State v. Jones, No. 22315-9-III (Wash. App. 11/30/2006)
| Decision Date | 30 November 2006 |
| Docket Number | No. 22315-9-III.,Consolidated with No. 22336-1-III.,22315-9-III. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JEREMIAH JUSTIN JONES, Appellant. STATE OF WASHINGTON, Respondent, v. JASON ALLEN GRAHAM, Appellant. |
Appeal from Spokane Superior Court. Docket No: 02-1-00203-1. Judgment or order under review. Date filed: 08/19/2003 Judge signing: Honorable Maryann C Moreno.
Counsel for Appellant(s), Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA.
David N. Gasch, Gasch Law Office, Spokane, WA,
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, Spokane, WA.
Police stopped Jason Allen Graham and Jeremiah Justin Jones for speeding in a stolen car. Shots were fired out of the rear window as the officer approached the car, and the men sped away. Police caught up with them when they rolled the car. Mr. Jones soon surrendered. Mr. Graham fired his weapon numerous times at the many responding officers before he was shot and arrested.
The main issue in Mr. Graham's appeal is whether there is sufficient evidence to support his convictions for attempted first degree murder, first degree assault, second degree assault, and first degree possession of stolen property. We hold that there is.
In Mr. Jones' appeal, the central issue is whether there is sufficient evidence to support his convictions for first degree assault and first degree possession of stolen property. We hold the evidence is sufficient for the assault conviction. We conclude, however, that because the evidence did not show that Mr. Jones had dominion and control over the stolen vehicle, there is insufficient evidence to support the conviction for first degree possession of stolen property. We therefore reverse that conviction.
On January 7, 2002, at approximately 1 a.m., Spokane Police Officer Christopher Lewis pulled over a speeding Toyota 4Runner at Scott Street and First Avenue. Officer Lewis stopped his patrol car behind the 4Runner. As he emerged from the patrol car gunfire erupted from inside the 4Runner, shattering the rear window. Officer Lewis dove to the ground and the 4Runner sped away. Officer Lewis chased the 4Runner to a parking area at First Avenue and Division Street, where the 4Runner rolled and came to rest on the driver's side. The passenger door opened and Jeremiah Jones jumped out and fled down some railroad tracks. He soon surrendered to police. Jason Graham then emerged, holding a gun. He paused, looked at Officer Lewis and ran down the railroad tracks.
Officer Aaron Ames responded to the area. He saw Mr. Graham armed with an AK-47 assault rifle. He drew his gun and ordered Mr. Graham to drop his weapon. Mr. Graham continued to hold the AK-47 with both hands, pointed down, and responded that "I am really fucked up" or "I really fucked up" and that he just wanted to leave. Report of Proceedings (RP) at 588. When Mr. Graham took off, Officer Ames followed while attempting to maintain protective cover. At one point, Mr. Graham turned and raised his weapon slightly as if to point it at Officer Ames. As. Mr. Graham fired, Officer Ames retreated for cover while Mr. Graham fled toward the Intermodal Center, a commercial bus and train terminal.
Officer John Stanley of the canine unit arrived to assist. As Officer Stanley drove his patrol car up the entrance ramp and through the covered bus passenger loading area, Mr. Graham stepped out from between two parked vehicles and started shooting at Officer Stanley's car. Officer Stanley accelerated through the passageway and down the exit ramp and joined other officers taking position on that side of the building.
Officer Alan Edwards arrived at the scene and loaded Sergeant Daniel Torok, Officer Kevin Vaughn, and Officer Jason Uberuaga into his patrol car. As Officer Edwards approached the Intermodal Center, gunfire erupted. Sergeant Torok saw Mr Graham on the ramp, approximately 15 feet above street level, shooting at the patrol car.
Officer Edwards and Sergeant Torok each understood that they were in a vulnerable position. Sergeant Torok, Officer Vaughn, and Officer Uberuaga got out of the vehicle and took cover. Sergeant Torok fired a shot at Mr. Graham. Officer Ames also caught up with Mr. Graham and fired. Mr. Graham was hit and taken into custody. Police found Mr. Jones' 9-mm Daewoo pistol in the 4Runner.
Mr. Graham was charged with and tried on six counts of attempted first degree murder (Sergeant Torok and Officers Ames, Stanley, Edwards, Uberuaga, and Vaughn) and one count of unlawful possess of a firearm.1 Both Mr. Graham and Mr. Jones stood trial on one count of first degree assault (Officer Lewis) and one count of first degree possession of stolen property (4Runner).2
Mr. Graham and Mr. Jones had a joint trial in which the jury was instructed on lesser charge alternates. After the first day of deliberations, a juror was excused when she failed to return on the second day. She claimed her car was disabled in Seattle. The juror was replaced with an alternate and the jurors were instructed to begin deliberations anew.
Mr. Graham was found guilty of two counts of attempted first degree murder (Officers Stanley and Edwards), four counts of first degree assault (Sergeant Torok and Officers Uberuaga, Vaughn, and Lewis), one count of second degree assault (Officer Ames), and one count of first degree possession of stolen property. Mr. Jones was convicted of one count of first degree assault (Officer Lewis) and one count of first degree possession of stolen property. The jury found by special verdict that both Mr. Graham and Mr. Jones were in possession of a deadly weapon — which the court defined as a firearm — during the commission of the attempted murders and assaults.
After the verdicts, the defense moved to arrest the judgments, or in the alternative for a new trial based on juror misconduct, insufficient evidence, inconsistent verdicts, and an improper transferred intent instruction for first degree assault. The motions were denied. This appeal follows.
Due process requires the State to prove every element of the crime charged beyond a reasonable doubt. State v. Nicholson, 119 Wn. App. 855, 859, 84 P.3d 877 (2003). Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
A claim of insufficiency admits the truth of the State's evidence and all inferences that can reasonably be drawn from it. Salinas, 119 Wn.2d at 201. When considering the evidence, "[c]redibility determinations are for the trier of fact and cannot be reviewed on appeal." State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
(1) Attempted First Degree Murder.
As charged in this case, the crime of attempted first degree murder requires proof that Mr. Graham, with premeditated intent to cause a person's death, took a substantial step toward the commission of the act. RCW 9A.32.030(1)(a); RCW 9A.28.020(1); State v. Price, 103 Wn. App. 845, 851-52, 14 P.3d 841 (2000). Mr. Graham's argument focuses solely on the intent element.
A person acts with intent when he or she acts with the objective or purpose to accomplish a result constituting a crime. RCW 9A.08.010(1)(a); State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994). A substantial step is more than mere preparation and must be strongly corroborative of a defendant's criminal purpose. State v. Aumick 126 Wn.2d 422, 427, 894 P.2d 1325 (1995); Price, 103 Wn. App. at 852 (citing State v. Workman, 90 Wn.2d 443, 452, 584 P.2d 382 (1978)). Even a slight act done in furtherance of a crime constitutes an attempt if it clearly shows the design of the individual to commit the crime. State v. Nicholson, 77 Wn.2d 415, 420, 463 P.2d 633 (1969); Price, 103 Wn. App. at 852. "Premeditation" involves a deliberate formation of and reflection on the intent to take a human life and includes "' the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short.'" State v. Gentry, 125 Wn.2d 570, 597-98, 888 P.2d 1105 (1995) (quoting State v. Ollens, 107 Wn.2d 848, 850, 733 P.2d 984 (1987)).
In the count involving Officer Stanley, taking the evidence in the light most favorable to the State, Mr. Graham stepped out between two cars and shot at Officer Stanley at close range as he drove his patrol car through the bus loading area. Officer Stanley had "no doubt" that Mr. Graham was shooting at him. RP at 898.
In the count involving Officer Edwards, again viewing the evidence in the light most favorable to the State, Mr. Graham stood above Officer Edwards' patrol car on the ramp placing Officer Edwards in a position of vulnerability. Sergeant Torok testified that Mr. Graham appeared to be firing at them. Officer Edwards remained in the vehicle and took fire while Sergeant Torok, Officer Vaughn, and Officer Uberuaga escaped. Officer Edwards could feel the bullets concuss his patrol car.
In each case, a reasonable jury could find that taking an aggressive and dominant stance and firing multiple rounds from an assault rifle can show premeditated intent to cause a person's death, with a substantial step taken toward the commission of the act.
Mr. Graham argues that because he did not "riddle [the officers' cars] with bullets" when he clearly had the opportunity to do so shows he did not have an intent to commit attempted first...
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