State Of Washington v. Kareem Harris , 199 Wash. App. 137 ( 2017 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON =>
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DIVISION ONE *A
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STATE OF WASHINGTON, No. 73064-9-1
Respondent,
V. PUBLISHED OPINION
KAREEM HARRIS,
Appellant. FILED: May 30, 2017
SCHINDLER, J. — To impose criminal liability, the conduct of the defendant must
be both the cause in fact and the legal cause of the result. Kareem Harris seeks
reversal of the jury conviction of premediated murder in the first degree of Wilbur Lee
Gant. Harris contends insufficient evidence supports the jury finding that the injuries
Gant suffered when Harris shot him at least five times at close range was the proximate
cause of his death. Because sufficient evidence supports the jury finding a direct causal
connection between the intentional shooting and the death, we conclude as a matter
law Harris is criminally liable, and affirm.
FACTS
Kareem Harris and Wilbur Lee Gant worked on the assembly line at Milgard
Windows & Doors in Fife. At the end of May 2009, operations manager Anthony
No. 73064-9-1/2
Campbell terminated Harris and lead operator John Helsel for "falsification of time
records." Campbell asked Gant to fill the lead operator position.
On October 16, 2009, the Washington State Employment Security Department
ruled Harris was not entitled to unemployment benefits and ordered Harris to repay
$6,885 in benefits he had received.
At approximately 5:00 a.m. on October 28, 2009, Gant was getting ready to leave
to go to work in his car. Harris approached the car and shot Gant at close range at
least five times. Several neighbors heard the gunshots and Gant's cry for help.
A number of Federal Way Police Department officers responded to the 911 calls,
including Officer Brigham Schulz and Lieutenant Kurt Schwan. Officer Schulz saw the
car "parked on the side of the road with the door open" and the "driver window was
damaged." Gant was lying to the south of the car on the roadway.
Lieutenant Schwan said Gant was lying on his right side on the roadway with "a
large amount of blood soaking his pants from the seat of his pants almost all the way
down to his legs." Gant told Lieutenant Schwan his "left arm hurt and he had no feeling
in his legs." Gant was "alert and conscious." Gant "pleaded" with Lieutenant Schwan
"to help him." Lieutenant Schwan used a towel to apply pressure to the area "where the
most amount of blood was coming"from until medics arrived. Gant told Lieutenant
Schwan,"Kareem Harris shot me."
After the medics arrived and cut off Gant's clothing, Lieutenant Schwan saw a
"massive amount of blood," a "hole in the underwear," and wounds to the buttocks,
lower abdomen, and hip. Gant arrived unconscious at the emergency room at
Harborview Medical Center. Both of Gant's lungs had collapsed as a result of trauma to
his chest. Hospital staff inserted an "endotracheal tube to help control his breathing."
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"[G]iven the location of the bullet wounds and his low blood pressure," doctors decided
to operate immediately.
Dr. Joseph Cuschieri performed the surgery to stop the bleeding. Dr. Cuschieri
said one third of Gant's total blood supply had pooled in his abdominal cavity. Dr.
Cuschieri looked for the source of the bleeding. Gant had bullet wounds in "the left
upper quadrant of the abdomen," the right hip, the left inner thigh, the left buttock, the
back, and his left elbow. The "major source of bleeding was from his liver." A."bullet
had gone through the entire liver from the left side" and "[t]here was a hole in the gall
bladder, which sits underneath the liver." The pylorus valve that connects the stomach
to the small intestine "also had a hole in it" and the cecum valve that connects the small
intestine and colon was damaged.
Dr. Cuschieri repaired the laceration of the liver and removed Gant's gall bladder,
the pylorus valve, and the cecum valve. Dr. Cuschieri removed the "dead tissue" from
the bullet wound in the abdomen and around the abdominal wall. Dr. Cuschieri
temporarily closed Gant's abdomen. After the surgery, Gant was unconscious while in
the intensive care unit. Gant was on a ventilator and given blood transfusions.
Dr. Cuschieri performed a second surgery the next day. Because Dr. Cuschieri
had removed the pylorus valve, he reconnected the stomach to the small intestine.
Because he had removed the cecum valve, Dr. Cuschieri reconnected Gant's small
intestine to the colon. Later that day, doctors performed surgery to remove bullet
fragments and repair his elbow. Gant remained intubated and on a ventilator.
