### IN THE COURT OF APPEALS OF THE STATE OF W DIVISION II STATE OF WASHINGTON, 

## I No. 428( Respondent,
V. DERIK MAPLES, ED 

### HvIsMf,, J IT ZGl3 Or* C 

### 10 

### AN 9: 53

UNPUBLISHED OPINION
PENOYAR, J. — Derik Maples appeals his convictions,for second degree felony murder 

### and first degree assault arising from a controlled substance deliverywhere his accomplice fired
shots into the buyers' car. 

### He argues that (1) the trial court erred by instructing the jury that a buyer is not an accomplice to the crime of delivery of a controlled substance, ( 2) there is insufficient evidence to support his murder conviction, and (3) there is insufficient evidence to support his assault conviction. He also includes a statement of additional grounds ( SAG), 

## arguing thathis SixthAmendment rightswere violated becausethe assaultvictim did nottestify
at trial. 

### Washington courts have determined that a buyer.is not an accomplice to delivery ofa
controlled substance and the trial court' s instructions appropriately reflected that. Further, there 

### is sufficient evidence that the shooting occurred during the course ofthe delivery, the shooter intended to assault the victim, and Maples was an accomplice to the assault. Finally, Maples' s Sixth Amendment rights were not violated because the State did not attempt to introduce any of the witness' s statements and the witness' s failure to appear was not the result of State action. We affirm.42865 - 2 -II FACTS On December 1, 2009, Aaron Scott called Maples and asked if he would sell cocaine to

some of Scott' s friends, Clement Adams and Tyshaun Foreman. Maples agreed and obtained 300 of cocaine from Alex Velasquez. While at Velasquez' s, Maples mentioned that Scott and his friends were acting " fanny" and had called Maples from a restricted number. 5 Report of Proceedings ( RP) at 780. Maples asked his friend, Justin Tyler, to come with him to the sale. Tyler agreed and asked Velasquez for a gun. Maples said that he thought the gun was for protection" and " to make sure that nothing went wrong." 6A RP at 840. Maples agreed to meet Scott' s friends at the S & S Mart in Vancouver. When Maples and 

### Tyler arrived, Maples got into the back seat ofawaiting carwithAdams and Foreman. He gave the passenger, Foreman, a baggie ofcocaine and Foreman attempted to give him counterfeit cash in exchange. Maples protested and attempted to retrieve the cocaine. Adams acted like he was going to hit Maples, so Maples jumped out of the car and said, " They robbed me." 6A RP at 844. 

### Tyler then fired five shots at the car, one ofwhich hit Adams in the head, killing him. Maples and Tyler fled.

The State charged Maples with ( 1) first degree murder or, in the alternative, second 

### degree felony murder and (2) first degree attempted murder or, in the alternative, first degree
assault. Before trial, the State made a motion in limine to prohibit Maples from arguing that Adams was a participant in the underlying felony, delivery of a controlled substance. It argued 

### thatadrug buyeris not an accompliceunderWashington case law. Thetrial court did notmake

a clear ruling at that point, instead telling Maples, " I' m nottrying to eliminate your abilityto put

242865 - 2 -II

your theory before the ... jury.... 

### But, I thinkyou need to be in conformity with whatthe State is saying about the use ofthe term ` participant. "' 2 RP at 231. The trial court admitted that this doesn' t give you a whole lot of direction." 2 RP at 231 -32. The State then suggested that the issue could be clarified when the parties discussedjury instructions, and the trial court agreed.

The trial court later instructed thejury that "[ a] ` participant' in a crime is a person who is involved in committing that crime, either as a principal or as an accomplice" and that "[ a]. purchaser of controlled substances is not an accomplice in the crime of delivery ofa controlled
substance." CP at 224 - 25. Maples did not object to either instruction at trial. 

