                                                                                        OUP 1 OF APPEALS
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                                                                                     2014 MAR - 4       AVI 9., 20

                                                                                      STATE OF WASE- INIGTO --

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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II

STATE OF WASHINGTON,                                                                 No. 43471 -7 -II


                                       Respondent,


        V.



NAINOA KEKAI FONTAINE,                                                       UNPUBLISHED OPINION




        JOHANSON, A. C. J. —            Nainoa Kekai Fontaine appeals his jury trial conviction for first

degree robbery.'       He   argues      that ( 1)   the trial   court' s "   nonstandard"       jury instruction, which

                            in
omitted - sentence required -
        a                                11- -Washington Practice:           Washington Pattern Jury Instructions:

Criminal 4. 01,   at   85 ( 3d   ed.   2008) ( WPIC),      failed to inform the jurors that he did not have the

burden to prove reasonable doubt; and ( 2) Washington' s complicity statute, RCW 9A.08. 020, is

unconstitutionally overbroad because it criminalizes speech that is protected under the First
Amendment. He further argues that he can raise both of these errors for the first time on appeal

because they   are manifest       errors affecting       constitutional rights.      Fontaine does not establish that


the trial court' s failure to inform the jurors that he did not have the burden to prove reasonable

doubt   was a manifest constitutional           error;    accordingly,       we   decline to    address   this issue.   And




 Fontaine does    not challenge        his first degree rendering       criminal assistance conviction.
No. 43471 -7 -II



Fontaine' s' challenge to the accomplice liability statute fails under State v. Ferguson, 164 Wn.

App.      370, 264 P. 3d 575 ( 2011),                  review    denied, 173 Wn.2d 1035 ( 2012).               Accordingly, we

affirm.



                                                                  FACTS


                                                            I. BACKGROUND


           On January 7, 2012, Fontaine was living with fellow heroin users Donald Francis Gault

and    Gault'    s   fiancee, Heather Inks.                After running out of heroin and starting to experience

withdrawal symptoms that morning, Fontaine. contacted Jaffeney Gohl by text and asked her to

bring     some       heroin to the house.             Gohl agreed to sell Fontaine some heroin and brought Beau


Hymas with her to Gault' s home; Hymas had planned to purchase a television from Gault for

Stephen Santella and was carrying money Santella had given him for the television.

           When Gohl and Hymas entered Gault' s house, Gault met them in the living room with
                                            2                                                                                      3
what appeared              to be   a gun,       pointed    the   gun at     them,   and    demanded the drugs       and   money.


Fontaine then came out of his bedroom, which was just inside the home' s front door, and

blocked the exit.-            According         to Gohl,    she " hand[ ed]     over   the dope"      to Gault or Fontaine and


Hymas handed his              wallet   to Fontaine         who    left $ 100 in the    wallet and returned       it to Hymas.      1


Report      of   Proceedings ( RP)              at   53.   According to Hymas, Fontaine told them to empty their

pockets      and      to   give    him the money.           Fontaine then took            all   but $ 100 out of the wallet and




2
    The   gun was      actually     an " air pistol."       2 Report    of   Proceedings ( RP)      at   137. But Gohl thought it
was a real gun, and Hymas thought it was a real gun until just before leaving the house.
3
    Shortly before Gohl and Hymas arrived, Gault told Inks to go to their bedroom because he did
not want her to witness a crime.


                                                                       FA
No. 43471 -7 -11


                            4
returned   it to Hymas.          Fontaine moved away from the door, and Gohl and Hymas left. Fontaine,

Gault, and Inks split the heroin and the money.

          Soon after leaving Gault' s house, Gohl and Hymas reunited with Santella at a local store

and told him about the robbery; he insisted they take him to Gault' s house so he could recover

his money..       When they arrived at Gault' s house, Gault came outside and Santella and Hymas

fought    with   him   on   the   porch where      Gault   stabbed     Santella     with a   knife. Fontaine came out of


the   house   and   helped to break up the fight. Hymas and Santella left, Gohl drove them back to


the   store, and    Santella'     s girlfriend   took him to the hospital.          Someone called the police, and the


police determined that the stabbing had occurred at Gault' s house.

          When the police arrived at Gault' s house to investigate the stabbing, Fontaine came

outside    to talk to them.         He told the officers that he was just visiting, that Gault and Inks were

inside the house, and that two men had arrived at the house and had started a fight; he did not

mention    the    drugs   or    the robbery.     The officers told him that he was free to go, but Fontaine did

not leave.


          After unsuccessfullytrying to-contact Gault or Inks by telephone, -the officers sought a

search warrant       to   allow    them to   search   for Gault      and   for   evidence related   to the stabbing.   When


the officers obtained the search warrant about four hours later, they broke down the door; Gault

and Inks were inside.


