IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON STATE OFWASHINGTON, Respondent,

v. JOSEPH MACDONALD VAUX, Appellant. *—•> ^O ) No. 67947-3 

### £§ Zfctx rn—< ~~*j ) DIVISION ONE

•— 

### ) UNPUBLISHEDOPINION^
CO rrr—
rv> r^'o ) FILED: March 11, 2013 CTi Appelwick, J. —Vaux argues thatthe trial courtviolated his constitutional right to


### a defense by refusing to use requestedjury instructions. Thetrial court, acting within its discretion, determined that the evidence did not support giving the instructions. Vaux also argues that the evidence was insufficientto show more than passing control ofthe firearm. Ample evidence supported a finding ofpossession. 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 identificationfrom all renters. 

### When Vaux reached into his pocketfor his wallet, a baggie of white powderfell to the floor. The two men took the gun to the shooting range. Weimer shotthe gun firstthen gave it to Vaux. Vaux loaded the gun, shotit,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 managertold police thatVaux had dropped the baggie and that he was 

### still shooting on the range. Police ran a background check using the identificationNo. 67947-3-1/2


### documentation Vaux and Weimer provided to rent the gun. Both men were convicted felons. PolicearrestedVaux on suspicion ofpossession ofmethamphetamine. Vauxwas charged with unlawful possession of a firearm in the firstdegree and possession of methamphetamine. At trial, the State introduced into evidence the 

### judgment and sentence and guilty plea statementfrom 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 

### rejectedthe instructions, and thejuryconvictedVaux 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 thatthe trial court failed to view the evidence in the light most favorable to the defendant when determining whethersubstantial evidence supported his requested instructions. 

### Due process requires thatjury instructions allowthe parties to argue alltheories of their respective cases supported by sufficient evidence, fully instruct thejury 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.2dNo. 67947-3-1/3 784 (1977). When determining whether there is sufficient evidence to support a jury instruction, the court mustviewthe evidence inthe light mostfavorable 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, ifbased on a factual dispute, for abuse ofdiscretion. State v. Walker, 136Wn.2d 767, 771-72, 966 P.2d 883 (1998). Vaux requested three instructions based on Statev. Breitung. 155 Wn. App. 606, 

### 230P.3d 614(2010) (affd. 173Wn.2d 393, 267P.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 notifythe 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 herright to do so is restored by a courtofrecord. We held that where a convicting court failed to give this mandatory notice and there is
no evidence thatthe defendant otherwise acquired actual knowledge ofthe 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 ofany real bite." Breitung, 173 Wn.2d at 402. It held that lack ofstatutorily required notice is an affirmative defense. ]d. at403.



### 1The State argues that the requestedjury 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 thejudgment and sentence lacked the statutorily required notice andthe defendant "did not otherwise have notice ofthe 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 ofthe law or notice ofthefirearm prohibition." ]g\at 404. Inthis case, the trial courtdetermined 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 offirearms. 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 ofthe 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 standardform plea statement thatmight notapply to thedefendant endwiththe parentheticalexplanation, "Ifnotapplicable, this section should bestricken 

### andinitialedbythedefendantand thejudge." The paragraphs that do notapplytoVauxNo. 67947-3-1/5 

### are stricken and initialed. Paragraph 6(u) was initialed but notstricken. 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 itapplies in allcases. 

### 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 belowparagraph 12. Third, the only twoparagraphsthat 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 importantparagraphs. Finally, Vaux's attorney also signed the document, asserting that he "read and discussedth[e] statementwith the defendantand 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 thatthefacts ofthe case did notwarrantinstructions based on Breitung. II. Sufficiency ofthe 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 offact 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. 119Wn.2d 192, 201, 829 P.2d 1068 (1992).No. 67947-3-1/6 

### RCW 9.41.040(1)(a) provides, "Aperson ... 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
... ofany serious offense." Thus/the State mustprove 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 inWashington state. State v. Humphries, 170Wn. 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 ofthe gun that did not amount to possession. He points out that he only had the gun for a limited time and that Weimer 

### shotthe 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 ofthe possession but on the quality 

### and nature ofthat possession, jd. at 386. A defendant's momentary handling of an 

### item, along with other sufficient indicia of control, can support a finding ofpossession. Id, The totality of the circumstances determines possession, id.No. 67947-3-1/7 

### Inthiscase, sufficientevidence showed that Vaux had possession of thefirearm. 

### 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 Vauxshootthefirearm. Wade's securitytape also shows Vaux loading and shooting thefirearm. Finally, Vaux himselfadmittedthathe shotthefirearm at Wade's. This evidence shows thatVaux had dominion and control overthe firearm,


### even if only for a short time. Sufficient evidence supports the finding that Vaux possessed the gun. We affirm. /

WE CONCUR: