Opinion
No. 35917-1-II.
October 21, 2008.
Appeal from a judgment of the Superior Court for Mason County, No. 06-1-00437-0, James B. Sawyer II, J., entered February 5, 2007.
Reversed and remanded by unpublished opinion per Van Deren, C.J., concurred in by Penoyar, J; Quinn-Brintnall, J., dissenting.
Steven A. Mencer appeals his conviction and sentence for second degree unlawful possession of a firearm. He contends that the evidence was insufficient to prove all alternative means of possessing a firearm in the to-convict instruction and that his counsel was ineffective for failing to object to the lack of a unanimity instruction. Holding that the record (1) contains no evidence that Mencer owned the firearm and (2) does not convince us that the jury verdict was based only on one of the alternative means of possessing it, we reverse and remand for a new trial.
FACTS
Just before daybreak on October 17, 2006, the sheriff's office executed a search warrant at a mobile home residence in Mason County. The sheriff's office had information that two felons were living in the home and that there were firearms present. Mencer, who was staying in one of the bedrooms, was not a specific target of the search.
When the officers entered his bedroom, Mencer was lying on a mattress on the floor, wearing headphones that were plugged into a stereo that was part of an entertainment center located next to the mattress. He did not comply with the officers' commands and they used a taser to take him into custody. Thereafter, the officers discovered a loaded handgun on top of the stereo and ammunition for the handgun on top of the entertainment center. A search of the bedroom closet revealed two rifles and a shotgun.
The State charged Mencer with four counts of second degree unlawful possession of a weapon under RCW 9.41.040(2)(a)(i), one count for each of the firearms discovered in the bedroom. At trial, Mencer stipulated that the firearms found in the bedroom were in working order and that he had a prior felony conviction for purposes of RCW 9.41.020(a)(i).
RCW 9.41.040(2)(a)(i) states, in essential part, that:
A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the second degree, if the person . . . owns, has in his or her possession, or has in his or her control any firearm . . . [a]fter having previously been convicted of any felony [not defined as a serious offense].
Mencer denied that the firearms were his and denied any knowledge of their presence in the room. He testified that he entered the bedroom the night before the search after unlocking the door's padlock. He said that it was late and, although he plugged the headset into the stereo, he did not turn on the lights and did not see the handgun. A detective testified that the handgun could easily be seen by anyone using the entertainment center. Many photographs of the room were admitted as evidence. No fingerprints were found on the handgun.
Debbie Marshall testified at trial that she was scheduled to move into the bedroom where Mencer was found and, in anticipation of the move, she obtained another key to the padlock from the homeowner and placed some of her possessions in Mencer's room the night before the search. Among the items she put in the bedroom were two shotguns, a rifle, and a handgun that she owned. But she was certain that the handgun found on the stereo was not one of the four firearms she put in the room. She explained that she had not come forward with this information until the week before trial because she did not realize that Mencer was charged with possession of the firearms she placed in the room. But Marshall was unable to correctly identify the day of the search or to positively identify any of the firearms.
Marshall testified that she was positive that deputies served the search warrant and conducted the search on a Wednesday, the day after she placed the firearms in the bedroom. But, in fact, October 17, 2006, was a Tuesday.
Mencer was convicted on the one count involving the handgun, but was acquitted of the other three counts. The trial court sentenced him, within the standard range, to 10 months of incarceration. He appeals.
ANALYSIS
I. Unlawful Possession of a Weapon — Alternative Means Jury Instruction
Mencer contends that jury instruction 12 set forth three alternative means of committing the offense of unlawful possession of a weapon and that the State failed to present sufficient evidence of each alternative. He also asserts that his counsel was ineffective for failing to object to the jury instructions. He asks us "to reverse and dismiss his conviction." Br. of Appellant at 13.
