Opinion
F071248
03-30-2017
THE PEOPLE , Plaintiff and Respondent, v. BILLY EUGENE CHILDERS, JR., Defendant and Appellant.
Jin H. Kim, under appointment by the Court of Appeal, Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Madera Super. Ct. No. MCR048833A)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge. Jin H. Kim, under appointment by the Court of Appeal, Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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Based on incidents on April 27, 2014, and May 9, 2014, Billy Eugene Childers, Jr., was convicted of robbery, being a felon in possession of a firearm, and being a felon in possession of ammunition. In this appeal, he argues that the evidence was insufficient to prove the charges of being a felon in possession of a firearm and being a felon in possession of ammunition. We agree with Childers about the ammunition possession charge but not the firearm possession charge.
FACTS AND PROCEDURAL HISTORY
Childers was charged by information on May 28, 2014, with the following counts: (1) robbery (Pen. Code, § 211) on April 27, 2014; (2) discharging a firearm at an unoccupied motor vehicle (§ 247, subd. (b)) on April 27, 2014; (3) possessing an assault weapon (§ 30605, subd. (a)) on May 9, 2014; (4) being a felon in possession of a firearm (§ 29800, subd. (a)(1)), specifically a handgun, on May 9, 2014; and (5) being a felon in possession of ammunition (§ 30305, subd. (a)(1)) on May 9, 2014. For count 1, the information alleged that Childers personally used a handgun (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)). For all counts, for purposes of sentence enhancement under section 667.5, subdivision (b), the information alleged that Childers had served prison terms for four prior offenses.
Subsequent statutory references are to the Penal Code unless otherwise noted.
At trial, Daniel Moore testified about the events of April 27, 2014. About 1:30 in the afternoon that day, Moore was walking out of his garage with a cell phone in his hand. Moore's wife had bought the phone from Jesse Searcy, who in turn had received it from Steve Smith. As Moore stood outside his garage, he recognized the car of Tiffany Nava as it drove up. Nava's and Moore's families were on intimate terms with each other. Nava and Childers got out. Childers was wearing black latex gloves and holding a semiautomatic handgun. Childers approached quickly and demanded the cell phone, saying it belonged to him. Moore gave it to him. Moore was shocked and Nava tried to calm him down as Childers went back to the car. Then Childers returned, held the gun up to Moore's head, and took a Bluetooth earpiece from Moore's ear. Childers and Nava got back in the car and left.
Ten minutes later, Moore drove his pickup truck to Steve Smith's house. He wanted to talk to Smith about what happened with the phone. Inside Smith's house, Moore and Smith had just agreed to disagree about the situation when Moore heard three gunshots outside. This did not seem unusual, since Smith was a gunsmith and gunfire was often heard on his property. But when he went outside, Moore saw Childers and Nava standing by Nava's car. Childers was holding a rifle. After a few seconds, he and Nava got back in the car and left. Then Moore observed that his truck had been shot. The back window had shattered and fallen out and there were bullet holes in the hood, windshield, and dashboard. Moore drove home and his wife called the police.
The prosecutor questioned Moore about his own prior offenses and current charges. He had prior convictions of burglary, petty theft and forgery, and was being held in jail on current charges of cultivating marijuana, possessing a methamphetamine pipe, endangering a child, and violating probation.
Nava testified as a prosecution witness, but she failed to support Moore's version of events. She said she went to Moore's house with Childers and Childers told Moore the cell phone was his. Moore handed the phone to Childers without incident. Nava and Moore talked about how Moore could get the money he had paid for it back from Smith. Then Nava and Childers left. Childers did not use a gun. He did have black latex gloves on, but that was because he had just been working in his garage. Nava and Childers next went from Moore's house to Smith's, but nothing unusual happened there. Like Moore, Nava was in custody at the time of trial. She had been charged with failing to appear in the present case after being subpoenaed. She also had several prior convictions: grand theft, petty theft, check fraud, and three counts of felony vandalism.
Deputy Nicholas Davis testified that he went to Moore's house in response to a call around 3:00 p.m. on April 27, 2014. Moore's truck was there and it had bullet holes in the hood, windshield, dashboard, steering wheel, and headrest. The rear window glass was missing and there were glass fragments in the bed of the truck. Davis looked for but did not find any bullets or bullet fragments in the truck. The jury saw pictures of the damage.
Deputy Davis proceeded to Smith's house. He saw broken glass in the driveway. On the ground five or six feet away from the front door were two spent .223-caliber shell casings. Davis believed the damage he saw on Moore's truck was consistent with impacts from .223-caliber bullets. Davis said he never recovered a handgun or a .223-caliber rifle in connection with the case.
Jenny Teeter testified that she was Steve Smith's girlfriend and was living in his house on April 27, 2014. She knew Moore was in the house that day and she heard him arguing with Smith, but she did not know what they were talking about. She heard two gunshots that day, but that was not unusual.
Teeter also testified about a cell phone of Smith's that disappeared. The phone was not working properly and Smith gave it to an acquaintance of Teeter's who knew how to repair cell phones. The acquaintance promised to fix the phone and bring it back, but he never brought it back.
Smith refused to testify despite a grant of immunity. He was jailed for contempt.
Jesse Searcy testified for the defense. He said he was a close friend of Moore's. He once was asked to repair a cell phone for Smith, who was planning to sell it after Searcy got it working. Searcy took the phone and learned that Moore wanted to buy it. He fixed the phone and gave it to Moore, believing Moore and Smith would work out the sale. Searcy took no money for the repairs because he wanted to help his friend Moore.
Searcy spoke to Moore two or three hours after Childers took the phone from Moore. Moore told Searcy that Childers "did not shoot his car and he thought it was a little funny." There were bullet holes in Moore's truck, but Moore said Childers was not the one who did it. Searcy had a prior conviction of petty theft.
On rebuttal, Moore agreed that Searcy was his close friend, but denied telling him Childers did not shoot his truck. He did not talk to Searcy at all for a week after the incident.
Deputy Richard Gonzales testified that he was part of a group of officers sent to arrest Childers at a mobile home on May 9, 2014. The mobile home was parked in an orchard. Outside the mobile home, the officers encountered Rick Seaver, a codefendant in this case who entered into a plea agreement before trial. Believing Childers to be armed, the officers surrounded the mobile home, announced themselves, and ordered Childers to come out. Gonzales heard footsteps inside and saw a window blind move. After two or three minutes, Childers emerged from the mobile home and surrendered.
Deputy Gonzales searched the mobile home. No one else was inside. Near the window with the blind that had moved were a table and a futon couch, with a black jacket lying on top of both. On the futon couch, in plain view, was a box of 20 rounds of 7.62 by 39-millimeter ammunition. Gonzales moved the jacket and underneath, between the table and the futon couch, below the window, was an SKS rifle. Inside the rifle were three rounds of 7.62 by 39-millimeter ammunition. Asked whether the rifle was automatic, semiautomatic, or something else, Gonzales said he thought it was semiautomatic but did not know because he had not fired it. Another officer, however, testified that it was semiautomatic and stated an expert opinion that it was an assault rifle. Gonzales submitted a request to have the rifle and ammunition examined for fingerprints, but he did not know whether or not this was done.
Near the box of ammunition and the rifle, Deputy Gonzales found two cell phones. On one of them, Gonzales saw that the screen saver was a picture of Childers. Other items found in the mobile home included some men's clothing. Gonzales did not know whom the clothing belonged to and said it could have been either Childers's or Seaver's. No paperwork bearing any names was found in the trailer.
Seaver was searched. He had one round of 7.62 by 39-millimeter ammunition in his pocket.
The parties stipulated that Childers had a prior felony. This was an assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)), of which Childers was convicted in 2010.
The jury found Childers guilty of robbery, being a felon in possession of a firearm, and being a felon in possession of ammunition (counts 1, 4, and 5). It found him not guilty of discharging a firearm at an unoccupied motor vehicle and possessing an assault weapon (counts 2 and 3). It found not true the allegation that he personally used a firearm in committing the robbery.
