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Name: People v. Kovacich
Case #: C061778
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 12/01/2011

There was sufficient evidence of the personal use of a firearm in the commission of the murder based on circumstantial evidence, including forensic expert opinion about the genesis of a hole in a portion of the cranium. The partial skull was found in a lake many years after the victim, the defendant’s wife, disappeared. The hole was consistent with a gunshot wound from a large caliber handgun. The other circumstances of marital discord, her fear for her safety, her disappearance, and defendant’s possession of a similar caliber service weapon were sufficient to support the finding of personal firearm use.

Introduction of the victim’s out-of-court statements regarding her fear of her husband was not an abuse of discretion. Such hearsay comes within the “state of mind” exception when the victim’s state of mind is relevant to an element of the offense or when the defendant claims that the victim acted in a manner that is inconsistent with that fear. Also, statements that do not directly declare a mental state, but provide circumstantial evidence of the mental state, are not hearsay but are admissible subject to a limiting instruction. Five such statements were analyzed and found to be admissible in this context.

Several forms of evidence relating to a dog-kicking incident were admissible in the murder trial. The deceased victim’s statements about the incident were not introduced for the truth of the matter but as circumstantial evidence of her state of mind — fear for her safety — because she observed the defendant kick the family dog to death. The defendant’s admission that he “went overboard” in kicking the dog for punishment was admissible pursuant to Evidence Code section 1101 to prove motive and under Evidence Code section 1109 to prove propensity because abuse of the family dog amounted to domestic violence. The testimony of the veterinarian who witnessed the dog’s death and the doctor who examined the exhumed bones of the dog did not prejudice the defense because they found no signs of blunt force trauma.