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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       DIVISION ONE
                      Respondent,           )
                                            )       No. 65725-9-I
                      v.                    )
                                            )       UNPUBLISHED OPINION
ALEXANDER P. FENDICH,                       )
                                            )
                      Appellant.            )       FILED: January 23, 2012
________________________________)

       Dwyer, C.J.  --  Alexander Fendich was convicted of unlawful possession 

of a firearm in the first degree arising from an incident in which he fired a friend's 

.22 caliber handgun into a river at a state park.  At Fendich's trial, the owner of 

the handgun testified that Fendich had both handled and fired the weapon.  

Fendich contends that his conviction must be reversed because (1) the trial 

court erred by declining to instruct the jury regarding the "testimony of an 

accomplice," and (2) several statements by the prosecutor during closing 

argument constituted flagrant misconduct.  Finding Fendich's contentions to be 

without merit, we affirm.

                                            I

       On October 9, 2009, Alexander Fendich and Justin Cunningham met in  

No. 65725-9-I / 2

Auburn.  The two men proceeded to walk to the Green River, where 

Cunningham showed Fendich a .22 caliber handgun that he was carrying in his 

waistband.  Cunningham drew the weapon and fired into the river five or six 

times.  Thereafter, Cunningham and Fendich continued to walk southbound 

along the river.  Near a bridge, Cunningham handed the gun to Fendich, and 

Fendich also fired a round into the river.  Cunningham and Fendich then walked 

to a nearby car belonging to a friend of Cunningham.  They entered the parked 

car and proceeded to listen to music.  

       William Newman was fishing with his daughter on the Green River when 

he observed "a couple [of] guys were shooting into the river." Report of 

Proceedings (RP) at 590.  He heard several shots and saw two people "fussing 

around" before leaving the area.  RP at 592.  Newman called 911 and reported 

that six or seven shots had been fired. 

       The police arrived at the scene approximately five minutes later. The 

officers observed several individuals sitting in a parked car. The officers 

approached the vehicle and ordered these individuals to exit the car. Fendich 

exited through the rear driver-side door.  Officers discovered a .22 caliber Ruger 
MK II handgun hidden beneath the driver's seat.1 The officers proceeded to take 

Fendich into custody.  
       Fendich was interviewed by the police three days later.2 Although he 

       1 Officers later found six .22 caliber Ruger casings on a path near the river. 
       2 Fendich, who was in custody at the time of the interview, waived his Miranda rights 
before speaking to the detective.  See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. 
Ed. 2d 694 (1966).

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No. 65725-9-I / 3

initially denied touching the firearm, Fendich eventually admitted to firing the 

handgun three to four times.  Fendich told the detective conducting the interview
that he knew that, as a convicted felon, he was not permitted to possess a gun.3  

Fendich explained that his parole officer had told him that he "could not be 

around or own any firearms."  RP at 394.  Fendich was subsequently charged 
with unlawful possession of a firearm in the first degree.4

       At Fendich's trial, Cunningham testified that Fendich had fired the gun
into the river several times.5 The detective who interviewed Fendich also 

testified regarding Fendich's statement that he had fired the gun "three to four 

times."  RP at 392.  Fendich requested that the jury be instructed that the 

"[t]estimony of an accomplice" should "be subjected to careful examination" and 
that such testimony standing alone is insufficient to support a guilty verdict.6  

Clerk's Papers (CP) at 45; RP at 783-85.  The trial court declined to issue this 

instruction.  The jury convicted Fendich as charged.        

       3 Fendich was prohibited from possessing a gun as a result of two felony convictions.  
Fendich had been previously convicted of both residential burglary and arson in the second 
degree in King County Superior Court.  
       4 "A person . . . is guilty of the crime of unlawful possession of a firearm in the first 
degree, if the person owns, has in his or her possession, or has in his or her control any firearm 
after having previously been convicted or found not guilty by reason of insanity in this state or 
elsewhere of any serious offense as defined in this chapter."  RCW 9.41.040(1)(a).
       5 Cunningham was also prohibited from possessing a firearm at the time of the incident.  
He pleaded guilty to unlawful possession of a firearm in the second degree.  However, his plea 
did not require him to testify, and he did not receive any benefit from his testimony. 
       6 Fendich's requested instruction, based upon 11 Washington Practice: Washington 
Pattern Jury Instruction: Criminal 6.05 (3d ed. 2008) (WPIC), stipulated:
       Testimony of an accomplice, given on behalf of the State, should be subjected 
       to careful examination in the light of other evidence in the case, and should be 
       acted upon with great caution.  You should not find the defendant guilty upon 
       such testimony alone unless, after carefully considering the testimony, you are 
       satisfied beyond a reasonable doubt of its truth.
CP at 45. 

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No. 65725-9-I / 4

       Fendich appeals.

                                           II

       Fendich first contends that the trial court erred by declining to instruct the 

jury that, because Cunningham was an accomplice to the crime of unlawful 

possession of a firearm, his testimony should be subjected to careful 

examination.  We disagree.  

       Where evidence exists in the record to support a defendant's theory of 

the case, the defendant is entitled to have the court instruct the jury on that

theory.  State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d 902 (1986).  However, 

a defendant is not entitled to an instruction that is not supported by the 

evidence.  State v. Ager, 128 Wn.2d 85, 93, 904 P.2d 715 (1995). We review a 

trial court's determination that there was insufficient evidence to support the 

defendant's proposed jury instruction for abuse of discretion.  State v. Walker,

136 Wn.2d 767, 771-72, 966 P.2d 883 (1998).  A trial court abuses its discretion 

only where its decision is manifestly unreasonable or based on untenable 

reasons.  State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

       In order for a person to act as an accomplice in the commission of a 

crime, he or she must have "knowledge that it will promote or facilitate the
commission of the crime."7 RCW 9A.08.020(3)(a); State v. Hayes, 164 Wn. App. 

459, 468, 262 P.3d 538 (2011). A person does not, of course, facilitate a crime 

       7 Fendich's proposed jury instruction likewise stipulated that "[a] person is an accomplice 
in the commission of a crime" only where that person has knowledge that his actions "will 
promote or facilitate the commission of the crime." WPIC 10.51.

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No. 65725-9-I / 5

by simply handing a gun to a person who may lawfully possess it.  Nor does a 

person incur accomplice liability by unknowingly handing a gun to a convicted 

felon.  Instead, the person must have knowledge that his or her actions will 

promote and facilitate the crime.  State v. Roberts, 142 Wn.2d 471, 511-12, 14 

P.3d 713 (2000).  Although an accomplice need not have specific knowledge of 

every element of the crime for which the principal is charged, he must have 

"general knowledge of that specific crime."  Roberts, 142 Wn. 2d at 512.  

Accordingly, in order to be entitled to his proposed instruction, Fendich was 

required to produce some evidence of Cunningham's general knowledge that 

Fendich's possession of the gun was unlawful.

       Here, as the trial court correctly determined, there was no such evidence

adduced at trial.  There was no evidence before the trial court to establish that 

Cunningham was aware that Fendich had a criminal record, and no reasonable 

jury could have found that Cunningham had knowledge that handing the gun to 
Fendich would facilitate the crime for which Fendich was charged. 8 Indeed, 

when Fendich's counsel was asked whether any such evidence had been 

adduced, she conceded, "I can't make the argument in good conscience, Your 

Honor, that there was any testimony presented to the jury that would indicate 

that . . . Mr. Cunningham knew the peril that he was placing Mr. Fendich in." RP 

at 789. Accordingly, the trial court's determination that the evidence did not 

       8 It may well be that Cunningham had knowledge that his actions would promote or 
facilitate some other unlawful act.  However, Fendich was charged only with unlawful possession 
of a firearm.  Accordingly, evidence that he was an accomplice for purposes of this particular 
crime was required.

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allow for a determination that Cunningham was an accomplice to the crime of 

unlawful possession of a firearm was neither manifestly unreasonable nor based 

on untenable reasons.  The trial court did not abuse its discretion when it 
declined to issue Fendich's proposed jury instruction.9

                                           III

       Fendich next contends that several statements made by the prosecutor 

during closing argument constituted flagrant prosecutorial misconduct requiring 

reversal.  We disagree.

