     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 70214-9-1
                     Respondent,
      v.                                         DIVISION ONE


SANG THANH NGUYEN,                               UNPUBLISHED OPINION


                    Appellant.                   FILED: September 15, 2014


       Leach, J. — Sang Nguyen appeals his conviction for possession of

cocaine with intent to deliver.   He contends that the trial court violated his due

process right to a jury determination of each fact necessary for a conviction

because its jury instructions failed to inform the jury of the State's burden to

prove accomplice liability beyond a reasonable doubt. Because the trial court's

instructions sufficiently informed the jury of the State's burden and the applicable

law, we affirm.

                                    Background

       On April 11, 2012, Seattle Police Department officers conducted an

undercover "order-up" narcotics operation using a cooperating witness named

Van. Officer Matthew Pasquan directed Van to call Sang ("Sam") Nguyen and

ask to buy $200 worth of cocaine. The person who answered identified himself

as Sam and agreed to meet Van at a local market to make the exchange. After

Van made a second call to Sam, they agreed to meet at Van's house. Police
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observed a car arrive at Van's house, later identifying the driver as Kimberle

Alojasin and her passenger as Nguyen. Alojasin and Nguyen went to the door of

Van's house and knocked. When no one answered, Sam called Van, who was

with officers in an unmarked car nearby. Van told Sam that he was on his way.

As Nguyen and Alojasin were walking back to their car, officers arrested them.

Van verified that Nguyen and Alojasin were the people with whom he had

arranged the purchase.

       During a search incident to arrest, police found that Nguyen was carrying

two cell phones. One of these phones rang when officers used Van's phone to

dial the number Van had used to set up the drug purchase.         Alojasin gave

officers two small bags of cocaine that she had hidden in her bra. In a recorded

statement after his arrest, Nguyen acknowledged his intent to sell drugs to Van

and Alojasin's role in the planned drug sale to Van.

       The State charged Nguyen and Alojasin each with one count of

possession of cocaine, a controlled substance, with intent to deliver. Alojasin

pleaded guilty as charged.

       At trial, after the State rested, Nguyen moved to dismiss, asserting that

insufficient evidence showed he had "dominion and control" over the drugs, as

required to show constructive possession. The prosecutor responded, "This is

certainly an accomplice liability case. There are apparently two people working

together to deal drugs."     The prosecutor also noted portions of Nguyen's




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statement showing that Nguyen directed the exchange with Van.           The court

denied Nguyen's motion.

      Alojasin testified for the defense. She stated she first spoke to Van and

arranged to meet him for the purpose of selling cocaine. She explained that

Nguyen took a second call from Van because she was driving. When no one

answered their knock at Van's door, she asked Nguyen to call Van because she

had a hard time understanding Van's broken English. She confirmed that they

went to Van's door together but insisted that the deal was "[hers], completely"

and that Nguyen "didn't want to do it."      But, on cross-examination, Alojasin

acknowledged that Nguyen used his own phone to learn the meeting location.

And the prosecutor played portions of Alojasin's recorded statement, in which

she used "we" and "us" repeatedly to describe plans for the drug deal with Van.

       The court used pattern instructions to instruct the jury on reasonable

doubt1 and accomplice liability.2 The to-convict instruction3 described all the

elements necessary to find "the defendant" guilty of the crime of possession with

intent to deliver a controlled substance.       A separate instruction defined

"possession."4 Defense counsel made no objection to the instructions.

       A jury convicted Nguyen as charged. Nguyen appeals.




      1 11 Washington Practice:       Washington Pattern Jury Instructions:
Criminal 4.01, at 85 (3d ed. 2008) (WPIC).
      2WPIC 10.51, at 217.
      3 WPIC 50.14, at 967.
      4 WPIC 50.03, at 949.
No. 70214-9-1/4




                                        Analysis

       Nguyen contends that because the accomplice liability instruction "was

completely silent as to the State's burden of proof" and "was not incorporated into

the 'to convict' instruction, it was untethered from the State's burden of proof as

set forth in that instruction."       Therefore, Nguyen argues, "the instructions

improperly relieved the State of its burden as to accomplice liability and violated

Mr. Nguyen's right to a jury finding of every fact necessary for a conviction

beyond a reasonable doubt." The State disagrees. The State also argues that

because Nguyen affirmatively agreed at trial to the instructions he now

challenges, both the invited error doctrine and RAP 2.5(a)5 preclude appellate

review. Because we conclude that the court's instructions properly informed the

jury, we affirm without reaching the State's other arguments.

       Nguyen does not challenge the reasonable doubt and to-convict

instructions but assigns error to instruction 13, which defined accomplice liability:

             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


       5 Under RAP 2.5(a), a reviewing court "may refuse to review any claim of
error which was not raised in the trial court."
No. 70214-9-1/5



              (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.

