Opinion
No. 29176-2-II.
Filed: June 8, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-1-01379-3. Judgment or order under review. Date filed: 08/02/2002. Judge signing: Hon. James R Orlando.
Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St. Ste 488, Tacoma, WA 98402-3600.
Counsel for Respondent(s), Alicia Marie Burton, Pierce County Prosecutors Office, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Miry Kim, Pierce Co Pros Attorney, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Shawn Benjamin Sherrod appeals his conviction of unlawful possession of a firearm in the first degree, arguing that (1) the trial court improperly instructed the jury; (2) insufficient evidence supported his conviction; (3) the trial court erred in denying his motion for a new trial; and (4) his offender score was miscalculated. Agreeing only that his offender score was miscalculated, we affirm his conviction and remand for resentencing. We also deny the State's oral motion to stay this opinion.
FACTS I. Arrest
On March 20, 2002, Tacoma Police Officers Kevin Lorberau and Michael Sbory saw a car run a red light. The officers stopped the car and identified the driver as Falisity Hughley and the front seat passenger as Shawn Sherrod. Hughley told the officers that she did not have a driver's license and that the car belonged to Sherrod. After the officers confirmed that Sherrod was the registered owner and that Hughley's license was suspended, Lorberau arrested Hughley.
Incident to Hughley's arrest, Sbory searched the car. Underneath the front passenger seat, he found a handgun with the butt end pointing toward the front of the car; the gun's magazine contained ammunition. Sbory put the gun in a paper sack.
Sbory requested a fingerprint analysis, but no latent prints were found.
The officers ran a check on Sherrod, learned that he was not allowed to possess a weapon, and arrested him. Sbory also conducted a records check on the registered owner of the gun, but the check revealed `no record.'
Hughley told the officers the gun belonged to her, she had gotten it from a friend two years earlier, and she had put it in the car earlier in the day. But when Sbory told Hughley that the gun was a new model, Hughley said maybe she had gotten it a year ago.
The State charged Sherrod with one count of first-degree unlawful possession of a firearm.
II. Trial
At trial, Hughley changed her story a third time, testifying that she had gotten the gun one to two weeks before the traffic stop. She further testified that (1) she had not told Sherrod that she had a gun in the car; (2) she knew at the time of the stop that Sherrod was not supposed to possess a firearm; and (3) the gun was for protection, even though she would not have been able to reach it from the driver's seat, where she was sitting. Moreover, Hughley was unable to locate the slide and the safety on the gun, and she did not know its make or model.
Sherrod testified that he had bought the car in November 2001 and that he had last driven it a couple of days before the traffic stop. He stipulated that he was prohibited from possessing firearms based on a prior conviction for a serious offense. And he denied knowing that Hughley, his girlfriend, had put a gun in the car.
Sherrod proposed the following jury instruction on possession:
Possession means having a pistol, 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.
A person is not guilty of possession of a weapon if the possession is unwitting. Possession of a weapon is unwitting if a person did not know that the weapon was in his possession.
Instruction No. 1, Clerk's Papers (CP) at 7. The court's possession instruction omitted the second paragraph and added the following sentence to the first paragraph of Sherrod's proposed instruction: `Dominion and control need not be exclusive to establish constructive possession.' CP at 99. Report of Proceedings (RP) at 110.
The trial court instructed the jury as follows:
Possession means having a pistol, 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. Dominion and control need not be exclusive to establish constructive possession. Instruction No. 8, CP at 19.
The trial court's `to convict' instruction informed the jury that knowledge is an element of unlawful possession of a firearm. The trial court also gave the following `knowledge' instruction: `A person commits the crime of Unlawful Possession of a Firearm in the First Degree when he has previously been convicted of a serious offense and knowingly owns or knowingly has in his possession or knowingly controls any firearm.' Instruction No. 5, CP at 16.
During closing, the State argued that the case was `all about' whether Sherrod knew the gun was in the car and whether the evidence proved Sherrod knowingly possessed the firearm by constructive possession. Sherrod argued that the sole issue was whether the State had proven that he knowingly had the gun in the car.
Shortly after the jury began deliberating, it posed the following question: `Constructive possession can there be dominion and control over the item, but still not knowing the firearm is there.' After consulting with the parties, the trial court instructed the jury to read the instructions as a whole. Soon thereafter, the jury informed the court that it was having difficulty reaching a verdict. The trial court ordered the jury to recess and to return the following day. Approximately 20 minutes after deliberations resumed, the jury returned a guilty verdict.
III. Motion for New Trial and Sentencing
Sherrod moved for a new trial, arguing that the jury had been confused by the court's instruction defining `possession.' The trial court denied the motion.
At sentencing, Sherrod argued that his 1994 and 1995 juvenile convictions had `washed out' and, therefore, could not be included in his offender score. The trial court disagreed, calculated his offender score as 5.5, with a standard sentencing range of 41-54 months, and sentenced him to 48 months of incarceration. Sherrod appeals.
See former RCW 9.94A.030(12)(b) (1996).
At oral argument, the State asked that we stay our decision pending the Supreme Court's issuance of its decision in In re Personal Restraint Petition of LaChapelle, S.Ct. No. 73794-I, argued on February 24, 2004. Sherrod opposed the stay. We deny the State's request to stay and proceed to render our opinion.
ANALYSIS I. Jury Instructions A. Standard of Review
Jury instructions must be read as a whole; a specific requested instruction need not be given if the subject matter is adequately covered elsewhere in the instructions. State v. Ng, 110 Wn.2d 32, 41, 750 P.2d 632 (1988). Such is the case here.
The number of instructions given on any point generally rests in the trial court's discretion and the court has considerable discretion in determining how the instructions will be worded. State v. Ellison, 36 Wn. App. 564, 576, 676 P.2d 531, review denied, 101 Wn.2d 1010 (1984); State v. Dana, 73 Wn.2d 533, 536, 439 P.2d 403 (1968). Instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and properly inform the jury of the applicable law. State v. Irons, 101 Wn. App. 544, 549, 4 P.3d 174 (2000).
B. Unlawful Firearm Possession
To convict Sherrod of unlawful possession of a firearm, the State had to prove that he knowingly had a firearm in his possession or his control and that he had previously been convicted of a felony. 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)). Sherrod stipulated that he had previously been convicted of a felony. Thus, we focus on the knowledge and possession elements.
Sherrod argues that Instruction No. 8, which defined `possession,' was flawed for two reasons: (1) It did not include the element of knowledge, and (2) it stated that dominion and control need not be exclusive to establish constructive possession. We address each argument in turn.
1. Knowledge
Sherrod first argues that (1) the trial court erroneously omitted his requested language on unwitting and unknowing possession from Instruction No. 8; (2) it was critical for the jury to understand that constructive possession requires knowledge of a firearm's presence; and (3) his proposed instruction would have required that, in order to find him guilty of constructively possessing it, the jury would have to find that he knew the firearm was in the car.
The court's instructions, taken as a whole, adequately informed the jury that it must find that Sherrod knew the gun was in the car. The court's `to convict' instruction stated that the jury had to find that Sherrod `knowingly had a firearm in his possession or control.' Another instruction required that, in order for Sherrod to be found guilty, he knowingly had to own, to have in his possession, or to control a firearm.
We hold that the trial court's instructions appropriately instructed the jury on the element of knowledge and allowed Sherrod to argue his lack-of-knowledge defense.
2. Possession
Unwitting possession is an affirmative defense, which the defendant must prove. City of Kennewick v. Day, 142 Wn.2d 1, 11, 11 P.3d 304 (2000). Sherrod contends that because his proposed instruction deleted that portion of the pattern jury instruction stating that the defendant must prove the possession was unwitting, `The State would still have carried the burden of proof beyond a reasonable doubt that his possession was unwitting or unknowing[.]' To prove the crime charged, however, the State had to prove only that Sherrod's possession was knowing. That proposition was in the other instructions, which we read as a whole. Therefore, we hold that the trial court did not err.
Sherrod argues further that the jury's question about constructive possession shows its confusion over the element of knowledge and its misinterpretation of Instruction No. 8. A jury's question cannot be used to impeach its verdict. Ng, 110 Wn.2d at 42. Questions from the jury are not final determinations; rather, the jury's decision is contained exclusively in its verdict. Ng, 110 Wn.2d at 43 (citing State v. Miller, 40 Wn. App. 483, 489, 698 P.2d 1123, review denied, 104 Wn.2d 1010 (1985)). We cannot use the jury's question to conclude that it misinterpreted the court's instructions. We find no reversible error in the trial court's refusal to include Sherrod's requested unwitting possession language in Instruction No. 8.
C. Exclusive Dominion and Control
Sherrod next argues the trial court erred by adding this sentence to Instruction No. 8: `Dominion and control need not be exclusive to establish constructive possession.' CP at 19. He contends that this language was prejudicial because it informed the jury it could find him guilty if it found that he had dominion and control over the gun even though he had no knowledge of its presence. We disagree.
The language that Sherrod challenges accurately stated the law. The trial court's instruction did not eliminate the State's burden of proving knowing possession or prevent Sherrod from arguing that he had no knowledge of the gun. Again, we find no reversible error in the trial court's instruction.
See Turner, 103 Wn. App. at 522 (exclusive control by the defendant is not required to establish constructive possession); State v. Porter, 58 Wn. App. 57, 63 n. 3, 791 P.2d 905 (1990) (citing with approval instruction ending with statement that dominion and control does not have to be exclusive to establish constructive possession).
II. Sufficiency of Evidence
Sherrod next argues that the evidence was insufficient to support his conviction. Evidence is sufficient if, when viewed in the light most favorable to the prosecution, it permits a rational trier of fact to find each essential element of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Credibility determinations are for the trier of fact. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
As we have previously explained, the State had to prove that Sherrod knowingly had a firearm in his possession or control and that he had previously been convicted of a felony. Turner, 103 Wn. App. at 520. Sherrod stipulated to a prior felony conviction. The evidence was undisputed that he did not have the gun in his actual possession. See State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994) (actual possession occurs when the firearm is in the personal custody of the person charged with possession). The only issue, therefore, was whether there was sufficient evidence to establish his constructive possession of the gun. We hold that there was.
The State may establish constructive possession by showing that the defendant had dominion and control over the firearm or over the premises (including a vehicle) where the firearm was found. State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d 1214 (1997). Exclusive control is not required: `Another person claiming ownership is only one factor in evaluating whether the defendant has constructive possession.' Turner, 103 Wn. App. at 522. While close proximity to the firearm is not enough to establish dominion and control, proximity is one factor to consider. Turner, 103 Wn. App. at 522-23 (discussing State v. Mathews, 4 Wn. App. 653, 658, 484 P.2d 942 (1971)).
The ability to reduce an object to actual possession is another aspect of dominion and control. Turner, 103 Wn. App. at 521; Echeverria, 85 Wn. App. at 783. No single factor is dispositive in determining dominion and control; the totality of the circumstances must be considered. State v. Collins, 76 Wn. App. 496, 501, 886 P.2d 243, review denied, 126 Wn.2d 101 (1995).
Sherrod turned 15 on July 8, 1995, which was before the effective date of the 1997 SRA Amendment. None of his prior offenses was a sex offense or a serious violent offense, which are excepted from the normal `wash out' rules. See Jones, 88 P.3d at 431.
The evidence shows that (1) Sherrod owned and had recently driven the car in which the handgun was found; (2) Hughley, Sherrod's girlfriend, gave conflicting accounts about when she had allegedly acquired the gun; and (3) other evidence supports the jury's likely conclusion that the gun belonged to Sherrod, not Hughley. For example, the gun was found with its butt protruding out from under the passenger's seat where Sherrod was sitting, easily within his reach; whereas Hughley was unfamiliar with how the gun worked. Taking all of the circumstances together, we hold that the evidence is sufficient to support Sherrod's conviction.
