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       IN CLERKS OFFICE                                                11Bis opfni'on was Ned fQr ,. . .
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~~~~
~081
     DATE


     .
                FEB 2 6 2015 I
                                                                       -~~   Ronald R.   Carp~mter
                                                                             Supreme Court Clerk



                IN THE SUPREME COURT OF THE STATE OF WASHINGTON


 STATE OF WASHINGTON,                                     )
                                                          )
                                  Petitioner,             )                No. 90154-6
                                                          )
           v.                                             )                  EnBanc
                                                          )
 MARSELE KENITH HENDERSON,                                )
                                                          )     Filed _F_E_B_2_6_20_15----"--"-~-
                                  Respondent.             )
 ___________________________)

           OWENS, J. -            In criminal trials, juries are given the option of convicting

 defendants of lesser included offenses when warranted by the evidence. Giving juries

 this option is crucial to the integrity of our criminal justice system because when

  defendants are charged with only one crime, juries must either convict them of that

  crime or let them go free. In some cases, that will create a risk that the jury will

  convict the defendant despite having reasonable doubts. As Justice William Brennan

  explained, "Where one of the elements of the offense charged remains in doubt, but

  the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts

  in favor of conviction." Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct.
State v. Henderson
No. 90154-6


1993, 36 L. Ed. 2d 844 (1973) (second emphasis added). To minimize that risk, we

err on the side of instructing juries on lesser included offenses. A jury must be

allowed to consider a lesser included offense if the evidence, when viewed in the light

most favorable to the defendant, raises an inference that the defendant committed the

lesser crime instead of the greater crime. State v. Fernandez-Medina, 141 Wn.2d 448,

455-56, 6 P.3d 1150 (2000). If a jury could rationally find a defendant guilty of the

lesser offense and not the greater offense, the jury must be instructed on the lesser

offense. Id. at 456.

       Applying that rule, we hold that the jury should have been allowed to consider

the lesser included charge in this case. This conclusion is based on two unique

aspects of this case. First, this crime involved a shooting outside a house party and

the evidence consisted largely of eyewitness testimony that varied widely and was

often conflicting. Thus, viewing the evidence in the light most favorable to the

defendant results in a much more significant shift than it would in cases with

uncontroverted evidence. Second, the definitions of the lesser crime (disregarding a

substantial risk that a homicide may occur) and the greater crime (creating a grave risk

of death) are very close to each other-much closer than is typical. As a result, we

cannot say that no jury could have rationally found that the defendant, Marsele Kenith

Henderson, committed the lesser crime rather than the greater crime. Thus, we hold

that the jury should have been allowed to determine whether Henderson committed



                                            2
State v. Henderson
No. 90154-6


the greater or lesser crime. We affirm the Court of Appeals and reverse Henderson's

conviction.

                                          FACTS

       On November 16,2008, teenager Philip Johnson called his close friend (and

fellow Hilltop Crips gang member) Henderson to say he was going to a party at the

Boys and Girls Club. Henderson advised Johnson not to go because the club was too

close to a rival gang's territory. Johnson went to the party, where tragically, he was

shot. Henderson learned of the shooting and went to the hospital with his friends,

including Koloneus D'Orman McClarron, to check on Johnson. Johnson died shortly

thereafter at the hospital, although McClarron and Henderson testified that they did

not learn of his death at the hospital.

       The House Party

       After leaving the hospital, McClarron and Henderson decided to go to a house

party. The only entry to the house party was through a gate on the side of the house,

and the party was inside in the basement, garage, and backyard. However, the house

party charged an entrance fee, and McClarron and Henderson did not go inside. Some

witnesses testified that McClarron and Henderson were denied entry by security.

McClarron and Henderson remained in front of the house near the sidewalk, along

with a few other people that they knew. It was while they were outside of the house

party that they learned that Johnson had died.



                                            3
State v. Henderson
No. 90154-6


       The hosts of the party testified that they were growing increasingly concerned

about McClarron, Henderson, and the people with them in front of the house. The

hosts had hired five people to act as security for the party and sent three of them to the

front of the house.

       The Factual Dispute over Whether There Was a Crowd in Front of the House

       One of the most important-and disputed-facts in this case is how many

people were in the area in front of the house at this time Gust prior to shots being fired

toward the house). This matters because whether a person shot into a crowd of people

or whether they shot toward an area with very few people may determine the nature of

the crime.

       Witness testimony on this point varied significantly. The two party hosts

specifically testified that all of the partygoers were in the basement, the garage, or the

backyard, and that the only people in front of the house were the three security people.

Other witnesses indicated that there were more people in front of the house, but this is

complicated by the fact that the witnesses used the phrase "front of the house" to

describe both the area where security was located (immediately in front of the gate on

the side of the house) as well as where Henderson and McClarron were gathered with

a group of people (near the sidewalk in front of the house). This is confusing because,

as described below, the shooting came from the group of people that included

Henderson and McClarron and the shots were fired at the house. As a result, some



                                             4
State v. Henderson
No. 90154-6


witnesses used the phrase "front of the house" to describe where the shots came from,

and some witnesses used the phrase to describe the place at which shots were fired.

This may explain some of the conflicting testimony about how many people were at

the "front of the house." Regardless, when analyzing whether the lesser included

instruction should have been given, we are required to view the evidence in the light

most favorable to the defendant. Therefore, we consider what a rational jury might

have concluded if the three security guards were the only people in front of the house

other than the shooter and his associates.

       The Shooting

       Witnesses testified that either McClarron or Henderson pulled a gun and fired

six shots toward the house from the street. McClarron testified that Henderson fired

the shots, but Henderson testified that it was McClarron who did it. Neither could

give an explanation as to why the other person fired the gun. Four people testified

that the shooter yelled something related to the Hilltop Crips at the time of the

shooting. Witnesses were divided about whether the shooter looked like Henderson

or McClarron.

       One ofthe shots hit 18-year-old Victor Schwenke, one ofthe people hired as

security for the party, in the torso. One of the other security people then pulled a gun

and fired 12 shots toward the shooter, who was running down the street. The house

quickly emptied as people fled after hearing the gunshots. Both McClarron and



                                             5
State v. Henderson
No. 90154-6


Henderson testified that they took off running. Some of the partygoers attempted to

aid Schwenke and provide CPR (cardiopulmonary resuscitation), but he died from the

gunshot wound. When the police examined the crime scene, they did not find any

bullets inside the house. They found two bullet holes in the side of the house (one

above a window and one on the second story) and others in the sides of cars in the

street.

          McClarron testified that he, Henderson, and a few other people met up at

another friend's house that night. A State's witness, Kerry Edwards, testified that he

was at that friend's house and that Henderson had admitted to the shooting that night.

McClarron contradicted Edwards, testifying that Edwards was not there that night.

Edwards' credibility was called into question because he testified that Henderson gave

a gun to an older gang member named Andre Parker at the house that night, but it was

later discovered that Parker was incarcerated at that time.

          In late 2010, a recreational scuba diver found a gun in Puget Sound near a pier

in Tacoma. Ballistics experts matched it to the bullet casings found in the street

outside the house party shooting.

          Henderson's Trial

          A month after the shooting, prosecutors charged Henderson with first degree

murder by extreme indifference. After several continuances, trial began in June 2011.

At trial, Henderson asked that the jury be instructed on the lesser included charge of



                                              6
State v. Henderson
No. 90154-6


first degree manslaughter. 1 Initially, the State agreed, acknowledging that the

definitions of first degree murder by extreme indifference and first degree

manslaughter are "very close" and that there is "hardly a difference." 9 Verbatim

Report of Proceedings (VRP) at 1063. The State later changed its position based on

two Court of Appeals cases from 1998 and 1999: State v. Pettus, 89 Wn. App. 688,

951 P.2d 284 (1998), and State v. Pastrana, 94 Wn. App. 463, 972 P.2d 557 (1999).

In both of those cases, the Court of Appeals held that the defendants were not entitled

to a jury instruction on the lesser included offense of manslaughter because the

defendants' actions were much more than merely reckless. Pastrana, 94 Wn. App. at

