State Of Washington, Respondent V. Joseph M. Vaux, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
JOSEPH MACDONALD VAUX,
Appellant.
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) 	DIVISION ONE 	•—
) 	UNPUBLISHED OPINION^
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) 	FILED: March 11, 2013 CTi
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: