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        IN THE COURT OF APPEALS OF THE STATE OF WASHINGT                                                           PU


                                                   DIVISION II

STATE OF WASHINGTON,                                                           No. 43467 -9 -II


                                          Respondent,


          V.



ANTWANE GOOLSBY,                                                         UNPUBLISHED OPINION


                                          Appellant.




          HUNT, P. J. —          Antwane Goolsby appeals his jury trial convictions for first degree

premeditated murder, first degree felony murder, and unlawful possession of a firearm and the

jury' s   special verdicts      finding    the presence of two gang      aggravators.    Goolsby argues that the

trial   court' s "   to   convict"   instructions violated his right to a jury trial and the evidence is

insufficient to support the jury' s special verdicts findings. We affirm.

                                                        FACTS


                                1. MURDER AND UNLAWFUL FIREARM POSSESSION


          Antwane         Goolsby    is   a member of   the " Neighborhood Compton Crips"          street    gang.      7


Verbatim Report            of   Proceedings ( VRP)      at   390.    Goolsby recruited 19- year -old Lawrence

McWilliams to join this gang, initiation into which required McWilliams to engage in a street

fight.     After McWilliams'              initiation, Rauwn Bernard drove them to Bernard' s girlfriend' s


residence      in Tacoma. While there, both Bernard            and   McWilliams   saw   Goolsby   carrying   a gun.
No. 43467 -9 -II



           That evening, Goolsby received a call from the mother of his two children, Alishya

Breedlove, who had been at her friend Tiffany Hawkins' 30th birthday party in Tacoma with

some    24     other people.         As the ' party was winding down, Breedlove received a call from her

friend Rachel Williams and drove to the Walgreens at 38th and Pacific Avenue to pick her up.

           Riding with Breedlove to pick up Williams were five or six men, including one that she

knew    as "   No Good,"          whose real name she       believed     was ." James."   6 VRP     at   334.   On the way

back to Hawkins' house, one of Breedlove' s male passengers ( not the victim, James Smith)

started "   acting crazy,"        walking around inside her van, and blocking her rear view. 6 VRP at 336.

Breedlove asked the .man to stop, but he refused. As the men became louder, Breedlove warned

them that      she was      going to   call   Goolsby. Eventually Breedlove did call Goolsby and asked him

to help get the men out of her van. But when she arrived back at Hawkins' house, everyone got

out   of   her   van   without major          incident.   And by the time Goolsby arrived with Bernard and

McWilliams, Breedlove was no longer having problems with the men.

           As Breedlove and Williams were leaving Hawkins' house, Breedlove spoke to Goolsby

from her       van.    When Goolsby asked Breedlove where the men that had bothered her were, she

pointed to the group of men standing on the sidewalk but told Goolsby not to worry about it.

James Smith           was    among the group        of men.       Nevertheless, Bernard then drove Goolsby and

McWilliams to the group of men. Goolsby gave McWilliams one of his ski masks, and they both

put them on.



           Goolsby         then   exited   the car armed with a pistol.      As he approached Smith, the other two


men ran off.          According      to McWilliams,       all   three   were members of    the "   Hilltop Crip[ s]"   street




gang.      7 VRP      at   446.    Goolsby     began arguing      with   Smith,   who said, "[   I]t' s Hilltop Crip and of



                                                                  9
No. 43467 -9 -II



you."   7 VRP      at   448.      Goolsby    ordered   Smith to "          skin   down," which means " give up everything


you got or you might              die. You   might get shot."              8 VRP    at    487.       Goolsby grabbed Smith by his

collar and pointed          the   gun at   his head.   Goolsby called McWilliams over to rob Smith, who was

unarmed.     According to Bernard, as Smith tried to run, Goolsby shot him in the head, firing

seven to eight shots; according to McWilliams, Smith took off running and Goolsby chased after

him, emptying his            entire   clip shooting        at    Smith.       After Goolsby shot him, Smith fell to the

ground, twitched, and stopped moving.

         Medical examiner Jacquelyn Morhaime later determined that Smith had been shot five

times   in the back         and    arm.    FBI agents eventually arrested Goolsby and McWilliams in Las

Vegas several weeks later.

                                                           II. PROCEDURE


         The State          charged       Goolsby   with        premeditated        first degree            murder ( count      1) (   RCW


9A. 32. 030( 1)(   a)),     with a firearm sentencing enhancement; felony first degree murder, also with a

firearm sentencing           enhancement ( count           2) ( RCW 9A.32. 030( 1)(                  c));   and first degree unlawful

                                                                                         1.
possession     of       a    firearm (     count    3) (    RCW            9. 41. 040)              The     State   added two          RCW

                                                                                                                                       2,
9. 94A. 535( 3)(   aa) and        RCW 9. 94A.535( 3)(           s)   gang aggravating           circumstances       to   all counts.        The


trial court granted Goolsby' s motion to proceed pro se and later reconfirmed Goolsby' s election

after an extended colloquy.



1
    The legislature       amended     RCW 9. 41. 040 in 2011.                 The amendments did not alter the statute in
any way relevant to this case; accordingly, we cite the current version of the statute.
2
    The legislature         amended    RCW 9. 94A.535 in 2010, 2011                           and   2013.    The amendments did not
alter the statute in any way relevant to this case; accordingly, we cite the current version of the
statute.




                                                                       3
No. 43467 -9 -II



           In all of its " to convict" instructions, the trial court included the following language:

                        If you find from the evidence that each of these elements has been proved
           beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
                 On the other hand, if, after weighing all of the evidence, you have a
           reasonable doubt as to any one of these elements, then it will be your duty to
           return a verdict of not guilty.


