### FILED March 10,2015 I ntheOfficeofthe ClerkofCourt W AStateCourtofAppeals, Division III

IN THE COURTOFAPPEALS OFTHE STATE OF WASHINGTON DIVISION THREE STATE OFWASHINGTON, 

### ) No. 31936-9-111 

### ) Respondent, 

### ) ) 

### v. ) ) WILLIAM LEE FULTZ, 

### ) UNPUBLISHED OPINION 

### ) Appellant. 

### ) BROWN, 

### J.

- William Lee Fultz appeals his conviction forfirst degree burglary, firstdegree robbery, and two counts ofsecond degree assault, all with deadlyweapon enhancements. He contends insufficientevidence shows hewas an accomplice in the burglary and robbery convictions. Regarding his assault convictions, Mr. Fultz contends (1) the State failed to disprove self-defense beyond a reasonable doubtand (2) the Statefailed to show hewas an accomplice to one ofthe assaults. Because the evidence sufficiently supports all convictions, we affirm. FACTS On April 4, 2013, Tamara Knight resided with heradultson, Nicholas Knight, in Deer Park; Michael Mendoza and two otherswere present. Ms. Knightwanted to sell her Ford Broncofor $500. A woman, Donna, had paid $140 as a down payment. Ms. Knight gave Donnafive daysto paythe balance. When Donna failed to pay, Ms. Knight

### No. 31936-9-111 State v. Fultz
sold the Bronco to someone else. Around 

### 11:00 p.m., Donna returned to Ms. Knight's home. Two men, Jason Koch and Mr. Fultz, accompanied a "real mad" Donna. Report of Proceedings (RP) at56. Ms. Knight refunded Donna the 

### $140, but when Donna grabbed the money, itwas accidentally ripped in half. Ms. Knight told Donna to leave. As she left, Donna told Mr. Fultz to "take care of it." RP at 57. Around 

### 3:00 a.m. the next morning, Robert Moody, a drug dealerand debt collector, acting at the behest ofan unnamed female friend, picked up two male passengers and droveto Ms. Knight's residence. Mr. Moody parked his car a halfblock awayfrom Ms. Knight's house, grabbed a baseball bat he used for persuasion, and headed toward the house with the other men. Mr. Moody knocked on the doorand entered the house uninvited. He immediately confronted the people in the residence about the money owed to Donna and admitted at trial to hitting two people (Mr. Mendoza and Mr. Knight) with the bat and taking a PlayStation before retreating. Ms. Knight and herson identified the two men with Mr. Moody as Mr. Koch and Mr. Fultz. When Mr. Moody knocked, Mr. Fultz told Ms. Knight "to sit the 

### "F' down." RP at 58. Mr. Koch then pulled heroutside the housejust as Mr. Moody, baseball bat in hand, entered the house. As she was being pulled out the door, Mr. Knightjumped out the doorand attacked Mr. Fultz. Mr. Knight "had a feeling" a fight was about to occur because "normally people don't show up at my house at three o'clock in the morning." RP at 80. Whilewrestling with Mr. Fultz, Mr. Knight was hit in the back ofthe head from behind. Ms. Knight ripped Mr. Fultz' shirt in her attempt to get Mr. Fultz offherson.



### 2No. 31936-9-111 State v. Fultz
While Mr. Fultzwas fighting with the Knights, Mr. Moody hittwo people with his bat, grabbed a PlayStation, and ran. Thethree men leftthe scene in a white sport utility vehicle (SUV). Deputies Damon Anderberg and Ryan Truman responded to the Knights' house. They advised Washington State Patrol to be on the lookoutfor a white SUv. The deputies noted Mr. Knight had abrasions on his upper body. Mr. Mendoza told the deputies he had been hit with a bat. The deputies heard awhite SUV had been stopped at a nearby gas station; its occupants were Mr. Moody, Mr. Koch, Mr. Fultz, and afemale. Deputy Truman wentto the gas station, where he talked with Mr. Fultz. Mr. Fultz stated he and Mr. Koch were assaulted when theywent to the Knights' house to retrieve a battery. Mr. Fultzwas unsure if3:00 a.m. was a normal time to retrieve a battery. According to Mr. Fultz, no one entered the house; instead, "fourguys came out and beat him up." RP at 131. Someone hit him on the back ofthe head with a two-by-four, and someone ripped his shirtwhile pinning him to the ground. He denied any knowledge ofa PlayStation. Inspection ofthe SUV revealed two bats and a PlayStation; the PlayStation's serial number matched the serial number ofthe PlayStation taken from Mr. Knight. The State charged Mr. Fultz with first degree burglary, first degree robbery, and two counts ofsecond degree assault (Mr. Mendoza and Mr. Knight). At trial, Ms. Knight and herson testified consistently with the above facts. Mr. Moody, by then a convicted prisoner concerning these events, reluctantly related he entered Ms. Knight's home



