Mixed up jury instructions lead to reversal in part

[CASE] The defendant was convicted of unlawful possession of a firearm, attempting to elude police vehicle (RCW 46.61.024), and other offenses. The eluding count had a firearm enhancement (RCW 9.94A.533).

Here's the mix-up: Count I of the information charged him with possession of a 9 mm handgun and Count II charged him with possession of a .22 caliber handgun -- but both the defense attorney and the prosecutor reversed them in closing argument. And the jury instructions said that to convict on Count I, the jury must find that he had a .22. Not only that: the prosecutor conceded in closing argument that there was insufficient evidence to convict with respect to the .22 and asked the jury to acquit on that count. The jury convicted on Count I and acquitted on Count II.

What now? The trial court found that the conviction could stand because the mistaken jury instruction was a clerical error (see CrR 7.8). On appeal, Division 2 held that it was not a clerical error but a judicial error, and reversed. State v. Rooth, --- P.3d ---, 2005 WL 2361790 (Wash. App. Sept. 27, 2005)(published in part), Find Result - 2005 WL 2361790.

The court upheld the firearm enhancement to the conviction for eluding a police officer, finding that there was sufficient evidence that the driver had a firearm.

The unpublished portion of the case discusses more evidentiary and procedural issues, including alleged ineffective assistance of counsel (among other things, for chewing tobacco), prosecutorial misconduct, and improper opinion testimony.

Categories: jury-instructions, firearms-enhancement, cases