(dissenting) — State v. Hickman, 135 Wn.2d 97, 954 P.2d 900 (1998), controls disposition of this case. There the State included in the “to convict” instruction venue as an element of insurance fraud. Id. at 101. Though nothing in the insurance fraud statute7 required the State to prove as much, we held the State’s erroneous inclusion of venue in the “to convict” instruction compelled it to prove that element beyond a reasonable doubt. Id. at 105. Because there was insufficient evidence for a jury to find such proof beyond a reasonable doubt, we ordered Hickman’s charges be dismissed. Id. at 106.
Here the “to convict” instruction permitted the jury to find DeWayne Teal guilty of first degree robbery only if the State proved beyond a reasonable doubt “the taking [of property] 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,” “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,” and during the alleged crime “the defendant displayed what appeared to be a firearm.” Clerk’s Papers at 71 (Instruction 7) (emphasis added). Nowhere in the “to convict” instruction is there any leeway for the jury to convict Teal as an accomplice to the alleged robbery.
However the majority attempts to distinguish Hickman on two grounds. First the majority asserts this case involves accomplice liability whereas Hickman did not. See majority at 338. True, that distinction exists. However it is wholly irrelevant, for venue was not an element of insurance fraud yet the State assumed the burden in Hickman to prove it. Hickman, 135 Wn.2d at 105. That this case involves accomplice liability and Hickman involved venue is just as imma*341terial as distinguishing this case because the defendant there was named Hickman and this defendant is named Teal.
The second basis for the majority’s claim is that this case requires a “determin[ation of] whether sufficient evidence existed to convict Teal of the crime charged,” majority at 338, whereas Hickman involved an element added to the “to convict” instruction. Yet the crime charged in Hickman was insurance fraud. Certainly there was sufficient evidence there to support a finding of guilt for the statutory elements of that crime; however, we dismissed the charges against the defendant because there was insufficient evidence to prove the added element of venue. Hickman, 135 Wn.2d at 105-06. The entire focus of Hickman is not whether there is sufficient evidence to convict the defendant of the crime charged; rather the focus lies in whether the State produces sufficient evidence to convict the defendant of the crime defined by the “to convict” instruction. That the State had no obligation imposed by statute to prove Teal acted as a principal is immaterial to the issue presented.
As such, I am not swayed by the majority’s citation to State v. Carothers, 84 Wn.2d 256, 525 P.2d 731 (1974). Carothers correctly stands for the proposition complicity is not an element of a crime nor an alternative means of committing a crime. See id. at 261-64. However the “to convict” instruction here required the State to prove Teal acted as a principal. So much is evident from the prosecutor’s improper comments during closing argument:
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 others’ conduct. But you don’t see the word accomplice in here because it is assumed to be that way.
3 Verbatim Report of Proceedings (Mar. 18, 1998) at 480 (emphasis added). But it is the “technicality of the lan*342guage” on which the jury relies to determine the defendant’s guilt or innocence. Juries are presumed to follow the instructions given by the court, but that presumption is overcome when they are forced to “assume” the law is different from that provided. See, e.g., State v. Davenport, 100 Wn.2d 757, 763-65, 675 P.2d 1213 (1984) (reversing conviction after prosecutor implied during closing that whether defendant acted as principal or accomplice was immaterial, as the jury instructions included no accomplice liability instruction).
It is no argument that the law of the case doctrine leads to dismissal. Hickman disposed of that contention:
[W]e note the law of the case doctrine benefits the system by encouraging trial counsel to review all jury instructions to ensure their propriety before the instructions are given to the jury. Moreover, the doctrine is well established by multiple precedent and is encapsulated in criminal rule CrR 6.15(c), which requires all objections to jury instructions be made before the instructions are given to the jury.
Hickman, 135 Wn.2d at 105.
Nothing in this record evidences the possibility Teal used or threatened to use violent behavior or force or that Teal carried a firearm while Rueben Hinton shot Wright. Yet the State was required to prove these facts beyond a reasonable doubt to convict Teal based on the unchallenged “to convict” instruction given. Hickman, 135 Wn.2d at 105. Even viewing the evidence in a light most favorable to the State as is required in a sufficiency of the evidence challenge, State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004), there is insufficient evidence here to convict Teal of the crime defined by instruction 7. All evidence demonstrated Hinton, not Teal, was the individual who carried the firearm and used it to rob Wright.
I therefore would dismiss the charges against Teal based on the law of the case doctrine and dissent from the majority’s refusal to do so.
See RCW 48.30.230.