                                                                              FILED 


                                                                       January 9, 2014 


                                                                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. 29048-4-111
                     Respondent,             )
                                             )
      v.                                     )
                                             )
TANSYFAY-ARWENMATHIS,                        )         UNPUBLISHED OPINION
                                             )
                     Appellant.              )

       SIDDOWAY, A.C.J. -    Tansy Mathis was convicted of aggravated murder and

other crimes. She assigns error on appeal to two jury instructions: an instruction on the

factors relied on by the State for its charge of aggravated murder and an instruction on

how the jury should complete the deadly weapon enhancement special verdict form.

      The court's instruction on one of the factors alleged to support conviction for

aggravated murder was flawed, for the reason argued by Mathis. But the error was

harmless given the jury's finding of a second factor supporting conviction, as to which

the jury was correctly instructed. Mathis's challenge to the instruction on answering the

deadly weapon special verdict form fails in light of the Washington Supreme Court's
I

J.




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   No. 29048-4-III 

     State v. Mathis 


I
,    intervening decision in State v. Guzman Nunez, 174 Wn.2d 707,285 P.3d 21 (2012). We

     affirm.

                            FACTS AND PROCEDURAL BACKGROUND

               Michelle Kitterman was found murdered on March 1,2009 on the side of a road,

     about 14 miles from her home in Tonasket. At the time she was killed, she was 11 weeks

     pregnant with the child of Daniel Pavek. Investigation would lead the Okanogan County

     prosecuting attorney to charge four individuals with what the State concluded was a
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,    murder for hire: it charged Lacey Hirst, Pavek's wife, who knew her husband was

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I
     having an affair with Kitterman and wanted her killed; Tansy Mathis, a drug dealer,
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     whom Hirst knew and enlisted to arrange for the murder; David Richards, also a drug

     dealer and a customer of Mathis, whom Mathis enlisted; and Brent Phillips, whom

     Richards enlisted. Phillips eventually pleaded guilty to first degree premeditated murder

     and other crimes and testified against Mathis at her trial.

               Phillips testified that at the time of the murder, he was living at Richards's home

     in Spokane. Richards was providing him with housing and methamphetamine in

     exchange for Phillips serving as Richards's "tax man." Report of Proceedings (RP) at

     793. He testified that as Richards's "tax man," he would "[use] force or scare tactics to

     get the money that's owed to him." Id.

               Phillips was introduced to the crime being planned by Mathis the day before

     Kitterman's murder, when Richards told him that he needed someone to travel with him

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No. 29048-4-111
State v. Mathis


and Mathis "to go pick up dope, and that there was a snitch that might need to be taxed,"

meaning a police informant who needed to be intimidated. RP at 797. When the time

came to leave for Okanogan County, though, Richards was asleep, so only Phillips

accompanied Mathis, who was driving a rental car Lacey Hirst had made available for the

crime. Before the two left Spokane, Phillips was told by Mathis that they would receive

$1,000 to beat up the snitch and an additional $500 if anyone else got in the way.
        .                                               .


       Mathis and Phillips drove to Kitterman's home. Before entering, Mathis told

Phillips that there could be more money involved-$10,000 plus $5,000 for anybody

additional in the way-if things did not go right and someone had to be killed. After the

two were invited in by Kitterman, Phillips offered her methamphetamine, the three

smoked it together, and Mathis then suggested that they all go to a nearby casino.

Kitterman eventually agreed and they all left in the rental car.

       As the three neared the casino, Mathis pulled over because Kitterman wanted to

smoke more methamphetamine and Mathis said she could not do it in the car. Once

Kitterman was out of the car, Mathis told Phillips that Kitterman was the snitch. Phillips

took this as his cue to assault Kitterman. Mathis soon joined him in the assault. She had

retrieved an ice pick-like weapon from the car; it was a three-sided file that belonged to

Richards. Phillips later testified that it was Richards's favorite weapon. As Phillips

choked Kitterman, who was on the ground, Mathis began stabbing her in the stomach.

When Mathis told Phillips to "finish it," he stabbed Kitterman several times in the back.

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No. 29048-4-111
State v. Mathis


RP at 826. Phillips threw Kitterman to the side of the road and he and Mathis left. After

abandoning Kitterman, Mathis and Phillips cleaned the rental car.

       Before returning to Spokane, Mathis handed Phillips an envelope containing $500

to give to Richards. Phillips told her Richards would prefer methamphetamine, so Mathis

took the money back and gave Phillips drugs to give to Richards.

