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ZBlSOCT 22 §Fi 8= 35 iN THE COURT OF APPEALS OF THE S`E`ATE OF WASH|NGTON THE STATE OF WASH|NGTON, ) No. 75075-5-E ) Respondent, ) DlVlS|ON ONE ) v. ) ) GARY BERNARD SANDERS l|, ) ) UNPUBLESHED OP|N|ON Appei|ant, ) ) COREY ASTANE_|V|N MANN, ) ) Defendant. ) FELED: October 22, 2018

SCHlNDLER, J. -- Gary Bernard Sanders ii seeks reversai of the jury conviction for felony murder in the first degree. Sanders claims the trial court erred in refusing to give a clarifying instruction during jury deliberations and insufficient evidence supports the jury finding hirn guiity of the predicate crime of burgiary in the first degree The to~ convict jury instruction and the instruction on the statutory affirmative defense to felony murder in the first degree accurately state the |avv. The jury instructions made the law manifestiy apparent and When read as a whole, were not ambiguous The court did not abuse its discretion by instructing the jury to consider the instructions as a Whole and refusing to give a clarifying instruction We also conclude sufficient evidence supports NO. 75075-5-£/2 the jury finding Sanders guilty of the predicate crime of burglary in the first degree, and affirm the jury verdict FACTS in 2013, 24~year-oid i.atasha Wali<er lived with her boyfriend Kenneth lVchee in an apartment in Kent. lVchee sold Oxycodone. Tiana Rose Wood-Sims lived across the street with her motherl her stepfather, and the young twins of her cousin Corey Astaniivin Niann.

Wood»Sims started spending tirne with Waiker in 2013, “hanging out” and using drugs. VVood-Sirns told her cousin l\/iann that lVicGee kept drugs and a “coupie thousand” doiiars in the bedroom dresser and closet in the apartment Wood-Sims suggested lVlann steal the money and drugs white Nchee was in jail on a probation violation. Wood-Sims would take some of the drugs and |Vlann wouid keep the money and the remainder of the drugs Wood-Sims planned to spend the day with Wali<er away from the apartment so i\/lann could steal the money and drugs from the apartment On June 3, 2013, Mann borrowed a Chevroiet Maiibu. Niann and his sister‘s fiancé Gary Bernard Sanders ll drove from Everett to Burien to pick up Nlichael Vincent Gaiioway. lVlann told Galloway that he planned to commit a “robbery” to get “$15,000 and a bunch of piils.” Niann told Gaiioway that “his cousin had it set up." Nlann showed Ga|loway a text message from Wood~Sirns saying tire "money and the pi|is” were “in a sock in the dresser drawer.” Gailoway agreed to go with Mann and Sanders. But Galioway told Nlann and Sanders he first “wanted to go to my house so i could grab my gun.” Gai|oway got the gun and “tucked it into [his] shorts.” Because it was “bu|ging NO. 75075-5-|/3 out,” Gal|oway decided to put the gun in the trunk of the oar. Nlann and Wood»-Sirns exchanged approximately 62 text messages that day.

L}nbeknownst to Wood-Sirns and |Viann, tV|cGee had been reieased from jaii on dune 3. |Vchee did not tell Waiker because he wanted to “surprise her.” Nchee went to the apartment but “[ri]obody was there." lVchee “grabbed some money,” changed his ciothes, and ieft.

Whiie waiting at the apartment complex in Kent, lVlann got a text from Woodw Sirns saying she and Waiker were in the apartment After Wood-Sims sent the text to lvlann, Waiker “noticed that money was missing and someone had been in the apartment” and cai|ed lVchee’s brotherl i\/iinutes after Wood-Sims and Wa|ker arrived at the apartment, Galloway knocked on the door. When Wood-Sin'is asked, “[VV]ho is it," Galioway said he was “her neighbor” and he needed “a phone” or “jumper cables." Wood-Sims knew the men were there to steal the money and pills. Wood-Sims turned the lock to open the door so they could “come in . . . [t]o get money and drugs." Galloway, l\)lannl and Sanders “rushed” into the apartment Sanders and Ga|loway pushed Wood-Sims onto the couch, put a pillow over her face, and Sanders took her cei| phone. Niann told Sanders and Galioway to stop because “she’s part of it," Mann and Ga|ioway went-into the bedroom. Sanders stayed in the living room.

