State v. Holt
| Decision Date | 13 January 2004 |
| Docket Number | No. 28709-9-II, No. 28712-9-II. |
| Citation | 119 Wash.App. 712,82 P.3d 688 |
| Parties | STATE of Washington, Respondent, v. Bobby G. HOLT, Appellant. State of Washington, Respondent, v. Linda Belle Holt, Appellant. |
| Court | Washington Court of Appeals |
Patricia Anne Pethick, Attorney at Law, Tacoma, WA, Thomas Edward Doyle, Attorney at Law, Hansville, WA, for Appellants.
Steven Curtis Sherman, Thurston County Pros Ofc, Olympia, WA, for Respondent.
Bobby and Linda Holt were each convicted of two counts of second degree criminal mistreatment and one count of unlawful manufacture of methamphetamine. The unlawful manufacture convictions carried a firearm enhancement and an enhancement for the presence of a person under age 18. Bobby was also convicted of three counts of second degree unlawful possession of a firearm. We affirm the unlawful manufacture convictions and Bobby's second degree unlawful possession convictions. But we vacate the firearm enhancements, holding that the jury must be instructed to find a nexus between the defendant, the crime, and the firearm. Further, because the charging documents omitted an essential element, i.e., recklessness, we reverse the convictions for second degree criminal mistreatment.
Acting on an informant's tip, police officers arrived at 20104 Neat Road Southeast in Thurston County to investigate a suspected methamphetamine lab. The property, owned by Linda and Bobby Holt, contained several acres. On it were several inhabited trailers and many vehicles in various states of repair.
Earlier in the day, Bobby had returned home from work to find gray smoke coming from a trailer window. He entered to investigate and found Linda, Tammy Woods (Linda's daughter), and another woman engaged in what appeared to be the manufacture of methamphetamine.
At about the same time, two children also arrived at the trailer. The children, Pebbles and Anthony Woods, were Linda's biological grandchildren. At trial, an officer testified that Pebbles appeared to be 12 years old, and Anthony appeared to be 7 or 8. Both children had their own bedrooms in the trailer and were cared for primarily by Linda and Bobby.
The officers' search revealed substantial evidence of a methamphetamine laboratory. They seized various chemicals common in the anhydrous ammonia manufacture method, including acetone, xylol, and muriatic acid. They found several items containing a residue that later tested positive for methamphetamine. And inside the trailer's computer room, officers found a jar containing a yellow liquid, pseudoephedrine/ephedrine tablets, lithium batteries, a black binder containing pages from the book titled "Secrets of Methamphetamine Manufacturing," and three firearms, one of which was loaded with three rounds of ammunition. A forensic scientist testified that the yellow liquid was methamphetamine in its final stage of manufacture.
At trial, Bobby, a convicted felon, asserted that he was separated from Linda and did not live in the main trailer, opting instead for a nearby 26-foot camp trailer. Several defense witnesses corroborated the claim. Bobby also claimed that the firearms seized in the computer room were no longer his, that he had given them to Linda and another friend for safekeeping in the hope that, one day, the guns would pass to Anthony.
The jury convicted on all counts and made positive findings on all enhancements. As to both defendants, the trial court found that the unlawful manufacture and criminal mistreatment convictions encompassed the same criminal conduct. And as to Bobby, the trial court also found that the unlawful possession convictions encompassed the same criminal conduct.
Linda and Bobby both contend that their second degree criminal mistreatment convictions must be reversed and the charges dismissed because their charging documents failed to allege an essential element. The State concedes error and agrees that the charges must be dismissed.
The State's concession is proper. The charging documents omitted "recklessly," the required mental state for second degree criminal mistreatment (see RCW 9A.42.030(1)), and there appears no language in the document that we may construe, even under liberal examination,1 as imparting the required notice. Cf. State v. Kjorsvik, 117 Wash.2d 93, 110, 812 P.2d 86 (1991)
(). Therefore, we reverse and dismiss without prejudice the second degree criminal mistreatment convictions for Linda and Bobby. See State v. Vangerpen, 125 Wash.2d 782, 792-93, 888 P.2d 1177 (1995).
Bobby next contends that instructions 29, 30, and 31 improperly allowed the jury to convict on an uncharged alternative means of committing second degree unlawful possession of a firearm. Second degree unlawful possession of a firearm is an alternative means offense committed when a convicted felon (1) owns, (2) possesses, or (3) controls a firearm. RCW 9.41.040(1)(b). It is error for the jury to be instructed on and consider uncharged alternatives regardless of the strength of the evidence presented at trial. State v. Williamson, 84 Wash.App. 37, 42, 924 P.2d 960 (1996).
The State contends that the invited error doctrine precludes our review of this issue. Under that doctrine, a defendant may not set up an error at trial and then complain of it on appeal. State v. Studd, 137 Wash.2d 533, 546, 973 P.2d 1049 (1999). Thus, a defendant may not challenge on appeal a jury instruction that he proposed at trial. Studd, 137 Wash.2d at 546, 973 P.2d 1049. This is true even if the defendant proposed a pattern jury instruction. Studd, 137 Wash.2d at 546-47, 973 P.2d 1049; State v. Summers, 107 Wash.App. 373, 381, 28 P.3d 780 (2001).
Bobby's proposed instruction was a pattern instruction — 11A Washington Practice: Washington Pattern Jury Instruction: Criminal § 133.02.01, at 354-55 (1994) — requiring proof "[t]hat ... the defendant [owned a firearm] [or] [had a firearm in his possession or control] ... [and] [t]hat the [ownership] [or] [possession or control] of the firearm occurred in the State of Washington." Clerk's Papers (CP) at 19.2 This instruction explicitly allowed a guilty finding on the ownership alternative, and it recommended the exact wording that the trial court ultimately chose. Therefore, Bobby proposed the instruction that he now challenges. By doing so, he is precluded from appealing the alleged instructional error.
CP at 45, 46, 47 (emphasis added).
The third element was the only one that referenced the ownership alternative. As the State contends, this element was only jurisdictional. It did not enable a finding as to the means of commission. To determine the means of commission, the jury had to look to the first element, which stated only the charged alternatives of possession and control. We presume that the jury followed this instruction. Therefore, the jury was not instructed or allowed to find guilt on an uncharged alternative.
In a related assignment of error, Bobby asserts that the trial court erred by failing to give a unanimity instruction for second degree unlawful possession. He asserts that the error requires reversal because sufficient evidence did not support each alternative.3 As our previous analysis concluded that the State did not instruct on or charge the ownership alternative, we need only decide whether sufficient evidence supported the possession and control alternatives. Failure to give a unanimity instruction in an alternative means case is harmless if sufficient evidence supports each of the alternatives. State v. Camarilla, 115 Wash.2d 60, 65, 794 P.2d 850 (1990). Evidence is sufficient if, viewed in the light most favorable to the State, it permits any rational trier of fact to find all of the essential elements of the crime beyond a reasonable doubt. State v. Joy, 121 Wash.2d 333, 338, 851 P.2d 654 (1993). A claim of insufficiency admits the truth of the State's evidence and requires that all reasonable inferences be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence is accorded equal weight with direct evidence. State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980). In reviewing the evidence, we give deference to the trier of fact, who resolves conflicting testimony, evaluates the credibility of witnesses, and generally weighs the persuasiveness of the evidence. State v. Walton, 64 Wash.App. 410, 415-16, 824 P.2d 533 (1992),review denied, 119 Wash.2d 1011, 833 P.2d 386 (1992).
The trial court did not instruct the jury as to the meaning of control, and chapter 9.41 RCW does not define the term. Therefore, we must give "control" its ordinary, dictionary definition. See State v. Edwards, 84 Wash.App. 5, 10, 924 P.2d 397 (1996),
review denied, 131 Wash.2d 1016, 936 P.2d 416 (1997). According to WEBSTER'S II NEW COLLEGE DICTIONARY 246 (1st ed.1999), to...
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