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ZBlSOCT 22 §Fi 8= 35

iN THE COURT OF APPEALS OF THE S`E`ATE OF WASH|NGTON

THE STATE OF WASH|NGTON, ) No. 75075-5-E
)
Respondent, ) DlVlS|ON ONE
)
v. )
)
GARY BERNARD SANDERS l|, )
) UNPUBLESHED OP|N|ON
Appei|ant, )
)
COREY ASTANE_|V|N MANN, )
)
Defendant. ) FELED: October 22, 2018

 

SCHlNDLER, J. -- Gary Bernard Sanders ii seeks reversai of the jury conviction
for felony murder in the first degree. Sanders claims the trial court erred in refusing to
give a clarifying instruction during jury deliberations and insufficient evidence supports
the jury finding hirn guiity of the predicate crime of burgiary in the first degree The to~
convict jury instruction and the instruction on the statutory affirmative defense to felony
murder in the first degree accurately state the |avv. The jury instructions made the law
manifestiy apparent and When read as a whole, were not ambiguous The court did not
abuse its discretion by instructing the jury to consider the instructions as a Whole and

refusing to give a clarifying instruction We also conclude sufficient evidence supports

NO. 75075-5-£/2

the jury finding Sanders guilty of the predicate crime of burglary in the first degree, and
affirm the jury verdict
FACTS

in 2013, 24~year-oid i.atasha Wali<er lived with her boyfriend Kenneth lVchee in
an apartment in Kent. lVchee sold Oxycodone. Tiana Rose Wood-Sims lived across
the street with her motherl her stepfather, and the young twins of her cousin Corey
Astaniivin Niann.

Wood»Sims started spending tirne with Waiker in 2013, “hanging out” and using
drugs. VVood-Sirns told her cousin l\/iann that lVicGee kept drugs and a “coupie
thousand” doiiars in the bedroom dresser and closet in the apartment Wood-Sims
suggested lVlann steal the money and drugs white Nchee was in jail on a probation
violation. Wood-Sims would take some of the drugs and |Vlann wouid keep the money
and the remainder of the drugs Wood-Sims planned to spend the day with Wali<er
away from the apartment so i\/lann could steal the money and drugs from the apartment

On June 3, 2013, Mann borrowed a Chevroiet Maiibu. Niann and his sister‘s
fiancé Gary Bernard Sanders ll drove from Everett to Burien to pick up Nlichael Vincent
Gaiioway. lVlann told Galloway that he planned to commit a “robbery” to get “$15,000
and a bunch of piils.” Niann told Gaiioway that “his cousin had it set up." Nlann showed
Ga|loway a text message from Wood~Sirns saying tire "money and the pi|is” were “in a
sock in the dresser drawer.” Gailoway agreed to go with Mann and Sanders. But
Galioway told Nlann and Sanders he first “wanted to go to my house so i could grab my

gun.” Gai|oway got the gun and “tucked it into [his] shorts.” Because it was “bu|ging

NO. 75075-5-|/3

out,” Gal|oway decided to put the gun in the trunk of the oar. Nlann and Wood»-Sirns
exchanged approximately 62 text messages that day.

L}nbeknownst to Wood-Sirns and |Viann, tV|cGee had been reieased from jaii on
dune 3. |Vchee did not tell Waiker because he wanted to “surprise her.” Nchee went
to the apartment but “[ri]obody was there." lVchee “grabbed some money,” changed his
ciothes, and ieft.

Whiie waiting at the apartment complex in Kent, lVlann got a text from Woodw
Sirns saying she and Waiker were in the apartment After Wood-Sims sent the text to
lvlann, Waiker “noticed that money was missing and someone had been in the
apartment” and cai|ed lVchee’s brotherl

i\/iinutes after Wood-Sims and Wa|ker arrived at the apartment, Galloway
knocked on the door. When Wood-Sin'is asked, “[VV]ho is it," Galioway said he was “her
neighbor” and he needed “a phone” or “jumper cables." Wood-Sims knew the men
were there to steal the money and pills. Wood-Sims turned the lock to open the door so
they could “come in . . . [t]o get money and drugs."

Galloway, l\)lannl and Sanders “rushed” into the apartment Sanders and
Ga|loway pushed Wood-Sims onto the couch, put a pillow over her face, and Sanders
took her cei| phone. Niann told Sanders and Galioway to stop because “she’s part of it,"

Mann and Ga|ioway went-into the bedroom. Sanders stayed in the living room.
Wood-Sims heard Waiker sayl “[\Njhat’s going on,” then heard “tussling” and lVlann and
Ga|loway “say, where’s the money.” Wa|ker said, “[Hjoid on, hold on," and yelled for
Wood~Sims. Wood*Sirns did not respond When “{i]t got quiet after a second,” either

Galioway or i\llann “calied Sanders into the room.” Wood-Sims told Sanders to “checi<

No. 75075-5-|/4

the closet.” After Sanders went into the bedroom1 Wood-Sims heard “stuff being thrown
around” and riffiing.

When Wood-Sirns approached the bedroom door, l\/lann, Galioway, and Sanders
came out of the bedroom carrying a “briefcase type thing” and a “pillowcase with things
in it.” Wood»Sirns saw Sanders take some video game equipment from the living roorn.
Betore they |eft, lViann slapped Wood-Sirns in the face “to make this look Iegit."

Wood-Sims found Wa|ker slumped against the dresser on the floor in the
bedroom. tier pants were torn and partialiy pulled down and there was a belt around
her necl<, When Waiker did not respond, Wood~Sims ran to get heip. A neighbor calied
911 and performed CPR1 on Walker. When paramedics arrived, V\Ialker had “no pulse."
She “was not breathing" and the cardiac monitor showed a "fiat line.”

Niedicai examiner Dr. Aldo Fusaro performed an autopsy. Wa|ker had bruises on
her face and lacerations in her mouth from “blunt force" to her face. Dr. Fusaro
concluded Wa|ker died from multiple, severe blunt force injuries to her liver, including
one laceration that left “the left lobe of the liver . . . almost torn off from the rest of the
liver," that caused her to bleed to death

lV|cGee reported a number ot items were stolen from the apartment, including two
laptops, diamond earrings, a gold i\/iichael Kors watch, and baseball hats.

Wood-Sims, Gai|oway, Niann, and Sanders gave statements to the police On
l\/iarch 5, 2014, Sanders toid the police he had been “part of a robbery, at Latasha

Walker’s horne, in June of 2013.”

 

1 Cardiopulmonary resuscitation.

No. 75075-5-¥/5

On i\/iarch 12, 2014, the State charged Galloway, iVlann, Wood-Sims, and
Sanders “and each of them” with feiony murder in the first degree of Latasha Waiker.
The information aiieged that on dune 3, 2013, “in the course of and in furtherance of"
committing robbery in the first or second degree and "in immediate flight therefrom,” the
defendants caused the death of Waiker in vioiation of RCW 9A.32.030(t)(c). Wood-
Sims and Gai|oway pieaded guiity to murder in the second degree and agreed to testify
at tria|.

The State fiied an amended information charging Niann and Sanders with feiony
murder in the first degree of Latasha Waiker. The information aiieged that in the course
of and in furtherance of committing robbery in the first or second degree or burglary in
the first degree, the defendants caused the death of Waiker in violation of RCW
9A.32.030(‘i)(c). iVlann and Sanders pleaded not guiity.

RCW 9A.32.030(‘l )(c) defines the crime of felony murder in the first degree as
foilows:

A person is guilty of murder in the first degree when . _ . [hje or she

commits or attempts to commit the crime of either . . . robbery in the first

or second degree . . . [or] burglary in the first degree, . . . and in the course

of or in furtherance of such crime . . . , he or she, or another participant,

causes the death of a person other than one of the participants

RCW 9A.32.030(1)(c) states it is an affirmative defense to felony murder in the
first degree if the defendant is “not the oniy participant in the underiying crime" and the
defendant establishes by a preponderance of the evidence that he:

(i) Did not commit the homicidal act or in any way soiicit, request,
command, importune, cause, or aid the commission, thereof; and
(ii) Was not armed with a deadly weapon, or any instrument,

article, or substance readily capable of causing death or serious physical
injury; and

No. 75075~5-1/6

(iii) Had no reasonabie grounds to believe that any other
participant was armed with such a weapon, instrument, article, or
substance; and

(iv) Had no reasonabie grounds to believe that any other

participant intended to engage in conduct likeiy to resuit in death or

serious physical injury_

The State caiied over 20 witnesses during the four‘week jury trial, including
Wood~Sirns, Galloway, the medical examiner, and detectives The court admitted into
evidence more than 50 exhibits

