State v. Teal , 152 Wash. 2d 333 ( 2004 )

Johnson, J.

This case requires us to determine whether sufficient evidence existed to convict the defendant of first degree robbery where a “to convict” jury instruction referred only to the acts of the “defendant” and not to the acts of the “defendant or an accomplice.” The Court of Appeals concluded that, in reading the instructions as a whole, the jury could decide the defendant’s guilt or innocence as an accomplice to first degree robbery. The court held, however, that the defendant was entitled to a new trial because the jury was erroneously instructed on accomplice liability.¹ We affirm.

FACTUAL AND PROCEDURAL HISTORY

On August 13, 1997, the State charged the defendant, DeWayne H. Teal, with one count of first degree robbery committed while armed with a firearm. Clerk’s Papers (CP) at 95. The evidence revealed that the alleged robbery occurred during the course of a drug deal between Rueben Hinton (Teal’s brother) and Larone Wright.

On July 10, 1997, Hinton arranged to pin-chase two ounces of crack cocaine from Wright. Teal lent Hinton the money for the purchase and drove him to an apartment complex to buy the drugs. Teal parked in the apartment complex parking lot and watched Hinton approach Wright’s car to conduct the drug deal. While in the car, Hinton shot Wright twice, once in the head and once in the shoulder.

During police questioning, Teal denied knowing anything about the shooting. In a later statement, he admitted to witnessing the shooting and stealing compact discs from Wright’s car. At trial, however, Teal changed his statement and suggested that an unknown white male, driving a car like his own, had robbed Wright and that he had previously admitted to taking the compact discs from Wright’s car to help Hinton.

Wright testified that after the shooting Hinton went through Wright’s pockets. Wright also testified that he then rolled out of the car and crawled to the ground, where he observed Hinton and Teal rummaging through the car and then driving away. Several eyewitnesses corroborated Wright’s version of the shooting and one witness identified Teal’s car.

The trial court’s jury instructions included a “to convict” instruction which defined each element of first degree robbery as acts committed by the “defendant.” The instruction specifically stated that:

To convict the defendant of the crime of Robbery in the First Degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

. . . [t]hat the taking was against Larone Wright’s will by the defendant’s use or threatened use of immediate force, violence or fear of injury to that person;

. . . [t]hat the force or fear was used by the defendant to obtain or retain possession of the property or to prevent or overcome resistance to the taking;

. . . [and that] in the commission of these acts or in immediate flight therefrom the defendant displayed what appeared to be a firearm....

CP at 71 (Instruction 7). The record reveals that neither party objected to this instruction.²

The court also gave a separate instruction for accomplice liability and a special verdict to determine whether Teal was armed with a firearm at the time of the robbery for the purpose of imposing a sentencing enhancement. The accomplice liability instruction stated that “[a] person who is an accomplice in the commission of a crime is guilty of that crime . . . CP at 73 (Instruction 9) (emphasis added).³

The jury found Teal guilty as charged.⁴ On appeal, Teal argued that the State failed to prove the elements listed in the “to convict” instruction because it referred only to the acts of the “defendant” and not to the acts of the “defendant or an accomplice,” and no evidence existed that Teal was the principal in the robbery. The Court of Appeals disagreed with this argument but reversed Teal’s conviction.⁵ The court reasoned that it was permissible to convict Teal as an accomplice but that the accomplice liability instruction was erroneous in referring to “a crime” rather than “the crime” because it could have led the jury to convict Teal as an accomplice to the drug deal rather than to the robbery for which he was charged. The Court of Appeals remanded for a new trial to correct the accomplice instruction.

The State did not seek review of the Court of Appeals’ decision.⁶ Teal, however, petitioned this court for review on the basis that his first degree robbery charge should be dismissed. We accepted review to determine whether, despite the erroneous accomplice liability instruction, sufficient evidence existed to convict Teal of first degree robbery.

ANALYSIS

In a criminal prosecution the State bears the burden of proving all of the elements of the crime charged. A reviewing court will reverse a conviction for insufficient evidence only if no rational trier of fact could find that the State met its burden.

In this case, Teal argues that insufficient evidence existed to convict him of first degree robbery because the State failed to prove that his conduct established the elements of the crime as set forth in the “to convict” jury instruction; this instruction referred only to the acts of the “defendant” and not to the acts of the “defendant or an accomplice.” Teal asks this court to dismiss his conviction.

Teal cites to State v. Hickman, 135 Wn.2d 97, 954 P.2d 900 (1998), in support of his argument. In Hickman, the “to convict” jury instruction added venue as an additional element for the jury to consider by indicating that the crime occurred in Snohomish County. Venue was not an element of the crime for which Hickman was charged. Hickman argued that, by adding venue to the instruction, the State assumed the burden of proving that element beyond a reasonable doubt. We agreed with this argument and held that added elements become the law of a case when they are included in jury instructions and that a defendant may challenge the sufficiency of the evidence of an added element. We dismissed Hickman’s conviction for insufficient evidence because the State failed to meet its burden of proving venue as an additional element of the crime for which Hickman was charged.

