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        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                          0"»
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STATE OF WASHINGTON,
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                                                   No. 75030-5-1                   en         —- £>Ji
                      Respondent,                                                 a*             Dm

                                                   DIVISION ONE                   3:
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                                                                                  KO
              v.                                                                              OM

                                                                                  "^1         62
ASKIA ROMMUL WILLIAMS,                             UNPUBLISHED OPINION

                     Appellant.                    FILED: June 6, 2016



       Becker, J. —Appellant was carrying a gun and talking to himself on a

street near a community recreation center. When an officer stopped him and

asked for his name, appellant spontaneously volunteered the information that he

was a convicted felon. This led to his conviction for unlawful possession of a

firearm. Appellant contends the initial stop was an unlawful seizure justifying

suppression of the officer's discovery of his felony record. Because appellant

freely consented to stop and talk with the officer, the initial stop was not a

seizure. The trial court properly denied the motion to suppress.

       On an October afternoon in 2015, the Pierce County Sheriff's Department

received a call reporting that a man with a gun on his hip was walking around

and talking to himself across the street from a community recreation center.

Deputy Kohl Stewart responded, aware of the possibility that the man might have
No. 75030-5-1/2


mental problems. Stewart arrived at the scene and saw the man, who was later

identified as appellant Askia Williams. Stewart made a u-turn, drove his patrol

car onto a nearby sidewalk, parked it, and approached Williams on foot. Williams

put his hands on his head without being asked to do so.

       Stewart testified that he did not draw his own gun or issue commands to

Williams. "I let him know Washington State is an open carry state, so I had no

problem with him having a gun on his hip." Stewart told Williams he could put his

hands down to his side. He said Williams looked around and made a remark that

a woman passerby was his ex-wife who was in the Federal Bureau of

Investigation. Stewart asked Williams for his name. Williams stated his name

and spontaneously disclosed that he was a convicted felon and that his gun was

a black powder revolver.

       Stewart ran a record check and confirmed that Williams was a convicted

felon with a conviction for unlawfully possessing a firearm. He told Williams to

place his hands behind his back. Williams was compliant. Stewart handcuffed

Williams and took the handgun from him. Stewart again consulted records to

confirm the felony record. He arrested Williams for unlawful possession of a

firearm.

       The State charged Williams with the crime of unlawful possession of a

firearm in the second degree. Williams made motions under CrR 3.5 and CrR3.6

to suppress certain statements he made during his interaction with Stewart.

Stewart and Williams testified at an evidentiary hearing. The trial court denied

both motions. A jury convicted Williams as charged. This appeal followed.
No. 75030-5-1/3



       Williams contends he was illegally seized by the time Stewart asked him

for his name and that as a result, his statement identifying himself as a convicted

felon, and all other incriminating evidence discovered thereafter, should have

been suppressed.

       Whether police have seized a person is a mixed question of law and fact.

The resolution by a trial court of differing accounts of the circumstances

surrounding the encounter are factual findings entitled to great deference, but the

ultimate determination of whether those facts constitute a seizure is one of law

and is reviewed de novo. State v. Harrington. 167 Wn.2d 656, 662, 222 P3d 92

(2009). If police unconstitutionally seize an individual prior to arrest, the

exclusionary rule calls for suppression of evidence obtained via the government's

illegality. Harrington, 167 Wn.2d at 664.

       The trial court is required to enter written findings and conclusions after

conducting an evidentiary hearing on a CrR 3.6 motion to suppress. CrR 3.6(b).

In this case, the court first made a written ruling denying Williams' motion to

suppress under CrR 3.5, finding that at the time Williams supplied his name and

date of birth and the fact that he was a convicted felon, he was not under arrest

and the statements were spontaneously made. Shortly thereafter, Williams

moved to suppress under CrR3.6. He briefly argued that another ground for

suppressing the challenged statements was that he was unlawfully detained.

The trial court denied this motion as well, stating that it would stand by the CrR

3.5 ruling. Because there is no substantive dispute about the facts of the

encounter, the lack of findings specifically designated as CrR 3.6 findings does
No. 75030-5-1/4


not hinder appellate review and Williams does not raise lack of findings as an

issue.