Wood-Sims testified that the original pian “was ustc not even be there" but the
“plan evolve[d] as it went along." Wood“Sims said Galloway knocked on the door and
asked if he could use the phone “because something happened with his car; he was her
neighbor." Wa|ker thought it was iVchee’s brother and went into the bedroom. Wood»-
Sims testified that “we had cocaine out” and lVchee’s brother “didn't know that [Walker]
was doing drugs; so she kind of panicked. So she said, go get the door, and she shut
the bedroom door." Wood-Sims said that “then l asked her, can l open the door? l told
her that it was her neighbor, and she said, go ahead, iet them use the phone.”

Wood-Sims testified that when Sanders left the iiving room to go into the
bed room, she told Sanders to “check the closet.”

Wood-Sims testified that she pieaded guilty to murder in the second degree and
the State would recommend 220 months in prison “Because i’m not innocent of
Latasha’s death And l do need to pay my dues to her, to her family, and to society, and
it’s just that l have to do that for Tasha. `i`hat’s just what’s right.”

Galioway testified he did not take his gun into Wa|ker*s apartment Galioway

said Sanders pushed Wood»Sims onto the couch in the iiving room but Nlann told him to

stop because “she’s part of it.” Galloway testified that while he searched the dresser,

NO. 75075-5-¥/7

Niann wrestied with Wa|ker in the bedroom. When Galloway “couldn’t find” any money
or drugs in the dresser, he searched the cioset. Gailoway testified that while he
searched the bedroom cioset, Sanders and i\/lann were “on the bed with [Waiker],
struggling."

Galloway testified that he saw Mann hold Waiker from behind, with her back to
his chest, and he had “her arms pinned close to her side.” Sanders “was on top of her,
hoiding her down.” Waiker was “trying to fight her way from the strugg|e.” As Galioway
walked out of the bedroom to search a second bedroom, he saw Sanders “hit [Walker]
up to four times in her stomach.” When Galloway went back in the bedroom, he saw
Waiker lying facedown on the fioor with a belt around her neck and Sanders sitting on
the edge of the bed next to her, “holding onto the end” of the beit.

Gal|oway said he “grabbed everything that l thought l could sell.” Gailoway took
basebail hats and a laptop. Galloway saw Sanders take “some Xbox controilers and
some video games” from the iiving room. Galloway testified that before they left the
apartment lVlann said, “[V\Ije got to make this look iegit” and “hit [V\lood»Sirnsj open-
handedly, in her face.”

Galloway testified that he, lVlann, and Sanders drove to Burien Gailoway
dropped off i\Aann and Sanders at the house where lVlann’s sister and her husband
Dejuan Weems iived. Galloway picked up his girifriend and drove horne “a few biocks”
away. Galioway testified that white he “was trying to retrieve my gun . . . from the
trunk,” he accidentaily “left the keys sitting in there" and “slammed" the trunk ciosed.
Gailoway caiied Mann for heip. l\/iann and Sanders took a taxi to Galloway’s apartment.

i\/lann broke the lock with a screwdriver and retrieved the keys to the car. Gaiioway1 his

No. 75075-5~|/8

girlfriend, Mann, and Sanders drove to Everett. Gai|oway dropped off Mann and
Sanders at Sanders’ house on Casino Road. After about an hour, Gailoway drove back
to Burien with his girlfriend and i\/lann.

The court admitted into evidence the phone records for V\i'alkerl Wood-Sims, and
Mann’s ce|i phones. Kent Police Detective Brendan Wales testified the phone records
for Wa|ker’s cell phone showed her Samsung Galaxy 83 “turned up” on the T-iVlobile
network “under somebody else’s” phone number. Detective Waies testified that a
coworker of Dejuan Weems had the Galaxy 83. 'fhe coworker said Weerns sold him
the phone.

Detective Waies testified the phone records for Wood'Sims' and Mann’s ceil
phones showed there were more than 60 text messages between Wood-Sims and
Mann on June 3, 2013. The June 3 phone records showed that after Wood-Sims'
phone was stoien, the phone went from Kent, to Burien, and then “up to Everett.”
Detective Wales said that “[o]ne of the [cell phonej towers that . . . the phone used was
on Casino Road." Detective Wales testified that Sanders iived on Casino Road in
Everett. Detective Waies testified the June 3 records for Mann's cell phone showed the
phone was in the "Burien area, then Kent near the time of the homicide, and then back
to the Burien area, and then ail the way to Everett later in the night."

i\/iedical examiner Dr. Fusaro testified that Waiker had abrasions on her chin and
tower lip, lacerations on the inside of her iip, and contusions on her ieft cheek. Dr.
Fusaro said there was more than a liter of “thick, bloody material” in Wa|ker’s abdomen

as a result of “tears to both sides of her liver." Dr. Fusaro testified the injuries to

No. 75075~5-¥/9

Waiker’s iiver were caused by a “biunt force injury." Dr. Fusaro said Wa|ker died from
“blood in the abdomen, due to iiver iacerations, due to blunt force injury.”

Sanders caiied Juan Rodriguez to testify. Rodriguez testified that when in jail
with Niann, Mann told him he “kiiied a giri the summer of 2013.” Nlann said, “[Tjhey
were going to go get pills or money or something and it just went south from there.”
Rodriguez testified Niann said he “was beating her up” and the girl “stopped breathing.”
Mann toid Rodriguez that his “sister's baby’s daddy" Sanders and Galioway were
“invoived” and "helping him out."

On cross-examination Rodriguez admitted that he previously told Detective
Wales that Mann said “they were all beating her up” and both Gailoway and Sanders
“helped beat Latasha Waiker." Rodriguez testified that Mann said he “hit the girl in the
face" and iVlann thought Sanders “had something in his hand when he hit Latasha
Waiker. . . because [l\llann] heard a ciunk.”

Sanders testified Sanders said he thought Mann was taking him “up to the mini-
mart" on June 3, 2013. According to Sanders, after Mann kept driving, Sanders asked,
“[V\I]here are you going.” lVlann toid Sanders he “need[ed] to get some money.”
Sanders insisted neither Mann nor Galioway told him what they were “about to do."
When they arrived at the apartment in Kent, Sanders said he “hesitated . . . and then
[Niann] toid me to come on." Sanders said he was “shocked" that Galioway asked
someone inside the apartment for “jumper cabies, or a phone or something.” Sanders
admitted Gailoway had a gun but said the “first time [he] saw the gun” was in the

apartment “on the way out.”

|\io. 75075-5-|/10

Sanders testified that he did not push Wood»Sims, put a piliow over her face, or
take her ceil phone. Sanders said that white he was in the iiving room, he “heard a
scream" and a commotion in the bedroom and then “it got quiet.” Sanders testified
either Mann or Gai|oway called him and he went to the bedroom but “didn’t go inside the
room.” Sanders testified he saw “a woman on the fioor" and Gai|oway and iVlann Were
“looking for stuff.” Sanders said he did not touch the beit or Waiker. Sanders testified
that before they left the apartment, Wood~Sims told Nlann, “[onu have to make it iook
good” but toid him not to “slap me hard.” Sanders said Nlann slapped Wood-Sims “{j]ust
one time, reai hard," to “make it look like [Wood-Sims] was a victim.”

Sanders testified that he did not take anything from the apartment According to
Sanders, after they drove to Gaiioway’s apartment in Burien, Sanders toid Mann to “get
me home.” Sanders testified that i\/iann called a taxi to take him horne to Everett.

On cross-examinationl Sanders admitted that on iVlarch 5, 2014, he toid the
detectives that he “had been part of a robbery, at Latasha Waiker’s home, in June of
2013." Sanders admitted he told the detectives that he had an agreement with Mann to
“get $1,000 in return for [his] assistance with the robbery and the burglary.” Sanders
told the detectives that lV|ann “wanted me to look for the stuff, that the stuff wouid be in
a drawer, that it would be some piiis and some money.” Sanders testified that he was in
Wa|ker‘s apartment “not because she invited” him in, but because he “was there to take
her stuff.”

Sanders admitted he told Detective Wales that he "went in” Wa|ker's bedroom
and “looked in the drawers Whiie lVlichael Gailoway and lVir. Mann were in the room.”

