Opinion
67407-2-I
09-24-2012
STATE OF WASHINGTON, Respondent, v. JUSTIN ALONZO WATKINS, Appellant.
UNPUBLISHED OPINION
Schindler, J.
A jury convicted Justin Alonzo Watkins of unlawful possession of a firearm in the first degree. Watkins argues he is entitled to reversal because the court erred in failing to give a unanimity jury instruction and insufficient evidence supports the conviction under each alternative of RCW 9.41.040(1)(a). We affirm.
Watkins does not appeal his conviction for misdemeanor harassment.
FACTS
Joe's Mart is a grocery store located on Second Avenue between Pike and Pine Streets in Seattle. Zolboo Lkhundev works at Joe's Mart. Lkhundev said that at about 10:00 p.m. on June 1, 2010, Justin Alonzo Watkins, Dominique Trice, and others were standing near the entrance to Joe's Mart. Lkhundev testified that Watkins was "being rude, calling people names" as they passed by, and preventing customers from entering the store.
Lkhundev went outside and asked Watkins to "move from the store, in front of the store, and go somewhere else." Watkins asked if Lkhundev " 'want[ed] to go to the parking lot' " to fight and told him, " 'I will fuck you up.' "
When Lkhundev did not respond, Watkins said, " 'I have a burner.' " Lkhundev understood "burner" as slang for a gun. Watkins then tried to reach into Trice's purse, telling Lkhundev, " 'I will shoot your ass with it.' " When Trice pulled the purse away from Watkins, saying "no" and " 'you can't do it, ' " the other people with Watkins yelled at him to move on. Watkins said, " 'I don't care. I can do whatever I want. . . . This is my hood.' " Frightened that Watkins was going to shoot him, Lkhundev went back into the store and called 911.
Michael Hidalgo works as a bouncer at a nightclub down the block from Joe's Mart. After Hidalgo heard people "yelling and arguing" outside Joe's Mart, he walked to the grocery store. Hidalgo testified that he heard Watkins tell a woman, " 'Give me my burner, ' " and saw him "trying to dig through some lady's purse." Hidalgo called 911.
Police officers responded and stopped Watkins and Trice. The officers found a Glock Model 19 semiautomatic pistol and a holster in Trice's purse.
The State charged Watkins with unlawful possession of a firearm in the first degree and felony harassment. The defense theory at trial was that Watkins neither possessed nor controlled the gun because Trice stopped Watkins from taking the gun out of her purse. The State called a number of witnesses, including Lkhundev, Hidalgo, and a latent print examiner for the Seattle Police Department, Deborah Goodfellow.
Defense counsel also argued there was no evidence that Watkins owned the gun.
The court instructed the jury on the elements of the crime of unlawful possession of a firearm in the first degree. Jury Instruction No. 18 states, in pertinent part:
To convict the defendant of the crime of Unlawful Possession of a Firearm in the First Degree as charged in Count II, each of the following elements of the crime must be proved beyond a reasonable doubt: . . . That on or about the 1st day of June, 2010, the defendant knowingly owned a firearm or knowingly had a firearm in his possession or control.
A jury instruction defines "possession" as follows:
The jury convicted Watkins of first degree unlawful possession of a firearm and the lesser included offense of misdemeanor harassment. The court imposed a standard range sentence.
ANALYSIS
Watkins seeks reversal of his conviction for unlawful possession of a firearm in the first degree on the grounds that the trial court erred by failing to instruct the jury that it must agree on the means by which Watkins committed unlawful possession of a firearm in the first degree. We disagree.
In State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988), the Supreme Court held that a unanimity instruction is only required in a case when the State charges "multiple acts, " but not "where a single offense may be committed in more than one way." Kitchen, 110 Wn.2d at 410.
In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. . . . In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. . . .
In multiple acts cases, on the other hand, several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt.Kitchen, 110 Wn.2d at 410-11.
(Emphasis in original) (citations omitted).
Here, the State charged Watkins with a single offense, unlawful possession of a firearm in the first degree, that may be committed in more than one way. Under RCW 9.41.040(1)(a), a person is guilty 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 having previously been convicted . . . of any serious offense as defined in this chapter."
Watkins argues insufficient evidence supports the conviction of unlawful possession of a firearm in the first degree by each means under RCW 9.41.040(1)(a)—ownership, possession, or control of a firearm—because the State failed to prove either that he constructively possessed the gun or controlled the gun.
