counts of drive-by shooting as a result of Jameison’s
returning of gunfire. The fourteen charges arise from the presence of at least fourteen
club patrons in the vicinity at the time of the shooting.
Lashawn Jameison moved to dismiss the homicide charges pursuant to State v.
Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986). Jameison emphasized that the video of
the scene and law enforcement officers’ reports and affidavits demonstrated beyond
dispute that Anthony Williams killed the decedent while Jameison ducked behind a car,
shielding himself from Williams’ attack. Jameison added that, because he had not fired a
shot by the time Williams’ bullet struck Eduardo Villagomez and because he himself was
a victim of Williams’ violence, he could not be guilty of murder even as an accomplice.
Jameison posited the same arguments for the alternative charge of manslaughter.
Lashawn Jameison also moved to dismiss the drive-by shooting charges for
insufficient evidence of recklessness. In the alternative, he argued that all but one count
should be dismissed because he fired only one shot. He based the latter argument on law
enforcement’s discovering, at the crime scene, only one shell casing matching his gun.
As part of its response to Lashawn Jameison’s motion to dismiss, the State filed a
certificate of Deputy Prosecuting Attorney Stefanie W. Collins, which outlines the facts
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No. 34768-1-III
State v. Jameison
in serial and chronological form. We previously quoted two paragraphs from the
certificate. Collins declared that she based the facts on her review of police reports and
security video. In reply, Jameison asked that Collins’ certificate be stricken because
Collins did not base her certificate on percipient knowledge. The trial court’s order of
dismissal does not indicate whether the court granted the motion to strike.
The trial court dismissed the first degree murder and first degree manslaughter
charges on the basis, in part, that Lashawn Jameison did not cause the death of Eduardo
Villagomez. The trial court also ruled that the unit of prosecution for drive-by shooting
charges was the number of shots fired by Jameison. Because of a dispute of fact as to
whether Jameison fired one or two shots, the trial court dismissed all but two of the
fourteen drive-by shooting counts.
The State requested and this court granted discretionary review of the trial court’s
dismissal of some of the pending charges. After we accepted discretionary review, this
court decided State v. Vasquez, 2 Wn. App. 2d 632 (2018), which delineates the elements
of a drive-by shooting prosecution. We requested that both parties address Vasquez
during oral argument.
LAW AND ANALYSIS
Facts and Inferences
The State appeals dismissal of the murder, manslaughter, and the twelve drive-by
shooting charges. Lashawn Jameison has not sought review of the trial court’s refusal to
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No. 34768-1-III
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dismiss the remaining two drive-by shooting counts. Before addressing the substantive
law of homicide and drive-by shootings, we first determine what facts to apply to the law.
The parties contest what constitutes the unquestioned facts and the permissible inferences
from those facts. We must resolve this dispute of undisputed facts.
CrR 8.3(c) permits an accused to seek dismissal of charges before trial. The rule
declares:
On Motion of Defendant for Pretrial Dismissal. The defendant may,
prior to trial, move to dismiss a criminal charge due to insufficient evidence
establishing a prima facie case of the crime charged.
(1) The defendant’s motion shall be in writing and supported by an
affidavit or declaration alleging that there are no material disputed facts and
setting out the agreed facts, or by a stipulation to facts by both parties. The
stipulation, affidavit or declaration may attach and incorporate police
reports, witness statements or other material to be considered by the court
when deciding the motion to dismiss. . . .
(2) The prosecuting attorney may submit affidavits or declarations in
opposition to defendant’s supporting affidavits or declarations. The
affidavits or declarations may attach and incorporate police reports, witness
statements or other material to be considered by the court when deciding
defendant's motion to dismiss. . . .
(3) The court shall grant the motion if there are no material disputed
facts and the undisputed facts do not establish a prima facie case of guilt.
In determining defendant’s motion, the court shall view all evidence in the
light most favorable to the prosecuting attorney and the court shall make all
reasonable inferences in the light most favorable to the prosecuting
attorney. The court may not weigh conflicting statements and base its
decision on the statement it finds the most credible. . . .
