Opinion
No. 36271-6-II.
September 23, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-04520-5, Brian M. Tollefson, J., entered May 4, 2007.
UNPUBLISHED OPINION
Kenneth E. Wright appeals his drive-by shooting and first degree unlawful-firearm-possession jury convictions. He argues that (1) the trial court erred in admitting an unidentified man's hearsay statements as excited utterances; and (2) insufficient evidence supports his drive-by shooting conviction. We disagree and affirm.
FACTS I. Crimes
On September 23, 2006, at about 2:40 am, Kenneth Wright went to the home of his sister, Jonnice Morris, in a residential area of Tacoma. There are about "six to eight" occupied homes between Morris's home and the nearest cross street; and there are other occupied homes across the street from her home.
Wright pounded on his sister's door and demanded money. When Morris said she could not loan him money, Wright became angry, cursed at her, and drove off in his large white car. A few seconds later, witnesses heard shots (or "the sound of gunfire") coming from the direction of Morris's home. Morris told the officer that she "heard the rounds and knew it was [Wright] because of his previous history." Report of Proceedings (RP) (March 19, 2007) at 24. No one was injured.
Three or four of Morris's neighbors had heard the shots and came out to the street to see what had happened. In response to a 911 call, officers arrived on the scene and spoke with Morris.
The officers then drove to Wright's residence with their emergency lights activated. Wright was outside standing near his car. He refused to comply with the officers' orders to put his hands in the air. Instead, he went into his house and came out carrying a baby. After "a long process" of trying to persuade Wright to cooperate, officers eventually took him into custody.
After receiving Miranda warnings, Wright denied having seen or talked to his sister that night. He also told officers different stories, including statements that he had been at the movie theater and that he had not actually seen a movie but had been at a bowling alley. During the ride to the jail, he told officers that he "would never shoot in the air because that's kids' stuff," and if he was going to shoot a gun, it would be at someone. RP (March 20, 2007) at 194.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
II. Procedure
The State charged Wright with drive-by shooting and first degree unlawful firearm possession. He had two previous drive-by shooting convictions, making it illegal for him to possess a firearm.
At trial, Officer Ashley Metzger testified that an unidentified older white male had flagged her down when she was about half a block away from Wright's sister's house. The man told her that he had seen a white "Lincoln type" car drive away from Morris's house and had heard five shots come from the car. Over Wright's objection, the trial court admitted the unidentified man's statements to Officer Metzger under the present sense impression and excited utterance hearsay rule exceptions.
John Smith, Morris's neighbor, testified that he had (1) heard eight very loud shots that sounded close to his house, (2) looked out the window and saw a big white car driving by very fast, (3) heard the last shot just as he saw the car, and (4) found nine 9 mm shell casings in the street when he went outside. Another neighbor, James Cook, had similarly heard four to five gunshots that sounded close to his house.
The jury found Wright guilty as charged. The trial court sentenced Wright to 75 months confinement for his drive-by shooting conviction and 48 months confinement for his first degree unlawful firearm possession conviction, to run concurrently.
Wright appeals.
ANALYSIS I. Hearsay
Wright argues that the unidentified man's statements, about just having seen a white "Lincoln type" car drive away from Morris's house and having heard five shots come from the car, were inadmissible hearsay and did not meet the excited utterance exception. The State counters that the trial court properly admitted the statements under both the excited utterance and present sense impression exceptions to the hearsay rule. We agree with the State that the trial court did not abuse its discretion in admitting these statements as present sense impressions.
Because we hold that the trial court properly admitted the statements as present sense impressions, we do not address whether the statements were also excited utterances.
A. Standard of Review
We review a trial court's admission of evidence for abuse of discretion. State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). We find no abuse of discretion here.
B. Present Sense Impression
The trial court admitted the unidentified man's statements about Wright's vehicle and gunshots coming from the vehicle under both the excited utterance and present sense impression exceptions to hearsay. Evidence Rule (ER) 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER 802 provides that "[h]earsay is not admissible except as provided by these rules, by other court rules, or by statute." ER 803(a)(1) provides an exception to the hearsay rule for present sense impressions.