Wood-Sims heard Waiker sayl “[\Njhat’s going on,” then heard “tussling” and lVlann and Ga|loway “say, where’s the money.” Wa|ker said, “[Hjoid on, hold on," and yelled for Wood~Sims. Wood*Sirns did not respond When “{i]t got quiet after a second,” either Galioway or i\llann “calied Sanders into the room.” Wood-Sims told Sanders to “checi< No. 75075-5-|/4 the closet.” After Sanders went into the bedroom1 Wood-Sims heard “stuff being thrown around” and riffiing.

When Wood-Sirns approached the bedroom door, l\/lann, Galioway, and Sanders came out of the bedroom carrying a “briefcase type thing” and a “pillowcase with things in it.” Wood»Sirns saw Sanders take some video game equipment from the living roorn.

Betore they |eft, lViann slapped Wood-Sirns in the face “to make this look Iegit." Wood-Sims found Wa|ker slumped against the dresser on the floor in the bedroom. tier pants were torn and partialiy pulled down and there was a belt around her necl<, When Waiker did not respond, Wood~Sims ran to get heip. A neighbor calied and performed CPR1 on Walker. When paramedics arrived, V\Ialker had “no pulse." She “was not breathing" and the cardiac monitor showed a "fiat line.”

Niedicai examiner Dr. Aldo Fusaro performed an autopsy. Wa|ker had bruises on her face and lacerations in her mouth from “blunt force" to her face. Dr. Fusaro concluded Wa|ker died from multiple, severe blunt force injuries to her liver, including one laceration that left “the left lobe of the liver . . . almost torn off from the rest of the liver," that caused her to bleed to death lV|cGee reported a number ot items were stolen from the apartment, including two laptops, diamond earrings, a gold i\/iichael Kors watch, and baseball hats.

Wood-Sims, Gai|oway, Niann, and Sanders gave statements to the police On l\/iarch 5, 2014, Sanders toid the police he had been “part of a robbery, at Latasha Walker’s horne, in June of 2013.”

No. 75075-5-¥/5 On i\/iarch 12, 2014, the State charged Galloway, iVlann, Wood-Sims, and Sanders “and each of them” with feiony murder in the first degree of Latasha Waiker.

The information aiieged that on dune 3, 2013, “in the course of and in furtherance of" committing robbery in the first or second degree and "in immediate flight therefrom,” the defendants caused the death of Waiker in vioiation of RCW 9A.32.030(t)(c). Wood- Sims and Gai|oway pieaded guiity to murder in the second degree and agreed to testify at tria|.

The State fiied an amended information charging Niann and Sanders with feiony murder in the first degree of Latasha Waiker. The information aiieged that in the course of and in furtherance of committing robbery in the first or second degree or burglary in the first degree, the defendants caused the death of Waiker in violation of RCW 9A.32.030(‘i)(c). iVlann and Sanders pleaded not guiity.

