### 20IhHOV 10 ^ 8: 22 IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. TYLISHA LAKISHIA BROWN, Appellant. No. 71141-5-1 DIVISION ONE

UNPUBLISHED FILED: November 10. 2014 

### Cox, J. — Tylisha Brownappeals thejuvenile court's adjudication and disposition on two counts of fourth degree assault. She claims thatthe State 

### failed to present sufficient evidence to support her convictions. Alternatively, Brown claims the admission ofimproper characterevidence requires a new trial. 

### Because the State presented sufficientevidence to convict Brown as a principal

or an accomplice and because Brown fails to show that the court abused its discretion in admitting evidence, we affirm. On the afternoon of October 1, 2012, Brown approached M.D. and her friend S.P. outside the South Park Community Center. Brown, who was 14 years old, said she was angry at them for showing some people her house. She told M.D. and S.P., who were both 13 years old, thatthey were too young for herto fight, but she would have someone else fight them. Later, as M.D. and S.P. walked away from the community center, Brown and herfriends stopped them. Brown's friend, A.W., told M.D. and S.P. that she and Brown's sister, T.D.,No. 71141-5-1/2 

### wanted tofight them. The four girlslined up on the grass, M.D. and S.P. facing A.W. and T.D. Brown stood to the side, calling out to the girls and videorecording events on a phone. A.W. and T.D. then attacked M.D. and S.P., hitting and punching them. 

### The State charged Brown with two counts of fourth degree assault, committed "togetherwithothers." Atthe fact-finding hearing, M.D. testified that Brownpushed her and S.P. so they would fight and thatA.W. grabbed her hair and punched her. She also testified that she did not want to fight and she never had any problem with A.W. or T.D. M.D. also identified herselfand the three other girls shown inthe video recording ofthe fight. Roxana Amaral, an administratorfrom Denny Middle School, testified that she found the video ofthe fight posted on Facebook. Amaral identified the girls

on the video. She also testified that she knew Brown from school and could recognize her voice based on having at least 30 conversations with her inthe past, from 30 seconds to an hour in length. The video begins with A.W. and T.D. facing M.D. and S.P., and a voice, identified as Brown's by Amaral, saying, "Three, two, go! Ding!" Then Brown says, "Hold on, hold on, hold on, hold on, don'tfight!" The video shows some shoes and the ground as Brown shouts to someone, "Come here!" and "Record this!" After several seconds, the picture again focuses on the four girls, a few different voices can be heard, and then A.W. and T.D. charge forward and begin grabbing and hitting M.D. and S.P.No. 71141-5-1/3 

### Afterclosing argument, thejudge reviewed the video inchambers before 

### returning a verdict inopen court on the record. Thejudge referred to the point in 

### the video where the ground is pictured, stating, "[Bjeforethe picturedisappears, [Brown] says: Hold on, Hold on. Runs over, tells someone -gets someoneto
come and record itand then comes back and says: Okay, fight. She's commanding now the behavior at that point intime."1 

### The court found Brown guilty of two counts ofassault as charged and entered a disposition order. Followingfiling ofBrown's notice ofappeal, the court entered its written findings offact and conclusions of law. SUFFICIENCY OF THE EVIDENCE Brown contends the State failed to present sufficient evidence to support a conclusion that she acted either as the principal or an accomplice inthe assaults against M.D. and S.P. Brown challenges portions ofthe court's findings offact

as well as its conclusions of law. At a fact-finding hearing injuvenile court, the trial court is required to "state its findings offact and enter its decision on the record," including the 

### "evidence relied upon by the court in reaching its decisions."2 We review 

### challenged findings of fact forsubstantial evidence.3 This court may look to the trial court's oral findings to aid its review ifthe written findings are incomplete.4

