Opinion
No. 26528-5-III.
April 21, 2009.
Appeal from a judgment of the Superior Court for Kittitas County, No. 06-1-00361-5, Scott R. Sparks, J., entered October 8, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Kulik, A.C.J., concurred in by Sweeney and Korsmo, JJ.
UNPUBLISHED OPINION
Kimo A. Henriques appeals his convictions for possession of stolen firearms and unlawful possession of a firearm in the first degree. He argues that:
(1) the evidence was insufficient to support his convictions because the State failed to prove that he possessed firearms that met the statutory definition of "firearm" in RCW 9.41.010(1), and (2) the trial court erred by denying his motion for funds to obtain a haircut before trial. The State cross-appeals the arrest of judgment on two additional convictions. Finally, Mr. Henriques alleges that the trial court erred by (1) running the three possession of a stolen firearm sentences consecutively to one another, and
(2) denying his motion for a change of venue. We conclude there was sufficient evidence to support convictions on all five counts of possession of stolen firearms. We, therefore, affirm three convictions and reverse the court's arrest of judgment on two convictions. And we affirm the conviction for unlawful possession of a firearm in the first degree. We also conclude the trial court properly ordered that the sentences run consecutively and properly denied the motion for change of venue and a court-funded haircut.
FACTS
Kimo Henriques was charged with five counts of possession of a stolen firearm, one count of unlawful possession of a firearm in the second degree (dismissed by agreement of the parties), and one count of unlawful possession of a firearm in the first degree. Counts 1 through 3 pertained to firearms Mr. Henriques allegedly purchased with an invalid money order from Earl Short in Moses Lake. Counts 4 and 5 pertained to a Dan Wesson .357 and a Derringer stolen from Dick Mangis of Lincoln County during a burglary of his home.
In November 2006, Earl Short ran a newspaper advertisement offering nine guns for sale. Mr. Henriques met Mr. Short and they agreed on a sale price of $5,985 for the guns. Mr. Henriques paid with a counterfeit money order. Prior to the sale, Mr. Short made a list of the firearms he sold, including the make, caliber, and serial number. Mr. Short also wrote down Mr. Henriques's name and driver's license number.
At trial, Mr. Short identified a Beretta model 96 FS .40 caliber, a Ruger mini .30, and a Browning caliber .380 BDA as the guns involved in the transaction. He confirmed the identification by their model and serial numbers. Specifically, Mr. Short identified the Ruger as a sports rifle with a target scope on it. With regard to the Ruger, Mr. Short testified that the only items not present were the extra clips and ammunition that went with the guns. He also identified a clip from the Beretta and the original box for the Browning, with the serial number on it, and an owner's manual. Finally, Mr. Short discussed a Para Ordinance .45 caliber double action pistol which was not recovered. The box and one clip were found. Mr. Short also testified that he provided ammunition in the various calibers for the guns he sold.
Dick Mangis testified that in late October or early November 2006, his house in Creston, Lincoln County, had been broken into and that guns and other items were stolen. He identified a black powder muzzle loader gun as one of the firearms stolen from his home. He confirmed his ownership of the gun by its serial number. When Mr. Mangis was asked if the gun was loaded, he indicated that it did not have a primer cap, but stated that there could be powder in the gun. Mr. Mangis also identified a Dan Wesson .357 magnum with upgraded grips. In addition, Mr. Mangis testified that miscellaneous kinds of ammunition were taken in the burglary. Finally, Mr. Mangis acknowledged that the police had not been able to determine who was responsible for the burglary and had not made an arrest in the case.
On November 12, 2006, Trooper Timothy Kron investigated a single vehicle collision on State Route 97 in Kittitas County. At the scene, Trooper Kron observed two individuals standing next to a 2005 Dodge Neon and a third person, later identified as Mr. Henriques, lying injured on the ground. Mr. Henriques was covered with a blanket and complained of pain in his legs. The trooper determined that the bystanders were simply good Samaritans who had stopped at the collision scene.
One of the bystanders told the trooper there was a loaded weapon in the vehicle and that he had secured it. With that information, Trooper Kron took the Beretta .40 caliber pistol from the front seat of the Dodge Neon and secured it into his patrol vehicle.
When the trooper asked Mr. Henriques his name, he responded "Kaile Henriques" with a birth date of November 22, 1984. Report of Proceedings (RP) (Sept. 11, 2007) at 150. Mr. Henriques also told the trooper he did not have any identification or a wallet.
Trooper Kron then questioned Mr. Henriques about the firearm in the vehicle. Mr. Henriques told the trooper that he bought it the night before. The trooper asked Mr. Henriques why the weapon was loaded, but Mr. Henriques did not respond. Mr. Henriques told the trooper that there were no other weapons in the vehicle. But when the ambulance crew arrived and took the blanket off Mr. Henriques, the trooper saw a fully loaded .45 caliber Para Ordinance magazine lying on the ground next to Mr. Henriques.
During his inventory of the vehicle, Trooper Kron observed a rifle case protruding through the back seat from the trunk and found a rifle inside and two loaded magazines, or clips. The trooper ran a serial number check on the rifle, a Ruger mini .30. The Ruger came back stolen. The Washington State Patrol (WSP) advised the trooper that the firearm was involved in a fraud case and that a total of nine weapons were involved. WSP later told him that the vehicle at the scene was the subject vehicle and Kimo Henriques was one of the suspects in the fraud case.
While taking photographs, Trooper Brian Cleave found a checkbook buried in the sand underneath where Mr. Henriques had been lying. The checkbook contained a Washington State identification card for "Kimo Henriques." RP (Sept. 12, 2007) at 64. The trooper also found a bill of sale from Mr. Short to Mr. Henriques for the guns inside the checkbook that was buried under Mr. Henriques.
The vehicle also contained a duffel bag with four small gun cases sitting on the front passenger seat. One of the cases contained the guns stolen from Mr. Mangis in Lincoln County — the loaded Dan Wesson .357 revolver, and the Derringer muzzle loader flint lock handgun single shot. The serial numbers showed the guns were stolen.
The duffle bag also contained Mr. Short's Browning .380 handgun inside its case as well the case for the Beretta. There were also multiple boxes of ammunition for the .40 caliber Beretta, the Ruger, and the various guns that were found in the duffel bag. In addition, the bag contained the gun case and paperwork for the Para Ordinance.
Trooper Kron determined that Mr. Henriques was the only person in the vehicle and that the large duffel bag had remained on the front passenger seat during the accident because of the air bag. Mr. Henriques admitted to driving the vehicle and told the trooper the vehicle slid off the roadway because of icy road conditions.
The parties stipulated that prior to November 12, 2006, Mr. Henriques had been convicted of a felony legally classified as a serious offense and a felony other than a serious offense.
The jury found Mr. Henriques guilty of all seven counts as charged in the information. Mr. Henriques filed a motion to arrest judgment on counts 4 and 5 pursuant to CrR 7.4(a)(3). Specifically, defense counsel argued that "[w]hile there was testimony from the owner of the firearms that the defendant did not have permission to have the firearms, there was no testimony, nor was there any other evidence or proof presented that the defendant knew the firearms were stolen." Clerk's Papers (CP) at 113.
Sentencing. At the sentencing hearing, the parties agreed and the court dismissed count 6, unlawful possession of a firearm in the second degree. The trial court granted the motion to arrest judgment on counts 4 and 5 involving the Lincoln County firearms. The trial court then imposed a mid-range sentence of 84 months on each of three remaining convictions for possession of a stolen firearm, counts 1 through 3, and an additional 97 months on count 7. The court further ordered the sentences on all four counts to run consecutively, for a total sentence of 349 months.
Mr. Henriques appeals his convictions. The State appeals the decision of the trial court arresting judgment on counts 4 and 5 and dismissing those charges.
ANALYSIS
Sufficiency of the Evidence. Mr. Henriques first contends that the State failed to prove beyond a reasonable doubt that the weapons at issue were "firearms" under the statutory definition in RCW 9.41.010. He argues that there was no evidence at trial that the guns were tested and fired normally, or that they were operable or even capable of being fired. As a result, he claims that the State failed to prove an essential element of the crimes charged.
As Mr. Henriques correctly argues, RCW 9A.56.310, possession of a stolen firearm, and RCW 9.41.040(1)(a), first degree unlawful possession of a firearm, both require as an element that the accused possessed a firearm as defined in RCW 9.41.010.
A person "is guilty of possessing a stolen firearm if he or she possesses . . . a stolen firearm." RCW 9A.56.310(1). A person is guilty of first degree unlawful possession of a firearm "if the person . . . has in his or her possession . . . any firearm after having previously been convicted . . . of any serious offense." RCW 9.41.040(1)(a). The term "firearm" is defined, for the purposes of these offenses, as "a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder." RCW 9.41.010(1).
