### FILED 

### April 16, 2013 In tbe Office oftbe ClerkofCourt W A StateCourt ofAppeals, Division [II IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 29710-I-III Respondent, ) ) 

### v. ) ) JOEL CAMERONCONDON, ) ) UNPUBLISHED OPINION Appellant. ) SIDDOWAY, A.C.J. Joel Condon, the shooterin a home invasionrobbery that resulted in the death ofCarmelo Ramirez, appeals his conviction for aggravated first degree murder and burglary. Heraises eight challenges, butwe find reversible error in only one instance: the trial court's failure to instructthejuryon second degree intentional murder as a lesser degree offensetothe State's charge offirst degree premeditated murder. We affirm Mr. Condon's convictions offirst degree burglary, unlawful possession ofa firearm, and a firearm enhancement. Wereverse his conviction of aggravated first degree murderonthe basis ofthe instructional errorand remand for a
newtrial on the murder charges.No. 2971O-I-III State 

### v. Condon
FACTS AND PROCEDURAL BACKGROUND At around 8 p.m. on an evening in January 2009, two men burst through the front door ofthe home in Toppenish where Carmelo Ramirez and Enedina Gregorio lived with their three children. Evidence laterrevealed thatthe two men-Joel Condon and Jesus PadillaLozano-had impulsively decided to rob the home ofa drug dealer from whom a mutual acquaintance had purchased cocaine earlier in the evening. Their acquaintance described the dealer as having flashed a great deal ofcash. Apparently Mr. Condon and Mr. Lozano traveled to the wrong residence, because instead ofencountering a drug dealer, they encountered Mr. Ramirez and Ms. Gregorio preparing to eat dinner, their 13­ year-old son Jesus watching television with his cousin, and two younger children playing in a bedroom. Three witnesses testified attrial to their personal knowledge ofthe invasion. Their testimony was somewhat conflicting. Among the uncontested evidence was that the two
menburst into the home; that the taller ofthe two (Mr. Condon was several inches taller) brandished a handgun immediately upon entering; that the two men yelled demands in English, whichthe Spanish-speaking family members either did not understand or only partially understood; that early on in the encounter, Ms. Gregorio followed her I3-yearold son Jesus into a bedroomwhere the two younger children had been playing and helped the three children escape out a back window; and thatMs. Gregorio then either returned or was pulled back into the main room ofthehome. 

### 2No. 29710-1-II1 State 

### v. Condon

Ms. Gregoria's version ofevents was that afterhelping the children escape she returned to the main room, where she sawherhusband trying to take the handgun from Mr. Condon. She testified that Mr. Lozano grabbed her, she struggled, but he succeeded in throwing her face-down on a sofawhere he held herhands behind herback. She stated that shethen heard a shot ring out shortly after Martin Gutirrez, a friend ofthe family who had beeninvitedto dinner, arrived at the front ofthe home. The prosecutor suggested in closing argumentthat the men had seen the headlights ofMr. Gutirrez's car. Ms. Gregorio inferred thatthe shooting began because, with the arrival ofMr. Gutirrez, the men were scared. The intruders then ran from the home through the back door and she andher husband ran outthe front, enlisting

### Mr. Gutirrez to drive Mr. Ramirez to the hospital. Ms. Gregorio did notrealize that her husband had been seriously injured, although it turned outhe had been shottwice, with one bullet entering his thigh and the other passingthrough his elbow into his chest, where it clipped his aorta. Mr. Ramirez lost consciousness before Mr. Gutirrez couldreach the hospital; nurses at the Farm Workers Clinic, where Mr. Gutirrez stopped to get more immediate help, were unable to save him. Mr. Lozano's version was that onthe day ofthe crime he and Mr. Condon had been riding around with Mr. Condon's friend "EightBall" and EightBall's girl friend. Mr. Lozano had known Mr. Condon (whom he knew as "Wak-Wak") for only a month. Since meeting, they had smokedpottogethervirtually every day, often hanging outwith 

### 3No. 29710-I-III State 

### v. Condon Eight Ball. In the early evening, Eight Ball leftthe carto purchase cocaine and, on his return, told the others aboutthe cash he observed in the home ofthe dealer. Upon hearing that, 

### Mr. Condon and Mr. Lozano decided to committhe robbery. 

### Mr. Lozano testified that the plan was only to steal money and drugs. He claimed to beunaware until they entered the home thatMr. Condon had a gun. According to Mr. Lozano, he and 

### Mr. Condon were dropped offby EightBall's girl friend about a quarter mile from the Ramirez/Gregorio home and walkedto what they believedwas the drug dealer's home, where Mr. Condon kicked in the door and entered first. Following their entry, 

### Mr. Ramirez defended against the invasion by fighting with Mr. Lozano, not with Mr. Condon, and eventually managed to get Mr. Lozano into a chokehold. It was after "1 was like turning purple," accordingto Mr. Lozano, that Mr. Condon fired two shots at Mr. Ramirez. Report ofProceedings (RP) at 797. Mr. Lozano agreed that he and Mr. Condon then ran out through the back ofthe home, although he claims he returned once, forjust a moment, to see ifhe could find any cash, because "we
were there for money so I might as well-you know, not went for nothing." RP at 798. Jesus Ramirez, who was 15 by the time oftrial, testified that he was sitting in the living room with his cousinwhen the men burst in; his parents were in the kitchen and stood up immediately upon the intrusion. Jesus left for his bedroom where his younger brotherand sisterjoinedhim. He was directingthem to hide underhis bedwhen his

4No. 29710-1-111 State 

### v. Condon
mother came in, followed by the smaller intruder, whose entry she blocked. She opened the window and told the children to leave, which they did. Mr. Lozano dropped his cellphone during the crime and police quickly traced it to him through the telephone number ofhis mother, who placed calls to the phone the evening ofthe crime and whose number was stored within the phone. Within days, there

were news reports that Mr. Lozano was a suspect, in response to which he initially fled to Mexico. He did not stay long, turning himselfin approximately six weeks later. In a recorded statement thathe provided to Detective Brian Jackson approximately seven weeks after the crime, he described the man he knew as Wak-Wak as a tall, light skinned "native," who had a tattoo on his neck ofa scroll with writing. Ex. 106, at 15. Other detectives in the department later identified Mr. Condon from the description. Shortly after the State filed charges against Mr. Condon and beforehis arraignment, the State requested an orderrequiring himto participate in a lineup. 

### Mr. Condon asked the court to order that the lineup be double-blind and sequential. A double-blind sequential lineup is one in which neither the officer conducting the lineup

nor the witness knows whichperson is the suspect and which are the decoys. The participants in the lineup are presentedto the witness in sequence, rather than simultaneously. The court ordered the lineup but denied Mr. Condon's request that it be sequential and double-blind. 

### 5No. 2971O-1-III State 

### v. Condon
Detective Jackson, the lead investigator on the case, conducted a six-person lineup. in which Mr. Condon andthe five others, each wearingjail-issued clothing and Ace bandages around their necks (to hide Mr. Condon's tattoo), stood side-by-side. 