The court sentenced Childers to the upper term of five years for robbery. For being a felon in possession of a firearm it imposed a consecutive sentence of eight months, equal to one-third of the middle term. It imposed a concurrent upper term of three years for being a felon in possession of ammunition. For the four prior prison term enhancements, it imposed consecutive sentences of one year each. The total sentence thus was nine years eight months.
DISCUSSION
I. Standard of review
When considering a challenge to the sufficiency of the evidence to support a judgment, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible and of solid value. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.) II. Sufficiency of evidence of count 5 , being a felon in possession of ammunition
Childers maintains that the evidence was insufficient to prove he possessed ammunition. The People argue the evidence was sufficient to show he possessed the ammunition in the box on the futon couch and the ammunition inside the SKS rifle.
As we will explain, we agree with Childers that the evidence did not prove he possessed the ammunition in the box or in the SKS rifle. The People do not claim the evidence showed that there was ammunition in the handgun or that Childers possessed the .223-caliber ammunition used in the shooting of the truck.
Possession of contraband can be proved by evidence that a defendant actually had the contraband on his person, but evidence of constructive possession also is sufficient. Constructive possession can be established by evidence that the defendant exercised control or had a right to exercise control over the contraband even though it was not in his actual possession. (People v. Rogers (1971) 5 Cal.3d 129, 134.) The evidence is sufficient when it shows the contraband was "in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or the joint dominion and control of the accused and another." (People v. Williams (1971) 5 Cal.3d 211, 215 (Williams).) This does not mean, however, that a defendant can be convicted based on evidence that he was merely present where the contraband was located or had an opportunity to access its location. (People v. Redrick (1961) 55 Cal.2d 282, 285; People v. Glass (1975) 44 Cal.App.3d 772, 777.) "Dominion and control are essentials of possession, and they cannot be inferred from mere presence or access. Something more must be shown to support inferring of these elements. Of course, the necessary additional circumstances may, in some contexts, be rather slight. [Citations.] It is clear, however, that some additional fact is essential." (People v. Zyduck (1969) 270 Cal.App.2d 334, 336.)
In this case, it was undisputed that the box of ammunition was in the mobile home in plain sight, the rifle was in the mobile home out of sight, and Childers was by himself in the mobile home with them. The jury also could infer, from the movement of the window blind and the location of the cell phone bearing Childers's picture, that Childers was at some time near the window by which the box and the rifle were found. But this evidence shows only presence and access. It is not enough to show either a right to exercise dominion and control, or the actual exercise of dominion and control, over either the ammunition in the box or the ammunition in the rifle. There was evidence that someone lived in the mobile home, but none that Childers did. Only Seaver had ammunition on his person. If the evidence in this case were enough to show Childers possessed the ammunition, then anyone would be deemed to possess ammunition if he or she entered any home in which ammunition was in plain sight and went and stood near it. That is not the state of the law.
The People contend that the evidence that Childers was standing near the ammunition and the rifle long enough to leave a cell phone there and move the blind is "enough, by itself[,] for the jury to infer that [he] exercised control of the portion of the trailer in which the firearm and ammunition were found." We disagree. The evidence of Childers's position in that location shows presence and access, but not dominion and control. There is no rule that a person has a right to control everything near him in anyone's residence. And there is no evidence Childers touched or moved the ammunition or otherwise exercised actual control over it.
The People say the jury "could infer that between the time period [Childers] was seen at the window and the time he came out, he exercised some kind of control over the firearm and ammunition, as, for instance, by placing a jacket over the loaded firearm and the ammunition it contained, in an attempt to conceal it." But that would not be an inference, instead it would be speculation, for there was no evidence of who placed the jacket over the rifle. Any conclusion about any other movement or manipulation of the contraband would be equally speculative.