In State v. Padilla, the defendant challenged his conviction for unlawful possession of a firearm, claiming that the gun was not a "firearm" for purposes of RCW 9.41.040(1)(a) because it was disassembled while in his possession. State v. Padilla, 95 Wn. App. 531, 532, 978 P.2d 1113 (1999).
The court in Padilla found the statutory definition of "firearm" to be ambiguous because the language "may be fired" is susceptible to more than one reasonable interpretation and it failed to qualify at what point in time the gun must be capable of firing. Id. at 534. However, the court held that even unloaded, malfunctioning, and disassembled guns "that can be rendered operational with reasonable effort and within a reasonable time period" are "firearms" within the meaning of RCW 9.41.010(1). Id. at 535. The court found that the statutory language "`may be fired' indicates legislative intent that a gun rendered permanently inoperable is not a firearm under the statutory definition here at issue because it is not ever capable of being fired." Id.
Here, there was substantial evidence that each of the guns at issue met the statutory definition of a "firearm." The three guns in counts 1 through 3 were models from well-known firearm manufacturers — Beretta, Ruger, and Browning. The owner of the guns, Mr. Short, testified that these guns were part of his firearm collection and specifically referred to them as "firearms." RP (Sept. 11, 2007) at 92. Mr. Short also testified that he recorded Mr. Henriques's driver's license number as a precaution in case the guns were ever used in a crime.
Furthermore, the testimony was replete with discussions about the items that Mr. Short sold with the guns as part of the "complete package." RP (Sept. 11, 2007) at 115. Specifically, Mr. Short testified that he provided Mr. Henriques with ammunition in the exact same calibers as the guns he sold. Trooper Kron testified that a total of 345 rounds of ammunition were recovered from the duffel bag and the weapons that were loaded inside the bag. The ammunition and all five guns were admitted into evidence. The Ruger had a target scope and two loaded magazines. The Beretta had a magazine that was loaded when the gun was secured by a bystander at the scene of the accident. The Browning also had ammunition. The presence of the scope and the ammunition is circumstantial evidence of the firearms' functionality. The jury was entitled to make the reasonable inference that the guns were capable of being fired because they were sold with ammunition.
Finally, there was no issue raised at trial as to whether or not the guns constituted "firearms." In fact, in his closing argument, defense counsel referred to the Beretta as a firearm and later to all the guns as firearms. There was no evidence suggesting that the guns involved were toy or fake guns. Nor was there any evidence suggesting that the guns were broken or disassembled, or that they were otherwise permanently inoperable. To the contrary, the fact that each gun was either loaded or sold with ammunition suggests that these guns were not rendered permanently inoperable.
The jury had substantial evidence from which to conclude these guns were in fact firearms as defined in RCW 9.41.010(1).
Denial of Public Funds for Haircut. Second, Mr. Henriques contends that the trial court's denial of his motion for funds to obtain a haircut before trial violated his constitutional right to an impartial jury and the presumption of innocence under article I, §§ 3, 21, and 22 of the Washington Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution. Where a defendant's constitutional right to a fair and impartial jury is at question, we employ a de novo standard of review. State v. Elmore, 121 Wn. App. 747, 757-58, 90 P.3d 1110 (2004) (quoting Perez v. Marshall, 119 F.3d 1422, 1426 (9th Cir. 1997)), aff'd, 155 Wn.2d 758, 123 P.3d 72 (2005).
The fundamental right to a fair trial is guaranteed by the United States and Washington Constitutions. U.S. Const. amends. VI and XIV; Const. art. I, § 22. Importantly, the presumption of innocence is considered a "basic component" of a fair and impartial trial under our system of criminal justice. Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976).
It is well established that the presumption of innocence may be jeopardized where the criminal defendant is required to wear prison clothes, is handcuffed, or is otherwise shackled. State v. Finch, 137 Wn.2d 792, 844, 975 P.2d 967 (1999). These actions tend to prejudice the jury against the accused because they lead to an inference that the defendant is guilty or dangerous. Id. at 845. "Measures which single out a defendant as a particularly dangerous or guilty person threaten his or her constitutional right to a fair trial." Id. Courts recognize that the accused is "entitled to the physical indicia of innocence which includes the right of the defendant to be brought before the court with the appearance . . . of a free and innocent man." Id. at 844.
Mr. Henriques, relying on State v. Gonzalez, 129 Wn. App. 895, 120 P.3d 645 (2005), argues that an indigent criminal defendant has the same right to the unqualified presumption of innocence as one who can afford to post bail. He contends that the trial court interfered with the presumption of innocence, and, thereby, undermined the fairness of the fact-finding process by denying his motion for funds to obtain a haircut before trial. He further contends that the trial court's denial of his request cannot be harmless error. We disagree.
The State correctly points out that the issue of whether due process is violated when a trial court denies a defendant's motion for funds for a haircut is an issue of first impression in Washington. A search for other federal or state cases has revealed only a single case addressing the issue — Smith v. State, 4 Md. App. 146, 241 A.2d 728 (1968).
In Smith, the defendant challenged his conviction for robbery with a deadly weapon, arguing in part that he was "denied a fair trial when the State forced him to stand trial with shaggy, unkempt hair; notwithstanding that the State had kept defendant incarcerated for three months, and had refused his pre-trial requests for a hair cut." Id. at 148. The court distinguished cases involving prison clothing, shackles, or the possibility that the defendant was adopting a disheveled appearance to enhance a feigned mental disorder or as a potential disguise. Id. at 150.
The court in Smith applied an abuse of discretion standard, stating that matters concerning the personal appearance of the defendant are primarily within the discretion of the trial court and only a patent abuse of such discretion would warrant reversal. Id. The court observed "the trial court is in an advantageous position to judge the question of prejudice and its decision with reference thereto should not be reversed unless it is clear that there was prejudice." Id. The Smith court ultimately rejected the defendant's argument, stating:
This record is barren of any substantiating evidence of the alleged prejudicial consequence, apart from the bald allegation of the appellant. Upon this record, the absence of the requested haircut constitutes too nebulous an effect to conclude clear prejudice. The trial court did not view the condition of appellant's hair as prejudicial, nor do we.
Id. at 151.
Otherwise, the most closely analogous cases involve a defendant appearing in prison clothing, shackles, or other restraints. See Estelle, 425 U.S. at 503. However, the rationale behind the prohibition on prison clothes, which associates the defendant with being held in jail, does not extend to haircuts. As the State persuasively argues, jail is not associated with any particular hairstyle. Accordingly, Mr. Henriques's presumption of innocence was not affected by his haircut or lack of a haircut.
Moreover, in State v. Gilcrist, our Supreme Court held that the defendants' constitutional right to a fair trial was not violated by being required to wear State-provided clothing at trial rather than their own personal clothing. State v. Gilcrist, 91 Wn.2d 603, 610, 590 P.2d 809 (1979). By analogy, Mr. Henriques is not entitled to any particular hairstyle.
Finally, the record is devoid of any description or evidence of Mr. Henriques's hair, his appearance, or when he had last received a haircut. On the record before us, Mr. Henriques fails to show how his hair had a negative effect on the judgment of the jurors.
Cross-Appeal. The State cross-appeals, arguing that the trial court erred by granting Mr. Henriques's motion for arrest of judgment as to counts 4 and 5 involving the Lincoln County firearms. The jury found Mr. Henriques guilty of possessing a Dan Wesson (count 4) and a Derringer (count 5) firearm which had been stolen from Mr. Mangis in Lincoln County. After trial, the defense moved to arrest judgment on these two counts, alleging that the evidence was insufficient to prove a material element of those crimes. Specifically, the defense claimed that the evidence was insufficient to show that Mr. Henriques knew the Lincoln County firearms were stolen.
CrR 7.4(a)(3) authorizes the trial court to arrest judgment for insufficiency of the proof of a material element of the crime. When reviewing an order arresting judgment pursuant to CrR 7.4(a)(3), an appellate court's function is to determine "whether the evidence is legally sufficient to support the jury's finding." State v. Pleasant, 38 Wn. App. 78, 80, 684 P.2d 761 (1984).
Evidence presented in a criminal trial is sufficient to support a guilty verdict if any rational trier of fact, viewing the evidence in a light most favorable to the State, could find the essential elements of the crime beyond a reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420-21, 5 P.3d 1256 (2000). When analyzing a sufficiency of the evidence claim, the court will draw all inferences from the evidence in favor of the State and interpret them most strongly against the defendant. 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 inferences that reasonably can be drawn therefrom." Id.
In his motion for arrest of judgment, defense counsel argued that "[w]hile there was testimony from the owner of the firearms that the defendant did not have permission to have the firearms, there was no testimony, nor was there any other evidence or other proof presented that the defendant knew the firearms were stolen." CP at 113. We disagree.
Mr. Henriques is correct that, without any knowledge that the guns were stolen, merely possessing the Lincoln County firearms is insufficient to support a conviction. State v. Mace, 97 Wn.2d 840, 843, 650 P.2d 217 (1982); see RCW 9A.56.140(1) (possessing stolen property means "knowingly to receive, retain, [or] possess . . . stolen property knowing that it has been stolen"); RCW 9A.56.310(1) ("A person is guilty of possessing a stolen firearm if he or she possesses, carries, . . . or is in control of a stolen firearm."). We do not, however, require a defendant's actual knowledge that the property was stolen. Rather, constructive knowledge is sufficient and the jury may infer knowledge from corroborative facts. State v. Jennings, 35 Wn. App. 216, 219, 666 P.2d 381 (1983).
A person knows of a fact by being aware of it or having information that would lead a reasonable person in the same situation to conclude the fact exists. RCW 9A.08.010(1)(b). Circumstantial evidence and direct evidence are equally reliable to establish knowledge. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Possession of recently stolen property, coupled with even slight corroborative evidence of inculpatory circumstances, is sufficient to prove guilty knowledge. State v. Couet, 71 Wn.2d 773, 775, 430 P.2d 974 (1967). Examples of slight corroborative evidence include false or improbable explanations and providing the police with a fictitious name. State v. Portee, 25 Wn.2d 246, 253-54, 170 P.2d 326 (1946).
Here, sufficient evidence supported the jury's conclusion that Mr. Henriques possessed the Lincoln County firearms with the knowledge that they were stolen. First, the Lincoln County firearms were found in a duffel bag containing other stolen firearms. The duffel bag contained four gun cases, one of which contained the two Lincoln County firearms. Also in the same duffle bag was Mr. Short's Browning .380 handgun and the case for the Beretta that had been retrieved from the front seat. An empty case for the stolen Para Ordinance was also inside. Lastly, there were multiple boxes of ammunition for the Beretta, the Ruger, and the various guns that were found in the duffel bag.
Significantly, all of the firearms, ammunition, and accessories found in Mr. Henriques's possession were stolen. In fact, Mr. Henriques knew the firearms other than the Lincoln County ones had been stolen, assuming the truth of the State's evidence, because he stole them from Mr. Short by using a counterfeit money order. And, while Trooper Kron testified that he found a bill of sale from Mr. Short to Mr. Henriques for the three Grant County firearms, there was no evidence of a valid bill of sale for the Lincoln County firearms. In addition, the evidence established that Mr. Henriques had exclusive possession of the firearms given that the duffel bag was found on the front passenger seat and Mr. Henriques was the sole occupant of the vehicle.
Mr. Henriques also provided false information to Trooper Kron concerning his identity and the existence of the Lincoln County firearms. In State v. Tollett, 71 Wn.2d 806, 810, 431 P.2d 168 (1967), the defendant claimed there was insufficient evidence that he knew that the tools at issue were stolen. However, according to the Tollett court, the fact that the defendant gave a fictitious name in order to conceal his identity "indicate[d] knowledge that the tools were stolen and thus made a case for the consideration of the jury." Id. at 811. In the present case, Mr. Henriques possessed recently stolen firearms from Lincoln County, provided Trooper Kron with a false name, and lied to the trooper when he said he did not have any identification or a wallet. And Mr. Henriques lied when he denied that the Lincoln County firearms were in the vehicle.
Finally, the jury was aware that Mr. Henriques was not legally allowed to buy or possess firearms due to the parties' stipulation that Mr. Henriques had prior felony convictions. Clearly then, Mr. Henriques knew that he could not legally buy or possess a firearm.
Viewing the evidence in a light most favorable to the State, any rational trier of fact could have found that Mr. Henriques knew that the firearms were stolen. Because sufficient evidence supported Mr. Henriques's convictions for possession of stolen property in counts 4 and 5, the trial court erred by arresting judgment on those counts.
ADDITIONAL GROUNDS FOR REVIEW
In his additional grounds for review, Mr. Henriques first contends that he was improperly sentenced. He argues that his three convictions for possession of a stolen firearm constituted the "same criminal conduct" for sentencing purposes because the firearms were all found at the same time, and in the same vehicle. Mr. Henriques raises no issue as to the calculation of his offender score, and he appropriately concedes that his convictions for unlawful possession of a firearm under RCW 9.41.040(1)(a) and possession of a stolen firearm under RCW 9A.56.310 do not encompass the same criminal conduct. The dispositive question is whether the trial court correctly ordered the three possession of a stolen firearm sentences to run consecutively. The choice, interpretation, and application of a statute to particular facts are matters of law reviewed de novo. State v. Ayala, 108 Wn. App. 480, 484, 31 P.3d 58 (2001).
