Opinion
No. 61689-7-I.
July 28, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-05830-7, Brian M. Tollefson, J., entered July 13, 2007.
Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.
Vinh Lam was convicted of second degree unlawful possession of a firearm, first degree possession of stolen property, attempting to elude a pursing police vehicle, and second degree driving with a suspended license. On appeal, he asserts that his convictions should be reversed because he received ineffective assistance of counsel. He also challenges his conviction for second degree unlawful possession of a firearm based on his contention that the jury was not instructed properly. He argues that the jury instructions relieved the State of its burden to prove that he knowingly possessed the firearm. Because we agree that the instructions were deficient, we vacate the unlawful firearm possession conviction and remand. However, because we reject Lam's ineffective assistance argument, we affirm his other convictions.
FACTS
On December 9, 2007, Sergeant Mark Eakes drove past a 1990 Honda Civic in a parking lot and checked its license plate. He discovered that the vehicle had been reported stolen, and he returned to where he had seen it in the lot. The vehicle was leaving the parking lot, so he activated his flashing lights to initiate a stop. The vehicle accelerated. A high-speed chase ensued, with the vehicle reaching speeds of 85 to 90 miles per hour. During the pursuit, it drove on the wrong side of the road into oncoming traffic and at one point turned off its headlights. Eventually, the vehicle's driver lost control, hit a mailbox, and came to a stop.
Sergeant Eakes observed three people flee the vehicle on foot. A fourth person remained in the vehicle. Another police officer who had arrived at the scene reported that two people fled from the driver's side door. Lam was the first of the two to exit from that side. Lam was detained after a foot chase. He was not wearing shoes. Sergeant Eakes found two shoes outside the driver's door. Sergeant Eakes also saw a gun sticking out from under the driver's seat on the floorboard. He searched the interior of the car and found Lam's wallet on the driver's seat and several kinds of ammunition.
At trial, Sergeant Eakes testified about the different kinds of bullets he found, which included 16 hollow-point bullets. He stated that a hollow-point bullet is "meant to spread out once it hits its target, cause more damage." 4 Verbatim Report of Proceedings (VRP) (May 2, 2007) at 130. Lam stipulated that he had previously been convicted of a felony. The jury convicted him of second degree unlawful possession of a firearm, first degree possession of stolen property, attempting to elude a pursing police vehicle, and second degree driving with a suspended license. He timely appeals.
The jury found Lam not guilty of possessing a stolen firearm. The jury did find that he was armed with a firearm while committing the possession of stolen property and attempting to elude offenses. Our holding does not affect these firearm enhancements.
ANALYSIS
Ineffective Assistance of Counsel
Lam contends that his convictions should be reversed because his right to effective assistance of counsel was denied when his trial attorney failed to object to irrelevant and prejudicial evidence. To prevail on a claim of ineffective assistance of counsel, Lam must satisfy both prongs of a two-prong test. See State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). First, he must establish that his counsel's representation was deficient. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). To show deficient performance, he has the "heavy burden of showing that his attorneys 'made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. . . .'" State v. Howland, 66 Wn. App. 586, 594, 832 P.2d 1339 (1992) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Lam must show that given all the facts and circumstances, his counsel's conduct failed to meet an objective standard of reasonableness. State v. Huddleston, 80 Wn. App. 916, 926, 912 P.2d 1068 (1996). Second, Lam must establish that the deficient performance resulted in prejudice such that "there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different." Hendrickson, 129 Wn.2d at 78. We employ a strong presumption that counsel's representation was effective. McFarland, 127 Wn.2d at 335.
Lam argues that his trial counsel's failure to object to testimony regarding the dangerousness of the bullets found inside the car constituted deficient performance that resulted in prejudice. Lam contends that his attorney should have objected when Sergeant Eakes testified that he found 16 hollow-point bullets in the back of the car and that a hollow-point bullet is "meant to spread out once it hits its target, cause more damage." 4 VRP (May 2, 2007) at 130. Lam argues that this evidence was irrelevant because the type of bullets found did not make his unlawful possession of a firearm any more likely. But even if we accept Lam's contention that this evidence was irrelevant, there is no reasonable probability that it impacted the outcome of the trial. The jury heard testimony that Lam fled a stolen car after an extended police chase in which a stolen vehicle was driven into oncoming traffic and its headlights were turned off. There was also testimony that Lam's wallet and shoes were found at the car, along with the firearm and several types of bullets. Lam stipulated that he had previously been convicted of a felony. Considering all the evidence, we do not believe the jury was tipped toward guilty verdicts by Sergeant Eakes's parenthetical explanation of one of the bullet types he found in the car. Because Lam fails to demonstrate prejudice, we reject his ineffective assistance of counsel claims.
Jury Instructions
The State contends that Lam waived his objections to jury instructions 8 and 9 because he did not object to them at trial. However, on appeal, Lam alleges that these instructions omitted an element of the crime — that he knowingly possess a firearm. Knowing possession is an element of the crime of unlawful possession of a firearm in the second degree. State v. Anderson, 141 Wn.2d 357, 5 P.3d 1247 (2000). Omission of an element relieves the State of its burden to prove every essential element beyond a reasonable doubt. State v. Smith, 131 Wn.2d 258, 265, 930 P.2d 917 (1997). This presents an issue of sufficient constitutional magnitude to warrant review when raised for the first time on appeal. RAP 2.5(a)(3); State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 415 (2005).
Lam contends that the trial court's definitional and "to-convict" instructions were ambiguous and did not require the jury to find that he knew the gun was in the car. However, the State insists that the instructions did require the jury to find knowing possession before convicting Lam. We review a challenge to the adequacy of jury instructions de novo, as a question of law. State v. Shouse, 119 Wn. App. 793, 796, 83 P.3d 453 (2004).
The parties offer two competing interpretations of instructions 8 and 9. The court's instruction 8 defined second degree unlawful possession of a firearm.
A person commits the crime of unlawful possession of a firearm in the second degree when he knowingly owns a firearm or has a firearm in his possession or control and he has previously been convicted of a felony which is not a serious offense[.]
Clerk's Papers (CP) at 49. The court's "to-convict" instruction stated,
To convict the defendant of the crime of unlawful possession of a firearm in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 9th day of December, 2006 the defendant knowingly owned a firearm or had a firearm in his possession or control;
(2) That the defendant had previously been convicted [of] a felony crime which is not a serious offense; and
(3) That the ownership or possession or control of the firearm occurred in the State of Washington.
. . . .
CP at 50. Thus, in order to convict Lam, the State was required to prove that that he "knowingly owned a firearm or had a firearm in his possession or control . . ." According to Lam, the adverb "knowingly" could be read to modify the phrase "owned a firearm" and not the phrase "had a firearm in his possession or control." In contrast, the State asserts that the instructions required the jury to find either that Lam knowingly owned a firearm or knowingly had a firearm in his possession or control. We must examine whether the instructions make the applicable legal standard "manifestly apparent" to the average juror. State v. Borsheim, 140 Wn. App. 357, 366, 165 P.3d 417 (2007).
These instructions essentially track the pattern jury instructions except that the word "knowingly" is inserted before the words "owns" and "owned." 11A Washington Practice: Washington Pattern Jury Instruction: CRIMINAL § 133.02.01-.02, at 229-31 (Supp. 2005). The pattern instructions have not been modified to reflect the decision in State v. Anderson, 141 Wn.2d 357.
Contrary to the State's assertion, it is not apparent that the jury would interpret the disputed instructions to require knowing possession of the firearm. While the State's proposed reading is reasonable, the instructions could also reasonably be read to require only that Lam "had a firearm in his possession," even if he was not aware of it. Thus, the jury instructions are ambiguous. When jury instructions are ambiguous, the reviewing court cannot assume that the jury followed the legally valid interpretation. See State v. McLoyd, 87 Wn. App. 66, 71, 939 P.2d 1255 (1997). And because the jury relies on the "to-convict" instruction as a "yardstick" by which to determine a defendant's guilt or innocence, it carries "special weight." State v. Davis, 154 Wn.2d 291, 305-06, 111 P.3d 844 (2005). If a "to convict" instruction invites the jury to assume that an essential element need not be proved, then the defendant is denied a fair trial. Smith, 131 Wn.2d at 263. Because the jury might have assumed that the State was not required to prove that Lam knowingly possessed the gun, his conviction on this charge cannot stand unless we are convinced beyond a reasonable doubt that the error did not affect the jury's verdict. Shouse, 119 Wn. App. at 797 (noting that failure to properly instruct jury on State's burden of proving knowing firearm possession was subject to harmless error analysis).
If an element is omitted from a jury instruction, the error is harmless if uncontroverted evidence supports the element. State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002). But here, Lam vigorously controverted the knowledge element of the unlawful firearm possession charge. There were three other people in the car besides Lam shortly before the gun was discovered. At trial, he disputed being the driver of the car and suggested that the gun might have been placed under the driver's seat without his knowledge. Consequently, the ambiguity with respect to whether knowing possession was required was not harmless error. Because we are not convinced beyond a reasonable doubt that the jury's verdict was unaffected by the confusing language in the instructions, we cannot affirm Lam's conviction for second degree unlawful possession of a firearm. Accordingly, we vacate his conviction on that count and remand.
In sum, we affirm Lam's convictions for first degree possession of stolen property, attempting to elude a pursing police vehicle, and second degree driving with a suspended license, but we vacate his conviction for second degree unlawful possession of a firearm and remand.