                                                                         FILED
                                                                      APRIL 10,2014
                                                                In the Office of the Clerk of Court
                                                              W A State Court of Appeals, Division III




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

STATE OF WASHINGTON, 	                       )         No. 32155-0-111
                                             )

                    Respondent,              )

                                             )

             v. 	                            )
                                             )
DANIEL S.A. HOLCOMB,                         )        PUBLISHED OPINION
                                             )
                    Appellant.               )

      BROWN, J. - Daniel Holcomb appeals his second degree assault conviction. He

contends he was denied his constitutional right to jury unanimity. Under well-settled

authority, we disagree. Mr. Holcomb next contends the accomplice liability statute is

unconstitutional because it criminalizes constitutionally protected speech. We hold

RCW 9A.08.020 is constitutional. Accordingly, we affirm.

                                         FACTS

      Mr. Holcomb and Anthony Sumait approached Charles Burnett's home, possibly

to inquire about a truck for sale. Mr. Burnett was standing outside when the two men

approached him. Jennifer Mingier, Mr. Burnett's girl friend, was outside and saw both

men had stick-type weapons in their hands. She watched as both men struck Mr.

Burnett. Mr. Burnett fell to the ground, but managed to pull out his pistol and shoot. Mr.

Holcomb was hit and fell to the ground. Mr. Sumait ran off, but was soon apprehended.
No. 32155-0-111
State v. Holcomb


Police arrived and observed Mr. Holcomb on the ground with a stick next to him. Mr.

Holcomb's deoxyribonucleic acid (DNA) was found on the stick.

       The State charged Mr. Holcomb with second degree assault either as a principal

or accomplice. Following the State's case in chief, Mr. Holcomb asked the court, "to

entertain a motion to dismiss at least the felony components of the charge. . .. I'm

referring to both direct liability and accomplice liability here. I'm not asking for an out-

and-out dismissal because I believe that a rational trier of fact, certainly with the

inferences all pointed in the direction most favorable to the prosecution, could find that

Mr. Holcomb came there with Mr. Sumait and acted as his accomplice while Mr. Sumait

committed a fourth degree assault." Report of Proceedings (RP) at 112. The court

denied the motion. Later, Mr. Holcomb asked the court to instruct the jury they must be

unanimous as to Mr. Holcomb's mode of participation in the offense, either that Mr.

Holcomb acted as an accomplice to Mr. Sumait's attack, or Mr. Holcomb acted as a

principal in assaulting Mr. Burnett himself. The court ruled that such an instruction

would invade the province of the jury, stating, "I can't tell the jury what to believe or not

to believe. They're entitled to analyze all the witnesses and come up with their own

conclusion on what factually happened." RP at 120.

       During trial, the jury was instructed that to convict Mr. Holcomb, it had to find "the

defendant and/or an accomplice intentionally assaulted Charles Burnett with a deadly

weapon." Clerk's Papers at 22. In closing argument, the State argued the jurors did not




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No. 32155-0-111
State v. Holcomb


"have to determine whether [Mr. Holcomb acted as] an accomplice or the principal. You

only have to be satisfied individually as to the facts." RP at 161-62.

       The jury found Mr. Holcomb guilty as charged. He appealed.

                                        ANALYSIS

                                    A. Jury Unanimity

       The issue is whether Mr. Holcomb was denied his constitutional right to jury

unanimity. Mr. Holcomb contends the trial court erred in denying his request for an

instruction telling the jury it had to be unanimous regarding whether he was an

accomplice or a principal.

       Generally, we review a trial court's denial of a defendant's proposed jury

instruction for an abuse of discretion. State v. Winings, 126 Wn. App. 75, 86, 107 P.3d

141 (2005). A trial court abuses its discretion if it exercises its discretion based on

untenable grounds or for untenable reasons. State v. Smith, 124 Wn. App. 417, 428,

102 P.3d 158 (2004).

       Criminal defendants in Washington have a constitutional right to a unanimous

jury verdict. State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994);

CONST. art. I, § 21. We review for constitutional harmless error a trial court's alleged

failure to give a unanimity instruction. State v. Bobenhouse, 166 Wn.2d 881,893,214

P.3d 907 (2009). Mr. Holcomb incorrectly argues an analysis under State v. Gunwall,

106 Wn.2d 54, 720 P.2d 808 (1986) is necessary to determine whether the state

constitutional provision applies to accomplice liability cases.



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State v. Holcomb


       A person may be liable for the acts of another if he acts as an accomplice. RCW

9A.08.020. A person is an accomplice if, with knowledge that it will promote or facilitate

the commission of a crime, he solicits, commands, encourages, or requests another

person to commit the crime or aids or agrees to aid another in planning or committing

the crime. RCW 9A.08.020(3)(a)(i), (ii). '''Accomplice liability represents a legislative

decision that one who participates in a crime is guilty as a principal, regardless of the

degree of the participation.'" State v. McDonald, 138 Wn.2d 680, 689,981 P.2d 443

(1999) (quoting State v. Hoffman, 116 Wn.2d 51, 104, 804 P.2d 577 (1991 ».

       Hoffman is instructive. There, two individuals were charged with aggravated first

degree murder of a police officer. Mr. Hoffman posed the same issue raised by Mr.

Holcomb. Our Supreme Court held, U[I]t is not necessary that jurors be unanimous as to

the manner of an accomplice's and a principal's participation as long as all agree that

they did participate in the crime." Hoffman, 116 Wn.2d at 104. The court found no

instructional error. Id. at 105.

