FILED JUNE 20, 2013 In the Office of the Clerk of Court W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 30629-1-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) JUAN C. JUAREZ, ) ) Appellant. )
KULIK, J.-Juan C. Juarez appeals his conviction for the crime of possession of
an unlawful firearm. Mr. Cruz contends that the State failed to prove all of the elements
included in the to convict jury instructions. He also contends that the trial court ordered
him to begin payment of his legal financial obligations (LFOs) without considering
whether he has the current or future ability to pay. Mr. Juarez's contentions are not
persuasive. We affirm.
FACTS
On November 25, 2011, Mr. Juarez was found with a short-barreled shotgun and
charged with possession of an unlawful firearm. At trial, the State called two witnesses to
testify. The first witness, former Sergeant Nels Larson, testified that he was on duty with No. 30629-1-111 State v. Juarez
the Othello Police Department when he responded to a call for assistance at 2568 West
Bench Road. He was told that an uninvited person was at the residence with a shotgun,
but had since left in a vehicle. Sergeant Larson found the person in a clearing near Bench
Road, parked next to a mobile home. The person was sitting in the vehicle, holding a
shotgun in his lap. Sergeant Larson noticed that the barrel and the stock of the shotgun
were short. The man identified himself as Mr. Juarez.
The second witness called by the State was Deputy Craig Frank. Deputy Frank
testified that on the date of the incident, he was on duty with the Adams County Sheriffs
Office, working in the Othello district. He responded to the call at 2568 West Bench
Road. The person making the complaint reported that the man with a shotgun had left the
residence in a vehicle. Deputy Frank called dispatch with the vehicle license plate
number. Dispatch told Deputy Frank that the registered owner lived on O'Brian Road in
Othello. With that information, Deputy Frank was able to locate the vehicle and the driver.
He arrived within 10 to 15 minutes after he first left to investigate the complaint. The
vehicle was found down an alley off Bench Road next to a trailer. Deputy Frank saw a
person slouched in the driver's seat, with a shotgun on his lap. After measuring the
shotgun, Deputy Frank determined that it was 161'2 inches and under the length allowed
2 No. 30629-1-III State v. Juarez
by state statute. Deputy Frank identified Mr. Juarez as the person he contacted the night
of the incident.
The jury was instructed that to convict Mr. Juarez of possession of an unlawful
firearm, each of the following elements of the crime must be proved beyond a reasonable
doubt:
(1) That on or about November 25, 2011, the defendant knowingly had a short-barreled shotgun in his possession or control; (2) The defendant knew of the characteristics making it a short barreled shotgun; and (3) That this act occurred in the State of Washington, County of Adams.
Clerk's Papers (CP) at 44.
The jury found Mr. Juarez guilty. Mr. Juarez was sentenced to three months of
confinement.
The court imposed a total amount of $900 of LFOs, which included $500 for a
victim assessment, $300 for court costs, and $100 for a DNA 1 collection fee. The trial
court waived a total of $850 in other LFOs.
1 Deoxyribonucleic acid.
3 No. 30629-1-III State v. Juarez
Section 2.5 of Mr. Juarez's judgment and sentence stated, "The court has
considered the total amount owing, the defendant's past, present, and future ability to pay
legal financial obligations, including the defendant's financial resources and the likelihood
that the defendant's status will change." CP at 51. The trial court did not indicate on the
judgment and sentence that it found that Mr. Juarez had the ability or future ability to pay
the LFOs.
Section 4.3 of the judgment and sentence ordered that "[a]ll payments shall be
made in accordance with the policies of the clerk of the court and on a schedule
established by the [Department of Corrections] or the clerk of the court, commencing
immediately, unless the court specifically sets forth the rate here." CP at 54. The court
set forth the rate to be "Not less than $50 per month commencing 1 June 2012." CP at
54.
Mr. Juarez appeals. He contends that the State failed to prove each element of his
crime as stated in the jury instructions, specifically the element that the act occurred in the
State of Washington, Adams County. He also contends that the trial court made an implied
finding that he had the current or future ability to pay his LFOs when it ordered him to pay
$50 per month, and that this finding is not supported by the record.
4 No. 30629-1-III State v. Juarez
ANALYSIS
County Where Crime Occurred. Due process requires the State to prove every
element of a crime charged beyond a reasonable doubt. State v. Baeza, 100 Wn.2d 487,
488, 670 P.2d 646 (1983). Thus, a challenge to the sufficiency of the evidence is a
question of constitutional magnitude. !d. Evidence is sufficient to prove each element it:
after "viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt." State v. Green, 94 Wn.2d 216,221,616 P.2d 628 (1980) (quoting Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). All reasonable
inferences from the evidence are drawn in favor ofthe State and interpreted most strongly
against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Circumstantial evidence and direct evidence are equally reliable. State v.
Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). An appellate court 'must defer to
the trier of fact on issues of conflicting testimony, credibility of witnesses, and the
persuasiveness ofthe evidence." State v. Thomas, 150 Wn.2d 821,874-75,83 P.3d 970
(2004).