### Mr. Condonwas taller than the others; Detective Jackson would later explain thathe used individuals who were in custody and tried to include only individuals who were at least six feet tall, butwas unsuccessful. Mr. Condon was the only Native American. Detective Jackson testifiedthatthis was because the other Native Americans availableto participate all had long hair that would distinguish them from Mr. Condon, whose hair
was short. In addition to Mr. Condon, then, the participants comprised four Hispanics and one Caucasian. Mr. Condon's lawyer objected to the lineup procedure and to the use ofa Caucasianpolice officer as one ofthe decoys. Ms. Gregorio was the first witness asked to view the lineup and quickly identified Mr. Condon. She made her identification within 10 seconds, stating that "she couldn'tbe

one hundred percentbut she was pretty sure" and "she recognized him from his face." RP at 89. Jesus Ramirez and his cousin were unable to identify anyone from the lineup after a minute ofobservation. Mr. Condon moved to suppress Ms. Gregorio's identification ofhim, arguing the lineup was impermissibly suggestive. Atthe hearing on his motion to suppress, he called Dr. Geoffrey Loftus, an experimentalpsychologist whose area ofresearch is human perception and human memory. Dr. Loftus testified to whathe believed to be 6

### No. 29710-1-111 State 

### v. Condon shortcomings in the conduct ofthe lineup and aspects ofMs. Gregorio's identification that, in his opinion, cast doubt on the reliability ofthe identification. The court denied the motion to suppress. Shortly beforetrial, Mr. Lozano made a deal with the State. He testified against 

### Mr. Condon at trial. At trial, Ms. Gregorio made an in-court identification ofMr. Condon and testified about herpretrial identification. At trial she claimed to be "one hundred percent sure that it was him." RP at 

### 749. In the court's conferences with the lawyers during the course oftrial, 

### Mr. Condon asked that thejury be instructed on second degree intentional murder as a lesser offense to first degree premeditated murder. After hearing extensive argument onthe issue, the trial courtrefused to give the instruction. Thejury convicted Mr. Condon ofaggravated first degree murder, first degree burglary, unlawful possession ofa firearm in the second degree, and firearm enhancements. The trial court imposed the mandatory minimum penalty for aggravated first degree murder: life without thepossibility ofparole. RCW 

### 10.95.030. Itimposed a sentence of 176 months for the conviction offirst degree burglary (a term including a 60­ month firearm enhancement) and 60 months for the conviction ofsecond degree unlawful possessionofa firearm. Itdirected that the portion ofthe lattertwo sentences not attributable to the firearm enhancements run concurrently. Mr. Condon appeals. 

### 7No. 2971O-1-II1 State 

### v. Condon

ANALYSIS Mr. Condon makes the following assignments oferror: (1) there was insufficient evidence to prove premeditation; the trial court erred in (2) refusing to instruct thejury on second degree intentional murder, (3) denyinghis motion to suppress Ms. Gregorio's identification given a lineup that he argues was unduly suggestive, and (4) excluding expert testimony addressing eyewitnessperception and memory; and (5) the prosecutor committed misconduct, (6)he was denied effective assistance ofcounsel, (7) the accomplice liability statute is unconstitutionally overbroad, and (8) thetrial court miscalculatedhis offender score. We address the assignments oferror in tum. I Mr. Condon first argues that the State's evidence ofpremeditated intent-all circumstantial-was insufficient. Hepoints to the testimony ofhis partner in the crime, Mr. Lozano, who saidthe intent was only to rob; the absence ofany evidence of statements by Mr. Condon admitting or implying a different intent; thetrajectory ofthe two shots, which wouldnot ordinarily havebeen fatal; and the fact that, while he entered the home with a drawn pistol, he didnot shoot anyone until (depending on which eyewitness account was believed) Mr. Ramireztried to take the gun from Mr. Condon or
was stranglingMr. Lozano in a chokehold. Dueprocess requires the State to prove all elements ofthe crime beyond a reasonable doubt. State v. Washington, 135 Wn. App. 42, 48, 143 PJd 606 (2006). 

### 8No. 29710-1-III State v. Condon
Evidence is sufficient to support a conviction if, after viewingthe evidence in the light most favorable to the State, any rational trier offact could have found guilt beyond a reasonable doubt. State v. Kintz, 169 Wn.2d 537, 551,238 P.3d 470 (2010). "'Aclaim ofinsufficiency admits the truth ofthe State's evidence and all inferences that reasonably

can be drawn therefrom.'" Id. (quoting State v. SaUnas, 119 Wn.2d 192,201, 829 P.2d 1068 (1992)). We deferto the trier offact on issues ofconflicting testimony, credibility ofwitnesses, and thepersuasiveness ofthe evidence. State v. Thomas, 150 Wn.2d 821, 874-75,83 P.3d 970 (2004) (citing State v. Cord, 103 Wn.2d 361,367,693 P.2d 81 (1985)), abrogated inparton othergrounds by Crawfordv. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 

### L. Ed. 2d 177 (2004). To be convicted for first degree premeditated murder, the prosecution mustprove beyond a reasonable doubt that with a premeditated intentMr. Condon caused the death ofMr. Ramirez. RCW 9A.32.030(1)(a); Clerk's Papers at 216-19. It is the element of premeditation that distinguishes first from second degree murder. State v. Bingham, 105 Wn.2d 820,823,719P.2d 109 (1986). Thepremeditation "must involve more than a moment in point oftime." RCW 9A.32.020. Premeditation may be provedby circumstantial evidence where the supporting inferences are reasonable and the evidence is substantial. State v. Gregory, 158 Wn.2d 759,817,147 P.3d 1201 (2006); State v. Gentry, 125 Wn.2d 570,598,888 P.2d 1105 (1995). The defendant's motive, procurement ofaweapon, stealth, and method ofkilling 9No. 29710-1-II1 

### State 

### v. Condon

are "particularly relevant" factors to establish premeditation. 

### State v. 

### Pirtle, 127 Wn.2d 628,644,904P.2d 245 (1995); 

### State 

### v. Sherrill, 145 Wn. App. 473, 484-85, 186 P.3d 1157 (2008). Specifically, '''[t]heplanned presence ofaweapon necessary to facilitate a killing has been heldto be adequate evidence to allow the issue ofpremeditation to goto thejury.'" 

### State 

### v. Massey, 60 Wn. App. 131, 145, 803 P.2d 340 (1990) (alteration in original) (quoting

### Bingham, 105 Wn.2d at 827). Viewingthe evidence in the light most favorable to the State, the evidence that Mr. Condon brought a loaded handgun to the Ramirez/Gregorio residence, intended to commit a robbery, and wielded the handgun when he kicked in the door is sufficient evidence to support the element ofpremeditation. II Faced withthe first degree premeditated murder charge, Mr. Condon asked that the court instruct thejury on the lesser degree offense ofmurder in the second degree, intentional murder. The trial courtrefused. Mr. Condon's next assignment oferror is to the trial court's refusal to givethe requested instruction. A defendanthas a statutory right to have lesser degree offenses presented to ajury. RCW 10.61.003, .010. The State concedes that legally, second degree murder is a lesser degree offense. A second requirement must bemet topresent the lesser degree offense, however: a factual showing (more particularized thanthat required for other instructions) that "the evidence must raise an inference that 

### only the lesser included/inferior degree 10No. 29710-1-111 State 

### v. Condon
offense was committed to the exclusion ofthe charged offense." State v. FernandezMedina, 141 Wn.2d 448,455,6 PJd 1150 (2000). Itwas this requirement that the court found lacking. 1 The standard ofreview we apply tojury instructions depends on the decision under review. The instructions must be sufficient to allow the parties to argue their theory ofthe case. Havens v. C&D Plastics, Inc., 124 Wn.2d 158, 165, 876 P.2d 435 (1994). Whether or not that standard has been met is a question oflaw that we review de

novo. Cox v. Spangler, 141 Wn.2d 431,442,5 PJd 1265,22P.3d 791 (2000). Whether the court's instructions to thejury are accurate statements ofthe law is also a question of law thatwereview de novo. State v. Becklin, 163 Wn.2d 519, 525, 182 PJd944 (2008). Once these threshold requirements have been met, we then review thejudge'swording, choice, or the number ofinstructions for abuse ofdiscretion. State v. Hathaway, 161 Wn. App. 634, 647, 251 PJd253 (selection ofmore general, rather than specific, instruction; abuse ofdiscretion standard applied), review denied, 172 Wn.2d 1021 (2011);Anfinson v. FedEx GroundPackage Sys., Inc., 159 Wn. App. 35, 244 PJd 32 (2010) (abuse of

I While the trial court offered an alternative rationale that Mr. Condon must satisfy the State v. Workman, 90 Wn.2d 443,584P.2d 382 (1978) test for both first degree premeditated murder and felony murder in order to be entitled to instruction on second degree murder, the State does notrely on that basis for the trial court's decision on appeal. Itwas erroneous. See State v. Schaffer, 135 Wn.2d 355,957 P.2d 214 (1998) (defendant was entitled to instruction on manslaughter as a lesser degree charge to first degree premeditated murder even though it would nothave been a lesser degree charge of second degree felony murder, whichwas also charged). 11No. 2971O-1-II1 State v. Condon
discretion standard applies to number ofinstructions and specific wording), aff'd, 174 Wn.2d 851, 281 P.3d 289 (2012). The failure ofthe trial courtproperly to instructthejury is presumed to be prejudicial to the defendant unless the error affirmatively appears harmless. State v. Southerland, 109 Wn.2d 389,390-91, 745 P.2d 33 (1987). Since the right to a lesser included offense instruction derives from a statute, nonconstitutional harmless error analysis applies. Id. at 391. The State defends the trial court's conclusion that the evidence did not raise the inference that only intentional murder was committed to the exclusion ofpremeditated murder. "[T]he intentionalbutunpremeditated killing ofa human being, unless it is justifiedorexcusable, is murder in the second degree. The state can raise a homicide to first degree murder by provingthat the intentional unjustifiedkilling ofa human being waspremeditated." State v. Thomas, 58 Wn.2d 746,751,364 P.2d 930 (1961) (Mallery, 1., dissenting), overruledon othergrounds byState v. Rogers, 83 Wn.2d 553, 520 P.2d 159 (1974). When inquiring whetherthe evidence raises the inference that only the lesser degree offense was committed, the court must consider all ofthe evidencepresented at trial and view it in the light most favorable to the party requesting the instruction. Fernandez-Medina, 141 Wn.2d at455-56. The period ofpremeditation required for first degree murder may be short. But the very existence ofa lesser degree "intentional" crime andthe legislature's definition of 12No. 2971O-l-III 

### State 

### v. Condon premeditation as requiring "morethan a moment in point oftime/'RCW 9A.32.020 and .030, makes clear that more is required to provepremeditation than simply that the defendant first formed the intent to commitmurder and then acted upon it. Our Supreme Court has defined premeditation as 

### "'deliberate/ormation oland reflection upon the intent to take a human life [that] involves the mentalprocess of

### thinking beforehand, deliberation, reflection, weighing or reasoning/or aperiodo/time, however short.'" 

### Gregory, 158 Wn.2d at 817 (emphasis added) (alteration in original) (quoting 

### State v. 

### Hoffman, 116 Wn.2d 51,82-83,804 P.2d 577 (1991». In section I, weviewed the evidence in a light most favorable to the State for sufficiency ofevidence purposes and readily determined that the evidencepresentedby the State was enough to supportpremeditation. Butthe evidence in this case-'some conflicting-could support a number ofconclusions. Here, viewing the evidence in a light most favorable to Mr. Condon, wejust as readily determine that it could support a verdict ofsecond degree murder to the exclusion ofpremeditated murder. Ajurycould conclude from the testimony ofthe eyewitnesses thatMr. Condon shot Mr. Ramirez in reaction to Mr. Ramirez trying to wrest the handgun from him, orthathe shotMr. Ramirez becauseMr. Lozano was turning purple from Mr. Ramirez's chokehold. This affirmative evidence suggesting thatMr. Condon acted intentionally, but impulsively, would not support the element ofpremeditationrequired for first degree premeditated murder. It'''wouldpermit ajuryto rationally find [the] defendant guilty ofthe lesser 

### 13No. 29710-1-111 State v. Condon
offense and acquit him ofthe greater.'" Fernandez-Medina, 141 Wn.2d at 456 (quoting State v. Warden, 133 Wn.2d 559, 563, 947 P.2d 708 (1997)). The State argues that Mr. Condon did not defend on the basis that he was concerned about being disarmed or about Mr. Ramirez's chokehold on Mr. Lozano, however; it argues "[t]he defense theory was simply that the State had notproven its case against him." Br. ofResp't at 15. But this is theprecise point addressed and rejected in Fernandez-Medina. There, the defendant claimed an alibi, yetrequested an instruction that ifhe committed assault, it was only second degree assault. The Supreme Court embracedthe reasoning ofState 

### v. McClam, 69 Wn. App. 885, 850 P.2d 1377 (1993) that defendants can present inconsistent defenses. InMcClam, as here, the defendant relied
on affirmative evidence presented by the State, nothim, thattended to support a lesser offense. The trial court is to view 

### "all ofthe evidence that is presented at trial" in the light most favorable to the defendant's request for the instruction. Fernandez-Medina, 141 Wn.2d at456 (emphasis added). Itwas error, then, for the trial courtto refuse Mr. Condon'srequest for the instruction. But the error does not require reversal ifit was harmless. The error was not prejudicial unless, within reasonable probabilities, had the errornot occurred, the outcome ofthe trial would have been materially affected. Southerland, 109 Wn.2d at 391.

