State v. Becklin

¶23 (dissenting) — I would have us affirm the decision of the Court of Appeals. I reach that conclusion because I entirely agree with the Court of Appeals that the challenged supplemental jury instruction came too late and, in addition, was entirely inadequate.

Alexander, C.J.

*531¶24 Insofar as the lateness of the jury instruction is concerned, the Court of Appeals correctly observed that “supplemental instructions may not go beyond matters that either had been, or could have been, properly argued.” State v. Becklin, 133 Wn. App. 610, 620, 137 P.3d 882 (2006) (citing State v. Ransom, 56 Wn. App. 712, 714, 785 P.2d 469 (1990)). Here, the instruction that the trial judge gave in response to the jury’s question introduced a theory that was not covered by the instructions that had been submitted to the jury at the close of all of the evidence.

¶25 The majority is untroubled by the tardiness of the jury instruction, indicating that because “both parties presented arguments on the theory” the instruction addressed, the trial court did not abuse its discretion in giving the instruction. Majority at 530. To say that the parties argued that Andre Becklin was responsible for the acts of others under the “course of conduct” language set forth in RCW 10.14.020(2) or under this state’s complicity statute, RCW 9A.08.020, greatly exaggerates the thrust of trial counsel’s arguments. Frankly, a thorough examination of the transcript of the prosecutor’s closing argument leaves one confused as to precisely what the State’s theory was. At one point, the State argues that Becklin could be found guilty on an agency theory, saying, “Now, counsel makes a real big issue of the fact that Mr. Becklin did not personally do all of these acts. We have a concept of an agent, and a concept of principle [sic]. And what you_through your agent to do, you’re responsible for.” Report of Proceedings at 327. The prosecutor followed this with the remarkable statement that “[h]e who has the ability to prevent the act, who doesn’t do it, it’s the same as commanding that act.” Id. Later on in argument, the prosecutor suggests accomplice liability is the State’s theory, saying, “Assistance. Aiding and abetting. That’s what it is, that’s what this case is about, is enlisting others to do your own dirty work, and that’s what Mr. Becklin did.” Id. at 331.

¶26 In sum, I agree with the Court of Appeals’ decision here and its citation to an earlier Court of Appeals’ decision *532in Ransom, 56 Wn. App. at 714, in which the court said the following:

It does not matter in this case that the court chose to give the instruction in response to a jury question. The effect was to add a theory that the State had not elected and that defense counsel had no chance to argue. The trial court erred in giving the . . . instruction after deliberations began.

¶27 Of greater concern to me than the timing of the instruction is its inadequacy as a statement of the law. In addressing that issue, I first observe that one has to be in a charitable mood to describe the trial judge’s answer of “yes” to the jury’s question as a jury instruction. Viewing the question and answer in that light, however, it can fairly be said that the instruction essentially tells the jury that a person can stalk someone through a third person. As a general proposition, a person can be criminally responsible for the conduct of another. Therefore, in an abstract sense, the instruction is a correct statement of law. The problem with the instruction is that it is incomplete in that it does not tell the jury under what circumstances a person can be legally accountable for another’s conduct. We have a statute in Washington, RCW 9A.08.020,5 which speaks directly to criminal liability through complicity, and that statute could have formed the basis for a jury instruction. This would have made perfect sense since it is the State’s contention, at least before this court, that Becklin had “others do what he could not” and that this was “a classic case for liability under RCW 9A.08.020(2)(a).” Suppl. Br. of Pet’r at 7. Consistent with this theory, the jury should have been told *533that Becklin is legally accountable for another’s conduct only if he caused an innocent or irresponsible person or persons to engage in the criminal conduct. They were not so advised, and it is asking too much of individual jurors to expect them to know this intuitively.

¶28 The majority reaches the result the State urges, but it does so in a way that differs from the State’s theory. It essentially holds that the judge’s instruction (the answer to the jury’s question) was adequate because Becklin’s culpability arises from RCW 9A.08.020(2)(b), which provides that a defendant can be “accountable for the conduct of such other person by . . . the law defining the crime.”6 The majority reaches this result notwithstanding its observation that the stalking statute under which Becklin was charged, RCW 9A.46.110, “does not explicitly refer to harassment through third parties.” Majority at 527. It is not troubled by this fact, however, observing that pursuant to former RCW 9A.46.110(6)(b) (2006), the term “ ‘ “harasses” means unlawful harassment as defined in RCW 10.14.020.’ ” Id. at 526 (emphasis omitted) (quoting former RCW 9A.46.110(6)). The latter statute, it then notes, includes a broadly defined “knowing and willful course of conduct directed at a specific person.” RCW 10.14.020(1). The majority then concludes, without citing any authority, that “the plain language of the statute is broad enough to encompass the act of directing third parties to follow and intimidate a victim.” Majority at 527.

¶29 The trouble with this reasoning is that it flies in the face of the plain language of the statue under which Becklin was charged, RCW 9A.46.110(l)(a), which says that “[a] person commits the crime of stalking if . . . [Aje or she intentionally and repeatedly harasses or repeatedly follows another person.” (Emphasis added.) The statute makes it *534clear, it seems to me, that the harassment must be committed by the defendant (he or she) in order for there to be culpability, and that the only way the reach of the statute can be broadened to cover accomplices or acts of third persons is through the aforementioned complicity statute. As noted above, that statute was not the subject of any instruction, nor was it properly argued to the jury.

¶30 In sum, Becklin is not accountable for the conduct of others by virtue of the law defining the crime with which he was charged. Although one may be culpable for the acts of others through Washington’s complicity statute if he or she causes an innocent person or persons to engage in criminal conduct or is an accomplice of the person committing the unlawful acts, the jury should receive an instruction based on RCW 9A.08.020 if the State is advancing either theory. Because the jury did not receive such an instruction, Becklin’s conviction should be reversed.

C. Johnson and Sanders, JJ., concur with Alexander, C.J.

RCW 9A.08.020 provides, in pertinent part, as follows:

“(1) Aperson is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable.
“(2) A person is legally accountable for the conduct of another person when:
“(a) Acting with the kind of culpability that is sufficient for the commission of the crime, he causes an innocent or irresponsible person to engage in such conduct; or
“(b) He is made accountable for the conduct of such other person by this title or by the law defining the crime; or
(c) He is an accomplice of such other person in the commission of the crime.”

It must be noted that in the argument before this court, counsel for the State eschewed this theory, indicating in response to a question from this court that RCW 9A.08.020(2)(b) was “not at issue in the case.” Wash. Supreme Court oral argument, State v. Becklin, No. 79354-9 (Nov. 27, 2007), at 31 min., 31 sec., audio recording by TVW, Washington State’s Public Affairs Network, available at http://www.tvw.org.