Seattle Attorneys Blog
A Washington appeals court recently addressed the difference between rendering criminal assistance and accomplice liability in a case in which a defendant appealed her convictions for being an accomplice to second degree burglary and third degree theft.
The state alleged the defendant acted as an accomplice to a woman in a burglary and theft of a family heirloom from a barn. According to the appeals court’s opinion, security footage showed “extracts of actions” taken by the woman at the remote property. The video was divided into parts lasting between five and twenty-three seconds, with gaps in the woman’s conduct between the parts.
The Trial
The state did not present any evidence regarding how close their relationship was and the record did not show the defendant knew about any criminal history or propensity of the woman to steal.
No one lived at the property but it had a security system with motion sensitive cameras that sent notifications to the phone of one of the family members.
At about 7:30 on June 19, 2020, the defendant and the woman went to the property in the defendant’s vehicle, with the other woman driving. They parked behind the house. The security camera captured the vehicle parking.
The next part of the video showed the other woman walk to the back door, knock, and look in the window. The defendant stayed in the car.
The third part of the video showed the woman looking in the window and then walking away.
The next segment showed the defendant alone in the vehicle. The fifth part of the video showed the other woman walk to the back of the car with a green coat. The view was blocked by the car, but according to the court, it appeared she tried to open the back hatch. This section of the video ended with her walking to the driver’s side of the car saying, “How the f— do.” The court noted the video did not capture the rest of her sentence or whether the defendant responded. The last video segment showed the woman driving away.
A sheriff’s detective testified he heard the woman in the video ask the defendant about a key or how to access the back of the vehicle. The court noted that the video did not confirm his testimony. He also said the defendant could be heard on the video telling the other woman “not to do this,” but the appeals court again stated the video did not confirm the testimony.
According to the court’s opinion, the woman went into the barn and took a World War II uniform, which was the green coat seen in the video. The state did not present any evidence the defendant knew the woman intended to take anything from the property.
The family member was alerted to the activity through his phone and contacted law enforcement, but they did not find anyone on the property. He called back later that night and the deputy went back. They saw someone hurry to a truck where another person was already seated. The other woman who had been with her at the earlier, however, was seated in the truck. The officers got a search warrant and found drugs, a World War II military jacket, and security cameras in the truck. The officers arrested the woman and the man who was with her. The defendant was not there.
Law enforcement identified the defendant from the vehicle’s license plate on the video. The defendant told a deputy she had not left the car. She said she did not approve of the woman’s conduct and told her they needed to leave. The sergeant asked her what the woman took from the property and the defendant responded that the woman took a green uniform. She said she had objected to the woman taking the uniform when she brought it to the car.
The defendant was charged and convicted as an accomplice to third degree theft and second degree burglary.
The Defendant’s Appeal
The defendant appealed, arguing that there was insufficient evidence to convict her. She argued the evidence only established that she was present in the car. She argued she did not give any assistance to the woman.
The state argued the defendant knew when the woman drove her car to the property that she intended to take the uniform. The state also argued a reasonable jury could infer the knowledge from the testimony and videos. The state argued the detective’s testimony confirmed the defendant’s knowledge, particularly his statement that the defendant told the woman “not to do this.”
The state also argued that, even if the defendant did not know the woman’s intentions when she parked the car, she knew of them when the woman came back to the car with the uniform. In the fifth video segment, the woman complained about not being able to open the back hatch and the defendant did not take any steps to stop her from putting the uniform in the car. The state argued the defendant likely helped the woman open the back hatch and the jury could conclude from the video she had not told the woman to put the coat back in the barn. Then the defendant let the woman keep using her car to drive away from the property.
A person acts as an accomplice if she helps or prompts another person to commit a crime, “[w]ith knowledge that it will promote or facilitate” it. RCW 9A.08.020(3)(a). The appeals court noted that these actions occur before the crime, not after the crime has been committed.
Assisting the offender after the crime has been completed is a different crime. Under Washington law, rendering criminal assistance occurs when a person takes certain actions “with intent to prevent, hinder, or delay the apprehension or prosecution of another person who he or she knows has committed a crime. . . “ Rendering criminal assistance includes providing the offender “with . . . transportation . . . or other means of avoiding discovery or apprehension.” RCW 9A.76.050. The appeals court noted that this statute uses language referencing conduct occurring after the crime was completed.
Because the difference in the two crimes is based on whether assistance occurred during or after the fact, the appeals court had to determine at what point the other woman had completed the crimes second degree burglary and third degree theft.
The appeals court determined the woman committed the first step toward second degree burglary when she entered the barn with the intent to steal. The crime continued while she was in the barn and was completed when she left the barn. The appeals court pointed out that the state offered no evidence the defendant encouraged the crime before the woman exited the barn.
As to the third degree theft claim, the appeals court concluded the woman completed the crime when she took the uniform off the hanger and moved toward the barn’s exit.
To prove accomplice liability, the state had to show the underlying crime was committed and the defendant had knowledge she was aiding in committing it. She must have had knowledge that her conduct would promote or facilitate a particular crime. Presence alone, even with knowledge of the criminal activity is not sufficient, nor is assent to the crime alone.
The appeals court considered a number of previous cases and concluded there was insufficient evidence to support the defendant’s convictions. There was no evidence she had advance knowledge of the other woman’s intent to steal. There was not even testimony that the defendant knew where the woman wanted to drive before they arrived.
The state argued the defendant must have known that the defendant intended to go to the property and go into a building without permission because she allowed the woman to drive her car. The appeals court rejected this argument, noting other cases had been similar. The defendant had not testified as to any other reason she thought the woman went to the property, but requiring her to produce evidence of her understanding of a legal purpose for going on the property would improperly shift the burden of proof to her.
The state did not present any evidence that the defendant wanted the woman to take the uniform. The state argued the defendant must have answered the woman’s question about how to open the back of the car. The record, however, did not support that. The appeals court noted even if the jury could draw a reasonable inference the defendant helped the woman open the back of the car, it would not help the state’s case because the underlying crime had already been completed before the woman even got back to the vehicle.
Based o the detective’s testimony, the state argued the defendant told the woman taking the uniform was wrong and not to do it. The video did not confirm this statement either, however. Additionally, even if she had made the statement, it would confirm she had not encouraged the woman before the crimes were completed.
The appeals court vacated the defendant’s convictions and remanded for dismissal of the charges with prejudice.
Seek Experienced Legal Counsel
In this case, the state could not prove the elements of the charged crimes. If you are being charged with a crime, a knowledgeable Washington criminal defense attorney can advise you and fight to protect your rights. Call Blair & Kim, PLLC at (206) 622-6562 to schedule up a consultation.