                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                            March 26, 2019

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 50433-2-II

                        Appellant,

         v.

 GERALD LAWRENCE COLE, JR.,                                     UNPUBLISHED OPINION

                        Respondent.



       SUTTON, J. — The State appeals the trial court’s order granting defendant Gerald Lawrence

Cole, Jr.’s, motion to arrest judgment and dismissing his conviction for unlawful possession of a

firearm conviction with prejudice. The State argues that sufficient evidence was presented that

Cole knowingly possessed the firearm at the time of his arrest. In addition to arguing that the State

failed to present sufficient evidence that he knowingly possessed a firearm, Cole argues that if we

reverse, we should remand for the trial court to reconsider his motion for a new trial.

       We vacate the trial court’s order dismissing Cole’s firearm conviction with prejudice

because the State provided sufficient evidence that Cole knowingly possessed a firearm and we

remand for sentencing in accordance with this opinion. Because we resolve the sufficiency issue

on which Cole’s motion for a new trial is based, his claim fails and he is not entitled to a new trial.
No. 50433-2-II


                                                FACTS

          On January 12, 2016, Cole was arrested following an extensive physical altercation with

Tacoma police officers. A Ruger .22 caliber semiautomatic handgun was removed from the scene

following the arrest. Officers Kenneth Smith and Matthew Riche booked the firearm into

evidence.

          The State charged Cole with one count of second degree assault (with a firearm

enhancement), two counts of third degree assault (with firearm enhancements), one count of first

degree unlawful possession of a firearm, one count of possession of a stolen firearm, 1 one count

of attempting to disarm a law enforcement officer or corrections officer,2 and one count of second

degree driving while license suspended.

          As to the charge of unlawful possession of a firearm, the information charged, in relevant

part:

                  That GERALD LAWRENCE COLE, JR, in the State of Washington, on or
          about the 12th day of January, 2016, did unlawfully, feloniously, and knowingly
          own, have in his possession, or under his control a firearm, he having been
          previously convicted in the State of Washington or elsewhere of a serious offense,
          as defined in RCW 9.41.010, contrary to RCW 9.941.040(1)(a), and against the
          peace and dignity of the State of Washington.

Clerk’s Papers (CP) at 2. Cole stipulated that he had previously been convicted of a serious

offense, one of the elements of this charge. The matter proceeded to a jury trial.




1
    The trial court dismissed the possession of a stolen firearm charge before trial.
2
    This charge relates to Officer Jimmy Welsh, one of the officers at the scene.


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No. 50433-2-II


       At trial, Officers Smith, Riche, Ryan Bradley, Gerald Bratcher, Jimmy Welsh, and Jeffrey

Katz all testified regarding the events surrounding Cole’s arrest, specifically whether he possessed

a firearm at the time.

       Officer Bradley described the lead up to the arrest as a “chaotic fight” involving “lots of

closed fists and elbows and things being swung at the officers.” 1 Verbatim Report of Proceedings

(VRP) at 64. He testified that Cole’s “[f]eet were planted on the ground and hands were also

planted on the ground, bent over, so the legs and the torso had not made contact with the ground

at this point.” 1 VRP at 120. He further testified that he “saw a black firearm held in [Cole’s]

hand, and it, and, essentially, the ripping motion of getting his arm away from his body caused it

to – appeared to release his grip on the firearm, and the firearm landed about two feet away from

me.” 1 VRP at 85.

       The firearm recovered at the scene of Cole’s arrest was admitted as evidence. Officer

Riche testified that he recovered the firearm at the scene of the arrest and that he and Officer Smith

booked the firearm into evidence. Officer Riche testified that the gun was a Ruger .22 caliber

semiautomatic handgun and that it was in the same condition as it was when he saw it at the scene.

Detective Brian Vold testified that he test fired the recovered gun and found it to be fully operable.

       Officer Bratcher testified that he did not see the firearm while he was attempting to

physically subdue and arrest Cole. Officer Smith testified that he heard Officer Welsh say, while

attempting to place Cole in custody, “I think he has a gun. I think there’s a gun.” 2 VRP at 362.

Officer Smith testified that he “looked down and . . . could see the barrel of a handgun” pointed

at Officer Welsh. 3 VRP at 363.




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No. 50433-2-II


         Officer Welsh testified that while involved in the physical altercation with Cole in an

attempt to place him in custody, he “looked down and saw what looked like a cylindrical

semiautomatic firearm,” and that “a firearm . . . was shoved into my stomach and appeared to be

trapped underneath my belt, held by the defendant.” 3 VRP at 457. Officer Welsh testified that

he “could . . . tell that [Cole’s] hand was around it.” 3 VRP at 457-58. Officer Katz testified that

he was aware that a firearm was recovered in this case.

         The trial court instructed the jury that “[a] person commits the crime of unlawful possession

of a firearm in the first degree when he has previously been convicted of a serious offense and

knowingly owns or has in his possession or control any firearm.” CP at 27.

         The jury acquitted Cole of all assault charges, including attempting to disarm a law

enforcement officer. The jury found Cole guilty of first degree unlawful possession of a firearm

and second degree driving while license suspended.

         Cole then filed a motion for an arrest of judgment and requested either a new trial or a

dismissal of the conviction for first degree unlawful possession of a firearm.

         In his motion for arrest of judgment, Cole argued that no evidence was presented at trial,

such as DNA3 or fingerprint evidence, to prove that he knowingly possessed the firearm. Cole

also argued that the State provide false testimony because the firearm had been planted as evidence

by the officers involved in the case.

         The trial court granted Cole’s motion for arrest of judgment and entered an order of

dismissal with prejudice for the first degree unlawful possession of a firearm conviction. Because




3
    Deoxyribonucleic acid.


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No. 50433-2-II


it had dismissed the charge, the trial court declined to consider Cole’s motion for a new trial. The

State appeals.

                                           ANALYSIS

       The State argues that the trial court erred in granting Cole’s motion for arrest of judgment

and dismissing the unlawful possession of a firearm conviction with prejudice because sufficient

evidence was presented that Cole knowingly possessed a firearm. We agree. Accordingly, we

vacate the trial court’s order dismissing Cole’s unlawful possession of a firearm conviction and

remand for sentencing in accordance with this opinion.

                                    I. STANDARDS OF REVIEW

       When reviewing a trial court’s order to arrest judgment under CrR 7.4, we engage in the

same inquiry as the trial court. State v. Longshore, 141 Wn.2d 414, 420, 5 P.3d 1256 (2000). We

determine whether “[t]he evidence presented in a criminal trial is legally sufficient to support a

guilty verdict if any rational trier of fact, viewing the evidence in a light most favorable to the

state, could find the essential elements of the charged crime beyond a reasonable doubt.”

Longshore, 141 Wn.2d at 420-21. “When a defendant challenges the sufficiency of the evidence,

he or she admits the truth of all of the State’s evidence.” State v. Cardenas-Flores, 189 Wn.2d

243, 265, 401 P.3d 19 (2017). “In such cases, appellate courts view the evidence in the light most

favorable to the State, drawing reasonable inferences in the State’s favor.” Cardenas-Flores, 189

Wn.2d at 265-66.

       The test for determining sufficiency of the evidence is whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have found the

elements of the crime beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330 P.3d



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No. 50433-2-II


182 (2014). In evaluating a sufficiency of the evidence claim, we assume the truth of the evidence

offered by the state and all reasonable inferences drawn from that evidence. Homan, 181 Wn.2d

at 106. We defer to the trier of fact’s resolution of conflicting testimony and evaluation of the

persuasiveness of the evidence. Homan, 181 Wn.2d at 106. Circumstantial evidence and direct

evidence are equally weighted. State v. Miller, 179 Wn. App. 91, 105, 316 P.3d 1143 (2014).

                                II. SUFFICIENCY OF THE EVIDENCE

A.     MOTION TO ARREST JUDGMENT

       To convict Cole of first degree unlawful possession of a firearm, the State had to prove that

he (1) knowingly owned or had in his possession or control a firearm; and (2) had a previous

conviction for a serious offense.4 RCW 9.41.040(1)(a); State v. Hartzell, 156 Wn. App. 918, 944,

237 P.3d 928 (2010) (citing State v. Anderson, 141 Wn.2d 357, 366, 5 P.3d 1247 (2000)).

       “Possession may be actual or constructive.” State v. Raleigh, 157 Wn. App. 728, 737, 238

P.3d 1211 (2010). “A person actually possesses something that is in his or her physical custody

and constructively possesses something that is not in his or her physical custody but is still within

his or her ‘dominion and control.’” State v. Davis, 182 Wn.2d 222, 227, 340 P.3d 820 (2014)

(quoting State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969)).

       Here, the State presented sufficient evidence that Cole possessed the firearm that the police

recovered from the scene following his arrest on January 12, 2016. Officers Welsh and Smith both

testified about Cole having control over a firearm at the time of the incident. Officer Smith heard

Officer Welsh say, “I think he has a gun.” 3 VRP at 362. Officer Smith testified that he “looked



4
 Cole only challenges the first prong and stipulated as to the second prong, that he had previously
been convicted of a serious offense. CP at 8.


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No. 50433-2-II


down and . . . could see the barrel of a handgun” pointed at Officer Welsh. 3 VRP at 363. Officer

Welsh testified that as he looked down during the altercation, he saw the barrel of a semiautomatic

firearm pointed directly at him and wedged between his duty belt and body. Officer Welsh testified

that he was able to feel the barrel of the firearm pushed into his hip and stomach area. Officer

Welsh also testified that he “could . . . tell that [Cole’s] hand was around it.” 3 VRP at 457-58.

       The State also presented sufficient evidence to prove that Cole was in possession of the

firearm recovered at the scene of his arrest. Officer Riche testified that he recovered the firearm

at the scene of the arrest and that he and Officer Smith booked the firearm into evidence. Officer

Riche testified that the firearm was a Ruger .22 caliber semiautomatic handgun and that it was in

the same condition as it was when he recovered it at the scene. Detective Vold testified that he

test fired the gun recovered and found it to be fully operable.

       Here, although Cole denied possessing the firearm, the jury found the officers’ testimony

that Cole knowingly possessed a firearm to be credible and that the firearm admitted into evidence

was the firearm recovered at the scene that Cole had possessed when arrested. Cole’s motion to

arrest judgment admits the truth of the State’s evidence and all inferences that reasonably can be

drawn therefrom. Moreover, we defer to the trier of fact’s evaluation of the persuasiveness of the

evidence. Consequently, we hold that the State produced sufficient evidence to convict Cole of

first degree unlawful possession of a firearm. Thus, we vacate the trial court’s order dismissing

Cole’s conviction for unlawful possession of a firearm with prejudice.




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No. 50433-2-II


B.      MOTION FOR A NEW TRIAL

        Cole argues that if we vacate the order arresting judgment, we should remand for the trial

court to rule on his CrR 7.5 motion for a new trial. Because we resolve the sufficiency issue on

which Cole’s motion for a new trial is based, he is not entitled to a new trial.

        Under RAP 2.4(e), “[a]n appeal from an order granting a motion in arrest of judgment

brings up for review the ruling of the trial court on a motion for new trial. If the appellate court

reverses the order granting the motion in arrest of judgment, the appellate court will review the

ruling on a motion for new trial.” We review the trial court’s denial of a motion for new trial for

abuse of discretion. State v. Allen, 159 Wn.2d 1, 10, 147 P.3d 581 (2006). “Discretion is abused

when the judge’s decision ‘is manifestly unreasonable or based upon untenable grounds.’” Allen,

159 Wn.2d at 10 (quoting State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997)).

        Cole argued to the trial court that “[t]he defendant must arrest the [judgment] and receive

a new [t]rial or dismissal of [u]nlawful possession of a firearm in the first degree due to insufficient

evidence.” CP at 55 (emphasis added). The court ruled, “In this case, because it’s dismissing the

count . . . there’s no new trial, it’s just that the count is dismissed.” 9 VRP at 878-79. The trial

court chose the second remedy, dismissal of the conviction for unlawful possession of a firearm

with prejudice, and thus, it did not need to consider his motion for a new trial.

        Because we resolve the sufficiency issue on which Cole’s motion for a new trial is based,

his claim fails and he is not entitled to a new trial.




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No. 50433-2-II


                                          CONCLUSION

        We vacate the trial court’s order dismissing Cole’s firearm conviction with prejudice

because the State provided sufficient evidence that Cole knowingly possessed a firearm and we

remand for sentencing in accordance with this opinion. Because we resolve the sufficiency issue

on which Cole’s motion for a new trial is based, his claim fails and he is not entitled to 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 in accordance with RCW 2.06.040,

it is so ordered.



                                                      SUTTON, J.
 We concur:



 WORSWICK, P.J.




 MELNICK, J.




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