471-72; Pettus, 89 Wn. App. at 700. Notably, in both the Pettus and Pastrana

analyses, the Court of Appeals used the general definition of"reckless," which is "'a

disregard of a substantial risk of causing a wrongful act."' Pastrana, 94 Wn. App. at

471 (emphasis added) (quoting Pettus, 89 Wn. App. at 700). As will be discussed

below, we later narrowed the definition of reckless in the context of manslaughter in

State v. Gamble, 154 Wn.2d 457, 114 P.3d 646 (2005), to specifically mean a

disregard of a substantial risk of homicide. Unfortunately, trial counsel did not bring

Gamble to the attention of the trial court. As a result, the trial court agreed with the




1
 Henderson also requested an instruction on second degree manslaughter, which the trial
court denied. The Court of Appeals held that an instruction on second degree
manslaughter was not warranted. We did not grant review of that issue.

                                             7
State v. Henderson
No. 90154-6


State that Pettus and Pastrana were controlling and refused to instruct on first degree

manslaughter.

       The jury convicted Henderson of first degree murder by extreme indifference.

Henderson appealed, contending that the trial court erred when it refused to instruct

the jury on first degree manslaughter. 2

       The Court of Appeals' Decision To Reverse

       The Court of Appeals reversed Henderson's conviction, holding that he was

entitled to an instruction on first degree manslaughter. State v. Henderson, 180 Wn.

App. 138, 147-48, 321 P.3d 298 (2014). The Court of Appeals explained that both of

the cases that the trial court relied on-Pettus and Pastrana-had been based on a

broad, generic definition of recklessness. ld. at 147. The Court of Appeals held that

when we narrowed the definition of recklessness to be used in the context of

manslaughter in Gamble, we necessarily abrogated the analyses in both Pettus and

Pastrana. Jd. at 147-48. Applying the narrower definition of recklessness from

Gamble, the Court of Appeals found a rational jury could have convicted Henderson

of first degree manslaughter while acquitting him of the murder charge, and thus

Henderson was entitled to an instruction on first degree manslaughter. ld. at 148. The




2
  In Henderson's appeal, he also contended that the trial court erred when it admitted
evidence of his gang involvement, arguing that the evidence was highly prejudicial and not
relevant. Like the Court of Appeals, we do not reach this issue because we reverse the
conviction on another basis.

                                             8
State v. Henderson
No. 90154-6


State petitioned for review, which we granted. State v. Henderson, 180 Wn.2d 1022,

328 P.3d 903 (2014).

                                         ISSUE

       Was Henderson entitled to a jury instruction on first degree manslaughter as a

lesser included charge to first degree murder by extreme indifference?

                                      ANALYSIS

       A defendant is entitled to an instruction on a lesser included offense when ( 1)

each of the elements of the lesser offense is a necessary element of the charged

offense and (2) the evidence in the case supports an inference that the lesser crime

was committed. State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).

This helps protect the integrity of our criminal justice system by ensuring that juries

considering defendants who are "plainly guilty of some offense" do not set aside

reasonable doubts in order to convict them and avoid letting them go free. Keeble,

412 U.S. at 212-13.

       Here, both sides agree that the first prong of the Workman rule is met-the

elements of first degree manslaughter are necessary elements of first degree murder

by extreme indifference. Thus, the issue in this case is whether the evidence supports

an inference that the lesser crime was committed rather than the greater crime.

       When evaluating whether the evidence supports an inference that the lesser

crime was committed, courts view the evidence in the light most favorable to the party



                                            9
State v. Henderson
No. 90154-6


who requested the instruction. Fernandez-Medina, 141 Wn.2d at 455-56. This rule is

particularly important in this case, where the numerous witness accounts varied

widely and often conflicted with one other. The dissent acknowledges that we must

view the evidence in the light most favorable to the defendant for purposes of this

analysis. Surprisingly, it then chooses to introduce the case by presenting the

evidence in the light most favorable to the State. See dissent at 1-2.

       We review a trial court's decision regarding this second prong of the Workman

rule for abuse of discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883

(1998). A court abuses its discretion when its decision is based on the incorrect legal

standard. See State v. Dye, 178 Wn.2d 541, 548,309 P.3d 1192 (2013). As we

discussed, the trial court in this case applied the incorrect legal standard based on

outdated case law.

       1. Comparing the Closely Related Definitions of First Degree Murder by
          Extreme Indifference and First Degree Manslaughter

       To determine whether the evidence supports an inference that Henderson

committed first degree manslaughter rather than first degree murder by extreme

indifference, we must carefully compare the definitions of the two crimes. Henderson

was convicted of first degree murder by extreme indifference, which occurs when

someone "[u]nder circumstances manifesting an extreme indifference to human life ..

. engages in conduct which creates a grave risk of death to any person, and thereby

causes the death of a person." RCW 9A.32.030(1 )(b) (emphasis added). First degree


                                            10
State v. Henderson
No. 90154-6


manslaughter occurs when a person "recklessly causes the death of another person."

RCW 9A.32.060(1 )(a). In the context of a manslaughter charge, we have held that

"recklessly" means that a person knew of and disregarded a substantial risk that a

homicide may occur. Gamble, 154 Wn.2d at 467.

       As noted above, the trial court denied Henderson's request that the jury be

instructed on first degree manslaughter. The trial court erroneously relied on older

Court of Appeals cases that applied the broader and more general definition of

recklessness, which is when a person disregards a substantial risk that a wrongful act

may occur. In those prior cases, the Court of Appeals affirmed the trial courts' refusal

to instruct on first degree manslaughter, concluding that a grave risk of death was

much more serious than a substantial risk of a wrongful act. But those holdings are no

longer valid because we have clarified that the proper definition of recklessness in the

context of manslaughter is disregarding a substantial risk that a homicide may occur,

not simply the risk of any wrongful act. I d.

       We disagree with the dissent's characterization of the holdings in Pettus and

Pastrana. In both cases, the Court of Appeals specifically relied on the incorrect

definition of recklessness in its analysis. The Pettus court stated that "the evidence

showed much more than mere reckless conduct-a disregard of a substantial risk of

causing a wrongful act" and that the evidence "does not support an inference that

Pettus's conduct presented a substantial risk of some wrongful act instead of a 'grave



                                            11
State v. Henderson
No. 90154-6


risk of death.'" 89 Wn. App. at 700. The Pastrana court then quoted this exact

language from Pettus in its analysis. 94 Wn. App. at 471 (quoting Pettus, 89 Wn.

App. at 700). The dissent overlooks that the crux of both the Pettus and Pastrana

analyses relied on a now outdated definition of recklessness. The dissent's reasoning

takes the facts of those cases and imposes its view of what those courts would have

held if they had applied the new definition of recklessness. We do not know what

those courts would have decided when faced with a very different question.

       As the Court of Appeals correctly recognized, the proper question under our

current case law is whether a rational jury could have found that Henderson's actions

constituted a disregard of a substantial risk that a homicide may occur but not an

extreme indifference that created a grave risk of death. This is a fairly difficult

question because those two definitions are so similar. Indeed, the State initially

acknowledged that fact to the trial court, saying the definitions are "very close" and

that there is "hardly a difference." 9 VRP at 1063.

       Based on how close the two standards are, the Court of Appeals concluded that

a rational jury could find that Henderson acted "with a disregard for a substantial risk

of homicide, rather than an extreme indifference that caused a grave risk of death."

Henderson, 180 Wn. App. at 148. As explained below, we agree with the Court of

Appeals that these standards are quite close together and that the evidence in this case

could support a finding of manslaughter rather than homicide.



                                            12
State v. Henderson
No. 90154-6


       2. The Evidence Viewed in the Light Most Favorable to Henderson Raises an
          Inference That He Committed Manslaughter and Not Murder

       Crucial to our conclusion is the requirement that we view the evidence in the

light most favorable to Henderson. See Fernandez-Medina, 141 Wn.2d at 455-56.

