State Of Washington, V James Wilford, Jr. ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
March 23, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53912-8-II
Respondent,
v.
JAMES WILFORD, JR., UNPUBLISHED OPINION
Appellant.
LEE, C.J. — James Wilford Jr. appeals his conviction for first degree burglary with a
firearm sentencing enhancement,1 arguing that the trial court erred by instructing the jury on
accomplice liability. Because there was sufficient evidence to support a jury instruction on
accomplice liability, the trial court did not abuse its discretion. Accordingly, we affirm Wilford’s
conviction.
FACTS
A. PROCEDURAL HISTORY
On February 7, 2018, the State charged Wilford with first degree burglary with a firearm
sentencing enhancement, two counts of theft of a firearm, second degree unlawful possession of a
firearm, and second degree theft while armed with a firearm. The trial court twice allowed the
State to amend the information to include a charge of bail jumping and to conform the information
to the evidence.
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Wilford was also convicted of second degree unlawful possession of a firearm and bail jumping,
but he does not appeal these convictions.
No. 53912-8-II
B. TRIAL, VERDICT, AND SENTENCING
Officer Bill Smith is a K-9 officer with the City of Olympia Police Department. Officer
Smith testified that on February 4, 2018, he responded to a burglar alarm at an address on Frederick
Street Southwest. When Officer Smith arrived at the address, he noted that the front door was
open and a person was in the yard looking out over the fence. Officer Smith observed the person
crawl over the fence into a field. Officer Smith described the person as wearing a gray sweatshirt,
dark pants, and dark hair or a beanie. The person moved toward the woods.
After Officer Smith determined that there was no one in the house, he began preparations
to conduct a track with his police dog. Officer Smith began a track into the woods towards a trail.
While Officer Smith was conducting the track, he learned that Officer Adam Allison of the City
of Olympia Police Department had contacted a suspect approximately a block away from the
burglary address. Officer Allison identified Wilford as the person he stopped.
Officer Smith contacted Officer Allison and confirmed that the suspect matched the
description of the person Officer Smith had seen climb over the fence. Officer Smith terminated
the K-9 track and went to Officer Allison’s location. Officer Smith identified the suspect in
custody as the person he saw climb over the fence. Officer Smith also noted that the suspect’s
clothes were wet and dirty.
Officer Allison testified that when he stopped Wilford, Wilford was breathing heavily.
Wilford’s clothes were wet, and had mud and foliage on them. Wilford’s appearance was
consistent with the conditions of the area where the suspect was being tracked. When Officer
Allison conducted a pat-down search of Wilford, he felt a bag, a tablet, and a jewelry box in
Wilford’s sweatshirt pockets. The bag could be seen without removing it from Wilford’s pocket.
Wilford’s pocket was photographed so the purse could be shown to the burglary victim. Wilford
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was arrested for burglary. When Officer Allison transported Wilford to the jail, Wilford said, in
an unsolicited statement, “You guys caught me.” 1 Verbatim Report of Proceedings (VRP) (June
25, 2019) at 75.
Officer Josh Marcuson of the City of Olympia Police Department also responded to the
burglary at Frederick Street. Officer Marcuson testified that while at the house, he observed
several items outside, including boxes and a television. When Officer Marcuson entered the house,
he observed drawers that had been pulled out, property strewn about the home, and items on the
bed. These were typical observations in burglary cases.
Officer Marcuson contacted the homeowner, Kaila Sweeney. Sweeney was outside of the
area at the time and unable to return home immediately. Officer Marcuson confirmed with
Sweeney that her house was generally cleaned up and was not left in its current condition.
A short time later, Officer Marcuson learned that Officer Allison had located a suspect in
the burglary. Officer Marcuson identified Wilford as the person Officer Allison had detained.
When Officer Marcuson saw Wilford, he could see items bulging out of his sweatshirt pocket.
Officer Marcuson also observed that Wilford’s clothing was wet, “kind of like maybe he’d been
in the woods or laying down.” 1 VRP (June 25, 2019) at 125. And Officer Marcuson saw a white
bag or purse in Wilford’s sweatshirt pocket. Officer Marcuson took a picture of the bag in
Wilford’s pocket and sent it to Sweeney. Sweeney confirmed that it was her bag through a text
message.
When Officer Marcuson later returned to the house, he learned that a .22 caliber Smith &
Wesson firearm was unaccounted for. Officer Marcuson was able to locate the Smith & Wesson
in a tote bag with the items that were left outside of the house. The Smith & Wesson firearm was
loaded.
