     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,                      ]
                                                 No. 70134-7-1
                                                                                                  C3
                     Respondent,          ]
                                                 DIVISION ONE                          jr-

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RICHARD D. PETERS,                       ;       UNPUBLISHED OPINION                         "" -of-
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                    Appellant.                   FILED: August 4, 2014                 5
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      Spearman, C.J. — Richard D. Peters was charged by amended

information of first degree manslaughter after the accidental shooting death of his

six-year-old daughter. The jury convicted him of the lesser included offense of

second degree manslaughter. He challenges the conviction, arguing that the trial

court improperly burdened his constitutional right to bear arms when it admitted

evidence of guns and ammunition, which he owned and stored at the scene of

the crime, but were not actually used in the shooting. He also argues that the trial

court erred in admitting evidence of prior acts involving his unsafe storage and

handling of firearms. We affirm.

                                      FACTS


       On November 16, 2008, Richard Peters shot and killed his six-year-old

daughter, Stormy. Peters had been at home that day, playing with his children
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and watching television with them. Peters had also drank several vodka and

Coke drinks throughout the day.

       That evening, Peters' mother called and asked Peters to lend her a gun.

When he got off the phone, Peters, who owned several guns, unlocked his gun

safe and retrieved is Para-Ordnance .45 pistol to see if it would be suitable for his

mother to use. Peters also sent Stormy upstairs to retrieve his Colt .45 pistol from

his nightstand.

       Stormy came downstairs with the pistol and handed it to her father. He

took the gun from her and removed the magazine. He did not check to see if

there was a bullet in the chamber, because he did not usually store the gun with

a chambered bullet and the magazine appeared full. As Peters was handling the

pistol, it fired, striking Stormy in the center of the forehead. The angle of the

bullet was almost directly perpendicular to her forehead. Stormy died later that

night in the hospital. Peters later told police officers that the gun had a "hair

trigger."

       When police arrived at Peters' home to investigate the shooting, they

observed several guns lying in the open. The Colt .45 was lying on the couch.

Another handgun was on the coffee table. Several more handguns, four assault

rifles, and a shotgun were found in Peters' gun safe, which was located in the

living room and remained open after the call from Peters' mother. The police took

photographs of the crime scene, which depicted these weapons.
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       Police also observed an alcoholic beverage near the gun on the coffee

table. Medics and police at the scene noted that Peters appeared to be

intoxicated. When his blood was drawn at 2:50 a.m. the next morning, his blood-

alcohol level was determined to be .11. Peters acknowledged to the investigating

police officers that he felt under the influence of alcohol, but at trial, he testified

that he had not been too intoxicated to handle a gun.

       The State charged Peters with one count of second degree felony murder

based on second degree assault. A jury acquitted Peters on the murder charge,

but convicted him of the lesser included offense of first degree manslaughter. We

reversed the conviction, citing an erroneous jury instruction.1

       Peters was then retried for first degree manslaughter. At trial, the jury was

shown the crime scene photographs, which depicted the guns observed by police

investigating the shooting. They heard testimony that the police had executed a

search warrant and seized a total of 16 guns from Peters' house.

       The jury also heard testimony from Peters' friends, John Smith and

George Wilson. Smith testified that on at least three occasions, he had observed

Peters handle his guns while drinking. Smith also testified that about a month

before Stormy was killed, he saw Peters reach under "a stack of newspapers,

magazines, some dumped on the couch" and pull out a handgun. Verbatim

Report of Proceedings (VRP) (Mar. 5, 2013) at 44. Upon inspection, Smith had

found this gun to be loaded. That same day, Smith saw Peters ask his eight- or

nine-year-old son to retrieve a gun, which happened to be unloaded, from Peters'

       1 State v. Peters. 163 Wn. App. 836, 848, 261 P.3d 199 (2011)

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truck. Finally, Smith testified that on at least two occasions, he had warned

Peters that the manner in which Peters' handled guns was unsafe.

