Opinion
No. 28893-5-III
10-13-2011
STATE OF WASHINGTON, Respondent, v. KIM ELLERY RICKMAN JR., Appellant.
UNPUBLISHED OPINION
Korsmo, A.C.J. — Kim Rickman Jr. appeals his conviction for unlawful possession of a firearm, primarily arguing that his treaty hunting rights permitted him to possess a shotgun while hunting. He testified at trial, however, that he was not hunting and did not possess the weapon. In light of his testimony, we decline to address his claim and affirm the conviction.
FACTS
A Fish and Wildlife officer observed a truck in the Umatilla National Forest. He saw the occupants "bugle" for elk. The officer made contact with the truck. Two adults sat in the front seats; the backseat contained one adult and one child. There were three shotguns in the vehicle—two in the front and one in the back. The driver's gun was not loaded, but the other two shotguns were loaded. The officer's report states that the "occupants" told him they were hunting. All were members of the Nez Perce tribe.
The adult in the backseat initially gave a false name, but eventually was identified as Kim Rickman Jr. The officer learned that Mr. Rickman had a federal conviction for manslaughter arising from a hunting accident. He arrested Mr. Rickman for unlawful possession of a firearm and other violations.
The prosecutor eventually charged Mr. Rickman with unlawful possession of a firearm, possession of a loaded firearm within a vehicle, and giving a false statement. Defense counsel subsequently moved to dismiss the two weapons charges on the basis that Mr. Rickman had been exercising his treaty hunting rights. No testimony was presented, but defense counsel attached the probable cause statement as evidence for the court's consideration. Finding that the prohibition on felons possessing firearms was a reasonable statute of general application, the trial court denied the motion.
The case was tried to the bench three months later before a different judge. The wildlife officer testified to his encounter with the hunters and the defendant's proximity to the shotgun, the stock of which was at his feet. Mr. Rickman took the stand in his own behalf. On direct examination he testified that he was not hunting, but had been with his friends who were hunting. He denied owning, possessing, or controlling the shotgun in the backseat. His counsel subsequently argued the case to the bench on the theory that his client was not hunting and did not possess the weapon.
The trial court concluded that Mr. Rickman possessed the shotgun, noting that the front seat occupants could not have accessed it. The court found Mr. Rickman guilty as charged on all three counts.
Mr. Rickman timely appealed to this court. The State filed a motion on the merits to affirm the convictions. Our commissioner denied the motion on the basis of an intervening federal district court case that called into question a previous ruling of this court. The matter then proceeded to oral argument before a panel of judges.
ANALYSIS
This appeal presents two issues—one argued by counsel and one presented pro se by Mr. Rickman. We will address counsel's argument first.
Hunting Rights. Counsel argues that Mr. Rickman was exercising his treaty hunting rights and that the State's prohibition on felons possessing firearms must give way in this instance to the exercise of those rights. The problem with this position is that Mr. Rickman denies hunting or personally exercising those rights.
Counsel's basic argument is that Mr. Rickman's second amendment right to possess a firearm, in conjunction with his treaty hunting rights, preempts the State's authority to apply its felon-in-possession law to him on this occasion. He relies in significant part on Confederated Tribes of Colville Reservation v. Anderson, 761 F. Supp. 2d 1101 (E.D. Wash. 2011). There the court had questioned this court's ruling in State v. Olney and applied a multiple-factor test to determine if a state law of general application could be applied in a manner that interfered with the exercise of treaty hunting rights. Olney had concluded that a law of general application could be applied to tribal members hunting outside of reservation lands. 117 Wn. App. at 530-531. In that case, we upheld application of the prohibition on carrying loaded weapons inside a motor vehicle, RCW 77.15.460. Id. at 531.
117 Wn. App. 524, 72 P.3d 235 (2003), review denied, 151 Wn.2d 1004 (2004).
We need not reconsider Olney in this proceeding because Mr. Rickman was not attempting to assert his treaty hunting rights. He instead testified that he was not hunting and did not possess the shotgun in the backseat. Judicial estoppel prevents him from asserting a contrary factual position on appeal.
State courts are not bound by interpretations of inferior federal courts. State v. Barefield, 110 Wn.2d 728, 732 n.2, 756 P.2d 731 (1988). Nonetheless, even if we applied the test used in Confederated Tribes here, we would reach the same result as in Olney.
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"The purpose of judicial estoppel is to bar as evidence statements and declarations by a party which would be contrary to sworn testimony the party has given in the same or prior proceedings." King v. Clodfelter, 10 Wn. App. 514, 519, 518 P.2d 206 (1974) (citing authorities). A second purpose of the doctrine is to "preserve respect for judicial proceedings." Arkison v. Ethan Allen, Inc., 160 Wn.2d 535, 538, 160 P.3d 13 (2007) (internal quotations omitted). Courts focus on three factors when deciding whether to apply judicial estoppel: (1) whether the party's later position is clearly inconsistent with its earlier position; (2) whether accepting the new position would create the perception that a court was misled; and (3) whether a party would gain an unfair advantage from the change. Miller v. Campbell, 164 Wn.2d 529, 539, 192 P.3d 352 (2008) (citing Arkison, 160 Wn.2d at 538-539).
The third factor—whether a party gains an unfair advantage—does not weigh in favor of judicial estoppel here because Mr. Rickman did assert the same argument initially in the trial court at the pretrial motion. However, the other two factors strongly favor application of estoppel. Mr. Rickman's trial testimony is very clearly in conflict with the argument he makes on appeal. If we were to accept the new position it would create the perception that either the judge was misled at trial or this court was misled in this action. These factors require application of estoppel in this proceeding.
It is one thing to argue conflicting legal theories over the course of proceedings. Anfinson v. Fedex Ground Package Sys., Inc., 159 Wn. App. 35, 62-63, 244 P.3d 32 (2010), review granted, 172 Wn.2d 1001 (2011). However, the integrity of the judicial system depends upon factual consistency. A party cannot seek a ruling from one court based on an asserted statement of facts and then seek a ruling from a second court based on the facts being directly contrary to those asserted by the party in the first instance. Absent an intervening development in the evidence, the party is misleading one or more courts. Estoppel is necessary in such circumstances to prevent fraud and maintain the integrity of the judicial process.
Here, the sole evidence presented by Mr. Rickman in the trial court was his testimony that he was not hunting. While his counsel presented a contrary argument in the pretrial proceedings, the sole evidence there that Mr. Rickman was exercising his hunting rights were vague statements in the probable cause statement attributing the treaty hunting rights claim to the "occupants" of the truck. That document did not specifically identify Mr. Rickman as making such a claim. In light of his clear and unequivocal trial testimony, we will take Mr. Rickman at his word. He was not hunting when he encountered the wildlife officer.
It would affront the integrity of the judicial system to allow Mr. Rickman to argue his hunting rights claim in this court in light of his voluntary testimony under oath to the contrary. Judicial estoppel is appropriately applied to his claim in this appeal.
Constructive Possession. In his statement of additional grounds, Mr. Rickman presents an argument that the trial court erred in applying the law of constructive possession. We disagree.
This was a bench trial, so no jury instructions were used. The written findings reflect that the State did not prove ownership of either the vehicle or the gun. Clerk's Papers (CP) at 23. However, the gun was at Mr. Rickman's feet, with the barrel pointing toward the other backseat passenger, a child of age four or five. CP at 22. The gun was not accessible by the front seat passengers except by getting out of the front seat and opening the rear door. CP at 21. From these facts, the court concluded that Mr. Rickman possessed the shotgun at his feet. CP at 23-24.
The trial court did not misapply the law of constructive possession. A person possesses a firearm if it is in his custody or control. State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d 1214 (1997). "Possession may be actual or constructive." State v. Turner, 103 Wn. App. 515, 520, 13 P.3d 234 (2000). Constructive possession of a firearm exists where one has "dominion and control over it or over the premises where the firearm was found." Id. at 521.
Here, the record reflects that Mr. Rickman had control over the firearm. It was at his feet. Only the two backseat passengers had reasonable access to the weapon, and the other passenger was a very young child. The stock of the gun was by Mr. Rickman, while the barrel faced the child. Mr. Rickman only needed to reach down and pick up the gun to be in actual possession. Given that the front seat passengers both had their own weapons, it was understandable the trial court concluded that Mr. Rickman, the only adult in the backseat, possessed that gun.
The court correctly applied the law of constructive possession. That doctrine supports the trial court's conclusion that Mr. Rickman possessed that weapon. There was no error.
The convictions are affirmed.
A majority of the panel has determined 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.
Korsmo, A. C. J.
WE CONCUR:
Sweeney, J.
Brown, J.