Mencer also suggests that the jury instructions were constitutionally defective because they did not include a unanimity instruction. But Mencer did not object to the jury instructions at trial. Generally, an issue cannot be raised for the first time on appeal unless it is a "manifest error affecting a constitutional right." See RAP 2.5(a)(3). And our Supreme Court has held that "due process does not require express jury unanimity as to alternative means of a single crime." State v. Fortune, 128 Wn.2d 464, 475, 909 P.2d 930 (1996). Therefore, we only consider Mencer's contention of insufficient evidence.
A. Standard of Review
In an alternative means case, there is no requirement for express jury unanimity as to each alternative means of a single crime so long as an inference of unanimity is present. See State v. Fortune, 128 Wn.2d 464, 475, 909 P.2d 930 (1996); State v. Ortega-Martinez, 124 Wn.2d 702, 707-08, 881 P.2d 231 (1994). Thus, the threshold test on review is whether sufficient evidence exists to support each of the alternative means presented to the jury. State v. Smith, 159 Wn.2d 778, 790, 154 P.3d 873 (2007) (citing State v. Randhawa, 133 Wn.2d 67, 74, 941 P.2d 661 (1997)).
"If there is sufficient evidence to support each alternative means submitted to the jury, the conviction will be affirmed because [the reviewing court] infer[s] that the jury rested its decision on a unanimous finding as to the means." Randhawa, 133 Wn.2d at 74. Evidence is sufficient if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). "If one or more of the alternative means is not supported by substantial evidence, the verdict will stand only if we can determine that the verdict was based on only one of the alternative means and that substantial evidence supported that alternative means." State v. Fleming, 140 Wn. App. 132, 136, 170 P.3d 50 (2007).
Here, the jury was instructed that, to convict Mencer of second degree unlawful possession of a firearm, the State had to prove the following elements of the crime beyond a reasonable doubt:
(1) That on or about the 17th day of October, 2006, the defendant knowingly owned, knowingly had in his possession or knowingly had in his control a firearm, to wit: a Berrata .22 caliber pistol, Serial No. 95021; and
(2) That the defendant had previously been convicted of a felony that was not a serious offense as defined by Chapter 9.41 RCW; and
(3) That the ownership or possession or control of the firearm occurred in the State of Washington.
Clerk's Papers (CP) at 37 (emphasis added).
The trial court did not use the pattern jury instruction for cases where "alternative means of committing second degree unlawful possession of a firearm are charged." 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 133.02.02, note on use at 236 (supp. 2005) (WPIC). WPIC 4.23, the to-convict instruction states, "[t]o return a verdict of guilty, the jury need not be unanimous as to which of [the alternative means] has been proved beyond a reasonable doubt, as long as each juror finds that at least one alternative has been proved beyond a reasonable doubt." 11 WPIC 4.23 at 103 (supp. 2005).
The comments following pattern instruction WPIC 4.23 note that the Washington Supreme Court has held that jurors need not be unanimous as to alternative means, as long as sufficient evidence supports each of the alternative means. 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 4.23, comment at 104-05 (supp. 2005) (WPIC) (citing State v. Ortega-Martinez, 124 Wn.2d at 707-08). Thus, if the State fails to specify which alternative means is relied on, a jury verdict will be reversed unless sufficient evidence supports each of the alternative means. The Supreme Court, citing State v. Whitney, 108 Wn.2d 506, 511, 739 P.2d 1150 (1987), stated that "[w]e strongly urge counsel and trial courts to heed our notice that an instruction regarding jury unanimity on the alternative method is preferable." Ortega-Martinez, 124 Wn.2d at 717 n. 2. The Supreme Court's reliance on Whitney makes it clear that "an instruction on jury unanimity as to the alternative method found is preferable because it eliminates potential problems which may arise when one of the alternatives is not supported by substantial evidence." Whitney, 108 Wn.2d at 511. The Whitney court noted that an "`instruction on the requirement of unanimity suffices to instruct the jury that they must be unanimous on whatever specifications form the basis of the guilty verdict.'" Whitney, 108 Wn.2d at 512 (quoting United States v. Payseno, 782 F.2d 832, 835 (9th Cir. 1986)).
