Opinion
No. 23585-8-III.
Filed: April 13, 2006.
Appeal from Superior Court of Franklin County. Docket No: 04-1-50270-4. Judgment or order under review. Date filed: 11/09/2004. Judge signing: Hon. Craig J. Matheson.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.
Counsel for Respondent(s), David Wayne Corkrum, Attorney at Law, 1016 N 4th Ave, Pasco, WA 99301-3706.
UNPUBLISHED OPINION
Javier Chavez, Jr. was convicted of second degree unlawful possession of a firearm. On appeal, Mr. Chavez asserts that the trial court erred by omitting an essential element from its `to convict' instruction to the jury and challenges the sufficiency of the evidence to establish either constructive possession of the firearm or knowledge. We find that the trial court's omission of the knowledge element in this case was not harmless error and that there was insufficient evidence of either knowledge or constructive possession. Accordingly, we reverse Mr. Chavez's conviction for second degree unlawful possession of a firearm.
FACTS
Javier Chavez, Jr. lived in one of the rental units at 310 West Shoshone in Pasco. The rental property at that address had at least three separate units, two of which included a basement apartment and the bungalow where Mr. Chavez resided in exchange for maintenance work around the property. The basement apartment was being rented to another individual.
Pursuant to an auto theft investigation, law enforcement officers were dispatched to the property. At the time, Mr. Chavez was located in the basement apartment. He was lying on top of a mattress on the floor in a bedroom with an unidentified woman.
Mr. Chavez was arrested and the officers subsequently searched the room where Mr. Chavez was found. Law enforcement officers lifted the mattress where Mr. Chavez had been lying and revealed a rifle underneath.
Mr. Chavez was initially charged with assault in violation of a no-contact order and second degree unlawful possession of a firearm. However, the only offense that was ultimately submitted to a jury was the charge of unlawful possession of a firearm.
The trial court provided the following statement of the elements of second degree unlawful possession of a firearm in its `to convict' instruction to the jury:
To convict the defendant of the crime of unlawful possession of a firearm in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 20th day of August, 2004, the defendant had a firearm in his possession or control;
(2) That the defendant had previously been convicted of a felony; and
(3) That the possession or control of the firearm occurred in the State of Washington.
Clerk's Papers at 25.
The trial court gave an additional separate instruction that defined knowledge. Neither the State nor Mr. Chavez made any objection to the jury instructions. The jury found Mr. Chavez guilty of second degree unlawful possession of a firearm.
ANALYSIS `To convict' instruction
This court reviews alleged errors of law in jury instructions de novo. State v. Willis, 153 Wn.2d 366, 370, 103 P.3d 1213 (2005). The `to convict' instruction carries special weight because the jury relies on it to determine a defendant's guilt or innocence. State v. Davis, 154 Wn.2d 291, 305-06, 111 P.3d 844, cert granted, 126 S. Ct. 547, 163 L. Ed 2d 458 (2005).
`A defendant does not receive a fair trial where the jury must guess at the meaning of an essential element of a crime or if the jury might assume that an essential element need not be proved.' State v. Filbeck, 89 Wn. App. 113, 115, 952 P.2d 189 (1997) (quoting State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997)). Because of the importance of the `to convict' instruction, an omission of an element from such an instruction is of sufficient constitutional magnitude to be raised for the first time on appeal. Davis, 154 Wn.2d at 306.
An instruction that purports to be a complete statement of the crime must in fact contain every element of the charged crime in every case. State v. Mills, 154 Wn.2d 1, 8, 109 P.3d 415 (2005). As such, this court generally may not rely on other instructions to supply the element missing from a `to convict' instruction. State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003).
The prosecution must prove every element of the crime charged beyond a reasonable doubt. State v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002). Jury instructions are proper when they permit the parties to argue their theories of the case, do not mislead the jury, and properly inform the jury of the applicable law. Willis, 153 Wn.2d at 370. An instruction that relieves the State of its burden to prove every element of the crime does not properly instruct the jury and requires automatic reversal. Brown, 147 Wn.2d at 339. However, not every omission of an element from a jury instruction relieves the State of its burden. Id.
The standard of review that this court engages in with regard to an omitted element from a `to convict' instruction is governed by the Washington Supreme Court decision in Brown. The decision in Brown, 147 Wn.2d at 340, adopted the harmless error analysis that had previously been applied by the United States Supreme Court in Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).
This analysis begins with the presumption that the instructional error was prejudicial, which can be rebutted by an affirmative showing that the omission was harmless. Brown, 147 Wn.2d at 340. The test for determining whether a constitutional error is harmless is `[w]hether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' Id. at 341 (quoting Neder, 527 U.S. at 15). The burden is on the State to show that the error was harmless. In re Pers. Restraint of Smith, 117 Wn. App. 846, 859, 73 P.3d 386 (2003). In the context of an element that has been omitted from a jury instruction, the error is harmless if that element is supported by uncontroverted evidence. Brown, 147 Wn.2d at 341.
A person commits second degree unlawful possession of a firearm if he (1) owns or has in his possession or control any firearm, and (2) has previously been convicted of any felony, other than a `serious offense' or certain specified gross misdemeanors. See RCW 9.41.040; State v. Anderson, 141 Wn.2d 357, 360, 5 P.3d 1247 (2000). Knowledge is an essential element of the crime of second degree unlawful possession of a firearm. Anderson, 141 Wn.2d at 366. The State therefore has the burden of proving knowing possession and the `to convict' instruction must then contain an instruction to that effect. See State v. Shouse, 119 Wn. App. 793, 796, 83 P.3d 453 (2004).
In this case, both Mr. Chavez and the State agree that the trial court's `to convict' instruction omits any mention of knowledge as an element of the offense of second degree unlawful possession of a firearm. However, the State argues that this omission was harmless error because the trial court provided a separate jury instruction defining `knowledge' and because defense counsel argued that the State was required to prove knowledge in its closing argument. On this basis, the State argues that the jury could infer that knowledge was an essential element of the crime.
We note that, while defense counsel informed the jury that the State was required to prove knowledge as an essential element of the charge of second degree unlawful possession of a firearm, the State's closing argument asserted that it merely had to prove Mr. Chavez's prior criminal record, that the alleged possession occurred in Washington, and that Mr. Chavez was in possession of the weapon. The State further asserted that this was, `all the State has to prove in this case.' Report of Proceedings (Nov. 3, 2004) at 45.
The State's argument is contrary to established precedent with regard to a `to convict' instruction. Precedent makes clear that `[t]he jury has a right to regard the `to convict' instruction as a complete statement of the law and should not be required to search other instructions in order to add the elements necessary for conviction.' Mills, 154 Wn.2d at 8 (quoting State v. Oster, 147 Wn.2d 141, 147, 52 P.3d 26 (2002)). This is equally true with regard to the closing statements of defense counsel. Simply put, if an essential element is not contained in the `to convict' instruction provided by the trial court, the State may not rely on other statements of law to cure the defect.
The State also relies on State v. Jones, 106 Wn. App. 40, 21 P.3d 1172 (2001), to support its position that the omission in this case was harmless error. Here, the State appears to argue that there was nothing to suggest that defense counsel would have argued the case differently had the jury instructions included the word `knowing.' The State argues that because defense counsel in this case made knowledge a central issue, unlike the defense counsel in Jones, the failure to include this element in the instruction did not contribute to the verdict and was therefore harmless. This reliance is misplaced for several reasons.
First, the court in Jones limited its holding `[u]nder the circumstances of this case.' Jones, 106 Wn. App. at 44. Those circumstances included a trial that occurred prior to knowledge being declared an element to the offense of second degree unlawful possession of a firearm and the absence of any controlling State precedent as to whether harmless error analysis would apply to the omission of an essential element from a `to convict' instruction. Since the decision in Jones, Washington has clearly adopted the harmless error test set forth in Neder. None of the circumstances that contributed to the court's decision in Jones are present here. Therefore, the Jones decision is of very limited relevance, if any, to the determination of whether the omission in this case was harmless error.
Moreover, the State appears to be confusing the proper analysis for whether the error was harmless. Nothing in the case law indicates that whether defense counsel would have done anything other than what they did at trial is relevant in any way. The legal test for whether the error was harmless is whether the omission of the element in and of itself may have contributed in some way to the verdict. Brown, 147 Wn.2d at 341.
The trial court omitted an essential element of the charge of second degree unlawful possession of a firearm from its `to convict' instruction in this case. This might have been harmless error if the issue of the defendant's knowledge were uncontroverted. However, as the State concedes, Mr. Chavez focused much of his defense on disputing that he had any knowledge of the weapon beneath the mattress or that there was any evidence to support the inference of such knowledge.
As such, the omission was not harmless error. The evidence of knowledge was not uncontroverted and the State has not proven that the omission did not contribute to the jury's verdict beyond a reasonable doubt.
