State Of Washington, Resp. v. Brandon Pamon, App. ( 2016 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 72803-2-1
Respondent,
DIVISION ONE
v.
BRANDON CHRISTOPHER PAMON, UNPUBLISHED OPINION
Appellant. FILED: April 18,2016
Leach, J. — Brandon Pamon appeals from his conviction for attempted
robbery in the first degree. He contends that the State violated his constitutional right
to jury unanimity by failing to prove both alternative means of attempted robbery in
the first degree. But Pamon fails to persuade the court that attempted robbery in the
first degree is an alternative means offense. Nor has Pamon shown that the trial
court abused its discretion in prohibiting him from consuming or possessing
marijuana as a condition of community custody. Pamon's statement of additional
grounds for review raises no meritorious issues. We affirm.
FACTS
Geoffrey Vincent, a student at Seattle University, attended a band concert at a
bar near the campus. Vincent left the bar at about 1:00 a.m. and started walking
back to his apartment. As he approached 10th and Pike, Vincent walked past two
young males and one female who were standing on the corner.
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A short time after entering the Seattle University campus near 10th and
Madison, Vincent heard "some quick steps coming up behind me, like someone
running." Before Vincent could react, someone grabbed him from behind and started
hitting him in the head and chest.
Vincent eventually fell to the ground, and the assault continued. Vincent
noticed a second person was also hitting him. Someone asked Vincent what he had
on him and started rifling through his pockets.
Vincent saw one of the assailants, later identified as K.M., a juvenile, holding a
knife. Vincent discreetly reached into his pocket and pulled out a pocketknife. After
opening the knife, Vincent jabbed K.M. in the thigh. At this point, K.M. and the other
male, later identified as Brandon Pamon, backed away. Vincent recognized the two
males as the ones he passed earlier on the corner; the same young female stood
about 30 feet away.
After Vincent struggled to his feet, K.M. walked up and stabbed him in the
chest. K.M., Pamon, and the young woman then ran away.
Vincent sought help at a nearby campus emergency call box. Campus
personnel responded and called for paramedics. The paramedics took Vincent to
Harborview Medical Center, where surgeons repaired a collapsed lung and
punctured artery and right atrium.
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The State charged Pamon with assault in the first degree and attempted
robbery in the first degree and asserted a deadly weapon enhancement for each
count. The court also instructed the jury on accomplice liability.
At trial, C.H., a juvenile, testified that she had been with K.M. and Pamon
before the assault. She overheard a conversation between K.M. and Pamon
indicating that they might be planning a robbery. At some point, C.H. saw K.M. and
Pamon running after a man near the Seattle University campus. The man then
ended up on the ground, with K.M. and Pamon punching him. After the man on the
ground got up and pulled a knife, C.H. saw K.M. stab him. Pamon, K.M., and C.H.
then ran off.
The jury found Pamon guilty as charged of attempted robbery in the first
degree. The jury acquitted Pamon of assault in the first degree and found that he
was not armed with a deadly weapon during the attempted robbery.
The trial court imposed a high-end standard range sentence of 76.5 months of
confinement and 18.0 months of community custody. As a condition of community
custody, the court prohibited Pamon from possessing or consuming marijuana.
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ANALYSIS
Alternative Means
Pamon contends that the State violated his right to jury unanimity by failing to
present sufficient evidence of both alternative means of committing attempted
robbery in the first degree. Pamon provides no relevant legal argument to support
this claim.
Article I, section 21 of the Washington Constitution guarantees a criminal
defendant the right to a unanimous jury verdict. "This right may also include the right
to a unanimous jury determination as to the means by which the defendant
committed the crime when the defendant is charged with (and the jury is instructed
on) an alternative means crime."1 Generally, an alternative means crime "is one by
which the criminal conduct may be proved in a variety of ways."2 But "a defendant
may not simply point to an instruction or statute that is phrased in the disjunctive in
order to trigger a substantial evidence review of [his] conviction."3
"When a crime can be committed by alternative means, express jury unanimity
as to the means is not required where each of the means is supported by substantial
1 State v. Owens. 180 Wash. 2d 90, 95, 323 P.3d 1030 (2014).
2 Owens. 180Wn.2dat96.
3 State v. Smith, 159 Wash. 2d 778, 783, 154 P.3d 873 (2007).
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evidence."4 In this circumstance, "we infer that the jury rested its decision on a
unanimous finding as to the means."5 If there is insufficient evidence to support any
of the alternative means, "a particularized expression of jury unanimity is required."6
Pamon's arguments rely primarily on the assertion that "[fjirst degree robbery
is an alternative means crime." But the State charged Pamon with attempted first
degree robbery.
"An attempt crime contains two elements: intent to commit a specific crime
and taking a substantial step toward the commission of that crime."7 Thus, the trial
court's "to convict" instruction correctly required the State to prove (1) that Pamon
"did an act that was a substantial step toward the commission of Robbery in the First
Degree" and (2) that "the act was done with the intent to commit Robbery in the First
Degree." (Emphasis added.)
