Appeal from Grays Harbor County Superior Court. Docket No: 11-1-00402-6. Date filed: 07/12/2012. Judge signing: Honorable F Mark Mccauley.
Jodi R. Backlund and Manek R. Mistry (of Backlund & Mistry ), for appellant.
Gerald Fuller, Prosecuting Attorney, and Jason F. Walker, Deputy, for respondent.
AUTHOR: Stephen M. Brown, J. WE CONCUR: Laurel H. Siddoway, C.J., George B. Fearing, J.
[180 Wn.App. 585] ¶ 1 Daniel Holcomb appeals his second degree assault conviction. He contends he was denied his constitutional right to jury unanimity. Under well-settled authority, we disagree. Mr. Holcomb next contends the accomplice liability statute is unconstitutional because it criminalizes constitutionally protected speech. We hold RCW 9A.08.020 is constitutional. Accordingly, we affirm.
¶ 2 Mr. Holcomb and Anthony Sumait approached Charles Burnett's home, possibly to inquire about a truck for sale. Mr. Burnett was standing outside when the two men approached him. Jennifer Mingler, Mr. Burnett's girl friend, was outside and saw both men had stick-type weapons in their hands. She watched as both men struck Mr. Burnett. Mr. Burnett fell to the ground but managed to pull out his pistol and shoot. Mr. Holcomb was hit and fell to the ground. Mr. Sumait ran off but was soon apprehended. Police arrived and observed Mr. Holcomb on the ground with a stick next to him. Mr. Holcomb's deoxyribonucleic acid (DNA) was found on the stick.
¶ 3 The State charged Mr. Holcomb with second degree assault either as a principal or accomplice. Following the State's case in chief, Mr. Holcomb asked the court " to entertain a motion to dismiss at least the felony components of the charge ... . I'm referring to both direct liability and accomplice liability here. I'm not asking for an out-and-out [180 Wn.App. 586] dismissal because I believe that a rational trier of fact, certainly with the inferences all pointed in the direction most favorable to the prosecution, could find that Mr. Holcomb came there with Mr. Sumait and acted as his accomplice while Mr. Sumait committed a fourth degree assault." Report of Proceedings
(RP) at 112. The court denied the motion. Later, Mr. Holcomb asked the court to instruct the jury they must be unanimous as to Mr. Holcomb's mode of participation in the offense, either that Mr. Holcomb acted as an accomplice to Mr. Sumait's attack or that Mr. Holcomb acted as a principal in assaulting Mr. Burnett himself. The court ruled that such an instruction would invade the province of the jury, stating, " I can't tell the jury what to believe or not to believe. They're entitled to analyze all the witnesses and come up with their own conclusion on what factually happened." RP at 120.
¶ 4 During trial, the jury was instructed that to convict Mr. Holcomb, it had to find " the defendant and/or an accomplice intentionally assaulted Charles Burnett with a deadly weapon." Clerk's Papers at 22. In closing argument, the State argued the jurors did not " have to determine whether [Mr. Holcomb acted as] an accomplice or the principal. You only ...