That requirement has a particularly significant effect on how we view this case

because much of the evidence consisted of conflicting eyewitness testimony.

       Some of the evidence that supports a finding of manslaughter rather than

murder includes (1) testimony from the party's hosts that only three people were

outside the house at the time of the shooting, (2) police testimony that no bullets or

bullet strikes were found inside the house, where the majority of the partygoers were

located, (3) the fact that most of the shots hit the side of the house or cars on the street

and did not appear to land near people, and (4) testimony that Henderson shot from

the street rather than closer to the house. Viewing this evidence in the light most

favorable to Henderson, a jury could have rationally concluded that Henderson acted

with disregard for a substantial risk of homicide rather than an extreme indifference

that caused a grave risk of death. For example, the jury could have concluded that

Henderson intended to scare those in the house by erratically firing his gun rather than

aiming at the security people in the yard.

       On this record, it is difficult to say whether a jury might find first degree

murder by extreme indifference or first degree manslaughter if given the choice-it




                                             13
State v. Henderson
No. 90154-6


depends on how the jury views the evidence. But for the purposes of this analysis, we

must view the evidence in the light most favorable to Henderson. In that light, we

certainly cannot say that no jury could rationally find first degree manslaughter

instead of first degree murder by extreme indifference. Despite the conflicting

testimony and the similar definitions of the two crimes, the dissent concludes that no

rational jury could ever have found manslaughter. On this record, such confidence is

misplaced. This is a very close call, and under our jurisprudence, it should have gone

to the jury. We affirm the Court of Appeals and hold that Henderson was entitled to a

jury instruction on first degree manslaughter.

                                    CONCLUSION

       In light of our decision in Gamble, the definitions of first degree murder by

extreme indifference and first degree manslaughter are very similar. In this particular

case, when viewing the conflicting evidence in the light most favorable to Henderson,

a jury could rationally find that he committed first degree manslaughter and not first

degree murder by extreme indifference. Therefore, he was entitled to a jury

instruction on first degree manslaughter. We affirm the Court of Appeals.




                                           14
State v. Henderson
No. 90154-6




WE CONCUR:




                     15
State v. Henderson (Marsele Kenith), No. 90154-6
(Gordon McCloud, J., Dissenting)




                                     No. 90154-6


      GORDON McCLOUD, J. (dissenting)-The State describes the shooting in

this case as follows: "[D]efendant stood in the street [in] front of a house where a

crowded party was being held and ... fired six shots from a semi automatic weapon

into the crowd of people in the front of the house." 1 The record supports the State's

assertions. E.g., 5 Verbatim Report of Proceedings (VRP) (June 23, 2011) at 408

(police officer testifying that he and other officers found shell casings in the street at

the scene of the shooting), 514-15 (crime scene technician testifying that shell

casings were found in the street in front of the northeast corner of the house where

the shooting occurred); 6 VRP (June 27, 2011) at 565 (witness testifying that

Henderson told him that "[Henderson] was shooting into a crowd and [he saw]

somebody's body drop").


       1
        Pet. for Review at 3 (footnote omitted) (citing report of proceedings 233, 237-38,
636, 686, 856, 938, 1024); see also Suppl. Br. ofResp't (No. 42603-0-II) at 5 ("Defendant
stood in front of a house where he knew there was a crowded party. He rapidly fired
multiple shots indiscriminately into the crowd. (footnote and citations omitted) (citing
report of proceedings at 201, 345, 406-08, 564).


                                            1
State v. Henderson (Marsele Kenith), No. 90154-6
(Gordon McCloud, J., Dissenting)


      For the most part, Henderson accedes to the State's version of events-he

cites no conflicting evidence regarding the shooter's location or the trajectory of the

bullets. Indeed, he identifies only two facts as disputed: the shooter's identity (which

is not relevant to the question of his entitlement to the manslaughter instruction) and

the number of people standing in front of the house. Suppl. Br. of Resp't (No.

