                                                                                         FILED
                                                                                  COURT OF APPEALS
                                                                                      0.1ViS €ON 11

                                           20 L1 JUL - AM 8: 4 8
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                  STATE OF WASHINGTON

                                                  DIVISION IIY
STATE OF WASHINGTON,                                                           No. 44083-        II


                                        Respondent,


         v.




ROBERT D. BONNELL,                                                       UNPUBLISHED OPINION


                                        Appellant.


         MELNICK, J. —        Robert D. Bonnell appeals his convictions and sentences for first degree

unlawful      possession      of   a    firearm   and   unlawful    possession    of     a   controlled   substance


methamphetamine).          He argues that ( 1) the trial court erroneously sentenced him on first degree

unlawful possession of a firearm where the charging document and jury instructions supported

only   a conviction of second       degree   unlawful possession of a     firearm, ( 2) the predicate offense for


the first degree firearm charge is constitutionally invalid, and ( 3) the trial court erred in admitting

his    statements   to   his community        corrections   officer (   CCO) into   evidence.         Bonnell raises


additional claims of error         in   a pro se statement of   additional   grounds (   SAG).   We hold that the


trial court properly limited the use of Bonnell' s statements at trial and that his SAG issues lack

merit.    But, because the trial court instructed the jury only on the elements of second degree

unlawful possession of a firearm, we reverse the conviction for first degree unlawful possession


of a firearm and remand for entry of judgment and sentencing on the second degree unlawful

possession of a firearm charge without addressing the validity of the predicate offense supporting

the first degree    charge.
44083 -1 - II




                                                                FACTS


             In    February      2012,    Bonnell was on community custody following his conviction of

possessing          methamphetamine          in 2011.          Relevant conditions of his judgment and sentence


prohibited Bonnell from possessing or consuming any controlled substance without a valid

prescription and           from possessing any          drug   paraphernalia.   The conditions provided that Bonnell


would be subjected to random urinalysis testing to ensure compliance with these conditions.

             On February 1, Bonnell reported to CCO Mark Shaffer, who directed him to provide a

urine    sample.          When Bonnell told Shaffer he could not do so, Shaffer told him to return the -

following morning at 9: 00 A.M.

             Bonnell did not return to the Department of Corrections ( DOC) office until almost 5: 00

P. M. the         next    day.   Shaffer and CCO Curtis Perry accompanied Bonnell to the restroom to

observe while             he   provided   a urine sample.        Bonnell was wearing an artificial bladder, which

Shaffer regarded as a violation of the urinalysis requirement. Shaffer seized the artificial bladder

and asked Bonnell how long he had been using drugs. Bonnell replied that he had been using for

a   little   while and admitted          that he had    worn    the fake bladder the   day   before.   Shaffer handcuffed


Bonnell and took him to his office.

             When Shaffer again asked Bonnell how long he had been using drugs, Bonnell stated that

he had been using for               about    a week.       Shaffer then asked what he might find in Bonnell' s


residence         if it   were searched.     Bonnell replied that Shaffer would find a sword he had been told

to remove from the residence as well as a meth pipe behind a chair in the front room.

             Shaffer and Perry decided to search Bonnell' s residence and arranged for Hoquiam police

officers      to   meet     them   and   Bonnell   at   his home.       During their search, Shaffer and Perry found a

locked box in the living room, which they opened with a key from Bonnell' s key chain. The box
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contained a      firearm      and a      butane      canister.      After the police officers took Bonnell to the police


station, Perry opened the butane canister and found baggies of suspected methamphetamine.

          Detective David Peterson escorted Bonnell to an interview room at the police station and

                                                     1   Bonnell                            to the detective.           When asked about
advised    him    of his   Miranda        rights.                   agreed     to   speak




the   firearm, Bonnell          replied, "     I'   m    so    screwed,    it doesn' t   matter."       Clerk' s Papers ( CP) at 37.


