State Of Washington, Respondent V. Jeffery A. Willis, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
JEFFERY ANTONIO WILLIS,
Appellant.
9?
ro
Trickey, J. — Jeffery Willis appeals his jury convictions for first degree
unlawful possession of a firearm and unlawful display of a firearm. 	He asserts
that the evidence was insufficient to support both convictions; that the trial court
erred when it declined to give 	his proposed jury instruction 	concerning the
element of "possession"; and that the trial court erred when it imposed legal
financial obligations based upon a finding that he had the ability to pay. 	Finding
no error, we affirm.
FACTS
During the late hours of October 21, 2011, Willis was patronizing a bar in
Tacoma, Washington.1 	At around closing time, Willis engaged in a physical
altercation with another bar patron.2 	The manager of the bar, Sesilia Thomas,
and the security guard separated the two men.3 	Willis was escorted outside of
the bar, while the man with whom he was fighting remained inside.4 	Thomas
then asked Willis to leave.5
) 	No. 72030-9-1
) 	DIVISION ONE 	<f/5 *"*••
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ss
) 	UNPUBLISHED OPINION
) 	FILED: 	July 28, 2014
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11 Report of Proceedings (RP) (April 16, 2012) at 20, 24-26.
21 RP at 26-28, 33, 41.
31 RP at 28.
41 RP at 28, 32.
51 RP at 32.

No. 72030-9-1 / 2
Perry Griffin was sitting 	in his vehicle parked 	in a 	nearby parking 	lot,
observing Willis while he exited the bar.6 Thomas witnessed Griffin as he drove
to the bar's parking lot and handed Willis a silver gun.7 	Thomas was standing
approximately 	ten 	feet 	away 	from 	Willis.8 	The 	security 	guard, 	standing
approximately five feet away from Willis, also noticed the gun.9
Willis then fell to the ground, causing the gun to slip out of his hand.10 	He
stood up, retrieved the gun, and proceeded toward the front door of the bar.11
Thomas stepped in front of him and asked him to leave.12 	Willis waved the gun
in the air and attempted to pull the trigger.13 Griffin then ran over to Willis, seized
the gun, and departed in his vehicle.14 	Thomas called 911 and reported Griffin's
license plate number.15
Police officers subsequently arrested Willis after stopping the vehicle in
which he was riding.16 	No firearms were discovered inside the vehicle.17 	Police
officers also soon located Griffin's vehicle.18 While handcuffing Griffin, an officer
observed a silver semiautomatic handgun lying on the pavement outside of the
61 RP at 34, 44.
71 RP at 34-35, 44.
81 RP at 35.
9 2 RP (April 17, 2012) at 16.
101 RP at 35.
11 1 RP at 35-36.
121 RP at 36.
131 RP at 35, 53.
141 RP at 38, 40, 45.
151 RP at 38.
16 2 RP at 18, 29-30, 32.
17 2 RP at 34.
18 2 RP at 50, 52.

No. 72030-9-1 / 3
driver's door.19
The 	State 	charged 	Willis 	by 	amended 	information 	with 	first 	degree
unlawful 	possession of a firearm, 	in 	violation of RCW 9.41.040(1 )(a),20 and
unlawful carrying or handling, in violation of RCW 9.41.270(1) and (2)21.22
Following trial, the jury found Willis guilty as charged.23 	The trial court
imposed concurrent sentences of 102 months.24 	The trial court also imposed
$800 in legal financial obligations.25
Willis appeals.
ANALYSIS
Willis first contends that the trial court erred 	in declining 	to 	give 	his
proposed jury instruction. 	He argues that as a result of this alleged error, he is
entitled to a reversal of his conviction for unlawful possession of a firearm. 	We
disagree.
A defendant is "entitled to have the trial court instruct upon [his or her]
19 2 RP at 53-54. 	The parties stipulated that the handgun was test fired by the police
and found to be operational. 2 RP at 66.
20 RCW 9.41.040(1)(a) provides:
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.
21 RCW 9.41.270(1) provides, in relevant part:
It shall be unlawful for any person to carry, exhibit, display, or draw any
firearm, ... in a manner, under circumstances, and at a time and place
that either manifests an intent to intimidate another or that warrants alarm
for the safety of other persons.
RCW 9.41.270(2) provides that violation of RCW 9.41.270(1) is a gross misdemeanor.
22 Clerk's Papers (CP) at 4-5.
23 CP at 13-14.
24 CP at 43.
25 CP at 41.

