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                                                                                              Z136Y I4
    IN THE COURT OF APPEALS OF THE STATE OF WASHING                                                            NGro
                                                                                              M
                                                                                              0
                                               DIVISION II
                                                                                                          fY

STATE OF WASHINGTON,                                                     No. 42266 2 II
                                                                                   - -


                                   Respondent,

       me



ANDREW ALLAN WRIGHT,                                                UNPUBLISHED OPINION




       PENOYAR, J.       Andrew Allan Wright appeals his convictions of first degree robbery and

first degree assault, arguing that the evidence was insufficient to prove his guilt as an accomplice
and that he received ineffective assistance of counsel when his attorney failed to object to the

admission of testimony concerning his arrest, his incarceration, and a possible motive. Wright
raises other issues in   a   pro   se   statement of additional   grounds (SAG). Finding no prejudicial

error, we affirm.

                                                    FACTS


        In January 2011, Daniel Force was working as a security guard at anapartment complex.
Several security cameras in the parking lot were connected,to monitors in his 8x8 foot bedroom.
Late in the evening of January 21, Force and his friend David Jones were in the bedroom,
looking at laptop computers.

        The security monitors showed a car pull up and park in the lot just outside Force's

apartment. Force recognized Wright as the driver, and he knew Wright's passengers as well:
Nathan Gadberry and Armando Castillo -Munoz. He and Jones watched the three men walk up
the stairs. Force   opened   the door and the three    men   entered.
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        Wright sat in a chair directly across from the futon where Jones was sitting. Gadberry
stood to the   side, and Munoz   stood in front of Jones. Munoz said, So,what do you think? 2B
                                                                      "


Report of Proceedings (RP)at 211. When Jones responded that he did not understand, Munoz
pulled out a gun and cocked it and said that Jones owed him money. Jones told Munoz he had
no money and could not repay him, and Munoz struck Jones in the head with his hand. Munoz
then demanded that Jones give him his watch and his gold ring. When Jones complied, Munoz
handed the items to one of the others and struck Jones in the head with his gun.

        Munoz then told Jones to give him his car and the signed title. When Jones said the title
was   not in his name, Munoz struck him       repeatedly    in the head with the gun.    The gun fired,

hitting Jones in the hand he was using to shield himself. Although he and Jones were long time
friends, Wright did    not say   anything   and did not   come    to Jones's aid.   Instead, he left with

Gadberry and Munoz. Force drove Jones to the hospital, and when Jones told the emergency
room   personnel   that he had been shot,     they called   the   police. Jones received treatment for

lacerations to his skull and bullet wounds to his left thumb and middle finger.

        Jones told the responding officers -what had happened and identified the three men who
had entered Force's apartment. About a week later, the officers arrested Wright and questioned
him. After initially denying all knowledge of the incident, Wright admitted that he witnessed the
 shooting. He stated that Jones had repaid a debt to him but still owed Munoz money,that Munoz
 struck Jones several times with the.gun, and that the gun went off in the process. Wright denied

 seeing Munoz take a watch and ring from Jones.
         Before his arrest, Wright told Shannon Tandberg that he witnessed Jones's shooting
 when he was collecting a debt. Wright had a key to Tandberg's residence and had previously left

                                                    0)
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a safe there. When Tandberg returned home after a few days' absence and learned of Wright's

arrest, she drilled the safe open and discovered a gold ring.

       Following his arrest, Wright called his half brother, Gabriel Salisbury, from jail and

asked him to go to Tandberg's residence, retrieve a gold ring from a safe, and destroy it.

Salisbury retrieved the ring and cut it into pieces. He later gave some of those pieces to the
police, and Jones identified them as parts of the ring Munoz took from him.
        The State charged Wright with first degree robbery and first degree assault as an

accomplice with Munoz and Gadberry. Both charges included firearm enhancements. Wright
was tried separately. -Jones,Force, Salisbury, Tandberg and the detectives testified to the facts
set out above. Wright was the sole defense witness.

        Detective Lindsay Schultz, one of the officers who interviewed both Jones and Wright,

described Jones as " pretty forthcoming" about the incident when she talked to him at the
hospital. 1 RP at 51. When she interviewed Wright, he denied but then admitted that he was in
Force's apartment. When asked about the contradiction, she explained,
        I] was a difficult interview in the sense that it was a lot of give and take[.]
         t
        Mr. Wright would only respond as little as he could give me to see what
        information I knew.... he was not forthcoming with the information while
                                  So,
        we were trying to interview him.

