Summary
explaining that “any firearm” in the possession statute indicated an intention that each “separate instance of unlawful possession ... constitute a violation”
Summary of this case from Baker v. CommonwealthOpinion
No. 52370-8-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-08446-6. Judgment or order under review. Date filed: 04/24/2003. Judge signing: Hon. Carol A. Schapira.
Counsel for Appellant(s), Nielsen Broman Koch, Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA, 98122.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate, Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Craig Anthony Sims, King County Prosecutors Office, 516 3rd Ave Fl 5, Seattle, WA, 98104-2385.
Earl Johnson was charged and convicted of first degree robbery and unlawful possession of a firearm stemming from a robbery that occurred on October 23, 2002. He was also charged and convicted of a second count of unlawful possession of a firearm based on the firearm found in his possession when he was arrested on October 26, 2002. Johnson claims his two convictions for unlawful possession of a firearm violate prohibitions against double jeopardy because the legislature intended only one charge to result from the possession of a firearm, even if the firearm was possessed on two separate occasions. Pro se, he contends that because being armed with a deadly weapon is an element of first degree robbery, imposition of a firearm enhancement for his first degree robbery conviction was improper. We conclude the legislature intended that each separate and distinct possession of a firearm is a `unit of prosecution.' Therefore, the two separate charges resulting from Johnson's possession of a gun at the time of the robbery and a few days later when he was arrested do not violate the prohibition against double jeopardy. The legislature also intended to impose the firearm enhancement on individuals convicted of a crime while armed with a deadly weapon, even where possession of a deadly weapon is an element of the crime. We affirm Johnson's convictions and sentence.
FACTS
On October 23, 2002, Kelvin Dyer got off a bus on his way home from work and went into a nearby convenience store. While Dyer was talking to the clerk, Johnson entered the store. Johnson asked the clerk if he could buy a single cigarette. After Johnson purchased the cigarette and left, Dyer bought some beer and cigarettes. When Dyer left the store, he noticed Johnson standing at the bus stop. Dyer asked Johnson if he needed a bus transfer, and Johnson said `[n]o, I'm cool.'
Report of Proceedings (RP) at 131.
Dyer started walking home. A few minutes later he heard footsteps approaching quickly from behind. Dyer turned around and saw Johnson. Johnson pointed a black gun at him and demanded his beer and wallet. Dyer put the beer and wallet on the ground. Johnson took them, said `thank you for your service,' and walked away. Dyer called the police. The police searched the area but did not find anyone matching Johnson's description.
RP at 136.
A couple of days later, Dyer was driving with a friend and saw Johnson pushing a bicycle along the road, wearing a backpack. Dyer's friend called the police on his cell phone. Police officers responded to the call. When they tried to arrest Johnson, he fled and threw his backpack into some bushes. After a brief struggle Johnson was arrested. The police then retrieved his backpack. Inside the backpack, the police found a black revolver.
The State charged Johnson with first degree robbery and unlawful possession of a firearm for the October 23 robbery. The State also charged him with unlawful possession of a firearm based on the gun found in his backpack when he was arrested.
The jury was instructed that in order to convict Johnson for each of the two separate counts of unlawful possession of a firearm, the State had to prove beyond a reasonable doubt that Johnson had a prior conviction for a `serious offense' and possessed a firearm on October 23 and on October 26. The State did not have to prove and the jury did not have to decide whether he possessed the same firearm on both occasions.
Clerk's Papers (CP) 32-33.
At trial, Johnson testified he was at home with his two-year old son and 17 year-old stepson on the evening of the robbery. Johnson said he fled when the police tried to arrest him because the police were armed, approached him in an aggressive manner, and he feared for his life. Johnson stipulated that he had a prior conviction for a `serious offense.'
A jury convicted Johnson on all three counts and the court sentenced Johnson to 130 months for the robbery count and 100 months for each count of unlawful possession of a firearm, to be served concurrently. He appeals.
DOUBLE JEOPARDY
Johnson argues that his two convictions for unlawful possession of a firearm violate the state and federal constitutional prohibitions against double jeopardy. Although the two counts stem from separate incidents three days apart, he contends the legislature intended only one charge to result from the unlawful possession of a single firearm.
Both the Fifth Amendment and article I, section 9 of the Washington Constitution protect against multiple punishments for the same offense. State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998). When a defendant is convicted of multiple violations of the same statute, the court uses a "unit of prosecution" analysis to determine what the legislature intended to be a punishable act under the criminal statute. Adel, 136 Wn.2d at 634. We examine the relevant statute to ascertain what the legislature intended. Adel, 136 Wn.2d at 634; State v. Turner, 102 Wn. App. 202, 209, 6 P.3d 1226 (2000). Once the unit of prosecution is decided, the court analyzes the facts to determine whether, under the facts of the case, more that one unit of prosecution is present. State v. Bobic, 140 Wn.2d 250, 266, 996 P.2d 610 (2000). Multiple convictions are appropriate only where multiple units of prosecution were committed. Id.
If the legislature did not identify the `unit of prosecution,' then we construe the ambiguity in favor of lenity. In the Matter of the Personal Restraint Petition of Davis, 142 Wn.2d 165, 172, 12 P.3d 603 (2000).
Johnson was convicted of violating RCW 9.41.040. RCW 9.41.040 identifies possession of any firearm after conviction of a serious offense as the unit of prosecution.
A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted in this state or elsewhere of any serious offense as defined in this chapter.
RCW 9.41.040(1)(a) (emphasis added).
In 1995, the legislature amended RCW 9.41.040 to provide:
Each firearm unlawfully possessed under this section shall be a separate offense.
See State v. Russell, 84 Wn. App. 1, 3-4, 925 P.2d 633 (1996) (under the former version of the unlawful possession statute, defendants could only be convicted of a single count no matter how many firearms possessed, but under the current version, subsection (7) was added so that the possession of each gun can result in a corresponding number of convictions.)
Johnson contends that because the legislature amended RCW 9.41.040 to clarify that each firearm possessed may result in a separate charge, the legislature also intended only one charge to result from the possession of a firearm on separate occasions. We disagree and conclude that the legislature's clarification that each firearm unlawfully possessed shall result in a separate offense does not suggest that separate instances of possession are not separate offenses under this statute. On the contrary, if any inference is drawn from the legislature's use of the phrase `any firearm,' and its amendment of the statute that `each firearm unlawfully possessed shall be a separate offense,' it is that the legislature intends each separate instance of unlawful possession of a firearm to constitute a violation of the statute. `Any' means `every' and `all.' State v. Westling, 145 Wn.2d 607, 40 P.32d 669 (2002).
Under the plain language of RCW 9.41.040(1) each time a person unlawfully possesses any firearm, the statute is violated. The State had the burden to prove Johnson had been convicted of a serious offense and he possessed a firearm. The State was not required to prove that Johnson possessed the same gun or a different gun to convict him of unlawful possession of a firearm when he robbed Dyer and a few days later when he was arrested.
Johnson asserts that under this interpretation of the statute, the State could theoretically charge a defendant with an infinite number of counts based on the possession of the same firearm. This is not the case before us, nor would the State be able to prove separate and distinct violations of the statute in such a case.
This case is different from Adel, where the possession of a controlled substance was a course of conduct and resulted in multiple charges for violating a statute. There was no course of conduct involved here.
In addition, the evidence does not establish that Johnson possessed the same gun at the time of the robbery and when he was arrested. Dyer testified that the gun used in the robbery was a `black revolver' and it looked like a `nine millimeter or something'. When the prosecutor showed Dyer the gun found in Johnson's possession and asked if it was the same gun used in the robbery, Dyer said `all I know, it was a black gun. I knew it was a revolver. I know he had a gun. I know that.' He also said the gun looked like the same gun used in the robbery and he had `been around' guns when he was in the military. But Dyer could not definitively identify the gun found in Johnson's possession as the same gun used in the robbery. In sum, under the language of the statute, each time a firearm is unlawfully possessed, RCW 9.41.040(1) is violated. Johnson's two convictions do not violate Constitutional prohibitions against double jeopardy.
RP at 135.
RP at 145.
RP at 158.
Pro se, Johnson argues that, when applied to his first degree robbery conviction, the weapon enhancement results in double punishment and double jeopardy because an element of robbery in the first degree is use of a deadly weapon. Our court has repeatedly rejected this argument. State v. Caldwell, 47 Wn. App. 317, 320, 734 P.2d 542 (1987); State v. Pentland, 43 Wn. App. 808, 811, 719 P.2d 605 (1986). The legislature clearly expressed its intent that if a person commits certain crimes while armed with a deadly weapon, he or she will receive an enhanced sentence, despite the fact that being armed with a deadly weapon is an element of the crime of robbery in the first degree. Caldwell, 47 Wn. App. at 320. Double jeopardy only prevents greater punishment for a single offense than the Legislature intended, not enhanced sentences. Pentland, 43 Wn. App. at 811. Enhancement of Johnson's first degree robbery conviction does not violate double jeopardy.
We affirm.
SCHINDLER, GROSSE and COX, JJ., concur.