State Of Washington, V. L.g.-b.

• Court: Court of Appeals of Washington
• Decided: February 19, 2025
• Docket: 58285-6
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

February 19, 2025

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 58285-6-II

Respondent,

v.

L.G.-B., UNPUBLISHED OPINION

Appellant.

GLASGOW, J.—Two of LG-B’s friends robbed a woman at gunpoint with a gun that had

been stolen three years earlier. After the robbery, the friends met LG-B and he drove their car.

Officers tried to pull the car over, but LG-B led the officers on a long high-speed chase before they

disabled the car. During the chase, the friends threw the gun and property stolen in the robbery out

the passenger side window.

All three defendants were 16 or 17 years old. The State charged LG-B with first degree

robbery, first degree theft, possession of a stolen firearm, and attempting to elude police. LG-B’s

friends each pleaded guilty to robbery charges.

At a bench trial, LG-B’s friends each testified that they committed the robbery together

and did not pick LG-B up until afterwards. The friends testified that LG-B did not know about the

robbery or the gun involved. The gun’s owner testified that it was stolen three years before the

robbery, but he did not know who stole it. The friends both invoked their Fifth Amendment right

to remain silent when asked where they acquired the gun. And LG-B denied knowing that the gun No. 58285-6-II

was in the car or that it was stolen. He conceded that he committed attempt to elude police. The

trial court acquitted LG-B of the first degree robbery and first degree theft charges, but adjudicated

him guilty of possessing a stolen firearm and attempting to elude police.

LG-B appeals his adjudication of guilt for possession of a stolen firearm, arguing there was

insufficient evidence that he actually possessed the gun or that he knew the gun was stolen.

We conclude there was sufficient evidence for the trial court to infer that LG-B possessed

the gun because it was in the car he drove, but there was no evidence that LG-B knew the gun was

stolen, a necessary element of possession of a stolen firearm. We remand for the trial court to

vacate and dismiss with prejudice LG-B’s adjudication of guilt for possession of a stolen firearm.

FACTS

I. BACKGROUND

Early one morning in September 2022, Brianna Portillo was standing outside her apartment

waiting for a coworker to pick her up for work when a white Pontiac pulled up nearby and two

people got out. The passenger, later identified as KC, was wearing a red sweatshirt. The driver,

who wore all black, pointed a gun at Portillo. The robbers directed her to give them various items,

including her backpack and headphones, which she did. Then they got back into the car and left.

Portillo went back inside to wake her girlfriend, and the pair began driving around the

neighborhood looking for the robbers. As they passed a gas station, Portillo saw the Pontiac being

fueled at the gas station and recognized KC as one of the robbers. Portillo’s girlfriend called 911.

Police attempted to pull over the Pontiac as it left the gas station. The car initially pulled

over and stopped, then it took off before officers could approach. As police followed, the car led

police on an extended high-speed chase exceeding 100 miles per hour, and police eventually

2 No. 58285-6-II

pinned the car against a guardrail. LG-B was driving, XV was in the front passenger seat, and KC

was in the back seat. All three were arrested.

The State charged LG-B with first degree robbery with a deadly weapon, first degree theft,

possession of a stolen firearm, and attempting to elude a pursuing police vehicle. He was 16 years

old at the time. XV, who was also 16, pleaded guilty to second degree robbery while armed with

a firearm. And KC, who was 17, pleaded guilty to first degree robbery.

II. TRIAL

A. Evidence at Trial

At a bench trial, the owner of the gun used in the robbery testified that the gun was stolen

in December 2019, almost three years before the robbery. He did not know any of the people

arrested in this case.

LG-B was about six feet tall and 160 pounds when police arrested him. XV, who wielded

the gun during the robbery and who was in the passenger seat when the juveniles were arrested,

was about five feet, eight inches tall and weighed 220 pounds. Both were Latino and wearing

mostly black clothing when arrested, although LG-B’s shirt had a large white rabbit on the front

and his jeans had significant holes. At trial, Portillo identified LG-B as the person holding the gun

during the robbery. But she was impeached with her statement to police, provided about 30 minutes

after the robbery, describing the person with the gun as a “little thick and chunky and about five

foot eight.” Verbatim Rep. of Proc. (VRP) at 99-100. And even at trial she recalled the person with

the gun was wearing all black, she did not mention a white logo on his shirt, and she did not recall

there being obvious holes in his pants.

