Appeal from Pierce County Superior Court. Docket No: 12-1-04543-9. Judgment or order under review. Date filed: 06/06/2013. Judge signing: Honorable Vicki Hogan.
Catherine E. Glinski (of Glinski Law Firm PLLC ), for appellant.
Mark E. Lindquist, Prosecuting Attorney, and Thomas C. Roberts, Deputy, for respondent.
Authored by Lisa Worswick. Concurring: Thomas R Bjorgen, Rich Melnick.
[185 Wn.App. 933] Worswick,
¶ 1 Agyei McDaniel appeals his convictions for second degree murder and second degree unlawful possession of a firearm. He argues, among other things, that the felony murder statute is ambiguous regarding whether assault is a predicate offense and therefore the rule of lenity requires his conviction be reversed. In the published portion of this opinion, we hold that the felony murder statute is not ambiguous and it clearly includes a deadly assault as a predicate offense. In the unpublished portion of the opinion, we disagree with McDaniel's remaining assignments of error. Accordingly, we affirm.
[185 Wn.App. 934] FACTS
¶ 2 McDaniel shot and killed Patrick Nicholas. Testimony at trial showed that the two men were close friends.
¶ 3 McDaniel rented a large storage unit in Tacoma, and Nicholas's family kept some belongings in it in exchange for a small portion of the monthly fee. Being late in payments, McDaniel was required to vacate the unit on December 4, 2012.
¶ 4 On the afternoon of December 4, McDaniel; McDaniel's wife, Angela;  Nicholas; and Nicholas's wife, Korrin Tennyson, went to the storage unit. At the storage unit, McDaniel and Nicholas argued with each other. McDaniel felt nervous during the argument because Nicholas seemed extremely angry and was atypically keeping his hands in his pockets as he talked. McDaniel knew that Nicholas often carried a gun, and McDaniel thought Nicholas might be pointing a gun at McDaniel through Nicholas's pocket. McDaniel also thought Nicholas might be under the influence of PCP-dipped cigarettes, which McDaniel knew Nicholas sometimes used.
¶ 5 Nicholas began to advance on McDaniel, saying " What you gonna do?" 6 Verbatim Report of Proceedings at 690-91. McDaniel saw that Nicholas had one hand fully in one pocket and the other hand halfway in another pocket. McDaniel could see something in Nicholas's hand. Nicholas continued to advance on McDaniel, who thought Nicholas was either going to pistol-whip or shoot him. McDaniel then drew a gun and shot Nicholas twice.
¶ 6 McDaniel and Angela left the storage facility, returned home, packed some bags, and drove north. They [185 Wn.App. 935] stayed in a motel in Arlington overnight but returned to Tacoma the following day, where McDaniel surrendered to authorities.
¶ 7 Nicholas died at a hospital the day after the shooting. The medical examiner determined the cause of death to be a penetrating gunshot wound to the head around
the front of Nicholas's scalp. Nicholas also suffered a nonfatal gunshot wound to his shoulder.
¶ 8 The State charged McDaniel in an amended information with one count of second degree murder with intent to cause Nicholas's death and, in the alternative, second degree felony murder while committing or attempting to commit second degree assault. The State also charged him with second degree unlawful possession of a firearm.
¶ 9 The jury found McDaniel guilty of second degree felony murder with assault as the predicate felony and unlawful possession of a firearm. By a special interrogatory, the jury found that McDaniel did not intentionally kill Nicholas but rather found him guilty of felony murder in the course of and in furtherance of assault.
¶ 10 McDaniel argues that because the felony murder statute is ambiguous with regard to whether an assault causing death is a predicate offense, the rule of lenity applies and requires his conviction be reversed. We disagree with McDaniel that the felony murder statute is ambiguous. Its plain language clearly includes assault as a predicate offense.
[185 Wn.App. 936] I. Standard of Review
¶ 11 We review interpretation of a statute de novo. State v. Bunker, 169 Wn.2d 571, 577-78, 238 P.3d 487 (2010). We endeavor to effectuate the legislature's intent. 169 Wn.2d at 577-78. First, we look to the plain language of the statute: if it is unambiguous, then the plain meaning governs. State v. Bostrom, 127 Wn.2d 580, 586-87, 902 P.2d 157 (1995). If the statute is ambiguous, we apply traditional statutory interpretation rules to determine its meaning. State v. Evans, 177 Wn.2d 186, 192-94, 298 P.3d 724 (2013). The rule of lenity applies only if the plain language of the statute is ambiguous and traditional statutory interpretation rules do not help clarify it. Evans, 177 Wn.2d at 192-94.
II. Statute Unambiguously Includes Assault as Predicate Offense
¶ 12 McDaniel argues that the felony murder statute is ambiguous with regard to whether assault is a predicate offense when the assault is the same act resulting in the death. He argues that the statute could be read to apply only to those assaults ...