State v. Henderson ( 2015 )

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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.
 Statev. 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
 Statev. 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
 Statev. 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
 Statev. 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
 Statev. 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
 Statev. 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
 Statev. 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
 Statev. 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
 Statev. 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.
7
  State
 v. Henderson
          
(Marsele Kenith), No. 90154-6
8