                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                        February 6, 2019

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 49601-1-II
                                                                   consolidated with
                               Respondent,                          No. 49633-0-II

        v.
                                                             UNPUBLISHED OPINION
 MIGUEL A. TRUJEQUE-MAGANA, aka
 JORGE RICARDO GONGORA-CHI,

                               Appellant.


 STATE OF WASHINGTON,

                               Respondent,

        v.

 LUCIANO MOLINA RIOS,

                               Appellant.


       MAXA, C.J. – In a consolidated case, Miguel Trujeque-Magana and Luciano Molina Rios

appeal their convictions of multiple drug and firearm offenses. The convictions arose out of an

investigative traffic stop during which officers found a large amount of heroin in a purse

belonging to Trujeque-Magana’s passenger, Juanna Santiago-Santos, and a subsequent search of

an apartment leased to Trujeque-Magana and Molina Rios that revealed cocaine,

methamphetamine, several handguns, and cash. The stop occurred after officers observed
No. 49601-1-II / 49633-0-II


Molina Rios and Trujeque-Magana engage in activities that they believed were consistent with

trying to set up a drug purchase.

        We hold that (1) the trial court erred in failing to enter written findings of fact and

conclusions of law after denying a motion to suppress evidence obtained because of the

investigative stop, but the error is harmless because the court gave a detailed oral ruling; (2) the

trial court did not err in denying the suppression motion because officers had reasonable

suspicion to conduct an investigative stop and Santiago-Santos consented to a search of her

purse; (3) the State presented sufficient evidence to prove that both Trujeque-Magana and

Molina Rios were accomplices to Santiago-Santos’s possession; (4) the State presented sufficient

evidence to prove that Trujeque-Magana constructively possessed the cocaine and firearms in the

apartment; (5) the State presented sufficient evidence to prove that both Trujeque-Magana and

Molina Rios each were armed with two firearms for purposes of sentencing enhancements for

possession of cocaine and methamphetamine; (6) the trial court did not err in denying Trujeque-

Magana’s motion to dismiss based on the failure to disclose evidence because the evidence was

not exculpatory; (7) the trial court did not err in ruling that the State was not required to disclose

the identity of the confidential informant (CI) who assisted law enforcement; (8) the trial court

did not abuse its discretion in admitting the officers’ opinion testimony; (9) RCW 9.41.171(3)

and RCW 9.41.175, the statutes governing the offense of alien in possession of a firearm, do not

violate equal protection under the facts of this case; (10) the trial court did not err in ruling that

several of Trujeque-Magana’s convictions did not constitute the same criminal conduct; (11) the

trial court did not err in applying the double penalty provisions of RCW 69.50.435(1); and (12)

the criminal filing fee imposed on Molina Rios as a mandatory legal financial obligation (LFO)

must be stricken.




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No. 49601-1-II / 49633-0-II


        Accordingly, we affirm Trujeque-Magana’s and Molina Rios’s convictions and

sentences, but we remand for the trial court to strike the criminal filing fee imposed on Molina

Rios and amend his judgment and sentence.

                                              FACTS

Surveillance of Molina Rios

        In October 2015, Oregon law enforcement received information from a CI that a person,

later identified as Molina Rios, was selling drugs. Oregon officers, including Detective Joshua

Zwick, Deputy Kevin Jones, and Deputy Matt Ferguson, and Vancouver officers, including

Detective Shane Hall, began an investigation. Working with the CI, they conducted two

controlled buys from Molina Rios at his apartment in Clark County. Trujeque-Magana initially

was not involved in this investigation.

        The CI later told officers that Molina Rios was going to the Seattle area to obtain drugs.

On November 4, Jones and Ferguson followed a gray Scion that they recognized as Molina

Rios’s car to the Everett area. Jones and Ferguson were in separate vehicles. Molina Rios went

to a train station parking lot and parked and re-parked in different spaces, but did not get out of

his car. While he was there, a person walked up to the car and then left. Molina Rios then drove

to a strip mall and parked. In the parking lot, Molina Rios met up with two people, later

identified as Trujeque-Magana and Santiago-Santos, who were in a white Honda. They all went

in to a restaurant.

        When they left the restaurant, Molina Rios and Trujeque-Magana got into the same car

and sat together for a long period of time. At first they were talking on their cell phones. Then

they had their heads down toward the center console area. Although Jones could not see any

money, he believed based on his training and experience that they were counting money. After




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No. 49601-1-II / 49633-0-II


that, Molina Rios and Trujeque-Magana moved their cars so they were parked next to each other.

They did not interact with anyone else in the parking lot. Santiago-Santos slept in the Honda

during part of this time.

       Next, Molina Rios and Trujeque-Magana left in tandem and drove to a store parking lot a

few blocks away. They parked and met outside their cars and talked with each other, but did not

meet with anyone else or go into the store.

       Molina Rios and Trujeque-Magana then followed one another to a shopping mall, where

they parked on opposite sides of the mall. They went into the mall together and stayed inside for

a few hours before exiting together. They went to their separate cars, met in a central driveway,

and exited the mall parking lot together. The officers lost track of them when both vehicles ran a

red light and it was unsafe for the officers to follow.

       People parking in parking lots, seemingly not doing anything, and moving to other

parking lots was something that Ferguson had observed during drug investigations. A suspect

might park to see if they are being followed and might be directed to different buy locations that

change repeatedly to avoid being followed by police. Running red lights or other erratic driving

also is a way that suspects attempt to avoid being followed.

       Jones and Ferguson relayed their observations of Molina Rios and Trujeque-Magana to

Zwick, who in turn discussed them with Hall.

Investigative Stop and Search

       Jones and Ferguson next observed the two cars a few hours later travelling southbound on

Interstate 5 in the Chehalis area. The two vehicles appeared to be driving in tandem, with the

Scion in front and the Honda directly behind with no cars in between. The officers followed the




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No. 49601-1-II / 49633-0-II


cars southbound on Interstate 5 back to Clark County. After receiving reports from Jones and

Ferguson, Zwick and Hall decided to conduct a traffic stop of the vehicles.

       Under Hall’s direction, patrol cars stopped the two vehicles in Clark County for an

investigative search. Trujeque-Magana and Santiago-Santos gave consent for the officers to

search the Honda. Santiago-Santos took her purse with her when she got out of the car and

placed it on the ground. Hall asked Santiago-Santos if he could search her purse and she

consented. Hall found a large bag of heroin inside the purse.

Apartment Search

       Hall obtained a search warrant for the apartment. Inside the apartment, officers found a

document signed by Molina Rios, Trujeque-Magana, and a third person stating that they had

leased the apartment. The lease term was from May 19, 2015 through April 30, 2016.

       In one bedroom, officers found an identification card belonging to Molina Rios. In that

bedroom were bags of methamphetamine and cocaine. Officers also found a handgun (9 mm

Walther) under the pillow at the head of the bed and a semiautomatic pistol (.45 caliber Taurus)

in a dresser drawer.

       In another bedroom, officers found a bag on the floor of the closet that contained cocaine.

They also found two handguns: a 9 mm Glock with a loaded magazine and a 9 mm Ruger. That

bedroom also contained male clothing. One of the shirts in the bedroom was a blue and white,

long sleeve plaid shirt. Detective Hall later found a photograph on Facebook in which Trujeque-

Magana was wearing that shirt.

Drug and Firearm Charges

       The State charged Trujeque-Magana with possession with intent to deliver heroin as both

a principal and an accomplice (count 1), possession with intent to deliver cocaine while armed




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No. 49601-1-II / 49633-0-II


with a firearm and within 1000 feet of a school bus route stop (count 4), two counts of first

degree unlawful possession of a firearm (counts 6 and 7), and being an alien in possession of a

firearm without an alien firearm license (count 8).