90 154-6) at 3. Henderson argues that he was entitled to the manslaughter instruction

because the evidence supported an inference that only two people were in the front

yard when the shooting occurred. Id. at 15-16 ("In urging this Court to find that no

rational trier of fact could find that Mr. Henderson committed manslaughter rather

than first-degree murder, the State ignores the evidence about how many people

were in the front yard. . . . [One witness] testified that only a couple of security

guards ... were in the front yard ... at the time the shots were fired.").

       The majority agrees. It concludes that if only two people were outside at the

time of the shooting, "the jury could have concluded that Henderson intended to

scare those in the house by erratically firing his gun rather than aiming at the security

people in the yard." Majority at 12-13.

       To be sure, the majority is correct that we must construe the facts relating to

this issue in the light most favorable to the defendant, not the State. State v.

Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000). The majority is



                                            2
State v. Henderson(Marsele Kenith), No. 90154-6
(Gordon McCloud, J., Dissenting)


also correct in its description of the facts most favorable to the defendant. Majority

at 4-6.

          But the questions of whether there were 2 or 20 people in the line of fire and

whether Henderson's intent was to scare, rather than to kill, are irrelevant to the issue

presented in this case. In fact, the defendant's intent is not the issue at all. This

court has held that the factual prong of the Workman 2 test requires the trial court to

ask whether the evidence raises an inference that the defendant committed the lesser

offense "to the exclusion of' the greater charged crime. Fernandez-Medina, 141

Wn.2d at 455. Thus, the majority acknowledges, the issue presented here is whether

a rational juror could find that Henderson disregarded a substantial risk that a

homicide may occur (the circumstances that constitute the lesser included offense of

first degree manslaughter) but did not manifest an "extreme indifference" that

created a "grave risk'' of death (the circumstances that constitute the greater offense

of first degree murder by extreme indifference). Majority at 12. 3 The relevant

distinctions are between (1) "disregard" and "extreme indifference and (2)




          2 State   v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).
          3
        The majority asserts that I "conclude[] that no rational jury could ever have found
manslaughter" in this case. Majority at 14. This is incorrect. I conclude that no rational
jury could find that the defendant committed manslaughter to the exclusion of murder by
reckless indifference.

                                                3
State v. Henderson (Marsele Kenith), No. 90154-6
(Gordon McCloud, J., Dissenting)


"substantial risk that a homicide may occur" ver·sus "grave risk of death." Id

(emphasis omitted). 4

      Both State v. Pettus, 89 Wn. App. 688, 951 P.2d 284 (1998), and State v.

Pastrana, 94 Wn. App. 463, 972 P.2d 557 (1999), addressed the first distinction, in

reasoning that is both relevant to this case and not dependent on the generic

definition of "recklessness" rejected in State v. Gamble, 154 Wn.2d 457, 114 P.3d

646 (2005). 5 In both Pettus and Pastrana, the defendants fired shots from one

moving vehicle into another, resulting in a death. Pastrana, 94 Wn. App. at 469;

Pettus, 89 Wn. App. at 692. In both cases, the defendants claimed to have been



       4
         These are the distinctions we must address, because, as just explained, our court
has stated that a defendant is not entitled to an instruction on a lesser included offense
unless the evidence raises an inference that the defendant committed the lesser offense "to
the exclusion of the charged offense." Fernandez-Medina, 141 Wn.2d at 455. I infer some
discomfort with that standard in the majority's opinion. I share that discomfort; indeed, it
arguably stands in tension with the statutory directive that"[ w]hen a crime has been proven
against a person, and there exists a reasonable doubt as to which of two or more degrees
he or she is guilty, he or she shall be convicted only of the lowest degree." RCW
9A.04.100(2) (emphasis added). But the parties in this case have not argued that issue.
       5
         The majority is correct that Pettus and Pastrana also distinguish between "'a
substantial risk of some wrongful act"'-the definition of recldessness abrogated in
Gamble-and a ""'grave risk of death'""-an element of murder by extreme indifference.
Majority at 11-12 (quoting Pettus, 89 Wn. App. at699-700; accord Pastrana, 94 Wn. App.
at 471). But those cases affirmatively held that a defendant who shoots in the direction of
other people manifests an extreme indifference and creates a grave risk of death. Pastrana,
94 Wn. App. at 471; Pettus, 89 Wn. App. at 700. That holding, which unavoidably implies
that such a defendant does not merely disregard a substantial risk of death, did not depend
on the definition of"recldessness" abrogated in Gamble. I believe that holding was correct,
and thus I would affirm the trial court's decision in this case.
                                             4
State v. Henderson (Marsele Kenith), No. 90154-6
(Gordon McCloud, J., Dissenting)


