Opinion
Nos. 36231-7-II; 36163-9-II.
August 12, 2008.
Appeals from a judgment of the Superior Court for Thurston County, No. 06-1-02249-5, Richard D. Hicks, J., entered April 20, 2007.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, C.J., and Bridgewater, J.
A jury convicted co-defendants Louis Fazio and Ancil Jones of conspiracy to commit first degree robbery while armed with a deadly weapon. The jury also found Jones guilty of second degree assault while armed with a deadly weapon. In this consolidated appeal, Jones argues that sufficient evidence does not support either of his convictions because the witnesses who placed him at the scene are not credible. Fazio argues that (1) sufficient evidence does not support his conviction for conspiracy to commit first degree robbery while armed with a deadly weapon because the State failed to prove that he knew his co-conspirators planned to use a firearm to commit the robbery and (2) prosecutorial misconduct deprived him of his right to a fair trial. We disagree with these contentions and affirm.
FACTS
Factual Background
On November 25, 2006, at approximately 5:14 am, Thurston County dispatched Deputy Sheriff Lester Klene to the scene of a single-car accident, possibly involving a gun. When he arrived at the scene, Klene saw that the vehicle had been in a roll-over accident and that the driver of the vehicle, Dean Hamlin, was wandering back and forth near the car, scared and confused. Klene took Hamlin, who was bleeding from a head wound and had suffered a gunshot wound to the leg, to Providence St. Peter Hospital.
All dates occurred in 2006, unless stated otherwise.
Thurston County Detective Steve Hamilton went to Providence St. Peter Hospital to interview Hamlin. Hamlin told Detective Hamilton that he was in his vehicle attempting to complete a drug transaction with two people: a woman named "Mary" and a muscular, short man with a shaved head. As they drove down Yelm Highway, the man brandished a weapon and demanded that Hamlin pull over; when Hamlin failed to do so, the man "slap[ped] him with the firearm in the side of the head" and then began shooting, hitting Hamlin in the leg. RP (March 20, 2007) at 106. Hamlin told Detective Hamilton that he had deliberately crashed the car in order to stop the attack.
Detective Hamilton compiled a photomontage of all the women named "Mary" that had been booked into the Thurston County Jail, and Hamlin picked Mary Yeldon as the "Mary" who had participated in the attack on him. Shortly thereafter, Detective Hamilton began contacting Yeldon's friends and family in an attempt to locate her. Yeldon eventually contacted Detective Hamilton and told him that she knew Hamlin through the local drug community and she became angry with him because he had been pressuring her for a sexual relationship. After she refused his sexual advances, Yeldon stated that Hamlin began lying to her, not meeting her where he was supposed to meet her, and making it difficult for her to spend time in places that they both frequented. In retaliation, Yeldon decided to "rob him for an ounce of [methamphetamine] because . . . that's the only thing that was important to him [and h]e was forgettin[g] who his friends really were." Clerk's Papers (36231-7-II) at 37. Yeldon eventually informed Detective Hamilton that she had recruited Jones and Fazio to help her commit the robbery. Detective Hamilton showed Hamlin a photomontage that included a photograph of Jones, and Hamlin identified Jones as the man who shot him.
Yeldon also identified Erik Skau as the individual who provided her with the gun that Jones used in the robbery. When Detective Hamilton questioned Skau, he admitted that he owned a .45 caliber weapon and handed it over to the detective. Skau subsequently made a full confession implicating himself in the conspiracy to rob Hamlin.
After leaving Skau's home, Detective Hamilton contacted Fazio. Fazio stated that, in the early morning hours of November 25, he gave several people, including Yeldon and an unidentified male, a ride to a gas station near Olympia and that a dark-colored sport utility vehicle (SUV) pulled up at the station; after he dropped off Yeldon and the unidentified male, Fazio stated that he left the scene.
Procedural History
On March 16, 2007, the State charged Jones, Fazio, and Yeldon with one count of conspiracy to commit first degree robbery while armed with a deadly weapon. The State also charged Jones with one count of second degree assault while armed with a deadly weapon and Fazio with one count of second degree rendering criminal assistance. The State tried Jones, Fazio, and Yeldon as co-defendants.
Skau entered into a plea agreement with the State, in which he pleaded guilty to the reduced charges of rendering criminal assistance and providing a firearm to an ineligible person; in exchange for the reduced charges, Skau agreed to testify for the State. Partway through the trial, Yeldon also entered into a plea agreement and pleaded guilty to conspiracy to commit first degree robbery, without the firearm enhancement. As part of her plea agreement, Yeldon agreed to testify for the State against both Jones and Fazio.