14No. 29710-1-111 State v. Condon Washington courts have found the failure to instruct on a lesser degree offense to be harmless in only those cases where other verdicts returned by the samejury demonstrate thejury's implicitrejection ofthe lesser degree offense. For instance, where

ajury rejects an intermediate degree offense; it is valid to infer that it would have rejected other, even lesser degree offenses. See State v. Guilliot, 106 Wn. App. 355,22 P.3d 1266 (2001); State 

### v. Hansen, 46 Wn. App. 292, 730 P.2d 706, 737 P.2d 670 (1986). Otherwise, Washington decisions appear to subscribe to the view that "asthe law gives the defendant the unqualified right to have the inferior degree passed upon by thejury, it is notwitFiin the province ofthe court to say thatthe defendant was not prejudicedby the refusal ofthe court to submit that phase ofthe case to thejury, orto speculate upon probable results in the absence ofsuch instructions." State 

### v. Parker, 102 Wn.2d 161,163-64,683 P.2d 189 (1984) (quotingState 

### v. Young, 22 Wash. 273, 276, 60 P. 650 (1900)). The State argues that thejury'sreturning a verdict ofguilty ofpremeditated murder rather than felony murder makes this case like Guilliot andHansen. We disagree. The instructions given with respect to those two crimes did not draw thejury's attention to the difference between premeditation and intent, as instruction on second degree murderwould have. Consider the State's closing argument: Now, what does premeditation mean? Is this some multi-weekplan or days or even hours? No, not necessarily. Premeditated means thought over beforehand. When a person, after any deliberation; I'mtalking about Instruction No. 10, forms intent totake a human life, the killing may follow

15No. 29710-1-III State 

### v. Condon immediately after the formation ofthe settled purpose and it will still be premeditated. RP at 1134. We cannot say that thejury implicitly rejected thepossibility that Mr. Condon's shooting was intentional but impulsive rather thanpremeditated. Its attention

was not effectively drawn to the distinction. Ifgiven the option, thejury might have found Mr. Condon's actions to be intentional but impulsive rather than premeditated. We cannot conclude thatthe error
was harmless. One can, however, fairly infer from thejury's conviction ofMr. Condon for first degree murder, first degree burglary andpossession ofa firearm, that 

### itwouldhave convictedhim ofthe alternative crime offirst degree felony murder charged in count one. Butthejury was instructed that it need not return a verdict on the felony murder charge if it found Mr. Condon guilty offirst degree premeditated murder. As a result, it did not complete a verdict form for felony murder. Conviction offirst degree felony murder at the trial below, or in a future trial, wouldnot subjectMr. Condontothe mandatory minimum sentence oflife inprison without the possibility ofparole presentedby the aggravated first degree murder charge. We must, therefore, reverse the conviction offirst degree aggravated murder and remand for a retrial ofthe murder charges.

16No. 29710-1-III 

### State v. 

### Condon

Because the instructional error does not affect Mr. Condon's convictions offirst degree burglary and unlawful possession ofa firearm, we tum to his remaining assignments oferror. 

### III Mr. Condon next argues that evidence ofMs. Gregorio's pretrial identification of him should have been suppressed and her in-court identification excluded because her initial identification was tainted by an impermissibly suggestive lineup. Heplaces principal reliance on the fact that the lineup tookplace afterMs. Gregorio had attended two courthearings at which she sawhim and that she may also have seen him on television news. Br. ofAppellant at 25-26. He argues several reliability issues as additional reasons for suppressing the evidence. Mr. Condon filed his opening briefand assigned error before the United States Supreme Court's decision in

### Perry v. 

### New Hampshire,

_ U.S. _, 132 S. Ct. 716, 181 

### L. Ed. 2d 694 (2012). The parties completed theirbriefing before this court decided 

### State 

### v. Sanchez, 171 Wn. App. 518, 288 P.3d351 

### (2012),petitionjorreviewjiled, No. 88603-2 (Wash. Mar. 27,2013), and the Washington Supreme Court decided 

### State 

### v. Allen,_ Wn.2d _,294 P.3d 679 (2013). Mr. Condon's arguments cannot succeed in light ofthe three decisions' holdings addressing the limited situations in which the due process clause requires excluding eyewitness identification evidence.

17No. 29710-1-111 

### State 

### v. Condon
The decisions establish that the United States Constitution"'protects a defendant against a conviction based on evidence ofquestionable reliability[, notbyprohibiting introduction ofthe evidence, but] by affording the defendant means to persuade thejury that the evidence should be discounted as unworthy ofcredit.'" 

### Allen, 294 P.3d at 685 (quoting

### Perry, 132 S. Ct. at 723). Constitutional safeguards available to defendants to counterthe State's evidence include the Sixth Amendment rights to counsel, compulsory process, and confrontation plus cross-examination ofwitnesses. Apart from these guarantees, state and federal statutes and rules ordinarily governthe admissibility of evidence, andjuries are assigned the task ofdetermining the reliability ofthe evidence presented at trial. 

### Perry, 132 S. Ct. at 723. Forthe exclusion ofeyewitness identification to be required by the due process clause, the unnecessarily suggestive circumstances ofthe identification must have been arranged by law enforcement. 

### Sanchez, 171 Wn. App. at 573. The due process clause does not require ajudicial inquiry into identifications whose reliability is in doubt for otherreasons. 

### Perry, 132 S. Ct. at 730. Moreover, "dueprocess concerns arise only when law enforcement officers use an identificationprocedure that is both suggestive and unnecessary." 

### ld. at 724 (citing

### Mansonv. Brathwaite, 432 U.S. 98,107,109,112-13,97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977». With this limitation and standard in mind, we review a trial court's decision on whetherto admit an out-of-court identification for abuse ofdiscretion. 

### State v. 

### Kinard, 18No. 29710-1-111 State 

### v. Condon
109 Wn. App. 428, 432, 36 P.3d 573 (2001); State v. Birch, 151 Wn. App. 504, 514,213 P.3d 63 (2009). A trial court abuses its discretion when its decision is manifestly unreasonable orbased on untenable grounds. State v. Neal, 144 Wn.2d 600,609,30 P.3d 1255 (2001). Consideration ofa challenge to an out-of-court lineup identification involves two steps. State v. Ramires, 109 Wn. App. 749, 761, 37 P.3d 343 (2002). First, the defendant must showthe lineupprocedure was impermissibly suggestive. Id. Ifit is, then the court considers the reliability factors set forth inNeil

### v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375,34 

### L. Ed. 2d401 (1972), which can overcomethe corrupting effect ofthe suggestive identificationprocedure. Sanchez, 171 Wn. App. at 573. Ifthe defendant does not meetthe initial burden ofdemonstrating that the lineup was impermissibly suggestive, the inquiry ends. Ramires, 109 Wn. App. at 761. Mr. Condon claims that Ms. Gregorio's identification at the lineup was impermissibly suggestive because ittookplace after she attended two ofhis court hearings and possibly sawhim ontelevision. These circumstances were not arranged by lawenforcement. Whether her familiarity with Mr. Condon from having seen him in court cast doubt on her identification was therefore a matter for cross-examination, not suppression. As to the circumstances ofthe lineup itself, Mr. Condon has not identified aspects ofthe lineup that were both suggestive and unnecessary. Detective Jackson's explanation 19No. 29710-1-III State 

### v. Condon
ofhis difficulty in enlistingparticipants sharing more similarities with Mr. Condon stands unchallenged. In denying the suppression motion, the trial court commented on the testimony ofthe defense expert, Dr. Loftus, who acknowledged that the State had taken

some affirmative steps helpful to the reliability ofthe lineup, such as providing the participants with similar clothing and covering their necks in order to obscureMr. Condon's distinctive tattoo. Havingreviewed pictures oftheparticipants in the lineup, the trial court observed they were "remarkably similar in manyregards." RP at 382. BecauseMr. Condonhas not demonstrated thatthe State created an unduly suggestive lineup procedure, we need not consider the Biggers factors. 

