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arguing that the officer's opportunity to observe the one defendant in the interview room gave him "independent familiarity" to support the testimony
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Sheri Lynn Arnold, Attorney at Law, Tacoma, WA, Reed Manley Benjamin Speir, Attorney at Law, University Place, WA, Eric J. Nielsen, Dana M. Lind, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellants.
Karen Anne Watson, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.
PART PUBLISHED OPINION
ARMSTRONG, J.
[150 Wn.App. 112] ¶ 1 Lionel George appeals his convictions of first degree robbery, first degree unlawful possession of a firearm, intimidating a public servant, third degree assault, and attempting to elude a pursuing police vehicle. He maintains that the trial court erred (1) in denying his motion for mistrial, (2) in denying his motion to sever his trial from Brian Wahsise's, and (3) by failing to include a lesser offense instruction of reckless driving. We find no merit to these arguments.
¶ 2 Co-defendant Brian Wahsise appeals his convictions of first degree robbery and first degree unlawful possession of a firearm, asserting in part that the State failed to prove that he constructively possessed the firearm. Again, we find no merit to this issue.
¶ 3 Both George and Wahsise contend that the trial court erred in admitting a police officer's lay opinion testimony identifying them as the robbers in the surveillance video. We agree. But as to George, the error is harmless because the evidence of his participation in the robbery is overwhelming; as to Wahsise, we cannot find the error harmless; thus, we reverse and remand for a new trial for him.
FACTS
¶ 4 On March 8, 2006, Karen Phillips and Christine Huynh were working at the Days Inn in Fife, Washington. Between 4:00 p.m. and 5:00 p.m., from the back office, Phillips heard someone say, " [L]ay down. Shut up. Lay down." Report of Proceedings (RP) at 122-23. Shortly thereafter, Huynh, who had been at the front desk, came into the office and told Phillips that she had just been robbed.
¶ 5 A few minutes earlier, Huynh saw a " red Ford Bronco kind of ... thing" pull up to the hotel entrance and three Hispanic or Native American men enter the lobby. RP at 141, 161. A heavyset man wearing a leather jacket and beanie hat pointed a gun at Huynh, who was behind the front desk. The man told Huynh not to look at him and to put all the money into a bag. After the man grabbed the [150 Wn.App. 113] money-$476-he directed Huynh to get on the floor and not to look up. Meanwhile, the two other men stole a flat screen television from the hotel lobby. Huynh later identified the man with the gun as George.
¶ 6 After all three men left the building, Huynh saw the vehicle head toward the freeway and called 911. Officer Thomas Gow and Detective Jeff Rackley responded to the call in a marked patrol vehicle and an unmarked Ford Explorer. They located and attempted to stop a dark red van with an obscured license plate traveling westbound in the eastbound lane. Gow's vehicle had its lights and siren on, and Rackley's vehicle had its lights on. The van finally stopped in the middle of the block, and the officers ordered the occupants out of the van at gun point. Nobody exited, and the van started moving again. Eventually it came to a stop and, for the second time, the officers ordered the occupants out of the car. George got out of the driver's seat, looked at Rackley, and fled on foot. Wahsise and Robert Maass exited from the sliding passenger door and eventually obeyed the officers' command to get on the ground.
¶ 7 Including the driver, there were nine people in the van. A number of them were Native American. Rackley testified that many of the van occupants were too intoxicated to get out of the van or to walk around. The officers took all of the van occupants into custody.
¶ 8 The officers found a large, flat panel television; knitted gloves and caps; and a roll of dimes in the van. They also observed a gun sticking out of the pouch on the back of the passenger seat. Rackley testified that the driver, the front passenger, and anyone in the back passenger area could have easily reached into the passenger seat pouch to grab the gun. No fingerprints were recovered from the television, van, or gun, but the television serial numbers confirmed that it belonged to the Days Inn. The officers never recovered the stolen money.
¶ 9 Officer Worswick apprehended George shortly after George fled the van. Huynh arrived with Rackley at the location where Worswick arrested George. She identified [150 Wn.App. 114] George as the person who had pointed the gun at her and taken the money. And Rackley identified George as the person who got out of the van from the driver's door and fled.
