State Of Washington, V Nainoa Kekai Fontaine ( 2014 )

OUP 1 OF APPEALS
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2014 MAR - 4 AVI 9., 20
STATE OF WASE- INIGTO --
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4- u TY_,
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 43471 -7 -II
Respondent,
V.
NAINOA KEKAI FONTAINE, UNPUBLISHED OPINION
JOHANSON, A. C. J. — Nainoa Kekai Fontaine appeals his jury trial conviction for first
degree robbery.' He argues that ( 1) the trial court' s " nonstandard" jury instruction, which
in
omitted - sentence required -
a 11- -Washington Practice: Washington Pattern Jury Instructions:
Criminal 4. 01, at 85 ( 3d ed. 2008) ( WPIC), failed to inform the jurors that he did not have the
burden to prove reasonable doubt; and ( 2) Washington' s complicity statute, RCW 9A.08. 020, is
unconstitutionally overbroad because it criminalizes speech that is protected under the First
Amendment. He further argues that he can raise both of these errors for the first time on appeal
because they are manifest errors affecting constitutional rights. Fontaine does not establish that
the trial court' s failure to inform the jurors that he did not have the burden to prove reasonable
doubt was a manifest constitutional error; accordingly, we decline to address this issue. And
Fontaine does not challenge his first degree rendering criminal assistance conviction.
No. 43471 -7 -II
Fontaine' s' challenge to the accomplice liability statute fails under State v. Ferguson, 164 Wn.
App. 370, 264 P.3d 575 ( 2011), review denied, 173 Wash. 2d 1035 ( 2012). Accordingly, we
affirm.
FACTS
I. BACKGROUND
On January 7, 2012, Fontaine was living with fellow heroin users Donald Francis Gault
and Gault' s fiancee, Heather Inks. After running out of heroin and starting to experience
withdrawal symptoms that morning, Fontaine. contacted Jaffeney Gohl by text and asked her to
bring some heroin to the house. Gohl agreed to sell Fontaine some heroin and brought Beau
Hymas with her to Gault' s home; Hymas had planned to purchase a television from Gault for
Stephen Santella and was carrying money Santella had given him for the television.
When Gohl and Hymas entered Gault' s house, Gault met them in the living room with
2 3
what appeared to be a gun, pointed the gun at them, and demanded the drugs and money.
Fontaine then came out of his bedroom, which was just inside the home' s front door, and
blocked the exit.- According to Gohl, she " hand[ ed] over the dope" to Gault or Fontaine and
Hymas handed his wallet to Fontaine who left $ 100 in the wallet and returned it to Hymas. 1
Report of Proceedings ( RP) at 53. According to Hymas, Fontaine told them to empty their
pockets and to give him the money. Fontaine then took all but $ 100 out of the wallet and
2
The gun was actually an " air pistol." 2 Report of Proceedings ( RP) at 137. But Gohl thought it
was a real gun, and Hymas thought it was a real gun until just before leaving the house.
3
Shortly before Gohl and Hymas arrived, Gault told Inks to go to their bedroom because he did
not want her to witness a crime.
FA
No. 43471 -7 -11
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returned it to Hymas. Fontaine moved away from the door, and Gohl and Hymas left. Fontaine,
Gault, and Inks split the heroin and the money.
Soon after leaving Gault' s house, Gohl and Hymas reunited with Santella at a local store
and told him about the robbery; he insisted they take him to Gault' s house so he could recover
his money.. When they arrived at Gault' s house, Gault came outside and Santella and Hymas
fought with him on the porch where Gault stabbed Santella with a knife. Fontaine came out of
the house and helped to break up the fight. Hymas and Santella left, Gohl drove them back to
the store, and Santella' s girlfriend took him to the hospital. Someone called the police, and the
police determined that the stabbing had occurred at Gault' s house.
When the police arrived at Gault' s house to investigate the stabbing, Fontaine came
outside to talk to them. He told the officers that he was just visiting, that Gault and Inks were
inside the house, and that two men had arrived at the house and had started a fight; he did not
mention the drugs or the robbery. The officers told him that he was free to go, but Fontaine did
not leave.
After unsuccessfullytrying to-contact Gault or Inks by telephone, -the officers sought a
search warrant to allow them to search for Gault and for evidence related to the stabbing. When
the officers obtained the search warrant about four hours later, they broke down the door; Gault
and Inks were inside.