(4) If the defendant’s motion to dismiss is granted, the court shall
enter a written order setting forth the evidence relied upon and conclusions
of law. The granting of defendant’s motion to dismiss shall be without
prejudice.
(Emphasis added) (boldface omitted).
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The order in response to Lashawn Jameison’s motion to dismiss does not list the
affidavits, declaration, or reports reviewed by the trial court. Therefore, we have scoured
all evidence forwarded to this appellate court. We included in our review the certificate
of Stephanie Collins, to which Jameison objected, without determining the propriety of
its use. Jameison’s trial court entered findings of fact, but we conclude we must
determine the facts on our own since the trial court does not resolve disputed facts on a
motion to dismiss.
Trial courts should grant an accused’s motion to dismiss when the undisputed facts
do not establish a prima facie case of guilt. CrR 8.3(c)(3). The law labels such motions
to dismiss as Knapstad motions in reference to a leading Washington decision, State v.
Knapstad, 107 Wn.2d 346 (1986). The Supreme Court adopted CrR 8.3(c)(3) in light of
its Knapstad decision. A Knapstad motion in a criminal case corresponds to a summary
judgment motion in a civil case.
We review de novo a trial court’s decision to grant a Knapstad motion and to
dismiss a criminal prosecution under CrR 8.3(c). State v. Bauer, 180 Wn.2d 929, 935,
329 P.3d 67 (2014). During review, as demanded by the criminal rule, this court views
the facts and all reasonable inferences in the light most favorable to the State. State v.
O’Meara, 143 Wn. App. 638, 642, 180 P.3d 196 (2008). An appellate court will uphold
the trial court’s dismissal of a charge if no rational trier of fact could have found beyond
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a reasonable doubt the essential elements of the crime. State v. Snedden, 112 Wn. App.
122, 127, 47 P.3d 184 (2002), aff’d, 149 Wn.2d 914, 73 P.3d 995 (2003).
On discretionary review, the State of Washington writes that Lashawn Jameison’s
act of arming himself and “squaring off” with Anthony Williams encouraged Williams to
fire his gun, which ultimately caused the death of Eduardo Villagomez. We agree the
record shows that Jameison armed himself. We disagree with the State’s assertion that
Jameison “squared off” with Williams. The record of evidence repeatedly states that
Anthony Williams and Kwame Bates “squared off.” The record also indicates that
Williams shot toward Jameison in addition to Bates. Nevertheless, whereas Jameison
armed himself, no police report or other record claims that Jameison “squared off” with
Williams. He instead crouched behind a car. Assuming Jameison “squared off” with
Williams, the “squaring off” occurred after Williams fired the fatal shot.
The State additionally writes that Lashawn Jameison assumed a fighting position.
We also disagree with this factual assertion. The only testimony about Jameison’s
physical stance concerns his crouching as if hiding behind a car because of Anthony
Williams’ brandishing a weapon. The video confirms this testimony.
The State repeatedly refers, in its briefing, to an agreement between Lashawn
Jameison and Anthony Williams to fight. The record lacks any entry of an agreement
between Jameison and Williams to fight, let alone an agreement between Kwame Bates
and Williams to fight. The State concedes the record does not authenticate that Jameison
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State v. Jameison
overtly agreed to fight. The State contends, however, that Jameison’s actions in taking
up arms and assuming a fighting position near Bates manifested Jameison’s agreement to
resolve differences by violence. In this regard, the State faults the trial court for failing to
draw all reasonable inferences from the facts in favor of the State. We would be more
likely to reverse the trial court’s dismissal of homicide charges if facts supported such a
rational inference of an agreement to which Jameison was a party.
We struggle in the abstract with what assay to employ when adjudging what
reasonable inferences we may deduce from established facts. Therefore, we first comb
for definitions and synonyms for our key word “inference.” Our state high court has
defined an “inference” as a logical deduction or conclusion from an established fact.