The People cite Williams, supra, 5 Cal.3d 211, in which our Supreme Court considered the sufficiency of the evidence presented in support of a drug possession charge. Williams was alone in the passenger seat of a parked car. The driver and owner of the car had just stepped away. A police officer saw Williams make a "'motion to the center of the seat'" and approached and asked for Williams's identification. When Williams stepped out of the car, the officer saw a single tablet of what proved to be benzedrine on the floor near where Williams's feet had been. The officer searched the car and found a large quantity of benzedrine tablets under the seat. Williams was convicted of possessing a restricted dangerous drug. (Id. at pp. 213-214.) The high court held that the evidence supported an inference that Williams "had dominion and control over, and knowledge of the presence of, the single tablet found in plain sight on the floor in front of the seat where he was sitting." (Id. at p. 215.) The court went on to reverse the conviction, however, on the ground that there was no evidence Williams knew of the contraband character of the pill. (Ibid.)
Williams indeed presents a challenge to our analysis. It seems to be a case in which dominion and control were inferred just from the defendant's close proximity to contraband in plain sight in a place—a car—that did not belong to him and was not shown by anything in particular to be subject to his right to control it. No other circumstances (such as the "motion" the officer observed) seem to have been a factor in the court's analysis.
The People have not, however, cited any case in which a conviction was upheld based only on a defendant's presence in close proximity to contraband in plain sight in a home in which, so far as the evidence showed, the defendant was a mere guest. We have not found any such case and we think a ruling to that effect would be error. Whatever the rule may be about dominion and control over the floorboard of a car on which one's feet are resting, we do not think merely entering another's home confers any right to exercise dominion there. III. Sufficiency of evidence of count 4 , being a felon in possession of a firearm
Childers contends that, for the same reasons the evidence was insufficient to show he possessed ammunition in the mobile home on May 9, 2014, it also was insufficient to show he possessed the SKS rifle on that day. He also says the jury could not properly have found he possessed the handgun on April 27, 2014, because the prosecutor's closing argument on the firearm possession charge referred only to the SKS rifle. He maintains this amounted to an election, binding on the jury, of that theory of the offense to the exclusion of any other.
We agree that the considerations applicable to the ammunition also show there was insufficient evidence to prove possession of the SKS rifle. The evidence was sufficient to show Childers possessed the handgun on April 27, 2014, however, and we reject the argument that the prosecutor's closing argument precluded the jury from considering that evidence as support for count 4.
Count 4 of the information alleged:
"For a further and separate cause of action, being a different offense of the same class of crimes and offenses as the charge set forth above, the said defendants BILLY EUGENE CHILDERS, JR. AND RICK GAVEN SEAVER did, on or about May 9, 2014, in the County of Madera, State of California, commit a FELONY, namely, violation of section 29800(a)(1) of the Penal Code of the State of California, in that the said defendant(s) did unlawfully own, possess and have custody and control of a firearm, to wit, handgun, the said defendants having theretofore been duly and legally convicted of a felony or felonies ...."
This language referred specifically to a handgun and to an offense date of May 9, 2014, but the evidence at the preliminary hearing gave Childers notice that the People intended to show he possessed an SKS rifle on May 9, 2014, and a handgun on an earlier date, specifically the time of the alleged robbery.
After the evidence was presented at trial, the trial court instructed the jury there was evidence of two guns and two dates relevant to count 4, and that if it found Childers guilty on that count it must decide unanimously on which incident it was relying:
"The People allege that the defendant possessed the following firearms: Semi-automatic rifle and an SKS—excuse me, semi-automatic pistol and an SKS rifle. You may not find the defendant guilty unless you all agree the defendant possessed at least one of these firearms and you all agree on which firearm he possessed."
This instruction was part of CALCRIM No. 2510, which the prosecution requested.
The prosecutor's closing argument on count 4 referred specifically to the evidence of possession of the SKS rifle on May 9, 2014. The prosecutor said count 4 was supported by the same evidence that established count 3, possession of an assault weapon: namely, the evidence of the SKS rifle in the mobile home. The prosecutor reiterated this point in her rebuttal argument.
Childers's argument that the prosecutor's closing argument referred only to the SKS rifle in connection with count 4 is a bit of an exaggeration. The prosecutor first said count 4 was based on the same gun as count 3, the SKS rifle. Then she said the jury should find Childers knew he was in possession of the rifle because he knew about firearms: "He had a firearm when he took the [B]luetooth from Daniel Moore and he had a firearm when he shot out the car windows in the truck at Steve Smith's house. So, again, the defendant knew he possessed the firearm ...."
The verdict form signed by the jury for count 4, like the information, referred specifically to the handgun. It stated that the jury found Childers guilty "of unlawfully possessing and/or having custody and control of a firearm, to wit, handgun, having theretofore been duly and legally convicted of a felony ...." So far as the appellate record discloses, there was no alternative verdict form for the SKS rifle.
The evidence amply supported the finding that Childers possessed the handgun on April 27, 2014. Moore, the victim, testified that Childers held the handgun while demanding the cell phone and pointed the handgun at Moore's head while taking the Bluetooth earpiece. Childers does not argue that there was any error in the jury instructions allowing a verdict based on either weapon and either date and requiring unanimity for conviction.
Childers is mistaken in his argument that the prosecutor's remarks constituted an election of a single theory binding on the jury. It is axiomatic that the court's instructions on the law control over the arguments of counsel, just as the evidence and not counsel's descriptions of the facts must determine the jury's factual findings. Juries are routinely so instructed. (See CALCRIM No. 200 ["You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions."]; CALCRIM No. 222 ["Nothing that the attorneys say is evidence."].) The jury received such instructions in this case. A consequence of these principles is that the jury is not required to apply the law to the facts in the ways urged by counsel. "[T]he theories suggested [by counsel's closing argument] are not the exclusive theories that may be considered by the jury." (People v. Perez (1992) 2 Cal.4th 1117, 1126 (Perez).)
In this case, it is not even true that the prosecutor made an argument that could reasonably be understood as conflicting with or attempting to limit the trial court's instructions. The trial court told the jury it could find Childers guilty of count 4 by finding he possessed either the SKS rifle or the handgun, as long as it made a unanimous decision about which gun he possessed. The prosecutor made an argument that Childers possessed the SKS rifle and said little, in the context of count 4, about the handgun. This argument did not purport to exclude a guilty verdict based on the handgun, and it is scarcely likely that the prosecutor intended her words to be taken that way, especially in light of the fact that the jury instruction referring to both guns was part of a pattern instruction the prosecution requested. But even if the prosecutor had contradicted the trial court's instruction allowing a verdict of guilty based on the handgun, the jury would have acted correctly in heeding the trial court's instructions instead.
Childers maintains that his position is supported by People v. Brown (2015) 240 Cal.App.4th 469, review granted November 24, 2015, S230134 (Brown), but he misunderstands the holding of that case. In Brown, the defendant was one of four men who repeatedly raped a victim. Among other offenses, the defendant was convicted of forcible rape and rape in concert, both of which required proof that force or fear were used. The evidence indicated that there were two locations in which the victim might have been raped. In the first location the victim was conscious, but in the second she was not. The Court of Appeal ruled that because of the victim's unconsciousness, the evidence was insufficient to prove the use of force or fear in the second location. At trial, however, the prosecutor contended in closing argument that it was the evidence of events at the second location that showed the defendant was guilty of forcible rape and rape in concert. The trial court did not give a unanimity instruction. (Id. at pp. 748-752.) The Court of Appeal held that, under these circumstances, the convictions could not be upheld based on the evidence of events in either location, even though the evidence of the events in the first location would have been sufficient had the unanimity instruction been given. (Id. at pp. 752-753.) The court explained its reasoning as follows:
Review of this case was granted after Childers filed his opening brief. Because review also was granted before July 1, 2016, former rule 8.1105 of the California Rules of Court applies and the Court of Appeal opinion can no longer be cited. We discuss the case in spite of this to show that its reasoning would not support Childers's position even if it were still citable authority. --------
"Ordinarily, for purposes of substantial evidence review, 'the prosecutor's argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury.' [Perez, supra, 2 Cal.4th at p. 1126.]
