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State v. Simon

June 2, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
NATHANIEL B. SIMON, B.D. 01-28-80, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-8-06018-0. Date filed: 04/10/96. Judge signing: Hon. Anthony P. Wartnik.

Authored by Walter E. Webster. Concurring: H. Joseph Coleman, Ronald E. Cox.

The opinion of the court was delivered by: Webster

WEBSTER, J. -- Nathaniel Simon, a juvenile, appeals his conviction for second degree animal cruelty based on accomplice liability. Because the only evidence regarding Simon's complicity was testimony that he was present and giggled while another boy threw a pigeon into a fountain, we find insufficient evidence to establish accomplice liability.

FACTS

Simon was charged with first degree animal cruelty for his involvement in an incident at Westlake Park. Two witnesses testified for the State. James Routh testified that he saw "some young folks" chasing pigeons. He stated that one of them caught a pigeon, carried it to a fountain, and threw it in the water "quite hard." He did not identify Simon as the person he described. He testified that he later saw a man retrieve a dead pigeon from the fountain.

Frances Dixon testified that she was watching some young men, who appeared to be feeding the pigeons:

And then all of a sudden I saw two of them start laughing and they grabbed one of the birds and went over to the waterfall where the water's in this pond. And they just took the bird and threw him in the water like they were trying to kill it. On cross-examination, Dixon clarified that it was not Simon, but his companion, who actually captured and threw the pigeon.

Because there was no proof that the dead pigeon retrieved from the fountain was the same pigeon thrown by Simon's companion, the court determined that there was insufficient evidence that the pigeon suffered physical injury. Accordingly, the court concluded that there was insufficient evidence to convict him of first degree animal cruelty. Instead, the court found Simon guilty of second degree animal cruelty, a lesser degree crime.

Discussion

Simon contends that there was insufficient evidence to prove that he was the other child's accomplice. In reviewing the sufficiency of the evidence, we examine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, viewing the evidence in the light most favorable to the State. State v. Kleist, 126 Wash. 2d 432, 435, 895 P.2d 398 (1995).

Under Washington's accomplice liability statute, 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 (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; RCW 9A.08.020(3). A person is not an accomplice unless "he associates himself with the undertaking, participates in it as in something he desires to bring about, and seeks by his action to make it succeed." State v. J-R Distribs., 82 Wash. 2d 584, 593, 512 P.2d 1049 (1973). Mere presence at the scene of a crime, even with knowledge and assent to the crime, is not sufficient. State v. Luna, 71 Wash. App. 755, 759, 862 P.2d 620 (1993).

In this case, the only evidence of complicity is that Simon giggled when the other boy threw the pigeon into the fountain. Although Ms. Dixon testified that the two boys went to the waterfall and that "they . . . took the bird and threw him in the water," she clarified that only the other boy touched the bird. This is similar to In re Welfare of Wilson, 91 Wash. 2d 487, 588 P.2d 1161 (1979). In that case, a group of youths tied a rope to a tree, strung it across a highway, and pulled it tight when cars approached. The only testimony that Wilson encouraged the crime was his presence at the scene and knowledge of the illegal activity. This court affirmed his conviction for reckless endangerment as an accomplice, holding that his continued presence during the ongoing crime was sufficient to support a finding that he encouraged the crime by giving courage to the other youths. In re Welfare of Wilson, 19 Wash. App. 104, 573 P.2d 1363 (1978). The Supreme Court reversed:

Even though a bystander's presence alone may, in fact, encourage the principal actor in his criminal or delinquent conduct, that does not in itself make the bystander a participant in the guilt. It is not the circumstance of "encouragement" in itself that is determinative, rather it is encouragement plus the intent of the bystander to encourage that constitutes abetting. We hold that something more than presence alone plus knowledge of ongoing activity must be shown to establish the intent requisite to finding Wilson to be an accomplice in this incident. Wilson, 91 Wash. 2d at 492. Laughing while another person injures an animal is not commendable behavior. But the giggling does not ...


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