State Of Washington, Resp. v. Brandon Pamon, App.

Opinion

niur:: io .-!-•

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 72803-2-1 Respondent, DIVISION ONE v.

BRANDON CHRISTOPHER PAMON, UNPUBLISHED OPINION

Appellant. FILED: April 18,2016

Leach, J. — Brandon Pamon appeals from his conviction for attempted

robbery in the first degree. He contends that the State violated his constitutional right

to jury unanimity by failing to prove both alternative means of attempted robbery in

the first degree. But Pamon fails to persuade the court that attempted robbery in the

first degree is an alternative means offense. Nor has Pamon shown that the trial

court abused its discretion in prohibiting him from consuming or possessing

marijuana as a condition of community custody. Pamon's statement of additional

grounds for review raises no meritorious issues. We affirm.

FACTS

Geoffrey Vincent, a student at Seattle University, attended a band concert at a

bar near the campus. Vincent left the bar at about 1:00 a.m. and started walking

back to his apartment. As he approached 10th and Pike, Vincent walked past two

young males and one female who were standing on the corner. No. 72803-2-1/2

A short time after entering the Seattle University campus near 10th and

Madison, Vincent heard "some quick steps coming up behind me, like someone

running." Before Vincent could react, someone grabbed him from behind and started

hitting him in the head and chest.

Vincent eventually fell to the ground, and the assault continued. Vincent

noticed a second person was also hitting him. Someone asked Vincent what he had

on him and started rifling through his pockets.

Vincent saw one of the assailants, later identified as K.M., a juvenile, holding a

knife. Vincent discreetly reached into his pocket and pulled out a pocketknife. After

opening the knife, Vincent jabbed K.M. in the thigh. At this point, K.M. and the other male, later identified as Brandon Pamon, backed away. Vincent recognized the two

males as the ones he passed earlier on the corner; the same young female stood

about 30 feet away.

After Vincent struggled to his feet, K.M. walked up and stabbed him in the

chest. K.M., Pamon, and the young woman then ran away.

Vincent sought help at a nearby campus emergency call box. Campus personnel responded and called for paramedics. The paramedics took Vincent to Harborview Medical Center, where surgeons repaired a collapsed lung and

punctured artery and right atrium.

-2- No. 72803-2-1/3

The State charged Pamon with assault in the first degree and attempted

robbery in the first degree and asserted a deadly weapon enhancement for each

count. The court also instructed the jury on accomplice liability.

At trial, C.H., a juvenile, testified that she had been with K.M. and Pamon

before the assault. She overheard a conversation between K.M. and Pamon

indicating that they might be planning a robbery. At some point, C.H. saw K.M. and

Pamon running after a man near the Seattle University campus. The man then

ended up on the ground, with K.M. and Pamon punching him. After the man on the

ground got up and pulled a knife, C.H. saw K.M. stab him. Pamon, K.M., and C.H.

then ran off.

The jury found Pamon guilty as charged of attempted robbery in the first

degree. The jury acquitted Pamon of assault in the first degree and found that he

was not armed with a deadly weapon during the attempted robbery.

The trial court imposed a high-end standard range sentence of 76.5 months of

confinement and 18.0 months of community custody. As a condition of community

custody, the court prohibited Pamon from possessing or consuming marijuana. No. 72803-2-1/4

ANALYSIS

Alternative Means

Pamon contends that the State violated his right to jury unanimity by failing to

present sufficient evidence of both alternative means of committing attempted

robbery in the first degree. Pamon provides no relevant legal argument to support

this claim.

Article I, section 21 of the Washington Constitution guarantees a criminal

defendant the right to a unanimous jury verdict. "This right may also include the right

to a unanimous jury determination as to the means by which the defendant

committed the crime when the defendant is charged with (and the jury is instructed

on) an alternative means crime."1 Generally, an alternative means crime "is one by

which the criminal conduct may be proved in a variety of ways."2 But "a defendant

may not simply point to an instruction or statute that is phrased in the disjunctive in

order to trigger a substantial evidence review of [his] conviction."3

"When a crime can be committed by alternative means, express jury unanimity

as to the means is not required where each of the means is supported by substantial

1 State v. Owens. 180 Wn.2d 90, 95, 323 P.3d 1030 (2014). 2 Owens. 180Wn.2dat96. 3 State v. Smith, 159 Wn.2d 778, 783, 154 P.3d 873 (2007). No. 72803-2-1/5

evidence."4 In this circumstance, "we infer that the jury rested its decision on a

unanimous finding as to the means."5 If there is insufficient evidence to support any

of the alternative means, "a particularized expression of jury unanimity is required."6

Pamon's arguments rely primarily on the assertion that "[fjirst degree robbery

is an alternative means crime." But the State charged Pamon with attempted first

degree robbery.

"An attempt crime contains two elements: intent to commit a specific crime

and taking a substantial step toward the commission of that crime."7 Thus, the trial

court's "to convict" instruction correctly required the State to prove (1) that Pamon

"did an act that was a substantial step toward the commission of Robbery in the First

Degree" and (2) that "the act was done with the intent to commit Robbery in the First

Degree." (Emphasis added.)

