Appeal from Superior Court of Franklin County. Docket No: 95-8-50186-3. Date filed: 08/08/95. Judge signing: Hon. Mike R Johnston.
Authored by John A. Schultheis. Concurring: Philip J. Thompson, Stephen M. Brown.
The opinion of the court was delivered by: Schultheis
SCHULTHEIS, A.C.J. Juvenile Jose Echeverria challenges the sufficiency of the evidence supporting the adjudication that he is guilty of unlawful possession of a firearm and "unlawful possession" of a dangerous weapon, charged as furtively carrying a martial arts throwing star with intent to conceal it. We affirm in part and reverse in part.
On June 2, 1995, Mr. Echeverria was charged with three offenses: count one, possession of a firearm by a minor in violation of former RCW 9.41.040(1)(e); count two, possession of a dangerous weapon in violation of RCW 9.41.250, in that he, "with intent to conceal such weapon, did furtively carry a metal throwing star, a dangerous weapon"; and count three, driving a motor vehicle without a valid operator's license in violation of RCW 46.20.021.
On August 1, 1995, an adjudication hearing was held before the Juvenile Court Commissioner. According to Pasco Police Officer Donna French, a car full of juveniles drove past her just before 4:00 a.m. on April 30, 1995. It was "way after curfew" and the police had recently received several stolen vehicle reports, for which they believed juveniles were responsible. Officer French followed the car and called in a license plate check. She had not yet heard back on the car's ownership status when it pulled into the parking lot of an apartment/trailer complex. She followed.
The car stopped and Mr. Echeverria got out of the driver's seat and started walking toward the complex. Officer French recognized him. She knew he was 15 years old and did not have a driver's license, was on probation and was out past curfew, so she got out of her vehicle, called out to him and told him to stop. Meanwhile, two other passengers had gotten out and two more were getting out; she told them to stop, too. Mr. Echeverria told Officer French to "Fuck off." She grabbed him and was putting handcuffs on him when Pasco Police Officer Brent Cook arrived on the scene. Officer French walked Mr. Echeverria back to her vehicle and put him in it, then explained briefly to Officer Cook what was happening. She added that one passenger had walked off while she was dealing with Mr. Echeverria.
Officer Cook kept an eye on the situation while Officer French returned to the juveniles' car. The driver's door was open and she saw "the front of the gun, probably about three inches of the barrel, sticking out from directly under the driver's seat . . . ." She "removed the gun and there was a throwing star [[lying__ right there with it" "kind of next to it." When she grabbed the gun, her hand hit it, but the throwing star was not visible.
The police contacted the registered owner of the car, Jesus Calderon, and confirmed it was not stolen. An officer brought him to the scene and Mr. Calderon retrieved the car and his brother-in-law, Robert Vanagus, who was one of the juvenile passengers. Officer French never asked whom the weapons belonged to and fingerprinting was not attempted. She did not know whether Mr. Echeverria knew she was behind him when he pulled into the parking lot; she had not activated her police lights.
Officer Cook confirmed that he arrived on the scene just as Officer French was trying to handcuff Mr. Echeverria, who was "being real verbal." Officer Cook walked with them to Officer French's vehicle and she quickly told him what was happening. Then she walked back to the juveniles' car and Officer Cook saw her reach in and "pull out the handgun." He explained: "It seemed as if when she looked in there, she pulled it out right away."
The State rested after the two officers testified. Mr. Echeverria's attorney moved for an acquittal on the weapons charges. He argued there was no evidence that Mr. Echeverria knew either weapon was under the seat, and the car was not his, so the State had not proved constructive possession. The State argued he knew the weapons were there and that they were in fact his. The Commissioner reserved ruling so that he could review the law on constructive possession.
Mr. Echeverria testified he was 15 years old, did not have a driver's license and was driving the car. According to him, Robert Vanagus had been driving the car and Mr. Echeverria thought it was his. They were on their way to a friend's trailer at the apartment/trailer complex, but had stopped at a mini mart and Mr. Vanagus let him drive the rest of the way because he was tired. Mr. Echeverria testified he did not know Officer French was behind him until she called him by his nickname "Hollywood" and told him to stop. He said more than one passenger walked away, but Officer French saw only one. He got mad at her for bothering him and letting the others leave, so he "told her like 'Fuck you.'"
Mr. Echeverria testified he had not seen the gun until she pulled it out and had not known it was under the seat. He also testified he did not even know she had found a throwing star, too, until his attorney told him later in detention. Finally, he admitted driving vehicles without a license on two other occasions in unrelated incidents.
A week later, on August 8, the Commissioner found Mr. Echeverria guilty of the three counts of driving without a license. The Commissioner then addressed the two weapons charges. Having reviewed cases on constructive and unwitting possession of drugs, the Commissioner explained his decision:
What this case comes down to is do you believe or do you not believe that the respondent knew the gun and the throwing star were under the seat. I can only conclude that he did because the gun was in plain sight. It was sticking out. The officer walked up to the car and the first thing she saw was the gun sticking out from underneath the seat. It wasn't shoved under there at all. So I'm going to find him guilty on both of those counts. The court's order of Disposition reflects Mr. ...