State v. Price

• Citation: 14 P.3d 841,103 Wash.App. 845
• Decision Date: 03 November 2000
• Docket Number: No. 23163-8-II.,23163-8-II.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Claude Allen PRICE, Jr., Appellant.

14 P.3d 841

103 Wash.App. 845

STATE of Washington, Respondent, v. Claude Allen PRICE, Jr., Appellant.

No. 23163-8-II.

Court of Appeals of Washington, Division 2.

November 3, 2000.

Publication Ordered December 21, 2000.

Thomas Edward Doyle, Stephanie C. Cunningham (Court Appointed), Hansville, for Appellant.

Mark Thompson, Deputy Pros. Atty., Thurston County Pros. Office, Olympia, for Respondent.

BRIDGEWATER, J.

Claude Allen Price, Jr. appeals multiple convictions, claiming that: (1) firing a gun into a car cannot be a substantial step toward commission of murder; (2) four convictions for attempted murder of two victims should not be served consecutively; (3) the firearm enhancement should run concurrently; (4) the jury instructions were erroneous; and (5) he suffered ineffective assistance of counsel for counsel's failure to object to all counts being served consecutively. We affirm the convictions, but remand for resentencing with regard to the firearm enhancements on Counts VIII, IX, and XI.

Price stole Johnson's 1992 Silverado pickup. Johnson attempted to stop the theft and Price bumped Johnson with the truck, knocking him to the ground. Later that evening, Price, his friend Reade, and two women stopped at a tavern where Reade tried to steal a truck parked outside. The group next went to a shopping mall, where Reade walked around the parking lot looking for a car to steal. Still unsuccessful, the foursome next stopped at a gas station in the stolen truck, where Reade tried again to steal a vehicle. At 10:30 P.M., Aleta Nakano, driving by the gas station with her boyfriend, Larry Hooper, noticed Johnson's truck slow and come to a stop in the middle of the road. Nakano then saw Reade exit the passenger's side of the pickup and jump out into the parking lot of the gas station.

Next, Nakano observed Reade climb into an unattended idling Chevrolet pickup and begin to drive away from the gas station. The owner of the vehicle returned and Reade ran away (he did not return to the Silverado). Hoping to get the Silverado's license number, Nakano followed the truck and pulled off the road behind the truck when it stopped and parked in a gravel area on Deschutes Parkway. Price exited the driver's side holding a gun and he pointed it at the windshield of Nakano's vehicle.

Nakano and Hooper then ducked and drove off. Nakano heard a bang to the right side of her car. This bang was a single shot fired by Price that lodged in the passenger's headrest. The Silverado followed her. Nakano, driving as fast as she could to get away, drove down Deschutes Parkway, onto the freeway on-ramp, and onto northbound Interstate 5. The Silverado pursued Nakano and Hooper down the on-ramp, onto the interstate, and pulled up along side her vehicle. The pair ducked, and next heard two gunshots. The Silverado "shot off into the fast lane" and Nakano and Hooper quickly exited the interstate and drove to the Olympia Police Department. RP 102; 104-105. Later, the police found bullet holes in the passenger side window, the driver's door, and a bullet lodged in the passenger seat head rest.

At approximately 11:00 P.M. that same evening, Officer Charlie Lindsay, in a marked patrol car, intercepted the Silverado after it ran a red light. From the license plate, Officer Lindsay knew the Silverado had been reported as stolen. He activated his emergency lights and siren and pursued the Silverado for a mile and a half from speeds ranging from 40 to 90 mph. The Silverado crashed, hitting a large rock wall. When Officer Lindsay pulled Price from the vehicle, Price was swinging his arms and kicking at Officer Lindsay. The gun seized from the truck driven by Price was registered to Sven White, Price's roommate. White had reported it stolen earlier that month.

Price rested at trial without presenting evidence. Price pleaded guilty to unlawful possession of a firearm before trial. The jury returned verdicts of guilty on: (1) the attempted first degree murder of Nakano (Count I) and Hooper (Count II) on Deschutes Parkway; (2) the attempted first degree murder of Nakano (Count III) and Hooper (Count IV) on Interstate 5; (3) theft of a firearm; (4) assault in the second degree; (5) attempted theft in the first degree; (6) attempting to elude a police vehicle; (7) assault in the third degree; (8) and possession of stolen property. The jury also found Price was armed with a firearm during the commission of the offenses.