       "A defendant claiming prosecutorial misconduct must show that the 

prosecutor's conduct was both improper and prejudicial in the context of the 

entire record and circumstances at trial."  State v. Miles, 139 Wn. App. 879, 885, 

162 P.3d 1169 (2007).  We review the propriety of a prosecutor's conduct in the 

context of the total argument, the issues in the case, the evidence addressed in 

the argument, and the instructions given.  State v. Russell, 125 Wn.2d 24, 85-

86, 882 P.2d 747 (1994).  Improper comments are prejudicial only where "'there 

is a substantial likelihood [that] the instances of misconduct affected the jury's 

verdict.'"  State v. Magers, 164 Wn.2d 164, 191, 189 P.3d 126 (2008) (alteration 

in original) (quoting State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995)).  

Moreover, where a defendant does not object and request a curative instruction 

       9 Fendich asserts that "[e]ven if Cunningham knew nothing about Mr. Fendich's 
ineligibility to possess a firearm, Cunningham admitted . . . that he knowingly placed a gun into 
Mr. Fendich's hands."  Br. of Appellant at 9. However, it is not enough that Cunningham 
knowingly handed the gun to Fendich.  Instead, the law requires that an accomplice act with 
general knowledge that he will facilitate the crime charged.  Roberts, 142 Wn.2d at 511-12. 

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No. 65725-9-I / 7

or mistrial, reversal is unwarranted unless we determine that the objectionable 

remark "'is so flagrant and ill-intentioned that it causes an enduring and resulting 

prejudice that could not have been neutralized by a curative instruction to the 

jury.'"  State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting State 

v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).

       Here, Fendich asserts that the prosecutor committed flagrant misconduct 

by misstating the terms of his ineligibility to possess a firearm.  During closing 

argument, the prosecutor told the jury that Fendich knew that he "was not

supposed to be near firearms" and that two different court orders stipulated that 

Fendich could not "be near firearms."  RP at 823-24, 835.  As Fendich correctly 

points out, these court orders in fact specified merely that he was not permitted 

to "possess" firearms.  Exhibit 49, 50.  Although possession may be actual or 

constructive, proximity alone, without proof of dominion and control, is 

insufficient to establish possession.  State v. Raleigh, 157 Wn. App. 728, 737, 

238 P.3d 1211 (2010), review denied, 170 Wn.2d 1029 (2011).  Thus, Fendich

contends that the prosecutor's statements impermissibly lowered the State's 

burden of proof by inviting the jury to convict Fendich for something less than 

actual or constructive possession of a firearm. However, because Fendich failed 

to object to any of these remarks, he must demonstrate that any resulting 

prejudice could not have been neutralized by a curative instruction.

       Fendich's claim of prosecutorial misconduct fails under this standard.  As 

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No. 65725-9-I / 8

our Supreme Court has recently reiterated, in analyzing prejudice, we do not 

assess a prosecutor's remarks in isolation.  State v. Warren, 165 Wn.2d 17, 28, 

195 P.3d 940, 945 (2008). Here, although the prosecutor inaccurately described 

the language of the court orders in closing argument, the jury received copies of 

these notices to aid in its deliberations.  Thus, the jury had access to the actual

language of the terms of Fendich's ineligibility to possess a firearm.  Moreover, 

the jury was properly instructed that, in order to convict Fendich of unlawful 

possession of a firearm in the first degree, it must find beyond a reasonable 

doubt that Fendich had actual or constructive possession of the firearm.  The 

jury was instructed that constructive possession occurs only where "there is 

dominion and control over the item." CP at 93.  Because we presume that the 

jury was able to follow these instructions, Warren, 165 Wn.2d at 28, Fendich has 

failed to demonstrate that the prosecutor's remarks had a substantial likelihood

of affecting the jury's verdict.  Magers, 164 Wn.2d at 191. Moreover, we have 

little doubt that -- had Fendich objected to the prosecutor's inaccurate 

statements -- a simple instruction from the trial court would have been sufficient 

to address any concern emanating from the prosecutor's argument.  Because 

the prosecutor's conduct was not so flagrant and ill-intentioned that any resulting 

prejudice could not have been neutralized by a curative instruction, reversal is 

unwarranted.

       Affirmed.

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No. 65725-9-I / 9

We concur:

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