Opinion
No. 35844-1-II.
July 2, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-01515-2, Beverly G. Grant, J., entered January 26, 2007.
Affirmed by unpublished opinion per Houghton, J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
Victor Martinez appeals his conviction of second degree murder of Desaundra Dixon. He argues that insufficient evidence supported his conviction and that the trial court erred in excluding from evidence statements he made to emergency responders. We affirm.
FACTS
We derive the facts from the evidence adduced at trial.
Martinez and Dixon lived together. Eight children also shared their residence, Dixon's seven children and Martinez's one child. The oldest child, 17-year-old TeAire Bell, testified that around midnight on April 2, 2006, he heard Martinez and Dixon arguing loudly in their bedroom upstairs. Bell went upstairs and noticed his mother sitting on the bed crying. Another of Dixon's children, 12-year-old Deterraice, also heard Martinez and Dixon arguing.
Bell returned downstairs but not long afterward again heard Martinez and Dixon arguing, this time accompanied by sounds of a physical altercation. Bell went outside and called for his mother through an open bedroom window. After Dixon told him to go back inside, Bell testified he heard Martinez threaten to kill Dixon. Bell heard continued arguing for about 20 minutes and then heard someone fall to the floor.
Bell saw Martinez come downstairs holding a gun. According to Bell, Martinez gave him some money and told him to take care of the children. As firefighters arrived at the scene, Martinez sat on the stairs.
Martinez testified that he and Dixon had been drinking at a tavern earlier in the evening. According to Martinez, he told Dixon at the bar that he was leaving her. After returning home, they began arguing and Martinez began gathering his possessions, including his gun. He testified that the gun felt particularly cold, and he wanted to share with Dixon how cold the gun felt. He said that he placed the gun on her chest but that she swatted it away, causing the gun to fire. He testified that he knew the gun was loaded but did not believe there was a bullet in the chamber.
Firefighter responders arrived about 2:15 a.m. and pronounced Dixon dead at the scene. Two of the firefighters who responded noted Martinez's calm or timid demeanor. Despite telling the responders that someone else had shot Dixon and fled, police officers later found a silver handgun located under insulation in a crawl space in the home. By amended information, the State charged Martinez with second degree murder.
At trial, Martinez moved the trial court to allow, as an excited utterance exception to the hearsay rule, testimony of one of the firefighters that Martinez told him that he had merely been playing with the gun. Although disputed at trial, Martinez concedes on appeal that the responders arrived about 30 minutes after Martinez shot Dixon. The trial court denied the motion and excluded the testimony as hearsay.
A jury found Martinez guilty of second degree murder. He appeals.
ANALYSIS Sufficiency of the Evidence
Martinez argues that insufficient evidence proved second degree murder beyond a reasonable doubt. He further argues that the accidental discharge of the gun is excusable homicide, or in the alternative, that it merely proves he was guilty of manslaughter. The elements of second degree murder are outlined in RCW 9A.32.050; Martinez only challenges the sufficiency of the evidence regarding his "intent to cause the death" of Dixon. RCW 9A.32.050(1)(a).
We review sufficiency of the evidence by determining whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). When examining the sufficiency of evidence, we draw all reasonable inferences from the evidence in favor of the State. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In determining the sufficiency of the evidence, we consider circumstantial evidence as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the fact finder on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
"A person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime." RCW 9A.08.010(1)(a). A rational fact finder may infer from circumstantial evidence "that a defendant intends the natural and probable consequences of his or her acts." State v. Caliguri, 99 Wn.2d 501, 506, 664 P.2d 466 (1983).
Based on the evidence presented at trial, a rational fact finder could have found beyond a reasonable doubt that Martinez intended to cause Dixon's death. Martinez testified that he placed the gun against Dixon's chest. Forensic scientist Terry Franklin stated that he tested Martinez's gun and attempted to make it fire without pulling the trigger. Franklin testified that he could only fire the gun by manually pulling the trigger and that the trigger required over six pounds of pressure. Thus, the jury was free to conclude that the firing of the gun was not accidental and that Martinez's testimony otherwise was not credible. See Thomas, 150 Wn.2d at 874-75.
Additionally, near the time of Dixon's death, Bell and Deterraice overheard Martinez and Dixon arguing and sounds of physical altercation, and Bell heard Martinez threatening to kill Dixon. A rational fact finder could infer from these circumstances that Martinez intended "the natural and probable consequences of his . . . acts," i.e., the death of Dixon. Caliguri, 99 Wn.2d at 506. Thus, sufficient evidence supports Martinez's conviction for second degree murder.
Because the evidence is sufficient to allow the jury to convict Martinez of second degree murder, we do not address his arguments regarding excusable homicide or manslaughter.
Exclusion of Hearsay
Martinez next argues that the trial court erred in excluding his hearsay statement to firefighters that he was only playing with the gun. He asserts that the trial court should have admitted the statement as an excited utterance.
We review a trial court's evidentiary rulings for abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995). A trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds. State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (1997). The appellant bears the burden of showing an abuse of discretion. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001).
Generally, hearsay is an out of court statement that a party seeks to admit into evidence to prove the truth of the matter asserted. ER 801(c). Hearsay is generally inadmissible, unless an exception applies. ER 802, 803. One exception, named the "excited utterance" exception, allows a trial court to admit hearsay if the particular statement relates to a "startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." ER 803(a)(2). Martinez argues that his statement to firefighters fits within the excited utterance exception.
The trial court had tenable grounds to find that Martinez's statement was not an excited utterance. He concedes that he made his statement to firefighters about 30 minutes after the gun dishcarged, and the firefighters testified to Martinez's calm demeanor when they arrived at the scene. In between the shooting of Dixon and the arrival of the firefighters, Martinez hid the gun, gave money to Bell, and presumably had time otherwise to reflect on what he would say to responders.
We previously explained what may not qualify as an excited utterance: "'Because the excited utterance rule is based on the premise that the speaker has no opportunity to lie before making the utterance, if the speaker in fact did have [that] opportunity, then by definition the statement cannot be an excited utterance.'" State v. Sunde, 98 Wn. App. 515, 520, 985 P.2d 413 (1999) (quoting State v. Briscoeray, 95 Wn. App. 167, 172, 974 P.2d 912 (1999)). The trial court had tenable grounds to find that Martinez had an "opportunity to lie before making the utterance." Sunde, 98 Wn. App. at 520. As a result, Martinez's argument that the trial court abused its discretion in excluding his hearsay statement fails.
Statement of Additional Grounds
RAP 10.10.
Martinez raises two additional issues in his statement of additional grounds. First, he appears to argue that he was not sober at the time of the shooting. Second, he argues that he did not intentionally shoot Dixon. We addressed Martinez's second issue previously and need not address it further.
According to RCW 9A.16.090, voluntary intoxication does not make a particular act any less criminal. Although intoxication "may be taken into consideration in determining" a particular mental state, the State is not required to present evidence one way or the other regarding a defendant's alleged intoxication. RCW 9A.16.090. Failure to do so or to test Martinez's sobriety at the police station on the night of Dixon's death does not support a claim of reversible error.
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 pursuant to RCW 2.06.040, it is so ordered.
Quinn-Brintnall, J. and Bridgewater, J., concur.