## Thejury found Maples guilty ofsecond degree murder and first degree assault and it returned a special verdict finding that he or an accomplice was armed with afirearm atthe time
of both crimes. The trial court sentenced him to a total of456 months of confinement. Maples appeals. ANALYSIS I. PARTICIPANT 

### Maples first argues that the trial court violated his due process rights when it refused to 

### allow him to arguethatAdams was aparticipant inthe felonyunderlying the murder charge. The distinction is critical because, as this case was charged, the State was required to prove that the 

### victim was not also a participant in the underlying crime, delivery of a controlled substance. Because Washington case law holds that a controlled substances buyer is not an accomplice to 

### the crime ofdelivery ofa controlled substance, we affirm the trial court.

342865 - 2 -II 

### First,the trial court did not actually rule onthe State's motion in limine, and Maples does not make a substantive argument in his brief about the trial court's ruling, instead focusing on jury instruction 20 —"A purchaser of controlled substances is not an accomplice in the crime of delivery of a controlled substance." Appellant' s Br. at 15. But Maples did not object to the 

### challengedjury instruction attrial. Generally, a defendant cannot raise an error for the first time on appeal. RAP 2.5( a); State v. McFarland, 127 Wn.2d 322, 332 - 33, 899 P.2d 1251 ( 1995). The purpose behind this
rule is to encourage the "` efficient use ofjudicial resources "' 

### by ensuring thatthe trial court has the opportunity to correct any errors, thereby avoiding unnecessary appeals. State v. Robinson, 171 Wn.2d 292, 304 - 05, 253 P. 3d 84 ( 2011) ( 

### quoting State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 ( 1988)). 

### But, a defendant may raise particular types of errors for the first time on appeal, including " manifest error[ s] affecting a constitutional right." RAP 2. 5( a)(3). Here, 

## Maples fails to arguethat any ofthe exceptions listed in RAP 2.5(a) apply. Accordingly,he has
not preserved this argument for appeal. 

### Even assuming Maples preserved this alleged error, his argument still fails because the trial court did noterr by giving instruction 20. 

### A person is guilty ofsecond degree murderwhen he commits or attempts to commit any 

## felony and, in the course ofand in furtherance ofsuch crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants. RCW 9A.32.050( 1)( b). 

### Here,the underlying felonywas deliveryofacontrolled substance. Generally,
a " participant" is " another person involved in the crime — i.e., another principal or accomplice." State v. 

### Toomey, 38 Wn. App. 831, 840, 690 P.2d 1175 ( 1984). But Washington case law has determined that a controlled substances buyer — such as Adams — is not an accomplice to delivery. State v. Morris, 77 Wn. App. 948, 954 - 55, 896 P.2d 81 ( 1995) ( interpreting the 042865 - 2 -II 

### delivery ofa controlled substance statute and holding that that a buyer cannot be charged with delivery of a controlled substance, even as an accomplice); 

### State v. Warnock, 7 Wn. App. 621, 623, 501 P.2d 625 ( 1972) ( 

### reasoning that, since a buyer cannot be charged with delivery, he cannot, therefore, be an accomplice to delivery); 

### State v. Catterall, 5 Wn. App. 373, 376, 486 P.2d 1167 ( 1971) ( 

### noting thatthe legislature intended to treat buyers and sellers differently and holding that a buyer is not an accomplice to delivery of a controlled substance).' Relying on this 

### case law, the trial court instructed the jury that a controlled substances buyer is not an accomplice to the crime ofdelivery ofacontrolled substance. Using the courts' logic in Catterall and Warnock, it follows that Adams was not a participant," 

### i.e., aprincipal or accomplice, in the delivery ofa controlled substance. We noted in Warnock that ` [ 

### t]he test in this state as to whether a witness is an accomplice or not is
whether he could be indicted for the same crime for which the defendant is being tried. "' 7 Wn. App. at 623 ( quoting State v. Emmanuel, 42 Wn.2d 799, 821, 259 P.2d 845 ( 1953)). In Catterall

we stated, " 

### The abettor, within the meaning ofthe statute, must stand in the same relation to the
crime as the criminal— approach it from the same direction, touch it at the same point." 5 Wn. App. at 378 ( quoting State v. Teahan, 50 Conn. 92, 101 ( 1882)). Adams could not have been indicted for delivery of a controlled substance. See Morris, 77 Wn. App. at 951 ( " The person 

