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      IN THE COURT OF APPEALS OF THE STATE OF W

                                                          DIVISION II


STATE OF WASHINGTON,                                                 I                     No. 428(


                                           Respondent,


          V.




DERIK MAPLES,                                                                     UNPUBLISHED OPINION




              PENOYAR, J. —           Derik Maples appeals his convictions, for second degree felony murder

and first degree assault arising from a controlled substance delivery where his accomplice fired
shots    into the buyers'         car.    He argues that ( 1) the trial court erred by instructing the jury that a

buyer is        not    an   accomplice      to the      crime   of   delivery   of   a   controlled   substance, (   2) there is


insufficient evidence to support his murder conviction, and ( 3) there is insufficient evidence to

support        his    assault    conviction.       He   also    includes   a   statement    of additional      grounds (   SAG),



arguing that his Sixth Amendment rights were violated because the assault victim did not testify
at   trial.    Washington courts have determined that a buyer. is not an accomplice to delivery of a

controlled substance and               the trial   court' s   instructions appropriately      reflected   that. Further, there



is sufficient evidence that the shooting occurred during the course of the delivery, the shooter

intended to          assault    the   victim, and    Maples     was an accomplice         to the   assault.   Finally, Maples' s

Sixth Amendment rights were not violated because the State did not attempt to introduce any of

the witness' s statements and the witness' s failure to appear was not the result of State action.

We     affirm.
42865 -2 -II



                                                                      FACTS


           On December 1, 2009, Aaron Scott called Maples and asked if he would sell cocaine to

some of     Scott'   s   friends, Clement Adams                  and    Tyshaun Foreman.              Maples agreed and obtained


 300    of cocaine       from Alex Velasquez.                While at Velasquez' s, Maples mentioned that Scott and


his friends    were      acting "     fanny"    and    had       called      Maples from         a restricted number.   5 Report of


Proceedings ( RP)          at   780.     Maples asked his friend, Justin Tyler, to come with him to the sale.

Tyler   agreed and asked               Velasquez for         a    gun.          Maples said that he thought the gun was for


 protection" and "        to    make sure     that nothing            went      wrong." 6A RP at 840.


           Maples    agreed      to    meet   Scott'   s   friends     at   the S &   S Mart in Vancouver. When Maples and


Tyler arrived, Maples got into the back seat of a waiting car with Adams and Foreman. He gave

the passenger, Foreman, a baggie of cocaine and Foreman attempted to give him counterfeit cash

in   exchange.      Maples       protested and attempted                 to     retrieve   the   cocaine.   Adams acted like he was


                                      Maples jumped                         the                       They   robbed me."   6A RP at
going to hit Maples,            so                            out of              car and said, "




844.    Tyler then fired five shots at the car, one of which hit Adams in the head, killing him.

Maples and Tyler fled.


           The State       charged       Maples    with (        1)    first degree murder or, in the alternative, second


degree felony murder and ( 2) first degree attempted murder or, in the alternative, first degree
assault.     Before trial, the State made a motion in limine to prohibit Maples from arguing that

Adams      was a participant           in the underlying              felony, delivery       of a controlled substance.    It argued


that a drug buyer is not an accomplice under Washington case law. The trial court did not make
 a clear   ruling   at   that   point,   instead telling Maples, "                I' m not trying to eliminate your ability to put




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42865 -2 -II




your   theory before         the ...   jury....      But, I think you need to be in conformity with what the State

is saying     about   the    use of    the term ` participant.        "'   2 RP    at   231.    The trial court admitted that this


 doesn' t    give you a whole           lot   of   direction."    2 RP     at   231 - 32.      The State then suggested that the


issue could be clarified when the parties discussed jury instructions, and the trial court agreed.

            The trial   court    later instructed the jury that "[          a] `   participant' in a crime is a person who is


involved in committing that                   crime,   either    as   a principal        or    as   an   accomplice"   and   that "[   a].




purchaser of controlled substances is not an accomplice in the crime of delivery of a controlled

substance."      CP     at   224 -25. Maples did not object to either instruction at trial.


            The jury found Maples guilty of second degree murder and first degree assault and it
returned a special verdict finding that he or an accomplice was armed with a firearm at the time

of   both   crimes.     The trial court sentenced him to a total of 456 months of confinement. Maples

appeals.



                                                            ANALYSIS


I.          PARTICIPANT


            Maples first argues that the trial court violated his due process rights when it refused to

allow him to argue that Adams was a participant in the felony underlying the murder charge. The

distinction is critical because, as this case was charged, the State was required to prove that the

victim was not also a participant in the underlying crime, delivery of a controlled substance.

