Appeal from Superior Court of King County. Docket No: 95-8-07636-1. Date filed: 04/09/96. Judge signing: Hon. Nicole Mac Innes.
PER CURIAM. Gene Nichols appeals an order of juvenile Disposition finding him guilty of unlawful imprisonment as an accomplice, contending that the evidence was insufficient to support the trial court's finding of accomplice liability. We hold that there was sufficient evidence in this case to persuade a factfinder that Nichols planned the incident and participated in it. Accordingly, we affirm.
Fifteen-year old Gene Nichols met Kris Roadruck in September of 1995 and became annoyed by what he perceived to be Roadruck's superior attitude. Nichols thought of duct-taping Roadruck to a tree as a prank. Nichols told his friend Neil Savage of the idea while Gary Lockrem and several others listened in. In the next few days, Nichols tried to get his friends to provide duct tape because he could not afford to purchase it.
Several days later, Roadruck was walking after school when a group of boys, including Lockrem and Savage, surrounded him. The group handcuffed Roadruck to a fence and then to a tree while one of the boys went in search of duct tape. When the duct tape was produced, the boys, including Nichols, moved Roadruck to a pole and taped him to it. Members of the group wrote on Roadruck with a felt-tipped marker and one of them vomited on Roadruck's shoes. During the incident, Nichols complained to other members of the group that they were not sticking to his plan and had handcuffed Roadruck to the wrong tree. Nichols testified that he told the group that they were going too far and that what they were doing was "messed up," but stated that the group challenged him and he felt that there was nothing he could do. Report of Proceedings 3/27/96 at 207. The group eventually left Roadruck taped to the pole, where he remained until a passerby assisted him. Roadruck went to the local high school office and reported the incident.
Nichols was charged in the Juvenile Division of the King County Superior Court with one count of unlawful imprisonment in violation of RCW 9A.40.040. After a factfinding hearing at which the court heard the testimony of the victim, Nichols' co-defendants and Nichols himself, the court found Nichols guilty as an accomplice. He was given a standard range suspended sentence.
Nichols contends that there was insufficient evidence for the trial court to have found him guilty as an accomplice. Specifically, he contends that the elements of planning and participation were missing in his case. "There is sufficient proof of an element of a crime to support a jury's verdict when, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that element beyond a reasonable doubt." State v. Bright, 129 Wash. 2d 257, 266 n.30, 916 P.2d 922 (1996) (citation omitted).
It is uncontested that the victim was unlawfully imprisoned in this case. To prove that Nichols acted as an accomplice carrying out that crime, the State had to show that Nichols, "with knowledge that it would promote or facilitate the commission of the crime," "solicited, commanded, encouraged, or requested" other persons to commit [the crime], or "aided or agreed to aid" them in planning or committing the crime. RCW 9A.08.020(3). A person is not an accomplice if he withdraws from the crime either by terminating his complicity prior to the crime's commission and warning authorities, or by making a good faith effort to prevent the commission of the crime. RCW 9A.08.020(5)(b).
Nichols first challenges the trial court's finding that he planned the incident. The court concluded, based on its findings that Nichols had the original idea to tape Roadruck to a tree, had discussed the idea with friends and had worked out details such as how to get duct tape and which tree to tape Roadruck to, that Nichols was responsible for devising the plan to attack Roadruck. Nichols contends that although he planned a hypothetical attack on Roadruck, there was no affirmative evidence to support the court's finding that Nichols planned the attack that actually took place. He argues that the only testimony relating to planning was his own testimony denying that he planned the attack and that the trial court must, therefore, have based its finding on the impermissible assumption that the opposite of Nichols' testimony was true.
Contrary to Nichols' contention, there is more in the record to support the trial court's finding of planning than simply Nichols' testimony denying he planned the attack. The court relied upon Nichols' affirmative testimony to find that he had planned the attack, stating that its Conclusion was "really based on Mr. Nichols' own statements and own testimony." Report of Proceedings 3/27/96 at 249. Before he denied planning the event, Nichols first described how his idea evolved. He stated that he began to plan the attack after he first met Roadruck and was annoyed by him: "After [Roadruck] left, I was thinking, like I said, it was my idea, I was thinking what could I do[.] . . . I thought duct taping him to the tree, that would like be a prank and funny, and I didn't figure nobody would get hurt." Report of Proceedings 3/26/97 at 191. Nichols testified that he had chosen which tree to use, that he told his idea to at least one friend, and that he had attempted, in the following days, to get others to provide the duct tape. When asked if he had any idea that someone would follow through on his idea, Nichols replied no, but went on to admit that if somebody had shown up with duct tape, the attack might have taken place because he would have said something. Nichols ultimately denied planning the attack, stating "I had no plan, or nothing like that, you know. There wasn't the idea, when I first thought of duct taping him to the tree, I hadn't thought of anything like that." Report of Proceedings 3/27/96 at 206. The trial court could easily have inferred from his testimony as a whole that Nichols' idea was more than a "casual Discussion" or "half-hearted attempt" at devising a prank, as Nichols contends. Furthermore, the court, as the factfinder, was entitled to believe Nichols' initial testimony and to disbelieve his later claim that he did not plan the attack. Moreover, the trial court's finding was also supported by testimony of a high school security guard who interviewed Nichols the day following the attack. The security guard testified that Nichols gave him a taped statement in which he admitted that the idea to tape Roadruck to a tree had been his and another boy's and had been planned over several days.
Nichols also challenges the sufficiency of the evidence to support the trial court's finding that he participated in the attack. The trial court found "that Gene Michael Nichols was the primary originator of the plan to tape Kris Roadruck to a tree and that by his presence, planning and participation, Gene Nichols is culpable." Clerk's Papers at 18 (emphasis added). The court found that although Nichols expressed concern over the fact that the incident differed from his idea, and although Nichols did not intend for the incident to occur the way it did, he did not effectively withdraw from the incident and his concerns did not exonerate him from guilt as an accomplice. Nichols contends that he was merely present at the scene, and that there was no evidence that he participated in the attack on Roadruck or that he aided or encouraged the group to carry it out.
The court's finding that Nichols participated in the attack is amply supported by Kris Roadruck's testimony. Roadruck testified that Nichols pushed him, called him names, participated in taping him to the pole, and wrote on him. Roadruck further testified that Nichols was part of the group that transferred him from the tree to the pole, re-taped Roadruck to the pole when he tried to escape, and forced another student to pour a container of urine over Roadruck's head. Nichols admits the truth of these statements by challenging the sufficiency of the evidence. State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992) ("A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom"). This testimony also supports the trial court's finding that Nichols failed to withdraw from the crime; although Nichols contended that he did not know the attack would be committed so that he could not have notified authorities, the trial court reasonably could have found from Roadruck's testimony and Nichols' own testimony that Nichols did not make a good faith effort to stop the crime once it had started. We reject Nichols' contention that the trial court must have found Roadruck's testimony to be unreliable because it found one of Nichols' co-defendants not guilty despite Roadruck's testimony implicating that co-defendant individually and as part of a group. The trial court, as the factfinder, was free to disbelieve or doubt the victim's testimony as to one co-defendant but not another, and acquittal of one co-defendant did not necessarily require acquittal of the others.
Because the trial court's findings that Nichols planned the attack and participated in it are supported by substantial evidence, we reject Nichols' contention that the trial court ...