Opinion
No. 25726-6-III.
May 1, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-8-01387-1, Royce H. Moe, J. Pro Tem., entered December 7, 2006.
Reversed by unpublished opinion per Brown, J., concurred in by Kulik, A.C.J., and Thompson, J. Pro Tem.
Kace A. Perry appeals his juvenile adjudication for second degree unlawful possession of a firearm, contending the trial court erred in denying his motion to suppress evidence for an unlawful Terry stop and in finding him guilty based on inadequate stipulated facts. We conclude the facts insufficiently support the firearm conviction. Since this issue is dispositive, we do not reach the suppression issue. Accordingly, we reverse.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
FACTS
In November 2006, Spokane County Deputy Jack Rosenthal drove past the Sunset Market while on patrol and saw two individuals in a parked car in the parking lot. The deputy drove by the parking lot a short time later and saw the same parked car, now with the passenger window rolled down and two individuals standing outside the vehicle, "one of whom ha[d] an open backpack and [wa]s leaning into the car." Clerk's Papers (CP) at 76. "[T]he totality of the circumstances indicated to [Deputy Rosenthal] that a drug deal or other illegal transaction had taken place." CP at 76.
"Deputy Rosenthal decided to investigate, driving his patrol vehicle into the parking lot, blocking the parked vehicle." CP at 76. The deputy ran the individual's names and found an arrest warrant for Mr. Perry. During Mr. Perry's arrest, Deputy Rosenthal found a .22 caliber semi-automatic pistol on the vehicle floorboard at Mr. Perry's feet. The deputy seized the firearm and in searching Mr. Perry, he found a loaded .22 caliber magazine clip in Mr. Perry's pocket.
The State charged Mr. Perry with second degree unlawful possession of a firearm, alleging a previous attempted first degree theft conviction as an element of the current offense. Mr. Perry unsuccessfully moved to suppress the firearm evidence for an unlawful Terry stop. He then stipulated to the CrR 3.6 suppression testimony and the affidavit of probable cause for purposes of the adjudicatory hearing. The affidavit of probable cause states: "Deputy Rosenthal was further informed by dispatch that [Mr.] PERRY was a convicted Felon. Convicted for 1st Degree Assault/Great Bodily Harm on March 14, 2006." CP at 2. The court found Mr. Perry guilty, by a corrected order, of second degree unlawful possession of a firearm, having "previously been convicted of Attempted First Degree Theft, a felony offense." CP at 81. Mr. Perry appealed.
ANALYSIS
A. Firearm Count Evidence Sufficiency
The issue is whether sufficient evidence supports Mr. Perry's adjudication for second degree unlawful possession of a firearm, considering the prior conviction evidence. Mr. Perry contends the stipulated affidavit of probable cause merely shows someone in dispatch told Deputy Rosenthal that he had a prior felony conviction, other than the one alleged in the information.
We review a trial court's findings of fact for substantial evidence. State v. Carlson, ___ Wn. App. ___, 178 P.3d 371, 376 (2008). We review a trial court's conclusions of law de novo. Id.; State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003). The trial court's findings of fact must support its conclusions of law. Carlson, ___ Wn. App. ___, 178 P.3d 371, 376 (2008). Unchallenged findings of fact are verities on appeal. Id.
We review an evidence sufficiency challenge in a light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We accept the State's evidence as true and view all reasonable inferences in favor of the State. Id. We will affirm if the trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. "In a stipulated facts trial, the judge or jury still determines the defendant's guilt or innocence; the State must prove beyond a reasonable doubt the defendant's guilt; and the defendant . . . by the stipulation, agrees that what the State presents . . . the witnesses would say." State v. Johnson, 104 Wn.2d 338, 342, 705 P.2d 773 (1985). Where a prior conviction or adjudication is an element of the crime charged, the State bears the burden of proving both the existence of the prior conviction and defendant's identity as the individual convicted. State v. Hunter, 29 Wn. App. 218, 221-22, 627 P.2d 1339 (1981).
An individual is guilty of second degree unlawful possession of a firearm if, not qualifying for first degree unlawful possession of a firearm, the individual "owns, has in his or her possession, or has in his or her control any firearm: (i) After having previously been convicted . . . of any felony not specifically listed as prohibiting firearm possession under subsection (1) of this section." RCW 9.41.040(2)(a)(i).
Here, no evidence supports the court's finding and conclusion that Mr.Perry "has a prior conviction of Attempted First Degree Theft." CP at 80. The stipulated affidavit of probable cause is insufficient because it related Deputy Rosenthal was informed that Mr. Perry had a prior first degree assault/great bodily harm conviction. The State must show, beyond a reasonable doubt that a prior conviction actually exists and that Mr. Perry was the individual convicted. Mr. Perry did not stipulate to having a prior conviction or to the truth of the dispatch statements. He simply stipulated to the fact that dispatch made certain statements to Deputy Rosenthal. Based on this record, the court erred in finding Mr. Perry guilty of second degree unlawful possession of a firearm; a prior felony conviction is a necessary element of the crime charged.
B. Suppression Motion
Since the evidence sufficiency issue is dispositive, we do not reach the suppression issue.
Reverse.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.40.
Kulik, A.C.J. and Thompson, J. Pro Tem., Concur