Opinion
No. 26908-6-III.
April 16, 2009.
Appeal from a judgment of the Superior Court for Spokane County, No. 07-1-01950-3, Ellen K. Clark, J., entered February 22, 2008.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Sweeney, J., concurred in by Schultheis, C.J., and Brown, J.
UNPUBLISHED OPINION
The defendant here challenges the sufficiency of the evidence in this prosecution for first degree assault and unlawful possession of a firearm. We conclude that simply introducing a judgment and sentence from a prior prosecution, without more, is not sufficient to support a necessary element, the prior conviction, for the crime of unlawful possession of a firearm. We also conclude that the evidence easily supports the finding that the defendant was armed with a deadly weapon when he assaulted police officers here. And the court, therefore, properly enhanced the sentence. We affirm the conviction for first degree assault and reverse the conviction for unlawful possession of a firearm.
FACTS
A homeowner called police shortly before one o'clock in the morning to complain about a stranger sleeping on his front porch. Officer Todd Brownlee responded. He tried to coax the man, Ryan Patterson, awake. Mr. Patterson woke up, jumped to his feet, and approached Officer Brownlee. He repeatedly shoved his hands in and out of his pockets. The officer drew his stun gun and ordered Mr. Patterson to sit on the ground. Officer Brownlee summoned additional police officers. Mr. Patterson sat on the ground.
Officer Brownlee asked Mr. Patterson to identify himself. Mr. Patterson did not respond. He instead sprung again to his feet and approached the officer. Officer Brownlee shot his stun gun at Mr. Patterson. The stun gun did not immobilize Mr. Patterson. Mr. Patterson yelled at the officer and approached him. The officer tried to back away. Officer Brownlee tried to shoot the stun gun at Mr. Patterson a second time. He then saw Mr. Patterson draw a gun and shoot at him. The officer returned fire.
Several other officers arrived. They handcuffed Mr. Patterson and called for medics. Mr. Patterson thrashed and kicked violently as the officers transferred him to a gurney. The officers saw a handgun on the ground near where Mr. Patterson had been. The officers patted Mr. Patterson down and found two knives. They also found a drug kit containing drug paraphernalia and methamphetamine residue with Mr. Patterson's coat.
The State charged Mr. Patterson with first degree assault, second degree unlawful possession of a firearm, and possession of a controlled substance. It later amended the information to specify a pistol and a knife as the weapons for purposes of a deadly weapon sentencing enhancement. The case proceeded to trial. Mr. Patterson moved to dismiss the unlawful possession of a firearm charge after the State rested. He argued that the State failed to prove that the "Ryan Patterson" on the prior judgment and sentence was the same Ryan Patterson on trial and thereby failed to prove an element of unlawful possession of a firearm — a prior conviction for first degree possession of stolen property. The court concluded that the "State has made a sufficient showing to show that it is this Defendant" and denied the motion. Report of Proceedings at 388. The court denied the same motion after the defense rested. The court instructed the jury on both second degree assault and first degree assault.
A jury found Mr. Patterson guilty of the lesser included offense of second degree assault and the other two charges and entered special findings that Mr. Patterson was armed with a pistol and a knife.
DISCUSSION
Sufficiency of the Evidence — Unlawful Possession of a Firearm
A prior conviction is an essential element of unlawful possession of a firearm. RCW 9.41.040(2)(a). Mr. Patterson argues that simply introducing a copy of his prior judgment and sentence for first degree possession of stolen property, without more, is not sufficient to support this element of unlawful possession. The State says it is sufficient and, moreover, Mr. Patterson did not object at trial on the ground he now asserts and therefore should be precluded from assigning error to this decision on appeal.
The question is whether the State's showing is legally sufficient to support a necessary element of unlawful possession of a firearm — whether Mr. Patterson had previously been convicted of a disqualifying crime. See State v. Gentry, 125 Wn.2d 570, 596-97, 888 P.2d 1105 (1995). The statute required that the State prove that Mr. Patterson "'owns, has in his . . . possession, or has in his . . . 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); RCW 9.41.040(1)(a), (2)(a).
First, the issue is properly before us. Mr. Patterson twice moved to dismiss the unlawful possession of a firearm charge for insufficient evidence on the prior conviction element. And, moreover, Mr. Patterson's challenge is a claim of constitutional magnitude and, therefore, can be raised for the first time on appeal. RAP 2.5(a)(3); State v. Baeza, 100 Wn.2d 487, 488, 670 P.2d 646 (1983) ("[D]ue process requires the State to prove its case beyond a reasonable doubt, thus, sufficiency of the evidence is a question of constitutional magnitude.").
The State urges, nonetheless, that any error was invited because Mr. Patterson failed to object to the admission of the 2004 judgment and sentence at trial. But the State must prove every element beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Mr. Patterson could not invite the error of the State presenting no further, independent evidence of the prior conviction simply by failing to object to the admission of the 2004 judgment and sentence. Nor is Mr. Patterson's present argument inconsistent with acceding to admission of the judgment and sentence at trial. See United States v. Gonzalez-Medina, 976 F.2d 570, 573 (9th Cir. 1992), abrogated on other grounds by Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998); United States v. Schaff, 948 F.2d 501, 506 (9th Cir. 1991).
The State next argues that the certified copy of the judgment and sentence from the 2004 conviction for first degree possession of stolen property is sufficient evidence because that document contains the name "Ryan Lee Patterson," Mr. Patterson's date of birth, two signatures, and fingerprints. That argument is facially appealing. But it runs contrary to prior case law.
In State v. Hunter, we reiterated, based on long standing precedent, that the identity of names is not enough to support a conviction. See also State v. Harkness, 1 Wn.2d 530, 542-43, 96 P.2d 460 (1939). We concluded that the judgment and sentence submitted at trial alone was insufficient to prove the former judgment element of the charged crime. Hunter, 29 Wn. App. at 221. In Hunter, the State introduced the testimony of a work release facility supervisor. He testified that he recognized the defendant as a former resident of the facility who had been transferred there after serving a prison term for his felony convictions. Id. We concluded that this independent evidence was sufficient to support the former judgment element of Mr. Hunter's conviction. Id. at 221-22.
29 Wn. App. 218, 221-22, 627 P.2d 1339 (1981).
In State v. Clark, the State submitted a copy of the prior judgment and sentence with a copy of the warrant of commitment. 18 Wn. App. 831, 832, 572 P.2d 734 (1977). The warrant referred to the judgment and sentence, a fingerprint card and photograph with Mr. Clark's prison identification number, and an attestation by the custodian of records that the documents submitted are copies of the original records of Mr. Clark. Id. at 832-33. Here, there is no testimony by a custodian of Mr. Patterson's prior judgment record, nor is there a photograph. And the 2004 judgment and sentence do not refer as clearly to Mr. Patterson as the exhibits used in Clark.
The evidence is, then, insufficient to support the crime of unlawful possession of a firearm. Sufficiency of the Evidence — Deadly Weapon
Mr. Patterson next contends that the State failed to show that the pistol introduced into evidence was used to facilitate the crime of second degree assault. He argues that, at best, the State showed the presence of a weapon at the scene, and, therefore, the judge should not have enhanced his sentence based on a deadly weapon.
Police found a gun on the ground near Mr. Patterson and knives in his jacket pocket. The only question for us is whether that, coupled with the other evidence introduced, is sufficient to show that Mr. Patterson was armed. State v. Schelin, 147 Wn.2d 562, 566, 55 P.3d 632 (2002). That is a question of law, so our review is de novo. Id. We view the evidence in the light most favorable to the State and ask whether any rational fact finder could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
RCW 9.94A.602 requires that the court enhance the sentence of a defendant who commits a crime while armed with a deadly weapon. RCW 9.94A.533(3) and (4) provide the relevant deadly weapons enhancement times. A defendant is "armed" if a weapon is easily accessible and readily available for use, whether for offensive or defensive purposes. State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993); State v. Gurske, 155 Wn.2d 134, 138, 118 P.3d 333 (2005). "[W]here the weapon is not actually used in the commission of the crime, it must be there to be used." Gurske, 155 Wn.2d at 138. But a defendant can constructively possess a deadly weapon. Id. The State must show a nexus between the weapon and the defendant and between the weapon and the crime to show the necessary constructive possession of the deadly weapon. Schelin, 147 Wn.2d at 568. The nexus is necessary because, without it, courts risk "punishing a defendant under the deadly weapon enhancement for having a weapon unrelated to the crime." State v. Willis, 153 Wn.2d 366, 372, 103 P.3d 1213 (2005). In determining whether the nexus requirement is met, "[o]ne should examine the nature of the crime, the type of weapon, and the circumstances under which the weapon is found (e.g., whether in the open, in a locked or unlocked container, in a closet on a shelf, or in a drawer)." Schelin, 147 Wn.2d at 570.
Here, any rational fact finder could easily find that Mr. Patterson was "armed" with a gun and two knives at the time he assaulted Officer Brownlee. Mr. Patterson used the firearm in commission of second degree assault against Officer Brownlee. And the handgun was on the ground in the immediate vicinity of where Mr. Patterson violently resisted being handcuffed. The gun was easily accessible to Mr. Patterson and readily available for his use, so they moved it as soon as they were able to handcuff Mr. Patterson. Finally, Mr. Patterson actually possessed the two knives that were found in his jacket pocket. These also satisfy the deadly weapon requirements for the sentencing enhancement. RCW 9.94A.602, .533(4). Additional Grounds
By way of additional grounds for reversal, Mr. Patterson claims that the State held him in custody in the King County jail for medical reasons and ignored his requests to return to Spokane to proceed to trial on the charges at issue in the present appeal, violating his speedy trial rights. Washington has prescribed reasonable time periods for criminal trials consistent with constitutional speedy trial standards in CrR 3.3. There is not, however, enough information to determine whether Mr. Patterson's assertion has any basis. The complaint involves matters outside of the record.
We then affirm the conviction for second degree assault and reverse the conviction for unlawful possession of a firearm.
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.
SCHULTHEIS, C.J. and BROWN, J., concur.