Opinion Information Sheet

			

          IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                )
                                                    )
                             Respondent,            )                 No. 84714-2
                                                    )
       v.                                           )                   En Banc
                                                    )
KENNETH RICHARD BUDIK,                              )
                                                    )          Filed February 16, 2012
                             Petitioner.            )
                                                    )

       OWENS, J.  --  Kenneth Budik was one of two victims of a shooting in the city 

of Spokane.  The other victim, Adama Walton, died as a result of the shooting.  Based 

on Budik's statements that he did not know who was responsible for the crime, he was 

charged with, and convicted of, first degree rendering criminal assistance.  Insufficient 

evidence supports Budik's conviction; accordingly, we reverse the Court of Appeals 

and vacate Budik's conviction.
                                            Facts1

       In the early morning hours of September 14, 2007, 20 year old Budik 

1 Because this is a challenge to the sufficiency of the State's evidence, we assume the 
truth of the State's evidence, even where Budik provided conflicting testimony.  State v. 
Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). 

accompanied 28 year old Walton to the Big Easy nightclub in downtown Spokane.   

State v. Budik
No. 84714-2

As club authorities had, at some earlier point, become aware that Budik's 

identification was fake, Budik waited in Walton's 2007 Chevrolet Avalanche pickup 

truck with a box of wine.  Walton returned an hour later, around 2:00 a.m., and the two 

departed for an "after party."  2 Verbatim Report of Proceedings (VRP) at 199.

       Arriving at the party, which was at a private residence, Budik got out and briefly 

mingled with several persons he knew in the front yard.  Walton, meanwhile, remained 

in the truck and spoke to a number of individuals.  After approximately 10 minutes, 

Walton gestured for Budik and Budik returned to the truck.  Walton then drove to the 

next intersection, made a U-turn, and came to an abrupt stop in front of the party, 

squealing his tires.  As Budik was sitting in the passenger seat, several gunshots rang 

out.  One shot struck Budik through his left pectoral muscle, shattering a bone in his 

shoulder.  Another bullet went through Budik's left leg just above the kneecap.  

Walton was even less fortunate, sustaining one gunshot wound to the abdomen and 

another that passed through both of his lungs and his heart.  Walton stepped on the 

accelerator and the truck traveled a block and a half before colliding with two parked 

cars and overturning.  Budik managed to pull himself from the truck, sought help from 

a nearby resident, and then called 911.

       The first law enforcement officer to interact with Budik was Officer Kevin

King.  As he was responding to reports of a shooting, the officer had his gun drawn as 

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State v. Budik
No. 84714-2

he approached Budik.  Officer King asked Budik a number of questions, one of which 

was who was responsible for the shooting.  Budik replied that he did not know.  A 

second officer, Officer Eugene Baldwin, eventually joined Budik and Officer King.  At 

Officer King's direction, Officer Baldwin patted Budik down for weapons and, finding 

none, then asked Budik several additional questions.  When questioned about who was 

responsible for the shooting, Budik consistently answered that he did not know.  

Shortly after Budik was taken to the hospital, Officer Baldwin met Detective Ferguson

at the hospital and resumed questioning Budik in the trauma room while doctors and 

nurses worked on him.  Budik declined to give them any specific information.

       The day after the shooting, Detective Kip Hollenbeck, with Detective Ferguson, 

paid a visit to Budik's hospital room.  Based on a bullet casing found in the passenger 

side of the truck, Detective Hollenbeck believed that the shooters must have been so 

close to the vehicle that Budik would necessarily have seen them.  Budik immediately 

said that he did not see anything.  Detective Hollenbeck continued to press Budik for 

details, and Budik explained what had occurred leading up to and following the 

shooting.  During this exchange, Budik told Detective Hollenbeck that he had been 

leaning over to pick up a beer when the first shot rang out, though, based on the 

wounds Budik sustained, the detective did not believe him.  When Detective 

Hollenbeck persisted in asking Budik to identify the assailants, Budik shook his head 

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State v. Budik
No. 84714-2

and asked the detectives to leave.  Detective Hollenbeck was left with the belief that 

Budik feared retaliation.

       Several days after the shooting, Walton's mother, Rae Ann Walton (Rae), went 

to Budik's home and left a note in the mailbox asking Budik to call her.  Budik did so 

one or two days later.  Rae asked Budik, "[W]ho killed my son," and he replied, 

"Rascal [Juwuan Nave] did it."  1 VRP at 121.  Budik went on to indicate that Nave 

had walked from behind Freddie Miller and that the shooting then began.

