                                                                          FILED 

                                                                        APRIL 2, 2015 

                                                                 In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 31408-1-III
                     Respondent,              )
                                              )
      v.                                      )
                                              )
RICHARD PERALES,                              )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, C.J. -    Richard Perales was convicted of first degree rendering

criminal assistance to Marcus Torres, a murder suspect, who eluded arrest for several

weeks by hiding out in a makeshift outdoor shelter near the home in which Mr. Perales

lived with Mr. Torres's mother. Mr. Perales challenges the trial court's refusal to give his

proposed instruction addressing the State's bUrden of proving an "affirmative act or

statement," which he argues is required by State v. Budik, 173 Wn.2d 727,272 P.3d 816

(2012). He also challenges the sufficiency of the evidence to sustain the jury's verdict.

       While it is a correct statement of law to say that rendering criminal assistance

requires an affirmative act or statement, Mr. Perales's proposed instruction was confusing

and incorrect, and the trial court's instructions were sufficient without it. Because we
No. 31408-1-III
State v. Perales


find no abuse of discretion by the trial court in refusing to give the instruction and the

evidence was sufficient to support a finding of guilt, we affirm.

                      FACTS AND PROCEDURAL BACKGROuND

       Marcus Torres and his brother, Isaac Cruz, l were among five individuals

suspected of being involved in the murder of Manuel Correa, which took place in Yakima

County at the end of March 2012. Marcus and Isaac are both sons of Rosa Cruz-Torres,

the girlfriend and roommate of the appellant, Richard Perales.

       Following Mr. Correa's disappearance on March 30, the Yakima County sheriffs

department began efforts to locate Marcus, Isaac, and the other suspects. Detectives

learned that Marcus's mother and Isaac rented basement rooms at a rural home near

Sunnyside owned by Christian Capener, and that Marcus also stayed at that address, at

least occasionally.

       Detectives investigating the Correa homicide first visited the Capener home,

located at 121 Arrowsmith Road, to do a "knock and talk" in hopes of finding Marcus or

Isaac. Isaac was found sitting outside in a car, after which detectives were able to get a

warrant to search the home for evidence of the murder. Mr. Perales was present at the

home during the execution of the search warrant.




       1 We   refer to the two brothers by their first names for clarity. We intend no
disrespect.

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    No. 31408-1-111 

    State v. Perales 



           At trial, the State presented evidence that detectives, sheriffs deputies and

    Sunnyside police officers paid multiple visits to the Arrowsmith Road address during the

    several weeks they were looking for Marcus. The State also called a detective and a

    deputy sheriff who testified they spoke with Mr. Perales during that time frame and told

    him they were looking for Marcus in connection with the Correa murder. Detective

    Robert Enquist testified that he warned Mr. Perales he could be arrested if he were to

    harbor or conceal Marcus. Deputy William Boyer testified that when he spoke to Mr.

    Perales about the search for Marcus in connection with the murder, he asked Mr. Perales

    whether he understood "the serious nature of what was going on," and Mr. Perales

    answered that he did. Report of Proceedings (RP) at 388.

           Sometime in the early morning of April 19, Deputy Boyer received word that

    Marcus had been seen a couple of hours earlier at the Arrowsmith Road home. The

    sheriff s department obtained a search warrant and Deputy Boyer began coordinating

    with "quite a few" members of the violent crimes task force to plan an approach to the

    property that would "safely contain the property and residence and then proceed with

    hopeful apprehension of Mr. Torres in a safe fashion." RP at 389.

           Among task force members participating in the coordinated containment of the

    home on April 19 was Yakima Sheriffs Detective Robert Tucker, who arrived early,

    donned camouflage, and took up a position in an orchard on the property north of the




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No. 31408-1-II1
State v. Perales


home.. When he and others converged on the home, the detective followed a trail that

connected the orchard and the home.

       Marcus proved to be in the home, came out peacefully, and surrendered. After

other task force members had secured the residence, Detective Tucker and another officer

further investigated the trail leading to the orchard and discovered what prosecutors

would later describe as a "foxhole" covered. by an apple bin. Located within the hole,

which was described by one officer as "[t]hree to four feet across and two to three feet

deep," was a sleeping bag, a paper bag from a fast food restaurant, a partial pack of

cigarettes, a couple of unopened cans of beer, a gray sweatshirt and a copy of the April

18,2012 Yakima Herald. RP at 341.

