STATE v. WALTERS, 161 Wn. App. 1010 (2011)

No. 64364-9-I.The Court of Appeals of Washington, Division One.
Filed: April 18, 2011.

Appeal from a judgment of the Superior Court for King County, No. 08-1-05013-7, Helen Halpert, J., entered October 12, 2009.

Affirmed by unpublished opinion per Grosse, J., concurred in by Dwyer, C.J., and Cox, J.

GROSSE, J.

Once some evidence tends to demonstrate that the defendant acted in self-defense, the State bears the burden of proving the absence of self-defense beyond a reasonable doubt. Evidence that Johnny Lee Walters, Jr., chased an assailant and continued firing his handgun after the assailant dropped his shotgun and attempted to flee was sufficient to satisfy the State’s burden of proving the absence of self-defense and the fact that Walters acted with the intent to cause great bodily harm. In addition, because Walters unlawfully possessed the handgun before any imminent threat arose, the trial court properly declined to instruct the jury on the necessity defense to the charge of unlawful possession of a firearm. We therefore affirm Walters’ conviction for first degree assault while armed with a firearm and unlawful possession of a firearm.

FACTS
The State charged Johnnie Lee Walters, Jr., with one count of first degree assault while armed with a firearm and one count of second degree unlawful possession of a firearm following a shooting at a South Seattle gas station. Surveillance cameras at the station captured much of the incident, and the video recordings were played several times for the jury and witnesses during the course of the trial.

Detra Harris testified that she spent most of June 23, 2007, with her friends Treniqua Crowder and Deche Washington. Late in the evening, Washington became “stressed,” and Harris drove him and Crowder to a nearby Union 76 gas station. Appellant Walters and Charles Chappelle were already at the gas station when Harris arrived.

Harris parked her car near the air and water machines, and all three occupants got out. Harris saw Chappelle approach Washington “cussing and yelling obscenities.” Harris understood Chappelle to be urging Washington to fight, and the two men then raised their fists and moved around as though they were going to punch one another.

When Walters walked up next to her, Harris asked him why the two men were fighting. Walters said that he did not know because Washington and Chappelle were supposed to be friends. Walters did not reply when Harris asked him to intervene, but Harris saw Walters place his hand near a shiny gun in his pocket or waistband.

A short time later, Washington walked away from Chappelle and removed a shotgun from Harris’s car. Washington then approached Chappelle and fired a “warning shot” into the air. One of the video recordings showed Washington walking toward Chappelle with the shotgun and Chappelle running away.

Shortly after Washington fired the shotgun, Walters pulled out a semiautomatic handgun and began firing toward Washington. The video shows Washington, who was standing near a gas pump, turn suddenly and then stumble or fall to the ground, dropping his shotgun. Harris testified that Washington lay on the ground moving from “side to side” and trying to cover his head while Walters continued firing “by his head.”

Washington got up and ran in a “zigzag” pattern around the gas pumps and then across Rainier Avenue as Walters chased after him and continued shooting. Harris immediately returned to her car, drove out of the gas station, and picked up Washington from a vacant lot across the street. When Harris discovered that Washington was bleeding and appeared to be severely injured, she drove quickly to Harborview Hospital. Harris noticed that Walters’ car followed her for about a half-block before turning off. At the hospital, surgeons repaired serious injuries to Washington’s femoral artery and vein resulting from a gunshot wound to the left groin area.

At the gas station, police officers recovered one spent shotgun shell casing and a total of fifteen .40 caliber cartridge casings from a handgun.

After viewing the surveillance video, Walters gave a statement to police that was admitted at trial. Walters said that he and Chappelle were at the gas station getting gas when Chappelle and Washington got into an argument. Walters asserted that he acted in self-defense and began shooting at Washington after Washington fired the shotgun at Chappelle.

The trial court instructed the jury on self-defense, but refused to give Walters’ proposed instruction on a necessity defense for the unlawful possession charge. During closing argument, the deputy prosecutor conceded that Walters could have begun shooting in self-defense or in defense of Chappelle, but asserted that he committed the charged assault when he continued shooting after Washington dropped the shotgun and attempted to run away.

The jury found Walters guilty as charged, and the court imposed concurrent standard range terms for a total sentence of 198 months.

ANALYSIS
Sufficiency of the Evidence

On appeal, Walters contends that the evidence was insufficient to support his conviction for first degree assault. We review this claim by determining whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the elements of the charged crime beyond a reasonable doubt.[1] A challenge to the sufficiency of the evidence admits the truth of the State’s evidence and any reasonable inferences from it.[2]

Walters first asserts that the State failed to present sufficient evidence to disprove that he acted in self-defense. Once there is some evidence tending to demonstrate self-defense, the burden shifts to the State to prove the absence of self-defense beyond a reasonable doubt.[3]

The trial court instructed the jury that the use of force against another person is lawful

when used or attempted by a person who reasonably believes that he is about to be injured or by someone lawfully aiding a person who he reasonably believes is about to be injured in preventing or attempting to prevent an offense against the person, and when the force is not more than is necessary.

“Necessary” means that “no reasonably effective alternative to the force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended.”[4]

Evidence of self-defense encompasses both subjective and objective elements: “The subjective portion requires the jury to stand in the shoes of the defendant and consider all the facts and circumstances known to him or her; the objective portion requires the jury to use this information to determine what a reasonably prudent person similarly situated would have done.”[5]

At trial, the State conceded that Walters was acting in self-defense when he started shooting after Washington fired the shotgun. But the jury also considered evidence that shortly after Walters began shooting, Washington dropped the shotgun and then stumbled or fell to the ground. Walters continued shooting as Washington lay on the ground. When Washington got up, he ran away from where Walters was shooting, around one of the gas pump islands, and then across the street. The surveillance video shows Walters chasing Washington and continuing to shoot, as Washington’s shotgun lay on the ground nearby.

Evidence that Washington dropped the shotgun, fell to the ground, and then attempted to run away after Walters started shooting supported a reasonable inference that Washington no longer posed an imminent threat to Walters or Chappelle and that Walters was aware of those changed circumstances. Viewed in the light most favorable to the State, the fact that Walters then chased and continued shooting at an apparently unarmed Washington was sufficient to permit the trier of fact to find beyond a reasonable doubt that Walters’ use of force was more than necessary under the circumstances or that there was a reasonable alternative to the use of force. The evidence was therefore sufficient to satisfy the State’s burden of disproving Walters’ claim of self-defense.

Walters contends that Washington could have had another weapon and that the evidence did not establish that he knew Washington was wounded. He argues that his actions in continuing to shoot were therefore reasonable given the stressful nature of the incident and its short duration. But these arguments are properly directed to the trier of fact. The jury was entitled to assess the credibility of the witnesses, view the videos, and draw contrary inferences. “Credibility determinations are for the trier of fact and cannot be reviewed on appeal.”[6]

Walters also contends the evidence was insufficient to establish that he assaulted Washington with the intent to cause great bodily harm. He points to evidence suggesting that he was firing “slightly” over Washington’s head, that he did not hit Washington after Washington fell, and that he did not express any personal animosity towards Washington.

A person is guilty of assault in the first degree if, with intent to inflict great bodily harm, he or she assaults another with a firearm.[7] Specific intent can be inferred as a logical probability from all the facts and circumstances.[8]

Although the surveillance video cannot establish with absolute certainty precisely where Walters was aiming, Harris testified that after Washington dropped the shotgun and fell to the ground, Walters fired multiple shots by his head. Walters then chased after Washington and continued to fire in the general direction of Washington’s back. Viewed in the light most favorable to the State, the evidence was sufficient to establish that Walters assaulted Washington with the intent to commit great bodily harm.[9]

Necessity Defense

Walters contends that the trial court erred when it refused to instruct the jury on his proposed necessity defense to the charge of unlawful possession of a firearm. He argues that he was entitled to the defense because he began shooting in self-defense only after Washington fired his shotgun at Chappelle. The trial court concluded that Walters was not entitled to the instruction because he possessed the gun before the shooting incident began.

Each side is entitled to jury instructions on its theory of the case if there is evidence to support that theory.[10] In Washington State, the necessity defense is available “when the physical forces of nature or the pressure of circumstances cause the accused to take unlawful action to avoid a harm which social policy deems greater than the harm resulting from a violation of the law.”[11] A defendant asserting a necessity defense for the crime of unlawful possession of a firearm must establish: “(1) he was under unlawful and present threat of death or serious [physical] injury, (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct, (3) he had no reasonable alternative, and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.” But there is no necessity if the defendant possessed the weapon before any specific or immediate threat arose.[12]

Harris testified that Walters displayed a handgun while Washington and Chappelle were still facing off, before Washington retrieved the shotgun from Harris’s car. A short time later, Walters began shooting and chasing Washington after he discharged the shotgun. Although Walters’ car remains visible throughout the incident on one of the surveillance videos, there is no indication that Walters retrieved the gun from the car or from anyone else in response to Washington’s actions.[13]

Even when viewed in the light most favorable to Walters, the evidence established only that he possessed the pistol before any possible threat arose.[14] The trial court properly refused to instruct the jury on the proposed necessity defense.

Affirmed.

WE CONCUR.