3 No. 58285-6-II

XV and KC each testified that they were driving around together and decided to rob

someone. XV was driving. KC was on a type of benzodiazepine and XV had been drinking heavily.

Both testified that XV carried the gun during the robbery. When asked where the gun came from,

both invoked the Fifth Amendment.

XV and KC each testified that after the robbery, they picked up LG-B and made their way

to the gas station. All three testified that because XV had been drinking, LG-B drove. Both XV

and KC denied saying anything about the robbery to LG-B or showing him the gun. XV

specifically testified that the gun was hidden when LG-B got in the car. And LG-B denied seeing

any gun in the car or knowing anything about the gun, including that it was stolen.

At the gas station, LG-B fueled the car with money that XV gave him. The State presented

surveillance footage of this activity.

XV and KC also testified that when police tried to pull the car over, they yelled at LG-B to

drive away. LG-B testified that he initially pulled over, then he saw that the officers were

approaching the car with guns while his friends were yelling at him to drive. Because his friends

were yelling, and “considering [his] skin color,” he drove away. VRP at 398. XV and KC testified

they were the ones who threw the stolen items from the car. Officers testified that the gun was

thrown from the passenger side of the car.

In his testimony and closing argument, LG-B conceded that he committed attempt to elude

police. But he denied any involvement in the robbery and any knowledge that the gun was in the

car or that it was stolen.

4 No. 58285-6-II

B. Verdict and Sentencing

The trial court entered written findings of fact and conclusions of law. Based on the

conflicting evidence about whether XV or LG-B participated in the robbery, the trial court found

LG-B not guilty of first degree robbery and first degree theft. The trial court found LG-B guilty of

attempting to elude a pursuing police vehicle.

The trial court also found that LG-B possessed a stolen firearm. Specifically, the trial court

found, “On September 4, 2022, Respondent and/or an accomplice did knowingly possess, carry,

or have in his control a firearm he knew was stolen to wit: a Smith & Wesson SD 40.” Clerk’s

Papers (CP) at 23 (Finding of Fact (FF) 1) (emphasis added). Other findings recited the relevant

evidence. First, the trial court found that LG-B “drove a motor vehicle with two other individuals

who had moments before used the firearm in a strong-arm robbery” and that under the

circumstances, “it is reasonable that Respondent knew of the existence of the firearm in the vehicle

or on the persons of [XV] and/or [KC].” CP at 23 (FF 2, 3). “Within minutes of the strong-arm

robbery, video taken at [the gas station] shows Respondent excessively touching and moving his

hands at the waistband of his pants in an unusual manner. He also was seen bending over, reaching

into the front of his pants.” Id. (FF 4). The trial court continued: “These actions combined with the

timing of the strong-arm robbery are highly suggestive of possession of a firearm[,] noting the

video does not clearly show any outline or portion of the firearm.” Id. The trial court also found,

“The firearm was thrown from the vehicle that Respondent was driving at a high rate of speed

while attempting to elude the pursuing police vehicle[.] These acts are evidence of a guilty

consc[ience].” Id. (FF 5).

5 No. 58285-6-II

The trial court entered a conclusion of law based on these findings: “The firearm thrown

from the vehicle Respondent was driving was stolen and Respondent and/or an accomplice did

knowingly possess the stolen firearm and [] the firearm was operable and in working order.” CP

at 25 (Conclusion of Law 3). Accordingly, the trial court found LG-B guilty of possession of a

stolen firearm.

In its oral ruling, the trial court expressly stated that it did not believe KC’s and XV’s

assertions that they told LG-B nothing about the robbery, calling the testimony “fantastical.” VRP

at 455. The trial court also observed that having pleaded guilty to the robbery already, XV and KC

had nothing to lose by trying to protect LG-B from further consequences.

Also in its oral ruling, the trial court highlighted LG-B’s decision to flee from police,

opining that this was evidence of a guilty conscience because “[h]e knows there’s a gun in the car,

and they’ve got stolen property in the car, and so he guns it and hopes that they can shake the

police.” VRP at 454. Additionally, the trial court reasoned that “when you’re going a hundred

miles an hour, [and] the windows go down, you kind of know that the windows are going down.”

VRP at 455. “It’s loud, there’s movement, and eyes are drawn, and eyes are really good about

picking up things in peripheral vision. So, if a gun was tossed out by somebody, there’s likelihood

that he knew that.” Id. Although these findings relate to whether LG-B knew his friends had a gun

and stolen property in the car, the trial court did not mention any specific evidence, inference, or

belief that LG-B knew the gun was stolen.

