State Of Washington, V Nainoa Kekai Fontaine

• Court: Court of Appeals of Washington
• Decided: March 4, 2014
• Docket: 43471-7
• Status: Unpublished

Opinion

OUP 1 OF APPEALS olvlsioi ll 1i

2014 MAR - 4 AVI 9., 20

STATE OF WASE- INIGTO --

Bi Y._ 4- u TY_,

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 43471 -7 -II

Respondent,

V.

NAINOA KEKAI FONTAINE, UNPUBLISHED OPINION

JOHANSON, A. C. J. — Nainoa Kekai Fontaine appeals his jury trial conviction for first

degree robbery.' He argues that ( 1) the trial court' s " nonstandard" jury instruction, which

in omitted - sentence required - a 11- -Washington Practice: Washington Pattern Jury Instructions:

Criminal 4. 01, at 85 ( 3d ed. 2008) ( WPIC), failed to inform the jurors that he did not have the

burden to prove reasonable doubt; and ( 2) Washington' s complicity statute, RCW 9A.08. 020, is

unconstitutionally overbroad because it criminalizes speech that is protected under the First Amendment. He further argues that he can raise both of these errors for the first time on appeal

because they are manifest errors affecting constitutional rights. Fontaine does not establish that

the trial court' s failure to inform the jurors that he did not have the burden to prove reasonable

doubt was a manifest constitutional error; accordingly, we decline to address this issue. And

Fontaine does not challenge his first degree rendering criminal assistance conviction. No. 43471 -7 -II

Fontaine' s' challenge to the accomplice liability statute fails under State v. Ferguson, 164 Wn.

App. 370, 264 P. 3d 575 ( 2011), review denied, 173 Wn.2d 1035 ( 2012). Accordingly, we

affirm.

FACTS

I. BACKGROUND

On January 7, 2012, Fontaine was living with fellow heroin users Donald Francis Gault

and Gault' s fiancee, Heather Inks. After running out of heroin and starting to experience

withdrawal symptoms that morning, Fontaine. contacted Jaffeney Gohl by text and asked her to

bring some heroin to the house. Gohl agreed to sell Fontaine some heroin and brought Beau

Hymas with her to Gault' s home; Hymas had planned to purchase a television from Gault for

Stephen Santella and was carrying money Santella had given him for the television.

When Gohl and Hymas entered Gault' s house, Gault met them in the living room with 2 3 what appeared to be a gun, pointed the gun at them, and demanded the drugs and money.

Fontaine then came out of his bedroom, which was just inside the home' s front door, and

blocked the exit.- According to Gohl, she " hand[ ed] over the dope" to Gault or Fontaine and

Hymas handed his wallet to Fontaine who left $ 100 in the wallet and returned it to Hymas. 1

Report of Proceedings ( RP) at 53. According to Hymas, Fontaine told them to empty their

pockets and to give him the money. Fontaine then took all but $ 100 out of the wallet and

2 The gun was actually an " air pistol." 2 Report of Proceedings ( RP) at 137. But Gohl thought it was a real gun, and Hymas thought it was a real gun until just before leaving the house. 3 Shortly before Gohl and Hymas arrived, Gault told Inks to go to their bedroom because he did not want her to witness a crime.

FA No. 43471 -7 -11

4 returned it to Hymas. Fontaine moved away from the door, and Gohl and Hymas left. Fontaine,

Gault, and Inks split the heroin and the money.

Soon after leaving Gault' s house, Gohl and Hymas reunited with Santella at a local store

and told him about the robbery; he insisted they take him to Gault' s house so he could recover

his money.. When they arrived at Gault' s house, Gault came outside and Santella and Hymas

fought with him on the porch where Gault stabbed Santella with a knife. Fontaine came out of

the house and helped to break up the fight. Hymas and Santella left, Gohl drove them back to

the store, and Santella' s girlfriend took him to the hospital. Someone called the police, and the

police determined that the stabbing had occurred at Gault' s house.

When the police arrived at Gault' s house to investigate the stabbing, Fontaine came

outside to talk to them. He told the officers that he was just visiting, that Gault and Inks were

inside the house, and that two men had arrived at the house and had started a fight; he did not

mention the drugs or the robbery. The officers told him that he was free to go, but Fontaine did

not leave.

