State v. Elmi

156 P.3d 281
CourtCourt of Appeals of Washington
DecidedApril 23, 2007
Docket56460-9-I
StatusPublished
Cited by4 cases

This text of 156 P.3d 281 (State v. Elmi) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Elmi, 156 P.3d 281 (Wash. Ct. App. 2007).

Opinion

156 P.3d 281 (2007)

STATE of Washington, Respondent,
v.
Ali ELMI, Appellant.

No. 56460-9-I.

Court of Appeals of Washington, Division 1.

April 23, 2007.

*283 David L. Donnan, Susan F. Wilk, Oliver Ross Davis, Seattle, for Appellant.

Lee Davis Yates, King County Prosecutor's Office, Seattle, for Respondent

COLEMAN, J.

¶ 1 Moments after Fadumo Aden looked out a living room window and saw her estranged husband, Ali Elmi, standing outside, Elmi fired three bullets into the living room, narrowly missing Aden and three young children. Elmi appeals his conviction for the attempted murder of Aden, arguing that there was insufficient evidence of intent to kill and premeditation. He also appeals his convictions for assaulting the children, arguing that the State failed to prove the requisite statutory and common law intent for those assaults and that the convictions violate his right to a unanimous verdict.

¶ 2 Because there was sufficient evidence of intent to kill and premeditation, we affirm Elmi's conviction for attempted murder. And because Elmi's intent toward Aden transferred to the children either by operation of the assault statute or the doctrine of transferred intent, we affirm his convictions for the assaults against the children. The conviction for assaulting Aden, however, violates double jeopardy and must be vacated.

FACTS

¶ 3 Fadumo Aden and Ali Elmi separated during the Spring of 2002. On the afternoon of May 18, 2002, they had a "very heated" argument over the phone. Aden testified that Elmi called her a "bitch" and a "slut" during the argument and that she abruptly hung up on him.[1]

¶ 4 After the argument, Aden drove to her mother's house. Around 10 p.m., Aden and her three-year-old son, three-year-old brother, and five-year-old sister were watching television in her mother's living room when she heard arguing outside. She briefly parted the curtains and saw several people trying to hold Elmi back. Moments later, she heard gunshots and the sound of breaking glass. She screamed and moved the children to the kitchen, where she called 911.

¶ 5 Police later found three bullet holes in the living room window. They also found bullet holes in the curtains, the television screen, and a kitchen cabinet. Four shell casings were found outside the house within five to ten feet of the window. Although Aden testified that she did not see the faces of the people in the yard, she told the 911 operator that Elmi was the person being restrained in the yard just before the shooting.

¶ 6 The 911 tape, which was played for the jury, begins with the sound of children screaming and an hysterical Aden pleading for help. Aden repeatedly tells the operator that shots have been fired and that windows have been broken. Aden says that she does not know whether Elmi is still outside, that she has locked the door, and that she does not want to go near the window. There are intermittent sounds of distress from the children throughout the recording. At one point, a child can be heard saying, "He's going to kill my mommy."

*284 ¶ 7 Based on these facts and other evidence linking Elmi to the gun used in the shooting, the State charged him with attempted first degree murder and four counts of first degree assault with a deadly weapon-one count for assaulting Aden and three counts for assaulting the children.

¶ 8 The children did not testify at trial. When asked how the children reacted to the shooting, Aden testified:

I mean, I screamed and they reacted to how I reacted, but you couldn't really — I don't know how they identified it with shots, really, but they reacted to my reaction, which was, oh, my God, let's move and go to another room.
. . . .
It was, I think, a little fast and I freaked out, so, I mean, they were all young and didn't know what gunshots were, so I think it was my reaction that had them freaked out.

Report of Proceedings (April 14, 2005) at 60. Aden did not specify at what point she removed the children from the room, but testified that it may have been during, rather than after, the shooting.

¶ 9 The court instructed the jury regarding the three common law forms of assault — battery, attempted battery, and placing another in reasonable apprehension of harm. The court also instructed the jury on transferred intent. The jury convicted Elmi as charged. The court merged the convictions for the attempted murder and assault of Aden but did not vacate either conviction.

ANALYSIS

I.

¶ 10 Elmi first contends that his attempted murder conviction is not supported by sufficient evidence. Evidence is sufficient if, after reviewing it 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. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). A sufficiency claim admits the truth of the State's evidence and all inferences that can reasonably be drawn therefrom. Salinas, 119 Wash.2d at 201, 829 P.2d 1068. Intent may be inferred from conduct, State v. Varga, 151 Wash.2d 179, 201, 86 P.3d 139 (2004), and this court must defer to the trier of fact for purposes of resolving conflicting testimony and evaluating the persuasiveness of the evidence. State v. Walton, 64 Wash.App. 410, 415-16, 824 P.2d 533 (1992).

¶ 11 The crime of attempted murder requires specific intent to cause the death of another person. State v. Dunbar, 117 Wash.2d 587, 590, 817 P.2d 1360 (1991). Elmi asserts there was insufficient evidence for the jury to find that he intended to kill Aden. He argues that "[w]ithout evidence of some unusually serious prior altercation or a threat to kill, [there] was insufficient evidence of intent to kill [Aden.]" Brief of Appellant, at 17.

¶ 12 But it is not necessary for the State to show that Elmi verbalized or acted out his intent beforehand. See State v. Gallo, 20 Wash.App. 717, 729, 582 P.2d 558 (1978). Rather, intent to kill may be inferred from all the circumstances surrounding the event. Gallo, 20 Wash.App. at 729, 582 P.2d 558. Proof that a defendant fired a weapon at a victim is a sufficient basis for finding an intent to kill. State v. Hoffman, 116 Wash.2d 51, 84-85, 804 P.2d 577 (1991) ("Proof that a defendant fired a weapon at a victim is, of course, sufficient to justify a finding of intent to kill."). Viewed in a light most favorable to the State, the location and number of the bullet holes, the timing of the shots in relation to Aden's appearance at the window, the proximity of the shell casings to the living room window, and the heated argument earlier in the day strongly support an inference of intent to kill.

¶ 13 Elmi also argues that there was insufficient evidence of premeditation. This argument is meritless. Premeditation is "the deliberate formation of and reflection upon the intent to take a human life." State v. Robtoy, 98 Wash.2d 30, 43, 653 P.2d 284 (1982).

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156 P.3d 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-elmi-washctapp-2007.