State Of Washington, Respondent V. Edward Bernard Warner, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 72639-1-I

Respondent, DIVISION ONE

V.

EDWARD BERNARD WARNER, UNPUBLISHED OPINION

Appellant. FILED: February 29, 2016

LEACH, J. — A jury convicted Edward Warner of four counts of second
degree unlawful possession of a firearm. He appeals, challenging the sufficiency
of the evidence to prove that he actually or constructively possessed the
firearms, the adequacy of the trial court's efforts to accommodate his hearing
impairment, and the effectiveness of his trial counsel in ensuring that he had an
adequate accommodation. Finding no error, we affirm.

FACTS

In the fall of 2013, Adult Protective Services informed Bellingham police
that a man residing with an elderly woman named Wendy Christiansen
possessed guns and that Christiansen was afraid.

On October 2, 2013, Bellingham Police Detective Jana Bouzek went to
Christiansen’s residence “for a welfare check.” During her visit, Detective

Bouzek spoke to resident Edward Warner and asked if he had any guns in the

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house. 	Warner said "yes, he had a .22 target shooting gun" as well as some
other guns "in another room in the house." 	Unaware that Warner had a criminal
record, Bouzek did not arrest Warner. 	Police later learned that Warner was a
convicted felon and ineligible to possess firearms.
On October 22, 2013, police executed a search warrant at Christiansen's
residence. 	They found a .44 Magnum pistol, a .357 Smith and Wesson pistol, a
.22 Unique pistol, a Winchester rifle, and a 12-gauge Browning shotgun in a back
bedroom closet. 	They also found a "St. Francis" reusable bag and a prescription
pill bottle bearing Warner's name next to the guns. 	The State charged Warner
with five counts of second degree unlawful possession of a firearm.
At trial, Bellingham police officers Jana Bouzek, Kyle Nelson, and Josh
Danke testified to the facts surrounding the welfare check and the search that
produced the firearms.
Christiansen testified that she met Warner through a mutual friend. 	In the
fall of 2013, while recovering from a surgery at St. Francis Recovery House,
Warner asked 	her 	if he 	could 	stay at 	her 	house temporarily. 	Christiansen
agreed, and Warner moved in. 	Although his stay was supposed to be temporary,
Warner continued to live with Christiansen a year later.
Christiansen testified that Warner "had some [guns] in his truck that he
wanted to put in my house so they wouldn't rust." Although she did not like guns

No. 72639-1-1/3
and had never owned any, Christiansen allowed Warner to put the guns in a
back bedroom used for storage. 	When asked if she actually saw Warner "in
possession of the guns" when he and his friend brought them into the house,
Christiansen said, "Yes." 	Christiansen also testified that she told a girlfriend she
was concerned about Warner's guns.
Defense 	investigator 	Seth 	Parent 	testified 	that 	Christiansen 	told 	him
Warner put the guns in the back room to keep them from rusting. 	She also told
Parent she could not remember whether Warner ever possessed or brought any
guns into her house, but Warner was present during that interview.
At the close of the evidence, the parties stipulated that Warner had a 2012
felony conviction and was ineligible to possess firearms. 	They further stipulated
that four of the guns found 	at Christiansen's residence met the definition of
"firearm" in the jury instructions.
The court dismissed one count, and the jury convicted Warner of the other
four. 	He appeals.
DECISION
Warner first contends the record contains insufficient evidence for the jury
to find, beyond a reasonable doubt, that he actually or constructively possessed
the firearms. 	He claims the State "did not offer evidence based on anything more
than an assumption that Mr. Warner's presence in the same house as the seized
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firearms demonstrated that he exercised dominion and control over them." 	We
disagree.
Sufficient evidence supports a 	conviction if, 	viewing the evidence and
reasonable 	inferences therefrom 	in a 	light most favorable 	to the 	State, 	any
rational 	trier 	of 	fact 	could 	find 	the 	crime's 	essential 	elements 	beyond 	a
reasonable doubt.1 	To convict Warner of second degree unlawful possession of
a firearm, the jury had to find beyond a reasonable doubt that he knowingly had a
firearm 	in his 	possession or control and 	had 	previously been convicted of a
felony. 	The court's instructions defined possession and control as follows:
Possession means having a firearm in one's custody or control. It
may be either actual or constructive. 	Actual possession occurs
when 	the 	item 	is 	in the actual 	physical 	custody of the 	person
charged with possession. 	Constructive possession occurs when
there is no actual physical possession but there is dominion and
control over the item.
Proximity alone without proof of dominion and control is insufficient
to establish constructive possession. 	Dominion and control need
not be exclusive to support a finding of constructive possession.
In deciding whether the defendant had dominion and control over
an item, you are to consider all the relevant circumstances in the
case. 	Factors 	that 	you 	may 	consider, 	among 	others, 	include
whether the defendant had the immediate ability to 	take actual
possession of the item, whether the defendant had the capacity to
exclude 	others 	from 	possession 	of 	the 	item, 	and 	whether the
defendant had dominion and control over the premises where the
item 	was 	located. 	No 	single 	one of these factors 	necessarily
controls your decision.
1 State v. Condon, 182 Wn.2d 307, 314, 343 P.3d 357 (2015).
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No. 72639-1-1/5
(Emphasis added.)
Viewed in a light most favorable to the State, the record includes sufficient
evidence 	for 	the 	jury 	to 	find 	that Warner 	actually 	possessed 	the 	firearms.
Christiansen saw Warner physically move the guns from his truck to the storage
location in the back of her house. 	Warner did this after asking for permission to
move guns "he had ... in his truck." 	(Emphasis added.) 	Warner later admitted
to Officer Bouzek that the guns in the back bedroom were his. 	Contrary to
Warner's 	assertions, 	this 	evidence 	demonstrated 	more 	than 	an 	innocent
momentary handling of the guns. 	Warner's movement of the guns from his truck
in order to properly maintain them, together with his admission of ownership,
demonstrated that his possession was more than innocent momentary handling.
A reasonable juror could find that his handling of the guns amounted to actual
possession.
Sufficient 	evidence 	also 	supports 	a 	finding 	that 	Warner 	exercised
dominion and control over, and therefore constructive possession of, the guns.
Only Warner and Christiansen lived in her home during the period in question.
Christiansen had never owned or possessed a gun. As previously noted, Warner
asked Christiansen for permission to move the guns from his truck to her house
to keep them from rusting. 	Warner then moved the guns from his truck to the
back bedroom of Christiansen's home. 	Officer Bouzek testified that during the

No. 72639-1-1/6
welfare check Warner told him he had a ".22 target shooting gun" and other guns
in 	another 	room. 	Officers 	executing 	the 	search 	warrant 	found 	Warner's
prescription bottle and hospital bag next to the guns. 	Viewed in a light most
favorable to the State, this evidence supports a finding that Warner constructively
possessed the guns.
Warner next contends that the trial court denied him due process and his
right to 	appear and defend 	because "no accommodation was provided ... to
ensure 	that 	[he] 	could 	hear 	'100% 	of 	the 	proceedings,' 	as 	due 	process
demands." 	After Warner filed his opening brief, the parties appeared in superior
court to 	settle the 	record. 	The 	trial 	court found 	that 	contrary to 	Warner's
assertions 	in 	his 	opening 	brief, 	the 	court 	provided 	him 	a 	hearing 	device
throughout the trial. 	In his reply brief, Warner acknowledges the court's finding
but points to other findings indicating that he still had some difficulty hearing and
did 	not use the device consistently. 	Warner concludes, "The court-provided
accommodation was therefore inadequate to ensure that [he] could hear '100%
of the proceedings,' as due process demands." 	This claim fails 	for several
reasons.
First, 	Warner 	raises 	his 	claim 	that 	the 	hearing 	accommodation 	was
constitutionally 	inadequate for 	the first 	time 	on 	appeal. 	Although 	Warner's
counsel stated several times that Warner needed witnesses to speak directly into

No. 72639-1-1/7
the microphone "so it's probably a little bit clearer," Warner concedes his counsel
"never stated that the 	provided listening device 	was 	inadequate or was 	not
functioning 	properly for his client." 	Despite this concession and despite the
State's argument that the issue cannot be raised for the first time on appeal
under RAP 2.5(a), Warner fails to offer any basis for reviewing this claim for the
first time on appeal. 	He has the burden to do so, 	and that burden includes
demonstrating that the alleged error had practical and identifiable consequences
in his trial.2 Warner has not met that burden.
Second, our review of the record indicates that any problems with the
hearing device did not have practical and identifiable consequences in Warner's
trial. 	Except for occasional problems with witnesses or the court not speaking
directly into the microphone, the record indicates that Warner had no trouble
hearing. 	For example, 	when the 	court addressed 	him, 	Warner 	responded
immediately and appropriately. 	On the few occasions when defense counsel
asked a witness or the court to speak more directly into the microphone, the
absence 	of further 	complaints from Warner 	indicates 	that 	the 	problem was
2 State v. McFarland. 127 Wn.2d 322, 333, 899 P.2d 1251 (1995) ("The
defendant must identify a constitutional error and show how, in the context of the
trial, the alleged error actually affected the defendant's rights; it is this showing of
actual 	prejudice that makes the error 'manifest', allowing appellate review.");
State v. Lynn. 67 Wn. App. 339, 345, 835 P.2d 251 (1992) ("Essential to this
determination is a plausible showing by the defendant that the asserted error had
practical and identifiable consequences in the trial of the case.").

No. 72639-1-1/8
resolved.3 	And while the court recalled that Warner "at times didn't use [the
court-provided hearing device] and found it difficult to use," nothing in the record
supports an inference that any intermittent use of or difficulties operating the
device resulted in Warner being unable to hear the proceedings. 	Warner fails to
demonstrate 	the 	inadequacy 	of 	his 	hearing 	accommodation 	or 	that 	any
inadequacy prejudiced his defense.
Alternatively, 	Warner 	argues 	that 	his 	counsel 	provided 	ineffective
assistance by failing to request a more effective accommodation for his hearing
impairment. 	But to prevail on that claim, Warner must demonstrate both deficient
performance and prejudice, i.e., a reasonable probability that but for counsel's
omission, the outcome of the proceeding would have been different.4 	For the
reasons discussed above, he has not met that burden.
3See In re Marriage of Olson. 69 Wn. App. 621, 624, 850 P.2d 527 (1993)
("Following his requests for the witness to speak louder, Mr. Olson was silent,
suggesting that the witness' 	modified voice level allowed 	Mr. Olson to 	hear.
Never 	did 	Mr. 	Olson 	indicate 	a 	need 	for 	additional 	help 	in 	hearing 	the
proceedings, nor did he state that although the witness was speaking louder, he
still could not hear.").
4 McFarland. 127 Wn.2d at 334-35.
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No. 72639-1-1/9
Affirmed.
Leach, 1.
Specimen C.J.
appelarik &
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