No. 25133-1-III.The Court of Appeals of Washington, Division Three.
May 1, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 05-8-01613-9, Gregory D. Sypolt, J., entered March 28, 2006.
Affirmed by unpublished opinion per Kulik, J., concurred in by Schultheis, A.C.J., and Kato, J. Pro Tem.
KULIK, Judge.
J.M., a juvenile, appeals his conviction of reckless endangerment. He asserts that his trial counsel was ineffective for failing to object to the admissibility of a warning label on an air pistol J.M. used to shoot a man. Because J.M. cannot show that his counsel’s assistance failure to object was ineffective, we affirm.
FACTS
In December 2005, Ronald Parks worked as a Santa Claus at a shopping mall in Spokane. While working on December 20, a small object hit Mr. Parks right below his eye. At the time, Mr. Parks was seated with a child on his lap. Mr. Parks immediately notified a store manager that he had been shot with something, most likely from a position in the balcony above him. After notifying mall security, Mr. Parks returned to work. Police recovered a small, plastic pellet adjacent to Mr. Parks.
Mall security identified J.M. as the individual who shot Mr. Parks. J.M. was 13 years old. The security officers notified local police. When police located J.M. in the shopping mall, he was in possession of an air pistol and a bag of green pellets that were identical to the one that hit Mr. Parks. J.M. was charged with reckless endangerment.
At trial, one of the witnesses read into evidence the contents of a warning label affixed to J.M.’s air pistol. The warning included language that misuse could cause “serious injury particularly to the eye.” Report of Proceedings at 19. J.M. did not object to this testimony. J.M. asserted during closing arguments that, in light of the warning label and the absence of injury, it was more likely that the pellet was thrown rather than shot.
The court entered an adjudication of guilt and entered findings of fact and conclusions of law. In these findings, the court specifically referenced the pistol’s warning label in determining that there was a substantial risk of serious injury. The court sentenced J.M. to one day of confinement and six months of community supervision. He appeals.
ANALYSIS
The sixth amendment to the United States Constitution and article I, section 22 of the Washington State Constitution guarantee a criminal defendant the right to effective assistance of counsel. See In re Pers. Restraint of Davis, 152 Wn.2d 647, 672, 101 P.3d 1 (2004). To challenge the effectiveness of trial counsel, the defendant must show that defense counsel’s representation was deficient, and that this deficiency prejudiced the defendant. Id. (quotin State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)). Prejudice is not shown unless the defendant can establish a reasonable probability that the result of the trial would have been different but for trial counsel’s errors Id. at 672-73. The failure to establish either prong of the test defeats a claim of ineffective assistance of counsel. Id. at 673. This court engages in a strong presumption that counsel was effective. Id.
A person is guilty of reckless endangerment when he or she recklessly engages in conduct that creates a substantial risk of death or serious physical injury to another. RCW 9A.36.050(1). J.M. asserts that the only evidence of a substantial risk of death or physical injury in this case came from a warning label that was inadmissible hearsay. However, the failure to raise an objection to evidence based on hearsay waives the right to raise the issue on appeal. See State v. Robinson, 120 Wn. App. 294, 300, 85 P.3d 376 (2004). Because his trial counsel did not object to the admission of the warning label as hearsay evidence, J.M. claims that his counsel rendered ineffective assistance.
To prevail on a claim of ineffective assistance, based on the failure of trial counsel to object to the admission of evidence, a defendant must establish: (1) that the failure to object fell below prevailing professional norms; (2) that the proposed objection likely would have been sustained; and (3) that the result of the trial would have been different had the evidence not been admitted. Davis, 152 Wn.2d at 714. J.M. cannot establish any of these three requirements.
Defense counsel’s failure to object to the admission of the warning label will not be deemed unreasonable if it was a matter of legitimate trial strategy or tactics. See State v. Townsend, 142 Wn.2d 838, 847, 15 P.3d 145 (2001). Legitimate trial strategy may be demonstrated if there was some possible advantage to be gained by the failure to object Id.
Here, defense counsel referenced the warning label in an attempt to prove that the pellet was thrown rather than shot at Mr. Parks. Counsel pointed to the absence of any discernible injury as consistent with the pellet being thrown rather than shot. J.M.’s trial counsel argued that there was no basis to find that throwing a plastic pellet at someone created a substantial risk of death or of serious injury to another. Defense counsel’s use of the warning label demonstrated that the failure to object to its admission was the result of a legitimate trial strategy.
J.M. cannot establish that the objection to the admissibility of the warning label would have been sustained.
Hearsay evidence is generally inadmissible. See ER 802. “Hearsay” is a statement, other than one made by the declarant while testifying at trial or at a hearing, that is offered into evidence as proof of the matter asserted. ER 801(c). Whether an out-of-court statement is inadmissible as hearsay depends upon the purpose for which the statement is offered. See, e.g., State v. Crowder, 103 Wn. App. 20, 26, 11 P.3d 828 (2000). Statements offered to establish the mental state of a person are not hearsay because they are not offered to prove the truth of the statement but are offered to infer mental status.
To establish recklessness, the State was required to prove that J.M. knew of, and disregarded, a substantial risk that a wrongful act may occur and that J.M.’s disregard of that risk was a gross deviation from the standard of care that a reasonable person would exercise under the circumstances See RCW 9A.08.010(1)(c).
The warning label stated that misuse could cause serious injury, particularly injury to the eye. The State may have offered the information to demonstrate that J.M. was aware that there was a risk to others and still proceeded to fire into the crowds. This is evidence of the mental state of recklessness and, therefore, would not have been offered as truth of the matter asserted in the warning label.
Even assuming that the contents of the warning label were inadmissible as evidence under the hearsay rule, J.M. cannot demonstrate a reasonable probability that the result of the trial would have been different if the evidence not been admitted.
J.M. correctly points out that the trial court specifically referenced the language in the warning label in support of its adjudication of guilt. But this was not the only evidence relied on by the court in finding that J.M. engaged in reckless conduct that created a substantial risk of serious injury.
The court also looked at the fact that Mr. Parks had a small child on his lap and that there were crowds of people throughout the mall. The court noted that Mr. Parks was hit very close to his eye by the pellet. The court further noted that the pellet that struck Mr. Parks was identical to those in J.M.’s possession when he was apprehended by mall security. Finally, Mr. Parks testified that the force with which he was struck was far greater than if the pellet was merely thrown, supporting the inference that the pellets were fired from the air pistol.
Given these facts, there is no reasonable probability that the trial court would have reached a different conclusion in the absence of the admission of the warning label.
We affirm.
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.
WE CONCUR:
Schultheis, A.C.J.
Kato, J. Pro Tem.