FILED COURTDFAPPEALSOIV STATE OF WASHINGTQ~ ~ ~ 

### 2OI8SEP-~ AN 9:30

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON THE STATE OF WASHINGTON, 

### ) No. 74859-9-I 

### ) Respondent, 

### ) DIVISION ONE
v. 

### ) JERRYALLEN FLUKER, 

### ) ) UNPUBLISHED OPINION Appellant, 

### )

) MARQUE DEANDRE FLUKER, 

### ) ) Defendant. 

### ) FILED: September4, 2018 SCHINDLER, J.

—JerryAllen Flukerappeals thejury conviction offelony rendering criminal assistance in the first degree. Fluker contends insufficient evidence supports the conviction and the court erred by sustaining an objection during closing argument. We affirm. FACTS The facts are setforth in the linked case, State v. Mar’Que Fluker, No. 75060-7-I (Wash. Ct. App. Sept. 4, 2018), and will be repeated only as necessary.No. 74859-9-1/2 On August 12, 2015, LeMaun Lancaster punched JerryAllen Fluker in the face. Jerry’s brother Mar’Que Flukershot Lancaster 8 to 10 times.1 Jerrytold Mar’Que he “wasn’t going to leave without him.” Mar’Que got in the carand Jerry drove away. Mar’Que called 911. Mar’Que told the 911 operatorthat he would meetthe police at a nearby Safeway parking lot. When King County Sheriff Detective Aaron Thompson drove to two nearby Safeway parking lots, Mar’Que
was notthere. Surveillance videos showJerry and Mar’Que drive away afterthe shooting in a silver2001 Chevrolet Impala. The Impala was registered to Jerry. The State charged Mar’Que with intentional murder in the second degree of Lancasterwhile armed with a firearm. The State charged Jerrywith felony rendering criminal assistance in the first degree. Mar’Que asserted self-defense and defense ofothers. Jerry pleaded not guilty. During the two-weekjurytrial, the State called more than 20 witnesses. Mar’Que and Jerrytestified. The court admitted into evidence several exhibits, including an exhibitwith the surveillance videos. The State played the surveillance videos forthejury. The videos showJerry pushed Lancaster in the chest before Lancaster punched Jerry in the face. Mar’Que immediately pulls out a gun and shoots Lancaster. Lancasterdoubles over, covers his stomach, twists to the right away from Mar’Que, and falls to the ground. Jerrywatches Mar’Que shoot Lancaster,

1 Forpurposes ofclarity, we refertoJerry Fluker and Mar’Que Fluker bytheirfirst names. 2No. 74859-9-1/3

picks his hat up offthe ground, walks to his car—a silver2001 Chevrolet Impala, and gets in the driver’s seat. Mar’Que paces back and forth before getting in the passenger seat. As the car backs out ofa parking space, Mar’Quejumps out of the car. The carstops. Mar’Que talks to someone in the carand then gets back into the car.2 Jerry drives away. Thejuryfound Mar’Que guilty ofthe lesser included crime of manslaughter in the first degree while armed with a firearm. Thejuryfound Jerry guilty offelony rendering criminal assistance in the first degree. The court sentenced Jerryto nine months with creditfortime served. ANALYSIS Sufficiency ofthe Evidence Jerry contends the evidence does not support thejury conviction for rendering criminal assistance in the first degree. Jerry contends RCW 9A.76.050 requires the State to prove that he provided transportation as a “means of avoiding discovery or apprehension.” RCW 9A.76.050(3). Jerry argues insufficient evidence supports the conviction because he “simply drove his brother home.” In determining whether sufficient evidence supports the conviction, we viewthe evidence in the light mostfavorableto the State to determine whether any rational trieroffact could have found elements ofthe crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

2 Jerry and Mar’Que’s nephew is also in the car. 3No. 74859-9-1/4

When challenging the sufficiency ofthe evidence, the defendant admits the truth ofthe State’s evidence, and all reasonable inferences must be drawn in favor of the State and interpreted strongly against the defendant. Salinas, 119 Wn.2d at 201. We give deference to the finder offact in resolving conflicting testimony and weighing the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). Circumstantial and direct evidence are accorded equal weight. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). RCW 9A.76.050 states a person “renders criminal assistance” if with intentto prevent, hinder, ordelaythe apprehension or prosecution ofanother person who he orshe knows committed a crime.