Watkins does not argue there was insufficient evidence to support the conviction for unlawful possession on the basis of the "ownership" alternative under RCW 9.41.040(1)(a).
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). "When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Credibility determinations are for the trier of fact and are not subject to review. See State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
To convict Watkins of possession of a firearm in the first degree, the State must prove that he knowingly had a firearm in his possession or control. State v. Turner, 103 Wn.App. 515, 520-21, 13 P.3d 234 (2000). Possession may be actual or constructive. Turner, 103 Wn.App. at 520. Close proximity alone is not enough to establish constructive possession—other facts must enable the trier of fact to infer dominion and control. Turner, 103 Wn.App. at 521. Dominion and control need not be exclusive to establish constructive possession. Turner, 103 Wn.App. at 520-21. Constructive possession is established by examining the totality of the circumstances and determining if there is substantial evidence from which a jury can reasonably infer the defendant had dominion and control over the item. State v. Jeffrey, 77 Wn.App. 222, 227, 889 P.2d 956 (1995).
Watkins argues that because Trice pulled the purse away and he did not actually possess the gun, he also lacked the ability to possess the gun. Viewing the evidence in the light most favorable to the State, substantial evidence supports the determination that Watkins had constructive possession of the gun. Lkhundev testified that Trice was standing next to Watkins when he told Lkhundev, " 'I have a burner.' " Lkhundev said that Watkins "reached in [Trice's] purse . . . reaching towards it." Hidalgo testified that Watkins was "trying to dig through" the purse as he said, " 'Give me my burner.' " Here, a rational trier of fact could reasonably infer that Watkins possessed or controlled the gun that was clearly within his reach. See State v. Howell, 119 Wn.App. 644, 650, 79 P.3d 451 (2003) ("immediate access" not an element of crime of unlawful possession of a firearm).
Next, Watkins cites State v. Enlow, 143 Wn.App. 463, 178 P.3d 366 (2008), to argue that the absence of his fingerprints on the gun is "significant." In Enlow, the police found Enlow hiding in the bed of a truck that "contained numerous items, including some items used to make methamphetamine." Enlow, 143 Wn.App. at 466. Although the court referred to the absence of Enlow's fingerprints on the items containing methamphetamine as "significant[], " Enlow, 143 Wn.App. at 469, it reversed the conviction for manufacture of methamphetamine because "Enlow was not in direct or constructive possession of the truck." Enlow, 143 Wn.App. at 466.
(Emphasis added.)
Here, the latent print examiner testified that because the Glock "prohibits any fingerprints from actually attaching and being seen, " the absence of fingerprints was expected.
Q. Now, did you find anything . . . that led you to believe there was a print on [the gun]?
A. No, I did not.
Q. And is that out of the ordinary, based upon your training?
A. No, it is not. The purpose -- I believe, this is a Glock, is very textured. So, it prohibits any fingerprints from actually attaching and being seen on it. And I believe a lot of times guns will be treated with a certain chemical, and it acts as a barrier for fingerprints. So, as far as records are concerned, it's not unusual to not be able to get fingerprints off guns.
. . . .
Q. [I]f a forensic item is left behind on an item, is that compromised by external things around it?
A. I would say yes.
Q. For example, if this [gun] were kept in a case like [the holster] -- . . . Would something like this potentially compromise or have a tendency to -
. . . .
A. I can speak for fingerprints.
Q. That's what I am asking.
A. It very well could wipe anything off of that.
Q. How would that occur? It may be obvious, but tell us.
A. By the rubbing against it.
Sufficient evidence supports the finding that Watkins had dominion and control over the firearm for purposes of the "possession" and "control" alternatives under RCW 9.41.040(1)(a). We hold the court did not err in failing to give a unanimity jury instruction.
Affirmed.
Possession means 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.
Proximity alone without proof of dominion and control is insufficient to establish constructive possession. Dominion and control need not be exclusive to support a finding of constructive possession.
In deciding whether the defendant had dominion and control over an item, you are to consider all the relevant circumstances in the case. Factors that you may consider, among others, include whether the defendant had the ability to take actual possession of the item, and whether the defendant had the capacity to exclude others from possession of the item, and whether the defendant had dominion and control over the premises where the item was located. No single one of these factors necessarily controls your decision.