### IV Mr. Condon next argues that the trial court abused its discretion by excluding the testimony ofDr. Loftus. The trial court's decision to exclude the evidence was informed inpartby Dr. Loftus's live testimony at the suppression hearing, during which Dr. Loftus summarized andpreviewedthe opinions to which he expected to testify at trial. Atthe suppression hearing, Dr. Loftus testified concerning what studies have revealed about how memories ofa complex event form and persist. His principal point,

as 

### itrelated to eyewitness identification in legal proceedings, was that given the manner in which memories are formed and refined, a witness may have a memory that seems real and in which the witness has great confidence butthat has become less accurate over time. This is especially true ifpostevent information is provided. 20

### No. 2971O-I-II1 State 

### v. Condon

Dr. Loftus also testified to what he perceived to be three shortcomings ofthe lineup conducted by DetectiveJackson, based on his understanding ofthe procedure and photographs he had received ofthe sixparticipants, both individually, and as they appeared at the lineup. His criticisms ofthe lineup were that (1) it was not double-blind, (2) it was not sequential, and (3) Mr. Condon was the tallestparticipant in the lineup. 

### Mr. Condon's height was a concern because Dr. Loftus understood that in originally describing the shooter, Ms. Gregorio emphasized that he was tall but was unable to recall details ofhis face. Because she had focused on his height, she would be inclined to identify a participant who was tall. The trial court also relied upon the testimony ofDetective Jacksonpresented atthe suppression hearing. Detective Jackson testified that at the time ofthe lineup Ms. Gregorio initially stepped into the back ofthe viewing room; that he encouraged her to get closer to the mirror so that she could see all sixparticipants; and thatwithin about 10 seconds ofstepping closer, she pointed to Mr. Condon and told the interpreterwho
was present that he was the man who was in the house that night. After she made the identification, Mr. Condon's lawyer and his investigator questioned her abouthow certain she was, in response to which she stated that she could notbe 100 percent sure but that she was pretty sure and that she recognized him from his face. The detective acknowledgedthat Ms. Gregorio had always described the shooter
as quite tall and that, at 6 feet 2 inches, Mr. Condon was the tallestparticipant in the 

### 21No. 2971O-1-III State 

### v. Condon lineup. In defense ofthe lineup, however, he testified that while he had not achieved his goal ofincluding only participants who were 6 feet tall or taller, he had been able to include someparticipants who were 6 feet tall. He also testified that Ms. Gregorio is only 4 feet 11 inches and that many people are tall comparedto her. A defendant in a criminal case has a constitutional right to presentthe testimony of witnesses in orderto establish a defense. State v. Cheatam, 150 Wn.2d 626,648, 81 P.3d 830 (2003). Our Supreme Court held in Cheatam that when eyewitness identification is a key element ofthe State's case, the trial court must carefully considerwhether expert testimony on the reliability ofeyewitness identification evidence would assist thejury in assessing the reliability ofeyewitness testimony. Id. at 649; see also State 

### v. Allen, 161 Wn. App. 727, 741, 255 P.3d 784, aff'd, 294 P.3d 679 (2011). The admission ofexpert testimony on the reliability ofeyewitness identification is still withinthe discretion ofthe trial court, though, and will only be reversed ifthe court abuses that discretion. State 

### v. Cae, 109 Wn.2d 832, 844, 750 P.2d 208 (1988). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. Neal, 144 Wn.2d at 609.The eyewitness testimony below was not key inthe sense that it was in Cheatam, in whichthe evidence against the defendant was only the rape victim's identification and

a forensic expert's testimony to an inconclusive visual match between the defendant's shoe and a photograph ofa footprint at the scene ofthe crime. Here, the State presented 22No. 29710-I-III State 

### v. Condon
Mr. Lozano's testimony that Mr. Condon was his partner inthe crime and the shooter. It also presented evidence ofMr. Condon's admissions to ajailhouse informant and recorded conversations betweenMr. Condon and his girl friend in which he made statements that could be understood as inculpatory. Cross-racial identification was not identified by Dr. Loftus as a concern and the trial court commented that he did notrealize 

### Mr. Condonwas Native American until he was told. RP at 382. The trial court concluded that Mr. Condonwould be able to explore the weaknesses in Ms. Gregorio's identification through cross-examination and that expert testimony discreditingthis single aspect ofthe evidence would not be helpful and could be confusing to thejury. Mr. Condon thereafterdid engage in extensive crossexamination ofMs. Gregorio and Detective Jackson concerning her identification and challenged heridentification in closing argument. Ifthe relevance orhelpfulness of expert testimony is debatable, atrial court's decision to exclude it will be upheld. Cheatam, 150 Wn.2d at 652. While anothertrial courtmighthave admitted Dr. Loftus's testimony, we cannot say that thetrial court abused its discretion in excluding it. 

# v Mr. Condon next complains ofprosecutorial misconduct, citing the prosecutor's representation that the Statehad an unusual amount ofevidence againstMr. Condon and the theme ofthe prosecutor's rebuttal argument maligning defense counsel.

23No. 29710-1-111 State 

### v. Condon
A defendant claiming to have been denied a fair trial as a result ofprosecutorial misconduct bears the burden ofestablishing that the prosecutor's misconduct was both improper and prejudicial. State v. Finch, 137 Wn.2d 792, 839,975 P.2d 967 (1999). A defendant's failure to object to a prosecutor's improper remark constitutes a waiver, unless the remark was so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been cured by an instruction to thejury. Gregory, 158 Wn.2d at 841. Mr. Condon did not object to theprosecutor's comment suggesting a surplus of evidence against him. The statement was in reply to Mr. Condon's closing argument, which had emphasized, among other matters, the dearth offorensic evidence andthe fact that Jesus Ramirez and his cousinhad not identified Mr. Condon. Early in his rebuttal, the prosecutor said, "The State doesn't have much? Ifonly the State had this much evidence in all ofour cases." RP at 1153. After recapping its evidence, the prosecutor repeated, "[I]fonly the State had so much evidence in all ofour cases." Id. at 1154. 

### Itis misconduct for a prosecutor to suggestthat evidence notpresented attrial provides additional grounds for finding a defendant guilty, State 

### v. Russell, 125 Wn.2d 24,87,882 P.2d 747 (1994). A similarproblem is presented here, with a prosecutor suggesting that the State's case is strongerthan most, because thejury is invited to trust the prosecutor'sknowledge rather than evidence that thejurycan assess for itself. An opinion ofthe sort expressed here is less problematic than implying to thejurythat 24No. 2971O-I-III State 

### v. Condon
additional evidence exists againstthe defendant who is ontrial, which thejuryhas not seen, however. Ajury is unlikely to view the sortofopinion expressed by the prosecutor in this case as relevant to its task. Theprosecutor's statements are also less ofa concern given the context in which they were made. Theprosecutorwas responding to the defense argument inventorying all ofthe evidence the State did notpursue orhad not found. And defense counsel conveyed one comparison ofhis own, arguing, We have a shoeprint, we have photographs ont; butnobody does anything with it. We don'ttake the door offand haul it down to the sheriff's department, whichI have seen done in thepast. We don'ttake better photographs; they're two there, they're not terrible photographs. But the simplepoint is we don'tdo anything with what wehave. 