1 Report of Proceedings (October 21, 2013) at 90. 2JuCR 7.11(c). 3State v. B.J.S.. 140 Wn. App. 91, 97, 169 P.3d 34 (2007). 4State v. Robertson. 88 Wn. App. 836, 843, 947 P.2d 765 (1997).No. 71141-5-1/4 We review de novo the trial court's conclusions of law to determine ifthey are 

### supported bythe findings of fact.5 Brown challenges portions ofthe following findings offact: 3. The respondent was upset with [M.D.] and [S.P.] because three weeks prior they told some girls where the respondent lived. The respondent stated itwas disrespectful to show people where she lives. 4. The respondentwas angry and told [M.D.] and [S.P.] that she wanted 

### to fightthem but she was too old. The respondent ordered [M.D.] and [S.P.] to fight [A.W.] and [T.D.]. [T.D.] is the respondent's sister. 5. [M.D.] had not had any problems inthe past with the respondent... and did not want to fight. [M.D. and S.P.] leftthe community center and walked outside. The respondent and other[s] were at the edge ofthe 

### community center property. They were approached by the respondent. 

### The respondenttold [M.D.] and [S.P.] to fight [A.W.] and [T.D.]. [M.D.] and 

### [S.P.] refused to fight[A.W.] and [T.D.]. The respondent pushed [M.D.] and [S.P.] toward [A.W.] and [T.D.]. [M.D.] and [S.P.] still refused to fight. 10. The respondent encouraged [T.D.] and [A.W.] to fight [M.D.] [and] 

### [S.P].r6i 

### In particular, Brown claims no evidence supports the three week time frame orthe reference to disrespect in finding 3. As to finding 4, Brown argues 

### there was no evidence that (1) S.P. was presentwhen Brown spoke to M.D.; (2) Brown said she was too old tofight; or (3) Brown ordered anyone tofight. Brown also claims no evidence supported finding 5 as to (1) Brown telling anyone to 

### fight; (2) M.D. refusing tofight; or(3) Brown pushing anyonetoward anyone else. Finally, Brown argues finding 10is notsupported bythe record and isactually a conclusion of law mislabeled as a finding of fact. 

### The State properlyconcedes that the recorddoes not support certain 

### portions ofthechallenged findings but contends thatsubstantial evidence supports the remaining facts critical to the court'sconclusions. We agree. 5Binaham v. Lechner. 111 Wn. App. 118, 127, 45 P.3d 562 (2002). 6Clerk's Papers at 31-32.No. 71141-5-1/5 As to finding 3, M.D. testified only that Brown "was angry" at M.D. and S.P. because they "showed some people her house." We acceptthe State's concession as to this finding. We also accept its concession regarding finding 4 that M.D. did not claim that S.P. was presentfor her conversation with Brown outside the community center and that no evidence suggests that Brown ordered the girls to fight at that time. Butthe rest of finding 4 is supported by M.D.'s 

### testimony that Brown "was angry" and said "that she wasn't going to fight us because we were too young." 

### We reject Brown's challenge and the State's concession as to finding 5. The trial court considered both witness testimony and the video. Although M.D. 

### offered conflicting and vague details of how and when Brownpushed her and S.P., we deferto the trialcourt's resolution of conflicts inthe testimony, and 

### determinations regarding credibility ofwitnesses and the persuasiveness of evidence.7 Amaral testified that the voice on the video telling the girls to fight 

### was Brown's. Although the video does not show Brown pushing M.D. and S.P., it does show M.D. and S.P. standing withhands or arms folded each time Brown 

### told them tofight. Thecombination of the testimony and the video support the challenged portions of finding 5. 

### We also disagree with Brown's claim thatfinding 10 is solely a legal conclusionas to Brown'sguilt as an accomplice. The question whether Brown's specific actions and behavior during the incident constitute mere presence or 

