Appeal from Superior Court of King County. Docket No: 95-1-03354-3. Date filed: 09/22/95. Judge signing: Hon. Patricia H. Aitken.
PER CURIAM. Claiming the trial court abused its discretion in admitting testimony and photographic evidence of guns and ammunition found in his home and in his storage facility, and also claiming instructional error regarding unwitting possession, Ralph R. Erdmann appeals his conviction of unlawful possession of a machine gun. We find no error and affirm the conviction.
In 1992, Erdmann was twice convicted for tampering with governmental records in the State of Texas. He was placed on probation for 10 years.
Shortly thereafter he moved to Washington state and his probation was transferred. He signed a firearms notice prohibiting him from possessing any firearms.
In the course of investigating a complaint of a possible crime by Erdmann, Redmond police discovered 2 shotguns, 8 rifles, 1 air gun, 2 Derringers, 30 handguns, and multiple boxes of various types of ammunition in his home and in an adjacent trailer. Additionally, in a storage unit leased solely to Erdmann, police found 66 rifles, 13 handguns, and a Colt M-16 A-1 fully automatic assault rifle as well as various types of ammunition, including 14 clips of M-16 233 ammunition. When tested, the machine gun unloaded a clip of 20 bullets in 1.7 seconds without requiring the trigger to be pulled more than once. Photographs of the guns were taken and the weapons confiscated. On May 8, 1995, Erdmann was charged with unlawful possession of a machine gun in violation of RCW 9.41.190. *fn1
Prior to trial, Erdmann moved to exclude any evidence of the weapons and ammunition found in his home. The trial court tentatively ruled that the evidence was inadmissible because it was irrelevant and potentially prejudicial, however, it reserved final ruling until after the defense presented its case. The court warned Erdmann and counsel that if Erdmann claimed he no longer possessed the guns in the locker because he gave the entire collection to his son, his testimony could open the door to evidence of the guns and ammunition seized from his home and trailer.
After the State presented its case, Erdmann testified in his own defense. He testified that when he moved to Washington in 1992, some of the guns in his collection stayed in Texas with his sons, and others came to Washington. He said he did not remember which guns he retained in his possession and which ones were kept by his sons. In particular, Erdmann said he did not recall seeing or handling the machine gun. He said the guns belonged to his children because he had given his collection to them, just as he had received the collection from his father, who had received the collection from his father. Erdmann claimed he had little or nothing to do with the guns in the locker.
Prior to cross examination, the State requested permission to examine Erdmann about the guns and ammunition found in his home, arguing those guns were relevant to rebut the impression he was trying to give the jury that he had little to do with guns, and additionally to show that the guns at home were part of the larger collection. The court agreed that Erdmann opened the door for the evidence of the guns and ammunition found in his home because he left a false impression that he no longer possessed any guns, and that the evidence was now more probative than prejudicial.
Defense counsel requested and was allowed to reopen direct testimony before the State cross-examined Erdmann. Erdmann then testified about the guns in his house, again reiterating they belonged to his sons. He claimed he was naive about guns and merely a collector of "commemoratives".
On cross examination, when confronted with photographs of the guns and ammunition, Erdmann reluctantly admitted he had many guns and much ammunition at his house. He maintained ignorance, however, that these were all in his house, even in light that the guns and ammunition were in different places in the house. On rebuttal, Erdmann's brother-in-law contradicted much of Erdmann's testimony with regard to who helped Erdmann put the guns into storage, Erdmann's knowledge of the guns there, and specifically his knowledge about the presence of the machine gun.
Following testimony, the trial court instructed the jury, including the WPIC defining unwitting possession. The instruction stated Erdmann had to show by a preponderance of the evidence that he did not know he possessed the machine gun. The defense took exception to the instruction and offered an unwitting possession instruction indicating Erdmann only had to raise a reasonable doubt as to his lack of knowledge of possession of the machine gun. The trial court refused to give the proffered instruction and gave the instruction setting out the WPIC. Erdmann was convicted and appeals.
Erdmann first asserts that the trial court abused its discretion in admitting the testimony and photographs of the guns and ammunition found in his home and adjacent trailer because the evidence was not relevant to the charge and its probative value was outweighed by its potential for prejudice. As conceded by Erdmann, the admission of evidence is reviewed under the abuse of discretion standard. We find no abuse of discretion.
Erdmann opened the door to cross examination concerning the entirety of his collection of guns, and the location thereof, by testifying on direct that he had given away his entire collection of guns, leaving the impression that he had little or nothing to do with them since his move from Texas. As quoted by State v. Bennett, the court in State v. Gefeller held:
"It would be a curious rule of evidence which allowed one party to bring up a subject, drop it at a point where it might appear advantageous to him, and then bar the other party from all further inquiries about it." *fn2
By testifying as he did, Erdmann intentionally created a false impression. He attempted to sway the jury into believing that he no longer possessed any guns. Erdmann's claims made the subsequent cross examination and rebuttal testimony about his extensive gun collection relevant. Not ...