Opinion
No. 52375-9-I.
Filed: February 17, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-01681-9. Judgment or order under review. Date filed: 05/16/2003. Judge signing: Hon. L Gene Middaugh.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Nancy P Collins, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Sergio Reyes-brooks, 9323 Delridge Way SW, Seattle, WA 98106.
Counsel for Respondent(s), Carla Barbieri Carlstrom, King Co Pros Office, W 554, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Sergio Reyes-Brooks appeals from the judgment and sentence entered following his conviction for one count of first degree burglary and two counts of second degree assault, all with firearms enhancements, and one count of unlawful display of a weapon. Among other things, he contends that the evidence was insufficient to prove that he used a firearm during the crimes and that the deputy prosecutor committed reversible misconduct during closing argument. We reject Reyes-Brooks's evidentiary challenge, but accept the State's concession that prosecutorial misconduct during closing argument violated Reyes-Brooks' right to a fair trial. Accordingly we reverse Reyes-Brooks' convictions and remand for further proceedings. Reyes-Brooks first contends that the evidence was insufficient to prove that he used a firearm during the crimes. But in order to meet its burden of proof, the State need not introduce the actual firearm at trial. State v. Bowman, 36 Wn. App. 798, 803, 678 P.2d 1273 (1984). Circumstantial evidence may be used to prove the use of an operable firearm. State v. Mathe, 35 Wn. App. 572, 582, 668 P.2d 599 (1983). In this case, two witnesses described Reyes-Brooks's gun in considerable detail, with one witness identifying it as `either a 9-millimeter or like a .45.' This testimony, coupled with evidence of the manner in which Reyes-Brooks used the gun, was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that Reyes-Brooks used a real and operable gun in the commission of the crimes.
The State concedes that the deputy prosecutor violated Reyes-Brooks' right to a fair trial when she repeatedly misstated the State's burden of proof during closing argument.
We accept the State's concession. Accordingly, Reyes-Brooks' conviction is reversed and the matter remanded for further proceedings.
Reversed and remanded.
SCHINDLER and APPELWICK, JJ., concur.