Opinion
No. 39305-1-II.
Filed: January 4, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Pierce County, No. 09-8-00433-9, Kathryn J. Nelson, J., entered May 19, 2009.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Penoyar, C.J., and Bridgewater, J.
After a bench trial, the trial court found juvenile J.G. guilty of first degree unlawful possession of a firearm, under RCW 9.41.040(1)(a); unlawful possession of a controlled substance (marijuana under 40 grams), under RCW 69.50.101(q) and .4014; and making a false or misleading statement to a public servant, under RCW 9A.76.175. J.G. appeals only his firearm conviction, arguing that the evidence is insufficient to show that he knowingly and constructively possessed the firearm that was found lying on a car's passenger seat in which he had been sitting. Viewing the evidence in the light most favorable to the State, as we must, the evidence is sufficient to support the juvenile court's adjudication as a matter of law. Accordingly, we affirm.
FACTS
On the evening of March 19, 2009, Tacoma police officers were watching a maroon Pontiac which 911 dispatch had reported as having been involved in two burglaries. When the car began to move, Officer Henry Betts attempted to perform a traffic stop of the vehicle. Betts activated his cruiser's lights and air horn but the car led police on a slow chase for about five blocks before police conducted a "high risk stop," ordering the car's occupants to exit one at a time while police remained in a position of cover.
The specifics of the burglary reports are sparse in the record on review. One burglary reportedly involved several black males who kicked in the door of a residence. Another reported a burglary at an apartment complex. A vehicle matching the description of the car in which J.G. was a passenger was seen at at least one of the burglaries.
Police ordered the driver, Byron Hebert, to throw out the car's keys, get out with his hands in the air, and walk backwards until taken into custody. Then they ordered the front passenger, J.G., to get out with his hands up and walk backwards to be taken into custody. Last, they ordered the backseat passenger, Aliajuan Satterwhite, to exit "the driver's side of the car." 2 Report of Proceedings (RP) at 23. Satterwhite climbed over the car seats and out through the open driver's side front door of the four-door vehicle.
Officer Barry Paris took J.G. into custody. A small bag of marijuana was found in J.G.'s front pants pocket during a search incident to his arrest. Because J.G. gave Paris a false name and contact information, it took about 30 minutes to properly identify him.
With Hebert, J.G., and Satterwhite secured in police vehicles, officers looked through the open car doors and saw a loaded Glock .40 semiautomatic handgun on the front passenger's seat where J.G. had been sitting. The gun was operable and had been stolen.
The gun's magazine was loaded but there was no round in the chamber.
The record does not indicate whether the gun was stolen during the burglaries reportedly associated with the vehicle.
Officer Timothy Caber testified that the gun was "on the left side of the passenger seat, barrel pointing towards the front of the car, hand grip toward the driver's seat." 3 RP at 87. Officer Betts noted that the gun looked like it had been placed on the seat after J.G. stood up because otherwise J.G. would have been sitting on top of it in the seat. But Betts also testified that, in his opinion, any one of the three passengers could have put the gun on the seat. There were no fingerprints on the gun and when asked about the gun on the night of the police stop Hebert, Satterwhite, and J.G. each denied possessing the stolen gun.
On March 20, 2009, the State charged J.G., then 15 years old, with first degree unlawful possession of a firearm, unlawful possession of a controlled substance (marijuana under 40 grams), and making a false or misleading statement to a public servant. Following an adjudication, the trial court found J.G. guilty of all three charges. In May 2009, the trial court committed J.G. to the Department of Social and Health Services, Division of Juvenile Rehabilitation for 15 to 36 weeks.
On appeal, J.G. challenges only his first degree unlawful possession of a firearm conviction on the ground that without proof that he, and not Hebert or Satterwhite, possessed the gun, the evidence is insufficient to support his conviction. The law is to the contrary and we affirm.
DISCUSSION
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences that a trier of fact can draw from that evidence. Salinas, 119 Wn.2d at 201. The trier of fact is the sole and exclusive judge of the evidence. State v. Bencivenga, 137 Wn.2d 703, 709, 974 P.2d 832 (1999). We defer to the trier of fact's resolution of conflicting testimony, evaluation of witness credibility, and decisions regarding the persuasiveness of evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
Any person, including a juvenile, is guilty of first degree unlawful possession of a firearm 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 by chapter 9.41 RCW. RCW 9.41.040(1)(a). First degree unlawful possession of a firearm is not a strict liability offense and requires knowing possession of the firearm. State v. Cuble, 109 Wn. App. 362, 366-69, 35 P.3d 404 (2001); see also State v. Banks, 149 Wn.2d 38, 42, 65 P.3d 1198 (2003) (discussing the mens rea requirement of knowledge of the firearm under Washington's unlawful possession of a firearm statute in a case involving first degree unlawful possession of a firearm). Possession may be actual or constructive. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). To establish constructive possession, the State had to show that J.G. had dominion and control over the firearm. State v. Raleigh, 157 Wn. App. 728, 737, 238 P.3d 1211 (2010). "Dominion and control" means that the item "may be reduced to actual possession immediately." State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002). Control need not be exclusive, but the State must show more than mere proximity to the firearm. Raleigh, 157 Wn. App. at 737.
J.G. does not challenge the sufficiency of evidence of his predicate serious offense or that the offense occurred in the State of Washington.
The decision in State v. Echeverria, 85 Wn. App. 777, 934 P.2d 1214 (1997), by Division Three of this court is instructive, and we note some important similarities with the current case. A trial court convicted Echeverria of unlawfully possessing a firearm when police found a gun partially visible, in open view through an open car door, under the driver's seat of a car he had been driving. Echeverria, 85 Wn. App. at 780, 782. The Echeverria court held that a rational trier of fact could reasonably infer that Echeverria possessed or controlled a gun that was sticking out from underneath his car seat and within his reach. 85 Wn. App. at 783. Specifically, the Echeverria court stated that because the gun was in plain sight at Echeverria's feet, it was reasonable to infer that he knew about the gun's presence in the car. 85 Wn. App. at 783.
Here, the evidence, when taken in the light most favorable to the State, shows that the gun was found on the seat next to where J.G. had been sitting. The trial court could reasonably infer from the slow chase and the amount of time it took the car to pull over that the car's occupants were trying to figure out what to do with the gun and drugs they had. Thus, the reasonable inferences from the evidence taken in the light most favorable to the State support the trial court's finding that each of the car's occupants, including J.G., had both knowledge and constructive possession of the stolen gun.
In essence, J.G. contends that unless the State proves that Hebert and Satterwhite did not possess the gun, the evidence is insufficient to support his conviction. But because possession is not exclusive, the law does not require that the State exclude other persons who also had constructive possession of the weapon. Raleigh, 157 Wn. App. at 737. The gun was found in open view on the car seat where J.G. had been sitting. As a matter of law, in a sufficiency of the evidence challenge, we consider all reasonable inferences that a trier of fact can draw from the evidence in favor of the State. Salinas, 119 Wn.2d at 201. And although Officer Betts testified that it seemed unlikely that the gun had been on the seat while J.G. was sitting in the seat, J.G. could have been holding the weapon and any one of the three passengers could have put the gun on the seat. We defer to the trier of fact's resolution of conflicting testimony, evaluation of witness credibility, and decisions regarding the persuasiveness of evidence. Camarillo, 115 Wn.2d at 71; Walton, 64 Wn. App. at 415-16. Accordingly, J.G.'s argument fails.
J.G. also assigns error to the trial court's second conclusion of law and asserts that it is really a finding of fact that is not supported by substantial evidence. The State agrees with J.G. that the trial court mislabeled a factual finding but argues that substantial evidence supports the finding. We disagree. The trial court did not mislabel the finding of fact as a conclusion of law. Moreover, substantial evidence supports it.
Findings of fact are determinations of "whether evidence shows that something occurred or existed." State v. Niedergang, 43 Wn. App. 656, 658, 719 P.2d 576 (1986). Conclusions of law are determinations "made by a process of legal reasoning from facts in evidence." Niedergang, 43 Wn. App. at 658-59. We review findings of fact for substantial evidence, whereas we review conclusions of law de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999), overruled on other grounds by Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007). Unchallenged findings of fact are considered verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
At a juvenile adjudication hearing, the trial court is required to state its findings, including the evidence relied upon, and enter its decision and reduce them to writing if the case is appealed. JuCR 7.11(c)-(d). J.G. challenges the trial court's following written conclusion of law:
That [J.G.] is guilty beyond a reasonable doubt of the crime of Unlawful Possession of a Firearm in the First Degree in that, on 3/19/09, he:
1. Knowingly had a firearm in his possession or control;
2. Had previously been adjudicated guilty as a juvenile of Robbery in the Second Degree, a serious offense; and
3. The possession or control of the firearm occurred in the State of Washington.
Clerk's Papers at 9-10. Contrary to the parties' assertions, the trial court properly denominated this legal reasoning and determined the evidence sufficient to satisfy the requisite beyond a reasonable doubt standard. Whether the facts proved and satisfied the elements of first degree unlawful possession of a firearm is a conclusion of law. This summation of the facts and that they fulfill the elements constituting first degree unlawful possession of a firearm is legal reasoning and not an initial determination that "evidence shows that something occurred." Niedergang, 43 Wn. App. at 658.
The trial court's relevant written findings of fact that are unchallenged verities on appeal and support this conclusion's summary of the evidence includes (1) findings 5, 6, and 7 that describes the police stop and finding of the gun that, when combined with reasonable inferences, support J.G.'s knowledge of the gun; (2) finding 11 that states J.G.'s prior predicate serious offense; and (3) finding 3 that states this incident occurred in Washington. Also, the trial court entered an unchallenged oral finding that "a gun that can be placed within access of all three people and that all three people have immediate potential for actual possession, that that does satisfy . . . constructive possession." 3 RP at 112.
We have already evaluated J.G.'s sufficiency of evidence challenge and it is not necessary to evaluate the evidence supporting J.G.'s conviction a second time. Sufficient evidence supports J.G.'s unlawful possession of a firearm conviction and we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.