On October 29, 2009, the State charged Kareem Harris with attempted murder in
the second degree of Gant. Harris fled to Miami, Florida.
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Gant was released from the hospital on November 13, 2009. Gant was in pain.
He had to use a wheelchair and had general weakness throughout his body.
Harborview psychiatrist Dr. Douglas Zatzick diagnosed Gant as suffering from post-
traumatic stress disorder(PTSD).
In January 2010, the police arrested Harris in Miami.
In June 2010, Dr. Dennis Rochier diagnosed Gant with acute bronchitis.
Because both of Cant's lungs collapsed after he was shot and X-rays of his lungs
showed scarring from being on a ventilator at Harborview, Dr. Rochier treated him with
antibiotics.
By September 2010, Cant's physical condition had improved but Dr. Rochier
concluded Gant continued to suffer from PTSD and could not return to work.
On December 2, 2010, Dr. Rochier diagnosed Gant with acute bronchitis and
treated him with antibiotics. When Dr. Rochier saw Gant on December 22, Gant no
longer had bronchitis.
On January 9, 2011, Gant told his spouse Margaret Gant that he did not feel well.
Gant was short of breath. After Gant coughed up blood, Margaret called an ambulance.
The medics took Gant to the St. Francis Hospital emergency room. Doctors ordered
blood tests and a computerized tomography(CT)scan. Blood tests showed
Escherichia coil (E. coli) in Cant's bloodstream and his kidney function was
compromised. The CT scan showed multiple areas of bacterial infection in his lungs
and food particles in his throat. Critical care physician Dr. Manuel lregui diagnosed
Gant with "sepsis," a severe and lethal bacterial infection. Contraction of sepsis can
vary from "hours to a couple days." Dr. Iregui told Cant's spouse that "the likelihood
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that he would survive this was pretty close to zero." Gant died the next day on January
10, 2011.
King County medical examiner Dr. Timothy Williams performed the autopsy. Dr.
Williams concluded the fatal cause of death was "bilateral bronchopneumonia," or
pneumonia in both lungs, and the previous or "remote" gunshot wounds. Dr. Williams
noted mild emphysema on the lungs and cirrhosis of the liver. The death certificate lists
the cause of death as "bilateral bronchopneumonia" and "remote gunshot wounds."
The State filed an amended information charging Harris with premeditated
murder in the first degree of Gant in violation of RCW 9A.32.030(1)(a). The information
alleged, in pertinent part:
That the defendant KAREEM HARRIS in King County, Washington,
on or about October 28, 2009, with premeditated intent to cause the death
of another person, did cause the death of Wilbur Lee Gant, a human
being, who died on or about January 10, 2011;
Contrary to RCW 9A.32.030(1)(a), and against the peace and
dignity of the State of Washington[,]. . .[while] armed with a pistol, a
firearm as defined in RCW 9.41.010, under the authority of RCW
9.94A.533(3).
Harris entered a plea of not guilty. Harris denied shooting Gant.
The State called a number of witnesses at trial, including Milgard employees;
neighbors, including Lloyd Peterson and Mary Boldt; Federal Way police officers; Dr.
Cuschieri; Dr. lregui; Dr. Rochier; Dr. Zatzick; and King County Medical Examiner Dr.
Williams.
Milgard employee Myron Woods testified that Harris was angry that he was fired
and that he had to pay back his unemployment benefits and called Woods and Gant
"about that." Harris told Woods that he "had a .45" that he stored under the seat of his
car.
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Lloyd Peterson testified that at approximately 5:00 a.m. on October 28, he heard
the sound of gunshots and went outside. Gant told Peterson that "if anything happens
to me, let everybody know Kareem Harris shot me," and "make sure if I die, you'll know
who shot me, tell 'em Kareem Harris shot me."
Lieutenant Schwan testified Gant told him,"Kareem Harris. Kareem Harris shot
me. He told me he'd do this to me. Kareem Harris did this." Gant told Lieutenant
Schwan that Harris "was a coworker, that he worked with him, and that Mr. Harris
blamed him for losing his job and getting fired."
Mary Bo1dt testified that on October 28 between 4:30 a.m. and 5:30 a.m., she
heard the sound of "five or six gunshots." Bo1dt testified that she went outside after the
medics arrived and saw Gant on a stretcher. BoIdt heard Gant tell the medics "Kareem
Harris shot him."