       Following the search and apprehension of Marcus, Mr. Perales was taken to the

Sunnyside police department, where Detective Enquist read him his Miranda 2 rights and,

after Mr. Perales agreed to speak, interviewed him. At trial, Detective Enquist testified to

what Mr. Perales told him. Mr. Perales denied being aware that Marcus was hiding in a

makeshift shelter in the orchard. But he admitted that when he arrived at the Arrowsmith

Road home at around 10:30 p.m. the night before, having picked up some hamburgers

and beer, he discovered that Marcus and his girlfriend were there. He admitted to the

detective that because Marcus looked thirsty, he offered him some beers. Mr. Perales



       2   Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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No. 31408~I-III
State v. Perales


claimed that he only spoke with Marcus for a few minutes before retiring to his and Ms.

Cruz-Torres's room. About twenty minutes later, Marcus visited Mr. Perales's and Ms.

Cruz-Torres's room and Mr. Perales offered him a couple more beers. Mr. Perales told

Detective Enquist that he did not see Marcus again until he surrendered to officers the

next morning.

       At the close of the State's evidence, Mr. Perales moved to dismiss on grounds that

the State had not shown that he committed any affirmative act of rendering criminal

assistance. Citing Budik, he argued that the State must demonstrate an affirmative act or

statement by a defendant to prove "rendering criminal assistance" within the meaning of

the applicable statute. He argued that the shelter where Marcus was believed by the State

to have hidden out was not on property owned or controlled by Mr. Perales and that there

was no showing that Mr. Perales knew Marcus was staying in the hole, let alone that Mr.

Perales had assisted in preparing it or been the source of provisions found in the hole. He

argued that Mr. Perales was accused at most of failing to notify the sheriff's department

of Marcus's presence on the night of April 18.

       The court denied the motion to dismiss and prohibited the defense from arguing

during closing that Mr. Perales was "required to commit some kind of affirmative act,"

adding that by "the same token[,] the State can't argue that he should have called [law

enforcement]." RP at 405.




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No. 31408-1-III
State v. Perales


          The court also refused to give two instructions proposed by Mr. Perales. The first

stated:

          To harbor or conceal another is to provide shelter or lodging in order to
          conceal another clandestinely for the purpose of concealment. It is not
          enough to fail to disclose the location of the person sought or provide
          minimal financial assistance.

Clerk's Papers (CP) at 61. The second tracked the statutory definition of rendering

criminal assistance as including harboring or concealing a suspect, and added,

          There must be an affinnative act or affinnative statement by the accused
          which sheds light on the nature of the affinnative act or statements relating
          to the harbor or concealment of the person sought.

CP at 63. The court instead gave instructions based on llA WASHINGTON PRACTICE:

WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 120.10, 120.11 and 120.16, at

482-84,495-96 (3d ed. 2008) (WPIC). It modified WPIC 120. 16-the pattern instruction

defining "rendering criminal assistance"-by defining "harbor" to mean "to give shelter

or refuge to somebody" and "conceal" to mean "to place out of sight." CP at 73.

          During deliberations, the jury sent out the following question: "Is it the

defendant's legal responsibility to notify the police that the fugitive was [a]t 121

Arrowsmith [D]rive[?]" CP at 82. The trial court viewed the question as addressing an

irrelevant matter given the nature of the charge, and responded that the jury should refer

to its instructions.

          The jury thereafter returned a guilty verdict. Mr. Perales appeals.



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No.31408-I-III
State v. Perales


                                        ANALYSIS

       Mr. Perales's brief raises two separate but related issues. The first is whether the

trial court erred by failing to give the second of his proposed instructions, which would

have required proof of an "affinnative act or affinnative statement by [Mr. Perales]

which sheds light on the nature of the affinnative act or statements relating to the harbor

or concealment of the person sought." Br. of Appellant at 1. The second is a challenge

to the sufficiency of the evidence. In both cases, Mr. Perales argues that the State fails to

prove that a defendant has rendered criminal assistance when it fails to show a sufficient

affinnative act or statement by the defendant.

       A person commits the crime of criminal assistance in the first degree if he renders

criminal assistance to a person who has committed or is being sought for murder in the

first degree or any class A felony or equivalent juvenile offense. RCW 9A.76.070(l).