Sufficiency of the evidence
Where a criminal defendant challenges the sufficiency of the evidence, we review the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence and all of the inferences that can reasonably be drawn therefrom. Id. Circumstantial and direct evidence are of equal weight upon review by an appellate court. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). In this case, Mr. Chavez challenges the sufficiency of the State's evidence with regard to the elements of knowledge and constructive possession. As mentioned previously, knowledge is an essential element of the crime of second degree unlawful possession of a firearm. Anderson, 141 Wn.2d at 366. Knowledge may be inferred when the defendant's conduct indicates knowledge as a matter of logical probability. State v. Warfield, 119 Wn. App. 871, 884, 80 P.3d 625 (2003).
Possession of property may be actual or constructive. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). Actual possession means that the goods are in the personal custody of the individual charged with possession. Id. Constructive possession occurs when the goods are not in the actual possession of the individual, but the person charged with the possession has dominion and control over the goods. Id. In this case, Mr. Chavez was not in actual possession of the weapon. Therefore, the State had to prove both that Mr. Chavez was in constructive possession of the firearm, and that he had knowledge of that possession.
The ability to reduce an object to actual possession is an aspect of dominion and control. State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d 1214 (1997). Exclusive control is not necessary to establish constructive possession. See, e.g., State v. Amezola, 49 Wn. App. 78, 86, 741 P.2d 1024 (1987). However, mere proximity without more is insufficient to show the dominion and control necessary to establish constructive possession. Id. This court looks to the totality of the circumstances in order to determine whether a defendant had dominion and control over the unlawful item and was therefore in constructive possession of it. Id. When a defendant has dominion and control of the premises, a rebuttable presumption arises that the defendant also has dominion and control over items within the premises. See State v. Summers, 107 Wn. App. 373, 389, 28 P.3d 780 (2001). One indicator of dominion and control of the premises is evidence that the defendant resides at the premises and is not merely visiting there. Amezola, 49 Wn. App. at 87. However, the mere presence of a defendant's personal possessions on a premises and prior handling of the unlawful item is insufficient to establish dominion and control when there is no evidence that a defendant paid rent or maintained the premises as a residence. Callahan, 77 Wn.2d at 31.
Among the evidence presented at trial to support constructive possession was testimony that Mr. Chavez was found in the room where the rifle was located, law enforcement found an additional weapon (although not a firearm) at the scene, and the rifle was located immediately underneath the mattress that Mr. Chavez was lying on. The fact that the mattress was on the floor and on top of the rifle may also support the inference that Mr. Chavez had knowledge that the rifle was directly underneath him.
Under the totality of the circumstances, and even when all of the evidence is viewed in the light most favorable to the State, this evidence is insufficient for a rational trier of fact to find constructive possession or knowledge beyond a reasonable doubt. Mr. Chavez was not a tenant of the apartment in which he was found and actually rented a separate bungalow at that location. As such, he was merely a guest at the apartment where he was arrested and the rifle was found by law enforcement.
Additionally, the fact that Mr. Chavez was in the same room as, and was on a mattress that was lying on top of, the firearm in this case merely established his proximity to the rifle. As previously noted, mere proximity without more is insufficient to support a finding of constructive possession. Amezola, 49 Wn. App. at 86. There is nothing else in the record regarding Mr. Chavez's conduct that would indicate he had any knowledge whatsoever that the rifle was present underneath the mattress. In light of the dearth of evidence to support a reasonable inference of knowledge or constructive possession, there is not sufficient evidence to support the jury's verdict in this case. The protection against double jeopardy precludes the retrial of a defendant whose conviction is reversed due to insufficiency of the evidence. State v. Anderson, 96 Wn.2d 739, 742, 638 P.2d 1205 (1982). Therefore, because we determine that there is insufficient evidence to support the jury's verdict in this case, the proper remedy is to reverse Mr. Chavez's conviction with prejudice.
Mr. Chavez also contends that the trial court erred in the calculation of his offender score by not counting two prior offenses as being part of the `same criminal conduct,' as that term is defined in RCW 9.94A.589. In light of our decision to reverse Mr. Chavez's conviction with prejudice, we need not reach this issue because it is moot. See, e.g., In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 256, 5 P.3d 1240 (2000).
CONCLUSION
The `to convict' instructions in this case omitted the essential element of knowledge for the charge of second degree unlawful possession of a firearm. Additionally, there was insufficient evidence of either knowledge or of constructive possession in this case. Accordingly, we reverse with prejudice Mr. Chavez's conviction for second degree unlawful possession of a firearm.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for blic record pursuant to RCW 2.06.040.
SCHULTHEIS, J. and BROWN, J., Concur.