Summary
In Thomas v. Woodman, 23 Kan. 217, 33 Am. Rep. 156, defendants diverted water from a stream, lessening the amount so that bars of sand developed in the channel causing alleged injury to the plaintiff.
Summary of this case from Gibbs v. GardnerOpinion
No. 29949-6-II.
Filed: April 6, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No: 02-1-01298-1. Judgment or order under review. Date filed: 02/06/2003. Judge signing: Hon. Robert L Harris.
Counsel for Appellant(s), James J Sowder, Attorney at Law, 1600 Daniels, PO Box 27, Vancouver, WA 98666-0027.
Counsel for Respondent(s), Richard Alan Melnick, Attorney at Law, 1013 Franklin St, PO Box 5000, Vancouver, WA 98666-5000.
Thomas L. Woodman appeals his conviction for unlawful possession of a firearm, arguing insufficiency of the evidence; trial court error in rejecting his proposed entrapment instructions; and a violation of due process. Because the evidence was sufficient to prove all the elements of the crime and that Woodman was predisposed to commit the offense, we affirm.
FACTS
In June 2002, Woodman attended a gun show in Oregon where he purchased a semi-automatic pistol. As part of the process, he completed a background check application form that was necessary to verify his eligibility to own a firearm. But he left the section blank that asked if he had a record of any serious offenses.
Because Woodman had Washington State identification, Clark County police performed the background check; they discovered that Woodman had a 1982 first degree burglary conviction in Oregon and an outstanding arrest warrant in Washington. Detective Marshall Henderson of the Vancouver Police Department independently verified that Woodman was ineligible to purchase and own a firearm.
Woodman planned to pick up the pistol from a Clark County gun store but Henderson notified the store owner of Woodman's ineligibility to purchase the pistol. Although the store owner initially stated he would not sell the firearm to Woodman, Henderson persuaded the store owner to call Woodman and arrange a time for Woodman to pick up the pistol at the store. Henderson said that he would be at the gun store at that time.
On July 1, 2002, Henderson and a federal officer went to the Clark County gun store and posed as customers. Woodman entered the gun store, filled out the paperwork for the semi-automatic pistol, and prepared to pay a handling fee. The gun store owner then gave Woodman a box with the pistol inside, which Woodman picked up. At that point, Henderson approached and told Woodman that he was under arrest. Upon hearing this, Woodman stated something to the effect of `I knew this was going to happen.' Report of Proceedings at 42.
Henderson, a firearms expert, took the semi-automatic pistol out of the box, dry fired it, and determined that the gun was brand new and fully operational. Henderson did not fire a live round from the pistol. The State charged Woodman with first degree unlawful possession of a firearm. At trial, Woodman proposed entrapment defense jury instructions, which the trial court rejected. The jury then returned a verdict of guilty as charged.
ANALYSIS I. Sufficiency of the Evidence
Woodman contends that the State failed to prove that he possessed an operational pistol and, thus, the evidence was insufficient to convict him of the unlawful possession of a firearm.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003). This court considers circumstantial evidence to be as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
A. Gun's Operability
Woodman argues that the evidence was insufficient because the investigator merely dry fired the gun and was not `one hundred percent sure it would work.' Br. of Appellant at 15. But the dispositive inquiry is whether there was enough evidence to demonstrate that Woodman possessed a real gun capable of firing ammunition. RCW 9.41.010(1); State v. Anderson, 94 Wn. App. 151, 162-63, 971 P.2d 585 (1999), rev'd on other grounds, 141 Wn.2d 357 (2000).
Here, an experienced firearms instructor dry fired a new semi-automatic pistol and he testified that all of the gun's operational functions were working. Thus, a rational person could determine that the evidence was sufficient to prove it was an operational pistol.
B. Possession of the Gun
Woodman contends that he did not have dominion and control of the pistol at the gun shop because he merely touched the box that contained the firearm. He also argues that the State failed to prove under RCW 9.41 that he `knew he possessed the firearm.' Br. of Appellant at 15.
To prove unlawful possession of a firearm, the State must show that the defendant knowingly possessed the firearm and `possession may be actual or constructive to support a criminal charge.' State v. Anderson, 141 Wn.2d 357, 359, 5 P.3d 1247 (2000); State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002); see also RCW 9.41.040(1)(a).
To prove actual possession, the State must show that the defendant had `personal custody' of the item at issue. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). To prove constructive possession, the State must show that the defendant had dominion and control of the item; momentary handling can demonstrate constructive possession if it is coupled with additional evidence of control drawn from the totality of the circumstances. State v. Summers, 107 Wn. App. 373, 384, 386-87, 28 P.3d 780 (2001). In this context, persuasive evidence `focus[es] not on the length of the possession but on the quality and nature of that possession' such as the person's ability to eventually possess the item and the defendant's knowledge and awareness that the item is nearby or present. Summers, 107 Wn. App. at 386 (citation omitted).
Here, viewing the totality of the circumstances in the light most favorable to the State, a rational person could find that Woodman had actual or constructive possession of the pistol and that he knew that the box at the gun store contained the pistol. He purchased a specific pistol at a gun show, completed paperwork necessary to take possession, and weeks later traveled to a particular gun store take possession of the pistol he had selected. Upon arrival at the gun store, Woodman completed additional paperwork and expected to pay a handling fee. When the gun store owner handed him the box with the pistol inside, he took the box. It is undisputed that he intended to keep this pistol.
