(dissenting) — The majority recognizes the high standard before possession of certain firearms may be held criminal: “the legislature intended that the State prove that a person knew, or should have known, the characteristics that make a firearm illegal to be convicted under RCW 9.41.190.” Majority at 915-16. While the majority aptly states the law, it immediately misapplies it. I must disagree with the conclusion that an admittedly “potentially ambiguous” and “deficient” to convict jury instruction, which here implicates constitutionally protected rights, amounts to harmless error. See majority at 917. Thus, I dissent.
¶38 These holdings involve a particularly sensitive and limited area of regulation, since both the United States and Washington State Constitutions protect a “right... to bear arms . . . .” U.S. Const, amend. II; Wash. Const, art. I, § 24. Thus, strict analysis is required in this case by our precedent and by our obligation to adhere to the analysis of a similar case by the United States Supreme Court in Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994).
¶39 The majority’s recognition that the State must prove a defendant knows the characteristics that make a firearm illegal means that knowledge of the characteristics that *920make the firearm illegal is an essential element of the crime. “An ‘essential element is one whose specification is necessary to establish the very illegality of the behavior.’ ” State v. Tinker, 155 Wn.2d 219, 221, 118 P.3d 885 (2005) (quoting State v. Johnson, 119 Wn.2d 143, 147, 829 P.2d 1078 (1992)).
¶40 “The State must prove every essential element of a crime beyond a reasonable doubt for a conviction to be upheld.” State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995). Thus, a “to convict” instruction must set forth all of the elements of the crime because the instruction serves as a yardstick by which the jury measures the evidence to determine guilt. State v. Smith, 131 Wn.2d 258, 262-63, 930 P.2d 917 (1997).
¶41 It is constitutionally required that the jury be instructed on all essential elements of the crime. State v. Linehan, 147 Wn.2d 638, 653, 56 P.3d 542 (2002). A jury instruction that relieves the State of its burden to prove all of the elements of the crime is reversible error. Id. at 653-54. A constitutional error is harmless only if we are convinced beyond a reasonable doubt that any reasonable jury would reach the same result absent the error. Id.
¶42 Here, the to convict instruction did not contain all the essential elements of the crime because it did not instruct the jury that it had to find Mr. Williams knew the characteristics of the shotgun that made it illegal. Without such an instruction, the jury did not find that element beyond a reasonable' doubt.
¶43 There are two reasons why the court’s failure to instruct the jury regarding an essential element of the crime cannot be harmless error as the majority claims. First, the jury was not aware that such knowledge was an element of the crime and thus did not have the opportunity to determine whether the element was proved. Second, and worse, the State specifically told the jury that it was not an element of the crime. Report of Proceedings (RP) at 138, 146.
*921¶44 The trial court did not instruct the jury that knowledge was an essential element: that it must be proved beyond a reasonable doubt in order to convict. Therefore, the jury was not instructed to discuss and find all the essential elements of the crime.
¶45 The court did instruct the jury that “[a] person knows or acts knowingly or with knowledge when he or she is aware of a fact, circumstance or result which is described by law as being a crime, whether or not the person is aware that the fact[,] circumstance or result is a crime.” Clerk’s Papers (CP) at 54 (Instruction 9). However, “ ‘[a] jury is not required to search other instructions to see if another element should have been included in the instruction defining the crime.’ ” Smith, 131 Wn.2d at 264 (alteration in original) (quoting State v. Aumick, 126 Wn.2d 422, 431, 894 P.2d 1325 (1995)).
¶46 Moreover, the to convict jury instruction merely instructed the jury that to convict, it needed to find “[t]hat on or about April 23 [,] 2003 the defendant did knowingly have in his possession or under his control a short-barreled shotgun.” CP at 56 (Instruction 11). The word “knowingly” in this instruction applies to the words “having in his possession or under his control.” The instruction does not direct the jury to find that defendant must know the characteristics of the firearm that make it illegal.
¶47 Even coupled with instruction 9, the to convict instruction (instruction 11) is insufficient because instruction 9 merely instructs the jury on the meaning of knowledge that it is to apply in determining whether defendant knowingly “possessed or controlled” the firearm.
¶48 An appropriate and simple to convict instruction that instructed the jury to find all the essential elements of the crime should have read something like this, “that on or about April 23, 2003, the defendant did knowingly have in his possession a short-barreled shotgun and the defendant knew the characteristics that make the firearm illegal.” The court did not instruct the jury to make this two-part finding.
*922¶49 Despite the court’s failure to instruct the jury on the essential elements of the crime, the majority finds harmless error because the majority concludes the jury was not misled “as to the State’s burden in this case.” Majority at 917. However, the State itself misled the jury as to the burden. Therefore, such error cannot be harmless as the jury was surely confused as to the essential elements of the crime and who had the burden to prove each.
¶50 In closing argument, the State argued that “knowingly does not mean that Mr. Williams had to know that that particular item was a short-barrelled shotgun.” RP at 138 (emphasis added). In response, defense counsel attempted to argue that instruction 9 required knowledge of the fact that the gun was a short-barreled shotgun. RP at 143.
¶51 In rebuttal, the State again stated that “he doesn’t have to know that it’s a short-barrelled shotgun.” RP at 146 (emphasis added). The State’s argument to the jury is incorrect even given today’s majority holding. Knowledge of the characteristics of the firearm is an essential element of the crime, but the State specifically told the jury that it was not an element of the crime.
¶52 At best, the State and defense arguments left the jury confused and unable to determine what the essential elements of the crime were. “It cannot be said that a defendant has had a fair trial if the jury must guess at the meaning of an essential element of a crime or if the jury might assume that an essential element need not be proved.” Smith, 131 Wn.2d at 263. Failing to properly instruct the jury regarding the essential elements of the crime is not harmless error here. I dissent.
C. Johnson, Sanders, and Chambers, JJ., concur with J.M. Johnson, J.