State Of Washington, Respondent V. Sang Thanh Nguyen, Appellant

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
SANG THANH NGUYEN,
Appellant.
No. 70214-9-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	September 15, 2014
Leach, 	J. 	— Sang 	Nguyen 	appeals 	his 	conviction 	for 	possession 	of
cocaine with intent to deliver. 	He contends that the trial court violated his due
process right to a jury determination of each fact necessary for a conviction
because its jury instructions failed to inform the jury of the State's burden to
prove accomplice liability beyond a reasonable doubt. 	Because the trial court's
instructions sufficiently informed the jury of the State's burden and the applicable
law, we affirm.
Background
On 	April 	11, 	2012, 	Seattle 	Police 	Department 	officers 	conducted 	an
undercover "order-up" narcotics operation using a cooperating witness named
Van. 	Officer Matthew Pasquan directed Van to call Sang ("Sam") Nguyen and
ask to buy $200 worth of cocaine. 	The person who answered identified himself
as Sam and agreed to meet Van at a local market to make the exchange. 	After
Van made a second call to Sam, they agreed to meet at Van's house. 	Police

No. 70214-9-1/2
observed a car arrive at Van's house, later identifying the driver as Kimberle
Alojasin and her passenger as Nguyen. 	Alojasin and Nguyen went to the door of
Van's house and knocked. 	When no one answered, Sam called Van, who was
with officers in an unmarked car nearby. 	Van told Sam that he was on his way.
As Nguyen and Alojasin were walking back to their car, officers arrested them.
Van verified 	that 	Nguyen and 	Alojasin were the 	people with 	whom he had
arranged the purchase.
During a search incident to arrest, police found that Nguyen was carrying
two cell phones. 	One of these phones rang when officers used Van's phone to
dial the 	number Van 	had 	used to set up the drug 	purchase. 	Alojasin gave
officers two small bags of cocaine that she had hidden in her bra. 	In a recorded
statement after his arrest, Nguyen acknowledged his intent to sell drugs to Van
and Alojasin's role in the planned drug sale to Van.
The 	State 	charged 	Nguyen 	and 	Alojasin 	each 	with 	one 	count 	of
possession of cocaine, a controlled substance, with intent to deliver. 	Alojasin
pleaded guilty as charged.
At trial, after the State rested, Nguyen moved to dismiss, asserting that
insufficient evidence showed he had "dominion and control" over the drugs, as
required to show constructive possession. 	The prosecutor responded, "This is
certainly an accomplice liability case. 	There are apparently two people working
together to deal drugs." 	The prosecutor also 	noted portions 	of Nguyen's
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No. 70214-9-1/3
statement showing 	that Nguyen directed the exchange with Van. 	The 	court
denied Nguyen's motion.
Alojasin testified for the defense. 	She stated she first spoke to Van and
arranged to meet him for the purpose of selling cocaine. 	She explained that
Nguyen took a second call from Van because she was driving. 	When no one
answered their knock at Van's door, she asked Nguyen to call Van because she
had a hard time understanding Van's broken English. 	She confirmed that they
went to Van's door together but insisted that the deal was "[hers], completely"
and 	that 	Nguyen "didn't want to do it." 	But, 	on cross-examination, Alojasin
acknowledged that Nguyen used his own phone to learn the meeting location.
And the prosecutor played portions of Alojasin's recorded statement, in which
she used "we" and "us" repeatedly to describe plans for the drug deal with Van.
The court used 	pattern 	instructions to 	instruct the jury on 	reasonable
doubt1 	and accomplice liability.2 	The to-convict instruction3 described 	all the
elements necessary to find "the defendant" guilty of the crime of possession with
intent 	to 	deliver 	a 	controlled 	substance. 	A 	separate 	instruction 	defined
"possession."4 	Defense counsel made no objection to the instructions.
A jury convicted Nguyen as charged. 	Nguyen appeals.
1 11 	Washington Practice: 	Washington Pattern Jury Instructions:
Criminal 4.01, at 85 (3d ed. 2008) (WPIC).
2WPIC 10.51, at 217.
3 WPIC 50.14, at 967.
4 WPIC 50.03, at 949.

No. 70214-9-1/4
Analysis
Nguyen contends that because the accomplice liability instruction "was
completely silent as to the State's burden of proof" and "was not incorporated into
the 'to convict' instruction, it was untethered from the State's burden of proof as
set 	forth 	in 	that 	instruction." 	Therefore, 	Nguyen 	argues, 	"the 	instructions
improperly relieved the State of its burden as to accomplice liability and violated
Mr. 	Nguyen's right to a jury finding 	of every fact necessary for a conviction
beyond a reasonable doubt." 	The State disagrees. 	The State also argues that
because 	Nguyen 	affirmatively 	agreed 	at 	trial 	to 	the 	instructions 	he 	now
challenges, both the invited error doctrine and RAP 2.5(a)5 preclude appellate
review. 	Because we conclude that the court's instructions properly informed the
jury, we affirm without reaching the State's other arguments.
Nguyen 	does 	not 	challenge 	the 	reasonable 	doubt 	and 	to-convict
instructions but assigns error to instruction 13, which defined accomplice liability:
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
5 Under RAP 2.5(a), a reviewing court "may refuse to review any claim of
error which was not raised in the trial court."

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(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 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.
We 	review a 	challenged jury instruction 	de 	novo, 	examining 	it in the
context of the instructions as a whole.6 Jury instructions must inform the jury that
the State bears the burden of proving every essential element of the offense
beyond a reasonable doubt.7 	Although accomplice liability is not an element of
the charged crime, the State must still prove it beyond a reasonable doubt.8 	The
trial court does not need to include all applicable law in a single instruction.9 	But,
when read as a whole, instructions must inform the jury of the State's burden in
an 	understandable 	way 	and 	"clearly 	direct 	the 	jury 	through 	its 	task 	of
deliberations."10
Nguyen fails to show error. 	In State v. Teaford11 	and State v. Teal,12
Division Two and this court considered similar challenges to jury instructions that
included a separate accomplice liability instruction. 	Even though the accomplice
6 State v. Castillo, 150 Wn. App. 466, 469, 208 P.3d 1201 (2009) (citing
State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007)).
7 Bennett, 161 Wn.2d at 307.
8 State v. Teal, 117 Wn. App. 831, 839, 73 P.3d 402 (2003), affd, 152
Wn.2d 333, 96 P.3d 974 (2004).
9 Teal, 117Wn. App. at 838.
10 Teal, 117 Wn. App. at 839.
11 31 Wn. App. 496, 499-500, 644 P.2d 136 (1982).
12 117 Wn. App. 831, 837, 73 P.3d 402 (2003), affd, 152 Wn.2d 333, 96
P.3d 974 (2004).
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No. 70214-9-1/6
liability instruction in each case did not explicitly refer to the reasonable doubt
standard, 	both 	courts 	rejected 	the 	instructional 	challenge. 	Division 	Two
summarized its analysis:
Considered 	as 	a 	whole, 	the 	instructions 	required 	the 	jury 	to
determine 	defendant's 	liability as 	an 	accomplice 	in light of the
elements 	of 	the 	principal 	crimes. . . and 	under 	the 	overall
requirement 	that 	criminal 	liability 	must 	be 	proved 	beyond 	a
reasonable doubt. 	There was no error.'13]
This court in Teal concluded that similar instructions "were clear about what the
jury needed to decide and the legal principles they were to use."14
Here, the jury received the pattern instructions for burden of proof and
accomplice liability, as well as a to-convict instruction that included all elements
of the crime of possession with 	intent to deliver cocaine. 	Nguyen does not
dispute that the reasonable doubt and to-convict instructions accurately informed
the jury of the State's burden as to the elements of the offense. 	When read as a
whole, the instructions clearly set out what the jury needed to decide and the
applicable law. 	Contrary to Nguyen's assertion, the separate accomplice liability
instruction did not leave accomplice liability "untethered from the State's burden
of proof." 	The State had to prove accomplice liability "in light of the elements of
13 Teaford. 31 Wn. App. at 500.
14 Teal, 117 Wn. App. at 839-40. 	But see State v. Spencer, 111 Wn. App.
401, 411-12, 45 	P.3d 209 (2002) 	(concluding that trial court erred by giving
definitional 	accomplice 	liability 	instruction 	without 	also 	giving 	to-convict
instruction 	advising 	jury 	it could 	convict 	defendant 	as 	an 	accomplice). 	In
adopting Teaford's holding, this court in Teal disagreed with the "inflexible rule" of
Spencer. Teal, 117 Wn. App. at 842.
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No. 70214-9-1/7
the principal crimes . . . and under the overall requirement that criminal liability
must be proved beyond a reasonable doubt."15
Nguyen maintains that because the State "expressly relied" on accomplice
liability to 	support a 	guilty verdict, "the State cannot establish that failure to
instruct the jury of its burden of proof regarding accomplice liability was harmless
beyond a 	reasonable doubt." 	But the State did not 	rely only on 	accomplice
liability to support a guilty verdict. 	Rather, the prosecutor argued that the jury
could 	convict 	Nguyen 	as 	either 	a 	principal 	because 	of 	his 	constructive
possession 	of 	the 	cocaine 	or 	an 	accomplice 	because 	of 	Alojasin's 	actual
possession and Nguyen's assistance. 	And in closing argument, the prosecutor
used evidence of Nguyen's own conduct to argue constructive possession. 	He
pointed to Nguyen's statement, in which Nguyen acknowledged that he arranged
the purchase and named the meeting place, that he knew how much cocaine
Alojasin was carrying and how they would measure it out, and that he planned to
take the cocaine from 	Alojasin 	and 	exchange 	it for 	money from 	Van. 	The
prosecutor concluded, 	"We dealt with 	actual 	and 	we dealt with 	constructive
possession. 	And, you can choose whichever one you find, 	but they're both
present in this case."
Nguyen attempts to distinguish Teaford and Teal by arguing that he does
not contend, as those defendants did, that accomplice liability is an element of
the substantive offense or that it must appear in the to-convict instruction. 	But
15 Teaford, 31 Wn. App. at 500.
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No. 70214-9-1/8
Teaford and Teal addressed exactly the question at issue here: 	whether a
separate 	accomplice 	liability instruction 	that 	does 	not 	explicitly 	refer to 	the
reasonable doubt standard 	satisfies due 	process. 	Under these facts, 	as 	in
Teaford and Teal, we conclude that it does.
"'Jury instructions are sufficient when they allow counsel to argue their
theory of the case, are not misleading, and when read as a whole properly inform
the trier of fact of the applicable law.'"16 	The instructions here met this standard.
The trial court did nor err.
Conclusion
Because the jury instructions here properly informed jurors of the State's
burden to prove accomplice liability beyond a reasonable doubt, we affirm.
WE CONCUR:
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16 Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002)
(quoting Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927 P.2d 240 (1996T);
see also State v. Killinqsworth, 166 Wn. App. 283, 288, 269 P.3d 1064, review
denied, 174 Wn.2d 1007 (2012).
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