At trial, Yeldon testified that, on November 24, she became angry with her acquaintance and drug dealer, Hamlin, when he yelled at her and "got in [her] face" following a misunderstanding about some methamphetamine she was picking up on behalf of Hamlin's girl friend. Report of Proceedings (RP) (March 26, 2007) at 77. She denied that she was angry because he wanted to have a sexual relationship with her. At a party later that night, Yeldon told Fazio and Jones about the earlier incident with Hamlin. Fazio told Yeldon that Hamlin always kept "a lot of drugs on him" and Yeldon suggested that they "go take an ounce of [methamphetamine] from [Hamlin]." RP (March 26, 2007) at 36-37. Yeldon wanted to bring both Jones and Fazio because, if Hamlin "got rowdy," Jones could "rough[] him up, because [he] is known for fighting," while fighting is not in Fazio's nature. RP (March 26, 2007) at 39-40.
At the party, Jones asked another partygoer if Yeldon could borrow his gun, but he refused. Although Yeldon testified that Fazio was present when Jones asked for the gun, she further testified that Fazio did not say anything about her request because "he was flirting with [a] girl" and had been snorting OxyContin. RP (March 26, 2007) at 64.
Because they were unable to obtain a gun at the party, Yeldon testified that she, Jones, and Fazio left the party and drove to Skau's home to borrow his gun. Yeldon drove Fazio's car because he was too intoxicated to drive, Fazio sat in the passenger seat, and Jones sat in the back seat. When Yeldon, Jones, and Fazio arrived at Skau's home, Fazio stayed in the car while Yeldon and Jones went inside. Although Skau initially refused to loan Yeldon and Jones his gun after Yeldon and Jones offered him "a quarter ounce of [methamphetamine]" for his gun, he agreed to go with them for the robbery. RP (March 26, 2007) at 66. When Skau entered the vehicle, Yeldon testified that his gun was not visible because he was wearing a jacket. Yeldon testified that she and Jones then told Skau of the plan to rob Hamlin. Skau testified that he did not learn of the plan until after he was in the car.
After leaving Skau's home, Yeldon called Hamlin and told him that she wanted to buy an ounce of methamphetamine; ultimately, they agreed to meet at the Tesoro gas station on Yelm Highway to complete the exchange. Several hours passed between leaving Skau's home and meeting Hamlin and, during this time, Yeldon, Jones, Fazio, and Skau remained in the vehicle together, simply driving around. Skau testified that, after they arrived at the Tesoro station but before Hamlin arrived, Yeldon and Jones again asked to borrow his gun and he gave it to Jones. Skau also testified that Fazio was aware of the plan "as far as [he] knew," because they "talked about it in the car right before [they] got [to the Tesoro station]." 3 RP at 370.
After Hamlin arrived at the Tesoro gas station, Yeldon testified that she and Jones got out of Fazio's car and got into Hamlin's vehicle. She further testified that Fazio and Skau were supposed to follow behind Hamlin's SUV in Fazio's car. Yeldon was not sure if Jones had brought Skau's gun with him. After Hamlin held out an ounce of methamphetamine and asked, "who wanted it?," Yeldon testified that Jones pulled out the gun and ordered Hamlin to "put his hands up [and] stop the vehicle." RP (March 26, 2007) at 49. Instead, Hamlin and Yeldon both testified that Hamlin "floored it" and made the truck rock back and forth; after Hamlin pushed the car's accelerator to the floorboard, Jones started shooting in Hamlin's direction. RP (March 26, 2007) at 50. To stop the attack, Hamlin testified that he deliberately crashed his vehicle. During his testimony, Hamlin identified both Yeldon and Jones as the individuals who robbed and assaulted him.
Yeldon testified that, after the car rolled, she and Jones crawled out of the vehicle and fled to Fazio's car, which was waiting nearby. Yeldon further testified that shooting Hamlin was not part of the plan.
Angelique Pierce, Jones's former girl friend and the mother of his child, testified that, in November, she and Jones were living together along with another roommate, Deana McClain. Pierce also testified that around 1:00 am on November 25, she left their home to pick up a friend's car in McKenna following that friend's arrest, so she could drive it to Deschutes in order prevent it from being impounded. When she left, Pierce testified that Jones was asleep in their bed and that he was still asleep when she returned around 3:30 or 4:00 am. She conceded that he could have left while she was gone if he found someone to watch their child. She further testified that Jones did not shave his head during that period of time and produced pictures showing Jones with an unshaved head that were date stamped November 30. Although Pierce had not come forward with her claim that Jones had an alibi before trial, she claimed that it was because no one asked her if he had an alibi; she further testified that she did not realize Jones was with her on November 25 until her friend was released from jail. McClain corroborated Pierce's testimony.
During trial, the State sought to elicit testimony that Skau did not have a criminal history, stating that the issue of his credibility was important at trial. Fazio's counsel objected, arguing that Skau's lack of criminal history was not relevant and contended that the State was trying to suggest that Skau was offered a deal because he had no criminal history, which would suggest to the jury that Fazio did not receive a deal because he has a criminal history. The trial court sustained Fazio's objection, finding that the information was "potentially prejudicial for the reasons stated by [Fazio's trial counsel]." 3 RP at 342.
Despite this ruling, in closing argument, the State made the following argument:
Now, of four people who commit a crime, and since you are reasonable people, would you consider using the information of someone like [Yeldon] who . . . in her own way, came forward and provided the police with information to help them resolve [this] violent event[]? I think you would [because t]he option is serious crimes go unresolved.
And consider [Skau], . . . you know that . . . his background was thoroughly explored. . . .
. . . Do you think that if [Skau] had criminal convictions . . . you would have heard about them? You didn't.
. . . .
So here you have someone like [Skau], who, although, unfortunately has lapsed into drug usage, has no criminal history, honorably served his country in the military, and when contacted by police, gave it up. Are you going to deal with that kind of person in order to get to the bottom of things and hopefully find the truth? I think you would.
RP (March 27, 2007) at 102-04 (emphasis added).
On March 28, 2007, a jury found Jones guilty of second degree assault and conspiracy to commit first degree robbery. The jury also entered special verdicts finding that Jones or an accomplice was armed with a deadly weapon during the commission of the crime. The jury also convicted Fazio of conspiracy to commit first degree robbery and, by special verdict, determined that he, or an accomplice, was armed with a deadly weapon during the commission of the crime. The jury was unable to reach a verdict as to Fazio's charge of rendering criminal assistance.
Fazio and Jones timely appeal.
ANALYSIS
Sufficiency of the evidence
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences that a trier of fact can draw from that evidence. Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (citing State v. Longuski, 59 Wn. App. 838, 844, 801 P.2d 1004 (1990)), review denied, 119 Wn.2d 1011 (1992).
In order to prove conspiracy to commit first degree robbery while armed with a deadly weapon, the State is required to show that (1) the individual agreed with one or more persons to Page 9 engage in or cause the performance of conduct constituting first degree robbery, (2) the individual made the agreement with the intent that such conduct be performed, and (3) any one of the persons involved in the agreement took a substantial step in pursuance of the agreement. See RCW 9A.28.040; RCW 9A.56.200. A person is guilty of first degree robbery while armed with a deadly weapon if the individual (1) unlawfully took personal property from the person of another against his will by the use or threatened use of immediate force and (2) the individual, or an accomplice, was armed with a deadly weapon during the commission of the crime. See RCW 9A.56.190; RCW 9A.56.200.
In order to prove second degree assault while armed with a deadly weapon, the State is required to show that the individual or an accomplice, under circumstances not amounting to first degree assault, (1) intentionally assaulted another and thereby recklessly inflicted substantial bodily harm or (2) assaulted another with a deadly weapon. See former RCW 9A.36.021 (2003). A. Jones: Conspiracy To Commit First Degree Robbery and Second Degree Assault Jones argues that there is insufficient evidence to support his conviction for conspiracy to commit first degree robbery while armed with a deadly weapon and second degree assault while armed with a deadly weapon. Specifically, Jones argues that, because the State's key witnesses against him — Skau and Yeldon — received favorable plea deals in exchange for their testimony, their testimony "cannot be deemed credible." Br. of Appellant (Jones) at 10. Next, Jones argues that, because Hamlin described Yeldon's accomplice as having a shaved head and photographs that Pierce offered at trial dated shortly after the incident show him without a shaved head, Jones could not be Yeldon's co-conspirator. Jones further argues that Pierce's and McClain's testimony "establishes that [he] had an alibi." Br. of Appellant (Jones) at 10. As a result, Jones argues that the "totality of the evidence" shows that sufficient evidence does not support his convictions. Br. of Appellant (Jones) at 10. We disagree.
Because Jones challenges the sufficiency of the evidence, he admits the truth of the State's evidence and all reasonable inferences that may be drawn from it. See Salinas, 119 Wn.2d at 201. Here, three witnesses — Hamlin, Skau, and Yeldon — testified that Jones was involved in the robbery. Hamlin and Yeldon both testified that Jones shot Hamlin, and Skau testified that he gave Jones the gun used in the shooting. Jones argues that, because Skau and Yeldon received favorable plea agreements from the State, they are not credible. But the jury heard testimony about the plea agreements when each of the witnesses testified and chose to believe these witnesses; in addition, the jury heard Pierce's and McClain's testimony and chose not to believe them. Jones is effectively asking this court to re-examine the credibility of these witnesses and re-weigh the evidence, but the jury serves as the sole judge of the credibility of witnesses and the persuasiveness of the evidence. Sufficient evidence supports Jones's convictions.
B. Fazio: Conspiracy To Commit First Degree Robbery
Fazio argues that sufficient evidence does not support his conviction for conspiracy to commit first degree robbery. Specifically, Fazio argues that, because he remained in his car while Yeldon and Jones went into Skau's house to ask for the gun, he did not know that his co-conspirators intended to use a deadly weapon when they robbed Hamlin. And since the use of a deadly weapon is the factor that elevates the crime to first degree robbery, he cannot be guilty of conspiracy to commit that crime. We disagree.
Fazio also argues that under State v. King, 113 Wn. App. 243, 54 P.3d 1218 (2002), review denied, 149 Wn.2d 1013 (2003), an individual cannot be held vicariously liable for acts committed by his co-conspirators in furtherance of the conspiracy unless that individual had actual knowledge of the substantive crime charged. 113 Wn. App. at 275 (citing RCW 9A.28.040); State v. Stein, 144 Wn.2d 236, 246, 27 P.3d 184 (2001) (the "foreseeability" doctrine in Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, L. Ed. 1489 (1946), cannot be basis for vicarious liability under Washington law). While this is a correct statement of the law in Washington, the State did not charge Fazio with the substantive crime of first degree robbery while armed with a deadly weapon but, rather, conspiracy to commit first degree robbery while armed with a deadly weapon. Fazio improperly conflates conspiratorial and accomplice liability; while accomplice liability requires knowledge and a completed crime, conspiracy requires intent and a substantial step toward completion. Stein, 144 Wn.2d at 242. As a result, the question here is not whether Fazio is liable for the substantive crime of first degree robbery while armed with a deadly weapon as a result of his complicity in the conspiracy but, rather, whether he is guilty of the inchoate crime of conspiracy to commit first degree robbery while armed with a deadly weapon.
Fazio's challenges to the sufficiency of the evidence admit the truth of the State's evidence and all inferences that may be drawn from it. See Salinas, 119 Wn.2d at 201. Here, Yeldon testified that she actively sought to borrow a gun from an acquaintance at the party in Fazio's presence. Although Fazio did not make any comments while she was asking to borrow a gun and "he was flirting with [a] girl," a reasonable jury could presume that he heard her request. RP (March 26, 2007) at 64. Furthermore, Skau testified that Yeldon talked about the robbery while Yeldon, Fazio, Jones, and Skau were in Fazio's car and that they drove around for several hours before they met with Hamlin. Skau further testified that Jones asked him for the gun while Fazio was in the car. In addition, Skau testified that Fazio knew about the plan "as far as [he] knew" because they "talked about it in the car right before [they] got [to the Tesoro station]." 3 RP at 370. Although none of the witnesses explicitly testified that Fazio knew about the gun, the conspirators discussed the robbery collectively several times, and Skau testified that Fazio knew about the plan. A reasonable jury could infer that Fazio knew about the details of the robbery, including the use of the gun. Thus, sufficient evidence supports Fazio's conviction. Prosecutorial Misconduct Fazio contends that the prosecutor committed prosecutorial misconduct when, during rebuttal argument, he violated the court order prohibiting the State from submitting evidence that Skau did not have a criminal record. Specifically, Fazio argues that, as a result of the prosecutor's comments, the jury likely inferred that he had a criminal record and that the State gave Skau a favorable plea deal because he did not have a criminal record and did not give Fazio a similar deal because he had a criminal record. We disagree.
During oral argument for this matter, Fazio's attorney argued for the first time that the jury instructions included a defective accomplice liability instruction, rejected in State v. Roberts, 142 Wn.2d 471, 14 P.3d 717 (2000). Because Fazio's attorney raised this issue for the first time during oral argument, it is not properly before this court. See RAP 12.1; see also State v. Johnson, 119 Wn.2d 167, 170, 829 P.2d 1082 (1992)). But even if this issue were properly before us, the accomplice liability definition was limited to the special verdict form and the only disputed issue in the special verdict form was whether the deadly weapon involved was a firearm. As a result, the improper accomplice definition did not affect the verdict and any error was harmless.
Fazio also suggests that the prosecutor impermissibly vouched for Skau. But in closing argument, a prosecutor may comment on a witness's veracity as long as the prosecutor does not state a personal opinion and as long as the comments are not intended to incite the passions of the jury. State v. Stith, 71 Wn. App. 14, 21, 856 P.2d 415 (1993). Here, the prosecutor did not state a personal opinion about Skau. Instead, he stated reasons why the jury should find Skau's testimony credible.
In order to establish prosecutorial misconduct, a defendant must prove that the prosecutor's conduct was improper and that it prejudiced his right to a fair trial. State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004) (citing State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003)). A defendant can establish prejudice only if there is a substantial likelihood that the misconduct affected the jury's verdict. Carver, 122 Wn. App. at 306 (quoting Dhaliwal, 150 Wn.2d at 578). We review a prosecutor's comments during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. Carver, 122 Wn. App. at 306 (citing Dhaliwal, 150 Wn.2d at 578). In addition, a prosecutor's improper remarks are not grounds for reversal if the defense counsel invited or provoked the comments; they are a pertinent reply to defense counsel's arguments and are not so prejudicial that a curative instruction would be ineffective. Carver, 122 Wn. App. at 306 (citing State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995)).
But the trial court must have the opportunity to correct any alleged error, and failure of the defendant to object at trial constitutes a waiver of his right to challenge the remarks on appeal. State v. Fullen, 7 Wn. App. 369, 389, 499 P.2d 893, review denied, 81 Wn.2d 1006 (1972), cert. denied, 411 U.S. 985 (1973). If defense counsel fails to object to the prosecutor's statements, then reversal is required only if the misconduct was so flagrant and ill-intentioned that no instruction could have cured the resulting prejudice. State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988) (citing State v. Case, 49 Wn.2d 66, 74, 298 P.2d 500 (1956)). The defendant bears the burden of establishing both the impropriety and the prejudicial effect of the prosecutor's comments. State v. Perkins, 97 Wn. App. 453, 457, 983 P.2d 1177 (1999) (quoting State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995)), review denied, 140 Wn.2d 1006 (2000).
A party who loses a motion in limine has a standing objection that preserves the issue for appeal. State v. Sullivan, 69 Wn. App. 167, 170-71, 847 P.2d 953, review denied, 122 Wn.2d 1002 (1993). But in the absence of any unusual circumstance that makes it impossible to avoid the prejudicial impact of inadmissible evidence, a party who wins such a motion must object to preserve an appeal of any violation. See Sullivan, 69 Wn. App. at 173. Otherwise, a party who wins a motion in limine but does not object to a violation at trial "could simply lie back, not allowing the trial court to avoid the potential prejudice, gamble on the verdict, and then seek a new trial on appeal." Sullivan, 69 Wn. App. at 172. Furthermore, the absence of an objection suggests that the argument or event did not appear critically prejudicial in the context of the trial. See State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991).
Here, neither defense attorney objected to the prosecutor's remarks. The question before this court, therefore, is whether Fazio has demonstrated that the prosecutor's statements were so flagrant and ill-intentioned that a curative instruction could not have cured the resulting prejudice. See State v. Stith, 71 Wn. App. 14, 22-23, 856 P.2d 415 (1993). We hold that Fazio failed to meet his burden. Although the prosecutor's comments violated the trial court's prior ruling, they were not incurably prejudicial. Moreover, the prosecutor's revelation that Skau did not have a criminal history did not lead to the conclusion that Fazio had a criminal record and, as a result, was more likely to have committed this particular crime, as Fazio contends. Thus, although the information about Skau's lack of a criminal history was improper, it was not incurably prejudicial.
In addition, the evidence against Fazio was overwhelming and the alleged prejudice from the prosecutor's remarks could not have affected the verdict. See State v. Guloy, 104 Wn.2d 412, 425-26, 705 P.2d 1182 (1985) (even a constitutional error does not require reversal if, beyond a reasonable doubt, the untainted evidence is so overwhelming that a reasonable jury would have reached the same result in the absence of the error), cert. denied, 475 U.S. 1020 (1986). Here, overwhelming untainted evidence proved that Fazio conspired with Skau, Jones, and Yeldon to rob Hamlin and we are satisfied that the jury would have reached the same conclusion without the prosecutor's improper statement that Skau did not have a criminal record. Thus, the prosecutor's improper statements did not affect the result and were harmless.
Sufficient evidence supports both Jones's and Fazio's convictions; furthermore, the prosecutor's statements regarding Skau's lack of a criminal record were not incurably prejudicial and, in light of the overwhelming evidence, harmless. Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and VAN DEREN, C.J., concur.