State v. Murphy, 23673-7-II.

• Decision Date: 19 November 1999
• Docket Number: No. 23673-7-II.,23673-7-II.
• Citation: 98 Wash.App. 42,988 P.2d 1018
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Appellant/Cross-Respondent, v. Thomas MURPHY Respondent/Cross-Appellant.

988 P.2d 1018

98 Wash.App. 42

STATE of Washington, Appellant/Cross-Respondent, v. Thomas MURPHY Respondent/Cross-Appellant.

No. 23673-7-II.

Court of Appeals of Washington, Division 2.

November 19, 1999.

Robert Mason Quillian, Thomas Doyle, (Court Appointed), Olympia, for Respondent.

John M. Jones, Thurston Co. Dep. Pros. Atty., Thurston Co. Pros. Atny. Of., Olympia, for Appellant.

HUNT, J.

The State of Washington appeals Thomas Murphy's sentences for one count of first degree burglary, five counts of theft of a firearm, and five counts of second degree unlawful possession of a firearm. The State contends that the trial court erred: (1) in calculating Murphy's offender score at zero for each offense; (2) in finding all five firearm theft convictions to be the same criminal conduct; (3) in finding all five firearm possession convictions to be the same criminal conduct; (4) in imposing a sentence below the standard range; and (5) in running the firearm theft and unlawful possession sentences concurrently with one another. Murphy cross-appeals, arguing that: (1) there was insufficient evidence to convict him on four of the five unlawful firearm possession counts; and (2) the trial court erred in running the burglary count consecutively to the firearm theft and unlawful possession counts. Both parties agree that the case should be remanded for resentencing. We affirm Murphy's convictions for unlawful possession, but remand for resentencing.

FACTS

On the morning of January 23, 1998, then 16-year-old Murphy met Jesse Harkcom, Josh Wiest, and Jeremiah Olson in a high school parking lot in Olympia. Murphy and Harkcom decided to burglarize a house in Rochester in which Murphy had previously seen stereo equipment, firearms, Nintendo systems, and clothes. Directed by Murphy, Wiest drove Murphy, Harkcom, and Olson to the house. They first drove by the house and then proceeded to a diner, where Murphy called the house to see if anyone was home. Receiving no answer, the four drove back to the house. Murphy and Harkcom exited the vehicle and approached the house while the others drove down the road and waited. After breaking in, Murphy and Harkcom went upstairs, where Harkcom took a Sony PlayStation and a shirt. They then went to the basement, found a gun cabinet, broke it open, and removed seven handguns¹ and ammunition, and placed them in a blanket. Murphy carried the guns out of the house; Harkcom carried out the PlayStation, the shirt, and a red box of ammunition. They rejoined Wiest and Olson, who had returned in the car, and sped away.

Murphy and Harkcom were seated in the backseat, with the stolen property between them. They sorted through it, removed the guns from the blanket, and passed them around to Wiest and Olson. After hiding the guns in the trunk of the car, the four drove to Olympia. At some point, they divided the handguns among them. At trial, Harkcom testified that Murphy got two .22 caliber handguns. Wiest testified that he got one of the .22's, as well as a revolver. Olson testified that Murphy got a.22 and that some of the guns were given to friends of Wiest and Murphy. Murphy's friend, Joshua Stafford, testified that Murphy gave him a 9 mm handgun to hold for him. James Campbell testified that he saw Murphy with the 9 mm at Stafford's home. Police found none of the handguns in Murphy's possession.

A jury convicted Murphy of one count of burglary in the first degree,² RCW 9A.52.020, five counts of theft of a firearm, RCW 9A.56.300, and five counts of unlawful possession of a firearm in the second degree,³ RCW 9.41.040(1)(b). The trial court found that all the offenses encompassed the same criminal conduct and entered an offender score of zero for each count.⁴ The trial court imposed a sentence of 20 months for the burglary count, 14 months for each of the five firearm theft counts, and three months for each of the five unlawful possession counts. The court ran the five theft counts concurrently with one another and also ran the five unlawful possession counts concurrently with one another. These two groups of firearm counts were then run consecutively to one another and consecutively to the burglary count, for a total confinement period of 37 months.

ANALYSIS

I. Sufficiency of the Evidence

"A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the second 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 a felony not qualifying as a serious offense. RCW 9.41.040(1)(b). This statute proscribes both actual and constructive possession. See State v. Echeverria, 85 Wash. App. 777, 783, 934 P.2d 1214 (1997). "[C]onstructive possession can be established by showing the defendant had dominion and control over the firearm.... The ability to reduce an object to actual possession is an aspect of dominion and control." Echeverria, 85 Wash.App. at 783, 934 P.2d 1214 (citations omitted).