In a criminal case, if the State adds an unnecessary element in the to convict jury
instruction without objection, the added element becomes the law of the case and the
5 No. 30629-1-III State v. Juarez
State assumes the burden of proving it. State v. Hickman, 135 Wn.2d 97, 102,954 P.2d
900 (1998). A criminal defendant may challenge the sufficiency of the evidence to
support an added element. !d.
Under RCW 9.41.190(1), it is unlawful for any person to own a short-barreled
shotgun. Venue is not an element of the offense of possession of an unlawful firearm.
See RCW 9.41.190. However, in Mr. Juarez's case, the to convict jury instructions added
Free access — add to your briefcase to read the full text and ask questions with AI
FILED JUNE 20, 2013 In the Office of the Clerk of Court W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 30629-1-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) JUAN C. JUAREZ, ) ) Appellant. )
KULIK, J.-Juan C. Juarez appeals his conviction for the crime of possession of
an unlawful firearm. Mr. Cruz contends that the State failed to prove all of the elements
included in the to convict jury instructions. He also contends that the trial court ordered
him to begin payment of his legal financial obligations (LFOs) without considering
whether he has the current or future ability to pay. Mr. Juarez's contentions are not
persuasive. We affirm.
FACTS
On November 25, 2011, Mr. Juarez was found with a short-barreled shotgun and
charged with possession of an unlawful firearm. At trial, the State called two witnesses to
testify. The first witness, former Sergeant Nels Larson, testified that he was on duty with No. 30629-1-111 State v. Juarez
the Othello Police Department when he responded to a call for assistance at 2568 West
Bench Road. He was told that an uninvited person was at the residence with a shotgun,
but had since left in a vehicle. Sergeant Larson found the person in a clearing near Bench
Road, parked next to a mobile home. The person was sitting in the vehicle, holding a
shotgun in his lap. Sergeant Larson noticed that the barrel and the stock of the shotgun
were short. The man identified himself as Mr. Juarez.
The second witness called by the State was Deputy Craig Frank. Deputy Frank
testified that on the date of the incident, he was on duty with the Adams County Sheriffs
Office, working in the Othello district. He responded to the call at 2568 West Bench
Road. The person making the complaint reported that the man with a shotgun had left the
residence in a vehicle. Deputy Frank called dispatch with the vehicle license plate
number. Dispatch told Deputy Frank that the registered owner lived on O'Brian Road in
Othello. With that information, Deputy Frank was able to locate the vehicle and the driver.
He arrived within 10 to 15 minutes after he first left to investigate the complaint. The
vehicle was found down an alley off Bench Road next to a trailer. Deputy Frank saw a
person slouched in the driver's seat, with a shotgun on his lap. After measuring the
shotgun, Deputy Frank determined that it was 161'2 inches and under the length allowed
2 No. 30629-1-III State v. Juarez
by state statute. Deputy Frank identified Mr. Juarez as the person he contacted the night
of the incident.
The jury was instructed that to convict Mr. Juarez of possession of an unlawful
firearm, each of the following elements of the crime must be proved beyond a reasonable
doubt:
(1) That on or about November 25, 2011, the defendant knowingly had a short-barreled shotgun in his possession or control; (2) The defendant knew of the characteristics making it a short barreled shotgun; and (3) That this act occurred in the State of Washington, County of Adams.
Clerk's Papers (CP) at 44.
The jury found Mr. Juarez guilty. Mr. Juarez was sentenced to three months of
confinement.
The court imposed a total amount of $900 of LFOs, which included $500 for a
victim assessment, $300 for court costs, and $100 for a DNA 1 collection fee. The trial
court waived a total of $850 in other LFOs.
1 Deoxyribonucleic acid.
3 No. 30629-1-III State v. Juarez
Section 2.5 of Mr. Juarez's judgment and sentence stated, "The court has
considered the total amount owing, the defendant's past, present, and future ability to pay
legal financial obligations, including the defendant's financial resources and the likelihood
that the defendant's status will change." CP at 51. The trial court did not indicate on the
judgment and sentence that it found that Mr. Juarez had the ability or future ability to pay
the LFOs.
Section 4.3 of the judgment and sentence ordered that "[a]ll payments shall be
made in accordance with the policies of the clerk of the court and on a schedule
established by the [Department of Corrections] or the clerk of the court, commencing
immediately, unless the court specifically sets forth the rate here." CP at 54. The court
set forth the rate to be "Not less than $50 per month commencing 1 June 2012." CP at
54.
Mr. Juarez appeals. He contends that the State failed to prove each element of his
crime as stated in the jury instructions, specifically the element that the act occurred in the
State of Washington, Adams County. He also contends that the trial court made an implied
finding that he had the current or future ability to pay his LFOs when it ordered him to pay
$50 per month, and that this finding is not supported by the record.
