Opinion
No. 36462-0-II.
June 3, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 07-8-00091-6, Wm. Thomas McPhee, J., entered June 20, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton, C.J., and Quinn-Brintnall, J.
Dereck Belz appeals his juvenile court adjudication that he committed first degree manslaughter while armed with a firearm. He argues that (1) substantial evidence does not support the trial court's findings of fact, (2) the findings do not support the conclusions of law, and (3) the trial court applied the wrong standard in finding that he acted recklessly. We affirm.
Facts I. Background
On May 9, 2006, at around noon, Dereck Belz, a minor, visited the Yelm home of Terry Howick, an adult for whom Belz frequently performed household chores. Around 1:30 pm, Howick observed Belz in his living room playing with a firearm that Howick had left in his bedroom; Belz was removing and replacing the magazine clip's ammunition. By the time Howick left to visit a neighbor 15 minutes later, Belz had put away the firearm.
Belz was born on February 19, 1993. He was 13 when this incident occurred.
Around the same time, juveniles Brandon McMellen and Eric Holmes rode their bicycles to Howick's house to borrow a tool to fix some loose parts on McMellen's bicycle. McMellen had also previously performed chores for Howick, but Holmes had never before visited Howick's house. The two boys found Howick standing in his neighbor's garage. Howick gave McMellen permission to use his tools, but instructed McMellen to tell Belz not to play with the firearms.
McMellen was born November 1, 1991.
Holmes was 13 at the time of the incident.
A. Belz and the Firearm
As the two boys entered Howick's home, McMellen observed Belz playing with a firearm. When Belz pointed the firearm at McMellen and Holmes, McMellen became concerned, took the firearm from Belz, ejected the magazine clip, removed a round of ammunition from the chamber, and set the firearm on a lamp table. Although McMellen did not see Belz pick up the firearm again, Belz reloaded the firearm, saying that Howick did not like his firearms unloaded. At some point, Belz placed the firearm in a holster at his side.
When Howick returned to the house, McMellen asked if the three boys could go out to a motor home located on Howick's property to inspect it for stolen items. Howick consented. The boys left Howick's home, entered the motor home through a rear side door, and began looking around the motor home for stolen items. When Belz told McMellen about a bicycle sitting against a back fence, McMellen exited the motor home through the driver's side door to investigate.
The witnesses alternatively refered to a "motor home" or a "trailer." For consistency, we refer to the vehicle as a "motor home."
Howick had recently rented the motor home to a man referred to as "crazy Joe," who had stolen property from Howick.
B. Shooting
Less than 30 seconds later, McMellen heard a loud noise, like "two pieces of plywood slapping together," rushed back into the motor home, and observed Holmes slumped against the passenger side door with a single gunshot wound in the center of Holmes' forehead. McMellen quickly exited the motor home, where he encountered Belz. Belz stated that the firearm had fallen off the motor home's dashboard and had accidentally discharged. McMellen and Belz ran into the house and shouted for Howick to call 911. The two boys then took off on their bicycles.
At no time did McMellen observe Belz with a firearm while inside the motor home.
Howick called 911, rushed out to the motor home, and held a cloth to Holmes' forehead. At this point, McMellen returned to the motor home to help, and talked to the 911 operator on Howick's cell phone while Howick performed cardiopulmonary resuscitation on Holmes. Howick instructed McMellen to find the firearm. McMellen located the firearm on top of the bed in the motor home, took the firearm outside, ejected the magazine clip, removed the bullet from the chamber, and dropped the firearm and other items on the ground. McMellen noticed that this was the same firearm he had earlier taken away from Belz.
Paramedics arrived and Holmes was air lifted to Harborview Medical Center where doctors pronounced him dead.