         Not every encounter between a law enforcement officer and a citizen is a

seizure. United States v. Mendenhall. 446 U.S. 544, 551, 100 S. Ct. 1870, 64 L.

Ed. 2d 497 (1980). When a citizen freely converses with a police officer, the

encounter is permissive. The officer's merely asking questions or requesting

identification does not necessarily elevate a consensual encounter into a seizure.

State v. Barnes. 96 Wn. App. 217, 222, 978 P.2d 1131 (1999). An encounter will

not lose its consensual nature unless the police convey that compliance with their

requests is required. Florida v. Bostick. 501 U.S. 429, 435, 111 S. Ct. 2382, 115

L.Ed. 2d 389 (1991).

         An encounter that begins as a consensual social contact may escalate

into a seizure. That is what happened in Harrington, 167 Wn.2d 656, and that is

what Williams claims happened here. In Harrington, an officer noticed Dustin

Harrington walking on a sidewalk late at night. The officer drove past, made a u-

turn, parked his patrol car, and approached Harrington, who was then walking

towards the officer. The officer did not activate his emergency lights or siren, his

patrol car was not in sight, and the officer did not in any way block Harrington's

freedom of movement. They began a consensual conversation. Up to this point,

the encounter was not a seizure, even though the officer did increase the level of

intrusion by asking Harrington, who seemed nervous, to keep his hands out of

his pockets. Harrington. 167 Wn.2d at 660, 655.
No. 75030-5-1/5


       The encounter was escalated to a seizure by the next two things that

happened. Another officer, who happened to be driving by, made a u-turn,

stopped, parked his car in the northbound traffic lane, and stood about eight feet

away from Harrington. Meanwhile, the first officer asked Harrington for

permission to pat him down. The pat down led to discovery of a drug pipe and to

drug charges against Harrington, who moved to suppress the evidence on the

basis of illegal seizure. The Supreme Court held the motion to suppress should

have been granted. The pat-down request, combined with the show of force

created by the arrival of the second officer, was a seizure undertaken without

specific and articulable facts that would create an objectively reasonable belief

that Harrington was armed and presently dangerous. Harrington, 167 Wn.2d at

669.


       This case is not like Harrington. Although Williams testified that he was

surrounded by four or five officers at the beginning of the encounter, the trial

court did not find that testimony credible. Stewart is the only officer whose

presence is disclosed by the record and the trial court's findings. And by the time

Stewart put his hands on Williams, Williams had already spontaneously revealed

his prior conviction, which supplied a legal basis for the seizure.

       Harrington explains that police actions likely resulting in seizure include

the threatening presence of several officers, the display of a weapon by an

officer, some physical touching of the person by the officer, or the use of

language or tone of voice indicating that the compliance with the officer's request

might be compelled. None of those police actions were present here. Stewart
No. 75030-5-1/6


did not use flashing lights or a siren, he did not display his weapon, he

acknowledged to Williams that carrying a weapon was not illegal, he gave no

commands, and he did not touch Williams or box him in so that he could not

move away. It was Williams' burden to prove that a seizure occurred in violation

of constitutional protections against illegal search and seizure. Harrington, 167

Wn.2d at 664. Williams has not met that burden.

       Williams also argues that Stewart acted illegally while he investigated the

firearm violation. After placing Williams in handcuffs, Stewart detained Williams

while he once again consulted records to confirm the prior felony. Nothing in the

record suggests that any part of the detention was unreasonable in length. While

waiting for the results of the records check, Stewart secured the revolver.

Williams said he had a receipt for it in his pocket. With Williams' consent,

Stewart went through his pockets and found a receipt from the pawn shop where

Williams had recently purchased the gun.

       Williams contends that even if the seizure could be justified as an

investigative detention, the receipt should have been suppressed because the

search of his pockets exceeded the scope of a frisk for officer safety. This

argument fails. The search of the pockets was done with Williams' consent.

Voluntary consent is a valid exception to the rule that ordinarily prohibits

warrantless searches. State v. Reichenbach. 153Wn.2d 126, 131-32, 101 P.3d

80 (2004).

       We conclude the trial court did not err by denying the motion to suppress.