Mencer asserts that "the State presented no evidence of the actual `ownership' of the [handgun], which is particularly troubling given that the firearm carried a serial number." Br. of Appellant at 7. The State does not answer this argument, instead it asserts that RCW 9.41.040(2)(a) does not have separate subsections typically associated with statutes providing for alternative means of conviction.
"Alternative means statutes identify a single crime and provide more than one means of committing the crime." In re Det. of Halgren, 156 Wn.2d 795, 809, 132 P.3d 714 (2006).
Legislative intent determines whether this court should analyze a statute under the alternative means framework. [ State v. Arndt, 87 Wn.2d 374, 378, 553 P.2d 1328 (1976)]. In Arndt and State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997), we determined legislative intent by considering "(1) the title of the act; (2) whether there is a readily perceivable connection between the various acts set forth; (3) whether the acts are consistent with and not repugnant to each other; and (4) whether the acts may inhere in the same transaction." Berlin, 133 Wn.2d at 553 (citing Arndt, 87 Wn.2d at 379).
In re Det. of Halgren, 156 Wn.2d at 809-10.
Here, we note that alternate means — of ownership, or possession, or control — exist under the single title of "unlawful possession of a firearm." RCW 9.41.040(1)(a); Berlin, 133 Wn.2d at 553. The alternate means pertain to a common offense: possession of a firearm. And the alternative means of possessing or controlling or owning are not repugnant to one another because proof of one does not disprove the other. Finally, there is a clear distinction between owning a firearm and possessing or controlling one. See Arndt, 87 Wn.2d at 383-84. For example, Marshall could have owned the firearm and Mencer could have possessed or controlled it. Moreover, we have previously noted that under RCW 9.41.040(1)(b) "[s]econd 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." State v. Holt, 119 Wn. App. 712, 718, 82 P.3d 688 (2004), overruled on other grounds by State v. Willis, 153 Wn.2d 366 (2005). Therefore, the State's assertion that RCW 9.41.040(2)(a) is not an alternative means statute has no merit.
Here, the instructions provided for a conviction if Mencer "knowingly owned," "knowingly had in his possession," or "knowingly had in his control" the handgun described in jury instruction 12. CP at 37. Therefore, Mencer's conviction must be vacated unless the record shows substantial evidence supporting each of these alternative means. See State v. Coleman, 159 Wn.2d 509, 512, 150 P.3d 1126 (2007). But the verdict will stand if we can determine that the verdict was based on substantial evidence for only one of the alternative means. See Fleming, 140 Wn. App. at 136.
Mencer contends that the State "presented no evidence" that Mencer actually owned the handgun at issue. Br. of Appellant at 7. We agree. Mencer denied that he owned the handgun. Marshall testified that she owned four firearms that she had placed in the bedroom before the search but was certain that the handgun found on the stereo was not one of the four firearms she put in the room. In the State's closing argument, although the State did not produce any evidence of Mencer's ownership, the State argued that the jury could conclude that he owned the handgun:
And what the State has to prove is that the defendant — the first element; that he owned, that he possessed, or that he controlled a firearm. And, specifically, the firearm with respect to each count as described. That's the first element, but there are some things to break out of that element that are relevant.
Ownership [sic] as we all talked about in the jury selection process. Ownership is not particularly relevant — or if relevant, not determinative of possession; they are not the same thing. . . .
That doesn't mean to say that based on the facts of this case you may not believe that the defendant owned these guns. You had testimony from Debbie Marshall that said she owned the guns and you may or may not believe that she told you the truth about owning those guns. The point is, this case isn't about ownership; this case is about possession.
Report of Proceedings (RP) at 198-99 (emphasis added).
The record is devoid of any evidence other than Marshall's testimony about gun ownership. Nothing in the record discusses the gun's serial number and the State advised the jury in closing argument that the "case [wasn't] about ownership." RP at 199. At the same time, the State argued that either ownership or possession or control was before the jury. RP at 198-99 ("[W]hat the State has to prove is that the defendant — the first element; that he owned, that he possessed, or that he controlled a firearm. . . . [B]ased on the facts of this case you may not believe that [Mencer] owned these guns.").
Thus, the evidence, viewed in the light most favorable to the State, leaves doubt about who owned the handgun and does not conclusively show that the jury could only have believed that Mencer possessed or controlled, but did not own, the handgun. And only where there is no doubt that the verdict was based on only one of the alternative means can we be sure there is no danger that the verdict was not unanimous. Fleming, 140 Wn. App. at 137 ("We can determine, from the record before us, that the verdict was based on only one of the alternative means."); State v. Allen, 127 Wn. App. 125, 137, 110 P.3d 849 (2005) (conviction overturned where the court could not be certain that the jury relied solely on one means because evidence regarding two alternatives was presented); State v. Rivas, 97 Wn. App. 349, 354-55, 984 P.2d 432 (1999), overruled on other grounds by State v. Smith, 159 Wn.2d 778 (2007) (conviction affirmed where there was no danger that the verdict rested on unsupported alternative means because evidence was presented as to only one means).
The dissent argues that the State did not try to prove ownership. But Marshall was the State's witness and she testified about her ownership of four firearms that she placed in Mencer's room the day before the search. While all four weapons were near Mencer when he was arrested, the only firearm the jury returned a guilty verdict on was the one that Marshall could not positively identify as one that she owned. And the State told the jury in closing arguments that it could find that Mencer owned the firearms. Under these facts, doubt remains about jury unanimity on ownership or possession or control.
We hold that, viewing the record in the light most favorable to the State, the evidence was insufficient for any rational trier of fact to conclude beyond a reasonable doubt that Mencer owned any firearm at issue. And, based on the record before us, it is possible that some jurors may have convicted Mencer because they believed he did own the firearm, while others based their guilty verdict on his possession or control of the firearm. Accordingly, Mencer's conviction must be reversed.
III. Ineffective Assistance of Counsel
Mencer also asserts that his counsel was ineffective for failing to object to the lack of a unanimity instruction based on the alternative means of committing the crime in the to-convict instruction. Because we reverse the conviction and remand for a new trial based on the lack of evidence of the alternative means of ownership and cannot say with certainty the basis of the jury's conviction, we do not reach Mencer's contention of ineffective assistance.
We vacate Mencer's conviction, reverse his sentence, and remand for a new trial.
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.
I dissent from the majority's decision to reverse Steven A. Mencer's conviction and sentence for second degree unlawful possession of a firearm. Mencer was convicted of second degree unlawful possession of a firearm for being a convicted felon and knowingly owning, or having in his possession, or having under his control, a Beretta .22 caliber pistol, Serial No. 95021. The jury was instructed that, to convict Mencer of the crime charged, they must be unanimous as to his guilt. But the jury was not separately instructed that it must all agree that he either knowingly owned or knowingly had in his possession or under his control a firearm that, as a convicted felon, he was not lawfully entitled to possess. The majority contends that the failure to reinstruct the jury regarding unanimity violated Mencer's right to a unanimous jury verdict and requires reversal of his conviction. I respectfully disagree.
First, the jury was instructed that they must be unanimous in their findings to return a guilty verdict. Jury instruction 2 reads in relevant part:
As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become convinced that it is wrong. However, you should not change your honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors, or for the mere purpose of returning a verdict.
Clerk's Papers at 27.
Second, the legislature can and has defined crimes as having alternate (as opposed to alternative) means. See, e.g., RCW 9A.72.120. RCW 9A.72.120, tampering with a witness, states is relevant part:
(1) A person is guilty of tampering with a witness if he or she attempts to induce a witness or person he or she has reason to believe is about to be called as a witness in any official proceeding or a person whom he or she has reason to believe may have information relevant to a criminal investigation or the abuse or neglect of a minor child to:
(a) Testify falsely or, without right or privilege to do so, to withhold any testimony; or
(b) Absent himself or herself from such proceedings; or
(c) Withhold from a law enforcement agency information which he or she has relevant to a criminal investigation or the abuse or neglect of a minor child to the agency.
In such cases, a unanimity instruction requiring that the jury unanimously agree whether the defendant violated RCW 9A.72.120(1)(a), (b), or (c) is appropriate. In contrast, second degree unlawful possession of a firearm contains but one element, which is satisfied on proof of a previously convicted felon's knowing possession of a firearm. See RCW 9.41.040.
Third, I believe the majority's reliance on State v. Lobe, 140 Wn. App. 897, 167 P.3d 627 (2007), is misplaced. In my view, the majority in Lobe correctly analyzed the law when it set forth the following standard regarding unanimity:
[T]he law has moved from an inference of unanimity as to means only where each means is supported by substantial evidence[,] to a bright line rule that "[u]nanimity is not required . . . as to the means by which the crime was committed so long as substantial evidence supports each alternative means." [ State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988)]. In sum, where there are three alternative means of committing a crime, and the jury is instructed on all three, either (1) substantial evidence must support each alternative means on which evidence or argument was presented, or (2) evidence and argument must have only been presented on one means.
Lobe, 140 Wn. App. at 905.
The majority in Lobe then applied this standard to the witness tampering statute in which the legislature had set out three alternate means of committing the offense. See RCW 9A.72.120(1)(a), (b), and (c). Moreover, in Lobe, the State had urged in its closing argument that the jury convict Lobe under a means that the reviewing court found to be unsupported by substantial evidence. Mentioning that the error could easily have been avoided, the Lobe court ordered reversal and remanded for a new trial.
In my view, the ease of avoiding an error is irrelevant to whether such error undermines the jury verdict. Furthermore, in the instant case, the legislature did not create alternate means of committing the crime of second degree unlawful possession of a firearm; instead, it provided in a single element that a person commits second degree unlawful possession of a firearm when the person "owns, has in his or her possession, or has in his or her control any firearm." RCW 9.41.040(2)(a). Moreover, in its closing argument, the State focused the jury's attention on Mencer's knowing possession of the Beretta, when it stated that, while "the State has to prove . . . that [Mencer] . . . owned, that he possessed, or that he controlled a firearm," the question of ownership is not particularly relevant — or, if relevant, not determinative of possession — because "this case isn't about ownership; this case is about possession." 2 Report of Proceedings (RP) at 198-99.
But even if the statute is read as containing alternate means for committing second degree unlawful possession of a firearm, the evidence was sufficient to support Mencer's conviction. 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. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
Here, Debbie Marshall, who was to move into the room that Mencer was vacating, testified that she was storing four guns in the closet of Mencer's room: "two shot guns, a .22 and a pistol." 1 RP at 89. Marshall further testified that the Beretta, State's exhibit 27, which formed the basis for Mencer's first count of unlawful possession, was not hers. Furthermore, during the warranted search of Mencer's bedroom, Detective Robert Noyes saw headphones lying on the bed where Mencer had been sleeping. The headphones were attached to an entertainment center. And on top of the entertainment center, in plain view, was the loaded Beretta.
Thus, the record shows that Marshall's guns were in the closet, she did not own the Beretta that formed the basis of Mencer's charge, and Mencer had dominion and control over the Beretta.
In my opinion, the legislature did not define unlawful possession of a firearm as an alternate means offense and, even if it did, the jury was instructed that it must be unanimous in its decision. Furthermore, the State did not argue that the jury was required to base its decision on evidence that Mencer owned the Beretta but, even if it had, inferences from Marshall's testimony, together with the location of the Beretta, were substantial evidence to support the jury's verdict.
Accordingly, Mencer received a fair trial, his conviction rests on a unanimous verdict, and I would affirm.