Opinion
No. 35056-4-II.
February 12, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 05-1-02559-0, Barbara D. Johnson, J., entered June 26, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Hunt and Quinn-Brintnall, JJ.
Brent Heath appeals his conviction of first degree aggravated murder, arguing that: (1) the State presented insufficient evidence that he killed his wife by discharging a firearm in the immediate vicinity of his truck; and (2) the aggravating factor is void for vagueness. Finding no error, we affirm.
FACTS
Heidi Heath left her Vancouver home to go grocery shopping around 9:45 p.m. on Friday, November 11, 2005. She and her husband, Brent Heath, were expecting guests from Seattle later that evening. When the guests arrived about an hour later, Heidi had not yet returned home. Several hours later, Brent called 911 and reported Heidi missing.
Between 10:00 and 10:15 p.m. that night, Billy Liddell and his wife Laurene noticed a sedan and dark-colored pickup truck parked "fairly close together" under the I-205 overpass on St. John's Road, approximately 9.5 miles from the Heath residence. Report of Proceedings (RP) at 216. At approximately 10:35 p.m., Beverly Hankel drove past the same spot and noticed the parked car but not the truck. She also saw someone sitting in the car's doorway. Brad Bedard, driving under the overpass at the same time as Hankel, also noticed the lone parked car. Thinking that it might be his girlfriend's car, Bedard returned to the overpass and discovered Heidi's body in the car. He flagged down a passing motorist, who then called 911.
Deputies responded to the 911 call and found Heidi's body sitting in the driver's doorway of her car. She had been killed by two gunshot wounds to the face. Detectives recovered one .22 caliber shell casing from the ground near Heidi's feet.
Forensic analysis of the recovered shell casing and bullet fragments matched them to a .22 caliber Rossi rifle owned by Christina and Kyle Hughes. The Hughes family had left town on Friday evening for the weekend. They had asked Brent and Heidi to stop by their house on Saturday to feed their dogs. But Brent stopped by their house on Friday evening, at around 7:30 p.m., two hours after the Hughes left and less than three hours before Heidi was murdered. A neighbor, Bill Crego, saw Brent carrying a small-caliber rifle out of the Hughes' residence, and believed that he was trying to conceal it as he carried it to his pickup truck.
After detectives confronted Brent with the evidence linking him to the rifle, he admitted that his wife had been cheating on him for "[a] long time." RP at 298. A detective then asked him if he saw Heidi's lover that night when he "got to where Heidi was." RP at 301. Brent replied, "I didn't see him." RP at 301.
The State charged Brent with aggravated first degree murder. As the aggravating factor, the State alleged that Brent discharged the firearm from within the immediate area of the motor vehicle he used to transport himself or the murder weapon to the scene. See RCW 10.95.020(7). The jury convicted Brent as charged.
ANALYSIS I. Sufficiency Of the Evidence
Brent argues that the State failed to prove beyond a reasonable doubt that he killed Heidi or that in doing so, he discharged a firearm from the immediate area of the vehicle he used. Due process requires that the State prove every fact necessary to constitute a charged offense beyond a reasonable doubt. State v. Frost, 160 Wn.2d 765, 773, 161 P.3d 361 (2007) (citing In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)), cert. denied, No. 07-6932, 2008 WL 114103 (U.S. Jan. 14, 2008).
In reviewing a challenge to the sufficiency of the evidence, we ask whether viewing the evidence in the light most favorable to the State, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Brockob, 159 Wn.2d 311, 336, 150 P.3d 59 (2006) (quoting State v. Hughes, 154 Wn.2d 118, 152, 110 P.3d 192 (2005)). We also draw all inferences from the evidence in favor of the State and against the defendant. State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005).
A. Brent Caused Heidi's Death
In support of his challenge to the sufficiency of the evidence, Brent cites State v. Mace, 97 Wn.2d 840, 650 P.2d 217 (1982), and State v. Guiles, 53 Wn.2d 386, 333 P.2d 923 (1959). Neither case supports Brent's argument.
Brent seems to argue that Mace held that circumstantial evidence alone is insufficient to convict a defendant. But Mace held only that proof the defendant possessed stolen property was insufficient to prove he had committed the burglary in which the property was stolen. Mace, 97 Wn.2d at 843. In fact, in considering the sufficiency of evidence, we give equal weight to circumstantial and direct evidence. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004).
Brent also misreads Guiles. He argues that Guiles stands for the proposition that absent an eyewitness to the murder, a defendant must have had exclusive access to the weapon for the State to meet its burden. But the Guiles court actually reversed the defendant's conviction because the State presented no proof whatsoever that he had committed the crime. Guiles, 53 Wn.2d at 387. In this case, the State proved that the murder weapon's owners had left for the weekend and that a neighbor saw Brent leaving the Hughes' home with the weapon only a few hours before the killing. Thus, even if Guiles afforded some support for Brent's legal theory, the State proved that Brent had exclusive access to the weapon at the time of the killing.
