Opinion
No. 26904-3-III.
March 5, 2009.
Appeal from a judgment of the Superior Court for Stevens County, No. 07-1-00257-4, Rebecca M. Baker, J., entered February 19, 2008.
Reversed and remanded by unpublished opinion per Schultheis, C.J., concurred in by Kulik and Korsmo, J J.
Peter Justin Johnson challenges the sufficiency of the evidence to support his conviction for unlawful possession of a firearm in the second degree. He asserts that the presence of a firearm in a family member's bedroom of the house he shared with others shows mere proximity to the firearm, which is insufficient to prove constructive possession. We agree and reverse and remand for dismissal with prejudice.
FACTS
Mr. Johnson was on community supervision after having been convicted of a felony. His community corrections officer (CCO), Travis Hurst, made Mr. Johnson aware of the terms of his supervision, which included a requirement that he inform his CCO if he changed addresses and that he could not possess a firearm.
Mr. Johnson was approved to live in his mother's trailer at 539 Orin Rice Road No. 11 in Colville, Washington, where his brothers, Ed Williams and Tim Johnson, also lived. Mr. Williams occupied one of the bedrooms in the two-bedroom residence. Mr. Johnson's mother occupied the other bedroom. When Mr. Johnson stayed at the residence, he slept on a fold-out chair in the living room. Tim Johnson slept on a couch. Mr. Williams keeps in his room a .22 Marlin rifle that he purchased for his 19-year-old son, Michael Williams.
Between July and October 2007 Mr. Johnson worked for his cousin, Justin Johnson, who owns an automotive repair shop. For the most part, Mr. Johnson lived with his cousin during that time in an apartment adjacent to his cousin's home. Mr. Johnson also lived in the Spokane area when he found some logging and tree work there. He had returned to his mother's house only a few days before his arrest.
CCO Hurst visited the Orin Rice address on October 3, 2007 and saw Mr. Johnson there. Mr. Johnson checked with the probation office as required by the terms of his probation. He did not indicate a change of address, although the check-in process required him to declare any such change. When Mr. Johnson failed to check in after October 29, CCO Hurst requested a warrant for Mr. Johnson's arrest for failure to report as well as for consuming alcohol.
On the evening of November 18, 2007, Stevens County Deputy Sheriff James Glover made arrangements to serve the warrant. Deputy Glover together with reserve deputy Chad Fox and Sergeant Dan Anderson traveled to the Orin Rice Road residence. The officers positioned themselves at both the front and back doors. When they knocked at the door and announced they were from the sheriff's office, Mr. Johnson fled through his brother's bedroom and into the adjoining bathroom. The officers could see shadows and hear voices in the front room; they knew Mr. Johnson was there and was trying to hide.
Mr. Johnson's mother answered the door and was told there was a warrant for Mr. Johnson's arrest. She initially said that her son was not home but called him out upon the threat of obstruction charges. Mr. Johnson came out of hiding from his brother's bathroom through his brother's bedroom door. Somewhere between 30 seconds and 1 minute elapsed between the knock on the door and Mr. Johnson's coming out.
Mr. Johnson, wearing only his long johns, was allowed to get dressed before he was taken away. He obtained clothing from the drier at the rear of the residence and his shoes from the living room where he also got dressed.
As the deputies and Mr. Johnson were leaving, Sergeant Anderson saw a gun in Mr. Williams' bedroom. The gun was standing upright in a corner. No identifiable fingerprints could be detected on the gun. Mr. Johnson admitted that he knew the gun was in the bedroom.
Mr. Johnson was charged with second degree unlawful possession of a firearm on November 26, 2007. Mr. Johnson stipulated that he was a convicted felon. The jury found Mr. Johnson guilty.
DISCUSSION
Evidence is sufficient when, viewed in the light most favorable to the State, it supports a rational fact finder's finding of guilt beyond a reasonable doubt. 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 reasonable inferences drawn from it. Id. On review, circumstantial and direct evidence carry equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). Where the evidence is insufficient to support a jury verdict, the court must reverse and dismiss the conviction. State v. Stanton, 68 Wn. App. 855, 867, 845 P.2d 1365 (1993).
"A person commits the crime of second degree unlawful possession of a firearm if he or she `owns, has in his or her possession, or has in his or her control any firearm' and the person has previously been convicted of any felony, other than a `serious offense,' or certain specified gross misdemeanors." State v. Anderson, 141 Wn.2d 357, 360, 5 P.3d 1247 (2000) (quoting RCW 9.41.040(1)(a)). Mr. Johnson does not dispute that he had previously been convicted of a serious offense. The only issue is whether Mr. Johnson knowingly possessed a firearm.