4 No. 30629-1-III State v. Juarez
ANALYSIS
County Where Crime Occurred. Due process requires the State to prove every
element of a crime charged beyond a reasonable doubt. State v. Baeza, 100 Wn.2d 487,
488, 670 P.2d 646 (1983). Thus, a challenge to the sufficiency of the evidence is a
question of constitutional magnitude. !d. Evidence is sufficient to prove each element it:
after "viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt." State v. Green, 94 Wn.2d 216,221,616 P.2d 628 (1980) (quoting Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). All reasonable
inferences from the evidence are drawn in favor ofthe State and interpreted most strongly
against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Circumstantial evidence and direct evidence are equally reliable. State v.
Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). An appellate court 'must defer to
the trier of fact on issues of conflicting testimony, credibility of witnesses, and the
persuasiveness ofthe evidence." State v. Thomas, 150 Wn.2d 821,874-75,83 P.3d 970
(2004).
In a criminal case, if the State adds an unnecessary element in the to convict jury
instruction without objection, the added element becomes the law of the case and the
5 No. 30629-1-III State v. Juarez
State assumes the burden of proving it. State v. Hickman, 135 Wn.2d 97, 102,954 P.2d
900 (1998). A criminal defendant may challenge the sufficiency of the evidence to
support an added element. !d.
Under RCW 9.41.190(1), it is unlawful for any person to own a short-barreled
shotgun. Venue is not an element of the offense of possession of an unlawful firearm.
See RCW 9.41.190. However, in Mr. Juarez's case, the to convict jury instructions added
the element that the act took place in Adams County, Washington. Therefore, the State
assumed the burden of proving this added element.
The evidence is sufficient to prove this element. Reasonable inferences can be
drawn from the officers' testimony that the act took place in Adams County. First, the
officers testified that they were employed with either the Othello Police Department or
the Adams County Sheriffs Office when they responded to the call. One officer also
testified that he arrived in Mr. Juarez's area within 10 to 15 minutes after the call. A
reasonable juror could infer that the officers responded to a call within their jurisdiction,
especially given the fact that it only took the officer 10 to 15 minutes to reach Mr.
Juarez's location.
Second, dispatch told Deputy Frank that the registered owner of the vehicle lived
in Othello, and Deputy Frank testified that he used this information to locate the vehicle
6 No. 30629-1-III State v. Juarez
and the driver. Again, a reasonable inference can be made that Mr. Juarez was found at the
address in Othello. Also, considering the trial took place in Adams County, it is reasonable
to infer that jurors understood Othello to be located in Adams County, in the State of
Washington. Thus, in viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found beyond a reasonable doubt that the act took
place in Adams County, Washington. Mr. Juarez's challenge to the sufficiency
of the evidence fails.
The State presented sufficient evidence to prove that Mr. Juarez committed the act
of possessing an unlawful firearm in Adams County, Washington.
Finding o{Ability to Pay LFOs. We review a trial court's determination on an
offender's financial resources and ability to pay under the clearly erroneous standard. State
v. Baldwin, 63 Wn. App. 303, 312, 818 P.2d 1116 (1991). "A finding of fact is clearly
erroneous when, although there is some evidence to support it, review of all of the
evidence leads to a 'definite and firm conviction that a mistake has been committed.'"
Schryvers v. Coulee Cmty. Hosp., 138 Wn. App. 648, 654, 158 P.3d 113 (2007) (quoting
Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000)).
Under RCW 10.01.160, a court "may [order] a [criminal] defendant to pay costs
... incurred by the [S]tate in prosecuting the defendant." RCW 10.01.160(1), (2). In
7 No. 30629-1-III State v. Juarez
determining the amount and the method of payment of costs, the court shall take into
account the financial resources of the defendant and the nature of the burden that the
payment of costs will impose. RCW 10.01.160(3). "Inquiry into the defendant's ability
to pay is appropriate only when the State enforces collection under the judgment or
imposes sanctions for nonpayment; a defendant's indigent status at the time of sentencing
does not bar an award of costs." State v. Crook, 146 Wn. App. 24, 27, 189 P.3d 811
(2008).
Here, the judgment and sentence ordered Mr. Juarez to pay $50 per month toward
his LFOs, with the first payment due in over three months. In ordering payment, the trial
court considered Mr. Juarez's ability to pay. The record shows that at the sentencing
hearing, Mr. Juarez's attorney informed the court that Mr. Juarez was found to be
indigent, that Mr. Juarez did not have means in Mexico besides subsistence living, that
Mr. Juarez came from an agricultural background, and that Mr. Juarez's mother was sick.
In response, the court waived the attorney fees and the fine, and imposed the remaining
$900 in fees for the victim assessment, court costs, and DNA collection fee. Thus, the
record shows that the trial court took into account the financial resources of Mr. Juarez
and the nature of the burden to pay when it waived part of the LFOs and ordered a low
monthly payment. The trial court did not err by ordering Mr. Juarez to pay his LFOs.
8 No. 30629-1-III State v. Juarez
The trial court considered Mr. Juarez's ability to pay when it ordered him to begin
making monthly payments toward his LFOs.
We affirm the conviction and the LFOs.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040. k/17. --. ---··---··- - tZ- ---- Kulik, J.
WE CONCUR:
c. J' Siddoway, J.