                                                              FILED 

                                                          OCTOBER 22, 2013 

                                                      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. 30485-0-III
                                             )
                      Respondent,            )
                                             )
             v.                              )         UNPUBLISHED OPINION
                                             )
BILLY WAYNE DAVIS,                           )
                                             )
                      Appellant.             )

      KULIK, 1. - Billy Wayne Davis appeals his c(l1viction and sentence for first

degree robbery, arguing the State's evidence was insufficient to support the conviction in

the absence of a jury instruction on accomplice liability. We agree and reverse the

robbery conviction.

                                         FACTS

      During the early morning of August 20, 2010, Moses Sanders and Billy Davis

entered a Family Mart store in Pasco, Washington. Mr. Sanders told the night cashier,

Michael Acton, that "they were going to hold [Mr. Acton] up and [he] needed to

cooperate." Report of Proceedings (RP) (Oct. 20, 2011) at 38. Mr. Acton then saw the

barrel of what appeared to be a gun in Mr. Davis's jacket. Mr. Sanders followed Mr.
No. 30485-0-111
State v. Davis


Acton to the cash register and took money from the till, while Mr. Davis urged Mr.

Sanders to hUrry. After Mr. Sanders and Mr. Davis left, Mr. Acton called the police,

who arrested Mr. Davis and Mr. Sanders in a nearby park. During a search incident to

arrest, police found $289 in Mr. Davis's pocket. Police officers also found a modified

BB gun close to the car driven by Mr. Davis and Mr. Sanders.

      At the close of the testimony, both parties submitted instructions. The prosecution

did not submit or request an instruction on accomplice liability. In closing argument, the

State argued that the evidence proved beyond a reasonable doubt that Mr. Davis took

property from Mr. Acton against his will by threatened use of immediate force and,

therefore, was guilty of robbery. The State did not argue accomplice liability in closing.

      Mr. Davis was convicted as charged.

      At sentencing, the State asked the court to impose a sentence under the Persistent

Offender Accountability Act of the Sentencing Reform Act of 1981, ch. 9.94A RCW.

Defense counsel indicated that she had nothing to argue that would "change the

sentencing from mandatory to a not-mandatory term or to an alternative placement."

RP (Dec. 13,2011) at 9. The court sentenced him to life without the possibility of parole.




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No.30485-0-III
State v. Davis


                                         ANALYSIS

       Mr. Davis contends that his right to due process was violated when the trial court

accepted the jury's guilty verdict because there was insufficient evidence to convict him

of first degree robbery. He maintains that because the jury was not instructed on

accomplice liability, the State was required to prove principal liability, and there was no

evidence that Mr. Davis himselftook property from Mr. Acton. He contends, "[i]t

violates the right to trial by jury for the court to impose punishment based on accomplice

liability when the jury never considered that possibility or weighed its legal

requirements." Appellant's Br. at 12.

       The State responds that the law makes no distinction between principal and

accomplice liability, and that "[t]he State need not ask a jury to decide who exactly

participated in which specific elements of a crime, it is enough that the crime occurred

and the defendant participated." Resp't's Br. at 8.

       Due process requires the State to prove its case beyond a reasonable doubt. State

v. Baeza, 100 Wn.2d 487,488,670 P.2d 646 (1983). Evidence is sufficient to support a

conviction, if, viewed in a light most favorable to the jury's verdict, it permits any rational

trier of fact to find the essential elements beyond a reasonable doubt. State v. Salinas,

119 Wn.2d 192, 201, 829 P .2d lO68 (1992). A claim ofinsufficiency admits the truth of


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No. 30485-0-111
State v. Davis


the State's evidence and all reasonable inferences drawn therefrom. ld. Reviewing

courts defer to the trier of fact for purposes of resolving conflicting testimony and

evaluating the persuasiveness of the evidence. State v. Hernandez, 85 Wn. App. 672,

675,935 P.2d 623 (1997).

        For the jury to find Mr. Davis guilty of first degree robbery, the State had to prove

beyond a reasonable doubt that he (1) unlawfully took personal property from the person

of another; (2) by the use or threatened use of immediate force; and (3) during the

commission of the robbery, was (i) armed with a deadly weapon; (ii) displayed what

appeared to be a deadly weapon; or (iii) inflicted bodily injury. RCW 9A.56.190,

.200(1 )( a).

        The State is correct that criminal liability is the same whether one acts as a

principal or as an accomplice. RCW 9A.08.020(1), (2)(c). Accomplice liability is not an

element or alternative means ofa crime. State v. Teal, 152 Wn.2d 333,338,96 P.3d 974

(2004). Principal and accomplice are, however, alternative theories of liability requiring

different considerations, and although the State need not charge the defendant as an

accomplice in order to pursue liability on that basis, the court must instruct the jury on

accomplice liability. State v. Davenport, 100 Wn.2d 757, 764-65, 675 P.2d 1213 (1984);

State v. Jackson, 137 Wn.2d 712, 726-27, 976 P.2d 1229 (1999); RCW 9A.08.020(3).