### Catterall involved offenses underthe repealed Dangerous DrugAct,butthis courtheld in Warnockthatthe resultwould be the same underboth the Dangerous Drug Act andthe Uniform Controlled Substances Act because both punish possession separately from delivery. 7 Wn.App. at 622 - 23. Divisions 1 and 3 have held thatthe "purchaser - agent distinction" did not survivethe 

### repeal ofthe Dangerous DrugAct. SeeStatev.Ramirez,62Wn.App. 301, 308 -09,814P.2d 227 ( 1991); State v. Sherman, 15 Wn.App. 168, 170, 547 P.2d 1234 ( 1976). But those cases 

### involved "procuring agents" ratherthanultimate buyers. Ramirez,62Wn.App.at308 -09; Sherman, 15Wn.App.at 170. Here,Adams didnotdeliverortransferthe cocaine,he only receivedthe cocaine. Accordingly,thesefacts are mostsimilarto Morriswherewe heldthata buyer is not an accomplice to delivery. 77 Wn.App. at 954. 542865 - 2 -II

who takes control does not ` transfer' or ` deliver[,]' but accepts the transfer or delivery. "). As a buyer, he did not " stand in the same relation to the crime" as the seller Maples or " approach it from the same direction." Catterall, 5 Wn. App. at 378 ( 

### quoting Teahan, 50 Conn. at 101). Although Adams' s and Maples' s intents were compatible —each needed the other to accomplish their respective goal — their intents were not the same. 

### Maples contends that the felony murder rule was designed to protect innocent persons and Adams was not innocent in this case. 

### But Washington has applied the felony murder statute to situations where the victim was not an innocent party. For example, felony murder victims 

### who were involved in fights that ultimately led to their deaths are not considered " participants" in the underlying assault. 

### See State v. Brigham, 52 Wn. App. 208, 210, 758 P.2d 559 ( 1988); State v. Langford, 67 Wn.App. 572, 579 -80, 837 P. 2d 1037 ( 1992). 

### Similarly, here, Adams was 

### involved in the drug deal, but he was not an accomplice to the underlying felony, delivery ofa
controlled substance. Therefore, the trial court did not err when it instructed the jury that a controlled substance buyer is not an accomplice to delivery. II. INSUFFICIENT EVIDENCE FOR SECOND DEGREE MURDER 

### Maples next argues that there is insufficient evidence to support his second degree murder conviction because the State did not prove that Adams was not a participant or that the 

## shooting occurred during orin immediateflightfromthecocaine delivery. Bothargumentsfail. Evidence is legally sufficient to support a guilty verdict if any rational trier of fact, viewing the evidence in the light most favorable to the State, could find the elements ofthe charged crime beyond a reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420 - 21, 5 P. 3d42865 -2 -II

1256 ( 2000). We interpret all reasonable inferences in the State' s favor. State v. Hosier, 157 Wn.2d 1, 8, 133 P. 3d 936 ( 2006). Direct and circumstantial evidence carry the same weight. State v. Varga, 151 Wn.2d 179, 201, 86 P. 3d 139 ( 2004). 

### Credibility determinations are forthe trier of fact and are not subject to review: State v. Cantu, 156 Wn.2d 819, 831, 132 P.3d 725 2006). First, Maples argues that there is insufficient evidence that Adams was not a participant in the crime of delivery of a controlled substance. As discussed above, a buyer is not an accomplice to delivery of a controlled substance. Maples argues several facts that show 

### Adams' s involvement in the drug deal; however, none ofthe facts establish that Adams was 

## acting asthe sellerordeliverer ratherthan the buyer. Therefore,there is sufficientevidencethat Adams was not a participant. 

### Second, Maples argues thatthere is insufficient evidencethatthe shooting occurred inthe

course of or in flight from the crime. 

### Because there was close proximity in distance and time 

### betweenthe crime andthe shooting andthe shooting was aresultofthe crime,there is sufficient evidence that it occurred during the course ofthe crime. 

