Appeal from Superior Court of Cowlitz County. Docket No: 95-1-00019-1. Date filed: 06/20/95. Judge signing: Hon. Randolph Furman.
Authored by David H. Armstrong. Concurring: Karen G. Seinfeld, Elaine M. Houghton.
The opinion of the court was delivered by: Armstrong
ARMSTRONG, J. -- The State convicted Jimmy Reed of unlawful possession of a firearm. On appeal, Reed argues that the unlawful possession statute requires the State to prove that he knew his firearm possession was illegal and that he knew of his prior disqualifying felony. He also contends that the statute violates the State and Federal Constitutions' equal protection clauses because defendants convicted after 1994 must be notified that their possession of a firearm is unlawful, while defendants convicted before 1994 are not so informed. Because the unlawful possession statute does not require knowledge that possession is illegal and because Reed has not satisfied his initial burden in challenging the constitutionality of his predicate conviction, we affirm the unlawful possession conviction.
Furthermore, we find no equal protection violation because a rational basis exists for giving notice to those convicted after July 1994 and not to those convicted before that date. We affirm.
In 1984, Jimmy Dan Reed pled guilty to a felony drug charge under RCW 69.50. At the time, it was illegal for a person convicted of a drug offense to own or possess any short firearm or pistol. Former RCW 9.41.040(4) (emphasis added). The statute defined both weapons as any firearm with a barrel less than 12 inches in length. Former RCW 9.41.010(1). Reed either then owned or later acquired a .22 caliber rifle.
In 1994, the Legislature amended the statute, making it illegal for certain convicted felons to own or possess any firearm. RCW 9.41.040(1)(b) (Laws of 1994, 1st Sp. Sess., ch. 7, sec. 402) (emphasis added). The Legislature also enacted RCW 9.41.047, which requires the court to notify a person at the time of conviction of his or her ineligibility to possess a firearm.
In January 1995, the police arrested Reed on charges of felony harassment. The State also charged Reed with unlawful possession of a firearm, the .22 caliber rifle. At trial, Reed argued to the trial court that he did not know that he had a prior conviction. Reed contended, in an offer of proof, that he believed his prior conviction had been reduced or dismissed in exchange for serving as a police informant. Officer Seals testified that, about 10 years earlier, the police and the prosecutor agreed with Reed to release him from jail if he worked as an informant on a set number of drug deals. Although Seals did not know the specifics, he believed the agreement called for either a reduced sentence or a dismissal of some charges against Reed.
In response to this testimony, the State introduced a copy of the 1984 judgment and sentence in which Reed pled guilty to a drug offense. The trial court Judge, who had brought the 1984 drug charge against Reed while serving as a prosecutor, stated that he would not have signed the information in violation of an agreement. The Judge, however, did not know whether the agreement pertained to this drug conviction, or other charges against Reed. Seals also did not know whether the agreement pertained to the drug conviction or other charges. The trial court, therefore, rejected Reed's offer of proof. The jury then convicted Reed of unlawful possession of a firearm.
1. Knowledge Element under RCW 9.41.040
Reed first argues that RCW 9.41.040 requires a defendant to know that possession of a firearm is unlawful and to know of the prior disqualifying felony. He contends that, although the statute does not contain an express criminal intent element, an implied element should be read into RCW 9.41.040.
The State charged Reed with unlawful possession of a firearm under former RCW 9.41.040. The statute, in part, provided:
(1) A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm if the person owns, has in his or her possession, ...