Opinion
41875-4-II
02-20-2013
STATE OF WASHINGTON, Respondent, v. REED CHRISTOPHER BOYSEN, Appellant
UNPUBLISHED OPINION
Worswick, C.J.
Reed Boysen appeals his convictions and sentence for drive-by shooting and two counts of second degree assault. Boysen argues that (1) the trial court denied his right to confront a witness, (2) the prosecutor committed misconduct while questioning that witness, (3) the trial court violated Boysen's right to an impartial jury, (4) the entry of convictions for drive-by shooting and second degree assault violates the prohibition against double jeopardy, and (5) drive-by shooting and second degree assault are the same criminal conduct for sentencing purposes. We affirm.
FACTS
Reed Boysen was the passenger in Chad Parker's pickup, with Parker driving. On the same highway, Donald Palmer drove his utility truck, with Margaret Eldridge as passenger. Parker refused to let Palmer pass, and each driver became angry as the situation continued for several miles. Finally, Palmer passed and Parker followed.
Palmer and Eldridge then heard between three and eight gunshots from Parker's pickup. As the pickup exited the highway, and Palmer and Eldridge saw Parker fire three or four more times at the utility truck. Three shots struck Palmer's utility truck, which sustained three bullet holes.
Responding to Eldridge's 911 call, a police officer identified Parker's pickup, followed it to a parking lot, and detained the men. Police recovered Parker's handgun, containing three cartridges and three empty cartridge cases, under the driver's seat. Police also found a handgun in Boysen's pocket. While Boysen's gun could hold up to nine cartridges, only four were inside, including one cartridge found in the chamber. The State charged both Parker and Boysen with drive-by shooting and two counts of second degree assault with firearm enhancements.
During jury selection, juror 26 volunteered that she recently had "a traumatic experience" involving her incarcerated nephew, and that it might affect her ability to serve impartially. 1 Report of Proceedings (RP) at 53. The State challenged juror 26, the defense objected without stating a reason, and the trial court dismissed the juror from the venire.
Parker pleaded guilty to two counts of assault and promised to testify against Boysen; in exchange, the State agreed to drop the drive-by shooting charge and firearm enhancements. Thus Parker's plea agreement reduced his possible sentence to no more than 20 months of confinement. He had previously faced a standard range sentence between 108 and 120 months.
The State's direct questioning of Parker began with the following exchange:
Q. Did you recently plead guilty to some crimes?
A. Yes, sir.
Q. What did you plead guilty to?
A. Assault in the second degree.
Q. Two counts?
A. Yes, sir.
Q. Did you also enter into an agreement to truthfully testify?
A. Yes, sir.2 RP at 309. Boysen did not object to this questioning.
Later, Parker testified that Boysen fired the first volley of gunshots and Parker the second. Parker further testified that after he fired his first shot, Boysen said to "get them," and then Parker fired two more times. 2 RP at 352.
During cross-examination, the trial court allowed Boysen to ask Parker general questions about the plea bargain and dropped charges, in order to show Parker's bias. But the trial court prohibited Boysen from asking specifically about the amount of prison time Parker avoided through his bargain. Parker acknowledged a deal, but he denied that his punishment was "just" considering his actions, and he said it was not "a great deal" because he still had to serve time in prison. 2 RP at 323, 360.
The jury found Boysen guilty of drive-by shooting and two counts of second degree assault, finding in special verdicts that Boysen or his accomplice was armed with a firearm. The trial court entered convictions for all three offenses, with firearm enhancements for each count of assault. The trial court ruled that the drive-by shooting and the assault were not the same criminal conduct. Boysen appeals.
ANALYSIS
I. Confrontation
Boysen argues that the trial court violated his right to confront Parker. We agree, but hold that the error was harmless.
A. Confrontation of the Witness
Boysen argues that the trial court erroneously prohibited specific reference to the amount of prison time Parker avoided through his plea bargain and testimony. We agree.
This court reviews an alleged violation of the confrontation clause de novo. State v. Jasper, 174 Wn.2d 96, 108, 271 P.3d 876 (2012). A defendant's confrontation right is violated when a court prohibits him from probing the bias of a prosecution witness during cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L. Ed. 2d 674 (1986). When the witness receives a lighter sentence in exchange for his testimony against the defendant, the defendant must have a full opportunity to question the witness about the sentence he escaped. State v. Portnoy, 43 Wn.App. 455, 461, 718 P.2d 805 (1986).
