State of Washington v. Joshua Michael Doherty ( 2013 )

FILED
MARCH 19,2013
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. 3067S-S-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JOSHUA MICHAEL DOHERTY, )
)
Appellant. )
KULIK, J. A jury found Joshua Doherty guilty of third degree theft and first
degree trafficking in stolen property for stealing DVDs from Target and arranging to sell
them to Hastings. On appeal, Mr. Doherty contends that instruction 10 relieved the State
of its burden of proof on the trafficking charge, and that the evidence was insufficient to
prove that Mr. Doherty had knowledge that his companion intended to sell the DVDs.
Concluding that the instruction was proper, we affirm the convictions.
FACTS
The parties agree on the facts. In September 2010, Joshua Doherty was observed
by Target store security, placing eight DVDs in a plastic cooler and walking out of the
No. 30675·5-111
State v. Doherty
store without paying. Mr. Doherty was seen entering a car that drove away. The cooler
and the DVDs were valued at approximately $237.
Later, the Target security manager David Tasca contacted the customer service
manager of a nearby Hastings-known to buy used DVDs-and described the titles of the
DVDs taken from Target. The Hastings employee confirmed that a person was
attempting to sell the DVDs at Hastings.
Mr. Tasca went to Hastings and saw the car he identified as being involved in the
theft of the DVDs parked in a parking stall in the lot in front of the store. Mr. Tasca saw
Mr. Doherty seated in the driver's seat. Mr. Tasca went inside the store and identified the
DVDs as those stolen from Target. He called 911.
Once the police arrived, the man attempting to sell the DVD's, Steven Doyle, fled.
He was arrested a short distance away and returned to Hastings. Mr. Doherty was
detained and the car was impounded. After a warrant was obtained, a search of the car
revealed the cooler, two pair of wire cutters, eight security devices, which Mr. Tasca said
were attached to DVDs, and cellophane wrapping. One pair of wire cutters was found on
the floor below the driver's seat; the other pair of wire cutters was found on the rear
passenger floor of the car.
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Mr. Doherty and Mr. Doyle were charged with third degree theft and first degree
trafficking in stolen property. Following a jury trial, Mr. Doherty was found guilty as
charged. I
ANALYSIS
Instruction 10. The State bears the burden of proving each element of the offense.
State v. Cantu, 156 Wash. 2d 819, 825, 132 PJd 725 (2006). Jury instructions that relieve
the State of its burden to prove every element of an offense violate due process. State v.
Thomas, 150 Wash. 2d 821, 844, 83 PJd 970 (2004), abrogated in part on other grounds by
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). This
court reviews the challenged instructions de novo and in the context of the instructions as
a whole. State v. Bennett, 161 Wn.2d 303,307, 165 PJd 1241 (2007).
Mr. Doherty was convicted of trafficking as an accomplice. Mr. Doherty
challenges instruction 10, which sets out the elements to be proved for accomplice
liability. He maintains that instruction 10 relieved the State of its burden of proving every
element of the offense beyond a reasonable doubt. Instruction lOis based on
RCW 9A.08.020 2 that provides, in part, as follows:
1 Mr. Doyle committed suicide prior to trial.
We quote the current version ofRCW 9A.08.020, which was amended by the
2
LA WS OF 2011, chapter 336, section 351 to make the language gender neutral.
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(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 ofanother
person when:
(c) He or she is an accomplice ofsuch other person in the
commission ofthe 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.
(Emphasis added.)
In instruction 10,3 the court orally instructed the jury as follows:
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. A person is
legally accountable for the conduct of another person when he or she is an
accomplice of such other person in the commission of a crime.
A person is an accomplice in the commission of a crime if, with
knowledge that it will promote or facilitate the commission of the crime, he
either:
(1) solicits, commands, encourages, or requests another person to
commit the crime or,
(2) aids or agrees to aid another person in planning or committing
the crime.
The word "aid" means all assistance, whether given by words, acts,
encouragement, support, or presence. A person who is present at the scene
3 Mr. Doughty proposed a correct version of the jury instructions for accomplice
liability, which was not given.
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and ready to assist by his or her presence is aiding in the commission of a
crime. However, more than mere presence and knowledge of the criminal
activity of another must be shown to establish that a person present is an
accomplice.
Report of Proceedings (RP) at 242-43 (emphasis added).
Instruction 10 provided that "[a] person is legally accountable for the conduct of
another person when he or she is an accomplice of such other person in the
commission of a crime." RP at 242-43. But the use of the term "a crime" is erroneous
because RCW 9A.08.020(2)(c) requires: "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." (Emphasis added.)
Both instruction 10 and RCW 9A.08.020 use the terms "the crime" and "a crime."
But instruction 10 contains an erroneous statement of accomplice liability. The language
ofRCW 9A.08.020 "requires that the putative accomplice must have acted with
knowledge that his or her conduct would promote or facilitate the crime for which he or
she is eventually charged." State v. Cronin, 142 Wash. 2d 568, 579, 14 P.3d 752 (2000).
Instruction 10 uses the term "a crime."