After unsuccessfullytrying to-contact Gault or Inks by telephone, -the officers sought a

search warrant to allow them to search for Gault and for evidence related to the stabbing. When

the officers obtained the search warrant about four hours later, they broke down the door; Gault

and Inks were inside.

While interviewing Gault and Inks about the stabbing, the officers learned about the

robbery and Fontaine' s participation in it. The officers also learned that Fontaine had been

texting Gault while the officers were waiting for the search warrant. In these texts, Fontaine told

4 Gohl did not remember who took the money and drugs.

3 No. 43471 -7 -II

Gault that the officers were seeking a search warrant, suggested that Gault flee via a bedroom

window, and told Gault what he ( Fontaine) had told the officers about the stabbing.

II. PROCEDURE

A. TRIAL TESTIMONY

The State charged Fontaine with first degree robbery and first degree rendering criminal

assistance, The case proceeded to a jury trial. The State' s witnesses testified as described

above. Fontaine was the sole defense witness.

Gault, who testified for the State, testified that he alone planned the robbery and denied

having discussed his robbery plan with Fontaine. But he also admitted that he had told Fontaine

that he had arranged for Hymas and Gohl to come over with some drugs and that he " made"

Fontaine take the money from Hymas and Gohl. Gault further testified that he expected Fontaine

to participate in the robbery because Fontaine was living in his house, that Fontaine took both the

money and the drugs from Hymas and Gohl, and that he ( Gault) shared the money and drugs with Fontaine after the robbery. The State also played a recorded statement Gault had given the

police- in which Gault told the officer that he ( Gault) had discussed the- robbery with Fontaine - - -

before it happened and that Fontaine participated in the robbery.

Fontaine denied knowing about Gault' s robbery plans and, although he admitted that he

came out of his room and was standing in his doorway at the time of the robbery, he denied

having taken the money or drugs from Gohl or Hymas despite Gault' s demanding that he do so.

5 RCW 9A.56. 200( 1)( a)( ii).

6 RCW 9A.76. 070( 1).

7 Gault pleaded guilty to first degree robbery and second degree assault with a deadly weapon enhancement.

11 No. 43471 -7 -II

Fontaine admitted to having texted Gault and attempting to help Gault escape while the officers

were waiting for the search warrant, but he asserted that he did not know at the time that he was

committing a felony.

B. JURY INSTRUCTIONS

The trial court gave the jury the following reasonable doubt/burden instruction, which

was based on WPIC 4. 01:

The defendant has entered pleas of not guilty. Those pleas put in issue

every element of each crime charged. The State is the plaintiff and has the burden of proving each element of each crime beyond a reasonable doubt. A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt. A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack If, after such consideration, you have an abiding of evidence.

belief in the truth of the charge, you are satisfied beyond a reasonable doubt.

Clerk' s Paper ( CP) at 9 - 10. This instruction was identical to WPIC 4. 01 except it omitted the

last sentence of the first paragraph, which reads, " The defendant has no burden of proving that a

reasonable doubt exists [ as to these elements]."

The trial court also gave the following accomplice liability instruction:

A person is guilty of a crime if it is committed by the conduct of another person for which he or she is legally accountable. A person is legally accountable for the conduct of another person when he or she is an accomplice of such other person in the commission of the crime. A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:

1) solicits, commands, encourages, or requests another person to commit the crime; or

2) aids or agrees to aid another person in planning or committing the crime.

The word " aid" means all assistance whether given by words, acts,

encouragement, support, or presence. A person who is present at the scene and

5 No. 43471 -7 -II

ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.

CP at 12 -13. No one objected to any of the trial court' s jury instructions.

The jury convicted Fontaine of first degree robbery and first degree rendering criminal

assistance. Fontaine appeals his first degree robbery conviction.

ANALYSIS

I. BURDEN OF PROOF INSTRUCTION

For the first time on appeal, Fontaine argues that the trial court' s burden of proof

instruction deprived him of due process because it failed to advise the jury that he had no burden

to prove that a reasonable doubt existed. He contends that by omitting the sentence from WPIC

4. 01 that stated, " The defendant has no burden of proving that a reasonable doubt exists [ as to

these elements]," the trial court violated our Supreme Court' s directive that the trial courts use

WPIC 4. 01 and that this omission was a manifest constitutional error. We hold that this error is

not manifest.