Possession may be either actual or constructive. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). Actual possession occurs when the firearm is in the personal custody of the person charged. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). The State concedes that Mr. Johnson did not have actual possession. Mr. Johnson argues that the conviction must be reversed because the State showed mere proximity to the firearm, which is insufficient to prove constructive possession. We agree.
Constructive possession requires a showing that the defendant had dominion and control over the firearm or over the premises where the firearm was found. State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d 1214 (1997). The record shows that Mr. Johnson lived in Colville when working for his cousin from July to mid-October and then in Spokane and Loon Lake when he did some tree work there immediately before returning to his mother's home a few days before he was arrested. The State did not argue, nor is there any evidentiary basis for the argument, that Mr. Johnson had dominion and control of either the residence or his brother's bedroom.
"The ability to reduce an object to actual possession is an aspect of dominion and control." Id. In establishing dominion and control, the totality of the circumstances must be considered and no single factor is dispositive. State v. Alvarez, 105 Wn. App. 215, 221, 19 P.3d 485 (2001). Whether a person has dominion and control over contraband is determined by "considering the various indicia of dominion and control and their cumulative effect — that is, the totality of the situation." State v. Bradford, 60 Wn. App. 857, 862-63, 808 P.2d 174 (1991).
Here, the evidence shows that Mr. Johnson was temporarily residing at his mother's residence, generally living where he could find work. He has never disputed that he violated the conditions of probation by doing so without changing his address with the probation office. He had makeshift sleeping arrangements in his mother's trailer where he had no room of his own or private place to keep his personal items.
The firearm was found in a bedroom occupied by Mr. Williams. There is no dispute that Mr. Johnson did not own the gun. There was no evidence presented that linked Mr. Johnson to the bedroom other than his brief presence in the room on the single occasion of his arrest.
Mr. Johnson's brief presence in his brother's bedroom was for the purpose of accessing the bathroom. Although his brother's bedroom is small, approximately 10 feet by 10 feet, that merely shows proximity. There is no evidence from which it could be inferred that Mr. Johnson had dominion and control over the firearm.
As Mr. Johnson asserts, close proximity alone is not enough to establish constructive possession; other facts must enable the trier of fact to infer dominion and control. State v. Spruell, 57 Wn. App. 383, 388-89, 788 P.2d 21 (1990).
The State argues Mr. Johnson had the ability to immediately reduce the firearm to actual possession. It relies on Echeverria, 85 Wn. App. at 783. In Echeverria, three inches of the gun barrel could be seen sticking out from under the driver's seat at Mr. Echeverria's feet. The court held that the fact finder could draw a reasonable inference of possession from this evidence. The differences between this case and Echeverria are obvious. Mr. Johnson was only briefly in someone else's room, while Mr. Echeverria was driving the car and the firearm was within his reach. The State does not argue that Mr. Johnson could have reached the firearm from his path.
Notably, the Echeverria court also held that there was insufficient evidence to support a finding that Mr. Echeverria constructively possessed a martial arts throwing star found beneath the driver's seat but not visible because "[c]lose proximity alone is not enough." Id. at 784. The same is true here.
The State also relies on State v. Turner, 103 Wn. App. 515, 521-22, 13 P.3d 234 (2000). Mr. Turner was driving a truck that contained a rifle inside an archery bow case that was lying partially open across the backseat behind the driver's seat. Both the driver and the passenger claimed the rifle belonged to the passenger. The court held that the evidence — close proximity to the rifle, knowledge of its presence, ability to reduce it to actual possession, and control of the truck in which the rifle was found — was sufficient to establish possession and control of the firearm. Here, although Mr. Johnson knew the rifle was in the bedroom, there is no evidence that it was within his reach, and he did not have control of the premises.
The State implies on appeal that Mr. Johnson lived at his mother's residence all along. The State did not take this position before the trial court. Instead, the State argued that Mr. Johnson did live elsewhere to advance two other theories: (1) that Mr. Johnson's failure to formally change his address when he was clearly living elsewhere in violation of his probation, shows that he lacks credibility in general and (2) if Mr. Johnson broke the rules of his probation, he probably also committed the firearms offense.
When considering the evidence in the light most favorable to the State, Mr. Johnson emerged through the door of a darkened room into which he had run to hide in the adjoining bathroom less than one minute earlier and a firearm was leaning in the corner on the wall opposite the door. This is insufficient to show constructive possession.
We reverse and remand for dismissal with prejudice.
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.
KULIK, J. and KORSMO, J., concur.