1 RP at 59 60.
           -


        Detective Todd Barsness testified that Wright was an early suspect in the January 21

incident who   was   not   apprehended   until January 27:   Barsness described his interview with


Wright as "very challenging,"with Wright being very cautious about the information he shared.
2A RP at 143. The detective added that Wright initially said he had no idea how the incident

 came about. The detective then explained that "we had reason to believe that the reason for the

                                                  3
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visit by Mr. Wright and Armando was to reclaim a drug debt," that when he shared that
                                                           and
information, Wright admitted Munoz might have been in Force's apartment because of a debt.

2A RP at 145. Wright added that Jones owed him $ 50,and that because Jones did not have any
                                               1

money, Munoz was looking for property. Wright also told the officers that Munoz supplied him
with drugs.

       Jones testified that he owed                about $300 but         not indebted to Munoz.   He
                                          Wright                    was




added that he felt threatened by Gadberry and Wright as well as Munoz and knew the three men
were associated with each other. Force testified that he was aware there could have been a debt

and that he and Jones used methamphetamine before Wright and his friends arrived.

       When Salisbury testified about Wright's call from jail concerning the ring, defense

counsel objected to the admission of the recording on foundational grounds, and the State
authenticated the recording through Salisbury. The State played excerpts of the call for the jury.
       Wright testified that Jones was a long time friend and that Munoz was a drug supplier.
He said that he went to Force's apartment by himself to buy, methamphetamine, that he met

Gadberry and Munoz at the apartment complex by coincidence, and that the two men followed
him upstairs and into Force's apartment. He' denied any plan to be with the two men, to assault
Jones, or to collect a debt. Wright said that Jones had the gun and that it discharged when he and
Munoz struggled. He explained that he bought a ring from Force a few days after the shooting
and gave it to Tandberg, and that he asked his brother to retrieve the ring after Tandberg returned
to her old boyfriend. On cross examination, he admitted telling the detectives that Munoz had
the gun, and he acknowledged failing to mention that Force was a drug dealer, explaining that.his
mind   was    rattled after his arrest.   He further acknowledged that he denied but then admitted


                                                     rd
42266 2 II
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during   the interview that he knew Munoz.               On rebuttal, Detective Schultz again stated that

interviewing Wright was "very difficult because he was not forthcoming at all." RP at 552.
                                                                              3

         The trial court instructed the jury on accomplice liability and the State argued that Wright

was an accomplice to Jones's robbery and assault. The jury found Wright guilty of first degree
               first   degree assault   but   rejected   the firearm enhancement           each count.   During
robbery and                                                                           on




sentencing, the trial court vacated Wright's sentence on the robbery count on double jeopardy
grounds. The trial court imposed a standard range sentence of 276 months on the assault

conviction.

                                                  ANALYSIS


I.       ACCOMPLICE LIABILITY


         Wright contends that.his right to due process was violated when the trial court accepted
the jury's guilty verdicts because there was insufficient_evidence to convict him of either first
degree robbery or first degree assault as an accomplice.
         Due process      requires   the State to prove its    case   beyond   a   reasonable doubt. State v.


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

if,viewed in the light most favorable to the prosecution, it permits any rational trier of fact to
find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn. d
                                                                                            2

192, 201, 829 P. d 1068 ( 1992). A claim of insufficiency admits the truth of the State's
               2                 "

evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn. d at
                                                                                    2

201. Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn. d 634,
                                                                                       2

638, 618 P. d 99 ( 1980). We defer to the trier of fact on issues of conflicting testimony,
          2


credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App.
410, 415 16,824 P. d 533 (1992).
         -       2
                                                           5
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       The trial court gave the jury the following instruction on accomplice liability:

              A person is guilty of a crime if it is committed by the conduct of another
       person for which he is legally accountable. A person is legally accountable for
       the conduct of another person when he 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
       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
       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. .

Clerk's Papers (CP)at 78. The trial court then defined robbery and assault for the jury:
                 A person commits the crime of robbery when he unlawfully and with
       intent to commit theft thereof takes personal property from the person or in the
       presence of another against that person's will by the use or threatened use of
       immediate force, violence, or fear of injury to that person....

                A person commits the crime of assault in the first degree when, with intent
       to inflict great bodily harm, he or she assaults another with a firearm or with any
                                                                    to   produce great   bo           arm or
                                    any force              likely                             1   y
       deadly    weapon   or   by               or means

       death.


CP at 79, 86.

       To prove that Wright was an accomplice to Jones's robbery and assault, the State had to
prove beyond a reasonable doubt that Wright (1)knew his actions would promote or facilitate
these crimes, 2) present and ready to assist in some manner, and (3) not merely present
              ( was                                                was
at the scene with some -knowledge of potential criminal activity. RCW 9A. 8.
                                                                      020(
                                                                         3 State v.
                                                                         0 );

Asaeli, 150 Wn. App. 543, 568, 208 P. d 1136 (2009).
                                    3
42266 2 II
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       Wright argues on appeal that his involvement in the crimes was no greater than that of the

alleged accomplice in Asaeli, whose second degree murder conviction was reversed by this
court. The record in Asaeli showed that Darius Vaielua was present near the murder scene with

knowledge that his friends were looking for the victim. 150 Wn. App. at 570. There was some
evidence that Vaielua and the others were acting in concert that related to motive, but no

evidence that Vaielua was aware that the group was planning to do more than locate the victim

and no evidence that he was aware of a plan to assault or kill the victim. Asaeli, 150 Wn. App. at

569 n.1..
     3       Accordingly, the evidence was insufficient to prove Vaielua's complicity in the
shooting. Asaeli, 150 Wn. App. at 569 70.
                                      -

        The State responds that the evidence of Wright's participation in the crimes against Jones

was far greater than Vaielua's criminal activity. Viewed in the light most favorable to the State,
the evidence shows that Jones was indebted to Wright and that Wright had a motive to take

money or property from Jones by force or threat of force. Wright drove Gadberry and Munoz to
the apartment and led the way inside. He did nothing to assist Jones, his long time friend, even
though he was sitting only a few feet from Jones confrontation. Rather, he fled with
Munoz and Gadberry after the shooting. Jones saw Munoz hand his ring and watch to someone

else, and Wright later instructed his brother to destroy the ring.
        We agree with the State that the evidence is sufficient to uphold the,jury verdicts on the
theory of accomplice liability. There was sufficient evidence for a rational trier of fact to

conclude that   Wright brought   Munoz to the apartment, acted       as an   intimidating presence who

 afforded Munoz the opportunity to rob and assault Jones, hid Jones's ring in a safe at his friend's
 house and then, after his arrest, recruited his brother to   destroy the ring. Taken together, this



                                                  VA
42266 2 II
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evidence ' supports a rational conclusion that Wright was an accomplice to both the robbery and
the assault.


11.    INEFFECTIVE ASSISTANCE OF COUNSEL


        Wright contends that he received ineffective assistance of counsel because his attorney

failed to object when the State elicited evidence that (1)Wright was arrested and jailed and the

officers did not believe his post -arrest statements and (2)the officers had heard Wright was

collecting a debt from Jones.

        To demonstrate ineffective assistance of counsel, the defendant must show that his

counsel's                          deficient and that counsel's   deficiency   was   prejudicial.   State v.
             performance   was




Saunders, 91 Wn. App. 575, 578, 958 P. d 364 ( 1998). Prejudice is shown if there is a
                                     2


reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings
would have been different.          Saunders, 91 Wn. App.      at 578.   More specifically, where the

defendant claims ineffective assistance based on counsel's failure to challenge the admission of

evidence, the defendant must show (1)an absence of legitimate strategic or tactical reasons

supporting the failure to object; 2)that an objection likely would have been sustained; and (3)
                                  (
that the trial's result would have differed had the evidence not been admitted. Saunders, 91 Wn.

App. at 578. "Only in egregious circumstances, on testimony central to the State's case, will the
failure to object constitute incompetence of counsel justifying reversal." State v. Madison, 53

Wn. App. 754, 763, 770 P. d 662 (1989).
                        2

        Wright first contends that defense counsel was deficient in failing to object when the

State repeatedly elicited evidence that he had been arrested and jailed. In describing the course

of her investigation, Schultz explained that Munoz was arrested on January 25 and that Wright
      taken into             the   following day.   Barsness testified that    Wright   was   identified   as a
was                custody
42266 2 II
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suspect early in the investigation and apprehended     on   January 27. Salisbury testified that he

knew his brother was in jail in January and that he received a call from him on January 31.

Tandberg testified that when she talked to Wright before he went to jail, he admitted being

present during the shooting, and she also testified that Salisbury came to her house after Wright's
arrest. Detective Kevin Harper testified that he listened to the jail phone call between Wright

and   Salisbury   about the   ring. Defense counsel did not object to any of these references to

Wright's arrest and incarceration.

         Wright argues on appeal that these references were equivalent to inadmissible opinions as

to his guilt. Generally, no witness may offer testimony in the form of an opinion regarding the

guilt or veracity of the defendant; such testimony is unfairly prejudicial because it is inconsistent

with the principle that the determination of the defendant's guilt is solely a question for the trier

of fact. State v. Demery, 144 Wn. d 753, 759, 30 P. d 1278 (2001);
                                2                 3              State v. Carlin, 40•Wn.

App. 698, 701, 700 P. d 323 (1985),
                    2             overruled on other grounds, City ofSeattle v. Heatley, 70

Wn. App. 573, 854 P. d 658 (1993).
                   2

         Wright cites no case, however, in which a witness's testimony about the fact of the
defendant's arrest or incarceration on the current charges was deemed an inadmissible opinion as

to the defendant's guilt. And, as the State points out, there is case law holding that evidence

concerning the defendant's arrest on the crime charged is admissible if it has probative value.
State   v.   Woodring,   37 Wn. d
                              2     281, 285, 223 P. d 459 ( 1950). The State contends that the
                                                   2


testimony concerning Wright's arrest and subsequent incarceration was probative and relevant

res gestae evidence that completed the story of the crimes on trial. See State Y. Grier, 168 Wn.

App. 635, 646, 278 P. d 225 (2012)res gestae evidence completes the story of the crime on trial
                    3              (
by proving its immediate context of happenings near in time and place).
                                                  0
42266 2 II
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         The evidence of Wright's arrest completed the story of the investigation and provided

context for Wright's post-
                         arrest interview. That interview was a key part of the State's evidence,
as   it contradicted   Wright's testimony   on   several   points. The fact of Wright's arrest also

explained why Tandberg drilled open the safe and found the ring and why Wright called
Salisbury about destroying the ring. Counsel objected to the phone call on foundational grounds,

which required the State to explain its circumstances. Wright now complains that evidence of

how and why the call was recorded was irrelevant and prejudicial, but it was defense counsel

who required admission of this evidence. The fact that counsel's foundational objection did not
succeed does not demonstrate ineffective assistance of counsel. See State v. Dow, 162 Wn. App.

324, 336, 253 P. d 476 (2011) criminal defendants are not guaranteed successful assistance of
               3               (

counsel). We also note that defense counsel explored the circumstances of Wright's arrest and
post-
    arrest statements in cross examining several witnesses. We see no deficiency in counsel's
decision to address this evidence rather than      object   to it.   See Madison, 53 Wn. App. at 763
                                                                                  '

decision of whether to object is classic example of trial tactics).

         Wright also complains about his attorney's failure to object when Schultz described him

as "not forthcoming" during his post -arrest interview. 1 RP at 60..This was the inference she
drew from what she characterized as a difficult interview, and we do not view it as an opinion of

guilt that warranted an objection. Instead of objecting, defense counsel referred to this testimony

in explaining during closing argument why Wright was not forthcoming during his interview.

Again,this decision does not constitute deficient performance.

         Finally, Wright argues that Barsness's testimony that he had heard Wright was collecting
a debt from Jones was inadmissible hearsay to which defense counsel should have objected. See

State v. Stenson, 132 Wn. d 668, 710, 940 P. d 1239 (1997) hearsay is out ofcourt statement
                        2                  2               (              - -
                                                    10
42266 2 II
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offered to prove the truth of the matter asserted). The detective explained that this information

led Wright to admit that a debt might have been the reason for Munoz's presence at Force's

apartment. Schultz had already testified that Wright told the officers that he, Gadberry, and

Munoz were at Force's apartment because Jones owed Munoz money and that he witnessed
Munoz's debt collection efforts.


         Barsness's initial testimony about the debt may have been hearsay, but it was cumulative

of the evidence that had already been admitted and that was subsequently confirmed by other

witnesses, including Wright himself. We do not see that the trial's outcome was affected by the
detective's   testimony. See State v. Ramirez-
                                             Estevez, 164 Wn. App. 284, 293, 263 P. d 1257
                                                                                  3

2011)admission of testimony that is otherwise excludable is not.prejudicial error where similar
      (

testimony was admitted earlier without objection),review denied, 173 Wn. d 1030 ( 2012).
                                                                       2

Consequently, we reject Wright's claim that he received ineffective assistance of counsel.
III.     SAG


         Wright raises several claims of error in a pro se statement of additional grounds. He first

contends that the trial court gave an erroneous accomplice liability instruction, but the instruction

adhered to the pattern jury instruction and the requirement that the defendant have knowledge of
the crime" charged.      1 CP at 78; 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS §     10. 1,
                     5      at 219 ( 3d ed.   2008) WPIC). Wright also complains that the "to
                                                    (

convict" instruction on assault referred to the requirement that the jury find that he or an

accomplice satisfied each element of first degree assault without again incorporating the full
definition of accomplice liability, but we see no error in this regard. WPIC 10.5 1, at 221. To the

extent that Wright challenges the sufficiency of the evidence, we have already addressed that
issue.

                                                  11
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       Wright next asserts that the prosecutor misrepresented the evidence during closing

argument with these statements:

       T] e Defendant or his accomplice intended to commit the theft of the property.
         h
       Pretty clearly collection of a debt. To whom is the debt owed? He could owe
       both, frankly, he could owe both of these people.

       I am not here to prove to you that Mr.Armando Castillo Munoz intentionally shot
                                                               -
       the victim. I am here to prove to you that he had a firearm, that the firearm was
       part ofof the crime, and ...
              —                         an essential instrument of the crime, that it is in fact
       a deadly weapon, that the firearm is capable of firing a projectile.... so
                                                                                And,
       when you look at that issue I would ask, you know,just think about how it was
       used and not necessarily to focus on this crime as to what our duty is to that or
       that.


       The guy who walks out with the property and is the most controlled there, just
       happens to be there, or he is the reason they got there. He is the reason they are
       doing what they are doing and he is also the reason because he had the ring.

4 RP at 620, 621, 667 68. Defense counsel did not object to any of these arguments.
                      -

       Wright contends that these statements violated a subsection of ER 801; but this
contention is misplaced. See ER 801(
                                2)(statement is not hearsay if it is offered against a
                                   ii)
                                   d)( (

party and is a statement of which the party has manifested an adoption or belief in its truth).A
                                                                 inferences from the evidence.     See
prosecuting attorney   may base his     closing argument    on




Stenson, 132 Wn. d at 727 (prosecutor has wide latitude in closing argument to draw reasonable
               2
inferences from the evidence and      to express . such inferences to the   jury).The first and third

statements above were reasonable inferences drawn from the evidence. Wright contends that the

second statement improperly relieved the jury of its duty, but we disagree with this assessment.

The second statement was simply an attempt to assert that an intentional shooting was not

required to prove assault.. Any error in this statement was not so flagrant that it could not have
been neutralized by an admonition to the jury, so we need not address it further. See State v.

Russell, 125 Wn. d 24, 86, 882 P. d 747 (1994)failure to object to improper remark constitutes
               2                2              (
                                                   12
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waiver of error unless remark is so flagrant and ill intentioned that prejudice could not have been

cured by admonition to jury).

       Wright also argues that there was insufficient evidence to convict him of first degree
assault because there     was no   proof   that he   was   armed with   a   firearm. He maintains that this


deficiency in the evidence is demonstrated by the jury's rejection of the firearm enhancement.
We do not see the assault verdict as either inconsistent or based on insufficient evidence. The

jury could have concluded that Wright was an accomplice to the assault without proof that

Wright himself was armed, as was required for the special verdict instruction. State v. Burke, 90

Wn. App. 378, 387 88,952 P. d 619 (1998).
                  -       2

        Wright next argues that to convict him of first degree assault as an accomplice, the State

had to prove that Munoz intentionally shot Jones. As the trial court instructed the jury,the State
did not have to prove an intentional shooting to establish that Munoz acted with the intent to
inflict great   bodily   harm. RCW 9A. 6. The
                                   0I1.
                                     3                       evidence was sufficient to satisfy the intent

element of first degree assault.

        Finally, Wright contends that the combination of error described above entitles him to
relief due to cumulative     error.   See State v. Greiff, 141 Wn. d 910, 929, 10 P. d 390 (2000)
                                                                 2                 3

cumulative error doctrine applies when no single error justifies reversal but when combined
error denied defendant a fair trial).Having rejected his earlier claims, we also reject his claim of
cumulative error.




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42266 2 II
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      Affirmed.


      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

040,
2.6.it is so ordered.
 0




We concur:




       Van   Deren, J.




                                             14