       During their investigation, the police quickly became aware of three primary 

suspects: Titus Davis, Nave, and Miller.  Police believed that these three individuals 

were gang members.  Miller was detained and interviewed the day of the shooting and 

was later charged with murder.  Police identified Davis as a suspect by September 15, 

2007, and had heard of Nave's involvement "[e]arly on."  2 VRP at 183.

       Detective Hollenbeck described the investigation as "one of the most difficult 

cases" that he had ever worked on, owing to the fear witnesses had of cooperating with 

the police.  1 VRP at 146.  Ultimately, both Davis and Miller were charged with 

murder.  Nave, however, was never charged because although police could place him 

at the scene, they could not connect him to the fatal shooting of Walton.  Detective 

Hollenbeck testified that it would have been "helpful" had he known that someone had 

seen Nave participate in the shooting and that the investigation would "have been able 

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State v. Budik
No. 84714-2

to take a different turn" if Budik had told him that Nave was the shooter.  1 VRP at 

144; 2 VRP at 184.  However, Detective Hollenbeck also testified that he did not 

credit the account Budik related to Rae; Detective Hollenbeck believed this was simply 

a rumor circulated to make Nave the "fall guy" for the shooting.  2 VRP at 183.

       Based on Budik's repeated disavowals of knowledge of the shooters' identities, 

the State charged Budik with first degree rendering criminal assistance.  The jury 

found Budik guilty, and the judge sentenced Budik to 13 months in prison, the low end 

of the standard range.  Budik appealed his conviction, raising an as-applied challenge 

to the constitutionality of his conviction, challenging the sufficiency of the State's 

evidence, and asserting ineffective assistance of trial counsel.  The Court of Appeals 

denied all three challenges and affirmed Budik's conviction.  State v. Budik, 156 Wn. 

App. 123, 130, 132, 230 P.3d 1094 (2010).  Budik petitioned this court for review of 

the sufficiency challenge, and we granted review.  State v. Budik, 170 Wn.2d 1008, 

249 P.3d 624 (2010).

                                             Issue

       Does sufficient evidence support Budik's conviction?

                                           Analysis

I.  Standard of Review

       In a challenge to the sufficiency of the evidence supporting a criminal 

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State v. Budik
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conviction, the question is whether, viewing the evidence in the light most favorable to 

the State, "any rational fact finder could have found the essential elements of the crime 

beyond a reasonable doubt."  State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 

(2009).  To determine whether the State has produced sufficient evidence to prove 

each element of the offense, we must begin by interpreting the underlying criminal 

statute.  Statutory interpretation is a question of law, which we review de novo.  Id.

       When interpreting a statute, our objective is to determine and give effect to the 

legislature's intent.  State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010).  We 

first attempt to ascertain the plain meaning of the statute.  Id. "In determining the 

plain meaning of a provision, we look to the text of the statutory provision in question, 

as well as 'the context of the statute in which that provision is found, related 

provisions, and the statutory scheme as a whole.'"  Id. (quoting State v. Jacobs, 154 

Wn.2d 596, 600, 115 P.3d 281 (2005)).  If the statute remains susceptible to more than 

one reasonable interpretation, it is ambiguous, and we "look to the legislative history 

of the statute and the circumstances surrounding its enactment to determine legislative 

intent."  Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003).

       With these standards in mind, we turn to Budik's conviction of first degree 

rendering criminal assistance.

                                               7 

State v. Budik
No. 84714-2

II. Rendering Criminal Assistance Requires an Affirmative Act or Statement

       Budik was convicted of rendering criminal assistance in the first degree, a class 

C felony, under former RCW 9A.76.070 (2003).2 A person violates this statute if (1) 

"he or she renders criminal assistance" (2) to another person "who has committed or is 

being sought for murder in the first degree or any class A felony or equivalent juvenile 

offense."  Id.  The term "renders criminal assistance" is defined by RCW 9A.76.050.  