       The State also charged Molina Rios with possession with intent to deliver heroin as both

a principal and an accomplice (count 1), possession with intent to deliver methamphetamine

while armed with a firearm and within 1,000 feet of a school bus route stop (count 2), possession

with intent to deliver cocaine while armed with a firearm and within 1,000 feet of a bus stop

(count 3), and being an alien in possession of a firearm without an alien firearm license (count

9).1

Motion to Suppress Evidence

       Trujeque-Magana filed a motion to suppress all evidence obtained after the investigative

stop on the basis that the police did not have reasonable suspicion to conduct the stop. He also

argued that Santiago-Santos’s consent to search her purse was invalid. He sought to suppress the

heroin found in Santiago-Santos’s purse and all evidence discovered in the search of the

apartment.

       The trial court held a CrR 3.6 hearing on Trujeque-Magana’s suppression motion. The

court concluded that the State had reasonable suspicion to conduct an investigative stop on both

of the cars and that the State’s search of Santiago-Santos’s purse was lawful. As a result, the

court denied Trujeque-Magana’s motion to suppress. The court did not enter written findings of

fact and conclusions of law. But the court’s oral ruling included a detailed narrative of the facts

regarding the officers’ reasonable suspicion to conduct the investigative stop and probable cause.




1
 The State also charged Molina Rios with possession of a stolen firearm, but that charge
eventually was dismissed.


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No. 49601-1-II / 49633-0-II


Motion to Identify CI

        Trujeque-Magana filed a pretrial motion seeking to compel the State to disclose the

identity of the CI. He argued that because the CI had provided information regarding Molina

Rios, the CI would be able testify as to whether Trujeque-Magana was involved in Molina Rios’s

drug business.

        The trial court found that Trujeque-Magana had not shown that the CI had information

that would bear on his innocence and ruled that the State was not required to disclose the CI’s

identity.

Motion to Dismiss for Brady Violation

        During the trial, Trujeque-Magana filed a motion to dismiss based on a claim that the

State had refused to provide potentially exculpatory evidence in violation of Brady v. Maryland,

373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). In the supporting declaration, defense

counsel stated that he had learned that a shopping bag that Trujeque-Magana allegedly was

carrying when he left the mall might be in the trunk of Trujeque-Magana’s car in a police

impound lot. He noted that the officers following Trujeque-Magana and Molina Rios had

testified at the suppression hearing that the defendants had been in a shopping mall but were not

carrying any shopping bags when they left. Defense counsel requested that the State retrieve the

shopping bag, but the State had refused.

        The trial court denied Trujeque-Magana’s motion, stating that even if the State had the

shopping bag and had known about the shopping bag, it was not material exculpatory evidence.

Convictions and Sentences

        The jury found both defendants guilty of all counts. With regard to Trujeque-Magana’s

conviction of possession with intent to deliver cocaine and Molina Rios’s convictions of




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No. 49601-1-II / 49633-0-II


possession with intent to deliver cocaine and methamphetamine, the jury found by special

verdicts that they each were armed with two handguns at the time of the commission of the

crimes. The jury also found by special verdict that the possession of cocaine with intent to

deliver by both defendants and the possession of methamphetamine with intent to deliver by

Molina Rios occurred within 1,000 feet of a school bus stop.

       The trial court found that Trujeque-Magana’s convictions of two counts of first degree

unlawful possession of a firearm and being an alien in possession of a firearm were the same

criminal conduct. The court determined that Trujeque-Magana’s convictions of possession of

heroin and possession of cocaine were not the same criminal conduct and that the firearm

enhancement for possession of cocaine was not the same criminal conduct as the two convictions

of unlawful possession of a firearm.

       Based on the school bus route stop special verdict, the trial court doubled the maximum

term for Trujeque-Magana’s possession of cocaine conviction to 20 years. This meant that under

RCW 9.94A.533(3)(a), the sentence for each firearm enhancement was five years rather than

three years.

       The trial court sentenced Trujeque-Magana to 240 months of confinement, and Molina

Rios to 332 months of confinement.

       Trujeque-Magana and Molina Rios appeal their convictions and sentences.

                                            ANALYSIS

A.     MOTION TO SUPPRESS EVIDENCE

       Trujeque-Magana argues that the trial court erred in denying his motion to suppress the

evidence obtained as the result of the investigative stop of his vehicle. He claims that (1) the

trial court failed to enter written findings of fact and conclusions of law regarding its denial of




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No. 49601-1-II / 49633-0-II


the suppression motion, (2) the evidence should have been suppressed because officers did not

have reasonable suspicion to conduct the investigative stop, and (3) Santiago-Santos’s consent to

search her purse was invalid because the officers did not inform her of her right to refuse

consent. We agree that the trial court erred in failing to enter written findings and conclusions

but hold that the error was harmless. We reject the other two arguments.

        1.   Failure to Enter Written Findings and Conclusions

        CrR 3.6(b) requires the trial court to enter written findings of fact and conclusions of law

following a suppression hearing. Failure to enter written findings of fact and conclusions of law

is error, but the error is harmless if the trial court’s oral decision is sufficient to permit appellate

review. State v. Weller, 185 Wn. App. 913, 923, 344 P.3d 695 (2015).

        Here, the State concedes that the trial court erred by failing to enter written findings of

fact and conclusions of law for its denial of the motion to suppress. However, we hold that the

error is harmless. The record of the evidentiary hearing and the trial court’s oral ruling is

sufficiently comprehensive for us to adequately review Trujeque-Magana’s claim.

        2.   Validity of Investigative Stop

        Trujeque-Magana argues that the investigative stop of his vehicle was invalid because

officers did not have reasonable suspicion to conduct the stop. We disagree.

             a.   Legal Principles

        Under the Fourth Amendment to the United States Constitution and article I, section 7 of

the Washington Constitution, a law enforcement officer generally cannot seize a person without

a warrant. State v. Fuentes, 183 Wn.2d 149, 157-58, 352 P.3d 152 (2015). If a seizure occurs

without a warrant, the State has the burden of showing that it falls within one of the carefully

drawn exceptions to the warrant requirement. State v. Z.U.E., 183 Wn.2d 610, 617, 352 P.3d 796




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No. 49601-1-II / 49633-0-II


(2015). One established exception is a brief investigative detention of a person, known as a

Terry2 stop. Id.

          For an investigative stop to be permissible, a police officer must have had a “reasonable

suspicion” based on specific and articulable facts that the detained person was or was about to be

involved in a crime. Id. A “generalized suspicion that the person detained is ‘up to no good’ ” is

not enough; “the facts must connect the particular person to the particular crime that the officer

seeks to investigate.” Id. at 618 (italics omitted).

          We determine the propriety of an investigative stop – the reasonableness of the officer’s

suspicion – based on the “totality of the circumstances.” Fuentes, 183 Wn.2d at 158. “The

totality of circumstances includes the officer’s training and experience, the location of the stop,

the conduct of the person detained, the purpose of the stop, and the amount of physical intrusion

on the suspect’s liberty.” Id. The focus is on what the officer knew at the inception of the stop.

Id.

          Significantly, an officer can rely on his or her experience to identify seemingly innocent

facts as suspicious. State v. Moreno, 173 Wn. App. 479, 492, 294 P.3d 812 (2013). Facts that

appear innocuous to an average person may appear suspicious to an officer in light of past

experience. Id. at 493. And “officers do not need to rule out all possibilities of innocent

behavior before they make a stop.” Fuentes, 183 Wn.2d at 163.

          In evaluating a denial of a motion to suppress evidence, we review the trial court’s

findings of fact for substantial evidence and review de novo the trial court’s conclusions of law

based on those findings. Id. at 157.




