State v. Summers

• Decision Date: 20 July 2001
• Docket Number: No. 26150-2-II.,26150-2-II.
• Citation: 107 Wash.App. 373,28 P.3d 780
• Parties: STATE of Washington, Respondent, v. Robert D. SUMMERS, Appellant.
• Court: Washington Court of Appeals

28 P.3d 780

107 Wash.App. 373

STATE of Washington, Respondent, v. Robert D. SUMMERS, Appellant.

No. 26150-2-II.

Court of Appeals of Washington, Division 2.

July 20, 2001.

Patricia A. Pethick, Attorney At Law, Tacoma, Counsel for Appellant.

Michael L. Sommerfeld, Pierce Co. Dep. Pros. Atty., Tacoma, Counsel for Respondent.

HOUGHTON, J.

Robert D. Summers appeals his conviction of unlawful possession of a firearm in the first degree, based upon his constructive possession of a firearm found under a pillow on the only bed in the basement where he lived. He argues that (1) the information was defective because it failed to allege the nonstatutory element of knowledge; (2) the `to convict' instruction was constitutionally flawed because it failed to require the jury to find knowledge; (3) his trial counsel was ineffective for proposing the faulty "to convict" instruction; (4) the trial court erred in refusing to give two instructions on passing control; (5) the evidence was insufficient; and (6) the trial court miscalculated his offender score. We affirm.

FACTS

Summers has a prior burglary conviction and is thus prohibited from possessing a firearm. On March 2, 2000, the police went to Summers's residence to investigate a complaint about a possible methamphetamine lab. They had previously determined that Summers had violated his parole, so they also intended to arrest him.

When they arrived, Summers was not home, but he soon arrived. The house had a basement that was only accessible from the outside. When Summers arrived, the police arrested him for his parole violation and read him his Miranda¹ rights. Summers waived these rights and admitted that he lived in the basement.²

The police asked Summers about a methamphetamine lab. Summers denied that there was a methamphetamine lab in the basement, but he admitted there may be drug paraphernalia and that there was a firearm under the pillow on his bed in the basement. Summers said the firearm belonged to a friend, but he could not remember the friend's name. He said it might have his fingerprints on it because he had handled it in the past.

The police obtained a search warrant, searched the basement, and found the firearm under the pillow on the only bed in the basement, a twin bed. There were no other sleeping accommodations in the basement. The firearm was loaded and had a bullet in the chamber.

Because Summers was prohibited from possessing a firearm, the State charged him with unlawful possession of a firearm in the first degree. The information stated that Summers had "unlawfully and feloniously" possessed a firearm, but it did not specifically allege that Summers had knowingly possessed the firearm. Summers did not challenge the information until this appeal.

At trial, two officers testified to the facts above. Summers offered one witness, James Matthews. Matthews testified that he and his girlfriend had been living with Summers in the basement until March 2, 2000. He had been friends with Summers for over 10 years. He testified that the firearm the police had found belonged to him. Matthews said Summers had not known about the firearm until he told him about it moments before Summers arrived at the house the day of his arrest. Matthews testified that he normally kept the firearm on his person, but he had stashed it earlier that day. At one point, Matthews testified that he had placed it under the pillow but later testified that he had put it under the mattress.

The trial court gave Summers's proposed "to convict" instruction that did not require the State to prove knowledge, but it refused to give two other instructions defining "passing control."

The jury found Summers guilty as charged. At sentencing, the State argued that Summers had an offender score of four, based upon his juvenile convictions. The State argued that the recent amendment to the Sentencing Reform Act, Laws of 2000, ch. 26, sec. 2, allowed the trial court to consider these convictions. Defense counsel argued that under the reasoning of State v. Cruz,³ several of these convictions had washed out. The trial court agreed with the State and sentenced Summers to 42 months, based upon an offender score of four. Summers appeals.

ANALYSIS

The Information

Summers first contends that the information is insufficient because it did not allege that he knowingly possessed the firearm. After Summers was convicted, our Supreme Court held that knowledge was a nonstatutory element of unlawful possession of a firearm. State v. Anderson, 141 Wash.2d 357, 366, 5 P.3d 1247 (2000).

When a defendant raises an argument that a charging document is missing an essential element after the State rests, we review that charging document under a liberal standard of review. State v. Kjorsvik, 117 Wash.2d 93, 105, 812 P.2d 86 (1991); State v. Phillips, 98 Wash.App. 936, 940-42, 991 P.2d 1195 (2000).⁴ Under this liberal standard of review, we should hold that the charging document is sufficient if (1) the necessary elements appear in any form, or by fair construction, in the charging document and (2) the defendant cannot show he or she was prejudiced by the inartfully worded charging document. Kjorsvik, 117 Wash.2d at 105-06, 812 P.2d 86.

Here, Summers has raised this argument for the first time on appeal, invoking this more lenient Kjorsvik standard. The information provided in part that Summers "did unlawfully and feloniously own, have in his possession, or under his control a firearm[.]" Clerk's Papers at 1. In State v. Krajeski, 104 Wash.App. 377, 386, 16 P.3d 69 (2001), we held that identical language, when tested under the more lenient standard, was sufficient to apprise the defendant of the knowledge element. And, like the defendant in Krajeski, Summers has admitted he knew the firearm was in his basement, and he has not attempted to prove prejudice. Thus, his argument fails.

`To Convict' Instruction and Invited Error

Summers next contends that because the "to convict" instruction did not require the jury to find that he had knowledge of the firearm, we must reverse his conviction.

Under the current case law in Washington, when a trial court fails to include an essential element in a "to convict" instruction, it is a manifest constitutional error that requires automatic reversal. State v. Smith, 131 Wash.2d 258, 265, 930 P.2d 917 (1997).⁵ As noted, Anderson held that knowledge is an element of unlawful possession of a firearm. Anderson, 141 Wash.2d at 366, 5 P.3d 1247. Here, the "to convict" instruction did not require the jury to find that Summers had knowledge of the firearm. Nevertheless, because of the invited error doctrine, Summers's argument fails.

When a defendant proposes an instruction that is identical to the instruction the trial court gives, the invited error doctrine bars an appellate court from reversing the conviction because of an error in that jury instruction. State v. Studd, 137 Wash.2d 533, 546-47, 973 P.2d 1049 (1999). This holds true even if the defendant merely requests a standard WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL (WPIC) approved by the courts. Studd, 137 Wash.2d at 548, 973 P.2d 1049. In Studd, the defendant⁶ challenged the trial court's self defense instruction, which was based upon 11 WASHINGTON PATTERN JURY INSTRUCTIONS, CRIMINAL 16.02 (2d ed. 1994). This instruction misdefined self defense, thus relieving the State of its burden of properly proving beyond a reasonable doubt that the defendant did not act in self defense. The Studd Court held that the WPIC was unconstitutional, but nevertheless it affirmed the convictions because the defendant had requested the identical instruction. Studd, 137 Wash.2d at 546-47, 973 P.2d 1049. The Court held that the invited error doctrine was a "strict rule" to be applied in every situation where the defendant's actions at least in part cause the error. Studd, 137 Wash.2d at 547, 973 P.2d 1049.

Here, Summers proposed an instruction identical to the "to convict" instruction the trial court gave. Thus, he invited any error and we need not reverse based upon Smith.

Ineffective Assistance of Counsel

Anticipating that the invited error doctrine applies, Summers next argues that his trial counsel was ineffective for proposing the flawed "to convict" instruction. Our Supreme Court's holding in Studd, however, also defeats this claim.

Representation is deemed constitutionally sufficient unless (1) considering all the circumstances, the attorney's performance was below objective standards of reasonableness, and (2) with reasonable probability, the outcome would have differed if the attorney had performed adequately. State v. Stenson, 132 Wash.2d 668, 705-06, 940 P.2d 1239 (1997) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)),cert. denied, 523 U.S. 1008, 118 S.Ct. 1193, 140 L.Ed.2d 323 (1998). We engage a strong presumption that a defendant received effective representation. State v. Brett, 126 Wash.2d 136, 198, 892 P.2d 29 (1995),cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996). And the defendant must show that there were no legitimate strategic or tactical rationales for the challenged attorney conduct. State v. McFarland, 127 Wash.2d 322, 336, 899 P.2d 1251 (1995).

In Studd, the defendant also claimed that his attorney was ineffective for proposing a flawed self defense instruction. At the time of trial, however, case law held that the proposed self defense instruction was constitutional. Thus, our Supreme Court rejected this claim because "[trial] counsel can hardly be faulted for requesting a jury instruction based upon a then-unquestioned WPIC 16.02." Studd, 137 Wash.2d at 551, 973 P.2d 1049.

Here, prior to the Supreme Court's decision in Anderson, the appellate courts had unanimously held that knowledge was not an element of unlawful possession of a firearm. See State v. May, 100 Wash.App. 478, 481-82, 997 P.2d 956, review denied, 142 Wash.2d 1004, 11...