       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                    No. 73332-0-1

                      Respondent,                       DIVISION ONE
                                                                                                        (7)
              V.                                                                                 („fl
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LESLEY ALEXANDRA VILLATORO,                             UNPUBLISHED
                                                                                          cd.)
                      Appellant.                        FILED: April 3, 2017
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                                                                                      i

                                                                                           9,

       Cox, J. — A jury convicted Lesley Villatoro as an accomplice to attempted ""/

first degree murder, first degree burglary, first degree robbery, and three counts

of first degree kidnapping. The evidence was sufficient to support the jury

verdicts on these crimes. During this appeal, the trial court entered findings of

fact and conclusions of law on the admission of certain evidence. So, there is no

need to address the absence of such findings and conclusions prior to the

appeal. We do not reach the claim of error, which Villatoro makes for the first

time on appeal, that the trial court failed to give a jury instruction that she did not

request below. The State properly concedes that it is not entitled to costs on

appeal. We affirm.
No. 73332-0-1/2

      Villatoro and Chad Home began dating in 2012 when they lived in

Arizona. They fell on hard financial times and moved to Washington, where they

lived at the home of Jamie Cumbia, Home's sister.

      In February 2013, Villatoro gave birth to twins, fathered by Home. Neither

Villatoro nor Home had steady employment during this time. They continued to,

live at Cumbia's home. They generally kept to themselves.

      Shortly before commission of the crimes in this case, Villatoro and Home

purchased a duffel bag, duct tape, and bleach. Villatoro also purchased a gas

can and another duffel bag. The State claimed at trial that these items were

used or were going to be used in committing the crimes in this case.

      On May 2, 2014, Villatoro drove Home to the area near Stephnie Baker's

home and dropped him off there. While doing so, she opened the car trunk and

Horne removed something from it. She then drove to a park nearby With her

children and Cumbia's child and waited for Home.

      Meanwhile, Horne forced his way into Baker's home. She and her two

children were present. He pointed a gun at her and asked her about the key to

her vehicle, a Tahoe, parked in front of her home. Home directed Baker to start

the Tahoe while he remained inside with her two children.

      Home later restrained Baker with zip ties, placed her youngest child in

another room, and directed her eldest child to stay in that room. He then

returned to Baker and, while she was restrained, cut her throat with a knife. He ,

also shot at her. However, the bullet did not hit her. Home fled the scene in

Baker's Tahoe.


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         Despite her severe injury, Baker survived and sought help from a

neighbor. The neighbor called 911. Baker survived these events and testified at

trial.

         Police officers responded to the 911 call from Baker's neighbor. They '

identified the stolen vehicle Home was driving and a high speed chase followed.

Home drove past Villatoro's location with police in pursuit. They eventually

stopped him. He died from a self-inflicted gunshot wound to the head.

         Police interviewed Villatoro on the day of the crimes and taped the

interview.

         The State charged Villatoro as an accomplice to Home's crimes.

Specifically, the charges included one count of first degree burglary, three counts

of first degree kidnapping, one count of first degree attempted murder, and one

count of first degree robbery.

         At trial, police officials and others testified. The recordings of Villatoro's

interview were played at trial. She exercised her constitutional right to not testify.

The jury found her guilty as charged. The trial court entered its judgment and

sentence on the jury's verdicts.

         Villatoro appeals.

                              SUFFICIENCY OF EVIDENCE

         Villatoro argues that insufficient evidence supports the six convictions as

an accomplice to Home's crimes. We hold that the evidence was sufficient to

support the jury's verdicts.




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       Due process requires the State to prove every element of a crime beyond

a reasonable doubt.1 The test for a sufficiency challenge is "whether, after

viewing the evidence in the light most favorable to the State, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable

doubt."2 An insufficient evidence claim "admits the truth of the State's evidence

and all reasonable inferences from that evidence."3

       Circumstantial evidence can be as reliable as direct evidence.4 But

"inferences based on circumstantial evidence must be reasonable and cannot be

based on speculation."5 A jury's "verdict does not rest on speculation or

conjecture when founded on reasonable inferences drawn from circumstantial

facts."6

       In Washington, an accomplice is not required to "have specific knowledge

of every element of the crime committed by the principal, provided he has

general knowledge of that specific crime.'"7 Further, "[t]he crime' means the

charged crime, but because only general knowledge is required, even if the


      IState v. Rodriquez, 187 Wn. App. 922, 930, 352 P.3d 200, review
denied, 184 Wn.2d 1011 (2015).

