Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       NO. 64929-9-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
       v.                                   )       PUBLISHED OPINION
                                            )
ROBERT SAQUIL BESABE,                       )
                                            )
                      Appellant.            )       FILED:  March 5, 2012
                                            )

       Leach, A.C.J.  --  Robert Saquil Besabe appeals his convictions for one of

two counts of first degree murder and one count of attempted first degree 

murder.  Primarily, he contends that the first degree murder statute does not 

apply to one victim, a child not born until after Besabe shot the mother.       He also 

claims that the court improperly instructed the jury  and commented on the 

evidence.  Finally, Besabe argues that the court erred by responding to a jury 

question without first consulting defense counsel.        Because we determine the 

status of a murder victim at the time of death and not when the defendant 

commits the homicidal act and find no merit in Besabe's other assignments of 

error, we affirm.   

NO. 64929-9-I / 2

                                        FACTS

       Sometime around January 1982, Eleanor Velasco ended                     a dating 

relationship with Robert Besabe.  Several months later, she  moved in with a 

friend from work, Carolina Montoya.  Besabe felt that Montoya's friendship 

caused Velasco to end their relationship.     In addition, he disapproved of the fact 

that Montoya was carrying a baby fathered by an African American. 

       On the afternoon of August 16, 1982, Montoya picked Velasco up from 

work.  While driving their usual route home, the women saw Besabe standing on 

the side of the road.     Thinking that Besabe might have car trouble, Montoya 

stopped to ask if he needed a ride.  He got into the back seat of Montoya's car 

and gave her driving directions.  After driving for 10 to 15 minutes, Besabe told 

Montoya to stop the car.  Velasco pulled the passenger seat forward to let 

Besabe get out.  Besabe pulled a pistol and shot Montoya once in the head.

Then he fired a shot aimed at Velasco's head and left the vehicle.  Velasco 

thought the shot struck her, but it missed.  

       Paramedics took Montoya to Harborview Medical Center, where doctors 

delivered Baby Boy Montoya by an emergency cesarean section.  Medical 

personnel estimated his gestational age at 30 to 32 weeks.          Baby Boy Montoya 

lived two days before dying of complications from premature birth.1            Carolina 

       1 At trial, in 2008, the retired medical examiner           testified that given 
advances in medical technology, the baby would likely  have survived if the 
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NO. 64929-9-I / 3

Montoya died approximately six weeks later.

       After the shooting, Besabe fled Washington, eventually returning to the 

Philippines where he was born.  In December 2007, the State extradited Besabe

to Washington to stand trial.  A jury convicted him of the first degree murders of 

Carolina and Baby Boy Montoya and first degree attempted murder of Eleanor 

Velasco.  Besabe appeals. 

                                          ANALYSIS

       Besabe raises multiple issues on appeal: (1) whether Baby Boy Montoya 

was a "person"    who could be the victim of first degree murder, (2) whether the 

court should have instructed the jury to decide if Baby Boy Montoya was a 

"person," (3) whether the court commented on the evidence with instructions that 

assumed Baby Boy Montoya was a "person," (4) whether the court incorrectly 

instructed the jury regarding transferred intent, (5) whether the court erred by 

responding to a jury question without consulting counsel, and (6) whether the 

court incorrectly instructed as to the elements of attempted first degree murder. 

       Besabe first contends that Baby Boy Montoya could  not be a murder 

victim because he was not a "person."  A homicide is the killing of a human 

being,  and murder is one of five defined ways to commit a homicide in 

Washington.2     As charged in this case, "[a] person is guilty of murder in the first 

shooting had occurred today.  
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NO. 64929-9-I / 4

degree when [w]ith a premeditated intent to cause the death of another person, 

he or she causes the death of such person or of a third person."3          The criminal 

code does not define "human being" but defines "person" as "any natural person

and, where relevant, a corporation, joint stock association, or an unincorporated 

association."4  It does not provide any definition for "natural person."  Thus, a 

murder victim must be a human being and a natural  person.                Although not 

statutorily defined, in the     context of this analysis these two terms are 

synonymous.  Because Baby Boy Montoya was not born until after Besabe shot 

his mother and died two days later from complications of his premature birth, 

Besabe claims he was not a natural person.  

       The meaning of a statute is a question of law that we review de novo.5  "In 

the absence of a specific statutory definition, words in a statute are given their 

common law or ordinary meaning."6  Additionally, RCW 4.04.010 provides, 

       The common law, so far as it is not inconsistent with the 
       Constitution and laws of the United States, or of the state of 
       Washington nor incompatible with the institutions and condition of 
       society in this state, shall be the rule of decision in all the courts of 
       this state.  

       The common law follows the "born alive" rule that

       2 RCW 9A.32.010.
       3 RCW 9A.32.030(1)(a).
       4 RCW 9A.04.110(17).
       5 Baum v. Burrington, 119 Wn. App. 36, 39, 79 P.3d 456 (2003).
       6 State v. Chester, 133 Wn.2d 15, 22, 940 P.2d 1374 (1997).
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NO. 64929-9-I / 5

       "prescribes that only one who has been born alive can be the 
       victim of homicide.  Causing the death of a fetus, whether viable or 
       not, was not considered homicide at common law.  If, however, the 
       fetus was born and then died of injuries inflicted prior to birth, a 
       prosecution for homicide could be maintained."[7] 

The overwhelming majority of jurisdictions confronted with the prosecution of a 

defendant for conduct harming a pregnant mother, causing the death of the 

subsequently born child, affirm the defendant's conviction.8   No Washington 

criminal case adopts or applies the "born alive" rule.  Following the dictate of 

RCW 4.04.010, we adopt this majority common law rule.  This means that we 

determine whether Baby Boy Montoya was a person as of the time he died, not 

when Besabe shot his mother.

       Uncontroverted evidence established that Baby Boy Montoya was born 

prematurely after the attack on his mother.  He survived for nearly two days.

Therefore, as a matter of law, he was a person for purposes of the first degree 

murder statute.9  

       Besabe relies on State v. Dunn10 to support his argument that the murder 

statute does not apply to harm inflicted on an unborn child.  In Dunn, the State 

charged a mother with second degree criminal mistreatment of her unborn child 

for using cocaine during pregnancy.  Specifically, the State asserted that Dunn 

       7 State v. Courchesne, 296 Conn. 622, 675, 998 A.2d 1 (2010) (quoting 
Commonwealth v. Booth, 564 Pa. 228, 240, 766 A.2d 843 (2001)).
       8 State v. Aiwohi, 109 Haw. 115, 123, 123 P.3d 1210 (2005).  
       9 See Courchesne, 296 Conn. at 675.
       10 82 Wn. App. 122, 916 P.2d 952 (1996).
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NO. 64929-9-I / 6

recklessly disregarded her doctor's warnings, ingested cocaine, and by this 

conduct created an imminent and substantial risk of death or great bodily harm 

to her unborn child.11     The  trial  court dismissed the charge, holding that an

unborn child was not within the class  protected  by the criminal mistreatment 

statute.  Division Three of this court agreed.  After noting that the legislature 

defined "child" as "a person under eighteen years of age,"12 the court stated, "No 

Washington criminal case has ever included 'unborn child'               or fetus in its 

definition of person."13   It  also  observed that when the legislature intends to 

include an unborn child within a class of criminal victims, it specifically includes 

language to indicate a departure from "the typical definition of a child as a 

person from the time of birth to age 18."14  

       Dunn's analysis does not apply here because the criminal mistreatment 

statute differs significantly from the murder statute.  The elements of second 

degree criminal mistreatment of a child include proof that the defendant caused 

substantial bodily harm by withholding the basic necessities of life from a child.  

Thus, the language of the charging statute in Dunn required both that the 

wrongful act be committed against a child and that the child have suffered 

       11 Dunn, 82 Wn. App. at 124-25.
       12 RCW 9A.42.010(3).
       13 Dunn, 82 Wn. App. at 128.
       14 Dunn, 82 Wn. App. 128-29 (emphasis added).
       15 Former RCW 9A.42.030 (1986).
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NO. 64929-9-I / 7

harm.15  Because the victim in Dunn was not a child at the time of the wrongful 

act, the criminal mistreatment statute did not apply.  In contrast, the murder 

statute does not have this dual requirement for the victim.  To commit first 

degree murder, a person, with a premeditated intent to cause the death of 

another person, must cause the death of that person or of a third person.16            In 

other words, the statute defining first degree murder only requires that the victim 

be a person at the time of death and not at the time the defendant commits a 

homicidal act. This is consistent with the common law "born alive" rule.

       Besabe next contends that the trial court should have submitted the 

question of whether Baby Boy Montoya was a person to the jury for decision.           As 

presented in this case, this question is one of law and not one of fact.  Both at 

trial and before this court,     Besabe did not dispute any facts essential to 

determining if Baby Boy Montoya could be a murder victim.  Instead, Besabe has 

always asserted the issue to be whether this is determined as of the time of his 

alleged homicidal act or the time of Baby Boy Montoya's death.  This presents a 

question of law to be decided by the court and not a question of fact to be

decided by a jury.   Therefore, we reject Besabe's contention that the trial court 

should have instructed the jury to decide whether Baby Boy Montoya was a 

person.

       15 Former RCW 9A.42.030 (1986).
       16 RCW 9A.32.030(1)(a).
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NO. 64929-9-I / 8

       Besabe next contends that the trial court commented on the evidence 

when it instructed the jury.  The "to convict" instruction  for the first degree 

murder count for Baby Boy Montoya required proof that "the defendant acted 

with intent to cause the death of Baby Boy Montoya or a third person" and that 

"Baby Boy Montoya died as a result."        Besabe claims that with this instruction 

the court resolved the factual question of whether Baby Boy Montoya was a 

person and prevented the jury from deciding factual questions, "including how he 

was born, what his physical condition was, what caused his death, whether the 

medical examiner reporting on the physical condition at the time of birth was 

accurate and credible."

       Article IV, section 16 of the Washington State Constitution provides, 

"Judges shall not charge juries with respect to matters of fact, nor comment 

thereon, but shall declare the law."         This provision prohibits a judge from 

"conveying to the jury his or her personal attitudes toward the merits of the case"

or instructing a jury that "matters of fact have been established as a matter of 

law."17  The court's personal feelings on an element of the offense need not be 

expressly conveyed; it is sufficient if they are merely implied.18          "Thus, any 

remark that has the potential effect of suggesting that the jury need not consider 

       17 State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997).
       18 State v. Jackman, 156 Wn.2d 736, 744, 132 P.3d 136 (2006).
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NO. 64929-9-I / 9

an element of an offense could qualify as judicial comment."19            Because the 

constitution expressly prohibits any judicial comment on the evidence, a claimed 

error based upon such a comment involves a manifest constitutional error that 

may be challenged for the first time on appeal.20

       The pattern jury instructions for first degree murder permit a court to 

instruct in exactly the manner that the trial court instructed the jury.21       At trial,

Besabe did not dispute that Baby Boy Montoya was a person on the day he died.  

Besabe only questioned whether Baby Boy Montoya's capacity to be a murder 

victim should be determined as of the time of the shooting or the time of Baby 

Boy Montoya's death.  Under these circumstances, the court's instruction did not 

comment on the evidence.22 Even if the instruction arguably did comment on the 

evidence, the record affirmatively demonstrates that no prejudice could have 

resulted.  

       Retired King County Medical Examiner Donald Reay testified as to the 

circumstances of Baby Boy Montoya's birth, death, and cause of death.  Besabe 

did not challenge or question this witness's credibility on these subjects at any 

time in any manner.  The trial court's instructions required the jury find that Baby 

       19 State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006).
       20 Levy, 156 Wn.2d at 719-20.
       21 11 Washington Practice: Washington Pattern Jury Instructions: Criminal
26.02, at 361 (3d ed. 2008). 
       22 Levy, 156 Wn.2d at 722.
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NO. 64929-9-I / 10

Boy Montoya died as a result of Besabe's acts.  No reasonable juror could have 

decided that Baby Boy Montoya was not a person at the time of his death.

       Besabe also contends that the trial court erred by providing conflicting 

instructions as to which charges transferred intent applied.  "[J]ury instructions 

are sufficient when, read as a whole, they accurately state the law, do not 

mislead the jury, and permit each party to argue its theory of the case."23         This 

court reviews de novo whether a jury instruction correctly states the applicable 

law.24

       Midway through the State's closing argument, the deputy prosecutor

proposed  several changes to the jury instructions to clarify the prosecution's 

theory of transferred intent.    Defense counsel made a general objection, but 

when questioned about possible prejudice conceded  her objection related to 

adding language to the second degree murder instruction (instruction 26).25  She 

did not object to the proposed change to           the transferred intent instruction

(instruction 15), which the prosecutor asked to clarify to inform the jury that it

applied only to the murder charge for the baby's death.       She did not object later, 

when the judge decided that instead of changing instruction 15, he would give a 

       23 State v. Teal, 152 Wn.2d 333, 339, 96 P.3d 974 (2004).
       24 State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995).
       25 Counsel argued that changing this instruction potentially altered the 
theory of the case and might necessitate changing the closing argument she had 
prepared.
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NO. 64929-9-I / 11

new transferred intent instruction, instruction 30.  She did not object when the 

judge  gave  the new transferred intent instruction  without striking the original 

instruction on that issue.  Thus, Besabe did not preserve the specific error now 

alleged -- that the two instructions on transferred intent were contradictory and 

potentially confusing.  Because he did not preserve the alleged error for review26

and makes no claim of manifest constitutional error,27 we decline to consider the 

issue.

       When a jury asks questions during deliberations, the court "shall notify 

the parties of the contents of the questions and provide them an opportunity to 

comment upon an appropriate response."28         This rule has both state and federal 

constitutional underpinnings in the defendant's right to be present at all critical 

stages of trial, including the court's handling of          jury  inquiries.29   During 

deliberation, the jury questioned the potential contradictions between 

instructions 15 and 30.  While the original trial record did not reflect whether the 

judge consulted with counsel before answering the question, the judge later met 

with counsel and entered an agreed report of proceedings, which states that the 

trial judge called the parties before responding but also states that neither the 

court nor counsel have a specific recollection of the conversation.

       26 See State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985).
       27 RAP 2.5.
       28 CrR 6.15(f)(1).
       29 State v. Ratliff, 121 Wn. App. 642, 646, 90 P.3d 79 (2004).
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NO. 64929-9-I / 12

       Besabe now argues that the agreed report of proceedings does not settle 

the record because none of the parties expressed a clear memory of the event.  

However, even if the court failed to consult counsel before answering the inquiry, 

we must also decide if the error was harmless beyond a reasonable doubt.30             In 

general, a court's response to a jury inquiry will be deemed harmless if it 

conveyed no affirmative information.31      The court's written response here said,

"Please follow all of the instructions, including instruction 30."        Because the 

judge's response conveyed no affirmative information to the jury, it was harmless 

error.32  

       Finally, Besabe argues that the "to convict" instruction for attempted first 

degree murder omitted premeditated intent as an essential element of the crime 

charged.  The State responds that the instruction included the essential 

elements:  (1) that Besabe intended to commit first degree murder and (2) that 

he took a substantial step in committing first degree murder.  

       In State v. Reed,33 Division Two affirmed a conviction for attempted first 

degree murder based on a "to convict" instruction that stated, "[T]he defendant 

did an act which was a substantial step toward the commission of Murder in the 

       30 Ratliff, 121 Wn. App. at 646.  
       31 See State v. Allen, 50 Wn. App. 412, 419, 749 P.2d 702 (1988) (jury 
told to read instructions and continue deliberations).  
       32 Allen, 50 Wn. App. at 419.
       33 150 Wn. App. 761, 771-72, 208 P.3d 1274 (2009).
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NO. 64929-9-I / 13

First Degree" and "[t]hat the act was done with the intent to commit Murder in the 

First Degree."   Reed, like Besabe, argued that "the trial court's failure to include 

the premeditation element in the 'to convict'          instruction, even though [the 

Washington Pattern Jury Instruction] does not require it, constitutes error."34  

The court in Reed noted that this argument "conflates the intent necessary to 

prove an attempt with that necessary to prove first degree murder."35          Because 

the State did not charge Reed with completed first degree murder, "the State 

was not required to prove that Reed acted with premeditated intent to commit 

murder, only that he attempted to commit murder."36

       Here, like in Reed, count IV charged Besabe with attempted first degree 

murder or attempted second degree murder as a lesser included offense.  The 

jury instructions correctly stated that to convict Besabe, the prosecution needed 

to prove "the defendant did an act which was a substantial step toward the 

commission of Murder in the First Degree of Eleanor Velasco [and t]hat the act 

was done with the intent to commit Murder in the First Degree."  The trial court 

did not err in giving the instruction.

                                    CONCLUSION

       For the reasons stated, we affirm Besabe's convictions for two counts of 

       34 Reed, 150 Wn. App. at 772.
       35 Reed, 150 Wn. App. at 772.
       36 Reed, 150 Wn. App. at 772-73.
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NO. 64929-9-I / 14

first degree murder and one count of attempted first degree murder.  

WE CONCUR:

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