The Sentencing Reform Act of 1981, chapter 9.94A RCW, as expressed in RCW 9.94A.589(1)(a), provides, as a general rule, that when a person is being sentenced on multiple counts at the same time, the sentences for those "current offenses" are to be served concurrently. State v. Yates, 161 Wn.2d 714, 781-82, 168 P.3d 359 (2007). However, the rule is subject to various exceptions, one of which applies here. RCW 9.94A.589(1)(c) specifically provides:
If an offender is convicted under RCW 9.41.040 for unlawful possession of a firearm in the first or second degree and for the felony crimes of theft of a firearm or possession of a stolen firearm, or both, the standard sentence range for each of these current offenses shall be determined by using all other current and prior convictions, except other current convictions for the felony crimes listed in this subsection (1)(c), as if they were prior convictions. The offender shall serve consecutive sentences for each conviction of the felony crimes listed in this subsection (1)(c), and for each firearm unlawfully possessed.
(Emphasis added.)
In the present case, Mr. Henriques was sentenced for three possession of stolen firearm charges and for unlawful possession of a firearm in the first degree. Under the plain language of RCW 9.94A.589(1)(c), Mr. Henriques was required to serve consecutive sentences for each of his convictions, since all four crimes were felony crimes listed in that subsection.
Likewise, the "Hard Time for Armed Crime Act" of 1995 (HTACA) mandates consecutive sentences in this case. Laws of 1995, ch. 129, § 1 (Initiative 159). The HTACA was designed to provide increased penalties for criminals using or carrying deadly weapons in the commission of crimes. Laws of 1995, ch. 129, § 1. Significantly here, RCW 9A.56.310, a provision of the HTACA which makes it a crime to possess a stolen firearm, also provides that: "Each stolen firearm possessed under this section is a separate offense." RCW 9A.56.310(3). In addition, section 16 of the HTACA added to the unlawful possession of firearms statute, RCW 9.41.040, the provision that:
Notwithstanding any other law, if the offender is convicted under this section for unlawful possession of a firearm in the first or second degree and for the felony crimes of theft of a firearm or possession of a stolen firearm, or both, then the offender shall serve consecutive sentences for each of the felony crimes of conviction listed in this subsection.
RCW 9.41.040(6); Laws of 1995, ch. 129, § 16 (emphasis added).
The language of RCW 9A.56.310 and RCW 9.94A.589(1)(c) is clear and unambiguous, and plainly requires the trial court to run each of Mr. Henriques's three possession of a stolen firearm sentences consecutively and consecutive to his sentence for first degree unlawful possession of a firearm. The trial court properly imposed consecutive 84-month sentences for each of the three possession of a stolen firearm convictions and 97 months on the first degree unlawful possession of a firearm conviction, for a total sentence of 349 months.
Finally, in his second additional ground for review, Mr. Henriques argues that the trial court erred by denying his motion for a change of venue. He contends that venue was improper in Kittitas County because the alleged crimes were committed in Grant County. A trial court's ruling on a motion for a change of venue is reviewed for an abuse of discretion. State v. Rice, 120 Wn.2d 549, 556, 844 P.2d 416 (1993) (quoting State v. Hoffman, 116 Wn.2d 51, 71, 804 P.2d 577 (1991)).
In general, criminal actions must be commenced in the county where the offense, or an element of the offense, was committed. CrR 5.1(a). Under article I, section 22 of the Washington Constitution, a defendant has the right "to have a speedy public trial . . . [in] the county in which the offense is charged to have been committed." But venue is not an element of a crime and "[w]hen there is reasonable doubt whether an offense has been committed in one of two or more counties, the action may be commenced in any such county." CrR 5.1(b).
At trial, Trooper Kron testified that the accident occurred at milepost 161.4, located in Kittitas County. Although the firearms at issue were stolen from Grant County and Lincoln County, the evidence established that they were found in Mr. Henriques's possession in Kittitas County. Under CrR 5.1(a)(1), this action was properly commenced in Kittitas County and Mr. Henriques's venue challenge fails.
We affirm Mr. Henriques's conviction for unlawful possession of a firearm in the first degree. We affirm Mr. Henriques's convictions on counts 1 through 3 for possession of stolen firearms. We reverse the arrest of judgment on counts 4 and 5 for possession of stolen firearms, reinstate those convictions, and remand for sentencing on those counts. Finally, we affirm the trial court's consecutive sentences.
A majority of the panel has determined 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.
SWEENEY, J. and KORSMO, J., concur.