No. 20043-4-III.The Court of Appeals of Washington, Division Three. Panel Nine.
Filed: September 10, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Spokane County, No. 001016094, Hon. James M. Murphy, March 12, 2001, Judgment or order under review.
Counsel for Appellant(s), David N. Gasch, P.O. Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Kevin M. Korsmo, Spokane County Prosecutor’s Office, W. 1100 Mallon, Spokane, WA 99260.
Andrew J. Metts III, Deputy Prosecuting Attorney, 1100 W Mallon Ave, Spokane, WA 99260-0270.
FRANK L. KURTZ, J.
A jury found Richard Sheppard guilty of first degree manslaughter, after he shot and killed Seth Carter. Subsequently, Mr. Sheppard moved for an arrest of judgment. The trial court denied the motion, and Mr. Sheppard appeals, contending that insufficient evidence existed to support the verdict. Mr. Sheppard, pro se, contends that the trial court erred by admitting testimony regarding the existence of a two-inch gunshot hole in his apartment, and by allowing the State to characterize him as intoxicated or under the influence of alcohol on the evening of the shooting. We conclude the trial court properly admitted evidence regarding a prior gunshot discharge because it was relevant to whether Mr. Sheppard understood that his conduct was reckless. We further conclude that Mr. Sheppard’s conviction was supported by substantial evidence. Mr. Sheppard’s conviction is affirmed.
FACTS
Richard Sheppard was charged with one count of first degree manslaughter in the shooting death of Seth Carter.
Prior to trial, Mr. Sheppard moved to prohibit testimony regarding the gunshot hole in his room. This gunshot hole was the result of another incident involving Mr. Sheppard and the same weapon. The court denied the motion, stating `I think it’s all part of the discussion that went on in the bedroom regarding to [sic] his knowledge of the potential effect of this weapon, and the fact he told the witness that he had blown the hole in the ceiling I think is admissible.’ Report of Proceedings (RP) at 35-36.
Mr. Sheppard also moved in limine to prohibit any testimony that he was under the influence or intoxicated at the time of the shooting. The court granted the motion. Additionally, the court stated that it would limit the witnesses to their observations of the objective manifestations of the effect of alcohol such as watery, bloodshot eyes; mood swings; and the fact that Mr. Sheppard smelled of alcohol during the interview.[1]
Tabatha Lukezic testified at trial that she was present on the evening that Mr. Carter was shot. She stated that she was at a party with several other people in Mr. Sheppard’s home. She said that Mr. Sheppard was drinking during the party. She also testified that Mr. Sheppard brought a shotgun out to the living room and was treating it like a toy, pointing it around the room. Ms. Lukezic testified, `[e]veryone kept telling him to put it away.’ RP at 53.
Earlier, Ms. Lukezic had been in the bedroom with Mr. Sheppard and he had pointed the gun at her feet. She testified that she understood that he was joking around, but she nevertheless told Mr. Sheppard to put the gun away. He informed her that if someone was to get shot with a gun like that, they would not feel it and would die instantly. Also while in the bedroom, Mr. Sheppard told Ms. Lukezic that a few days earlier the gun had discharged in the bedroom and had blown a hole in the wall.
Angelique Vornheder testified that she was also present at the party when Mr. Carter was killed. She stated that she observed Mr. Sheppard and Mr. Carter on the balcony shortly before Mr. Carter was shot. She said Mr. Sheppard was initially holding the gun on his lap. She saw Mr. Carter grab the end of the gun and put it underneath his armpit. Ms. Vornheder then reported that both men were `fiddling around with the gun’ and it went off, hitting Mr. Carter. RP at 269.
Detective Minde Connelly testified that when she interviewed Mr. Sheppard after the shooting, she detected the smell of alcohol on his breath. She stated that he had red and watery eyes, and he had been crying during the interview. Detective Kirk Kimberly, who also participated in the interview, noted that Mr. Sheppard smelled of intoxicants and periodically exhibited mood swings.
The jury was instructed that in order to convict Mr. Sheppard, it would have to find, in part, that his conduct was reckless. `Recklessness’ was defined as:
A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and the disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation.
Recklessness is also established if a person acts intentionally or knowingly.
Clerk’s Papers (CP) at 12.
Mr. Sheppard was convicted. He appeals.
