State v. Jussila

197 Wash.App. 908

392 P.3d 1108

STATE of Washington, Respondent,

v.Dennis Wayne JUSSILA, Appellant.

No. 32684-5-III

Court of Appeals of Washington, Division 3.

February 28, 2017

Susan Marie Gasch, Gasch Law Office, P.O. Box 30339, Spokane, WA, 99223-3005, for Appellant.

David Quesnel, David Matthew Wall, Klickitat County Prosecuting Attorney, 205 South Columbus Ave., Room 106, Goldendale, WA, 98620-9054, for Respondent.

Fearing, C.J.¶1 Dennis Jussila appeals his convictions for burglary and theft on the ground of insufficiency of evidence. His appeal requires us to address the continued validity of State v . Hickman , 135 Wash.2d 97, 954 P.2d 900 (1998) and the law of the case doctrine in the context of jury instructions that add elements to a crime beyond the elements contained in a statute. We conclude that, if State v . Hickman is to be overruled, the Washington Supreme Court, not the Court of Appeals, should readdress the decision's validity. We reverse Dennis Wayne Jussila's theft and possession of firearm convictions because the jury instructions listed the serial numbers of the firearms and the State provided no proof of the numbers. We reverse a conviction of theft in the second degree because of insufficient evidence of the value of stolen property. We affirm other convictions.

FACTS

¶2 This prosecution for burglary, theft of firearms, and unlawful possession of firearms arises from the burglary of Joseph Craven's Goldendale home. Appellant Dennis Wayne Jussila is the twenty-one-year-old son of the neighbor of Craven.

¶3 Between 11:00 a.m. and 3:00 p.m., on March 21, 2014, someone entered Joseph Craven's residence, while Craven drove to and from Rufus, Oregon. Craven forgot to lock his home's door. The thief purloined various items, including a safe, gold watch, knife sharpener, seven guns, a laptop computer, and a bag of coins.

PROCEDURE

¶4 In an amended information, the State of Washington charged Dennis Jussila with seven counts of theft of a firearm, seven counts of unlawful possession of a firearm, burglary in the first degree, theft in the second degree, and manufacturing marijuana. All charges, except the marijuana manufacturing charge, stem from the March 21, 2014, entry of Joseph Craven's abode. The amended information based the second degree theft charge on Jussila's alleged taking of a laptop computer and a bag of coins exceeding $750 in value.

¶5 At trial, the State presented limited evidence regarding the stolen firearms. The State introduced as exhibits five photographs of the weapons. Those photos do not picture the make, model, or serial number of any of the weapons. Joseph Craven testified that those pictures depicted his rifles. Craven also testified to his missing personal property:

Q ... But I want to ask you about—you came home—

A Uh-huh.

Q —that time, say, two, three o'clock that afternoon—

A Yes. That's correct.

Q Noticed some items missing.

A Right.

Q Were rifles missing?

A There were seven rifles in cases in the bedroom, the back bedroom. And I—Yeah. I noticed those missing right away.

Q Okay.

A Also the .45 that was in the desk drawer.

Q Okay.

And I want to show you—I want to show you what's been marked State's Exhibit No. 11.

A Yes. That's a Browning—

Q I don't want you to identify it—

....

A —that is my shotgun, that's correct.

Also above is a 30/30 rifle that was in the case with some ammunition.

Q You do recognize what's in that—

A I do, yes, sir—

Q All right. And does that photo accurately depict how your—the item in that exhibit looked on March the 21st.

A Correct.

Q All right.

I want to show you Exhibit—State's Exhibit No. 7. And again, without identifying it, just tell me, do you recognize what's in State's Exhibit No. 7.

A Yes, I do.

Q Okay. And does that accurately depict how that item looked on March 21st this year.

A That's correct.

Q State's Exhibit No. 8. Recognize it?

A Yes, I do.

Q Okay. And again, does that accurately depict how State's Exhibit 8 looked—on March the 21st.

A That's correct.

Q All right. State's Exhibit 9, same question. Do you recognize it and does it accurately depict how that item looked on March the 21st.

A That's correct.

Q And finally, State's Exhibit No. 10.

A Yes, that's correct.

Q All right.

Now, I don't know if you were present or not when these photographs were taken but were you present when these photographs were taken?

A No, sir. These items—Not when the photos were taken. These items were later found next door and returned to me. And then—the—we had serial numbers on all of those rifles, and the police took them as evidence and then later returned—.

....

Q Looking through those, those exhibits that I just presented to you, those are your rifles?

A That's correct.

Q Okay. And on March 21st are those the items, those rifles, that were missing from your home when you got home on March 21st?

A That's correct.

Q All right. Did you ever give anybody permission to have those weapons in their possession.

A No, sir.

....Q ... Now, those—those exhibits there are not the totality of the weapons or firearms that were missing from your house on the 21st, are they?

A That's correct.

Q What else was missing on the 21st?

A I had a .45 automatic pistol that was loaded and in the desk. Also a .357 magnum that was under some clothes in the chest of drawers.

Report of Proceedings at 75-79.

¶6 During trial, Joseph Craven testified to a missing gold watch and knife sharpener. He did not know the value of the watch. He averred the value of the sharpener to be $50. Finally, Craven testified to a missing satchel of coins worth $250 to $300.

¶7 At the close of evidence, the trial court, injury instructions 24 through 30, listed the elements the State needed to prove for counts III through IX, the seven counts of firearm theft. One of the elements for each of the crimes included language identifying the stolen gun's make, model and serial number. Jury instruction 24 read:

To convict the defendant of the crime of theft of a firearm as charged in Count III, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about March 21, 2014, the defendant wrongfully obtained a firearm, a .357 caliber revolver, serial number 8002032, belonging to another;

(2) That the defendant intended to deprive the other person of the firearm; and

(3) That this act occurred in the State of Washington.

If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

Clerk's Papers (CP) at 49. Jury instructions 25 to 30 respectively changed the second paragraph, or the paragraph identified with 1 in parenthesis, of jury instruction 24 to the following:

That on or about March 21, 2014, the defendant wrongfully obtained a firearm, a Ruger .223 caliber rifle, serial number 195-37396, belonging to another.

CP at 50.

That on or about March 21, 2014, the defendant wrongfully obtained a firearm, a Marlin 30-30 lever action rifle, serial number 11015584, belonging to another.

CP at 51.

That on or about March 21, 2014, the defendant wrongfully obtained a firearm, a Browning 12-gauge shotgun, serial number 4509S, belonging to another.

CP at 52.

That on or about March 21, 2014, the defendant wrongfully obtained a firearm, a Ruger 10/22 semi-automatic .22 caliber carbine rifle, serial number 232-2943, belonging to another.

CP at 53.

That on or about March 21, 2014, the defendant wrongfully obtained a firearm, a Colt semi-automatic handgun, serial number DR09167, belonging to another.

CP at 54.

That on or about March 21, 2014, the defendant wrongfully obtained a firearm, a Ruger lever-action .17 caliber rifle, serial number 620-55751, belonging to another.

CP at 55.

¶8 The trial court, injury instructions 32 through 38, similarly listed the elements the State needed to prove for counts X through XVI, the seven counts of unlawful possession of a firearm in the first degree. Again, one of the elements of the crime listed the gun's make, model and serial number. Jury instruction 32 read:

To convict the defendant of the crime of unlawful possession of a firearm in the first degree as charged in Count X, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about March 21, 2014, the defendant knowingly had a firearm, a .357 caliber revolver, serial number 8002032, in his possession or control;

(2) That the defendant had previously been convicted of a serious offense; and

(3) That the possession of the firearm occurred in the State of Washington.

If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

CP at 57. Jury instructions 33 to 38 respectively changed the second paragraph, or the paragraph with 1 in parenthesis, of jury instruction 32 to the following:

That on or about March 21, 2014, the defendant knowingly had a firearm, a Ruger .223 caliber rifle, serial number 195-37396, in his possession or control.

CP at 58.

That on or about March 21, 2014, the defendant knowingly had a firearm, a Marlin 30-30 lever action rifle, serial number 11015584, in his possession or control.

CP at 59.

That on or about March 21, 2014, the defendant knowingly had a firearm, a Browning 12-guage shotgun, serial number 4509S, in his possession or control.

CP at 60.

That on or about March 21, 2014, the defendant knowingly had a firearm, a Ruger 10/22 semi-automatic .22 caliber carbine rifle, in his possession or control.

CP at 61.

That on or about March 21, 2014, the defendant knowingly had a firearm, a Colt semi-automatic handgun, serial number DR09167, in his possession or

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