       Wilson gave testimony about an accidental shooting that occurred about

two weeks before Stormy was killed. A group of people had gotten together that

day to shoot pumpkins that farmers had left over from Halloween. Wilson testified

that he saw Peters and another man holding a shotgun that they were trying to

manipulate. The two men appeared to be trying to clear or chamber a shell when

the shotgun accidentally discharged. Although no one was injured, Peters

acknowledged having a "discussion" with the shooting range operators following

this incident.


       Peters was acquitted of first degree manslaughter but convicted of the

lesser included offense of second degree manslaughter. He appeals.

                                    DISCUSSION


       Peters contends that the trial court committed reversible error when it


admitted evidence of guns and ammunition that he owned, other than the

Colt .45 pistol involved in the shooting. A trial judge's evidentiary ruling will not be

overturned absent a showing of abuse of discretion. An abuse of discretion

occurs when a decision is manifestly unreasonable or exercised on untenable

grounds or for untenable reasons. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684,

132 P.3d 115 (2006). A discretionary decision rests on untenable grounds or is

based on untenable reasons if the trial court relies on unsupported facts or

applies the wrong legal standard, jd.
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        Peters argues that the trial court abused its discretion in admitting

evidence of his ownership of guns because the evidence impermissibly penalized

his constitutionally protected right to bear arms. We reject the argument because

Washington courts recognize no such rule. Peters is correct that gun ownership

is a constitutionally protected right. See Const, art. 1, § 24. He is also correct

that the State cannot use the fact of gun ownership to draw adverse inferences

regarding a defendant's character. But whether the evidence is admissible at trial

turns on the issue of relevance.2 State v. Hancock, 109 Wn. 2d 760, 767, 748

P.2d 611 (1988) (distinguishing State v. Rupe. 101 Wn. 2d 664, 706-07, 683

P.2d 571 (1984)). Peters identifies no authority, and we are aware of none, that

precludes the admission of such evidence where it is relevant to an issue at

stake in the trial.


        Relying on Rupe, 101 Wn. 2d at 686, Peters argues that the evidence of

his ownership of several firearms and ammunition was irrelevant and unduly

prejudicial. He maintains that evidence of the 16 guns, multiple gun magazines,

and 12 boxes of ammunition found in his home was unrelated to the crime at

issue—the accidental shooting of his six-year-old daughter. We disagree.

        In Rupe, a defendant was charged and convicted of multiple counts of

aggravated first degree murder and first degree robbery during the commission

of which he was armed with a firearm. The State sought the death penalty.




         2 Evidence is relevant if it tends to make the existence of any fact that is of consequence
to the determination of the action more or less probable than it would be without the evidence. ER
401. Generally, relevant evidence is admissible. ER 402.
No. 70134-7-1/6



During the sentencing phase of the trial, the State introduced evidence of the

defendant's gun collection, which, admittedly, had not been used in the

commission of the charged crimes.

       The Supreme Court held that the admission of this evidence was error

because it was irrelevant, as there was "no relation between the fact that

someone collects guns and the issue of whether they deserve the death

sentence." jd. at 708. The sole purpose of the evidence in that case was an

impermissible one, to portray the defendant as an extremely dangerous

individual. Id.


       Here, the trial court reasoned that evidence of the guns and ammunition

discovered in Peters' house was relevant and admissible to show "recklessness

on behalf of [Peters] in his use of guns and his overall propensity to not maintain

a safe environment within the home." VRP (Feb. 26, 2013) at 85. We agree. To

prove that Peters committed the crime of manslaughter in the first degree, the

State was required to show that Peters recklessly caused Stormy's death. RCW

9A.32.060. The jury was instructed, "A person is reckless or acts recklessly when

he knows of and disregards a substantial risk that death may occur and this

disregard is a gross deviation from conduct that a reasonable person would

exercise in the same situation." Evidence of Peters' ownership of guns and the

manner in which he used and stored them was relevant to prove that Peters had

knowledge of a substantial risk that his actions may cause a death to occur and

that he intentionally disregarded that risk. Thus, evidence of the guns and
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ammunition discovered in Peters' home was admissible to prove an essential

element of the crime.


       Hancock is instructive. In that case, the evidence of the defendant's gun

ownership was elicited from the alleged victim, who was explaining the basis for

his delay in reporting the alleged crime—his fear of the defendant. "[T]he

evidence of Hancock's ownership of a gun emerged during direct examination of

Hancock's son, L, who was attempting to explain why he did not report the sexual

abuse earlier. After L testified that he feared his father, the prosecutor asked

whether his father had a gun and L said yes." Hancock, 109 Wn.2d at 768. The

Supreme Court concluded that "given the context in which this evidence was

introduced, it appears to be relevant to the issue of L's fear of his father. This fear

was an important element of the prosecution's rebuttal of the defense argument

that L's accusations were a recent fabrication made to get back at Hancock for

recent disciplining." jd. Similarly, in this case, the evidence was admissible

because it was relevant to an issue at stake in the trial. There was no error.

       We also reject Peters' contention that this evidence was unduly

prejudicial. ER 403 allows relevant evidence to be excluded "if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury . . . ." While we acknowledge the potential for

irrelevant evidence of gun ownership to inflame and unfairly prejudice the jury,

particularly in cases involving violent crimes, we find the rule inapplicable here.

The evidence of Peters' gun ownership and, more specifically his manner of

storing and handling the weapons, was directly probative of the recklessness

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element of the crime. We agree with the trial court that the potential for prejudice

in this case did not outweigh the probative value of the evidence.

       Peters also challenges, under ER 404(b), the trial court's admission of his

prior acts involving firearms. Specifically, he argues that the trial court erred

when it admitted testimony from John Smith and George Wilson. This argument

lacks merit.


       ER 404(b) precludes the admission of evidence of prior crimes, wrongs, or

acts for the purpose of proving a defendant's propensity to act in conformity

therewith. However, such evidence may be admissible for other purposes, such

as to establish the defendant's knowledge. ER 404(b). "To admit evidence of

other crimes or wrongs under Washington law, the trial court must (1) identify the

purpose for which the evidence is sought to be introduced, (2) determine whether

the evidence is relevant to prove an element of the crime charged and (3) weigh

the probative value of the evidence against its prejudicial effect." State v. Lough,

125 Wn.2d 847, 853, 889 P.2d 487 (1995).

       As discussed previously, the charge of first degree manslaughter requires

proof that person knows of and disregards a substantial risk that a death may

occur. RCW 9A.32.060(1 )(a). Peters, 163 Wn. App. at 848. Thus, a showing of

recklessness requires proof of a defendant's knowledge. The State is entitled to

introduce evidence of a defendant's prior acts in order to prove his reckless

mental state. See State v. Potter, 31 Wn. App. 883, 885-86, 645 P.2d 60 (1982).

       The testimony of John Smith and George Wilson regarding Peters' prior

acts was probative of Peters' knowledge of the risk involved in his casual

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handling and storage of the several guns he owned. Smith testified that on one

occasion, Peters pointed a loaded gun at him. Shortly thereafter, Smith told

Peters that he thought the way Peters handled weapons was unsafe. Smith also

testified that the same day, he saw a loaded assault rifle propped against a wall

in Peters' house. Again, Smith told Peters that his handling of weapons was

unsafe and specifically criticized Peters for leaving the weapon where children

could get to it. Smith also noted that the rifle was left in a place where Peters'

children could get to it.

       Wilson, who attended the pumpkin shoot with Peters, testified that two

weeks before Stormy was killed, a shotgun was accidentally discharged while

Peters was handling it. When asked about the incident, Peters testified that he

had been unaware that the gun was loaded but had not checked to verify that.

       Smith's testimony establishes that Peters had been expressly forewarned

of the obvious risks associated with keeping unsecured guns in the reach of

children and pointing guns at people whom he did not intend to kill. And Wilson's

testimony establishes that Peters knew, by personal experience, that a carelessly

handled gun can be unintentionally fired when its handler fails to verify that it is

unloaded. The trial court did not err in concluding that their testimony was

relevant.

       Moreover, we agree with the trial court that the evidence was not "overly

prejudicial." VRP (Feb. 26, 2013) at 86. As with the evidence of Peters'
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ownership of guns, the evidence of Peters' prior acts was directly probative of the

recklessness element of the crime charged. The potential for prejudice in this

case did not outweigh the probative value of the evidence.

      Affirm.




WE CONCUR:                                         t


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