PROCEDURE
¶ 10 The State charged George with first degree robbery, first degree unlawful possession of a firearm, intimidating a public servant, third degree assault, and attempting to elude a pursuing police vehicle, with firearm enhancements. The State charged Wahsise with first degree unlawful possession of a firearm and first degree robbery with a firearm enhancement. Because the State charged George and Wahsise as co-defendants in the robbery, the court joined their cases for trial.
A. Motions in Limine
¶ 11 Before trial, the court granted George's motion under the confrontation clause to exclude any reference to evidence by a nontestifying co-defendant. Wahsise joined in the motion. Codefendant Maass did not testify at trial.
¶ 12 George also moved to admit letters that he alleged Wahsise wrote, arguing that they were admissible as against a party opponent under ER 804(b)(3), against Wahsise's interest under ER 801(d)(2), or for impeachment under ER 607 if Wahsise testified. The letters exculpate George, but they are written in three different handwritings and contain inaccurate information. The court denied their admission under the party opponent hearsay exception but ruled that it would reconsider their admissibility if George produced additional evidence of their trustworthiness. The court denied George's request to put Wahsise on the stand outside the presence of the jury to determine whether the signatures on the statements were his because Wahsise had exercised his right to remain silent.
B. Motion for Mistrial
¶ 13 Despite the court's evidentiary rulings, Rackley testified during trial that Maass told him that Maass was [150 Wn.App. 115] George's son. The court sustained counsel's hearsay objection. Later, Rackley testified that George's son told him that Wahsise was in the Days Inn. George and Wahsise objected, and the court sustained the objection and instructed the jury to disregard Rackley's statement. George then moved for a mistrial, arguing that the statement " places them in the scene of the crime" and violates his confrontation right. RP at 301-302. The court denied the motion, finding that Rackley's statement did not implicate or prejudice George. The court denied George's renewed motion for mistrial after the State rested.
C. Identification Testimony
¶ 14 A poor quality surveillance tape recorded the Days Inn robbery. The jury viewed the surveillance video and 67 still frame images from the video. The trial court also admitted into evidence a video and three photographs from the van arrest scene and booking photographs of Wahsise (listing height at 5'8" and weight at 180), George (listing height at 5'11" and weight at 280), and Maass, (listing height at 6'1" and weight at 170).
¶ 15 At trial, Rackley discussed his encounters with George and Wahsise on the day of the crime. Rackley saw George at the van and at the hospital. He also identified Wahsise as one of the first two men who got out of the van's passenger sliding door. He watched Wahsise after ordering him to get on the ground and when he met with him in an interview room at the police station. Rackley compared the characteristics of George and Wahsise to the characteristics of the other van passengers and noted their heights and weights.
¶ 16 Rackley testified that he had viewed the surveillance video " hundreds of times" Before trial and identified George as the person standing at the Days Inn counter and Wahsise as one of the two men stealing the television. RP at 248. Although Rackley could not make out facial features in the surveillance video, he identified Wahsise, George, and Maass in the surveillance video " by their build, the way [150 Wn.App. 116] they carry themselves, the way they move, what they were wearing, and then talking to them later...." RP at 289. He recognized George " because of his physical stature." RP at 263. Rackley stated that George and Wahsise looked very similar at trial to the way they looked on the day of the crime.
¶ 17 George objected to Rackley's identification, asserting that the identity of the individuals in the video was the ultimate issue for the jury to decide; the court overruled the objection. The trial court heard argument outside the jury's presence and found that the jury could decide whether Rackley's testimony was credible, and what weight, if any, to give it.
D. Motion to Sever
¶ 18 At the close of evidence, George moved to sever his trial from Wahsise's trial under CrR 4.4(a) and (c), so that Wahsise could testify in George's defense without incriminating himself. George asserted that he was under the impression that Wahsise would testify in George's favor and, because Wahsise did not testify, George could not prepare an adequate defense. The trial court denied George's motion to sever, apparently because no reliable evidence linked the letters to Wahsise, and George provided no other evidence that Wahsise would exonerate George if he testified.
E. Jury Instructions and Verdict
¶ 19 The court denied George's request for an instruction on reckless driving as a lesser included offense of attempting to elude a police vehicle. The jury found Wahsise and George guilty on all counts.
The court dismissed George's third degree assault and weapon enhancement charge.
[150 Wn.App. 117] ANALYSIS
I. Detective Rackley's Identification Testimony
¶ 20 George and Wahsise contend that the trial court abused its discretion by allowing Detective Rackley to give lay opinion testimony about the identity of the men in the Days Inn surveillance video, arguing that Rackley was in no better position to identify the men than the jury. The State asserts that Rackley's testimony was helpful to the jury because he was more familiar with the defendants than the jury and was better able to evaluate the poor quality of the surveillance photos.
¶ 21 We review a court's ruling admitting evidence for abuse of discretion. State v. Magers, 164 Wash.2d 174, 181, 189 P.3d 126 (2008) (citing State v. Pirtle, 127 Wash.2d 628, 648, 904 P.2d 245 (1995)). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or reasons. Magers, 164 Wash.2d at 181, 189 P.3d 126 (quoting State v. Powell, 126 Wash.2d 244, 258, 893 P.2d 615 (1995)).
¶ 22 A witness must testify based on personal knowledge, and a lay witness may give opinion testimony if it is (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the testimony or the fact in issue. ER 602, 701; see State v. Hardy, 76 Wash.App. 188, 190, 884 P.2d 8 (1994), aff'd, State v. Clark, 129 Wash.2d 211, 916 P.2d 384 (1996). A witness may not offer opinion testimony by a direct statement or by inference regarding the defendant's guilt, but testimony is not objectionable simply because it embraces an ultimate issue the trier of fact must decide. See State v. Demery, 144 Wash.2d 753, 759, 30 P.3d 1278 (2001); ER 704.
Opinion on the guilt of the defendant may be reversible error because it violates the defendant's " constitutional right to a jury trial, which includes the independent determination of the facts by the jury." State v. Kirkman, 159 Wash.2d 918, 927, 155 P.3d 125 (2007).
[150 Wn.App. 118] ¶ 23 A lay witness may give opinion testimony as to the identity of a person in a surveillance photograph as long as " there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury." Hardy, 76 Wash.App. at 190-91, 884 P.2d 8 (citations omitted). Opinion testimony identifying individuals in a surveillance photo runs " the risk of invading the province of the jury and unfairly prejudicing [the defendant]." U.S. v. La Pierre, 998 F.2d 1460, 1465 (9th Cir.1993) (finding that officer's identification testimony was not helpful to the jury because the officer had never seen the defendant in person). But opinion testimony may be appropriate when the witness has had sufficient contacts with the person or when the person's appearance Before the jury differs from his or her appearance in the photograph. See La Pierre, 998 F.2d at 1465.
Federal Rule 701 and Washington's ER 701 are the same; thus, federal cases are instructive. Hardy, 76 Wash.App. at 190, 884 P.2d 8; ER 701; FRE 701.
¶ 24 In the two consolidated cases at issue in Hardy, officers testified to the identities of the defendants shown in videos of drug transactions. Hardy, 76 Wash.App. at 190-92, 884 P.2d 8. In one case, the officer testified he had known the defendant for several years. Hardy, 76 Wash.App. at 191, 884 P.2d 8. In the other case, the officer testified that he had known the defendant for six or seven years. Hardy, 76 Wash.App. at 192, 884 P.2d 8. The trial court found that the officers were more likely to correctly identify the defendants than were the juries. Hardy, 76 Wash.App. at 192, 884 P.2d 8. In affirming, Hardy relied on cases where the identification testimony came from roommates, see U.S. v. Saniti, 604 F.2d 603, 604-05 (9th Cir.1979); a probation officer, see U.S. v. Beck, 418 F.3d 1008, 1014-15 (9th Cir.2005); and a former girlfriend, see U.S. v. Towns, 913 F.2d 434, 445 (7th Cir.1990); but see U.S. v. Jackson, 688 F.2d 1121, 1125 (7th Cir.1982) (one social contact Before identification testimony sufficient to help the jury understand a fact at issue). Hardy, 76 Wash.App. at 190-91, 884 P.2d 8. We hold that the trial court [150 Wn.App. 119] abused its discretion in allowing Rackley to identify George and Wahsise in the video.
¶ 25 Here, Rackley observed George as he exited the van and ran away and at the hospital that evening. Rackley observed Wahsise when Wahsise exited the van and was handcuffed and while Wahsise was at the police station in an interview room. Rackley based his surveillance video identifications on each defendant's build, the way they carried themselves, the way they moved, what they were wearing, how they compared to each other, how they compared to the rest of the people in the van, and from speaking with them on the day of the crime. These contacts fall far short of the extensive contacts in Hardy and do not support a finding that the officer knew enough about George and Wahsise to express an opinion that they were the robbers shown on the very poor quality video. We hold that the trial court erred in allowing Rackley to express his opinion that George and Wahsise were the robbers shown on the video.
But some of the clothing and hats changed between the time of the robbery and the arrest. The men who committed the robbery wore: (1) a dark colored hat and two-toned jacket; (2) white hooded jacket with a dark shirt underneath; (3) light colored jacket and white baseball cap. It is difficult to tell whether George, Wahsise, and Maass wore the same clothes when they exited the van. The only thing that is clear is that Wahsise and Maass had on dark clothing, one of them wore a white hat, and none of the three suspects had on a white coat. Rackley testified that he found a white hat and other clothing in the back of the van.
We have reviewed the video and we agree with Rackley that it is impossible to discern any facial features of either defendant in the video.
¶ 26 But the error as to George is harmless. When evidence is improperly admitted, the trial court's error is harmless if it is minor in reference to the overall, overwhelming evidence as a whole. State v. Yates, 161 Wash.2d 714, 764, 168 P.3d 359 (2007), cert. denied, __ U.S. __, 128 S.Ct. 2964, 171 L.Ed.2d 893 (2008) (quoting State v. Bourgeois, 133 Wash.2d 389, 403, 945 P.2d 1120 (1997)). Huynh identified George as the gunman in the robbery. George was driving the red van with the stolen television set. He initially failed to stop for the police and then, after the first stop, drove off again. He also fled on [150 Wn.App. 120] foot after exiting the van. Finally, Huynh described the gunman as a heavyset man; according to the booking information, George was 5'11" and weighed 280 pounds. We are satisfied that Rackley's improper testimony did not affect the jury's verdict.
¶ 27 We are not so satisfied as to Wahsise. Huynh could not identify either of the men who took the television set. And no physical evidence linked Wahsise to the robbery. The State argues that Wahsise and Maass were the first to exit the passenger side of the van and the closest to the stolen television in the van, thus suggesting that Wahsise must have been one of the men who had removed the television. Moreover, according to the State, Wahsise fit the general physical description of one of the men who took the television; Huynh described these men as a tall slim man and a shorter man. Maass is 6'1" and weighs 170 pounds. Wahsise is 5'8" and weighs 180 pounds. Finally, the other van occupants can be eliminated, according to the State, because at least one was a woman and the other men were so intoxicated they had difficulty exiting the van and walking. We conclude that this evidence is not sufficient for us to find Rackley's testimony harmless error as to Wahsise; but it is sufficient to support a conviction for robbery without the erroneous testimony if a jury so finds on remand.
¶ 28 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
II. George's Motion for Mistrial
¶ 29 George next maintains that the trial court abused its discretion when it denied his motion for mistrial after Rackley testified that George's son, Maass, told Rackley that Wahsise had been at the Days Inn. George maintains that because Rackley's testimony places Wahsise and Maass inside the Days Inn, it also places him there since they were all found together after the robbery.
¶ 30 We review the trial court's denial of a mistrial for an abuse of discretion, i.e., no reasonable judge would have made the same decision. State v. Rodriguez, 146 Wash.2d 260, 269, 45 P.3d 541 (2002). We will overturn the trial court's ruling only if we find a substantial likelihood that the error affected the outcome of the trial. See State v. Hopson, 113 Wash.2d 273, 284, 778 P.2d 1014 (1989). The irregularity must be so prejudicial that only a new trial could insure the defendant a fair trial. See State v. Post, 118 Wash.2d 596, 620, 826 P.2d 172, 837 P.2d 599 (1992). We consider three factors in evaluating whether the irregularity influenced the jury: (1) the seriousness of the irregularity; (2) whether the statement in question is cumulative of other properly admitted evidence; and (3) whether the irregularity could be cured by the court's instruction to the jury that it disregard the remark. State v. Escalona, 49 Wash.App. 251, 254, 742 P.2d 190 (1987). The trial court is in the best position to determine the prejudice of a statement. State v. Lewis, 130 Wash.2d 700, 707, 927 P.2d 235 (1996). Here, we are satisfied that the irregularity was not serious, that the evidence was cumulative, and that the court's instruction cured any possible prejudice to George.
