                                                           FILED
                                                       FEBRUARY 1, 2018
                                                   In the Office of the Clerk of Court
                                                  WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                          )         No. 34093-7-III
                                              )         (consolidated with
                     Respondent,              )         No. 34956-0-III)
                                              )
       v.                                     )
                                              )
BEN ALAN BURKEY,                              )
                                              )
                     Appellant.               )         UNPUBLISHED OPINION
                                              )
                                              )
In the Matter of the Personal Restraint of    )
                                              )
BEN ALAN BURKEY,                              )
                                              )
                     Petitioner.              )

       PENNELL, J. — After his original convictions were reversed for a public trial

violation, 1 Ben Alan Burkey was convicted of murder, kidnapping, conspiracy to commit

kidnapping, robbery, and assault, all in the first degree. He appeals his convictions and

has also filed a timely personal restraint petition. We affirm Mr. Burkey’s convictions

and dismiss the petition. However, we remand for resentencing and correction of a

scrivener’s error.


       1
         State v. Burkey, No. 25516-6-III (Wash. Ct. App. May 21, 2015) (unpublished),
https://www.courts.wa.gov/opinions/pdf/255166.unp.pdf.
Nos. 34093-7-III; 34956-0-III
State v. Burkey

                                          FACTS

       In September 2005, Rick Tiwater’s murdered body was found in the woods of

north Spokane County. Forensic evidence led police to target their investigation on

Mr. Burkey. Eventually, law enforcement theorized Mr. Burkey and another man named

James Tesch had assaulted and murdered Mr. Tiwater in retaliation for Mr. Tiwater being

a perceived law enforcement informant or “snitch.” The assault against Mr. Tiwater

started during the evening at Mr. Burkey’s home, where Mr. Burkey initially hit Mr.

Tiwater. Then, after being summoned to the home by Mr. Burkey, Mr. Tesch arrived and

continued the assault by kicking Mr. Tiwater, dragging him into the kitchen, and striking

him on the head with a ball peen hammer. With Mr. Tiwater unconscious, Mr. Tesch and

Mr. Burkey transported Mr. Tiwater to a remote wooded area where they continued their

fatal attack. By the time his body was discovered by law enforcement, Mr. Tiwater had

suffered several blunt force injuries as well as burns to his head, chest, and hands. Mr.

Burkey and Mr. Tesch were charged with several criminal offenses, including first degree

assault and first degree murder. The two men were tried separately.

       Several witnesses testified to the events leading up to Mr. Tiwater’s death. Some

of the witnesses from Mr. Burkey’s initial trial in 2006 were unavailable for retrial in

2015. The State therefore obtained leave to present the witnesses’ testimony through trial



                                             2
Nos. 34093-7-III; 34956-0-III
State v. Burkey

transcripts. Mr. Burkey testified at his first trial, but not the second. At the second trial,

the State introduced transcript evidence of Mr. Burkey’s original testimony as part of its

case in chief.

       Troy Fowler was one of the witnesses whose testimony was presented through a

transcript. Mr. Fowler said he was at Mr. Burkey’s house with Mr. Tiwater and Mr.

Burkey on the evening of the murder. Mr. Tesch was not yet present. Mr. Fowler saw

Mr. Burkey strike Mr. Tiwater several times. He also heard Mr. Burkey call Mr. Tiwater

a snitch. Mr. Fowler testified Mr. Burkey called Mr. Tesch to come over and help figure

out if Mr. Tiwater was an informant. Mr. Fowler then left Mr. Burkey’s home before Mr.

Tesch arrived. Mr. Fowler testified he talked to Mr. Burkey the next day. Mr. Burkey

said Mr. Tiwater had fallen into a campfire and would not be seen again.

       The State also presented transcript testimony from Mr. Burkey’s girlfriend, Patricia

Lascelles. Ms. Lascelles’s testimony was less directly helpful to the State than Mr.

Fowler’s testimony. Ms. Lascelles denied seeing Mr. Burkey strike Mr. Tiwater. She

also claimed Mr. Burkey told Mr. Tesch to stop while Mr. Tesch attacked Mr. Tiwater

inside the home. But Ms. Lascelles also supplied testimony relevant to the State’s theory,

in that she: (1) admitted Mr. Burkey had sent her to Mr. Tesch’s home with instructions

to have Mr. Tesch come over, (2) described Mr. Tesch’s attack on Mr. Tiwater,



                                               3
Nos. 34093-7-III; 34956-0-III
State v. Burkey

(3) explained that Mr. Tesch and Mr. Burkey drove off in Mr. Burkey’s car with Mr.

