trial court, after a jury trial, convicted Bryan Crow of the
crimes of unlawful possession of a firearm and possession of
a stolen firearm. On appeal, we reverse Crow's conviction
of possession of a stolen firearm because his trial counsel
ineffectively failed to object to inadmissible profile
testimony and the testimony prejudiced Crow's defense.
Based on state Supreme Court precedent, we also remand for
resentencing because the State failed to present sufficient
proof of crimes included in Crow's offender score
our facts from testimony during a jury trial. We start with a
stolen gun. On October 22, 2014, Joseph Carnevali returned to
his pickup truck parked in downtown Seattle and discovered
his Ruger 9mm LC9 handgun, he stored in the pickup console,
to be missing. Carnevali reported the stolen firearm and
identified the firearm's serial number to the Seattle
from Seattle to Yakima. On June 13, 2015, Officer Chris
Taylor of the Yakima Police Department patrolled the streets
of Yakima in a marked police car. Officer Taylor saw Bryan
Crow exit a vehicle parked at a residence. Taylor recognized
Crow from earlier contacts and from Crow's horn tattoos
on his head. Officer Taylor knew Crow had a warrant for his
Chris Taylor approached Bryan Crow and, from a comfortable
distance, called Crow's name. Crow turned and looked at
Officer Taylor and then ran. Taylor yelled: "stop,
you're under arrest." Report of Proceedings (RP) at
Chris Taylor, while eight to ten feet from Bryan Crow, fired
a Taser at Crow. The Taser caused Crow to stumble, but
otherwise did not disable Crow. Crow reached into his
waistband with his right hand and retrieved a handgun. Crow
flung the weapon and continued to run from Officer Taylor.
Officer Taylor threw his Taser to the ground and drew his
service firearm. Crow jumped a fence and continued running,
after which Taylor ended his chase. Taylor took possession of
the handgun Crow discarded. Taylor knew then that prior
convictions rendered Crow ineligible from owning firearms.
Officer Taylor radioed for assistance, and other Yakima
Police Department officers later seized Crow.
Chris Taylor transported Bryan Crow to the county jail.
Officer Taylor entered the serial number from the gun, a
Ruger 9mm handgun, into the gun registry index. The check
revealed that the gun had been stolen in Seattle on October
State of Washington charged Bryan Crow with first degree
unlawful possession of a firearm and possession of a stolen
firearm. At trial, Crow stipulated to an earlier conviction
that precluded him from possessing a firearm. During trial,
Crow argued that he lacked knowledge that the Ruger firearm
trial, the prosecution introduced police testimony outlining
patterns regarding felons and stolen firearms and the
difficulty of a felon gaining possession of a firearm. Bryan
Crow's trial counsel did not object to any of this
questioning. The police testimony and the lack of evidentiary
objections presents the focus of this appeal.
State questioned Officer Chris Taylor regarding the method by
which and the location at which a person can legally purchase
a firearm. When asked if someone could lawfully sell, gift,
or transfer a gun to Crow, Officer Taylor answered:
"No." RP at 195.
cross-examination, Crow's attorney asked questions of
Taylor regarding how someone would know if a gun is stolen or
[Defense Counsel]: You testified about the firearm that was
recovered. The serial numbers, and I understand from your
testimony, the serial numbers weren't ground off?
[Defense Counsel]: How is-how is someone supposed to know if
a gun is stolen or not?
TAYLOR: There's two ways. Obviously, the direct knowledge
would be if they stole it, but a lot of times the way that I
found people that know the firearm was stolen that they buy
it illegally. If they buy it on the street from somebody
who's not a legitimate gun salesman, buy it for a cheap
price, most of the people that I come into contact with
stolen firearms will say they bought it from somebody for
fifty bucks, a hundred bucks. They assume that it's
stolen based on the fact that it's not a legitimate gun
sale and they're buying it so cheap.
RP at 198-99.
redirect examination, the State inquired about the methods by
which prohibited persons obtain firearms:
TAYLOR: From my training and experience, they [those
prohibited from possessing firearms] either will steal them
or they will buy them from somebody that is selling them
illegally on the street.
[The State]: Okay and how are those illegally obtained
firearms, where do they typically come from in your training
TAYLOR: Burglaries, vehicle prowls, things like that.
[The State]: In your training and experience, do fleeing
suspects often attempt to discard stolen property when
they're being pursued?
[The State]: Why is that?
TAYLOR: Because nobody wants to be caught with stuff that
they know they shouldn't have.
[The State]: In your training and experience, what actions
are indicative of somebody knowing something is stolen
TAYLOR: Typically they're going to try to distance
themselves as much as possible from it. They'll tell you
stuff like I have no idea about it, I don't know anything
about it, I don't know who I got it from or they'll
give you very vague answers. I got it from Bob, over there,
around this time. There's no specifics that you're
able-what they try to do is make it so there's no
specifics that you can follow up with to confirm whether they
knew or not knew or did not know that it was stolen.
[The State]: So, discarding and flight are pretty common?
. . . .
[The State]: … Okay. In your training and experience,
what percentage of people apprehended are prohibited people
with firearms are those guns stolen?
TAYLOR: Pretty high percentage. I would-I couldn't guess
a number, but I would say the majority.
[The State]: Okay. And-and in the case where those firearms
are not reported, is there a reason that sometimes
they're not reported as stolen or not in the system?
TAYLOR: A lot of times we come across firearms that are
unregistered. Maybe they don't have an owner attached to
it because they've been sold or transferred prior to
Initiative 594 so there's not a record or the person who
had the burglary with the firearms stolen doesn't have
their serial numbers, so they're not able to list it. So,
we're not able to confirm that the firearm is in fact
RP at 201-03.
trial, Yakima Officer Booker Ward testified regarding the
ways a person could illegally obtain a firearm. The testimony
is as follows:
[The State]: Okay. In your training and experience, how do
prohibited persons get firearms?
WARD: Usually through burglaries, vehicle prowls, some way of
[The State]: Okay, what percentage are stolen in your
training and experience that turn up in prohibited
WARD: I would say a high percentage.
[The State]: Okay, based on Mr. Crow's status of being
convicted of a serious offense at the time of the arrest,
were there any lawful means at that time for Bryan Crow to
receive a firearm or possess a firearm?
WARD: Any, no he shouldn't have been able to. Not with
the background checks and that kind of stuff.
[The State]: Okay, was there any lawful means which another
person could give a prohibited person, such as Mr. Crow, a
[The State]: No?
WARD: I don't believe so. You'd have to-once again,
do the background checks and that kind of stuff and transfers
and . . . .
RP at 219-20.
trial, the prosecution asked similar questions to Detective
[The State]: In your training and experience, what percentage
of firearms possessed by prohibited persons are stolen?
DELOZA: It's hard-it's hard to say because a lot of
the guns that are reported, not every has the serial numbers
on them, but a lot of people-most of the people that I know
that are prohibited from having firearms obviously
they're not allowed to have them so they had to get them
somewhere else and most of them are stolen.
RP at 239-40.
trial court presented the jury two jury instructions that
centered on the possession of a stolen firearm charge:
INSTRUCTION NO. 15
To convict the defendant of the crime of possessing a stolen
firearm, each of the following elements of the crime must be
proved beyond a reasonable doubt:
(1) That on or about June 13, 2015, the defendant possessed,
or carried, or was in control of stolen firearm; and
(2) That the defendant acted with knowledge that the
firearm had been stolen; and
(3) That the defendant withheld or appropriated the firearm
to the use of someone other than the true owner or person
entitled thereto; and
(4) That any of these acts occurred in the State of
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 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.
Clerk's Papers (CP) at 169 (emphasis added).
INSTRUCTION NO. 9
A person knows or acts knowingly or with knowledge with
respect to a fact, circumstance, or result when he or she is
aware of that fact, circumstance, or result. It is not
necessary that the person know that the fact, circumstance,
or result is ...