In Cronin, the Washington Supreme Court considered the following instruction
that is identical to instruction 10. The Cronin instruction read:
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"A person who is an accomplice in the commission of a crime is
guilty of that crime whether present at the scene or not.
A person is an accomplice in the commission of a crime if, with
knowledge that it will promote or facilitate the commission of a crime, he
either:
(1) solicits, commands, encourages or requests another person to
commit the crime; or
(2) aids or agrees to aid another person in committing a crime."
Cronin, 142 Wash. 2d at 576-77 (emphasis added). The court found error in the use of an
accomplice liability instruction that referenced "a crime." The court reasoned that the "a
crime" instruction suggested to the jury that a defendant could be found guilty as an
accomplice for a crime other than the charged crime~ Id. at 579. The court also explained
that the jury instruction in question was deficient because it did not require that the
defendant had knowledge he was facilitating the crime for which he was charged. Id.
The court's error in instructing the jury under instruction 10 must be reviewed
under the constitutional error standard because a conviction cannot stand if the jury was
4
instructed in a way that relieved the State of its burden ofproof. Cronin, 142 Wash. 2d at
580.
4 A failure to object to jury instructions at trial usually constitutes waiver of any
error, precluding review for the first time on appeal. Because the State must prove every
element of an offense beyond a reasonable doubt, such error affects due process rights
and the error may be raised for the first time on appeal. State v. Chino, 117 Wash. App.
531, 538, 72 P.3d 256 (2003).
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State v. Doherty
We must now consider whether the error is harmless. Here, the constitutional error
test is applied because'" an instruction that omits an element of the offense does not
necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence.''' State v. Berube; 150 Wash. 2d 498, 505, 79 P.3d 1144
(2003) (quoting Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827, 144 L. Ed. 2d 35
(1999)). When an instruction omits or misstates an element, the error is harmless if the
error is supported by uncontroverted evidence. Id. (quoting State v. Brown, 147 Wn.2d
330,341, 58 P.3d 889 (2002)). To determine whether a constitutional error is harmless, it
must appear beyond a reasonable doubt that the error did not contribute to the ultimate
verdict. Id.
Mr. Doherty asserts that there is no evidence that he was an accomplice to
trafficking. He argues that the use of instruction 10 may have allowed the jury to
conclude Mr. Doherty was the accomplice to the trafficking offense simply because he
took the DVDs.
To prove trafficking, the State must prove an intent "to se11 or dispose of another's
property." State v. Walker, 143 Wash. App. 880, 887,181 P.3d 31 (2008). To prove theft,
the State must prove an intent "to deprive the owner of its property." Id. Proof of one
does not necessarily prove the other. To prove Mr. Doherty was Mr. Doyle's accomplice,
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there must be proof that Mr. Doherty, with knowledge that it would promote or facilitate
the commission of the crime, solicited, commanded, encouraged, or requested Mr. Doyle
to commit the crime or aided and agreed to aid Mr. Doyle in the planning or committing
of the crime. See RCW 9A.OS.020(3). Under RCW 9A.OS.020(3), to convict as an
accomplice, a defendant must have knowledge that his conduct will promote or facilitate
the commission of the crime.
The State does not argue that the error is harmless. An erroneous instruction is
harmless if it appears beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained. Brown, 147 Wash. 2d at 344. Instead, the State argues
that the sufficiency of the evidence test applies when making this inquiry. This is not the
applicable standard. Here, we are evaluating constitutional harmless error.
There is unconverted evidence supporting the verdict. The evidence showed that
Mr. Doyle and Mr. Doherty were acquainted and that Mr. Doherty waited in the car while
Mr. Doyle tried to traffic the stolen DVDs. The car Mr. Doherty was sitting in contained
two wire cutters and the wire security mechanisms from the DVDs that Mr. Doherty had
stolen and placed in the car.
Here, there is ample evidence supporting Mr. Doherty's trafficking conviction.
Any instructional error was harmless. An erroneous instruction is harmless if it appears
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beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained. Brown, 147 Wash. 2d at 344.
ProofofKnowledge ofthe Crime. Mr. Doherty contends the State failed to prove
each of the elements of the charged crime beyond a reasonable doubt. Specifically, Mr.
Doherty asserts that the State failed to prove Mr. Doherty intended to sell the DVDs.
"There is sufficient proof of an element of a crime to support a jury's verdict
when, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found that element beyond a reasonable doubt." State v.
Bright, 129 Wn.2d 257,266 n.30, 916 P.2d 922 (1996). A claim of sufficiency of the
evidence admits the truth of the State's evidence and all reasonable inferences therefrom.
State v. Salinas, 119 Wash. 2d 192, 201, 829 P .2d 1068 (1992). Circumstantial evidence
and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634,638,618 P.2d
99 (1980).
Mr. Doherty admits that he took the DVDs. Within minutes, Mr. Doyle was
attempting to sell the same DVDs at another store. Mr. Doherty was found outside that
store, sitting in a car that contained two wire cutters and a collection of snipped security
wires. There was sufficient evidence to support Mr. Doherty's conviction for trafficking.
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We affirm the convictions for third degree theft and first degree trafficking in
stolen property.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Kulik, J.
WE CONCUR:
Brown, J. .
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