Harborview psychiatrist Dr. Zatzick testified that intentional harm, such as
shooting, is "associated with worst post-traumatic stress symptoms." Dr. Zatzick
testified that in November 2009, Gant had "multiple symptoms of acute stress,"
including "problems sleeping, intense fear. He was also in physical pain. And he was
having intrusive thoughts, and he was afraid to close his eyes, with a fear that he may
not wake up." Gant told Dr. Zatzick that Harris had been angry with him for some time
before he "perceived his loss of employment" was Cant's fault. The medical records
state, in pertinent part:
[T]he patient reports that the assailant had been angry at the patient for
some time because the assailant perceived his loss of employment at a
factory had been facilitated by the patient. The assailant was fired for time
card fraud.
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No. 73064-9-1/7
The medical records showed that before Gant met Margaret, he was described
as a heavy drinker. Margaret Gant testified that Gant would occasionally drink alcohol.
But Margaret said in the days before Gant became ill on January 9, 2011, he did not
drink much if any alcohol.
Dr. Williams testified that he performed the autopsy to determine the cause and
manner of death. During the autopsy, Dr. Williams removed a bullet from Gant's upper
right hip and inner right thigh. Dr. Williams testified cause of death was bilateral
bronchopneumonia and the gunshot wounds.
Dr. Williams described his examination of the lungs and abdomen. Dr. Williams
said scar tissue on the lungs impaired breathing. Dr. Williams also found "barely
noticeable" indication of emphysema. Gant had a 12-inch scar on his torso. Dr.
Williams found "very severe, very extensive" abdominal scarring that was "on the
extreme end." Dr. Williams testified Gant's abdomen "was basically just one matted
mass of organs embedded in scar tissue." Dr. Williams testified that Gant's scar tissue
reduced the mobility of his organs and impaired the downward movement of food
through his gastrointestinal tract. Dr. Williams said scar tissue impaired Gant's ability to
cough and "clear out debris" from his airway, placing him at even greater risk of
contracting pneumonia through aspiration.
Dr. Williams described two ways E. coli could have infected Gant's lungs—
"aspiration" and "inflammation." Dr. Williams testified that removal of the pylorus and
cecum valves altered the "orderly movement of material through the gastrointestinal
system" and "would have allowed more readily for things to go the other way." Dr.
Williams said food particles traveling the "wrong way" through the digestive system
could carry bacteria from the colon to the lungs through "aspiration." Dr. Williams
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No. 73064-9-1/8
testified that E. coil could have entered Gant's bloodstream through "chronic
inflammation" around his colon due to his scar tissue and infected his lungs directly from
his bloodstream.
Dr. Williams testified neither emphysema nor cirrhosis were significant
diagnoses. Dr. Williams testified the moderate cirrhosis "was not advanced to the point
where it impaired liver function."
Kareem Harris and forensic pathologist Dr. Carl Wigren testified on behalf of the
defense. Harris admitted he paid his lead supervisor to "clock me out" and was fired for
time card fraud. Harris testified that he was "upset" about being fired but he did not
shoot Gant. .Harris said he left home early in the morning on October 28, 2009, to go to
Tacoma.
Defense expert Dr. Wigren testified that based on his review of the medical
records, the "linkage of causation of death to pneumonia cannot be attributed to the
remote gunshot wound injuries." Dr. Wigren testified the laboratory results that showed
".0211]alcohol level" suggested Gant"was drinking earlier" and E. coli entered Gant's
lungs through aspiration due to his "chronic alcohol abuse." Dr. Wigren testified Gant
"could have been passed out and then actually aspirated."
The State called King County Chief Medical Examiner Dr. Richard Harruff in
rebuttal. Dr. Harruff testified that "the cause of death was pneumonia due to multiple
remote gunshot wounds" and "the manner of death in this case was homicide." Dr.
Harruff testified there was no factual basis to support Dr. Wigren's "speculation" that
Gant's pneumonia was the result of aspiration due to intoxication. Dr. Harruff said that
1 Blood alcohol concentration.
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Gant's scar tissue interfered with his "gut motility, the ability of the digested food and the
feces to move through the intestines."
Dr. Harruff described two ways Gant could have contracted E. coli pneumonia:
One would be because his intestinal tract is not working properly, that the
contents could get backed up and he's more — more likely to regurgitate
material from his gastrointestinal tract up into his esophagus that he would
then aspirate or get into his airway that gets into his lung.
Another way is that because of the damage to the intestine, the ...
intestinal wall may be more likely to leak the bacteria into the bloodstream
from the intestine directly into the bloodstream and then end up in the
lung.
The jury found Harris guilty of premeditated murder in the first degree and
returned a special verdict finding Harris was armed with a firearm.
ANALYSIS
Harris contends insufficient evidence supports the jury finding that gunshot
wounds were the proximate cause of Gant's death.
Sufficiency of the evidence is a question of constitutional law that we review de
novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). The State has the
burden of proving the elements of a crime beyond a reasonable doubt. In re Winship,
397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368(1970); State v. Borrero, 147
Wn.2d 353, 364, 58 P.3d 245(2002). Under the Sixth Amendment and the Fourteenth
Amendment to the United States Constitution and article 1, sections 21 and 22 of the
Washington State Constitution, a criminal defendant is entitled to"'a jury determination
that[he] is guilty of every element of the crime with which he is charged, beyond a
reasonable doubt.'" Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S. Ct. 2348, 147
L. Ed. 2d 435(2000)2(quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct.
2 Alteration in original.
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2310, 132 L. Ed. 2d 444 (1995)); Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). The critical inquiry on review of the sufficiency of the evidence
is whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson, 443 U.S. at 319.
A challenge to the sufficiency of the evidence admits the truth of the State's
evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "[A]ll
reasonable inferences from the evidence must be drawn in favor of the State and
interpreted most strongly against the defendant." Salinas, 119 Wn.2d at 201. We defer
to the trier of fact on issues of conflicting testimony, credibility of witnesses, and
persuasiveness of the evidence. State v. Johnson, 156 Wn.2d 355, 365-66, 127 P.3d
707(2006).
Under RCW 9A.32.030(1)(a), "[a] person is guilty of murder in the first degree
when . . .[w]ith a premeditated intent to cause the death of another person, he or she
causes the death of such person." The court instructed the jury that to convict Harris of
premeditated murder in the first degree, the State had the burden of proving beyond a
reasonable doubt that Harris acted with premeditated intent "to cause the death of"
Gant.3
Proximate Cause
The conduct of the defendant must be both"'(1) the actual cause, and (2)the
"legal" or "proximate" cause'"of death. State v. Bauer, 180 Wn.2d 929, 935-36, 329
P.3d 67(2014)(quoting State v. Rivas, 126 Wn.2d 443, 453, 896 P.2d 57(1995)
3 The court also instructed the jury on the lesser included offenses of attempted murder in the first
degree, murder in the second degree, attempted murder in the second degree, and assault in the first
degree.
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(quoting 1 WAYNE R. LAFAVE & AUSTIN W.SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 3.12,
at 392 (1986))).
The court used the 11 Washington Pattern Jury Instructions: Criminal 25.02(3d
ed. 2011)(WPIC)to instruct the jury on proximate cause. Jury instruction 18 states:
To constitute murder, there must be a causal connection between
the criminal conduct of a defendant and the death of a human being such
that the defendant's act was a proximate cause of the resulting death.
The term "proximate cause" means a cause which, in a direct
sequence, unbroken by any new independent cause, produces the death,
and without which the death would not have happened.
There may be more than one proximate cause of a death.
Cause In Fact
Actual cause in fact, or "'"the 'but for' consequences of an act,"'" refers to
"'"the physical connection between an act and an injury"'" and is identical in tort and
criminal cases. Bauer, 180 Wn.2d at 936 (quoting State v. Dennison, 115 Wn.2d 609,
624, 801 P.2d 193(1990)(quoting Hartley v. State, 103 Wn.2d 768, 778,698 P.2d 77(1985))).
Viewing the testimony and all reasonable inferences in the light most favorable to
the State, substantial evidence supports the jury finding beyond a reasonable doubt that
the State proved proximate cause—that but for the gunshot injuries, Gant would not
have contracted pneumonia and died.
Dr. Cuschieri testified that if medics had not taken Gant to Harborview after the
shooting and "if the hemorrhage, the bleeding,[was] not controlled," Gant "would have
died." Dr. Cuschieri testified a second operation was necessary to "put his intestines
back together again."