          While interviewing Gault and Inks about the stabbing, the officers learned about the

robbery     and     Fontaine'     s participation     in it.   The officers also learned that Fontaine had been


texting Gault while the officers were waiting for the search warrant. In these texts, Fontaine told


4
    Gohl did not remember who took the money and drugs.

                                                                 3
No. 43471 -7 -II



Gault that the officers were seeking a search warrant, suggested that Gault flee via a bedroom

window, and told Gault what he ( Fontaine) had told the officers about the stabbing.

                                                     II. PROCEDURE


                                                A. TRIAL TESTIMONY


         The State charged Fontaine with first degree robbery and first degree rendering criminal

assistance,     The   case proceeded       to   a   jury   trial.   The State' s witnesses testified as described


above. Fontaine was the sole defense witness.


         Gault, who testified for the State, testified that he alone planned the robbery and denied

having   discussed his robbery      plan with       Fontaine. But he also admitted that he had told Fontaine


that he had arranged for Hymas and Gohl to come over with some drugs and that he " made"

Fontaine take the money from Hymas and Gohl. Gault further testified that he expected Fontaine

to participate in the robbery because Fontaine was living in his house, that Fontaine took both the

money and the drugs from Hymas and Gohl, and that he ( Gault) shared the money and drugs
with   Fontaine    after   the robbery.   The State also played a recorded statement Gault had given the

police- in which Gault told the officer that he ( Gault) had discussed the- robbery with Fontaine - - -

before it happened and that Fontaine participated in the robbery.

          Fontaine denied knowing about Gault' s robbery plans and, although he admitted that he

came out of his room and was standing in his doorway at the time of the robbery, he denied

having taken the money or drugs from Gohl or Hymas despite Gault' s demanding that he do so.

5
    RCW 9A.56. 200( 1)( a)( ii).


6 RCW 9A.76. 070( 1).

7 Gault pleaded guilty to first degree robbery and second degree assault with a deadly weapon
 enhancement.




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No. 43471 -7 -II



Fontaine admitted to having texted Gault and attempting to help Gault escape while the officers

were waiting for the search warrant, but he asserted that he did not know at the time that he was

committing a felony.

                                                         B. JURY INSTRUCTIONS


         The trial court gave the jury the following reasonable doubt/burden instruction, which

was based on WPIC 4. 01:

                       The defendant has              entered pleas    of not    guilty.   Those pleas put in issue

             every element of each crime charged. The State is the plaintiff and has the burden
             of proving each element of each crime beyond a reasonable doubt.
                       A    defendant            is   presumed      innocent.       This    presumption     continues
             throughout the entire trial unless during your deliberations you find it has been
             overcome by the evidence beyond a reasonable doubt.
                    A reasonable doubt is one for which a reason exists and may arise from
             the   evidence or        lack     of evidence.   It is such a doubt as would exist in the mind of
             a   reasonable          person      after   fully, fairly, and carefully considering all of the
             evidence      or   lack            If, after such consideration, you have an abiding
                                        of evidence.

             belief in the truth of the charge, you are satisfied beyond a reasonable doubt.

Clerk'   s   Paper ( CP)        at   9 - 10.    This instruction was identical to WPIC 4. 01 except it omitted the

last   sentence of      the first      paragraph, which reads, "          The defendant has no burden of proving that a

reasonable doubt exists [ as to these elements]."


             The trial court also gave the following accomplice liability 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 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

                        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


                                                                      5
No. 43471 -7 -II



         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.


CP at 12 -13. No one objected to any of the trial court' s jury instructions.

         The jury convicted Fontaine of first degree robbery and first degree rendering criminal

assistance. Fontaine appeals his first degree robbery conviction.

                                                          ANALYSIS


                                             I. BURDEN OF PROOF INSTRUCTION


         For the first time on appeal, Fontaine argues that the trial court' s burden of proof


instruction deprived him of due process because it failed to advise the jury that he had no burden

to   prove   that a   reasonable       doubt   existed.   He contends that by omitting the sentence from WPIC

4. 01 that    stated, "   The defendant has no burden of proving that a reasonable doubt exists [ as to

these elements],"         the trial court violated our Supreme Court' s directive that the trial courts use

WPIC 4. 01      and    that this      omission was a manifest constitutional error.                We hold that this error is


not manifest.