Fannin v. Roe, 62 Wn.2d 239, 242, 382 P.2d 264 (1963). State v. Aten, 130 Wn.2d 640,
658, 927 P.2d 210 (1996) refers to a “reasonable and logical” inference, again suggesting
that a permissible inference must be logical. A foreign court wrote that a reasonable
inference may be defined as a process of reasoning whereby, from facts admitted or
established by the evidence or from common knowledge or experience, a trier of fact may
reasonably conclude that a further fact is established. Stambaugh v. Hayes, 1940-NMSC-
048, 44 N.M. 443, 103 P.2d 640, 645. 5 West’s Encyclopedia of American Law 396 (2d
ed. 2005) partly defines “inference” as:
Inferences are deductions or conclusions that with reason and
common sense lead the jury to draw from facts which have been established
by the evidence in the case.
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Based on these definitions, we must summon logic, common sense, and
experience in surmising additional or circumstantial facts from already established or
direct facts. We hope that our experience coincides with common sense and our common
sense abides logic.
Washington case law further teaches that a verdict does not rest on speculation or
conjecture when founded on reasonable inferences drawn from circumstantial facts. State
Farm Mutual Insurance Company v. Padilla, 14 Wn. App. 337, 339-40, 540 P.2d 1395
(1975). This proposition conversely suggests that an inference is not reasonable if based
on speculation or conjecture. This observation, however, only begs the question of what
constitutes speculation and conjecture.
A court occasionally faces the question of whether the trier of fact may infer only
those facts that necessarily or always follow from established circumstances, whether the
trier of fact may deduce those facts likely to have occurred as a result of the underlying
circumstances, or whether the trier of fact may even employ inferences that exist as one
of many possible inferences. We conclude that any reasonable inference must likely, but
not necessarily, follow from an underlying truth.
When evidence is equally consistent with two hypotheses, the evidence tends to
prove neither. Stambaugh v. Hayes, 103 P.2d at 645 (1940). We will not infer a
circumstance when no more than a possibility is shown. Brucker v. Matsen, 18 Wn.2d
375, 382, 139 P.2d 276 (1943). We are not justified in inferring, from mere possibilities,
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No. 34768-1-III
State v. Jameison
the existence of facts. Gardner v. Seymour, 27 Wn.2d 802, 810-11, 180 P.2d 564 (1947).
Some of the decisions we cite entail civil appeals, but the law should demand stricter
controls on use of inferences in a criminal case.
We also conclude that, in determining whether we should draw an inference that
Lashawn Jameison agreed to fight, we do not only rely on the facts that Jameison
retrieved his weapon and hid behind a car. Some cases teach that, when drawing
inferences, the trier of fact should not isolate discrete facts but instead only draw
reasonable inferences after viewing the evidence as a whole. State v. Sanchez, 2017 MT
192, 388 Mont. 262, 399 P.3d 886, 890; State v. Stull, 403 N.J. Super. 501, 506, 959 A.2d
286 (App. Div. 2008).
A leading Washington criminal decision regarding reasonable inferences comes in
the setting of the corpus delicti rule but should apply to Knapstad motions because the
corpus delicti question involved the sufficiency of evidence based on reasonable
inferences. In State v. Aten, 130 Wn.2d 640 (1996), the high court reviewed whether
reasonable inferences from evidence, other than Vicki Aten’s confession, supported a
finding that a criminal act caused the death of an infant so that the corpus delicti rule did
not bar introduction of the confession as evidence. On the night of January 30, Aten
cared for a four-month-old child. She found the child dead the next morning. A
physician, who performed an autopsy on the infant, concluded that the child died of
sudden infant death syndrome (SIDS), a form of acute respiratory failure. He
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No. 34768-1-III
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acknowledged suffocation could cause acute respiratory failure. But he also testified he
could not determine in an autopsy whether SIDS or suffocation caused the acute
respiratory failure. The State argued that the evidence sufficed to prove the corpus delicti
because one logical and reasonable inference from the evidence was that the infant died
from suffocation by Aten, a criminal act.
The Supreme Court, in State v. Aten, noted that it had not previously addressed
directly the issue whether the State establishes the corpus delicti when evidence
independent of a defendant’s statements is consistent with reasonable and logical
inferences of both criminal agency and innocence. The court held that the State does not
establish corpus delicti when independent evidence supports reasonable and logical
inferences of both criminal agency and noncriminal cause. The circumstantial evidence
proving the corpus delicti must be consistent with guilt and inconsistent with a hypothesis
of innocence. Accordingly, since the independent evidence from the child’s death
supported a reasonable and logical inference or hypothesis of innocence, that is that the
child died of SIDS, insufficient evidence established the corpus delicti.