"Render[ing] criminal assistance" is defined in RCW 9A.76.050 as comprising six types

of assistance with the intent to "prevent, hinder, or delay the apprehension or prosecution

of another person" who the accused knows "is being sought by law enforcement officials

for the commission of a crime." Based on the plain language ofRCW 9A.76.050,

rendering criminal assistance "arises from actions intended to help an offender escape

apprehension or prosecution." State v. Davis, _     Wn.2d _,340 P.3d 820, 825 (2014).

       In this case, the type of assistance alleged by the State was that Mr. Perales had

"harhor[ed] or conceal[ed]" Marcus Torres within the meaning ofRCW 9A.76.050(1).

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No. 31408-1-III
State v. Perales


                                Sufficiency o/jury instruction

       We first consider Mr. Perales's argument that the trial court erred in refusing to

give the second of his proposed jury instructions, highlighting the need for the State to

demonstrate an affirmative act or statement in order to prove that a defendant has

rendered criminal assistance.

       In general, we review a trial court's choice of jury instructions for an abuse of

discretion. State v. Hathaway, 161 Wn. App. 634, 647, 251 P.3d 253 (2011). Jury

instructions are sufficient if substantial evidence supports them, they allow the parties to

argue their theories of the case, and, when read as a whole, they properly inform the jury

of the applicable law. State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002). It is

not error for a trial court to refuse a specific instruction where a more general instruction

adequately explains the law and allows each party to argue its case theory. Hathaway,

161 Wn. App. at 647.

       Mr. Perales argues that his proposed instruction was appropriate in light of State v.

Budik. Kenneth Budik was the victim of what was believed to be a gang-related

shooting. When questioned by police, he denied knowing who fired the shots that injured

him despite forensic evidence that the State believed suggested that the shooter had been

close enough to be identified. For that reason, and because Budik later identified the

shooter in speaking with the mother of a second victim, the State charged Budik with

rendering criminal assistance by the means of "prevent[ing] or obstruct[ing], by use of

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.



    No. 31408-1-III
    State v. Perales


    force, deception, or threat, anyone from performing an act that might aid in the discovery

    or apprehension" of a person sought by law enforcement officials. RCW 9A.76.050(4).

           The Supreme Court reversed Budik's conviction, holding that Budik's mere

    disavowal of knowledge of the perpetrator of a crime, even if false, did not constitute

    "prevent[ing] or obstruct[ing], by use of ... deception ... anyone from performing an act

    that might aid in the discovery or apprehension" of a suspect. While acknowledging that

    the term "deception" might be "literally broad enough to include false disavowals," it

    concluded that the statutory scheme as a whole indicated the legislature's intent that _

    "[t]he deception contemplated by RCW 9A.76.050(4) requires an affirmative act or

    statement." Budik, 173 Wn.2d at 737. It arrived at this interpretation ofRCW

    9A.76.050(4) after considering conduct constituting the former crime of serving as an

    accessory after the fact, the implications of constitutional concerns of speech and privacy,

    and-most relevant here-its observation that all six means of rendering criminal

    assistance provided by RCW 9A.76.050 "require some affirmative act or statement." 173

    Wn.2d at 735.

           The State argues that the holding of Budik does not apply to this case because the

    Budik court was solely concerned with the fourth statutory means of rendering criminal

    assistance, not "harboring or concealing," which is the first. We disagree. The Supreme

    Court spoke of all the statutory means as requiring an affirmative act or statement and the




                                                 9

No.3l408-l-III
State v. Perales


discussion is not dicta, because that commonality in the means was a basis on which the

Supreme Court interpreted the statute. Id. at 735.

       The Supreme Court's holding that all six means of rendering criminal assistance

require some affirmative act or statement does not help Mr. Perales, however, because the

Supreme Court viewed an affirmative act as inherent in "harboring or concealing" a

suspect. It explained:

       [U]nder the canon of noscitur a sociis, we construe a term in light of those
       terms with which it is associated. The five other means of rendering
       criminal assistance require some affirmative act or statement, be it
       harboring or concealing the person sought, RCW.9A.76.050(1); warning
       the person sought of impending discovery, RCW 9A.76.050(2); providing a
       sought person money, a disguise, transportation, or other means of evading
       discovery, RCW 9A.76.050(3); concealing, altering, or destroying physical
       evidence that would aid in discovery, RCW 9A.76.050(5); or providing the
       person sought with a weapon, RCW 9A.76.050(6). From this, we infer that
       the legislature similarly intended to require an affirmative act or statement
       in order to violate RCW 9A.76.050(4).

