State v. Turner

• Decision Date: 22 November 2000
• Docket Number: No. 24691-1-II.,24691-1-II.
• Citation: 13 P.3d 234,103 Wash.App. 515
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Rickey Franklin TURNER, Appellant.

13 P.3d 234

103 Wash.App. 515

STATE of Washington, Respondent, v. Rickey Franklin TURNER, Appellant.

No. 24691-1-II.

Court of Appeals of Washington, Division 2.

November 22, 2000.

R.A. Lewis, Knapp, O'Dell & Lewis, Camas, for Appellant.

Peter S. Banks, Prosecutor's Office, Stevenson, for Respondent.

BRIDGEWATER, J.

Rickey Franklin Turner appeals his conviction of unlawfully possessing a firearm and obstructing a law enforcement officer. Because the State conceded instructional error, we only review the case to determine whether we should order a new trial or dismiss for lack of sufficient evidence. We hold that where the owner/operator of a vehicle has dominion and control of a vehicle and knows a firearm is inside the vehicle, there is sufficient evidence of constructive possession of a firearm for the crime of unlawfully possessing a firearm. We reverse and remand for a new trial.

On the evening of December 28, 1998, Sergeant Rogen of the Skamania County Sheriff's Department was patrolling Second Street in Stevenson when he saw Turner from behind standing and urinating alongside a truck. Rogen parked his patrol car and approached Turner to ask why he had been urinating in public. Turner denied it. When Rogen asked him for identification, Turner did not produce any; instead, he became agitated and profane, telling the deputy that he "had no reason to stop him." Rogen could smell beer on Turner and noted that his speech was slurred. Rogen testified that Turner threatened to assault him and lunged toward him, brushing up against him. Turner arrested him for public indecency and failing to identify himself. Rogen then asked Turner if he had any weapons, and Turner retorted that it was none of his business. Deputy Helton arrived on the scene and searched the truck, finding a rifle inside.

Helton testified that Donald Graham was seated in the passenger seat of the small, import pickup. Helton checked Graham's identification and told him he was free to leave. Graham identified an archer's bow inside the pickup as his, then retrieved a fanny pack from the truck and walked away. Graham did not take the bow when he left. Helton then searched the truck's interior, finding another bow, a small caliber rifle, and ammunition. The rifle was inside a bow case that was lying partially open across the back seat behind the driver's seat.

Graham testified that he and Turner had been out in Turner's pickup "bow hunting and four-wheeling" and had stopped in Stevenson to clean the truck's wheels. Graham said that the rifle and one of the bows were his and that he had bought the rifle from Turner a few years earlier for $100. He said that Turner had not handled the rifle or had it in his possession the entire day.

Turner knew that a prior conviction precluded him from having firearms, and he testified that he had "sold all my rifles, got rid of all my guns." Turner said that he knew Graham was bringing the rifle along that day, but he never touched it.

Turner was charged with unlawful possession of a firearm, obstructing a law enforcement officer, and indecent exposure. The trial court granted Turner's motion for a directed verdict for the count of indecent exposure because of insufficient evidence. The jury found Turner guilty of the remaining two counts.

The State concedes jury instruction four was improper and constitutes reversible error. But Turner seeks dismissal with prejudice because the evidence was insufficient on both counts.

I. Jury Instruction

Turner properly argues that jury instruction four, which allowed the jury to consider an alternative basis for the charge of unlawful possession of a firearm, was improper. "It is reversible error to try a defendant under an uncharged statutory alternative because it violates the defendant's right to notice of the crime charged." State v. Doogan, 82 Wash.App. 185, 188, 917 P.2d 155 (1996). When the information charges only one of the alternatives, it is error to instruct the jury that they may consider other ways or means by which the crime could have been committed. State v. Bray, 52 Wash.App. 30, 34, 756 P.2d 1332 (1988); see also State v. Severns, 13 Wash.2d 542, 125 P.2d 659 (1942).

Here, the information charged only two of the alternatives to unlawful possession of a firearm, omitting the illegal ownership alternative. RCW 9.41.040(1)(b). In the jury instruction, however, the trial court provided all three alternatives to the jury. The State correctly concedes reversible error and recommends a new trial.

Because the State properly concedes error, we do not consider Turner's other claims of prosecutorial misconduct in closing, and ineffective assistance of counsel. We do consider, however, Turner's challenge to the sufficiency of the evidence as insufficiency would mandate dismissal with prejudice.

II. Sufficiency of the Evidence

Turner claims there was insufficient evidence to support his conviction for unlawful possession of a firearm and obstructing a law enforcement officer.

Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). In determining whether the necessary quantum of proof exists, we need not be convinced of the defendant's guilt beyond a reasonable doubt; we need only be satisfied that substantial evidence supports the State's case. State v. Galisia, 63 Wash.App. 833, 838, 822 P.2d 303 (1992).

A. Unlawful Possession of a Firearm

To convict Turner of unlawful possession of a firearm as charged, the State had to prove that he knowingly had a firearm in his possession or his control and that he had previously been convicted of a felony. RCW 9.41.040(1)(b). State v. Anderson, 141 Wash.2d 357, 5 P.3d 1247 (2000). Turner conceded he previously had been convicted of a felony.

Possession may be actual or constructive. State v. Echeverria, 85 Wash.App. 777, 783, 934 P.2d 1214 (1997). A jury can find a defendant constructively possessed a firearm if the defendant had dominion and control over it or over the premises where the firearm was found. Echeverria, 85 Wash.App. at 783, 934 P.2d 1214. A vehicle is a "premises" for purposes of this inquiry. State v. Mathews, 4 Wash.App. 653, 656, 484 P.2d 942 (1971). One can be in constructive possession jointly with another person. State v. Morgan, 78 Wash.App. 208, 212, 896 P.2d 731, review denied, 127 Wash.2d 1026, 904 P.2d 1158 (1995).

As Turner asserts, close proximity alone is not enough to establish constructive possession; other facts must enable the trier of fact to infer dominion and control. State v. Spruell, 57 Wash.App. 383, 388-89, 788 P.2d 21 (1990). But 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. No single factor, however, is dispositive in determining dominion and control. State v. Collins, 76 Wash. App. 496, 501, 886 P.2d 243, review denied, 126 Wash.2d 1016, 894 P.2d 565 (1995). The totality of the circumstances must be considered. Collins, 76 Wash.App. at 501, 886 P.2d 243.

This case is similar to Echeverria, where the court found that a rational trier of fact could reasonably infer that the defendant possessed or controlled a gun that was within his reach. The gun was in plain sight, sticking out from underneath the defendant's driver's seat. Echeverria, 85 Wash.App. at 783, 934 P.2d 1214.

Here, Turner admitted that he was driving his truck with his friend, Graham, and that he knew the rifle was in the back seat. Graham claimed the gun was his. The evidence showed that Turner was in close proximity to the rifle, knew of its presence, was able to reduce it to his possession, and had been driving the truck in which the rifle was found. Turner does not dispute that the truck was his and that he had dominion and control over the truck. Officer Helton searched the truck after Turner was arrested. He testified that he could see the rifle in a partially open case in the back seat behind the driver's seat in the extended cab of the small pickup truck. He stated that the rifle was within an arm's reach. Like Echeverria, a rational trier of fact could find that Turner possessed or controlled the rifle found in the open case on the back seat of his truck.

Turner essentially claims his case is indistinguishable from State v. Callahan, 77 Wash.2d 27, 459 P.2d 400 (1969), which held that close proximity to illegal drugs was not sufficient to establish constructive possession. Turner is correct that, in Callahan and in this case, there was another person present who claimed the item. But exclusive control by the defendant is not required. State v. Amezola, 49 Wash.App. 78, 86, 741 P.2d 1024 (1987). Another person claiming ownership is only one factor in evaluating whether the defendant has constructive possession. See Collins, 76 Wash.App. at 501, 886 P.2d 243. Moreover, Turner confuses the concepts of dominion and control over premises with mere close proximity to an item. The defendant in Callahan did not have dominion and control over the premises where the drugs were found. Callahan, 77 Wash.2d at 31, 459 P.2d 400. In contrast, Turner had dominion and control of the truck where the rifle was found; he owned the truck and was the driver.

Turner asserts that "proof of control over premises alone is insufficient to show dominion of an item." Br. of Appellant at 15. Turner ignores that the Supreme Court in Callahan relied on a line of cases that held that when there is...