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                                                                                                   2714 Ji.IN 24
                                                                                                                   AH 9: 06



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

                                             DIVISION II



STATE OF WASHINGTON,                                                       No. 44439 -9 -II


                                   Respondent,


        v.



JESSE L. SPENCER,                                                    UNPUBLISHED OPINION


                                   Appellant.


        MAXA, J. —    Jesse Spencer appeals from the judgment and sentence imposed following his

conviction    for   unlawful   possession   of a   machine   gun.'    He   argues   that: (   1)    he received


ineffective assistance of counsel when his counsel requested and received a jury instruction on

unwitting    possession, (   2) the trial court erred in instructing the jury on unanimity, and ( 3) the

trial court erred in finding that he had the ability to pay legal financial obligations.

        The State concedes that Spencer received ineffective assistance of counsel because the


unwitting possession instruction shifted the burden of proof to Spencer. State v. Carter, 127 Wn.

App.   713, 717 -18, 112 P. 3d 561 ( 2005).        We accept the State' s concession, reverse Spencer' s


conviction for unlawful possession of a machine gun, and remand to the trial court for further

proceedings.     Because we reverse on the first issue, we need not address Spencer' s second and

third issues.




1 Spencer does not appeal from his conviction for bail jumping.

                                                       1
        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:




  UNT,




           N, A.G.
                 J.




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