Sanders testified he was “abie to look through the drawers . . . because Corey i\/iann

‘iO

No. 75075-5-|/11

was physicaiiy restraining Latasha Walker” on the bed Sanders testified that he “never
saw” Ga|ioway “touch” Waiker. According to Sanders while he and Galioway iooked
“for things in the dresser drawers,” Mann grabbed Waiker, “puliing her towards the
bed[,] . . . choking her . . . or trying to hold her arms down.” Sanders said that “at some
point," he left the bedroom, then “returned to i_atasha Waiker’s bedroom to find her with
a beit around her neck.” Sanders admitted telling the detectives that he “touched the
belt around her neok." Sanders testified he tried to take the beit off Wa|ker’s neck but
he “couldn’t get it off." Sanders admitted he told the detectives her “jeans had been
cut." Sanders insisted he “did not take anything” from the apartment and did not “hit
Latasha Waiker.”

At the conclusion of the evidence the State proposed giving a set ofjury
instructions as to Sanders oniy. The State proposed a jury instruction on the affirmative
statutory defense to feiony murder in the first degree The State also proposed
instructions on the lesser included crimes of robbery in the first degree and burglary in
the first degree

Sanders agreed and adopted the State’s proposed jury instructions as “his own
proposal." ln addition, Sanders also proposed giving an instruction on felony murder in
the second degree

The jury instructions state, “The order of these instructions has no significance as
to their reiative importance They are all important . . . During your deiiberations, you
must consider the instructions as a whole." The court instructed the jury that “[a]
separate crime is charged against each defendant You must decide the case of each

defendant separately Your verdict as to one defendant should not control your verdict

'I‘i

No. 75075-5-¥/12

as to the other defendant." The court instructed the jury on felony murder in the first
degree and accomplice iiability. The court instructed the jury on the iesser inciuded
crimes and the affirmative defense that applied to Sanders only. The jury instructions
state that instructions 24A through 24i “appiy only to defendant Gary Sanders.” Jury
instruction 24A states felony murder in the second degree robbery in the first degree
and burglary in the first degree are the lesser inciuded crimes of feiony murder in the
first degree Jury instruction 243 defines felony murder in the second degree Jury
instruction 240 defines theft in the second degree Jury instruction 240 defines
attempted theft in the second degree Jury instruction 24E defines “substantial step."
Jury instruction 24F is the to~convict instruction for felony murder in the second degree
Jury instruction 24G is the statutory affirmative defense to murder in the first and
second degree instruction duty instruction 24i-l is the to-convict instruction on robbery
in the first degree Jury instruction 24l is the to-convict instruction on burglary in the first
degree

The jury found Mann and Sanders guilty of felony murder in the first degree

ANALYSES

Sanders asserts the court vioiated his right to due process and to presents
defense by refusing to give a clarifying instruction to the jury during deliberations
Sanders claims the to-convict jury instruction and the affirmative defense jury instruction
were ambiguous

The United States Constitution and the Washington State Constitutiori guarantee
defendants the right to present a defense U.S. CoNsr. amends Vl, X|V; WAsr-i. Coi~rsr.

art. i, § 22. We review a challenged jury instruction de novo. State v. Brett, 126 Wn.2d

12

NO. 75075-5-|/13

136, 171, 892 P.Zd 29 (1995). A jury instruction that misstates the iaw may be an error
of constitutional magnitude § State v. Marguez, 131 Wn. App. 566, 575~76, 127
P.3d 766 (2006). We review de novo alleged errors of iaw in jury instructions State v.
lEiarnesl 153 Wn.2d 378, 382, 103 P.3d 1219 (2005).

“ ‘Jury instructions are sufficient when they aliow counsel to argue their theory of
the case, are not misleading and when read as a whole property inform the trier of fact
of the applicable iaw.’ ” State v. Knutz, 161 Wn. App. 395, 403, 253 P.3d 437 (2011)2
(quoting State v. Aguirre, 168 Wn.2d 350, 363-64, 229 P.3d 669 (2010)). When read as
a whole jury instructions must make the applicable iegai standard “ ‘manifestiy apparent
to the average juror.’ ” State v. t.eFaber, 128 Wn.2d 896, 960, 913 P.2d 369 (1996),
abrogated on other grounds bv State v. O’i-lara, 167 Wn.2d 91, 217 P.3d 756 (2009)3
(quoting State v. Alier_y, 101 Wn.2d 591, 595, 682 P.2d 312 (1984)).

