STATE v. JONES

SWEENEY, A.C.J.

The defendant here pleaded guilty to unlawful possession of a firearm in the second degree and fourth degree assault. He makes a number of assignments of error on appeal. These include a challenge to the sufficiency of the factual showing to support his plea to unlawful possession of a firearm in the second degree. We agree that the factual statement (his brief written statement on plea of guilty) is insufficient to support his conviction on that charge and, accordingly, we reverse. We affirm the conviction for fourth degree assault.

Mary Freeman told police that her boyfriend, Terrell Jones, slapped her and threatened her with a gun. The State charged Mr. Jones with one count of second degree assault with a firearm enhancement, one count of unlawful possession of a firearm in the second degree, and one count of assault in the fourth degree. The State amended the information to increase the charge for unlawful possession of a firearm from second degree to first degree.

Later the State offered to amend the information to dismiss the charge of second degree assault and to reduce the charge of unlawful possession of a firearm from first degree to second degree. Mr. Jones accepted. And he pleaded guilty to both count 1, for unlawful possession of a firearm in the second degree, and count 2, for assault in the fourth degree. The only factual basis for his plea is set out in his written statement on plea of guilty:

I handled a pistol which I found @ Mary Freeman's in order to put it out of reach of her children on or about January 12, 2003 in the State of Washington, having been previously convicted of 1st Degree Robbery.

On or about January 16, 2003, I struck Mary Freeman with my open hand in the State of Washington.

Clerk's Papers (CP) at 19.

But before sentencing, Mr. Jones moved to withdraw his guilty plea based on new evidence — witness recantation. He also moved to dismiss the charge of possession of a firearm because the information did not allege the essential element of `knowledge.'

The procedural posture of this case is important. This is a direct appeal of his plea and the court's entry of a judgment of guilty. It is not an appeal from a postconviction motion to withdraw his guilty plea. We review the circumstances under which a guilty plea was made de novo. Young v. Konz, 91 Wn.2d 532, 536, 588 P.2d 1360 (1979). And we will review it even though the objection is made for the first time on appeal. RAP 2.5(a)(3); State v. Walsh, 143 Wn.2d 1, 6, 17 P.3d 591 (2001).

Due process requires a guilty plea to be knowing, intelligent, and voluntary. State v. Osborne, 102 Wn.2d 87, 92-93, 684 P.2d 683 (1984). And to be voluntary there must be an adequate factual basis for the plea. CrR 4.2; State v. Saas, 118 Wn.2d 37, 43, 820 P.2d 505 (1991); In re Pers. Restraint of Hews, 108 Wn.2d 579, 592, 741 P.2d 983 (1987). The factual basis may be established from any reliable source of information as long as the information is made part of the record during the plea hearing. Osborne, 102 Wn.2d at 95; Saas, 118 Wn.2d at 43. The standard is whether a jury could conclude that the defendant is guilty based upon the evidence presented. Saas, 118 Wn.2d at 43.

Here, the factual showing had to include facts supporting both possession of the firearm and knowledge that he possessed the firearm. Former RCW 9.41.040(1)(a) (1997); State v. Anderson, 141 Wn.2d 357, 5 P.3d 1247 (2000). We turn first to the element of possession since that is dispositive.

Possession requires either actual possession or constructive possession. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994); State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). "Actual possession means that the goods are in the personal custody of the person charged with possession; whereas constructive possession means that the goods are not in actual, physical possession, but that the person charged with possession has dominion and control over the goods." Staley, 123 Wn.2d at 798 (quoting Callahan, 77 Wn.2d at 29). But the State must show more than a `passing control' or `momentary handling.' Staley, 123 Wn.2d at 801-02; Callahan, 77 Wn.2d at 29. For example, in Callahan, the only evidence of possession (there drugs) was the fact that the defendant told an officer at the time of his arrest that he had at one point handled the drugs. Callahan, 77 Wn.2d at 29. The court held this was insufficient to prove possession `since possession entails actual control, not a passing control which is only a momentary handling.' Id.

Here, Mr. Jones admitted handling the item in question, but for only a moment and for a very specific purpose. He held the gun only long enough to move it out of the children's reach. These facts do not satisfy the possession element of unlawful possession of a firearm.

Mr. Jones also challenges the adequacy of the factual showing on his plea of guilty to fourth degree assault. Again, the only factual showing is set out in his statement on plea of guilty: `On or about January 16, 2003, I struck Mary Freeman with my open hand.' CP at 19. The word `struck' describes an intentional act. Osborne, 102 Wn.2d at 94. And we accept the common meaning of the word. His statement is then sufficient to support the intent element of assault.

Mr. Jones makes several collateral attacks on his conviction. But they are based on matters outside of the record. And we therefore cannot consider them in this direct appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). They are properly raised by way of a personal restraint petition. Id.

We affirm Mr. Jones' conviction for fourth degree assault, but reverse his conviction for second degree unlawful possession of a firearm.

A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.

KURTZ, J. and BROWN, J., Concur.