                                  A. MANIFEST CONSTITUTIONAL ERROR STANDARD


                      Generally, an appellate court may refuse to entertain a claim of error not
         raised       before the trial        court.   RAP 2. 5(   a).  An exception exists for a claim of
         manifest error           affecting    a constitutional    right. Id. In order to benefit from this
         exception, "          the appellant must ` identify a constitutional. error and show how the
                     actually affected the [ appellant]' s rights at trial. "' State v. O' Hara,
         alleged error

         167 Wn.2d 91, 98, 217 P. 3d 756 ( 2009) ( alteration in original) ( quoting State v.
         Kirkman, 159 Wn.2d 918, 926 -27, 155 P. 3d 125 ( 2007)). A constitutional error is
         manifest         if    the   appellant    can    show   actual   prejudice,       i.e.,   there must be a
              plausible showing by the [ appellant] that the asserted error had practical and
         identifiable          consequences      in the trial of the case. "' Id. at 99, 217 P. 3d 756
             alteration    in   original) (   quoting Kirkman, 159 Wn.2d at 935, 155 P. 3d 125). If an
         error of constitutional magnitude is manifest, it may nevertheless be harmless. Id.
         The burden of showing an error is harmless remains with the' prosecution.
         Chapman v. California, 386 U. S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 ( 1967)
             establishing State'       s   burden to   show   harmless    error   beyond    a reasonable    doubt).
No. 43471 -7 -II




State    v.   Gordon, 172 Wn.2d 671, 676, 260 P. 3d 884 ( 2011) (              emphasis added).



                                                       B. WPIC 4. 01


              In State v. Bennett, our Supreme Court directed the trial courts to use only WPIC 4.01 " to

inform the jury of the government' s burden to prove every element of the charged crime beyond

a reasonable          doubt."     161 Wn. 2d 303, 318, 165 P. 3d 1241 ( 2007).                WPIC 4. 01 describes the


State'   s    burden    as    follows,    enclosing in brackets those portions that are used in particular

circumstances:



                        The] [ Each] defendant has      entered a plea of not      guilty. That plea puts in
              issue every     element of [the]   [ each] crime     charged.   The [ State] [ City] [ County] is
              the plaintiff     and   has the burden   of   proving   each    element of [ the]   [   each]   crime

              beyond    a    reasonable   doubt.    The defendant has no burden of proving that a
              reasonable doubt exists [ as to these elements].
                       A     defendant     is   presumed     innocent.        This   presumption        continues


              throughout the entire trial unless during your deliberations you find it has been
              overcome by the evidence beyond a reasonable doubt.
                      A reasonable doubt is one for which a reason exists and may arise from
              the evidence or lack of evidence. It is such a doubt as would exist in the mind of a
              reasonable person after fully, fairly, and carefully considering all of the evidence
              or lack of evidence. [ If, from such consideration, you have an abiding belief in

              the truth of the charge, you are satisfied beyond a reasonable doubt.]

 Emphasis         added.)      The trial court' s instruction omitted the last sentence of the first paragraph.$

The trial       court' s omission of a portion of       WPIC 4. 01 is clearly        error.   See State v. Castillo, 150


Wn. App. 466, 473, 208 P. 3d 1201 ( 2009).

                                        C. NO MANIFEST CONSTITUTIONAL ERROR


              Even though the trial court erred in omitting a portion of WPIC 4. 01, for purposes of

RAP 2. 5(       a),   Fontaine must also show that this error was of constitutional magnitude and that it



 8 The instruction the State proposed conformed to WPIC 4. 01 and included the sentence the final
 instruction      omitted.       The record does not explain why the trial court omitted this sentence in its
 final instruction.


                                                               7
No. 43471 -7 -II



  had   practical and      identifiable   consequences     in the trial   of   the   case."'     O' Hara, 167 Wn.2d at 99


 internal   quotation marks omitted) (         quoting Kirkman, 159 Wn.2d                at    935).    Even presuming, but

not deciding, that this error was of constitutional magnitude, Fontaine fails to show that the error

had practical and identifiable consequences.9

          Despite omitting this sentence, the trial court' s reasonable doubt instruction correctly and

clearly instructed the jury that it was the State' s burden to prove each element of each. crime and

that Fontaine      was presumed        innocent.    There was no language in any of the court' s instructions

suggesting Fontaine had any responsibility to                establish reasonable              doubt.    And throughout his


closing argument, defense counsel repeatedly advised the jury that Fontaine did not have any
burden of proof. Moreover, Fontaine does not point to, nor can we discern, anything in the trial

court' s oral instructions to the jury or the State' s argument that remotely suggests Fontaine had

the burden of presenting any             evidence or   rebutting the State'     s evidence.       10 Given the instructions

and argument as a whole, we hold that Fontaine does not show that the trial court' s omission had

any    practical or   identifiable     consequences on      this trial.   Accordingly, we decline to address this

issue further: RAP 2. 5( a). -




9 We recognize that the Castillo court reversed based on a nonstandard reasonable doubt
instruction that contained an error similar to the one here. 150 Wn. App. at 473, 475. But
Castillo is distinguishable because ( 1) the defendant objected to the improper instruction, and ( 2)
the instruction      at   issue   also contained several additional errors.             150 Wn. App. at 467, 470, 473-
 75.  Additionally, the Castillo court never analyzed whether the language omitted here was
 constitutionally required; it merely determined that the absence of this language did not improve
 the   required    language in WPIC 4. 01.         150 Wn. App. at 473.
 to
      In fact, defense counsel' s argument suggests that at the start of the case, the trial court advised
                   Fontaine had          burden.                    this               the                      transcribed.
 the   jury that                    no             Unfortunately,          part of             record was not
No. 43471 -7 -II



