IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87677-5-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION CODY ALLEN SMITH,
Appellant.
SMITH, J. — Following the fatal shooting of Soohui Kim, the State charged
Cody Smith with felony murder in the first degree, assault in the first degree, and
unlawful possession of a firearm. The felony murder charge was predicated on
robbery or attempted robbery. The jury convicted Smith on all counts.
Smith appealed, claiming (1) insufficient evidence existed to support his
first degree felony murder conviction, (2) the jury instructions relieved the State of
its burden of proof, (3) his right to jury unanimity was violated, (4) the prosecutor
engaged in prosecutorial misconduct, (5) the trial court erred by giving the jury
headphones, and (6) his conviction for unlawful possession of a firearm violated
his Second Amendment rights. Finding no error, we affirm.
FACTS
Background
Early in the morning on September 22, 2021, “Mike Stereo,” later identified
as Michael Deda, texted Soohui Kim to arrange for the purchase of No. 87677-5-I/2
approximately $1,200 worth of methamphetamine. Deda and Kim agreed to
meet at an apartment building in Tacoma for the exchange. Video surveillance
footage from an apartment across the street shows Kim driving slowly past the
parking lot where she and Deda were scheduled to meet. The video then
captures two men, later identified as Michael Freeman and Cody Smith, walking
past the parking lot. About this same time, Deda called Smith and said, “She
went right by me. . . . She should be on her way.” Shortly after Freeman and
Smith walked by, Kim pulled into the parking lot and texted Deda to let him know
she had arrived.
A couple minutes later, Freeman and Smith walked back toward the
parking lot. They paused for a few seconds behind a bush and then approached
Kim’s vehicle. Smith went to the passenger side door, where Kim’s friend, Eric
Pula, was sitting, and Freeman went to the driver’s side. In a subsequent
interview with law enforcement, Pula told police Smith looked at him and said, “I
know your face.” Within seconds of Freeman and Smith approaching the vehicle,
they fired five shots from two different guns. One of the bullets struck Kim in the
chest and another grazed Pula.
As Freeman and Smith continued to shoot, Kim sped out of the parking
lot. A few blocks away, her car rolled to a stop against a telephone pole. Before
the car came to a complete stop, Pula jumped out and ran to a nearby gas
station to call 911. Law enforcement arrived on the scene and found Kim still in
the car, unresponsive. She was pronounced dead shortly thereafter.
2 No. 87677-5-I/3
Law enforcement connected the telephone number Kim had texted about
the drug deal with Michael Deda. Police arrested Deda and, after listening to
Deda’s jail calls, identified Michael Freeman as another potential suspect.
Freeman’s girlfriend lived a few blocks away from the location of the shooting,
and Smith resided in her detached garage. Surveillance video from Freeman’s
girlfriend’s house, recorded about 10 minutes after the shooting, depicts
Freeman, Deda, and Smith meeting at the residence. Who is speaking to whom
is not clear, but one individual asks, “Did anybody see the car?” and another
individual responds, “No.”
Police arrested Smith and charged him with felony murder in the first
degree, felony murder in the second degree, first degree assault, unlawful
possession of a firearm in the second degree, attempted robbery in the first
degree, and conspiracy to commit robbery in the first degree.1
During trial, the Ring doorbell2 video of Freeman, Deda, and Smith
discussing whether anyone saw the car was admitted as an exhibit and
published. Smith did not object. During closing arguments, the State replayed
the video and suggested it was Deda who asked the question and Smith who
responded, but the prosecutor noted he was “not positive” and “[i]t could be the
other guy.” The prosecutor encouraged the jurors to watch the video again in the
jury room, noting the sound quality in the courtroom distorted the speech.
1 All charges except unlawful possession of a firearm contained a firearm sentencing enhancement. 2 A Ring doorbell is a security device that combines a doorbell with a security camera for live video streaming.
3 No. 87677-5-I/4
During deliberations, the jury requested headphones to listen to the
exhibit. Smith objected, contending headphones would alter the manner of
viewing and any replaying of the exhibit should occur in open court. After
hearing from both parties, the court permitted the jury’s request for headphones.