III. Motion for New Trial A. Standard of Review
A new trial in a criminal proceeding is required only when the defendant has been so prejudiced that nothing short of a new trial can insure that he or she will be treated fairly. State v. Bourgeois, 133 Wn.2d 389, 406, 945 P.2d 1120 (1997). Denial of a motion for a new trial is within the discretion of the trial court, which we will reverse only for abuse of discretion. State v. Copeland, 130 Wn.2d 244, 294, 922 P.2d 1304 (1996). An abuse of discretion occurs when no reasonable judge would have made the same decision. Bourgeois, 133 Wn.2d at 406. Such is not the case here.
B. Alleged Jury Confusion
Sherrod contends that the trial court should have granted his motion for a new trial because it improperly instructed the jury on constructive possession and, as a result, the jury was confused about whether it needed to find knowing possession in order to convict.
As we have already held, the trial court properly instructed the jury, and the jury's question cannot be used to impeach its verdict. Here, as in Ng, the jury's question does not create an inference that the entire jury was confused or that any confusion remained before the jury reached its final verdict. See Ng, 110 Wn.2d at 43. We hold that the trial court did not abuse its discretion in denying Sherrod's motion for a new trial.
IV. Offender Score
Finally, Sherrod argues that the trial court erred in calculating his offender score by including offenses that he had committed before he turned age 15. Sherrod committed the offenses at issue in 1994 and 1995, before turning 15 on July 8, 1995. He turned 18 in 1998.
Until 1997, the Sentencing Reform Act (SRA) provided that juvenile offenses committed before an offender turned 15 were not included in a subsequent offender score. See State v. Smith, 144 Wn.2d 665, 670-71, 30 P.3d 1245 (2001) (citing former RCW 9.94A.030(12)(b) (1996)). In an amendment that took effect on July 1, 1997, the Legislature eliminated this `wash-out' provision. Laws of 1997, ch. 338, sec. 2 (1997 Amendment). The Washington Supreme Court has held that this amendment applies prospectively only and cannot be used to revive juvenile offenses that had already washed at the time of its enactment. Smith, 144 Wn.2d at 674-75 (citing State v. Cruz, 139 Wn.2d 186, 985 P.2d 384 (1999)).
The State maintains that the trial court properly included Sherrod's 1994 and 1995 juvenile adjudications in his offender score because Sherrod was 17, and not yet subject to adult sentencing laws, when the SRA was amended in 1997 to require all juvenile offenses to be included in an offender score. We disagree.
In 2002, the Legislature expressly provided that sentencing courts must include previously `washed out' prior convictions in offender score calculations where the defendant committed the current offense (for which he is being sentenced) on or after June 13, 2002 (the effective date of the relevant amendments). State v. Varga, 151 Wn.2d 179, 190-91, 86 P.3d 139 (2004) (citing Laws of 2002, ch. 107, §§ 2(13), 3(18), and 4). In Varga, the Court cited Cruz and Smith as the state of the law before the effective date of these amendments. See Varga, 151 Wn.2d at 191-93; see also In re Personal Restraint Petition of Jones, Wn. App., 88 P.3d 424, 431 (2004).
Reading these decisions together, we conclude that because Sherrod committed his current crime on March 20, 2002, the offenses that he committed before age 156 `washed out.' See Jones, 88 P.3d at 431. Therefore, it was error to use them in computing his offender score for sentencing in the instant case. Sherrod's 1994 and 1995 juvenile offenses erroneously contributed 2.5 points to his offender score of 5.5. See RCW 9.94A.525(7). Accordingly, we remand for resentencing using the correct offender score of three.
This score includes one point for each of Sherrod's two prior adult convictions and one point for his 1996 juvenile adjudication for first degree robbery. Although the trial court held that this offense and a theft that Sherrod committed on the same date counted as one offense, they count as one point instead of 1/2 point because robbery is a violent offense. See RCW 9.94A.525(7) and RCW 9.94A.030(45); see also RCW 9.94A.525(5)(a)(i) (if court finds that prior offenses count as one, the offense that yields the highest offender score is used).
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.
MORGAN, J., and QUINN-BRINTNALL, C.J., concur.