* State of Washington v. Chad Edward Duncan

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FILED
March 25,2014
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, 	)
) 	No. 299l6-3-III
Respondent, 	)
)
v. 	)
) 	OPINION PUBLISHED
CHAD EDWARD DUNCAN, 	) 	IN PART
)
Appellant. 	)
SIDDOWAY, J. 	Chad Duncan appeals his conviction of six counts of assault,
each subject to a fIrearm enhancement, and unlawful possession of a fIrearm. He assigns
error to the trial court's denial of his motion to suppress evidence of a handgun and shell
casings found in his car at the time of his arrest and to the trial court's fInding that he had
the current or future ability to pay legal fInancial obligations (LFOs). He also assigns
error to the trial court's sentence of community custody, which the State concedes was
unsupported. He alleges additional errors in a pro se statement of additional grounds.
In the published portion of this opinion, we address his challenge to the trial
court's fInding that he had the current or future ability to pay LFOs. Because a
sentencing court will seldom fInd that there is no likelihood that an offender will ever be
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 29916-3-III
State v. Duncan
able to pay LFOs and an offender has good strategic reasons for waiving the issue at the
sentencing hearing, we will not consider the issue for the first time on appeal.
In the unpublished remainder of the opinion, we accept the State's concession that
the court lacked authority to impose a tenn of community custody for Mr. Duncan's
conviction of unlawful possession of a fireann but find no other error. 	We affinn Mr.
Duncan's conviction and remand the matter to the trial court solely for the purpose of
striking the tenn of community custody.
FACTS RELEVANT TO IMPOSITION OF DISCRETIONARY LFOS
Mr. Duncan was charged with six counts of assault and one count of unlawful
possession of a fireann and was found guilty following a jury trial in March 2011.
At the time of sentencing, the proposed judgment and sentence prepared by the
State and presented to the court included the following restitution, costs, and assessments,
some of which are mandated by statute and others of which are discretionary:
$1,235.54 	Restitution
$ 	500.00 	Crime penalty assessment
$ 	200.00 	Criminal filing fee
$ 	600.00 	Court appointed attorney recoupment
$ 	100.00 	DNA (deoxyribonucleic acid) collection fee
$ 	20.00 	Sheriff service fee
$ 	250.00 	Jury fee
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Clerk's Papers (CP) at 181.
Boilerplate findings within the judgment and sentence that was completed and
entered by the court included a finding that Mr. Duncan had the present or future ability
to pay the financial obligations imposed. They also included findings that Mr. Duncan
had the means to pay for the costs of incarceration (not to exceed certain maximum
amounts) and the means to pay any costs of medical care incurred by the county.
The parties' presentations at the sentencing hearing dealt primarily with whether
the court should impose a sentence at the high or low end of the standard range, whether
the sentences on the six assaults should run consecutively, and with Mr. Duncan's
mother's plea for lenient sentencing. Neither party made any presentation of evidence or
argument directly addressing Mr. Duncan's ability to pay. The only fact addressed that
had a bearing, indirectly, on his ability to pay was the lengthy sentence (effectively a life
sentence) being imposed by the court. 	In reviewing the judgment and sentence with the
parties, the court observed, "He has $2905 and some change to pay ifhe's released," and
that "[c]ost of incarceration, cost of medical care will be imposed." Report of
Proceedings (RP) at 992. Mr. Duncan did not object to the costs imposed or to the
court's findings.
ANALYSIS OF LFO ISSUE
For the first time on appeal, Mr. Duncan contends that the record does not support
the trial court's findings that he has the current or future ability to pay discretionary
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LFOs, including incarceration and medical costs. See In re Pers. Restraint ofPierce, 173
Wn.2d 372,379,268 P.3d 907 (2011) (holding that "costs of incarceration" imposed by
RCW 9.94A.760(2) fall within the broad definition of "legal financial obligation"); RCW
70.48.130(4) (authorizing sentencing courts to order offenders to repay all or part of
medical costs incurred during confinement as part of a judgment and sentence). He asks
that we remand his judgment and sentence to the trial court with instructions to strike the
objectionable findings as was done in State v. Bertrand, 165 Wn. App. 393, 267 P.3d 511
(2011).
The convergence of three factors has contributed to the recurrent raising in appeals
of this and other challenges to discretionary LFOs imposed by trial courts.
First is a statutory requirement that trial courts take some account of a defendant's
ability to pay the obligations in the future. 	RCW 10.01.160(3) provides that a trial court
"shall not order a defendant to pay costs unless the defendant is or will be able to pay
them." RCW 9.94A.760(2) provides that the trial court may require an offender to pay
costs of incarceration "[i]fthe court determines that the offender, at the time of
sentencing, has the means to pay." No formal or specific findings of ability to pay are
required to be made by the trial court. State v. Curry, 118 Wn.2d 911, 916, 829 P .2d 166
(1992). 	Still, RCW 10.01.160(3) provides that "the court shall take account of the
financial resources ofthe defendant and the nature of the burden that payment of costs
will impose." (Emphasis added.) Curry observes that, while not required to make
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No. 29916-3-111
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findings, "[t]he court is directed to consider ability to pay." 	118 Wn.2d at 916 (emphasis
added).
Second is the apparent and unsurprising fact that many defendants do not make an
effort at sentencing to suggest to the sentencing court that they are, and will remain,
unproductive. "The State's burden for establishing whether a defendant has the present
or likely future ability to pay discretionary legal financial obligations is a low one." State
v. Lundy, 176 Wn. App. 96, 106,308 P.3d 755 (2013). As Lundy observes, it has been
deemed met by a single reference in a presentence report to the defendant describing
himself as '"employable.''' Id. (internal quotation marks omitted) (quoting State v.
Baldwin, 63 Wn. App. 303, 311, 818 P.2d 1116, 837 P.2d 646 (1991». Indeed, "a trial
court is prohibited from imposing legal financial obligations only when it appears from
the record that there is no likelihood that the defendant's indigency will end." Id. at 99.
Sentencing is a context in which most defendants are motivated to portray themselves in
a more positive light.
Not only is it unhelpful for a defendant to portray himself or herself as
irretrievably indigent at the time of sentencing, a defendant who will truly never be able
to pay is not left without protection from collection or punishment. After costs are
imposed, a defendant who is not in contumacious default may petition the sentencing
court for remission of the payment of all or part of them. 	RCW 10.01.160(4). Due
process precludes the j ailing of an offender for failure to pay a fine if the offender's
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No. 29916-3-III
State v. Duncan
failure to pay was due to his or her indigence; while the burden is on the offender to show
that his nonpayment is not willful, "due process still imposes a duty on the court to
inquire into the offender's ability to pay ... at 'the point of collection and when sanctions
are sought for nonpayment.'" 	State v. Nason, 168 Wn.2d 936, 945, 233 P.3d 848 (2010)
(citation omitted) (quoting State v. Blank, 131 Wn.2d 230,242, 930 P.2d 1213 (1997)).
Given more important issues at stake in a sentencing hearing, many defendants will
consciously and prudently choose not to argue at the time of sentencing that they will be
perpetually unemployed and indigent.
The third converging factor is boilerplate findings included in some unifonn
judgment and sentence fonns, which, under CrR 7.2( d) are to be prescribed by the
Administrator for the Courts in conjunction with the Supreme Court Pattern Forms
Committee. Although perhaps no longer the case, I judgment and sentence fonns have
often included boilerplate findings of ability to pay. We have been presented in many
appeals with such boilerplate findings that bear no relation to any evidence or argument
presented to the sentencing judge. The boilerplate findings in Mr. Duncan's judgment
and sentence to which he objects are:
2.7 	Financial Ability: The Court has considered the total amount
owing, the defendant's past, present, and future ability to pay legal financial
obligations, including the defendant's financial resources and the likelihood
I See, e.g., WPF CR.84.0400P (rev. July 2013), a felony judgment fonn, available
at http://www.courts.wa.gov/fonns.
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No. 29916-3-111
State v. Duncan
that the defendant's status will change. The Court finds that the defendant
has the present ability or likely future ability to pay the financial obligations
imposed herein. RCW 9.94A.753.
4.D.4 	Costs of Incarceration: 	In addition to the above costs, the court
finds that the defendant has the means to pay for the costs of incarceration,
in prison at a rate of$50.00 per day of incarceration or in the Yakima
County Jail at the actual rate of incarceration but not to exceed $100.00 per
day ofincarceration (the rate in 2011 is $79.75 per day), and orders the
defendant to pay such costs at the statutory rate as assessed by the Clerk.
Such costs are payable only after restitution costs, assessments and fines
listed above are paid. RCW 9.94A.760(2).
4.D.S 	Costs of Medical Care: In addition to the above costs, the court
finds that the defendant has the means to pay for any costs of medical care
incurred by Yakima County on behalf of the defendant, and orders the
defendant to pay such medical costs as assessed by the Clerk. Such costs
are payable only after restitution costs, assessments and fines listed above
are paid. RCW 70.48.130.
The result of these three converging factors are boilerplate findings frequently
contained in a judgment and sentence, that are often unsupported by the record, that may
well have been supported if addressed at sentencing, but that the defendant had no
inclination to object to or challenge at that time.
In State v. Kuster, 175 Wn. App. 420, 425,306 P.3d 1022 (2013), we relied on
RAP 2.5(a) to decline to address a challenge to a boilerplate finding of ability to pay
LFOs raised for the first time on appeal. Other divisions of the Court of Appeals have
taken the same position. State v. Blazina, 174 Wn. App. 906, 911, 301 P.3d 492, review
granted, 178 Wn.2d 1010,311 P.3d 27 (2013); State v. Calvin, 176 Wn. App. 1,316 P.3d
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No. 29916-3-111
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496, petition/or review filed, No. 89518-0 (Wash. Nov. 12,2013). Bertrand, which is
relied upon by Mr. Duncan, involved distinguishable facts: a record from which it
affirmatively appeared that the defendant was disabled and was (and would likely
remain) indigent, as pointed out in Lundy, 176 Wn. App. at 106. Mr. Duncan presents the
more typical situation of a record that does not support a finding that he is indigent with
no likelihood that his indigency will end.
In other cases, we have often taken our cue from the State's response to this
issue-and the State's response has varied among the county prosecutors in our division.
Taking our cue from the State, we have sometimes ordered that a finding of ability to pay
be stricken if not supported by the record. Other times, we have remanded for a hearing
on ability to pay. 	We have sometimes accepted the argument that an order to pay LFOs
(unlike a finding of ability to pay) is not ripe for review before an attempt is made to
enforce it. Sometimes, as in Kuster, we have refused to consider the challenge, citing
RAP 2.5(a).
Here, the State suggests that we remand for a hearing on ability to pay. But
having come to the conclusion that ability to pay LFOs is not an issue that defendants
overlook-it is one that they reasonably waive-we view this as precisely the sort of
issue we should decline to consider for the first time on appeal. We may decline to
address an argument under RAP 2.5(a) sua sponte. State v. Kirkpatrick, 160 Wn.2d 873,
880 n.lO, 161 P.3d 990 (2007), overruled on other grounds by State v. Jasper, 174 Wn.2d
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No. 29916-3-III
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96,271 P.3d 876 (2012). 	Ifa trial court fails to consider ability to payor enters an
unsupported finding, it is not constitutional error. Calvin, 176 Wn. App. at 24 (citing
Blank, 131 Wn.2d at 241-42).
We are aware that in Blazina, which, along with State v. Paige-Colter, noted at
175 Wn. App. 1010,2013 WL 2444604, review granted, 178 Wn.2d 1018,312 P.3d 650
(2013), has been argued and is presently awaiting decision by the Supreme Court,2 the
defense has argued that entry of unsupported findings on ability to pay falls within the
non-rule-based exception to RAP 2.5(a) for sentences in excess of a trial court's statutory
authority. See} e.g., State v. Ford, 137 Wn.2d 472,477, 973 P.2d 452 (1999); State v.
Mendoza, 165 Wn.2d 913,920,205 P.3d 113 (2009). 	We are not deterred from refusing
to entertain the issue for the first time on appeal for several reasons.
In Mendoza, the Supreme Court spoke of "belated challenges to criminal history
relied upon by a sentencing court" as an exception to what it characterized as Washington
appellate courts' "general reluctance to address issues not preserved in the trial court,"
thereby affirming that we will generally not review belated challenges. 	165 Wn.2d at
919-20 (emphasis added). 	We must critically examine whether, if the trial court did fail
to comply with RCW 10.01.160(3), it is a sentencing error that should be recognized as a
common law exception to RAP 2.5(a).
2 Supreme Court Causes 89028-5 and 89109-5 (argued February 11,2014).
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II
No. 29916-3-III
State v. Duncan
The Supreme Court has recognized shortcomings in the State's proof of a
defendant's criminal history as an exception, but its reasoning in doing so does not apply
to every error that might be made at sentencing. In State v. Hunley, the court reasoned
that because the State has the burden to prove prior convictions at sentencing by a
preponderance of the evidence, then a failure of proof by the State (even if not raised at
trial) raises due process concems-"because it is 'inconsistent with the principles
underlying our system of justice to sentence a person on the basis of crimes that the State
either could not or chose not to prove.'" 	175 Wn.2d 901,909-10,287 P.3d 584 (2012)
(citing Ford, 137 Wn.2d at 479-80 and quoting In re Pers. Restraint o/Williams, 111
Wn.2d 353,357, 759 P.2d 436 (1988)); State v. McCorkle, 137 Wn.2d 490,495,973 P.2d
461 (1999) ("Our holding in Ford was directly controlled by the clear burden of proof
placed on the State by the [Sentencing Reform Act of 1981, ch. 9.94A RCW]."). By
contrast, RCW 10.01.160(3) and RCW 9.94A.760(2) provide that the court is to take
account of present or future ability to pay at the time of sentencing, but without imposing
a burden of proof on the State at that time.