The jury also submitted a question to the court asking, “State said something to
the effect of: ‘When Kim arrived at 4541, Mike Deda told someone ‘she’s near,’
and that was Cody’s phone.’ Is there any evidence supporting this statement?”
To which the court replied, “You have received all the evidence in this case.
Please refer to your instructions.” The jury convicted Smith on all charges.
Smith appeals.
ANALYSIS
Sufficiency of the Evidence
Smith claims insufficient evidence of attempted robbery existed to convict
him of murder in the first degree. We find sufficient evidence existed to support
Smith’s conviction.
We review sufficiency of the evidence under the substantial evidence
standard. Dolan v. King County, 172 Wn.2d 299, 310-11, 258 P.3d 20 (2011).
To determine whether substantial evidence was presented, we must view the
evidence in the “light most favorable to the State” and determine whether “any
rational trier of fact could have found guilt beyond a reasonable doubt.” State v.
Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Evidence presented by the
State is considered true and we defer to the trier of fact on issues of witness
credibility, conflicting testimony, and persuasiveness of the evidence. In re Pers.
4 No. 87677-5-I/5
Restraint of Arnsten, 2 Wn.3d 716, 724, 543 P.3d 821 (2024). Circumstantial
evidence is considered as reliable as direct evidence. State v. Cardenas-Flores,
189 Wn.2d 243, 266, 401 P.3d 19 (2017).
To convict Smith of attempted robbery in the first degree, the jury had to
find Smith intended to commit robbery, engaged in an act which was a
substantial step toward the commission of that crime, and in the course of said
crime, caused Kim’s death. Here, Smith’s argument is the evidence presented
was insufficient to prove attempted robbery because the evidence was consistent
with an intention other than robbery, such as revenge or rivalry. Smith claims
without additional evidence, it is just as likely another intent existed.
But whether another intent was possible is not the inquiry for this court.
We look at the evidence presented and determine whether any rational trier of
fact could have found the elements of the crime beyond a reasonable doubt.
Cardenas-Flores, 189 Wn.2d at 265. Here, viewed in the light most favorable to
the State, substantial evidence exists to support a finding of attempted robbery.
The trial court heard testimony and viewed exhibits outlining the sequence
of events from the night of the shooting. Deda reached out to Kim to purchase a
quantity of methamphetamine worth approximately $1,200. Smith knew Kim
would have the drugs in her vehicle when she arrived at the designated location.
Video footage shows Smith and Freeman walking by the parking lot before the
incident, then Deda called Smith and said, “She went right by me. . . . She should
be on her way.” Then, when Smith approached the vehicle, he said to Pula, “I
know your face.” Seconds after, Smith started shooting. At trial, Smith did not
5 No. 87677-5-I/6
present any evidence that he or any of the other defendants had a previous
relationship with Kim or that any animosity existed between the parties.
Based on this evidence, a rational trier of fact could find Smith guilty of
attempted robbery in the first degree beyond a reasonable doubt; therefore, we
conclude substantial evidence existed to support Smith’s conviction.
Jury Instructions
Smith contends his right to jury unanimity was violated when the jury was
instructed on alternative means of committing murder in the first degree, and
insufficient evidence supports one of the alternative means. The State asserts
Smith cannot raise this issue for the first time on appeal and, even if he can, his
right to jury unanimity was not violated. We conclude that the issue can be
raised on appeal, but nevertheless, Smith’s right to unanimity was not violated.
Typically, we do not consider issues not objected to at trial, but manifest
errors affecting a constitutional right may be raised for the first time on appeal.
RAP 2.5(a). The question of jury unanimity concerns issues of constitutional due
process rights under challenged jury instructions. In re Pers. Restraint of
Mulamba, 199 Wn.2d 488, 507, 508 P.3d 645 (2022). Because this issue
implicates Smith’s constitutional rights, Smith may raise it for the first time on
appeal. We view questions of jury unanimity de novo. State v. Armstrong, 188
Wn.2d 333, 339, 394 P.3d 373 (2017).
A defendant has a constitutional right to a unanimous jury verdict. CONST.
