                                                                    FILED
                                                           CQLJST OF APPEALS DiY I
                                                            STATE Or 7/ASM!HGT0r*

                                                            2013 APR 29 Aii 9= 07




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION ONE


STATE OF WASHINGTON,                         )    No. 67958-9-I

                      Respondent,
                                                  UNPUBLISHED OPINION
                v.



WILLIAM SCOTT GOBAT,
                                                  FILED: April 29, 2013
                     Appellant.

       Spearman, A.C.J. — William Gobat appeals his conviction for second degree

felony murder. Gobat, along with two others, assaulted a man who owed a $30 drug

debt and killed him. Gobat argues that the evidence is insufficient to support his

conviction. We disagree and affirm.

                                          FACTS


       Sometime in December 2010, Emily Clausen, a drug dealer, asked her friend

William Gobat to deliver cocaine to Donald Barker. Gobat met Barker, gave him the

drugs, and received an apparent roll of cash in exchange. When Clausen later

opened the roll, instead ofthe expected $30 payment, she found only a $1 bill rolled
 around a receipt. Clausen was angry.

        Some weeks later, on December 27, Gobat was at Clausen's house along with

 Antonio Ruiz, Patrick Griffiths, and Griffith's girl friend, Cara Jean Ford. At about

 5:00 p.m. Griffiths, Ruiz, and Gobat left Clausen's house together in Griffiths' car.
No. 67958-9-1/2

Following Clausen's instructions, they went to an elementary school near her house

to meet someone and collect money. When they arrived at the school, all three got

out of the car. They saw a person waving at them from across the school grounds

some distance away. It was Barker.

      According to Griffiths, as the three walked toward Barker, they did not discuss

what they would do, but spread out as they approached as if to encircle him. When

they reached Barker, Gobat punched him in the face. Ruiz and Griffith joined in the

assault.

       Barker broke away and ran toward the parking lot. Gobat and Griffths chased

him, but Gobat fell and Griffiths caught up to Barker first. Barker overpowered

Griffiths, pushed Griffiths to the ground and held him there to restrain him. When

Gobat and Ruiz reached them, they pulled Barker off Griffiths. Griffiths heard Gobat

say "[W]here's the money?" and saw that Barker was on all fours on the ground.
Verbatim Report of Proceedings (VRP) at 284. Griffiths saw Barker's cell phone fall
to the ground, picked it up, and walked back to the car. Gobat and Ruiz also

returned to the car moments later and the three drove back to Clausen's house.

       Shortly thereafter, a passerby heard Barker call for help and called 911.

Medics transported him to the hospital but he was pronounced dead on arrival.

Barker sustained blunt force trauma to the head which caused hemorrhaging in the

brain. He also sustained a stab wound on his lower back and one in the abdomen

which pierced his liver. Barker's death was caused either by the blunt force trauma

or by the stab wound that lacerated the liver.
No. 67958-9-1/3

      Meanwhile, when Gobat, Ruiz, and Griffiths arrived at Clausen's house, Ford

was doing laundry. They asked if they could put their clothes in with Ford's laundry.

She would not let them and so they washed their clothes in the shower. Ruiz gave

Ford a knife and asked her to hide it.

       Ford and Clausen later cleaned the knife and Ford wrapped it in a bag.

Clausen took it later that night when she, Gobat, and Ford went to a casino. When

Ford returned to Clausen's house that night, Ruiz showed up and described how he

stabbed Barker. Ruiz told Ford the others did not know about the stabbing.

       The State charged Gobat with second degree felony murder based on the

predicate crime of second degree assault. Griffiths and Ford testified at Gobat's

trial.1 Gobat also testified in his defense. Gobat said he did not know they were

meeting Barker at the school. Gobat said he recognized Barkerwhen he got close to

him and asked, "Do I know you?" Barker gave him an angry expression and hit him.

According to Gobat, he returned the punch, then lost his footing and fell. Gobat said
Barker ran away and Griffiths chased him. Worried that the commotion would cause

someone to call the police, Gobat said he pulled Griffiths off Barker and told him "[w]e

need to get out of here." RP at 471-72. Both Griffiths and Gobat denied knowing

that Ruiz was armed.

       The juryfound Gobat guilty as charged. Gobat appeals.




       1Griffiths pleaded guilty to first degree robbery.

                                                    3
No. 67958-9-1/4

                                       ANALYSIS

       Gobat challenges the sufficiency of the evidence supporting the jury's verdict

finding him guilty of second degree murder. He argues that the evidence is

insufficient because the State failed to prove that he acted with knowledge that he

was facilitating a murder.

       The test for determining the sufficiency of the evidence is whether, after

viewing the evidence in the light most favorable to the jury's verdict, any rational jury

could find the essential elements of a crime beyond a reasonable doubt. State v.

Johnson, 159 Wn. App. 766, 774, 247 P.3d 11 (2011). All reasonable inferences

from the evidence must be drawn in favor of the jury's verdict and interpreted strongly

against the defendant. Johnson, 159 Wn. App. at 774. "'A claim of insufficiency

admits the truth of the State's evidence and all inferences that reasonably can be

drawn'" from it. Johnson, 159 Wn. App. at 774 (quoting State v. Salinas, 119 Wn.2d

192, 201, 829 P.2d 1068 (1992)).

       In applying this standard of review, circumstantial evidence is no less reliable

than direct evidence and "'specific criminal intent of the accused may be inferred from

the conduct where it is plainly indicated as a matter of logical probability.'" Johnson,

159 Wn. App. at 774 (quoting State v. Delmarter. 94 Wn.2d 634, 638, 618 P.2d 99

(1980)). The jury is the sole and exclusive judge of the evidence. Johnson, 159 Wn.

App. at 774. We do not reweigh the evidence or substitute our judgment for that of

thejury. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Becausethey

observed the witnesses testify first hand, we defer to the jury's resolution of
No. 67958-9-1/5

conflicting testimony, evaluation of witness credibility, and decisions regarding the

persuasiveness and the appropriate weight to be given the evidence. See State v.

Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).

       To convict Gobat of second degree felony murder, the State was required to

prove beyond a reasonable doubt that he (1) committed or attempted to commit a

felony, (2) "and, in the course of and in furtherance of committing that felony, he or

another "participant" (3) caused Barker's death. RCW 9A.32.050(1 )(b). Because the

alleged predicate felony is second degree assault, the State also had to prove

beyond a reasonable doubt that Gobat or an accomplice, intentionally assaulted

Barker and thereby recklessly inflicted substantial bodily harm. RCW

9A.36.021(1)(a). A person acts intentionally when he acts "with the objective or

purpose to accomplish a result which constitutes a crime." RCW 9A.08.010(1)(a).

       Here, in order to convict Gobat of second degree felony murder based on

accomplice liability, the State was required to prove beyond a reasonable doubt that,

with knowledge that it would promote or facilitate the commission of the second

degree assault that resulted in Barker's death, Gobat (1) solicited, commanded,

encouraged, or requested another person to commit the crime; or (2) aided or agreed

to aid another person in planning or committing the crime. RCW 9A.08.020; State v.

McCreven, 170 Wn. App. 444, 477-78, 284 P.3d 793 (2012), review denied, 176

Wn.2d 2015,       P.3d   , (2013). Accomplice liability requires an overt act. State v.

Matthews, 28 Wn. App. 198, 203, 624 P.2d 720 (1981). Mere presence is insufficient

to prove complicity in a crime. State v. Roberts, 80 Wn. App. 342, 355-56, 908 P.2d
No. 67958-9-1/6

892 (1996). To be an accomplice to felony murder based on a predicate felony of

second degree assault, the accused must have known generally that he was

facilitating a criminal assault but need not have known that the principal was going to

use deadly force or that the principal was armed. Sarausad v. State, 109Wn. App.

824, 836, 39 P.3d 308 (2001); State v. Rice. 102 Wn.2d 120, 125, 683 P.2d 199

(1984).

       Viewing the evidence in favor of the State as we are required to do, sufficient

evidence supports Gobat's felony murder conviction, as either a principal or an

accomplice. Based on Griffiths' testimony, the jury could infer that Gobat was a

principal. In fact, testimony indicated that Gobat instigated the assault by throwing

the first punch and demanding money from Barker. At the very least, the evidence

that Gobat hit Barker in the face was sufficient to show that he acted with knowledge

that his presence would promote or facilitate the assault on Barker.

          Relying on State v. Cronin. 142 Wn.2d 568, 14 P.3d 752 (2000) and State v.

Roberts, 142Wn.2d471, 14 P.3d 713 (2000), Gobat argues that in order to support

his conviction for felony murder as an accomplice, the State was required to prove

that he, rather than Ruiz or Griffiths, caused Barker's death or that he acted with

knowledge that he was facilitating a homicide. Gobat's reliance on Cronin and

Roberts is misplaced.

          The co-defendants in Roberts and Cronin were each convicted of both felony

murder and premeditated first degree murder. In each case, the accomplice liability

instruction provided to the jury was legally deficient because it permitted the jury to
No. 67958-9-1/7

convict the defendant based on knowing facilitation of some crime other than the

charged crime. Roberts, 142 Wn.2d at 510; Cronin, 142 Wn.2d at 576-77.           In their

respective appeals, the defendants' premeditated first degree murder convictions

were reversed, but their felony murder convictions were affirmed. See Roberts, 142

Wn.2d at 478, 534; Cronin, 142 Wn.2d at 582, 586. The defendants' felony murder

convictions were unaffected by the erroneous instructions because "where the

undisputed evidence shows that all the participants acted as principals in committing

the predicate felony, an accomplice liability instruction is superfluous, for the felony

murder statute itself expressly establishes the complicity of both the killer and

nonkiller participant in the homicide, as principals." State v. Bolar, 118 Wn. App. 490,

503, 78 P.3d 1012 (2003).

       In contrast to accomplice liability for premeditated murder, the knowledge

required to convict a defendant for felony murder is based solely on the mens rea for

the predicate offense. As the Court in Roberts observed:

       Thus, the State is technically correct in its statement that "you would
       not be able to obtain accomplice liability to certain murders because
       certain murders happen too quickly for a person to actually know a
       murder is going on-an accomplice to know a murder is going to
       happen." This is relatively insignificant, however, because such
       defendants may still be charged with felony murder in the first
       degree based solely on the mens rea for the predicate offense.

Roberts, 142 Wn.2d 471, 511 n. 14 (internal citations omitted).

       The felony murder statutes contain built-in vicarious liability to provide a

mechanism by which liability for a homicide may be imputed to a coparticipant who
No. 67958-9-1/8

does not actually commit the homicide.2 State v. Carter, 154 Wn.2d 71, 79, 109 P.3d
823 (2005). So when one participant in a predicate felony, alone, commits a

homicide during the commission of, or flight from, such felony, another participant in

the predicate felony has, by definition, committed felony murder. The State was not

required to prove that the blow to the head inflicted by Gobat killed Barker.

Moreover, "[i]n such cases, the State need not prove that the nonkiller participant was

an accomplice to the homicide." Cater, 154 Wn.2d at 79; Bolar, 118 Wn. App. at

500-06.


      Accomplice liability is relevant here only to the extent that itties Gobat to the

predicate felony of second degree assault. And to prove Gobat's guilt based on the

theory of accomplice liability, the State was required to establish only that Gobat

knew he was facilitating an assault and that assault resulted in Barker's death.

Because the evidence supports Gobat's conviction for felony murder either as a

participant or an accomplice, we affirm.




WE CONCUR;,


                                                      XdW        ts&^Y

       2The first and second degree felony murder provisions are the same in this respect. RCW
9A.32.030(1)(c); RCW 9A.32.050(1)(b).

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