"We believe there has to be an exception, however, when the constitutional right to a unanimous jury is implicated. To protect this right, 'if one criminal act is charged, but the evidence tends to show the commission of more than one such act, "either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must
instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act."'" (Brown, supra, 240 Cal.App.4th at p. 752, original italics.)
As the above summary indicates, Brown stands (or stood, before review was granted) only for the proposition that when a trial court omits a unanimity instruction that would be required absent an election of a single theory by the prosecutor, the prosecutor's election of a theory in closing argument is binding on the jury and consequently on the reviewing court. In other words, the omission of the unanimity instruction is not error in that situation, but a guilty verdict can be upheld only if the evidence is sufficient to support the prosecutor's theory.
This holding has nothing to do with the situation presented in the present case, in which a proper unanimity instruction was given and the prosecutor's argument allegedly contradicted the court's instruction that the jury could choose between two theories. The exception the Brown court applied has no application here, and the general rule stated in Perez and acknowledged by Brown applies instead. Brown does not stand for the proposition that counsel's argument describing one theory and omitting another supersedes the trial court's express instruction that the jury can unanimously choose either theory.
Childers attempts to distinguish Perez, but this attempt is unpersuasive. Childers says the competing theories at issue in Perez involved an attempt to prove the defendant murdered the victim with deliberation and premeditation. The prosecutor argued that certain evidence proved this by showing a motive and other evidence proved it by indicating planning. Childers points out that this case, by contrast, involves a choice between two distinct crimes on two different days: possessing the SKS rifle and possessing the handgun. We do not see what difference this distinction makes. The point for which we are relying on Perez is that "the theories suggested [by counsel's closing argument] are not the exclusive theories that may be considered by the jury." (Perez, supra, 2 Cal.4th at p. 1126.) Brown acknowledges the general validity of this principle and holds that there is an exception under certain circumstances, but those circumstances do not exist in this case. The applicability of the Brown exception depends on whether a unanimity instruction was given, not on a distinction between different senses in which the case might be said to involve competing theories.
Childers does not argue that the allegation in the information regarding the date—that he possessed a handgun on May 9, 2014—constitutes a material variance in light of the fact that the only evidence about a handgun was related to the incident on April 27, 2014. We see no grounds for arguing this, since the preliminary hearing transcript gave Childers notice that the prosecution intended to present evidence that he possessed a handgun on April 27, 2014, and a rifle on May 9, 2014. (See, e.g., People v. Jones (1964) 228 Cal.App.2d 74, 88-89 [variance between indictment and proof at trial not material because grand jury transcript gave notice of acts prosecution planned to prove].) In addition, we see no grounds upon which Childers could claim he was prejudiced by a variance. (Id. at p. 89 [prejudice from variance must be proved by appellant].)
Childers also does not argue that the verdict is reversibly inconsistent if the firearm possession verdict is based on the handgun. The jury found the personal gun use allegation on the robbery count was not true, and the robbery evidence was the only evidence involving a handgun. Even if the not-true finding on the gun enhancement on count 1 were logically inconsistent with a guilty verdict on count 4 based on the handgun, the guilty verdict should stand if supported by sufficient evidence. (See People v. Davis (1988) 202 Cal.App.3d 1009, 1016 [otherwise proper conviction of one crime or count not reversible just because jury returned inconsistent acquittal of another crime or count; summarizing authorities].) The explanation could simply be that the not-true finding was a "determination more favorable to the defendant than the evidence warranted"; we cannot assume on appeal that the conflicting guilty verdict was the mistaken finding. (Id. at p. 1017.) Further, these two parts of the verdict are not, strictly speaking, inconsistent. The jury was instructed that someone personally uses a firearm by displaying it in a menacing manner, hitting someone with it, or firing it. Possessing a firearm requires none of those elements.
DISPOSITION
The conviction on count 5, being a felon in possession of ammunition, is reversed. Childers cannot be retried on this charge. The case is remanded to the trial court for resentencing. The judgment is otherwise affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
KANE, Acting P.J. /s/_________
FRANSON, J.