Opinion
No. 31858-0-II.
May 16, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-00950-4, Frederick W. Fleming, J., entered June 18, 2004.
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 917 Pacific Ave Ste 406, Tacoma, WA 98402-4421.
Reed Manley Benjamin Speir, Attorney at Law, 917 Pacific Ave Ste 406, Tacoma, WA 98402-4421.
Counsel for Respondent(s), Todd Andrew Campbell, Pierce Co Pros Attorneys Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Reversed by unpublished opinion per Van Deren, J., concurred in by Quinn-Brintnall, C.J., and Hunt, J.
Jusdon Edwin Mounts appeals his conviction for first degree unlawful possession of a firearm in violation of RCW 9.41.040(1)(a). Mounts asserts that his counsel was ineffective for failing to object to the State's improper questioning about his criminal history or move for a mistrial. He also argues that the evidence was insufficient to support the jury's finding that he possessed the firearms. At oral argument, Mounts further challenged the trial court's inclusion of one point in his offender score for community placement at the time of the crime. We reverse Mount's conviction and remand for a new trial.
FACTS
While patrolling the east side of Tacoma at about 4:45 a.m. on February 26, 2004, police officers Ryan Larsen and Ryan Lane received a report of a possible vehicle prowl of a red pickup truck near the corner of 34th and East K. The officers arrived at the scene almost immediately and saw a pickup truck matching the report's description parked across the street from a parking lot. The officers observed two men, Robert Scearcy and Jusdon Mounts, standing in front of a parked blue Ford Grenada with its hood propped open in a parking lot near the red pickup truck described in the report.
As the police officers slowly drove by, both men looked at them. Scearcy then bent over inside the vehicle hood area and Mounts walked around to the open driver's side door and bent inside. The officers speculated that he was either trying to reach or conceal something.
After the officers stopped and got out of their vehicle, Mounts walked back around to the front of the Grenada and joined Scearcy leaning under the vehicle's hood area. Larsen initiated a conversation with the two men but they began to walk away. When Larsen asked them to stop and talk with him for a moment, Scearcy and Mounts turned around and a conversation ensued. Both Scearcy and Mounts appeared very nervous upon contact with the officers.
At that point, Larsen noticed another vehicle parked very close to the Grenada — so close that a person could not fit between them. A third man, Joshua Mullens, occupied the driver's seat, but the officers were unable to get him out of the car at the time. Larsen continued talking with Scearcy and Mounts as Lane walked around both vehicles to conduct a safety check. When Lane walked past the Grenada's open driver's side door, he immediately saw two firearms in the vehicle, one on the driver's seat and one on the driver's side front floorboard. Both firearms were clearly visible to Lane without the vehicle's interior light or the use of his flashlight because street lights in the area produced sufficient ambient light.
Larsen corroborated this testimony.
As Larsen questioned Mounts, rather than facing Larsen, Mounts looked back over his shoulder at Lane by the Grenada's open door. To prevent Scearcy and Mounts from fleeing, Lane did not immediately disclose that he saw the firearms. Mounts appeared momentarily relieved that Lane did not mention them.
Lane then walked back to Larsen and informed him of the firearms in the Grenada. The officers immediately placed both Scearcy and Mounts in handcuffs for officer safety and quickly conducted a pat down that produced no additional weapons. Larsen then ordered Mullens to get out of the car parked next to the Grenada; Mullens complied and Larsen handcuffed him.
A records check showed that both Scearcy and Mounts had outstanding arrest warrants. Further, the record check revealed that Mounts had a prior felony conviction that prohibited him from possessing a firearm. The officers arrested both Scearcy and Mounts but released Mullens.
Paul Depoister, a forensics specialist for the Tacoma Police Department, did not recover any latent fingerprints on either confiscated firearm. But he testified that latent fingerprints are fragile, that metal firearms do not collect them well for several reasons, that they are easily disturbed by moisture and heat, and that they will be unrecoverable if 'not handled in just the right manner.' Report of Proceedings (RP) at 44.
The State charged Mounts with first degree unlawful possession of a firearm in violation of RCW 9.41.040(1)(a). Before trial, the parties stipulated that Mounts had a prior conviction of a serious offense 'as required to be proved [to sustain a conviction for the charged offense] beyond a reasonable doubt.' RP at 67.
At the beginning of trial, the State addressed the trial court:
I believe there's a stipulation regarding the defendant's criminal history that has been provided to the Court. The stipulation indicates that the defendant has been convicted of a serious offense, or some such language, as opposed to specifying which offense he might have been convicted of in the past, but offense that would qualify him as unlawful possession of a firearm in the first degree, in the event the jury is able to determine he had possession of the weapon.