Thus, there was sufficient evidence to prove possession.
II. Entrapment
Woodman next argues that he was entitled to an entrapment jury instruction because he did not intend to unlawfully possess the pistol and because the police originated the criminal design of his possession of the pistol.
`[E]ntrapment occurs when the crime originates in the mind of the police or an informant and the defendant is induced to commit a crime which he was not predisposed to commit.' State v. Lively, 130 Wn.2d 1, 9-10, 921 P.2d 1035 (1996) (citing RCW 9A.16.070 and common law). RCW 9A.16.070(2) emphasizes that `[t]he defense of entrapment is not established by a showing only that law enforcement officials merely afforded the actor an opportunity to commit a crime.'
The defendant must prove an entrapment defense by a preponderance of the evidence. Lively, 130 Wn.2d at 17. Consequently, we review a defendant's contention that the trial court wrongfully denied him an entrapment jury instruction by `considering the evidence in the light most favorable to the State, [and whether] a rational trier of fact could have found that the defendant failed to prove the [entrapment] defense by a preponderance of the evidence.' Lively, 130 Wn.2d at 17 (citations omitted).
Here, there is no evidence that the possession of the pistol offense originated with the police or that Woodman was not predisposed to commit the crime. Rather, his actions demonstrate his intent to own the pistol. He voluntarily went to a gun show, purchased a pistol, completed the necessary paperwork with the owner of the Clark County gun store, and planned to pick up the pistol from the same gun store when his background check cleared.
Nor do we find merit in Woodman's contention that because the police instructed the gun store owner to call him and arrange a time to pick up the gun, the police originated the criminal design of his possession of the pistol. The police can use a limited and reasonable amount of deception to provide a suspect the opportunity to violate the law. State v. Trujillo, 75 Wn. App. 913, 918, 883 P.2d 329 (1994). Here, law enforcement's coordination with the gun store owner `merely afforded [Woodman] an opportunity to commit a crime.' RCW 9A.16.070(2).
Accordingly, the trial court did not err by rejecting Woodman's entrapment instruction.
III. Due Process A. Due Process
Woodman argues that his firearm conviction violates due process because the police engaged in outrageous conduct when they allowed and encouraged the gun store owner to give him the pistol. We review this issue de novo. Lively, 130 Wn.2d at 19.
Police misconduct violates due process when, considering the totality of the circumstances, the officers initiate a crime or control a criminal's actions in a manner that is `repugnant to a sense of justice.' Lively, 130 Wn.2d at 22 (citations omitted). The officers' conduct here does not satisfy these factors.
The officers did not control Woodman's behavior or act in a `repugnant' manner. Lively, 130 Wn.2d at 22. Instead, Woodman took a series of actions that demonstrated his intent to own the pistol and the officers `simply allow[ed] for the criminal activity to occur.' Lively, 130 Wn.2d at 22 (citation omitted). Further, Woodman's arrest protected the public by preventing an ineligible person from owning a semi-automatic pistol. See Lively, 130 Wn.2d at 22 (a factor against finding police misconduct is when `the police motive was to prevent crime or protect the public.') (citations omitted).
Woodman asserts that he made `a good faith effort to comply with the law' by completing the necessary paperwork, but that the police `misadvised' him to pick up the pistol at the gun store. Br. of Appellant at 14. He cites State v. Leavitt, 107 Wn. App. 361, 27 P.3d 622 (2001), to establish that a conviction under these circumstances violates due process.
The Leavitt Court held that the sentencing court's failure to provide the defendant notice that he could not possess a firearm and the defendants' reliance on the court's error resulted in a due process violation. 107 Wn. App. at 366-368. None of these circumstances exist here. Further, even if Woodman made a good faith effort to accurately complete the paperwork, that is not a defense because `[k]nowledge that possession is unlawful is not an element of the crime of unlawful possession of a firearm nor does good faith belief that a certain activity does not violate the law provide a defense in a criminal prosecution.' State v. Semakula, 88 Wn. App. 719, 724, 946 P.2d 795 (1997).
Thus, the police actions here do not constitute police misconduct as defined in Lively.
B. Estoppel
Finally, Woodman asserts an estoppel defense as part of his due process argument. He cites State v. Locati, 111 Wn. App. 222, 43 P.3d 1288 (2002) to support this argument.
Locati involved a community corrections officer affirmatively misleading the defendant by advising him that he could possess a firearm. 111 Wn. App. at 224-25. The Locati Court emphasized that a defendant's estoppel theory must not focus on the defendant's `subjective' perceptions of misleading behavior. 111 Wn. App. at 227 (citation omitted).
Here, the only evidence that the police misled Woodman was his highly subjective contention. The evidence shows that the officers merely allowed Woodman to act upon his intent to buy a semi-automatic pistol. Thus, Woodman's due process and estoppel arguments fail.
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.
ARMSTRONG, J. and QUINN-BRINTNALL, C.J., concur.