No. 29024-3-IIThe Court of Appeals of Washington, Division Two.
Filed: October 21, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Jefferson County Docket No: 02-1-00026-1 Judgment or order under review Date filed: 06/21/2002
Counsel for Appellant(s), James M. Bendell, Attorney at Law, P.O. Box 587, Port Townsend, WA 98368-0587.
Counsel for Respondent(s), Juelanne B. Dalzell, Attorney at Law, Prosecuting Attorney, P.O. Box 1220, Port Townsend, WA 98368-0920.
HOUGHTON, J.
Pro se John Maki[1] appeals his conviction of unlawful possession of a firearm in the second degree (RCW 9.41.040(1)(b)). He argues various trial court errors, insufficiency of the evidence, and ineffective assistance of counsel. We affirm.
FACTS
On January 1, 2002, Jefferson County Sheriff’s Deputy Andrew Pernsteiner arrested Maki for driving while under the influence with license suspended. During post-arrest procedures, and after Pernsteiner read Maki his Miranda[2] rights, Maki told him that `if anyone goes on his property that they will get a [.410] slug in back of the head.’ I Verbatim Report of Proceedings (RP) at 15. On January 16, dispatch sent Deputy Sheriff Barbara Nailor to Maki’s mother’s home to retrieve a weapon. Glen Maki, Maki’s brother, met her and handed her a .410 sawed-off shotgun covered in wet oil that had an obliterated serial number. Later testing revealed no fingerprints on the weapon. No one ever indicated where Glen found the weapon, why he wanted it removed from the property, or whether Maki had ever possessed it. Also on January 16, Crystal, Maki’s 18-year-old daughter, spoke to Nailor by telephone. Crystal later went to the sheriff’s office and gave a written statement about the weapon. Nailor testified that Crystal was crying and hysterical when she came into the office. Crystal was not present when Glen found the weapon. Crystal testified that on January 1, as she talked to her father at his house, he held a `pretty distinct looking [firearm].’ VRP at 71. She identified it as the same firearm introduced into evidence.
The State charged Maki with unlawful possession of a firearm in the second degree, in violation of RCW 9.41.040(1)(b).[3] On the day set for trial, the State sought a CrR 3.5 hearing. When defense counsel objected to late notice, the trial court granted a recess for preparation.
The State called Pernsteiner, who testified that when he arrested Maki on the DUI charge, he read him his Miranda rights, Maki appeared intoxicated, and Maki spontaneously made his statement about shooting anyone who came onto his property. No one else testified at the hearing.
The trial court ruled that the statement could be admitted. The parties then stipulated that the circumstances surrounding Maki’s custodial statement were not admissible.
A jury found Maki guilty as charged and he appeals.
ANALYSIS[4]
Evidentiary Rulings Maki first contends that the circumstances surrounding his statement to Pernsteiner should have been admitted to show that it was `drunken babble.’ App. Brief at 32. He asserts that the jury should have been told that he was intoxicated when he gave the statement, that Pernsteiner did not find any weapons, and that the State dismissed the DUI charge. Maki’s argument fails because the trial court ruled the statement admissible, whereupon Maki, through counsel, stipulated that the circumstances surrounding the arrest would not be introduced at trial.[5] Maki further asserts that the trial court erred in holding a CrR 3.5 hearing immediately before trial. We disagree. The record discloses that the trial court held the hearing after giving defense counsel adequate time to prepare. Sufficiency of the Evidence Maki further contends that insufficient evidence supports his conviction because numerous family members had access to the firearm inside his mother’s residence and his estranged daughter was the only one who saw him with the weapon. Therefore, he claims no evidence shows that he knowingly and unlawfully possessed a firearm.
In determining whether sufficient evidence supports a conviction, we review the evidence and its inferences in a light most favorable to the State to determine whether any rational fact finder could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Ward, 148 Wn.2d 803, 815, 64 P.3d 640 (2003).
We need not be convinced of a defendant’s guilt beyond a reasonable doubt, only that substantial evidence supports the State’s case. State v. Gallagher, 112 Wn. App. 601, 613, 51 P.3d 100 (2002), review denied, 148 Wn.2d 1023 (2003). We accord circumstantial and direct evidence the same value and we leave credibility determinations to the fact finder. State v. Ainslie, 103 Wn. App. 1, 6, 11 P.3d 318 (2000); State v. Todd, 101 Wn. App. 945, 950, 6 P.3d 86 (2000).
RCW 9.41.040(1)(b) prohibits a convicted felon from owning, or knowingly possessing or controlling a firearm. Possession may be actual or constructive. State v. Murphy, 98 Wn. App. 42, 46, 988 P.2d 1018
(1999), review denied, 140 Wn.2d 1018 (2000).
Actual possession arises when the firearm is in the personal custody of the person charged with possession. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). Constructive possession requires that the person charged with possession have dominion and control over the firearm. State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d 1214 (1997).
Maki is a convicted felon. Although Glen never said where or how he found the weapon introduced at trial, Maki’s daughter, Crystal, testified that she saw the firearm in Maki’s hands at his residence for about 15 minutes on January 1, 2002. And she identified it as the same weapon introduced at trial. The jury chose to believe Crystal and we do not disturb that finding on appeal. Sufficient evidence supports Maki’s conviction. Ineffective Assistance of Counsel Finally, Maki contends that he received ineffective assistance of counsel. He raises three arguments.
A defendant has the right to effective representation through the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We presume counsel is effective. State v. Blakely, 111 Wn. App. 851, 873, 47 P.3d 149 (2002), review denied, 148 Wn.2d 1010 (2003). To show ineffective assistance of counsel, a defendant must prove that counsel’s representation fell below an objective standard of reasonableness and that counsel’s representation prejudiced the defendant. Blakely, 111 Wn. App. at 873. Maki asserts that his counsel did not conduct an appropriate investigation and did not call certain witnesses. Maki cites to nothing in the record to support this lack of investigation. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Moreover, the question whether to call a witness is a trial tactic. In the Matter of the Personal Restraint Petition of Stenson, 142 Wn.2d 710, 735, 16 P.3d 1 (2001). Therefore, Maki’s argument fails. Maki also asserts that his counsel was ineffective in failing to move to suppress Maki’s statement to Pernsteiner and in allowing a CrR 3.5 hearing on the first day of trial. He asserts that the statement had nothing to do with the crime charged (driving under the influence), was made when he was intoxicated, and should have been suppressed. First, counsel did object to holding a CrR 3.5 hearing on the first day of trial. In response, the trial court granted a recess for counsel to prepare. Maki’s argument fails. Second, Maki seems to argue that his drunken statement could not be used against him on the crime Pernsteiner was dispatched to investigate. And as such, it should have been suppressed here. We disagree as Maki’s statement implicating his unlawfully possessing a firearm could be used against him. State v. Sabbot, 16 Wn. App. 929, 933, 561 P.2d 212 (1977) (legally obtained evidence can be used to prosecute a crime other than the one that the defendant was initially charged with). Maki’s arguments based on ineffective assistance of counsel fail.
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.
QUINN-BRINTNALL, A.C.J. and ARMSTRONG, J., concur.
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