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State v. Davis9/12/2003
ccidental shooting.
. For example, Davis told the dispatcher during the 911 call that the shooting was an accident. In contrast, he told the police shortly after the shooting that someone had tried to rob him-implying that another person shot Powers and that it was not accidental. Davis also said, when his hands were swabbed for gunpowder residue, that he and others had been shooting guns all day. However, no evidence supported this claim. Instead, the evidence is clear that Davis had been at a birthday party for his daughter before the shooting, and that Powers did not bring the assault rifle over until late that night.
. Davis also made other comments to the police implying that he was not the shooter, and that Powers was shot by others who came in the front door of the house. In fact, Davis told the police that Powers was shot while trying to protect him (Davis). In contrast, gunpowder residue tests showed that Davis had discharged a weapon, handled a weapon, or was in close proximity to a weapon during discharge. Later, at trial, Davis admitted shooting Powers, but said the shooting was accidental. This claim, however, was belied by expert testimony on gunpowder residue and blood spatters. Specifically, this evidence was inconsistent with statements Davis made about the position of Powers' hands at the time of the shooting. In view of these facts, we conclude that the jury would have convicted Davis of involuntary manslaughter even in the absence of any improper remarks.
. Accordingly, the fifth assignment of error is without merit and is overruled.
V.
. In the sixth assignment of error, Davis contends that his conviction on Count VIII is not supported by sufficient evidence. Due to our resolution of the second assignment of error, this assignment of error is moot and will not be considered.
VI.
. In the seventh and final assignment of error, Davis claims that the trial court erred and abused its discretion in sentencing him to maximum, consecutive sentences. Davis concedes that the trial court made the required statutory findings to support maximum consecutive sentences, but contends that the record does not support the court's findings. In this regard, Davis focuses on the fact that possessing weapons under disability is a fifth degree felony and a strict liability offense. According to Davis, when the underlying felony is a strict liability offense and is the least serious class of felony, it cannot, by definition, be the "worst form of the offense." Davis also points out that his only prior criminal conviction was at age 19, for assault on a police officer, and that his conviction for tampering with evidence was based on a spur of the moment decision. Concerning the latter point, Davis notes that since he voluntarily called the police to the scene before hiding the gun, his decision was obviously not an attempt to cover up evidence. And finally, Davis claims that he did not have an adequate chance to create a record in the trial court because the judge did not order a pre-sentence investigation and held the sentencing hearing just twelve hours after the conviction.
. In response, the State argues that appellate courts have no ability to review maximum sentences when the trial court complies with statutory requirements. The State also believes that consecutive sentences are warranted by the circumstances of the crime, Davis' prior record, and Davis' attempt to frustrate the police investigation.
. As an initial point, we note that Davis has waived any error, except plain error, about the lack of opportunity to create a record, since he failed to raise procedural deficiencies with the
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