       2   State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993).

       3   Rodriquez, 187 Wn. App. at 930.

       4   Id.

       5   State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d 318 (2013).

       6   Lamphiear v. Skagit Corp., 6 Wn. App. 350, 356, 493 P.2d 1018 (1972).

      7 1n re Pers. Restraint of Domingo, 155 Wn.2d 356, 365,119 P.3d 816
(2005) (quoting State v. Roberts, 142 Wn.2d 471, 512, 14 P.3d 713 (2000)).

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charged crime is aggravated, premeditated first degree murder. . . , 'the crime'

for purposes of accomplice liability is murder, regardless of degree."8

       We defer to the jury on questions regarding conflicting evidence, witness'

credibility, and the persuasiveness of evidence.8

       Here, the trial court gave the jury the following unchallenged accomplice

instruction:

       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 the crime if, with
       knowledge that it will promote or facilitate the commission of
       the crime charged, he or she either:



       (2) aids or agrees to aid another person in planning or
       committing the crime charged.

       The word "aid" means all assistance whether given by words, acts,
       encouragement, support, or presence. . . .

       A person who is an accomplice in the commission of a crime is
       guilty of that crime whether present at the scene or not.(18]

       There was sufficient evidence for the jury to find beyond a reasonable

doubt that Villatoro was Home's accomplice to commission of the charged

felonies.



       8   Sarausad v. State, 109 Wn. App. 824, 835, 39 P.3d 308 (2001).

       9   Rodriquez, 187 Wn. App. at 930.

       19   Clerk's Papers at 223 (emphasis added).


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       Notably, Villatoro does not challenge on appeal the sufficiency of the

evidence to show that Home acted as a principal for the crimes for which she

was found guilty as his accomplice. She concedes in her briefing that Home

"invaded Stephanie Baker's home, kidnapped her and her children, slit Baker's

throat, tried but failed to shoot her in the head, and then fled in Baker's car."11

Accordingly, the primary focus of this appeal is whether Villatoro had the

requisite knowledge of the charged crimes and aided Home in committing these

crimes.

       It is undisputed that Villatoro drove Home to the scene of the crimes and

dropped him off near Baker's home. From there, he forcibly entered Baker's

home, displaying a gun. He then committed the other crimes at the scene before

stealing her Tahoe.

       What Villatoro knew when she dropped him off near the scene of the

crimes is the primary disputed issue. The evidence at trial included videotapes of

Villatoro and Home purchasing a black duffel bag several weeks before the

crimes committed against Baker and her children. Baker testified at trial to

seeing such a duffel bag in her home. The evidence also showed that this duffel

bag contained zip ties, a knife, bullets, and duct tape. A jury could reasonably

infer from this evidence that this duffel bag contained items used in the crimes

Horne committed against Baker and her children.

       Videotape and other evidence also established that Villatoro purchased a ,

gas can and another black duffel bag several weeks prior to the crimes Home



       11 Brief   of Appellant at 1.
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committed against Baker and her children. She was also present when Home

purchased bleach. The State presented evidence at trial that the bleach could be

used to destroy DNA. A jury could reasonably infer from this evidence that

Villatoro knew that these items were intended for use in the crimes Home

committed against the victims. This is particularly true when the evidence

showed that Home and Villatoro had no other use for these items where they

lived. Moreover, a search of Villatoro's vehicle trunk revealed a backpack, a full

five gallon gas can, another bottle of bleach, a change of men's clothing and

shoes, a pair of gloves, and a scanner, that the State argued was a police

scanner. A jury was entitled to reasonably infer that she knew of these items in

the trunk and that they were to be used in connection with the crimes.

       Additionally, the evidence showed that Villatoro saw Home put the black

duffel bag in the trunk of the car she used to drive him to the scene of the crimes.

The evidence also showed that the two kept pretty much to themselves. A jury

could reasonably infer that she knew what was in the duffel bag when Home put,

it into the trunk of her car. While she claimed that she did not know what Horne

took out of the trunk when she opened it, the jury was not required to believe her.

Rather, it could reasonably infer that she knew he was taking the duffel bag, and

its contents, and that she provided him access to those items by opening the

trunk of her car.

       Police interviewed her on the day of the crimes, following Home's death.