The trial court imposed a total of 33 days of confinement with credit for time served. It

also imposed 12 months of probation on the attempt to elude police adjudication.

LG-B appeals his adjudication of guilt for possession of a stolen firearm.

6 No. 58285-6-II

ANALYSIS

LG-B argues that there was insufficient evidence to adjudicate him guilty of possession of

a stolen firearm as either a principal or an accomplice. He assigns error to findings of fact 1 and 4

and conclusion of law 3 on this basis. LG-B asserts that there was no evidence that he possessed,

carried, or controlled the firearm, “[n]or did the State present any evidence he knew the gun had

been stolen years earlier.” Br. of Appellant at 18. For the accomplice liability theory, LG-B again

emphasizes that there was no evidence he knew the firearm was stolen, so [h]is knowing assistance

in any other criminal activity does not suffice” to adjudicate him guilty of possession of a stolen

firearm. Id. at 20-21.

The State first responds that the fact that LG-B was driving the Pontiac was sufficient to

establish at least constructive possession of the firearm, which was inside the vehicle. And it points

to the extensive car chase with police as evidence of consciousness of guilt. The State relies on the

trial court’s finding that XV and KC were lying to cover for LG-B, and the fact that it is illegal in

Washington to purchase a gun when under the age of 21, to propose that LG-B must have known

the gun was stolen. And it contends that XV’s or KC’s act of throwing the firearm out of the car

can be imputed to LG-B as “distanc[ing] themselves from the stolen weapon.” Resp’t’s Br. at 27.

We disagree and hold that there was insufficient evidence that LG-B knew the gun was stolen.

A. Legal Principles

There is sufficient evidence to support a conviction if, taking the State’s evidence as true

and viewing the evidence in a light most favorable to the State, any rational trier of fact could find

the elements of the charged crime beyond a reasonable doubt. State v. Dreewes, 192 Wn.2d 812,

821, 432 P.3d 795 (2019). “Specifically, following a bench trial, appellate review is limited to

7 No. 58285-6-II

determining whether substantial evidence supports the findings of fact and, if so, whether the

findings support the conclusions of law.” State v. Homan, 181 Wn.2d 102, 105-06, 330 P.3d 182

(2014). Substantial evidence “is evidence sufficient to persuade a fair-minded person of the truth

of the asserted premise.” Id. at 106. We treat unchallenged findings of fact as verities on appeal,

and review challenges to a trial court’s conclusions of law de novo. Id. Further, circumstantial

evidence is as reliable as direct evidence. State v. Scanlan, 193 Wn.2d 753, 770, 445 P.3d 960

(2019). And we defer to the fact finder’s resolution of conflicting testimony and evaluation of the

evidence’s persuasiveness. Homan, 181 Wn.2d at 106.

A person is guilty of possession of a stolen firearm if they possess, carry, deliver, sell, or

are in control of a stolen firearm. RCW 9A.56.310(1). “The definition of ‘possessing stolen

property’ . . . under RCW 9A.56.140 shall apply to the crime of possessing a stolen firearm.” RCW

9A.56.310(4). A person possesses stolen property if they knowingly “receive, retain, possess,

conceal, or dispose of stolen property knowing that it has been stolen” and “withhold or appropriate

the same to the use of any person other than the true owner,” regardless of whether they are the

person who stole the property in the first place. RCW 9A.56.140(1) (emphasis added). And a

person acts knowingly when they are “aware of a fact, facts, or circumstances or result described

by a statute defining an offense” or have “information which would lead a reasonable person in

the same situation to believe that facts exist which facts are described by a statute defining an

offense.” RCW 9A.08.010(1)(b)(i)-(ii).

The State can prove that a defendant knew the firearm was stolen by proving “knowledge

of facts sufficient to place the accused on notice that the property was stolen.” State v. Crow, 8

Wn. App. 2d 480, 495, 438 P.3d 541 (2019). “Bare possession of stolen property is insufficient to

8 No. 58285-6-II

justify a conviction.” State v. McPhee, 156 Wn. App. 44, 62, 230 P.3d 284 (2010). But “possession

of recently stolen property in connection with other evidence tending to show guilt is sufficient.”

State v. Couet, 71 Wn.2d 773, 775, 430 P.2d 974 (1967). “Other evidence of guilt may include a

false or improbable explanation of possession, flight, use of a fictitious name, or the presence of

the accused near the scene of the crime.” State v. Q.D., 102 Wn.2d 19, 28, 685 P.2d 557 (1984).

