State v. Crow

• Decision Date: 09 April 2019
• Docket Number: No. 35316-8-III,35316-8-III
• Citation: 438 P.3d 541
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Bryan Jack Ross CROW, Appellant.

438 P.3d 541

STATE of Washington, Respondent,

v.Bryan Jack Ross CROW, Appellant.

No. 35316-8-III

Court of Appeals of Washington, Division 3.

FILED APRIL 9, 2019

PUBLISHED OPINION

Fearing, J.

¶1 The trial court, after a jury trial, convicted Bryan Crow of the crimes of unlawful possession of a firearm and possession of a stolen firearm. On appeal, we reverse Crow’s conviction of possession of a stolen firearm because his trial counsel ineffectively failed to object to inadmissible profile testimony and the testimony prejudiced Crow’s defense. Based on state Supreme Court precedent, we also remand for resentencing because the State failed to present sufficient proof of crimes included in Crow’s offender score calculation.

FACTS

¶2 We take our facts from testimony during a jury trial. We start with a stolen gun. On October 22, 2014, Joseph Carnevali returned to his pickup truck parked in downtown Seattle and discovered his Ruger 9mm LC9 handgun, he stored in the pickup console, to be missing. Carnevali reported the stolen firearm and identified the firearm’s serial number to the Seattle Police Department.

¶3 We move from Seattle to Yakima. On June 13, 2015, Officer Chris Taylor of the Yakima Police Department patrolled the streets of Yakima in a marked police car. Officer Taylor saw Bryan Crow exit a vehicle parked at a residence. Taylor recognized Crow from earlier contacts and from Crow’s horn tattoos on his head. Officer Taylor knew Crow had a warrant for his arrest.

¶4 Officer Chris Taylor approached Bryan Crow and, from a comfortable distance, called Crow’s name. Crow turned and looked at Officer Taylor and then ran. Taylor yelled: "stop, you’re under arrest." Report of Proceedings (RP) at 173.

¶5 Officer Chris Taylor, while eight to ten feet from Bryan Crow, fired a Taser at Crow. The Taser caused Crow to stumble, but otherwise did not disable Crow. Crow reached into his waistband with his right hand and retrieved a handgun. Crow flung the weapon and continued to run from Officer Taylor. Officer Taylor threw his Taser to the ground and drew his service firearm. Crow jumped a fence and continued running, after which Taylor ended his chase. Taylor took possession of the handgun Crow discarded. Taylor knew then that prior convictions rendered Crow ineligible from owning firearms. Officer Taylor radioed for assistance, and other Yakima Police Department officers later seized Crow.

¶6 Officer Chris Taylor transported Bryan Crow to the county jail. Officer Taylor entered the serial number from the gun, a Ruger 9mm handgun, into the gun registry index. The check revealed that the gun had been stolen in Seattle on October 23, 2014.

PROCEDURE

¶7 The State of Washington charged Bryan Crow with first degree unlawful possession of a firearm and possession of a stolen firearm. At trial, Crow stipulated to an earlier conviction that precluded him from possessing a firearm. During trial, Crow argued that he lacked knowledge that the Ruger firearm was stolen.

¶8 During trial, the prosecution introduced police testimony outlining patterns regarding felons and stolen firearms and the difficulty of a felon gaining possession of a firearm. Bryan Crow’s trial counsel did not object to any of this questioning. The police testimony and the lack of evidentiary objections presents the focus of this appeal.

¶9 The State questioned Officer Chris Taylor regarding the method by which and the location at which a person can legally purchase a firearm. When asked if someone could lawfully sell, gift, or transfer a gun to Crow, Officer Taylor answered: "No." RP at 195.

¶10 On cross-examination, Crow’s attorney asked questions of Taylor regarding how someone would know if a gun is stolen or not:

[Defense Counsel]: You testified about the firearm that was recovered. The serial numbers, and I understand from your testimony, the serial numbers weren’t ground off?

TAYLOR: Correct.

[Defense Counsel]: How is—how is someone supposed to know if a gun is stolen or not?

TAYLOR: There’s two ways. Obviously, the direct knowledge would be if they stole it, but a lot of times the way that I found people that know the firearm was stolen that they buy it illegally. If they buy it on the street from somebody who’s not a legitimate gun salesman, buy it for a cheap price, most of the people that I come into contact with stolen firearms will say they bought it from somebody for fifty bucks, a hundred bucks. They assume that it’s stolen based on the fact that it’s not a legitimate gun sale and they’re buying it so cheap.

RP at 198-99.

¶11 On redirect examination, the State inquired about the methods by which prohibited persons obtain firearms:

TAYLOR: From my training and experience, they [those prohibited from possessing firearms] either will steal them or they will buy them from somebody that is selling them illegally on the street.

[The State]: Okay and how are those illegally obtained firearms, where do they typically come from in your training and experience?

TAYLOR: Burglaries, vehicle prowls, things like that.

[The State]: In your training and experience, do fleeing suspects often attempt to discard stolen property when they’re being pursued?

TAYLOR: Yes.

[The State]: Why is that?

TAYLOR: Because nobody wants to be caught with stuff that they know they shouldn’t have.

[The State]: In your training and experience, what actions are indicative of somebody knowing something is stolen property?

TAYLOR: Typically they’re going to try to distance themselves as much as possible from it. They’ll tell you stuff like I have no idea about it, I don’t know anything about it, I don’t know who I got it from or they’ll give you very vague answers. I got it from Bob, over there, around this time. There’s no specifics that you’re able—what they try to do is make it so there’s no specifics that you can follow up with to confirm whether they knew or not knew or did not know that it was stolen.

[The State]: So, discarding and flight are pretty common?

TAYLOR: Correct.

....

[The State]: ... Okay. In your training and experience, what percentage of people apprehended are prohibited people with firearms are those guns stolen?

TAYLOR: Pretty high percentage. I would—I couldn’t guess a number, but I would say the majority.

[The State]: Okay. And—and in the case where those firearms are not reported, is there a reason that sometimes they’re not reported as stolen or not in the system?

TAYLOR: A lot of times we come across firearms that are unregistered. Maybe they don’t have an owner attached to it because they’ve been sold or transferred prior to Initiative 594 so there’s not a record or the person who had the burglary with the firearms stolen doesn’t have their serial numbers, so they’re not able to list it. So, we’re not able to confirm that the firearm is in fact stolen.

RP at 201-03.

¶12 During trial, Yakima Officer Booker Ward testified regarding the ways a person could illegally obtain a firearm. The testimony is as follows:

[The State]: Okay. In your training and experience, how do prohibited persons get firearms?

WARD: Usually through burglaries, vehicle prowls, some way of that nature.

[The State]: Okay, what percentage are stolen in your training and experience that turn up in prohibited person[’]s hands?

WARD: I would say a high percentage.

[The State]: Okay, based on Mr. Crow’s status of being convicted of a serious offense at the time of the arrest, were there any lawful means at that time for Bryan Crow to receive a firearm or possess a firearm?

WARD: Any, no he shouldn’t have been able to. Not with the background checks and that kind of stuff.

[The State]: Okay, was there any lawful means which another person could give a prohibited person, such as Mr. Crow, a firearm?

WARD: No.

[The State]: No?

WARD: I don’t believe so. You’d have to—once again, do the background checks and that kind of stuff and transfers and ....

RP at 219-20.

¶13 During trial, the prosecution asked similar questions to Detective Gonzalo Deloza:

[The State]: In your training and experience, what percentage of firearms possessed by prohibited persons are stolen?

DELOZA: It’s hard—it’s hard to say because a lot of the guns that are reported, not every has the serial numbers on them, but a lot of people—most of the people that I know that are prohibited from having firearms obviously they’re not allowed to have them so they had to get them somewhere else and most of them are stolen.

RP at 239-40.

¶14 The trial court presented the jury two jury instructions that centered on the possession of a stolen firearm charge:

INSTRUCTION NO. 15

To convict the defendant of the crime of possessing a stolen firearm, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about June 13, 2015, the defendant possessed, or carried, or was in control of stolen firearm; and

(2) That the defendant acted with knowledge that the firearm had been stolen; and

(3) That the defendant withheld or appropriated the firearm to the use of someone other than the true owner or person entitled thereto; and

(4) That any of these acts occurred in the State of Washington.

If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

Clerk’s Papers (CP) at 169 (emphasis added).

INSTRUCTION NO. 9

A person knows or acts knowingly or with knowledge with respect to a fact, circumstance, or result when he or she is aware of that fact, circumstance, or result. It is not necessary that the person know that the fact, circumstance, or result is defined by law as being unlawful or an element of a crime.

If a person has information that would lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted but not required to find that he or she acted with

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