       We review a challenged jury instruction de novo, examining it in the

context of the instructions as a whole.6 Jury instructions must inform the jury that

the State bears the burden of proving every essential element of the offense

beyond a reasonable doubt.7 Although accomplice liability is not an element of

the charged crime, the State must still prove it beyond a reasonable doubt.8 The

trial court does not need to include all applicable law in a single instruction.9 But,

when read as a whole, instructions must inform the jury of the State's burden in

an understandable way and "clearly direct the jury through its task of

deliberations."10

       Nguyen fails to show error. In State v. Teaford11 and State v. Teal,12

Division Two and this court considered similar challenges to jury instructions that

included a separate accomplice liability instruction. Even though the accomplice



       6 State v. Castillo, 150 Wn. App. 466, 469, 208 P.3d 1201 (2009) (citing
State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007)).
       7 Bennett, 161 Wn.2d at 307.
       8 State v. Teal, 117 Wn. App. 831, 839, 73 P.3d 402 (2003), affd, 152
Wn.2d 333, 96 P.3d 974 (2004).
     9 Teal, 117Wn. App. at 838.
      10 Teal, 117 Wn. App. at 839.
       11 31 Wn. App. 496, 499-500, 644 P.2d 136 (1982).
       12 117 Wn. App. 831, 837, 73 P.3d 402 (2003), affd, 152 Wn.2d 333, 96
P.3d 974 (2004).


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No. 70214-9-1/6




liability instruction in each case did not explicitly refer to the reasonable doubt

standard, both courts rejected the instructional challenge.            Division Two

summarized its analysis:

       Considered as a whole, the instructions required the jury to
       determine defendant's liability as an accomplice in light of the
       elements of the principal crimes. . . and under the overall
       requirement that criminal liability must be proved beyond a
       reasonable doubt. There was no error.'13]

This court in Teal concluded that similar instructions "were clear about what the


jury needed to decide and the legal principles they were to use."14

       Here, the jury received the pattern instructions for burden of proof and

accomplice liability, as well as a to-convict instruction that included all elements

of the crime of possession with intent to deliver cocaine.        Nguyen does not

dispute that the reasonable doubt and to-convict instructions accurately informed

the jury of the State's burden as to the elements of the offense. When read as a

whole, the instructions clearly set out what the jury needed to decide and the

applicable law. Contrary to Nguyen's assertion, the separate accomplice liability

instruction did not leave accomplice liability "untethered from the State's burden

of proof." The State had to prove accomplice liability "in light of the elements of




        13 Teaford. 31 Wn. App. at 500.
        14 Teal, 117 Wn. App. at 839-40. But see State v. Spencer, 111 Wn. App.
401, 411-12, 45 P.3d 209 (2002) (concluding that trial court erred by giving
definitional accomplice liability instruction without also giving to-convict
instruction advising jury it could convict defendant as an accomplice). In
adopting Teaford's holding, this court in Teal disagreed with the "inflexible rule" of
Spencer. Teal, 117 Wn. App. at 842.


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No. 70214-9-1/7




the principal crimes . . . and under the overall requirement that criminal liability

must be proved beyond a reasonable doubt."15

       Nguyen maintains that because the State "expressly relied" on accomplice

liability to support a guilty verdict, "the State cannot establish that failure to

instruct the jury of its burden of proof regarding accomplice liability was harmless

beyond a reasonable doubt."        But the State did not rely only on accomplice

liability to support a guilty verdict.   Rather, the prosecutor argued that the jury

could convict Nguyen as either a principal because of his constructive

possession of the cocaine or an accomplice because of Alojasin's actual

possession and Nguyen's assistance. And in closing argument, the prosecutor

used evidence of Nguyen's own conduct to argue constructive possession. He

pointed to Nguyen's statement, in which Nguyen acknowledged that he arranged

the purchase and named the meeting place, that he knew how much cocaine

Alojasin was carrying and how they would measure it out, and that he planned to

take the cocaine from Alojasin and exchange it for money from Van.              The

prosecutor concluded, "We dealt with actual and we dealt with constructive

possession.    And, you can choose whichever one you find, but they're both

present in this case."

       Nguyen attempts to distinguish Teaford and Teal by arguing that he does

not contend, as those defendants did, that accomplice liability is an element of

the substantive offense or that it must appear in the to-convict instruction. But


       15 Teaford, 31 Wn. App. at 500.

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No. 70214-9-1/8




Teaford and Teal addressed exactly the question at issue here:            whether a

separate accomplice liability instruction that does not explicitly refer to the

reasonable doubt standard satisfies due process.         Under these facts, as in

Teaford and Teal, we conclude that it does.

       "'Jury instructions are sufficient when they allow counsel to argue their

theory of the case, are not misleading, and when read as a whole properly inform

the trier of fact of the applicable law.'"16 The instructions here met this standard.

The trial court did nor err.


                                    Conclusion


       Because the jury instructions here properly informed jurors of the State's

burden to prove accomplice liability beyond a reasonable doubt, we affirm.




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WE CONCUR:




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       16 Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002)
(quoting Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927 P.2d 240 (1996T);
see also State v. Killinqsworth, 166 Wn. App. 283, 288, 269 P.3d 1064, review
denied, 174 Wn.2d 1007 (2012).


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