While interviewing Gault and Inks about the stabbing, the officers learned about the
robbery and Fontaine' s participation in it. The officers also learned that Fontaine had been
texting Gault while the officers were waiting for the search warrant. In these texts, Fontaine told
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Gohl did not remember who took the money and drugs.
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No. 43471 -7 -II
Gault that the officers were seeking a search warrant, suggested that Gault flee via a bedroom
window, and told Gault what he ( Fontaine) had told the officers about the stabbing.
II. PROCEDURE
A. TRIAL TESTIMONY
The State charged Fontaine with first degree robbery and first degree rendering criminal
assistance, The case proceeded to a jury trial. The State' s witnesses testified as described
above. Fontaine was the sole defense witness.
Gault, who testified for the State, testified that he alone planned the robbery and denied
having discussed his robbery plan with Fontaine. But he also admitted that he had told Fontaine
that he had arranged for Hymas and Gohl to come over with some drugs and that he " made"
Fontaine take the money from Hymas and Gohl. Gault further testified that he expected Fontaine
to participate in the robbery because Fontaine was living in his house, that Fontaine took both the
money and the drugs from Hymas and Gohl, and that he ( Gault) shared the money and drugs
with Fontaine after the robbery. The State also played a recorded statement Gault had given the
police- in which Gault told the officer that he ( Gault) had discussed the- robbery with Fontaine - - -
before it happened and that Fontaine participated in the robbery.
Fontaine denied knowing about Gault' s robbery plans and, although he admitted that he
came out of his room and was standing in his doorway at the time of the robbery, he denied
having taken the money or drugs from Gohl or Hymas despite Gault' s demanding that he do so.
5
RCW 9A.56. 200( 1)( a)( ii).
6 RCW 9A.76. 070( 1).
7 Gault pleaded guilty to first degree robbery and second degree assault with a deadly weapon
enhancement.
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No. 43471 -7 -II
Fontaine admitted to having texted Gault and attempting to help Gault escape while the officers
were waiting for the search warrant, but he asserted that he did not know at the time that he was
committing a felony.
B. JURY INSTRUCTIONS
The trial court gave the jury the following reasonable doubt/burden instruction, which
was based on WPIC 4. 01:
The defendant has entered pleas of not guilty. Those pleas put in issue
every element of each crime charged. The State is the plaintiff and has the burden
of proving each element of each crime beyond a reasonable doubt.
A defendant is presumed innocent. This presumption continues
throughout the entire trial unless during your deliberations you find it has been
overcome by the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise from
the evidence or lack of evidence. It is such a doubt as would exist in the mind of
a reasonable person after fully, fairly, and carefully considering all of the
evidence or lack If, after such consideration, you have an abiding
of evidence.
belief in the truth of the charge, you are satisfied beyond a reasonable doubt.
Clerk' s Paper ( CP) at 9 - 10. This instruction was identical to WPIC 4. 01 except it omitted the
last sentence of the first paragraph, which reads, " The defendant has no burden of proving that a
reasonable doubt exists [ as to these elements]."
The trial court also gave the following accomplice liability instruction:
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 the 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 or she
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 and
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No. 43471 -7 -II
ready to assist by his or her presence is aiding in the commission of the 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.
CP at 12 -13. No one objected to any of the trial court' s jury instructions.
The jury convicted Fontaine of first degree robbery and first degree rendering criminal
assistance. Fontaine appeals his first degree robbery conviction.
ANALYSIS
I. BURDEN OF PROOF INSTRUCTION
For the first time on appeal, Fontaine argues that the trial court' s burden of proof
instruction deprived him of due process because it failed to advise the jury that he had no burden
to prove that a reasonable doubt existed. He contends that by omitting the sentence from WPIC
4. 01 that stated, " The defendant has no burden of proving that a reasonable doubt exists [ as to
these elements]," the trial court violated our Supreme Court' s directive that the trial courts use
WPIC 4. 01 and that this omission was a manifest constitutional error. We hold that this error is
not manifest.