### To establish that a murder occurred in the course ofor in immediate flight from a felony, there must be an " intimate connection" between the killing and the 

### felony. State v. Brown, 132 Wn.2d 529, 607 -

08, 940 P.2d 546 ( 1997) (

### quoting State v. Golladay, 78 Wn.2d 121, 132, 470 P.2d 191 ( 1970)). The murder must be in " close proximity in terms oftime and distance." State

v. Leech, 114 Wn.2d 700, 706, 790 P.2d 160 ( 1990). A causal connection must be clearly 

### established between the felony and the murder such thatthere is "more than a mere coincidence
of time and place." Brown, 132 Wn.2d at 608 ( quoting 2 WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 7.5, at 225 ( 1986)). 

### When an intervening cause is 742865 - 2 -II 

### involved, courts consider whether the intervening cause was foreseeable in determining whether

a causal connection exists . 2 See Leech, 114 Wn.2d at 704 - 05. Here, 

### there is close proximity in time and distance between the delivery and the shooting —



### Tyler fired shots into the car immediately after Maples handed the drugs to Foreman
and while the car was still in the parking lot where the delivery occurred. There is also a causal
connection between the shooting and the delivery. 

### The shooting resulted from the delivery— Tyler shot into the car because the buyers robbed Maples during the delivery. Arguably, the 

## robbery was an intervening cause ofthe shooting, but, because it was foreseeable, it does not break the causal connection. Maples' s statements to police indicate that he thought a robbery 

### mightoccuratthe delivery. Before he leftforthe delivery,Maplestold Tyler andVelasquezthat the buyers were " acting funny," and he asked Tyler to come with him. 5 RP at 780. Maples said 

## thattheybroughtthegunforprotection incase something wentwrong. Adetectiveasked ifthey brought the gun because Maples was concerned about " getting jacked," and Maples answered, Yeah." 5 RP at 783. Accordingly, there is sufficient evidence of an " intimate connection" between the shooting and the crime. III. INSUFFICIENT EVIDENCE FOR ASSAULT 

## Finally, Maples argues that there is insufficient evidence to support his conviction for first degree assault because the State failed to prove that Tyler meantto shoot at Foreman or that Maples was an accomplice to Tyler's actions. We disagree. 2 The Leech court noted that courts have required a closer causal connection when the intervening cause is a mere coincidence rather than a response to the defendant' s actions. 114 Wn.2d at 705 ( quoting 2 WAYNE R. LAFAVE & AUSTIN W. SCOTT, 7R., SUBSTANTIVE CRIMINAL LAW § 7.5, at 214 ( 1986)). 

### Where the intervening cause is coincidental, foreseeability is required;where it is aresponse to the defendant's actions,the question is whetherthe intervening act was abnormal. Leech, 114 Wn.2d at 705 ( quoting 2 WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 7.5, at 214 ( 1986)). 842865 - 2 -II First, Maples argues that there is insufficient evidence that Tyler intended to shoot Foreman because there is no evidence that Tyler knew there was a passenger in the car. Because 

### the first degree assault statute does not require that the specific intent to inflict great bodily harm match a specific victim, Maples' s argument fails. 

### A person is guilty offirst degree assault if,with intent to inflict great bodily harm, he
assaults another with a firearm. RCW 9A.36.011( 1)( a). A person acts with intent when he acts
with the objective or purpose to accomplish a result constituting a crime. RCW 9A.08. 010( 1)( a). 

### Specific intent cannot be presumed, but it can be inferred as a logical probability from all the facts and circumstances. State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 ( 1994). " Great bodily harm" means " 

### bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ." RCW 9A.04. 110(4)( c). An assault may be ( 1). an attempt to inflict bodily injury upon another, (2) an unlawful touching with criminal intent, (

## 3) or putting another in apprehension ofharm whether or notthe actor intends to inflict harm. 

### Wilson, 125 Wn.2d at218 (quoting State v. Bland,71 Wn.App. 345, 353, 860 P.2d 1046 1993)). 

### First degree assault does not, under all circumstances, require that the specific intent
match a specific victim. Wilson, 125 Wn.2d at 218.

In State v. Elmi, 166 Wn.2d 209, 207 P. 3d 439 ( 2009), our Supreme Court affirmed the defendant' s convictions for first degree assault against three unintended victims. There, the defendant fired shots into a house where his estranged wife was staying with three children. Elmi, 166 Wn.2d at 212. The jury convicted him on four counts of first degree assault. Elmi, 166 Wn.2d at 213. The defendant argued that the State did not prove specific intent to assault the children. Elmi, 166 Wn.2d at 214. 

### The court disagreed, holding that, where a defendant Z42865 - 2 -II 

### intends to shoot into and to hit someone occupying a house or a car, he bears the risk ofmultiple convictions when multiple victims are present, regardless of whether the defendant knows of their presence. Elmi, 166 Wn.2d at 218. Here, Maples does not dispute that Tyler fired five shots into the driver' s side ofthe car specifically intending to inflict great bodily harm on the driver. 

### Although Tyler may not have 

### known ofForeman's presence, an assault may be committed by putting another in apprehension
of harm, even if the actor does not intend to inflict harm. See Wilson, 125 Wn.2d at 218. Therefore, under Elmi, Tyler — and, through accomplice liability, Maples — bore the risk of 

### assaultconvictions forany passengers inthe car,whetherornottheyknew oftheirpresence. Next, Maples argues that there is insufficient evidence that he acted as an accomplice to 

### Tyler's assault ofForeman. Because there is sufficient evidence forthejuryto inferthat Maples requested Tyler to act, we disagree. 

### A person is guilty of a crime committed by another if he is an accomplice to the
commission of the crime. RCW 9A.08. 020( 1), ( 2)( c). A person is an accomplice if, with 

### knowledge that it will promote or facilitate the commission ofthe crime, he solicits, commands, 

### encourages, or requests the other person to committhe crime or aids or agrees to aid the other in planning or committing the crime. RCW 9A.08. 020(3)( a). Physical presence and assent,
without more, are insufficient to establish accomplice liability. State v. Roberts, .80 Wn. App. 342, 355 -56, 908 P.2d 892 ( 1996).

There is sufficient evidence that Maples acted as an accomplice. Tyler was present at the 

## drug deal onlybecause Maples asked himto be. Maples knewthatTylerhadagun,and, infact, Tyler brought the gun because Maples was concerned about the buyers' behavior and wanted

some protection. 

### Additionally,after Foreman attempted to paywith counterfeit money, Maples 1042865 - 2 -II
got out of the car and told Tyler that he had just been robbed. It was reasonable for thejury to 

### inferthat this was a request for Tylerto act. Accordingly, there is sufficient evidence to support Maples' s assault conviction. IV. SAG 

### In his SAG, Maples argues that his right to confront his accuser was violated because 

### Foreman did not testify at his trial. The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution to confront witnesses against him. State v. Parris, 98 Wn.2d 140, 144, 654 P.2d 77 ( 1982) ( 

### citing Davis v.Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 ( 1974)). " The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross examination." Parris, 98 Wn.2d at 144. 

### Here, although Foreman did speak with police after the shooting, the State did not attempt to introduce any of his statements. 

### Therefore, Foreman was not actually a witness against Maples and Maples' s rights were notviolated by Foreman' s failure to appear attrial. Further,the Sixth Amendment protects defendants from government interference with the right to conduct a defense. 

### State v. McCabe, 161 Wn. App. 781, 787, 251 P.3d 264 (2011). Accordingly, a defendant' s Sixth Amendment rights are not violated where " the obstacle to a 

## defendant's getting what he perceives as the full benefit of his Sixth Amendment right is not government interference, but an uncooperative witness." McCabe, 161 Wn. App. at 787. Here, 

### Maples's inabilityto confront Foreman was not dueto any action orfailureto actbythe State or the trial court; rather, it was due to Foreman' s lack of cooperation. In fact, the State obtained a 

### material witnesswarrantfor Foreman,but it could not locate him. Maples' s argumentfails.

0 1142865 -2 -II
Affirmed. 

### 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.

We concur: i 

## A/

1111& 

### 1 I e , Johanson, A.C.J.

y 

## VBjo,gen, J.',

12