Washington law, if not the federal constitution, demands that inferences in the
criminal setting be based only on likelihood, not possibility. When an inference supports
an element of the crime, due process requires the presumed fact to flow more likely than
not from proof of the basic fact. State v. Hanna, 123 Wn.2d 704, 710, 871 P.2d 135
(1994). Whether an inference meets the appropriate standard must be determined on a
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case-by-case basis in light of the particular evidence presented to the jury in each case.
State v. Hanna, 123 Wn.2d at 712.
We conclude that we should not draw an inference that Lashawn Jameison agreed
to fight with Anthony Williams. Merriam Webster’s online dictionary lists “agree” as a
transitive verb meaning “a : to concur in (something . . . ) b : to consent to a course of
action.” https://www.merriam-webster.com/dictionary/agree (last visited June 19, 2018).
No evidence directly confirms that Jameison concurred in Williams shooting at
Jameison’s direction. Experience, common sense and logic easily depict Williams acting
on his own without any consent from Jameison or Bates. The State in essence portrays
Lashawn Jameison and Anthony Williams as agreeing to a duel. The totality of the
undisputed facts, however, leads one to conclude that Jameison never consented to a duel.
Jameison retrieved his firearm only after Williams grabbed his weapon and in order to
defend himself. He could have, but never did, shoot at Williams before Williams first
shot in his direction.
The State also writes that Lashawn Jameison encouraged Anthony Williams to fire
his weapon. The State may ask this court to infer encouragement as a factual matter from
the conduct of Jameison. We deem whether or not Jameison encouraged Williams to be
more a legal question, since we must decide whether any encouragement occurred within
the meaning of RCW 9A.08.020, the accomplice liability statute.
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Homicide
We arrive at our discussion of the substantive law. The murder and manslaughter
charges raise the same question so we merge the analysis of these two alternative
charges. We must decide whether, under the undisputed facts, the State can sustain a
conviction for either crime against Lashawn Jameison based on accomplice liability.
Before addressing accomplice liability, we review the murder and manslaughter
statutes. RCW 9A.32.030 covers first degree murder by extreme indifference. The
statute declares:
(1) A person is guilty of murder in the first degree when:
....
(b) Under circumstances manifesting an extreme indifference to
human life, he or she engages in conduct which creates a grave risk of death
to any person, and thereby causes the death of a person. . . .
(Emphasis added.) The mens rea of murder by extreme indifference is aggravated
recklessness, which requires greater culpability than ordinary recklessness or more than
mere disregard for the safety of others. State v. Dunbar, 117 Wn.2d 587, 594, 817 P.2d
1360 (1991).
Manslaughter in the first degree occurs when a person recklessly causes the death
of another person. RCW 9A.32.060. The statute intones:
(1) A person is guilty of manslaughter in the first degree when:
(a) He or she recklessly causes the death of another person. . . .
(Emphasis added.) “Recklessly” means, for purposes of defining manslaughter, that a
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person knew of and disregarded a substantial risk that a homicide may occur. State v.
Gamble, 154 Wn.2d 457, 467, 114 P.3d 646 (2005). First degree manslaughter differs
from first degree murder in that the former only requires mere recklessness, while the
latter aggravated recklessness.
This appeal concerns more the nature of accomplice liability than the elements of
murder or manslaughter. RCW 9A.08.020 imposes accomplice liability in the following
circumstances:
(1) A person is guilty of a crime if it is committed by the conduct of
another person for which he or she is legally accountable.
(2) A person is legally accountable for the conduct of another person
when:
....
(c) He or she is an accomplice of such other person in the
commission of the crime.
(3) A person is an accomplice of another person in the commission
of a crime if:
(a) With knowledge that it will promote or facilitate the commission
of the crime, he or she:
(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; or
(b) His or her conduct is expressly declared by law to establish his or
her complicity.
....
(5) Unless otherwise provided by this title or by the law defining the
crime, a person is not an accomplice in a crime committed by another
person if:
(a) He or she is a victim of that crime. . . .
(Emphasis added.) The State relies on the word “encourages” inserted in RCW
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No. 34768-1-III
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9A.08.020(3)(a)(i) in prosecuting Lashawn Jameison.
When we read the accomplice liability statute, RCW 9A.08.020, with the murder
and manslaughter statutes, RCW 9A.32.030 and RCW 9A.32.060, this appeal raises
numerous discrete questions. First, did Lashawn Jameison cause the death of Eduardo
Villagomez? Second, may Lashawn Jameison be guilty of accomplice liability when the
mens rea under the accomplice liability statute affords liability based on knowingly
promoting a crime but the underlying crimes demand only a mens rea of recklessness?
Stated differently, does Washington’s accomplice liability statute permit convictions
based on underlying crimes with a mental state less than knowledge? Third, did Lashawn
Jameison know that his arming of himself and hiding behind a car would promote or
facilitate the killing of someone? Fourth, did Lashawn Jameison encourage Anthony
Williams to discharge Williams’ first shot that killed Villagomez? Fifth, was Jameison a
victim of the initial shot fired by Williams? Sixth and related to the fifth question, may
an accused be the accomplice to a shooting when the shooter attempts to harm the
accused or a companion of the accused with the deadly bullet?
On appeal, the parties ably devote pages to the question of whether one can be an
accomplice to a crime with a mens rea of recklessness. The trial court based its dismissal
on the lack of causation. We ignore these questions and render our decision on other
grounds. We hold discretion to affirm on any grounds supported by the record. State ex
rel. Eikenberry v. Frodert, 84 Wn. App. 20, 25, 924 P.2d 933 (1996). We address and
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conflate the fourth, fifth, and six questions. We find that the conduct of Jameison in
arming himself and hiding behind a car from the bullets of Anthony Williams ineptly
fulfills the meaning of “encouragement” and his situation borders on victimhood. In turn,
imposing criminal liability on Jameison conflicts with general principles of accomplice
liability and disserves policies behind imposing accomplice liability. Numerous
decisions support our conclusion.
According to the State, Jameison encouraged Anthony Williams’ conduct by
words or conduct, including taking up arms with his companion Kwame Bates, agreeing
to fight, assuming a strategic fighting position, and squaring off with Williams. The State
adds that Jameison colluded with Bates to engage in an extremely reckless gunfight that
resulted in the unintended death of Eduardo Villagomez. According to the State, but for
Jameison’s conduct, Williams “may not” have been encouraged to fire his pistol. We
have already concluded that the record fails to support inferences that Jameison agreed to
a fight, assumed a strategic fighting position, or squared off with Williams. Therefore,
we ask whether Jameison’s retrieval of a weapon, walking to the Chrysler, and crouching
behind the car “encouraged” the fatal criminal conduct of Anthony Williams within the
meaning of RCW 9A.08.020(3)(a)(i).
Our key term is “encourages.” RCW 9A.08.020 lacks a definition for this
common word. Because of the word’s familiarity, we should not need to ponder a
dictionary definition, but we mention one for its limited assistance. A dictionary defines
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“encourage” as:
1 a: to inspire with courage, spirit, or hope: HEARTEN
- she was encouraged to continue by her early success
B: to attempt to persuade: URGE
- they encouraged him to go back to school
2: to spur on: STIMULATE
- warm weather encourages plant growth
3: to give help or patronage to: FOSTER
- government grants designed to encourage conservation
https://www.merriam-webster.com/dictionary/encourage (last visited June 19, 2018).
The conduct of Lashawn Jameison awkwardly fits within the import of inspiring Anthony
Williams for success, persuading Williams to shoot, spurring Williams to action, or
patronizing Williams.
Under Washington case law, regardless of whether the State relies on the word
“encourage” or the words “solicit” or “command” within RCW 9A.08.020(3)(a)(i), an
accomplice must associate himself with the principal’s criminal undertaking, participate
in it as something he desires to bring about, and seek by his action to make it succeed. In
re Welfare of Wilson, 91 Wn.2d 487, 491, 588 P.2d 1161 (1979); State v. LaRue, 74 Wn.
