Opinion
No. 21661-6-III
Filed: March 1, 2005 UNPUBLISHED OPINION
Date first document (petition, etc) was filed in Court of Appeals: 12/19/2002.
Counsel for Petitioner(s), John Rolfing Muenster, Muenster Koenig, 1111 3rd Ave Ste 2220, Seattle, WA 98101.
Counsel for Respondent(s), Kevin Gregory Eilmes, Attorney at Law, Pros Atty Offc Rm 329, 128 N 2nd St, Yakima, WA 98901-2639.
Kenneth L. Jr Ramm, Yakima County Courthouse, 128 N 2nd St Rm 211, Yakima, WA 98901-2639.
Charles M. Coachman seeks relief from personal restraint imposed for his 1994 Yakima County convictions of second degree felony murder involving the predicate felony of second degree assault, three counts of first degree assault, and one count of second degree assault. Mr. Coachman claims his conviction for second degree felony murder must be vacated in light of the Supreme Court's holding in In re Personal Restraint of Andress, 147 Wn.2d 602, 616, 56 P.3d 981 (2002), that assault may not serve as the predicate crime for second degree felony murder under former RCW 9A.32.050(1)(b) (1976).
Following the Andress decision, the legislature amended the second degree felony murder statute, effective February 12, 2003, to expressly declare that assault is included among the predicate crimes under the second degree felony murder statute. Laws of 2003, ch. 3, sec. 2.
We stayed Mr. Coachman's petition pending a decision and issuance of a certificate of finality in In re Personal Restraint of Hinton, 152 Wn.2d 853, 100 P.3d 801 (2004). The Hinton decision became final on December 14, 2004. We now lift the stay in this petition.
In Hinton, the court held that the decision in Andress applied retroactively to personal restraint petitioners convicted of the crime of second degree felony murder predicated on assault. Therefore, the petitioners' judgments were facially invalid and not subject to the one year time limit of RCW 10.73.090(1) for collateral attack. Hinton, 152 Wn.2d at 857-58. The court also held that the 2003 legislative amendment that included assault as a predicate crime for second degree felony murder was not retroactive because retroactive application would violate the ex post facto clauses of the state and federal constitutions. The court thus vacated the petitioners' convictions. Id. at 861.
The holdings in Andress and Hinton apply to Mr. Coachman's case and entitle him to relief.
Accordingly, we grant Mr. Coachman's personal restraint petition to the extent that his second degree felony murder conviction and sentence for that conviction are vacated and his case remanded to the Yakima County Superior Court for further lawful proceedings consistent with Andress and Hinton. Hinton, 152 Wn.2d at 861 (citing Andress, 147 Wn.2d at 617 n. 5).
Mr. Coachman also contends that his three convictions for first degree assault must be vacated for insufficient evidence. He asserts there was no evidence that he aimed when he shot at the three alleged victims, and, therefore, the jury could not find that he acted with the requisite specific intent to inflict great bodily harm. The latter is an element of first degree assault. RCW 9A.36.011(1).
Specifically, Mr. Coachman contends there was no testimony that the trajectory of any of the shots passed near the subjects named in Counts III — V. And, Clayton Hooper, the alleged victim in Count V, testified that he was not standing with the group at the time of the shootings and that Mr. Coachman did not aim at him.
Mr. Coachman relies upon State v. Louther, 22 Wn.2d 497, 156 P.2d 672 (1945). There, the court observed at 501-02 that the presumption that an accused intends the natural and probable consequences of his acts does not extend to cases in which the intent required is greater than the act accomplished. The court stated at 502 that `[t]he applicable rule is that, where a specific intent is an element of a crime, the specific intent must be proved as an independent fact and cannot be presumed from the commission of the unlawful act.'
Mr. Coachman also relies upon State v. Ferreira, 69 Wn. App. 465, 850 P.2d 541 (1993). There, the defendant's principals fired over a dozen bullets at the victims' residence while driving slowly past it. On appeal, the court reversed the defendant's first degree assault convictions for lack of sufficient evidence to show his specific intent to inflict great bodily harm. The court cited the trial court's refusal to find that the shooters actually saw anyone inside the house or had shot at occupied areas of the house.
In Ferreira, the court quoted from In re Personal Restraint of Woo Won Choi, 55 Wn. App. 895, 906, 781 P.2d 505 (1989), review denied, 114 Wn.2d 1002 (1990), as follows: "Evidence of intent . . . is to be gathered from all the circumstances of the case, including not only the manner and act of inflicting the wound, but also by the nature of the prior relationship and any previous threats." Ferreira, 69 Wn. App. at 468-69.
The foregoing authority speaks to situations in which direct evidence of the defendant's intent is not available. In this case, however, Mr. Coachman's testimony on cross examination is sufficient by itself to support a finding he acted with the requisite intent. In response to the prosecutor's questions, he stated:
Q. . . . Charles, when you fired the rifle, you weren't firing at the ground or up in the air . . .?
A. No.
Q. You were shooting at that group, weren't you?
A. Yes.
Q. . . . You were trying to hit them with the bullets, weren't you?
A. Yes.
Q. And that decision . . . was consistent . . . with the decision that you'd already made when you left the house . . . that you were going to shoot at them?
. . . .
A. I was going to shoot them.
Report of Proceedings (RP) at 1974.
Based upon the foregoing testimony, the court holds that the evidence was sufficient for the jury to conclude beyond a reasonable doubt Charles Coachman had the specific intent to inflict great bodily harm. Therefore, the court rejects his challenge to his convictions for first degree assault and dismisses his petition to that extent.
Mr. Coachman further argues the evidence, at the very least, is insufficient to support the first degree assault conviction in which Clayton Hooper was the victim. Mr. Coachman relies upon Mr. Hooper's testimony that he was standing `slightly' apart from the rest of the group when Mr. Coachman began firing. RP at 1585. At that point, Mr. Hooper turned and ran. Mr. Hooper did not quantify `slightly.' In these circumstances, the jury could properly conclude that Mr. Coachman's specific intent included great bodily harm to Mr. Hooper.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, J. and BROWN, J., concur.