No. 36879-0-II.The Court of Appeals of Washington, Division Two.
July 22, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 07-1-00070-4, Roger A. Bennett, J., entered October 24, 2007.
Reversed and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton and Hunt, JJ .
[EDITORS’ NOTE: This case is unpublished as indicated by the issuing court.]UNPUBLISHED OPINION
QUINN-BRINTNALL, J.
A jury found Tony King guilty of first degree unlawful possession of a firearm in violation of RCW 9.41.040(1)(a). On appeal, King challenges the jury instruction setting out the elements of first degree unlawful possession of a firearm. He argues that the trial court failed to instruct the jury that the State must prove the defendant’s knowledge of his firearm possession beyond a reasonable doubt. The State concedes that the instruction was deficient and we reverse and remand for a new trial.
Although RCW 9.41.040(1)(a) does not explicitly require the State to prove knowledge, in State v. Anderson, 141 Wn.2d 357, 5 P.3d 1247 (2000), our Supreme Court held that knowledge is an essential element of second degree unlawful possession of a firearm. As a result, the State must prove, beyond a reasonable doubt, that a defendant knowingly possessed a firearm in order for a jury to convict.
In Anderson, the court analyzed second degree unlawful possession of a firearm and did not explicitly address first degree unlawful possession of a firearm. 141 Wn.2d at 359. But nothing suggests that the legislature intended knowledge to be an element of second degree unlawful possession of a firearm and not an element of first degree unlawful possession of a firearm. Furthermore, in State v. Williams, 158 Wn.2d 904, 909, 148 P.3d 993 (2006), our Supreme Court cited Anderson for the proposition that the legislature did not intend to make unlawful possession of a firearm a strict liability offense by eliminating mens rea from RCW 9.41.040. RCW 9.41.040 governs both first and second degree unlawful possession of a firearm. Thus, knowledge is a required element of first, as well as second, degree possession of a firearm.
Accordingly, the trial court’s failure to include the element of knowledge relieved the State of its burden to prove to King’s jury each element of first degree unlawful possession of a firearm and was not harmless. See State v. Brown, 147 Wn.2d 330, 58 P.3d 889 (2002) (an erroneous jury instruction may be subject to harmless error analysis if the error does not relieve the State of its burden to prove each element of the crime).
We reverse and remand for a new trial.
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.
HOUGHTON, P.J. and HUNT, J., concur.