App. 757, 762, 875 P.2d 701 (1994). Presence and knowledge alone are insufficient,
absent evidence from which a readiness to assist or an intent to encourage could be
inferred, to support a finding of accomplice liability. In re Welfare of Wilson, 91 Wn.2d
at 491-92.
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State v. Jameison
Lashawn Jameison never sought to assist Anthony Williams. He never directly
encouraged Williams to shoot either himself or Kwame Bates. Williams wanted to shoot
or wound Bates or Jameison. Jameison did not seek this goal. Jameison and Williams
acted as antagonists. They entered any fight from opposite poles.
We review two cases on which the State relies and another decision and then
compare the three decisions with other decisions. In In re Personal Restraint of
Sandoval, 189 Wn.2d 811, 408 P.3d 675 (2018), the high court affirmed accomplice
liability for murder when Eduardo Sandoval helped plan a retaliatory attack against a
rival gang and participated in the homicidal attack as a lookout for the shooters. We note
that the State prosecuted the colleague of the shooter, not the colleagues of the dead rival
gang member who indirectly encouraged the murder by engaging in gang activity toward
Sandoval’s gang.
The State relies on State v. Parker, 60 Wn. App. 719, 806 P.2d 1241 (1991). On
the night of September 2, 1988, Robert Parker and his fiancé, Cherie Marie Keese, drove
respective cars on Interstate 405 near Bellevue. Keese followed Parker twenty to twenty-
five car lengths behind. She flashed her lights several times to get his attention and sped
to catch him. Parker knew that Keese wished to pull even. Parker told his passenger that
Keese would need to follow them to Bellevue because he did not intend to stop. Keese
increased her speed to drive tandem with Parker. Parker responded by accelerating
further in order to elude her. The two cars traveled in excess of 100 miles per hour.
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No. 34768-1-III
State v. Jameison
Parker’s passenger asked him to slow. Keese’s passenger uttered the same request to
Keese. Eyewitnesses considered the two cars racing. As the two cars approached a third
car in the interstate’s center lane, Keese changed lanes and lost control of her car. Her
car careened through the highway’s median and struck an oncoming vehicle. The
collision killed Keese’s passenger and the driver of the oncoming car suffered permanent
and serious head injury. Parker’s car stopped without incident. The State prosecuted
Parker as an accomplice on the theory he encouraged Keese’s reckless driving. The jury
found him guilty.
This court, in State v. Parker, 60 Wn. App. 719 (1991), considered Robert Parker
to have engaged in a venture with Keese and to be an active participant in the venture.
The two engaged in a cat and mouse game. Keese testified that she would have slowed if
Parker had decreased his speed.
Robert Parker engaged in the unlawful behavior of reckless driving before the fatal
accident. Jameison engaged in no unlawful behavior before Williams fired the bullet that
killed Eduardo Villagomez. Jameison grabbed a gun that he owned legally. He stood his
ground. The law did not compel him to leave the area of the Palomino Club. He fired
only after Williams fired. Lashawn Jameison also never worked in tandem with
Anthony Williams.
The State emphasizes Black v. State, 103 Ohio St. 434, 133 N.E. 795 (1921). In
Black, Harry Black and Ward Logan, police officers, while on duty, entered a saloon.
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No. 34768-1-III
State v. Jameison
The two officers drank whiskey and then argued with other patrons about the merits of
various firearms. A small target was placed in the rear of the saloon, and the officers and
others demonstrated the capabilities of assorted firearms by firing six or seven shots.
One of those shots missed the target or penetrated through the target, passed through the
rear of the saloon, and fatally wounded David Gerber, who walked in the busy alley at the
rear of the saloon. A jury convicted the officers of manslaughter. On appeal, the officers
asserted that the evidence did not suffice to convict them because the State failed to
present proof that a bullet fired by either killed Gerber. The court affirmed the conviction
by holding that all those who had a common purpose to participate in the shooting at the
target were equally guilty of the commission of the crime.