The court used 11 Washington Practice: Washington Pattern Jury instructions
Criminai 26.04, at 366 (3d ed. 2008) (VVPEC), to instruct the jury on the eiements of the
crime of felony murder in the first degree The to-convict “Jury instruction 13" states:

To convict a defendant of the crime of iVlurder in the First Degree

each of the foliowing eiements of the crime must be proved beyond a

reasonabie doubt:

(1) That on or about June 3, 2013, the defendant committed
Robbery in the First Degree or Burglary in the First Degree;

(2) That the defendant or another participant in the crime caused
the death of Latasha Waiker in the course of or in furtherance of such
crime;

(3) That Latasha Waiker was not a participant in the crime of
Robbery in the First Degree or Burgiary in the First Degree; and

(4) That any of these acts occurred in the State of Washington.

if you find from the evidence that each of these eiements has been
proved beyond a reasonable doubt, then it wiii be your duty to return a

 

2 internal quotation marks omitted
3 internal quotation marks omitted

13

No. 75075-5-!/14

verdict of guilty.

On the other hand, if, after weighing ali of the evidence you have a
reasonable doubt as to any one of these eiements, then it wiii be your duty
to return a verdict of not guilty.

The court used VVPiC 19.01, at 291, to instruct the jury on the affirmative defense

to felony murder in the first degree and felony murder in the second degree WPiC

19.01 is based on the statutory afhrmative defense RCW 9A.32.030(1)(c) and

.()50(‘i)(b).4 State v. Fisher, 185 Wn.2d 836, 848, 374 P.3d 1185 (2016); WP|C 19.01

cmt. at 292. Jury instruction 246 states:

lt is a defense to a charge of lViurder in the First and Second
Degree that the defendant:

(1) Did not commit the homicidai act or in any way solicit, request,
command importune, cause or aid the commission thereof; and

(2) Was not armed with a deadly weapon, or any instrument,
articie, or substance readily capable of causing death or serious physicai
injury; and

(3) Had no reasonabie grounds to believe that any other participant
was armed with such a weapon, instrumentl article or substance; and

(4) Had no reasonable grounds to believe that any other participant
intended to engage in conduct likeiy to result in death or serious physical
injury.

The defendant has the burden of proving this defense by a
preponderance of the evidence Preponderance of the evidence means
that you must be persuaded considering all the evidence iri the case that

 

f The feiony murder in the second degree statute RCW 9A.32.650(1)(b) includes the same

affirmative defense as felony murder in the first degree RCW 9A.32.030(1)(c). RCW 9A.32.050(1)(b)

StateSZ

A person is guilty of murder in the second degree when . . . [h]e or she commits or
attempts to commit any feiony, including assauit, other than those enumerated in RCW
9A.32.G30(1)(c), anci, in the course of and in furtherance of such crime or in immediate
flight therefrom, he or she or another participant, causes the death of a person other
than one of the participants; except that in any prosecution under this subdivision (1)(b) in
which the defendant was not the only participant in the underiying crime if estabiished by
the defendant by a preponderance of the evidence it is a defense that the defendant:

(i) Did not commit the homicidal actor in any way soiicit, request, command
importune cause or aid the commission thereof; and

(ii) Was not armed with a deadly weapon, or any instrument, article or
substance readiiy capable of causing death or serious physical injury; and

(iii) Had no reasonable grounds to believe that any other participant was armed
with such a weapon, instrument, artic|e, or substance; and

(iv) i-iad no reasonable grounds to believe that any other participant intended to
engage in conduct likely to result in death or serious physicai injury.

14

NO. 75075-5-|/15

heid:

it is more probabiy true than not true. lf you find that the defendant has
estabiished this defense it wili be your duty to return a verdict of not guilty
as to this charge.fSi

ln State V. Gamboa, 38 Wn. App. at 409, 413, 685 P.Zd 643 (1984), the court

The statutory defense when read as a whole, negates none of the
elements the State was required to prove ii, that the defendants took
personal property from the victim by the use or threatened use of force in
the course of which activity the victim’s death was caused. The defense
merely permits an accused to disprove his participation in the homicidal
a_c_t1 not in the underiying feiony, and to establish that he was not armed
and was ignorant of his coparticipant's being armed and of the likelihood
of death or serious physical iniury.[61

See aiso State v. Rice, 102 Wn.2d 120, 126, 683 P.ZG 199 (1984).

The concluding instruction states, in pertinent part:

When compieting the verdict forms for defendant Gary Sanders,
you wiii first consider the crime of lVlurder in the First Degree as charged
if you unanimously agree on a verdict, you must fill in the biank provided
in verdict form A the words “not guiity” or the Word “guilty,” according to
the decision you reach. |f you cannot agree on a verdict, do not fili in the
blank provided in Verdict Form A.

if you find the defendant Gary Sanders guiity on verdict form A, do
not use verdict forms B, C, or D. If you find the defendant not guiity of the
crime of Murder in the First Degree or if after full and careful
consideration of the evidence you cannot agree on that crime you will
consider the lesser crirne of lVlurder in the Second Degree |f you find the
defendant not guilty of the crime of Niurder in the Second Degree or if
after full and careful consideration of the evidence you cannot agree on
that crime you will consider both iesser crimes of Robbery in the First
Degree and Burglary in the First Degree You must consider each of
these crimes separately Your verdict on one crime shouid not control
your verdict on the other. if you unanimously agree on a verdict for these
crimes, you must fii| in the blank provided in verdict form C and D the
words “not guiity” or the word “guiity”, according to the decision you reach.

 

5 The WPlC 19.01 note on use at 291 states, “Use this instruction with WPiC 26.04, Niurderm

First Degree--Fe|ony-Elements, and WP|C 27.04, Niurder--Second Degree-Feiony--Elements, which
set forth the elements of felony murder in the first or second degree when there are muitipie participants
and the statutory defense is in issue.”

6 Emphasis in original

15

NO. 75075-5-|/16

Sanders does not contend that the to-convict felony murder in the first degree
jury instruction or that the statutory affirmative defense to felony murder jury instruction
do not accurately state the law.7 Sanders ciaims the instructions are ambiguous
because the to-convict instruction states that if the jury finds the State has proved the
elements of the crime “beyond a reasonable doubt, then it will be your duty to return a
verdict of guilty,” but the affirmative defense instruction states that if Sanders proves the
affirmative defense by a preponderance of the evidence “it will be your duty to return a
verdict of not guiity” to the charge of felony murder in the first degree.

Considered as a whoie, we conclude the instructions are not ambiguous and
cleariy address the reiationship between the to-convict instruction and the affirmative
defense instruction 'i'he jury instructions state that during deiiberations, the jury sha|i
“consider the instructions as a whoie.” The first sentence of the affirmative defense
instruction unequivocaliy states, “lt is a defense to a charge of Niurder in the First and
Second Degree." The affirmative defense jury instruction states that if Sanders shows
by a preponderance of the evidence that he did not commit the homicidal act, was not
armed with a deadiy weapon, had no reason to believe anyone else was armed, or had
no reason to beiieve anyone else intended to engage in conduct likely to cause death or
serious physical injury, it is a cornpiete defense to felony murder in the first degree and
the jury must find Sanders not guiity.

We review a trial court’s decision as to whether to give further instructions in

response to a request from a deiiberating jury for abuse of discretion. State v. Brown,

 

7 |n the cases Sanders cites, LeFaber, 128 Wn.2d 896, and State v, Camgbeil, 163 Wn. App.

394, 260 P.3d 235 (2011), vacated on reconsideration by State v. Carnpbe||, 172 Wn. App. 1009 (2012),
the instructions did not accurately state the law.

 

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NO. 75075-5~|/17

132 Wn.2d 529, 612, 940 P.2d 546 (1997). A triai court’s refusal to give a proposed jury
instruction is reviewed for an abuse of discretion in re Det. of Pouncy, 168 Wn.2d 382,
390, 229 P.3d 678 (2010). lt is within the sound discretion of the trial court whether to
give further instructions to a jury after it has begun deiiberations. State v. Ng, 110
Wn.2d 32, 42, 750 P.Zd 632 (1988). A trial court abuses its discretion only if its decision
is manifestly unreasonabie rests on untenable grounds, or is made for untenable
reasons. State ex rel. Carroii v. Junker, 79 Wn.2d 12, 26, 482 P.Zd 775 (1971).

