Seattle Attorneys Blog
Video can be important evidence in a Washington criminal case. A defendant recently challenged his convictions in which video surveillance footage played a significant part.
According to the unpublished opinion of the appeals court, the police department received a report of a shot fired at a motel. The person who reported said there were three men standing in the motel parking lot. When the officer pulled into the parking lot, the defendant and two others walked toward the motel rooms. The co-defendant hid behind some cars and tried to run. The officers caught him.
The officers determined what room the defendant entered based on the motel’s surveillance video. They obtained a search warrant for the room, and found a firearm under the mattress in that room.
The defendant was charged with first degree unlawful possession of a firearm and a second degree rendering criminal assistance charge.
According to the appeals court, the surveillance video showed the co-defendant approach a woman in parked car with a what looked like a firearm. He appeared to assault her. The defendant was standing nearby. The co-defendant handed him the firearm. The defendant then walked toward a room with the firearm. He appeared on the video for about 14 seconds with the firearm, was out of the video for about 30 seconds, then reappeared without the firearm.
A patrol officer testified the video showed the co-defendant walk to the defendant and hand him a firearm. Multiple people walked toward the motel, and the officers identified the room they entered.
The officer the police made sure no one entered or exited the room during the two hours it took to obtain a search warrant. The officers cleared the room, but there was a man on the bed. A firearm was found under that bed.
A detective testified that the video showed the co-defendant approach the defendant in the parking lot and hand him something that appeared to be a firearm. He said the firearm was found between the mattress and box spring. He said the police did not know who owned the firearm and there was no record indicating whether anyone in the room owned it.
The jury found the defendant guilty of the crimes charged.
The defendant appealed, arguing the state had not presented sufficient evidence to support a conviction of first degree unlawful possession of a firearm.
A person may be convicted of first degree unlawful possession of a firearm if they own, access, have in their custody, control, or possession, or receive, a firearm after a previous conviction of a “serious offense.” RCW 9.41.040(1)(a).
Possession may be either actual or constructive. Actual possession is physical custody. Constructive possession occurs when the person has “dominion and control” over the object. A person may have possession without having exclusive control of the object. They do not have actual possession if they passively handle the object momentarily, but the length of time they handle the object is just one factor. The quality of control must also be considered, and a person may have possession of an object based on “momentary handling” if there are other indicia of control.
The appeals court noted the evidence showed the defendant handled the firearm for no more than 44 seconds. Since the time was short, the court focused on the quality of control and “other sufficient indicia of control.”
The appeals court noted the video showed the defendant holding the firearm against his leg as he walked toward the room, and it would be reasonable to infer he took it inside. The appeals court concluded this action was more than “momentarily handling it” and constituted “other sufficient indicia of control” to support a finding the defendant had actual possession of the firearm.
The appeals court therefore concluded there was sufficient evidence that the defendant had actual possession, so there was sufficient evidence to support his possession conviction.
The defendant also argued there was insufficient evidence to support his conviction of second degree rendering criminal assistance – conceal, alter, or destroy physical evidence. Pursuant to RCW 9A.76.050 in relevant part, a person “renders criminal assistance” when they conceal physical evidence that might aid in the discovery or apprehension of another person they know has committed a crime or is being sought by law enforcement for commission of a crime, “with intent to prevent, hinder, or delay” the other person’s apprehension or prosecution.
The appeals court noted there was a reasonable inference the defendant knew the co-defendant committed a crime because he was in the vicinity at the time. The appeals court then considered whether there was sufficient evidence that the defendant had the intent to prevent, hinder or delay apprehension or prosecution of the co-defendant and concealed evidence that might help in his discovery or apprehension.
The state argued it could be inferred the defendant hid the firearm under the mattress. The appeals court, however, rejected this argument because there was no evidence of what the defendant did with the firearm when he was not visible on the video. Even if he entered the motel room, there were other people present who could have hidden the gun while the officers were obtaining the search warrant.
The state also argued the defendant “concealed” the gun when he took it toward the room to keep it from being associated with the co-defendant. The appeals court rejected the argument that he was trying to hide the firearm when he held it against his leg, noting that was a normal way to hold a gun briefly and that people generally do not point a gun that they are not using or planning to use. The appeals court also noted there was not any evidence the defendant intended to hinder the co-defendant’s apprehension or that he even knew the police had been called.
The appeals court concluded there was insufficient evidence that the defendant intended to prevent, hinder, or delay the co-defendant’s apprehension or prosecution or concealed evidence. Thus, the appeals court held there was insufficient evidence to support the conviction of second degree rendering criminal assistance – conceal, alter, or destroy physical evidence and reversed that conviction.
The appeals court affirmed the first degree unlawful possession of a firearm conviction and remanded to the trial court to dismiss the second degree rendering criminal assistance conviction.
If you are facing criminal charges, a skilled Washington criminal defense attorney can help you fight to protect your rights and freedom. Call Blair & Kim, PLLC, at (206) 622-6562 for a consultation.