Lashawn Jameison lacked a common purpose with Anthony Williams. We know
who fired the shot that killed Eduardo Villagomez.
Another Washington decision on point is City of Auburn v. Hedlund, 165 Wn.2d
645, 201 P.3d 315 (2009). As previously noted, a person is not an accomplice to a crime
if he or she is a victim of that same crime. Teresa Hedlund hosted a party where liquor
flowed. Following the party, Hedlund rode with five other passengers squashed into a
Ford Escort. Hedlund remarkably videotaped the trip. The driver was intoxicated as a
result of the party, and he drove into a concrete pillar. Hedlund was the only survivor of
the single car accident. She sustained serious injuries herself. The city of Auburn
charged her with being an accomplice to driving under the influence and reckless driving.
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No. 34768-1-III
State v. Jameison
The State contended that Hedlund’s videotaping encouraged the driver to showboat and
drive recklessly. At the close of the City’s case in chief, the trial court dismissed the
charges because a victim may not be charged as an accomplice under RCW 9A.08.020.
The Supreme Court affirmed.
In Hedlund, the State of Washington argued before the Washington Supreme
Court that Hedlund should not be considered a victim of the driver’s crime because
Hedlund’s acts of encouragement occurred before the collision with the column. The
court rejected the argument. The exception for victims does not extend only to those
whose complicity coextended at the time of the crime. Although the court deemed
Hedlund’s conduct to be reprehensible, the court did not wish to limit the definition of the
term “victim.”
Although Anthony Williams likely wished to strike Kwame Bates, not Lashawn
Jameison, with the first bullet, one police report declared that Williams also fired the first
shot in Jameison’s direction. In that sense, Jameison was a victim of Williams’s
assaultive behavior.
If we read “encourage” too broad, the ramifications of accomplice liability could
be endless. One can analogize Lashawn Jameison’s station to the purchaser of a
controlled substance. The State could and some states have contended that the purchaser
of the substance commits not only the crime of possession of the controlled substance but
also the crime of delivery of the substance by reason of accomplice liability. By reason
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No. 34768-1-III
State v. Jameison
of the buyer wishing to purchase the unlawful drugs, the buyer encouraged the seller to
deliver the drugs.
In Robinson v. State, 815 S.W.2d 361 (Tex. App. 1991), the State convicted
Michael Robinson of delivery of marijuana. The appellate court reversed because the
defendant purchased the marijuana from a third party. The State argued that, as
purchaser, Robinson solicited, encouraged, directed, or aided the commission of the
offense. The court noted that the victim of the crime may not be held as an accomplice
even though his conduct in a significant sense assists in the commission of the crime.
Since the buyer and the seller enter the transaction from opposite poles, they do not aid
and assist one another. Their conduct is the antithesis of one another.
We worry about other ramifications of the State’s theory of criminal liability. If
one stretches the State’s argument, Lashawn Jameison would be responsible for his own
murder, if Anthony Williams’ bullet struck him.
Let us assume a man nags at his wife. An irritated wife retrieves a gun and shoots
at her husband. The bullet misses and wounds the couple’s child. Under the State’s
theory, the husband could incur accomplice liability. The husband’s conduct encouraged
the wife to fire her gun. One may consider this example extreme, because the husband
performed no unlawful act and the wife acted irrationally. Nevertheless, Lashawn
Jameison performed no criminal act preceding Anthony Williams’ first bullet and
Williams acted irrationally.
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No. 34768-1-III
State v. Jameison
Drive-By Shootings
On appeal, as in the trial court, the parties dispute whether the unit of prosecution
for the charge of drive-by shooting constitutes the number of shots fired by the accused
or the number of bystanders threatened by the shootings. We address a distinct question.
The controlling statute, RCW 9A.36.045(1), declares:
A person is guilty of drive-by shooting when he or she recklessly
discharges a firearm as defined in RCW 9.41.010 in a manner which creates
a substantial risk of death or serious physical injury to another person and
the discharge is either from a motor vehicle or from the immediate area of a
motor vehicle that was used to transport the shooter or the firearm, or both,
to the scene of the discharge.
(Emphasis added.) Key to this appeal is what constitutes the immediate area of the motor
vehicle that transported the shooter.