No. 72030-9-1/4
theory of the case if there is evidence to support the theory." 	State v. Hughes,
106 Wn.2d 176, 191, 721 P.2d 902 (1986) (citing State v. Theroff, 95 Wn.2d 385,
389, 622 P.2d 1240 (1980); State v. Dana. 73 Wn.2d 533, 536, 439 P.2d 403
(1968)). 	But a defendant is not entitled to a jury instruction that misstates the law
or is not supported by evidence. 	State v. Stalev, 123 Wn.2d 794, 803, 872 P.2d
502 	(1994) 	(citing State v. Hoffman, 116 Wn.2d 	51, 	110-11, 	804 	P.2d 	577
(1991)).
To convict Willis of unlawful possession of a firearm as charged, the State
was required to prove that Willis knowingly owned a firearm or had one in his
possession or control, and that he had been previously convicted of a serious
offense.26 	See RCW 9.41.040(1 )(a).
"Possession of property may be either actual or constructive." 	State v.
Callahan, 	77 	Wn.2d 	27, 	29, 	459 	P.2d 	400 	(1969). 	A person 	has 	actual
possession when he or she has personal custody of the property. 	Callahan, 77
Wn.2d 	at 29. 	A person has constructive possession when he or she 	has
dominion 	and 	control 	over 	the 	property. 	Callahan, 	77 	Wn.2d 	at 	29.
"[Pjossession entails actual 	control, 	not a 	passing 	control 	which 	is only 	a
momentary handling." 	Callahan, 77 Wn.2d at 29. 	"[W]e focus not on the length
of the possession but on the quality and nature of that possession." 	State v.
Summers, 107 Wn. App. 373, 386, 28 P.3d 780 (2001) (citing Stalev. 123 Wn.2d
at 801). 	"The length of time is but a factor in determining whether it was actual or
passing possession." 	Summers, 107 Wn. App. at 386 (citing Stalev, 123 Wn.2d
26 CP at 23, 27.

No. 72030-9-1 / 5
at 	801). 	Thus, 	even 	a 	momentary 	handling 	can 	be 	sufficient to 	establish
possession if there are "other sufficient indicia of control." 	Summers, 107 Wn.
App. at 386 (citing Stalev. 123 Wn.2d at 802).
Here, 	Willis proposed 	the 	following jury 	instruction 	on 	the 	theory 	of
passing control:
Possession is not established if, at most, there is passing
control. 	Passing control is momentarily handling.
It 	is 	not 	enough 	that 	the 	defendant 	. 	. 	. 	might have
momentarily 	handled 	[the 	firearm] 	with 	a 	brief 	and 	passing
control.1271
As 	the 	State 	correctly 	points 	out, 	this 	instruction 	is 	an 	inaccurate
statement of the law. 	It does not convey to the jury that momentary control can
amount to actual possession when other indicia of control are present. 	See
Summers. 107 Wn. App. at 387. 	Under this proposed instruction, a jury would
have been required to find Willis not guilty of unlawful possession if it found that
he had momentary control of the firearm, even if the totality of the circumstances
showed that he had control of the firearm. 	This is not the law. 	Additionally
problematic is the proposed instruction's unclear and misleading language. 	The
inclusion of the phrase "might have" skews the focus of the inquiry, improperly
suggesting to the jury that the question is whether there was a likelihood of
momentarily handling. 	We hold that the trial court did not abuse its discretion
when it declined to give Willis's proposed instruction.28
Nevertheless, Willis argues that the State presented insufficient evidence
27 CP at 8 (emphasis added).
28 See CP at 15-33; 3 RP (April 18, 2012) at 82-83.