### RP at 1142 (emphasis added). Theprosecutor, as an advocate, is entitled to make a fair response to the arguments ofdefense counsel. Russell, 125 Wn.2d at 87. A prosecutor's remarks mustbe examined within the context ofthe trial to determine the probable effectthey wouldhave onthe jury's ability tojudgethe evidence fairly and, "[i]n this context, defense counsel's conduct, as well as the nature ofthe prosecutor's response, is relevant." UnitedStates 

### v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038,84L. Ed. 2d 1 (1985). Given the fleeting nature ofthe prosecutor's statements, considering them in light ofthe preceding argument bythe defense, and mindful ofthe court's instructions, we are confidentthatthey did not interfere with thejury's ability tojudgethe evidence fairly. 25No. 2971O-1-III State 

### v. Condon
Mr. Condon's second allegation ofmisconduct presents a more serious problem. The prosecutor's rebuttal argument was, indeed, organized as a primer forjurors on truthdistorting tactics ofdefense lawyers-whathe characterized as "Defense 101." RP at 1154. He suggested that here, as in other cases, defense lawyers "distract from the evidence," "[c]reateresentment toward the police," "[c]onfusethe witnesses," "[ c]onfuse the law," and "impugn thepolice" by either treating them as "jackbooted thug liars" or "really nice and theyjustdidn't get thejob done
... keystone cops." RP at 1154-57. The prosecutor drew Mr. Condon's objection when he argued, while describing defense counsel's cross-examination ofMs. Gregorio, "And confusingthe witnesses-didyou
see the trick that [defense counsell-itwas actually quite skillful." Id. at 1156. "It is improper for the prosecutor to disparagingly comment on defense counsel's role orimpugnthe defense lawyer's integrity." State 

### v. Thorgerson, 172 Wn.2d 438, 451, 258 

### P.3d 43 (2011). In Thorgerson, the Supreme Court unanimously condemned a prosecutor's arguments that "'[t]he entire defense is sl[e]ight ofhand. Look over here, but don'tpay attention there
....Look at everything except what matters.'" Id. (second alteration in original). It held thatthe argument "wentbeyond the bounds ofacceptable behavior," and, inasmuch as the argument was planned in advance, was ill-intentioned misconduct. 2 Id. at 452. In State 

### v. Warren, 165 Wn.2d 17,29,195 P.3d 940 (2008), the

2 The members ofthe court were divided onwhether the misconduct required reversal. The dissent, which believed reversal was required, observedthat '" [s]leight of 26No. 29710-1-III State 

### v. Condon

courtheld that it was misconduct for a prosecutorto describe defense counsel's argument
as '" an example ofwhatpeople go through in a criminaljustice system when they deal with defense attorneys'" and as a '" classic example oftaking these facts and completely twisting them to their own benefit, and hoping that you are not smart enough to figure out what in fact they are doing.'" In State v. Gonzales, III Wn. App. 276, 283-84,45 P.3d 205 (2002), the court strongly criticized aprosecutor's argument that unlike defense attorneys, prosecutors take an oath to '" see thatjustice is served.'" In light ofthese and otherprecedents, it is hard to imagine that the prosecutor did notrecognize thathis "Defense 101" theme was improper. Thepoints thathe then made about the evidence were a fair response to the arguments ofdefense counsel. But it was unquestionably misconductto introduce each ofhis points with a theme disparaging defense lawyers as, e.g., "distracting from the evidence," "confusing the facts," or "confusing the law." Where a defendant timely objects to prosecutorial misconduct, reversal is required ifthe appellate court determines there is a substantial likelihood the misconduct affected thejury'sverdict. Gregory, 158 Wn.2d at 841. Where the defendant not only objects but
moves for a mistrial, "we give deference to the trial court's ruling because it is in thebest positionto evaluate whethertheprosecutor's commentprejudiced the defendant." Id.
hand' implies trickery or wrongdoing and can be interpreted as an attack on counsel rather than on counsel's arguments." 172 Wn.2d at 466 (Chambers, J., dissenting). 27No. 2971O-1-III State 

### v. Condon
"The trial court should grant a mistrial only whenthe defendanthas been so prejudiced that nothing short ofa new trial can ensure thatthe defendant will be fairly tried." State

v. Emery, 174 Wn.2d 741, 765,278 P.3d 653 (2012). Whenreviewing a trial court's denial ofa mistrial for abuse ofdiscretion, abuse will be found only when no reasonable judge would have reached the same conclusion. 

### ld. This was a seven-day trial. Mr. Condon's lawyer's conductduring the trial was professional and effective and his closing argument was well-organized and measured. It is unlikely that the prosecutor's ill-considered comments would outweigh the impression thejuryhad already formed ofdefense counsel. Thetrial court had also instructed the jurors before closing arguments that "[t]he lawyers' remarks, statements and arguments
are intended to help youunderstand the evidence and apply the law
.... Youmust disregard any remark, statement or argument that is not supportedby the evidence or the law in my instructions." 

### RP at 1102-03. The trial courtwas in the bestpositionto assess any prejudice. While it should have sustained the objection to the prosecutor's disparagingremarks, we do not doubt its judgmentthatMr. Condon was notprejudiced. VI Mr. Condon next argues that he received ineffective assistance ofcounsel because his lawyer failed to object to the admission ofMr. Lozano's unredacted recorded interview from March 2009 as substantive evidence and failed to seek an instruction 28No. 2971O-1-III 

### State 

### v. Condon limiting thejury's use ofthe evidence to its properpurpose. The 55-minuterecorded interview included allegations thatMr. Condon belongedto a gang and frequently used illegal drugs. The Sixth Amendment and article I, section 22 ofthe Washington State Constitution guarantee the right to counsel. Toprevail on his ineffective assistance claim, 

### Mr. Condon must showboththat "counsel'srepresentation fell below an objective standard ofreasonableness,"

### Stricklandv. 

### Washington, 466 U.S. 668,688, 104 S. Ct. 2052,80 

### L. Ed. 2d 674 (1984), and thatthere is a "reasonableprobability that, but for counsel's unprofessional errors, the result ofthe proceeding wouldhave been different," 

### id. at 694. A claim for ineffective assistance presents a mixedquestion oflaw and fact, which appellate courts review de novo. 

### State 

### v. Cross, 156 Wn.2d 580, 605, 132 P.3d 80 (2006). Thevideorecording was offered and admitted after Mr. Condon's lawyer established in cross-examiningMr. Lozanothat he had not originally named

### Mr. Condon

as his partner in the crime and suggested that Mr. Lozano fabricated Mr. Condon's involvement as the shooter in orderto obtain lenienttreatment. The challenge toMr. Lozano's testimony was exemplifiedby the following cross-examination: Q.
. .. Forthe'past twenty-four months you have been held in custody correct? Or, I'm sorry, twenty-two months? A. Yes.

29No. 