Because the bullets damaged the pylorus and cecum valves, Dr. Cuschieri had
to remove the valves and connect Gant's stomach directly to his small intestine and his
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No. 73064-9-1/12
small intestine directly to his colon. Dr. Cuschieri said there is no way to "recreate the
pylorus." According to Dr. Cuschieri, connecting the stomach directly to the intestines
can lead to medical complications because it altered the normal functioning of the
gastrointestinal tract. Dr. Cuschieri testified that removal of the valves could "lead to a
whole series of complications" because "it's not anatomical, meaning it's not the normal
way things are."
Dr. lregui testified that "anatomic abnormalities," particularly those involving a
person's bowels, could cause aspiration. Dr. lregui said that E. coli can get into the
bloodstream through "aspiration" from the gastrointestinal tract.
Dr. Rochier testified that lung damage from the shooting made Gant more
susceptible to contracting an infection in his lungs. Dr. Rochier testified that "because
of his previous lung damage, I felt[Gant] might be at greater risk for decompensating."
Dr. Williams described the causal relationship between the gunshot wounds and
pneumonia.
Q. . . .[Now would the — I guess not necessarily the gunshot wounds
themselves, but would the scar tissue formed by the surgeries to
repair the damage to the gunshot wounds, would they play in —
anywhere in your sort of configuration of the cause of death or the
chain of events?
A. Well,sboth the scar tissue and the removal of parts of the intestines
during the treatment. As I talked about, there were two of those
key control points, the valves that were removed, and we talked
about how that could allow contents to go in both directions or go
the wrong way, which could bring it back up. And the airway and
the digestive system are connected at the top, so things that are
brought back up from the digestive system can gain access to the
respiratory system by that method.
Q. Is that sometimes referred to as aspiration?
A. Yes.
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No. 73064-9-1/13
Although Dr. Williams testified it was impossible to "medically determine"
precisely how E. coli entered Gant's lungs, he concluded the injuries from the gunshot
wounds caused the infection in Gant's lungs.
[T]he organism that was identified as the causative agent in the
pneumonia was E. Coli, which is an organism that is pretty much
universally present in the colon, which was one of the major areas
damaged by the gunshot wounds. And ... the causality is that the
damage to the colon facilitated or caused those organisms to get into the
lungs, which caused the pneumonia.
Chief Medical Examiner Dr. Harruff testified that Gant's "substantial" gunshot
injuries "produced anatomic changes that caused a debilitation of the individual so that
he was more vulnerable to developing pneumonia." Dr. Harruff said that because the
gastrointestinal tract was "highly damaged" and Gant was "debilitated" from the injuries,
"[eh/en small infections become major problems." Dr. Harruff testified with "100
percent" certainty that the gunshot wound injuries were "a major contributing factor" to
Gant's death. "I believe, clear and indisputable that those injuries were sufficient
enough to contribute to his death."
Legal Causation
In Bauer, the Supreme Court held that legal causation in criminal cases is not the
same as legal causation in civil tort cases. Bauer, 180 Wn.2d at 936. Legal causation
in civil tort cases is grounded on the determination of how far the consequences of a
defendant's act should extend and focuses on whether the connection between the
defendant's act and the result is too remote or inconsequential to impose liability.
Legal causation. .."involves a determination of whether liability should
attach as a matter of law given the existence of cause in fact. If the
factual elements of the tort are proved, determination of legal liability will
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No. 73064-9-1/14
be dependent on mixed considerations of logic, common sense,justice,
policy, and precedent."
Bauer, 180 Wn.2d at 9364 (quoting Hartley, 103 Wn.2d at 779).
In Bauer, the court held legal causation "in criminal cases differs from, and is
narrower than," legal causation in tort cases in Washington. Bauer, 180 Wn.2d at 940.
In determining whether liability in a criminal case should attach as a matter of law, legal
causation in a criminal case requires"'a closer relationship between the result achieved
and that intended or hazarded.'" Bauer, 180 Wn.2d at 936-37 (quoting 1 WAYNE R.
LAFAVE, SUBSTANTIVE Criminal Law § 6.4(c), at 472(2d ed. 2003)).
Harris relies on Bauer to argue legal causation does not support the conviction.
Bauer does not support his argument.
