No. 46374-8-I.The Court of Appeals of Washington, Division One.
Filed: February 11, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 99-1-06330-5, Hon. Janice B. Niemi, March 13, 2000, Judgment or order under review.
Counsel for Appellant(s), King County Public Defender, Nielsen Broman
Koch Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
Dana M. Nelson, Nielsen Broman Koch Pllc, Ste 320 Central Bldg, 810 3rd Ave, Seattle, WA 98104.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Shaya Calvo, Room W554, 516 3rd Ave, Seattle, WA 98104-2386.
PER CURIAM.
After a bench trial, Eric Banks was convicted of unlawful possession of a firearm in the first degree. He appeals, contending that the trial court’s failure to address knowledge in its findings and conclusions relieved the State of its burden to prove this essential element as required by State v. Anderson.[1] Because evidence in the record could support a finding of knowing possession, we remand for entry of sufficient findings and conclusions on this issue.
FACTS
On June 7, 1999, while working as a security guard at the Hook, Line
Sinker, a Seattle restaurant and bar, James Reggans observed what he believed was a disagreement between Eric Banks and two other men. Concerned about the potential for a disturbance, Reggans asked management to call the police and continued to watch Banks. Shortly thereafter, Banks walked outside. Reggans saw Banks drop an item that appeared to be a gun from his jacket pocket. Reggans ducked out of the doorway for safety and told management to advise the police that there may be a gun involved. When he looked outside again, the item was gone and Banks was in his car.
Several officers arrived at the scene and eventually blocked Banks’ car.[2] Officers Harris and Sausman observed Banks take a jacket from behind his back and toss it to the front seat passenger. The passenger appeared startled and tossed the jacket back. Banks blocked the toss with his arm and the jacket fell onto the car’s center console. After the officers removed the car’s four passengers, Officer Harris retrieved the jacket and discovered a gun in the right front pocket.
Banks was convicted at a bench trial and the court entered findings and conclusions. Following the trial, our Supreme Court held that knowledge is an implied element of the crime of unlawful possession of a firearm.[3] The trial court’s findings and conclusions do not address knowledge.[4]
DECISION
Relying on State v. Anderson and other cases involving defective jury instructions, Banks argues that his conviction must be reversed because the State was relieved of its burden to prove every element of the charge. We disagree. Following a bench trial, the court must enter written findings and conclusions addressing the necessary elements of each crime charged.[5] The trial court’s failure to enter a finding on each element does not necessarily mean the prosecution failed to prove its case.[6]
If there is sufficient evidence in the record for a rational trier of fact to find the missing element, the appellate court may remand for revision of the findings.[7] Here, the record establishes that the State presented sufficient evidence to allow a rational trier of fact to conclude that Banks knowingly possessed a gun.
Reggans described the jacket Banks was wearing and testified that he dropped an object that appeared to be a gun out of his jacket pocket. Officers Harris and Sausman testified that Banks twice attempted to get rid of the jacket as the police approached him. They also testified that Banks was the only occupant removed from the car that was not wearing a jacket. Officer Harris then found a gun in the pocket of the jacket Banks left in the car. This evidence is sufficient to demonstrate knowing possession.
We therefore remand for entry of findings and conclusions on this issue based on the existing evidence.
(1998).