Opinion
No. 26113-1-III.
February 7, 2008.
Appeal from a judgment of the Superior Court for Yakima County, No. 07-8-00201-5, Susan L. Hahn, J., entered April 3, 2007.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Schultheis and Brown, JJ.
Constructive possession of a firearm requires something more than just proximity to the firearm. Here, the defendant was a passenger in a car in which the police found a firearm. The defendant had previously been convicted of a serious crime that disqualified him from possessing a firearm. The trial judge reasonably inferred that the defendant had both access to the firearm and knowledge of its presence. The judge then reasonably concluded that the defendant was in constructive possession of the firearm. We affirm the conviction here for first degree unlawful possession of a firearm.
FACTS
E.C.R. and his friend, I.R., borrowed a car from a friend. I.R. drove. He did not have a valid driver's license. And the car's license plates had expired. They gave two girls a ride. They dropped the girls off. Police later stopped the car. The police noticed a bottle of liquor in the car. Both E.C.R. and I.R. were minors.
The police arrested both minors for unlawful possession of alcohol. And they arrested I.R. for operating a car without a proper license. They then searched the car incident to the arrest and found a .22 caliber rifle and a BB gun in the backseat of the car. The State charged E.C.R. with minor in possession of alcohol and unlawful possession of a firearm.
E.C.R. stipulated to a prior conviction for residential burglary. He also had a previous conviction for unlawful possession of a firearm. The judge found E.C.R. guilty of first degree unlawful possession of a firearm following a bench trial. E.C.R. pleaded guilty to the minor in possession charge.
E.C.R. appeals the conviction for first degree unlawful possession of a firearm.
DISCUSSION
We review a court's findings of fact for substantial evidence. State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001). We draw all reasonable inferences from the evidence in favor of the State and interpret them most strongly against the defendant following a conviction. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Possession may be either actual or constructive. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). E.C.R. argues that he did not have constructive possession of the rifle. He cites to State v. Turner for the proposition that close proximity to a rifle, knowledge of its presence, and the fact that the person was the owner and driver of a car in which the rifle was found is required. State v. Turner, 103 Wn. App. 515, 521, 13 P.3d 234 (2000). E.C.R. argues that the only thing the State showed here was proximity to the firearm. The other necessary factors were not met. Whether the court's findings support the trial court's conclusion of constructive possession is a question of law and our review is, therefore, de novo. Ross, 106 Wn. App. at 880.
To be found guilty of first degree unlawful possession of a firearm, the State had to prove that: (1) E.C.R. had in his possession or control a firearm, and (2) he had been previously convicted of a serious offense. RCW 9.41.040(1)(a) (a serious offense includes a crime of violence); State v. Wright, 88 Wn. App. 683, 685, 946 P.2d 792 (1997). Constructive possession can be established by showing the defendant had dominion and control over the firearm. State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d 1214 (1997).
Here is the exchange between E.C.R. and the prosecutor:
Q. Which gun do you think was on top?
A. The BB gun.
Report of Proceedings at 49.
The trial judge drew a reasonable inference that E.C.R. knew the gun was in the car because he differentiated between the BB gun as the gun placed on top of "the rifle." E.C.R. also had no explanation of where the guns were when the passengers were in the backseat or how the guns got in the backseat a few minutes after the girls left the car. The trial court found that they were within his reach from his position in the passenger seat. See Echeverria, 85 Wn. App. at 783. That is sufficient to support the judge's conclusion that he had constructive possession. See Id.
The finding that E.C.R. was previously convicted of first degree unlawful possession of a firearm is not supported by this record (as E.C.R. argues). But the trial court also found that E.C.R. had been convicted of residential burglary.
And a person is guilty of unlawful possession of a firearm in the first degree if (1) the person has in his or her possession or control a firearm (2) after having previously been convicted of any serious offense. RCW 9.41.040(1)(a); Wright, 88 Wn. App. at 685. A serious offense includes a crime of violence. RCW 9.41.010(12)(a); Wright, 88 Wn. App. at 685. Residential burglary is a crime of violence and therefore a "serious offense." RCW 9.41.010(11)(a).
The findings then support the trial court's conclusion that E.C.R. had constructive possession of the firearm and that he had been previously convicted of a serious offense. Wright, 88 Wn. App. at 685; RCW 9.41.040(1)(a); RCW 9.41.010(11)(a); RCW 9.41.010(12)(a). These are the elements for first degree unlawful possession of a firearm. RCW 9.41.040(1)(a); Wright, 88 Wn. App. at 685.
We affirm the conviction for first degree unlawful possession of a firearm.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, J., BROWN, J., concur.