Sufficient evidence was adduced at trial to establish that Murphy actually possessed the five firearms charged by the State. Harkcom testified that he and Murphy removed the handguns from the gun cabinet and placed them onto the blanket. According to both Harkcom and Olson, it was Murphy who then carried the blanket containing all the guns from the house to the car. Inside the car, the blanket containing the guns was between Harkcom and Murphy in the backseat. Olson testified that he watched Murphy open the blanket to expose the guns. Then, according to Harkcom, he and Murphy took the guns out of the blanket and passed them to Olson and Wiest in the front seat. Eventually, the four stopped, and, as Olson testified, they "all" put the guns in the trunk. Based on this evidence, a rational trier of fact could reasonably find, beyond a reasonable doubt, that Murphy actually possessed the five handguns charged by the State. See State v. Williamson, 84 Wash.App. 37, 46-47, 924 P.2d 960 (1996).⁵

II. Sentencing

A. Hard Time for Armed Crime Act

Section 10 of the Hard Time for Armed Crime Act (HTACA), Laws of 1995, ch. 129,⁶ added to the firearm theft statute, the provision that "[e]ach firearm taken in the theft under this section is a separate offense." RCW 9A.56.300(3). Similarly, Section 16 added to the unlawful firearm possession statute, the provision that "[e]ach firearm unlawfully possessed under this section shall be a separate offense." RCW 9.41.040(7). Section 16 also added that nothing in the HTACA

shall ever be construed or interpreted as preventing an offender from being charged and subsequently convicted for the separate felony crimes of theft of a firearm or possession of a stolen firearm, or both, in addition to being charged and subsequently convicted under this section for unlawful possession of a firearm in the first or second degree. Notwithstanding any other law, if the offender is convicted under this section for unlawful possession of a firearm in the first or second degree and for the felony crimes of theft of a firearm or possession of a stolen firearm, or both, then the offender shall serve consecutive sentences for each of the felony crimes of conviction listed in this subsection.

RCW 9.41.040(6).

B. Consecutive versus Concurrent Sentences For the Firearm Counts

Under the Sentencing Reform Act of 1981(SRA), Laws of 1981, ch. 137, the general rule is that "a person sentenced for two or more current offenses serves such sentences concurrently." Post Sentencing Review of Charles, 135 Wash.2d 239, 245, 955 P.2d 798 (1998) (footnote omitted); see also RCW 9.94A.400(1)(a). In contrast, section 16 of the HTACA provides:

Notwithstanding any other law, if the offender is convicted under this section for unlawful possession of a firearm in the first or second degree and for the felony crimes of theft of a firearm or possession of a stolen firearm, or both, then the offender shall serve consecutive sentences for each of the felony crimes of conviction listed in this subsection.

RCW 9.41.040(6) (emphasis added). A general rule of statutory construction is that where one statutory provision deals with a subject in a general way and another deals with the same subject in a specific manner, the specific prevails. State v. Lessley, 118 Wash.2d 773, 781, 827 P.2d 996 (1992). Here, this portion of the HTACA deals more specifically with the sentencing of the firearm theft and unlawful possession offenses than does the more general SRA, which covers all types of offenses.⁷ Thus, under the plain language of the HTACA, the trial court should have run each of Murphy's 10 firearm theft and unlawful possession convictions consecutively to one another.⁸

C. The Burglary Count

Murphy argues that his sentence for first degree burglary should have been run concurrently with his sentences for unlawful possession of a firearm and theft of a firearm. The trial court found that an exceptional sentence was required for the first degree burglary count:

I find an exceptional sentence. I think this is — if they run concurrent, that would only be 20 months. I don't even know at this point. It's too low for what they did. I find that the victim suffers substantially [sic], that this was thought out. But I guess what I'm saying is that it depends — and I want this understood — that this depends on the Roose case [90 Wash.App. 513, 957 P.2d 232 (1998) ].[⁹]

"Where multiple current offenses are concerned,... an exceptional sentence may ... consist of imposition of consecutive sentences where concurrent sentencing is otherwise the standard." State v. Batista, 116 Wash.2d 777, 784, 808 P.2d 1141 (1991). Imposition of an exceptional sentence requires written findings of fact and conclusions of law showing that there are substantial and compelling reasons to justify an exceptional sentence. RCW 9.94A.120(2), (3) & (17). See also Batista, 116 Wash.2d at 789, 808 P.2d 1141; State v. Kern, 55...