### 3No. 31936-9-111 State v. Fultz
without permission and struck two men with his bat butwould not give names forthe other participants. Mr. Fultz did not testify. The court instructed thejury on accomplice liability and self-defense. Thejuryfound Mr. Fultz guilty as charged. Mr. Fultz appealed his convictions. ANALYSIS The issue is whether sufficient evidence supports Mr. Fultz' first degree burglary, first degree robbery, and two second degree assault convictions. Regarding the burglary and robbery convictions, Mr. Fultz contends the Statefailed to prove he was an accomplice. Regarding the assault convictions, Mr. Fultz contends the Statefailed to disprove self-defense beyond a reasonable doubt. Evidence is sufficient to support a guiltyfinding if "'afterviewing the evidence in the light mostfavorable to the prosecution, any rational trier offact could have found the essential elements ofthe crime beyond a reasonable doubt.'" State 

### v. Green, 94 Wn.2d 216,221,616 P.2d 628 (1980) (emphasis omitted) (quoting Jackson 

### v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,61 L. Ed. 2d 560 (1979». An evidence sufficiency challenge "admits the truth ofthe State's evidence and all inferences that reasonably
can be drawn therefrom." State 

### v. Salinas, 119Wn.2d 192, 201,829 P.2d 1068 (1992). Wedeferto thejury's assessment ofwitness credibility and evidenceweight. State 

### v. Carver, 113Wn.2d 591, 604, 781 P.2d 1308,789 P.2d 306 (1989). "Accomplice liability is principal liability." State v. Toomey, 38 Wn. App. 831, 840, 690 P.2d 1175 (1984). "[A]n individual is guilty as an accomplice if he

... 'solicits,



### 4

# I

'1 

# l No. 31936-9-111 State v. Fultz 

# j J 

# I commands, encourages, or requests' another person to commit a crime oraids in its 

# i planning orcommission, knowing that his

... actwill promote orfacilitate the commission ofthe crime." State v. McDaniel, 155 Wn. App. 829, 863, 230 P.3d 245
;J (2010) (quoting RCW 9A.08.020(3)). Mere presence atthe crime scene and assent are 

### 1 

## ! notenough to prove accomplice liability. Id. The State hasto prove "the defendantwas 

# I ready to assist in the crime." State v. Luna, 71 Wn. App. 755,759,862 P.2d 620 

# I 

# I (1993); see McDaniel, 155Wn. App. at 864. I An individual is guilty offirst degree burglarywhen he enters or remains unlawfully in a building with the intentto commit a crime therein and, either inside or while fleeing, he or another participantwas armed with a deadlyweapon or assaulted
someone. RCW 9A.52.020. "Armed" means the "weapon is readily available and accessiblefor use." State v. Chiariello, 66 Wn. App. 241, 243, 831 P.2d 1119 (1992). A "'deadly weapon'" includes a weapon "which, underthe circumstances in which it is used, attempted to be used, orthreatened to be used, is readily capable ofcausing death orsubstantial bodily harm." RCW 9A.04.110(6). An individual is guilty offirst degree robbery if, "[i]n the commission ofa robbery
or immediateflight therefrom, he 

### (i) [i]s armed with a deadlyweapon; or (ii) [d]isplays what appears to be a ... deadlyweapon; or (iii) [i]nflicts bodily injury." RCW 9A.56.200(1). Robbery is defined as unlawfullytaking "personal propertyfrom the person ofanotheror in his

... presence against his

...will bythe use of immediate



### 5

### No. 31936-9-111 State v. Fultz force, violence, orfear of injurytothat person or his

... property orthe person or property ofanyone." 