### some degree ofparticipation requires afactual determination. In finding 10,the trial court determined that Brown "encouraged" the girls to fight. This factual 7State v. Fiser. 99 Wn. App. 714, 719, 995 P.2d 107 (2000).No. 71141-5-1/6 determination is supported by M.D.'s testimony that Brown "tried to like push us
so like we could fight," Amaral's testimony identifying Brown's voice on the video telling the girls to fight, and the video itself. Challenging the trial court's conclusion regarding her guilt as a principal, Brown claims there was no evidence that she pushed M.D. in a harmful or offensive manner or even touched S.P. As to accomplice liability, she claims there was no evidence that she (1) influenced the actions of A.W. and T.D.; (2)
was ready to assist inthe crime; or (3) participated inthe crime inany way other than being present. We disagree with these contentions. Evidence is sufficientto support a conviction if, afterviewing the evidence 

### in the light most favorable to the State, any rational trier of fact couldfind beyond

a reasonable doubt the essential elements of the crime.8 We draw all reasonable inferences inthe State's favor, and interpretthe evidence most strongly against the defendant.9 Circumstantial evidence and direct evidence are equally 

### reliable.10 "In determining whetherthe requisite quantum of proof exists, the 

### reviewing court need not be convinced of the defendant's guilt beyond a 

### reasonable doubt, butonlythatsubstantial evidence supportsthe State's case."11 An "assault" is defined as an intentional touching or striking ofanotherthat 

### is harmful or offensive.12 A touching or striking is offensive if it"would offend an

8State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). 9State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). 10 State v. Liden. 138 Wn. App. 110, 117, 156 P.3d 259 (2007). 11 State v. Jones. 93 Wn. App. 166, 176, 968 P.2d 888 (1998). 12 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 35.50, at 547 (3d ed. 2008)(WPIC); see State v. Stevens, 158Wn.2d 304, 314, 143 P.3d 817 (2006).No. 71141-5-1/7 

### ordinary person who is not unduly sensitive."13 Aperson acts as an accomplice if, "[w]ith knowledge that itwill promote orfacilitate the commission ofthe crime, he

or she: (i) [sjolicits, commands, encourages, or requests such other person to commit it; or (ii) [a]ids or agrees to aid such other person in planning or 

### committing it.
. . ."14 Adefendant need not participate ineach element of the crime inorderto be convicted as an accomplice.15 Instead, an accomplice need have only general knowledge that he is encouraging or assisting inthe criminal 

### act.16 A person who is an accomplice inthe commission of a crime is guilty of 

### that crime to the same extent as the principal.17 Based on M.D.'s testimony that Brown pushed her and S.P. so they would 

### fight, a rational trier of fact could findthat Brown physically pushed both M.D. and S.P. toward A.W. and T.D. either before she began recording or when the


### camera was pointed to the ground. M.D. testified that she did not want tofight. 

### Viewing the evidence in the light most favorable to the State, a rational trier of fact could findthat Brown's physical contactwith M.D. and S.P. inthese 

### circumstances would offend an ordinary person who was not unduly sensitive. Moreover, as the court stated, the video demonstrated that Brown 

### repeatedlytold A.W. andT.D. tofight and theyeventually attacked M.D. and S.P. as instructed byBrown. Unchallengedfindings of fact 6 and 9 establishing these 

### points are verities on appeal.18 Based onthese findings, Brown's actions can be

13WPIC 35.50. 14 RCW 9A.08.020(3). 15 State v. Galisia, 63 Wn. App. 833, 840, 822 P.2d 303 (1992), abrogated on other grounds byState v. Truiillo, 75 Wn. App. 913, 883 P.2d 329 (1994). 16 State v. Ferreira. 69 Wn. App. 465, 472, 850 P.2d 541 (1993). 17 RCW 9A.08.020. 18 State v. Hill. 123 Wn.2d 641, 644, 870 P.2d 313 (1994).No. 71141-5-1/8 

### properlyviewed as participation, rather than mere presence, supporting the trial court's conclusion regarding Brown's guiltas an accomplice. ADMISSION OF EVIDENCE 

### In the alternative, Brown challenges the admission ofAmaral's testimony regarding herjob duties as the administrator ofdiscipline at Brown's school, that 

### she interacted with Brown at school on a dailybasis, and that she had regular contactwith Brown's parents. Brownargues that admission ofsuch testimony raised an improper inference that Amaral interacted with Brown on a dailybasis because Brown was a disciplinary problem, in violation ofthe rules ofevidence. 