We decline to address how to gauge the unit of prosecution for the offense of
drive-by shooting. After the parties filed briefs, this court decided State v. Vasquez, 2
Wn. App. 2d 632 (2018), which requires a stated proximity between the shooter and his
vehicle for purposes of the prosecution. We directed the parties to address this recent
decision.
In State v. Vasquez, Anthony Vasquez shot and killed Juan Garcia as Garcia sat in
the front passenger side of a GMC Envoy parked at the Airport Grocery in Moses Lake.
For minutes prior to the shooting, the Envoy was parked near the Airport Grocery’s front
entrance. Vasquez then arrived at the scene in a Toyota pickup. The Toyota was parked
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No. 34768-1-III
State v. Jameison
on the side of the grocery, next to a fenced utility area, approximately sixty-three feet
away from the Envoy. Once the Toyota was parked, Vasquez ran from the pickup and
hid behind the utility fence for a minute. Vasquez then rushed around the corner of the
grocery, across the front-side of the Envoy, and over to the area of the front passenger
window of the Envoy. The front window was partially rolled down, exposing Garcia to
Vasquez. Vasquez shot and killed Garcia from point-blank range. Vasquez then
retreated to the Toyota and the car sped away.
On appeal, this court agreed with Anthony Vasquez that the State’s evidence did
not suffice to convict him of a drive-by shooting. RCW 9A.36.045(1) demands that the
shooter be in the “immediate area” of the vehicle that transported him. We did not
establish a concise measurement for determining the immediate area. Nevertheless, we
relied on State v. Rodgers, 146 Wn.2d 55, 43 P.3d 1 (2002), when fashioning some
language to assist in measuring the immediate area in individual circumstances. The
legislature narrowly drew the drive-by shooting definition. Rodgers and Vasquez
employed two dictionary definitions of “immediate.” The first defined “immediate” as
“existing without intervening space or substance . . . being near at hand: not far apart or
distant.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1129 (1986); State v.
Rodgers, 146 Wn.2d at 62; State v. Vasquez, 2 Wn. App. 2d at 636. The second defined
“immediate” as “[n]ot separated in respect to place; not separated by the intervention of
any intermediate object.” BLACK’S LAW DICTIONARY 749 (6th ed. 1990); State v.
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No. 34768-1-III
State v. Jameison
Rodgers, 146 Wn.2d at 62; State v. Vasquez, 2 Wn. App. 2d at 636.
Based on these dictionary definitions, we wrote, in State v. Vasquez, that the
immediate area was either inside the vehicle or from within a few feet or yards of the
vehicle. The crime of drive-by shooting contemplates a shooter who is either inside a
vehicle or within easy or immediate reach of the vehicle. Intervening obstacles disqualify
a location from being within the immediate area.
In State v. Rodgers, the Supreme Court held two blocks did not fall within the
immediate area. In State v. Vasquez, we held that a distance of sixty-three feet did not
qualify as the immediate area. When Lashawn Jameison fired his responding shots,
Jameison likely stood closer than sixty-three feet of the Toyota Camry, the car in which
he traveled to the Palomino Club. We still hold that Jameison did not stand within the
immediate area. The obstacle of an additional car and a telephone pole stood between
Jameison and the Camry. The Camry was not within his immediate reach. Jameison
stood more than a few feet or yards from the Camry.
We do not base our decision on the ground that the shooting lacked proximity in
time to when Lashawn Jameison arrived in the Toyota Camry, but we note that Jameison
had not recently ridden in the car. He had entered a club and partied in the intervening
minutes.
The State appealed the dismissal of twelve of the fourteen drive-by shooting
charges. We affirm the dismissal of those twelve charges, but lack authority to now
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No. 34768-1-III
State v. Jameison
dismiss the remaining two charges because those charges are not before the court. We
remand for further proceedings with regard to the two charges in light of our opinion.
CONCLUSION
We affirm the trial court's dismissal of the murder and manslaughter charges and
twelve of fourteen drive-by shooting charges brought against Lashawn Jameison. We
remand for further proceedings consistent with our opinion.
WE CONCUR:
30