                                                           2016 AUG-i AH 9:20




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 72251-4-1
                    Respondent,
                                                 DIVISION ONE
             v.



HOWARD LEE ROSS,                                 UNPUBLISHED OPINION

                    Appellant.                   FILED: August 1,2016


       Becker, J. — After a trial where the jury and court heard the evidence

simultaneously, the jury acquitted Howard Ross of assault and found that he was

not armed with a firearm at the time of the assault. The next day, the trial court

found him guilty of unlawful possession of a firearm. Because the trial court

based its verdict on testimony that Ross possessed a gun earlier in the night,

before the assault, the verdicts were not inconsistent and the issues were not

identical. We affirm.

                                      FACTS

       On January 22, 2014, around 2 a.m., Kenneth Jones was in the Central

District of Seattle when someone shot him. Jones was in a coma for about two

weeks. When he awoke, he had no memory of the shooting.
No. 72251-4-1/2



      Two months later, on March 26, Jones's aunt visited him in the hospital.

She told him she heard that the shooter was someone who had received a big

settlement. According to Jones, this information triggered his memory of the

shooting and enabled him to identify Howard Ross as the shooter.

      The next day, March 27, the State charged Ross with assault in the first

degree and alleged that at the time of the assault, he was armed with a firearm.

The State also charged Ross with unlawful possession of a firearm in the first

degree.

      Ross waived his right to a jury trial on the charge of unlawful possession

of a firearm. The assault charge proceeded to jury trial. The court and the jury

heard the evidence simultaneously.

      On June 12,2014, the jury found Ross not guilty on the assault charge.

The jury had been given a special verdict form which asked, "Was the defendant

HOWARD LEE ROSS armed with a firearm at the time of the commission of the

crime in Count 1?" Although this question was superfluous after the jury found

Ross not guilty on count 1, the jury answered it with a "no."

      The next day, the court found Ross guilty on the charge of unlawful

possession of a firearm.

       Ross moved to arrest judgment, arguing there was insufficient evidence to

conclude that he possessed a firearm within the meaning of the statute. The

court denied the motion.

       On July 25, 2014, the court sentenced Ross and entered findings of fact

and conclusions of law supporting the conviction. Ross appeals.
No. 72251-4-1/3


          INCONSISTENT VERDICTS AND COLLATERAL ESTOPPEL

       Ross argues that the court's conclusion of guilt on the charge of unlawful

possession of a firearm was barred by collateral estoppel and inconsistent with

the jury's verdict of not guilty on the assault charge.

       The party asserting collateral estoppel must show that the issue decided

in the prior adjudication is identical with the one presented in the second action.

State v. Williams. 132 Wn.2d 248, 253-54, 937 P.2d 1052 (1997). Examination

of the trial testimony and court's findings reveals that the issues were not

identical, nor was the court's decision inconsistent with the jury's acquittal.

       At trial, Jones testified that on the night of the shooting he was at a bar in

downtown Seattle drinking and using cocaine. He left the bar in pursuit of more

cocaine. As he was walking down the street, he ran into Ross, a person he had

known since childhood. Ross was driving a red Corvette. Jones got into the car.

He testified that Ross had a "chrome gun" in the center car console. He said he

asked to see the gun, but Ross refused to show it to him and moved the gun

from the center console to a pocket on the driver's side door.

       Jones testified that Ross drove around downtown and eventually parked

the car at a house in the Central District, where Ross said he was going to get

more cocaine. Jones said that Ross took the gun into the house while he waited

in the car, and when Ross returned, he had the gun on his hip. He testified that

he was getting out of the car when Ross shot him, pushed him out of the car, and

drove off. Jones was found lying on the ground near a street in the Central

District, almost dead. He has a spinal cord injury caused by the bullet.
No. 72251-4-1/4



         The court's conclusion of guilt was not based on a finding that Ross shot

Jones or was armed at the time of the shooting. The court's conclusion that

Ross unlawfully possessed a gun was based on its finding that Jones was

credible when he testified that Ross possessed a gun earlier in the evening,

before the shooting. The trial court found:

         Kenneth Jones testified that on January 22, 2014 he was driven
         around that evening by the defendant in a red corvette with black
         interior, and that he observed the defendant Ross to be in
         possession of a chrome gun, which he described as a 9mm or 45
         mm. He said the defendant periodically moved the gun around in
         the car, as well as placed it on his person when leaving the car. He
         also would not allow Jones to look at it when he asked.

               . . . The court finds Jones to be credible.

         The jury could have reasonably doubted that Ross shot Jones for any

number of reasons. Whether Ross possessed a gun earlier in the evening is a

different question, one the jury was not asked to decide. For this reason, the

court's decision was not inconsistent with the jury's acquittal on the assault

charge or with the special verdict that Jones was not armed with a firearm at the

time of the shooting. Ross could have possessed a firearm that night before the

assault, as described by Jones, yet not have been the person who later shot

Jones.


         For much the same reason, the issues are not identical. The elements of

the two crimes—assault and unlawful possession of a firearm—are distinct.

Compare RCW 9A.36.011 (assault in the first degree), wjth RCW 9.41.040(1)

(unlawful possession of a firearm in the first degree). The jury's verdict

determined that the State had not proven beyond a reasonable doubt that Ross
No. 72251-4-1/5


shot Jones or that Ross was armed with a firearm when the shooting occurred.

But the verdict did not rule out the possibility that Ross possessed a firearm

earlier that night. Whether Ross shot Jones, or whether Ross was armed at the

time of the shooting, is not an identical issue to whether Ross possessed a

firearm earlier that night. This is not a "hypertechnical" approach but reflects

"realism and rationality." Ashe v. Swenson, 397 U.S. 436, 444, 90 S. Ct. 1189,

25 L. Ed. 2d 469 (1970).

       Ross appears to argue the court was estopped from finding him guilty

because the State at no time alleged or argued that the firearm used in the

assault was different from the firearm Ross possessed in the car. But Ross cites

no authority for the proposition that a trial court acting as a fact finder is confined

by the prosecutor's presentation or theory. The conviction is supported by the

evidence.

       We conclude the conviction is not barred either by collateral estoppel or by

inconsistency with the jury verdict of acquittal on the assault charge.

                        SUFFICIENCY OF THE EVIDENCE

       Ross contends there was insufficient evidence that he possessed a

firearm as defined by RCW 9.41.010(9). The test for determining the sufficiency

of the evidence is whether, after viewing the evidence in the light most favorable

to the State, any rational trier offact could have found the essential elements of
the crime beyond a reasonable doubt. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d
936 (2006). An appellant claiming insufficiency of the evidence admits the truth
of the State's evidence and all inferences reasonably drawn from it. State v.
No. 72251-4-1/6



Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial and direct

evidence are equally reliable, and we defer to the trier of fact on witness

credibility and persuasiveness of the evidence. State v. Thomas, 150 Wn.2d

821, 874-75, 83 P.3d 970 (2004).

       A firearm is defined as "a weapon or device from which a projectile . . .

may be fired by an explosive such as gunpowder." RCW 9.41.010(9). Ross

argues there was insufficient evidence to establish the operability of the firearm.

       A firearm need not be operable during the commission of a crime to

constitute a "firearm" within the definition of RCW 9.41.010(9). State v. Faust, 93

Wn. App. 373, 376, 967 P.2d 1284 (1998); State v. Raleigh, 157 Wn. App. 728,

734, 238P.3d 1211 (2010), review denied, 170Wn.2d 1029 (2011): State v.

Wade, 133 Wn. App. 855, 873, 138P.3d 168(2006). review denied, 160Wn.2d

1002 (2007). Instead, the relevant question is whether the firearm is a "gun in

fact," or a real gun, rather than a "toy gun." Faust, 93 Wn. App. at 380; Raleigh,

157Wn. App. at 734.

       The State need not introduce the actual firearm into evidence at trial;

witness testimony alone may provide sufficient evidence. State v. McKee, 141

Wn. App. 22, 30-32, 167 P.3d 575 (2007), review denied, 163Wn.2d 1049

(2008). The evidence was sufficient to support the finding that the defendant had

a real gun when the victim described the gun in detail, said there was no

question in her mind that it was a real gun, and said the defendant threatened to

use the gun. State v. Bowman, 36 Wn. App. 798, 803, 678 P.2d 1273, review

denied, 101 Wn.2d 1015 (1984). Circumstantial evidence was also sufficient to
No. 72251-4-1/7



support a finding that the defendant had a real gun where robbery victims

described the gun in detail. State v. Mathe, 35 Wn. App. 572, 581-82, 668 P.2d

599 (1983), affirmed, 102 Wn.2d 537 (1984).

       Here, the trial court entered a specific finding of fact that Ross possessed

a real gun: "Based upon Jones' observation of the gun, and the manner in which

the defendant handled it, taking it with him when leaving the vehicle, and refusing

to let Jones handle it, the court finds the gun was a firearm, capable of being

fired." The trial court found Jones credible. We conclude the evidence was

sufficient to satisfy the definition of "firearm."

                     STATEMENT OF ADDITIONAL GROUNDS

       Ross claims that the standard of proof beyond a reasonable doubt was not

met because the trial court did not know whether or not the gun that was the

basis of his conviction was the same gun used to shoot Jones. He similarly

claims that the charging document was insufficient because it did not make him

aware of any allegation of a second gun, and that his right to due process was

violated because the court convicted him of possessing a gun which may not

have been the one used to shoot Jones.

       These arguments do not warrant review. The State was not required to

prove that different guns were used in the two crimes. Whether the gun Ross

was convicted of possessing was used to shoot Jones is not an element of the

crime. See RCW 9.41.010 (elements of unlawful possession of a firearm in the

first degree do not specify that firearm must be differentfrom firearm allegedly

used in another charged incident).
No. 72251-4-1/8


       Ross alleges that the prosecutor and the judge let their personal beliefs

about the shooting overtake their duties as court officers. He has not pointed to

any part of the record that supports this claim.

      Affirmed.

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WE CONCUR:




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