RP at 8.
Further, jury instruction number nine read:
Evidence has been introduced in this case on the subject of the defendant's prior conviction for a serious offense for the limited purpose of proving the second element of the crime charged. You must not consider this evidence for any other purpose.
Clerk's Papers at 15.
At trial, Mullens testified that the Grenada was his mother's vehicle and that he gave it to Scearcy. During the afternoon of February 25, 2004, Mullens helped Scearcy tow the Grenada from another location to where it was parked at 34th and East K Street, close to Scearcy's residence. Scearcy asked Mullens and Mounts to help him jumpstart the Grenada at about 2:30 to 3:00 a.m. on February 26.
Mullens drove Mounts to where the Grenada had been towed. Mullens testified that Mounts did not have firearms in his possession when he gave him a ride to help Scearcy with the Grenada. He explained that, given his own prior convictions, he does not allow firearms to be around him, and that he would not have driven Mounts if Mounts had possessed a firearm.
Before meeting Scearcy at the car, Mounts testified that he had never seen or been inside the Grenada. Mounts further testified that the Grenada was not his vehicle and that the firearms were not his. He stated that while he and Scearcy were working on the Grenada, Scearcy asked him to grab a screwdriver from the dashboard of the car. He reached inside the vehicle's open door solely to retrieve the screwdriver after the officers drove by and did not notice the firearms when he reached inside the vehicle. After Mounts retrieved the screwdriver and gave it to Scearcy, Larsen and Lane approached. On cross-examination, the State engaged Mounts in the following discussion without objection from defense counsel:
Q: You're not permitted to own a gun?
A: No, sir.
Q: Or possess a gun, right?
A: No, sir.
Q: Why not?
A: Because I'm a convicted felon, sir.
Q: Of what?
A: Residential burglary, burglary one, PSP One.
Q: And you've been — what else have you been convicted of?
A: Assault.
Q: Uh-huh.
A: Assault, other things.
Q: Other things?
A: Assault fours, other felonies.
Q: Other felonies?
A: Yeah. Unlawful possession of controlled substance.
Q: Uh-huh.
A: I don't know. I can't recollect nothing else.
Q: Really?
A: Yes, really.
Q: Anything bad with a gun before?
A: Yes, sir.
Q: What would that be?
A: A drive-by shooting.
Q: Ever have a gun you're not supposed to have before?
A: Yes, sir.
Q: What happened there?
A: I went to jail for it.
Q: Was that actually a stolen firearm?
A: No, sir, not that I'm aware of.
RP at 88-89 (emphasis added).
The jury found Mounts guilty of first degree unlawful possession of a firearm. The trial court sentenced Mounts to the high end of the standard range to 54 months' confinement. Mounts moved for a new trial, arguing that insufficient evidence supported the jury's finding that he possessed the firearms and that the State improperly questioned him during trial regarding his criminal history and failed to demonstrate under ER 609 that the probative value of this evidence outweighed its prejudicial effect. The trial court denied the motion. Mounts appeals.
The State calculated Mounts' offender score as five. Mounts did not object.
ANALYSIS I. Ineffective Assistance of Counsel A. Standard of Review
Effective assistance of counsel is guaranteed under the federal and state constitutions. See U.S. Const. amend VI; Wash. Const. art. I, sec. 22. To prove ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient; and (2) that deficient performance prejudiced him. In re Pers. Restraint of Woods, 154 Wn.2d 400, 420-21, 114 P.3d 607 (2005). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997).
Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). We afford great deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
B. Admission of Prior Convictions
Mounts argues that his trial counsel failed to object to the admission of prejudicial and irrelevant evidence regarding his criminal history and that once the evidence was admitted, his trial counsel also erred by failing to move for a mistrial. He contends that this failure to object and to move for a mistrial was unreasonable given the parties' stipulation that he had been previously convicted of a serious offense and that the specific nature of that offense would not be revealed to the jury.
The State responds that Mounts' trial counsel was effective. To support this contention, it explains that trial counsel made objections at appropriate times, was careful to make a record of his objections for possible appeal, vigorously objected to the admission of the firearms themselves, called witnesses, and presented his defense theory. The State further argues that trial counsel's failure to object to the admission of Mounts' specific criminal history was a trial tactic; an objection would have likely been overruled, and counsel did not wish to call additional attention to the issue. The State also argues that as a matter of public policy, trial counsel should not be allowed to move for a new trial based on his failure to object. Finally, the State asserts that Mounts has failed to demonstrate any prejudicial effect resulting from the admission of his criminal history.
With respect to Mounts' offender score, the State asserts that Mounts has failed to establish deficiency and prejudice.
Evidence Rule 609(a) carves a narrow exception to the general rule that prior convictions are generally inadmissible against a defendant because they are generally irrelevant to the question of guilt and are very prejudicial, shifting the jury's focus from the merits of the charge to the defendant's general propensity for criminality. State v. Hardy, 133 Wn.2d 701, 706, 710, 946 P.2d 1175 (1997). Under ER 609(a), for the purposes of attacking the credibility of a testifying defendant in a criminal case, evidence that the defendant has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness, but only if the crime (1) was punishable by death or imprisonment in excess of one year, and the court determines that the probative value of admitting the evidence outweighs the prejudice to the defendant against whom the evidence is offered; or (2) involved dishonesty or false statement, regardless of punishment. ER 609(a); Hardy, 133 Wn.2d at 706-07 (citing ER 609(a)).
Evidence Rule 609(a)(1) requires that prior convictions not involving dishonesty or false statements have probative value. Hardy, 133 Wn.2d at 707. Such convictions are only probative under ER 609(a)(1) to the extent they are probative of the defendant's truthfulness. Hardy, 133 Wn.2d at 707-08. Thus, prior convictions are inadmissible under ER 609(a)(1) until the party seeking admission affirmatively demonstrates that (1) the prior conviction bears on the witness's veracity; and (2) the probative value outweighs the prejudice. Hardy, 133 Wn.2d at 711-12.
The court in State v. Hardy acknowledged that few crimes not involving dishonesty or false statements are likely to be probative of a witness's veracity. 133 Wn.2d 701, 708, 946 P.2d 1175 (1997).
In contrast, prior convictions involving dishonesty and false statements are automatically admissible under ER 609(a)(2) if they are under 10 years old. ER 609(a)(2); State v. Russell, 104 Wn. App. 422, 433-34, 16 P.3d 664 (2001). Crimes involving dishonesty or false statement include burglary (if the burglar entered into a building to commit theft) and possession of stolen property (PSP). State v. McKinsey, 116 Wn.2d 911, 913-14, 810 P.2d 907 (1991); State v. Schroeder, 67 Wn. App. 110, 115, 834 P.2d 105 (1992). Assault and most drug convictions are not crimes involving dishonesty or false statement. Hardy, 133 Wn.2d at 709-10; State v. Rhoads, 101 Wn.2d 529, 533, 681 P.2d 841 (1984).
The record is unclear whether the stipulation prohibited inquiry into Mounts' criminal history altogether. Thus, Mounts' prior burglary and PSP convictions were arguably admissible under ER 609(a)(2) as crimes of dishonesty to impeach Mounts' credibility. But there is no question that the prejudicial effect of admitting Mounts' drive-by shooting charge was clearly improper under ER 609. And it is likely that if the trial court had weighed the probative value and the prejudice of the assault and drug convictions that the prejudice clearly outweighed any probative value those convictions may have had in attacking Mounts' credibility.
Before trial, the parties stipulated that Mounts had a prior conviction for a serious offense as required to be proved to sustain a conviction for first degree unlawful possession of a firearm. Further, the State explained to the court that 'The stipulation indicates that the defendant has been convicted of a serious offense, or some such language, as opposed to specifying which offense he might have been convicted of in the past . . .' (Emphasis added). RP at 8. But there is no copy of the stipulation in the record outlining what limits, if any, were set on the State's inquiry into Mounts' criminal history. And in his motion for a new trial, Mounts' defense counsel conceded that he failed to set limits on the State's elicitation of Mounts' criminal history.
There is no legitimate strategy or trial tactic supporting defense counsel's failure to object to the admission of those convictions. The thrust and persistence of the State's questioning, particularly because the stipulation had already established the 'previous serious offense' element of first degree unlawful possession of a firearm charge, suggests an effort to demonstrate Mounts' propensity toward not only criminality in general, but also the crime charged. On this basis alone, it was objectively unreasonable for defense counsel not to object.
Moreover, Mounts' counsel's deficient performance resulted in prejudice to him. There is a significant difference between the jury's knowledge that Mounts had previously been convicted of a serious offense and its knowledge of several specific offenses, including a drive-by shooting charge. The evidence that Mounts knowingly possessed the firearms — the only issue before the jury — is not overwhelming. Thus, there is a reasonable probability that the jury could have reached a different conclusion in the absence of the State's inquiry into his criminal history related to firearms. Thus, Mounts received ineffective assistance of counsel and we remand for a new trial.