Art. I, § 21. When a defendant is charged with a crime that may be committed by
alternative means, jury unanimity as to the means is not required if “substantial
6 No. 87677-5-I/7
evidence supports both alternative means submitted to the jury.” Armstrong, 188
Wn.2d at 340. If sufficient evidence is not presented for the alternative means,
the defendant’s right to jury unanimity is violated. State v. Smith, 159 Wn.2d
778, 783, 154 P.3d 873 (2007).
Determining whether a statute creates an alternative means crime is left to
judicial interpretation, and each case must be decided “on its own merits.” State
v. Owens, 180 Wn.2d 90, 96, 323 P.3d 1030 (2014). Alternative means are not
created simply by structuring a statute into subsections or using the disjunctive
word, “or.” State v. Sandholm, 184 Wn.2d 726, 734, 364 P.3d 87 (2015). To be
alternative means, the acts must be distinct, not merely “minor nuances inhering
in the same act.” Sandholm, 184 Wn.2d at 734.
The alternative means analysis does not apply “[w]hen a statute provides
alternative ways to satisfy each alternative means (i.e., ‘a means within [a]
means’).” State v. Lucas-Vicente, 22 Wn. App. 2d 212, 221, 510 P.3d 1006
(2022) (second alteration in original) (internal quotation marks omitted) (quoting
Smith, 159 Wn.2d at 783)); see also State v. Espinoza, 14 Wn. App. 2d. 810,
818, 474 P.3d 570 (2020) (determining that, even though harassment is an
alternative means crime, the subalternatives within each means were not
alternative means); State v. Hartz, 65 Wn. App. 351, 355, 828 P.2d 618 (1992)
(“[W]e hold that in charging [defendant] with felony murder, the State was not
required to include the elements of the underlying felony or state the specific
means of committing the felony on which it was relying.”). The alternative means
analysis also does not apply to lesser included offenses or attempt. See State v.
7 No. 87677-5-I/8
Boswell, 185 Wn. App. 321, 335, 340 P.3d 971 (2014); RCW 10.61.003 (“Upon
an indictment or information for an offense consisting of different degrees, the
jury may find the defendant not guilty of the degree charged in the indictment or
information, and guilty of any degree inferior thereto, or of an attempt to commit
the offense.”).
RCW 9A.32.030 provides three ways in which a person may commit
murder in the first degree: (1) premeditated intent, (2) extreme indifference to
human life, and (3) felony murder. Felony murder occurs when a person
“commits or attempts to commit the crime of . . . robbery in the first or second
degree . . . and in the course of or in furtherance of such crime or in immediate
flight therefrom, he or she, or another participant, causes the death of a person
other than one of the participants.” RCW 9A.32.030.
Here, Smith asserts his right to jury unanimity was violated because the
jury was instructed on felony murder predicated on the alternative means of
robbery and attempted robbery, and insufficient evidence existed to support a
finding of actual robbery. But robbery and attempted robbery are not alternative
means of committing felony murder in the first degree. See RCW 10.61.003.
While first degree murder is an alternative means crime, robbery and attempted
robbery are subalternatives within a means. Felony murder is the means and
robbery and attempted robbery are alternative ways to satisfy that means;
therefore, robbery and attempted robbery are not alternative means, the State
was not required to produce sufficient evidence for both.
8 No. 87677-5-I/9
Smith relies on In the Pers. Restraint of Knight, 2 Wn.3d 345, 538 P.3d
263 (2023), to argue robbery and attempted robbery are alternative means, but
that interpretation misinterprets the holding in Knight. In Knight, Amanda Knight
was charged with felony murder. 2 Wn.3d at 348. At trial, the State instructed
the jury on felony murder based on robbery, but not felony murder based on
attempted robbery. Id. at 349. The evidence only supported a finding of
attempted robbery, but the jury convicted Knight of felony murder based on
robbery. Id. at 349. The Supreme Court noted, “Felony murder need not be
based on a completed crime. But if it is predicated on an attempted crime, the
jury instructions must so state.” Id. at 354 (citation omitted). The court held
insufficient evidence supported Knight’s conviction and remanded the case to
vacate her sentence. Id. at 362.
Knight is not applicable here, because Knight is not an alternative means
case. The case held that to be convicted of felony murder based on attempted
robbery, attempted robbery must be included in the jury instructions; alternative
means was not at issue. Here, Smith was convicted of attempted robbery, not
robbery, and the State included the elements of attempted robbery in the jury
instructions.
This is also not a multiple acts case, as the State contends is Smith’s
argument. In a multiple acts case, several, distinct acts could form the basis for
the count charged. State v. Bobenhouse, 166 Wn.2d 881, 892, 214 P.3d 907
(2009). When this occurs, the court must either instruct the jury on which act to
rely or the jury must agree on a specific act. State v. Kitchen, 110 Wn.2d 403,
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409, 756 P.2d 105 (1988). Here, as the State correctly points out and Smith
does not dispute, the felony murder charge was predicated on only one act. The
State incorrectly interprets Smith’s argument, which is an alternative means
argument, not a multiple acts argument.
The State presented sufficient evidence for felony murder based on
attempted robbery and included attempted robbery in the jury instructions.
Smith’s right to jury unanimity was not violated.
Prosecutorial Misconduct
Smith contends the State engaged in prosecutorial misconduct when it
expressed an improper opinion based on facts not in evidence. The State claims
their argument was based on reasonable inferences from the evidence. We
agree with the State.
To prevail on a claim of prosecutorial misconduct, a defendant must
establish, “in the context of the record and all of the circumstances of the trial, the
prosecutor’s conduct was both improper and prejudicial.” In the Pers. Restraint
of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). Prejudice is
established “only where ‘there is a substantial likelihood the instances of
misconduct affected the jury’s verdict.’ ” State v. Dhaliwal, 150 Wn.2d 559, 577,
79 P.3d 432 (2003) (quoting State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 546
(1995)). Prosecuting attorneys are permitted wide latitude in their closing
arguments to draw “reasonable inferences from the evidence.” Lucas-Vicente,
22 Wn. App. 2d at 224. But a prosecutor cannot state an opinion that goes to the
ultimate question of the defendant’s guilt. Glasmann, 175 Wn.2d at 706. When
10 No. 87677-5-I/11
a defendant fails to object to improper conduct during trial, it constitutes a waiver
unless the defendant can establish the “misconduct was so flagrant and ill
intentioned that an instruction would not have cured the prejudice.” Glasmann,
175 Wn.2d at 704.
1. Exhibit 124
Smith contends the State’s arguments concerning exhibit 124 were based
on facts not in the record.3 In his opening brief, Smith denies the dialogue in
exhibit 124 is discernable and maintains the State’s reference to what Deda and
Smith said in the video is, therefore, not based on evidence in the record. But in
his reply brief, Smith concedes the exhibit was properly admitted and notes, “It
was up to the jury, not appellate counsel, to decide what, if anything is said.”
However, Smith maintains the State expressed an improper opinion when it
suggested to the jury that the voice on the recording was Smith’s because his
voice was never heard at trial. This argument fails.
The State is allowed to argue reasonable inferences from the evidence
and express opinions, as long it is not an opinion of the defendant’s guilt. The
State’s discussion of the video did not opine as to Smith’s guilt, it only suggested
the voice on the video was Smith’s. The State even clarified it was not positive
the voice was Smith’s—leaving the jury to come to their own conclusion.
Accordingly, the State’s discussion concerning exhibit 124 was not improper.
3 Exhibit 124 is video footage of Freeman, Deda, and Smith, recorded about 10 minutes after the shooting. Who is speaking to whom is unclear, but one individual asks, “Did anybody see the car?” and another individual responds, “No.”
11 No. 87677-5-I/12
2. Jury Question
Smith also claims that, based on its question to the court, the jury was
mistaken about the prosecutor’s argument. But Smith provides no explanation
for how this was prosecutorial misconduct. The jury submitted a question during
deliberations asking, “State said something to the effect of: ‘When Kim arrived at
4541, Mike Deda told someone “she’s near,” and that was Cody’s phone.’ Is
there any evidence supporting this statement?” Smith contends the State never
argued Deda said “she’s near.” While Smith is technically correct the State did
not use the word “near,” the State did present evidence of a phone call from
Deda to Smith where Deda said, “She went right by me. . . . She should be on
her way.”
