                                                                                                                 ILEQ
                                                                                                    COURT of APPEALS
                                                                                                          DIVISION Ii
                                                                                                  20140E         16 MI18 :34

                                                                                                                 W       TON
                                                                                                   BY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II

STATE OF WASHINGTON,                                                        No. 44778 -9 -II


                                     Respondent,


          v.




HENRY JORDAN BRADY,                                                    UNPUBLISHED OPINION


                                     Appellant.




         LEE, J. —   A jury found Henry Jordan Brady guilty of first degree unlawful possession of

a   firearm.   Brady appeals, arguing that ( 1) the corpus delicti rule precluded admission of his

statement to police because there was insufficient independent evidence corroborating the

statement; and (2) the State presented insufficient evidence to support the conviction. Because the


corpus delicti rule precludes the use of Brady' s statements and there is insufficient evidence to

support the conviction, we reverse the conviction and remand for dismissal of the charge.

                                                     FACTS


          On February 8, 2011, Bremerton police officers responded to a report of a fight and were

informed that a white Oldsmobile car was involved. When police officers arrived at the scene, a

woman was      in the driver'   s seat of   the Oldsmobile   and   Henry Brady   was   in   a   nearby   yard.   When
No. 44778 -9 -II



police officers tried to talk to Brady, he ran from them, but he was apprehended a few yards away

and put into a patrol car.


         At the   scene, police officers searched       the Oldsmobile.       In the search, they found Brady' s

wallet on the back seat and a . 40- caliber semi -automatic handgun wrapped in a towel under the

front passenger seat.


         After the vehicle search, Brady was taken to the Bremerton police station for questioning.

At the police station, Detective Robert Davis questioned Brady about the fight and the gun that

police   officers   found in the Oldsmobile.          Brady told Davis that he was familiar with the gun

because he handled it a few days earlier on February 4.

         Brady had a prior conviction of first degree burglary, which made it unlawful for him to

possess a firearm. The State charged Brady with the crime of first degree unlawful possession of

a firearm from February 4 to February 8, 2011.

         Brady made       a   Knapstadl   motion   to dismiss the   charge.       The trial court granted the motion


in part, ruling that the " inference of continued possession from February 4th to February 8th is too

attenuated   to   be   reasonable,"   and " that there' s only sufficient information to go to the jury on the

evidence of possession on         February    4th." Clerk' s Papers ( CP) at 16 -17. In response to the State' s


attempt to clarify the ruling, the trial court said that a Knapstad motion is not " an all -or- nothing

motion,"   that the     court " can split   the incidents up,"   and that the trial court agreed with Brady that

there is insufficient     evidence of possession on       February    8 to   go   to   a   jury. CP at 16 -17. The trial

court repeated      its ruling, saying that "[ t]he Information charges a period of time on or between




1 State v. Knapstad, 107 Wn.2d 346, 729 P. 2d 48 ( 1986).



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No. 44778 -9 -II



February         4   and   February 8.          I   can'   t dismiss the Information.           On the other hand, I would not


anticipate giving a ` to convict' instruction, in this case, for any date other than February 4. "2
Verbatim Report            of   Proceedings ( VRP) ( Nov. 2, 2012) at 2.


               The State filed    a "    Motion in Limine          Regarding Relevancy "3 of the evidence that the police

officers recovered           from the Oldsmobile              on   February    8(   Brady' s   wallet and    the   gun).   Suppl. CP at


102. The trial          court ruled       that " the       evidence of   February      8 is   relevant   to the   commission of —the


alleged commission of the crime on                         February 4th." VRP (Nov. 16, 2012) 12.

               Before trial, Brady moved to exclude evidence of Brady' s wallet and the gun, arguing that

the evidence found in the Oldsmobile on February 8 should be excluded because that evidence was

not relevant to proving possession on February 4. The State argued that that the evidence from the

Oldsmobile was relevant and corroborated Brady' s statement that he had handled the gun on

February 4. The trial court found that while the evidence of the gun and wallet could confuse the

jury about the dates ofpossession, the evidence would not be excluded because it allowed the State
to    prove      the   corpus of    the      crime.        The trial court denied Brady' s motion, again ruling that the

evidence            from the Oldsmobile             was " part of    the     corpus"   and relevant to proving possession on


February 4. VRP ( March 4, 2013) at 55.




