    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON,                                                                         ^O

                                               )        No. 67947-3                          £§
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                     Respondent,                                                    ~~*j


                                               )        DIVISION ONE                •—




              v.

                                               )        UNPUBLISHED OPINION^
                                                                                            rrr—
JOSEPH MACDONALD VAUX,                                                             CO

                                                                                   rv>      r^'o
                                                                                   CTi
                     Appellant.                )        FILED: March 11, 2013


      Appelwick, J. — Vaux argues that the trial court violated his constitutional right to

a defense by refusing to use requested jury instructions. The trial court, acting within its

discretion, determined that the evidence did not support giving the instructions. Vaux

also argues that the evidence was insufficient to show more than passing control of the

firearm. Ample evidence supported a finding of possession. We affirm.

                                           FACTS


       On February 26, 2010, Joseph Vaux and Michael Weimer went to Wade's

Eastside Gun Shop and rented a firearm. Wade's collects identification from all renters.

When Vaux reached into his pocket for his wallet, a baggie of white powder fell to the

floor. The two men took the gun to the shooting range. Weimer shot the gun first then

gave it to Vaux. Vaux loaded the gun, shot it, and returned it to Weimer.

       Meanwhile, another customer noticed the baggie Vaux had dropped and alerted

a Wade's employee.      Suspecting the baggie contained drugs, the Wade's manager

called the police. The manager also checked the lobby's security video to determine

where the baggie came from. Police arrived at Wade's while Weimer and Vaux were

shooting. The manager told police that Vaux had dropped the baggie and that he was

still shooting on the range.      Police ran a background check using the identification
No. 67947-3-1/2




documentation Vaux and Weimer provided to rent the gun. Both men were convicted

felons. Police arrested Vaux on suspicion of possession of methamphetamine.

        Vaux was charged with unlawful possession of a firearm in the first degree and

possession of methamphetamine.         At trial, the State introduced into evidence the

judgment and sentence and guilty plea statement from Vaux's 2000 felony conviction.

Although the plea statement notified Vaux that by pleading guilty he surrendered his

right to possess firearms, the judgment and sentence did not mention the prohibition.

Vaux requested three jury instructions based on the failure in the judgment and

sentence to notify Vaux of the prohibition on possession of firearms. The trial court

rejected the instructions, and the jury convicted Vaux on both counts.

                                       DISCUSSION
   I.   Jury Instructions

        Vaux first argues that the trial court's refusal to use the requested jury

instructions denied Vaux his constitutional right to a defense. He contends that the trial

court failed to view the evidence in the light most favorable to the defendant when

determining whether substantial evidence supported his requested instructions.

        Due process requires that jury instructions allow the parties to argue all theories

of their respective cases supported by sufficient evidence, fully instruct the jury on the

defense theory, inform the jury of the applicable law, and give the jury discretion to

decide questions of fact. State v. Allen. 161 Wn. App. 727, 734, 255 P.3d 784 (2011),

affd. No. 86119-6, 2013 WL 259383 (Wash. Jan. 24, 2013).           But, a trial court need

never give a requested instruction that erroneously states the law or that is not

supported by substantial evidence. See State v. Mriqlot, 88 Wn.2d 573, 578, 564 P.2d
No. 67947-3-1/3


784 (1977). When determining whether there is sufficient evidence to support a jury

instruction, the court must view the evidence in the light most favorable to the party that

requested the instruction.    State v. Ponce, 166 Wn. App. 409, 416, 269 P.3d 408

(2012). We review a trial court's refusal to give jury instructions, if based on a factual

dispute, for abuse of discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883

(1998).

       Vaux requested three instructions based on State v. Breitung. 155 Wn. App. 606,

230 P.3d 614 (2010) (affd. 173 Wn.2d 393, 267 P.3d 1012 (2011)).1 In that case, we
addressed a court's failure to provide statutorily required notification, jd. at 613. RCW

9.41.047(1) provides:

       At the time a person is convicted ... of an offense making the person
       ineligible to possess a firearm ... the convicting . . . court shall notify the
       person, orally and in writing, that the person must immediately surrender
       any concealed pistol license and that the person may not possess a
       firearm unless his or her right to do so is restored by a court of record.

We held that where a convicting court failed to give this mandatory notice and there is

no evidence that the defendant otherwise acquired actual knowledge of the prohibition,

the defendant's subsequent conviction for unlawful possession of a firearm is invalid

and must be reversed. Breitung, 155 Wn. App. at 624. The Supreme Court affirmed,

explaining that failure to provide a remedy for a violation of RCW 9.41.047(1) "ignores

the statute's mandate and deprives the statute of any real bite." Breitung, 173 Wn.2d at

402. It held that lack of statutorily required notice is an affirmative defense. ]d. at 403.




1 The State argues that the requested jury instructions were erroneous statements of
the law. Because the trial court refused the requested instructions based on a factual
determination, we do not reach this argument.
No. 67947-3-1/4


The defendant bears the burden of proving the defense by a preponderance of the

evidence. Id


       Breitung made clear that reversal of an unlawful possession of a firearm

conviction is required where the judgment and sentence lacked the statutorily required

notice and the defendant "did not otherwise have notice of the prohibition." JcL at 404.

Thus, for the affirmative defense, the defendant must show that RCW 9.41.047 notice

was not given.     kL at 403.    And, there must be no evidence that the defendant

"otherwise had knowledge of the law or notice of the firearm prohibition." ]g\ at 404.

       In this case, the trial court determined that instructions on the affirmative defense

were not warranted. At the time the court considered the requested jury instructions,

the State had submitted into evidence both the judgment and sentence and the plea

statement from Vaux's earlier conviction. The judgment and sentence contained no

mention of the prohibition on possession of firearms. This established a prima facie

affirmative defense.     However, paragraph 6(u) of the plea statement included

notification of the prohibition on possession of firearms.       Vaux's signature on the

statement showed that he "otherwise had... notice of the firearm prohibition." jd. This

constituted evidence of actual knowledge, making the Breitung affirmative defense

unavailable.

       Vaux contends that his initials next to paragraph 6(u) make its meaning

ambiguous. In fact, the plea statement leaves little room for ambiguity. First, all the
paragraphs on the standard form plea statement that might not apply to the defendant
end with the parenthetical explanation, "If not applicable, this section should be stricken

and initialed by the defendant and the judge." The paragraphs that do not apply to Vaux
No. 67947-3-1/5


are stricken and initialed. Paragraph 6(u) was initialed but not stricken. But, paragraph

6(u), regarding the prohibition on possession of firearms, does not include the

parenthetical explanation of the option to strike it, indicating that it applies in all cases.

Second, paragraph 12 states, "My lawyer has explained to me, and we have fully

discussed, all of the above paragraphs.        I understand them all." Vaux affixed his

signature directly below paragraph 12. Third, the only two paragraphs that are initialed

but not stricken are paragraphs 11, the defendant's statement in his own words, and

6(u), regarding possession of firearms. This suggests that Vaux's attorney called his

attention to these two important paragraphs. Finally, Vaux's attorney also signed the

document, asserting that he "read and discussed th[e] statement with the defendant and

believe[d] that the defendant [was] competent and fully understood] the statement."

Nothing in the plea statement suggests Vaux was unaware of or misunderstood

paragraph 6(u).

       Given this evidence of actual notice, the trial court acted within its discretion in

determining that the facts of the case did not warrant instructions based on Breitung.

II.    Sufficiency of the Evidence

      Vaux next contends that the State presented insufficient evidence to prove that

Vaux possessed the firearm.       Evidence is sufficient to support a conviction if, after

viewing the evidence in a light most favorable to the State, a rational trier of fact could

find each element of the crime beyond a reasonable doubt.            State v. Rempel. 114

Wn.2d 77, 82, 785 P.2d 1134 (1990). A claim of insufficiency admits the truth of the

State's evidence and all inferences that reasonably can be drawn therefrom. State v.

Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
No. 67947-3-1/6


       RCW 9.41.040(1)(a) provides, "A person ... is guilty of the crime of unlawful

possession of a firearm in the first degree if the person owns, has in his or her

possession, or has in his or her control any firearm after having previously been

convicted ... of any serious offense." Thus/the State must prove beyond a reasonable

doubt that a defendant has a qualifying prior conviction; that the defendant knowingly

owned, possessed, or controlled a firearm; and that the possession or control of the

firearm occurred in Washington state. State v. Humphries, 170 Wn. App. 777, 787 n.5,

285 P.3d 917 (2012).

       Under this statute, possession may be either actual or constructive.      State v.

Stalev. 123 Wn.2d 794, 798, 872 P.2d 502 (1994).              The State may establish

constructive possession by showing the defendant had dominion and control over the

firearm.   State v. Chouinard, 169 Wn. App. 895, 899, 282 P.3d 117 (2012), review

denied, No. 87858-7 (Wash. Jan. 89, 2013).          Dominion and control need not be

exclusive to establish constructive possession of contraband. State v. Summers, 107

Wn. App. 373, 384, 28 P.3d 780, 43 P.3d 526 (2001).

       Vaux argues that he had only passing control of the gun that did not amount to

possession. He points out that he only had the gun for a limited time and that Weimer

shot the gun more frequently than he did. But, passing control is not merely a temporal

concept.   Summers, 107 Wn. App. at 385. To determine whether a defendant had

dominion and control, we focus not on the length of the possession but on the quality

and nature of that possession, jd. at 386. A defendant's momentary handling of an

item, along with other sufficient indicia of control, can support a finding of possession.

Id, The totality of the circumstances determines possession, id.
No. 67947-3-1/7


      In this case, sufficient evidence showed that Vaux had possession of the firearm.

First, Vaux signed a rental agreement with Wade's. Wade's employees testified that

renters such as Vaux have the rented firearm in their possession and control. Second,

witnesses said they saw Vaux shoot the firearm. Wade's security tape also shows Vaux

loading and shooting the firearm. Finally, Vaux himself admitted that he shot the firearm

at Wade's. This evidence shows that Vaux had dominion and control over the firearm,

even if only for a short time.    Sufficient evidence supports the finding that Vaux

possessed the gun.

      We affirm.                                 /



WE CONCUR:
