(dissenting) — The majority concedes the trial court failed to find Banks knew he possessed a firearm. Majority at 43. However, it excuses this omission as harmless, inferring knowledge from the record. Id. at 46. Banks does not contend he “was denied a trial in which he could argue a theory of the case based upon the correct elements of the charge.” Id. at 44. A defendant never bears the burden to disprove elements of a crime. State v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002). Rather, Banks maintains his conviction violated due process because the state failed to “prove every element of the crime charged beyond a reasonable doubt.” Id.
When a fact finder omits a factual finding which would establish an essential element of the crime the error is presumed prejudicial unless “that element is supported by uncontroverted evidence.” Brown, 147 Wn.2d at 341. But here it is not. Banks specifically denied knowledge of the gun. Report of Proceedings (RP) at 127. This denial is not inconsistent with the evidence of record. In fact, there was no evidence Banks actually owned the gun or the jacket or the car in which the jacket was found.2 Id. at 35, 72, 84. The State did not find Banks’s fingerprints on the gun. Id. at 35, 84. Nor did it take the jacket into evidence. Id. at 72. No one saw him handle the gun.
The evidence connecting Banks to the gun was strictly circumstantial.3 A security guard who observed Banks the night of the incident from 30 feet away saw him drop an *48object that resembled a small gun, but did not see him retrieve the object. RP at 116. Two of the police officers who arrested Banks saw him toss the jacket in which the gun was found away from him before he stepped out of the car. RP at 14, 64.
This evidence does not prove knowing possession beyond a reasonable doubt. Banks may have dropped something other than a gun, e.g., a cell phone or a pager. He may have pushed the jacket aside because it did not belong to him and he did not want to run the risk for any unknown contraband it might contain. Because the evidence is anything but conclusive on the omitted element of knowledge, reversal is required.
I therefore dissent.
Chambers, J., concurs with Sanders, J.
The car was a rental, rented by someone other than Banks. Report of Proceedings at 128.
It is important to note Banks does not raise the sufficiency of the evidence. If this were a sufficiency claim he would have to admit “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).