A. MANIFEST CONSTITUTIONAL ERROR STANDARD
Generally, an appellate court may refuse to entertain a claim of error not
raised before the trial court. RAP 2. 5( a). An exception exists for a claim of
manifest error affecting a constitutional right. Id. In order to benefit from this
exception, " the appellant must `` identify a constitutional. error and show how the
actually affected the [ appellant]' s rights at trial. "' State v. O' Hara,
alleged error
167 Wash. 2d 91, 98, 217 P.3d 756 ( 2009) ( alteration in original) ( quoting State v.
Kirkman, 159 Wash. 2d 918, 926 -27, 155 P.3d 125 ( 2007)). A constitutional error is
manifest if the appellant can show actual prejudice, i.e., there must be a
plausible showing by the [ appellant] that the asserted error had practical and
identifiable consequences in the trial of the case. "' Id. at 99, 217 P.3d 756
alteration in original) ( quoting Kirkman, 159 Wash. 2d at 935, 155 P.3d 125). If an
error of constitutional magnitude is manifest, it may nevertheless be harmless. Id.
The burden of showing an error is harmless remains with the' prosecution.
Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 ( 1967)
establishing State' s burden to show harmless error beyond a reasonable doubt).
No. 43471 -7 -II
State v. Gordon, 172 Wash. 2d 671, 676, 260 P.3d 884 ( 2011) ( emphasis added).
B. WPIC 4. 01
In State v. Bennett, our Supreme Court directed the trial courts to use only WPIC 4.01 " to
inform the jury of the government' s burden to prove every element of the charged crime beyond
a reasonable doubt." 161 Wash. 2d 303, 318, 165 P.3d 1241 ( 2007). WPIC 4. 01 describes the
State' s burden as follows, enclosing in brackets those portions that are used in particular
circumstances:
The] [ Each] defendant has entered a plea of not guilty. That plea puts in
issue every element of [the] [ each] crime charged. The [ State] [ City] [ County] is
the plaintiff and has the burden of proving each element of [ the] [ each] crime
beyond a reasonable doubt. The defendant has no burden of proving that a
reasonable doubt exists [ as to these elements].
A defendant is presumed innocent. This presumption continues
throughout the entire trial unless during your deliberations you find it has been
overcome by the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise from
the evidence or lack of evidence. It is such a doubt as would exist in the mind of a
reasonable person after fully, fairly, and carefully considering all of the evidence
or lack of evidence. [ If, from such consideration, you have an abiding belief in
the truth of the charge, you are satisfied beyond a reasonable doubt.]
Emphasis added.) The trial court' s instruction omitted the last sentence of the first paragraph.$
The trial court' s omission of a portion of WPIC 4. 01 is clearly error. See State v. Castillo, 150
Wash. App. 466, 473, 208 P.3d 1201 ( 2009).
C. NO MANIFEST CONSTITUTIONAL ERROR
Even though the trial court erred in omitting a portion of WPIC 4. 01, for purposes of
RAP 2. 5( a), Fontaine must also show that this error was of constitutional magnitude and that it
8 The instruction the State proposed conformed to WPIC 4. 01 and included the sentence the final
instruction omitted. The record does not explain why the trial court omitted this sentence in its
final instruction.
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No. 43471 -7 -II
had practical and identifiable consequences in the trial of the case."' O' Hara, 167 Wash. 2d at 99
internal quotation marks omitted) ( quoting Kirkman, 159 Wash. 2d at 935). Even presuming, but
not deciding, that this error was of constitutional magnitude, Fontaine fails to show that the error
had practical and identifiable consequences.9
Despite omitting this sentence, the trial court' s reasonable doubt instruction correctly and
clearly instructed the jury that it was the State' s burden to prove each element of each. crime and
that Fontaine was presumed innocent. There was no language in any of the court' s instructions
suggesting Fontaine had any responsibility to establish reasonable doubt. And throughout his
closing argument, defense counsel repeatedly advised the jury that Fontaine did not have any
burden of proof. Moreover, Fontaine does not point to, nor can we discern, anything in the trial
court' s oral instructions to the jury or the State' s argument that remotely suggests Fontaine had
the burden of presenting any evidence or rebutting the State' s evidence. 10 Given the instructions
and argument as a whole, we hold that Fontaine does not show that the trial court' s omission had
any practical or identifiable consequences on this trial. Accordingly, we decline to address this
issue further: RAP 2. 5( a). -
9 We recognize that the Castillo court reversed based on a nonstandard reasonable doubt
instruction that contained an error similar to the one here. 150 Wash. App. at 473, 475. But
Castillo is distinguishable because ( 1) the defendant objected to the improper instruction, and ( 2)
the instruction at issue also contained several additional errors. 150 Wash. App. at 467, 470, 473-
75. Additionally, the Castillo court never analyzed whether the language omitted here was
constitutionally required; it merely determined that the absence of this language did not improve
the required language in WPIC 4. 01. 150 Wash. App. at 473.
