State v. Worth

• Decision Date: 16 November 2021
• Docket Number: 37201-4-III
• Court: Court of Appeals of Washington
• Parties: STATE OF WASHINGTON, Respondent, v. MARK REYNOLDS WORTH, Appellant.

STATE OF WASHINGTON, Respondent, v. MARK REYNOLDS WORTH, Appellant.

No. 37201-4-III

Court of Appeals of Washington, Division 3

November 16, 2021

UNPUBLISHED OPINION

Lawrence-Berrey, J.

Mark Worth appeals after being convicted of attempted murder in the first degree and drive-by shooting. He challenges both convictions and the firearm enhancement related to the former. We affirm.

FACTS

The shooting

Around 4:00 p.m. on September 7, 2016, John "Cass" Gebbers was driving his truck down Old Highway 97 in Brewster Washington. Gebbers saw a black BMW with dark tinted windows in his rearview mirror. Gebbers recognized the car as belonging to Mark Worth, whom he knew from their small-town community. Worth had followed Gebbers before.

Gebbers was on the phone with his son, Wade. He told Wade "'Mark Worth is following me.'" Report of Proceedings (RP) at 424. Worth was approximately two car lengths away and Gebbers could see a large person in the driver's seat. Gebbers told Wade that Worth was trying to pass him and, when Worth accelerated into the passing lane Gebbers saw that Worth's passenger side window was down. Gebbers braked and let Worth pass him. Gebbers kept driving and after about a quarter of a mile, Worth slowed down and they passed each other again. When Gebbers looked over, he saw Worth "lean[ing] over . . . out of his car with a black gun that had kind of a square end to it" and he "looked right down his arm and into his face and it was Mark Worth." RP at 444-45. Gebbers was "100 percent" certain he saw Worth. RP at 445. He thought the gun was a pistol.

Gebbers slammed on his brakes and put up his arm as his truck screeched to a halt. He heard a loud bang and then it felt like his arm was on fire. Wade, who was still on the phone heard a gunshot and glass shattering. Wade heard his father scream, "'He shot me, he shot me, Mark Worth just shot me.'" RP at 472.

Gebbers stopped on the side of the road. His driver's side window was cracked and there was a bullet hole in the glass near his shoulder. He picked up his telephone and said, "'Wade, are you still there. Mark Worth just shot me.'" RP at 447. Gebbers told Wade to call the police.

Worth kept driving up the highway before turning right. Gebbers turned his truck around and started driving to Brewster. He called 911 on the way and told them he had been shot by Worth. He drove to the police station and when he arrived, the police chief drove him to the hospital.

The hospital treated Gebbers for superficial cuts resulting from glass shards in his arm. He was released from the hospital that day.

Law enforcement's investigation

Sergeant Kevin Arnold of the Okanogan County Sheriff's Office responded to the area of the shooting. Initially, he was unable to locate Worth or the broken glass from Gebbers's truck window. The police received a report that Worth was driving near the hospital, put the hospital on lockdown, and requested backup for "an active shooter situation." RP at 482. The police received a later report that Worth was heading east into an orchard. They went to both locations but were unable to find Worth.

At 5:42 p.m., Sergeant Arnold asked dispatch to "ping" Worth's cell phone. RP at 526. He received coordinates showing Worth was about 30 miles away in Douglas County.

The next day, the police found Worth in Wenatchee. Worth was calm, polite, and willing to talk. Sergeant Arnold asked Worth if he shot at Gebbers, and Worth told the sergeant that "he didn't know what I was talking about." RP at 528. Sergeant Arnold asked Worth where he was at various times the day before, and Worth admitted to being in the area of the shooting a few times, but said he also visited several real estate locations. Worth mentioned some of the people he had seen on the day of the shooting at the locations he had visited.

Sergeant Arnold told Worth that he knew the cell phone data would put Worth in the area of the shooting. Worth agreed, admitting that he had been in the area around 3:45 p.m., but maintained he had not seen Gebbers. Worth said he would not have shot Gebbers, he had known him for a long time, and he considered himself a friend of the Gebbers family.

When asked if Worth owned any firearms, he said he had a Glock 9mm stolen from his vehicle the Sunday prior to the shooting. He admitted that he had not reported the theft, but he knew he should have.

