Opinion
No. 31688-9-II
Filed: April 12, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No. 04-1-00274-5. Judgment or order under review. Date filed: 04/19/2004. Judge signing: Hon. Roger a Bennett.
Counsel for Appellant(s), John A. Hays, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), Alan Edward Harvey, Clark County Prosecutors Office, 1200 Franklin St, PO Box 5000, Vancouver, WA 98666-5000.
Justin David Taylor appeals his convictions of attempting to elude a pursuing police vehicle with a firearm enhancement and first degree unlawful possession of a firearm. He argues that (1) the jury instructions for the firearm enhancement were inadequate under State v. Holt; (2) the evidence was insufficient to prove unlawful possession of a firearm; (3) the trial court erred by imposing exceptional sentences without entering findings of fact regarding the aggravating factors; and (4) the alleged exceptional sentences are invalid under Blakely v. Washington. We affirm the convictions, but remand for correction of the judgment and sentence.
119 Wn. App. 712, 82 P.3d 688 (2004).
U.S. ___, 124 S. Ct. 2531, 159 L.Ed.2d 403 (2004).
Facts
The State charged Taylor with attempting to elude a pursing police vehicle and first degree unlawful possession of a firearm. The State alleged that Taylor had committed the eluding offense while armed with a firearm.
The State also charged Taylor with second degree unlawful possession of a firearm. The trial court later dismissed this charge, and it is not at issue on appeal.
At trial, deputies testified that following a brief pursuit, which ended when Taylor lost control of the car he was driving and skidded across a lawn into a parked car, Taylor opened the driver's side door, jumped out of the car, and fled on foot. About one hour later, a K-9 unit located Taylor hiding in the brush about a quarter of a mile from the car.
Noticing another person in the car, the deputy involved in the pursuit did not follow Taylor when he fled. Instead, he watched the passenger, Amanda Green, and ordered her out of the car. Although Green appeared confused, agitated, and frantic, she eventually got out. The deputy observed her from the time the car stopped, and he did not see her throw anything out of the driver's side of the car.
After securing Green, the deputy discovered a loaded .38 caliber revolver on the ground outside the driver's door. The gun was resting on top of a skid mark made by the car and it was dry even though rain had been falling. The deputy testified that from his earlier vantage point, he was unable to see Taylor drop or throw anything out of the car.
At trial, both Taylor and Green denied any knowledge of the gun. Green also testified that she had not seen Taylor with the gun and that she did not see him throw anything out of the car. No fingerprints were found on the gun or the ammunition.
Kelly Kilmer, Taylor's cousin's girlfriend, testified that her boyfriend had purchased the car and given it to her. She had loaned the car to Taylor on the night of the incident. She did not notice Taylor carrying a weapon that night. She also testified that generally only she and her boyfriend drove the car. After being shown a photograph of the gun, she testified that she had never seen the gun and that she had never seen her boyfriend with the gun.
After the parties rested, the trial court provided the jury with the following instructions related to the firearm enhancement:
For purposes of a special verdict, the State must prove beyond a reasonable doubt that the defendant was armed with a firearm at the time of the commission of the crime in Count 1.
A `firearm' is a weapon or device from which a projectile may be fired by an explosive such as gunpowder. In order to qualify as a firearm, a weapon must be functional.
Clerk's Papers (CP) at 35 (Court's Instruction 12).
The term `armed with' as used in these instructions means the firearm was readily or easily accessible and available for use.
CP at 36 (Court's Instruction 13).
The jury convicted Taylor of eluding and unlawfully possessing a firearm. The Jury answered `yes' to the special verdict on the firearm enhancement.
At the sentencing hearing, the court found that the standard range for the eluding offense was 14 to 18 months and that the standard range for the unlawful possession offense was 67 to 89 months. It also determined that Taylor was subject to an 18-month sentence for the firearm enhancement on the eluding charge and that the enhancement was to run consecutive to the other sentences. In determining the final sentences, the court said:
THE COURT: . . . Now I'm going to pronounce a sentence. The — the sentence will be 36 months on Count One, which is the — well, let's figure out how this works now. The — he only has a firearm finding —
[DEFENSE COUNSEL]: On the Count One —
THE COURT: — but it has to run consecutive with his sentence on the other charge —
[DEFENSE COUNSEL]: Correct.
THE COURT: — even though the two run concurrent.
[DEFENSE COUNSEL]: Correct. There has to be the first — it has to be served first.
THE COURT: So 36 months on the Attempt to Elude. And then the range of 67 to 89 months on the Unlawful Possession of a Firearm, and to that we add 18 months, which results in a range of 85 to 107 months. That — that sentence, then, would run concurrent with his 30 —
[DEFENSE COUNSEL]: No, I think the way it works, Your Honor —
THE COURT: — 36 months.
[DEFENSE COUNSEL]: — I think it would be 18 months on the Attempt to Elude, concurrent with the 67 to 89 on the unlawful possession. So basically those two are subsumed. And then it's 18 on top of the —
THE COURT: Okay, well —
[DEFENSE COUNSEL] — 66.
THE COURT: — but the numbers come out the same.
[DEFENSE COUNSEL]: Right.
THE COURT: He has a range of 85 to 107.
[DEFENSE COUNSEL]: Right, right.
THE COURT: The State's asking for 107. Defense is asking for the mid-point; is that what —
[DEFENSE COUNSEL]: That's correct —
THE COURT: — you said?
[DEFENSE COUNSEL]: — Your Honor.
THE COURT: It was a very unremarkable Attempt to Elude, I'll say that. Low speed. He did go across a yard and run into a car. But I didn't see a lot of endangering of lives like we see sometimes, 100-mile-an-hour chases.
And I'm looking at everything all together.
[DEFENSE COUNSEL]: Uh-huh.
THE COURT: I realize I've already given him the high end of the range —
[DEFENSE COUNSEL]: Right.
THE COURT: — on the Attempt to Elude. But as far as the possession of a firearm, the fact that he does have a prior conviction for that is bothersome. It's not something that would lead to an exceptional sentence outside the range, but 100 months will be the sentence.
IV Report of Proceedings at 337-39.
Taylor's judgment and sentence shows a 36-month sentence on the eluding count and a 100-month sentence on the unlawful possession of a firearm count. The court did not mark the box indicating that it was imposing an exceptional sentence. Additionally, apart from noting that there was a special verdict on the firearm enhancement, the judgment and sentence does not mention the 18-month sentence.
Taylor appeals.
Discussion I. Firearm Enhancement: Nexus Requirement
Taylor first argues that under Holt, the jury instructions described above were inadequate because they failed to require the jury to find a `nexus' between the defendant, the firearm, and the underlying offense. Our Supreme Court recently rejected the Holt analysis, concluding that instructions similar to the ones the court gave here were adequate. Accordingly, this argument fails.
Br. of Appellant at 10-15.
State v. Willis, ___ Wn.2d ___, 103 P.3d 1213, 1216-17 (2005). In Willis, the court instructed the jury that (1) "[T]he State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the commission of the crimes charged in count one . . . and/or count three," and (2) the term `armed' meant "[a firearm was] readily available for offensive or defensive purposes." Willis, 103 P.3d at 1215(citing Verbatim Report of Proceedings at 148; Clerk's Papers at 51).
Taylor does not argue that the evidence was insufficient to prove there was a nexus between him, the offense, and the firearm under these instructions. To the extent he is arguing that the evidence was insufficient to support the enhancement because it failed to prove he possessed the firearm, we address this issue below.
II. Sufficiency
Taylor next contends that the evidence was insufficient to prove the first degree unlawful possession of a firearm charge, arguing that the evidence did not show that he knowingly possessed the firearm. We disagree.
Taylor stipulated to having a prior conviction for a serious felony offense.
Evidence is sufficient if a rational trier of fact viewing it in the light most favorable to the State could find beyond a reasonable doubt each element of the crime charged. Circumstantial evidence and direct evidence are equally reliable, and we defer to the trier of fact, here the jury, on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence.
Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).
State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
Taylor argues that the evidence shows only that the deputy found the handgun on the ground outside the open door of the car after Taylor had jumped out. He asserts that this is not sufficient to show that he possessed the gun because it was equally likely that Green possessed the gun and threw it out of the car or that the gun was in the car and he knew nothing about it.
Taylor recognizes that the evidence was sufficient to show that the gun was not on the ground before he opened the car door because the deputy testified that the gun was dry when he found it.
Green testified that the gun was not hers. The deputy testified that he did not see her throw anything out of the driver's side of the car. Kilmer testified that only she and Taylor's cousin drove the car, that she did not recognize the gun, and that she had never seen Taylor's cousin with the gun. Given that the gun appeared next to the driver's door as Taylor fled the car, the evidence was sufficient to allow a rational trier of fact to find beyond a reasonable doubt that Taylor had possessed the gun, and that he dropped it or threw it out of the car as he fled. Accordingly, this argument fails.
III. Exceptional Sentences
Finally, Taylor argues that his exceptional sentences cannot stand because (1) the trial court failed to enter findings on the aggravating factors, and (2) the trial court rather than a jury made the factual determinations supporting the exceptional sentences. For either of these arguments to succeed, Taylor must first show that the trial court imposed an exceptional sentence.
Although the judgment and sentence appears to show that the court imposed sentences outside the standard sentencing range for each offense, the transcript of the sentencing hearing reveals that the trial court intended to impose standard range concurrent sentences for each offense and an 18-month firearm enhancement running consecutive to those sentences for a total term of confinement of 100 months. There is nothing in the record suggesting that the trial court intended to impose exceptional sentences. Accordingly, we reject Taylor's exceptional sentence arguments.
Even though Taylor's exceptional sentence arguments fail, the judgment and sentence clearly does not reflect the trial court's intent. At best, the sentence stated in the judgment and sentence appears to impose two enhancements, one on each substantive count. Accordingly, we affirm the convictions and remand for correction of the judgment and sentence to reflect the two standard range sentences and the firearm enhancement the court intended to impose.
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.
BRIDGEWATER, J. and QUINN-BRINTNALL, C.J., Concur.