State Of Washington, Respondent V Jesse L Spencer, Appellant

FILEDcoura OF '
iVISO S
II
2714 Ji.IN 24 AH 9: 06
IN THE COURT OF APPEALS OF THE STATE OF WASHINGT
DIVISION II
STATE OF WASHINGTON, No. 44439 -9 -II
Respondent,
v.
JESSE L. SPENCER,
Appellant.
UNPUBLISHED OPINION
MAXA, J. — Jesse Spencer appeals from the judgment and sentence imposed following his
conviction for unlawful possession of a machine gun.' He argues that: ( 1) he received
ineffective assistance of counsel when his counsel requested and received a jury instruction on
unwitting possession, ( 2) the trial court erred in instructing the jury on unanimity, and ( 3) the
trial court erred in finding that he had the ability to pay legal financial obligations.
The State concedes that Spencer received ineffective assistance of counsel because the
unwitting possession instruction shifted the burden of proof to Spencer. State v. Carter, 127 Wn.
App. 713, 717 -18, 112 P. 3d 561 ( 2005). We accept the State' s concession, reverse Spencer' s
conviction for unlawful possession of a machine gun, and remand to the trial court for further
proceedings. Because we reverse on the first issue, we need not address Spencer' s second and
third issues.
1 Spencer does not appeal from his conviction for bail jumping.
1

A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
UNT,
N, A.G.J.
2