State Of Washington v. Sam You

• Court: Court of Appeals of Washington
• Decided: February 11, 2014
• Docket: 43738-4
• Status: Unpublished

Opinion

0 F tiT 0 , APPEALS Gf w t" II

2' Ili FED f ! ' 3:

IN THE COURT OF APPEALS OF THE STATE OF W

DIVISION II

STATE OF WASHINGTON, I No. 437=

Respondent,

V.

SAM NANG YOU, UNPUBLISHED OPINION

I. 1

LEE, J. — Sam Nang You appeals his conviction of first degree unlawful possession of a

firearm, arguing that ( 1) the firearm' s discovery was the result of an illegal stop of the car in

which he was a passenger, ( 2) the State failed to prove that he constructively possessed the

firearm, and ( 3) the trial court erred in rejecting his request to continue sentencing so that he

could argue that some of his prior offenses counted as one under the same criminal conduct rule.

We hold that the stop of the car was justified and that the State provided sufficient evidence of

constructive possession, but that the trial court erred in refusing to continue sentencing. We

affirm the conviction, but remand for resentencing.

FACTS

Shortly after 11: 00 PM on March 4, 2012, Puyallup Tribal Police Officer Joey Tracy

responded to the 3700 block of East Roosevelt Avenue to assist Tacoma police officers in

finding a vehicle involved in a drive - y shooting near the 6400 block of East Portland Avenue. b

The majority of Tracy' s work involves investigating gang- related crimes. Based on his training - No. 43738 -4 -II

and experience, Tracy knew this location 'to be a high -crime area with frequent incidents of gang

activity and violence.

Tacoma dispatch described the suspect car as a black Pontiac Grand Prix last seen

heading northbound on East Portland Avenue. While Officer Tracy was patrolling the area in

search of the Pontiac, his vehicle was approached from behind by a dark blue sedan with its high

beam headlights activated. Tracy saw the blue sedan, which contained three occupants, circle

the block and leave the area. Tracy continued to investigate the drive -by shooting.

About five minutes later, Officer Tracy saw the blue sedan turn from East 35th onto East

Portland Avenue. The sedan turned out in front of Tracy, who then followed it. As he did so,

the driver continuously looked back at the patrol vehicle. After both vehicles turned right onto

East 29th Street, Tracy saw the sedan turn right onto East R Street and drive southbound to East

35th Street, where it turned and made a full circle from where Tracy had initially seen the car.

Officer Tracy wondered why the sedan was driving in circles in an area that had just

experienced a drive - by shooting. He suspected that the sedan had some involvement in the

shooting based on these facts: its circling of the neighborhood moments after a drive -by

shooting, the lateness of the hour, the sedan' s use of its high beams, the neighborhood' s many

incidents of gang -related crimes and violence, the number of passengers, and the driver' s

behavior on noticing the officer. Although he knew he was not following a Pontiac, he thought

that the dark blue sedan could have been mistaken for that vehicle.

Officer Tracy decided to stop the sedan and investigate. The driver was waiting with his

license and registration paperwork and appeared both combative and unusually talkative, as

though he was trying to distract the officer. Tracy noticed that the driver had the number four No. 43738- 4- 11

tattooed on each forearm, which Tracy understood to be a gang -related symbol. Tracy also saw

that the passengers were wearing red, which is the color associated with a Tacoma gang. The

driver told Tracy he was attempting to drive through Salishan, which is an area claimed by a

gang.

While Officer Tracy was contacting the driver, he noticed that You, the front seat

passenger, was sitting motionless. After Tracy had the driver step out of the vehicle for a pat -

down, he opened the passenger door and brought You out. When You moved his feet, Tracy saw

a revolver between them that was protruding from under his seat. The gun was blocked from

going completely under the seat by a plastic bottle, and its handle was wrapped with toilet paper.

Officer Tracy arrested You and the other occupants and obtained a search warrant for the

vehicle. In the front center console, he found . 357 ammunition that matched the ammunition in

the gun. - Tracy found a 9 mm semi -automatic pistol underneath the back seat and a 9 mm bullet

in the jacket that had been next to the rear passenger. That passenger' s identification was in the

j acket.

Because You had a prior serious felony conviction, the State charged him with first

degree unlawful possession of a firearm. After the trial court denied You' s motion to suppress,

Officer Tracy testified to the above facts, and the jury found You guilty as charged.

When the verdict was returned on June 19, You' s attorney asked the court to delay

sentencing until late July because a same criminal conduct analysis might apply to some of

You' s criminal history. Defense counsel had requested documents from the State to assist in that

analysis. The State objected to the delay, and the trial court set sentencing for June 29 over

defense counsel' s objection.

3 No. 4373 8 -4 -II

At the June 29 sentencing hearing, defense counsel again sought a continuance of two to

three weeks because he still needed police reports to determine whether some of You' s prior

offenses might constitute the same criminal conduct. The State responded that there was no

precedent for what counsel was requesting, and the trial court denied You' s request for a

continuance, ruling that 'a same criminal conduct analysis of You' s . prior convictions was not

appropriate. Based on an offender score of 8 that counted You' s prior offenses separately, the

trial court imposed a sentence of 90 months. You appeals his conviction and sentence.

DISCUSSION

A. TERRY STOP

You first contends that the initial stop of the car in which he was a passenger was invalid

and that the trial court erred in denying his motion to suppress. We disagree.

The Fourth Amendment protects against unlawful search and seizure, and article I,

section 7 of the Washington Constitution protects against unlawful government intrusions into

private affairs. State v: Doughty, 170 Wn.2d 57, 61, 239. P. 3d 573 ( 2010). A seizure occurs

when, considering all the circumstances, a reasonable person would not feel free to leave. State

v. Diluzio, 162 Wn. App. 585, 590, 254 P. 3d 218, review denied, 272 P. 3d 850 ( 2011).

Warrantless seizures are per se unreasonable, and the State must demonstrate that a warrantless

seizure falls into a narrow exception to the rule. Doughty, 170 Wn.2d at 61.

One exception to the prohibition on warrantless seizures is a law enforcement officer' s

investigatory stop of a vehicle based on a reasonable suspicion to believe that criminal activity is

indicated. Diluzio, 162 Wn. App. at 590. To be lawful, an investigatory stop, also known as a

Terry stop, must be based on "` specific and articulable facts which, taken together with rational

M No. 43738- 4- 11

inferences from those facts, reasonably warrant [ the] intrusion. "' Diluzio, 162 Wn. App. at 590

quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968)). The standard

for articulable suspicion is a " substantial possibility that criminal conduct has occurred or is

about to occur." State v. Kennedy, 107 Wn.2d 1, 6, 726 P. 2d 445 ( 1986).

Whether a warrantless seizure or a Terry stop is lawful is a question of law that we

review de novo. State v. Bailey, 154 Wn. App. 295, 299, 224 P.3d 852, review denied, 169

Wn.2d 1004 ( 2010). The State must establish the exception by clear and convincing evidence.

State v. Garvin, 166 Wn.2d 242, 250, 207 P. 3d 1266 ( 2009). The purpose of the Terry rule is to

stop police from acting on mere hunches. Doughty, 170 Wn.2d at 63; Kennedy, 107 Wn.2d at 5-

6. Crime prevention and crime detection are legitimate purposes for investigative stops or

detentions. Doughty, 170 Wn.2d at 63; Kennedy, 107 Wn.2d at 5 - 6. However, where no crime

has been committed, simply being in a high - crime area at night is insufficient to justify a stop.

State v. Moreno, 173 Wn. App. 479, 492, 294 P. 3d 812, review denied, 177 Wn.2d 1021 ( 2013).

A police officer may rely on his experience to evaluate apparently innocuous facts.

Moreno, 173 Wn. App. at 492; State v. Thierry, 60 Wn. App. 445, 448, 803 P. 2d 844 ( 1991).

Such experience was key to upholding the investigatory stop in Thierry, where officers watched

two teenagers drive through a high - crime area one winter afternoon with the car windows rolled

down and loud music playing. 60 Wn. App. at 446 -47. The car drove through a parking lot

containing open spaces without attempting to park and stopped at the entrance. Thierry, 60 Wn.

App. at 447. As the officers approached, they saw a wooden bat at the driver' s feet and noticed

the passenger making furtive hand motions. Thierry, 60 Wn. App. at 447. After ordering the

5 No. 43738 -4 -II

two to bring their hands into view, an officer saw a pistol between the front armrests. Thierry,

60 Wn. App. at 447.

This court upheld the stop, stating that the officers had observed behavior consistent with

the profile of drive - by shootings and were not required to ignore their observations. Thierry, 60

Wn. App. at 448. We explained that officers may bring their experience to bear on a situation,

and it is necessary only that the circumstances at the time of the stop be more consistent with

criminal than innocent conduct. Thierry, 60 Wn. App. at 448. Given the high crime nature of

the area in question and the drive - y shooting profile, the facts that existed immediately before b

the stop did not comport with innocent activity. Thierry, 60 Wn. App. at 448 -49.

The trial court cited Thierry in upholding Officer Tracy' s stop of the car in which You

was riding. Although You argues that the facts are distinguishable, we are persuaded that

reliance on the officer' s experience controls here. Officer Tracy investigates gang- related crimes

and was in a high -crime area with frequent incidents of gang activity and violence. Officer

Tracy was responding to a late night report of a drive -by shooting when he saw a car with its

high beams on. The car drove in circles around the area. Tracy knew that the blue sedan did not

match the description of the car he had received, but he thought that a mistaken description was

possible. He also knew that drive -by shootings often involve multiple vehicles, including look-

out and /or retaliatory vehicles. Although being in a high -crime area at night does not justify a

stop when a crime has not been committed, here a drive -by shooting had been committed.

Viewed through the lens of the officer' s training and experience, the circumstances at the time of

the stop were more consistent with criminal than innocent conduct, and the trial court did not err

in upholding the investigatory stop and in denying You' s motion to suppress.

M No. 43738 -4 -II

B. CONSTRUCTIVE POSSESSION

You next argues that the evidence was insufficient to prove that he constructively

possessed the firearm found at his feet. We disagree.

Evidence is sufficient to support a conviction if, when viewed in the light most favorable

to the prosecution, it permits any rational trier of fact to find the essential elements of the crime

beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). " A

claim of insufficiency admits the truth of the State' s evidence and all inferences that reasonably

can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are

equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980).

Possession may be actual or constructive. State v. Raleigh, 157 Wn. App. 728, 737, 238

P. 3d 1211 ( 2010), review denied, 170 Wn. 2d 1029 ( 2011). Constructive possession is

established by showing that the defendant had dominion and control over the firearm. State v.

Murphy, 98 Wn. App. 42, 46, 988 P. 2d 1018 ( 1999), review denied, 140 Wn.2d 1018 ( 2000).

The defendant' s control over the firearm does not have to be exclusive, but mere proximity to the

firearm is insufficient to show control. Raleigh, 157 Wn. App. at 737. The ability to reduce an

object to actual possession is an aspect of dominion and control, but other aspects such as

physical proximity should be considered as well. State v. Hagen, 55 Wn. App. 494, 499, 781

P. 2d 892 ( 1989). The court must look at the totality of the circumstances to determine whether

the jury could reasonably infer dominion and control. State v. Potts, 93 Wn. App. 82, 88, 969

P. 2d 494 ( 1998).

You argues that the evidence showed only his proximity to the firearm, and thus, there

was insufficient evidence to show that he constructively possessed the weapon. As support, he

7 No. 43738 -4 -II

cites State v. Cote, 123 Wn. App. 546, 550, 96 P. 3d 410 ( 2004), where officers found a Mason

jar containing contraband in the car in which the defendant had been riding. Although the jar

contained the defendant' s fingerprint, it was found in the back of the vehicle and not in the

passenger area. Evidence that the defendant was in proximity to and at one point touched the

contraband was insufficient to establish the dominion and control needed to prove constructive

possession. Cote, 123 Wn. App. at 550.

You also cites State v. George, 146 Wn. App. 906, 922 -23, 193 P. 3d 693 ( 2008), where

evidence that a marijuana pipe was found on the rear passenger floorboard of a vehicle, next to

where the defendant had been sitting, was insufficient to prove dominion and control. You relies

further on a more recent decision from this court holding that evidence was insufficient to prove

constructive possession where a firearm was found behind the backseat of a vehicle, next to

where the defendant had been sitting. State v. Chouinard, 169 Wn. App. 895, 902 -03, 282 P. 3d

117 ( 2012), review denied, 176 Wn.2d 1003 ( 2013); but see State v. Echeverria, 85 Wn. App.

777, 783, 934 P. 2d 1214 ( 1997) ( evidence sufficient to prove constructive possession where

officer saw gun sticking out from under defendant' s seat; ability to reduce object to actual

possession is aspect of dominion and control).

You asserts that the evidence of constructive possession in this case is even weaker than

that in Cote, George, and Chouinard. `We disagree.