In State v. Moen, 129 Wn.2d 535, 919 P.2d 69 (1996), the Supreme Court offered
different reasoning for recognizing an exception for a defendant's failure to raise a timely
objection to a sentencing error in the trial court, but reasoning that, again, does not apply
here. At issue in Moen was a restitution order imposed after the deadline for entering a
restitution order had passed. The court reasoned that an exception should be made to
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No. 29916-3-III
State v. Duncan
RAP 2.5(a) because (1) allowing a belated challenge would bring the defendant's
sentence into compliance with sentencing statutes and (2) the challenge presented no risk
that the defendant had engaged in a strategic waiver to the detriment of other parties and
the court. Recognizing that a defendant's failure to object to a late order presents no
potential for abuse, it held that "[t]his sort of 'correction' of an error does not fall
sufficiently within the purpose ofthe rule"-which it described elsewhere as being to
apprise the trial court of the claimed error at a time when it can correct it-"to justifY
requiring an objection as a prerequisite to appellate review." Id. at 547. In the case of
LFOs, there is clear potential for abuse, since a defendant might well defer rather than
raise a claim of penn anent indigency at the time of sentencing, if he or she thought it
could be successfully raised for the first time on appeal.
The Supreme Court may clarifY this issue in Blazina and Paige-Colter, but for
now we do not understand the reasoning and holdings of Moen, Ford, and later cases as
requiring that we entertain challenges to LFOs and supporting findings that were never
raised in the trial court.
In the unusual case of an irretrievably indigent defendant whose lawyer fails to
address his or her inability to pay LFOs at sentencing and who is actually prejudiced, a
claim of ineffective assistance of counsel is an available course for redress.
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No. 29916-3-111
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We decline to address the issue for the first time on appeal. 	We affirm Mr.
Duncan's conviction and remand the matter to the trial court solely for the purpose of
striking the term of community custody for reasons discussed hereafter.
The remainder of this opinion has no precedential value. Therefore, it will be filed
for public record in accordance with the rules governing unpublished opinions. RCW
2.06.040.
ADDITIONAL FACTS AND PROCEDURAL BACKGROUND
Shortly before 1 a.m. on a morning in July 2009, Yakima Police Officer Jeff Ely
responded to a report of shots fired and the description of a white Subaru or Impala car
headed northbound on 5th A venue. The address where the shooting took place was in
west central Yakima, an area known to the officer as being associated with the Surefio
gang.
Officer Ely suspected that Nortefio gang members were probably responsible for
the shooting and would be fleeing to their territory on the east side of town. Railroad
tracks run north to south through Yakima, restricting a driver's ability to cross from the
west to the east side of town. One of only two direct ways to head east from the address
where the shooting took place would be to drive north and then tum eastbound on
I Street. Officer Ely therefore headed in that direction. As anticipated, he quickly
intercepted a white car headed eastbound on I Street at the railroad tracks and began to
follow it.
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No. 29916-3-III
State v. Duncan
Officer Ely could see that two passengers were in the car and the driver was
wearing a hat that was red, a color claimed by the Nortefio gang. 	He called for backup
units and activated his emergency lights. The white car pulled over to the side of the road
and stopped. Other officers quickly arrived and together they and Officer Ely conducted
a "high risk stop," calling the occupants of the vehicle out at gunpoint, one at a time,
having them walk backwards toward police, pull up their shirts and tum in a full circle to
ensure there were no weapons in their waistbands, and then lie in a prone position on the .
ground. By this time, Officer Ely had received a supplemental report that there may be
two females in the suspect car, and two females turned out to be in the car, with the
defendant, Chad Duncan, driving.
After the three occupants of the car were frisked, handcuffed, and placed in
separate patrol cars, the officers performed what they later described as "clearing the
vehicle" or a "protective sweep." RP at 71, 93. During that process, Officer Ely saw
aluminum shell casings on the floorboard of the car and also what appeared to be a small
caliber handgun. Officer Marc Scherzinger also saw spent shell casings in the car. In
what officers referred to as a subsequent "frisk" of the car's interior, they retrieved the
earlier-observed handgun located between the driver's door and the seat. RP at 72.
Mr. Duncan was charged with six counts of first degree assault for the crime
precipitating the dispatch call, with firearm aggravators on each, and with unlawful
possession of a firearm. 	The sufficiency of the evidence to convict him is not at issue.
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No. 29916-3-111
State v. Duncan
The principal issue on appeal is, instead, the admission into evidence of the fruits of the
stop and search.
Mr. Duncan moved before trial to suppress that evidence on grounds that officers
lacked the reasonable suspicion required for a Terry3 stop and exceeded the permissible
scope of such a stop. The State responded that the officers had not only a reasonable
suspicion, they had probable cause for arrest It defended the officers' actions as a search
incident to arrest 	Should the court find probable cause lacking, the State argued, as an
alternative justification, that the officers conducted an initial protective sweep of the car
for other occupants and later frisked the interior for any firearm that might discharge in
the course of the car's being impounded for a later search.
A jury found Mr. Duncan guilty on all counts and returned special verdicts that he
had been armed with a firearm in committing each assault. The court imposed
consecutive high standard range sentences and community custody of 36 months on the
assault convictions, finding that Mr. Duncan was a "criminal street gang member." CP at
188. It also imposed a term of community custody of 12 months on the unlawful
possession of a firearm conviction. The judgment and sentence Included findings that
Mr. Duncan had the present or future ability to pay LFOs as well as the costs of
incarceration and the costs of medical care. Mr. Duncan appeals.
3 Terry v. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968).
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No. 29916-3-111
State v. Duncan
ANALYSIS
Before trial, Mr. Duncan unsuccessfully moved to suppress evidence. On appeal,
he challenges the trial court's refusal to suppress evidence of the handgun and shell
casings on two bases. The first, and a basis for his motion to suppress, was that Officer
Ely lacked reasonable suspicion for a Terry stop, let alone probable cause for what Mr.
Duncan argues was essentially an arrest. The second, raised for the first time on appeal,
is that the officers' warrantless entry into the car and seizure of the handgun located by
the front passenger seat following the stop did not satisfy any exception to the
requirement for a warrant under article I, section 7 of the Washington Constitution.
The trial court orally denied the motion to suppress. After Mr. Duncan appealed
but before he filed his opening brief, the trial court entered written findings and
conclusions supporting its denialofthe suppression motion.
I. Terry Stop
We first address Mr. Duncan's contention that the officers lacked reasonable
suspicion justifying a Terry stop. Because the stop was unlawful, he argues, the trial
court should have suppressed all evidence of the firearm, shell casings, and other physical
evidence obtained during the search of the vehicle.
Warrantless searches and seizures are per se unreasonable unless one of the few,
jealously and carefully drawn exceptions to the warrant requirement applies. State v.
