Opinion
No. 35099-8-II.
September 30, 2008.
Appeal from a judgment of the Superior Court for Skamania County, No. 06-1-00019-4, E. Thompson Reynolds, J., entered June 15, 2006.
UNPUBLISHED OPINION
David Risley appeals from his conviction of second degree unlawful possession of a firearm, arguing that his counsel failed to provide effective assistance. We affirm.
FACTS
On March 4, 2006, Risley's friend Lloyd Hawkins asked him to go for a drive. The two spent the day in the woods. After their excursion, a deputy sheriff stopped Hawkins for speeding. Skamania County Sheriff's Deputy David Garcia noticed a firearm between the driver and the passenger and asked Hawkins's permission to take the weapon from the car for his safety. Hawkins agreed. Garcia returned to his vehicle to ensure that the firearm was not loaded. He then radioed for a "wants check" on both Hawkins and Risley. Report of Proceedings (RP) at 5.
At trial, Garcia testified that both men said they had been using the weapon for target practice in the woods. Risley testified that at no time did he discharge the firearm or have control over it. He did, however, on cross examination, testify that he knew the weapon was on the rear seat.
Upon returning to the car to give back the firearm and cite Hawkins for speeding, Garcia received a dispatch notifying him of Risley's status as a convicted felon. When Garcia told Risley that his felony conviction barred him from possessing a firearm, Risley answered that he "thought he could be around firearms." RP at 7. Garcia arrested Risley.
Risley had a prior conviction of second degree theft, a class C felony, committed on October 22, 1989. As a convicted felon, he could not possess a firearm. RCW 9.41.040(2)(a)(i).
The State charged Risley with second degree unlawful possession of a firearm under RCW 9.41.040(2)(a)(i). A jury found him guilty. He appeals.
ANALYSIS
Risley contends that he received ineffective assistance of counsel. He asserts that counsel failed to object to jury instructions that lacked a required knowledge element.
The federal and state constitutions guarantee effective assistance of counsel. U.S. Const. amend VI; Wash. Const. art. I, § 22. To prove ineffective assistance of counsel, a party must show (1) counsel's deficient performance (2) prejudiced him. In re Pers. Restraint of Woods, 154 Wn.2d 400, 420-21, 114 P.3d 607 (2005). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Varga, 151 Wn.2d 179, 198-99, 86 P.3d 139 (2004). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
The State agrees that the jury instruction lacked the knowledge element required by State v. Anderson, 141 Wn.2d, 357, 5 P.3d 1247 (2000). Thus, it concedes that defense counsel's failure to object to the incorrect jury instruction fell below the required objective standard and that Risley meets the first prong of an ineffective assistance of counsel claim. We turn to the second prong to determine whether he suffered prejudice.
Relying on State v. Shouse, 119 Wn. App. 793, 83 P.3d 453 (2004), Risley argues that like Shouse, he suffered prejudice because he repeatedly denied that he held, aimed, or fired the weapon. Risley's argument fails because here, unlike in Shouse, a review of the record discloses that Risley acknowledged that he had held the weapon or that he knew the firearm was present in the car.
First, we have previously held that a defendant can be properly convicted for unlawful possession of a firearm if he constructively possessed, rather than actually possessed, the firearm. State v. Chang, noted at ____ Wn. App. ____, 2008 WL 4062788, at *3. Constructive possession can exist, for instance, where a person does not actually possess but "may reduce the object to actual possession immediately." Chang, 2008 WL 4062788 at *3 (quoting State v. Chavez, 138 Wn. App. 29, 156 P.3d 246 (2007)).
Second, Risley and Garcia provide conflicting testimony. Although Risley insists that he never exerted any control over the firearm, Garcia testified that Risley at first told him that he had been target shooting in the woods. Accordingly, the jury was free to believe Garcia's testimony and not believe Risley's. We do not review such credibility determinations. State v. Camarillo, 115 Wn.2d 50, 71, 794 P.2d 850 (1990).
More importantly, Risley provided, without further qualification or contradiction, testimony that he had full knowledge of the gun's presence. On cross-examination, he testified
Q . . . And you had no idea there was a gun in the car?
A (No response.)
Q No clue?
THE COURT: You need to speak up, sir.
Mr. Risley: No
THE COURT: Thank you.
Q All right. Not until the officer pointed it out and asked you to — asked Mr. Hawkins to give it to him for officer safety purposes?
A Yeah, then I knew it was there.
Q That was the first time you had any idea?
A Oh, I probably knew it was back there, but I didn't really, you know.
Q What do you mean? I didn't understand that.
A You know, I knew it was back there, but I didn't think I was, you know —
Q You knew it was back there?
A Yeah.
Q Okay. A But I'm not, you know, I didn't know I was in the wrong.
RP at 78.
In State v. Brown, 147 Wn.2d 330, 344, 58 P.3d 889 (2002), our Supreme Court held that where an erroneous instruction omits an element of the crime charged, we may engage in a harmless error analysis. When engaging in a harmless error analysis, we must decide whether the result would have differed absent the error. State v. Levy, 156 Wn.2d 709, 725, 132 P.3d 1076 (2006). We reverse only when the error releases "the State of its burden to prove each element of the case. . . . From the record, it must appear beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Brown, 147 Wn.2d at 344.
Here, the evidence overwhelms any possible prejudice. Garcia testified that the weapon lay between the driver and Risley. He also testified that Risley admitted that he had used the weapon for target practice. Risley also testified that the weapon lay on the backseat and that he knew it was there. Risley's ineffective assistance of counsel claim fails.
Affirmed.
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.
BRIDGEWATER, J. and ARMSTRONG, J., concur.