Where the instructions accurately state the |aw, the trial court need not further
instruct the jury. Ng, 110 Wn.2d at 42-44. A court does not abuse its discretion by
referring the jury to the instructions aiready given that correctly state the law. Ng, 110
Wn.2d at 42-44. Jury questions do not create an inference that the “entire jury was
confused, or that any confusion was not clarified before a final verdict was reached.”
§g, 110 Wn.2d at 43.8 “ '[Q]uestions from the jury are not final determinations.’ ” §g,
10 Wn.2d at 439 (quoting State v. Mi|ler, 40 Wn. App. 483, 489, 698 P.2d i123 (1985)).
“ ‘[T]he decision of the jury is contained exclusively in the verdict.’ " _i§|_g, 10 Wn.2d at 43
(quoting Mj]jer, 40 Wn. App. at 489).10

During deiiberations, the jury submitted three “Jury De|iberations Question”

forms. On the first day of deliberations, the jury submitted a Jury Deiiberations

 

3 Sanders aiso cites Recommendation 38 from the Washington State Jury Cornmission that
states, "'i'ria| judges should make every effort to respond fuiiy and fairly to questions from deliberating
jurors” and “shou|d not merely refer them to the instructions without further comment.” 11A Washington
Practice: Washington Pattern Jury lnstructions: Crirnina|, app. l-il at 834 (3d ed. 2008).

9 A|teration in original.

1° We note that where as here a defendant agrees to and proposes a jury instruction, the
defendant cannot challenge the instruction on appea|. State v. Henderson, 114 Wn.2d 867, 870-71, 792
P.2d 514 (1990).

17

No. 75075~5“|/1 8

Question: “Does the instruction # 13 apply to Defendant Gary Sanders.” Sanders’

attorney and the prosecutor agreed the court should respond by stating, “Yes.”
The next morning, the jury submitted a second Jury Deliberations Question:
As it reiates to Defendant Sanders:

There are questions regarding the sequence of deliberations as it reiates
to the instructions

Question #1

lf the jury determines that a_|i of the eiements of the crime as
identified in instruction 13 are proven, how is the jury to apply instruction
24G?

Question #2

If the jury determines that the defenses identified in instruction 246

are atl proven out, how does that fact affect the proof estabr§$hed in
instruction #13?li1i

Sanders proposed the court respond by stating, “if the jury agree that the four
factors in instruction 246 have been estabiished, the verdicts for Defendant Gary
Sanders on Verdict Forms A and 8 as to him should be Not Guiity." Sanders aiso
proposed submitting a special verdict form to the jury asking, “Do the jury find that each
of the four factors iisted in instruction 24G has been estabiished.” The court rejected
the proposed response and speciai verdict form. The court responded to the jury
inquiry by stating, “Piease re-read your instructions carefully The use of verdict forms

and how they are to be applied is contained within."

 

11 Emphasis in original.

18

i\|o. 75075-5-|/19

That afternoon, the jury submitted a third Jury Deiiberations Question:

As it reiates to Defendant Sanders:

Can the jury convict for murder in the ist degree based upon itern 13 as
written, without consideration of instruction 24G.

Sanders argued the jury question was “ambiguous” and proposed the court give
“a substitute To-Convict instruction . . , for each offense felony murder 1 and the iesser
crime of feiony murder 2, in which the `i'o-Convict instruction for each offense adds the
absence of the four factors of affirmative defense.” The court rejected the request The
court responded, “You rnust consider ali the instructions as a whoie. Read the
instructions in their entirety.”

The foliowing morning, the jury returned a verdict finding Sanders guilty of felony
murder in the first degree

There is no dispute the court fuiiy and fairly responded to the firstjury inquiry
Because the second jury inquiry specifically asked questions “regarding the sequence
of deiiberations” for the to-convict and the affirmative defense we conciude the court
did not abuse its discretion by rejecting Sanders‘ request to provide a suppiernentai
instruction or a special verdict form and instructing the jury to consider the instructions
as a whole and read the instructions in their entirety. Because the jury instructions
made the law manifestly apparent and were not ambiguous, the court did not abuse its
discretion in responding to the third jury question by instructing the jury that it must read
the instructions in their entirety as a whoie. We presume that jurors follow the court’s
instructions. State v. Kaiebaugh, 183 Wn.2d 578, 586, 355 P.3d 253 (2015).

Sanders contends there is insufficient evidence to support the predicate crime of

burgiary in the first degree and the feiony murder conviction. We considered and

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No. 75075-5-i/20

rejected the same argument in State v. Mann, 4 Wn. App. 2d 1034, 2018 WL 3238683,
at *5-*7. We adhere to our decision in Mann.

We afhrm the jury conviction of felony murder in the first degree

 

 

 

 

WE CONCURZ
` 1 ._._»-" ¢--“_’
WMC, ACT)" (`\(."'<Q\]//, ‘\) -‘G, J

20