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


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No. 49601-1-II / 49633-0-II


              b.   Analysis

         The trial court concluded that the officers had reasonable suspicion necessary to conduct

an investigative stop. In its oral ruling, the court relied on the following facts: (1) the officers

had recently conducted a controlled buy in which the CI purchased drugs from Molina Rios, (2)

the officers received information from the CI that Molina Rios would be going to the Seattle area

to obtain drugs, (3) the officers followed Molina Rios to the Everett area in a car associated with

the controlled buy, (4) Molina Rios met up with Trujeque-Magana, (5) Trujeque-Magana had

two prior convictions for drug distribution, (6) Molina Rios and Trujeque-Magana stopped in

places where they did not do anything and spent a lot of time talking on their phones, (7) it

appeared to the officers that Molina Rios and Trujeque-Magana were counting money, (8)

Molina Rios and Trujeque-Magana engaged in what the officers perceived as a countermeasure

to lose the officers, and (9) Molina Rios and Trujeque-Magana were driving in a way that

suggested that they were driving in tandem and working together.

         We conclude that substantial evidence supported the trial court’s oral findings. Jones and

Ferguson testified to all of these facts. And Trujeque-Magana does not challenge the court’s

findings. The question here is whether these findings are sufficient to support the conclusion that

the officers had a reasonable suspicion that Trujeque-Magana had been or was involved in a

crime.

         Trujeque-Magana argues that the officers had no basis for suspecting that he, as opposed

to Molina Rios, was involved in criminal activity. The CI identified only Molina Rios as being

involved in drug activity. Although Trujeque-Magana spent time with Molina Rios doing

innocuous things, none of the surveillance showed Trujeque-Magana doing anything illegal.

Trujeque-Magana emphasizes that a stop is not justified merely because a person is in proximity




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No. 49601-1-II / 49633-0-II


to someone who is suspected of criminal activity. State v. Doughty, 170 Wn.2d 57, 62, 239 P.3d

573 (2010). He also argues that his prior criminal history by itself was not sufficient to stop him.

       However, the undisputed evidence shows that Molina Rios went to the Everett area to

obtain drugs, and that throughout the day Trujeque-Magana and Molina Rios were working

closely together. They met, talked on their cell phones in Molina Rios’s car, drove their cars

together to a store parking lot and then to the mall, and drove in tandem back to Clark County.

This evidence supports the conclusion that Trujeque-Magana was not merely in proximity to

Molina Rios; he was actively assisting in Molina Rios’s effort to obtain drugs.

       Further, although the evidence showed activity that could have been innocuous, that

activity also was consistent with setting up a meeting to purchase drugs and trying to avoid being

followed by law enforcement. Molina Rios and Trujeque-Magana moved from place to place.

They talked on their cell phones. The officers thought that they counted money. And Molina

Rios and Trujeque-Magana took actions to evade law enforcement. Based on their extensive

experience, Jones and Ferguson suspected that these seemingly innocuous activities were

associated with a drug exchange.

       Finally, Trujeque-Magana is correct that his criminal record standing alone would not

have been sufficient to justify an investigative stop. But his two prior drug distribution

convictions could be considered with all the other factors to support a reasonable suspicion of

criminal activity. See State v. Neth, 165 Wn.2d 177, 185-86, 196 P.3d 658 (2008) (holding that a

prior criminal history of similar crimes is not enough on its own, but with other evidence may

meet the higher probable cause standard).

       The totality of the circumstances were sufficient to establish a reasonable suspicion that

Trujeque-Magana was engaged in illegal drug activity. Accordingly, we hold that the trial court




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did not err in concluding that the investigative stop was justified and in denying Trujeque-

Magana’s suppression motion.

       3.   Consent to Search Purse

       Trujeque-Magana argues that Santiago-Santos’s consent to search her purse was invalid

because the officers did not inform her of her right to refuse consent. We disagree.

       One of the recognized exceptions to the warrant requirement is lawful consent. State v.

Blockman, 190 Wn.2d 651, 658, 416 P.3d 1194 (2018). The Supreme Court has set out three

requirements for a valid consensual search: “(1) the consent must be voluntary, (2) the consent

must be granted by a party having authority to consent, and (3) the search must be limited to the

scope of the consent granted.” Id.

       The trial court found that Santiago-Santos’s consent to search her purse was voluntary.

Trujeque-Magana does not challenge this finding. Instead, he argues that as a matter of law, the

officers were required to inform her that she had the right to refuse consent to a search.

       When police are investigating a home using the “knock and talk” method, article 1,

section 7 of the Washington Constitution requires the police to advise the homeowner of his or

her right to refuse consent to a search. State v. Ferrier, 136 Wn.2d 103, 118, 960 P.2d 927

(1998); see also State v. Budd, 185 Wn.2d 566, 572-74, 374 P.3d 137 (2016). But the

Washington constitution does not require Ferrier warnings for searches pursuant to a valid Terry

stop. State v. Witherrite, 184 Wn. App. 859, 864, 339 P.3d 992 (2014); State v. Tagas, 121 Wn.

App. 872, 876-78, 90 P.3d 1088 (2004). Like here, Tagas involved the search of a purse during

a Terry stop on the side of a highway. 121 Wn. App. at 875. The court stated, “When the

subject of the search is not in custody and the question is whether consent is voluntary,




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knowledge of the right to refuse consent is not a prerequisite of voluntary consent.” Id. at 876-

77.

       Trujeque-Magana acknowledges that courts have refused to require Ferrier warnings for

searches outside of people’s homes, but asks this court to extend the principles of Ferrier to

searches pursuant to Terry stops. He refers to a concurring opinion in Witherrite that suggested

that Ferrier should be extended to vehicle searches. 184 Wn. App. at 864-65 (Lawrence-Berrey,

J., concurring). However, Trujeque-Magana does not provide any compelling reason to

disregard existing precedent and to extend the scope of Ferrier when the Supreme Court has not

chosen to do so. And even the concurring opinion in Witherrite was addressing searches of

vehicles, not personal possessions.

       We hold that the officers were not required to inform Santiago-Santos of her right to

refuse to consent to a search of her purse. Accordingly, we hold that the trial court did not err in

denying Trujeque-Magana’s motion to suppress the heroin found in the purse.

B.     SUFFICIENCY OF EVIDENCE

       Trujeque-Magana argues that the State did not present sufficient evidence to prove that

(1) he possessed the heroin discovered in Santiago-Santos’s purse (count 1), (2) he possessed the

cocaine discovered in the apartment (count 4), (3) he possessed the two handguns found in the

apartment (counts 6 and 7), and (4) he was armed with two handguns when he committed the

crime of possession with intent to deliver cocaine. Molina Rios also asserts the first and fourth

arguments.3 We reject all of these arguments.




3
  Neither appellant argues that the evidence is insufficient on count 8, alien in possession of a
firearm.


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        1.      Standard of Review

        The test for determining sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond a reasonable doubt. State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19 (2017).

In a sufficiency of the evidence claim, the defendant admits the truth of the evidence and the

court views the evidence and all reasonable inferences drawn from that evidence in the light

most favorable to the State. Id. at 265-66. Credibility determinations are made by the trier of

fact and are not subject to review. Id. at 266. Circumstantial and direct evidence are equally

reliable. Id.

        2.      Possession of Drugs and Guns

        Trujeque-Magana and Molina Rios argue that there was insufficient evidence to prove

that they possessed the heroin in Santiago-Santos’s purse, and Trujeque-Magana argues that

there was insufficient evidence to prove that he possessed the cocaine and handguns in the

apartment. We disagree.

                a.   Legal Principles – Possession

        A person can have actual possession or constructive possession of an item. State v.