Tiwater’s body in the back seat, (4) testified that Mr. Burkey and Mr. Tesch returned

home in the car the morning after the attack bearing bloody clothes and a golf club, but

without Mr. Tiwater, and (5) admitted she attempted to hide or destroy the bloodied

evidence at the direction of both Mr. Tesch and Mr. Burkey.

       The police recovered physical evidence from Mr. Burkey’s home that corroborated

Ms. Lascelles’s attempted destruction of evidence. They also obtained surveillance

footage from a nearby gas station showing Mr. Burkey and another man present with

Mr. Burkey’s car around 5:00 a.m. the day after the attack began. Mr. Burkey did not

appear upset or disoriented in any way.

       In statements presented to the jury through law enforcement witnesses and the

prior trial transcript, Mr. Burkey blamed Mr. Tesch for Mr. Tiwater’s murder. Mr.

Burkey admitted he was present during Mr. Tesch’s entire violent attack. However, Mr.

Burkey denied any involvement. Mr. Burkey explained he tried to tell Mr. Tesch to stop.

He also claimed he was fearful of Mr. Tesch and only agreed to help dispose of Mr.

Tiwater’s body and other evidence after Mr. Tesch threatened to kill Mr. Burkey and his

son.




                                            4
Nos. 34093-7-III; 34956-0-III
State v. Burkey

       When asked about Mr. Fowler’s allegation that Mr. Burkey had hit Mr. Tiwater

prior to Mr. Tesch’s arrival at his home, Mr. Burkey admitted to only minor wrongdoing.

Mr. Burkey said he slapped Mr. Tiwater after discovering Mr. Tiwater had used drugs in

front of Ms. Lascelles’s son. Mr. Burkey claimed this incident was unrelated to Mr.

Tesch’s later attack.

       The jury convicted Mr. Burkey of all five pending counts. At sentencing, the trial

court found Mr. Burkey’s convictions for first degree kidnapping (count II) and first

degree robbery (count IV) merged with his first degree murder conviction (count I). The

trial court then imposed 548 months of confinement for the murder, with 68 months for

the kidnapping and 171 months for the robbery to run concurrently. The court further

imposed 51 months of confinement on the conspiracy charge (count III) and 123 months

for the assault (count VI), both to run consecutively with the sentence for count I. For the

deadly weapon enhancements, an additional 24 months was added to counts I, II, IV, and

VI, and 12 months was added to count III, with all these enhancements to run consecutive

to the base sentence. The court also imposed community custody terms of 36 months for

counts I and VI, and 18 months for count IV.

       Mr. Burkey appeals. He has also filed a statement of additional grounds for

review, and a report as to continued indigency. A personal restraint petition filed by Mr.



                                             5
Nos. 34093-7-III; 34956-0-III
State v. Burkey

Burkey has been consolidated with his direct appeal.

                                        ANALYSIS

Prior bad act evidence

       Mr. Burkey claims his trial was tainted by the improper introduction of bad act

evidence. Specifically, he points to the State’s evidence that Mr. Burkey had head-butted

Mr. Tesch’s girlfriend in front of Mr. Tesch on the day of the murder. The State contends

the head-butting evidence was not presented for an improper character purpose. Instead,

it was relevant to refute Mr. Burkey’s claim that he was fearful of Mr. Tesch and had not

willingly assisted with the murder. We agree with the State.

       Otherwise inadmissible evidence can become relevant and admissible as a result of

defense trial tactics, including comments made in opening statements. State v. Rupe,

101 Wn.2d 664, 686-88, 683 P.3d 571 (1984). That is what happened here. During

opening statement, defense counsel presented the theory that Mr. Burkey feared Mr.

Tesch and was merely a passive observer of Mr. Tesch’s assaultive conduct. This theory

was further developed during cross-examination of the law enforcement witnesses who

had interviewed Mr. Burkey. Because the evidence that Mr. Burkey head-butted Mr.

Tesch’s girlfriend in front of Mr. Tesch tended to show Mr. Burkey was not fearful of Mr.

Tesch, it was relevant to rebut the defense’s theory of the case. The trial court did not



                                              6
Nos. 34093-7-III; 34956-0-III
State v. Burkey

abuse its broad discretion in admitting this evidence.

Lack of unanimity jury instruction

       Mr. Burkey argues for the first time on appeal that the trial court violated his right

to a unanimous verdict by failing to require juror agreement on which acts constituted the

crime of first degree assault. Mr. Burkey claims Mr. Tiwater had been assaulted

numerous times in the hours before his murder and any of the attacks could have

constituted first degree assault. According to Mr. Burkey, these circumstances required

the court to issue a unanimity instruction pursuant to State v. Petrich, 101 Wn.2d 566,

683 P.2d 173 (1984).

       We disagree with Mr. Burkey’s characterization of the record. A unanimity

instruction is required when the prosecutor presents evidence of several distinct acts, any

one of which could form the basis of a charged crime. Id. at 571-72. But that is not what

happened here. According to the State’s theory of the case, the assault on Mr. Tiwater

was an ongoing crime that started in Mr. Burkey’s home and then continued into the

woods. 3 Verbatim Report of Proceedings (VRP) (Dec. 14, 2015) at 595-96. The State

claimed Mr. Burkey was involved in the assault from the very beginning and that both

Mr. Burkey and Mr. Tesch were united in their effort to punish Mr. Tiwater for being a

snitch. Under these circumstances, the individual acts of violence perpetrated against Mr.



                                              7
Nos. 34093-7-III; 34956-0-III
State v. Burkey

Tiwater constituted a continuing course of conduct. State v. Crane, 116 Wn.2d 315, 326,

804 P.2d 10 (1991); State v. Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996). As such,

no unanimity instruction was required. Crane, 116 Wn.2d at 326; Love, 80 Wn. App. at

361.

       The State’s theory of a continuing assault contrasted with the defense’s theory that

there had been two separate assaults of Mr. Tiwater: (1) a minor assault by Mr. Burkey

(for which no charges had been brought), precipitated by Mr. Tiwater’s use of drugs in

front of Ms. Lascelles’s son, and (2) a separate major assault perpetrated solely by Mr.

Tesch. Given these opposing case theories, the lack of a unanimity instruction actually

helped Mr. Burkey. As written, the instructions required the jury to make an all or

nothing decision about Mr. Burkey’s offense conduct, thereby increasing the odds of

reasonable doubt. Mr. Burkey was not prejudiced by the lack of a unanimity instruction.

Reversal is unwarranted in these circumstances. See State v. Carson, 179 Wn. App. 961,

979, 320 P.3d 185 (2014), aff’d, 184 Wn.2d 207, 357 P.3d 1064 (2015).

Alleged nondisclosure of impeachment evidence

       Mr. Burkey argues the State improperly withheld material impeachment evidence

pertaining to Patricia Lascelles’s plea agreement with the State. We review this claim de

novo. State v. Mullen, 171 Wn.2d 881, 893-94, 259 P.3d 158 (2011).



                                             8
Nos. 34093-7-III; 34956-0-III
State v. Burkey

       Some background is warranted prior to analyzing the merits of Mr. Burkey’s

claim. As noted, the State presented Ms. Lascelles’s testimony through a transcript from

Mr. Burkey’s first trial. The transcript contains a cross-examination of Ms. Lascelles by

Mr. Burkey’s prior attorney. During the cross-examination, no mention was made of Ms.

Lascelles’s plea agreement with the State.

       After Mr. Burkey was convicted at his second trial, his attorney filed a motion for

a new trial. Counsel claimed he had not been aware of Ms. Lascelles’s plea agreement

until after trial. The attorney representing Mr. Burkey at his second trial was not the same

individual who represented Mr. Burkey at his first trial.

       The trial court held a hearing on Mr. Burkey’s new trial motion. After reviewing

the parties’ evidentiary submissions, the trial court found the State had disclosed Ms.

Lascelles’s plea agreement to Mr. Burkey’s initial trial attorney. 4 VRP (Jan. 29, 2016)

at 667-68; Clerk’s Papers (CP) at 368-69. Accordingly, there had been no improper

withholding. 4 VRP (Jan. 29, 2016) at 668. The trial court also found that the attorney

who represented Mr. Burkey at his second trial could have easily discovered Ms.

Lascelles’s plea agreement. Id. Thus, Mr. Burkey had not met the legal standard for

relief from his conviction.