### We holdthatthe courtdid not abuse its discretion inadmitting the evidence. We review evidentiary rulings for abuse of discretion.19 Evidence is relevant if ithas "any tendency to make the existence ofany fact that is of consequence to the determination ofthe action more probable or less probable than it would be without the evidence."20 Evidence that is not relevant is not 

### admissible.21 Under ER 403, the court may exclude relevant evidence if its probative value is substantially outweighed by the danger ofunfair prejudice, 

### confusion ofthe issues, or misleading thejury.22 ER404(b) prohibits the admission ofpropensity evidence ifoffered to prove action in conformity therewith, but permits the admission of othercrimes, wrongs, and acts for other 

### purposes.23

19 State v. Matthews. 75 Wn. App. 278, 283, 877 P.2d 252 (1994). 20ER401. 21 ER402. 22 ER 403. 23 ER 404(b).

8No. 71141-5-1/9 

### During the State's direct examination ofAmaral, the following exchange
occurred: 

### Q. And how do you recognize Tylisha Brown? 

### A. Tylishawas a student at Denny International Middle School her eighthgrade year. Iwas her house administrator atthe time. Q. What's a house administrator? 

### A. Ahouse administrator has many roles, but primarily at Denny International Middle School, the house administrator does all of student 

### discipline. In that yearTylishawas an eighth-grader. Iwas the eighthgrade house administrator. Q. And how often did you come into contact with Ms. Brown? 

### A. Tylisha was at Denny for a short amount of time, but during thattime we had ~ Q. I'll stop you. Ifthere's any specific incidents, Idon't want to know about that. Ijustwant to know if you had communications with her. 

### A. Uh-huh. During the time that she was at Denny Idid see her on a daily basis, speakto her, her parents on a daily - not daily, but at least her on a 

### daily basis.[24] Defense counsel objected, arguing thatAmaral's reference to her disciplinary duties and her contactwith Brown and her parents violated ER 404(b) by raising the inference that Brown's misconduct led to the contacts. The prosecutor argued the testimony was elicited to show Amaral's familiarity with Brown's voice not any misconduct on Brown's part. Then defense counsel argued thatAmaral'sjob title and duties and her contacts with Brown's parents

were immaterial and demonstrated the State's intentional violation ofthe trial court's ruling in limine excluding ER 404(b) evidence. Recognizing the 

### impropriety ofintroducing Amaral's disciplinarian role as "a back-doorway" to show propensity, the trial court overruled the objection because Amaral's 

### testimony regarding herdaily contacts with Brown was relevantto establish a foundation for her claimed ability to identify Brown's voice.

24 Report of Proceedings (Oct. 21, 2013) at 62-63.No. 71141-5-1/10 

### Contrary to Brown's characterization of the testimony, Amaral did not actually testify as to the nature or content of her daily contacts with Brown and 

### did not attribute any prior wrongs oracts to Brown. The prosecutoroffered the testimony to establish the frequency of Amaral's contacts with Brown allowing her to recognize Brown's voice. Andas the State points out, when acting as the finder of fact, we presume the trial court disregards inadmissible inferences, thereby avoiding any prejudice to the defendant.25 Brown fails to demonstrate 

### any abuse of discretion in the trialcourt's admission ofAmaral's testimony. We affirmthe adjudication and disposition.

WE CONCUR: 

# ^•^

25 See State v. Melton. 63 Wn. App. 63, 68, 817 P.2d 413 (1991).

10