Because Washington case law holds that a controlled substances buyer is not an accomplice to

the crime of delivery of a controlled substance, we affirm the trial court.




                                                                       3
42865 -2 -II




             First, the trial court did not actually rule on the State' s motion in limine, and Maples does

not make a substantive argument in his brief about the trial court' s ruling, instead focusing on

jury   instruction 20 —" A            purchaser of controlled substances is not an accomplice in the crime of


delivery         of a controlled       substance."         Appellant' s Br.    at   15.   But Maples did not object to the


challenged jury instruction at trial.

                                   defendant                                  for the first time       on    appeal.    RAP 2. 5( a);
              Generally,      a                   cannot raise    an error




State    v.      McFarland, 127 Wn.2d 322, 332 -33, 899 P. 2d 1251 ( 1995).                            The purpose behind this


rule   is   to    encourage       the "`   efficient use of judicial resources "'         by ensuring that the trial court has

the opportunity to             correct     any   errors,   thereby avoiding unnecessary          appeals.         State v. Robinson,


171 Wn. 2d 292, 304 -05, 253 P. 3d 84 ( 2011) (                        quoting State v. Scott, 110 Wn.2d 682, 685, 757

P. 2d 492 ( 1988)).               But, a defendant may raise particular types of errors for the first time on
                                                                       a   constitutional    right."        RAP 2. 5(   a)(   3).   Here,
appeal,          including "      manifest    error[ s]    affecting


Maples fails to argue that any of the exceptions listed in RAP 2.5( a) apply. Accordingly, he has
not preserved          this    argument       for   appeal.   Even assuming Maples preserved this alleged error, his

argument still fails because the trial court did not err by giving instruction 20.

              A person is guilty of second degree murder when he commits or attempts to commit any

felony and, in the course of and in furtherance of such crime or in immediate flight therefrom,
he,    or another participant, causes                the death    of a person other       than one     of   the   participants.     RCW


 9A. 32. 050( 1)( b).         Here, the underlying felony was delivery of a controlled substance. Generally,

 a " participant"       is "      another person      involved in the             i.
                                                                           crime — e.,     another principal or accomplice."



                                                    831, 840, 690 P. 2d 1175 ( 1984).          But Washington case law has
 State      v.   Toomey,      38 Wn.       App.

 determined that              a    controlled       substances    buyer —such       as    Adams —is not an accomplice to



 delivery.          State   v.     Morris, 77 Wn.          App.   948, 954 -55, 896 P. 2d 81 ( 1995) (                interpreting the

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42865 -2 -II




delivery of a controlled substance statute and holding that that a buyer cannot be charged with

delivery    of a controlled substance, even as an accomplice);                    State v. Warnock, 7 Wn. App. 621,

623, 501 P. 2d 625 ( 1972) (             reasoning that, since a buyer cannot be charged with delivery, he

cannot,     therefore, be         an accomplice    to   delivery); State v. Catterall, 5 Wn. App. 373, 376, 486

P. 2d 1167 ( 1971) (          noting that the legislature intended to treat buyers and sellers differently and

holding     that   a   buyer is     not an accomplice     to   delivery   of a controlled substance).'          Relying on this

case law, the trial court instructed the jury that a controlled substances buyer is not an

accomplice to the crime of delivery of a controlled substance.

          Using        the   courts'    logic in Catterall and Warnock, it follows that Adams was not a

 participant,"         i.e., a principal or accomplice, in the delivery of a controlled substance. We noted

in Warnock that ` [               t]he test in this state as to whether a witness is an accomplice or not is

whether      he    could     be indicted for the    same crime      for   which   the defendant     is   being   tried. "' 7 Wn.



            623 ( quoting State              Emmanuel, 42 Wn.2d 799, 821, 259 P. 2d 845 ( 1953)).                   In Catterall
App.   at                               v.




we stated, "       The abettor, within the meaning of the statute, must stand in the same relation to the

crime as     the    criminal— approach           it from the    same    direction, touch it   at   the   same point."    5 Wn.


             378 ( quoting State              Teahan, 50 Conn. 92, 101 ( 1882)).          Adams could not have been
App.   at                                v.




indicted for                                                           See Morris, 77 Wn.     App.       at   951 ( " The person
                   delivery        of a controlled substance.




