State v. Trout

¶1 — 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 *407during 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.

Sweeney, A.C.J.

*407FACTS

¶2 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.

¶3 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.

¶4 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.

¶5 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 *408sleeping. They shouted, “where’s Jason?” Report of Proceedings (RP) at 610, 633, 771.

¶6 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.

¶7 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.

¶8 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.

¶9 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

¶10 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 *409the crimes charged, nor did he agree to aid. And so, therefore, the evidence is insufficient to convict him as an accomplice to these crimes.

fll We then review the evidence in a light most favorable to the State. State v. Salinas, 119 Wn.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 Wn. App. 27, 38-39, 851 P.2d 734 (1993), rev’d on other grounds, 125 Wn.2d 150, 882 P.2d 183 (1994). All reasonable inferences from the evidence must be drawn in favor of the State. Salinas, 119 Wn.2d at 201. 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 Wn. 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 Wn.2d at 201. 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 Wn.2d 634, 638, 618 P.2d 99 (1980).

¶12 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(l)(a)(i)-(iii).

¶13 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(l)(f).

¶14 Criminal liability applies equally to a principal and an accomplice because they share equal responsibility for the substantive offense. State v. Rodriguez, 78 Wn. 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).

*410¶15 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 principal, the jury need be convinced only that the crime was committed and that the defendant participated in it. State v. Teal, 152 Wn.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 Wn. 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 Wn.2d 498, 511, 79 P.3d 1144 (2003).

¶16 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 Wn. App. 243, 288, 54 P.3d 1218 (2002) (citing In re Pers. Restraint of Sarausad, 109 Wn. App. 824, 836, 39 P.3d 308 (2001)), review denied, 149 Wn.2d 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 Wn. App. 490, 502, 78 P.3d 1012 (2003) (citing State v. Roberts, 142 Wn.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 Wn. App. 905, 911, 43 P.3d 76 (2002).

¶17 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 *411committing 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.

f 18 Trina identified one of the men as the “nice guy” because he initially said, “ ‘[wje’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 happen to you again.” RP at 990-91.

¶19 Trina identified Adam as the “nice guy.” RP at 790. She said she “got a really good look. I stared right at him and talked—the whole time I was talking to him.” RP at 793. Trina stated that she specifically remembered Adam. RP at 913. She looked at Adam, but not the others in the room for a reason: “The reason why I didn’t look at the people that were playing with my purse when they were a couple feet away is because they had a gun, and you’re not gonna look at someone with a gun to your head.” RP at 913. She testified that Adam was in the room the entire time they were being physically attacked. RP at 920, 923, 924, 927, 951, 952-53. Her impression was Adam was the one in control; and he did nothing to stop the attacks. RP at 952-53. Trina said that Adam just stood there while they were all being hurt. RP at 992. Trina testified that she believed it was Adam that eventually said, “[l]et’s go, Jay.” RP at 922-24.

*412¶20 Trina testified that other than Adam’s statement that they had to go and pulling the guy off Jennifer, the “nice guy” did nothing else to stop what was going on. RP at 799-800. She also testified to the effect of Adam’s presence: “More manpower. More scary. I don’t know. More—it just did. I don’t know how to explain it.” RP at 991.

¶21 After Adam was arrested, he had several telephone conversations while he was in jail. During a recorded telephone conversation with his friend, Misty Houle, Adam said: “If I’m in here—while I’m in here I’d plead guilty ’cause that’s the best I’ll get if I’m in here. Plead guilty.” RP at 1231.

¶22 Adam had another phone conversation with another friend, Marc Hinkle, and Adam said:

F.....pretty much for sure probably gonna go to the pen.
How long?
Who knows. It all depends.
It all depends on who?
The—I don’t know. As long as f-----right now they’re sayin’ first degree robbery, but—so, I don’t know. If all that shit comes down on me I’m f- . I mean—
First degree robbery does?
Huh?
Are any of the other—
Any of the other stuff.
Then you shouldn’t have a problem with that, man?
No. I didn’t have anything to do with that, man. I just—

RP at 1257-58.

¶23 Marc agreed that the recorded conversation indicates that Adam was “going to the pen for robbery,” and he “expresse[d] concern for other charges not the robbery.” RP at 1259. Adam was worried about those charges related to the assaults of the girls, not the robberies. RP at 1259-60. Marc also admitted that from what he knew, Adam stood outside the apartment “watching or as a lookout.” RP at 1295. Marc agreed that from what he knew “the defendant *413stood as the watch-out” when the Play Station was brought out of the apartment. RP at 1298. Marc also agreed that Adam stated he stood outside the apartment and watched, “[a]nd [that Adam] never said anything about watching out for his brother in that context.” RP at 1307. Marc testified that Adam told him he knew Jordon had a gun before they went up to the apartment. RP at 1302.

