Opinion
No. 59703-5-I.
September 8, 2008.
Appeal from a judgment of the Superior Court for Whatcom County, No. 06-1-01765-2, Steven J. Mura, J., entered March 5, 2007.
Ownership and possession of firearms is subject to reasonable regulation. Because the statute that prohibits a defendant who is convicted of a serious offense from owning or possessing firearms is a reasonable restriction on the state constitutional right to bear arms, we affirm.
FACTS
In October 2005, John P. Rosch pleaded guilty to three counts of Violation of the Uniform Substance Act (VUCSA), delivery of cocaine.
RCW 69.50.401(2)(a)
A VUCSA delivery of cocaine conviction is a "serious offense" that results in a prohibition against owning or possessing firearms. In the statement of defendant on plea of guilty, Rosch acknowledges, "I understand that I may not possess, own, or have under my control any firearm unless my right to do so is restored by a court of record and that I must immediately surrender any concealed pistol license. RCW 9.41.040." On December 1, 2005, the court imposed a Drug Offender Sentencing Alternative (DOSA). The Judgment and Sentence states in bold: " FIREARMS. You must immediately surrender any concealed pistol license and you may not own, use or possess any firearm unless your right to do so is restored by a court of record. . . ."
RCW 9.41.010(12)(b) defines a "serious offense" as "[a]ny felony violation of the uniform controlled substances act, chapter 69.50 RCW, that is classified as a class B felony or that has a maximum term of imprisonment of at least ten years."
On April 10, 2006, Rosch was released from prison to serve the remainder of his sentence on community custody under the supervision of the Department of Corrections (DOC). DOC reviewed the conditions of community custody with Rosch. Rosch signed the conditions and the sentencing requirements, acknowledging that he had read and agreed to comply with the conditions and requirements. "Each of these conditions/requirements have been explained to me and I hereby agree to comply with them." The conditions of community custody include the following provision:
Firearms: I have been advised and understand . . . I am prohibited by law from owning, possessing, receiving, shipping, or transporting a firearm, ammunition, or explosives. I understand the prohibition extends to every sort of gun, rifle, or explosive device or similar device including the frame or receiver of firearms.
On June 5, 2006, Rosch sold an 870 Remington shotgun to Bellingham Pawn. On September 30, Rosch sold two other firearms that he owned to Checkmate Pawn. On October 25, Rosch sold his L.A.R. handgun to Miracle Pawn Shop. Bellingham Pawn contacted the Whatcom County Sheriff's Office to report that the Remington had been reported as stolen.
In December, the State charged Rosch with two counts of unlawful possession of a firearm in the first degree on June 5 and October 25, in violation of RCW 9.41.040(1)(a), and one count of possession of a stolen firearm in violation of RCW 9A.56.310(1).
Pretrial, Rosch filed a motion to stipulate that he was convicted of a serious felony offense to prevent the State from introducing evidence of his three prior VUCSA convictions. The court granted the motion.
At trial, Jeremy Boyer testified that he purchased the 870 Remington in September 2000 and that it was stolen from his house in late October 2005. A Bellingham Pawn employee testified about the documentation for the June 5 sale of the 870 Remington showing that Rosch sold the shotgun. According to the employee, although the pawnshop requires identification and a signature for the sale of firearms, no proof of ownership is required. A Checkmate Pawn employee testified that Rosch sold two firearms to the pawnshop on September 30. The employee specifically recalled Rosch bringing in the firearms, setting them on the counter, and negotiating a price. A Miracle Pawn Shop employee testified that on October 25, Rosch carried the L.A.R. handgun into the pawnshop, negotiated a price, provided his identification, and signed a document of sale.
Before the conclusion of the State's case in chief, the court read the stipulation. The stipulation states: "Rosch was convicted of a serious felony offense on October 28, 2005. As a convicted felon, he was prohibited from owning or having in his possession or control any firearm."
Rosch's father and Rosch testified. Rosch's father said that after Rosch pleaded guilty in October 2005, he took possession of all of the guns Rosch owned and stored them in a gun safe at his house. His father said that he advertised and sold two of the guns in January 2006. While incarcerated, Rosch also authorized his father to obtain his L.A.R. pistol from the police. Following his release from prison, Rosch moved in with his parents. Rosch's father said that he did not allow Rosch to have access to the guns. However, he admitted taking Rosch to Bellingham Pawn and Checkmate Pawn to sell the firearms because the guns were registered to Rosch. Rosch's father testified that Rosch did not touch the guns. According to Rosch's father, he carried the guns into the pawnshops.
Rosch testified that his father took possession of his guns because it was his understanding that he "was not to be in possession of firearms or touch any in any way," after he was convicted. Rosch said that he used the guns as collateral for loans. Rosch denied stealing the Remington. According to Rosch, he sold the Remington to a friend, and years later another friend sold the Remington back to him. On cross examination, Rosch admitted that he owned the firearms that were sold, he made the decision to sell the firearms, he was present during the sales, he signed the paperwork for the sales at the pawnshops, and he received the money from the sales. Rosch also admitted that as part of his guilty plea, he acknowledged he could not "possess, own, or have under my control any firearm."
The court instructed the jury that in order to convict Rosch of unlawful possession of a firearm in the first degree, the State had the burden of proving beyond a reasonable doubt that Rosch had been previously convicted of a serious felony offense and that he knowingly owned or had in his possession or control a firearm. The jury instructions defined possession as:
having a firearm in one's custody or control. It may be either actual or constructive. Actual possession occurs when the weapon is in the actual physical custody of the person charged with possession. Constructive possession occurs when there is no actual physical possession but there is dominion and control over the item, and such dominion and control may be immediately exercised.
In closing, the State argued that Rosch had actual or constructive possession of the firearms that were sold to the pawnshops on June 5 and October 25, and that Rosch knew the Remington was stolen. The defense conceded that Rosch owned the guns that he sold to the pawnshops, but argued that he did not have actual possession of the guns. The defense also argued the evidence did not prove beyond a reasonable doubt that Rosch knew the Remington was stolen.
The jury found Rosch guilty as charged of the two counts of unlawful possession of a firearm in the first degree, but not guilty of possession of a stolen firearm. The court imposed a concurrent exceptional downward sentence of 36 months on the unlawful possession of firearm convictions. Rosch appeals.
The court found there were mitigating circumstances related to Rosch's possession of the L.A.R. handgun.
ANALYSIS
Relying on State v. Spiers, 119 Wn. App. 85, 79 P.3d 30 (2003), Rosch asserts that to the extent RCW 9.41.040(1)(a) prohibits a convicted felon from owning a firearm, the statute is an unreasonable limitation of his state constitutional right to bear arms under article I, section 24 of the Washington Constitution.
Under RCW 9.41.040(1)(a), [a] person "is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm" after being convicted of a serious offense. Article I, section 24 of the Washington Constitution provides that, "[t]he right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men." Although stated in absolute terms, the constitutional right to bear arms is subject to reasonable regulation by the State. City of Seattle v. Montana, 129 Wn.2d 583, 594, 919 P.2d 1218 (1996).
Both parties engage in an analysis of the constitutional right to bear arms under State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). The parties agree that the right is broader under the Washington Constitution, and for purposes of the opinion we assume it is. However, after oral argument, the United States Supreme Court addressed the question of whether an absolute ban on handguns violated the Second Amendment to the United States Constitution. District of Columbia v. Heller, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). The Court held the Second Amendment confers an individual right to possess and carry arms, and the ban on handgun possession in the home was inconsistent with that right. Heller, 128 S.Ct. at 2799, 2822.
Conviction means "at such time as a plea of guilty has been accepted, or a verdict of guilty has been filed[.]" RCW 9.41.040(3).
We review the constitutionality of a statute de novo. State ex rel. Public Disclosure Comm'n v. 119 Vote No! Comm., 135 Wn.2d 618, 623, 957 P.2d 691 (1998). "A statute is presumed constitutional, and the party challenging it has the burden of proving that it is unconstitutional beyond a reasonable doubt." State v. Spencer, 75 Wn. App. 118, 121, 876 P.2d 939 (1994); Montana, 129 Wn.2d at 589. If possible, we will construe a statute so that it is constitutional. Spencer, 75 Wn. App. at 121.
Whether the statutory restriction on gun ownership in RCW 9.41.040(1)(a) is reasonable depends on balancing the public benefit derived from the regulation against the degree to which it frustrates the purpose of the constitutional provision" to ensure self-defense or defense of the State. State v. Spiers, 119 Wn. App. at 93; Second Amendment Foundation v. Renton, 35 Wn. App. 583, 586, 668 P.2d 596 (1983). Here, the issue is whether RCW 9.41.040(1)(a) is reasonable or "reasonably necessary to protect public safety or welfare, and substantially related to legitimate ends sought." Montana, 129 Wn.2d at 594.
It is well established that prohibiting felons from possessing a firearm is a reasonable regulation of the state constitutional right to bear arms. State v. Krzeszowski, 106 Wn. App. 638, 641, 24 P.3d 485 (2001). "Felons are routinely restricted from various activities even after their civil rights have been restored." Krzeszowski, 106 Wn. App. at 643-44. The same rationale that prohibits a felon convicted of a serious offense from possessing a firearm applies with equal force to the statutory prohibition that makes it a crime for a convicted felon to own a firearm.
RCW 9.41.040(1) specifically states that a person is guilty of unlawful possession if he "owns" or has in his possession or control a firearm. Because the meaning of the statute is plain on its face, we give effect to that plain meaning. State v. Campbell Gwinn, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002).
The legislative intent in enacting RCW 9.41.040(1)(a) also supports the conclusion that the statute prohibits felons convicted of a serious offense from either possessing or owning a firearm. When the legislature amended and reenacted the unlawful possession of a firearm statute, it emphasized the importance of the restrictions stating that, "the increasing violence in our society causes great concern for the immediate health and safety of our citizens and our social institutions." Laws of
1994, 1st Sp. sess. ch. 7, § 101. The legislature also found that the "State efforts at reducing violence must include changes in criminal penalties, reducing the unlawful use of and access to firearms[.]" Id. RCW 9.41.040(1)(a) demonstrates the legislature's concern for the need to prevent a felon convicted of a serious offense from possessing or owning firearms. RCW 9.41.040(1)(a) benefits the public and protect the public's safety by ensuring that convicted felons do not have access to firearms.
We conclude that prohibiting a convicted felon from both owning and possessing a firearm is a reasonable regulation that does not violate the state constitutional right to bear arms.
The Supreme Court in Heller also unequivocally stated that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons. . . ." Heller, 128 S.Ct at 2816-17.
Rosch also argues that RCW 9.41.047(1) conflicts with RCW 9.41.040(1) because it does not require the sentencing court to instruct convicted felons that they may not own or control a firearm. While RCW 9.41.040(1) prohibits a convicted defendant from owning or possessing a firearm, RCW 9.41.047(1) only requires a court to notify a defendant that he is not permitted to possess a firearm. RCW 9.41.047(1) provides in pertinent part:
At the time a person is convicted . . . the convicting or committing court shall notify the person, orally and in writing, that the person must immediately surrender any concealed pistol license and that the person may not possess a firearm unless his or her right to do so is restored by a court of record.
We must harmonize related statutory provisions to effectuate a consistent statutory scheme that maintains the integrity of the respective statutes. Bauer v. Empl. Sec. Dep't, 126 Wn. App. 468, 473, 108 P.3d 1240 (2005). To the extent there is an apparent conflict, we give effect to the more specific statute. Morris v. Blaker, 118 Wn.2d 133, 821 P.2d 482 (1992). RCW 9.41.040(1)(a) specifically and unambiguously prohibits a defendant who is convicted of a serious offense from owning, possessing, or controlling a firearm. Because RCW 9.41.040(1) specifically sets forth the requirements regarding convicted felons and firearms, we conclude RCW 9.41.047(1) is a general implementation of those requirements. In addition, we do not assume that the legislature intended to change the law by leaving out ownership and control in RCW 9.41.047(1). Schumacher v. Williams, 107 Wn. App. 793, 801, 28 P.3d 792 (2001) (we will not assume that the legislature intended to significantly change the law by implication). In any event, here, there is no dispute that Rosch was repeatedly told and acknowledged that he was not allowed to "own, use or possess any firearm."
(Emphasis added.)
In the alternative, Rosch contends that we should follow the reasoning in Spiers to conclude that RCW 9.41.040(1)(a) violates his constitutional right to bear arms. In Spiers, the court held that the prohibition in RCW 9.41.040(1)(b)(iv) against owning a gun while free on bond pending trial for a serious offense was unconstitutional. "The public does not derive much, if any, additional benefit by forbidding a person who is free on bond pending trial for a serious offense from owning firearms beyond that benefit secured by forbidding such persons from possessing or controlling firearms." Spiers, 119 Wn. App. at 94. But unlike in Spiers, prohibiting a defendant who is convicted of a serious offense from owning a firearm is a benefit to society and reasonably necessary to protect the public.
Rosch also asserts that RCW 9.41.040(1)(a), is unconstitutional because it proscribes ownership of a firearm from the moment a person is convicted. Contrary to his assertion, Washington courts have not interpreted RCW 9.41.040(1)(a) to mean that a person is guilty of possession of a firearm at the moment of conviction.
"'An appellate court must 'ensure that defendants are convicted under the statute as it is subsequently construed and not as it was originally written.'" State v. Williams, 144 Wn.2d 197, 213, 26 P.3d 890 (2001) (quoting City of Bellevue v. Lorang, 140 Wn.2d 19, 992 P.2d 496 (2000)).
In State v. Nusbaum, 126 Wn. App. 160, 107 P.3d 768 (2005), this court interpreted RCW 9.41.040(1)(a) to allow a convicted felon to "sell, give away, or otherwise dispose of the weapons through a custodian . . . within [a] reasonable time and without personally taking possession of them." Nusbaum, 126 Wn. App. at 169.
Here, there is no dispute that Rosch had a reasonable time to dispose of his firearms. After Rosch was convicted, his father took possession of all of his guns and stored them in a gun safe. Rosch also authorized his father to sell his guns. While Rosch was in prison his father sold two firearms. Rosch was released from prison in April 2006. The State did not charge Rosch for two counts of unlawful possession of a firearm until December 2006.
For the first time in his reply brief, Rosch argues that the jury instructions were insufficient because they did not inform the jury that Rosch had a reasonable time to dispose of his guns through a custodian. We need not address an issue first raised in a reply brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
We affirm.