Ladson, 138 Wn.2d 343,349,979 P.2d 833 (1999). A Terry stop is a well-established
15
 	 	 	 	 	 	 	 	 	 	 	 	 	

Ii
I
f
I No. 29916-3-II1
State v. Duncan
I exception. State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008). A police
I 	officer who suspects that a particular person has committed a crime can conduct a Terry
stop and detain that person briefly to investigate the circumstances provoking suspicion.
t
I 	Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 821. Ed. 2d 317 (1984). The
purpose of a Terry stop'" is to allow the police to make an intermediate response to a
I situation for which there is no probable cause to arrest but which calls for further
investigation.'" State v. Armenta, 134 Wn.2d 1, 16, 948 P .2d 1280 ( 1997) (quoting State
v. Kennedy, 107 Wn.2d 1,17, 726 P.2d 445 (1986) (Dolliver, C.J., dIssenting)).
To be lawful, the stop must be based on "'specific and articulable facts which,
taken together with rational inferences from those facts, reasonably warrant [the]
intrusion.''' State v. Diluzio, 162 Wn. App. 585, 590, 254 P.3d 218 (2011) (alteration in
original) (quoting Terry, 392 U.S. at 21). The standard for articulable suspicion is a
"substantial possibility that criminal conduct has occurred or is about to occur."
Kennedy, 107 Wn.2d at 6. A reasonable suspicion may be based on "commonsense
judgments and inferences about human behavior." Illinois v. Wardlow, 528 U.S. 119,
125, 120 S. Ct. 673, 1451. Ed. 2d 570 (2000).
Whether an officer's suspicion is reasonable is determined by the totality of the
circumstances. State v. Rowe, 63 Wn. App. 750, 753, 822 P.2d 290 (1991). A police
officer may rely on his experience to evaluate apparently innocuous facts. State v.
Martinez, 135 Wn. App. 174, 180, 143 P.3d 855 (2006) (citing State v. Samsel, 39 Wn.
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No. 29916-3-111
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App. 564, 570-71, 694 P.2d 670 (1985». Facts "which appear innocuous to the average
person may appear incriminating to a police officer in light of past experience" and a
police officer is not required to set aside that experience. Samsel, 39 Wn. App. at 570.
In reviewing a trial court's decision on a motion to suppress, we review challenged
findings of fact for substantial evidence, challenged conclusions of law de novo, and
determine whether the findings support the conclusions. State v. Garvin, 166 Wn.2d 242,
249,207 P.3d 1266 (2009). Mr. Duncan does not assign error to any of the court's
enumerated findings of fact. 	He does assign error to a number of the court's conclusions
oflaw "[t]o the extent they contain findings of fact," Br. of Appellant at 1, but then fails
to identify the particular facts he contests or support his challenge with argument as
required by RAP 10.3(a)(6). We therefore treat all of the trial court's findings, whether
labeled as findings or contained in the court's conclusions, as verities. See State v.
Moreno, 173 Wn. App. 479, 491, 294 P.3d 812, review denied, 177 Wn.2d 1021 (2013).
The trial court found that at the time Officer Ely pulled over Mr. Duncan's car, he
had the following information supporting a reasonable suspicion: there was a victim that
had a gunshot wound to the head at 316 Cherry Avenue, which he knew to be an area of
town associated with the Sureno gang; the suspects in the shooting were in a white
midsized car, either Impala or Subaru type, and had left the scene traveling northbound
on 5th Avenue; if members of the rival gang, the Nortenos, they would most likely be
fleeing toward the east side of town by crossing I Street, where, if that were the case, the
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No. 29916-3-III
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officer believed he would be able to intercept the car; from his experience Officer Ely
knew that Sureiios claimed the color blue and Norteiios the color red; as Officer Ely
approached I Street he observed only one white car on the lightly traveled road; and the
car, which was occupied by three people, was being driven by an individual wearing a
red hat. These specific, articulable facts reasonably warranted the stop. Cf Moreno, 173
Wn. App. at 493 (officer who saw suspect wearing a red shirt-a color associated with
the Norteiio gang-hurriedly leaving a Sureiio neighborhood where shots had been fired
reasonably concluded that the person was somehow involved or would have information).
Mr. Duncan alternatively challenges the scope and intensity of the intrusion,
arguing that the officers effectively arrested him and his passengers without probable
cause.
A Terry stop permits officers to briefly detain a person for questioning without
grounds for arrest if they reasonably suspect, based on '" specific, objective facts' H that
the person detained is engaged in criminal activity or a traffic violation. State v. Day,
161 Wn.2d 889,896, 168 P.3d 1265 (2007) (quoting State v. Duncan, 146 Wn.2d 166,
172,43 P.3d 513 (2002)). A stop should be minimally intrusive so that the seizure is
'" reasonably related in scope to the justification for [its] initiation.' H 	Armenta, 134
Wn.2d at 16 (alteration in original) (internal quotation marks omitted) (quoting Kennedy,
107 Wn.2d at 17 (Dolliver, C.J., dissenting)). 	"[T]he scope of a permissible Terry stop
will vary with the facts of each case, but ... it is 'clear' that Terry requires that an
18
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 29916-3-111
State v. Duncan
investigative detention must be temporary, lasting no longer than is necessary to
effectuate the purpose of the stop." State v. Williams, 102 Wn.2d 733, 738,689 P.2d
1065 (1984) (citing Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319,75 L. Ed. 2d
229 (1983)).
While not typically part of a Terry stop, police may use intrusive measures such as
drawn weapons and handcuffs in order to accomplish the investigatory detention under
some circumstances. 	Williams, 102 Wn.2d at 740 n.2. Doing so does not exceed the
scope of detention if a reasonable person in the same circumstances would believe he or
others are in danger. State v. Belieu, 112 Wn.2d 587, 602, 773 P.2d 46 (1989). No hard
and fast rule governs the display or use of force; but several facts may bear on the issue
of reasonableness, including the nature of the crime under investigation, the degree of
suspicion, the physical location of the stop, the time of day, and the reaction of the
suspect to the police. Id. at 600. "The calculus of reasonableness must embody
allowance for the fact that police officers are often forced to make split-second
judgment-in circumstances that are tense, uncertain, and rapidly evolving-about the
amount of force that is necessary in a particular situation." Graham v. Connor, 490 U.S.
386,396-97, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). The court should be reluctant to
second-guess the police officers' determination in the field of how to safely detain a
potentially armed suspect. See Belieu, 112 Wn.2d at 601.
19
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 29916-3-III
State v. Duncan
As already concluded, Officer Ely had a reasonable basis for a Terry stop of Mr.
