     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON^                                  0

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STATE OF WASHINGTON,                                                          va
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                                                 No. 73063-1-1                en
                     Respondent,                                                       J>~orn
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                                                 DIVISION ONE                 3
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JASON RAMOS,                                     UNPUBLISHED OPINION W ^S
                     Appellant.                  FILED: April 25. 2016

       Spearman, J. — Jason Ramos was convicted of two counts of first degree

robbery, one count as a principal and one as an accomplice, and one count of
second degree assault. He appeals, claiming that there was insufficient evidence

to support his conviction for accomplice liability. We disagree and affirm.

                                      FACTS

       On October 31, 2013, Neal Blum and Jarvis Capucion were drinking beer

on some steps near the Mt. Baker transit center when they heard a car alarm go

off. Two men, later identified as Ayman Ibrahim and Jason Ramos, came running

down the stairs. Blum stood up to let them pass, but Ibrahim stopped to speak

with him while Ramos continued down the stairs past Capucion. Ibrahim

attempted to engage Blum in conversation and shake his hand, in which hand
Ibrahim carried an unidentified object concealed with a bandage. During this

interaction with Blum, Ibrahim and Ramos spoke to each other in what sounded
No. 73063-1-1/2


like Spanish. At one point Ibrahim called out and Ramos came back up the stairs

to Capucion. He grabbed Capucion's backpack and punched him in the face,

knocking him to the ground. When Capucion got up and tried to retrieve his bag,

the two exchanged blows. Meanwhile Ibrahim grabbed Blum, took his backpack,

and removed a knife from Blum's pocket.

       Blum heard Capucion cry out for help. He turned to see Ramos making

sharp stabbing motions toward Capucion's torso. Ibrahim started down the stairs

toward Ramos and Capucion. Blum took out his other knife and went after him.

As Blum caught up to Ibrahim on the stairs, he grabbed Ibrahim and the two

stumbled into the bushes. Blum cut Ibrahim in the neck with his knife and

stabbed him multiple times in the right side. Blum then ran down the stairs to help

Capucion. He knocked Ramos's knife away and stabbed him in the left side.

When Ramos continued to fight, Blum cut his throat and stabbed him in the right

side. Ibrahim came down the stairs and approached Blum, but then backed off.

Ramos got up again and challenged Blum, but left after Blum brandished his

knife and threatened to kill him if he didn't leave. Ramos and Ibrahim walked

away as Blum called 911. Capucion had been stabbed multiple times in the chest

and suffered serious injuries to his spleen and other organs. Blum was not

injured in the confrontation.

       The police apprehended Ibrahim and Ramos about a block away, near

Martin Luther King, Jr. Way and S. Hanford Street. The two were arrested and

taken to Harborview Hospital for treatment of their injuries. One backpack was

recovered from Ramos and another was found on the stairwell; the backpacks
No. 73063-1-1/3


were later identified as belonging to Blum and Capucion. Ramos was released

from custody until charges were filed on February 21, 2014. He was

subsequently rearrested.

       Ramos was charged with two counts of robbery in the first degree and one

count of assault in the first degree. Prior to Ramos's trial, Ibrahim pleaded guilty

to one count of first degree robbery with a deadly weapon enhancement. Ramos

called Ibrahim as a witness at his trial. He testified that he and Ramos knew each

other but denied robbing Blum. The jury found Ramos guilty as charged. He was

sentenced to 169 months. Ramos appeals only his conviction for robbery in the

first degree against Blum.

                                   DISCUSSION

       Ramos challenges the sufficiency of the evidence supporting his

conviction as an accomplice to Ibrahim's first degree robbery of Blum. He claims

the State failed to prove that he knew that Ibrahim was going to rob Blum and

that he aided or stood ready to aid in the commission of that crime. Evidence is

sufficient to support a conviction if, when viewed in the light most favorable to the

State, any rational trier of fact could have found any disputed elements proved

beyond a reasonable doubt. State v. Witherspoon, 180 Wn.2d 875, 883, 329

P.3d 888 (2014). A challenge to the sufficiency of the evidence admits the truth

of the State's evidence and all reasonable inferences must be interpreted most

strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d

1068(1992).
No. 73063-1-1/4


       A person commits robbery when he or she unlawfully takes personal

property from the person of another or in his or her presence against his or her

will by the use or threatened use of immediate force, violence, or fear of injury to

that person or his or her property or the person or property of anyone. RCW

9A.56.190. Such force or fear must be used to obtain or retain possession of the

property, or to prevent or overcome resistance to the taking; in either of which

cases the degree of force is immaterial, |d_.

       A person is an accomplice of another person in the commission of

a crime if:

              (a) With knowledge that it will promote or facilitate the
       commission of the crime, he or she:
              (i) Solicits, commands, encourages, or requests such other
       person to commit it; or
              (ii) Aids or agrees to aid such other person in planning or
       committing it; or
              (b) His or her conduct is expressly declared by law to establish
       his or her complicity.

RCW 9A.08.020(3)(a). In order to convict a defendant as an accomplice, there

must be evidence that he was "ready to assist" or intended to encourage the

conduct of his co-participant; mere presence at the scene is insufficient. State v.

Lozier, 32 Wn. App. 376, 377, 647 P.2d 535 (1982) (quoting In re Wilson, 91

Wn.2d487, 491, 588 P.2d 1161 (1979)). An accomplice aids or agrees to aid

another person in the commission of a crime by associating himself with the

crime, participating in it and seeking to make it succeed. State v. J-R Distributors,

Inc., 82 Wn.2d 584, 593, 512 P.2d 1049 (1973). An accomplice need not

participate in each element of the crime or share the same mental state as the
No. 73063-1-1/5


principal; he need only intend to facilitate the crime's commission by providing

assistance through presence or action. State v. Roberts, 142 Wn.2d 471, 512, 14

P.3d 713 (2000). Mere presence and knowledge that a crime is going to be

committed is insufficient to establish accomplice liability. Wilson, 91 Wn.2d at

491.


       Ramos does not dispute that he robbed and assaulted Capucion. Nor

does he appear to dispute that at the same time he did so, a short distance

away, Ibrahim robbed and assaulted Blum. But he claims the evidence is

insufficient to establish he knew what Ibrahim was about to do and that he aided

or agreed to aid him in doing it. Ramos argues that the State presented no

evidence of any interactions between him and Ibrahim prior to the robberies or

evidence that the two men planned to simultaneously commit the crimes. He also

argues that there was no evidence that his conduct aided Ibrahim in robbing

Capucion. Ramos contends the sole evidence relied upon by the State was the

purported Spanish utterance by Ibrahim immediately prior to the robberies. ]d.

The arguments are without merit.

       The record shows that Ramos and Ibrahim were together when they came

down the stairs and encountered Blum and Capucion. Ibrahim stopped to

confront Blum and yelled something in Spanish to Ramos, after which, Ramos

came back to face Capucion. When Ibrahim yelled in Spanish again, Ramos

immediately punched Capucion in the face and attempted to take his backpack.

At the same time, Ibrahim took Blum's backpack from him. After the robberies,

Ramos and Ibrahim left the area together and were still together a block away
No. 73063-1-1/6


when apprehended by the police. Viewed in the light most favorable to the State,

this evidence is sufficient to support the jury's conclusion that Ramos was acting

in concert with Ibrahim and that he aided Ibrahim in the robbery of Blum.

       Ramos argues that Ibrahim's testimony demonstrated that they were not

together but just happened to be in the same place committing robberies at the

same time. But it was within the jury's province to credit or discredit Ibrahim's

claim that the simultaneous robberies were mere coincidence. We defer to the

jury on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence. State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81

(1985). We do not second guess the jury's determinations on appeal. State v.

Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Accordingly, we reject

Ramos's claim of insufficiency.

       In his reply brief, Ramos asks that no costs be awarded on appeal. Under

RCW 10.73.160(1), appellate courts "may require an adult offender convicted of

an offense to pay appellate costs." This court may consider the issue of appellate

costs in a criminal case during the course of appellate review when the appellant

raises the issue preemptively. State v. Sinclair       P.3d     , 2016 WL 393719

at*5-6(2016).

       Generally, issues raised in a reply brief, including requests for fees and

costs, are too late to warrant consideration. Cowiche Canyon Conservancy v.

Boslev, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). But Sinclair, the case Ramos

relies on as authority for his request, was decided after Ramos filed his opening
No. 73063-1-1/7


brief. We will consider Ramos' request and if the State chooses to seek costs, it

may respond when it submits a cost bill.1

Statement of Additional Grounds (SAG)

        Ramos submits a number of arguments in his statement of additional

grounds. A defendant may submit a pro se statement of additional grounds for

review pursuant to RAP 10.10. Such statement must "'inform the court of the

nature and occurrence of [the] alleged errors.'" State v. Meneses, 149 Wn. App.

707, 715-16, 205 P.3d 916 (2009). Ramos argues that his constitutional right to a

speedy trial was violated by his original counsel's discovery of a conflict the day

before he was scheduled to appear at an omnibus hearing a few weeks before

trial. He complains that the court allowed his attorney to withdraw and that he

was forced to accept a new attorney which caused a delay of his trial for over

nine months.


        The right to a speedy trial is guaranteed by the Sixth Amendment to the

United States Constitution and article I, section 22 of the Washington

Constitution. The state supreme court has found that the state constitutional

analysis under the state constitution is substantially the same as the analysis

under the U.S. Constitution; the state constitution does not afford greater rights to

the defendant. State v. Iniquez, 167 Wn.2d 273, 289, 213 P.2d 768 (2009).




        1We recognize that absent direction from this court, the commissioner has no discretion
but to award costs to the State if requested. RAP 14.2. In that event, Ramos may file a motion to
modify pursuant to RAP 17.7.
No. 73063-1-1/8


       The United States Supreme Court employs a balancing test that examines

the conduct of both the State and the defendant to determine whether speedy

trial rights have been denied. Barker v. Winqo, 407 U.S. 514, 530, 92 S.Ct. 2182,

33 L. Ed. 2d 101 (1972). The analysis is "'fact-specific' and 'necessarily

dependent upon the peculiar circumstances of the case.'" Iniquez. 167 Wn.2d at

292 (quoting Barker at 530-31). Among the non-exclusive factors to be

considered include the "'[Ijength of delay, the reason for the delay, the

defendant's assertion of his right, and prejudice to the defendant.'" State v.

Ollivier, 178 Wn.2d 813, 827, 312 P.3d 1 (2013) (quoting Barker at 530).

       As a threshold to the Barker inquiry, a defendant must show that the

length of the delay crossed a line from ordinary to presumptively

prejudicial. Barker, 407 U.S. at 530. Whether a delay is presumptively prejudicial

is also a fact-specific inquiry dependent on the circumstances of each

case. Iniquez, 167 Wn.2d at 291. Based on a survey of cases from other

jurisdictions, prejudice may be presumed for delays between eight months to a

year. Ig\ at 290.

       Here, less than 10 months passed between Ramos's first court

appearance and December 15, 2014, the day trial commenced. A minimal delay

given the gravity of the charges and the consequences in the event of conviction.

Ramos points out that his trial date was continued eight times, but it appears that

only one was attributable to the withdrawal of his attorney. Although the record is

unclear, it appears that the remaining continuances were related to discovery

matters regarding witness interviews and the collection and analysis of DNA


                                          8
No. 73063-1-1/9


evidence. Nor does Ramos identify any specific prejudice that he suffered as a

result of the delay. He does not allege that any evidence or testimony was lost

because of the delay in beginning his trial. We conclude there was no violation of

Ramos's right to a speedy trial.

         Next, Ramos argues that there was no probable cause for his arrest and

seeks reversal of his conviction, dismissal of the charges or a new trial. But it is

unclear if he is contesting the validity of his arrest immediately following the

incident or his later arrest following the filing of charges. If the former, we note

that because Ramos did not move to suppress any seized evidence pursuant to

CrR 3.6, the record is undeveloped as to the circumstances of the arrest,

including all the information available to the arresting officers at the time of the

arrest. Thus, we are unable to consider this claim. See State v. Fenwick, 164

Wn. App. 392, 405, 264 P.3d 284 (2011) (where defendant failed to request a

suppression hearing, the State did not have opportunity to fully develop the

record and show how the warrantless search was lawful). If the latter, Ramos

does not assert that any evidence was seized from him following that arrest. In

the absence of a claim that any unlawfully seized evidence was used against him

at trial, Ramos cannot show he suffered any prejudice as a result of the alleged

unlawful seizure. Thus, he is unable to show that he is entitled to the relief he

seeks.


         Finally, Ramos argues that he was subject to an unreasonable search and

seizure for being handcuffed to the bed while he was in the hospital. He also

argues that criminal charges should have been brought against Blum as
No. 73063-1-1/10


well. Neither of these statements articulate any basis for relief from his conviction

and sentence.2

        Affirm.




WE CONCUR:
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        2 Ramos also argues that his "mere presence with or near Mr. Ibrahim was not sufficient
to justify the officer's actions to seize and arrest" him. SAG at 3. This argument was briefed on
appeal; we do not revisit it here.




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