¶24 Detective Craig Hanson took a statement from Adam following the crimes. The statement included information that Adam knew that three in his group were armed. And they were going to the apartment to take property, that Adam was in the apartment, and that he drove Nicholas’s car home so Nicholas could steal Jennifer’s car. And finally Detective Hanson said that Adam met up with Nicholas after the stolen car was destroyed. RP at 1354.

¶25 Adam agreed that he had complained about others in his group ratting on him. He admitted that he gave his cohort Nicholas time to steal Jennifer’s car. And he admitted that he had intended to lie about his participation and say he was with his girl friend. He also admitted that he told a friend that he was not involved in the assaults of the girls but he never denied being involved in the robberies.

¶26 Now Adam may not have actually physically stolen the property or actually physically harmed the victims. But he knew they were all going to the victims’ apartment to take property by force. Adam knew the others were armed with weapons. And one of the victims places him there and in charge during the robberies and assaults. Adam himself indicates that he went along to provide additional backup in case things got out of control.

¶27 A jury could and did find that Adam’s presence promoted or facilitated the others in this robbery and assault. The evidence then, looked at in a light most favorably to the State, amply supports the jury’s finding that Adam Trout acted as an accomplice to both counts of first degree robbery and one count of second degree assault.

*414Confession Voluntary

¶28 We review a trial court’s findings of fact for substantial evidence. State v. Broadaway, 133 Wn.2d 118, 129-31, 942 P.2d 363 (1997).

¶29 If there is substantial evidence that a confession was voluntary, that determination by the trial court will not be altered on appeal. Id. at 131; State v. Ng, 110 Wn.2d 32, 37, 750 P.2d 632 (1988). A voluntary confession is the product of a rational intellect and free will. State v. Rupe, 101 Wn.2d 664, 679, 683 P.2d 571 (1984). A court determines voluntariness under the totality of the circumstances. Broadaway, 133 Wn.2d at 132. The court then considers any promises or misrepresentations the interrogating officers made. Id. And it considers the causal relationship between those promises and the confession to determine whether the defendant’s will was overborne. Id.

¶30 The circumstances of an interrogation must be evaluated to determine if a confession was voluntary. Id. The condition of the defendant and the conduct of the police are the primary considerations. Id.; Rupe, 101 Wn.2d at 679. A defendant’s age, weakened physical or emotional state, intelligence, and experience with the police are factors in assessing his or her condition. See Rupe, 101 Wn.2d at 679; State v. Cushing, 68 Wn. App. 388, 392, 842 P.2d 1035 (1993). The duration and environment of the interrogation may also affect the defendant’s condition. See State v. Riley, 19 Wn. App. 289, 295-96, 576 P.2d 1311 (1978). A court must also consider any promises or misrepresentations made by the interrogating officers. Broadaway, 133 Wn.2d at 132. But direct or implied promises do not necessarily render a confession involuntary. Id.

¶31 Adam contends that the statement he gave to police was not voluntary. He and his father were cajoled by the police promise of preferential treatment if he talked first. He also complains that the court failed to enter the findings and conclusions required by the court rules.

¶32 The criminal rules require that at the end of a “3.5 hearing” (admissibility of statement), the trial judge *415must set forth, in writing, “(1) the undisputed facts; (2) the disputed facts; (3) conclusions as to the disputed facts; and (4) conclusion as to whether the statement is admissible and the reasons therefor.” CrR 3.5(c). The absence of findings of fact is harmless, though, if the trial court’s oral opinion is clear and comprehensive and written findings would be just a formality. State v. Cruz, 88 Wn. App. 905, 907-08, 946 P.2d 1229 (1997); see also State v. Miller, 92 Wn. App. 693, 703, 964 P.2d 1196 (1998). Here, the court’s oral ruling clearly spells out the reasons for its decision and is adequate for our review.

¶33 The court found that Detective Mark Weber did make the statement to Adam and Cole in the presence of Adam’s father that “[w]e pretty much know who all was involved, and whoever talks first will get the best deal.” RP at 508. The court concluded, nonetheless, that considering all the circumstances, the confession was voluntary. Those circumstances support the trial court’s finding that the confession was voluntary:

• A period of time elapsed from the detective’s representation until Adam was examined at the police department.
• He was interviewed for less than an hour.
• He was advised of his rights.
• He tried to call his lawyer. There was a further time lapse while Adam located his lawyer.
• He consulted with his attorney.
• And he signed the statement only after he consulted with his attorney.