Duncan's car. Given the nature ofthe crime under investigation, it was reasonable to
conduct a high risk stop. But we need not decide that the level of intrusion was
appropriate for a Terry stop because we are satisfied that the officer quickly acquired
probable cause for arrest. While initiating the stop, Officer Ely received information that
there may be two females in the car, which proved to be the case, leading the officer to be
"pretty sure at that point that we had the right-the right vehicle stopped." RP at 71. The
trial court concluded that ''there was probable cause from the time that Officer Ely saw
the white car and saw the occupant with the red hat." CP at 207. 	We conclude that at a
minimum, there was probable cause once the confirmed presence of the two women was
added to the information that had justified the stop. Mr. Duncan's argument that the stop
was similar in intensity and duration to an arrest fails, where we conclude that the
information available to the officers almost immediately constituted probable cause for
arrest.
II. 	Search "Iricident to Arrest"
Mr. Duncan's second argument on appeal was not raised in the trial court because
it is based on intervening developments in the law.
Mr. Duncan's detention and the seizure of the handgun from his car took place in
July 2009, at a time when controlling Washington case law provided that "[d]uring the
arrest process, including the time immediately subsequent to the suspect's being arrested,
20
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 29916-3-II1
State v. Duncan
handcuffed, and placed in a patrol car, officers should be allowed to search the passenger
compartment of a vehicle for weapons or destructible evidence." State v. Stroud, 106
Wn.2d 144, 152, 720 P.2d 436 (1986), overruled by State v. Valdez, 167 Wn.2d 761, 224
P.3d 751 (2009). While the United States Supreme Court had by that time decided
Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), which limited
searches incident to arrest, Gant still recognized that warrantless automobile searches
incident to arrest were proper under the Fourth Amendment to the United States
Constitution (1) when the arrestee is unsecured and within reaching distance of the
passenger compartment at the time of the search or (2) when it is reasonable to believe
evidence relevant to the crime of arrest might be found in the vehicle. State v. Snapp,
174 Wn.2d 177, 181,275 P.3d 289 (2012).
The hearing on Mr. Duncan's motion to suppress was conducted following Gant,
in February 2011. Written findings and conclusions were entered in February 2012.
Among the trial court's conclusions in denying the motion to suppress was that "the
evidence of the crime of drive-by shooting for which the officers had probable cause to
arrest the defendant is both the spent shell casings and the firearm used in the crime," and
that seizure of that evidence was therefore "permitted under Arizona v. Gant." CP at 207.
Its conclusion relied on the second circumstance recognized by Gant as supporting a
search incident to arrest, referred to by our Supreme Court in Snapp as the Thronton
21
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 29916-3-II1
State v. Duncan
exception (after Thornton v. United States, 541 U.S. 615, 124 S. Ct. 2127, 158 L. Ed. 2d
905 (2004)). Snapp, 174 Wn.2d at 181 & n.l.
But a couple of months later, in April 2012, our Supreme Court decided in Snapp
that the Thornton exception was not an exception to the warrant requirement under article
I, section 7 of the Washington Constitution.
Because Mr. Duncan's appeal was pending when Snapp was decided, Mr. Duncan
is entitled to the benefit of the decision. 	State v. Louthan, 175 Wn.2d 751, 754, 287 P.3d
8 (2012). And although he did not challenge the constitutionality of a search incident to
arrest in the trial court, his circumstances fall within the narrow class of cases in which
issue preservation will not prevent him from raising the issue for the first time on appeal. 4
When we apply Snapp retroactively, the trial court's conclusion that the handgun and
shells were seized in a valid search incident to arrest proves to have been error.5 The
4 In State v. Robinson, 171 Wn.2d 292, 305, 253 P.3d 84 (2011), our Supreme
Court held that "principles of issue preservation do not apply where the following four
conditions are met: (1) a court issues a new controlling constitutional interpretation
material to the defendant's case, (2) that interpretation overrules an existing controlling
interpretation, (3) the new interpretation applies retroactively to the defendant, and (4) the
defendant's trial was completed prior to the new interpretation," pointing out that, "[a]
contrary rule would reward the criminal defendant bringing a meritless motion to
suppress evidence that is clearly barred by binding precedent while punishing the
criminal defendant who, in reliance on that binding precedent, declined to bring the
meritless motion."
5 The State argues that the court's holding in Snapp should be limited to cases in
which the basis for a stop was a minor traffic infraction but nothing in the court's
decision supports such a limitation.
22
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 29916-3-II1
State v. Duncan
principal question presented, then, is whether the officers' actions are defensible on an
alternative basis. A related question is whether the record is sufficiently developed for
this court to consider those alternative justifications for the officers' actions or whether
Mr. Duncan's new argument, implicating new defenses, requires remand. 	Cf. State v.
Robinson, 171 Wn.2d 292,306,253 P.3d 84 (2011) (remanding for suppression hearings
where "neither the petitioners nor the State had the incentive or opportunity to develop
the factual record before the trial court").
In this case, because the State anticipated at the time of the suppression hearing
that the court might find reasonable suspicion for a Terry stop but no probable cause
supporting arrest, it presented evidence bearing on alternative justifications for the
officers' actions. We address the alternative justifications in tum.
Protective Sweep. 	Under the Washington Constitution, a valid investigatory stop
may include a protective sweep of the suspect's vehicle when the search is necessary to
assure officer safety. Kennedy, 107 Wn.2d at 12. The protective sweep must be
objectively reasonable. State v. Larson, 88 Wn. App. 849, 853-54,946 P.2d 1212 (1997).
A protective sweep is a "quick and limited search of premises, incident to an arrest and
conducted to protect the safety of police officers or others. It is narrowly confined to a
cursory visual inspection of those places in which a person might be hiding." Maryland
v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990). Permissible
protective sweeps are not limited to buildings; concerns for officers' personal safety may
23
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 29916-3-II1
State v. Duncan
justify the search of a vehicle in the course of a Terry stop to confirm that no one else is
inside. E.g., United States v. Thomas, 249 F.3d 725 (8th Cir. 2001). A protective sweep
can include opening the door of a vehicle if necessary to see inside. See id.; 3 WAYNE R.
LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 7A(i) (5th
ed. 2012) and cases cited therein.
At the CrR 3.6 hearing, the State presented evidence supporting the alternative of
a protective sweep should the trial court decide that officers lacked probable cause for
arrest. The trial court's conclusion of law 5, which includes factual findings, states:
Once the officers had the three observable passengers secured, they acted
appropriately to clear the vehicle of anyone else hiding in it, given the
appropriate concern for officer safety .... During this process Officer Ely
observed the spent shell casings inside the vehicle on the driver's side floor
as he was standing outside the vehicle, clearly establishing probable cause
to arrest the defendant at that point in time, since the defendant was the
driver of the vehicle.
CP at 207 (emphasis added). Although observed by Officer Ely, the shell casings were
not seized until the car was transported to impound and a warrant was obtained. The
officers' actions fall within the scope of a cursory visual inspection; the trial court did not
err in denying Mr. Duncan's motion to suppress evidence of the shell casings.