C. Investigation
At the scene responding officers questioned witnesses, including McMellen, Howick, and Belz, who had returned with his mother. Sergeant Chris Edin questioned Belz about his Page 4 involvement. Sergeant Edin advised Belz that he was not under arrest, but read him his Miranda rights as well as a juvenile rights warning, which Belz waived. Belz told Edin that (1) Howick had given him (Belz) the firearm because a man staying on Howick's property had been in jail, and Howick feared for their safety; (2) he (Belz) had carried the firearm around that day in a holster on his side; and (3) Howick had showed him (Belz) the safety mechanism on the firearm and had briefly instructed him about its use.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
When questioned about the events leading up to Holmes' injury, Belz stated that (1) while in the motor home with McMellen and Holmes, he had repeatedly bumped the firearm, so he removed it from the holster and set it on the table; (2) he had heard something scratching at the back of the motor home, got up to investigate, and, in the process, bumped the table, causing the firearm to fall to the floor; (3) when the firearm fell, Belz heard a shot and saw Holmes, who had been standing, fall over, and his (Belz's) "eyes went black"; and (4) he (Belz) became frightened and ran out of the motor home. Belz denied having pointed the firearm at Holmes or ever touching the firearm between when he put it on the table in the motor home and when it fell and discharged.
Belz gave a consistent version of these events to Detective Jeff DeHan. In his statement to Detective DeHan, McMellen also reported that Belz told him the gun fell, though from the dashboard, not the table, and accidentally discharged.
Skeptical about Belz's version of events, DeHan sent the firearm to the Washington State Crime Lab for testing.
II. PROCEDURE
After receiving the Crime Lab reports, the State charged Belz with first degree manslaughter while armed with a firearm and second degree unlawful possession of a firearm.
The State charged Belz under RCW 9A.32.060(1)(a), RCW 13.40.196, and RCW 9.41.040(2)(a)(iii).
At trial, the State's witnesses testified that Belz's version of events was implausible. Matthew Noedel, a forensic scientist, reviewed the witnesses' statements, the firearm (a Star .380 handgun), the magazine, a fired cartridge case and some cartridges. He concluded that the firearm did not accidentally discharge. Noedel stated that the cartridge case found in the motor home had markings, such as firing-pin drag, ejector marks, and case deformation, consistent with someone pulling the trigger. Noedel also noted that the firearm had an unfired round in the chamber, indicating that the firearm had cycled, which happens only when someone pulls the trigger.
Noedel further testified that during drop tests the firearm left a divot where it hit the floor. But when he had inspected the motor home, he found no such divot on the floor consistent with the firearm having fallen from the table onto the floor. Noedel also did not believe the firearm had fallen from the table because McMellen had found the firearm on the bed, and Noedel found it unlikely that the firearm would have bounced the 20 inches from the floor to the bed.
Both Belz and Howick denied having touched the firearm after it discharged.
Brenda Lawrence, a forensic scientist with the Washington State Patrol Crime Laboratory, also examined the Star .380 recovered from the scene. Lawrence performed a drop test of the firearm and could not recreate an accidental discharge as a result of the drop. Even Belz's expert witness, Roy Ruel, testified that the firearm likely went off while in someone's hand as a result ofsomeone pulling the trigger.
Several State witnesses also testified about Belz's knowledge of firearms. Howick admitted to having given Belz a firearm and stated that he had given Belz instructions about how to unload the weapon, as well as safety instructions the day before the shooting. In particular, Howick stated that he told Belz never to point a firearm at anything he was not willing to "blow up," and always to assume a firearm was loaded. Howick further testified that he gave Belz the firearm for protection against "crazy Joe," whom Howick believed to be dangerous.
Howick testified inconsistently about when he had given Belz the firearm. When Howick pleaded guilty to delivery of a firearm to an ineligible person, his statement said that he gave Belz the firearm on May 9. During his trial testimony, however, Howick maintained that he gave Belz the firearm on May 8. In its findings of fact, the trial court did not find credible Howick's claim that he had given Belz the firearm the day before the shooting.