She denied knowledge of the purchase of the black duffel bags. This sharply

conflicts with the videotaped and other evidence showing their purchase of these



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items within a short time prior to the crimes. A jury was entitled to reasonably

infer that she did not tell the truth in an effort to conceal her knowledge and

participation in the crimes.

       There was also other evidence to show Villatoro's knowledge of the

crimes. Villatoro told police that she planned to wait for Home at the park near

Baker's residence for thirty minutes to take him back home. She heard

ambulance sirens but did not hear from Home. Home drove past Villatoro's

location with police in pursuit. Villatoro later left the scene and returned home.

The jury could reasonably infer that she knew of Home's crimes and sought to

flee the scene in view of the developments.

       Later that afternoon following her departure, Villatoro checked the online

news, something she had not done during the previous month. There, she read ,

a report about the police chase of what turned out to be Horne, which ended in

his death. A jury was entitled to reasonably infer from these actions that she

knew of Home's crimes and soon learned about his whereabouts after police

were notified and began pursuit.

       Despite all this, she never informed Home's sister of these unfolding

events, despite their conversations throughout the day. The jury could

reasonably infer from Villatoro's checking of the online news and her failure to

share the developing news with Home's sister that Villatoro had participated in

the crimes as Home's accomplice.

       During closing below, Villatoro argued to the jury that there were contrary

inferences to be drawn from the evidence. For example, she argued that



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contrary inferences arose from her recorded interviews with police. But the jury

did not, and was not required to, accept these arguments. As the finder of fact,

the jury was entitled to reach the verdicts that it did.

       On appeal, Villatoro takes a similar approach. Her characterization of the

evidence as circumstantial does nothing to undermine the sufficiency of the

evidence. That is because there is direct evidence from which the jury could

base its decision.

       Likewise, Villatoro may call the evidence speculative but, as we have

discussed, it was not so.

       Finally, Villatoro's argument that another person—Rocky Chervonock—

could have been an accomplice does nothing to address application of the

correct review standard to this record. Accordingly, we need not deal any further

with that argument.

       In sum, there was sufficient evidence of Villatoro's guilt beyond a

reasonable doubt for each of the charged crimes. Dismissal is not warranted.

                     WRITING FINDINGS AND CONCLUSIONS

       Villatoro argues that the trial court violated CrR 3.6 by failing to enter

written findings of fact and conclusions of law as required by the rule. But such

findings and conclusions have been entered since the initiation of this appeal.

She does not challenge them, and we need not further address this point on

appeal.




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                                JURY INSTRUCTION

       Villatoro argues that the trial court failed to give an instruction that she did

not request below. Because this claim of error is not manifest, we do not reach ;

it.

       She contends that the trial court failed to instruct the jury that all twelve

jurors must be involved during deliberations and that this failure violated her right

to a fair trial and unanimous verdict.

       Under RAP 2.5(a)(3), a party may raise, for the first time on appeal, a

manifest error affecting a constitutional right.12 An alleged error regarding lack of

juror unanimity is of constitutional magnitude and, thus, may be raised for the first

time on appea1.13

                                    Manifest Error

       The issue is whether this error is manifest. We conclude that it is not.

       The party "must identify the constitutional error and show that it actually

affected his or her rights at trial" in order to claim a manifest error affecting a

constitutional right.14 This requires that the party "make a plausible showing that

the error resulted in actual prejudice, which means that the claimed error had

practical and identifiable consequences in the trial."15 "If the facts necessary to




       12   See also State v. Lamar, 180 Wn.2d 576, 582, 327 P.3d 46 (2014).

       13   See State v. Stockmyer, 83 Wn. App. 77, 86, 920 P.2d 1201 (1996).

       14   Lamar, 180 Wn.2d at 583.

       15   Id.

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adjudicate the claimed error are not in the record on appeal, no actual prejudice '

is shown and the error is not manifest."16

         Here, this record shows that the trial court gave the jury unchallenged

instructions on their duty to deliberate. There is nothing in this record to show

what went on in the jury room. Thus, we simply do not know whether any of the

claims Villatoro makes on appeal are real in this case. Absent such a showing,

her assertions are entirely speculative, not manifest. Thus, she failed to

establish a right to relief under RAP 2.5(a).

                                       COSTS

         The State properly concedes that it is not entitled to an award of costs on

appeal. Accordingly, we deny any such an award.

         We affirm the judgment and sentence and deny any award of costs to the

State.




WE CONCUR:




         16   State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
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