The police found probable cause to arrest Worth and obtained a search warrant for his car. They found three cell phones in the car and a 9mm bullet under the driver's seat. They obtained a search warrant for the cell phones.

Procedural history

On September 12, 2016, the State charged Worth with attempted murder in the first degree (count 1) and drive-by shooting (count 2).

July 2019 motions in limine

Cell phone location map and related testimony

Worth sought to exclude:

Any testimony, the basis of which is grounded in hearsay evidence. This would include testimony by police about their opinions and level of knowledge, when the opinion or knowledge is based upon hearsay statements from other witnesses. . . .

c. This would also include "map data" in reference to Detective Sloan's expected testimony. Detective Sloan's report states, "I contacted GIS Analyst Murray and had him print out a draft of the Worth cell phone location map. I made some corrections to the map and legend to make it a better representation." Detective Sloan cannot . . . testify to Analyst Murray's work and why [his] corrections to the map and legends make it a "better representation", nor has the State listed Analyst Murray in the State's witness list or any other records custodian for this data. Further, this evidence should be excluded because the defense has requested the map and associated data from Detective Sloan and contact information for Mr. Murray and all of his data.

Clerk's Papers (CP) at 26-28.

At the motion hearing on the morning of trial, the court required the State to make an offer of proof. The State called Detective Kreg Sloan, who obtained and analyzed the data. Detective Sloan explained how he made the map using the cell phone records obtained from Verizon via the search warrant. He described his training, experience, and process. He enlisted analyst Ted Murray to print the map in color. He testified, "I made some corrections to the map to make it look better-you know, sizing the map, the- legend-to make it a better representation. The data wasn't changed;-just the format and the colors . . . ." RP at 125-26. Mr. Murray reprinted the map and the State submitted it as an exhibit.

Worth reiterated his written arguments and emphasized there was no chain of custody or records custodian from Verizon to authenticate the data. The court denied Worth's motion to exclude the map and related testimony. Prior bad acts

Worth also sought to exclude:

Allegations of prior bad acts by the defendant as prohibited by ER 404(b), including, but not limited to, prior alleged contact between Mr. Worth and Gebbers family members. . . .

. . . .

The State has not given notice of intent to introduce evidence under Evidence Rule 404(b) of other crimes, wrongs, or acts of Mr. Worth in order to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. If that is the State's intent, the Court should order the State to provide a list of witnesses it intends to call regarding this matter and a summary of the subject matter of that testimony. . . .

Here, the very disparate types of actions and behaviors alleged, the age of the alleged events, and the fact that none resulted in either convictions or even charges filed suggest that the purpose and practical effect on the jury will be to show propensity to act "in conformity therewith" in the instant case, see ER 404(b). The evidence is not admissible to form intent.

CP at 29-32.

The State said it would try not to elicit testimony about prior acts but stated: "Cass Gebbers will say that he has been followed many times by Mr. Worth, that's why he was surprised on this particular occasion when Mr. Worth went past him, because usually Mr. Worth just followed Mr. Gebbers. That's within his knowledge, and his interaction." RP at 153. Worth agreed that he could not prevent Gebbers from testifying to his experiences.

The trial court ruled:

I don't know if just following somebody constitutes-Well, it's certainly not a crime, not a wrong. It may be an action, as such. It certainly doesn't seem to fit under [ER] 404(b) at this point-you know, with any testimony.

So basically I'm going to grant the motion here, but for [the] possibility that Mr. Gebbers may indicate[ ] he had been followed, as such.

RP at 154.

Police as experts

Worth also sought to "[p]reclude lay witnesses including police officers from testifying as experts." CP at 45 (emphasis omitted). The court granted the motion.

Bullet

Worth filed a motion in limine regarding the bullet found in his car, which read:

No firearm was located that was determined to be of a type that matched the bullet, no testing was performed to compare damage to the vehicle or alleged injuries of the victim to this bullet, no ballistics expert has been disclosed identified or listed as a State's witness. The fact that a bullet is located in a vehicle in Okanogan County when many individuals carry weapons in their vehicles and loose bullets can easily be dropped or fall in various place[s], is irrelevant to the ultimate question before the jury. Furthermore, it is highly prejudicial and as such should be excluded.

CP at 46-47.

The State argued the bullet is relevant because Worth allegedly shot a gun from his vehicle, and the bullet tends to show he had a gun in his car....