Smith appears to conflate the jury’s question about this phone
conversation with the conversation in exhibit 124. In his brief, Smith claims the
jury’s question “was apparently a reference to the prosecutor’s argument about
the conversation on Exhibit 124, and the trial court interpreted as such.” Smith
cites to the report of proceedings, but the discussion refers to concerns about the
jury’s request for headphones, not the jury’s question about the phone call
between Deda and Smith.
Whether related to the phone call between Deda and Smith or exhibit 124,
the jury’s question is not evidence of prosecutorial misconduct. The State did not
argue evidence not in the record, and whether the jury misunderstood the State’s
argument does not amount to prosecutorial misconduct. It is the jury’s job to
weigh the evidence and follow the instructions from the court. One could infer
12 No. 87677-5-I/13
from the jury’s question that they were doing precisely that—determining whether
evidence existed to support the State’s argument.
Because the State’s argument was properly based on evidence in the
record, we conclude no prosecutorial misconduct occurred.
Jury’s Use of Headphones
Smith claims the trial court erred when it provided the jury headphones
during deliberations to listen to a video exhibit, because the jurors used the
headphones to ascertain facts not in evidence. Because the headphones were
only used to critically examine the evidence, the trial court did not err.
A trial court’s decision concerning evidentiary issues is reviewed for abuse
of discretion. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997). “A
trial court abuses its discretion when it exercises it in a manifestly unreasonable
manner or bases it on untenable grounds or reasons.” State v. Morgensen, 148
Wn. App. 81, 86–87, 197 P.3d 715 (2008).
It is improper for a court to provide jurors with tools that may be used to
conduct experiments and ascertain evidence not admitted at trial. See State v.
Burke, 124 Wash. 632, 636, 215 P. 31 (1923) (holding it was error to allow the
jury to use a magnifying glass to conduct an experiment and glean additional
evidence from exhibits); Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 137,
750 P.2d 1257 (1988) (concluding it was error for the bailiff to give jurors a
dictionary, allowing them to consider evidence not admitted at trial). But if the
tool is used merely “to assist the jury in understanding or evaluating the evidence
presented at trial,” no error occurred. State v. McCarthy, 178 Wn. App. 90, 100,
13 No. 87677-5-I/14
312 P.3d 1027 (2013); see also State v. Everson, 166 Wash. 534, 536-37, 7 P.2d
603 (1932) (“In using a magnifying glass rather than a reading glass, the only
difference would be the greater magnifying power of the former.”); Tarabochia v.
Johnson Line, Inc., 73 Wn. 2d 751, 757, 440 P.2d 187 (1968) (concluding any
experiments conducted by the jury did not result in new evidence and, therefore,
the experiments were not improper).
Here, Smith insists providing the jury with headphones allowed them to
conduct an experiment and determine facts not in evidence. This argument is
based on Smith’s contention that the dialogue in exhibit 124 could not be
discerned and it was evidence not in the record. But in his reply brief, Smith
concedes the videotape was evidence in the record and it was up to the jury to
determine whether the dialogue was discernable and, if so, what was said.
Smith’s argument concerning the headphones is based entirely on an issue he
conceded.
We conclude the court did not abuse its discretion when it allowed jurors
to use headphones to listen to an admitted exhibit.
Second Amendment
Smith contends his conviction for unlawful possession of a firearm must
be dismissed because a statute restricting firearm possession for all felons is
unconstitutional. The State asserts Smith cannot raise this issue for the first time
on appeal because it is not manifest error, and even if he could, his Second
Amendment rights were not violated. Because prohibiting all felons—including
14 No. 87677-5-I/15
nonviolent felons—from possessing firearms is not unconstitutional, we conclude
Smith’s Second Amendment rights were not violated.
1. RAP 2.5
This court may refuse to review a claim or error not raised in the trial court.
RAP 2.5(a). An exception to this rule is when the claimed error is a “manifest
error affecting a constitutional right.” RAP 2.5(a). “Being charged and convicted
under an unconstitutional statute is a manifest error effecting [sic] a constitutional
right.” State v. Koch, 34 Wn. App. 2d 232, 236, 567 P.3d 653 (2025).
Here, the State contends Smith did not demonstrate an exception under
RAP 2.5(a), therefore he cannot raise a challenge to the constitutionality of
RCW 9.41.040 on appeal. But Smith explicitly claims the applicable statute is
unconstitutional, thereby violating his Second Amendment rights. Because Smith
raises a manifest error affecting a constitutional right, we conclude he did not
waive his claim.