ANALYSIS
Evidence of Mr. Sheppard’s Recklessness.
Mr. Sheppard contends that the trial court erred in denying his motion for arrest of judgment. Under CrR 7.4(a)(3), judgment may be arrested on the basis of insufficiency of the proof of a material element of the crime. When reviewing a motion to arrest judgment pursuant to CrR 7.4(a)(3), an appellate court’s function is to determine “`whether the evidence is legally sufficient to support the jury’s finding.'” State v. Bourne, 90 Wn. App. 963, 967, 954 P.2d 366 (1998) (quoting State v. Robbins, 68 Wn. App. 873, 875, 846 P.2d 585 (1993)). `The evidence is sufficient if any rational trier of fact viewing it most favorably to the State could have found the essential elements of the charged crime beyond a reasonable doubt.’ Bourne, 90 Wn. App. at 968.
Mr. Sheppard argues on appeal that the evidence was insufficient to find that he was reckless in shooting Mr. Carter. The jury was instructed that to convict Mr. Sheppard of first degree manslaughter, it must find in part that his conduct was reckless. Under the instructions, the jury was required to find Mr. Sheppard knew of and disregarded `a substantial risk that a wrongful act may occur’ and his disregard of that risk was `a gross deviation from conduct that a reasonable person would exercise in the same situation.’ CP at 12. The jury also could have found Mr. Sheppard was reckless if it was established that he acted intentionally or knowingly.
Mr. Sheppard argues that while evidence existed that he may have behaved recklessly earlier in the evening — waving the gun around in a joking manner and pointing it at people as if it were a toy — no evidence existed that at the time of the shooting he behaved recklessly. Mr. Sheppard contends that in fact, the only eyewitness to the shooting stated that Mr. Carter grabbed the gun prior to its discharge, and therefore Mr. Carter was the one who behaved recklessly.
Mr. Sheppard views the definition of `recklessness’ too narrowly. The jury was entitled to consider the evidence of Mr. Sheppard’s behavior with the gun throughout the evening of the party. Evidence was presented that Mr. Sheppard treated the gun as a toy; he waved it around the room and pointed it at people. The evidence also indicated that several people expressed their discomfort with the presence of the gun, and told Mr. Sheppard to put it away. Finally, evidence was introduced that Mr. Sheppard was drinking the night he was handling the gun at the party.
The circumstances surrounding the event indicate that Mr. Sheppard knew the gun was dangerous and could cause serious damage. As such, he knew that if the gun discharged, especially while he was pointing it at someone, a substantial risk existed that a wrongful act might occur:
someone might be shot and injured. Yet, Mr. Sheppard chose to disregard this risk when he brought the gun to the party, and he continued to disregard the risk when he pointed the loaded gun at his friends. Mr. Sheppard’s behavior stands in stark contrast to the conduct a reasonable person would exercise in the same situation. As such, sufficient evidence existed to support the jury verdict that Mr. Sheppard’s conduct was reckless.
Gunshot Hole.
Mr. Sheppard, pro se, contends that the trial court erred by allowing admission of the evidence regarding the hole in his apartment wall, and by allowing the State to refer to him as intoxicated. He further complains that the evidence of the two-inch shotgun blast hole was irrelevant, improper character evidence, and an inadmissible act of prior misconduct.
First, the trial court’s decision to admit or exclude evidence is an act of discretion. We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. State v. Ortiz, 119 Wn.2d 294, 308, 831 P.2d 1060 (1992). “A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds.” Viereck v. Fibreboard Corp., 81 Wn. App. 579, 587, 915 P.2d 581 (1996) (quoting Woodhead v. Discount Waterbeds, Inc., 78 Wn. App. 125, 131, 896 P.2d 66 (1995)). `It is not an abuse of discretion for a trial court to admit testimony when the party seeking exclusion fails to demonstrate prejudice as a result of admission.’ Viereck, 81 Wn. App. at 587.
Mr. Sheppard is correct that the hole in the ceiling does not tend to establish whether or not Mr. Carter was accidentally or intentionally shot. However, the hole did tend to establish a different relevant fact — that Mr. Sheppard knew of the shotgun’s lethal power, and disregarded that knowledge and accepted the risk the gun would discharge and hurt someone when he handled it as a toy at the party. Mr. Sheppard’s prior experience with the gun established that he had prior knowledge of the gun’s dangerousness and the need to handle it responsibly. As such, this evidence was relevant to the issue of whether Mr. Sheppard acted recklessly.
Next, Mr. Sheppard contends that the admission of the hole was improper hearsay evidence. “Hearsay’ is 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 801(c). However, a statement showing the declarant’s then-existing state of mind falls under an exception to the hearsay rule. ER 803(a)(3). Mr. Sheppard’s statement to Ms. Lukezic regarding how the hole in the apartment wall was created was not admitted for the purpose of showing the truth of that statement, but for the purpose of showing that Mr. Sheppard was aware that the manner in which he was handling the gun created a substantial risk for others.
Next, Mr. Sheppard contends that the evidence of the gunshot was not admissible under ER 404(b). That rule provides, `[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’
First, it is unlikely that the inadvertent prior discharge of the gun was a `wrong,’ or an act that is admissible to prove the character of Mr. Sheppard. However, even if this act is governed by ER 404(b), the State introduced the evidence for another purpose, to show Mr. Sheppard’s knowledge of the risk that he was taking by handling the gun as a toy at the party. As such, the evidence of the prior discharge was not to show Mr. Sheppard acted recklessly on a prior occasion, but to show that on this occasion, he acted with knowledge that his conduct was reckless. For that reason, ER 404(b) does not prohibit the admission of the evidence.
Finally, Mr. Sheppard relies upon ER 403 for exclusion of the evidence relating to the gunshot hole in the apartment. ER 403 states: `Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’
`The rule contemplates a balancing of the probative value of evidence against its undesirable prejudicial effects.’ State v. Giedd, 43 Wn. App. 787, 790, 719 P.2d 946 (1986) (citing 5 Karl B. Tegland, Washington Practice § 105 (1982)). The trial court has broad discretion in this balancing process. Giedd, 43 Wn. App. at 790. We cannot conclude that the trial court abused its discretion in determining that this evidence was more probative than prejudicial.
References to Mr. Sheppard as Intoxicated.
In response to a motion in limine, the court prohibited the State from referring to Mr. Sheppard as under the influence of alcohol or intoxicated. Additionally, the court stated that it would limit the witnesses to their observations of the objective manifestations of the effect of alcohol, such as watery, bloodshot eyes; mood swings; and the fact that Mr. Sheppard smelled of alcohol during the interview.
Mr. Sheppard contends that the court erred by allowing the State, in violation of the order, to refer to him as intoxicated or buzzed. Mr. Sheppard provides numerous references to the record to support his argument. However, only a single reference supports this argument. That reference occurred during the following exchange between the State and Ms. Lukezic:
Q . . . [D]id the defendant appear intoxicated to you?
A I don’t — I don’t think he was, like, really drunk or anything, but I think he had a buzz.
RP at 57. Mr. Sheppard failed to object to this testimony.
`Because the purpose of a motion in limine is to avoid the requirement that counsel object to contested evidence when it is offered during trial, the losing party is deemed to have a standing objection where a judge has made a final ruling on the motion.’ State v. Powell, 126 Wn.2d 244, 256, 893 P.2d 615 (1995). However, where the winning party obtains an order in limine excluding certain evidence, that party has a duty to bring the violation to the attention of the court and allow the court to decide what remedy, if any, is necessary. State v. Sullivan, 69 Wn. App. 167, 171-72, 847 P.2d 953 (1993). `Otherwise, we would have a situation fraught with a potential for serious abuse. A party so situated could simply lie back, not allowing the trial court to avoid the potential prejudice, gamble on the verdict, and then seek a new trial on appeal.’ Id. at 172.
The Sullivan court held Mr. Sullivan failed to demonstrate that the State’s questioning was in deliberate disregard of the trial court’s ruling or that an objection would have been so damaging that it could not be remedied by a curative instruction. Id. at 173. The court concluded that in the absence of unusual circumstances that make it impossible to avoid the prejudicial impact of evidence previously ruled inadmissible, the complaining party must make a proper objection to preserve the issue for appeal. Id. Here, as in Sullivan, there is no showing that the State deliberately disregarded the court’s ruling or that an objection would be so damaging that it could not have been cured by an instruction. As a result, Mr. Sheppard failed to properly preserve this question for review.
Affirmed.
The 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: KATO, A.C.J., SWEENEY, J.