Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  40447-8-II

                             Respondent,                   UNPUBLISHED OPINION

       v.

SETH THOMAS WILLIAMS,

                             Appellant.

       Armstrong, P.J.  --  Seth Thomas Williams appeals his convictions of two counts of first 

degree robbery as an accomplice with two firearm enhancements.  Williams argues that (1) the 

State failed to prove the robbery; (2) the trial court erroneously instructed the jury such that the 

jury could have convicted him of robbery even if it believed he intended to participate in only 

theft; (3) the prosecutor improperly vouched for the truthfulness of a witness by inquiring about 

the witness's promise to testify truthfully in a plea agreement; and (4) his counsel ineffectively 

represented him by failing to object to the vouching and failing to properly prepare him as a 

witness.  Finding no reversible error, we affirm.   

                                            FACTS

       The State charged Williams with first degree robbery as an accomplice, including two 

firearm enhancements.  Co-defendants James Briggs, Marces Sanders, and Larell Hartlett pleaded

guilty to the robbery.  Neither party called Briggs, Sanders, or Hartlett to testify at Williams's

trial. 

       One evening in April 2009, Efrem Peoples agreed to smoke marijuana with Briggs and 

possibly sell him some.  Briggs and Peoples arranged to meet at a 76 gas station.  When Peoples  

No.  40447-8-II

arrived, Briggs and Hartlett entered his Bronco and said they wanted to complete the transaction 

at the Sandman I apartments across the street.1 When Peoples drove into the Sandman I parking 

lot, Briggs suggested that he park next to a dumpster, which had very little lighting.  Peoples 

refused and parked in an area with better lighting.  Briggs exited the Bronco, claiming he needed 

to use a restroom.  

       Shortly thereafter, Sanders opened the Bronco's side door and pointed a gun at Peoples.  

Hartlett, seated on the passenger side of the Bronco, was also pointing a gun at Peoples.  Sanders 

and Hartlett took Peoples's gold chain necklace, cell phone, and some of his  cash, and  then 

demanded that Peoples exit the Bronco.  Sanders told Peoples to lie on the ground while Sanders 

and Briggs searched the rest of the Bronco.  As he exited, Peoples saw a van behind his Bronco.  

Instead of lying on the ground, Peoples slowly backed away from Sanders, eventually turning and 

running toward the 76 station across the street.  As he did so, he glanced back and saw the van

again.

       A clerk at the 76 station called the police.  An officer who heard the report from dispatch 

recognized Sanders's name and knew his mother lived nearby.  Officers staked out the home and,

approximately 20 - 30 minutes after the initial report, the van arrived.  The officers arrested all 

five occupants.  At a crime scene line-up, Peoples identified Briggs, Sanders, and Hartlett as the 

robbers.  He could not identify Williams as being at the scene of the robbery.  

       The police were given a surveillance video from the neighborhood where Peoples's 

Bronco was later recovered.  The video shows the van pulling up near the Bronco and, as it is 

1 There are several Sandman apartment complexes and, for these purposes, Sandman I describes 
the complex across from the 76 station.
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No.  40447-8-II

pulling up, two persons running toward the van.  Then the video shows a person moving between 

the van and the Bronco.

       During a search of the van, the police recovered property from the Bronco, including 

speakers, subwoofers, digital video disks (DVDs), a video player, and other electronic gadgets.  

The police found a speaker from the Bronco in the van's front passenger seat.  Most of the other 

items were on the floor behind the van's front seats or on the back bench seat.  The officers also 

found four firearms in the van:  a .32 caliber revolver and a .40 caliber Glock on the floor board 

between the two middle row captain's seats; a Ruger P85 protruding from the passenger side, 

middle row seat; and another .40 caliber Glock in a drawer under the back bench seat.  

       Williams testified that Briggs called and asked him for a ride around 9:30 p.m.  Williams 

attempted to pick up Briggs at Sandman II, but Briggs was not there.  After attempting to reach 

Briggs by phone, Williams left Sandman II and headed for Sandman I in case Briggs was there.  

On the way, he encountered his friend James Bradford,2 who asked for a ride to the store.  At 

about the same time, Briggs called and gave Williams a new pick-up location.  When he arrived at 

the new location, Briggs was there with Hartlett and Sanders.  Williams did not know that the 

three had stolen goods or firearms.  Williams agreed to drop off the three at Sanders's mother's 

house.  When they arrived, the police arrested them. Williams testified that he did not know there 

were firearms or stolen goods in his van, and he never discussed a robbery with the others 

because the music was loud and he was alone in the front of the van.  Although he was the only 

person who drove the van that night, he denied ever going to Sandman I. 