Hickman is distinguishable from this case for two reasons. First, Hickman does not address the issue of accomplice liability. Second, Hickman involved the State’s failure to prove an added element of the crime charged in the “to convict” jury instruction, requiring Hickman’s conviction to be dismissed for insufficient evidence. In this case we must determine whether sufficient evidence existed to convict Teal of the crime charged.

As mentioned, Teal argues that the State failed to prove all the elements of first degree robbery for lack of sufficient evidence because it omitted the language, “or an accomplice,” from the “to convict” instruction. Teal maintains that by failing to include this language, the State was required to prove that the defendant’s conduct established all the elements of the crime without referring to the conduct of an accomplice.

Teal specifically argues that when a “to convict” instruction refers only to the conduct of the “defendant,” and not to the conduct of the “defendant or an accomplice,” accomplice liability is beyond the scope of the jury instruction. According to Teal, the State would be required to prove that the defendant committed all the elements of the crime for which he was charged without reference to accomplice liability. In this case, then, the State would have been required to prove beyond a reasonable doubt that Teal used, or threatened to use, force during the commission of the alleged robbery. Since insufficient evidence existed to prove this element, Teal argues his conviction should be dismissed. The Court of Appeals correctly rejected this argument.

Although a “to convict” instruction must provide a complete statement of the elements of the crime charged, accomplice liability is not an element of the crime for which Teal was charged, nor is accomplice liability an element of, or alternative means of, committing a crime. In State v. Carothers, 84 Wn.2d 256, 261, 525 P.2d 731 (1974), we held that complicity was not an element of the crime for which the defendant was charged, nor an alternative method to committing the crime.

We also agreed with the trial court’s jury instruction that it need not reach unanimity on whether a defendant acted as a principal or an accomplice in the crime for which the defendant was charged, so long as “it was convinced that the alleged crimes were committed and that the [defendant] participated in each of them.” Carothers, 84 Wn.2d at 261. The trial court specifically instructed the jury that when a person is involved in the commission of a felony, whether they directly committed the offense or aided in its commission, that person is a principal and shall be prosecuted as such. Thus, the elements of a crime are considered the same for a principal and an accomplice.

The rule requiring that all elements of a crime be listed in a single instruction is not violated when accomplice liability is described in a separate instruction. See State v. Emmanuel, 42 Wn.2d 799, 819, 259 P.2d 845 (1953). Here, the Court of Appeals correctly determined that jury instructions are sufficient when, read as a whole, they accurately state the law, do not mislead the jury, and permit each party to argue its theory of the case. In reading the jury instructions as a whole, including the court’s erroneous accomplice liability instruction, the jury could decide Teal’s guilt or innocence as an accomplice to first degree robbery.

Teal also argued that the plea agreement he agreed to in connection with his 1996 attempted robbery conviction prohibited the use of that conviction for sentencing as a persistent offender. Teal raised this same argument in an appeal for a different conviction. The Court of Appeals in that case rejected the argument and we denied review. Since Teal’s conviction is reversed in this case, any issue regarding the validity of his prior convictions can be raised if Teal is convicted on remand.

We affirm the Court of Appeals.

Alexander, C.J., and Madsen, Ireland, Bridge, Chambers, Owens, and Fairhurst, JJ., concur.

1 State v. Teal, 117 Wn. App. 831, 843, 73 P.3d 402 (2003).

2 The court accepted the State’s “to convict” instruction and the record reveals that the defense proposed an identical instruction. CP at 79. Both instructions referred to acts of the “defendant” and not to acts of the “defendant or an accomplice.”

3 While the better practice in a case prosecuted on the theory of accomplice liability might be to include the language “the defendant or an accomplice” in a “to convict” instruction, we find no case authority or basis to conclude that the failure to include this language creates an additional element to the charged crime where accomplice liability is not an element of that crime. See State v. Haack, 88 Wn. App. 423, 427, 958 P.2d 1001 (1997), review denied, 134 Wn.2d 1016 (1998).

4 At sentencing, the State presented evidence of two prior convictions that constituted strikes under the Persistent Offender Accountability Act (POAA). As a result, the trial court determined that Teal was a persistent offender and imposed a life sentence without the possibility of parole. CP at 9-18.

5 The court also rejected Teal’s argument that his three strikes sentence was unlawful. Teal, 117 Wn. App. at 846.

6 The State has conceded that the accomplice liability instruction was erroneous under our holding in State v. Cronin, 142 Wn.2d 568, 14 P.3d 752 (2000), and that a new trial is needed.