Exigent Circumstances. 	The trial court concluded that the warrantless search was
permissible not only as a search incident to arrest but also that the exigent circumstances
exception to the warrant requirement applied. "The rationale behind the exigent
circumstances exception 'is to permit a warrantless search where the circumstances are
24
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 29916-3-111
State v. Duncan
such that obtaining a warrant is not practical because the delay inherent in securing a
warrant would compromise officer safety, facilitate escape or permit the destruction of
evidence.'" 	State v. Smith, 165 Wn.2d 511,517, 199P.3d 386 (2009) (quoting State v.
Audley, 77 Wn. App. 897,907,894 P.2d 1359 (1995)). Our Supreme Court has
identified five circumstances from federal cases "that 'could be termed "exigent'"
circumstances," including'" (1) hot pursuit; (2) fleeing suspect; (3) danger to arresting
officer or to the public; (4) mobility of the vehicle; and (5) mobility or destruction of the
evidence.'" 	State v. Tibbles, 169 Wn.2d 364,370,236 P.3d 885 (2010) (quoting State v.
Counts, 99 Wn.2d 54, 60, 659 P.2d 1087 (1983)). A court must look at the totality of the
circumstances in order to determine whether exigent circumstances support a warrantless
search. Smith, 165 Wn.2d at 518.
The exigent circumstance urged by the State is based on the trial court's finding
that having handcuffed the three passengers and placed them in patrol cars, the officers
did a second protective sweep of the interior of the car "to ensure that [they] were not
going to be towing a car with a handgun inside that could possibly discharge. During the
protective [sweep], officers located a handgun by the front passenger seat, between the
door and the seat." CP at 205. The court concluded that the officers were justified in
frisking the interior of the vehicle for the suspected weapon because "the presence of an
unsecured firearm presented a safety risk to the officers and a danger to anyone in the
25
 	 	 	 	 	 	 	 	 	 	 	 	 	

l~
No. 29916-3-III
State v. Duncan
I area of accidentally discharging while the car was being towed since a car is frequently
J
lifted up and dropped and moved around." CP at 207.
What is lacking is any exigency. The passengers had all been detained in the back
of patrol cars. Four officers were present. The State offers no reason why officers could
not seek a telephonic search warrant and watch over the car in the meantime. '" To find
exigent circumstances based on these bare facts would set the stage for the exigent
circumstances exception to swallow the general warrant requirement. ,,, State v. Swetz,
160 Wn. App. 122, 136-37,247 P.3d 802 (2011) (quoting Tibbles, 169 Wn.2d at 372).
The seizure of the handgun cannot be justified on this basis.6
Open View/Plain View. 	Finally, and for the first time on appeal, the State asserts
the warrantless search was valid under the plain view and/or open view exceptions to the
warrant requirement. "[W]e may affirm a trial court's decision on a different ground if
the record is sufficiently developed to consider the ground fairly." State v. Sondergaard,
86 Wn. App. 656, 657-58, 938 P.2d 351 (1997).
The "open view" exception applies to an officer's observation from a
nonconstitutionally protected area. State v. Seagull, 95 Wn.2d 898, 901-02,632 P.2d 44
(1981). 	Under the open view doctrine when an officer observes evidence from a
6 A further exception to the warrant requirement allows law enforcement to
perform an inventory search in connection with the lawful impoundment of a vehicle.
The State does not advance a justification for lawful impoundment or rely upon the
inventory exception.
I26
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 29916-3-III
State v. Duncan
nonconstitutionally protected area, article I, section 7 is not implicated and the
observation is not a search. Kennedy, 107 Wn.2d at 10. The officer's right to seize the
items observed, however, must be justified by a warrant or valid exception to warrant
requirement, if the items are in a constitutionally protected area.7 Id. at 9-10. The open
view observation is thus not a search at all but may provide evidence supporting probable
cause to constitutionally search; in other words, a search pursuant to a warrant. Swetz,
160 Wn. App. at 135 (quoting State v. Lemus, 103 Wn. App. 94, 102, 11 P.3d 326
(2000».
The plain view doctrine is an exception to the warrant requirement that applies
after the police have intruded into an area where there is a reasonable expectation of
privacy. State v. O'Neill, 148 Wn.2d 564, 582, 62 P.3d 489 (2003). "[T]he 'plain view'
doctrine justifies a seizure only when the officer has lawful 'access' to the seized
contraband under some prior Fourth Amendment justification and when the officer has
probable cause to suspect that the item is connected with criminal activity." State v.
Gibson, 152 Wn. App. 945, 954, 219 P.3d 964 (2009) (citing Illinois v. Andreas, 463
U.S. 765, 771, 103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983». 	If the requirements of the
7 "[I]f an officer, after making a lawful stop, looks into a car from the outside and
sees a weapon or contraband in the car, he has not searched the car. Because there has
been no search, article 1, section 7 is not implicated. Once there is an intrusion into the
constitutionally protected area, article 1, section 7 is implicated and the intrusion must be
justified ifit is made without a warrant." Kennedy, 107 Wn.2d at 10.
27
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 29916-3-111
State v. Duncan
plain view doctrine are satisfied, then the object may be lawfully seized. Kennedy, 107
Wn.2d at 10.
The justification for the intrusion leading to the plain view can be based on a
warrant or on one of the recognized exceptions to the warrant requirement. 	Coolidge v.
New Hampshire, 403 U.S. 443,465,91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). The
extension of the original justification for the intrusion is legitimate only where it is
immediately apparent to the police that they have evidence before them; the "plain view"
doctrine may not be used to extend a general exploratory search from one object to
another until something incriminating at last emerges. Id. at 466.
Here, the justification relied upon by the State for the intrusion leading to plain
view was the initial protective sweep of the car, to make sure that no one was hiding in it.
The unchallenged findings ofthe trial court include its finding that as a part of the initial
protective sweep, "both Officer Ely and Officer Scherzinger opened the passenger door
and observed ... what appeared to be a small caliber handgun." CP at 205. 	We need not
review the record for evidence supporting unchallenged findings, which are verities. But
in support of the adequacy of the record to address this new and alternative justification,
we point out that the finding is supported by Officer Ely's testimony:
A 	Well, we safely detained all the vehicle occupants by initiating a
high-risk stop. And then we did a-basically a clearance of the
vehicle. We walked up to make sure there was no other occupants
hiding in the vehicle. It's all standard practice when doing these
type of stops. And while clearing the vehicle it was evident there
28
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 29916-3-III
State v. Duncan
was aluminum shell casings all over the floorboard and the seat from
what appeared to be a small caliber handgun.
Q 	Did you observe those from outside the vehicle?
A 	From outside the vehicle.
RP at 71. We defer to the trier of fact on issues of credibility and persuasiveness of the
evidence. State v. Thomas, 150 Wn.2d 821,874-75,83 P.3d 970 (2004). The initial
protective sweep by officers was lawful. The gun, having been in plain view in the
course of the sweep, was permissibly seized by the officers.
STATEMENT OF ADDITIONAL GROUNDS
In a pro se statement of additional grounds (SAG), Mr. Duncan raises 15. One
(his detention, allegedly not based on probable cause) was adequately addressed by
counsel and will therefore not be reviewed again. 	We address the remainder in tum.
Alleged Miranda8 Violation. 	Mr. Duncan alleges that the trial court erred by
denying his CrR 3.5 motion to suppress the statements he made to police. He argues that
during the course of being interviewed by officers, he made an unequivocal request for
counsel yet the officer continued to question him.
We review a trial court's rulings following a suppression hearing to determine if
substantial evidence supports the factual findings and whether the findings support the
conclusions of law. State v. Broadaway, 133 Wn.2d 118, 130,942 P.2d 363 (1997). We
review de novo whether the trial court's conclusions of law are properly derived from its
8 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
29
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 29916-3-111
State v. Duncan
findings of fact. State v. Pierce, 169 Wn. App. 533, 544,280 P.3d 1158, review denied,
175 Wn.2d 1025 (2012).
It appears undisputed that Mr. Duncan made a knowing, voluntary, and intelligent
waiver of his rights at the outset of his interview by officers. At some point he asked for
a lawyer. The trial court found that "Chad Duncan did not ask for an attorney until after
he stated that he had no knowledge about a gun in the car or a shooting. At that point all
questioning stopped." CP at 200. Although two officers who witnessed the questioning
had different recollections about whether there was further questioning regarding his
tattoo after his request for a lawyer, the trial court concluded that all relevant questioning
stopped when Mr. Duncan made the request. The fact finder determines the credibility of
witnesses and this court will not review that determination on appeal. State v. Camarillo,
115 Wn.2d 60, 71,794 P.2d 850 (1990). Based on Officer Tarin Miller's testimony there
was substantial evidence to support the trial court's factual findings.
Exculpatory Evidence. 	Mr. Duncan asserts that the State erred in failing to
preserve two pieces of exculpatory evidence: a surveillance tape from a convenience
store where Mr. Duncan claims to have met up with a friend who allegedly borrowed his
car at the time of the shooting and video from the COBAN audio/video unit in Officer
Ely's police cruiser.
Officer Miller attempted to view the convenience store video, but was unable to
get a copy because the equipment could not be accessed without the manager's keys. A
30
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 29916-3-III
State v. Duncan
detective was supposed to have followed up and obtained the tape, which the store
retained for only one week, but he failed to do so.
Officer Ely denied that the COBAN unit in his cruiser activated automatically
when he turned on emergency lights as alleged by Mr. Duncan and asserted that he never
turned the unit on during their encounter. The State's position was that there was never
video from Officer Ely's cruiser that could be produced.
To comport with due process, the prosecution has a duty not only to disclose
material exculpatory evidence, but has a related duty to also preserve the evidence. State
v. Wittenbarger, 124 Wn.2d 467,475,880 P.2d 517 (1994). If the State fails to preserve
material exculpatory evidence, the trial court must dismiss the criminal charges. Id.
Evidence is materially exculpatory if it "possess[es] an exculpatory value that was
apparent before it was destroyed and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available means." Id. (citing
California v. Trombetta, 467 U.S. 479, 489,104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984)).
Simply assuming that the evidence would have made defendant's version of events more
likely is not enough. State v. Uribe Valdez, 158 Wn. App. 626, 629, 241 P.3d 1288
(2010) (citing State v. Copeland, 130 Wn.2d 244,280, 922 P.2d 1304 (1996)).
"Potentially useful" evidence is "evidentiary material of which no more can be
said than that it could have been subjected to tests, the results of which might have
exonerated the defendant." Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333,102
31
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 29916-3-111
State v. Duncan
L. Ed. 2d 281 (1988). If the State fails to preserve potentially useful evidence that is not
material and exculpatory, the State has not violated the defendant's right to due process
unless the defendant can show that the State acted in bad faith. 	Wittenbarger, 124 Wn.2d
at 477 (citing Youngblood, 488 U.S. at 58).
The convenience store video was not lost through the action of the State, although
it might have been lost due to its inaction. Nonetheless, Mr. Duncan does not establish
that the convenience store video was materially exculpatory. The evidence may be
deemed "potentially useful" but Mr. Duncan fails to demonstrate that the police acted in
bad faith in failing to secure the video before it was destroyed.
As to the COBAN video, nothing in the record supports Mr. Duncan's contention
that officers conspired to tum off their video units.
Nondisclosure of Evidence of Time Trials. 	Mr. Duncan argues that he was
unfairly surprised at trial with evidence of time trials that officers had prepared to address
events following the shooting, including his claim that he recovered his loaned car from a
friend at the convenience store. He argues, in error, that he was denied a continuance to
address the new evidence. The record reveals that after his lawyer objected to the
evidence, the trial court allowed the defense the weekend to conduct its own time trials
and ordered the officers involved in the State's time trials to be at defense counsel's
disposal.
32
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 29916-3-II1
State v. Duncan
Mr. Duncan makes a passing argument that the State's evidence of its time trials
violated the confrontation clause because only one of the officers participating in the time
trials testified. The officer did not rely on or present any testimonial statement by a
nontestifying witness, however. The confrontation clause was not implicated.
Witnesses Heather Pyles, Sergeant Kelly Willard, and Chief Adam Diaz. 	Mr.
Duncan complains about the testimony of three State witnesses, couching his arguments
in "confrontation clause" terms although none appears to raise an issue under the
confrontation clause.
His complaint about Heather Pyles, a DNA expert, is based on her late disclosure
by the State, which was a subject matter of pretrial motions. The trial court allowed Ms.
Pyle to testify because, while she was not timely identified, the defense had had the DNA
evidence about which she testified for over a year prior to trial and therefore ample time
to investigate. The trial court did not abuse its discretion in allowing Ms. Pyle to testify.
Mr. Duncan takes issue with the testimony of Sergeant Kelly Willard for reasons
that are not supported by the record; he is evidently confused about the sergeant's role
and the basis for his lawyer's objection to the sergeant's testimony.
Mr. Duncan finally takes issue with the fact that Chief of Police Adam Diaz
arrived to testify to Mr. Duncan's predicate offense to the firearm charge in uniform.
From the record it appears that the police chief was not ultimately required to testify
because Mr. Duncan stipulated to the conviction. There can be no error.
33
 	 	 	 	 	 	 	 	 	 	 	 	 	

,
i
I
I No. 29916-3-111
I
I 	State v. Duncan
I! 	Prosecutorial Misconduct. 	Mr. Duncan complains that the prosecutor described
I
I him as recalcitrant, which he has determined means someone who kicks with heels and,
according to Mr. Duncan, implied that he is gay, cowardly, and the type that would stab
you with stiletto heels and not a knife.
"Recalcitrant" means "obstinately defiant of authority or restraint: stubbornly
disobedient." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1893 (1993). The
prosecutor's use of the word to describe Mr. Duncan was neither improper nor
prejudicial.
Missing Witness Instruction. 	The trial court was persuaded by the State to give a
~~missing witness" instruction. A missing witness instruction informs the jury that it may
infer that a person's testimony would have been unfavorable to a party if that person was
available to a specific party, could have been a witness at trial on an important issue, it
appears to be in the best interests of the party to call that person as a witness, the party
does not satisfactorily explain why it did not call the witness, and the inference that the
person's testimony would have been unfavorable to the party is reasonable under all the
circurristances. 	11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL 5.20, at 177 (3d ed. 2008). If a witness's absence can be
satisfactorily explained, a missing witness instruction should not be given. State v. Blair,
117 Wn.2d 479, 489,816 P.2d 718 (1991).
34
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 29916-3-III
State v. Duncan
Mr. Duncan contends that the prosecutor slipped the instruction into its proposed
instructions after the trial court had refused to give it. The record does not reveal any
impropriety by the State but only its success in persuading the trial court to reconsider.
We review a trial court's decision whether to give a particular instruction for
abuse of discretion. State v. Winings, 126 Wn. App. 75, 86, 107 P.3d 141 (2005). The
only explanation offered for the absence of the witness was Mr. Duncan's. The court
clearly felt that Mr. Duncan's self-serving testimony was an insufficient explanation. We
find no abuse of discretion.
Drive-by Shooting Instruction. 	Mr. Duncan makes a confusing argument that the
trial court should have given the jury instructions on second degree assault and drive-by
shooting as lesser included crimes to the State's charges of first degree assault. The court
did instruct the jury on the lesser degree crime of second degree assault. CP at 135
(Instruction 16).
Mr. Duncan appears to misapprehend an argument by his lawyer, relying on State
v. Danforth, 97 Wn.2d 255,258, 643 P.2d 882 (1982), that where a special statute
punishes the same conduct that is punished under a general statute, the special statute
applies and the accused can be charged only under that statute to the exclusion of the
general. A drive-by shooting and a first degree assault are not the same crime. The two
have different victims. A victim of a drive-by is the general public. See State v. Rodgers,
146 Wn.2d 55, 62, 43 P.3d 1 (2002).
35
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 299l6-3-III
State v. Duncan
The trial court found that it was the State's role to select the crimes to be charged
and theory to pursue. It did not abuse its discretion.
Insufficient Evidence. 	Mr. Duncan raises two "insufficient evidence" claims, each
of which lacks merit. In reviewing a claim of insufficient evidence, the court views
evidence in the light most favorable to the State in order to determine whether any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. State v. Brockob, 159 Wn.2d 311,336,150 P.3d 59 (2006). An
insufficient evidence claim admits the truth of the evidence as well as all reasonable
inferences that can be drawn from the evidence. State v. Salinas, 119 Wn.2d 192, 201,
829 P .2d. 1068 (1992). Circumstantial evidence and direct evidence are equally reliable.
State v. Delmarter, 94 Wn.2d 634,638,618 P.2d 99 (1980).
Mr. Duncan's first argument of insufficient evidence is that he was not given
adequate notice of the loss of his right to possess firearms at the time he was sentenced
for his predicate juvenile offense. Typically, ignorance of the law is not a defense. State
v. Minor, 162 Wn.2d 796,802, 174 P.3d 1162 (2008). However, the trial court must give
oral and written notice that a defendant is not allowed to possess a firearm. Id. at 803;
RCW 9.41.047(1).
The trial court reviewed Mr. Duncan's guilty plea to the offense, finding that the
paragraph relating to firearms was checked, although not initialed. Mr. Duncan had
signed, indicating that his lawyer had fully explained the plea and had discussed all of the
36
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 29916-3-III
State v. Duncan
paragraphs. From this, the court concluded that Mr. Duncan received written notice
regarding the fact he was not to possess firearms.
As for oral notice, the trial court listened to a recording of the sentencing. While
the court expressed concern about the quality of the recording, it was able to discern th~t
some mention of firearms was made during the court's statements. The trial court
concluded that the sentencing judge substantially complied with RCW 9.41.047(1). Its
conclusion was supported by the evidence.
With respect to his conviction of assault, Mr. Duncan argues that there was
insufficient evidence that he acted with the specific intent required for first degree assault
because it was impossible to see through the window into which shots were fired and he
could not intend to inflict great bodily harm without knowing that someone was in the
line of fire. 	Intent is "the objective or purpose to accomplish a result which constitutes a
crime." RCW 9A.08.01O(1)(a). The defendant's "'specific criminal intent ... may be
inferred from the conduct where it is plainly indicated as a matter of logical probability.'"
State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004) (quoting De/marter, 94
Wn.2d at 638).
Here, the evidence showed that someone drove by 316 Cherry Avenue and shot at
the house. From this evidence a rational jury could infer the intent to hurt or kill as a
matter of logical probability.
37
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 29916-3-II1
State v. Duncan
Suppression of Gang Evidence. 	Before trial, the State's motions in limine put the
court and the defense on notice of its intent to offer ER 404(b) gang evidence. Gang
evidence is admissible in a criminal trial if there is a nexus between the crime and gang
membership. State v. Scott, 151 Wn. App. 520,521,213 PJd 71 (2009). 	Such evidence
is inherently prejudicial, however, and is measured under the standard of ER 404(b). Id.
at 526.
It was not until the discussion of jury instructions at the conclusion of trial that Mr.
Duncan's lawyer raised his beliefthat the issue of gang evidence had not been resolved
pretrial, with the other issues addressed by motions in limine. Because significant gang
evidence had been offered, he moved for a mistrial. The motion was denied.
While Mr. Duncan's lawyer was correct that the court did not rule on the
admission of gang evidence under ER 404(b), Mr. Duncan does not demonstrate that he
objected when the evidence was offered. A party must object while the trial court has the
opportunity to correct the problem. Mr. Duncan's objection was raised too late.
Judicial Bias. 	Mr. Duncan claims that the trial court was biased. A party claiming
bias or prejudice must support the claim with evidence of the trial court's actual or
potential bias. State v. Gamble, 168 Wn.2d 161, 187-88,225 P.3d 973 (2010). "Judicial
rulings alone almost never constitute a valid showing of bias." In re Pers. Restraint of
Davis, 152 Wn.2d 647,692, 101 PJd 1 (2004) (citing Liteky V. United States, 510 U.S.
540,555, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994». Mr. Duncan's appearance of
38
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 299 I 6-3-II1
State v. Duncan
fairness or judicial bias claim necessarily fails to the extent it is supported solely by the
trial court's adverse rulings.
Mr. Duncan also alleges that the trial court told his mother that the only way to
solve the gang problem was with long sentences. Since no such statement can be found
in the record, we lack an insufficient basis to review it for any error or abuse. RAP
9.2(b).
We affirm Mr. Duncan's conviction and remand the matter to the trial court solely
for the purpose of striking the term of community custody.
Sid~'/t-
WE CONCUR:
Korsmo, C.J.
Brown, 1.
39