to
In fact, defense counsel' s argument suggests that at the start of the case, the trial court advised
Fontaine had burden. this the transcribed.
the jury that no Unfortunately, part of record was not
No. 43471 -7 -II
II. ACCOMPLICE LIABILITY
Fontaine next argues that Washington' s complicity statute, RCW 9A. 08. 020, is
unconstitutionally overbroad because it criminalizes speech that is protected under the First
Amendment. 11 He asks us to overrule our decision rejecting this identical argument. in Ferguson
and to reject the analysis in Division One of this court' s decision in State v. Coleman, 155 Wn.
App. 951, 231 P.3d 212 ( 2010), review denied, 170 Wash. 2d 1016 ( 2011). Even assuming, but not
deciding, that Fontaine can raise this argument for the first time on appeal, this argument fails.
Under RCW 9A.08. 020( 3)( a), a person is guilty as an accomplice if "[w]ith knowledge
that it will promote or facilitate the commission of the crime, he or she ... ( ii) [a] ids or agrees to
aid such other person in planning or committing it." Fontaine argues that by including assistance
given by words or encouragement, the definition of "aid" in the Washington accomplice liability
12
instruction criminalizes a vast amount of speech that the First Amendment protects.
pattern jury
A statute is unconstitutionally overbroad if it prohibits a substantial
amount of protected speech and conduct. City of Seattle v. Huff, 111 Wash. 2d 923,
925, 767 P.2d 572 ( 1989). A statute that regulates behavior, not pure speech, will
not be overturned " unless the overbreadth is `` both real and substantial in relation
to the [ statute' s] plainly legitimate sweep."' City ofSeattle v. Eze; 111 Wash. 2d 22;
31, 759 P.2d 366 ( 1988) ( quoting O' Day v. King County, 109 Wash. 2d 796, 804,
749 P.2d 142 ( 1988)). The constitutional guarantee of free speech does not allow
a State to forbid the advocacy of a law violation " except where such advocacy is
11
The First Amendment provides in part that "[ c] ongress shall make no law ... abridging the
freedom of speech." U. S. CONST. amend. I. The First Amendment applies to the states through
the Fourteenth Amendment. Kistap County v. Mattress Outlet, 153 Wash. 2d 506, 511, 104 P.3d
1280 ( 2005).
12
The Washington Pattern Jury Instruction provided to the jury here defines " aid" as follows:
The word " aid" means all assistance whether given by words, acts,
encouragement, support or presence. A person who is present at the scene and
ready to assist by his or her presence is aiding in the commission of the 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.
CP at 13; see also 11 WPIC 10. 5 1, at 217 ( 3d ed. 2008).
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No. 43471 -7 -II
directed to inciting or producing imminent lawless action and is likely to incite or
produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827,
23 L. Ed. 2d 430 ( 1969).
Ferguson, 164 Wn. App. at 375. In Coleman, Division One of this court held that the
accomplice liability statute was not unconstitutionally overbroad because it " requires the
criminal mens rea to aid or agree to aid the commission of a specific crime with knowledge the
aid will further the crime," thus showing that the speech at issue was intended to and was likely
to produce or incite imminent lawless action. 155 Wn. App. at 960 -61. We adopted this
reasoning in Ferguson. 164 Wash. App. at 376.
Fontaine acknowledges Ferguson and Coleman, but he argues that the courts decided
these cases incorrectly ( and, therefore, we should reconsider these cases) because the courts'
reliance on the mens rea requirement does not meet the federal Brandenburg standard. But in
Ferguson, we addressed the Brandenburg standard and concluded that "[ b] ecause the
accomplice liability] statute' s language forbids advocacy directed at and likely to incite or
produce imminent lawless action, it does not forbid the mere advocacy of law violation that is
protected under the holding of Brandenburg.`` 164 Wn. App•- at 376. We once again reject this
constitutional challenge. See also State v. McCreven, 170 Wash. App. 444, 484 -85, 284 P.3d 793
2012) ( rejecting the same argument and following Ferguson), review denied, 176 Wash. 2d 1015
2013).
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No. 43471 -7 -II
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 in accordance with RCW
2. 06. 040, it is so ordered.
4.
ri J,
HANSON, A.C. J.
We concur:
BRGE,?;J
I
MAXA, J. ,
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