In Portnoy, two men were charged with two felonies with sentence enhancements and a misdemeanor. 43 Wn.App. at 458-59. One man promised to plead guilty and testify, and in return the State dropped the sentence enhancements, the misdemeanor charge, and one of the felony charges. 43 Wn.App. at 459. The trial court allowed questioning about the existence of the witness's plea bargain, but forbade the defense from inquiring into the witness's lighter sentence. 43 Wn.App. at 459. On appeal, we held that blocking the defendant's crossexamination on the length of the witness's sentence violated the Confrontation Clause, explaining:
Such cross-examination is the price the State must pay for admission of a codefendant's testimony to that plea. The jury needs to have full information about the witness's guilty plea in order to intelligently evaluate his testimony about the crimes allegedly committed with the defendant.Portnoy, 43 Wn.App. at 461.
We find this case indistinguishable from Portnoy. 43 Wn.App. 455. Parker pled guilty to two counts of assault and promised to testify against Boysen, and in exchange the State dropped Parker's sentence enhancements and drive-by shooting charge. The trial court allowed Boysen to ask generally about the dropped charge and enhancements, but it blocked cross-examination about the specific sentence Parker avoided. Thus, when Parker testified that he did not receive "a great deal" for his testimony, Boysen was unable to rebut this claim by referring to the amount of time he avoided. Those specifics are part of the full information the jury needed to evaluate Parker's credibility, and without them Boysen's confrontation right was violated. See Portnoy, 43 Wn.App. at 461.
Without attempting to distinguish Portnoy, the State argues that testimony about Parker's sentence would allow the jury to infer the sentence Boysen faces. In Portnoy, we rejected that argument as a basis for limiting the defendant's constitutional right to confront the witness. 43 Wn.App. at 460-61.
B. Harmless Error
The State argues that this violation of the confrontation clause was harmless. We agree.
Violations of the confrontation clause are subject to harmless error analysis. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). In this analysis we assume that the damaging potential of the cross-examination was fully realized, and we ask whether the error was nonetheless harmless beyond a reasonable doubt. State v. DeSantiago, 149 Wn.2d 402, 430, 68 P.3d 1065 (2003) (quoting Van Arsdall, 475 U.S. at 684). To answer this question, we examine factors including the importance of the witness's testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating the witness's testimony, the extent of the cross-examination allowed, and the overall strength of the case. Jasper, 174 Wn.2d at 117 (quoting Van Arsdall, 475 U.S. at 684). An error is harmless "if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt." Guloy, 104 Wn.2d at 426.
Here, Parker's testimony provided the only direct evidence that Boysen fired a gun or encouraged Parker during the altercation. But even if a full cross-examination had made Parker's testimony incredible, the other evidence still provides overwhelming circumstantial evidence of Boysen's guilt as principal or accomplice.
Palmer and Eldridge heard someone in Parker's truck fire a first volley of between three and eight shots. Parker fired the second volley of three or four shots. All told, at least six shots were fired. Responding to Eldridge's 911 call, a police officer identified Parker's truck and detained the men. Police found Parker's gun containing three unfired cartridges along with three empty cartridge cases under Parker's seat. Police also found a handgun in Boysen's pocket. Boysen's gun, which could hold up to nine cartridges at a time, contained only four cartridges. By inference, both guns must have been fired to account for six or more shots.
Parker's account sets the low end of this range; he testified that Boysen fired only three shots. Palmer testified that he heard seven or eight shots in the first volley. Eldridge testified that she "heard what sounded like somebody throwing rocks at the truck" and declined to give a number of gunshots. 1 RP at 134.
Given that Boysen's gun was apparently fired, the remaining question is who fired it. If Boysen fired it, he is liable as a principal. If instead Parker fired the gun and returned it to Boysen to put into his pocket, then the circumstantial evidence overwhelmingly shows Boysen acted as Parker's accomplice. Either way, the evidence necessarily leads to a finding of Boysen's guilt. See Guloy, 104 Wn.2d at 426. Thus the error is harmless.