       And, U[t]he legislature has said that anyone who participates in the commission of

a crime is guilty of the crime and should be charged as a principal, regardless of the

degree or nature of his participation. Whether he holds the gun, holds the victim, keeps

a lookout, stands by ready to help the assailant, or aids in some other way, he is a

participant. The elements of the crime remain the same." State v. Carothers, 84 Wn.2d

256,264,525 P.2d 731 (1974), overruled on other grounds by State v. Harris, 102

Wn.2d 148,685 P.2d 584 (1984).



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State v. Holcomb


       Division Two of this court recently addressed this issue. In State    v. Walker' -
Wn. App. _,315 P.3d 562 (Dec. 20, 2013), the State charged Mr. Walker as an

accomplice to multiple murder, assault, and robbery charges. Id. at 564. He argued the

accomplice liability jury instruction violated his right to a unanimous jury. Relying on

Hoffman, the court held, "The trial court's instructions were correct statements of

accomplice liability law and did not deny Walker his due process." Walker, 315 P .3d at

567. The court continued, "There was no need for a unanimity instruction where

accomplice liability allows a jury to convict as long as it finds that the elements of the

crime were met, regardless of which participant fulfilled them." Id.

       Moreover, Mr. Holcomb raises an issue that our Supreme Court has reviewed

and rejected. Under the doctrine of stare decisis, we accept the rulings of the Supreme

Court. Accordingly, the trial court did not violate Mr. Holcomb's right to a unanimous

jury when deciding not to instruct the jury regarding unanimity as to whether Mr.

Holcomb was an accomplice or principal. Mr. Holcomb fails to establish reversible

error; a Gunwall analysis is unnecessary.

                          B. Constitutionality of RCW 9A.08.020

       The issue is whether RCW 9A.08.020 (the accomplice liability statute) is

unconstitutionally overbroad. Mr. Holcomb contends the statute criminalizes speech

protected by the First Amendment. We review this constitutional issue de novo. State

v. Bli/ie, 132 Wn.2d 484.489.939 P.2d 691 (1997).




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       Under RCW 9A.08.020(3)(a)(ii), an individual may be convicted as an accomplice

if he or she, acting "[wJith knowledge that it will promote or facilitate the commission of

the crime," the individual "[a]ids or agrees to aid such other person in planning or

committing it." The statute does not define "aid" but Washington decisions have long

accepted the pattern jury instruction's definition of "aid." See State v. McKeown, 23 Wn.

App. 582,591,596 P.2d 1100 (1979) ("The word 'aid' means all assistance whether

given by words, acts, encouragement, support or presence. A person who is present at

the scene and is ready to assist by his or her presence is aiding in the commission of

the crime.").

       "The First Amendment, applicable to the States through the Fourteenth

Amendment, provides that 'Congress shall make no law ... abridging the freedom of

speech.'" Virginia v. Black, 538 U.S. 343, 358, 123 S. Ct. 1536, 155 L. Ed. 2d 535

(2003). A state criminal law "may be invalidated as overbroad if 'a substantial number

of its applications are unconstitutional, judged in relation to the statute's plainly

legitimate sweep.'" United States v. Stevens, 559 U.S. 460, 473,130 S. Ct. 1577, 176

L. Ed. 2d 435 (2010) (quoting Wash. State Grange v. Wash. State Republican Party,

552 U.S. 442, 449 n.6, 128 S. Ct. 1184, 170 L. Ed. 2d 151 (2008».

       Mr. Holcomb contends the accomplice liability statute runs afoul of the First

Amendment by criminalizing "aid" or "agreement to aid," defining it to include pure

speech, without limiting criminalization to speech directed to inciting or producing

imminent lawless action. Divisions One and Two of this court have rejected Mr.



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No. 32155-0-111
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Holcomb's contention. In State v. Coleman, 155 Wn. App. 951, 960-61, 231 P.3d 212

(2010), Division One relied on the mens rea requirement imposed by the statute,

likening it to the pedestrian interference ordinance that our Supreme Court concluded

was not overbroad in City of Seattle v. Webster, 115 Wn.2d 635,802 P.2d 1333 (1990).

In State v. Ferguson, 164 Wn. App. 370, 376, 264 P.3d 575 (2011), review denied, 173

Wn.2d 1035 (2012), Division Two adopted the Coleman analysis, adding that the

statute's language forbids solely advocacy directed at and likely to incite or produce

imminent lawless action.

       Mr. Holcomb argues we should reject Coleman and Ferguson as wrongly

decided because those cases erroneously rely on cases involving conduct, whereas the

act of "aiding" can involve pure speech. But, the accomplice liability statute has been

construed to apply solely when the accomplice acts with knowledge of the specific crime

that is eventually charged, rather than with knowledge of a different crime or

generalized knowledge of criminal activity. State v. Cronin, 142 Wn.2d 568, 578-79, 14

P.3d 752 (2000); State v. Roberts, 142 Wn.2d 471,512,14 P.3d 713 (2000). And the

required aid or agreement to aid the other person must be "in planning or committing

[the crime]." RCW 9A.08.020(3)(i). Statutes are presumed to be constitutional and

wherever possible '''it is the duty of [the] court to construe a statute so as to uphold its

constitutionality.'" In re Det. of Danforth, 173 Wn.2d 59, 70, 264 P.3d 783 (2011)

(quoting State v. Reyes, 104 Wn.2d 35,41,700 P.2d 1155 (1985». Mr. Holcomb does




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No. 32155-0-111
State v. Holcomb


not overcome this presumption. Given all, like Divisions One and Two, we hold RCW

9A.08.020, the accomplice liability statute, is constitutional.

       Affirmed.



                                                          Brown, J.

WE CONCUR:




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