¶34 All of this led the court to conclude:

Considering all of those matters the court concludes that, as the court discussed in the case of State versus Broadaway, the evidence does not establish a causal relationship between the inferred promise and the statements made by the defendant nor does it indicate that, in fact, the statement by Detective Weber, again using the language in the Broadaway case, resulted in the defendant’s will being overborne.

RP at 1376-77.

*416¶35 We agree. The trial judge’s conclusion that the confession was voluntary is supported by this record.

Good Faith Instruction

|36 Adam requested the WPIC2 instruction for the defense of good faith claim of title because he and his cohorts were there to recover property belonging to his friend. He contends the court erroneously refused the instruction and fashioned its own instead. See State v. Hicks, 102 Wn.2d 182, 187, 683 P.2d 186 (1984); see former RCW 9A.56.020(2) (1976).

¶37 We review the court’s specific wording of its instructions to the jury for abuse of discretion. State v. Harris, 97 Wn. App. 865, 870, 989 P.2d 553 (1999).

|38 Adam’s claim is that the court erred by fashioning its own jury instruction instead of giving the WPIC instruction for good faith claim of title. See WPIC 19.08. The erroneous instruction, he claims, left out the requirement that the State disprove the defense beyond a reasonable doubt and the State is charged with the burden of proving the absence of this defense beyond a reasonable doubt. Hicks, 102 Wn.2d at 187.

¶39 Here, Adam claims he was entitled to a good faith claim of title instruction because he had a good faith claim of title to the car stereo Jason took. But Adam is not charged with complicity in the theft of the car stereo; he is charged with the robbery of items from Trina and Jennifer and the assault of Jeremy. A good faith claim of title defense applies only to the claim of title in the specific property acquired. State v. Brown, 36 Wn. App. 549, 559, 676 P.2d 525 (1984) (citing State v. Larsen, 23 Wn. App. 218, 219, 596 P.2d 1089 (1979)). And more importantly, it cannot be said that the property taken in the robbery “was appropriated openly and avowedly under a claim of title made in good faith.” Former RCW 9A.56.020(2).

*417¶40 The evidence here does not support any good faith claim of title. And certainly, the court did not abuse its discretion in any event by giving the instruction it gave.

Prosecutorial Misconduct

¶41 Finally, Adam contends that the prosecutor committed misconduct by expressing his personal beliefs, making inflammatory remarks, stating personal opinions of his guilt and of the credibility of witnesses, and by stating his own belief as to the “justness” of a guilty verdict.

¶42 A defendant must show that the prosecutor’s conduct was both improper and prejudicial. State v. Davis, 141 Wn.2d 798, 840, 10 P.3d 977 (2000); State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997). Prejudice is established only if there is a substantial likelihood the improper comments affected the verdict rendered by the jury. Stenson, 132 Wn.2d at 718-19. And when no objection is made at trial, the issue may be reviewed only if it is “so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.” State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991); Stenson, 132 Wn.2d at 719; Davis, 141 Wn.2d at 840.

¶43 We place the State’s remarks in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). And the prosecutor has wide latitude in drawing and expressing reasonable inferences from the evidence. State v. Millante, 80 Wn. App. 237, 250, 908 P.2d 374 (1995).

¶44 Adam charges the prosecutor with a variety of improper remarks. The prosecutor commented on the defendant’s guilt. He vouched for a witness’s credibility and otherwise made remarks specifically calculated to arouse the passion and prejudice of the jury. Adam objected to some of the remarks he now complains of, but not others. He objected to the following comment:

*418It’s sometimes forgotten in closing argument when we over explain things trying to drive home points that I know you know. I’m going to limit my argument because I know you know the facts of this case, and I know you know what the right outcome to this case is. There’s only one just and reasonable outcome, and that’s guilty.

RP at 1629-30. The court overruled and instructed: “I remind the jury that you know this is closing argument and may not be considered in any way being evidence.” RP at 1630.