Overall, the State's evidence supported the following facts. First, Brent had access to the murder weapon: forensic experts identified the murder weapon as a small-caliber rifle the Hughes' owned; Brent knew the Hughes would be out of town on the night of the murder and had access to their house; and he was seen carrying a small-caliber rifle out of the house that night. Second, Brent was at the site of Heidi's murder with the murder weapon: witnesses saw a dark-colored pickup truck at the murder scene shortly before the body was found; Brent owned a blue pickup truck and was seen putting a rifle into the truck hours before the murder; and Brent told detectives that he did not see Heidi's boyfriend when he got to "where Heidi was." RP at 301. Finally, the jury could have found that Brent was unhappy with his wife because he believed she was having an affair. Viewed in favor of the State, the evidence was sufficient for the jury to convict Brent of murdering his wife.
B. Aggravating Factor
Brent argues that, even if the State proved he killed Heidi, it failed to prove that he discharged the weapon from the immediate area of a vehicle. RCW 10.95.020(7) provides that a person is guilty of aggravated first degree murder if he commits first degree murder and,
[t]he murder was committed during the course of or as a result of a shooting where the discharge of the firearm . . . is either from a motor vehicle or from the immediate area of a motor vehicle that was used to transport the shooter or the firearm, or both, to the scene of the discharge.
Brent's argument fails. First, the evidence was sufficient for the jury to infer that Brent had to drive to the scene: (1) the scene was more than nine miles from the Heath home; (2) Heidi was killed at approximately 10:15 p.m.; and (3) Brent was home when his guests arrived at approximately 10:45 p.m. Second, the evidence was sufficient to allow the jury to infer that Brent had the weapon in his truck and that he shot Heidi while in the immediate area of his truck: (1) Brent owned a blue Ford truck and he put the murder weapon in his truck at approximately 7:30 p.m. the night of the killing; (2) the officers found Heidi still sitting partly in her car; (3) the officers found one shell casing near Heidi's feet; and (4) shortly before her body was discovered, a witness saw a dark-colored truck parked near Heidi's car. Heidi was found half-in and half-out of her car, and there was no evidence that her body had been moved. The .22 caliber shell casing was found on the ground within a foot-and-a-half of Heidi's feet. A Rossi rifle will eject a shell casing only four or five feet, supporting an inference that Brent fired at least one shot from within five feet of Heidi's car. And, finally, Brent's truck was parked "fairly close" to Heidi's car. RP at 216.
II. Void For Vagueness
Brent next argues that the aggravating factor charged by the State is void for vagueness as applied to his case.
The due process clause of the fourteenth amendment requires statutes to provide fair notice of the conduct they proscribe. State v. Watson, 160 Wn.2d 1, 6, 154 P.3d 909 (2007) (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972)). A statute fails to provide the required notice if it "`either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.'" Watson, 160 Wn.2d at 7 (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926)). Still, a "measure of vagueness is inherent in the use of language." Watson, 160 Wn.2d at 7 (quoting Haley v. Med. Disciplinary Bd., 117 Wn.2d 720, 740, 818 P.2d 1062 (1991)). We presume a statute to be constitutional; the party challenging it "bears the burden of proving beyond a reasonable doubt that it is unconstitutionally vague." Watson, 160 Wn.2d at 11 (citing Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)).
Brent relies on State v. Locklear, 105 Wn. App. 555, 20 P.3d 993 (2001), and State v. Rodgers, 146 Wn.2d 55, 43 P.3d 1 (2002). In these companion cases, the defendants were convicted under RCW 9A.36.045 (a "drive-by shooting" statute with language similar to RCW 10.95.020(7)), after the State presented evidence that the defendants had walked two blocks from their parked cars before discharging their firearms. In Locklear, we found the statute unconstitutionally vague as applied to the facts because persons of reasonable intelligence would have to guess whether they were still in the immediate area of a vehicle after walking two blocks away from it. Locklear, 105 Wn. App. at 560. On review, the Washington Supreme Court found that the defendant was entitled to a reversal because the State produced insufficient evidence that he had discharged a firearm from the immediate area of a vehicle. Rodgers, 146 Wn.2d at 62.
Brent argues that Locklear is controlling because his truck could have been parked "three car lengths away, 10 car lengths away, a block away over a hill" or even farther from the shooting site. Br. of Appellant at 27. The evidence does not support Brent's speculation. Rather, the State proved that Brent parked his truck fairly close to Heidi's car. And he shot Heidi from within five feet of her car. We find that under these circumstances, any reasonable person would be on notice that he was firing from within the immediate vicinity of the vehicle he used to get to the scene with the weapon. Compare Locklear, 105 Wn. App. at 560.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and QUINN-BRINTNALL, J., concur.