David Myers, the assistant principal at Yelm Middle School (YMS) where Belz attended 7th grade, also testified. Myers stated that the school (1) at the start of each year, gave each student a handbook, which forbids weapons on school grounds, (2) posted signs prohibiting weapons on school grounds, and (3) performed "lock-down" drills in response to Columbine-like incidents, informed students why they hold these drills. Myers further testified that in his experience, middle school-aged children are aware of why having weapons is a bad idea, and they know that firearms are dangerous and can kill someone.
Belz did not testify. The juvenile court adjudicated that Belz had committed the charged acts. It imposed a standard range disposition.
Belz appeals.
ANALYSIS I. Findings of Fact
Belz first argues that substantial evidence does not support findings of fact 5, 6, 7, and 15, in which the trial court found that Belz had knowledge of the dangers associated with firearms and knew that the Star .380 was loaded. This argument fails.
A. Standard of Review
Sufficient evidence to support a respondent's conviction exists if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the light most favorable to the State. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). An appellant claiming insufficiency of the evidence "admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Thomas, 150 Wn.2d at 874 (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). We view both circumstantial and direct evidence as equally reliable, and defer to the trier of fact on issues of conflicting testimony, witness credibility, and the persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75.
We review findings of fact in a juvenile matter for substantial evidence. State v. B.J.S., 140 Wn. App. 91, 97, 169 P.3d 34 (2007). "Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding." State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006) (citations omitted). Unchallenged findings of fact are verities on appeal. Id. at 733.
B. Findings of Fact Five and Fifteen
Belz argues that substantial evidence does not support findings of fact 5 and 15 because"the trial court set forth facts that seem to indicate that [Belz] had been given extensive instructions regarding firearm safety by Terry Howick [and Belz's school] and should [have been] aware of the risk of handling firearms." Br. of Appellant at 12. Contrary to Belz's assertion, the trial court did not imply any sort of "extensive instruction."
In finding of fact five, the court held in relevant part:
Prior to [May 9, 2006], Mr. Howick had instructed Dereck Belz on how to properly handle a firearm. Generally, he showed Mr. Belz how the firearm worked. He also instructed Mr. Belz to never point a firearm at anything and to always assume the firearm was loaded.
Clerk's Papers (CP) at 44. In finding of fact 15, the court stated,
Mr. Belz received several warnings and instructions about the dangers of firearms. At Mr. Belz's school, he had the opportunity to know and understand the dangers of a loaded firearm, the dangers of handling firearms and the consequences that could occur. Furthermore, Mr. Howick had instructed Dereck Belz about the risks of firearms and the warnings against taking those risks. Don't point a weapon at anything you don't intend to shoot. Always assume a firearm is loaded.
CP at 47-48. Substantial evidence from the record supports both of these findings.
At trial, Howick testified that the day before the shooting, he had instructed Belz about how to unload a firearm and had given him safety warnings, such as not to point a firearm at anything he was not willing to "blow up" and always to assume a firearm is loaded. Howick specifically testified that he had shown Belz how to work the safety and to eject the magazine from the firearm. In addition, Edin testified Belz told him that Howick had shown him the safety mechanism on the firearm and had briefly instructed him about how to use it.
Additional testimony from Myers showed that Belz in particular, and the students of YMS in general, knew of the dangers and consequences associated with firearms. The school tookactive steps to inform its students of the dangerousness of weapons. Finally, Myers stated that, based on his experience with juveniles Belz's age, they know that firearms are dangerous and could kill someone.
Although the record does not show that Belz underwent extensive training in the use and dangers of firearms, as the court noted in its oral findings, "There's nothing deficient about the quality of [Howick's instructions]." Report of Proceedings (RP) at 751. We hold, therefore, that substantial evidence supports the trial court's findings that Belz knew (1) how to handle a firearm, (2) never to point a firearm at anything unless he intended to shoot; (3) always to assume a firearm was loaded, and (4) that firearms are dangerous.
C. Findings of Fact Six and Seven
Next, Belz argues that the evidence did not support the trial court's findings of fact 6 and 7, finding that Belz knew the firearm he took into the motor home was loaded.
In finding of fact 6, the court found, in relevant part, "Mr. Belz carried the Star .380 semiautomatic handgun out to the motor home with him in a holster attached to his clothing. Mr. Belz knew this firearm was loaded." CP at 44. In finding of fact 7, the court similarly found, in relevant part, "Belz knew the firearm was loaded when he carried it into the motor home." CP at 45.
Belz argues that the evidence did not show that he knew the firearm was loaded because McMellen testified that he had unloaded the firearm in Howick's house and did not recall seeing Belz reload it. McMellen's testimony, however, supports the trial court's findings. McMellen testified that when he saw Belz with the firearm, he (McMellen) grew concerned, took it fromBelz, "ejected the bullet[,] took the clip out," and set the firearm and ammunition on a lamp table. RP at 452. McMellen did not remove the remaining bullets from the magazine clip. McMellen also testified that he told DeHan that Belz then reloaded the firearm. Finally, McMellen testified that the firearm he had taken from Belz was the same firearm he found in the motor home after the shooting.
We hold, therefore, that there is sufficient evidence to support the court's findings that Belz knew the firearm was loaded.
II. Conclusion of Law?First Degree Manslaughter
Belz next argues that the findings do not support conclusions of law 5, 8, and 9, in which the court ruled that Belz had acted recklessly and adjudicated that he had committed manslaughter while armed with a firearm. Belz also argues that the trial court used the wrong standard in finding that he behaved recklessly. Again, these arguments fail.
A trial court's findings of fact must support its conclusions of law. B.J.S., 140 Wn. App. at 97. A person is guilty of first degree manslaughter when he "recklessly causes the death of another person." RCW 9A.32.060(1)(a).
A. "Reckless"
A person acts "recklessly" when he
knows of and disregards a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable [person] would exercise in the same situation.
The conclusion that "an act is reckless depends on both what the defendant knew and how a reasonable person would have acted knowing these facts"; therefore, the statutory definition of "reckless" includes "a subjective and objective component." State v. R.H.S., 94 Wn. App. 844, 847, 974 P.2d 1253 (1999); see also State v. Graham, 153 Wn.2d 400, 408, 103 P.3d 1238 (2005). A trier of fact may find actual subjective knowledge if there is sufficient information that would lead a reasonable person to believe that a fact exists. R.H.S., 94 Wn. App. at 847.
B. Proper Test for Finding "Recklessness"
Belz argues that the trial court erred in entering conclusion of law 5 because it failed to consider Belz's age when finding him reckless. This argument also fails.
When determining whether a juvenile has acted recklessly, a court should consider how a reasonable child of that age would act in that situation. See State v. Marshall, 39 Wn. App. 180, 184, 692 P.2d 855 (1984) (considering the conduct of a reasonable 15-year-old). Although the trial court's written conclusions do not specifically reference Belz's age, the trial court's oral conclusions do.
Although an oral ruling is not a conclusion of law, we may look to the juvenile court's oral ruling to interpret written conclusions as long as no inconsistency exists. B.J.S., Page 12 140 Wn. App. at 99 (citing State v. Hescock, 98 Wn. App. 600, 605-06, 989 P.2d 1251 (1999)); State v. Bynum, 76 Wn. App. 262, 266, 884 P.2d 10 (1994), review denied, 126 Wn.2d 1012 (1995). In its oral decision, the trial court here stated:
A person is reckless or acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur and the disregard of such substantial risk is a gross deviation from the conduct that a reasonable 13-year-old male would exercise in the same situation. That's the test I have applied in concluding that the State has proven [the reckless element] beyond a reasonable doubt.
The standard is whether disregard of the risk is a gross deviation from conduct that a reasonable 13-year-old male would exercise in the same situation.
RP at 750 (emphasis added). In both its oral and written conclusions, the trial court listed the evidence that proved Belz had acted recklessly, including testimony about what he had learned about firearm safety at school.
Accordingly, we hold that there is no evidence that the trial court failed to apply the proper standard in finding that Belz acted recklessly.
C. Conclusions of Law 8 and 9
Belz next argues that conclusions of law 8 and 9 are not supported by the findings. In conclusion of law 8, the court ruled, "Dereck Belz is guilty beyond a reasonable doubt of the crime of Manslaughter in the First Degree." CP at 49. In conclusion of law 9, the court ruled, "Dereck Belz was armed with a firearm during the commission of the crime of Manslaughter in the First Degree." CP at 49. Having failed to assign errors to any findings other than 5, 6, 7, and 15, which are supported by substantial evidence, we treat the remaining findings as verities on appeal. Levy, 156 Wn.2d at 733.
The State had to prove beyond a reasonable doubt that Belz (1) acted recklessly; (2) causing the death of another; (3) while armed with a firearm. RCW 9A.32.060(1)(a); RCW 13.40.196. The findings support the court's conclusion that Belz committed first degree manslaughter.
The trial court's findings show that Belz acted recklessly. Belz was only 13 at the time of the shooting, and yet he was carrying around a loaded weapon. See findings of fact 1, 4, and 6. Howick had previously instructed Belz to not point a firearm at anything he did not intend to shoot and that he should always assume a firearm was loaded. Despite this warning, Belz pointed a firearm he knew to be loaded at Holmes and "caused the firearm to discharge by pulling the trigger." See findings of fact 6 and 7. Further, as we have already noted, Belz had a subjective and objective knowledge of the danger and consequences associated with playing with firearms. We hold that the trial court's findings support the conclusion that Belz acted recklessly.
In conclusion of law five, the trial court ruled in part, "Dereck Belz acted recklessly in causing the death of Eric Holmes." CP at 48.
The findings also show that Belz's recklessness resulted in the death of Eric Holmes. Belz carried the Star .380 caliber firearm into the motor home. See finding of fact 6. Belz and Holmes were the only occupants of the motor home when the firearm discharged. See finding of fact 6 and 7. Shortly after exiting the motor home, McMellen heard a loud noise come from the motor home and went back inside, where he saw "Eric Holmes slumped over the passenger seat with an injury to his head." See finding of fact 8.
Holmes died from his injuries. Brenda Lawrence, a forensic scientist with the Washington State Patrol Crime Lab, determined that the bullet removed from Holmes' head had been fired from the Star .380, and that the cartridge case found within the motor home had also been firedfrom the Star .380. See finding of fact 11, 12,
Although Belz claimed that the firearm had fallen from either the motor home's table or dashboard and accidentally discharged, the evidence indicates otherwise. Both the State and defense experts testified that the Star .380 had not discharged after falling to the ground, but instead discharged after someone pulled the trigger. We hold that the evidence-supported findings in turn support the trial court's conclusions that Belz's recklessness caused Holmes' death and that Dereck Belz was "guilty beyond a reasonable doubt of the crime of Manslaughter in the First Degree." CP at 49.
The findings also support the trial court's conclusion of law 9 that Belz was armed with a firearm when he committed manslaughter.
Belz had the firearm on his person when he went into the motor home. See finding of fact 6. In addition, unchallenged finding of fact 14, based on circumstantial evidence, demonstrates that Belz was holding the weapon when it discharged. The firearm discharged from a "supported position," meaning that someone had "held or supported [the firearm] in some manner to allow the trigger to be pulled." See finding of fact 14. Also, only Belz and Holmes were in the motor home at the time of the shooting. See finding of fact 6 and 7. These findings support the trial court's conclusion that Belz was in possession of a firearm when he committed first degree manslaughter.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, CJ. and QUINN-BRINTNALL, J., concur.