Here, as in Echeverria, the officer saw a firearm sticking out from between You' s feet

when he approached the passenger side of the car. There was ammunition in the center console

beside You that matched the ammunition in the gun. Tracy found a different type of gun

underneath the rear passenger seat, and ammunition matching that gun was in the rear No. 43738 -4 -II

passenger' s jacket. Viewing the circumstances as a whole, they show that You had the ability to

reduce the firearm at his feet to actual possession and that he had dominion and control over that

firearm.

C. CONTINUANCE FOR SAME CRIMINAL CONDUCT DETERMINATION

Finally, You argues that the trial court abused its discretion by refusing to continue the

sentencing hearing based on the understanding that no same criminal conduct analysis was

appropriate.

The grant or denial of a continuance is within the trial court' s discretion and will not be

disturbed absent a showing that the court abused its discretion and the defendant was prejudiced

thereby. State v. Herzog, 69 Wn. App. 521, 524, 849 P.2d 1235, review denied, 122 Wn.2d 1021

1993). However, where a defendant has requested a sentencing alternative authorized by

statute, the categorical refusal to consider that alternative is a failure to exercise discretion and is

subject to reversal. State v. Grayson, 154 Wn.2d 333, 342, 111 P. 3d 1183 ( 2005). Further,

remand for resentencing is often necessary where a sentence is based on a trial court' s erroneous

belief about the governing law. State v. McGill, 112 Wn. App. 95, 100, 47 P.3d 173 ( 2002).

At issue here is the trial court' s refusal to continue sentencing to address the issue of

whether some of You' s prior offenses constituted the same criminal conduct. Under the same

criminal conduct rule, multiple offenses count as one in calculating the defendant' s offender

score if they were committed at the same time and place against the same victim and require the

same criminal intent. RCW 9. 94A.589( 1)( a).

A current sentencing court must calculate an offender score based on an offender' s " other

current and prior convictions." RCW 9. 94A.589( 1)( a); State v. Williams, 176 Wn. App. 138,

6 No. 43738 -4 -II

141, 307 P. 3d 819 ( 2013). If a prior sentencing court found multiple offenses that encompassed

the same criminal conduct, the current sentencing court must count .those prior convictions as

one offense. RCW 9. 94A.525( 5)( a)( i); Williams, 176 Wn. App. at 141. If the prior sentencing

court did not make this finding, but nonetheless ordered the offender to serve the sentences

concurrently, the current sentencing court must independently evaluate whether those prior

convictions encompass the same criminal conduct and, if they do, must count them as one

offense. RCW 9. 94A. 525( 5)( a)( i); see also State v. Torngren, 147 Wn. App. 556, 563, 196 P. 3d

742 ( 2008) ( sentencing court must apply same criminal conduct test to multiple prior convictions

that a court has not already concluded amount to the same criminal conduct), abrogated on other

grounds by State v. Graciano, 176 Wn.2d 531, 295 P. 3d 219 ( 2013). The defendant bears the

burden of proving that his prior offenses constitute the same criminal conduct. Graciano, 176

Wn.2d at 539.

You' s criminal history includes 12 juvenile and adult offenses committed on three

different dates. You refused to sign a stipulation that counted these offenses separately, and after

the verdict he requested a month' s continuance so that he could obtain documentation that would

enable him to make the same criminal conduct argument. You' s attorney objected to the court' s

decision to set sentencing only 10 days later, and he again requested a continuance at sentencing

so that he could obtain the documents needed to make the same criminal conduct analysis. The

trial court declined to grant the continuance, explaining that a same criminal conduct evaluation

was not then appropriate and was instead a matter for appellate review.

While acknowledging the holding in Torngren set forth above, the State seems to assert

that You has waived this claim of error by being unprepared to make a same criminal conduct

10 No. 43738 -4 -II

argument at sentencing and by failing to raise a related claim of ineffective assistance of counsel

on direct appeal. The State asserts further that because You has failed to show that his prior

offenses constituted the same criminal conduct, he can show no prejudice from the court' s

refusal to continue sentencing.

These arguments are not persuasive. Defense counsel was unprepared to make the same

criminal conduct argument at sentencing because he did not have the documents he requested

from the State that he needed to make the argument. Without those documents, You is prevented

from making the same argument on appeal. The trial court abused its discretion by declining to

continue sentencing so that the defense could prepare for the mandatory same criminal conduct

evaluation of You' s prior offenses. The trial court' s reason for not granting the continuance was

based on an erroneous belief of the governing law.

Accordingly, we affirm You' s conviction, but remand so the parties and the court may

engage in the same criminal conduct evaluation of You' s prior offenses before resentencing.

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.

ee, J. T- -- -- - - - --. c

Maxa, J.