The trial court sentenced Price to a standard range for each count plus firearm enhancements for Counts I-IV, XIII, IX, and XI. The sentences for four attempted murder charges (Counts I-IV) were imposed consecutively pursuant to RCW 9.94A.400(1)(b). The trial court imposed the sentences on Counts I IV to run consecutively to each other because it found that the two shooting incidents constituted "separate and distinct criminal conduct." Pursuant to RCW 9.94A.310(3), the firearm enhancements ran consecutively to each other and to the base crimes for each underlying offense. This resulted in a total sentence of 1,217 months.

I. ATTEMPTED FIRST DEGREE MURDER

The State charged Price in Counts I-IV with attempted first degree murder. Counts I and III named Nakano (the driver) as the victim, and Counts II and IV named Hooper (the passenger) as the victim. Counts I and II stemmed from the shooting on Deschutes Parkway; Counts III and IV related to the second shooting on Interstate 5. Price argues that his actions did not constitute attempted murder toward each separate victim because firing one shot into the vehicle could not constitute a substantial step toward the commission of first degree murder for both Nakano and Hooper. By assignment of error in his brief, Price refers only to the first shooting on Deschutes Parkway, and contests only his convictions on Counts I and II. Price, however, at oral argument, conceded that he was not contesting his conviction on Count I. Regardless of the concession, we hold that there was substantial evidence for Price's conviction on Count I, the attempted murder of Nakano, the driver. Price also clarified at oral argument that his position regarding Count II is based upon the fact that he fired only one shot into the vehicle and he intended to kill only the driver, not the passenger.

A person commits the crime of first degree murder when, with premeditated intent to cause the death of another person, he causes the death of such person. RCW 9A.32.030(1)(a). To convict of an attempt, the State must prove both intent to commit the crime and a substantial step toward its commission. RCW 9A.28.020(1);¹State v. Aumick, 126 Wash.2d 422, 429, 894 P.2d 1325 (1995). Thus, a person commits first degree attempted murder when, with premeditated intent to cause the death of another, he/she takes a substantial step toward commission of the act. State v. Smith, 115 Wash.2d 775, 782, 801 P.2d 975 (1990). In order for conduct to comprise a substantial step, it must be strongly corroborative of a defendant's criminal purpose. State v. Workman, 90 Wash.2d 443, 452, 584 P.2d 382 (1978). See also State v. Grundy, 76 Wash.App. 335, 337, 886 P.2d 208 (1994). "[A]n overt act is ... a direct, ineffectual act done toward commission of a crime[.]" State v. Nicholson, 77 Wash.2d 415, 420, 463 P.2d 633 (1969). Any slight act done in furtherance of a crime constitutes an attempt if it clearly shows the design of the individual to commit the crime. Workman, 90 Wash.2d at 451,584 P.2d 382; Nicholson, 77 Wash.2d at 420,463 P.2d 633.

The State bears the burden of proving every element of the crime charged beyond a reasonable doubt. State v. Billups, 62 Wash.App. 122, 126, 813 P.2d 149 (1991) (citing State v. Aver, 109 Wash.2d 303, 310, 745 P.2d 479 (1987)). On review, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. Billups, 62 Wash.App. at 126, 813 P.2d 149 Whether conduct constitutes a substantial step is a question of fact. Workman, 90 Wash.2d at 449, 584 P.2d 382; Billups, 62 Wash.App. at 126, 813 P.2d 149. We hold that a reasonable jury could have found that the act of firing a single bullet into a vehicle occupied by two people sufficiently corroborated that Price took a substantial step toward commission of first degree murder for both victims.

First, Price seems to be arguing that firing one shot cannot constitute a substantial step toward the commission of attempted first degree murder for more than one victim. This argument is without merit; Price did not need to fire two bullets (one for each victim) at Nakano's car to kill or injure both victims. Moreover, factual impossibility is not a defense to an attempted crime. RCW 9A.28.020 (2);² State v. Roby, 67 Wash. App. 741, 747, 840 P.2d 218 (1992) (citation omitted). Price deliberately fired the gun at Nakano's vehicle. The act of deliberately firing a gun toward an intended victim clearly is "strongly corroborative" of an attempt to commit first degree murder. See State v. Vangerpen, 125 Wash.2d 782, 796, 888 P.2d 1177 (1995) (holding that the act of reaching quickly toward a loaded, cocked, concealed gun is strongly corroborative of an attempt to fire the gun with an intent to kill). The evidence in this case sufficiently supports the finding of attempted first degree murder.

Second, neither does the fact that Price may have thought that the car was only occupied by the driver prevent him from possessing the requisite intent as to the passenger, Hooper. The State argues that the doctrine of transferred intent is applicable to this case. But the statutory definition of first degree murder does not require specific intent for a specific victim. What is required is the specific intent to cause someone's death. The statute provides that a defendant is guilty if he, with the intent to cause the death of any person, in...