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State v. Davis


Significantly, here, if the jury is not properly instructed on accomplice liability, the State

assumes the burden of proving principal liability. State v. Willis, 153 Wn.2d 366,374-75,

103 PJd 1213 (2005).

       Citing State v. Fenderson, 443 A.2d 76 (Me. 1982), a brief decision from Maine

that has not been cited as authority in any court, the State argues that an accomplice

instruction was not needed in this case because the evidence did not generate the issue of

accomplice liability, given that Mr. Davis and Mr. Sanders both entered the store and

jointly committed the robbery. It argues, "[Mr. Davis], while not physically pulling the

money out of the register, still obviously committed the robbery." Resp't's Br. at 8-9. It

also argues that in the absence of showing manifest constitutional error, Mr. Davis is

precluded from raising the issue of instructional error under RAP 2.5.

       The State misstates the issue before us. Mr. Davis is not alleging instructional

error; rather, he is arguing that the State failed to prove that he committed robbery in the

absence of an accomplice liability instruction. Thus, the State's harmless error analysis is

inapposite.

       Moreover, Fenderson is inapplicable here. In that case, police arrested the

defendant as he drove away from a house that had been recently damaged and, moments

earlier, police had seen the defendant's unoccupied car parked at the house, which


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No.30485-0-III
State v. Davis


pennitted the rational inference that the defendant had participated in damaging the

house. Fenderson, 443 A.2d at 77. The court held that the failure to give an instruction

explaining the legal requirements of accomplice liability was not error because the

evidence did not generate the issue of accomplice liability. Id. Unlike Fenderson, it is

undisputed that Mr. Davis did not personally commit all the elements of robbery.

Accordingly, an accomplice liability instruction was required.

       Whether the evidence is sufficient to sustain a verdict under the jury instructions

issued by the court is detennined by the law as set forth in the instructions. State v. Nam,

136 Wn. App. 698, 705-06,150 P.3d 617 (2007); State v. Hickman, 135 Wn.2d 97, 102­

03,954 P.2d 900 (1998).

               It is the approved rule in this state that the parties are bound by the
       law laid down by the court in its instructions[.] In such case, the sufficiency
       of the evidence to sustain the verdict is to be detennined by the application
       of the instructions and rules of law laid down in the charge.

Tonkovich v. Dep't o/Labor & Indus., 31 Wn.2d 220,225, 195 P.2d 638 (1948). Because

the trial court's "to convict" instructions were provided without objection, they become

the law of the case. State v. Hames, 74 Wn.2d 721,724-25,446 P.2d 344 (1968).

       Here, the court, without objection from either party, instructed the jury that to

convict Mr. Davis, it must find he actually took the property. The "to convict"

instruction, instruction 9, stated:

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No. 30485-0-111
State v. Davis


               To convict the defendant of the crime of robbery in the first degree,
       each of the following six elements of the crime must be proved beyond a
       reasonable doubt:
               (1)    That on or about August 20, 2010, the defendant unlawfully
       took personal property from the person or in the presence of another;
               (2)    That the defendant intended to commit theft of the property;
               (3)    That the taking was against the person's will by the
       defendant's use or threatened use of immediate force, violence, or fear of
       injury to that person;
               (4)    That force or fear was used by the defendant to obtain or
       retain possession of the property or to prevent or overcome resistance to the
       taking;
               (5)    That in the commission of these acts or in the immediate
       flight therefrom the defendant displayed what appeared to be a fireann or
       other deadly weapon; and
               (6)    That any of these acts occurred in the State of Washington.

Clerk's Papers at 29.

      By failing to include "or an accomplice" language in instruction 9 or otherwise

instruct the jury on accomplice liability, the State was required to prove that Mr. Davis

himselftook property from Mr. Acton. Willis, 153 Wn.2d at 375.

       Viewing the evidence in the light most favorable to the State, it fails to carry its

burden. An essential element of robbery is the unlawful taking of property from a person.

Nam, 136 Wn. App. at 704-05. This taking must occur in the presence of the person who

has the ownership interest in the property. State v. Tvedt, 153 Wn.2d 705, 714-15, 107

P.3d 728 (2005). But Mr. Acton's testimony was clear: it was Mr. Sanders, acting as the

principal, who took the money in the presence of Mr. Acton, while Mr. Davis aided him

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No.30485-0-III
State v. Davis


by holding a gun. During closing, the only evidence cited by the court to establish the

first element of robbery was that Mr. Davis was "caught right down the road here in the

park with that property." RP (Oct. 24,2012) at 104.

       In the absence of evidence that Mr. Davis took property from or in the presence of

Mr. Acton, the State failed to carry its burden of proving beyond a reasonable doubt an

essential element of robbery. Where the State assumes the burden of proof on an element

and we find that there is insufficient evidence on that element, we must reverse the

conviction and dismiss with prejudice. Hickman, 135 Wn.2d at 103. Accordingly, we

reverse. Given the disposition of this issue, we need not address Mr. Davis's remaining

issues on appeal.

       We reverse the robbery conviction, order the trial court to dismiss with prejudice,

and vacate the judgment and sentence.

      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.


                                          Kulik, J.
WE CONCUR:


Brown, J.                                 Siddoway, A.C.J.

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