. . ,he or she (3) Provides such person with money, transportation, disguise, or other means ofavoiding discovery or apprehension. The use ofa comma before the qualifying phrase “orother means of avoiding discovery orapprehension” applies to all antecedents. RCW 9A.76.050(3); State v. Bunker, 169 Wn.2d 571, 578, 238 P.3d 487 (2010). Jury instruction 19 defines the crime of“rendering criminal assistance in the first degree” as follows:

A person commits the crime of Rendering Criminal Assistance in the First Degree when he orshe renders criminal assistance to a person who he orshe knows has committed Murder in the Second [Djegree orAssault in the First Degree. Jury instruction 20 states a person “renders criminal assistance” if with intentto prevent, hinder, ordelaythe apprehension or prosecution ofanother person who he or she knows has committed

4No. 74859-9-1/5

a crime, he or she provides such person with transportation, disguise, orother means ofavoiding discovery orapprehension.[3~ Viewing the evidence in the light mostfavorable to the State, thejury could find beyond a reasonable doubtthat Jerry provided transportation with the intent to prevent, hinder, ordelay apprehension. The undisputed evidence shows Jerry knew Mar’Que shot Lancaster several times. Mar’Que testified that after he shot Lancaster, he “wanted to stay” but “they kepttelling me to leave.” Mar’Que testified thatwhen Jerrywas “trying to back up [the car],

. . . Ijust moved outthe door and I kepttelling him to go,” but Jerrytold Mar’Que that he was “not leaving without me.” Mar’Que “hopped in the car” and called 911. Mar’Que testified he told the 911 operatorthat “peoplewere shooting at [him]” and “the person [he] shot had a gun.” But Mar’Que admitted at trial, “Thatwasn’ttrue.” Mar’Que admitted no one was shooting at him and “I knew [Lancaster] didn’t have a gun on him.” Mar’Que testified he told the 911 operatorthat he “was going to Safeway.” Mar’Que testified thatJerry drove to the Safeway parking lot and they “waited there for a few minutes.” Butthen Jerry “drove [him] awayfrom the Safeway.” Mar’Que testified a friend picked him up from his mother’s house. His friend drove Mar’Que “[tb Burien, where [his] car was,” and then Mar’Que drove to “North Seattle to a friend’s house.”

~ The to-convictjury instruction states, in pertinent part: To convictthe defendantofthe crime of Rendering Criminal Assistance in the First degree, as charged in count II, each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: (1) That on or aboutAugust 12, 2015, defendantJerryAllen Fluker rendered criminal assistanceto a person; (2) Thatthe person had committed Murder in the Second Degree or Assault in the First Degree; (3) Thatthe defendant knewthatthe person had committed Murder in the Second Degree orAssault in the First Degree. 5No. 74859-9-1/6 Jerrytestified that he owned the 2001 Chevrolet Impala. Jerry said that on August 12, he “stopped bythe Ezell’s [Famous Chicken restaurant] in Skyway” with Mar’Que. When he came out of Ezell’s, he “felt like something was going to start happening.” Jerrytestified, “I just remember after being punched and [Lancaster] saying, shoot. My brotherwas like, I’m not playing, and he started firing.” Jerry said he saw Lancaster“hitthe ground