                                             9
Nos. 34093-7-III; 34956-0-III
State v. Burkey

       Based on the trial court’s findings, which we review with deference, State v.

Davila, 184 Wn.2d 55, 74, 357 P.3d 636 (2015), it is apparent the State never withheld

exculpatory impeachment evidence. By disclosing Ms. Lascelles’s plea agreement to

Mr. Burkey’s initial trial counsel (the only attorney to ever cross-examine Ms. Lascelles),

the State disclosed sufficient information to enable Mr. Burkey to take advantage of any

exculpatory value from the plea agreement. Mullen, 171 Wn.2d at 896. Mr. Burkey was

therefore not deprived of his right to a fair trial. Reversal is unwarranted.

Sentencing issues and scrivener’s error

       The parties agree on two sentencing errors as well as a scrivener’s error in Mr.

Burkey’s judgment and sentence. Because there is no dispute that these errors require

remand, our analysis is brief.

       First, Mr. Burkey argues the trial court erroneously imposed sentences for robbery

(count IV), kidnapping (count II), and murder (count I) after finding the three crimes

merged. We accept the State’s concession that the multiple sentences imposed by the

court was error. See State v. Williams, 131 Wn. App. 488, 498, 128 P.3d 98 (2006).

Given the trial court’s merger finding, the convictions for robbery and kidnapping should

have been set aside. No separate weapons enhancements were applicable. Nor were

terms of community custody. Remand for resentencing is appropriate.



                                             10
Nos. 34093-7-III; 34956-0-III
State v. Burkey

       Second, Mr. Burkey argues the community custody term imposed for his first

degree assault conviction violates the prohibition on ex post facto laws. At the time of

Mr. Burkey’s 2005 offense conduct, the Sentencing Reform Act of 1981, chapter 9.94A

RCW, only contemplated a variable community custody term of 24-48 months. Former

RCW 9.94A.715 (2001), repealed by LAWS OF 2009, ch. 28, § 42(2); former WAC 437-

20-010 (2000). Since 2009, RCW 9.94A.701(1)(b) has mandated a term of 36 months for

a serious violent offense. LAWS OF 2009, ch. 375, § 5. Because application of the

mandatory 36-month term to Mr. Burkey violates the prohibition on ex post facto laws,

resentencing is appropriate. State v. Coombes, 191 Wn. App. 241, 250, 361 P.3d 270

(2015). At resentencing, Mr. Burkey should be subject to the laws in effect in 2005.

       Finally, the jury convicted Mr. Burkey of first degree felony murder, which is a

violation of RCW 9A.32.030(1)(c). Yet, the judgment and sentence indicates Mr. Burkey

was convicted of premeditated murder under RCW 9A.32.030(1)(a). The parties agree

this was error. It shall be corrected at resentencing. See State v. Munoz-Rivera, 190 Wn.

App. 870, 895, 361 P.3d 182 (2015).

           STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

       Mr. Burkey raises five issues in his statement of additional grounds for review

(SAG). Each is addressed in turn.



                                            11
Nos. 34093-7-III; 34956-0-III
State v. Burkey


Ineffective assistance of counsel

       Mr. Burkey argues he received ineffective assistance of counsel because his

attorney only had 17 days to prepare after he was told the State would be allowed to use

transcripts of testimony from the first trial. A claim of ineffective assistance requires

proof of deficient performance and prejudice. State v. Thomas, 109 Wn.2d 222, 225-26,

743 P.2d 816 (1987); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80

L. Ed. 2d 674 (1984). Neither requirement has been met.

       Mr. Burkey has not demonstrated deficient performance. There is no set period of

time for trial preparation that is indicative of deficient performance. United States v.

Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). The transcripts at issue

here were short. No evidence indicates defense counsel had insufficient time for

preparation. To the contrary, Mr. Burkey’s trial counsel represented Mr. Burkey during

his initial appeal. In that appeal, Mr. Burkey made a sufficiency challenge to the State’s

evidence. Given this circumstance, it is apparent that counsel had ample advance

opportunity to review Mr. Burkey’s trial transcripts.

       Mr. Burkey also fails to show prejudice. The record does not contain any

information suggesting the outcome of Mr. Burkey’s case would have been different had

counsel been given more time to prepare.



                                             12
Nos. 34093-7-III; 34956-0-III
State v. Burkey


Lack of cautionary instruction on accomplice testimony

       Mr. Burkey next argues the trial court erroneously failed to supply the jury with a

cautionary instruction regarding Ms. Lascelles’s purported accomplice testimony. He

also argues defense counsel was deficient for not requesting such an instruction.

       Mr. Burkey’s substantive claim fails because a cautionary instruction is only

required when an accomplice’s testimony is uncorroborated by other evidence. State v.

Harris, 102 Wn.2d 148, 155, 685 P.2d 584 (1984), overruled in part on other grounds by

State v. McKinsey, 116 Wn.2d 911, 810 P.2d 907 (1991). Even assuming Ms. Lascelles

should be considered an accomplice, her testimony was amply corroborated by physical

evidence and the testimony of other witnesses, including Mr. Burkey himself. Given

these circumstances, the failure to issue a cautionary instruction was not reversible error.

Harris, 102 Wn.2d at 155 (“If the accomplice testimony was substantially corroborated

by testimonial, documentary or circumstantial evidence, the trial court did not commit

reversible error by failing to give the instruction.”).

       Mr. Burkey also cannot show defense counsel performed deficiently by failing to

seek a cautionary instruction. Ms. Lascelles’s testimony was largely favorable to Mr.

Burkey. The defense decision not to emphasize Ms. Lascelles’s credibility problems was

reasonably strategic.



                                               13
Nos. 34093-7-III; 34956-0-III
State v. Burkey


Use of transcripts from first trial without determining reliability

       Relying on Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S. Ct. 2531, 65 L. Ed. 2d 597

(1980), Mr. Burkey argues the trial court violated his confrontation clause 2 rights by not

determining the reliability of Ms. Lascelles’s transcript testimony prior to admission.

Mr. Burkey misapprehends the nature of the constitutional right to confrontation. The

standard for a defendant’s confrontation rights is no longer set by Ohio v. Roberts. The

current law on confrontation rights is outlined in Crawford v. Washington, 541 U.S. 36,

68-69, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Under Crawford, a testimonial

statement, such as testimony from a prior trial, may be admitted so long as the State can

show “unavailability and a prior opportunity for cross-examination.” Id. at 68. This

standard has been met. There was no confrontation violation.

State’s use of allegedly perjured testimony

       Mr. Burkey’s next argument is that the State violated his right to a fair trial by

knowingly using perjured testimony from Ms. Lascelles. See State v. Larson, 160 Wn.

App. 577, 594-95, 249 P.3d 669 (2011). The argument has already been addressed by the

trial court and the court determined, based on substantial evidence, that there had been no

perjury. Given this circumstance, the State was entitled to rely on Ms. Lascelles’s



       2
           U.S. CONST., amend. VI; WASH. CONST., art. I, § 22.

                                             14
Nos. 34093-7-III; 34956-0-III
State v. Burkey

testimony.

Impeachment evidence regarding Ms. Lascelles

       Mr. Burkey claims his attorney should have attempted to impeach Ms. Lascelles’s

credibility with evidence of a prior conviction, as contemplated by ER 609. Nothing in

the record shows Ms. Lascelles had been convicted of a previous crime that would be

relevant under ER 609(a). Accordingly, Mr. Burkey has not shown deficient

performance. In addition, Ms. Lascelles’s testimony was beneficial to the defense’s

theory of the case. As a result, Mr. Burkey has failed to establish prejudice.

Cumulative or harmless error

       Mr. Burkey last argues he deserves a new trial because of cumulative error.

State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Because we find no error,

the cumulative error doctrine does not apply.

                         PERSONAL RESTRAINT PETITION

Ineffective assistance of counsel based on conflict of interest

       Mr. Burkey contends his trial counsel labored under an unconstitutional conflict of

interest because counsel also represented a potential witness by the name of Terrance

Kinard. We reject this claim. Mr. Burkey has not met his burden of proving his counsel

provided ineffective assistance due to a conflict.



                                             15
Nos. 34093-7-III; 34956-0-III
State v. Burkey

       To show a constitutional violation of the right to conflict-free counsel, “a

defendant must show that (a) defense counsel ‘actively represented conflicting interests’

and (b) the ‘actual conflict of interest adversely affected’ his performance.” In re Pers.

Restraint of Gomez, 180 Wn.2d 337, 348-49, 325 P.3d 142 (2014) (quoting Cuyler v.

Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)). “An actual

conflict of interest exists when a defense attorney owes duties to a party whose interests

are adverse to those of the defendant.” State v. White, 80 Wn. App. 406, 411-12,

907 P.2d 310 (1995); accord State v. Byrd, 30 Wn. App. 794, 798, 638 P.2d 601 (1981);

see also RPC 1.7. A “[p]ossible or theoretical” conflict of interest is “‘insufficient to

impugn a criminal conviction.’” Gomez, 180 Wn.2d at 349 (quoting Cuyler, 446 U.S.

at 350).

       Mr. Burkey has not pointed to any evidence indicating his interests were adverse to

Mr. Kinard’s. Mr. Kinard was never implicated in the murder of Mr. Tiwater. Nor was

he a relevant witness. 3 The charges that gave rise to defense counsel’s representation of



       3
        Mr. Burkey claims Mr. Kinard could have testified about Mr. Burkey’s lack of ill
will toward Mr. Tiwater. This testimony was of questionable relevance, particularly
given the fact that Mr. Kinard was not present at the time of the offense. To the extent
Mr. Kinard’s testimony was relevant, it would have been readily impeachable based on
Mr. Kinard’s criminal history. Defense counsel provided stronger evidence of Mr.
Burkey’s lack of ill will toward Mr. Tiwater through the testimony of attorney Patrick
Stiley.

                                             16
Nos. 34093-7-III; 34956-0-III
State v. Burkey

Mr. Kinard had nothing to do with Mr. Burkey. Mr. Burkey’s claim that defense counsel

may have nevertheless been facing a conflict is insufficient to overturn a conviction.

State v. Dhaliwal, 150 Wn.2d 559, 573, 79 P.3d 432 (2003).

State’s use of Mr. Burkey’s testimony from first trial

       Mr. Burkey makes several claims regarding the State’s use of his prior trial

testimony during its case in chief. Mr. Burkey does not challenge the admissibility of his

prior testimony. Instead, he makes less direct claims of error. None are persuasive.

       First, Mr. Burkey complains defense counsel was ineffective because counsel did

not want Mr. Burkey to take the stand even after the court ruled Mr. Burkey’s prior

testimony could be used in the State’s case in chief. We reject this claim. Had Mr.

Burkey taken the stand, he could have been cross-examined based on any slight

inconsistency with his prior testimony. Defense counsel’s recommendation that Mr.

Burkey exercise his right to remain silent on remand was reasonably strategic.

       Mr. Burkey also argues he was prejudiced because a police detective read his

former testimony to the jury. But the jury was instructed to consider the testimony as if it

came from Mr. Burkey, not the detective. Jurors are presumed to follow the court’s

instructions absent evidence to the contrary. State v. Kirkman, 159 Wn.2d 918, 928, 155

P.3d 125 (2007). There is no such evidence here.



                                             17
Nos. 34093-7-III; 34956-0-III
State v. Burkey

       Lastly, Mr. Burkey suggests the use of his prior testimony forced him to choose

between remaining silent or testifying in order to stop a witness for the State from reading

his testimony. Mr. Burkey’s reasoning is unfounded. Mr. Burkey’s prior testimony was

admissible as a statement by a party opponent. ER 801(d)(2). As such, its admissibility

did not turn on Mr. Burkey’s availability as a witness or decision to testify. Compare

ER 801(d)(2) (statement of party opponent not hearsay) with ER 804(b)(1) (prior witness

testimony admissible only if witness unavailable).

Alleged perjured testimony by Ms. Lascelles

       This argument fails for the same reason noted in the analysis of the issue in

Mr. Burkey’s SAG. There was no perjured testimony.

Incorrect accomplice liability jury instruction

       Mr. Burkey argues the language of the jury instruction on accomplice liability

misstated the law for two reasons. First, he argues the jury was instructed it could convict

him as an accomplice if he acted with knowledge he was promoting any crime. He is

wrong. Mr. Burkey cites the following sentence from the accomplice liability instruction

as error: “A person is an accomplice in the commission of a crime if, with knowledge that

it will promote or facilitate the commission of the specific crime charged . . . .” CP at 236

(emphasis added). Mr. Burkey complains about the emphasized language. But the



                                             18
Nos. 34093-7-III; 34956-0-III
State v. Burkey

instruction clearly goes on to say Mr. Burkey is only an accomplice if he had knowledge

his actions would promote the specific crime charged. This accords with the Washington

Supreme Court’s requirements for the accomplice liability instruction. See State v.

