Opinion
No. 54697-0-I
Filed: May 31, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 03-1-01931-8. Judgment or order under review. Date filed: 07/26/2004. Judge signing: Hon. Larry E McKeeman.
Counsel for Appellant(s), Cheryl D Aza, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Constance Mary Crawley, Prosecutors Office, Snohomish Co Courthouse, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Maryann Scales was convicted of second degree felony murder committed by means of second degree assault. Scales seeks reversal, contending the State failed to prove one of the alternative means of assault, and that the prosecutor and jury committed misconduct. We disagree and affirm.
FACTS
In August 2003, Scales shot her boyfriend, J.D. Owenby, at his motor home as he lay in bed. She immediately left without checking on Owenby, although she heard him make a gurgling sound. She drove to a friend's house and told him Owenby needed an ambulance. She then turned herself in at a fire station. When police arrived at Owenby's mobile home, they found him dead from a gunshot wound to the head.
The firefighters and police officers who spoke with Scales described her as extremely upset, crying, and visibly intoxicated. She repeatedly stated she had pointed the gun at Owenby to scare him, that she thought the safety was on, and that it was an accident.
Scales was charged with intentional second degree murder, second degree felony murder committed by means of second degree assault, and alternative charges of first and second degree manslaughter. After the State rested, the court dismissed the intentional second degree murder charge, ruling the evidence insufficient to support a finding that Scales intended to kill Owenby. The court instructed the jury on the defense of accident and on voluntary intoxication. The jury found Scales guilty of second degree felony murder.
ANALYSIS
In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. State v. Rivas, 97 Wn. App. 349, 351-52, 984 P.2d 432 (1999). Unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means. State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988); State v. Elliott, 114 Wn.2d 6, 14, 785 P.2d 440 (1990).
Both parties characterize this as an alternative means case, with the alternatives deriving from the definition of assault. See State v. Nicholson, 119 Wn. App. 855, 860, 84 P.3d 877 (2003); but see State v. Winings, Wn. App., 107 P.3d 141, 149 (2005) (definitional instructions do not create alternative means necessitating jury unanimity).
Scales was convicted of second degree felony murder, with the predicate crime being second degree assault. Because assault is not defined by the criminal statutes, courts use the common law definition. State v. Hupe, 50 Wn. App. 277, 282, 748 P.2d 263 (1988). Here, jury instruction 7 stated:
An assault is an intentional touching or striking or shooting of another person, with unlawful force, that is harmful or offensive. A touching or striking or shooting is offensive, if the touching or striking or shooting would offend an ordinary person who is not unduly sensitive.
An assault is also an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.
Clerk's Papers at 49 (emphasis added).
Scales' repeated statements that she pointed the gun at Owenby to scare him provide ample evidence to support the second alternative means of committing assault that is, creating apprehension and fear of bodily injury. Scales contends, however, that sufficient evidence did not support the intentional shooting means.
Evidence is sufficient if, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We draw all reasonable inferences most favorably to the State. Id.
As a preliminary matter, we reject the State's argument that the verdict demonstrates a conclusive rejection of Scales' accident defense (which the State must disprove by evidence beyond a reasonable doubt) and that the jury therefore found Scales intended to shoot Owenby. This argument ignores the second paragraph of the assault definition. Jurors could have convicted Scales by finding she intended to create an apprehension and fear of bodily injury, even if they believed the actual shooting was accidental. We also reject Scales' argument that the trial court's ruling dismissing the intentional murder charge is instructive on this question. The court found insufficient evidence of intent to kill, which is different from intent to shoot.
Scales and Owenby had lived together until about two weeks before the shooting. Scales testified that she went to Owenby's home to convince him to enter an alcohol detoxification program with her. When he refused, she decided she had to leave him and began to gather her belongings. As she collected her things over the course of the day, both she and Owenby were drinking heavily. When she looked in a utensil drawer in the kitchen, she found Owenby's gun. Although Owenby had told her he always kept the safety on, Scales became very angry that the gun was not locked away, because her only son had been killed in a gun accident 10 years before. As she shouted at Owenby about the gun, she waved it around, then heard a loud noise and realized the gun had fired.
