Written by attorney Casey Matthew Arbenz

Mere presence – not a crime! -- By Casey Arbenz

A recent Hester Law Group case involved a client who let a few of his friends live in his detached garage. These "friends" created a meth lab in the garage, and our client was charged as an accomplice for manufacturing methamphetamine based solely upon the following evidence: (1) he shared the same numbered address as the co-defendant's and, (2) on one occasion, he was observed entering and remaining in the garage for "several minutes." Washington Courts have long held that a person is not an accomplice when he or she is merely present at the scene of a crime. In Re Wilson, 91 Wn.2d 487, 491-492, 588 P.2d 1161 (1979). In Wilson, the Court stated: [A] person is not an accomplice unless he or she knowingly 'solicits, commands, encourages, or requests' the commission of a crime, or aids in the planning or commission thereof. Washington case law has consistently stated that physical presence and assent alone are insufficient to constitute aiding and abetting. See, e.g. State v. Peasley, 80 Wash. 99, 141 P. 316 (1914); State v. Redden, 71 Wn.2d 147, 426 P.2d 854 (1967). Presence at the scene of an ongoing crime may be sufficient if a person is 'ready to assist'. State v. Aiken, 72 Wn.2d 306, 349, 434 P.2d 10 (1967). In Re Wilson, 91 Wn.2d at 491. Similarly, in State v. J-R Distribs., Inc., 82 Wn.2d 584, 593, 512 P.2d 1049 (1973), the court stated: One does not aid and abet unless, in some way, he associates himself with the undertaking, participates in it as in something he desires to bring about, and seeks by his action to make it succeed. State v. Gladstone, 78 Wn.2d 306, 474 P.2d 274, 42 A.L.R.3d 1061 (1970); Nye & Nissen v. United States, 336 U.S. 613, 619, 93 L. Ed. 919, 69 S. Ct. 766 (1949). Mere knowledge or physical presence at the scene of a crime neither constitutes a crime nor will it support a charge of aiding and abetting a crime. State v. Gladstone, supra; State v. Dalton, 65 Wash. 663, 118 P. 829 (1911). Id. In Wilson, the defendant's friends' pulled weather-stripping from office windows and then tied it into a rope of sorts and strung it across a road and pulled it tight - creating an obstacle for passing motorists. The juvenile court convicted Wilson as an accomplice because he was present, had knowledge of the theft (of the weather-stripping) and was personally acquainted with the participants. The Supreme Court reversed the juvenile court's ruling and stated: Even though a bystander's presence alone may, in fact, encourage the principal actor in his criminal or delinquent conduct, that does not in itself make the bystander a participant in the guilt. It is not the circumstance of "encouragement" in itself that is determinative, rather it is encouragement plus the intent of the bystander to encourage that constitutes abetting. We hold that something more than presence alone plus knowledge of ongoing activity must be shown to establish the intent requisite to finding Wilson to be an accomplice in this instance. In Re Wilson, 91 Wn.2d at 492. In our client's case, the prosecutor, after reviewing our motion to dismiss based on the aforementioned case law, dismissed the charges - and now, like before, mere presence is not a crime.

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