### 2971O-1-III State 

### v. Condon Q. And throughoutthe pendency ofthattimeyou have consistently denied that Mr. Condon was in any way involved in this incident haven't you? A. Yes. Q. Now, approximately eight days ago when you were four days away from commencing trial you elected to contactthe authorities and give a statementcorrect? A. Yes. RP at 818-19. After questioning Mr. Lozano abouttheplea agreement he had reached with the State, defense counsel continued: Q. So you have a substantial reason to testify today andtell us all of these stories? A. Not stories. It's whathappened. Q. Okay. It's quite easy to pointthe finger at someone else isn't it? A. Yeah. Q. Now you were only able toprovide a vague description ofthis person to Detective Jackson correct? In your statement on March 

### 10th? A. Yeah. Q. Tall, skinny, maybe Native American? A. Yeah. Q. And that-tall, skinny and tattoos-okay. Tall, skinny andtattoos. That is a description that would fit most oftheplayers on a local basketball team, isn'tit? A. I wouldn't know. Q. Now youknew you were goingtotestify today correct? A. Yes. Q. And you havepracticedyour testimony correct?
. A. No. Q. No? And you have not reviewed it in any way? A. Testimony? Q. Yeah. Rehearsed it? A. No.

30No. 29710-1-III State 

### v. Condon 

### Q. Now twice during the interview Detective Jackson asked you for the gentleman's name thatyou were with and neither time you could give it to him correct? A. Yes. Q. But later after all the media exposure, three months later you were able to provide a name? Isn'tthat true? A. Yes. RP at 820-22. After this cross-examination, the next witness called by the State was Detective Jackson, for the purpose ofidentifying and offering the State's video recording ofhis March 10 interview ofMr. Lozano. The State'sposition was that contrary to the implication ofthe cross-examination, Mr. Lozano's original statementwas "remarkably consistent" with his trial testimony. RP at 834. Anticipating thatMr. Condon would object to the video recording as hearsay, the State argued that the recording was not hearsay becauseMr. Lozano had testified at trial, was subject to cross-examination concerning the statement, and the statement was "consistentwith the declarant's testimony and is offered to rebut an express orimplied charge against the declarant of recent fabrication orimproper influence or motive." ER 801(d)(1)(ii). On appeal, Mr. Condon argues that his lawyer was confused aboutthe statement's hearsay status and therefore objected ineffectively; that he failed to argue, as he should have, that Mr. Lozano had always had an incentive to lie; thathe should have argued for exclusion ofmuch ofthe recording, which wasunduly prejudicial; and that he should have asked for a limiting instruction. We disagree. Review ofthe record reveals that Mr. 31No. 29710-1-III State 

### v. Condon
Condon's trial lawyer understood the probable admissibility ofthe recording and had tactical reasons for allowing the entire recordingto beplayed. First, Mr. Condon is wrong in arguing that a limiting instruction would have been appropriate. A prior consistent statement admissible under ER 801(d)(1 )(ii) is admissible

as substantive evidence ifnot objectionable on other grounds. State v. Walker, 38 Wn. App. 841, 844,690 P.2d 1182 (1984); Tome 

### v. UnitedStates, 513 U.S. 150, 157, 115 S. Ct. 696, 130 

### L. Ed. 2d 574 (1995) (observing that equivalent statements are nonhearsay and admissible as substantive evidence under Fed. R. Evid. 80l(d)(1)(B)). Second, the arguments on appeal misperceive the trial lawyer's position on the hearsay status ofthe evidence. When the lawyer stated that the prosecutor "is saying that I am going to say thatthe-video and audio ofthe interview is hearsay and I-andI am supposedly objectingto it on that basis," 

### RP at 829 (emphasis added), we do not understand him to have been confused about his own objection. Rather, theprosecutor had assumed in offeringthe evidence that Mr. Condon would object to the recording as hearsay and, based on that assumption, he preemptively offered ER 80 1 (d)(1)(ii) as an exemption authorizing admission ofthe evidence. The prosecutor assumed wrong. When we review the arguments in the trial court as a whole, it appears that Mr. Condon's lawyer always recognized that the recording was not hearsay ifoffered to rebut a claim of recent fabrication, hence his commentthat he was "supposedly" objecting to the evidence

as hearsay. 32No. 2971O-1-III State 

### v. Condon Third, the argument that Mr. Lozano had a motive to lie at the time ofhis initial interview by Detective Jackson on March 10 ignores the fact that he had a different motiveto lie shortly before trial, when he contacted the State and offered to testify against Mr. Condon. There was substantial evidence that atthe time ofhis initial interview, Mr. Lozano did notrealize that he couldbe charged with anything as serious

as murder for his unarmed participation in an unsuccessful robbery. Towardthe end of the interview, the detective explained felony**murder~** This argument on appeal as to why the ER 801(d)(1)(ii) exemption did not apply is not persuasive and it was not ineffective assistance for the trial lawyer not toraise the argument below. We view the trial lawyer's decision notto request redaction oftherecording as tactical. Itis fair to say that casting doubt on Mr. Lozano's credibility was the lawyer's most important task in defending Mr. Condon. Thejurycouldbelieve that Ms. Gregorio

was truthful and yet still question the reliability ofher identification. Ifthejurybelieved that Mr. Lozano was truthful, though, anything Mr. Lozano might have said about drug

use or gang affiliation wouldbe the least ofMr. Condon's problems-the State'smurder charge would be effectively proved. As the trial court said to Mr. Condon's lawyer when admission ofthe recording was being argued, "I think you've raisedthe issue [of fabrication] and I-frankly-I don'tknow how you-you would have avoided it. I mean, you hadto raise the issue." RP at 834 (emphasis added).

33No. 29710-1-111 State 

### v. Condon
Had defense counsel moved to exclude any ofthe recording, he would have been least successful in excluding statements about Wak-Wak. 

### It was those statements that were, after all, the rationale for admitting the recording. And so long as Mr. Lozano's statements about Wak-Wak were going to come in, a reasonable trial lawyer could conclude that it might as well be in the context ofthe entire recording rather than in a pared-down form that would emphasize Mr. Lozano's consistent statements. Especially given the importance ofdiscrediting Mr. Lozano and this particular recording, which trial counsel described as follows: [T]he performance ofMr. PadillaLozano on his interview with Detective Jackson is at times utterly incoherent, bizarre, pointless, rambling and 1 think the detective was even having trouble getting himto stay onpoint. 1 mean it's
...

. . . every otherword is F - and you know, you get a headache listening to itbecause it's so incoherent. RP at 836. Mr. Condon has not demonstrated any performance or omission byhis trial lawyer that fell below an objective standard ofreasonableness. We therefore need not address whether, but for the asserted unprofessional errors, the result oftheproceeding would have been different.

34No. 2971O-1-III State v. Condon
VII Mr. Condon next argues that the accomplice liability statute, RCW 9A.08.020, is unconstitutionally overbroadbecause itcriminalizes speech and conductprotected by the First Amendment. UnderRCW 9A.OB.020(3)(a)(ii), one may be convicted as an accomplice ifhe, acting "[ wlith knowledge that it will promote or facilitate the commission ofthe crime, he or she
... [a]ids or agrees to aid such other person in planning or committing it.,,3 The statute does not define "aid"but Washington decisions have long accepted the pattern jury instruction's definition of"aid." Itfirst appeared in Washington cases in the instruction cited in State v. McKeown, 23 Wn. App. 582, 591, 596 P.2d 1100 (1979): "The word'aid' means all assistance whether given by words, acts, encouragement, support or presence. A person who is present at the scene and is ready to assistby his orher presence is aiding in the commission of the crime." The definition appears to be unique to the Washington statute. "The First Amendment, applicable to the States through the Fourteenth Amendment, provides that 'Congress shall make no law
... abridging the freedom of speech.'" Virginia v. Black, 538 U.S. 343,358, 123 S. Ct. 1536, 1551. Ed. 2d 535 (2003) (alteration in original). A state criminal law "may be invalidated as overbroad if

3We quote the currentversion ofRCW 9A.08.020, which was amendedby Laws of2011, chapter 336, section 351 to make the language gender neutral. 35No. 29710-1-III State 

### v. Condon
'asubstantial number ofits applications are unconstitutional,judged in relation to the statute'splainly legitimate sweep.'" UnitedStates v. Stevens, 559 U.S. 460, 130 S. Ct. 1577, 1587, 176 L. Ed. 2d 435 (2010) (quoting Wash. State Grange 

### v. Wash. State Republican Party, 552 U.S. 442,449n.6, 128 S. Ct. 1184, 170 L. Ed. 2d 151 (2008)). Mr. Condon relies onBrandenburg

### v. Ohio, 395 U.S. 444, 447,89 S. Ct. 1827,23 L. Ed. 2d 430 (1969), inwhich the United States Supreme Court held that "the constitutional guarantees offree speech and free press do notpermit a State to forbid or proscribe advocacy ofthe use offorce or oflaw violation except where such advocacy is directed to inciting orproducing imminent lawless action and is likely to incite or produce such action." He argues that the accomplice liability statute runs afoul ofthe FirstAmendment by criminalizing "aid" or "agreementto aid," defining it to include pure speech, and then failing to limit the speech that it criminalizes to speech directedto inciting orproducing imminent lawless action. Divisions One and Two ofour courthave rejected this same First Amendment challenge to the accomplice liability statute. In State 

### v. Coleman, 155 Wn. App. 951, 960-61,231 P.3d 212 (2010), Division One relied on the mens rearequirement imposed by the statute, likening it tothe pedestrian interference ordinance that our Supreme Court concluded was not overbroad in City of Seattle 

### v. Webster, 115 Wn.2d 635,802 P.2d 1333 (1990). In State 

### v. Ferguson, 164 Wn. App. 370, 376,264PJd 575 (2011), Division Two adopted the Coleman analysis, adding that the statute's language forbids 36No. 297l0-l-III State 

### v. Condon only advocacy directed at and likely to incite orproduce imminent lawless action, thereby conforming to Brandenburg's limitations. Mr. Condon argues that we should reject Coleman and Ferguson as wrongly decided because they erroneously rely on cases involving conduct, whereas the act of "aiding" can involve pure speech. He also argues thatthe decisions rely for constitutionality onthe mens rearequired for criminal liability, which, he argues, is insufficient in and ofitselfto avoid First Amendment problems. Justice Utter observed in Webster that specific intent does not always save ordinances from overbreadth challenges. 115 Wn.2d at 648 (Utter, J., concurring in part and dissenting in part). InMcCoy 

### v. Stewart, 282 F.3d 626 (9th Cir.), cert. denied, 537 U.S. 993, 123 S. Ct. 468, 154 L. Ed. 2d 361 (2002), the Ninth Circuit granted habeas reliefto aprisoner serving time under an Arizona statute that made 

### it a crime to participate in a criminal syndicate, rejecting the reasoning ofthe Arizona appellate courts that the statute survived First Amendment attackbecause it required proofofintentto promote or further the criminal objectives ofa criminal syndicate. Summarizing Brandenburg, Hess 

### v. Indiana, 414 U.S. 105,94 S. Ct. 326,38 L. Ed. 2d 303 (1973), and other decisions, the Ninth Circuit observed that "timing is crucial, because speech must incite imminent lawless action to be constitutionally proscribable," "a state cannot constitutionally sanction'advocacy ofillegal action at some indefinite future time,'" and

37No. 29710·1-111 State 

### v. Condon 

### [0]ther decisions confirm that speech that advocates, teaches, or justifies lawlessness in an abstract way is fully protected, so long as it is not directed to inciting imminent lawless action. The protection afforded an individual's abstract advocacy oflawlessness endures even ifthe individual hopes that someday such lawlessness may occur. 282 F.3d at 631 & n.5 (quoting Hess, 414 U.S. at 108). Mr. Condon's examples oflawful action falling within the sweep ofthe accomplice liability statute'sprohibitions are "[the] college professor whopraises ongoing acts ofcriminal trespass by Occupy Wall Street protestors," "[the]journalist sent to cover the protest," and "[the] attorney who agrees to represent the protestorspro bono." Br. ofAppellant at 48. The accomplice liability statute has been construed to apply only when the accomplice acts with knowledge ofthe specific crime that is eventually charged, rather than with knowledge ofa different crime or generalized knowledge ofcriminal activity. State v. Cronin, 142 Wn.2d 568, 578-79, 14 P.3d 752 (2000); State v. Roberts, 142 Wn.2d 471,512, 14 P.3d 713 (2000). And the required aid or agreement to aid the other person must be "inplanningor committing [the crime]." Statutes are presumed to be constitutional and whereverpossible '''itis the duty of[the] court to construe a statute so
as to uphold its constitutionality.'" In re Det. of Danforth, 173 Wn.2d 59, 70,264P.3d 783 (2011) (quotingState v. Reyes, 104 Wn.2d 35, 41, 700 P.2d 1155 (1985)). We construe the accessory liability statute to require thatthe accessory have some affirmative and direct connection to the planning and commission ofaparticular crime. Thus read, it 38

### No. 29710-1-111 State 

### v. Condon
does not reach the "mere advocacy" ofa college professor, the visibility provided by a journalist, or comfort or support to the criminal that is unrelated to planning or committing the crime. Brandenburg, on which Mr. Condon so heavily relies, "expressly encompassed nothing more than 'mere advocacy.'" McCoy, 

### 123 S. Ct. at469 (Stevens, 

### J., statement respecting denial ofpetition for writ ofcertiorari). We therefore agree with Divisions One andTwothat that accomplice liability statute is constitutional. 

### VIII Mr. Condon's final assignment oferror was to his offender score. He acknowledges in his reply briefthathe overlooked an acknowledgment ofhis offender

score by his trial lawyer during sentencing proceedings. He makes no further argument. There was no error. We affirm Mr. Condon's convictions offirst degree burglary, unlawful possession ofa firearm, and a firearm enhancement. We reverse his conviction ofaggravated first degree murder on the basis ofthe instructional error and remand for a new trial onthe murder charges.



### 39No. 2971O-1-II1 State 

### v. Condon

A majority ofthe panel has determined that this opinion will notbeprinted inthe Washington Appellate Reports but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR: (\ 

## \ ,

Kulik, J.

40