But Scales repeatedly told firefighters and police that she pointed the gun at Owenby and pulled the trigger. She repeatedly stated, 'I'm guilty. I shot him. I did it. I pointed a gun at him. I shot him. I know he's dead. I know I'm going to jail.' Report of Proceedings (RP) (May 19, 2004) at 58. The jury heard evidence of the volatile relationship between Scales and Owenby, his past physical abuse of her, her description to firefighters of a fight that evening, the fact that she showed one officer bruises, and her comment that 'now he won't hit me anymore, the [expletive].' Id. at 139. The jury also heard evidence about the double action nature of the gun, its two internal safeties, and the 12-pound trigger pull required to fire the gun without cocking the hammer. Counsel agreed the jury could experience the trigger pull during deliberations. While Scales testified she thought the safety was on and she did not mean for the gun to fire, the jury was not required to believe her. We conclude the evidence was sufficient to support both prongs of the assault definition.
Prosecutorial Misconduct. To establish prosecutorial misconduct, the defendant has the burden of establishing the impropriety of the conduct as well as its prejudicial effect. State v. Bryant, 89 Wn. App. 857, 873-74, 950 P.2d 1004 (1998). We review allegedly improper comments in the context of the entire argument, the issues in the case, the evidence addressed in the argument and the instructions given. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). Reversal is required only if 'there is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict.' State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991). Failure to object to a prosecutor's improper remark constitutes a waiver of the error unless the prosecutorial misconduct is so flagrant and ill-intentioned that no curative instructions could have obviated the prejudice engendered by the misconduct. State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
Scales claims the prosecutor committed misconduct by arguing during closing that the jury should disregard the voluntary intoxication jury instruction, thereby undermining her accident defense, in the following comments: Of course, you get to use your sort of common experience and common sense. Well, let's stack them up. A reasonable person would be sober. A reasonable person would not pick a gun up, while drunk, that they knew nothing about. A reasonable person would not pick up a gun, in anger, while drunk. A reasonable person would not pick up a gun, while drunk, in anger, when they don't know anything about guns, particularly when they don't know anything about this gun.
RP (May 21, 2004) at 417.
Scales contends this comment undermined the defense because the voluntary intoxication instruction makes no mention of a 'reasonable person.' But the comment was not directed at the voluntary intoxication instruction; the statements referred directly to jury instruction 11 regarding the recklessness element of manslaughter, to which the 'reasonable person' analysis was pertinent. The prosecutor went on to discuss the involuntary intoxication instruction at length, explaining that the jury could take Scales' intoxication into account in evaluating her intent:
There's also the instruction in Instruction 18, which is the intoxication instruction. Obviously, Ms. Scales was drunk. Mr. Owenby was drunk. That instruction tells you that no act committed by a person in a state of voluntary intoxication shall be deemed less criminal by reason of their condition. Basically what that means is just because you're drunk doesn't mean you're not responsible. But what it does go on to say is that if there is a particular mental state required in a particular crime, you can take the intoxication into account.
And where that applies in this case . . . is intent. And you will see that intent is a mental state. . . . So basically what that instruction tells you is you can take into account Ms. Scales' intoxication in determining whether she was able to form the intent.
RP (May 21, 2004) at 420.
Scales' reliance on State v. Reed, 102 Wn.2d 140, 684 P.2d 699 (1984) is inapposite. In Reed, the defendant admitted killing his wife but presented a diminished capacity defense. During closing argument, the prosecuting attorney called the defendant a liar four times, stated that defense counsel did not have a case, and that Reed was clearly a 'murder two,' and implied that the defense witnesses should not be believed because they were from out of town and drove fancy cars. Id. at 145-46. The Supreme Court found these comments prejudicial after observing that they struck directly at the evidence supporting the defense theory by appealing to the 'hometown instincts' of the jury. Id. at 147.
Here, the State's comments were entirely proper. Further, the jurors were directed to 'consider the instructions as a whole.' Clerk's Papers at 41. We discern neither misconduct nor prejudice.
In a statement of additional grounds for review, Scales stated that her additional grounds related to 'excited utterance' and 'jury misconduct.' She did not elaborate further, however, and we are thus unable to consider these additional grounds. See RAP 10.10(c) (court will not consider a defendant's statement of additional grounds for review 'if it does not inform the court of the nature and occurrence of alleged errors').
Affirmed.