                                             II. ACCOMPLICE LIABILITY


          Fontaine    next     argues      that    Washington'      s    complicity       statute,      RCW       9A. 08. 020,   is


unconstitutionally overbroad because it criminalizes speech that is protected under the First

Amendment.       11 He asks us to overrule our decision rejecting this identical argument. in Ferguson

and to reject the analysis in Division One of this court' s decision in State v. Coleman, 155 Wn.

App.    951, 231 P. 3d 212 ( 2010),        review   denied, 170 Wn.2d 1016 ( 2011).                  Even assuming, but not

deciding, that Fontaine can raise this argument for the first time on appeal, this argument fails.

          Under RCW 9A.08. 020( 3)(           a), a person      is guilty    as an accomplice           if "[w]ith knowledge


that it   will promote or    facilitate the   commission of         the    crime,   he   or she ... (     ii) [a] ids or agrees to


aid such other person        in planning    or    committing it."        Fontaine argues that by including assistance

given by words or encouragement, the definition of "aid" in the Washington accomplice liability
                                                                                                                                   12
                 instruction   criminalizes a vast amount of speech             that the First Amendment               protects.
pattern   jury

                   A statute is unconstitutionally overbroad if it prohibits a substantial
           amount of protected speech and conduct.  City of Seattle v. Huff, 111 Wn.2d 923,
           925, 767 P. 2d 572 ( 1989). A statute that regulates behavior, not pure speech, will
           not be overturned " unless the overbreadth is ` both real and substantial in relation
           to the [ statute' s] plainly legitimate sweep."'   City ofSeattle v. Eze; 111 Wn.2d 22;
           31, 759 P. 2d 366 ( 1988) (       quoting O' Day v. King County, 109 Wn.2d 796, 804,
           749 P. 2d 142 ( 1988)).      The constitutional guarantee of free speech does not allow
           a State to forbid the advocacy of a law violation " except where such advocacy is

11
      The First Amendment        provides     in   part   that "[ c]    ongress shall make no           law ...     abridging the
freedom      of speech."     U. S. CONST.     amend.      I. The First Amendment applies to the states through
the Fourteenth Amendment.               Kistap County v. Mattress Outlet, 153 Wn.2d 506, 511, 104 P. 3d
 1280 ( 2005).

 12
      The Washington Pattern Jury Instruction provided to the jury here defines " aid" as follows:
                    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.
 CP at 13; see also 11 WPIC 10. 5 1, at 217 ( 3d ed. 2008).
                                                                9
No. 43471 -7 -II



          directed to inciting or producing imminent lawless action and is likely to incite or
          produce such action."              Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827,
          23 L. Ed. 2d 430 ( 1969).


Ferguson,        164 Wn.      App.      at    375.       In Coleman, Division One of this court held that the


accomplice       liability    statute        was   not    unconstitutionally     overbroad       because    it " requires the


criminal mens rea to aid or agree to aid the commission of a specific crime with knowledge the

aid will   further the   crime,"     thus showing that the speech at issue was intended to and was likely

to   produce     or   incite imminent lawless              action.        155 Wn.   App.   at   960 -61.   We adopted this


reasoning in Ferguson.          164 Wn. App. at 376.

           Fontaine acknowledges Ferguson and Coleman, but he argues that the courts decided

these cases incorrectly ( and, therefore, we should reconsider these cases) because the courts'

reliance    on   the mens     rea requirement            does   not meet    the federal    Brandenburg     standard.    But in


Ferguson,        we    addressed        the    Brandenburg           standard   and   concluded        that "[   b] ecause   the


 accomplice       liability] statute' s language forbids advocacy directed at and likely to incite or

produce imminent lawless action, it does not forbid the mere advocacy of law violation that is

protected    under     the   holding    of    Brandenburg.`          164 Wn. App•- at 376.        We once again reject this


constitutional challenge.         See also State v. McCreven, 170 Wn. App. 444, 484 -85, 284 P. 3d 793

 2012) ( rejecting the        same argument and             following      Ferguson), review denied, 176 Wn.2d 1015


 2013).




                                                                     10
No. 43471 -7 -II



        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.
                                                                          4.
                                                                      ri J,
                                                   HANSON, A.C. J.
We concur:




BRGE,?;J




                          I



MAXA, J. ,




                                              11