      Upon Phillips's return to Spokane, Richards asked about payment from Mathis

and indicated awareness that something "had happened." Phillips testified:

      A      He kept asking me what happened. And 1 wouldn't tell him what
             happened. And then 1 ended-he asked me again, he's, "Oh, come
             on, what happened." And 1 told him, 1 said, "Well, the shit
             happened, man; know what 1 mean?"
                    And he said, "Well, when you get ready to tell me, you know,
             I'm here to listen," That's what he said.
      Q      At some point did he ask you for payment?
      A      He asked me if 1 had anything for him, from Tansy. And 1 said,-I
             said "Yeah," and I handed him the dope. And he looked at it and he
             said, "This is all?" And I said, "Yeah."

RP at 842. Phillips testified that Richards was upset upon seeing the amount of

methamphetamine provided and, after that, was "trying to get a hold of Ms. Mathis."

RP at 843.

      Mathis was eventually charged as principal or accomplice with aggravated murder

or alternatively felony murder, and with first degree manslaughter (unborn quick child),

first degree kidnapping, and tampering with physical evidence. She was charged with

deadly weapon enhancements on all but the tampering count.


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No. 29048-4-111
State v. Mathis


       Mathis and Richards were tried together and each testified. Mathis claimed that

she made the trip to Tonasket on the night of Kitterman's murder only to drop off drugs

and talk to Kitterman about leaving Pavek. She said Richards was supposed to have

accompanied her to make sure she would be safe but when it was time to leave, only

Phillips showed up. Mathis claimed that it was Phillips who threw Kitterman to the

ground, punched her, stabbed her with the file, and left her on the side of the road.

       The jury rejected Mathis's defense and found her guilty as charged on all counts.

It answered "yes" to all of the court's special verdict questions addressing aggravating

factors and deadly weapon enhancements. l The parties' appeals were originally

consolidated but were later severed.

                                        ANALYSIS

       Mathis raises two assignments of error on appeal: first, that the jury was

incorrectly instructed that it must unanimously answer "no" to the special verdict form

and, second, that the instruction to the jury on the factors relied upon by the State for the

aggravated murder charge improperly permitted the jury to find one factor based on an

accomplice's conduct.

       The first assignment of error is readily addressed. Mathis raised it before the

Washington Supreme Court decided Guzman Nunez, 174 Wn.2d 707, in which it


       The jury found Richards guilty of second degree felony murder and first degree
       I
manslaughter.

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No. 29048-4-111
State v. Mathis


overruled two prior decisions 2 and found that the pattemjury instruction used in Mathis's

case correctly stated the law. Mathis concedes that her first assignment of error fails in

light of Guzman Nunez.

       The second assignment of error correctly identifies a problem with the instruction

on the factors relied upon by the State for its charge of aggravated murder but, for

reasons explained below, the error was harmless. 3

       "Aggravated first degree murder is not a crime in and of itself," State v. Roberts,

142 Wn.2d 471, 501, 14 P.3d 713 (2000); instead, "[a] person is guilty of aggravated first

degree murder ... ifhe or she commits first degree murder as defined by RCW

9A.32.030(1)(a)" and one or more of 14 statutory aggravating circumstances exists.

RCW 10.95.020. In Mathis's case, the State relied on either of two statutory aggravating

factors: that "[t]he person committed the murder pursuant to an agreement that he or she

would receive money or any other thing of value for committing the murder" as provided

by RCW 10.95.020(4), or that "[t]he murder was committed in the course of, in

furtherance of, or in immediate flight" from one of five crimes as provided by RCW



       2 State
            v. Bashaw, 169 Wn.2d 133,234 P.3d 195 (2010) and State v. Goldberg,
149 Wn.2d 888, 72 P.3d 1083 (2003).
       3 Mathis raises this objection to the special verdict instruction for the first time on
appeal. State v. Roberts, 142 Wn.2d 471, 500-01, 14 P.3d 713 (2000) concluded that a
similar special verdict instruction relating to accomplice liability was a manifest error
affecting a constitutional right that could be properly raised for the first time on appeal.
The issue is properly before us.

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No. 29048-4-111
State v. Mathis


10.95.020(11). In Mathis's case, the State alleged that the associated crime was

kidnapping in the first degree. See RCW 10.95.020(11)(d).

       Mathis argues that the court erred in giving instruction 10 because it allowed the

jury to find the factor based on Richards's conduct rather than her own:

               If you find the defendant, Tansy Mathis, guilty of premeditated
       murder in the first degree as defined in Instruction 5, you must then
       determine whether any of the following aggravating circumstance[s]
       exists[s]:
               1. 	 The defendant, Tansy Mathis or one with whom she was an
                    accomplice, committed the murder pursuant to an agreement that
                    he or she would receive money or any other thing of value for
                    committing the murder; or
               2. 	 The murder was committed in the course of, in furtherance of, or
                    in immediate flight from kidnapping in the first degree.

               For any of the aggravating circumstance[s] to apply, the defendant,
       Tansy Mathis, must have been a major participant in acts causing the death
       of Michelle Kitterman and the aggravating factors must specifically apply
       to the defendant's actions.

Clerk's Papers (CP) at 29 (emphasis added) (most alterations in original).

       "[A] defendant's culpability for an aggravating factor cannot be premised solely

upon accomplice liability for the underlying substantive crime absent explicit evidence of

the Legislature's intent to create strict liability. Instead, any such sentence enhancement

must depend on the defendant's own misconduct." In re Pers. Restraint ofHowerton,

109 Wn. App. 494, 501, 36 P.3d 565 (2001) (citing State v. McKim, 98 Wn.2d 111, 117,

653 P .2d 1040 (1982)). In Howerton, as here, the defendant argued that a special verdict

form was fatally flawed because it allowed the jury to find him guilty of aggravated


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No. 29048-4-111
State v. Mathis


murder based solely on another person's conduct. Consistent with McKim, the Howerton

court recognized legislative intent as controlling and looked to the language of RCW

10.95.020 to determine whether it reflected a legislative intent to create strict liability for

the factors at issue.

       One factor charged in Howerton-that "[t]he person committed the murder to

conceal the commission of a crime or to protect or conceal the identity of any person

committing a crime"-required that' "the person" have a particular mens rea. RCW

10.95.020(9). The Howerton court construed that language to require the defendant

himself or herself to have had the culpable motivation. Accordingly, it found error where

the jury was instructed that it could find the factor based on an accomplice's mens rea.

The same is true here of the charged factor that "the person committed the murder

pursuant to an agreement." It is Mathis, the defendant, who must have had the requisite

agreement. While the jury was presented with evidence that she had such an agreement,

it was also presented with evidence of such an agreement on the part of Richards.

Because the court's instruction allowed the jury to find the factor based on Richards's

agreement, it was erroneous.

       The State argues that the final paragraph of the instruction, requiring that Mathis

be "a major participant" and that the aggravating factor "specifically apply" to her

actions, saves the instruction from error. We disagree. The "major participant" language

is required to address Eighth Amendment issues in death penalty cases and may also have

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No. 29048-4-III
State v. Mathis


                     4
been required here. But the "major participant" language only contradicted the

erroneous direction earlier in the instruction; it did not cure it. It is well settled it is a

prejudicial error to give irreconcilable instructions upon a material issue in the case.

State v. Studd, 87 Wn. App. 385, 389,942 P.2d 985 (1997) (citing Hall v. Corp. of

Catholic Archbishop, 80 Wn.2d 797,804,498 P.2d 844 (1972)), rev 'd on other grounds,

137 Wn.2d 533, 973 P.2d 1049 (1999). Where instructions are inconsistent or

contradictory on a material point, their use is prejudicial because it is impossible to know

what effect they had on the verdict. ld. (citing Hall, 80 Wn.2d at 804). Regardless of the

last paragraph, the language highlighted in the instruction above explicitly authorized the

jury to find the factor based on an agreement by Mathis "or one with whom she was an

accomplice."

       The State has a better response when it argues that any error in instructing on the

first factor charged as supporting aggravated first degree murder was harmless because

the jury answered "yes" on the special verdict form addressing the second factor charged.

Here again, Howerton presented the same situation. A second aggravating factor charged

in Howerton was the second factor charged here: that "the murder was committed in the

course of, in furtherance of, or in immediate flight" from one of the crimes identified by



       4The issue has not yet been decided. See State v. Thomas, 166 Wn.2d 380, 388
n.5, 208 P.3d 1107 (2009); State v. Whitaker, 133 Wn. App. 199,234-35, 135 P.3d 923
(2006).

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No. 29048·4-III
State v. Mathis


the statute. In the case of this second factor, the court in Howerton recognized that the

legislature had focused "on a specific act," that being the associated crime. 109 Wn.

App. at 502. It reasoned that a specific act-based factor would be properly premised on

Howerton's own misconduct and therefore properly applied to him as long as there was

evidence sufficient to implicate Howerton in the associated crime, which, in Howerton,

was a robbery.

       Applying Howerton's analysis, the key inquiry here in the case of the second

factor relied upon by the State is whether there was evidence sufficient to implicate

Mathis in the associated crime of kidnapping. There was. And Mathis concedes as

much; she does not assign error to the court's instruction or the jury's special verdict on

the second factor.

       The jury answered "yes" to the special verdict form inquiring whether the State

had proved beyond a reasonable doubt that "[t]he murder was committed in the course of,

in furtherance of, or in immediate flight from kidnapping in the first degree." CP at 76.

That answer is sufficient to sustain the trial court's judgment and sentence for aggravated

murder.




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No. 29048-4-111
State v. Mathis


       Affinned.

       A majority of the panel has detennined that 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.



                                              Siddoway, A.C.J.

WE CONCUR:




Brown, J.



Kulik, J.




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