In Bauer, a child took a loaded gun from Douglas Bauer's house. Bauer, 180
Wn.2d at 933. The gun discharged, harming another child. Bauer, 180 Wn.2d at 932-
33. The State charged Bauer with assault in the third degree. Bauer, 180 Wn.2d at
933. The State alleged that" '[w]ith criminal negligence,'" Bauer"'cause[d] bodily harm
to another person by means of a weapon.'" Bauer, 180 Wn.2d at 933-345 (quoting
RCW 9A.36.031(1)(d)). Bauer filed a Knapstade motion, arguing the undisputed facts
did not establish guilt as a matter of law. Bauer, 180 Wn.2d at 934. The trial court
denied the motion to dismiss. Bauer, 180 Wn.2d at 934.
The Supreme Court addressed whether the trial court erred in denying the
Knapstad motion to dismiss. Bauer, 180 Wn.2d at 935. The court held that unlike
criminal cases where "the initial act was not only intentional, but felonious, and capable
4(Emphasis in original)(internal quotation marks omitted).
5 First alteration in original.
6 State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48(1986).
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No. 73064-9-1/15
of causing harm in and of itself," Bauer's "act of gun ownership... is not felonious or
criminal." Bauer, 180 Wn.2d at 939. The court stated,"No appellate criminal case in
Washington has found legal causation based on negligent acts... that were incapable
of causing injury directly." Bauer, 180 Wn.2d at 938-39. The court drew a distinction
between the imposition of criminal liability in cases such as State v. Leech, 114 Wn.2d
700, 790 P.2d 160 (1990); State v. Perez-Cervantes, 141 Wn.2d 468,6 P.3d 1160(2000); and State v. Christman, 160 Wn. App. 741, 249 P.3d 680 (2011), where an
intentional criminal act was "capable of causing harm in and of itself" and "where the
accused did not actively participate in the immediate physical impetus of harm." Bauer,
180 Wn.2d at 939-40.
For example, in State v. Leech,[ 114 Wn.2d at 705,] this court held that an
arsonist "caused" the death of a firefighter who responded to the arson
fire, despite the fact that the firefighter may have been negligent in his fire
fighting. . .. The arsonist, however, intentionally started the fire—clearly
an intentional criminal act capable of causing harm in and of itself. In
State v. Perez-Cervantes, we held that a person who stabs another may
be liable for the other's death even if drug abuse also contributed to the
death. . . . In contrast to this case, that defendant performed an intentional
criminal act—stabbing—that directly caused harm. And in State v.
Christman, the Court of Appeals applied causation principles to determine
that a person who gives illicit drugs to another may be liable for the other's
death from overdose even if other drugs from another source also
contributed to the death. . . . Once again, the initial act was not only
intentional, but felonious, and capable of causing harm in and of itself.
Bauer, 180 Wn.2d at 939.
The court concluded Bauer's negligent conduct in "leaving guns around his
house loaded and accessible to invited children" was not culpability sufficient for
commission of the crime and reversed. Bauer, 180 Wn.2d at 946.
Bauer may have been negligent about leaving loaded guns out in the
presence of children. [The child] may have been negligent about enabling
a gun enclosed in a backpack to discharge. Bauer's negligence was thus
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No. 73064-9-1/16
not the same as the culpability required for "the crime".... Any
negligence on Bauer's part thus does not meet the definition of culpability
for "the crime" required by RCW 9A.08.020(2)(a). . . .[A]ny negligence on
his part was not "culpability. . . sufficient for the commission of the crime,"
RCW 9A.08.020(2)(a).
Bauer, 180 Wn.2d at 945.
Here, unlike in Bauer, the act of shooting Gant at least five times at close range
was an intentional and felonious act capable of causing harm. See Bauer, 180 Wn.2d
at 939.
Because sufficient evidence supports the jury finding a direct causal connection
between the intentional shooting and the death, we conclude as a matter of law Harris is
criminally liable, and affirm.7
WE CONCUR:
4414,4c.n/
7 Because legal causation is a question of law, we need not address the challenge to the WPIC
jury instruction on proximate cause approved by the Supreme Court or the claim that Harris's attorney
provided ineffective assistance of counsel in failing to object to giving the instruction. See Leech, 114
Wn.2d at 711; Dennison, 115 Wn.2d at 624. We note the instruction on proximate cause required the jury
to find a direct causal connection.
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