2 Bradford was still in the van when the police arrested the occupants.  The State charged him 
with, and the jury convicted him of, unlawfully possessing two firearms.  In a separate opinion, we 
reversed Bradford's convictions for insufficient evidence. 
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No.  40447-8-II

       Peoples agreed to testify pursuant to a plea agreement with the State.  In the agreement, 

the State reduced Peoples's pending unrelated robbery charge to attempted second degree 

robbery and gave him immunity from any marijuana or firearm charges arising from the April 8, 

2009 incident.  During direct examination, the prosecutor questioned Peoples about the "testify 

truthfully" provision in his plea agreement:   

       Q: (By Mr. Howe [Prosecutor]) . . . The agreement, the plea agreement covering 
       this case and your pending case, do you have to do anything besides appear?
       A: [Peoples] No. No, sir.
       Q: Well, what if you came up  --  let me just give you a hypothetical for a second, 
       okay.  What if you came up here, just for example, and said I don't know nothing 
       about any of these cases.  As far as I know some martian came down and did all 
       this stuff.  Would that be in accordance with the plea agreement? 
       A: No.  The plea agreement is to tell the truth.
       Q: Who decides if you told the truth or not.  If it came down to it, would we 
       litigate or would I have to take your word for it or do you not understand that 
       part? 
       A: I don't understand that part.

Report of Proceedings (RP) at 308-09.

       The jury convicted Williams and answered "yes" to both firearm enhancements.

                                          ANALYSIS

                                 I.  Sufficiency of the Evidence

       Williams challenges the sufficiency of the evidence supporting his robbery conviction.   

       We test the sufficiency of the evidence by asking whether, viewing the evidence in the 

light most favorable to the State, any rational trier of fact could have found guilt beyond a 

reasonable doubt.  State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006).  When a defendant 

challenges the sufficiency of evidence in a criminal case, we draw all reasonable inferences from 

the evidence in the State's favor.  State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977).  

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No.  40447-8-II

We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the 

persuasiveness of the evidence.  State v. Raleigh, 157 Wn. App. 728, 736-37, 238 P.3d 1211 

(2010), review denied, 170 Wn.2d 1029 (2011).

       A person is an accomplice if he aids or agrees to aid another in planning or committing a 

crime with knowledge that his aid will promote or facilitate the crime.  RCW 9A.08.020(3)(a)(ii).  

Mere presence during a crime is insufficient to show accomplice liability.  State v. McDaniel, 155 

Wn. App. 829, 863, 230 P.3d 245,  review denied, 169 Wn.2d 1027 (2010).  Instead, the 

defendant must have associated himself with the criminal conduct, participated in the criminal 

conduct, and sought to make the crime successful by his actions.  State v. Robinson, 73 Wn. App. 

851, 855, 872 P.2d 43 (1994) (citing In re Wilson, 91 Wn.2d 487, 491, 588 P.2d 1161 (1979)).  

An accomplice does not have to participate in every element of the crime so long as the 

accomplice has general knowledge of the specific crime committed.  State v. Roberts, 142 Wn.2d 

471, 512-13, 14 P.3d 713 (2000).  

       The driver of a car is not guilty as an accomplice where there is no evidence he knew a 

passenger would suddenly jump out and rob a person on the street.  Robinson, 73 Wn. App. at 

857.  Nor is a passenger liable as an accomplice where the driver stops the car, gets out, walks 

away, and then steals a truck, absent evidence the passenger knew the driver intended to commit 

the crime.  State v. Luna, 71 Wn. App. 755, 756, 759, 862 P.2d 620 (1993).  Williams cites both 

cases in support of his insufficiency claim.  But both are factually distinguishable.  

       Williams testified that he was the only driver of the van on the day of the robbery.  Peoples 

testified the van was not present at the scene when he first pulled into the parking lot.  But 

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No.  40447-8-II

Peoples saw the van briefly as he exited his vehicle and again as he ran for help.  The van was 

parked behind Peoples's Bronco.  The jury could have inferred that one of the robbers (Sanders) 

arrived in the van.  Williams was driving the van filled with items stolen in the robbery when the 

police arrested the van's occupants.  A large speaker stolen in the robbery was on the front 

passenger seat of the van.  A jury could infer that Williams participated in planning the robbery

because he drove one of the principals, Sanders, to the robbery location; he parked the van so that 

the robbery principals had access to Peoples and his vehicle; and then drove the robbery principals 

away with the stolen property.        

