State v. Jackson , 87 Wash. App. 801 ( 1997 )

Agid, J.

(dissenting) — I agree with the majority on all but one point which, in my view, would dictate affirming the convictions. Assuming the accomplice instruction is error, it is harmless. We should affirm the Jacksons’ convictions for felony murder based on assault as the predicate crime because they would have been convicted on the evidence presented even if the trial court had given the standard WPIC accomplice instruction.

Because accomplice liability is not an alternative means of committing a crime, a jury need not be unanimous about whether a defendant acted as a principal or accomplice in committing a crime. State v. Hoffman, 116 Wn.2d 51, 105, 804 P.2d 577 (1991) (" 'it matters not that some jurors may have believed that the petitioner fired the gun, while others may have believed that his only role was in aiding and abetting [the other participant], so long as all twelve agreed that he did participate’ ”) (quoting State v. Carothers, 84 Wn.2d 256, 265, 525 P.2d 731 (1974)); State v. Munden, 81 Wn. App. 192, 197, 913 P.2d 421 (1996). A defendant need not participate in each element of the crime nor need he share the same mental state as is required of the principal. State v. Galisia, 63 Wn. App. 833, 840, 822 P.2d 303, review denied, 119 Wn.2d 1003 (1992). Nor, as the majority recognizes, does the accomplice have to be present when the crime is actually committed. State v. Boast, 87 Wn.2d 447, 455, 553 P.2d 1322 (1976). And, perhaps most important in this case, accomplices need have only general knowledge that they are encouraging or assisting in committing the crime. State v. Ferreira, 69 Wn. App. 465, 472, 850 P.2d 541 (1993). For all these reasons, the majority agrees that the jury could easily have found that Laurinda was, as the State argued in closing, Michael’s accomplice when he struck the fatal blow after she left for work. Majority at 815.

My quarrel with the majority is that it assumes the error on instructing the jury about the duty of foster parents to protect their children is fatal in this case. As I understand the rule, instructional error is harmless "only when the record affirmatively establishes that the manner in which the instruction was worded could have no effect on the outcome of the case.” State v. Crane, 116 Wn.2d 315, 331, 804 P.2d 10, cert. denied, 501 U.S. 1237 (1991). Under the facts of this case, the duty to protect the child was irrelevant. The evidence established beyond a reasonable doubt that Laurinda participated fully in the days of abuse that culminated in inflicting the fatal blow. Whether or not she had an affirmative duty to protect her foster child, by her active participation in the continuing and escalating course of assaults and her acquiescence in Michael’s assaults, she encouraged him to continue to beat the child. As the majority recognizes and the State argued to the jury, both parents tortured Breighonna for several days and at no time did either try to stop the other’s behavior. They were parents participating in a common enterprise, and it did not take a jury instruction on the parental duty to protect to inform the jury that by failing to stop, protest, interfere or otherwise change the course of events, each parent was participating in and encouraging the other to assault the child.

Under these circumstances, both Michael and Laurinda had established by their actions over a three-day period that the other could continue to beat Breighonna at will. Each was the other’s accomplice in a course of conduct that culminated in one of them inflicting the fatal blow. When the evidence of complicity and conspiracy is as strong as it is in this case, we need not be concerned that the jury could have been misled. I would hold that the presumed instructional error was harmless beyond a reasonable doubt because the parental duty language in the accomplice instruction was irrelevant under these facts and the jury would have found them guilty as principal and accomplice with or without it.

Reconsideration denied October 7, 1997.

Review granted at 135 Wn.2d 1008 (1998).