A present sense impression is "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." ER 803(a)(1). During Wright's trial, the State established that the unidentified man contacted the officers immediately after he saw Wright's white car and the gunshots coming from the car. The man's statements occurred within minutes of his "perceiving the event," and his statements described the event he perceived. Thus, the trial court did not abuse its discretion when it admitted the unidentified man's statements as present sense impressions under ER 803(a)(1).
II. Sufficient Evidence
Wright next argues that insufficient evidence supports his drive-by shooting conviction because the State failed to prove that (1) he was the individual in the white car discharging a firearm, and (2) he fired a firearm in a manner that created a substantial risk of death or serious injury to another person. These arguments fail.
A. Standard of Review
When reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). Wright's insufficient evidence claim "admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We defer to the fact finder's resolution of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). "Circumstantial evidence provides as reliable a basis for findings as direct evidence." State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997).
B. Evidence of Identity
Wright next argues that the State failed to prove "beyond a reasonable doubt the identity of the accused as the person who committed the charged offense." We disagree.
Wright's substantial evidence challenge admits that (1) he drove his large white car to his sister's home at 2:40 am; (2) he was angry, yelling, and cursing at Morris when she did not give him money; (3) Wright was the only occupant of his white car; (4) neighbors saw only Wright's white car and an unidentified man's pickup truck in Morris's neighborhood at the time of the shooting; (5) neighbors heard gunshots and saw a white car, matching the description of Wright's car, fleeing; (6) an unidentified man heard gunshots coming from a white, large car; (7) witnesses found at least five empty shell casings outside of Morris's house; and (8) Wright denied that he had visited Morris that night, giving police conflicting stories about where he had been at the time of the shooting.
When Wright confronted his sister at her home to demand money, she did not see anyone else with him or anyone else in his car. Immediately after Wright had been angry and cursing Morris at her home for not giving him money, her neighbors heard gunshots fired from a white car, matching the description of Wright's car, outside Morris's home. These facts give rise to a reasonable inference that Wright fired a gun at Morris's home from his car as he drove by. See Salinas, 119 Wn.2d at 201. Circumstantial evidence provides as reliable a basis for findings as direct evidence. We defer to the jury on the persuasiveness of the evidence. Thus, substantial evidence supports establishes that Wright was the person who fired the gun.
C. Evidence of Substantial Risk
Finally, Wright argues that the State failed to prove that he discharged a firearm "in a manner which creates a substantial risk of death or serious physical injury to another person." Br. of Appellant at 13 (citing RCW 9A.36.045(1)). Again, we disagree.
Under RCW 9A.36.045, "[a] person is guilty of drive-by shooting when he or she recklessly discharges a firearm . . . in a manner which creates a substantial risk of death or serious injury to another person. . . ." Our Supreme Court has held,
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.
In re Personal Restraint of Bowman, 162 Wn.2d 325, 332, 172 P.3d 681 (2007) (emphasis added). Moreover, a "[d]rive-by shooting does not require a victim; it only requires that reckless conduct creates a risk that a person might be injured." Bowman, 162 Wn.2d at 332. Thus, the State did not need to prove that Wright actually injured a person when he shot at his sister's house. In denying having been or having shot at Morris's home, Wright told the police that if he had shot a gun he would have shot it toward someone, not in the air.
Examining the evidence in the light most favorable to the State, a rational jury could have concluded that Wright knew his sister was in her home in a residential neighborhood when he intentionally fired at least five shots at her home as he drove away in his car after just having gotten angry with her for refusing to lend him money. Intentionally firing a gun at an occupied residence in a neighborhood of other occupied homes is inherently reckless and creates the risk of injury or death. RCW 9A.36.045; Bowman, 162 Wn.2d at 332.
We hold, therefore, that substantial evidence supports the jury's finding Wright guilty of drive-by shooting under RCW 9A.36.045. 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.
Penoyar, A.C.J., concur.
Armstrong, J., I concur in the result.