       Accordingly, we hold that the record contains sufficient evidence to sustain Williams's

conviction. 

                                      II. Jury Instructions

       Williams argues that the trial court erroneously instructed the jury as to accomplice 

liability such that they could have convicted him as an accomplice to robbery, even if he intended 

to commit only theft.  

       In considering a challenge to jury instructions, we read the instructions as a whole.  State 

v. Pirtle, 127 Wn.2d 628, 656-57, 904 P.2d 245 (1995).  Jury instructions are sufficient if 

substantial evidence supports them, they allow the parties to argue their theories of the case and,

when read as a whole, they properly inform the jury of the applicable law.  State v. Riley, 137 

Wn.2d 904, 908 n.1, 909, 976 P.2d 624 (1999).  We review the adequacy of jury instructions de 

novo as a question of law.  Pirtle, 127 Wn.2d at 656-57.      

       Under the robbery statute, "[a] person commits robbery when he . . . unlawfully takes 

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No.  40447-8-II

personal property from the person of another . . . by the use or threatened use of immediate force 

. . . ." RCW 9A.56.190 (emphasis added).  The elements of robbery include the underlying crime 

of theft.  11 Washington Practice: Washington Pattern Jury Insructions: Criminal § 37.50, at 69 

(cmt.-Intent) (3d ed. Suppl. 2010); see also State v. Faucett, 22 Wn. App. 869, 871, 593 P.2d 

559 (1979) (Robbery includes elements of larceny plus elements of (1) taking the property from 

the person or in their presence and (2) using force or the threat of force to complete the taking.).  

Therefore, inserting "intent to commit theft" or other similar language in the "to convict"

instruction for robbery is not erroneous.  See Faucett, 22 Wn. App. at 871-72.  

       The accomplice liability statute imposes liability on persons who aid or encourage the 

principal's crime.  RCW 9A.08.020(3).  To be liable as an accomplice, the defendant must have 

"general knowledge of [the] specific crime" the principal intends to commit.  Roberts, 142 Wn.2d 

at 512.          

       Here, the jury instructions, considered as a whole, did not permit the jury to convict 

Williams as an accomplice to robbery if it found he intended to aid only theft.  The accomplice 

liability instruction correctly stated the law under   Roberts  by explaining that the alleged 

accomplice must act with knowledge that his actions will promote commission of the crime and 

must aid or agree to aid in committing the crime.  Williams is correct that the "to convict"

instruction3 refers to theft, but the instruction also stated that to convict Williams of robbery, the 

3 The "to-convict" instruction states:
       To convict the defendant, Seth Thomas Williams, of the crime of robbery in the 
       first degree, each of the following elements of the crime must be proved beyond a 
       reasonable doubt:
       (1) That on or about the 8th day of April, 2009 the defendant, Seth Thomas 
       Williams, or an accomplice unlawfully took personal property, not belonging to the 
       defendant, from the person or in the presence of another; 
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No.  40447-8-II

jury had to find that each element was proved beyond a reasonable doubt.  The instruction then 

listed the elements, including (1) taking property from the person of the victim (2) with force.  

Thus, considered as a whole, the "to convict" instruction did not allow the jury to convict 

Williams of being an accomplice to robbery if he intended to aid only theft.  

       Williams relies on State v. Grendahl, 110 Wn. App. 905, 911, 43 P.3d 76 (2002), where 

Division  Three of this court held that similar robbery and "to convict" instructions together 

"permitted the jury to convict [the defendant] of robbery as an accomplice . . . even if he or [his 

co-defendant] merely intended to commit theft." The prosecutor in Grendahl, however, argued in 

closing that the jury could convict Grendahl even if it found he intended to commit theft.  

Grendahl, 110 Wn. App. at 909-10.  Here, the prosecutor did not argue that finding intent to 

commit theft was sufficient to convict Williams as an accomplice to robbery.4       In fact, the 

       (2) That the defendant, Seth Thomas Williams, or an accomplice intended to 
       commit theft of the property; 
       (3) That the taking was against the person's will by the defendant, Seth Thomas 
       Williams, or an accomplice's use or threatened use of immediate force, violence or 
       fear of injury to that person; 
       (4) That the force or fear was used by the defendant, Seth Thomas Williams, or an 
       accomplice, to obtain or retain possession of the property or to prevent or 
       overcome resistance to the taking; 
       (5) That in the commission of these acts the defendant, Seth Thomas Williams, or 
       an accomplice, was armed with a deadly weapon or displayed what appeared to be 
       a firearm or other deadly weapon; and
       (6) That any of these acts occurred in the State of Washington.
       If you find from the evidence that each of these elements has been proved beyond a 
       reasonable doubt, then it will be your duty to return a verdict of guilty.
Clerk's Papers at 130 (emphasis added).

4 Williams asserts that the prosecutor "argued that in order to convict Mr. Williams of the crime 
of robbery, he only had to show that Mr. Williams agreed to commit the crime of theft."   Br. of 
Appellant at 6.  This assertion misconstrues the State's closing argument.  Taken in context, the 
prosecutor was discussing the "to convict" instruction, and mentioned that theft was an element 
that the State had to prove.  The prosecutor stated that the State had proved this element and then 
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No.  40447-8-II

prosecutor discussed each element of robbery and pointed to the evidence supporting each 

element.  The trial court did not err in instructing the jury on accomplice liability.  Because the 

trial court did not erroneously instruct the jury on accomplice liability, we need not discuss 

Williams's claim that his counsel ineffectively represented him by not challenging the instructions.   

                                         III. Vouching

       Williams argues that the prosecutor improperly vouched for Peoples's          veracity by 

questioning him about the plea agreement's provision that he testify truthfully.  Further, Williams 

urges us to find prejudice because Peoples's      testimony is the  "sole testimony identifying 

[Williams] as involved."  Reply Br. of Appellant at 4.    

       To prove prosecutorial misconduct, Williams must show that the prosecutor's conduct 

was improper and prejudicial.  State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011).  

Williams can establish prejudice if "'there is a substantial likelihood the instances of misconduct 

affected the jury's verdict.'"  State v. Dixon, 150 Wn. App. 46, 53, 207 P.3d 459 (2009) (quoting 

State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003)).  But because he failed to object to 

the prosecutor's remarks at trial, he must demonstrate on appeal that the remarks were so 

"'flagrant and ill intentioned that it cause[d] an enduring and resulting prejudice that could not 

have been neutralized by an admonition to the jury.'"  Thorgerson, 172 Wn.2d at 443 (quoting 

State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)).  Otherwise, we will consider the issue 

waived.  State v. Gregory, 158 Wn.2d 759, 841, 147 P.3d 1201 (2006).   

       A prosecutor may not vouch for a witness's credibility.  State v. Coleman, 155 Wn. App. 

951, 957, 231 P.3d 212 (2010), review denied, 170 Wn.2d 1016 (2011).  The trier of fact has sole 

explained that the State had also proved the other robbery elements.
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No.  40447-8-II

authority to assess the credibility of witnesses.  State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 

(2010).  Vouching occurs when the State "places the prestige of the government behind the 

witness or indicates that information not presented to the jury supports the witness's testimony."  

State v. Smith, 162 Wn. App. 833, 849, 262 P.3d 72 (2001) (citing United States v. Roberts, 618 

F.2d 530, 533 (9th Cir. 1980)).

       In Ish, 170 Wn.2d at 193, the defendant's cell mate agreed to "testify truthfully" for the 

State.  At trial, the prosecutor asked the cell mate on direct examination about the "testify 

truthfully" provision.  See Ish, 170 Wn.2d 194.  Four justices in the lead opinion and one 

dissenting justice agreed the prosecutor vouched for the witness by inquiring about the "testify 

truthfully" provision on direct examination.  But because other evidence supported the conviction, 

the prosecutor did not dwell on the provision in direct examination, and defense counsel attacked 

the witness's credibility on cross-examination, the four lead justices found the error harmless.5  

Ish, 170 Wn.2d at 200-01.  The Ish court did not have to address the "flagrant and ill intentioned"

standard because Ish's defense counsel objected to the admission of the plea agreement and its 

"testify truthfully" provision.  Ish, 170 Wn.2d at 193-94.  

       Here, Williams's counsel did not object to the prosecutor's "testify truthfully" questioning.  

Thus, we will review the issue only if Williams can demonstrate that the prosecutor's questions 

were "'so flagrant and ill intentioned'" as to evince "'enduring and resulting prejudice that could 

not have been neutralized by an admonition to the jury.'"   Thorgerson, 172 Wn.2d at 443 

(quoting Russell, 125 Wn.2d at 86).   

5 The lead opinion also speculated that the prosecutor could ask about a "testify truthfully"
provision on redirect if the defense challenged the witness's veracity on cross.  Ish, 170 Wn.2d at 
201.
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No.  40447-8-II

       Courts often find "flagrant and ill-intentioned" comments where the law is clearly 

established and the prosecutor's comments implicate a core criminal trial right (i.e., presumption 

of innocence).  See State v. Johnson, 158 Wn. App. 677, 685-86, 243 P.3d 936 (2010),

(addressing improper comments on the defendant's right to a presumption of innocence), review 

denied, 171 Wn.2d 1013 (2011); see also, State v. Venegas, 155 Wn. App. 507, 523-24, 228 P.3d 

813 (addressing improper comments on the reasonable doubt standard),  review denied, 170 

Wn.2d 1003 (2010).   