  Catterall involved offenses under the repealed Dangerous Drug Act, but this court held in
 Warnock that the result would be the same under both the Dangerous Drug Act and the Uniform
 Controlled Substances Act because both punish possession separately from delivery. 7 Wn. App.
 at 622 -23. Divisions 1 and 3 have held that the " purchaser -agent distinction" did not survive the
 repeal of the Dangerous Drug Act. See State v. Ramirez, 62 Wn. App. 301, 308 -09, 814 P. 2d
                                  Sherman, 15 Wn.              168, 170, 547 P. 2d 1234 ( 1976).          But those cases
 227 ( 1991); State          v.                         App.
 involved " procuring agents" rather than ultimate buyers. Ramirez, 62 Wn. App. at 308 -09;
 Sherman, 15 Wn. App. at 170. Here, Adams did not deliver or transfer the cocaine, he only
 received the cocaine. Accordingly, these facts are most similar to Morris where we held that a
 buyer is not an accomplice to delivery. 77 Wn. App. at 954.
                                                                   5
42865 -2 -II




who     takes    control   does    not ` transfer'    or ` deliver[,]'   but   accepts   the transfer   or   delivery. ").   As a


buyer, he did not " stand in the same relation to the crime" as the seller Maples or " approach it

from the        same   direction."      Catterall, 5 Wn.        App.     at   378 (   quoting Teahan, 50 Conn. at 101).

Although Adams'            s and   Maples'   s   intents   were compatible —each          needed the other to accomplish


their   respective goal —their         intents were not the same.


              Maples contends that the felony murder rule was designed to protect innocent persons

and    Adams      was not    innocent in this        case.   But Washington has applied the felony murder statute

to    situations where       the   victim was not an         innocent party.          For example, felony murder victims

who were involved in fights that ultimately led to their deaths are not considered " participants"

in the underlying          assault.    See State v. Brigham, 52 Wn. App. 208, 210, 758 P. 2d 559 ( 1988);

State    v.   Langford, 67 Wn.        App.   572, 579 -80, 837 P. 2d 1037 ( 1992).            Similarly, here, Adams was

involved in the drug deal, but he was not an accomplice to the underlying felony, delivery of a
controlled       substance.        Therefore, the trial court did not err when it instructed the jury that a

controlled substance buyer is not an accomplice to delivery.

II.           INSUFFICIENT EVIDENCE FOR SECOND DEGREE MURDER

              Maples next argues that there is insufficient evidence to support his second degree

murder conviction because the State did not prove that Adams was not a participant or that the

 shooting occurred during or in immediate flight from the cocaine delivery. Both arguments fail.
              Evidence is legally sufficient to support a guilty verdict if any rational trier of fact,

 viewing the evidence in the light most favorable to the State, could find the elements of the
 charged crime         beyond      a reasonable    doubt. State     v.   Longshore, 141 Wn. 2d 414, 420 -21, 5 P. 3d
42865 -2 -II




1256 ( 2000).          We interpret      all reasonable       inferences in the State'         s    favor.    State v. Hosier, 157


Wn.2d 1,       8, 133 P. 3d 936 ( 2006).             Direct and circumstantial evidence carry the same weight.

State   v.   Varga, 151 Wn. 2d 179, 201, 86 P. 3d 139 ( 2004).                      Credibility determinations are for the

trier of fact    and are not subject           to   review:    State v. Cantu, 156 Wn.2d 819, 831, 132 P. 3d 725


 2006).


             First, Maples argues that there is insufficient evidence that Adams was not a participant

in the       crime    of   delivery    of a   controlled      substance.        As discussed above, a buyer is not an


accomplice        to    delivery      of a    controlled      substance.        Maples argues several facts that show


Adams' s involvement in the drug deal; however, none of the facts establish that Adams was

acting as the seller or deliverer rather than the buyer. Therefore, there is sufficient evidence that
Adams was not a participant.


             Second, Maples argues that there is insufficient evidence that the shooting occurred in the

course of or         in flight from the       crime.    Because there was close proximity in distance and time

between the crime and the shooting and the shooting was a result of the crime, there is sufficient

evidence that it occurred during the course of the crime.

             To establish that a murder occurred in the course of or in immediate flight from a felony,

there    must    be    an "   intimate   connection"    between the           killing   and   the   felony.    State v. Brown, 132


Wn.2d 529, 607 -08, 940 P. 2d 546 ( 1997) (                    quoting State v. Golladay, 78 Wn.2d 121, 132, 470

 P. 2d 191 ( 1970)).          The   murder must      be in " close proximity in terms               of   time and distance."   State


 v.   Leech, 114 Wn.2d 700, 706, 790 P. 2d 160 ( 1990).                             A causal connection must be clearly

 established between the felony and the murder such that there is " more than a mere coincidence

 of   time    and place."        Brown, 132 Wn.2d             at   608 ( quoting 2 WAYNE R. LAFAVE &                   AUSTIN W.


 SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 7. 5,                            at   225 ( 1986)).     When an intervening cause is
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42865 -2 -II




involved, courts consider whether the intervening cause was foreseeable in determining whether

a causal connection exists .          2 See Leech, 114 Wn.2d at 704 -05.

          Here,       there is close proximity in time and distance between the delivery and the

shooting —Tyler          fired shots into the car immediately after Maples handed the drugs to Foreman

and while       the   car was still    in the parking lot      where     the   delivery   occurred.   There is also a causal


connection       between the shooting         and   the   delivery. The shooting resulted from the delivery—

Tyler    shot    into the     car   because the buyers         robbed    Maples     during   the   delivery. Arguably, the

robbery was an intervening cause of the shooting, but, because it was foreseeable, it does not
break the       causal connection.         Maples' s statements to police indicate that he thought a robbery

might occur at the delivery. Before he left for the delivery, Maples told Tyler and Velasquez that

the    buyers   were "   acting     funny," and he asked Tyler to come with him. 5 RP at 780. Maples said

that they brought the gun for protection in case something went wrong. A detective asked if they
brought the       gun    because Maples       was concerned about "              getting jacked," and Maples answered,


                5 RP         783.                    there      is   sufficient evidence      of an "   intimate connection"
 Yeah."                 at           Accordingly,

between the shooting and the crime.

III.      INSUFFICIENT EVIDENCE FOR ASSAULT


          Finally, Maples argues that there is insufficient evidence to support his conviction for
first degree assault because the State failed to prove that Tyler meant to shoot at Foreman or that

Maples was an accomplice to Tyler' s actions. We disagree.


2 The Leech court noted that courts have required a closer causal connection when the
                             is                                      than   a response    to the defendant'   s actions.   114
 intervening      cause           a mere coincidence rather

 Wn.2d at 705 ( quoting 2 WAYNE R. LAFAVE & AUSTIN W. SCOTT, 7R., SUBSTANTIVE CRIMINAL
 LAW § 7. 5, at 214 ( 1986)). Where the intervening cause is coincidental, foreseeability is
 required; where it is a response to the defendant' s actions, the question is whether the intervening
 act was    abnormal.             Leech, 114 Wn.2d        at    705 ( quoting 2 WAYNE R. LAFAVE &                AUSTIN W.

 SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 7. 5, at 214 ( 1986)).
                                                                     8
42865 -2 -II



           First, Maples argues that there is insufficient evidence that Tyler intended to shoot

Foreman because there is no evidence that Tyler knew there was a passenger in the car. Because

the first degree assault statute does not require that the specific intent to inflict great bodily harm

match a specific victim, Maples' s argument fails.


           A person is guilty of first degree assault if, with intent to inflict great bodily harm, he

assaults another with a             firearm. RCW 9A.36. 011( 1)(              a).    A person acts with intent when he acts


with    the   objective or purpose           to   accomplish a result       constituting      a crime.   RCW 9A.08. 010( 1)( a).


Specific intent cannot be presumed, but it can be inferred as a logical probability from all the

facts    and    circumstances.           State    v.    Wilson, 125 Wn.2d 212, 217, 883 P. 2d 320 ( 1994). "                  Great


bodily     harm"       means "      bodily injury which creates a probability of death, or which causes

significant serious permanent disfigurement, or which causes a significant permanent loss or

impairment        of   the function       of   any     bodily part   or organ."      RCW 9A. 04. 110( 4)( c).    An assault may

be ( 1).   an attempt        to inflict    bodily injury         upon another, (     2) an unlawful touching with criminal

intent, (     3) or putting another in apprehension of harm whether or not the actor intends to inflict
harm.      Wilson, 125 Wn.2d at 218 ( quoting State v. Bland, 71 Wn. App. 345, 353, 860 P.2d 1046

 1993)).        First degree assault does not, under all circumstances, require that the specific intent

match a specific victim.              Wilson, 125 Wn.2d at 218.


           In State     v.   Elmi, 166 Wn.2d 209, 207 P. 3d 439 ( 2009), our Supreme Court affirmed the


defendant' s       convictions           for first degree        assault   against    three   unintended   victims.    There, the


defendant fired shots into a house where his estranged wife was staying with three children.

                                  212.    The                         him        four               first degree   assault.   Elmi,
Elmi, 166 Wn.2d              at                   jury    convicted         on          counts of




 166 Wn. 2d       at   213.       The defendant argued that the State did not prove specific intent to assault

the     children.      Elmi, 166 Wn.2d               at   214.   The court disagreed, holding that, where a defendant
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42865 -2 -II




intends to shoot into and to hit someone occupying a house or a car, he bears the risk of multiple

convictions when multiple victims are present, regardless of whether the defendant knows of

their presence. Elmi, 166 Wn.2d at 218.

        Here, Maples does not dispute that Tyler fired five shots into the driver' s side of the car


specifically    intending         to inflict   great   bodily   harm   on   the driver.     Although Tyler may not have

known of Foreman' s presence, an assault may be committed by putting another in apprehension

of   harm,   even        if the   actor   does   not   intend to inflict harm.            See Wilson, 125 Wn.2d at 218.


Therefore,      under       Elmi, Tyler —and, through             accomplice        liability,   Maples —bore the risk of


assault convictions for any passengers in the car, whether or not they knew of their presence.

        Next, Maples argues that there is insufficient evidence that he acted as an accomplice to

Tyler' s assault of Foreman. Because there is sufficient evidence for the jury to infer that Maples

requested Tyler to act, we disagree.


         A person is guilty of a crime committed by another if he is an accomplice to the

commission          of   the   crime.     RCW 9A. 08. 020( 1), (        2)(   c).   A person is an accomplice if, with

knowledge that it will promote or facilitate the commission of the crime, he solicits, commands,

encourages, or requests the other person to commit the crime or aids or agrees to aid the other in

                                                        RCW 9A.08. 020( 3)(         a).     Physical presence and assent,
planning       or   committing the          crime.




without more, are            insufficient to     establish accomplice          liability. State v. Roberts, .80 Wn. App.

 342, 355 -56, 908 P. 2d 892 ( 1996).

         There is         sufficient evidence      that Maples     acted as an accomplice.          Tyler was present at the



 drug deal only because Maples asked him to be. Maples knew that Tyler had a gun, and, in fact,
 Tyler brought the gun because Maples was concerned about the buyers' behavior and wanted

 some protection.           Additionally, after Foreman attempted to pay with counterfeit money, Maples
                                                                  10
42865 -2 -II




got out of     the   car and     told Tyler that     he had just been   robbed.   It was reasonable for the jury to

infer that this was a request for Tyler to act. Accordingly, there is sufficient evidence to support

Maples' s assault conviction.


IV.          SAG


         In his SAG, Maples argues that his right to confront his accuser was violated because

Foreman did not testify at his trial. The Sixth Amendment to the United States Constitution

guarantees the right of an accused in a criminal prosecution to confront witnesses against him.

State   v.   Parris, 98 Wn. 2d 140, 144, 654 P. 2d 77 ( 1982) (            citing Davis v. Alaska, 415 U.S. 308,

315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 ( 1974)). " The main and essential purpose of confrontation


is to   secure     for the      opponent   the opportunity    of cross examination."     Parris, 98 Wn.2d at 144.


Here, although Foreman did speak with police after the shooting, the State did not attempt to

introduce any        of   his   statements.   Therefore, Foreman was not actually a witness against Maples

and Maples' s rights were not violated by Foreman' s failure to appear at trial.

             Further, the Sixth Amendment protects defendants from government interference with the

right   to    conduct a      defense.      State v. McCabe, 161 Wn. App. 781, 787, 251 P. 3d 264 ( 2011).

                         defendant' s Sixth Amendment          rights   are not violated where "   the obstacle to a
Accordingly,         a




 defendant' s getting what he perceives as the full benefit of his Sixth Amendment right is not
 government        interference, but       an uncooperative witness."      McCabe, 161 Wn.      App.   at   787.   Here,


 Maples' s inability to confront Foreman was not due to any action or failure to act by the State or
 the trial    court; rather,      it was due to Foreman' s lack     of cooperation.    In fact, the State obtained a


 material witness warrant for Foreman, but it could not locate him. Maples' s argument fails.


                                                 0




                                                               11
42865 -2 -II



        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

2. 06. 040, it is so ordered.




We concur:


                                i
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                                     e,


         Johanson, A.C. J.


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                                V-
         Bjo, gen, J.',




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