aiming at something other than a person. Pastrana, 94 Wn. App. at 471; Pettus, 89

Wn. App. at 693. And in both cases, the court affirmed the trial court's decision that

the evidence supported only one inference: that the defendant, manifesting extreme

ind(fference, created a grave risk of death. Pastrana, 94 Wn. App. at 471 ("Pastrana

acted with much more than mere recklessness .... [H]e manifested an extreme

indifference to human life and created a grave risk of death-conduct which fits only

the first-degree murder statute, not manslaughter"); Pettus, 89 Wn. App. at 700

("[the] evidence, if believed, established that Pettus's conduct was extremely

indifferent to the lives of people in the vicinity and placed them in great danger").

      This reasoning survives Gamble, which holds only that the "wrongful act"

referenced in Washington's recklessness statute (RCW 9A.08.010(1)(c)) is a

placeholder, standing in for the offense in question in any given prosecution. 154

Wn.2d at 467-68. In fact, Gamble militates even more strongly against Henderson's

entitlement to an instruction on the lesser, because Gamble means that we must

compare offenses so similar that it is virtually impossible to find the elements of the

lesser ("disregard" of"substantial risk" of a homicide, RCW 9A.08.0 10(1 )(c)) to the

exclusion of the greater ("extreme indifference" that creates a "grave risk of death,"

RCW 9A.32.030(1)(b)).




                                           5
State v. Henderson (Marsele Kenith), No. 90154-6
(Gordon McCloud, J., Dissenting)


      I agree with the majority that the trial court's determination under Workman's

factual prong is-as the name suggests-highly fact-specific.            In Pettus, for

example, the court considered the range of the weapon fired, the presence of other

people in the general area, and the difficulty of controlling a weapon while riding in

a moving car. 89 Wn. App. at 700. In Pastrana, the court reasoned that, because it

was dark, the defendant did not know how many people might be in the car he was

shooting at. 94 Wn. App. at 471. Neither case is directly analogous to Henderson's,

but both certainly support the trial court's decision in this case.

      Defense counsel makes no attempt to distinguish Pettus and Pastrana on their

facts, instead arguing only that those decisions were abrogated by Gamble. Suppl.

Br. of Resp't (No. 90154-6) at 6-8. I disagree. Shooting toward even one person

outside a house can certainly constitute indifference to a grave risk of death. Here,

we have two people.

       For these reasons, the trial court did not abuse its discretion by relying on

Pettus and Pastrana to deny the requested manslaughter instruction. See State v.

Walker, 136 Wn.2d 767, 771-72,966 P.2d 883 (1998) (trial court's refusal to instruct

jury on lesser included offense is reviewed for abuse of discretion if based on factual

determination). Viewed in the light most favorable to Henderson, the evidence

showed that the shooter pointed his gun in the direction of a yard where people were



                                            6
State v. Henderson (Marsele Kenith), No. 90154-6
(Gordon McCloud, J., Dissenting)


standing and then fired several times. That there might have been only two people

in the yard does not seem to me to make the shooting any less an expression of

indifference to human life.

      I would reverse the Court of Appeals' ruling that Henderson was entitled to a

manslaughter instruction and remand to that court for resolution of Henderson's

other claim. I therefore respectfully dissent.




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State v. Henderson (Marsele Kenith), No. 90154-6




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