A person posting a video of illegal activity on social media may find themselves facing Washington criminal charges. In a recent case, a man challenged a firearm possession charge arising from a video he had posted on Snapchat.
According to the unpublished opinion by the appeals court, the defendant posted a 20-second video of himself on Snapchat. The video, as described by the court, depicted the defendant smoking marijuana and listening to music. At one point in the video, the defendant pointed a handgun at the camera and simulated firing it.
The defendant was in a relationship with a woman with two children. The children’s father saw the video and called the police due to concerns for the safety of his children.
During the investigation, the police learned the defendant was prohibited from possessing a firearm due to a previous conviction. The defendant was charged with unlawful possession of a firearm in the first degree.
A sheriff’s deputed testified that officers watched the video and determined the gun was real. They got an arrest warrant for the defendant and a search warrant or his girlfriend’s home where they thought he lived. Only the defendant and his girlfriend were present at the home when the officers arrived. Officers found a wallet containing the defendant’s driver’s license on a night stand. They also found the loaded gun on a closet shelf. The deputy tested it and determined it was fully functional.
The defendant stipulated the prior conviction and firearm prohibition. The jury found him guilty of the charges. He appealed.
The defendant argued there was not sufficient evidence supporting the conviction and that the state failed to show actual or constructive possession.
For a conviction of unlawful possession of a firearm in the first degree, the state must prove the defendant possessed or had control over a firearm after he was previously convicted of a serious offense. The defendant did not dispute the previous conviction of a serious crime, so the issue before the appeals court was possession.
A possession conviction may be based on either actual or constructive possession of the firearm. A person has actual possession of a thing if they have physical custody of it. A person has constructive possession when they have dominion and control over it, as determined based on the totality of the circumstances.
The defendant argued he had only fleeting possession of the gun and did not have actual possession under the statute. The court did not address whether fleeting possession is a defense to the possession charge, although it noted the Washington Supreme Court has never adopted that defense. Instead, the court concluded that the defendant did not have mere fleeting possession of the gun. The appeals court noted the defendant had recorded the video of himself holding the gun, pointing it toward the camera, and pretending to fire it. He lined up the simulated firing with sounds of gunfire in the music. He kept recording and the video showed the gun sitting by him on the armrest of the sofa. The appeals court found the defendant had “deliberate, physical control of the gun” that was sufficient to prove actual possession. The appeals court affirmed the conviction.
This case serves as a reminder that posting videos depicting illegal activity can be extremely risky. In this case, the father of the girlfriend’s children was concerned about his children and turned the defendant in. Based on the video, the officers were able to get both an arrest warrant and a search warrant.
If you have been charged based on a video posted online, you need a skilled Washington criminal defense attorney on your side. Schedule a consultation with Blair & Kim, PLLC, by calling (206) 622-6562.