RCW 9A.32.030(‘l )(c) defines the crime of felony murder in the first degree as foilows: A person is guilty of murder in the first degree when . _ . [hje or she commits or attempts to commit the crime of either . . . robbery in the first or second degree . . . [or] burglary in the first degree, . . . and in the course of or in furtherance of such crime . . . , he or she, or another participant, causes the death of a person other than one of the participants RCW 9A.32.030(1)(c) states it is an affirmative defense to felony murder in the first degree if the defendant is “not the oniy participant in the underiying crime" and the defendant establishes by a preponderance of the evidence that he: (i) Did not commit the homicidal act or in any way soiicit, request, command, importune, cause, or aid the commission, thereof; and (ii) Was not armed with a deadly weapon, or any instrument, article, or substance readily capable of causing death or serious physical injury; and No. 75075~5-1/6 (iii) Had no reasonabie grounds to believe that any other participant was armed with such a weapon, instrument, article, or substance; and (iv) Had no reasonabie grounds to believe that any other participant intended to engage in conduct likeiy to resuit in death or serious physical injury_ The State caiied over 20 witnesses during the four‘week jury trial, including Wood~Sirns, Galloway, the medical examiner, and detectives The court admitted into evidence more than 50 exhibits Wood-Sims testified that the original pian “was ustc not even be there" but the “plan evolve[d] as it went along." Wood“Sims said Galloway knocked on the door and asked if he could use the phone “because something happened with his car; he was her neighbor." Wa|ker thought it was iVchee’s brother and went into the bedroom. Wood»- Sims testified that “we had cocaine out” and lVchee’s brother “didn't know that [Walker] was doing drugs; so she kind of panicked. So she said, go get the door, and she shut the bedroom door." Wood-Sims said that “then l asked her, can l open the door? l told her that it was her neighbor, and she said, go ahead, iet them use the phone.”

Wood-Sims testified that when Sanders left the iiving room to go into the bed room, she told Sanders to “check the closet.”

Wood-Sims testified that she pieaded guilty to murder in the second degree and the State would recommend 220 months in prison “Because i’m not innocent of Latasha’s death And l do need to pay my dues to her, to her family, and to society, and it’s just that l have to do that for Tasha. `i`hat’s just what’s right.”

Galioway testified he did not take his gun into Wa|ker*s apartment Galioway said Sanders pushed Wood»Sims onto the couch in the iiving room but Nlann told him to stop because “she’s part of it.” Galloway testified that while he searched the dresser, NO. 75075-5-¥/7 Niann wrestied with Wa|ker in the bedroom. When Galloway “couldn’t find” any money or drugs in the dresser, he searched the cioset. Gailoway testified that while he searched the bedroom cioset, Sanders and i\/lann were “on the bed with [Waiker], struggling." Galloway testified that he saw Mann hold Waiker from behind, with her back to his chest, and he had “her arms pinned close to her side.” Sanders “was on top of her, hoiding her down.” Waiker was “trying to fight her way from the strugg|e.” As Galioway walked out of the bedroom to search a second bedroom, he saw Sanders “hit [Walker] up to four times in her stomach.” When Galloway went back in the bedroom, he saw Waiker lying facedown on the fioor with a belt around her neck and Sanders sitting on the edge of the bed next to her, “holding onto the end” of the beit.

Gal|oway said he “grabbed everything that l thought l could sell.” Gailoway took basebail hats and a laptop. Galloway saw Sanders take “some Xbox controilers and some video games” from the iiving room. Galloway testified that before they left the apartment lVlann said, “[V\Ije got to make this look iegit” and “hit [V\lood»Sirnsj open- handedly, in her face.”

Galloway testified that he, lVlann, and Sanders drove to Burien Gailoway dropped off i\Aann and Sanders at the house where lVlann’s sister and her husband Dejuan Weems iived. Galloway picked up his girifriend and drove horne “a few biocks” away. Galioway testified that white he “was trying to retrieve my gun . . . from the trunk,” he accidentaily “left the keys sitting in there" and “slammed" the trunk ciosed.

Gailoway caiied Mann for heip. l\/iann and Sanders took a taxi to Galloway’s apartment. i\/lann broke the lock with a screwdriver and retrieved the keys to the car. Gaiioway1 his No. 75075-5~|/8 girlfriend, Mann, and Sanders drove to Everett. Gai|oway dropped off Mann and Sanders at Sanders’ house on Casino Road. After about an hour, Gailoway drove back to Burien with his girlfriend and i\/lann.

The court admitted into evidence the phone records for V\i'alkerl Wood-Sims, and Mann’s ce|i phones. Kent Police Detective Brendan Wales testified the phone records for Wa|ker’s cell phone showed her Samsung Galaxy 83 “turned up” on the T-iVlobile network “under somebody else’s” phone number. Detective Waies testified that a coworker of Dejuan Weems had the Galaxy 83. 'fhe coworker said Weerns sold him the phone.