No. 72030-9-1 / 6
to support his convictions. He contends that the State failed to prove that he had
actual or constructive possession of the firearm.29 	He further claims that the
evidence was insufficient to convict him of unlawful possession of a firearm and
unlawful display of a firearm because, he claims, no gun was found on him when
he was arrested. We disagree.
As set forth above, to convict Willis of unlawful possession of a firearm,
the State was required 	to prove, 	among 	other elements, that Willis was in
possession of a firearm. 	To convict Willis of unlawful display of a firearm, the
State needed to establish that he carried, exhibited, displayed, or drew a firearm,
in a manner, under circumstances, and at a time and place that manifested an
intent to 	intimidate 	another or that warranted 	alarm 	for the 	safety of other
persons.30 See RCW 9.41.270(1).
The State must prove every element of the crime charged 	beyond 	a
reasonable doubt. 	State v. Williams. 136 Wn. App. 486, 492-93, 150 P.3d 111
(2007). 	When reviewing a claim for sufficiency of the evidence, we view the
evidence in the light most favorable 	to the State to determine whether any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. State v. Williams. 144 Wn.2d 197, 212, 26 P.3d 890 (2001).
"A 	claim 	of insufficiency 	admits 	the truth 	of the State's evidence 	and 	all
inferences that reasonably can be drawn 	therefrom." 	State v. 	Salinas. 	119
Wn.2d 192, 201, 829 P.2d 1068 (1992). 	"Deference must be given to the trier of
29 Willis raises this argument in a Statement of Additional Grounds.
30 CP at 28.

No. 72030-9-1 / 7
fact who resolves conflicting testimony and evaluates the credibility of witnesses
and persuasiveness of material evidence." State v. Carver. 113 Wn.2d 591, 604,
781 P.2d 1308(1989).
Here, the evidence was sufficient for a reasonable fact finder to find that
Willis had actual possession of a firearm. 	At trial, 	the State 	presented the
testimony of the 	bar manager and the security guard, both of whom 	were
eyewitnesses to the events that had transpired that night. 	They testified that
Willis received, carried, brandished, and pointed a silver gun in the air.31 	They
estimated that they were approximately five to ten feet away from Willis.32 	The
State also displayed photographs and video footage of the incident, captured by
surveillance cameras.33 	Testimony presented at trial showed that the gun the
police 	recovered 	from 	Griffin 	matched 	the 	description 	provided 	by 	the
witnesses.34 	From this evidence, a rational trier of fact could infer that Willis had
actual possession of the gun and that the object he possessed was a firearm.
Accordingly, the State presented sufficient evidence to support both of Willis's
convictions.
Willis next contends that the trial court erred when it admitted evidence of
his prior convictions. 	We disagree.
At trial, Willis testified that on October 21, he had drunk four or five double
31 1 RP at 35, 45-46; 2 RP at 15-17.
321 RPat35;2RPat16.
331 RP at 29; 2 RP at 9.
34 2 RP at 56.

No. 72030-9-1 / 8
shots of liquor and became intoxicated.35 	He also testified that he was not a
"typical 	drinker."36 	When asked 	on direct examination 	how often he drank
alcohol, Willis responded 	that he had not had a drink "since [he] got a DUI
[(driving while under the influence)] years ago."37 	He then stated that he had
imbibed alcohol a few months before the incident and that he drank "every few
months."38 With regard to the firearm, Willis testified that because of his previous
conviction of a serious offense, which prohibited him from possessing a firearm,
he would not possess or own a firearm in light of his concerns for the law and his
children.39 	Willis 	admitted 	that 	he 	had 	"some 	prior 	recent 	convictions 	for
dishonesty."40
After direct examination, the State moved to question Willis's credibility
based on his prior convictions and his testimony on direct examination.41 	The
trial court considered Willis's testimony before granting the State's request.42
Prior to cross-examination of Willis, the trial court instructed the jury that it could
consider the evidence of Willis's 	prior 	convictions for the sole purpose of
assessing his credibility.43 	The following exchange then took place during the
State's cross-examination of Willis:
Q. 	Mr. Willis, on direct examination, you indicated that you don't
35 3 RP at 10-12.
36 3 RP at 11.
37 3 RP at 11.
38 3 RP at 12.
39 3 RP at 17-18.
40 3 RP at 18.
41 3 RP at 24-25.
42 3 RP at 28-30, 32-33, 39.
43 3 RP at 40.

No. 72030-9-1 / 9
drink a lot. 	That's not true, is it, Mr. Willis?
A. 	Yes, sir.
Q. 	In fact, you were convicted of DUI in 1999, correct?
A. 	Yes, sir.
Q. 	And you were convicted of DUI 	again 	in 2004, 	isn't that
right?
A. 	Yes, sir.
Q. 	And, again, you were convicted of DUI in 2006, right?
A. 	Yes, sir.
Q. 	And, 	again, 	on 	direct 	examination, 	you testified 	that you
were 	convicted 	of a 	serious offense, 	and, 	therefore, 	you
would not possess a firearm. 	That's not true, is it, Mr. Willis?
A. 	Yes, sir.
Q. 	In fact, your serious offense conviction was from December
20th of 1996, correct?
A. 	Yes, sir.
Q. 	As part of that, you also plead to Unlawful Possession of a
Firearm, correct?
A. 	Yes, sir.
Q. 	And, again, you were convicted of Unlawful Possession of a
Firearm on December 8th of 2000, correct?
A. 	Yes, sir.
Q. 	And, again, convicted of Unlawful Possession of a Firearm
on January 9th, 2004, correct?
A. 	Yes, sir.I441
Willis asserts that the 	admission 	of evidence of 	his 	prior convictions
violated ER 404(b). 	But the State did not seek admission of the evidence based
on this evidentiary rule.45 	Rather, the State correctly argued, as 	it does on
appeal, that Willis opened the door to questioning about his prior convictions
when he testified to his drinking habits and past experience with drinking, and
when defense counsel asked him about whether he would possess a firearm in
light of his previous conviction of a serious offense.46
"A party's introduction of evidence that would be admissible if offered by
44 3 RP at 40-41.
45 3 RP at 25-27.
46 3 RP at 23-24.

No. 72030-9-1/10
the 	opposing 	party 	'opens 	the 	door' 	to 	explanation 	or 	contradiction 	of that
evidence." 	State v. Ortega. 134 Wn. App. 617, 626, 142 P.3d 175 (2006) (citing
State v. Avendano-Lopez. 79 Wn. App. 706, 714, 904 P.2d 324 (1995)). 	When a
witness "opens the door," the trial court has the discretion to admit otherwise
inadmissible evidence. 	See State v. Berg. 147 Wn. App. 923, 939, 198 P.3d 529
(2008); State v. Brush. 32 Wn. App. 450, 451, 648 P.2d 897 (1982). 	The "open
door" doctrine promotes fairness by preventing one party from raising a subject
to gain an 	advantage and 	then 	barring the 	other party from further inquiry.
Avendano-Lopez. 79 Wn. App. at 714 (quoting State v. Gefeller. 76 Wn.2d 449,
455, 458 	P.2d 	17 (1969)). 	We review for abuse of discretion 	a trial court's
decision to allow cross-examination under the open-door rule. 	Ortega. 134 Wn.
App. at 626 (citing State v. Wilson. 20 Wn. App. 592, 594, 581 P.2d 592 (1978).
Here, Willis's testimony on direct examination created the impression that
he was not a frequent drinker, that he was heavily intoxicated on the night in
question, and that drinking was out of his character. 	His testimony similarly
implied that possessing a gun was out of his character. Therefore, Willis opened
the door to the State's questions regarding his prior convictions. 	Furthermore,
the jury is presumed to have followed the trial court's instructions to consider the
evidence of Willis's prior convictions solely for the purpose of assessing his
credibility. 	See State v. Kirkman. 159 Wn.2d 918, 928, 155 P.3d 125 (2007).
The trial court did not abuse its discretion by allowing the State to introduce
evidence of Willis's prior convictions.
Willis contends, finally, 	that the trial court impermissibly imposed legal
10

No. 72030-9-1 /11
financial 	obligations 	based 	on 	a 	finding 	of his 	ability 	to 	pay 	that 	was 	not
supported by the record. 	Again, we disagree.
Following his sentencing hearing, the trial court entered a finding that after
considering his past, present, and future ability to pay legal financial obligations,
Willis "has the ability or likely future ability to pay the legal financial obligations
imposed herein."47 	Willis now challenges the trial court's imposition of a $200
criminal filing fee.48 	But he did not object to the imposition of this obligation at his
sentencing hearing.49 Therefore, Willis has waived his ability to challenge the fee
obligation on appeal. 	RAP 2.5(a); State v. Blazina. 174 Wn. App. 906, 911, 301
P.3d 492 (2013), review granted, 178 Wn.2d 1010, 311 P.3d 27 (2013).
Moreover, a criminal filing fee is required by RCW 36.18.020(h) and, thus,
is a mandatory legal financial obligation. 	The courts are not required to consider
a defendant's ability to pay when imposing mandatory fees. 	State v. Lundv. 176
Wn. App. 96, 102, 308 P.3d 755 (2013). 	Accordingly, "the trial court's 'finding' of
a defendant's current or likely future ability to pay them is surplusage." 	Lundy,
176 Wn. App. at 103.
Affirmed.
WE CONCUR:
'41.
48 CP at 41.
49 See 5 RP (May 4, 2012) at 13-14.
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11