2 The State has not appealed the trial court' s ruling that there was insufficient evidence of
possession on February 8. The only issue at trial, and before this court, was Brady' s possession
of a firearm on February 4.
3
     While the State titled its           motion " Motion          in Limine    Regarding Relevancy,"             the trial court said,

     I] t' s   not a motion.     It' s   a   trial brief...    I am treating it as a brief to me as to why that evidence
should         be   admitted."   VRP (Nov. 16, 2012) at 12.



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No. 44778 -9 -II



          Prior to trial, Brady stipulated to his prior conviction of a serious offense as a predicate for

the unlawful possession of a firearm charge. On March 6, 2013, the case went to trial.

          At trial, Officer Rodney Rauback testified that he asked Brady about the fight and the

Oldsmobile at the scene where the officers responded. At first, Brady denied knowing the driver

ofthe Oldsmobile and claimed that he had never been in the Oldsmobile. But, when police officers

asked the driver for permission to search the Oldsmobile, Brady yelled the driver' s name and shook

his head in a "    no"   motion.    VRP ( March 6, 2013)         at   85.   The driver gave the police officers


permission to search. Rauback then asked Brady again if he knew the driver, and Brady said that

he actually did know her, but that he had              not   been in the Oldsmobile.      Also, when Rauback


confronted Brady about his wallet in the back seat of the Oldsmobile, Brady said that he actually

had been in the car earlier that day.

          Detective Davis testified that when he interviewed Brady at the Bremerton police station

about the gun that police officers.found in the Oldsmobile, Davis did not describe the gun or show

it to   Brady. Despite that, Brady told Davis that he was familiar with the gun, and that it was the

same .40- caliber gun that a man named Dillon4 brought to his home to sell to him a few days earlier

on   February   4, 2011.    At first, Brady said that he did not handle the gun, but then he said that he

did handle it    and     that he   wiped   off   his fingerprints.    Officer Jason Vertefeuille testified that


although the Bremerton police tested the gun for fingerprints, no fingerprints were found on the

gun.




4"
     Dillon"   is not involved in any proceedings related to this case and has not been otherwise
identified.




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No. 44778 -9 -II



        The trial court instructed the jury only on the charge of first degree unlawful possession of

a firearm, which included an instruction on the definition of "possession. "5 The jury found Brady

guilty of first degree unlawful possession of a firearm. Brady appeals.

                                                    ANALYSIS


        Brady alleges that ( 1) the corpus delicti rule bars his statement because the State did not

present independent corroborating evidence of Brady' s statement that he handled the gun on

February 4 and (2) the State presented insufficient evidence to support the guilty verdict. We agree

that the State failed to present corroborating independent evidence to show that Brady handled the

firearm on February 4; thus, his statement to police should not have been admitted. Furthermore,

without Brady' s own statement, there is insufficient evidence to support the charge of first degree

unlawful possession of a firearm on February 4.



5 Instruction No. 11 states:

                   Possession   means   having     a   firearm in   one' s   custody   or control.   It may be
        either actual   or constructive.       Actual possession occurs when the item is in the
        actual   physical   custody     of   the   person   charged     with    possession.     Constructive
        possession occurs when there is no actual physical possession but there is dominion
        and control over the item. -


                   Proximity alone without proof of dominion and control is insufficient to
        establish constructive possession. Dominion and control need not be exclusive to
        support a finding of constructive possession.

                   In deciding whether the defendant had dominion and control over an item,
        you are to consider all the relevant circumstances in the case. Factors that you may
        consider, among others, include whether the defendant had the ability to take actual
        possession of the item, whether the defendant had the capacity to exclude others
        from possession of the item, and whether the defendant had dominion and control
        over the premises where the item was located.    No single one of these factors
        necessarily controls your decision.

Suppl. CP at 152.



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No. 44778 -9 -II



A.        CORPUS DELICTI6


          Brady challenges the sufficiency of the corroborating independent evidence under the

corpus delicti rule, alleging that the trial court should have excluded his statement that he handled

the firearm on February 4 because there was no independent evidence to corroborate his statement.

We agree.