Detective Waies testified the phone records for Wood'Sims' and Mann’s ceil phones showed there were more than 60 text messages between Wood-Sims and Mann on June 3, 2013. The June 3 phone records showed that after Wood-Sims' phone was stoien, the phone went from Kent, to Burien, and then “up to Everett.”

Detective Wales said that “[o]ne of the [cell phonej towers that . . . the phone used was on Casino Road." Detective Wales testified that Sanders iived on Casino Road in Everett. Detective Waies testified the June 3 records for Mann's cell phone showed the phone was in the "Burien area, then Kent near the time of the homicide, and then back to the Burien area, and then ail the way to Everett later in the night." i\/iedical examiner Dr. Fusaro testified that Waiker had abrasions on her chin and tower lip, lacerations on the inside of her iip, and contusions on her ieft cheek. Dr. Fusaro said there was more than a liter of “thick, bloody material” in Wa|ker’s abdomen as a result of “tears to both sides of her liver." Dr. Fusaro testified the injuries to No. 75075~5-¥/9 Waiker’s iiver were caused by a “biunt force injury." Dr. Fusaro said Wa|ker died from “blood in the abdomen, due to iiver iacerations, due to blunt force injury.”

Sanders caiied Juan Rodriguez to testify. Rodriguez testified that when in jail with Niann, Mann told him he “kiiied a giri the summer of 2013.” Nlann said, “[Tjhey were going to go get pills or money or something and it just went south from there.”

Rodriguez testified Niann said he “was beating her up” and the girl “stopped breathing.”

Mann toid Rodriguez that his “sister's baby’s daddy" Sanders and Galioway were “invoived” and "helping him out." On cross-examination Rodriguez admitted that he previously told Detective Wales that Mann said “they were all beating her up” and both Gailoway and Sanders “helped beat Latasha Waiker." Rodriguez testified that Mann said he “hit the girl in the face" and iVlann thought Sanders “had something in his hand when he hit Latasha Waiker. . . because [l\llann] heard a ciunk.”

Sanders testified Sanders said he thought Mann was taking him “up to the mini- mart" on June 3, 2013. According to Sanders, after Mann kept driving, Sanders asked, “[V\I]here are you going.” lVlann toid Sanders he “need[ed] to get some money.”

Sanders insisted neither Mann nor Galioway told him what they were “about to do." When they arrived at the apartment in Kent, Sanders said he “hesitated . . . and then [Niann] toid me to come on." Sanders said he was “shocked" that Galioway asked someone inside the apartment for “jumper cabies, or a phone or something.” Sanders admitted Gailoway had a gun but said the “first time [he] saw the gun” was in the apartment “on the way out.” |\io. 75075-5-|/10 Sanders testified that he did not push Wood»Sims, put a piliow over her face, or take her ceil phone. Sanders said that white he was in the iiving room, he “heard a scream" and a commotion in the bedroom and then “it got quiet.” Sanders testified either Mann or Gai|oway called him and he went to the bedroom but “didn’t go inside the room.” Sanders testified he saw “a woman on the fioor" and Gai|oway and iVlann Were “looking for stuff.” Sanders said he did not touch the beit or Waiker. Sanders testified that before they left the apartment, Wood~Sims told Nlann, “[onu have to make it iook good” but toid him not to “slap me hard.” Sanders said Nlann slapped Wood-Sims “{j]ust one time, reai hard," to “make it look like [Wood-Sims] was a victim.”

Sanders testified that he did not take anything from the apartment According to Sanders, after they drove to Gaiioway’s apartment in Burien, Sanders toid Mann to “get me home.” Sanders testified that i\/iann called a taxi to take him horne to Everett.

On cross-examinationl Sanders admitted that on iVlarch 5, 2014, he toid the detectives that he “had been part of a robbery, at Latasha Waiker’s home, in June of 2013." Sanders admitted he told the detectives that he had an agreement with Mann to “get $1,000 in return for [his] assistance with the robbery and the burglary.” Sanders told the detectives that lV|ann “wanted me to look for the stuff, that the stuff wouid be in a drawer, that it would be some piiis and some money.” Sanders testified that he was in Wa|ker‘s apartment “not because she invited” him in, but because he “was there to take her stuff.”

Sanders admitted he told Detective Wales that he "went in” Wa|ker's bedroom and “looked in the drawers Whiie lVlichael Gailoway and lVir. Mann were in the room.”

Sanders testified he was “abie to look through the drawers . . . because Corey i\/iann ‘iO No. 75075-5-|/11 was physicaiiy restraining Latasha Walker” on the bed Sanders testified that he “never saw” Ga|ioway “touch” Waiker. According to Sanders while he and Galioway iooked “for things in the dresser drawers,” Mann grabbed Waiker, “puliing her towards the bed[,] . . . choking her . . . or trying to hold her arms down.” Sanders said that “at some point," he left the bedroom, then “returned to i_atasha Waiker’s bedroom to find her with a beit around her neck.” Sanders admitted telling the detectives that he “touched the belt around her neok." Sanders testified he tried to take the beit off Wa|ker’s neck but he “couldn’t get it off." Sanders admitted he told the detectives her “jeans had been cut." Sanders insisted he “did not take anything” from the apartment and did not “hit Latasha Waiker.”

At the conclusion of the evidence the State proposed giving a set ofjury instructions as to Sanders oniy. The State proposed a jury instruction on the affirmative statutory defense to feiony murder in the first degree The State also proposed instructions on the lesser included crimes of robbery in the first degree and burglary in the first degree Sanders agreed and adopted the State’s proposed jury instructions as “his own proposal." ln addition, Sanders also proposed giving an instruction on felony murder in the second degree The jury instructions state, “The order of these instructions has no significance as to their reiative importance They are all important . . . During your deiiberations, you must consider the instructions as a whole." The court instructed the jury that “[a] separate crime is charged against each defendant You must decide the case of each defendant separately Your verdict as to one defendant should not control your verdict 'I‘i No. 75075-5-¥/12 as to the other defendant." The court instructed the jury on felony murder in the first degree and accomplice iiability. The court instructed the jury on the iesser inciuded crimes and the affirmative defense that applied to Sanders only. The jury instructions state that instructions 24A through 24i “appiy only to defendant Gary Sanders.” Jury instruction 24A states felony murder in the second degree robbery in the first degree and burglary in the first degree are the lesser inciuded crimes of feiony murder in the first degree Jury instruction 243 defines felony murder in the second degree Jury instruction 240 defines theft in the second degree Jury instruction 240 defines attempted theft in the second degree Jury instruction 24E defines “substantial step." Jury instruction 24F is the to~convict instruction for felony murder in the second degree Jury instruction 24G is the statutory affirmative defense to murder in the first and second degree instruction duty instruction 24i-l is the to-convict instruction on robbery in the first degree Jury instruction 24l is the to-convict instruction on burglary in the first degree The jury found Mann and Sanders guilty of felony murder in the first degree ANALYSES Sanders asserts the court vioiated his right to due process and to presents defense by refusing to give a clarifying instruction to the jury during deliberations Sanders claims the to-convict jury instruction and the affirmative defense jury instruction were ambiguous The United States Constitution and the Washington State Constitutiori guarantee defendants the right to present a defense U.S. CoNsr. amends Vl, X|V; WAsr-i. Coi~rsr. art. i, § 22. We review a challenged jury instruction de novo. State v. Brett, 126 Wn.2d 12 NO. 75075-5-|/13 136, 171, 892 P.Zd 29 (1995). A jury instruction that misstates the iaw may be an error of constitutional magnitude § State v. Marguez, 131 Wn. App. 566, 575~76, 127 P.3d 766 (2006). We review de novo alleged errors of iaw in jury instructions State v. lEiarnesl 153 Wn.2d 378, 382, 103 P.3d 1219 (2005). “ ‘Jury instructions are sufficient when they aliow counsel to argue their theory of the case, are not misleading and when read as a whole property inform the trier of fact of the applicable iaw.’ ” State v. Knutz, 161 Wn. App. 395, 403, 253 P.3d 437 (2011)2 (quoting State v. Aguirre, 168 Wn.2d 350, 363-64, 229 P.3d 669 (2010)). When read as a whole jury instructions must make the applicable iegai standard “ ‘manifestiy apparent to the average juror.’ ” State v. t.eFaber, 128 Wn.2d 896, 960, 913 P.2d 369 (1996), abrogated on other grounds bv State v. O’i-lara, 167 Wn.2d 91, 217 P.3d 756 (2009)3 (quoting State v. Alier_y, 101 Wn.2d 591, 595, 682 P.2d 312 (1984)).

The court used 11 Washington Practice: Washington Pattern Jury instructions Criminai 26.04, at 366 (3d ed. 2008) (VVPEC), to instruct the jury on the eiements of the crime of felony murder in the first degree The to-convict “Jury instruction 13" states: To convict a defendant of the crime of iVlurder in the First Degree each of the foliowing eiements of the crime must be proved beyond a reasonabie doubt: (1) That on or about June 3, 2013, the defendant committed Robbery in the First Degree or Burglary in the First Degree; (2) That the defendant or another participant in the crime caused the death of Latasha Waiker in the course of or in furtherance of such crime; (3) That Latasha Waiker was not a participant in the crime of Robbery in the First Degree or Burgiary in the First Degree; and (4) That any of these acts occurred in the State of Washington. if you find from the evidence that each of these eiements has been proved beyond a reasonable doubt, then it wiii be your duty to return a

No. 75075-5-!/14 verdict of guilty.

On the other hand, if, after weighing ali of the evidence you have a reasonable doubt as to any one of these eiements, then it wiii be your duty to return a verdict of not guilty.

The court used VVPiC 19.01, at 291, to instruct the jury on the affirmative defense to felony murder in the first degree and felony murder in the second degree WPiC 19.01 is based on the statutory afhrmative defense RCW 9A.32.030(1)(c) and .()50(‘i)(b).4 State v. Fisher, 185 Wn.2d 836, 848, 374 P.3d 1185 (2016); WP|C 19.01 cmt. at 292. Jury instruction 246 states: lt is a defense to a charge of lViurder in the First and Second Degree that the defendant: (1) Did not commit the homicidai act or in any way solicit, request, command importune, cause or aid the commission thereof; and (2) Was not armed with a deadly weapon, or any instrument, articie, or substance readily capable of causing death or serious physicai injury; and (3) Had no reasonabie grounds to believe that any other participant was armed with such a weapon, instrumentl article or substance; and (4) Had no reasonable grounds to believe that any other participant intended to engage in conduct likeiy to result in death or serious physical injury.

The defendant has the burden of proving this defense by a preponderance of the evidence Preponderance of the evidence means that you must be persuaded considering all the evidence iri the case that

f The feiony murder in the second degree statute RCW 9A.32.650(1)(b) includes the same affirmative defense as felony murder in the first degree RCW 9A.32.030(1)(c). RCW 9A.32.050(1)(b) StateSZ A person is guilty of murder in the second degree when . . . [h]e or she commits or attempts to commit any feiony, including assauit, other than those enumerated in RCW 9A.32.G30(1)(c), anci, in the course of and in furtherance of such crime or in immediate flight therefrom, he or she or another participant, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision (1)(b) in which the defendant was not the only participant in the underiying crime if estabiished by the defendant by a preponderance of the evidence it is a defense that the defendant: (i) Did not commit the homicidal actor in any way soiicit, request, command importune cause or aid the commission thereof; and (ii) Was not armed with a deadly weapon, or any instrument, article or substance readiiy capable of causing death or serious physical injury; and (iii) Had no reasonable grounds to believe that any other participant was armed with such a weapon, instrument, artic|e, or substance; and (iv) i-iad no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physicai injury.

NO. 75075-5-|/15 heid: it is more probabiy true than not true. lf you find that the defendant has estabiished this defense it wili be your duty to return a verdict of not guilty as to this charge.fSi ln State V. Gamboa, 38 Wn. App. at 409, 413, 685 P.Zd 643 (1984), the court The statutory defense when read as a whole, negates none of the elements the State was required to prove ii, that the defendants took personal property from the victim by the use or threatened use of force in the course of which activity the victim’s death was caused. The defense merely permits an accused to disprove his participation in the homicidal a_c_t1 not in the underiying feiony, and to establish that he was not armed and was ignorant of his coparticipant's being armed and of the likelihood of death or serious physical iniury.[61 See aiso State v. Rice, 102 Wn.2d 120, 126, 683 P.ZG 199 (1984).

The concluding instruction states, in pertinent part: When compieting the verdict forms for defendant Gary Sanders, you wiii first consider the crime of lVlurder in the First Degree as charged if you unanimously agree on a verdict, you must fill in the biank provided in verdict form A the words “not guiity” or the Word “guilty,” according to the decision you reach. |f you cannot agree on a verdict, do not fili in the blank provided in Verdict Form A. if you find the defendant Gary Sanders guiity on verdict form A, do not use verdict forms B, C, or D. If you find the defendant not guiity of the crime of Murder in the First Degree or if after full and careful consideration of the evidence you cannot agree on that crime you will consider the lesser crirne of lVlurder in the Second Degree |f you find the defendant not guilty of the crime of Niurder in the Second Degree or if after full and careful consideration of the evidence you cannot agree on that crime you will consider both iesser crimes of Robbery in the First Degree and Burglary in the First Degree You must consider each of these crimes separately Your verdict on one crime shouid not control your verdict on the other. if you unanimously agree on a verdict for these crimes, you must fii| in the blank provided in verdict form C and D the words “not guiity” or the word “guiity”, according to the decision you reach.

NO. 75075-5-|/16 Sanders does not contend that the to-convict felony murder in the first degree jury instruction or that the statutory affirmative defense to felony murder jury instruction do not accurately state the law.7 Sanders ciaims the instructions are ambiguous because the to-convict instruction states that if the jury finds the State has proved the elements of the crime “beyond a reasonable doubt, then it will be your duty to return a verdict of guilty,” but the affirmative defense instruction states that if Sanders proves the affirmative defense by a preponderance of the evidence “it will be your duty to return a verdict of not guiity” to the charge of felony murder in the first degree.

Considered as a whoie, we conclude the instructions are not ambiguous and cleariy address the reiationship between the to-convict instruction and the affirmative defense instruction 'i'he jury instructions state that during deiiberations, the jury sha|i “consider the instructions as a whoie.” The first sentence of the affirmative defense instruction unequivocaliy states, “lt is a defense to a charge of Niurder in the First and Second Degree." The affirmative defense jury instruction states that if Sanders shows by a preponderance of the evidence that he did not commit the homicidal act, was not armed with a deadiy weapon, had no reason to believe anyone else was armed, or had no reason to beiieve anyone else intended to engage in conduct likely to cause death or serious physical injury, it is a cornpiete defense to felony murder in the first degree and the jury must find Sanders not guiity.

We review a trial court’s decision as to whether to give further instructions in response to a request from a deiiberating jury for abuse of discretion. State v. Brown,

NO. 75075-5~|/17 132 Wn.2d 529, 612, 940 P.2d 546 (1997). A triai court’s refusal to give a proposed jury instruction is reviewed for an abuse of discretion in re Det. of Pouncy, 168 Wn.2d 382, 390, 229 P.3d 678 (2010). lt is within the sound discretion of the trial court whether to give further instructions to a jury after it has begun deiiberations. State v. Ng, 110 Wn.2d 32, 42, 750 P.Zd 632 (1988). A trial court abuses its discretion only if its decision is manifestly unreasonabie rests on untenable grounds, or is made for untenable reasons. State ex rel. Carroii v. Junker, 79 Wn.2d 12, 26, 482 P.Zd 775 (1971).

Where the instructions accurately state the |aw, the trial court need not further instruct the jury. Ng, 110 Wn.2d at 42-44. A court does not abuse its discretion by referring the jury to the instructions aiready given that correctly state the law. Ng, 110 Wn.2d at 42-44. Jury questions do not create an inference that the “entire jury was confused, or that any confusion was not clarified before a final verdict was reached.”

§g, 110 Wn.2d at 43.8 “ '[Q]uestions from the jury are not final determinations.’ ” §g, Wn.2d at 439 (quoting State v. Mi|ler, 40 Wn. App. 483, 489, 698 P.2d i123 (1985)). “ ‘[T]he decision of the jury is contained exclusively in the verdict.’ " _i§|_g, 10 Wn.2d at 43 (quoting Mj]jer, 40 Wn. App. at 489).10 During deiiberations, the jury submitted three “Jury De|iberations Question” forms. On the first day of deliberations, the jury submitted a Jury Deiiberations

1° We note that where as here a defendant agrees to and proposes a jury instruction, the defendant cannot challenge the instruction on appea|. State v. Henderson, 114 Wn.2d 867, 870-71, 792 P.2d 514 (1990).

No. 75075~5“|/1 8 Question: “Does the instruction # 13 apply to Defendant Gary Sanders.” Sanders’ attorney and the prosecutor agreed the court should respond by stating, “Yes.”

The next morning, the jury submitted a second Jury Deliberations Question: As it reiates to Defendant Sanders: There are questions regarding the sequence of deliberations as it reiates to the instructions Question #1 lf the jury determines that a_|i of the eiements of the crime as identified in instruction 13 are proven, how is the jury to apply instruction 24G?

Question #2 If the jury determines that the defenses identified in instruction 246 are atl proven out, how does that fact affect the proof estabr§$hed in instruction #13?li1i Sanders proposed the court respond by stating, “if the jury agree that the four factors in instruction 246 have been estabiished, the verdicts for Defendant Gary Sanders on Verdict Forms A and 8 as to him should be Not Guiity." Sanders aiso proposed submitting a special verdict form to the jury asking, “Do the jury find that each of the four factors iisted in instruction 24G has been estabiished.” The court rejected the proposed response and speciai verdict form. The court responded to the jury inquiry by stating, “Piease re-read your instructions carefully The use of verdict forms and how they are to be applied is contained within."

i\|o. 75075-5-|/19 That afternoon, the jury submitted a third Jury Deiiberations Question: As it reiates to Defendant Sanders: Can the jury convict for murder in the ist degree based upon itern 13 as written, without consideration of instruction 24G.

Sanders argued the jury question was “ambiguous” and proposed the court give “a substitute To-Convict instruction . . , for each offense felony murder 1 and the iesser crime of feiony murder 2, in which the `i'o-Convict instruction for each offense adds the absence of the four factors of affirmative defense.” The court rejected the request The court responded, “You rnust consider ali the instructions as a whoie. Read the instructions in their entirety.”

The foliowing morning, the jury returned a verdict finding Sanders guilty of felony murder in the first degree There is no dispute the court fuiiy and fairly responded to the firstjury inquiry Because the second jury inquiry specifically asked questions “regarding the sequence of deiiberations” for the to-convict and the affirmative defense we conciude the court did not abuse its discretion by rejecting Sanders‘ request to provide a suppiernentai instruction or a special verdict form and instructing the jury to consider the instructions as a whole and read the instructions in their entirety. Because the jury instructions made the law manifestly apparent and were not ambiguous, the court did not abuse its discretion in responding to the third jury question by instructing the jury that it must read the instructions in their entirety as a whoie. We presume that jurors follow the court’s instructions. State v. Kaiebaugh, 183 Wn.2d 578, 586, 355 P.3d 253 (2015).

Sanders contends there is insufficient evidence to support the predicate crime of burgiary in the first degree and the feiony murder conviction. We considered and

No. 75075-5-i/20 rejected the same argument in State v. Mann, 4 Wn. App. 2d 1034, 2018 WL 3238683, at *5-*7. We adhere to our decision in Mann.

We afhrm the jury conviction of felony murder in the first degree

WE CONCURZ ` 1 ._._»-" ¢--“_’ WMC, ACT)" (`\(."'<Q\]//, ‘\) -‘G, J