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State v. Johnson

The Court of Appeals of Washington, Division Two
Nov 30, 2004
124 Wn. App. 1026 (Wash. Ct. App. 2004)

Opinion

No. 30857-6-II

Filed: November 30, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County. Docket No: 03-1-01926-9. Judgment or order under review. Date filed: 09/12/2003. Judge signing: Hon. Donald Herbert Thompson.

Counsel for Appellant(s), Stephanie C Cunningham, Attorney at Law, 4616 25th Ave NE #552, Seattle, WA 98105.

Counsel for Respondent(s), Kent Y. Liu, Pierce Co Pros Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.


Robert Chaeney Johnson appeals Pierce County Superior Court jury verdicts on first degree unlawful possession of a firearm and unlawful possession of a short-barreled shotgun. Through counsel, he claims the evidence was insufficient to support the element of knowledge in both charges. Pro se, he contends that the trial court violated his right to speedy trial and that he received ineffective assistance of counsel. We affirm.

Sherry Aalborg became Johnson's community corrections officer (CCO) in September of 2002. Johnson told her he lived at 5626 South `M' Street. On September 26, 2002, however, she went to that address and spoke with a man who said Johnson did not live there anymore. At a scheduled meeting on September 17, 2002, Johnson said that he and his girlfriend, Autumn Hughes, were expecting a baby. On November 4, 2002, Hughes said that she was seeking her landlord's permission to have Johnson with her at 5025 South Thompson. On December 2, 2002, Johnson said he was still trying to get permission to live there.

On January 17, 2003, Aalborg visited 5626 South `M' Street. She spoke with a man who said `Robert was at his girlfriend's.'

1 Report of Proceedings (RP) at 74.

On March 26, 2003, Aalborg tried to contact Johnson at 5025 South Thompson. When no one responded to her knock, she left her business card on the door. She then returned to her office and found a voicemail in which Johnson stated that he and Hughes had been there but had not come to the door because they were trying to get the baby to sleep.

Between January and April 2003, Aalborg contacted Johnson in person once. The contact was at the South Thompson address, where she observed him working on an automobile in the yard.

In April 2003, Aalborg received information from several sources that Johnson had guns at the South Thompson address, in violation of his conditions of release. On April 24, 2003, at about 10:30 a.m., she, four other CCO's, and three Tacoma police officers went to that address, knocked, and entered. They found Johnson in the master bedroom. He was on the right side of the bed, under the covers, dressed only in his underwear. Under the mattress at the foot of the bed was a loaded .22 revolver. At the head of the bed was a sawed off shotgun and a shell for it. On top of the bedroom's doorjam was a box of .22 shells. In the living room was a welder's helmet that contained two clips of 9 millimeter ammunition. In the kitchen was Johnson's offender accountability plan that Aalborg had drafted, a letter in an envelope addressed to Johnson at the South Thompson address, one of Aalborg's business cards, a job-assistance pamphlet that Aalborg had given Johnson, and, on the refrigerator, a picture of Johnson. The bedroom closet contained male clothing and shoes, and a cabinet contained papers, bills, and court documents in Johnson's name In the bathroom were two prescription medicine bottles in Johnson's name.

Johnson was charged with first degree unlawful possession of a firearm, RCW 9.41.040(1)(a), and unlawful possession of a short-barreled shotgun, RCW 9.41.190(1). At trial, after stipulating to a prior felony conviction, he testified that he did not live at the South Thompson address, although he visited frequently because his child lived there. He said that in November 2003 he had moved to 1502 South 92nd Street in an effort to get away from Hughes. He explained that on April 24, 2003, he happened to be at the South Thompson address because he was going to accompany Hughes to an appointment with the Department of Social and Health Services (DSHS). He had fallen asleep while waiting for Hughes, and he knew nothing about the guns. A jury found him guilty on both counts.

RCW 9.41.040(1)(a) provides: A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted in this state or elsewhere of any serious offense as defined in this chapter. Laws of 1997, ch. 338, sec. 47.

RCW 9.41.190(1) provides: It is unlawful for any person to manufacture, own, buy, sell, loan, furnish, transport, or have in possession or under control, any machine gun, short-barreled shotgun, or short-barreled rifle; or any part designed and intended solely and exclusively for use in a machine gun, short-barreled shotgun, or short-barreled rifle, or in converting a weapon into a machine gun, short-barreled shotgun, or short-barreled rifle; or to assemble or repair any machine gun, short-barreled shotgun, or short-barreled rifle.

I. Insufficient Evidence

Johnson argues that the evidence was insufficient to support his convictions. Evidence is sufficient if, when viewed in the light most favorable to the prosecution, it permits a rational trier of fact to find each essential element of the crime beyond a reasonable doubt. Here then, the evidence is sufficient if, taken in the light most favorable to the State, it shows (1) that Johnson knowingly had both firearms in his possession or control and (2) that he had previously been convicted of a felony. Johnson stipulated to the second element, so we discuss only the first.

State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

State v. Turner, 103 Wn. App. 515, 520, 13 P.3d 234 (2000).

According to the evidence here, Johnson was sleeping in the bed where the guns were located. The residence was strewn with his possessions, including clothing, prescription drugs, court documents, and correspondence, including a utility bill addressed to him at the South Thompson address. He had previously said he was trying to obtain permission to live at the residence, and on one prior occasion Aalborg had seen him working on a car there. On March 26, he had left a voicemail saying he was inside the house when Aalborg had knocked on the door. Taking this evidence in the light most favorable to the State, it is amply sufficient to warrant inferences that Johnson lived at the residence and that he was knowingly in possession and control of the guns at the time charged.

II. Pro Se Claims

Johnson claims that his right to speedy trial was violated by several continuances to which he objected. The facts needed to review this claim are not in the record, and thus we cannot review it.

State v. Lough, 70 Wn. App. 302, 335, 853 P.2d 920 (1993), aff'd, 125 Wn.2d 847 (1995).

Johnson also claims that his counsel was ineffective by not interviewing Hughes's landlord as a potential witness. To show ineffective assistance, he must show deficient performance and resulting prejudice. This record does not show prejudice because it does not show what, if anything, the landlord would have said.

State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

ARMSTRONG and HUNT, JJ., Concur.


Summaries of

State v. Johnson

The Court of Appeals of Washington, Division Two
Nov 30, 2004
124 Wn. App. 1026 (Wash. Ct. App. 2004)
Case details for

State v. Johnson

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. ROBERT CHAENEY JOHNSON, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Nov 30, 2004

Citations

124 Wn. App. 1026 (Wash. Ct. App. 2004)
124 Wash. App. 1026