WPIC 10.51 Accomplice—Definition
11 WAPRAC WPIC 10.51Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 10.51 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part III. Principles of Liability
WPIC CHAPTER 10.50. Liability for Conduct of Another—Complicity
WPIC 10.51 Accomplice—Definition
[A person is guilty of a crime if it is committed by the conduct of another person for which he or she is legally accountable. A person is legally accountable for the conduct of another person when he or she is an accomplice of such other person in the commission of the crime.]
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or
(2) aids or agrees to aid another person in planning or committing the crime.
The word “aid” means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.
[A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.]
NOTE ON USE
Use the first bracketed paragraph in any case in which the defendant is charged as an accomplice. Use the final bracketed paragraph in such cases if it would be helpful to the jury. Do not use the bracketed paragraphs if an accomplice is being defined for the purpose of evaluating the testimony of a witness who may be an accomplice, WPIC 6.05 (Testimony of Accomplice) or for use with WPIC 40.01 (Rape—First Degree—Definition), for example.
Use WPIC 10.02 (Knowledge—Knowingly—Definition) with this instruction.
COMMENT
RCW 9A.08.020.
The statute. In relevant part, RCW 9A.08.020 provides that:
- (1) A person is guilty of a crime if it is committed by the conduct of another person for whom he or she is legally accountable.
- (2) A person is legally accountable for the conduct of another person when:
- …
- (c) he or she is an accomplice of such other person in the commission of the crime.
The statute sets forth two categories of people who are not accomplices. See RCW 9A.08.020(5). An accomplice may be convicted even though the other person is not prosecuted or convicted. RCW 9A.08.020(6).
RCW 46.64.048 is a special aiding and abetting statute for traffic offenses.
Constitutionality. The accomplice liability statute has been upheld in the face of constitutional overbreadth challenges since it penalizes conduct (“planning or committing” a crime) and not pure speech. State v. McPherson, 186 Wn.App. 114, 119–21, 344 P. 3d 1283 (2015); State v. Holcomb, 180 Wn.App. 583, 321 P. 3d 1288 (2014).
Use of statutory language. The current pattern instruction mirrors the statutory language. The Washington Supreme Court has specifically approved of this approach. State v. Hoffman, 116 Wn.2d 51, 102–03, 804 P.2d 577 (1991).
Knowledge of specific crime is required. Accomplice liability attaches only when the accomplice acts with knowledge of the specific crime that is eventually charged, rather than with knowledge of a different crime or generalized knowledge of criminal activity. State v. Carter, 154 Wn.2d 71, 109 P.3d 823 (2005); 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). Accordingly, the instruction must be framed in terms of knowledge of “the” crime being planned or committed rather than knowledge of “a” crime. State v. Carter, 154 Wn.2d 71, 109 P.3d 823 (2005); State v. Roberts, 142 Wn.2d at 510–13.
While an accomplice must have known about the specific crime the principal was going to commit, the defendant “need not have specific knowledge of every element of the crime committed by the principal, provided he has general knowledge of that specific crime.” State v. Roberts, 142 Wn.2d at 512; see State v. Sweet, 138 Wn.2d 466, 980 P.2d 1223 (1999); State v. Johnston, 100 Wn.App. 126, 996 P.2d 629 (2000). The accomplice must know that he or she was facilitating the generic crime. The accomplice need not know that the principal had the culpability required for any particular degree of that crime. For example, a person can be convicted as an accomplice to first degree assault even if the person only knew that he was facilitating a misdemeanor assault. Sarausad v. State, 109 Wn.App. 824, 836, 39 P.3d 308 (2001), affirmed, Waddington v. Sarausad, 555 U.S. 179, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009).
In State v. Mullin-Coston, 115 Wn.App. 679, 64 P.3d 40 (2003), affirmed, 152 Wn.2d 107, 95 P.3d 321 (2004), the defendant claimed that the accomplice instruction was deficient due to the trial court's failure to insert the words “of first-degree murder” after the words “the crime.” The court rejected this claim, holding that
State v. Mullin-Coston, 115 Wn.App. at 691–92.
Under some circumstances, it may be helpful to specify in the instruction the crime to which the defendant was allegedly an accomplice. For example, in an assault case, the instruction's second paragraph might be revised to begin, “A person is an accomplice in the commission of the crime of assault if, with knowledge that ….” Also, the instruction could be supplemented with a new third paragraph, stating: “If the defendant is an accomplice in the crime of assault in any degree, he is deemed to be an accomplice in any other degree of assault.” See discussion of Sarausad, above.
Mere presence not sufficient. Mere presence at the scene of the crime is insufficient to establish accomplice liability. State v. Landon, 69 Wn.App. 83, 848 P.2d 724 (1993); In re Wilson, 91 Wn.2d 487, 491–92, 588 P.2d 1161 (1979). Nor is mere presence combined with assent sufficient, State v. McDaniel, 155 Wn.App. 829, 863, 230 P.3d 245 (2010), nor mere presence combined with knowledge. State v. Truong, 168 Wn.App. 529, 539–40, 277 P. 3d 74 (2012). The pattern instruction appropriately informs the jury that the State must prove more than the defendant was a knowing observer of a crime. State v. Mancilla, 197 Wn.App. 631, 651, 391 P.3d 507.
Deadly weapon cases. An addition to the instruction may be necessary in a case in which the use of a deadly weapon is an element of the crime. In State v. Davis, 101 Wn.2d 654, 682 P.2d 883 (1984), a prosecution for first degree robbery, the court held that the defendant could be convicted of being an accomplice to the crime of first degree robbery without proof that the accomplice knew that the principal was armed with a deadly weapon during the commission of the crime.
In Davis, the Supreme Court affirmed the trial court's decision to add the following language to WPIC 10.51: “When one or more persons act as accomplices … all of them may be deemed armed, even though only one … in fact had a gun.” Similar language is included in WPIC 2.07 (Deadly Weapon—Definition for Sentence Enhancement—Special Verdict—General) et seq., since RCW 9.94A.825 provides for sentence enhancement when “the defendant or an accomplice was armed with a deadly weapon.” See State v. Bilal, 54 Wn.App. 778, 776 P.2d 153 (1989).
Sentencing enhancements. In the absence of statutory language applying an enhancement or aggravator to an accomplice, “a sentencing judge can impose an exceptional sentence on an accomplice only where the accomplice's own conduct informs the aggravating factor.” State v. Hayes, 182 Wn.2d 556, 563–64, 342 P.3d 1144 (2015). See also, State v. Pineda-Pineda, 154 Wn.App. 653, 226 P.3d 164 (2010). In the Hayes case, involving a major economic offense aggravator, the court expressly held that “for aggravating factors that are phrased in relation to ‘the current offense’ to apply to an accomplice, the jury must find that the defendant had some knowledge that informs that factor.” State v. Hayes, 182 Wn.2d at 566. See WPIC Chapter 300 (Exceptional Sentences—Aggravating Circumstances) for further discussion of this topic and accompanying verdict forms.
Aggravated murder. A defendant may be convicted of first degree aggravated murder based solely on an accomplice theory, State v. Mak, 105 Wn.2d 692, 718 P.2d 407 (1986) (overruled in part on other grounds by State v. Hill, 123 Wn.2d 641, 870 P.2d 313 (1994)), but only when the State can prove “major participation by [the] defendant in the acts giving rise to [the] homicide.” State v. Roberts, 142 Wn.2d at 505. Imposing the death penalty merely upon proof of the minimal requirements of the accomplice liability statute would violate the state and federal constitutional protections against cruel and unusual punishment. State v. Roberts, 142 Wn.2d at 502, 505–06.
Relationship of accomplice liability and principal liability. Accomplice liability is not a separate crime; it is predicated on aid to another in commission of a crime, and is, in essence, liability for that crime. State v. Jackson, 87 Wn.App. 801, 944 P.2d 403 (1997), affirmed, 137 Wn.2d 712, 976 P.2d 1229 (1999).
A defendant's status as an accomplice is not an element of the principal crime, and the jury need not be instructed that the State must prove the defendant's accomplice status beyond a reasonable doubt. It is sufficient to instruct the jury on the State's burden of proving the elements of the principal crime and on the definition of an accomplice. State v. Teaford, 31 Wn.App. 496, 644 P.2d 136 (1982). However, it must be shown that the person giving aid shared in the criminal intent and participated in the venture. State v. Boast, 87 Wn.2d 447, 553 P.2d 1322 (1976).
When there was evidence of both accomplice liability and principal liability, it was not error to instruct the jury on both theories. State v. Munden, 81 Wn.App. 192, 913 P.2d 421 (1996). Also, it was not error to insert “or an accomplice” in the definition and elements instructions in a first degree assault case (e.g., “the defendant or an accomplice assaulted [name of victim]”). Although such an instruction would allow the jury to split the elements of the crime between the defendant and another, “such is not an incorrect statement of the law of accomplice liability.” State v. Haack, 88 Wn.App. 423, 958 P.2d 1001 (1997). The Supreme Court has expressly stated “the law of accomplice liability allows the jury to reach a conviction by splitting the elements of premeditated first degree murder between accomplices.” State v. Walker, 182 Wn.2d 463, 483, 341 P.3d 976, cert. denied, 135 S.Ct. 2844 (2015).
Moreover, accomplice liability and principal liability are not alternative means for committing a crime and jury unanimity is not required. State v. Walker, 182 Wn.2d at 484 (2015); State v. Haack, 88 Wn.App. at 428.
This instruction may be given when a defendant is on trial alone and is charged as a principal. State v. Bobenhouse, 166 Wn.2d 881, 891, 214 P.3d 907 (2009).
Inapplicability of other laws. When adopting Washington's accomplice liability statute, legislators deliberately omitted the Model Penal Code's imposition of liability for failure to perform a legal duty to prevent the commission of an offense. It was therefore error to give an instruction that modified WPIC 10.51 to incorporate such a provision. See State v. Jackson, 87 Wn.App. at 809–12. Also, Washington law, by requiring knowledge of a specific crime, is incompatible with the federal Pinkerton doctrine, under which an accomplice can be held liable for reasonably foreseeable acts of a co-conspirator. State v. Stein, 144 Wn.2d 236, 245–46, 27 P.3d 184 (2001).
Termination of accomplice liability. RCW 9A.08.020(5)(b) provides that:
This statute does not create a defense. A jury may be instructed in the language of the statute, over the objections of the defendant, when such an instruction is necessary to properly inform the jury of the law and to allow the parties to argue their theories of the case. State v. Wiebe, 195 Wn.App. 252, 377 P.3d 290 (2016).
[Current as of January 2019.]
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