II. Prosecutorial Misconduct
Boysen argues that the prosecutor committed misconduct by vouching for Parker's credibility. Acknowledging that he alleges prosecutorial misconduct for the first time on appeal, Boysen argues in the alternative that (1) the misconduct was flagrant and ill-intentioned or (2) his counsel's failure to object to the misconduct constituted ineffective assistance of counsel. The State contends that Boysen's argument fails because the prosecutor did not vouch for Parker's credibility. We agree with the State.
"Improper vouching generally occurs (1) if the prosecutor expresses his or her personal belief as to the veracity of the witness or (2) if the prosecutor indicates that evidence not presented at trial supports the witness's testimony." State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 (2010). "[A] witness's testimony that [he was] speaking the truth and living up to the terms of [his] plea agreement may amount to a mild form of vouching." Ish, 170 Wn.2d at 197. Boysen misapprehends Ish to state a rule that vouching always occurs whenever a prosecutor elicits testimony about an agreement to testify truthfully. In fact, Ish held only that such questioning "may amount to vouching." Ish, 170 Wn.2d at 198 (emphasis added).
In Ish, the prosecutor vouched for a witness's credibility. 170 Wn.2d at 199, 206. First, on direct examination, the prosecutor established that the State agreed to reduce the witness's charges in an unrelated matter in exchange for his testimony. 170 Wn.2d at 192, 194. The prosecutor then asked, "With regard to exchanging testimony in this case, what type of testimony?" to which the witness answered, "Truthful testimony." 170 Wn.2d at 194. On redirect, the prosecutor implied that the State would revoke the agreement if the witness breached it, and he then reiterated the agreement's use of "truthful." 170 Wn.2d at 193, 194. Finally, the prosecutor asked, "Have you testified truthfully?" to which the witness answered, "Yes, I have." 170 Wn.2d at 194.
Although there was no majority opinion in Ish, a majority of the justices agreed that the prosecutor improperly vouched for the witness's credibility. Ish, 170 Wn.2d at 199-200 (plurality opinion), 206 (Sanders, J., dissenting).
In contrast to Ish, the prosecutor's questioning here did not amount to vouching. Rather than repeatedly emphasizing the term, the prosecutor here mentioned truthfulness once and only in passing. The word "truthfully" in the question "Did you also enter into an agreement to truthfully testify?" does not express the prosecutor's personal belief or invoke evidence not presented at trial. 2 RP at 309. Thus the prosecutor did not vouch for Parker's credibility. See Ish, 170 Wn.2d at 196. Because Boysen does not show vouching, he cannot show prosecutorial misconduct. This argument fails.
III. Jury Selection
Boysen next contends that the trial court violated his right to an impartial jury by dismissing a venireperson for cause. This contention lacks merit.
The State argues that Boysen waived this argument by failing to advise the trial court of specific grounds for objecting to the venireperson's excusal. But a party may assert manifest error affecting a constitutional right for the first time on appeal. RAP 2.5(a)(3).
Both the federal and state constitutions guarantee a criminal defendant the right to trial by an impartial jury. U.S. Const. amend. VI; Wash. Const. art. I, § 22. To protect this right, a trial judge must dismiss a venireperson who cannot set aside preconceived ideas and serve as a fair and impartial juror. State v. Rupe, 108 Wn.2d 734, 748, 743 P.2d 210 (1987); State v. Gonzales, 111 Wn.App. 276, 277-78, 45 P.3d 205 (2002). "[T]he trial court is in the best position to determine a juror's ability to be fair and impartial." State v. Noltie, 116 Wn.2d 831, 839, 809 P.2d 190 (1991).
This court reviews the trial court's determination of cause for dismissal for a manifest abuse of discretion. Noltie, 116 Wn.2d at 838. A court abuses its discretion when it makes a decision that is manifestly unreasonable or based on untenable grounds or made for untenable reasons. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).
Boysen contends that the trial court had no basis for dismissing juror 26. But the record shows otherwise. During voir dire, juror 26 mentioned "a traumatic experience" involving her incarcerated nephew and said that it could interfere with her ability to serve impartially. Outside the venire's presence, the trial court stated, "[M]y notes indicate that [juror 26] was concerned about whether or not she could be fair." 1 RP at 89. The State challenged juror 26, Boysen objected without stating a reason, and the trial court dismissed juror 26 from the venire. The trial court did not abuse its discretion.