II. Sufficiency of the Evidence
Mounts argues that the evidence was insufficient to support the jury's finding that he knowingly possessed, either actually or constructively, the firearms the officers found in the Grenada. Because insufficient evidence would result in a dismissal of the charges instead of remand for retrial, we briefly address this issue.
Mounts argues that the State may have established proximity to the firearms but failed to establish 'dominion or control' over them. Br. of Appellant at 9. For example, (1) the State did not offer any evidence to refute Mullens' testimony that Mounts did not have a gun in his possession on the drive to the Grenada; (2) no fingerprints were found on the firearms; (3) the guns were not found on Mounts' person; (4) the guns were not found in Mounts' vehicle; and (5) Mounts testified that the Grenada and the firearms were not his, that he had never seen the Grenada prior to that evening, and that he did not know the firearms were in the Grenada.
The State responds that Mounts had 'dominion and control' over the firearms. Br. of Resp't at 7. Specifically, the State contends that (1) Mounts and Scearcy shared 'dominion and control' over the vehicle in which the firearms were found because they were both working on it; (2) Mounts leaned into the vehicle directly over the seat where the firearms were found; (3) he inconsistently testified that he had never been inside the Grenada prior to that evening but knew that the screwdriver was on the dashboard; (4) the evidence is sufficient to show that he knew the guns were in the car; and (5) he attempted to walk away from the police officers when he saw them approach.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980) (citing State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975)). We must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).
To convict a person of first degree unlawful possession of a firearm, the State must prove that the person knowingly had a firearm in his possession and that he had previously been convicted of a serious offense. RCW 9.41.040(1)(a); State v. Turner, 103 Wn. App. 515, 520, 13 P.3d 234 (2000) (citing State v. Anderson, 141 Wn.2d 357, 5 P.3d 1247 (2000)). Possession may be actual or constructive. Turner, 103 Wn. App. at 520. A person constructively possesses a firearm if he has dominion and control over it or the premises where the firearm is found. Turner, 103 Wn. App. at 521. A vehicle is considered a 'premises' for purposes of determining constructive possession. Turner, 103 Wn. App. at 521 (citation omitted). A person may constructively possess a firearm jointly with another person. Turner, 103 Wn. App. at 521.
Close proximity to a firearm alone is not enough to establish constructive possession; there must be other factors enabling the jury to infer dominion and control. Turner, 103 Wn. App. at 521. But the ability to reduce a firearm to actual possession is an aspect of dominion and control. Turner, 103 Wn. App. at 521. No single factor is dispositive, however, in determining whether someone has dominion and control over a firearm; the totality of the circumstances must be considered. Turner, 103 Wn. App. at 521.
While not overwhelming, there is sufficient evidence to support the jury's determination that Mounts knowingly possessed the firearms. First, Mounts had been working on the car for about two hours before the officers' arrival. Second, as the officers drove by, Mounts walked around to the open driver's side door and leaned inside as if searching for or concealing something. Third, Mounts appeared nervous and preoccupied as Lane walked to the Grenada's open driver's side door. Finally, the firearms — one on the driver's seat and the other on the driver's side front floorboard — were clearly visible without the use of the vehicle's interior light or the officer's flashlight. Thus, Mounts leaned directly over the firearms when he was allegedly retrieving a screwdriver for Scearcy. This evidence, taken as a whole, is sufficient to find that Mounts both controlled the vehicle and knew the firearms were inside. Where there is control of a vehicle and knowledge of a firearm inside it, there is a reasonable basis for knowing, constructive possession. Turner, 103 Wn. App. at 524.
In a Statement of Additional Grounds for Review (RAP 10.10), Mounts argues that one officer wrote in his report that both guns were in plain view on the seat and that the other officer stated that one firearm was found on the seat and the other firearm on the floorboard.
Although his SAG addresses the trial testimony and does not contain a legal argument, it appears that Mounts challenges the credibility of the officers' testimony. This challenge fails because we must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).
III. Calculation of Offender Score/Community Placement Status
Mounts further argues that his trial counsel failed to require the State to accurately calculate his offender score. He asserts that his counsel should have asked whether three of his prior juvenile convictions, all stemming from events on June 4, 1999, involved the same criminal conduct, thus lowering his offender score.
The State responds that Mounts has failed to establish deficiency and prejudice.
Following oral argument, the parties submitted additional briefing on whether a jury must decide community placement status before an offender score may be properly determined. Because we remand for a new trial we do not address his same criminal conduct or community placement issues.
We reverse and remand for a new trial.
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.
HUNT, J. and QUINN-BRINTNALL, C.J., concur.