That statute provides that

       a person "renders criminal assistance" if, with intent to prevent, hinder, 
       or delay the apprehension or prosecution of another person who he 
       knows has committed a crime or juvenile offense or is being sought by 
       law enforcement officials for the commission of a crime or juvenile 
       offense or has escaped from a detention facility, he:

              (1)  Harbors or conceals such person; or

              (2)  Warns such person of impending discovery or apprehension; 
       or

              (3)  Provides such person with money, transportation, disguise, or 
       other means of avoiding discovery or apprehension; or

              (4)  Prevents or obstructs, by use of force, deception, or threat, 
       anyone from performing an act that might aid in the discovery or 
       apprehension of such person; or

              (5)  Conceals, alters, or destroys any physical evidence that might 
       aid in the discovery or apprehension of such person; or

2 In 2010, the legislature elevated this crime to a class B felony.  Laws of 2010, ch. 255, § 
1.

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State v. Budik
No. 84714-2

              (6)  Provides such person with a weapon.

RCW 9A.76.050.  In other words, a person renders criminal assistance if he or she (1) 

knows that another person (a) "has committed a crime or juvenile offense" or (b) "is 

being sought by law enforcement officials for the commission of a crime or juvenile 

offense" or (c) "has escaped from a detention facility" and (2) intends "to prevent, 

hinder, or delay the apprehension or prosecution" of that other person and (3) 

undertakes one of the six specified actions.  Id.  In this case we are solely concerned 

with the fourth action?"[p]revent[ing] or obstruct[ing], by use of force, deception, or 

threat, anyone from performing an act that might aid in the discovery or apprehension" 

of a person sought by law enforcement officials.  RCW 9A.76.050(4); see Clerk's 

Papers at 26 (jury instruction relying solely on this action).

       In interpreting this portion of the statute, we look to the statutory scheme as a 

whole.  Two similar crimes exist under chapter 9A.76 RCW.  RCW 9A.76.020 makes 

the willful hindrance, delay, or obstruction of a "law enforcement officer in the 

discharge of his or her official powers or duties" a gross misdemeanor.  Conviction 

under this statute requires "some conduct in addition to making false statements."  

State v. Williams, 171 Wn.2d 474, 486, 251 P.3d 877 (2011).  RCW 9A.76.175 makes 

it a gross misdemeanor to make a false or misleading statement to a public servant if 

that statement is "reasonably likely to be relied upon by [the] public servant in the 

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State v. Budik
No. 84714-2

discharge of his or her official powers or duties."

       This statutory scheme evidences legislative intent to require an affirmative act 

or statement in order to constitute "deception" within the context of RCW 

9A.76.050(4).  First, the legislature expressly criminalized making false or misleading 

material statements to the police in RCW 9A.76.175.  In doing so, it expressed the 

manner in which it intended to deal with such statements and provided that they are 

punishable as gross misdemeanors.  Rendering criminal assistance, on the other hand, 

can be up to a class B felony. Second, under the canon of noscitur a sociis, we 

construe a term in light of those terms with which it is associated.  State v. 

Roggenkamp, 153 Wn.2d 614, 623, 106 P.3d 196 (2005).  The five other means of 

rendering criminal assistance require some affirmative act or statement, be it harboring 

or concealing the person sought, RCW 9A.76.050(1); warning the person sought of 

impending discovery, RCW 9A.76.050(2); providing a person sought money, a 

disguise, transportation, or other means of evading discovery, RCW 9A.76.050(3);

concealing, altering, or destroying physical evidence that would aid in discovery, RCW 

9A.76.050(5); or providing the person sought with a weapon, RCW 9A.76.050(6).  

From this, we infer that the legislature similarly intended to require an affirmative act 

or statement in order to violate RCW 9A.76.050(4).

       The history of RCW 9A.76.050 reinforces our conclusion that it requires an 

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State v. Budik
No. 84714-2

affirmative act or statement and sheds light on the nature of the affirmative act or 

statement required.  RCW 9A.76.050 was enacted as part of the adoption of the

current criminal code in 1975.  Laws of 1975, 1st Ex. Sess., ch. 260, § 9A.76.050.  The 

crime of rendering criminal assistance replaced the then-existing concept of serving as 

an accessory after the fact.  13A Seth A. Fine & Douglas J. Ende, Washington 

Practice: Criminal Law § 1801, at 366 (2d ed. 1998); Laws of 1975, 1st Ex. Sess., ch. 

260, § 9A.92.010(4) (repealing RCW 9.01.040, which defined "accessory," former 

RCW 9.01.040 (Laws of 1909, ch. 249, § 9). RCW 9A.76.050 embodies many of the 

same principles as did its predecessor.

       Other states have interpreted the crime of serving as an accessory after the fact 

in circumstances comparable to those present here. In Tipton v. State, 126 Tex. Crim. 

439, 443-44, 72 S.W.2d 290 (1934), a witness before a grand jury falsely stated that 

she "knew nothing about" a homicide.  The Tipton court held that the witness was not 

properly treated as an accomplice after the fact based upon this false statement.  Id. at 

444. In State v. Clifford, 263 Or. 436, 438, 441-42, 502 P.2d 1371 (1972), the 

Supreme Court of Oregon built on Tipton and held that a witness who responded to 

police questioning by falsely stating that he had not seen a murder suspect could not 

be convicted of being an accessory to the murder because the falsehood was not an 

"affirmative act" but was instead "a mere denial of knowledge."

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State v. Budik
No. 84714-2

       In Stephens v. State, 734 P.2d 555 (Wyo. 1987), interpreting a statute very 

similar to RCW 9A.76.050, the Supreme Court of Wyoming held that "[a] mere denial 

of knowledge is to be differentiated from an '"[a]ffirmative statement of facts tending 

to raise any defense for (the principal), or a statement within itself indicating an effort 

to shield or protect (the principal)."'"  Id. at 557 (alterations in original) (quoting 

Clifford, 263 Or. at 441 (quoting Tipton, 126 Tex. Crim. at 444)); see People v. 

Plengsangtip, 148 Cal. App. 4th 825, 838, 56 Cal. Rptr. 3d 165 (2007) ("[A] statement 

that one knows nothing about a crime, even if false, is equivalent to a passive 

nondisclosure or refusal to give information, which is insufficient to support an 

accessory charge.").

       We find that the foregoing interpretations illuminate the meaning of RCW 

9A.76.050.  The deception contemplated by RCW 9A.76.050(4) requires an 

affirmative act or statement; it does not encompass mere false disavowals of 

knowledge.  Cf. Plengsangtip, 148 Cal. App. 4th at 839 ("Affirmative statements of 

positive facts are distinguishable from . . . a denial of knowledge that a crime 

occurred."). While the term "deception" may be literally broad enough to include 

false disavowals, such an interpretation would ignore the statutory scheme and past 

interpretations of the principles underlying the crime.  Moreover, such an 

interpretation would ignore our holdings in Williams and its predecessors that statutes 

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State v. Budik
No. 84714-2

purporting to criminalize false statements made to law enforcement officers implicate 

constitutional guaranties of speech and privacy and will be narrowly construed.3  See

171 Wn.2d at 483-84.

       In sum, proving that an individual rendered criminal assistance by 

"[p]revent[ing] or obstruct[ing], by use of . . . deception, . . . an act that might aid in 

the discovery or apprehension" of another who has committed, or is sought for 

commission of, a crime or juvenile offense, RCW 9A.76.050(4), requires an 

affirmative act or statement that raises a defense for the other person, see, e.g.,

Plengsangtip, 148 Cal. App. 4th at 838; People v. Duty, 269 Cal. App. 2d 97, 104, 74 

Cal. Rptr. 606 (1969), or which, in itself, indicates an effort to shield or protect the 

other person.  A mere false disavowal of knowledge is insufficient. Accordingly, 

Budik's mere false disavowal of knowledge is insufficient to support his conviction for 

rendering criminal assistance.4

3 We decide this case on statutory, not constitutional, grounds.  Narrowly construing 
statutes implicating constitutional guaranties is an aspect of statutory interpretation.  In 
this case, we are not asked to declare, nor do we hold, that RCW 9A.76.050(4) is 
unconstitutional on its face or in application.  Application of our holdings in Williams and 
its predecessors regarding when conduct is required in addition to speech is not before us 
in this case.  Contrary to the dissent's assertion, this case does not require interpretation 
of the Washington Constitution.
4 We are not presented with the question of whether Budik would have been properly 
charged with making a false or misleading statement to public officials under RCW 
9A.76.175 and reserve that question for the appropriate case.

                                               13 

State v. Budik
No. 84714-2

III. There is No Evidence of Prevention or Obstruction of Any Act Caused by Budik's 
    False Statements

       A second approach to this case yields the same result.  Under RCW 9A.76.050, 

one essential element is demonstrating that the defendant "[p]revents or obstructs, by 

use of . . . deception, . . . anyone from performing an act that might aid in the 

discovery or apprehension" of an individual sought for commission of a crime.  RCW 

9A.76.050(4).  That is, the State had to prove that Budik's deception?assuming his 

false disavowal of knowledge was indeed a "deception"?actually prevented or 

obstructed the performance of some act that might have aided in discovery or 

apprehension of one of the shooters.  The State produced no such evidence.