Boysen fails to argue that the dismissal of juror 26 affected the jury's fairness or impartiality. To challenge on constitutional grounds a determination of cause for dismissing a venireperson, a party must show that the determination actually prejudiced his case. See State v. Latham, 100 Wn.2d 59, 64, 667 P.2d 56 (1983). Boysen does not attempt to make this showing. Therefore he cannot demonstrate that the dismissal of juror 26 deprived Boysen of an impartial jury.
IV. Double Jeopardy
Boysen argues that, as charged and proven in this case, his convictions for second degree assault and drive-by shooting are the same offense. We disagree.
Boysen asks us to reject recent Division Three cases holding that convictions for first degree assault and drive-by shooting did not violate double jeopardy, citing to State v. Larson, 160 Wn.App. 577, 593, 249 P.3d 669, review denied, 172 Wn.2d 1002 (2011), State v. Gassman, 160 Wn.App. 600, 615-16, 248 P.3d 155, review denied, 172 Wn.2d 1002 (2011), and State v.Statler, 160 Wn.App. 622, 638-39, 248 P.3d 165, review denied, 172 Wn.2d 1002 (2011). Br. of Appellant at 46 n.5. Although we find these cases instructive, they do not control our analysis. Our Supreme Court has "underscor[ed] the need to take a 'hard look at each case'" to determine whether two offenses have merged so that multiple convictions violate double jeopardy. State v. Kier, 164 Wn.2d 798, 802, 193 P.3d 212 (2008) (quoting State v. Freeman, 153 Wn.2d 765, 774, 108 P.3d 753 (2005) (considering merger of first degree robbery and first degree assault)).
Courts may not enter multiple convictions for the same offense without violating the prohibitions against double jeopardy. State v. Womac, 160 Wn.2d 643, 650-51, 160 P.3d 40 (2007); see U.S. Const. amend. V; Wash. Const. art. I, § 9. Because double jeopardy is a question of law, our review is de novo. State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005).
In a double jeopardy analysis we ask whether the legislature intended the charged crimes to constitute the same offense. Freeman, 153 Wn.2d at 771. Freeman sets forth the four-part framework for our double jeopardy analysis. 153 Wn.2d at 771-73. First, we search for express or implicit legislative intent to punish the crimes separately; if this intent is clear, then we look no further. Freeman, 153 Wn.2d at 771-72. Second, if there is no clear statement of legislative intent, then we may apply the "same evidence" test to the charged offenses. Freeman, 153 Wn.2d at 772. Third, we may use the merger doctrine to discern legislative intent. Freeman, 153 Wn.2d at 772-73. Finally, if the two offenses appear to be the same but each one has an independent purpose or effect, then the two offenses may be punished separately. Freeman, 153 Wn.2d at 773.
Washington's "same evidence" test is sometimes referred to as the "same elements" test or "the Blockburger test." Freeman, 153 Wn.2d at 772 (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L. Ed. 306 (1932)).
A. Clear Expression of Legislative Intent
The parties agree the statutes here contain no clear statement of legislative intent to authorize or prohibit multiple punishments. Therefore we turn to the second step of the double jeopardy analysis: the same evidence test.
B. The Same Evidence Test
"If each crime contains an element that the other does not, we presume that the crimes are not the same offense for double jeopardy purposes." Freeman, 153 Wn.2d at 772. Boysen concedes that the elements of assault and drive-by shooting are not the same. Instead he argues that second degree assault and drive-by shooting are one identical offense as charged and proven here.
When applying the same evidence test, we presume that the legislature did not intend multiple punishments when the evidence required to prove a conviction of one of the crimes would have been sufficient to support a conviction of the other. Freeman, 153 Wn.2d at 776. If the crimes as charged and proved are the same in law and in fact, they may not be punished separately absent clear and contrary legislative intent. Freeman, 153 Wn.2d at 777 (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L. Ed. 306 (1932)).
1. The Offenses Are Not The Same in Law
Boysen concedes that drive-by shooting and second degree assault are not the same in law because the elements of the offenses are not the same. We agree.
Drive-by shooting and second degree assault each contain an element that is absent from the other. See RCW 9A.36.021, .045. Drive-by shooting can only occur when a firearm is discharged from or in the vicinity of a vehicle. See RCW 9A.36.045. But second degree assault requires neither a vehicle nor the discharge of a firearm. See RCW 9A.36.021. Conversely, assault requires an intent to inflict bodily harm or to create an apprehension of bodily harm. But drive-by shooting merely requires a reckless discharge of a firearm. See RCW 9A.36.045(1)–(2).