A. Seriousness of Irregularity
¶ 31 George contends that Rackley's statement was a serious irregularity because it violated a motion in limine order and his confrontation rights.
¶ 32 Courts have found a serious irregularity when a witness's statement would generally be excluded under an established evidence rule aimed at preventing inherently prejudicial evidence. See Escalona, 49 Wash.App. at 255, 742 P.2d 190 (unsolicited testimony regarding prior criminal conduct similar to the charged crime extremely serious because of express policy against its admission in the rules of evidence); State v. Babcock, 145 Wash.App. 157, 163-64, 185 P.3d 1213 (2008) (testimony that defendant had abused a child extremely serious because ER 404(b) precludes admission of prior bad acts). Rackley's statement did not violate an evidence rule aimed at preventing inherently prejudicial evidence. The statement placed a co-defendant at the scene of the crime and was not prejudicial character or propensity evidence that the jury would likely use for an improper purpose. Cf. Escalona, 49 Wash.App. at 256, 742 P.2d 190.
¶ 33 Moreover, George's confrontation clause argument is without merit. Under Crawford and the Sixth Amendment, testimonial hearsay statements of nontestifying witnesses are inadmissible because their admission prevents a defendant from confronting these witnesses. Crawford v. Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Wash. Const., art I § 22; U.S. Const. amend. VI. Significantly here, the evidence was never admitted. The court sustained counsel's objection and ordered the jury to disregard Rackley's statement. Thus, there is no Crawford violation.
Even if George's confrontation rights were violated, this violation is subject to a harmless error review. State v. Flores, 164 Wash.2d 1, 18, 186 P.3d 1038 (2008) (citing State v. Watt, 160 Wash.2d 626, 635, 160 P.3d 640 (2007)). And because other evidence placed George at the crime scene, and because the court properly cured the error, any confrontation right violation was harmless and the trial court properly denied George's motion for mistrial.
B. Cumulative Evidence
¶ 34 George admits that Rackley's testimony was cumulative. Unlike Escalona, the instant case is not a " close case" as to whether George was at the crime scene. Escalona, 49 Wash.App. at 256, 742 P.2d 190. Rather, even if the statement did place George at the crime scene, it was cumulative of other evidence. Huynh identified George as the man who robbed her and Rackley identified George as the driver of the getaway van. Rackley's testimony was cumulative of other evidence and unlikely to have impacted the trial's outcome.
It is questionable whether Rackley's statement implicated George at all because it put Wahsise, not George, at the crime scene.
C. Court's Instruction
¶ 35 We presume that jurors follow the court's instruction to disregard improper evidence. Yates, 161 Wash.2d at 763, 168 P.3d 359 (quoting State v. Grisby, 97 Wash.2d 493, 499, 647 P.2d 6 (1982)). Here, the trial court sustained counsel's objection and immediately instructed the jury to disregard Rackley's statement. We are satisfied that the court's instruction to the jury removed any possible prejudice to George and that the trial court did not abuse its discretion in denying George's motion for mistrial.
III. George's Motion to Sever
¶ 36 George argues that the trial court should have granted his motion to sever his trial from Wahsise's, asserting that Wahsise's exercise of his right not to testify denied George of his right to present a defense. He maintains that the letters allegedly written by Wahsise and Wahsise's testimony would show that Wahsise, not George, was the robber. Because George presented no evidence establishing that Wahsise wrote the letters or that Wahsise would testify in his favor in a separate trial, the trial court did not err in denying George's severance motion.
¶ 37 Under CrR 4.4, a defendant may bring a motion to sever his trial from a co-defendant's trial at the close of all the evidence " if the interests of justice require." CrR 4.4(a)(1). The court should grant severance of defendants whenever " during trial upon consent of the severed defendant, it is deemed necessary to achieve a fair determination of the guilt or innocence of a defendant." CrR 4.4(c)(2)(ii). Separate trials are disfavored in Washington, and we review a trial court's denial of a motion to sever jointly charged defendants for abuse of discretion. State v. Dent, 123 Wash.2d 467, 484, 869 P.2d 392 (1994) (citations omitted). A court abuses its discretion if its decision is " manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).
Although George maintains that Wahsise consented to a separate trial by not objecting to it, Wahsise did not join in the motion to sever or appeal the court's denial of the motion to sever.
¶ 38 The defendant requesting a separate trial has the burden of (1) presenting sufficient facts to warrant the exercise of discretion in his or her favor by proving that specific prejudice would result from a joint trial and (2) showing that such prejudice outweighs the concern for judicial economy. See State v. Hoffman, 116 Wash.2d 51, 74, 804 P.2d 577 (1991), aff'd, McGinnis v. Blodgett, 67 F.3d 307 (9th Cir.1995). A defendant may establish prejudice by showing (1) irreconcilable defenses; (2) complex evidence making it impossible for the jury to separate evidence relating to each defendant's guilt or innocence; (3) a co-defendant's inculpating statement; or (4) gross disparity in the weight of evidence. See State v. Canedo-Astorga, 79 Wash.App. 518, 528, 903 P.2d 500 (1995) (quoting U.S. v. Oglesby, 764 F.2d 1273, 1276 (7th Cir.1985)).
¶ 39 George maintains that he was prejudiced by a joint trial because he was unable to admit evidence of three letters in which Wahsise allegedly confesses to pointing the gun at Huynh and states that George was just the driver. But the trial court denied George's motion in limine to admit the letters because they were written in three different handwritings and the court found no reliable evidence that Wahsise wrote any of the letters. George did not assign error to the trial court's ruling that Wahsise's statements were unreliable and inadmissible hearsay requiring additional proof of trustworthiness, and he provides no authority for the proposition that he has the right to present exculpatory evidence that does not comply with the rules of evidence. George must comply with the rules of evidence, even when presenting exculpatory evidence. See State v. Thomas, 123 Wash.App. 771, 778, 98 P.3d 1258 (2004) (" Defendants have the right to present a defense, but do not have the right to introduce evidence that is irrelevant or otherwise inadmissible." ); State v. Madison, 53 Wash.App. 754, 768, 770 P.2d 662 (1989) (" There is nothing ... to suggest that defendants in general are exempted from the normal rules of evidence in presenting their case." ); Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (a defendant espousing his right to present evidence in his own defense must comply with established rules of evidence).
¶ 40 George further asserts that he assumed Wahsise would testify at trial, thereby giving George an opportunity to admit exculpatory testimony similar to the letters' contents. But George's contention that Wahsise would testify in his favor is speculative. And even if Wahsise were to testify in a separate trial, George did not make an offer of proof as to how Wahsise's testimony would exculpate him; his argument rests only on the contents of the inadmissible letters. Significantly, the record suggests that Wahsise would not provide testimony favoring George.
¶ 41 The trial court properly found that " there's no showing that justice requires ... a severance." Report of Proceedings at 449. We conclude that the trial court did not err in denying George's motion to sever.
IV. George's Proposed Jury Instruction
¶ 42 George argues that the trial court should have instructed the jury that reckless driving is a lesser offense to attempting to elude a police vehicle. When the defendant claims that the trial court misinterpreted the law in instructing the jury, we review the issue de novo. See State v. Walker, 136 Wash.2d 767, 772, 966 P.2d 883 (1998).
¶ 43 Under the Workman test, the trial court should instruct on a lesser offense when (1) each of the elements of the lesser offense is a necessary element of the offense charged, and (2) the evidence supports an inference that the defendant committed only the lesser included offense. See State v. Stevens, 158 Wash.2d 304, 310, 143 P.3d 817 (2006); State v. Prado, 144 Wash.App. 227, 241-42, 181 P.3d 901 (2008). An offense is not included in a crime when it is possible to commit the greater offense without committing the lesser offense. State v. Turner, 143 Wash.2d 715, 729, 23 P.3d 499 (2001) (quoting State v. Roybal, 82 Wash.2d 577, 583, 512 P.2d 718 (1973)). George cannot satisfy the first prong of the Workman test.
See State v. Workman, 90 Wash.2d 443, 447-48, 584 P.2d 382 (1978).
Because George cannot satisfy the first prong, we need not discuss the second prong. But, even if George could meet the first prong, he fails to meet the second prong. George maintains that pulling out of a lane of traffic supports an inference that he committed the crime of reckless driving. But George did more than just pull out of his lane. He also stopped the van in the middle of a block after a marked vehicle with lights and sirens had been following him. The officers ordered the occupants out of the van, but the occupants did not get out. George kept driving the van and eventually came to a stop. Under the second prong of the two-part test, the evidence must support an inference that the defendant committed only the proposed lesser included offense. Prado, 144 Wash.App. at 241-42, 181 P.3d 901 (citations omitted). The record here does not show that George committed only reckless driving.
¶ 44 A person is guilty of reckless driving when that person drives a vehicle in a willful or wanton disregard for the safety of persons or property. RCW 46.61.500. In comparison, a person is guilty of attempting to elude a police vehicle when (1) a uniformed police officer signals the person to stop by hand, voice, emergency light, or siren; (2) the police officer is in a vehicle equipped with lights and sirens; (3) the defendant willfully fails or refuses to immediately bring the vehicle to a stop after being signaled to stop; and (4) the defendant drives his or her vehicle in a reckless manner. See RCW 46.61.024(1).
George relies on State v. O'Connell, 137 Wash.App. 81, 96, 152 P.3d 349, review denied, 162 Wash.2d 1007, 175 P.3d 1094 (2007), for his proposition that reckless driving is a lesser included offense of attempting to elude. The O'Connell court held that the " reckless driving is a lesser included offense of eluding" after interpreting a former version of the eluding statute that included the " willful or wanton" language. O'Connell, 137 Wash.App. at 96, 152 P.3d 349; see Laws of 2003, ch. 101, § 1. But the O'Connell analysis is no longer applicable because the legislature has replaced the " willful or wanton" language with " driving in a reckless manner" language. See Laws of 2003, ch. 101 § 1.
¶ 45 The mental element for " reckless driving" requires a " willful or wanton disregard for the safety of persons or property" ; the mental element for " driving in a reckless manner" requires only " driving in a ‘ rash or heedless manner, indifferent to the consequences.’ " State v. Roggenkamp, 153 Wash.2d 614, 621-22, 628, 106 P.3d 196 (2005) (quoting State v. Bowman, 57 Wash.2d 266, 271, 356 P.2d 999 (1960)). Thus, the " wanton or willful" element is a different and higher mental state standard to meet than the " reckless manner" element. State v. Ridgley, 141 Wash.App. 771, 782, 174 P.3d 105 (2007). When two crimes require different mental states, the elements of the lesser offense are not necessary elements of the charged crime. State v. Thomas, 98 Wash.App. 422, 425, 989 P.2d 612 (1999). Accordingly, the State did not have to prove that George drove in a wanton or willful manner to prove the eluding charge. The trial court properly denied George's request for a lesser included reckless driving instruction.
V. Sufficiency of the Evidence against Wahsise
¶ 46 Wahsise contends that the evidence was insufficient to support his unlawful possession of a firearm conviction. He maintains that he was merely one of eight passengers in the van and that he did not know the gun was in the van. We disagree.
¶ 47 To establish that Wahsise unlawfully possessed a firearm, the prosecution had to submit sufficient evidence to show that he knowingly possessed the firearm. State v. Anderson, 141 Wash.2d 357, 359, 5 P.3d 1247 (2000). The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Brown, 162 Wash.2d 422, 428, 173 P.3d 245 (2007). In applying the test, we draw all reasonable inferences in favor of the State and against the defendant. Brown, 162 Wash.2d at 428, 173 P.3d 245 (quoting State v. Hosier, 157 Wash.2d 1, 8, 133 P.3d 936 (2006)). A claim of insufficiency admits the truth of the State's evidence. Brown, 162 Wash.2d at 428, 173 P.3d 245 (quoting State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992)).