       First, it is not at all clear that prevention or obstruction of the State from filing 

charges against another is included in RCW 9A.76.050(4).  RCW 9A.76.050 derives 

from section 205.50 of the New York Penal Law.  Rev. Wash. Criminal Code at 319 

(Legislative Council's Judiciary Comm. 1970).  The provision in the New York Penal 

Law prohibits the prevention or obstruction of acts that "might aid in the discovery or 

apprehension of [another] person or in the lodging of a criminal charge against him." 

N.Y. Penal Law § 205.50(4) (McKinney 2010) (emphasis added).  Our provision omits 

the italicized language, at least raising the inference that the legislature, in adopting it, 

intended to exclude from culpability for rendering criminal assistance those acts that 

                                               14 

State v. Budik
No. 84714-2

merely prevent or obstruct the lodging of criminal charges against another person.  See

State v. Edwards, 104 Wn.2d 63, 68, 701 P.2d 508 (1985) ("'[W]here a material 

change is made in the wording of a statute, a change in legislative purpose must be 

presumed.'" (quoting Graffell v. Honeysuckle, 30 Wn.2d 390, 399, 191 P.2d 858 

(1948))).

       Second, there is no evidence in the record that Budik's false statements, as 

opposed to his nondisclosure of information, prevented or obstructed any act.  RCW 

9A.76.050 includes within the definition of rendering criminal assistance "deception" 

that "[p]revents or obstructs" certain acts, RCW 9A.76.050(4); it does not include 

"nondisclosure" that "prevents or obstructs" certain acts.  This is a critical distinction.  

If law enforcement officers are unable to act because an individual has not provided 

them with information, it is the nondisclosure of information that is preventing them 

from undertaking some act.  This is not rendering criminal assistance.  This is so 

whether or not the individual has also made a false statement to law enforcement 

officers.  This is obviously to be distinguished from the situation in which the false 

statement itself prevents some act that might aid in the discovery or apprehension of 

another person.  The relevant question therefore becomes whether some act would 

have been performed but for the false statement.  If not, it cannot be said that the 

deception prevented or obstructed an act that might aid in the discovery or 

                                               15 

State v. Budik
No. 84714-2

apprehension of another person.

       The evidence the State relies upon to show prevention or obstruction is 

testimony from Detective Hollenbeck that it would have been "helpful" and that the 

investigation would "have been able to take a different turn" if Budik had told him that 

Nave was responsible for the shooting.  1 VRP at 144; 2 VRP at 184.  This is clearly 

evidence that any prevention or obstruction of the performance of any act that might 

have aided in the discovery or apprehension of the shooters was caused by Budik's 

nondisclosure, not his false statements.  There is simply no evidence in the record that 

but for Budik's false disavowal of knowledge of the identity of the shooters (i.e., had 

he said nothing) anyone would have "perform[ed] an act that might aid in the 

discovery or apprehension" of one of the shooters.  RCW 9A.76.050(4).  As such, 

there is no evidence that Budik's deception?assuming his false disavowal of 

knowledge amounted to deception?caused the prevention or obstruction of any act.5

       Even if Budik's false disavowal of knowledge of the shooter's identity 

amounted to deception under RCW 9A.76.050(4), there would be insufficient evidence 

to sustain his conviction.

                                          Conclusion

5 Similarly, though the State does not expressly rely upon any other false statement by 
Budik on appeal, we note that no evidence suggests that Budik's statement that he was 
leaning down at the time of the shooting, which we assume was false, prevented or 
obstructed any act.

                                               16 

State v. Budik
No. 84714-2

       We hold that in order to prove that a defendant has rendered criminal assistance 

"by use of . . . deception," RCW 9A.76.050(4), the State must show that the defendant 

has made some affirmative act or statement; mere false disavowal of knowledge is 

insufficient to sustain a conviction for rendering criminal assistance. There is no 

evidence that Budik did more than falsely deny knowledge of the identities of the 

assailants who had shot him and shot and killed his companion.  Accordingly, 

insufficient evidence supported Budik's conviction.  We reverse the Court of Appeals 

and vacate Budik's conviction.

AUTHOR:

        Justice Susan Owens

WE CONCUR:

        Justice Charles W. Johnson                       Justice Debra L. Stephens

        Justice Tom Chambers                             Justice Charles K. Wiggins

                                                         Gerry L. Alexander, Justice Pro Tem.

        Justice Mary E. Fairhurst

                                               17