A. MANIFEST CONSTITUTIONAL ERROR STANDARD

Generally, an appellate court may refuse to entertain a claim of error not raised before the trial court. RAP 2. 5( a). An exception exists for a claim of manifest error affecting a constitutional right. Id. In order to benefit from this exception, " the appellant must ` identify a constitutional. error and show how the actually affected the [ appellant]' s rights at trial. "' State v. O' Hara, alleged error

167 Wn.2d 91, 98, 217 P. 3d 756 ( 2009) ( alteration in original) ( quoting State v. Kirkman, 159 Wn.2d 918, 926 -27, 155 P. 3d 125 ( 2007)). A constitutional error is manifest if the appellant can show actual prejudice, i.e., there must be a plausible showing by the [ appellant] that the asserted error had practical and identifiable consequences in the trial of the case. "' Id. at 99, 217 P. 3d 756 alteration in original) ( quoting Kirkman, 159 Wn.2d at 935, 155 P. 3d 125). If an error of constitutional magnitude is manifest, it may nevertheless be harmless. Id. The burden of showing an error is harmless remains with the' prosecution. Chapman v. California, 386 U. S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 ( 1967) establishing State' s burden to show harmless error beyond a reasonable doubt). No. 43471 -7 -II

State v. Gordon, 172 Wn.2d 671, 676, 260 P. 3d 884 ( 2011) ( emphasis added).

B. WPIC 4. 01

In State v. Bennett, our Supreme Court directed the trial courts to use only WPIC 4.01 " to

inform the jury of the government' s burden to prove every element of the charged crime beyond

a reasonable doubt." 161 Wn. 2d 303, 318, 165 P. 3d 1241 ( 2007). WPIC 4. 01 describes the

State' s burden as follows, enclosing in brackets those portions that are used in particular

circumstances:

The] [ Each] defendant has entered a plea of not guilty. That plea puts in issue every element of [the] [ each] crime charged. The [ State] [ City] [ County] is the plaintiff and has the burden of proving each element of [ the] [ each] crime

beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists [ as to these elements]. A defendant is presumed innocent. This presumption continues

throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt. A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. [ If, from such consideration, you have an abiding belief in

the truth of the charge, you are satisfied beyond a reasonable doubt.]

Emphasis added.) The trial court' s instruction omitted the last sentence of the first paragraph.$

The trial court' s omission of a portion of WPIC 4. 01 is clearly error. See State v. Castillo, 150

Wn. App. 466, 473, 208 P. 3d 1201 ( 2009).

C. NO MANIFEST CONSTITUTIONAL ERROR

Even though the trial court erred in omitting a portion of WPIC 4. 01, for purposes of

RAP 2. 5( a), Fontaine must also show that this error was of constitutional magnitude and that it

8 The instruction the State proposed conformed to WPIC 4. 01 and included the sentence the final instruction omitted. The record does not explain why the trial court omitted this sentence in its final instruction.

7 No. 43471 -7 -II

had practical and identifiable consequences in the trial of the case."' O' Hara, 167 Wn.2d at 99

internal quotation marks omitted) ( quoting Kirkman, 159 Wn.2d at 935). Even presuming, but

not deciding, that this error was of constitutional magnitude, Fontaine fails to show that the error

had practical and identifiable consequences.9

Despite omitting this sentence, the trial court' s reasonable doubt instruction correctly and

clearly instructed the jury that it was the State' s burden to prove each element of each. crime and

that Fontaine was presumed innocent. There was no language in any of the court' s instructions

suggesting Fontaine had any responsibility to establish reasonable doubt. And throughout his

closing argument, defense counsel repeatedly advised the jury that Fontaine did not have any burden of proof. Moreover, Fontaine does not point to, nor can we discern, anything in the trial

court' s oral instructions to the jury or the State' s argument that remotely suggests Fontaine had

the burden of presenting any evidence or rebutting the State' s evidence. 10 Given the instructions

and argument as a whole, we hold that Fontaine does not show that the trial court' s omission had

any practical or identifiable consequences on this trial. Accordingly, we decline to address this

issue further: RAP 2. 5( a). -

9 We recognize that the Castillo court reversed based on a nonstandard reasonable doubt instruction that contained an error similar to the one here. 150 Wn. App. at 473, 475. But Castillo is distinguishable because ( 1) the defendant objected to the improper instruction, and ( 2) the instruction at issue also contained several additional errors. 150 Wn. App. at 467, 470, 473- 75. Additionally, the Castillo court never analyzed whether the language omitted here was constitutionally required; it merely determined that the absence of this language did not improve the required language in WPIC 4. 01. 150 Wn. App. at 473. to In fact, defense counsel' s argument suggests that at the start of the case, the trial court advised Fontaine had burden. this the transcribed. the jury that no Unfortunately, part of record was not No. 43471 -7 -II

