State v. Gouley
| Decision Date | 08 September 2021 |
| Docket Number | No. 54468-7-II,54468-7-II |
| Citation | 494 P.3d 458 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Jesse C. GOULEY, Appellant. |
Jan Trasen, Attorney at Law, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-3647, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, for Appellant(s).
Timothy W. Whitehead Mason County Prosecutors Office, Timothy J. Higgs, Mason Co. Pros. Atty. Office, Po Box 639, Shelton, WA, 98584-0639, for Respondent(s).
PUBLISHED OPINION
¶ 1 Jesse Gouley appeals his conviction of first degree unlawful possession of a firearm,1 arguing that (1) the State did not present sufficient evidence to sustain his conviction of unlawful possession of a firearm, (2) the trial court made an improper comment on the evidence in giving the jury a nonstandard instruction for the definition of a firearm, (3) he was deprived of his right to a fair trial because the prosecutor engaged in misconduct, (4) he is entitled to resentencing following the supreme court's decision in State v. Blake , 197 Wash.2d 170, 481 P.3d 521 (2021), and (5) the criminal filing fee was improperly imposed because he is indigent. In addition, (6) Gouley raises two arguments in a statement of additional grounds (SAG).
¶ 2 We hold that (1) the State presented sufficient evidence to sustain Gouley's first degree unlawful possession of a firearm conviction, (2) Gouley failed to preserve the error regarding the trial court's comment on the evidence, (3) Gouley waived any error arising from the prosecutor's alleged misconduct, (4) Gouley is entitled to resentencing under Blake , and (5) the trial court did not make an adequate inquiry into Gouley's ability to pay before imposing the criminal filing fee. We further hold that (6) neither of Gouley's SAG claims has merit.
¶ 3 Accordingly, we affirm Gouley's conviction but remand for resentencing.
¶ 4 Gouley was convicted of a felony and was under community supervision when he missed an appointment with his community corrections officer, Donovan Russell. Because of Gouley's failure to report, the Department of Corrections issued a warrant for Gouley's arrest.
¶ 5 Several officers, including Russell, attempted to locate Gouley at his listed residence to execute the warrant. The officers found Gouley asleep in his bedroom. In searching the bedroom, the officers discovered a shotgun under Gouley's bed. Gouley was previously convicted of a serious offense and was prohibited from possessing a firearm.
¶ 6 After Gouley had been placed in the squad car, he told Russell that the shotgun belonged to him and had been given to him by his great uncle. The shotgun was a 20-gauge bolt action shotgun made by Kessler Arms. Although the company was only in business for two years, between 1951 and 1953, the shotgun is not rare and is relatively inexpensive. When the shotgun was discovered under Gouley's bed, it was missing a bolt action assembly and was not operable in that condition.
¶ 7 The State charged Gouley with one count of first degree unlawful possession of a firearm and one count of escape from community custody.
¶ 8 During trial, the State's expert witness, Johan Schoeman, described the measures that would need to be implemented to make the shotgun operable. After noting that the shotgun was not operable in its present state, the expert opined that to make the shotgun operable a bolt or bolt action must be inserted into the receiver of the firearm. A bolt action for that particular shotgun is readily available for purchase online and can be purchased by a credit card and shipped. There are no restrictions on purchasing the part.
¶ 9 Aside from the missing bolt action, the expert did not observe any other defects in the firearm. However, according to the expert, the only way to truly determine whether the shotgun is operable would be to load the shotgun and fire it. He noted that even with a bolt action, there was still a possibility that the shotgun would not fire if there was an issue with the firing pin, the trigger spring, or the firing pin spring.
¶ 10 Prior to trial, Gouley stipulated to the admissibility of his custodial statements that the shotgun belonged to him and was given to him by his great uncle. The State referenced Gouley's custodial statements in both its closing and opening arguments. During closing, the State made the following argument:
¶ 11 In instructing the jury on the definition of a firearm, the trial court gave the jury the State's proposed instruction that included language regarding inoperable firearms. The instruction provided that a "temporarily inoperable firearm that can be rendered operational with reasonable effort and within a reasonable time," and a "disassembled firearm that can be rendered operational with reasonable effort and within a reasonable time" meet the definition of a firearm. Clerk's Papers (CP) at 38. Gouley consented to the use of this instruction.
¶ 12 The jury convicted Gouley of first degree unlawful possession of a firearm and of escape from community custody. Gouley's offender score was 9 plus and included several convictions of unlawful possession of a controlled substance.
¶ 13 During sentencing, the trial court briefly inquired into whether Gouley would be able return to his current place of employment upon serving his sentence and whether Gouley would be able to pay his legal financial obligations (LFOs). The court found that Gouley had a future ability to pay his LFOs and imposed the $200 criminal filing fee and the $500 crime victim penalty assessment.
¶ 14 Gouley appeals his conviction of first degree unlawful possession of a firearm and challenges his sentence.
¶ 15 Gouley was convicted of unlawful possession of a firearm under former RCW 9.41.040(1), which provides that a person is guilty of the crime of unlawful possession "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 any serious offense as defined in this chapter."
¶ 16 Gouley does not dispute that he has been previously convicted of a serious offense as defined in chapter 9.41 RCW. But he contends that the evidence was insufficient to sustain his unlawful possession of a firearm conviction because the State did not set forth sufficient evidence that the shotgun was a "firearm" as defined under former RCW 9.41.010(9) (2017) because the State did not prove that the shotgun could be made operable with reasonable effort in a reasonable amount of time. We disagree.
LEGAL PRINCIPLES A.
¶ 17 To determine whether the evidence is sufficient to sustain a conviction, we consider whether any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Cardenas-Flores , 189 Wash.2d 243, 265, 401 P.3d 19 (2017). The defendant admits the truth of the State's evidence, and we must view the evidence and all reasonable inferences arising therefrom in the light most favorable to the State. Id . at 265-66, 401 P.3d 19.
¶ 18 Whether a given object fits within the statutory definition of "firearm" in former RCW 9.41.010(9) is a question of statutory interpretation that we review de novo. State v. Raleigh , 157 Wash. App. 728, 734, 238 P.3d 1211 (2010).
¶ 19 A "firearm" as defined in former RCW 9.41.010(9) is a "weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder." To qualify as a firearm within the meaning of former RCW 9.41.010(9), the firearm "need not be operable during the commission of a crime." Raleigh , 157 Wash. App. at 734, 238 P.3d 1211 ; see also State v. Olsen , 10 Wash. App. 2d 731, 737, 449 P.3d 1089 (2019). Instead, the dispositive inquiry is "whether the firearm is a ‘gun in fact’ rather than a ‘toy gun.’ " Raleigh , 157 Wash. App. at 734, 238 P.3d 1211 (quoting State v. Faust , 93 Wash. App. 373, 380, 967 P.2d 1284 (1998) ).
¶ 20 In Olsen , the defendant challenged a trial court's decision to instruct the jury regarding the definition of a firearm based on WPIC 2.10,2 which followed the statutory definition of a firearm in former RCW 9.41.010(9). Olsen , 10 Wash. App. 2d at 734-35, 449 P.3d 1089. There, the trial court declined to give Olsen's proposed instructions that to constitute a firearm, the device must be "capable of being fired either instantly or with reasonable effort and within a reasonable time" and that the state must present sufficient evidence that the firearm was operable. Id. at 734, 449 P.3d 1089.
¶ 21 We clarified in Olsen that despite prior confusion in the decisions issued by our court, there is no requirement that the State set forth evidence showing that the device was operable at the time of the offense. Id. at 738, 449 P.3d 1089. Rather, we agreed with Raleigh that the State's burden was to prove that the firearm was a " ‘gun in fact,’ " as opposed to a toy gun. Id. at 737-38, 449 P.3d 1089 (quoting Raleigh , 157 Wash. App. at 734, 238 P.3d 1211 ). We further held that there was no instructional error. Id.
¶ 22 Consequently, whether a firearm can be rendered operational with reasonable effort and within a reasonable time period is immaterial to whether the firearm is a "firearm" under...
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