Cronin, 142 Wn.2d 568, 578-80, 14 P.3d 752 (2000); State v. Roberts, 142 Wn.2d 471,

510-13, 14 P.3d 713 (2000).

       Mr. Burkey also argues the jury instruction explained in a confusing manner what

it means to “aid” someone. Again, he is wrong. The instruction stated:

               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.
               A person who is an accomplice in the commission of a crime is
       guilty of that crime whether present at the scene or not.

CP at 236.

       This language clearly and unambiguously states what “aid” means for the purposes

of accomplice liability. It then goes on to further explain that someone who is present at

the scene and ready to assist has provided aid, but merely being present without more is

not enough. The instruction then clarifies that presence is not always required. The

instruction provides the general definition of “aid” and then some clarifying points. It is

neither confusing nor misleading.


                                             19
Nos. 34093-7-III; 34956-0-III
State v. Burkey


Alleged improper closing argument

       A defendant bears the burden of showing that the prosecutor’s comments are both

improper and prejudicial. State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014).

Alleged improper arguments by the prosecutor must be reviewed in the context of the

total argument, the issues in the case, the evidence addressed in the argument, and the

instructions given. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994).

       Mr. Burkey has provided quotations from different parts of the prosecutor’s

closing argument and argues these statements were misconduct because they misstated

the evidence, were not supported by the evidence, and were otherwise improper. For

example, Mr. Burkey takes issue with the prosecutor’s argument: “But that’s the

individual that Mr. Burkey was waiting for to back him up when they were finally going

to administer punishment to Mr. Tiwater.” 3 VRP (Dec. 14, 2015) at 581. Mr. Burkey

calls this a fabrication because the words “back him up” or “administer punishment” were

not used in the trial testimony. He is correct that those exact words were not used. But

Mr. Fowler testified Mr. Burkey called Mr. Tesch over to help figure out if Mr. Tiwater

was a snitch. A prosecutor has wide latitude in closing argument to draw reasonable

inferences from the evidence and express such inferences to the jury. State v. Hoffman,

116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). The prosecutor’s argument about backing up



                                            20
Nos. 34093-7-III; 34956-0-III
State v. Burkey

or administering punishment was a reasonable inference given Mr. Fowler’s testimony

and other testimony supporting the State’s theory in general. Mr. Burkey may disagree

with the State’s inference, but that does not make the inference improper or the

prosecutor’s actions misconduct. Mr. Burkey presents 29 parts of the prosecutor’s

closing argument alleging misconduct. All of his arguments have the same flaw as the

one above, ignoring the prosecutor’s latitude to argue inferences from the evidence.

There was no misconduct here. 4

                 MOTION FOR PRODUCTION OF TRANSCRIPTS

       Mr. Burkey argues the State should be compelled to produce the unredacted

transcripts of his prior testimony to “assure that the record on appeal is sufficiently

complete.” Motion for Production of Transcripts, In re Pers. Restraint of Burkey, No.

34956-0-III, at 2 (Wash. Ct. App. Jan. 3, 2017). But he does not explain how these

transcripts will aid this court’s review. The existing transcripts of the prior testimony

contain no gaps or omissions. Further, the record indicates the redacted portions of the

transcripts relate to objections that were raised during the first trial. Defense counsel

wanted to make sure any of those objections that needed to be preserved could be so, but


       4
         Mr. Burkey also argues defense counsel was ineffective for failing to object to
the alleged prosecutorial misconduct. Since there was no misconduct, there was likewise
no ineffective assistance for failing to object. State v. Larios-Lopez, 156 Wn. App. 257,
262, 233 P.3d 899 (2010).

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Nos. 34093-7-111; 34956-0-111
State v. Burkey


neither of the parties wanted those objections read to the jury. The reason for the

redactions is adequately explained in the record, and Mr. Burkey has provided no other

justification for compelling production of unredacted transcripts.

                                   APPELLATE COSTS

       Mr. Burkey has complied with this court's general order by submitting a continued

indigency report, and has requested a waiver of appellate costs in his opening brief. We

grant the request.

                                       CONCLUSION

       We affirm Mr. Burkey's convictions, dismiss his personal restraint petition, and

deny the motion to compel production of transcripts, but remand for resentencing and

correction of the scrivener's error.

       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.


                                          Pennell, J.

WE CONCUR:




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