¶ 48 The jury here could have reasonably concluded that Wahsise knew that the gun was in the pouch because: (1) he was a passenger in the getaway van shortly after the robbery; (2) the flat screen television taken from the Days Inn was found in the van; (3) the van is open with bench style seating; (4) he was one of the first two people to come out of the passenger-side door of the van, suggesting that he was a passenger toward the front of the back passenger area; and (5) the gun was visibly sticking out of the pouch on the back of the passenger seat.
¶ 49 These facts are sufficient to support the jury's finding that Wahsise knew the gun was in the pouch. But knowledge of the gun alone is insufficient to support a conviction; the State must also prove that Wahsise possessed the gun. See State v. Cote, 123 Wash.App. 546, 550, 96 P.3d 410 (2004) (close proximity to a firearm, without more, is insufficient to support an inference of constructive possession).
¶ 50 A rational trier of fact could have found that Wahsise constructively possessed the gun. Actual possession occurs when the item is in the personal custody of the person charged with possession; constructive possession occurs when the defendant has dominion and control over the contraband or over the premises where the firearm was found. State v. Callahan, 77 Wash.2d 27, 29, 459 P.2d 400 (1969). In determining whether the evidence shows constructive possession, we consider a variety of factors, including the defendant's ability to gain actual possession, his or her knowledge of the contraband, and evidence of defendant's residence or tenancy in the premises. See State v. Echeverria, 85 Wash.App. 777, 783-84, 934 P.2d 1214 (1997); State v. Jeffrey, 77 Wash.App. 222, 227, 889 P.2d 956 (1995). Here, the State did not prove that Wahsise owned or drove the van. Thus, it did not prove that he had dominion and control over the vehicle. See State v. Plank, 46 Wash.App. 728, 733, 731 P.2d 1170 (1987). Consequently, we must determine whether the State proved that Wahsise had sufficient dominion and control over the gun to establish constructive possession.
It is undisputed that Wahsise did not actually possess the gun.
¶ 51 " Dominion and control" means that the item " may be reduced to actual possession immediately." State v. Jones, 146 Wash.2d 328, 333, 45 P.3d 1062 (2002). A person can " be in constructive possession jointly with another person" ; exclusive control is not required. State v. Turner, 103 Wash.App. 515, 521, 13 P.3d 234 (2000) (citations omitted). The State proved that the driver, the front passenger, and anyone in the back passenger area could have easily reached into the passenger seat pouch to grab the gun. Because the gun was within Wahsise's reach, the evidence was sufficient for a jury to conclude that Wahsise had the ability to immediately obtain actual possession of the gun.
¶ 52 Wahsise relies on Callahan, where the court held that the defendant did not have control over the residence in which the contraband was located, even though he had been staying there for a few days and had personal possessions there. Callahan, 77 Wash.2d at 31, 459 P.2d 400. But Callahan is distinguishable. There, another person testified that he owned the drugs, that he brought them on the premises, and that he had exclusive control over them. Callahan, 77 Wash.2d at 31, 459 P.2d 400. Here, there is no evidence that another person in the van had exclusive control over the gun.
¶ 53 When viewed in the light most favorable to the State, a reasonable jury could find that Wahsise knew about the firearm and could have immediately exercised actual possession over it. Thus, the evidence supports Wahsise's conviction for unlawfully possessing a firearm.
¶ 54 Wahsise raises a number of other issues that we need not discuss because they are unlikely to arise on retrial.
¶ 55 We affirm George's convictions. We affirm Wahsise's conviction for firearm possession but reverse his conviction for robbery and remand for a new trial.
I concur: BRIDGEWATER, J.PENOYAR, A.C.J.
¶ 29 I concur in the majority's decision except I would not reverse Wahsise's robbery conviction because I disagree with the majority's conclusion that Officer Rackley did not have sufficient contact with Wahsise to be qualified to offer an opinion that [150 Wn.App. 121] Wahsise was one of the figures captured on the surveillance videotape. Though Rackley had less contact with Wahsise than the officers had with the respective defendants in the cases the majority cited, he nevertheless had the opportunity to observe Wahsise during the stop and in a police station interview room. Thus Rackley had independent familiarity with Wahsise's appearance and movement that the jury did not have. To my mind, this was sufficient to allow him to state his opinion. In my view, the trial court correctly ruled that the opinion was admissible and any questions as to weight were properly entrusted to the jury.