II. ACCOMPLICE LIABILITY

Fontaine next argues that Washington' s complicity statute, RCW 9A. 08. 020, is

unconstitutionally overbroad because it criminalizes speech that is protected under the First

Amendment. 11 He asks us to overrule our decision rejecting this identical argument. in Ferguson

and to reject the analysis in Division One of this court' s decision in State v. Coleman, 155 Wn.

App. 951, 231 P. 3d 212 ( 2010), review denied, 170 Wn.2d 1016 ( 2011). Even assuming, but not

deciding, that Fontaine can raise this argument for the first time on appeal, this argument fails.

Under RCW 9A.08. 020( 3)( a), a person is guilty as an accomplice if "[w]ith knowledge

that it will promote or facilitate the commission of the crime, he or she ... ( ii) [a] ids or agrees to

aid such other person in planning or committing it." Fontaine argues that by including assistance

given by words or encouragement, the definition of "aid" in the Washington accomplice liability 12 instruction criminalizes a vast amount of speech that the First Amendment protects. pattern jury

A statute is unconstitutionally overbroad if it prohibits a substantial amount of protected speech and conduct. City of Seattle v. Huff, 111 Wn.2d 923, 925, 767 P. 2d 572 ( 1989). A statute that regulates behavior, not pure speech, will not be overturned " unless the overbreadth is ` both real and substantial in relation to the [ statute' s] plainly legitimate sweep."' City ofSeattle v. Eze; 111 Wn.2d 22; 31, 759 P. 2d 366 ( 1988) ( quoting O' Day v. King County, 109 Wn.2d 796, 804, 749 P. 2d 142 ( 1988)). The constitutional guarantee of free speech does not allow a State to forbid the advocacy of a law violation " except where such advocacy is

11 The First Amendment provides in part that "[ c] ongress shall make no law ... abridging the freedom of speech." U. S. CONST. amend. I. The First Amendment applies to the states through the Fourteenth Amendment. Kistap County v. Mattress Outlet, 153 Wn.2d 506, 511, 104 P. 3d 1280 ( 2005).

12 The Washington Pattern Jury Instruction provided to the jury here defines " aid" as follows: The word " aid" means all assistance whether given by words, acts,

encouragement, support or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice. CP at 13; see also 11 WPIC 10. 5 1, at 217 ( 3d ed. 2008). 9 No. 43471 -7 -II

directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827, 23 L. Ed. 2d 430 ( 1969).

Ferguson, 164 Wn. App. at 375. In Coleman, Division One of this court held that the

accomplice liability statute was not unconstitutionally overbroad because it " requires the

criminal mens rea to aid or agree to aid the commission of a specific crime with knowledge the

aid will further the crime," thus showing that the speech at issue was intended to and was likely

to produce or incite imminent lawless action. 155 Wn. App. at 960 -61. We adopted this

reasoning in Ferguson. 164 Wn. App. at 376.

Fontaine acknowledges Ferguson and Coleman, but he argues that the courts decided

these cases incorrectly ( and, therefore, we should reconsider these cases) because the courts'

reliance on the mens rea requirement does not meet the federal Brandenburg standard. But in

Ferguson, we addressed the Brandenburg standard and concluded that "[ b] ecause the

accomplice liability] statute' s language forbids advocacy directed at and likely to incite or

produce imminent lawless action, it does not forbid the mere advocacy of law violation that is

protected under the holding of Brandenburg.` 164 Wn. App•- at 376. We once again reject this

constitutional challenge. See also State v. McCreven, 170 Wn. App. 444, 484 -85, 284 P. 3d 793

2012) ( rejecting the same argument and following Ferguson), review denied, 176 Wn.2d 1015

2013).

10 No. 43471 -7 -II

We affirm.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered. 4. ri J, HANSON, A.C. J. We concur:

BRGE,?;J

I

MAXA, J. ,