For accomplice liability, the State must prove the defendant had actual knowledge that the

principal was engaging in the charged crime, although it may do so through circumstantial

evidence. State v. Allen, 182 Wn.2d 364, 374, 341 P.3d 268 (2015); Dreewes, 192 Wn.2d at 823.

The Supreme Court has been careful to distinguish “between finding actual knowledge through

circumstantial evidence and finding knowledge because the defendant ‘should have known’” or

“‘an ordinary person in the defendant’s situation would have known’ the fact in question.” Allen,

182 Wn.2d at 374 (quoting State v. Shipp, 93 Wn.2d 510, 514, 610 P.2d 1322 (1980)); see

Dreewes, 192 Wn.2d at 825-26 . The latter “interpretation subjects a defendant to accomplice

liability under a theory of constructive knowledge and is unconstitutional.” Allen, 182 Wn.2d at

374.

When it comes to proving possession, the driver of a vehicle may have constructive

possession of items in the back of the car. “We have found sufficient evidence of dominion and

control over a vehicle even where the vehicle did not belong to the driver, but the contraband was

in plain sight and within reach.” State v. Listoe, 15 Wn. App. 2d 308, 328, 475 P.3d 534 (2020).

For the element of knowledge, this court has held that there was sufficient evidence to

convict a defendant of possession of a stolen firearm when the defendant hid the firearms in the

woods near his house after the owner posted an advertisement in the local newspaper about the

9 No. 58285-6-II

stolen items. McPhee, 156 Wn. App. at 63. Additionally, when a police officer asked the defendant

why he had hidden the firearms, the defendant admitted to knowing the firearms were stolen,

although he testified at trial that he had other reasons for hiding them. Id. Thus, circumstantial

evidence of knowledge that an item was stolen can be enough to sustain a conviction. Allen, 182

Wn.2d at 374.

B. Sufficiency of the Evidence in This Case

Here, all of the evidence presented at trial indicated that LG-B’s decision to flee police

related to the robbery his friends had just committed. The trial court found not credible XV’s and

KC’s testimony that LG-B did not know about the gun or the robbery. But there was no testimony

or other evidence presented to show that LG-B knew how his friends obtained the gun. And both

XV and KC invoked the Fifth Amendment when asked how they acquired the gun. Accordingly,

there was no evidence that LG-B had any involvement with the theft of the gun, which occurred

almost three years before the charged events. There was no evidence or implication that anyone

ever told LG-B how XV and KC obtained the gun. There are many ways for adults and juveniles

alike to acquire firearms without either purchasing them through legal channels or stealing them.

And even if we infer, as the trial court did, that LG-B knew the gun was in the car because his

friends had recently committed a robbery with it, this inference without additional evidence does

not reasonably extend to knowing that the gun had been stolen years earlier.

Similarly, for accomplice liability to apply, the State had to show that LG-B had actual

knowledge that XV was engaging in the crime of possession of a stolen firearm. Allen, 182 Wn.2d

at 374. As stated above, knowing that XV had the gun does not necessarily extend to knowledge

that the gun was stolen. Moreover, there was not even any evidence at trial that XV knew the gun

10 No. 58285-6-II

was stolen. Even the act of XV throwing the gun out of the car demonstrates more culpability of

guilt related to the robbery that had just occurred than to the theft of the gun three years earlier.

Again, there is no evidence that XV told LG-B the gun was stolen, and under the facts of this case,

it is not reasonable to infer from the evidence in our record that LG-B had such knowledge.

In sum, there was insufficient evidence to persuade a fair-minded person that LG-B knew

the gun was stolen, so there was not substantial evidence to support the trial court’s findings to

that effect. And because there was insufficient evidence of the element of knowledge that the gun

was stolen, it was error for the trial court to conclude that LG-B committed possession of a stolen

firearm. Accordingly, we reverse and remand for the trial court to vacate LG-B’s adjudication of

guilt for possession of a stolen firearm. Because there is insufficient evidence, the adjudication of

guilt must be dismissed with prejudice.

CONCLUSION

We remand for the trial court to vacate and dismiss with prejudice LG-B’s adjudication of

guilt for possession of a stolen firearm.

11 No. 58285-6-II

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.

GLASGOW, J. We concur:

VELJACIC, A.C.J.

CHE, J.