Reichert, 158 Wn. App. 374, 390, 242 P.3d 44 (2010). Actual possession requires physical

custody of the item. Id. Constructive possession occurs when a person has “dominion and

control” over an item. Id. Dominion and control exists when the person can immediately

convert the item to his or her actual possession. Id. A person can have possession without

exclusive control; more than one person can be in possession of the same item. State v. George,

146 Wn. App. 906, 920, 193 P.3d 693 (2008). But possession involves actual control, not

merely a momentary handling of the item. Id.




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       A person’s dominion and control over a premises “creates a rebuttable presumption that

the person has dominion and control over items on the premises.” Reichert, 158 Wn. App. at

390. Therefore, a jury can infer constructive possession of items on the premises from a person’s

dominion and control over the premises. See State v. Shumaker, 142 Wn. App. 330, 334, 174

P.3d 1214 (2007). A vehicle is considered a “premises.” George, 146 Wn. App. at 920.

            b.    Heroin in Purse

       The State argues that Trujeque-Magana and Molina Rios had constructive possession of

the heroin in Santiago-Santos’s purse. Alternatively, the State argues that both Trujeque-Magana

and Molina Rios were accomplices to Santiago-Santos’s actual possession. We agree that under

the specific facts of this case, both Trujeque-Magana and Molina Rios were accomplices to

Santiago-Santos’s possession.

       Under RCW 9A.08.020(3)(a), a person can be guilty as an accomplice if:

       [w]ith knowledge that it will promote or facilitate the commission of the crimes, he
       or she:
       (i) Solicits, commands, encourages, or requests such other person to commit it; or
       (ii) Aids or agrees to aid such other person in planning or committing it.

The to-convict jury instruction for count 1 stated that the jury had to find that Trujeque-

Magana and Molina Rios or their accomplice possessed heroin.

       Evidence that a person is merely present at the scene of a crime, even with knowledge of

the crime, is insufficient to prove accomplice liability. State v. Jameison, 4 Wn. App. 2d 184,

205, 421 P.3d 463 (2018). The accomplice must “associate himself with the principal’s criminal

undertaking, participate in it as something he desires to bring about, and seek by his action to

make it succeed.” Id.

       Here, the evidence supports a finding of accomplice liability. A reasonable inference

from the evidence is that Trujeque-Magana and Molina Rios obtained the heroin, and gave it to



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No. 49601-1-II / 49633-0-II


Santiago-Santos to transport back to Clark County. All three were involved in the criminal

undertaking – possession of the heroin with intent to deliver it. In particular, the State presented

evidence that Molina Rios and Trujeque-Magana were possibly counting money together and

driving in tandem. Further, there was no evidence that Santiago-Santos was actively involved in

any of these efforts. She was asleep while Molina Rios and Trujeque-Magana apparently were

making calls and counting money.

       This evidence supports an inference that both Trujeque-Magana and Molina Rios had

helped obtain the heroin found in Santiago-Santos’s purse and therefore knew about it, and were

aiding her in transporting it to Clark County.

       Molina Rios argues that the State failed to prove that he was an accomplice because there

was no direct evidence that he knew the heroin was in Santiago-Santos’s purse. However, in a

sufficiency challenge we view circumstantial evidence and direct evidence as equally reliable.

Cardenas-Flores, 189 Wn.2d at 266. Here, the circumstantial evidence supports a reasonable

inference that Molina Rios was aware of and actively aided in Santiago-Santos’s possession of

the heroin.

       We hold that sufficient evidence supports Trujeque-Magana’s and Molina Rios’s

convictions of possession with intent to deliver heroin.

              c.   Drugs and Guns in Apartment

       The issue here is whether Trujeque-Magana had dominion and control over the bedroom

in the apartment where officers found cocaine and two handguns, which would invoke the

presumption that he constructively possessed those items. Trujeque-Magana emphasizes that the

State presented no direct evidence that he had any connection with the apartment at the time the

cocaine and guns were discovered.




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No. 49601-1-II / 49633-0-II


       However, the State presented a document signed by Trujeque-Magana showing that he

had leased the apartment. Although this evidence does not conclusively prove that he lived

there, it supports a reasonable inference that Trujeque-Magana had some control over the

apartment. In addition, the bedroom in which the cocaine and guns were found contained men’s

clothes, including a shirt that Trujeque-Magana was seen wearing in a Facebook photograph.

This evidence, along with the lease document, supports a reasonable inference that he was living

in that bedroom and had dominion and control of at least that bedroom. Therefore, the evidence

supports the conclusion that Trujeque-Magana had constructive possession of the cocaine and

guns in the bedroom.

       Accordingly, we hold that sufficient evidence supports Trujeque-Magana’s convictions of

possession with intent to deliver cocaine and unlawful possession of the two firearms.

       3.   Armed with Firearms

       Trujeque-Magana and Molina Rios argue that there was insufficient evidence to prove

that they were armed with the handguns found in the apartment when they committed the

possession of cocaine (Trujeque-Magana) and cocaine/methamphetamine (Molina Rios) crimes.

We disagree.

            a.   Legal Principles

       Under RCW 9.94A.533(3), a court must add additional time to a sentence if the

defendant is found to have been armed with a firearm while committing the crime. State v.

Houston-Sconiers, 188 Wn.2d 1, 16-17, 391 P.3d 409 (2017). The additional time is five years

for a class A felony or a felony with a statutory maximum sentence of at least 20 years, and three

years for a class B felony or a felony with a statutory maximum sentence of at least 10 years.

RCW 9.94A.533(3)(a)(b).




                                                18
No. 49601-1-II / 49633-0-II


       “To establish that a defendant was armed for the purpose of a firearm enhancement, the

State must prove (1) that a firearm was easily accessible and readily available for offensive or

defensive purposes during the commission of the crime and (2) that a nexus exists among the

defendant, the weapon, and the crime.” State v. Sassen Van Elsloo, 191 Wn.2d 798, 826, 425

P.3d 807 (2018).

       Regarding the first requirement, the presence or even constructive possession of a

weapon found at a crime scene alone is not enough to establish that the defendant was armed in

this context. Id. at 824. On the other hand, “[t]he defendant does not have to be armed at the

moment of arrest to be armed for purposes of the firearms enhancement.” State v. O’Neal, 159

Wn.2d 500, 504, 150 P.3d 1121 (2007). “[T]he State need not establish with mathematical

precision the specific time and place that a weapon was readily available and easily accessible so

long as it was at the time of the crime.” Id. at 504-05. The court in Sassen Van Elsloo confirmed

these principles. 191 Wn.2d at 826-27. And a drug distribution operation is a continuing crime

that is ongoing even when the defendant is elsewhere. See State v. Neff, 163 Wn.2d 453, 464-65,

181 P.3d 819 (2008) (stating this principle in the context of a drug manufacturing operation).

       Regarding the second requirement, we look to the nature of the crime, the type of firearm,

and the context in which it was found to determine if there was a nexus between the defendant,

the firearm, and the crime. Sassen Van Elsloo, 191 Wn.2d at 827. Significantly, a sufficient

nexus exists if there is evidence that the firearm was present to protect an ongoing drug

operation. O’Neal, 159 Wn.2d at 506; State v. Eckenrode, 159 Wn.2d 488, 494-95, 150 P.3d

1116 (2007).

       The Supreme Court has considered whether the State presented sufficient evidence to

support a firearm enhancement for drug crimes in several cases. In Sassen Van Elsloo, the




                                                19
No. 49601-1-II / 49633-0-II


defendant had a loaded shotgun in a car that also contained various types of drugs. 191 Wn.2d at

802-03. The court held that the State had presented sufficient evidence that the shotgun was

readily accessible and connected to the possession of the drugs. Id. at 829-31.

       In Neff, police found two loaded guns in a locked safe and a loaded gun in a tool belt

hanging from the rafters of a garage where methamphetamine was being manufactured. 163

Wn.2d at 457. Police also discovered two surveillance cameras and a monitor in the garage. Id.

The court held that the evidence was sufficient to prove that the defendant was armed with a

firearm. Id. at 464-65. The court noted that the mere presence and constructive possession of a

gun was not sufficient to support the enhancement without evidence linking the gun to the crime,

but stated that the presence of the security cameras and monitor provided that proof. Id. at 464.

And the court rejected the defendant’s argument that he could not be armed with the guns

because he was not in the garage at the time of the arrest, emphasizing that the drug operation

was a continuing crime. Id. at 464-65.

       In O’Neal, police found more than 20 guns along with body armor, a police scanner, and

night goggles at a mobile home where methamphetamine was being manufactured. 159 Wn.2d

at 503. The defendants were arrested at the time of the search, but they were not holding guns

when arrested. Id. at 502. Most of the guns were in two safes; however, a loaded semiautomatic

rifle and a loaded semiautomatic pistol were found in two bedrooms. Id. at 503. The court held

that the two loaded weapons were readily accessible and that a reasonable jury could infer that

the guns were there to protect the drug operation. Id. at 506. The court cited with approval this

court’s decision in State v. Simonson, 91 Wn. App. 874, 883, 960 P.2d 955 (1998), which held

that it was reasonable to infer that the presence of at least four loaded guns at a




                                                  20
No. 49601-1-II / 49633-0-II


methamphetamine manufacturing operation was for the purpose of defending the operation and

therefore was sufficient to support a deadly weapon enhancement. O’Neal, 159 Wn.2d at 505.

          In Eckenrode, law enforcement searching a house discovered a large marijuana grow

operation and a loaded rifle and an unloaded pistol along with a police scanner. 159 Wn.2d at

491-92, 494. The defendant was outside and far away from the guns when he was arrested. Id.

at 492. The court stated that the legislative purpose of the deadly weapons enhancement was “to

recognize that armed crime, including having weapons available to protect contraband, imposes

particular risks of danger on society.” Id. at 493. The court held that based on the evidence of a

drug manufacturing operation, a police scanner to monitor police activity and the weapons, “[a]

jury could readily have found that the weapons were there to protect the criminal enterprise.” Id.

at 494.

          The court reached the opposite conclusion in State v Gurske, where the defendant had a

pistol in a zipped backpack stuffed behind the driver’s seat of his truck. 155 Wn.2d 134, 136,

118 P.3d 333 (2005). The court held that the stipulated facts were insufficient to prove that the

pistol was readily accessible for the purpose of the firearms enhancement. Id. at 143-44. The

court stated that the evidence was insufficient because the facts did not indicate whether the

defendant could have reached the backpack, unzipped it, removed items on top of the pistol, and

accessed the pistol from where he was sitting when he was stopped by a police officer. Id.

          The court in State v. Valdobinos also found insufficient evidence to support a firearm

enhancement where an unloaded rifle was found under a bed in a house where cocaine was

discovered. 122 Wn.2d 270, 274, 282, 858 P.2d 199 (1993). The court held that there was no

evidence showing that the unloaded rifle was accessible and readily available for offensive or

defensive use. Id. at 282.




                                                  21
No. 49601-1-II / 49633-0-II


            b.     Analysis

       Here, the State presented evidence that loaded guns were found in a closet very close to a

bag of cocaine (Trujeque-Magana) and under a pillow and in a dresser drawer in a room with

large amounts of drugs (Molina Rios). A reasonable jury could conclude that these guns were

readily accessible and available to people in the apartment. Under O’Neal, the State was not

required to show that Trujeque-Magana and Molina Rios were armed at the time of their arrests

or establish with mathematical certainty the specific time and place that the guns were accessible

and available regarding their continuing possession with intent to deliver offenses. 159 Wn.2d at

504-05. And a reasonable jury could infer from the proximity of the guns to the drugs that the

guns were used to protect the ongoing drug operation.

       Gurske does not apply here because in that case, the firearm clearly was not accessible to

the driver of a vehicle. 155 Wn.2d at 143. Here, the guns were easily accessible to anyone who

was near the seized drugs. Valdobinos does not apply here because in that case, the firearm was

unloaded and the court did not indicate that it was near the cocaine that officers discovered. 122

Wn.2d at 282. Here, the guns were loaded and were in close proximity to the seized drugs.

       Trujeque-Magana argues that the firearms could not have been readily accessible because

he was in custody at the time the guns were discovered. He cites this court’s decision in State v.

Mills, which held that the defendant was not armed with a firearm when he was arrested several

miles from a hotel room where the firearm and drugs were found. 80 Wn. App. 231, 234-37, 907

P.2d 316 (1995).

       However, Trujeque-Magana’s possession with intent to deliver the drugs in the apartment

was a continuing offense. In Simonson, one of the defendants was in jail when officers

discovered drugs and firearms in his trailer. 91 Wn. App. at 877-78. This court held that the




                                                22
No. 49601-1-II / 49633-0-II


evidence was sufficient to support a deadly weapon enhancement. Id. at 883. The court stated

that the defendants were committing a continuing offense over a six-week period, and during

some or all of that time they kept guns on the premises that could be inferred were used to

defend their drug operation. Id. Simonson, not Mills, is applicable here.

       Further, Mills was decided long before the series of cases discussed above that further

explained the evidence required to prove that a defendant was armed with a firearm. These cases

have established that RCW 9.94A.533(3) requires that the defendant was armed during the

commission of the offense, but does not require that the defendant be armed at the time the guns

were discovered or at the time he or she was arrested. O’Neal, 159 Wn.2d at 504.

       In addition, the information stated that Trujeque-Magana committed the intent to deliver

cocaine offense “on or about” November 5, 2015. When an offense is charged using “on or

about” or similar language, the proof that the offense was committed is not limited to the

specified date. State v. Yallup, 3 Wn. App. 2d 546, 553, 416 P.3d 1250, review denied 191

Wn.2d 1014 (2018). Therefore, the State was not required to prove that Trujeque-Magana was

armed with a firearm specifically on November 5.

       Molina Rios argues that the State did not present evidence of a nexus between himself,

the guns, and his constructive possession of the drugs. However, the State presented evidence

that a loaded handgun was under the pillow in Molina Rios’s bedroom. The State also presented

evidence of drugs in Molina Rios’s bedroom. A jury reasonably could have inferred that Molina

Rios had the gun nearby to defend the drugs in his room.

       Accordingly, we hold that sufficient evidence supports the firearm enhancements for both

Trujeque-Magana and Molina Rios.




                                                23
No. 49601-1-II / 49633-0-II


C.     DISCLOSURE OF EXCULPATORY EVIDENCE

       Trujeque-Magana argues that the trial court erred in denying his motion to dismiss based

on his claim that the State failed to produce exculpatory evidence – a shopping bag in the car he

was driving – in violation of the Brady rule. We disagree.

       1.    Legal Principles

       Under Brady and its progeny, the State is required to turn over all potentially exculpatory

evidence or evidence that could be used as impeachment evidence. State v. Mullen, 171 Wn.2d

881, 894, 259 P.3d 158 (2011). “The state due process clause extends the same protection

regarding this right as does its federal counterpart.” State v. Armstrong, 188 Wn.2d 333, 344,

394 P.3d 373 (2017).

       The defendant bears the burden of proving three elements of a successful Brady claim:

(1) the evidence must be favorable to the defendant, either as exculpatory or impeachment

evidence; (2) the State must have withheld the evidence; and (3) the evidence must be material to

the defense. State v. Davila, 184 Wn.2d 55, 69, 357 P.3d 636 (2015).

       Evidence is material if there is a reasonable probability that the result of the proceeding

would have been different if the evidence had been disclosed to the defendant. Id. at 73. A

defendant need not demonstrate that he would be acquitted if suppressed evidence had been

disclosed. Id. Under the reasonable probability standard, the defendant must show only that the

State’s suppression undermines confidence in the trial’s outcome. Id. We evaluate the effect of

the State’s failure to disclose favorable evidence cumulatively and in the context of the entire

record. Id. at 78.

       Our review of Brady claims involves a mixed question of fact and law. Id. at 74. We

review underlying factual findings by the trial court for substantial evidence. Id. at 74-75. But




                                                24
No. 49601-1-II / 49633-0-II


we review de novo the ultimate constitutional question of whether the State’s failure to disclose

certain information resulted in a due process violation. Id. at 75.

       2.    Analysis

       Trujeque-Magana argues that the shopping bag in the car he was driving was material

because it could have been used to impeach the officers’ testimony suggesting that he was doing

nothing while under surveillance. However, he admits that the officers did not testify about a

lack of a shopping bag in their trial testimony (as they did in the suppression hearing).

Therefore, it is unclear how the presence of the shopping bag in the impounded car would

undermine their credibility.

       In addition, the officers’ testimony that doing nothing suggested involvement in a drug

transaction was an issue at the suppression hearing, not at trial. So impeachment on this issue

would be immaterial. And even if he did buy something at the mall, Trujeque-Magana does not

explain how the shopping bag would prove that he was not involved with a drug transaction.

       Accordingly, we hold that the potential shopping bag is not material evidence and

therefore that the State’s failure to produce it to Trujeque-Magana was not a Brady violation.

D.     IDENTIFICATION OF CI

       Trujeque-Magana argues that the trial court erred in refusing to require the State to

disclose the identity of the CI involved in the investigation of Molina Rios. We disagree.

       1.    Legal Principles

       Under the so-called “informer’s privilege,” the State generally is not required to disclose

the identity of a CI, in order to encourage citizens to safely provide information on criminal

activity to law enforcement. State v. Atchley, 142 Wn. App. 147, 155, 173 P.3d 323 (2007).

CrR 4.7(f)(2) provides that the State is not required to reveal the identity of a CI if “a failure to




                                                  25
No. 49601-1-II / 49633-0-II


disclose will not infringe upon the constitutional rights of the defendant.” The trial court must

weigh the possible significance of the informant’s testimony and the possible defenses against

the State’s interest in protecting the identity of its informant. Atchley, 142 Wn. App. at 155-56.

“When ‘disclosure of an informer’s identity . . . is relevant and helpful to the defense of an

accused, or is essential to a fair determination of a cause, the privilege must give way.’ ” State v.

Petrina, 73 Wn. App. 779, 783, 871 P.2d 637 (1994) (quoting Rovario v. U.S., 353 U.S. 53, 60-

61, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957)).

       We review a trial court’s decision on a request to disclose the CI’s identity for an abuse

of discretion. State v. Bauer, 98 Wn. App. 870, 878, 991 P.2d 668 (2000). A court abuses its

discretion when it acts on untenable grounds or its decision is manifestly unreasonable. Id.

       2.   Analysis

       Trujeque-Magana argued in his motion to the trial court that the CI would be able to

testify that Trujeque-Magana was not involved in the drug operation because only Molina Rios

had participated in the controlled buy with the CI. The trial court ruled that even if the CI could

testify that Trujeque-Magana was not involved in the controlled buys, such testimony would not

be material to Trujeque-Magana’s involvement in the alleged drug transaction in Everett, the

traffic stop, or the evidence found in the apartment.

       Trujeque-Magana now argues that evidence that Molina Rios was acting alone during the

controlled buys could have rebutted the circumstantial evidence that Trujeque-Magana was

involved in the drug operation. However, he does not explain how the CI’s testimony regarding

the controlled buys would show that Molina Rios was operating his drug business alone or that

Trujeque-Magana did not participate on another date. Trujeque-Magana has not shown that the

trial court’s ruling was untenable or unreasonable.




                                                 26
No. 49601-1-II / 49633-0-II


       Accordingly, we hold that the trial court did not abuse its discretion in denying Trujeque-

Magana’s motion to disclose the identity of the CI.

E.     OPINION TESTIMONY OF OFFICERS

       Trujeque-Magana argues that the trial court erred in allowing officers to provide opinion

testimony regarding various observations. He argues that the officers’ testimony improperly

stated opinions on issues of fact to be determined by the jury. We disagree.

       1.    Legal Principles

       We review a trial court’s decision to admit evidence for an abuse of discretion. State v.

Quaale, 182 Wn.2d 191, 196, 340 P.3d 213 (2014). A trial court has considerable discretion in

determining the admissibility of evidence. Id. An abuse of discretion occurs only where a trial

court’s decision is manifestly unreasonable or based on untenable grounds or reasons. Id. at 197.

There is no abuse of discretion if reasonable persons could disagree regarding admissibility of

evidence. Id. at 196.

       Under ER 701, a witness not testifying as an expert can offer opinions that are (1)

rationally based on the witness’s perceptions, (2) helpful to the trier of fact in understanding the

witness’s testimony or determining a fact in issue, and (3) not based on scientific, technical, or

other specialized knowledge covered by ER 702. State v. Montgomery, 163 Wn.2d 577, 591,

183 P.3d 267 (2008).

       However, witnesses may not give opinions on personal beliefs of the defendant’s guilt,

the intent of the accused, or the veracity of another witness. Quaale, 182 Wn.2d at 200. Such

opinion testimony is unfairly prejudicial to the defendant because determining the defendant’s

guilt is the jury’s exclusive province. State v. King, 167 Wn.2d 324, 331, 219 P.3d 642 (2009).

“A law enforcement officer’s improper opinion testimony may be particularly prejudicial




                                                 27
No. 49601-1-II / 49633-0-II


because it carries ‘a special aura of reliability.’ ” State v. Winborne, 4 Wn. App. 2d 147, 177,

420 P.3d 707 (2018) (quoting King, 167 Wn.2d at 331). The inclusion of opinion testimony

regarding a defendant’s guilt may be reversible error. King, 167 Wn.2d at 329-30.

       While a witness may not give testimony on their personal beliefs regarding the evidence,

a witness may testify that certain evidence is “consistent with” a particular conclusion.

Montgomery, 163 Wn.2d at 592-93.

       2.   Analysis

       Trujeque-Magana challenges the admissibility of four areas of testimony. First, Deputy

Jones testified that he believed that Trujeque-Magana and Molina Rios were counting money

even though he could not see their hands and could not see any money. Jones also testified that

many times as a drug investigator he had observed suspects spend long periods of time doing

nothing.

       Similarly, Detective Ferguson testified that he believed that Trujeque-Magana and

Molina Rios could have been counting money. In addition, Ferguson testified that based on his

experience, Trujeque-Magana and Molina Rios were preparing to conduct a drug deal or secret

the drug deal from police; that Trujeque-Magana and Molina Rios were engaged in counter

surveillance driving; and that in his experience people would move the location multiple times

when they are trying to conduct a drug deal.

       However, this testimony involved the officers’ opinions based on their observations and

their experience. These type of opinions generally are admissible under ER 701. And the

officers did not express any opinions regarding Trujeque-Magana’s guilt.