### RCW 9A.56.190. Looking atthe evidence in the light mostfavorable to the State, sufficient evidence supports Mr. Fultz' burglary and robbery convictions. Thefacts give rise to several reasonable inferences, all ofwhich supportthe finding that Mr. Fultz acted as an accomplice. First, Mr. Fultz knew Donna received her money, but he returned to Ms. Knight's house early in the morning to retrieve a battery asfurther repayment. Given Donna's command to Mr. Fultz to "take-care ofit," thejury could reasonably infer Mr. Fultz' return was forsome nefarious purpose. RP at 57. This inference is buttressed by facts showing Mr. Moody parked the car awayfrom the house; thejury could reasonably infer Mr. Moody, Mr. Fultz, and Mr. Koch wanted to surprise the occupants ofthe house and/orwished to remain unseen. Second, given Mr. Fultz' tersely worded command to Ms. Knight to sit down, it is reasonable to infer he wasthereto provide supportto Mr. Moody. Thejurycould reasonably infer Mr. Fultz was presentto assist Mr. Moody in robbing the Knights, either by actually helping with the robbery or by serving as a distraction. Third, Mr. Fultz accompanied Mr. Moody, who visibly carried a baseball bat with him to Ms. Knight's front door. It is reasonable tothink Mr. Fultz knew Mr. Moody would use the bat if need be, and his acquiescencetothe presence ofthe bat could be
seen as encouragementto use it. Moreover, thejury apparently gavethe Knights' testimony moreweight and found it more credible than the statements Mr. Fultz made to



### 6No. 31936-9-111 State v. Fultz
the police. We do notweigh evidence or decidewitness credibility. Given the above, a rational trier offact could find that Mr. Fultz acted as an accomplice. Next, a person is guilty ofsecond degree assault ifhe orshe assaults another with a deadlyweapon. RCW 9A.36.021(1)(c). Self-defense, ifsuccessful, "constitutes
a completejustification" to the crime. State v. Rodrigues, 21 Wn.2d 667, 668, 152 P.2d 970 (1944). Where the defendant is the precipitating aggressor, self-defense is not available as a defense. State v. Currie, 74 Wn.2d 197, 198-99,443 P.2d 808 (1968). The evidence viewed mostfavorably forthe State sufficiently supports Mr. Fultz' second degree assault convictions concerning Mr. Knight and Mr. Mendoza. Mr. Fultz, who had been present earlier in the evening when Ms. Knight refunded Donna's money, returned to Ms. Knight's houseforthat same purpose. Two other men accompanied Mr. Fultz to Ms. Knight's doorat 3:00 a.m. One ofthe men with Mr. Fultz, Mr. Moody, wielded a baseball batfor "the purposes of persuasion"; he eventually used that batto hittwo people. RP at 151. Mr. Moody attempted to force Ms. Knight's door open. Ms. Knightwas told by Mr. Fultz "to sit the IF' down" before being physically pulled from the house. RP at 58. Thejury could reasonably infer Mr. Fultzwas the first aggressor in this situation. As Mr. Knight stated, "normally people don'tshow up at my house at three o'clock in the morning" unless they are looking for trouble. RP at 80. Ultimately,
as seen with the burglary and robbery convictions, thejuryfound the Knights' version of events more credible. An accomplice "runs the risk of having the [principal] exceed the scope ofthe preplanned illegality." State v. Davis, 101 Wn.2d 654, 658, 682 P.2d 883



### 7No. 31936-9-111 State v. Fultz (1984). Sufficient evidence exists to supportthetheorythat Mr. Fultz was an accomplice; his conviction for second degree assault against Mr. Mendoza should not be dismissed. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

Brown, 

### J. WE CONCUR:



### 8