Clerk' s Papers ( CP)          at   368 ( Jury Instruction 19), 371 (             Jury   Instruction 22),       372 ( Jury Instruction

23), 373 (    Jury      Instruction 24).     Goolsby objected to some of the jury instructions, but he did not

object to the " to convict" instructions use of the language about the " duty to return a verdict of

guilty."


           The     jury   returned verdicts of       guilty    on ( count        1)    premediated      first degree      murder, ( count




2)   felony   first degree         murder, and ( count        3) first degree unlawful               possession of a       firearm. The


jury also returned special verdicts finding that Goolsby ( 1) had been armed with a firearm during

the    commission of          the   murder ( counts     1    and      2); and ( 2) had committed the crimes charged in


counts     1, 2,   and    3 " to   obtain or maintain       his ...    membership          or   to   advance    his ...   position in the


hierarchy     of an organization, association,                 or     identifiable group"            and with    intent to "   cause ...




benefit,    aggrandizement,            gain, profit ...        to     or   for   a criminal       street   gang, [ in] its reputation,


influence,         or   membership[.]"          CP     at     387 -392;          see    also     RCW       9. 94A. 535( 3)(   aa);   RCW


9. 94A.535( 3)( s).


           At sentencing, the trial court did not adopt the jury' s gang aggravator findings and did not

impose      an exceptional sentence            based    on     these       aggravators.         Instead, the trial court found that


this   murder constituted           Goolsby'   s"   third   strike,"       making him a persistent offender, and sentenced

him to life in prison without parole under RCW 9. 94A.570. Goolsby appeals his convictions and

the.jury' s special verdict gang aggravator findings.



                                                                       M
No. 43467 -9 -II



                                                         ANALYSIS


                                          I. " TO CONVICT" INSTRUCTION.,


          Goolsby argues that the trial court' s " to convict" instructions violated his constitutional

right to a jury trial because they told the jury that if it found each element of a crime proved

beyond    a reasonable     doubt, the     jury   had     a "   duty"   to   return a verdict of          guilty. See,   e. g.,   CP at


368 (   Jury   Instruction 19).    Goolsby      argues        that because there is          no "`   duty "'   to convict under the



state or federal constitutions, this instruction affirmatively misled the jury about its power to

acquit.    Br.    of   Appellant   at   16 (   citations       omitted).       We do not address Goolsby' s argument

because he failed to object below on the grounds he now attempts to raise for the first time on

                                                                                                                         3
appeal and      does   not meet   the RAP 2. 5(    a)(   3)    exception       to this   preservation requirement.




                                         II. GANG AGGRAVATOR FINDINGS


          Goolsby also argues that the jury erroneously returned special verdicts, finding the

presence of two gang related aggravating factors, because ( 1) the State did not present sufficient

evidence that he committed the charged offenses in order to advance or maintain his position in a


criminal street gang and /or to benefit a criminal street gang or that his crimes were gang




3
  We note, however, that even were we to address the merits of this argument, Goolsby would
lose because we have previously held that this " duty language" in the Washington Pattern Jury

Instructions was not error, State v. Davis, 174 Wn. App. 623, 640 -41, 300 P. 3d 465, review
denied, 178 Wn.2d 1012 ( 2013) ( upholding                         a   trial    court' s "   to   convict"     instructions, which

advised the jury that it had a ` duty' to convict if it found the elements of the charged crimes
proved  beyond a reasonable doubt); State v. Brown, 130 Wn. App. 767, 770 -71, 124 P. 3d 663
 2005) ( same); State v. Bonisisio, 92 Wn. App. 783, 793 -94, 964. P. 2d 1222 ( 1998) ( same). We
decline Goolsby' s invitation to reconsider our previous decisions. See also Division One' s
recent opinion in State v. Moore,        Wn. App. ,         318 P. 3d 296 ( 2014), which similarly

upholds the very language that Goolsby attempts to challenge here.



                                                                   E
No. 43467 -9 -II


                4; (
motivated              2)   gang membership                  alone      cannot   justify    an   exceptional      sentence;   and (   3)


generalized statements fail to satisfy the State' s burden to prove the gang aggravators beyond a

reasonable doubt. Goolsby' s argument lacks merit because the trial court did not adopt the jury' s

special verdict gang aggravator findings and did not impose ,an exceptional sentence based on

gang aggravators.


           As Goolsby acknowledges, there is presently no gang- aggravated sentence for us to

review. Nevertheless, he urges us. to address his sufficiency challenge because

            i] f in the future the " three      law under which Goolsby was sentenced is
                                                            strikes"

           repealed or overturned, it is possible that Goolsby will be resentenced using a
           regular offender score and standard range.                            In that circumstance, the State might
           be able to request an exceptional sentence based on the jury' s findings.

Br.   of   Appellant        at   15.    This argument is based on speculation about what might happen in the

future,    a   possibility that is           not ripe       for   our consideration now.         Moreover, our resolution of this


issue     on   the     merits would constitute an                 improper advisory        opinion.   See State v. Eggleston, 164


Wn.2d 61, 76 -77, 187 P. 3d 233 ( 2008) (                              declining to reach issue concerning proceedings on

remand         because it        was   speculative whether              the issue   would    actually   arise);   State v. Davis, 163


Wn.2d 606,              616 -17,       184     P. 3d       639 ( 2008) (    declining to reach issue that might arise at

resentencing);          see also       State   v.   Roberts, 77 Wn.         App.    678, 683, 894 P. 2d 1340 ( 1995) (        declining

to   render opinion on a               sentencing deviation the trial               court might adopt).       Therefore, we do not




4
    See   also    RCW 9. 94A. 535( 3)(              aa);   RCW 9. 94A. 535( 3)(      s).
No. 43467 -9 -II



further address this argument.


        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.




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