. . . and that’s when Ijust

— picked up my hat, and I walked to the car.” Jerrytestified he “wasn’t going to abandon [Mar’Que] and leave him there.” Jerry said Mar’Que got in the carand “then he got out” because he “wanted to stay.” Jerrytold Mar’Que, “I’m not leaving without you.” Mar’Que got back in the carand they “headed towards South Seattle” but Mar’Que “wanted to go to the Safeway and waitforthe police.” Jerry knewthe police were “going to be looking for somebody” and he “didn’twantto do anything thatwould hurt” Mar’Que. Jerry said they left Safeway and “headed toward my mom’s house in Renton.” Mar’Que “called somebodyto come pick [him] up from there.” When they gotto the apartment, “somebodywas alreadythere waiting to pick [Mar’Que] up.” Jerry parked his carat his mother’s apartment complex, called his girlfriend, and “told herto come pick me up.” Sufficient evidence supports thejuryfinding Jerry guilty of rendering criminal assistance in the first degree. Closing Argument Jerry contends the court erred by sustaining an objection to the defense argument on the burden of proof
6No. 74859-9-1/7 “We reviewthe trial court’s decision to limit closing argument forabuse of discretion.” State v. Wooten, 178 Wn.2d 890, 897, 312 P.3d 41(2013) (citing State v. Perez-Cervantes, 141 Wn.2d 468, 475, 6 P.3d 1160 (2000)). “A court abuses its discretion ‘only if no reasonable person would take the view adopted bythe trial court.’” Wooten, 178 Wn.2d at 897 (quoting State v. Huelett, 92 Wn.2d 967, 969, 603 P.2d 1258 (1979)). While counsel has considerable latitude in closing argument, argument “must be restricted to the facts in evidence and the applicable law, lestthejury be confused or misled.” Perez-Cervantes, 141 Wn.2d at474. The court instructed thejury on the burden of proof. Thejury instructions state that Jerry “entered a plea of not guilty” and thatthe plea “puts in issue every element” ofthe crime charged. Jury instruction 3 states thatthe State has the “burden of proving each element ofeach crime beyond a reasonable doubt.” Jury instruction 3 defines “reasonable doubt” as follows:

A reasonable doubt is one forwhich a reason exists and may arise from the evidence or lack ofevidence. It is such a doubt as would exist in the mind of a reasonable person afterfully, fairly, and carefully considering all ofthe evidence or lack ofevidence. During closing argument, defense counsel argued, in pertinent part: [Bjeyond a reasonable doubt is a very high standard, a standard that is the highest ofall standards we use in the legal system. If you think about standards of proof, kind ofstarting atthe lowest level possible, you would have reasonable suspicion, and that’s something an officerwould use to look at a scenario to decide whether or notthey have a basis to stop, to talk, to investigate a case, whetherthey have something to submit to the prosecutorfor charges. Higherthan that, you have probable cause. Probable

7No. 74859-9-1/8

cause is where ajudge would find thatthere are sufficient allegations to let a case

—. The State objected. The court sustained the objection. The court ruled, “Thejury has the law, you should focus on the Court’s instructions.” The court did not abuse its discretion by sustaining the objection to the argument. While defense counsel must be afforded “‘the utmostfreedom in the argument ofthe case,’ “closing argument is restricted to “the applicable law, lest thejury be confused or misled.” Perez-Cervantes, 141 Wn.2d at 474 (quoting Sears v. Seattle Consol. St. Ry., 6 Wash. 227, 232-33, 33 P. 389, 33 P. 1081 (1893)). Appellate Costs The State requests appellate costs on appeal. Under RAP 15.2(f), ifa defendant has been found indigent, the presumption of indigency continues throughout review. State v. Sinclair, 192 Wn. App. 380, 393, 367 P.3d 612 (2016). RAP 15.2(f) states: A party and counsel forthe partywho has been granted an order of indigency must bring to the attention ofthe appellate court any significant improvement during review in the financial condition of the party. The trial courtwill give a partythe benefits ofan order of indigency throughoutthe review unless the appellate courtfinds the party’s financial condition has improved to the extentthatthe party is no longer indigent. Under RAP 14.2, the State mayfile a motion for costs with the commissioner iffinancial circumstances have significantly improved since the finding of indigency. State v. St. Clare, 198 Wn. App. 371, 382, 393 P.3d 836 (2017).

8No. 74859-9-1/9 We affirm thejury conviction offelony rendering criminal assistance in the first degree.



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