       We considered the vouching argument in Ish, 150 Wn. App. at 786-87.  We held that the 

prosecutor did not vouch for the witness by questioning him about his promise to testify 

truthfully, relying on the Supreme Court's reasoning in State v. Kirkman, 159 Wn.2d 918, 925, 

155 P.3d 125 (2007), where a detective testified that he elicited a child victim's promise to tell the 

truth.  Ish, 150 Wn. App. at 786-87 (citing Kirkman, 159 Wn.2d at 925).  The Kirkman court had 

characterized this as "'simply an account of the interview protocol,'" which "'merely provided the 

necessary context that enabled the jury to assess the reasonableness of the . . . responses.'"  Ish, 

150 Wn. App. at 787 (quoting Kirkman, 159 Wn.2d at 931).  Thus, we held that similar testimony 

in Ish was not vouching.  Ish, 150 Wn. App. at 787.

       Our Ish opinion preceded the trial here, and the Supreme Court overruled our Ish opinion 

after this case was tried.  Thus, under our Ish opinion, the prosecutor could inquire about the 

"testify truthfully" provision of Peoples's plea agreement.    Under these circumstances, the 

prosecutor did not commit flagrant and ill-intentioned error by relying on then current law in 

questioning Peoples on direct examination about the plea agreement.  Thus, we need not discuss 

                                               11 

No.  40447-8-II

any possible prejudice.

       Nor do we need to discuss Williams's argument that his trial counsel ineffectively 

represented him by failing to object to the prosecutor's claimed vouching.  To establish that 

counsel ineffectively represented him, Williams must show that (1) counsel's performance was 

deficient and (2) that the deficient performance prejudiced him.  State v. Thomas, 109 Wn.2d 222, 

225-26, 743 P.2d 816 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 

674, 104 S. Ct. 2052 (1984).  Again, because the prosecutor did not err in eliciting the "testify 

truthfully" provision under our Ish opinion, counsel was not ineffective in failing to object.  See 

State v. Slighte, 157 Wn. App. 618, 625, 238 P.3d 83 (2010) (explaining that attorneys are not 

expected to predict changes in the law, and assessment of effective representation is based on the 

law at the time of the representation), remanded, No. 38624-1-II, 2011 WL 5373982 (Wash. Ct. 

App. Nov. 8, 2011).

                              IV. Ineffective Assistance of Counsel

       Williams also faults his trial counsel for failing to prepare him for testifying by not showing 

him pictures obtained during discovery.6 Specifically, Williams argues that had he been shown the 

evidence before trial, he might not have testified or, when testifying, would have addressed the 

evidence more competently.   

       On direct appeal, we can consider only issues the trial record supports.  State v. 

6 Williams also claims that before trial, his counsel failed to show him the surveillance video 
recovered from a neighbor in the neighborhood where the police found Peoples's Bronco.  In the 
video, which is poor quality, three people get into a van that looks similar to, or is, Williams's 
van.  However, the record does not clearly support the proposition that Williams's counsel did 
not show him the video before trial.  It only indicates that it is hard to see what happens in the 
video because of the poor quality.

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No.  40447-8-II

McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).  Thus, the trial record must support a 

claim of ineffective assistance of counsel.  McFarland, 127 Wn.2d at 335.   Williams did testify.  

During cross-examination, Williams testified that he never saw the photographs of stolen items 

recovered from his van until trial.  Assuming without deciding that counsel was ineffective in 

failing to prepare Williams for questioning about the photos, Williams has not shown prejudice.  

Thomas, 109 Wn.2d at 225-26.  Nothing in the record suggests that the trial result would have 

been different if counsel had shown Williams the photographs before trial.  The photos showed 

the location of the stolen items in the van, but the officers also testified about where the items 

were in the van.  Moreover, on re-direct, Williams's trial counsel elicited that most of the stolen 

items were behind the driver's seat, thereby offering some support for Williams's defense.  And 

even without Williams's testimony, the photos were admissible through other witnesses; thus, 

Williams has not demonstrated prejudice. 

       We affirm.

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                 Armstrong, P.J.
We concur:

Hunt, J.

Quinn-Brintnall, J.

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No.  40447-8-II

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