Pamon notes that the trial court also instructed the jury: "A person commits
the crime of robbery in the first degree when in the commission of a robbery or in
immediate flight therefrom he or she is armed with a deadly weapon or inflicts bodily
injury." He argues that because the evidence was insufficient to establish one of the
4 State v. Gonzales, 133 Wash. App. 236, 243, 148 P.3d 1046 (2006).
5 State v. Ortega-Martinez, 124 Wash. 2d 702, 708, 881 P.2d 231 (1994).
6 Owens, 180Wn.2dat95.
7 State v. DeRvke, 149 Wash. 2d 906, 910, 73 P.3d 1000 (2003); see also RCW
9A.28.020(1).
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No. 72803-2-1/6
alternative means—that Vincent "sustained bodily injury during the commission of the
attempted robbery"—the State violated his right to jury unanimity.
In order to establish attempted robbery in the first degree, the State was
required to prove that Pamon took a substantial step with the intent to commit
robbery in the first degree. The relevant intent for an attempt offense "is the intent to
accomplish the criminal result of the base crime."8 The definition of the base crime
provides the requisite criminal result.9 "A substantial step is an act that is 'strongly
corroborative' of the actor's criminal purpose."10 Given the elements of an attempt
offense, Pamon fails to demonstrate the relevance of the State's alleged failure to
prove beyond a reasonable doubt that Vincent sustained bodily injury during the
attempted robbery.
In summary, Pamon has provided no authority or legal analysis addressing the
application of alternative means to the elements of attempt crimes in general. Nor
has he addressed the relevance of the alternative means of committing robbery in the
first degree to the elements of the charged offense of attempted robbery in the first
8 State v. Johnson, 173 Wash. 2d 895, 899, 270 P.3d 591 (2012).
9 DeRvke, 149 Wash. 2d at 913.
10 Johnson, 173 Wash. 2d at 899 (quoting State v. Luther, 157 Wash. 2d 63, 78, 134
P.3d 205 (2006)).
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degree. We therefore reject Pamon's claim that the trial court denied his right to jury
unanimity.11
Community Custody Condition
Pamon challenges a community custody condition that prohibits him from
possessing or consuming marijuana. He claims no evidence established that his use
of marijuana was crime related or that it contributed to the offense. When imposing
the condition, the trial court commented that "there was testimony that that was part
of the issue, just the selfish greed for money to get marijuana."
RCW 9.94A.703 authorizes the sentencing court to impose certain conditions
of community custody, including ordering the defendant to comply "with any crime-
related prohibitions."12 A crime-related prohibition means "an order of a court
prohibiting conduct that directly relates to the circumstances of the crime for which
the offender has been convicted."13 We review a trial court's imposition of crime-
related prohibitions for an abuse of discretion.14
11 See RAP 10.3(a)(4), (6); Norcon Builders. LLC v. GMP Homes VG, LLC,
161 Wash. App. 474, 486, 254 P.3d 835 (2011) (declining to consider an inadequately
briefed argument).
12 RCW 9.94A.703(3)(f).
13RCW9.94A.030(10).
14 State v. Warren, 165 Wash. 2d 17, 32, 195 P.3d 940 (2008).
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C.H. testified that when she met up with Pamon and K.M. before the assault,
the three of them "decided to smoke . . . [wjeed, marijuana." K.M. and Pamon later
said "something about, 'We're going to go do something.'" C.H. acknowledged that
the two were possibly talking about a robbery. K.M. also "said something about him
needing money to get weed."
Although C.H.'s testimony was relatively vague and did not attribute specific
words to Pamon, she indicated the conversations she overheard were between K.M.
and Pamon. Viewed together, Pamon's smoking of marijuana and his apparent
participation in conversations about committing a possible robbery and the need to
get money for marijuana, followed by his participation in an attempted robbery,
support a reasonable inference that possession or consumption of marijuana had a
direct relation to the charged offense. Pamon fails to demonstrate that the trial court
abused its discretion in imposing this community custody condition.
Statement of Additional Grounds for Review
In his statement of additional grounds for review, Pamon contends that
insufficient evidence supports his conviction because the jury found him not guilty of
assault in the first degree and not armed with a deadly weapon. He argues that the
evidence was "therefore minus two elements of the charge of robbery in the first
degree and [there was] no jury instruction of lesser charges."
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But as already indicated, the State charged Pamon with attempted robbery in
the first degree, not first degree robbery. The court also instructed the jury on
accomplice liability. Consequently, the jury's verdicts on assault in the first degree
and the deadly weapon enhancement did not undermine the sufficiency of the
evidence to support Pamon's conviction.
Pamon also claims that the trial court's reasonable doubt instruction, which
was based on Washington Pattern Jury Instruction: Criminal 4.01,15 was
constitutionally deficient. Pamon concedes, however, that our Supreme Court has
repeatedly directed trial courts to use WPIC 4.01 to instruct juries on the burden of
proof and the definition of reasonable doubt.16 In State v. Kalebaugh. the Supreme
Court recently reaffirmed that WPIC 4.01 was "the correct legal instruction on
reasonable doubt."17 Pamon's challenge to WPIC 4.01 must therefore be directed to
our Supreme Court.
15 11 Washington practice: Washington Pattern Jury Instructions:
Criminal 4.01, at 85 (3d ed. 2008) (WPIC).
16 See State v. Bennett. 161 Wash. 2d 303, 318, 165 P.3d 1241 (2007); see also
State v. Castillo. 150 Wash. App. 466, 469, 208 P.3d 1201 (2009).
17 183 Wash. 2d 578, 586, 355 P.3d 253 (2015).
No. 72803-2-1/10
Affirmed.
WE CONCUR:
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