Therefore, the elements of the offenses do not preclude convictions for both drive-by shooting and second degree assault. Accord State v. Larson, 160 Wn.App. 577, 593, 249 P.3d 669, review denied, 172 Wn.2d 1002 (2011); State v. Gassman, 160 Wn.App. 600, 615-16, 248 P.3d 155, review denied, 172 Wn.2d 1002 (2011); State v. Statler, 160 Wn.App. 622, 638-39, 248 P.3d 165, review denied, 172 Wn.2d 1002 (2011)).
2. The Offenses Are Not The Same in Fact
However, Boysen argues that the offenses are the same in fact because, as charged and proved in his case, second degree assault and drive-by shooting are the same. We disagree.
When applying the same evidence test, we do not consider the elements solely in the abstract; we consider the elements as the State charged and proved the offenses. Freeman, 153 Wn.2d at 777. Here, the State charged Boysen with three counts: (1) assaulting Palmer, (2) assaulting Eldridge, and (3) drive-by shooting. The State charged both assaults in the second degree, alleging that Boysen or his accomplice "was armed with a deadly weapon, to-wit: a firearm." Clerk's Papers (CP) at 35.
a. The Facts Proving Drive-By Shooting Do Not Prove Assault
First, the facts required to prove that Boysen committed drive-by shooting do not prove that he also committed second degree assault. Boysen committed drive-by shooting if he or Parker, as Boysen's accomplice, recklessly discharged a firearm from Parker's truck and the discharge created a substantial risk of death or serious physical injury to another person. See RCW 9A.36.045(1). Boysen fired the first volley of shots from Parker's truck, and Parker fired the second. Under RCW 9A.36.045(2), the act of discharging a gun from a moving motor vehicle suffices to establish the shooter's recklessness. The discharge also risked causing death or serious injury to other motorists on the highway or people nearby. These facts prove that Boysen, as principal or accomplice, committed drive-by shooting.
However, those same facts are not sufficient to prove that Boysen committed assault. Boysen committed assault if he or his accomplice (1) intentionally shot Palmer or Eldridge, (2) intended to inflict bodily injury on Palmer or Eldridge by an act tending but failing to accomplish it, or (3) intended to create in Palmer or Eldridge an apprehension of bodily injury and actually created in Palmer or Eldridge an apprehension of bodily injury. But proof of the drive-by shooting does not establish (1) that anyone was shot, (2) that the shooter intended to inflict bodily injury, or (3) that Palmer or Eldridge actually formed an apprehension of bodily injury. Therefore, the facts proving drive-by shooting cannot prove assault.
b. The Facts Proving Second Degree Assault Do Not Prove Drive-By Shooting
Likewise, the facts required to prove that Boysen committed second degree assault do not prove that he also committed drive-by shooting. Boysen committed assault when he or an accomplice acted with intent to inflict bodily injury in a manner tending but failing to inflict it, or acted with the intent to create in Palmer or Eldridge a reasonable apprehension and imminent fear of bodily injury. See State v. Wilson, 125 Wn.2d 212, 218, 883 P.2d 320 (1994). Boysen or his accomplice assaulted Palmer and Eldridge by firing shots that left three bullet holes in the utility truck. The use of a deadly weapon elevated the assaults to the second degree. But to prove second degree assault, the State was not required to prove the discharge of a firearm from or in the vicinity of a motor vehicle-an essential element of drive-by shooting. See RCW 9A.36.045(1). Thus the facts required to convict Boysen of second degree assault cannot also prove drive-by shooting.
The definition of assault also includes "an intentional touching or striking or shooting of another person" that would be harmful or offensive to a reasonable person. CP at 75. However, the State did not offer any evidence that Boysen touched, struck, or shot a person.
Accordingly, second degree assault and drive-by shooting are not identical as charged and proven here. Thus the same evidence test establishes a presumption that the legislature intended to allow multiple convictions for these offenses. See Freeman, 153 Wn.2d at 777.
C. Merger Doctrine
Boysen argues that application of the merger doctrine shows that the legislature intended to prohibit multiple convictions for a person who commits assault and drive-by shooting. We disagree.
