Home Table of Contents

WPIC 133.02 Unlawful Possession of Firearm—First Degree—Elements

11A WAPRAC WPIC 133.02Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 133.02 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part XIII. Miscellaneous Crimes
WPIC CHAPTER 133. Weapon Offenses
WPIC 133.02 Unlawful Possession of Firearm—First Degree—Elements
To convict the defendant of the crime of unlawful possession of a firearm in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant [knowingly owned a firearm] [or] [knowingly had a firearm in [his] [her] possession or control];
(2) That the defendant had previously been [convicted] [adjudicated guilty as a juvenile] [or] [found not guilty by reason of insanity] of [(name of serious offense)] [a serious offense]; and
(3) That the [ownership] [or] [possession or control] of the firearm occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
With this instruction, use WPIC 2.10 (Firearm—Definition as Element), WPIC 10.02 (Knowledge—Knowingly—Definition), and WPIC 133.52 (Possession—Weapon—Definition).
Use bracketed material as applicable. See the Comment below for a discussion of “serious offense” and use of the words “convicted” and “adjudicated as a juvenile.” For a discussion of the bracketed alternatives at the end of element (2), including in the context of defense stipulations, see the Comment below.
RCW 9.41.040(1)(a).
The statute does not violate state or federal constitutional rights. State v. Jorgenson, 179 Wn.2d 145, 312 P.3d 960 (2013).
This instruction, WPIC 133.01 (Unlawful Possession of a Firearm—First Degree—Definition), and WPIC 133.02.01 (Unlawful Possession of a Firearm—Second Degree—Definition) cover the most commonly occurring offenses under the statute. The statute defines additional ways in which the crime may be committed, for which instructions must be drafted on a case-by-case basis.
Firearm. The statutory definition includes inoperable or unloaded guns, as well as improvised devices; the question is whether the object is a “gun in fact” as distinguished from a “toy gun.” State v. Raleigh, 157 Wn.App. 728, 238 P.3d 1211 (2010) (conviction for possession of inoperable gun affirmed); State v. Hammock, 154 Wn.App. 630, 226 P.3d 154 (2010) (affirming conviction based on possession of hollowed-out bolt, bullet, and hammer).
Conviction. A person is “convicted,” whether in adult court or in a juvenile court adjudication, upon acceptance of a plea of guilty or when a verdict of guilty has been filed, notwithstanding the pendency of future proceedings such as sentencing, post-trial motions, and appeals. See RCW 9.41.040(3); State v. McKinley, 84 Wn.App. 677, 929 P.2d 1145 (1997). Convictions also include dismissals after probation (with some exceptions listed in RCW 9.41.040(4)), or after suspension or deferral. A conviction does not include one that has been the subject of a pardon, annulment, or certificate of rehabilitation, when based on a finding of rehabilitation or a finding of innocence. RCW 9.41.040(3). The conviction may have occurred “in this state or elsewhere.” RCW 9.41.040(1)(a).
A conviction that has been reversed for insufficient evidence may not serve as the basis for a conviction for possession of a firearm under RCW 9.41.040. State v. Gore, 101 Wn.2d 481, 681 P.2d 227 (1984) (vacating a firearm conviction even though the earlier conviction had not yet been reversed when the firearm conviction was entered). Similarly, a conviction based upon an invalid guilty plea may not serve as the basis for a conviction for possession of a firearm under RCW 9.41.040. State v. Swindell, 93 Wn.2d 192, 607 P.2d 852 (1980).
In Swindell and State v. Roybal, 82 Wn.2d 577, 512 P.2d 718 (1973), convictions under this statute and under a city ordinance prohibiting the carrying of a concealed pistol were sustained against the claim of double jeopardy. Similarly, in State v. Harp, 13 Wn.App. 239, 534 P.2d 842 (1975), a conviction under this statute and enhancement of the penalty for other crimes by a special finding that the defendant was armed with a deadly weapon were sustained against the claim of double jeopardy.
The existence of a constitutionally valid prior conviction is an essential element of the offense that the State must prove beyond a reasonable doubt once the defendant has offered a “colorable, fact-specific argument supporting the claim of constitutional error in the prior conviction.” State v. Summers, 120 Wn.2d 801, 812, 846 P.2d 490 (1993). A conviction that has “washed out” under the Sentencing Reform Act is nevertheless a “conviction” for purposes of this crime. State v. Sweeney, 125 Wn.App. 77, 104 P.3d 46 (2005). However, a juvenile adjudication that has been expunged cannot be a predicate crime for unlawful possession of a firearm. Nelson v. State, 120 Wn.App. 470, 85 P.3d 912 (2003).
Serious offense. The statute defines “serious offense” at RCW 9.41.010(27). The term includes all offenses listed under the definition of “crime of violence,” RCW 9.41.010(4), as well as several additional specific crimes or categories of crimes, and “any felony offense in effect prior to June 6, 1996, that is comparable to a serious offense, or any federal or out-of-state conviction for an offense that under the laws of this state would be a felony classified as a serious offense.” RCW 9.41.010(27)(o). See WPIC 133.53 (Serious Offense—Definition).
Serious offense—element (2). Practitioners will need to decide, depending on the circumstances of a particular case, whether to phrase element (2) using the generic language “a serious offense” or instead using the blank line for identifying a particular offense, e.g., first degree assault. In part, this decision will depend on the language of the charging document. In some cases, the decision will also depend on the existence, and even the particular wording, of a defendant's stipulation. For example, if an Old Chief stipulation (Old Chief v. U.S., 519 U.S. 172, 183, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997)) is entered under which the defendant stipulates that he or she has a prior conviction that qualifies as a serious offense, then element (2) is properly phrased using the generic term “a serious offense,” without specifying the particular offense. Under this approach, however, the practitioners will need to carefully draft the stipulation such that element (2) does not invite jurors to determine on their own whether a particular offense is “serious.” On the other hand, if a more limited stipulation is entered, such as a stipulation that the defendant was previously convicted of a particular offense, without further stipulating that the crime of conviction qualifies as a serious offense, then element (2) will need to specify the particular offense at issue. For further discussion of Old Chief stipulations, see the Comment to WPIC 4.78 (Stipulations as to Undisputed Facts or Elements of Prior Offense (“Old Chief Stipulation”).
Scienter. There is no requirement that the State prove the defendant knew his possession of a firearm was illegal. State v. Reed, 84 Wn.App. 379, 928 P.2d 469 (1997). However, a “narrowly defined class of cases has determined that affirmative, misleading information” from the government is a violation of due process. State v. Sweeney, 125 Wn.App. 77, 104 P.3d 46 (2005). See State v. Minor, 162 Wn.2d 796, 174 P.3d 1162 (2008) (vacating a juvenile adjudication for possession of a firearm; the juvenile was affirmatively misled when the disposition order for the predicate offense did not include a check-mark next to the appropriate paragraph regarding firearms); State v. Leavitt, 107 Wn.App. 361, 27 P.3d 622 (2001) (misleading paperwork at sentencing could have led defendant to believe possession prohibition lasted only one year).
The State must prove that the defendant knowingly possessed the firearm. State v. Anderson, 141 Wn.2d 357, 5 P.3d 1247 (2000); State v. Hartzell, 156 Wn.App. 918, 237 P.3d 928 (2010) (omission of knowledge element from instruction was harmless error; evidence of defendant's knowledge was uncontroverted).
A necessity defense may be asserted to a charge of unlawful possession of a firearm if specific criteria are met. State v. Parker, 127 Wn.App. 352, 354–55, 110 P.3d 1152 (2005) (citing State v. Jeffrey, 77 Wn.App. 222, 889 P.2d 956 (1995)). See WPIC 18.02 (Necessity—Defense).
Possession. Possession of a firearm may be actual or constructive. Actual possession may be established by circumstantial evidence. State v. Manion, 173 Wn.App. 610, 295 P.3d 270 (2013) (presence of juvenile's DNA on abandoned firearm sufficient to support conviction). Constructive possession is established if the defendant had dominion and control over the firearm or the premises where it was found. State v. Davis, 176 Wn.App. 849, 315 P.3d 1105 (2013), reversed on other grounds, 182 Wn.2d 222, 340 P.3d 820 (2014) (owner of residence had possession of firearm, but passenger in vehicle containing firearm did not); State v. Chouinard, 169 Wn.App. 895, 282 P.3d 117 (2012) (backseat passenger did not possess firearm, despite proximity); State v. Echeverria, 85 Wn.App. 777, 783, 934 P.2d 1214 (1997). There is no requirement that the firearm be immediately accessible. State v. Howell, 119 Wn.App. 644, 79 P.3d 451 (2003). However, mere proximity to a firearm is insufficient to establish possession. State v. Embry, 171 Wn.App. 714, 287 P.3d 648 (2012). The requirement of immediate accessibility applies to the firearm enhancement rather than to the crime of unlawful possession. State v. Embry, 171 Wn.App. 714, 287 P.3d 648 (2012). Cases on firearm enhancements do not necessarily apply to cases on the offense of unlawful firearm possession. See WPIC 133.52 (Possession—Weapon—Definition).
Element (3). Element (3) does not follow the format usually used in criminal instructions, i.e., that “any of these acts occurred in the State of Washington,” because in this context, where the conviction of the predicate crime may have occurred outside the state, such language may be confusing to a jury.
Merger and multiple offenses. The statute explicitly provides that a defendant may be charged with theft of a firearm and possession of a stolen firearm, when appropriate, in addition to unlawful possession of a firearm in the first or second degree. RCW 9.41.040(6). Each firearm possessed is a separate offense. RCW 9.41.040(7).
[Current as of December 2019.]
End of Document