Id. at 735-36 (emphasis added) (citation omitted).

       It would be a correct statement of law, in light of Budik, to say that "for harboring

or concealing a person to constitute rendering criminal assistance, it requires some

affirmative act or statement"-although the Supreme Court's reasoning in Budik views

that proposition as self-evident, with the result that jury instruction on that score is

unnecessary. But Mr. Perales's confusing proposed instruction suggests, misleadingly,

that the State must prove multiple layers of affirmative conduct, viz., there must be:

           •   An affirmative act or affirmative statement by the accused[,]

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No. 31408-1-111
State v. Perales


           •   Which sheds light on the nature of the affirmative act or statements[,]

           •   Relating to the harbor or concealment of the person sought.

See CP at 63. Mr. Perales's proposed instruction is not supported by Budik and is not a

correct statement of law.

       The trial court employed Washington pattern instructions and added definitions of

"harbor" ("to give shelter or refuge to somebody") and "conceal" ("to place out of sight")

that reinforced the State's burden of showing affirmative conduct. The court addressed

the principal concern of Budik by ruling that the State could not argue that Mr. Perales

had an obligation to call police upon seeing Marcus on the night of April 18. We find no

error or abuse of discretion in the court's choice ofjury instructions.

                                  Sufficiency ofthe evidence

       We turn, then, to Mr. Perales's contention that insufficient evidence supports his

conviction. "Evidence is sufficient to support a conviction if, after viewing the evidence in

the light most favorable to the State, it allows any rational trier of fact to find all of the

elements of the crime charged beyond a reasonable doubt." State v. DeVries, 149 Wn.2d

842, 849, 72 P.3d 748 (2003). "All reasonable inferences from the evidence must be drawn

in favor of the State and interpreted most strongly against the defendant." State v.

Bucknell, 144 Wn. App. 524, 528, 183 P.3d 1078 (2008). Perhaps most important, given

the nature of the State's evidence in this case, is that "[i]n determining the sufficiency of




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No.3l408-l-II1
State v. Perales


the evidence, circumstantial evidence is not to be considered any less reliable than direct

evidence." State v. Delmarter, 94 Wn.2d 634,638,618 P.2d 99 (1980).

       Direct evidence established that Mr. Perales was aware that Marcus was being

sought in connection with a homicide and that Mr. Perales had been cautioned that he

would be arrested ifhe harbored or concealed. Direct evidence established that when Mr.

Perales returned home from running errands on the night before Marcus's arrest, he

visited with Marcus twice and provided him with beer on both occasions. Detective

Tucker also testified that as he lay in the orchard waiting and watching on the morning of

April 19, he saw Mr. Perales and Ms. Cruz-Torres outside, speaking with each other and

to another male who was inside the home and appeared at the back door. It was not long

thereafter that Marcus came out of the home in response to police demands and

surrendered.

       While the direct evidence was sparse, it was presented along with circumstantial

evidence that Marcus had been hiding out in a shelter constructed in the orchard north of

the Cruz-TorreslPerales home, that he had provisions there, and that there was a "very

distinct trail" running from the back of the Arrowsmith Road home to the area of the

orchard where the shelter was located. RP at 364. From this, ajury could infer that the

reason Marcus was staying in the orchard rather than somewhere else was because family

members were providing him with support; from Mr. Perales's admission to visiting with

Marcus and providing him with beers the night before, a jury could infer that Mr. Perales

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No.31408-I-II1
State v. Perales


was one of the individuals providing Marcus with support. Cf State v. Brown, 8 Wn.

App. 639, 641-44, 509 P.2d 77 (1973) (evidence that an escaped prisoner was found

hiding in defendant's home together with other circumstantial evidence was sufficient to

submit to the jury the question of whether the defendant intentionally concealed the

prisoner with the knowledge that he was an escaped prisoner).

      Affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 





      Brown, J.




                                            13 