We review constitutional challenges de novo. City of Seattle v. Evans,
184 Wn.2d 856, 861, 366 P.3d 906 (2015). Statutes are presumed
constitutional, and the burden is on the challenger to show unconstitutionality.
Evans, 184 Wn.2d at 861-62. A party raises an “as-applied” challenge when they
claim the statute is unconstitutional only as it applies “ ‘in the specific context of
[their] actions or intended action.’ ” Evans, 184 Wn.2d at 862 (quoting State v.
Hunley, 175 Wn.2d 901, 916, 287 P.3d 584 (2012)). If a statute is
unconstitutional as applied, it “does not invalidate the statute but prohibits its
15 No. 87677-5-I/16
application in that specific context and future similar contexts.” State v. Ross, 28
Wn. App. 2d 644, 646, 537 P.3d 1114 (2023), review denied, 2 Wn.3d 1026
(2024).
The Second Amendment vests in individuals the right to bear arms. See
U.S. CONST. amend. II. But this right is not unlimited. Dist. of Columbia v. Heller,
554 U.S. 570, 626, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). When faced with
a challenge to a firearm regulation, “the appropriate analysis involves considering
whether the challenged regulation is consistent with the principles that underpin
our regulatory tradition.” United States v. Rahimi, 602 U.S. 680, 692, 144 S. Ct.
1889, 219 L. Ed. 2d 351 (2024). The Supreme Court has recognized several
longstanding prohibitions concerning the possession of firearms, including
possession by non-law abiding citizens. See, Heller, 554 U.S. at 626-27
(“[N]othing in our opinion should be taken to cast doubt on the longstanding
prohibitions on the possession of firearms by felons and the mentally ill.”)
In subsequent Supreme Court cases involving Second Amendment
analysis, the Court reiterated its conclusions in Heller, including the
constitutionality of prohibiting felons from possessing firearms. See McDonald v.
City of Chicago, 561 U.S. 742, 786, 130 S. Ct. 3020, 177 L. Ed. 2d 894, (2010)
(“We made it clear in Heller that our holding did not cast doubt on such
longstanding regulatory measures as ‘prohibitions on the possession of firearms
by felons’ . . . . We repeat those assurances here.” (quoting Heller, 554 U.S. at
626-27)); N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 71-72, 142 S.
Ct. 2111, 213 L. Ed. 2d 387 (2022) (Alito, J., concurring) (affirming the holdings
16 No. 87677-5-I/17
of Heller and McDonald concerning restrictions on the possession of firearms);
Rahimi, 602 U.S. at 682 (same).
Even before Heller, Washington courts upheld regulations prohibiting
felons from possessing firearms. See State v. Krzeszowski, 106 Wn. App. 638,
641, 24 P.3d 485 (2001) (holding RCW 9.41.010, which prohibits felons from
possessing firearms, constitutional). Since the Supreme Court’s decision in
Bruen, this court has solidified its holding in Krzeszowski. In Ross, we affirmed
our decision in Krzeszowski and further declared no distinction exists between
violent felons and nonviolent felons for purposes of chapter 9.41 RCW. 28 Wn.
App. 2d at 652.
Here, Smith does not contend RCW 9.41.040 is unconstitutional as
written, he only claims the statute is unconstitutional as applied to his
circumstances. He maintains a prohibition that disarms all felons, regardless of
whether the individual presents a credible threat to others, is not rooted in
common law. He insists Krzeszowski overstated the applicable law and the
prohibition on possession of firearms should only apply to individuals whose
underlying felonies pose a clear threat of physical violence to another, not
nonviolent crimes. But Smith fails to acknowledge this court’s decision in Ross,
and more recently, State v. Hamilton, 33 Wn. App. 2d 859, 565 P.3d 595,
granting review, 572 P.3d 1206 (2025).4
4 Hamilton affirms the ruling in Ross that a statute prohibiting non-violent felons from possessing firearms is not unconstitutional, but engages in the textual-historical analysis announced in Bruen. Hamilton, 33 Wn. App. 2d at 870- 75.
17 No. 87677-5-I/18
In Ross, Ross was convicted of unlawful possession of a firearm in the
first degree based on his possession of a firearm and previous conviction of
burglary in the second degree. 28 Wn. App. at 645. On appeal, Ross contended
RCW 9.41.040 was unconstitutional as applied to him because “the government
cannot justify restricting the possession of firearms for those with nonviolent
felony convictions.” Id. at 646. This court disagreed and noted that neither
Bruen nor Heller “distinguished violent felons[] from nonviolent felons.” Id. at
652. Both Supreme Court cases make clear “the Second Amendment protects
the individual right of ‘law-abiding, responsible citizens’ to possess firearms. Id.
at 651 (internal quotation marks omitted) (quoting Bruen, 597 U.S. at 26). Like
Ross, Smith was previously convicted of a felony5 and is not a law-abiding
citizen. Therefore, it is not unconstitutional for RCW 9.41.040 to prohibit felons,
including felons convicted of nonviolent crimes, from possessing firearms.
Because RCW 9.41.040 is not unconstitutional as applied to Smith, we conclude
his conviction does not violate the Second Amendment.
Statement of Additional Grounds
In a statement of additional grounds, Smith asserts insufficient evidence
existed to support a finding of robbery in the first degree and the “to convict”
instructions relieved the State of its burden to prove the elements of robbery in
5 Smith was previously convicted of two counts of forgery, three counts of identity theft in the second degree, one count of possession of stolen property in the second degree, and one county of unlawful possession of a firearm in the second degree. These are all felonies in the state of Washington. See RCW 9A.60.020 (forgery), RCW 9.35.020 (identity theft), RCW 9A.56.160 (possession of stolen property); and RCW 9.41.040 (unlawful possession of a firearm).
18 No. 87677-5-I/19
the first degree. We agree, as did the jury, that insufficient evidence existed to
support a finding of robbery, but the State was not required to prove robbery;
therefore, Smith’s argument fails.
A defendant may submit a pro se statement of additional grounds under
RAP 10.10. We only consider issues raised in that statement of additional
grounds if they adequately inform us of the “nature and occurrence of the alleged
errors.” State v. Calvin, 176 Wn. App.1, 26, 316 P.3d 496 (2013); RAP 10.10.
We do not consider arguments repeated from the briefing. RAP 10.10(a).
The purpose of the information is to give the defendant notice of the
crimes with which they are charged. State v. Borrero, 147 Wn.2d 353, 359, 58
P.3d 245 (2002). On the other hand, “to convict” instructions inform the jury with
the law to be applied in the case. State v. Allen, 161 Wn. App. 727, 737, 255
P.3d 784 (2011). A defendant can be charged with attempt to commit a crime
even if the information only contains the completed crime. See RCW 10.61.003.
When charging a defendant with attempt, the “to convict” instructions must either: (1) stat[e] the two essential elements of attempt and provid[e] a separate definition of the crime the actor intended to commit, or (2) provid[e] the statutory definition of attempt and provid[e] a separate elements instruction delineating the elements of the crime the defendant intended to commit and using the word “attempt” along with those elements.
State v. Nelson, 191 Wn.2d 61, 72, 419 P.3d 410 (2018).
Smith’s argument is difficult to parse, but based on this court’s reading,
Smith is alleging the State needed to present sufficient evidence of the
completed crime of robbery to maintain his conviction for murder in the first
19 No. 87677-5-I/20
degree based on attempted robbery. Smith points to count 6 in the “to convict”
instructions, where the elements of attempted robbery in the first degree as well
as robbery in the first degree are listed and compares to jury instruction 17,
where only the elements of attempted robbery are included.
But the State was not required to prove the elements of robbery because
Smith’s conviction was predicated on attempted robbery. The State was also not
required to include attempted robbery in the information to charge Smith with
such. The State included the statutory definition of attempt as well as the
elements of robbery in the instructions, properly informing the jury of the law to
apply. Because the jury instructions conveyed the elements of attempted
robbery in the first degree and sufficient evidence existed to support a conviction
based on attempted robbery (see discussion supra), we conclude the State met
their burden of production.
We affirm.
WE CONCUR: