¶21 (dissenting) — I agree the evidence is sufficient and no due process violation has occurred. I depart from the majority in its conclusion that Robert Carter received ineffective assistance of counsel.
Brown, J.¶22 In State v. Anderson, 141 Wn.2d 357, 5 P.3d 1247 (2000), our Supreme Court was concerned with whether a firearm possession charge should be treated as a strict liability offense. There, the State did not include an elements instruction including the element of knowledge. Here, the State did submit a proper elements instruction including knowledge. Thus, the State retained the overall burden of proving beyond a reasonable doubt that Mr. Carter knew he possessed the firearm found clipped inside his pants.
¶23 The ineffective assistance standard of review requires both deficient performance and resulting prejudice. Because knowledge was included in the “to convict” instruction as a separate element for the State to prove beyond a reasonable doubt, Mr. Carter cannot show any prejudice or improper burden shifting. Thus, it is unnecessary to dwell upon the alleged deficient performance. In any event, Mr. *722Carter is responsible for raising the unwitting possession defense and his proposed instruction was consistent with this responsibility and the manner he tried and argued his case.
¶24 Given my analysis, I would affirm. Accordingly, I respectfully dissent.