                                          6
No. 75030-5-1/7


       Williams also alleges prosecutorial misconduct in argument. The crime of

second degree unlawful possession of a firearm, RCW 9.41.040, includes a

judicially-imposed knowledge element. State v. Anderson. 141 Wn.2d 357, 363-

64, 5 P.3d 1247 (2000) (jury instruction should have included knowledge element

when defendant claimed he did not know the handgun was in the car). Here, the

to-convict instruction properly informed the jury that the State had the burden of

proving that Williams "knowingly had a firearm in his possession or control." The

jury was instructed that a "firearm" is a "weapon or device from which a projectile

may be fired by an explosive such as gunpowder."

       Williams' trial theory was that he did not know the object he was carrying

on the day in question was a firearm. He testified that he believed that the item

he purchased at the pawn shop was a nonfunctional replica of an antique

revolver from the Civil War era, loaded with synthetic materials that simulated

ammunition. The State contradicted his testimony with evidence that the gun

was loaded and did properly fire when tested at a range. On appeal, Williams

contends the prosecutor's rebuttal argument implied there was no mens rea

element to the crime.


       "A prosecuting attorney commits misconduct by misstating the law." State

v. Allen. 182 Wn.2d 364, 373, 341 P.3d 268 (2015). If a prosecutor makes an

improper argument and the defendant timely objects, this court reviews to

determine whether the prosecutor's misconduct resulted in prejudice that had a

substantial likelihood of affecting the jury's verdict. Allen. 182 Wn.2d at 375.
No. 75030-5-1/8


       The prosecutor's initial closing argument directed the jury to the elements

of the crime as set forth in the to-convict instruction. The State discussed the

evidence and emphasized that the dispute involved the knowledge element. "Did

the defendant know it was a firearm?" In his closing, Williams argued that the

evidence was insufficient to prove he knew the weapon he was carrying was

capable of being fired. He claimed that the salesperson's act of selling the pistol

without running a background check misled him into believing it was an item

felons could possess. He pointed out the lack of evidence that the gun had been

fired during the two weeks before Williams was arrested.

       The prosecutor began rebuttal by characterizing the defense argument as

a collection of red herrings.

       What does a background check have anything to do with whether
       defendant knowingly had a firearm or not? Who cares. Defendant
       could have purchased a firearm illegally.

Williams objected, "That's not in evidence." The court overruled the objection.

The prosecutor continued:

       What is before you is that the defendant bought a gun, a firearm.
       Antique, so what. Antique firearms, as I'm sure you're aware using
       your own common sense and life experiences know that they still
       go bang and they shoot projectiles.
             Replica of a Civil War piece. So what. It could be a black
       powder muzzle loader that still went bang and shot a projectile, and
       it would still be a firearm.
              October 11 through the 25th did the gun fire? Who cares.
       What's before you is not whether the firearm that the defendant had
       that he used it and fired it. What's before you is that the defendant
       had a firearm. Period.
No. 75030-5-1/9


The defendant objected that the prosecutor had misstated the law. Before the

trial court ruled on the objection, the prosecutor said, "Your Honor, I'll rephrase."

The prosecutor continued by referring again to the elements instruction. He

argued there could be no reasonable doubt that Williams knew he had an

operable firearm when the evidence showed he had loaded it with four rounds.

       The statements to which Williams objected did not misstate the mens rea

requirement of the crime. There is nothing in the prosecutor's argument that

would mislead the jury into thinking the State did not have to prove knowledge.

As the arguments on both sides recognized, the central issue in dispute was

whether Williams knew the revolver was a functioning weapon, as opposed to a

nonfunctioning replica of an antique firearm. Williams has not demonstrated

prosecutorial misconduct.

       In a statement of additional grounds, Williams contends that the State

tampered with the gun and ammunition evidence, that continuances violated his

right to a speedy trial, and that the court improperly denied his request for

substitute counsel. We do not address these issues, either because the

statement does not adequately inform us as to the nature and occurrence of the

alleged errors or because they involve facts or evidence not in the record. RAP

10.10; see State v. Calvin. 176 Wn. App. 1, 26, 302 P.3d 509, 316 P.3d 496

(2013), review granted in part on other grounds and remanded. 183 Wn.2d 1013,

353 P3d 640 (2015).
No. 75030-5-1/10


      Affirmed.




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WE CONCUR:




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