Appeal from Superior Court of Franklin County. Docket No: 94-1-50173-8. Date filed: 10/25/94. Judge signing: Hon. Craig J. Matheson.
Authored by Dennis J. Sweeney. Concurring: Frank L. Kurtz, Stephen M. Brown.
The opinion of the court was delivered by: Sweeney
SWEENEY, C.J. Ambrosio Longoria drove to the front of a used car dealership showroom. Roger Rangel was a passenger. Mr. Rangel fired a handgun into the front window of the dealership. The owners of the dealership were sleeping in an apartment above the showroom. The bullet entered a wall 31 feet from the living quarters.
Mr. Rangel and Mr. Longoria were convicted of one count of reckless endangerment in the first degree and one count of malicious mischief in the second degree. Mr. Rangel and Mr. Longoria appeal. They claim the evidence is insufficient to support their convictions for reckless endangerment. We consolidated their cases on appeal. RAP 3.3(b).
We review a challenge to the sufficiency of the evidence by viewing the evidence in the light most favorable to the State and affirm if any reasonable trier of fact could find all the elements of the offense beyond a reasonable doubt. State v. Jeffries, 105 Wash. 2d 398, 407, 717 P.2d 722 (1986).
To be convicted of reckless endangerment in the first degree, the State must prove the defendant (1) recklessly discharged a firearm (2) creating a substantial risk of death or serious physical injury, and (3) shot from a motor vehicle. RCW 9A.36.045; State v. Rivera, 85 Wash. App. 296, 300, 932 P.2d 701 (1997), petition for review filed (Wash. Apr. 18, 1997) (No. 65327-5).
Mr. Rangel fired a gun from Mr. Longoria's truck into the dealership showroom. The building was occupied. They recklessly discharged a firearm from a motor vehicle. The first and third elements are therefore satisfied. See State v. Washington, 64 Wash. App. 118, 128, 822 P.2d 1245, review denied, 119 Wash. 2d 1003 (1992).
The shot struck a wall 31 feet from where the owners of the building were sleeping. Mr. Rangel and Mr. Longoria argue that the bullet did not strike close enough to the victims. And they did not know the building was used as an apartment. Whether the discharge of the firearm created a substantial risk of death or physical injury is a factual question. See State v. Austin, 65 Wash. App. 759, 762, 831 P.2d 747 (1992) (recognizing that existence of substantial risk of death or serious injury is a factual finding); see also In re Welfare of Wilson, 91 Wash. 2d 487, 490, 588 P.2d 1161 (1979) (finding sufficient evidence to support conviction for reckless endangerment when "rope" made of weatherstripping was pulled taut across a road from time to time). The Judge here concluded that the shooting did create a substantial risk of death or physical harm.
Mr. Rangel and Mr. Longoria argue finally that the State must show they were engaged in drug trafficking. They rely on State v. Ferreira, 69 Wash. App. 465, 470, 850 P.2d 541 (1993), where the court rejected the defendant's contention that reckless endangerment was a lesser included offense of first degree assault since there was "no evidence of drug trafficking . . . ." Drug trafficking is not an element of reckless endangerment. The legislative history discussed in Ferreira is just that, legislative history. It is clear the Legislature intended to criminalize the activity of "drive-by shootings" not solely shootings occurring while trafficking drugs. Laws of 1989, ch. 271, sec. 108.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.