Pamon notes that the trial court also instructed the jury: "A person commits

the crime of robbery in the first degree when in the commission of a robbery or in

immediate flight therefrom he or she is armed with a deadly weapon or inflicts bodily

injury." He argues that because the evidence was insufficient to establish one of the

4 State v. Gonzales, 133 Wn. App. 236, 243, 148 P.3d 1046 (2006). 5 State v. Ortega-Martinez, 124 Wn.2d 702, 708, 881 P.2d 231 (1994). 6 Owens, 180Wn.2dat95. 7 State v. DeRvke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003); see also RCW 9A.28.020(1).

-5- No. 72803-2-1/6

alternative means—that Vincent "sustained bodily injury during the commission of the

attempted robbery"—the State violated his right to jury unanimity.

In order to establish attempted robbery in the first degree, the State was

required to prove that Pamon took a substantial step with the intent to commit

robbery in the first degree. The relevant intent for an attempt offense "is the intent to

accomplish the criminal result of the base crime."8 The definition of the base crime

provides the requisite criminal result.9 "A substantial step is an act that is 'strongly

corroborative' of the actor's criminal purpose."10 Given the elements of an attempt

offense, Pamon fails to demonstrate the relevance of the State's alleged failure to

prove beyond a reasonable doubt that Vincent sustained bodily injury during the

attempted robbery.

In summary, Pamon has provided no authority or legal analysis addressing the

application of alternative means to the elements of attempt crimes in general. Nor

has he addressed the relevance of the alternative means of committing robbery in the

first degree to the elements of the charged offense of attempted robbery in the first

8 State v. Johnson, 173 Wn.2d 895, 899, 270 P.3d 591 (2012). 9 DeRvke, 149 Wn.2d at 913. 10 Johnson, 173 Wn.2d at 899 (quoting State v. Luther, 157 Wn.2d 63, 78, 134 P.3d 205 (2006)). No. 72803-2-1/7

degree. We therefore reject Pamon's claim that the trial court denied his right to jury

unanimity.11

Community Custody Condition

Pamon challenges a community custody condition that prohibits him from

possessing or consuming marijuana. He claims no evidence established that his use

of marijuana was crime related or that it contributed to the offense. When imposing

the condition, the trial court commented that "there was testimony that that was part

of the issue, just the selfish greed for money to get marijuana."

RCW 9.94A.703 authorizes the sentencing court to impose certain conditions

of community custody, including ordering the defendant to comply "with any crime-

related prohibitions."12 A crime-related prohibition means "an order of a court

prohibiting conduct that directly relates to the circumstances of the crime for which

the offender has been convicted."13 We review a trial court's imposition of crime-

related prohibitions for an abuse of discretion.14

11 See RAP 10.3(a)(4), (6); Norcon Builders. LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254 P.3d 835 (2011) (declining to consider an inadequately briefed argument). 12 RCW 9.94A.703(3)(f). 13RCW9.94A.030(10). 14 State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008).

-7- No. 72803-2-1/8

C.H. testified that when she met up with Pamon and K.M. before the assault,

the three of them "decided to smoke . . . [wjeed, marijuana." K.M. and Pamon later

said "something about, 'We're going to go do something.'" C.H. acknowledged that

the two were possibly talking about a robbery. K.M. also "said something about him

needing money to get weed."

Although C.H.'s testimony was relatively vague and did not attribute specific

words to Pamon, she indicated the conversations she overheard were between K.M.

and Pamon. Viewed together, Pamon's smoking of marijuana and his apparent

participation in conversations about committing a possible robbery and the need to

get money for marijuana, followed by his participation in an attempted robbery,

support a reasonable inference that possession or consumption of marijuana had a

direct relation to the charged offense. Pamon fails to demonstrate that the trial court

abused its discretion in imposing this community custody condition.

Statement of Additional Grounds for Review

In his statement of additional grounds for review, Pamon contends that

insufficient evidence supports his conviction because the jury found him not guilty of

assault in the first degree and not armed with a deadly weapon. He argues that the

evidence was "therefore minus two elements of the charge of robbery in the first

degree and [there was] no jury instruction of lesser charges." No. 72803-2-1/9

But as already indicated, the State charged Pamon with attempted robbery in

the first degree, not first degree robbery. The court also instructed the jury on

accomplice liability. Consequently, the jury's verdicts on assault in the first degree

and the deadly weapon enhancement did not undermine the sufficiency of the

evidence to support Pamon's conviction.

Pamon also claims that the trial court's reasonable doubt instruction, which

was based on Washington Pattern Jury Instruction: Criminal 4.01,15 was

constitutionally deficient. Pamon concedes, however, that our Supreme Court has

repeatedly directed trial courts to use WPIC 4.01 to instruct juries on the burden of

proof and the definition of reasonable doubt.16 In State v. Kalebaugh. the Supreme

Court recently reaffirmed that WPIC 4.01 was "the correct legal instruction on

reasonable doubt."17 Pamon's challenge to WPIC 4.01 must therefore be directed to

our Supreme Court.

15 11 Washington practice: Washington Pattern Jury Instructions: Criminal 4.01, at 85 (3d ed. 2008) (WPIC). 16 See State v. Bennett. 161 Wn.2d 303, 318, 165 P.3d 1241 (2007); see also State v. Castillo. 150 Wn. App. 466, 469, 208 P.3d 1201 (2009). 17 183 Wn.2d 578, 586, 355 P.3d 253 (2015). No. 72803-2-1/10

Affirmed.

WE CONCUR:

-^ f-

-10-