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Deputy Andrew Hansen of the Thurston County Sheriff’s Office worked for the City of
Olympia Police Department prior to February 2019. Deputy Hansen testified that he responded to
Officer Allison’s location to assist with the suspect. Deputy Hansen identified Wilford as the
suspect Officer Allison had detained. Deputy Hansen recovered several items from Wilford’s
person that belonged to Sweeney.
Sweeney testified that she owned the residence at Frederick Street. Sweeney had an alarm
system that would alert the police if it was activated. On February 4, 2018, Sweeney was contacted
by the police regarding an incident at her house. Based on the description of the condition of her
house the police gave her, it was apparent someone had been in the house. She also identified
some property that belonged to her through text messages with the police. Her television was in
the front yard, but she had not left it there. Sweeney had two firearms in the house—a .9 millimeter
Ruger semiautomatic handgun and a .22 caliber Smith & Wesson revolver. Both firearms were
working and operational. Sweeney did not know Wilford, and she never gave Wilford permission
to have any of her property or her firearms.
During the trial, the State proposed an accomplice liability instruction, which stated:
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 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
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.
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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.
Clerk’s Papers (CP) at 83. The State argued that the instruction was appropriate because “the
defense is gonna try to argue during this case . . . that, well, no one saw Mr. Wilford in the house,
so he can’t be guilty of the burglary.” 2 VRP (July 1, 2019) at 153. Wilford objected to including
an accomplice liability instruction because “there has been zero evidence produced that Mr.
Wilford acted as an accomplice to another person.” 2 VRP (July 1, 2019) at 161. Wilford also
argued that the instruction would be confusing to the jury. The trial court gave the accomplice
liability instruction to the jury.
The jury found Wilford guilty of first degree burglary with a firearm sentencing
enhancement, unlawful possession of a firearm, one count of theft of a firearm, theft in the second
degree with a firearm sentencing enhancement, and bail jumping. The jury found Wilford not
guilty of the second count of theft of a firearm.
At sentencing, the trial court vacated the convictions for theft of a firearm and second
degree theft because they merged with the conviction for first degree burglary. The trial court
imposed a standard range sentence of 89 months of total confinement.
Wilford appeals.
ANALYSIS
Wilford argues that the trial court erred by instructing the jury on accomplice liability
because there was no evidence supporting the accomplice liability jury instruction. We disagree.
A. LEGAL PRINCIPLES
We review the trial court’s choice of jury instructions for an abuse of discretion. State v.
Hathaway, 161 Wn. App. 634, 647, 251 P.3d 253, review denied, 172 Wn.2d 1021 (2011). Jury
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instructions are appropriate if they are supported by substantial evidence, allow the parties to argue
their theories of the case, are not misleading, and when read as a whole properly state the applicable
law. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000); State v. Anderson,
3 Wn. App. 2d 67, 69-70, 413 P.3d 1065 (2018). When determining whether evidence is sufficient
to support a jury instruction, we review the evidence in the light most favorable to the party
requesting the instruction. Fernandez-Medina, 141 Wn.2d at 455-56.
A person is an accomplice if he “solicits, commands, encourages, or requests another
person to commit the crime,” or “aids or agrees to aid another person in planning or committing
the crime.” CP at 139; RCW 9A.08.020(3)(a)(i)-(ii). “Mere presence of the defendant without
aiding the principal—despite knowledge of the ongoing criminal activity—is not sufficient to
establish accomplice liability.” State v. Truong, 168 Wn. App. 529, 540, 277 P.3d 74, review
denied, 175 Wn.2d 1020 (2012).
B. SUFFICIENT EVIDENCE SUPPORTS THE ACCOMPLICE LIABILITY INSTRUCTION
Wilford argues that there is no evidence to support giving an accomplice liability
instruction because there was no evidence that another person was involved and Wilford was
merely in possession of stolen property. Although Wilford is correct that the State presented no
direct evidence regarding another person being involved in the burglary, his argument fails to view
the evidence about Wilford’s actual actions in the light most favorable to the State.
Here, Wilford was not merely present at the scene of a crime nor was he simply in
possession of stolen property. The evidence establishes that at least one person entered Sweeney’s
home and removed some of her personal property from the house. And Wilford was seen on
Sweeney’s property by Officer Smith before he was apprehended a block away with pieces of
Sweeney’s personal property.
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When viewing the evidence in the light most favorable to the State, it is reasonable to
conclude that, if Wilford did not enter Sweeney’s house, another person did and Wilford was
aiding that person by being a lookout or carrying some of the stolen property. Therefore,
substantial evidence supports giving the accomplice liability instruction, and the trial court did not
abuse its discretion by giving the instruction. Accordingly, we affirm Wilford’s conviction for
first degree burglary with a firearm sentencing enhancement.
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.
Lee, C.J.
We concur:
Worswick, J.
Veljacic, J.
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