¶45 In rebuttal, the prosecutor argued:

The defendant is entitled to his day in court. The defendant’s entitled to come in here and make the State prove its case. We’ve proven our case. There are very few cases in which you’re going to get more evidence of guilt than you’re gonna get in this case. If this isn’t enough evidence to convince you beyond a reasonable doubt then I’d submit to you there are gonna be very few cases where anybody could be convinced beyond a reasonable doubt.
This isn’t a case where it’s in a gray area. This isn’t a case where after closing arguments are done I’m gonna go home and worry. Oh, I’m gonna be nervous, but I’m not gonna worry because there’s overwhelming evidence of guilt in this case.
[DEFENSE COUNSEL]: Your Honor, I object. Counsel again is personalizing, and that is prosecutorial misconduct.
[PROSECUTOR]: I’m certainly not personalizing it, your Honor.
THE COURT: You may proceed. I have previously instructed the jury. They understand they must rely on their own recollection of the evidence.

RP at 1685-86.

¶46 The comment, when placed in context, is a typical prosecutorial comment on the sufficiency of the evidence—it is overwhelming. Millante, 80 Wn. App. at 251. This is particularly so when Adam must show that the prosecutor is not arguing inferences from the evidence but is rather expressing a personal opinion. State v. Sargent, 40 Wn. App. 340, 344, 698 P.2d 598 (1985). This must be “clear *419and unmistakable.” Id. The overexuberant argument by the State is maybe unfortunate and probably unnecessary. But the judge responded appropriately by telling the jury to recall the evidence.

¶47 Adam claims prejudicial misconduct from other statements. However, he did not object to this remark:

Trina Brooks isn’t confused about what the defendant told you on the stand. He told ya’ he aided and assisted by his words and actions in this crime. Believe Trina Brooks. She’s telling you what she saw. She’s telling you the truth as she saw it, but even if you don’t you don’t need to. You don’t need to.

RP at 1643-44. Nor did he object to other remarks he now assigns error to here on appeal:

Officer Ryan Bonnalie and Wendy Manthey testified, and they testified about the initial statements of Jennifer Wilson, Trina Brooks and Jeremy Anderson. What’s important about their initial statements are that it’s consistent with what we know happened, with what the defendant admits happened. That there were five people that went into that apartment.

RP at 1637.

It will be guilty because the defendant is guilty in Count I of robbing Jennifer Wilson. The defendant is guilty in Count II of robbing Trina Brooks. The defendant is guilty in Count III of assaulting Jeremy Anderson, and the defendant is guilty of all three weapon enhancements. Justice demands these verdicts, and I’m confident you’ll bring them back.

RP at 1650-51.

Justice demands guilty verdicts. I trust, I know you’ll do the right thing. Any other outcome is unjust. It’s unjust by the law, and I know you’ll return guilty verdicts on all counts against the defendant.

RP at 1687.

Ladies and gentlemen, you know the facts of this case. You know the evidence in this case, and you know what the defendant did. It’s not an easy choice, but it is the only choice that justice will allow. To say the defendant is not guilty of *420these crimes is to say it’s all right. It’s all right to help plan an assault in the taking back of property. It’s all right to help plan a robbery.
It’s all right to know about the robbery two days before it happens. It’s all right to know about a robbery the day it happens. It’s all right to put on hats and bandanas. It’s all right to take a shotgun and a bat. It’s all right to stand lookout. It’s all right to see people taking property you know not yours is taken out. It’s all right to drive the get-away car. It’s all right to take that stolen car that you know is stolen and watch it destroyed.
It’s all right to wait while the people are destroying that car, and then it’s all right to go back to the apartment where that car was stolen—I’m sorry, go back to the apartment where you live after you’ve committed these acts. If you find the defendant not guilty, that’s all right.

RP at 1686-87.

¶48 His burden is to show that the State’s comments here could not have been cured by instructions from the court. Hoffman, 116 Wn.2d at 93. And earlier the trial judge admonished the jury to rely on its own recollection of the evidence. And it gave a similar written instruction to “[d]isregard any remark, statement or argument that is not supported by the evidence or the law as stated by the court.” Clerk’s Papers at 225. This instruction was also given orally before the remarks were made. RP at 1613.

¶49 The jury is presumed to follow the court’s instructions. State v. Krause, 82 Wn. App. 688, 697, 919 P.2d 123 (1996). Moreover, we would have to conclude that these remarks materially affected the outcome of this trial in order for us to reverse. State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981). And given the evidence of Adam’s involvement in these crimes from their planning, to his participation in the crimes, and his later statements to police and friends, we are not able to say the prosecutor’s final arguments materially affected the outcome here.

*421150 We affirm the convictions.

Brown, J., concurs.

For clarity we are using only first names because of the number of people involved.

11 Washington Pattern Jury Instructions: Criminal (2d ed. 1994) (WPIC).