State v. Jones

70 P.3d 171

117 Wash.App. 221

STATE of Washington, Respondent, v. Clarence JONES, Jr., Appellant.

No. 45225-8-I.

Court of Appeals of Washington, Division 1.

June 9, 2003.

David B. Koch, Nielsen Broman & Koch, Seattle, WA, for Appellant.

James M. Whisman, Seattle, WA, for Respondent.

KENNEDY, J.

In June 1999, Clarence Jones was convicted by jury trial of unlawful possession of a firearm in the first degree in violation of RCW 9.41.040(1)(a). While Jones' appeal was pending, the Washington Supreme Court decided in State v. Anderson, 141 Wash.2d 357, 5 P.3d 1247 (2000) that the Legislature only intended to prohibit "knowing" possession by a felon of a firearm; hence, knowledge is an essential element of the crime that the State must prove beyond a reasonable doubt. Because Jones' jury was not instructed that knowledge is an element of the crime, Jones argues that the State was relieved of its burden of proving every essential element of the crime and that he is entitled to a new trial. The error in the trial court's to convict instruction is uncontested, but the State argues that it was harmless beyond a reasonable doubt. We stayed Jones' appeal pending our state Supreme Court's decision whether to adopt the reasoning of the United States Supreme Court in Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) which held that an erroneous jury instruction that omits or misstates an element of a charged crime is subject to harmless error analysis. In State v. Brown, 147 Wash.2d 330, 58 P.3d 889 (2002) our Supreme Court did adopt the reasoning in Neder. See also State v. Borrero, 147 Wash.2d 353, 58 P.3d 245 (2002). The test to be applied by the reviewing court is "`whether it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."'" Brown, 147 Wash.2d at 341,58 P.3d 889 (quoting Neder, 527 U.S. at 15,119 S.Ct. 1827 (quoting, in turn, Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Applying this test, we conclude beyond a reasonable doubt that the jury verdict in Jones' case would have been the same without the instructional error.

Jones also contends that his constitutional right of confrontation was violated when the trial court excluded impeachment evidence that the State's key witness had been convicted of forgery 20 years before the trial in Jones' case. Because the 20-year old forgery conviction had little if any relevance to the current credibility of the witness, and because the witness' testimony was substantially corroborated by a real time videotape portraying the events of the evening in question in any event, Jones' right of confrontation was not violated by the trial court's evidentiary ruling.

We affirm the judgment and sentence in this case.

FACTS

On March 27, 1998, Steven Spragg was on duty as a security guard at a restaurant and bar in Seattle. Spragg testified at trial that he saw Jones rush into the bar from outside, knocking over a candy machine that was near the entrance as he ran, and then run into the men's restroom. Spragg picked up and replaced the candy machine and followed Jones into the men's restroom. Jones was just walking out as Spragg walked in. Spragg noticed some paper towels on the floor near the wastebasket by the sink. He picked up the paper towels in order to put them into the wastebasket. Before he dropped the towels into the wastebasket, he noticed a metal object partially covered by towels that were already in the wastebasket. Upon moving those towels aside, Spragg saw that the metal object was a handgun. He picked the gun up by its barrel and put it into the pocket of his coveralls. Leaving the men's restroom, Spragg walked some 15-feet to the manager's office with the gun in his pocket. He showed the gun to the manager, and placed it under a pillow on a cot in the manager's office. While the manager was dialing 911 to report the gun to police, Spragg returned to his post, locking the manager's door behind him. Spragg looked for Jones, and saw Jones wandering in and out of the bar and then going back into the men's restroom.

Spragg testified that when Jones came out of the restroom this second time, he seemed upset and asked Spragg for his "piece." Spragg replied that he did not know what Jones was talking about. Spragg testified that he certainly did know what Jones was talking about, but that he had no intention of returning the handgun to Jones. The bar was clearly posted in several prominent areas with signs prohibiting firearms on the premises. Jones then began telling several of his acquaintances about his missing "piece" and came back to ask Spragg about it at least twice more. Jones went to the door to the manager's office two different times and pounded on the door, demanding the return of his gun. At one point, Jones stated that if he didn't get his "piece" back he was going to tear the bar apart looking for it. During this time, several of Jones' acquaintances tried to persuade Spragg to give Jones his gun back.

The police arrived. Spragg identified Jones to them. They arrested Jones and took the gun into evidence. The bar was equipped with a real time videotaping system that covered the lobby and bar areas, including the front door, the candy machine, the door leading into the men's restroom, and the door leading into the manager's office. Police retrieved the videotape and took it into evidence, as well.

The videotape, which was played for the jury, showed Jones running into the bar, knocking over the candy machine, and entering the men's restroom. The tape showed Spragg righting the candy machine and entering the men's restroom as Jones came out. It showed Spragg leaving the men's room and entering the manager's office. It also showed that Jones approached and spoke to Spragg several times, and that Jones twice pounded on the door of the manager's office. It showed Spragg talking to several people whom Spragg identified as Jones' friends telling him to return Jones' gun to him. Although the tape is silent, it shows that Jones was behaving as if he were upset.

The videotape contradicted some of Spragg's testimony. Although Spragg told police, and testified at trial, that he had inspected the men's restroom approximately 10 minutes before Jones first ran into the premises, and that nobody else had gone into the men's restroom in the interim, the videotape showed that approximately 20 minutes elapsed between these events, and that several men entered and left the men's restroom after Spragg's last inspection and before Jones ran into the building and entered the restroom. Additionally, Spragg told the police that Jones was wearing a stocking cap that evening; however Jones was not wearing one in the videotape.

Only one partial palm print was found on the gun, and it did not match Jones' palm print. The State's forensics expert testified that a cloth-lined pocket such as Spragg's would most likely obliterate fingerprints that might have previously been on the surface of the gun. Police officer witnesses testified as to the chain of custody of the gun and videotape. One officer testified that he test-fired the gun and that it was in working order, that the gun was very expensive, and that the gun had been reported as stolen. Another officer testified that the area was the subject of an emphasis patrol that evening, so that teams of police officers on bicycles were highly visible in the vicinity of the bar.

Jones did not testify or present any evidence. He stipulated that the trial judge would advise the jury that Jones had previously been convicted of an unidentified "serious offense." Jones' theory at trial was that any one of the several men who entered the restroom during the 20-minute interval between Spragg's last inspection of the restroom and Jones' first entry into the restroom could have put the gun into the wastebasket and, therefore, there was a reasonable doubt about whether Jones was the one who actually put the gun there. The State responded during rebuttal argument that none of these other men demanded that Spragg return his "piece" or pounded on the manager's office door demanding the return of his gun, or threatened to tear the place apart unless the gun were returned to him.

Before trial, it was revealed that Spragg had a 20-year old conviction for forgery. Jones sought to use the conviction as impeachment evidence. The trial court rejected the evidence. Jones did not raise his constitutional right to confrontation at the trial; rather, he urged the court to exercise its discretion under ER 609(b) to admit the evidence, despite the length of time since the conviction, because Spragg was the State's key witness.

The trial was held approximately 9 months before our Supreme Court decided in State v. Anderson, supra, that "knowing" possession is an essential element of the felony crime of unlawful possession of a firearm. Accordingly, this element was omitted from the to-convict instruction in Jones' case.

The jury found Jones guilty as charged and he was sentenced within the standard range. This timely appeal followed.

DISCUSSION

Erroneous To Convict Instruction

Jones contends that his right to due process was violated when the trial court gave jury instruction 6, the to convict instruction for first-degree unlawful possession of a firearm, because the instruction omitted an essential element of the offense, specifically, that the State must prove that Jones knowingly possessed the firearm.¹ Due process requires that an instruction "purporting to list all of the elements of a crime must in fact do so." State v. Smith, 131 Wash.2d 258, 262-63, 930 P.2d 917 (1997) (citing State v. Emmanuel, 42 Wash.2d 799, 819-20, 259 P.2d 845 (1953)). A to convict instruction that fails to set forth every essential element of the charged crime is error of constitutional magnitude that may be raised for the first time on appeal. State v....