IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
FILED: March 5, 2012
Lau, J. — A jury convicted Tavorris Powell of first degree robbery, attempting to
elude a pursuing police vehicle, and first degree unlawful possession of a firearm.
Powell appeals his unlawful possession of a firearm conviction, claiming denial of due
process. Based on the multiple firearms evidence and the single count charged, the
court instructed the jury that it must unanimously agree on which act the State had
proved beyond a reasonable doubt. Powell contends the State’s closing remarks
constitute an election to rely on possession of one specific gun. He argues the jury
therefore was permitted to convict him of an uncharged crime. Finding no error, we
On January 8, 2010, Tavorris Powell called Bao Do to buy marijuana. Do
agreed to meet Powell. Do picked up Powell in his Mercedes and the men drove to a
store so Powell could get money. When Powell returned to the car, he pulled out a
gun1 and cocked it. Do drove around for a while and then Powell demanded to drive
Do’s car. Do claimed he was not free to leave or call for help because Powell kept the
gun on his lap while they drove around. At various times Powell forced Do to ride in the
trunk of the Mercedes.
As they drove around, Powell stopped to pick up two friends—Joshua Dawson
and an unidentified male. The men also stopped at a house and picked up a red bag
containing three guns.
As the night went on, Powell told Do that he wanted Do to “set up” one of Do’s
friends, Thuong Nguyen. Do called Nguyen and arranged to meet him under the ruse
of selling him marijuana. Do, Powell, Dawson, and the unidentified man arrived at the
meeting location before Nguyen. Do and Powell stayed in the Mercedes while the
other two men got out armed with their guns. Nguyen arrived in his Mustang, opened
his car door, and noticed a handgun pointed at him. Dawson and the unidentified man
displayed their guns and demanded that Nguyen leave his keys in the Mustang.
Nguyen got out of the Mustang, and the men went through his pockets and took his
At trial, Do identified State’s exhibit 17 as the gun Powell pulled out in the car.
phone and driver’s license. Told to leave, Nguyen walked away and saw Do in the
Mercedes’ passenger seat and Powell sitting in the driver’s seat holding a gun.2 As
Nguyen passed by the Mercedes, Powell ordered him to empty his pockets into the
Mercedes and Nguyen complied.
Powell and Do drove off in the Mercedes, and Dawson and the unidentified man
drove the Mustang. Nguyen ran to a gas station to call 911. Do also called the police
after escaping from the Mercedes.
Police responded and saw a silver Mercedes matching Do’s description and
driven by an African American male. As the police turned around to follow the
Mercedes, another African American male jumped out of the passenger seat carrying a
red bag. The police unsuccessfully chased the Mercedes. With the help of a canine
unit, police later found a red bag with three handguns inside.3 They also found the
Mercedes abandoned with a handgun under the steering wheel.4 At trial, Do and
Nguyen identified the gun under the steering wheel as the gun Powell used to rob them
Police arrested Powell on January 13, 2010. The State charged him with first
degree robbery, attempting to elude a pursuing police vehicle, and first degree unlawful
possession of a firearm. At trial, the court instructed the jury on the elements for the
unlawful possession of a firearm charge:
At trial, Nguyen identified exhibit 17 as the gun Powell held.
These guns were admitted at trial as exhibits 14, 15, and 16.
This gun was admitted at trial as exhibit 17.
(1) That on or about January 8, 2010, the defendant knowingly had a firearm in
his possession or control;
(2) That the defendant had previously been convicted, or adjudicated of a
(3) That the possession or control of the firearm occurred in the State of
During closing remarks, the prosecutor argued:
Basically, what the State has to show is that the defendant knowingly had
in his possession or control, a firearm. In this case, the defendant technically
had in his possession or control, and the area of his dominion and control, not
one, not two, not three, but four firearms.
You can make it easy on yourself and pick the one he had in his lap;
however, there were other firearms in the car. As the judge read the definition of
dominion and control, if someone is within reach area, that is dominion and
control. However, the State charged one charge of unlawful possession of
firearm, and that is for the firearm that the defendant had in his lap.
You heard testimony about what that firearm looks like, and you will have
the chance to take that firearm back with you, to touch it with your own hands,
and see it, and feel it.
Clearly all the guns were recovered, the one that he had under his control
was recovered inside the vehicle. Every single witness told you that he had a
gun. There is no question about that. The State has proven this beyond a
reasonable doubt from all the evidence you have heard.
Report of Proceedings (RP) (Aug. 30, 2010) at 571-72. In rebuttal, the prosecutor
reiterated, “These are real guns. I didn’t have to make them up. The defendant was
dumb enough to have them. Not just one, not just two, not just three, but four.” RP
(Aug. 30, 2010) at 597.
After closing remarks, the court and parties agreed to a Petrich6 instruction:
The State alleges that the defendant committed an act of violence under
the Uniform Firearms Act First Degree on multiple occasions. To convict the
defendant of violation of the Uniform Firearms Act First Degree, one particular
act of violation of the Uniform Firearms Act First Degree must be proved beyond
The gun in Powell’s lap was the gun identified as exhibit 17.
State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984).
a reasonable doubt, and you must unanimously agree as to which act has been
proved. You need not unanimously agree that the defendant committed all the
acts of violation of the Uniform Firearms Act First Degree.
RP (Aug. 31, 2010) at 604. During deliberations, the jury inquired, “For the weapons
charge, is it sufficient that the defendant had any firearm, or must we agree on a
specific weapon?” After conferring with counsel, the court instructed the jury, “You
must agree that the defendant possessed a firearm at a specific point in time.” RP
(Aug. 31, 2010) at 604-05. The jury convicted Powell of unlawful possession of a
firearm, eluding police, and one count of robbery.
Powell argues that the jury may have convicted him of an uncharged
crime—possession of one of the other three guns. He claims—based on the
prosecutor’s comment in closing argument that he possessed a specific gun (exhibit
17)—that the State elected a specific act constituting the crime and the trial court failed
to clarify the State’s election after the jury’s inquiry. The State responds that (1)
considering the charging document, evidence, and jury instructions, along with the
prosecutor’s closing argument, the State did not elect a specific act constituting the
crime and (2) in the absence of such an election, the trial court properly instructed the
jury on unanimity.
A criminal defendant must be informed of all crimes he must face at trial. State
v. Irizarry, 111 Wn.2d 591, 592, 763 P.2d 432 (1988). Washington law prohibits the
conviction of an accused for an uncharged crime. See Const. art. I, §§ 3, 22; Irizarry,
111 Wn.2d at 592; State v. Pelkey, 109 Wn.2d 484, 487, 745 P.2d 854 (1987); State v.
Severns, 13 Wn.2d 542, 548-49, 125 P.2d 659 (1942); State v. Chino, 117 Wn. App.
531, 540, 72 P.3d 256 (2003); State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332
A criminal defendant has a constitutional right to a unanimous verdict on each
crime charged. State v. Smith, 159 Wn.2d 778, 783, 154 P.3d 873 (2007). When the
State alleges multiple acts, any one of which could constitute the crime charged, the
jury must unanimously agree on which incident constituted the crime. State v. Kitchen,
110 Wn.2d 403, 411, 756 P.2d 105 (1988). In order to ensure jury unanimity, the State
must either elect the act on which it relies for each count or the court must instruct the
jury that all jurors must unanimously agree that at least one particular act constituting
the charged crime has been proved beyond a reasonable doubt. Kitchen, 110 Wn.2d
at 411; see also State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984). The
instruction must be given when the State does not elect a specific criminal act. State v.
Gitchel, 41 Wn. App. 820, 822, 706 P.2d 1091 (1985).
Courts consider several factors when determining whether the State elected a
specific act, including the charging document, evidence, instructions, and closing
argument. State v. Kier, 164 Wn.2d 798, 813-14, 194 P.3d 212 (2008). A prosecutor’s
statement in closing argument is insufficient to make a “clear election” when the
evidence and jury instructions indicate that multiple acts constitute the crime charged.
Kier, 164 Wn.2d at 813 (holding no “clear election” was made in prosecutor’s closing
argument when the evidence suggested multiple acts could have constituted the
charged crime and the jury instructions did not specify the underlying criminal act).
“When the State fails to make a proper election and the trial court fails to instruct
the jury on unanimity, there is constitutional error.” Kitchen, 110 Wn.2d at 411. The
error is harmless only if no rational juror could have a reasonable doubt that each
alleged incident established the crime beyond a reasonable doubt. Kitchen, 110
Wn.2d at 411.
Here, the State charged Powell with one count of first degree unlawful
possession of a firearm under RCW 9.41.040(1).7 The evidence shows that Powell
actually possessed or controlled four firearms on January 8, 2010—the one in his lap
(exhibit 17) and the three in the red bag (exhibits 14 through 16). The amended
information did not specify a particular firearm—it alleged that Powell possessed “a
pistol.”8 “Pistol” is defined as “any firearm with a barrel less than sixteen inches in
length, or is designed to be held and fired by the use of a single hand.” RCW
9.41.010(13); see also WPIC 133.50. The evidence shows the four firearms admitted
at trial (exhibits 14 through 17) satisfied the legal definition of “pistol.”
RCW 9.41.040(1) provides:
“(1)(a) A person, whether an adult or juvenile, 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 or found not guilty by reason of insanity in this state or elsewhere of any
serious offense as defined in this chapter.
“(b) Unlawful possession of a firearm in the first degree is a class B felony
punishable according to chapter 9A.20 RCW.”
“Pistol” is defined as “any firearm with a barrel less than sixteen inches in
length, or is designed to be held and fired by the use of a single hand.” RCW
9.41.010(13); see also WPIC 133.50. The evidence showed that the firearms
introduced at trial satisfied the legal definition of “pistol.”
The court’s instructions to the jury did not specify a particular firearm or act. To
convict Powell, the jury had to find beyond a reasonable doubt that he possessed or
controlled a “firearm.” The court defined first degree unlawful possession of a firearm
as knowingly possessing or controlling “any firearm” when one has previously been
convicted of a serious offense. The court also instructed the jury that possession may
be actual (physical custody of the item) or constructive (no physical custody, but
dominion and control over the item). Under these instructions, the jury could have
convicted Powell based on his actual possession of the firearm in his lap or
constructive possession of the firearms in the red bag.9 While the prosecutor’s closing
remarks limited the unlawful possession charge to “the firearm that the defendant had
in his lap [State’s exhibit 17],” the jury was properly instructed to base its verdict on the
evidence and instructions and not on counsel’s arguments. Considering the charging
document, evidence, and jury instructions, we find the prosecutor made no clear
During deliberations, the court conferred with both counsel and agreed to give a
Petrich instruction. The jury returned to the courtroom and the court read the Petrich
instruction. Later, in response to a jury question, the court reinstructed the jury it must
agree that Powell “possessed a firearm at a specific point in time.” The court repeated
the instruction when it empanelled an alternate juror during deliberations, stating, “[The
jury] needed to agree that there was at least one particular act where the defendant
The evidence indicated that the red bag containing three guns was in the front
seat with Powell.
was in possession of a firearm.” RP (Sept. 1, 2010) at 605. The parties’ agreement on
the Petrich instruction and the court’s repeated instruction show that neither the parties
nor the court believed the prosecutor’s statements during closing argument constituted
an election that the gun in Powell’s lap (exhibit 17) was the only basis for the unlawful
Because the State elected no specific act by Powell constituting the crime of first
degree unlawful possession of a firearm, the court properly instructed the jury on
unanimity. The jury reached a unanimous verdict on Powell’s unlawful possession
charge. No constitutional error occurred.
Because the State made no election and the trial court properly instructed on
jury unanimity, we affirm Powell’s conviction for first degree unlawful possession of a