Peterson then asked about the baggies in the canister, and Bonnell acknowledged that they

contained       his   methamphetamine.                   In response to an additional question about the firearm,


Bonnell    stated, "     I' m          five
                                 fifty -        years         old and   my life is      over."     CP    at    38.      When asked if he


wished    to   provide a written statement,                    Bonnell    replied, "[   N] o, I' ve been in plenty interrogations

and   I know this isn' t going to             help      me."    CP at 38.


          The next morning, Shaffer searched Bonnell' s car, which was parked outside the DOC

office. Shaffer seized ammunition, a knife, and another artificial bladder.


          The State charged Bonnell with first degree unlawful possession of a firearm under RCW


9. 41. 040( 1)( a) and identified his 1994 second degree assault conviction as the required " serious

offense"       predicate   for that       charge.         Bonnell moved to suppress his statements to Shaffer and


Peterson       as well   as     the    evidence seized           from the     search of     his home          and car.     The trial court


denied Bonnell' s motion but restricted the State' s use of his pre- Mirandized statements to


Shaffer to the cross examination of Bonnell and its rebuttal case.


          Bonnell also challenged the constitutionality of his 1994 assault conviction as a predicate

offense    for the    current         first degree firearm         charge and moved           to   exclude       it.    He argued that he


did not fully understand the elements of the assault to which he pleaded guilty, as shown by the

plea statement        describing        the   elements as " assault a person with a weapon."                           CP at 44. The State



1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16. L. Ed. 2d 694 ( 1966).
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44083 -1 - II




responded that Bonnell' s description of pointing his shotgun at an officer showed that he
understood       the   nature     of   the   offense, which requires assault with                a   deadly   weapon.      The trial


judge denied Bonnell' s motion.


         The State then filed an amended information which added the predicate felony of

possessing      methamphetamine.                  It reduced count I to second degree unlawful possession of a


firearm.        Bonnell agreed to stipulate that he had a prior conviction that barred him from


possessing a firearm without waiving his objection to the constitutional validity of the prior

assault conviction.



         The two CCOs testified                   without   referring to Bonnell'           Miranda statements.
                                                                                      s pre -                              Peterson


testified that    after      he   advised        Bonnell   of   his Miranda     rights,   Bonnell     admitted   that he   was " so



screwed,    it doesn' t       matter."           Report    of   Proceedings ( RP)    at   119.       Peterson also testified that


Bonnell admitted owning the methamphetamine.

         Roger Hall, Bonnell'                s    stepbrother,     testified   for the defense.         Hall said that he gave


Bonnell the locked box and its key so that Bonnell could give them to Hall' s son. He added that

he did not tell Bonnell that the box contained a firearm, and he denied knowing that the butane

canister contained methamphetamine.




         Bonnell then testified and denied admitting ownership of the methamphetamine. He also

denied making any statement after the detective read him his Miranda rights, and he claimed he

never   opened         the   box from Hall.                Bonnell explained that any drugs and paraphernalia he

mentioned to Shaffer and Peterson were marijuana and a bong, rather than methamphetamine

and a pipe.




         In the State' s rebuttal, Shaffer described Bonnell' s admissions about using drugs and

about the methamphetamine pipe, and Peterson testified about Bonnell' s admission that the

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44083 -1 - II



methamphetamine           in the   canister    belonged to him. On surrebuttal, Bonnell insisted that he had


admitted possessing marijuana rather than methamphetamine.

            The   court   then   read   the   following   stipulation   to the   jury: "   The parties do stipulate and


agree that the defendant has previously been convicted in Grays Harbor Superior Court of a

criminal offense which prohibits his possession of a firearm. This stipulation shall serve as proof

beyond      a reasonable     doubt that the defendant has             a prior conviction."        RP   at   179.   The " to


convict"      instruction for count I stated that it included the elements of first degree unlawful

possession of a firearm and listed them as follows:


             1)   That on or about February 2, 2012, the defendant knowingly possessed or had
            under his control a firearm;
            2)  That the defendant had previously been convicted of a criminal offense that
            prohibited him from possessing or having a firearm under his control.
             3)    That the possession or control of the firearm occurred in the State of
            Washington.


CP at 66.


            During closing argument, the defense contended that Bonnell did not knowingly possess

the firearm in the locked box and that he unwittingly possessed the methamphetamine because he

did   not   know    what    the box      contained.    The jury found Bonnell guilty of first degree unlawful

possession of a firearm and possession of methamphetamine. The trial court imposed concurrent

standard range sentences of              78   months on count    I   and   24   months on count    II. Bonnell' s initial


judgment and sentence listed his conviction on count I as second degree unlawful possession of a


firearm, but the trial court subsequently issued a corrected judgment and sentence changing that

reference to first degree unlawful possession of a firearm.

            Bonnell   appeals     his   convictions.
44083 -1 - II •



                                                          ANALYSIS


I.         USE OF UN- MIRANDIZED STATEMENTS


           Bonnell argues that the trial court erred in admitting his statements to Shaffer because

they    were not preceded        by   Miranda        warnings.   He argues that without these statements, Shaffer


would not have searched his residence and discovered the firearm and methamphetamine.

           This      argument    fails   on     several   grounds.      We note initially that even if Bonnell' s

statements to his CCO were made in violation of his Miranda rights, the only remedy for this

violation was         the   exclusion of      the   unwarned statements         from the State'   s case   in   chief.   United


States     v.   Patane, 542 U. S. 630, 641 -42, 124 S. Ct. 2620, 159 L. Ed. 2d 667 ( 2004).                         The Fifth


Amendment does not require the suppression of physical evidence derived from an un-

Mirandized          confession unless     the       statement was    actually    coerced.   State v. Russell, 125 Wn.2d


24, 56, 882 P. 2d 747 ( 1994);           see also State v. Wethered, 110 Wn.2d 466, 473 -74, 755 P. 2d 797

     1988) (   evidence is admissible even if discovered through a statement obtained from a defendant

in violation of Miranda, so long as the statement was obtained without use of coercive tactics).

Bonnell does not allege that his statements to Shaffer were obtained by coercive tactics.

Consequently, any Miranda violation did not affect the validity of the search and the resulting

evidence.



               Furthermore,     the trial court admitted the statements in question only to impeach

Bonnell'        s   testimony    that    he    never      admitted    possessing      either   methamphetamine            or   a



methamphetamine pipe.                Although the privilege against self -
                                                                         incrimination precludes the use of a


 defendant' s statements unless the privilege was knowingly waived, the privilege may not be

 asserted to prevent the State from using a defendant' s statements to impeach his credibility after

 he has taken the           stand.    State   v.    Holland, 98 Wn.2d 507, 519, 656 P. 2d 1056 ( 1983) ( citing

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44083 -1 - II




Harris   v.   New York, 401 U. S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 ( 1971); State v. Davis, 82 Wn.2d


790, 514 P. 2d 149 ( 1973)).              The trial court so limited the use of Bonnell' s statements to his CCO,


and we need not discuss this issue further.


II.      LESSER DEGREE CHARGE AND INSTRUCTION


         Bonnell argues that the trial court erred in sentencing him on first degree unlawful

possession of a firearm where the charging document and jury instructions supported only a

sentence on second degree unlawful possession of a firearm. We agree.


         To be guilty of first degree unlawful possession of a firearm, a class B felony, a

defendant      must       have   a prior conviction       that qualifies   as a serious offense.               RCW 9. 41. 040( 1)( a),


 b).   Second degree unlawful possession of a firearm, a class C felony, requires only a prior

conviction      of a       felony that is     not   a     serious   offense,   or   certain        gross     misdemeanors.      RCW


9. 41. 040( 2)(   a), (   b). Bonnell' s prior assault conviction qualifies as a serious offense, but his prior


methamphetamine conviction                  does   not.    RCW 9. 41. 010( 3)(      a), (   18)(   a), (   b); RCW 69. 50. 4013.


         After Bonnell challenged the constitutionality of his prior assault conviction, the State

amended the charge on count I to second degree unlawful possession of a firearm and included

both the      prior       assault   and   methamphetamine            convictions       as    predicate        convictions.    Bonnell


argues that by accusing him of second degree unlawful possession of a firearm under RCW

9.41. 040( 2)( a), the State gave him notice only that he was charged with that offense. See State v.

Kjorsvik, 117 Wn.2d 93, 101, 812 P. 2d 86 ( 1991) ( defendant must have notice of accusations


against him so he can prepare adequate defense).




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44083- 1- 11



             The State responds that the amended information' s references to second degree unlawful


possession of a firearm and the corresponding statutory citation are scrivener' s errors that have

no    impact    on    Bonnell'    s conviction     because he had full     notice of     the   crime charged.       See State v.


Weiding,        60 Wn.         App.   184, 186, 803 P. 2d 17 ( 1991) ( error in citation of statute does not


invalidate an information unless the error prejudices or affects the defendant' s substantial rights).


The State also argues that Bonnell was put on notice during the hearing that the amended

information          alleged    both first   and second     degree    unlawful possession        of a    firearm.   We see no


such notification; the State mistakenly asserted during the hearing that the initial and amended

charging documents were identical except for the added drug offense.

             But, even if we overlook the errors in the charging document, we cannot overlook the

error   in the " to        convict"    instruction.    We review alleged errors of law in jury instructions de

novo.        State   v.   Willis, 153 Wn.2d 366, 370, 103 P. 3d 1213 ( 2005).                  An instruction purporting to

list all of the elements of a crime must in fact do so; when a " to convict" instruction fails to state

the   law completely            and   correctly,   a conviction   based    upon   it   cannot   stand.    State v. Smith, 131


Wn.2d 258, 263, 930 P. 2d 917 ( 1997).                    We may review the alleged omission of an element in a

 to   convict"        instruction for the first time        on appeal.     State v. Davis, 154 Wn.2d 291, 306, 111


P. 3d 844 ( 2005).


             As Bonnell asserts, the " to convict" instruction included the elements of second degree

possession of a firearm rather than those of first degree possession of a firearm by requiring the

jury    to   find that he had         a prior conviction of a criminal offense and not a serious offense.                   The


State argues that the stipulation relieved it of its burden to prove the predicate offense needed to


support       the    first degree     charge,   but Bonnell   stipulated   only to     a prior " criminal offense."       RP at


179.     See State        v.   Wolf, 134     Wn.   App.   196, 139 P. 3d 414 ( 2006) ( defendant stipulated to prior

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44083 - 1 - II



serious    offense     when     charged    with    first degree   unlawful    possession    of a   firearm).   Both the


stipulation and the " to convict" instruction reflected only the elements of second degree unlawful

possession of a firearm.


          Where the jury was instructed on a lesser degree crime and necessarily found each

element of that crime in reaching its verdict, we may remand for resentencing on the lesser

offense.    In   re   Pers. Restraint   ofHeidari,     174 Wn.2d 288, 292 -94, 274 P. 3d 366 ( 2012).           Bonnell


argues that the jury was essentially instructed on the offense of second degree unlawful

possession of a firearm, and the parties agree that the jury verdict established that each element

of   that offense was       proved   beyond        a reasonable    doubt.    Consequently, we reverse Bonnell' s

conviction for first degree unlawful possession of a firearm and remand for entry of judgment
                                                                                        2
and    sentencing for     second   degree   unlawful possession of a         firearm.


III.      SAG


          In his SAG, Bonnell contends initially that the trial court' s instruction incorrectly defined

constructive      possession     for the   jury. Bonnell cites instruction 8, which contained the definition

of a firearm; instruction 9 defined possession. Bonnell faults the instruction for failing to include

legal   citations     as well   as " nexus"    language.     The trial court properly excluded legal citations

from its instructions and properly defined constructive possession without reference to an

additional       nexus    requirement.       11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY


INSTRUCTIONS: CRIMINAL: 133. 52,              at   617 ( 2008).   We reject this claim of instructional error.




2 Given this resolution, we need not address the constitutionality of the guilty plea supporting the
predicate felony for the first degree charge. See State v. Brown, 127 Wn.2d 749, 756 -57, 903
P. 2d 459 ( 1995) ( double jeopardy bars retrial on charges greater than charge for which defendant
was convicted).

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44083 -1 - II




         Bonnell next asserts that the evidence seized from his residence could not support


criminal charges because it was not the result of a warrant- supported search conducted by a

police officer. A warrantless search of a parolee' s or probationer' s residence is permissible if a

CCO has             founded suspicion
             a well -                             that a   release violation   has   occurred.   RCW 9. 94A.631; State


v.   Parris, 163 Wn.       App.        110, 118 - 19, 259 P. 3d 331 ( 2011).         If a CCO discovers evidence of a


criminal violation, he may submit that evidence to law enforcement officials for eventual

criminal prosecution.           United States       v.   Conway,   122 F. 3d 841, 842 ( 9th Cir. 1997); Parris, 163


Wn. App.        at   115; State   v.   Jungers, 125 Wn.       App.    895, 898 -99, 106 P. 3d 827 ( 2005).   Bonnell' s


argument that a CCO' s search can support only prosecution for a sentence violation is without

merit.



         In a related argument, Bonnell contends that the trial court erred in permitting his arrest

for   a sentence violation         that led to      felony   charges.    Aside from the fact that Bonnell did not

challenge his arrest below, we note that the trial court found ample cause for the CCO' s


conclusion that Bonnell violated a condition of his sentence by attempting to twice use an

artificial   bladder     when asked         to   provide a urinalysis sample.         The fact that additional charges


resulted from the ensuing search does not undermine the legitimacy of Bonnell' s arrest.

         Bonnell also argues that his arrest was unlawful because Shaffer had to report his

sentence     violation     to   a court     before arresting him.        Former RCW 9. 94A. 631 ( 2009) provides


otherwise:




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44083 -1 - II




                   1)
                    If an offender violates any condition or requirement of a sentence, a
          community corrections officer may arrest or cause the arrest of the offender
          without a warrant, pending a determination by the court or a department of
          corrections hearing officer.

Under this statute, an arrest may precede a court' s determination that the sentence has been

violated.




          Bonnell asserts further that because the firearm and baggies of methamphetamine did not

contain     his fingerprints, the State failed to        prove    possession.    Shaffer admitted on cross


examination that the items seized from Bonnell' s residence were not tested for fingerprints. This


admission does not undermine the evidence showing that Bonnell possessed both the firearm and

the methamphetamine, and we reject this claim of error.


          Bonnell next argues that the trial court erred in admitting evidence that the gun was in

plain   view.    We see no plain view ruling in this record, and no objection on this ground.

Accordingly, we need not reach this issue. State v. Kirkman, 159 Wn.2d 918, 926, 155 P. 3d 125

 2007).


          Bonnell argues further that the trial court erred by not suppressing evidence based on

testimony by Shaffer      that   was   ultimately   proven   false. Bonnell maintains that because he never


actually refused to give a urine sample and never gave a sample that tested positive for drugs,

Shaffer unlawfully      arrested   him for violating his      sentence.   We see no error in the trial court' s


conclusion that Bonnell violated the sentence condition requiring him to give urine samples upon

request by using a device intended to thwart that requirement.




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44083 -1 - I1.




         We affirm the conviction for unlawful possession of a controlled substance, reverse the


conviction for first degree unlawful possession of a firearm, and remand for entry of judgment

and sentencing on second degree unlawful possession of a firearm.

         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.




We concur:




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