       Second, Detective Hall testified about the presence of makeup, brushes, and a Victoria’s

Secret bag in the room officers associated with Trujeque-Magana. He stated that suspects and




                                                28
No. 49601-1-II / 49633-0-II


witnesses had told him that drugs belonged to them even though they were contained in materials

generally attributed to the opposite gender. Once again, this testimony involved Hall’s

observations and experience and were admissible under ER 701.

       Third, Detective Hall testified that the amount of cash officers discovered in the

apartment was more cash than typically seen in drug cases, and that the cash showed that “[t]hey

are at least middle, most likely upper-level drug dealers.” Report of Proceedings (RP) at 966.

Hall also testified that based on the three types of drugs present and the firearms that were found,

“I say definitely this is signature of a middle to upper-level drug dealing organization.” RP at

966. However, Trujeque-Magana did not object to this testimony at trial. Therefore, he cannot

raise this issue for the first time on appeal. RAP 2.5(a); State v. Kalebaugh, 183 Wn.2d 578,

583, 355 P.3d 253 (2015).

       Fourth, Trujeque-Magana asserts that officers testified that they did not perform DNA or

fingerprint testing because they already had enough evidence to prove the defendants’ guilt.

However, defense counsel elicited this testimony on cross-examination and did not object to or

move to strike their answers. Therefore, Trujeque-Magana cannot raise this issue for the first

time on appeal. RAP 2.5(a); Kalebaugh, 183 Wn.2d at 583.

       Accordingly, we reject Trujeque-Magana’s claim that officers provided improper opinion

testimony.

F.     EQUAL PROTECTION CHALLENGE TO RCW 9.41.171

       Trujeque-Magana and Molina Rios argue that RCW 9.41.171(3) and RCW 9.41.175

violate equal protection because the statutes treat noncitizens from Canada differently than

noncitizens from other countries regarding the possession of firearms. We disagree.




                                                29
No. 49601-1-II / 49633-0-II


       1.     Statutory Provisions

       Under RCW 9.41.171, it is unlawful “for any person who is not a citizen of the United

States to carry or possess any firearm, unless the person: (1) Is a lawful permanent resident; (2)

has obtained a valid alien firearm license pursuant to RCW 9.41.173; or (3) meets the

requirements of RCW 9.41.175.” In other words, it is unlawful for a noncitizen to carry or

possess a firearm unless one of three exceptions applies. The State concedes that in order to

convict for violation of this statute, it has the burden of proving the absence of these three

exceptions.

       The State presented evidence that Trujeque-Magana and Molina Rios did not satisfy

RCW 9.41.171(1) or (2). Trujeque-Magana stipulated that he was not a United States citizen and

was not a lawful permanent resident.4 And the State presented evidence that Molina Rios was

not a United States citizen and was not a lawful permanent resident. The State also presented

evidence that there was no record of either Trujeque-Magana or Molina Rios having a license to

possess a firearm.

       Trujeque-Magana and Molina Rios challenge RCW 9.41.171(3), which provides an

exception for a person that meets the requirements of RCW 9.41.175. As Trujeque-Magana and

Molina Rios note, RCW 9.41.175 distinguishes between nonimmigrant aliens and citizens of

Canada in addressing when a noncitizen can carry or possess a firearm without obtaining a

firearm license. RCW 9.41.175(1) states that a nonimmigrant alien who is not a Washington

resident or Canadian citizen must possess:



4
  Trujeque-Magana claims that the court erred in instructing the jury that it could consider his
stipulation that he was not a lawful permanent resident of the United States regarding counts 6
and 7. However, he does not assign error to this instruction and does not provide any meaningful
argument regarding the alleged error. Therefore, we do not address this issue.



                                                 30
No. 49601-1-II / 49633-0-II


       (a) A valid passport and visa showing he or she is in the country legally;

       (b) If required under federal law, an approved United States department of justice
       ATF-6 NIA application and permit for temporary importation of firearms and
       ammunition by nonimmigrant aliens; and

       (c)(i) A valid hunting license issued by a state or territory of the United States; or
       (ii) An invitation to participate in a trade show or sport shooting event being
       conducted in this state, another state, or another country that is contiguous with this
       state.

For Canadian citizens, the requirements are identical except for subsection (a). The statute does

not specify that Canadian citizens must have passports and visas, but states that Canadian

citizens must possess “[v]alid documentation as required for entry into the United States.” RCW

9.41.175(2)(a).

       Under these provisions, citizens of all countries other than Canada must have a visa

showing that they are in the United States legally plus meet the requirements of (b) and (c) to

lawfully carry or possess a firearm. But Canadian citizens who meet the (b) and (c) requirements

do not need to have a visa or prove that they are in the United States legally to lawfully carry or

possess a firearm; they only need a passport as valid documentation as required for entry.

       2.   Legal Principles – Equal Protection

       The Fourteenth Amendment to the United States Constitution and article I, section 12 of

the Washington Constitution guarantee equal protection under the law. “Equal protection

requires that similarly situated individuals receive similar treatment under the law.” Harris v.

Charles, 171 Wn.2d 455, 462, 256 P.3d 328 (2011). Equal protection is a constitutional issue,

which we review de novo. Madison v. State, 161 Wn.2d 85, 92, 163 P.3d 757 (2007).

       The threshold requirement of an equal protection challenge is that a defendant “must

establish that he received disparate treatment because of membership in a class of similarly




                                                 31
No. 49601-1-II / 49633-0-II


situated individuals and that the disparate treatment was the result of intentional or purposeful

discrimination.” State v. Osman, 157 Wn.2d 474, 484, 139 P.3d 334 (2006).

        Trujeque-Magana and Molina Rios appear to be making a facial rather than an as applied

challenge to RCW 9.41.171(3) and RCW 9.41.175. To prevail in a facial challenge, a defendant

must show that “ ‘no set of circumstances exists in which the statute, as currently written, can be

constitutionally applied.’ ” City of Seattle v. Evans, 184 Wn.2d 856, 862, 366 P.3d 906 (2015)

(quoting City of Redmond v. Moore, 151 Wn.2d 664, 669, 91 P.3d 875 (2004)).

        3.   Analysis

        Trujeque-Magana and Molina Rios are correct that RCW 9.41.175 establishes different

treatment for Canadian citizens on its face. However, they cannot show that there are no

circumstances under which the statutes can be constitutionally applied. In fact, as applied to

them under the facts of this case, RCW 9.41.171(3) and RCW 9.41.175 do not violate equal

protection because Trujeque-Magana and Molina Rios would have been in violation of RCW

9.41.171(3) even if they were Canadian.

        Trujeque-Magana and Molina Rios have not shown or even alleged that they had valid

documentation for entry into the United States as required in RCW 9.41.175(2)(a) or that they

had a hunting license from another state or an invitation to a trade show or event as required in

RCW 9.41.175(2)(c). Therefore, RCW 9.41.171(3) and RCW 9.41.175 treated them the same

regardless of whether they were Mexican or Canadian citizens.

        We hold that RCW 9.41.171(3) and RCW 9.41.175 do not violate equal protection under

the facts of this case.5



5
  Trujeque-Magana also claims in an assignment of error that the evidence was insufficient to
support this conviction. However, he does not present any argument to support this claim, and
therefore we do not address it. State v. Mason, 170 Wn. App. 375, 384, 285 P.3d 154 (2012).


                                                 32
No. 49601-1-II / 49633-0-II


G.     SENTENCING ISSUES

       Trujeque-Magana argues that in sentencing him, the trial court made erroneous same

criminal conduct rulings and applied five-year instead of three-year firearm enhancements based

on a misinterpretation of RCW 69.50.435(1). We disagree.

