No. 31321-9-IIThe Court of Appeals of Washington, Division Two.
Filed: February 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 03-1-01331-7. Judgment or order under review. Date filed: 08/08/2003. Judge signing: Hon. Gary Steiner.
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 109 Tacoma Ave N, Tacoma, WA 98403-2631.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
QUINN-BRINTNALL, C.J.
Ira L. Foreman appeals his jury convictions for unlawful possession of a controlled substance (with a firearm sentence enhancement) and second degree unlawful possession of a firearm. He contends that the court’s jury instructions on the firearm enhancement were deficient and that the evidence was insufficient to support the convictions. Because the jury instructions were adequate and there was sufficient evidence, we affirm.
FACTS
At approximately 2:00 a.m. on March 21, 2003, Tacoma Police Officer Darren Kelly came upon what appeared to be a car accident scene on Tacoma Mall Boulevard near South 78th Street in Tacoma, Pierce County. A Cadillac with extensive front-end damage and smoke pouring out of it was pushed up against the retaining wall on the east side of the road. A smaller Honda was stopped sideways in the middle of the road.[1] Kelly and another patrol unit had just finished investigating an alarm at nearby Bates Technical College. Kelly radioed the other unit about the accident, and Officers Chris Martin and Scott Shafner arrived on the scene shortly after Kelly.
Kelly saw two black males walking westbound across Tacoma Mall Boulevard, away from the accident scene. Kelly called out to them to stop, but they continued walking. Kelly watched one of the men, Foreman, take off at a slow run down an embankment that sloped 12 to 15 feet down from the west side of the road. The other man, Hilton, began walking quickly down the embankment. Hilton went halfway down the embankment but then turned and walked back up the hill toward the officers.
Meanwhile, Kelly observed Foreman drop to his knees at a flat, grassy area at the bottom of the embankment.[2] Foreman’s back was to Kelly and he could not see Foreman’s hands. Kelly ordered him to get up, but Foreman stayed in the kneeling position for a few seconds.[3]
Foreman then started back up the embankment, stopping about 10 to 12 feet from Kelly. Kelly asked Foreman to remove his hands from his pockets. Foreman `brought [his hands] up . . . and kind of ruffled the front of his clothes in a flinging type motion . . . [and] just kind of flung his hands out.’ Report of Proceedings (June 11, 2003) at 19. Foreman then walked towards Kelly, who placed Foreman in restraints.
Foreman and Hilton were kept about 10 feet apart on the side of the road after they came up the embankment.
Martin informed Kelly that he had discovered some items in the grass by the side of the road. There were two two-inch by two-inch zip-lock bags with Superman decals lying in the grass where Foreman had been standing. Although it had been raining all night, the rain had recently subsided; the grass was very wet but the bags were relatively dry. Inside one of the bags was a yellow substance that later tested positive for cocaine.
Martin went down the embankment to the flat grassy area. In the same location where Kelly had seen Foreman kneeling (and where Foreman had disappeared from Martin’s sight), Martin discovered a Ruger semi-automatic handgun with stainless steel plating. The grass under the gun was not matted or dead and the gun was mostly dry, with only a few water drops on it. Kelly ran a serial number check on the gun through the Department of Licensing and learned that the gun had not been reported stolen, but it was not registered to Foreman. A fingerprint check on the gun returned inconclusive results.
Foreman was arrested and charged with one count of unlawful possession of a controlled substance[4] with a firearm enhancement[5] (Count I) and one count of second degree unlawful possession of a firearm[6] (Count II).
The jury returned a verdict of guilty on both counts and found by special verdict that Foreman was armed with a firearm at the time of commission of the crime in Count I.[7]
The court sentenced Foreman to nine months on each count (within the standard range),[8] to run concurrently, plus 18 months on the firearm enhancement, for a total of 27 months confinement. He appeals his convictions.
ANALYSIS `Nexus’ Jury Instruction
Relying on this court’s opinion in State v. Holt, 119 Wn. App. 712, 82 P.3d 688 (2004), Foreman contends that the jury’s firearm enhancement instructions were deficient for relieving the State of its burden of proving the `nexus’ element of the firearm enhancement. But our Supreme Court has recently clarified that proof of a nexus between the defendant, the gun, and the crime is not an element of the crime and that existing instructions approved in State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199
(1993), are sufficient to ensure that the State prove firearm possession beyond a reasonable doubt a separate `nexus’ instruction is not required. State v. Willis, ___ Wn.2d ___, 103 P.3d 1213, 1217 (2005). In order to find a firearm enhancement, the jury must find that `the defendant or an accomplice was armed with a deadly weapon at the time of the commission of the crime.’ RCW 9.94A.602. A defendant is `armed’ if he has a weapon that is readily available and accessible for his use for either offensive or defensive purposes. Valdobinos, 122 Wn.2d at 282; State v. Sabala, 44 Wn. App. 444, 448, 723 P.2d 5 (1986). The mere presence of a deadly weapon at the crime scene is insufficient to show that the defendant is armed; the State must show a nexus between the defendant and the weapon, and the weapon and the crime. Willis, 103 P.3d at 1215 (citing Valdobinos, 122 Wn.2d 270). See also State v. Johnson, 94 Wn. App. 882, 895, 974 P.2d 855 (1999), review denied, 139 Wn.2d 1028 (2000); State v. Mills, 80 Wn. App. 231, 235-37, 907 P.2d 316 (1995).
Jury instructions are sufficient if they correctly state the law, are not misleading, and permit counsel to argue his theory of the case. State v. Mark, 94 Wn.2d 520, 526, 618 P.2d 73
(1980). A jury instruction that misstates the law and prejudices the defendant requires reversal. State v. Kennard, 101 Wn. App. 533, 537, 6 P.3d 38, review denied, 142 Wn.2d 1011 (2000). We read the instructions in their entirety to determine sufficiency. See State v. Schulze, 116 Wn.2d 154, 167, 804 P.2d 566 (1991).
Here, Instruction No. 20 informed the jury that `[f]or purposes of a special verdict, the State must prove beyond a reasonable doubt that the defendant was armed with a firearm at the time of the commission of the crime in count I.’ Clerk’s Papers (CP) at 30. Instruction No. 21 stated, “Armed’ means having a weapon which is easily accessible and readily available for use, either for offense or defensive purposes.’ CP at 31. But Foreman argues that nothing informed the jury as to the necessary `nexus’ between the defendant, the firearm, and the charged crime and that, therefore, his sentence may not be enhanced.
In Willis, our Supreme Court examined the sufficiency of nearly identical instructions where the defendant made a similar argument that a nexus instruction was lacking. The first instruction in that case stated, `[T]he State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the commission of the crimes charged in count one . . . and/or count three. A pistol, revolver or any other firearm is a [deadly weapon] whether loaded or unloaded.’ Willis, 103 P.3d at 1215 (footnote omitted). The trial court later supplemented this instruction, adding that `armed’ means `[a firearm was] readily available for offensive or defensive purposes.’ Willis, 103 P.3d at 1215.
The court determined:
Fairly read, [this] instruction . . . includes language requiring the jury to find a relationship between the defendant, the weapon, and the crime. Specifically, the defendant must have a deadly weapon, including a firearm, and the weapon must be readily available for offensive or defensive purposes at the time of the commission of the crime. Although the term `nexus’ is not used, the language of the instruction informs the jury that it must find a relationship between the defendant, the crime, and the deadly weapon. Accordingly, we hold that the jury instruction here was proper. Express `nexus’ language is not required.
Willis, 103 P.3d at 1217 (emphasis added) (footnote omitted). Willis controls our decision here. The jury instructions Foreman received were clearly sufficient.
Sufficiency of the Evidence
Foreman also contends that the evidence was insufficient to convict him of the charged crimes.
A claim of insufficiency admits the truth of the State’s evidence and all reasonable inferences that may be drawn from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We defer to the trier of fact to resolve conflicting testimony and evaluate the persuasiveness of the evidence. State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997) (citing State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992)). Credibility determinations are for the trier of fact, who has the opportunity to observe the demeanor of witnesses, and are not subject to our review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
To prove unlawful possession of a controlled substance, the State had to prove (1) the unlawful nature of the substance and (2) that the defendant possessed it. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). And a defendant is guilty of second degree unlawful possession of a firearm if he owns, possesses, or controls a firearm after having been convicted of a felony other than a serious offense. Former RCW 9.41.040(1)(b)(i) (1997).
Possession may be actual or constructive. State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002). Actual possession occurs where the item is in the actual physical custody of the person charged. Jones, 146 Wn.2d at 333. Constructive possession occurs when the defendant has `dominion and control[9] over the item.’ Jones, 146 Wn.2d at 333. Evidence of possession may be based on direct or circumstantial evidence, and both types of evidence are equally reliable. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) (citing State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980)).
Taken in the light most favorable to the State, sufficient evidence supported the jury verdicts on both charges. First, the gun and the cocaine baggies were nearly dry when found. Coupled with the testimony that it had until recently been raining heavily, this is circumstantial evidence that the items had only recently been placed in the grass. Second, although Kelly did not see Foreman placing the Ruger in the grass, he saw Foreman run down the embankment and kneel for several seconds in the location where the gun was found. Again, this is circumstantial evidence that Foreman actually possessed the gun. Third, the officers discovered the baggies where Foreman had been standing and where Kelly had seen Foreman fling his hands out of his pockets and appear to brush off his clothing. This is circumstantial evidence that Foreman had actually possessed the baggies before dropping them in the grass.
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.
MORGAN, J. and VAN DEREN, J., Concur.