           A defendant' s incriminating statement alone is not sufficient to establish that a crime took

place."   State   v.   Brockob, 159 Wn.2d 311, 328, 150 P. 3d 59 ( 2006) ( footnote                    omitted).          The State


must present independent evidence to corroborate that the crime described in the defendant' s

incriminating statement took place. Brockob, 159 Wn.2d at 328.

          The   corpus       delicti   rule " tests   the sufficiency   or    adequacy   of evidence,"   independent of the


defendant' s confession, to corroborate a defendant' s incriminating statement. State v. Dow, 168

Wn.2d 243, 249, 227 P. 3d 1278 ( 2010).                     Under the corpus delicti rule, the State must present


sufficient independent evidence corroborating the defendant' s confession to support the inference

that the   crime with which             the defendant has been          charged    has   occurred, and    the " independent


evidence ` must         be    consistent with         guilt and   inconsistent    with a[ ]   hypothesis of innocence.'"


Brockob, 159 Wn.2d at 329 ( quoting State v. Aten, 130 Wn.2d 640, 660, 927 P. 2d 210 ( 1996)).

 The independent evidence need not be sufficient to support a conviction, but it must provide

prima facie corroboration of the crime described in the defendant' s incriminating statement."




6"
     Corpus delicti"      means "       body of the     crime."   State v. Aten, 130 Wn.2d 640, 655, 927 P. 2d 210
                                                                                                              4th
 1996) ( quoting 1 MCCORMICK                  ON   EVIDENCE § 145,       at   227 ( John W.   Strong   ed.,         ed.   1992)).
No. 44778 -9 -II


Brockob, 159 Wn.2d        at   328. "   Prima facie corroboration of a defendant' s incriminating statement

exists   if the independent    evidence supports a '       logical and reasonable inference" of the facts sought


to be    proved. "'   Brockob, 159 Wn.2d           at   328 ( quoting Aten, 130 Wn.2d        at   656).   We view all


reasonable inferences from the evidence in the light most favorable to the State and assume the


truth of the State' s evidence when determining the sufficiency of the independent evidence. Aten,

130 Wn.2d at 658.


          Ordinarily, proving the identity of the person who committed the crime is not part of the

corpus delecti. State v. Solomon, 73 Wn. App. 724, 728, 870 P. 2d 1019, review denied, 124 Wn.2d

1028 ( 1994).     But, some crimes " inherently require proof of identity" to establish the corpus delecti

because " the fact that a crime occurred cannot be established without" identifying the person who

committed     it. Solomon, 73 Wn.          App.    at   728.   Unlawful possession of a firearm is among such

crimes because firearm possession is not unlawful per se; rather, possession is unlawful only when

the   possessor   has been previously       convicted of a serious offense.           State v. Wright, 76 Wn. App.

811, 817 - 18, 888 P. 2d 1214,          review   denied, 127 Wn.2d 1010 ( 1995).          The corpus delecti rule as


applied to unlawful firearm possession, therefore, requires proof connecting the defendant with

the firearm    possession.      Wright, 76 Wn.          App.   at   818.   Therefore, here, the State had to present


independent evidence to provide prima facie corroboration that Brady possessed the firearm on

February 4.

          During questioning at the Bremerton police station, Brady told Detective Davis that he

handled the gun in his home on February 4 when Dillon offered to sell it to him. Thus, the State




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No. 44778 -9 -II



was required to present independent evidence to corroborate Brady' s statement that he handled the

gun on February 4. The State argued, in a footnote, that the following evidence was independent

of Brady' s statement and corroborated that statement: on February 8, police officers found Brady' s

wallet and the gun in the same car, and Brady admitted to having been in that car on February 8.

We disagree that this evidence corroborates Brady' s statement that he handled the gun on February

4.


          Even when the evidence and all reasonable inferences are viewed in the light most


favorable to the State, the evidence that police officers found Brady' s wallet in the same car that

they found the firearm on February 8 is unrelated to Brady' s statement that he handled the firearm
on   February   4.    Brady' s presence in the Oldsmobile at some point on February 8 is similarly

unrelated   to his    handling   the   firearm   on   February   4.   The evidence of Brady' s wallet and firearm

found in the Oldsmobile on February 8 fails to provide prima facie corroboration that Brady

handled the firearm on February 4, and the evidence is neither consistent nor inconsistent with

Brady' s   guilt or   innocence    on   the   charge of   unlawfully possessing          a   firearm   on   February   4. At


best, the evidence allows an inference that Brady was in possession on February 8. However, we

are only addressing the conviction for possession on February 4.

          The evidence the State presented is disconnected in time and place, and does not allow a

logical   or reasonable    inference that      Brady    possessed     the firearm   on   February      4.   The State failed


to present any independent evidence corroborating Brady' s statement that he handled the firearm

on   February   4. Therefore, the trial       court erred   in admitting Brady'     s statement.
No. 44778 -9 -II



B.          SUFFICIENCY OF THE EVIDENCE


            Brady alleges that the State did not present sufficient evidence to support the conviction.

 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 of fact could have found guilt beyond a

reasonable      doubt."    State      v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). " A claim of


insufficiency admits the truth of the State' s evidence and all inferences that reasonably can be

drawn therefrom."          Salinas, 119 Wn.2d            at   201. "[   A]11 reasonable inferences from the evidence


must    be drawn in favor        of   the State   and   interpreted     most   strongly   against   the defendant."   Salinas,


119 Wn.2d at 201. Circumstantial evidence and direct evidence are deemed equally reliable. State

v.   Delmarter, 94 Wn. 2d 634, 638, 618 P. 2d 99 ( 1980). "                    Credibility determinations are for the trier

of   fact   and cannot    be   reviewed on appeal."            State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850

 1990).


            To convict Brady for unlawful possession of a firearm under RCW 9. 41. 040( 1)( a), the State

must prove beyond a reasonable doubt that on February 4, Brady knowingly had a firearm in his

possession or control and that Brady had a predicate conviction precluding him from possessing

or   controlling   a   firearm. RCW 9. 41. 040( 1)(           a).   Possession can be actual or constructive. State v.


Staley, 123     Wn.2d 794, 798, 872 P. 2d 502 ( 1994).                   Actual possession means that the defendant


had the goods in his personal custody. Staley, 123 Wn.2d at 798; State v. Callahan, 77 Wn.2d 27,

29, 459 P. 2d 400 ( 1969) ( finding            close    proximity is     not sufficient   to   show actual   possession). To


determine whether a defendant had constructive possession of an item, we examine the totality of

the circumstances touching on dominion and control. State v. Summers, 107 Wn. App. 373, 384,

28 P. 3d 780 ( 2001).          Dominion and control over the premises where the item was found creates a




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No. 44778 -9 -II



rebuttable inference of dominion and control over the item itself. State v. Cantabrana, 83 Wn.

App.     204, 208, 921 P. 2d 572 ( 1996).          A defendant' s " momentary handling of an item, along with

other sufficient indicia of control, can support a finding of possession because the totality of the

circumstances       determines    possession."       Summers, 107 Wn.         App.   at   386.   The focus is " not on the


length     of the possession   but   on   the quality   and nature of that possession.           Summers, 107 Wn. App.

at 386 ( citing Staley, 123 Wn.2d at 801).

           As established above, a defendant may not be convicted based solely on his own statement.

Brady' s     admission   to   police   officers   should not      have been    admitted.      Therefore, the question is


whether the jury could have found beyond a reasonable doubt that Brady was guilty of unlawfully

possessing a firearm on February 4 without Brady' s statement to police.

           The State presented the following evidence: on February 8, Brady ran from police officers;

Brady offered inconsistent statements to police officers about knowing the driver of the

Oldsmobile and the handling of the gun; Brady told the driver of the Oldsmobile to not allow

police officers to search the Oldsmobile; and on February 8, police officers found a gun wrapped

in   a   towel   underneath   the front   seat and   Brady' s     wallet   in the back    seat of   the Oldsmobile.   Other


than Brady' s own statement, there is no evidence linking the evidence found on February 8 to

Brady' s     possession on     February     4.    Without Brady' s statement, the State presented no evidence

that     Brady    possessed   a   firearm   on    February   4.     Even taking the inferences in the light most

favorable to the State, the State did not present sufficient evidence to allow a jury to find Brady

guilty of unlawful possession of the gun on February 4.




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No. 44778 -9 -II



        We reverse Brady' s conviction, and we remand to the trial court for dismissal of the first

degree unlawful possession of a firearm charge.


        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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