The merger doctrine is a rule of statutory interpretation used to determine legislative intent. Freeman, 153 Wn.2d at 777-78. When evidence proving one offense is also necessary to elevate the degree of a greater offense, a court presumes that the legislature intended to punish the conduct solely through a greater sentence for the greater offense. Freeman, 153 Wn.2d at 772-73. When two offenses merge, multiple convictions are not appropriate unless there is persuasive evidence of contrary legislative intent. Freeman, 153 Wn.2d at 778.
A complete analysis of merger asks whether each offense merges into the other. See State v. Vladovic, 99 Wn.2d 413, 421, 662 P.2d 853 (1983). But assault cannot merge into drive-by shooting, because there are no gradations of drive-by shooting. RCW 9A.36.045.
Here, the merger doctrine does not help Boysen because the use of a deadly weapon, not a drive-by shooting, elevates an assault to the second degree. See RCW 9A.36.021(c). Drive-by shooting can occur only if a firearm is discharged from or in the vicinity of a vehicle. See RCW 9A.36.045(1). But, even without firing a gun, a person commits second degree assault when brandishing a firearm with intent to cause a reasonable apprehension of fear, whether or not he does so from or in the vicinity of a vehicle. See RCW 9A.36.021(1)(c). Therefore, drive-by shooting is not the act that elevates assault.
D. Independent Purpose or Effect
Boysen asserts that second degree assault and drive-by shooting lack any independent purpose or effect. But we compare the offenses' purposes or effects only if the offenses appear to be the same. Freeman, 153 Wn.2d at 773. Because we instead conclude that the legislature intended the offenses to be separate, we need not consider this step of the analysis.
In summary, the same elements test establishes a presumption that Boysen's convictions for second degree assault and drive-by shooting do not violate double jeopardy. The merger doctrine bolsters that presumption, and there is no clear indication of legislative intent to the contrary. Accordingly, we affirm Boysen's convictions.
V. Same Criminal Conduct
Lastly, Boysen argues that the trial court erred for failing to find that second degree assault and drive-by shooting are the same criminal conduct. We disagree.
If the trial court finds that multiple offenses constitute the same criminal conduct, the court must treat the offenses as one crime for sentencing purposes. RCW 9.94A.589(1)(a). We review the trial court's determination of same criminal conduct for abuse of discretion or misapplication of law. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000). The trial court abuses its discretion if its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons. State v. Dixon, 159 Wn.2d 65, 75-76, 147 P.3d 991 (2006).
Two offenses constitute the same criminal conduct if they "require the same criminal intent, are committed at the same time and place, and involve the same victim." RCW 9.94A.589(1)(a). The parties dispute whether the assaults and drive-by shooting required the same intent and involved the same victim.
An offender's criminal intent, as objectively viewed, is the same if it does not change from one crime to the next. State v. Lessley, 118 Wn.2d 773, 777, 827 P.2d 996 (1992). Here, Boysen carried on an altercation with Palmer and Eldridge. His intent was identical when committing second degree assault and drive-by shooting.
However, Boysen's second degree assault and drive-by shooting offenses involved different victims. Palmer and Eldridge are the two victims of Boysen's two assault counts. In contrast, the victim of Boysen's drive-by shooting is the general public. When creating the drive-by shooting offense, the legislature recognized that drive-by shooting "presents a threat to the safety of the public that is not adequately addressed by other statutes." State v. Rodgers, 146 Wn.2d 55, 62, 43 P.3d 1 (2002). As our Supreme Court has explained,
It is plain to see that the drive-by shooting statute does not criminalize conduct that causes bodily injury or fear of such injury. Rather, the statute criminalizes specific reckless conduct that is inherently dangerous and creates the risk of causing injury or death. Although a drive-by shooting may cause fear of bodily injury, bodily injury, or even death, such a result is not required for conviction. Drive-by shooting does not require a victim; it requires only that reckless conduct creates a risk that a person might be injured.In re Pers. Restraint of Bowman, 162 Wn.2d 325, 332, 172 P.3d 681 (2007). Because second degree assault and drive-by shooting involve different victims, they are not the same criminal conduct under RCW 9.94A.589(1)(a).
Affirmed.
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 in accordance with RCW 2.06.040, it is so ordered.
We concur: Quinn-Brintnall, J., Penoyar, J.