       1.   Same Criminal Conduct

       For purposes of calculating a defendant’s offender score, multiple offenses that

encompass the same criminal conduct are counted as one offense. RCW 9.94A.525(5)(a)6.

Under RCW 9.94A.589(1)(a), two or more offenses constitute the “same criminal conduct” when

they “require the same criminal intent, are committed at the same time and place, and involve the

same victim.” If any of these elements is not present, the offenses are not the same criminal

conduct. State v. Aldana Graciano, 176 Wn.2d 531, 540, 295 P.3d 219 (2013).

       Multiple offenses will be treated as occurring at the same time if they are “part of a

continuous, uninterrupted sequence of conduct over a very short period of time.” State v. Porter,

133 Wn.2d 177, 183, 942 P.2d 974 (1997). On the other hand, multiple offenses do not occur at

the same time if the defendant fails to show that they were continuous, simultaneous, or occurred

in a short time frame. Aldana Graciano, 176 Wn.2d at 541.

       The defendant bears the burden of establishing that two or more offenses encompass the

same criminal conduct. Id. at 539-40. “[E]ach of a defendant’s convictions counts toward his

offender score unless he convinces the court that they involved the same criminal intent, time,

place, and victim.” Id. at 540.




6
  RCW 9.94A.525 was amended in 2017. However, these amendments do not materially affect
the statutory language relied on by this court. Accordingly, we do not include the word “former”
before RCW 9.94A.525.


                                                33
No. 49601-1-II / 49633-0-II


       We review a trial court’s determination of whether two offenses encompass the same

criminal conduct for an “abuse of discretion or misapplication of law.” Id. at 537. Under this

standard, a trial court abuses its discretion if the record supports only the opposite conclusion.

Id. at 537-38. “But where the record adequately supports either conclusion, the matter lies in the

court’s discretion.” Id. at 538. In addition, a trial court abuses its discretion by applying the

wrong legal standard. State v. Johnson, 180 Wn. App. 92, 100, 320 P.3d 197 (2014).

       Here, the trial court ruled that Trujeque-Magana’s convictions on counts 1 and 4 – the

possession of heroin and cocaine convictions – were not the same criminal conduct. The court

also ruled that counts 6, 7, and 8 – the possession of firearm convictions – were the same

criminal conduct. However, the court did not find that counts 6, 7, and 8 were the same criminal

conduct as the firearm enhancement associated with count 4.

       Trujeque-Magana argues that counts 1 and 4 should constitute the same criminal conduct.

He claims that although the two drug violations occurred at different times and at different

places, his intent was the same and they occurred over a short time frame. However, by

Trujeque-Magana’s own admission, counts 1 and 4 took place at different times and places.

Under RCW 9.94A.589(1)(a), the crimes must have been committed at the same time and place

to constitute the same criminal conduct. Therefore, Trujeque-Magana’s argument fails.

       Trujeque-Magana also argues that counts 6, 7, and 8 were the same criminal conduct as

the firearm enhancement associated with count 4. He claims that being armed for the purpose of

the firearm enhancement was intimately tied to possessing the guns, and therefore should have

been considered the same criminal conduct.

       However, the criminal intent element of the firearm enhancement for possession with

intent to distribute cocaine is different than for first degree unlawful possession of a firearm or




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for alien in possession of a firearm. State v. McGrew, 156 Wn. App. 546, 555, 234 P.3d 268

(2010). For the possession with intent to deliver cocaine and firearm enhancement charge, the

State was required to prove Trujeque-Magana intended to deliver the cocaine while armed with a

firearm. Id. But for the unlawful firearm possession charges and the alien in possession of a

firearm charge, the State was required to prove only that Trujeque-Magana knowingly possessed

the firearms. See McGrew, 156 Wn. App. at 555. As noted above, to constitute the same

criminal conduct two offenses must have the same criminal intent. Aldana Graciano, 176 Wn.2d

at 540. Therefore, this argument also fails.

       Accordingly, we hold that the trial court did not abuse its discretion in ruling that

Trujeque-Magana’s convictions on counts 1 and 4 were not the same criminal conduct and that

his convictions on counts 6, 7, and 8 and the firearm enhancement associated with count 4 were

not the same criminal conduct.

       2.    Effect of RCW 69.50.435(1) on Firearm Enhancement

       Under RCW 69.50.435(1), a sentencing court may impose “imprisonment of up to twice

the imprisonment otherwise authorized by this chapter” for a violation of RCW 69.50.401

involving possession with the intent to deliver a controlled substance if the defendant committed

the offense within 1,000 feet of a school bus route stop or 1,000 feet of school grounds. RCW

69.50.401(2)(a) states that violations of that section for schedule I or II narcotics are punishable

by up to 10 years imprisonment. Former RCW 69.50.101(dd)(5) (2015) states that cocaine is a

narcotic drug, and cocaine is listed as a schedule II controlled substance under RCW

69.50.206(b)(4).

       Here, the jury found that Trujeque-Magana had committed possession with intent to

distribute cocaine within 1,000 feet of a school bus stop. The trial court therefore concluded that




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the maximum term for count 4 was 20 years. The significance of this ruling was that under

RCW 9.94A.533(3)(a), the sentence for each firearm enhancement was five years rather than

three years.

       Trujeque-Magana argues that the trial court should have applied the enhancement by

doubling the standard range sentence listed in RCW 9.94A.517-.518 rather than to the statutory

maximum sentence under RCW 69.50.401(2)(a). But RCW 69.50.435(1) specifically references

“imprisonment otherwise authorized by this chapter.” (Emphasis added.) The term of

imprisonment listed in chapter 69.50 RCW that can be doubled is the statutory maximum listed

in RCW 69.50.401(2)(a) – 10 years imprisonment.

       This court held that under RCW 69.50.435(1), the maximum sentence is doubled to

create a new maximum sentence for purposes of calculating the firearm sentencing enhancement.

State v. Blade, 126 Wn. App. 174, 179-80, 107 P.3d 775 (2005). While addressing a different

statute, the Supreme Court cited Blade with approval and confirmed that RCW 69.50.435(1) has

the effect of doubling the maximum sentence, not the standard range sentence. In re Pers.

Restraint of Cruz, 157 Wn.2d 83, 89-90, 134 P.3d 1166 (2006).

       Accordingly, we hold that the trial court did not exceed its authority under RCW

69.50.435(1) in sentencing Trujeque-Magana.

       3.      Criminal Filing Fee

       Molina Rios argues in a supplemental brief that under State v. Ramirez, 191 Wn.2d 732,

426 P.3d 714 (2018), we should vacate the criminal filing fee imposed on him as part of his

sentence because he is indigent. The State did not respond to this argument.

       The trial court imposed as a mandatory LFO a $200 criminal filing fee. In 2018, the

legislature amended RCW 36.18.020(2)(h), which now prohibits imposition of the criminal filing




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fee on an indigent defendant. The Supreme Court in Ramirez held that this amendment applies

prospectively to cases pending on direct appeal. 191 Wn.2d at 747-50.

        Here, the trial court found that Molina Rios was indigent at the time of sentencing.

Therefore, under the current version of RCW 36.18.020(2)(h) the criminal filing fee imposed on

Molina Rios must be stricken.

H.      APPELLATE COSTS

        Molina Rios requests that we decline to impose appellate costs because he is indigent.

The State has represented that it would not seek costs if it prevails. Therefore, we accept the

State’s representation and deny the award of costs against Molina Rios.

                                          CONCLUSION

        We affirm Trujeque-Magana’s and Molina Rios’s convictions and sentences, but we

remand for the trial court to strike the criminal filing fee imposed on Molina Rios and amend his

judgment and sentence.

        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.



                                                      MAXA, C.J.


 We concur:



 LEE, J.



 SUTTON, J.



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