State v. Turner

103 Wash. App. 515
Court of Appeals of Washington·Decided November 22, 2000·No. No. 24691-1-II·Published·Cited by 67 cases

Opinion

Bridgewater, J.

Rickey Franklin Turner appeals his conviction of unlawfully possessing a firearm and obstructing a law enforcement officer. Because the State conceded instructional error, we review the case only to determine [518] whether we should order a new trial or dismiss for lack of sufficient evidence. We hold that where the owner/operator of a vehicle has dominion and control of a vehicle and knows a firearm is inside the vehicle, there is sufficient evidence of constructive possession of a firearm for the crime of unlawfully possessing a firearm. We reverse and remand for a new trial.

On the evening of December 28, 1998, Sergeant Rogen of the Skamania County Sheriff’s Department was patrolling Second Street in Stevenson when he saw Turner from behind standing and urinating alongside a truck. Rogen parked his patrol car and approached Turner to ask why he had been urinating in public. Turner denied it. When Rogen asked him for identification, Turner did not produce any; instead, he became agitated and profane, telling the deputy that he “had no reason to stop him.” Rogen could smell beer on Turner and noted that his speech was slurred. Rogen testified that Turner threatened to assault him and lunged toward him, brushing up against him. Turner did not state his name until after Rogen arrested him for public indecency and failing to identify himself. Rogen then asked Turner if he had any weapons, and Turner retorted that it was none of his business. Deputy Helton arrived on the scene and searched the truck, finding a rifle inside.

Helton testified that Donald Graham was seated in the passenger seat of the small, import pickup. Helton checked Graham’s identification and told him he was free to leave. Graham identified an archer’s bow inside the pickup as his, then retrieved a fanny pack from the truck and walked away. Graham did not take the bow when he left. Helton then searched the truck’s interior, finding another bow, a small caliber rifle, and ammunition. The rifle was inside a bow case that was lying partially open across the backseat behind the driver’s seat.

Graham testified that he and Turner had been out in Turner’s pickup “bow hunting and four-wheeling” and had stopped in Stevenson to clean the truck’s wheels. Graham said that the rifle and one of the bows were his and that he [519] had bought the rifle from Turner a few years earlier for $100. He said that Turner had not handled the rifle or had it in his possession the entire day.

Turner knew that a prior conviction precluded him from having firearms, and he testified that he had “sold all my rifles, got rid of all my guns.” Turner said that he knew Graham was bringing the rifle along that day, but he never touched it.

Turner was charged with unlawful possession of a firearm, obstructing a law enforcement officer, and indecent exposure. The trial court granted Turner’s motion for a directed verdict for the count of indecent exposure because of insufficient evidence. The jury found Turner guilty of the remaining two counts.

The State concedes jury instruction four was improper and constitutes reversible error. But Turner seeks dismissal with prejudice because the evidence was insufficient on both counts.

I. Jury Instruction

Turner properly argues that jury instruction four, which allowed the jury to consider an alternative basis for the charge of unlawful possession of a firearm, was improper. “It is reversible error to try a defendant under an uncharged statutory alternative because it violates the defendant’s right to notice of the crime charged.” State v. Doogan, 82 Wn. App. 185, 188, 917 P.2d 155 (1996). When the information charges only one of the alternatives, it is error to instruct the jury that they may consider other ways or means by which the crime could have been committed. State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332 (1988); see also State v. Severns, 13 Wn.2d 542, 125 P.2d 659 (1942).

Here, the information charged only two of the alternatives to unlawful possession of a firearm, omitting the illegal ownership alternative. RCW 9.41.040(1)(b). In the jury instmction, however, the trial court provided all three alternatives to the jury. The State correctly concedes re[520] versible error and recommends a new trial.

Because the State properly concedes error, we do not consider Turner’s other claims of prosecutorial misconduct in closing, and ineffective assistance of counsel. We do consider, however, Turner’s challenge to the sufficiency of the evidence as insufficiency would mandate dismissal with prejudice.

II. Sufficiency of the Evidence

Turner claims there was insufficient evidence to support his conviction for unlawful possession of a firearm and obstructing a law enforcement officer.

Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). “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. In determining whether the necessary quantum of proof exists, we need not be convinced of the defendant’s guilt beyond a reasonable doubt; we need only be satisfied that substantial evidence supports the State’s case. State v. Galisia, 63 Wn. App. 833, 838, 822 P.2d 303 (1992).

A. Unlawful Possession of a Firearm

To convict Turner of unlawful possession of a firearm as charged, 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. RCW 9.41.040(1)(b). State v. Anderson, 141 Wn.2d 357, 5 P.3d 1247 (2000). Turner conceded he previously had been convicted of a felony.

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State v. Turner, 103 Wash. App. 515 (Wash. Ct. App. 2000).

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