                                                                          FILED
                                                                      JANUARY 31, 2019
                                                                  In the Office of the Clerk of Court
                                                                 WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

 STATE OF WASHINGTON,                            )
                                                 )         No. 35305-2-III
                        Respondent,              )
                                                 )
           v.                                    )
                                                 )         OPINION PUBLISHED
 ISMAEL M. TARANGO,                              )         IN PART
                                                 )
                        Appellant.               )

       SIDDOWAY, J. — At issue in this appeal is whether a reliable informant’s tip that

Ismael Tarango was seen openly holding a handgun while seated in a vehicle in a grocery

store parking lot was a sufficient basis, without more, for conducting a Terry1 stop of the

vehicle after it left the lot. In the published portion of this opinion, we hold that it was

not, and that Mr. Tarango’s motion to suppress the evidence obtained as a result of the

stop should have been granted.

       In the unpublished portion of this opinion, we hold that the evidence at trial was

insufficient to establish his unlawful possession of a second firearm located in the vehicle

after it was stopped. We reverse his firearm possession convictions and remand for

proceedings consistent with this opinion.


       1
           Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
No. 35305-2-III
State v. Tarango


                    FACTS AND PROCEDURAL BACKGROUND

       At around 2:00 in the afternoon on a winter day in 2016, Carlos Matthews drove to

a neighborhood grocery store in Spokane, parking his car next to a Chevrolet Suburban in

which music was playing loudly. A man was sitting in the passenger seat of the

Suburban, next to its female driver. When Mr. Matthews stepped out of his car and got a

better look at the passenger, who turned out to be Ismael Tarango, he noticed that Mr.

Tarango was holding a gun in his right hand, resting it on his thigh. Mr. Matthews would

later describe it as a semiautomatic, Glock-style gun.

       As he headed into the store, Mr. Matthews called 911 to report what he had seen,

providing the 911 operator with his name and telephone number. No recording or

transcript of the 911 call is in the record, but a computer-aided dispatch (CAD) report

offered by Mr. Tarango in support of a later motion to suppress included the following

entries:

       /142038        (25)      ENTRY      MALE WITH A HANDGUN IS SITTING
                                           IN HIS VEHICLE BEHIND THE BARGAIN
                                           GIANT.
       /142140                  SUPP       TXT: VEH BRN CHEVY TAHOE. LIC #
                                           UNK. H/M, 35 YRS. SEAHAWKS CAP
                                           AND SEAHAWKS SHIRT. HE ONLY HAD
                                           GUN IN HIS HAND HE DID NOT RAISE
                                           THE GUN OR DISPLAY IT. COMP. SAW
                                           IN MALES LAP. ###

Clerk’s Papers (CP) at 26. These entries were followed in the report by entries

identifying the several officers who responded.

                                             2
No. 35305-2-III
State v. Tarango


       The first officer to respond saw a vehicle meeting Mr. Matthews’s description

parked on the east side of the store. He called in the license plate number and waited for

backup to arrive. Before other officers could arrive, however, the Suburban left the

parking area, traveling west.

       The Suburban was followed by an officer and once several other officers reached

the vicinity, they conducted a felony stop. According to one of the officers, the driver,

Lacey Hutchinson, claimed to be the vehicle’s owner. When told why she had been

pulled over, she denied having firearms in the vehicle and gave consent to search it.

After officers obtained Mr. Tarango’s identification, however, they realized he was under

Department of Corrections (DOC) supervision and decided to call DOC officers to

perform the search.

       In searching the area within reach of where Mr. Tarango had been seated, a DOC

officer observed what appeared to be the grip of a firearm located behind the passenger

seat, covered by a canvas bag. When the officer moved the bag to get a better view of the

visible firearm—the visible firearm turned out to be a black semiautomatic—a second

firearm, a revolver, fell out. Moving the bag also revealed a couple of boxes of

ammunition. At that point, officers decided to terminate the search, seal the vehicle, and

obtain a search warrant. A loaded Glock Model 22 and a Colt Frontier Scout revolver

were recovered when the vehicle was later searched.



                                             3
No. 35305-2-III
State v. Tarango


         While others contacted DOC and remained at the scene, one of the responding

officers contacted Mr. Matthews to obtain a statement as to what he had observed. Mr.

Matthews told the officer that after he made the 911 call, Mr. Tarango and the female

driver entered the grocery store. He told the officer that as he stood in line waiting to pay

for his groceries, Mr. Tarango looked at him and raised his finger to his lips, as if

signaling to Mr. Matthews to “keep quiet.” Report of Proceedings (RP) (Dec. 5, 2016)

at 39.

         The State charged Mr. Tarango, who had prior felony convictions, with two counts

of first degree unlawful possession of a firearm. Because Mr. Tarango had recently failed

to report to his community custody officer as ordered, he was also charged with escape

from community custody.

         Before trial, Mr. Tarango moved to suppress evidence obtained as a result of the

traffic stop, arguing that police lacked reasonable suspicion of criminal activity and that

the search of a nonprobationer’s vehicle exceeded the DOC’s authority. Relying on this

court’s decision in State v. Cardenas-Muratalla, 179 Wn. App. 307, 319 P.3d 811 (2014),

which had relied in turn on the United States Supreme Court’s decision in Florida v. J.L.,

529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000), Mr. Tarango argued that “it is

not a crime to have a firearm in a vehicle.” CP at 56.

         No testimony was provided at the hearing. Mr. Tarango relied on the CAD report



                                              4
No. 35305-2-III
State v. Tarango


and several police reports. The State submitted additional police and DOC officer

reports.

       After taking the matter under advisement, the trial court convened a hearing at

which it announced its findings and denied the suppression motion. RP (Aug. 11, 2016)

at 3-6. It distinguished Cardenas-Muratalla as involving an anonymous informant,

whereas Mr. Matthews had identified himself. In finding reasonable suspicion of

criminal activity, the court appeared to believe, in error, that one of Mr. Matthews’s

observations “known to law enforcement through his 911 call” was that while in the

grocery store,

       the defendant allegedly made a gesture as if to admonish Mr. Matthews to
       be quiet, a shushing gesture if that’s the appropriate verb or word.
       Matthews further described that the defendant has a weird and mean
       expression on his face.

RP (Aug. 11, 2016) at 4.

       Written findings and conclusions were later proposed and entered, which again

reflect the court’s mistaken belief that Mr. Matthews saw the “shushing” gesture before

making the 911 call and reported it to the 911 operator. CP at 75. The court’s findings 4

and 5 state:

       4. Informant then sees [Mr. Tarango] in the store. [Mr. Tarango] gives
          informant the “shushing gesture”, and had a mean look on his face.
       5. Informant then calls 911, and remains in the area to follow the vehicle
          and makes himself available to the police.

Id.

                                             5
No. 35305-2-III
State v. Tarango


       At the jury trial presided over before a different judge, the State called as

witnesses to the firearm possession charges Mr. Matthews and the police and DOC

officers who participated in the stop and the related investigation. The defense called

three witnesses: Ms. Hutchinson, who testified that Mr. Tarango did not have a handgun

in his possession on the day they were stopped; Vera Kay Nickerson, a friend and

neighbor of Ms. Hutchinson and Mr. Tarango, who testified she placed the two firearms

behind the Suburban’s passenger seat, unbeknownst to Ms. Hutchinson or Mr. Tarango;

and Raymond Glen Beebe, who confirmed Ms. Nickerson’s testimony that he was a

friend of hers, owned the Glock, and had allowed her to borrow it.

       The jury found Mr. Tarango guilty as charged. He appeals.

                                        ANALYSIS

       Mr. Tarango assigns error to the trial court’s denial of his suppression motion,

making a related assignment of error to the court’s fourth and fifth findings of fact. He

also argues that insufficient evidence supports his conviction of illegal possession of the

revolver recovered from the canvas bag. We address his challenges in that order.

BECAUSE OFFICERS LACKED REASONABLE SUSPICION THAT MR. TARANGO HAD ENGAGED
IN OR WAS ABOUT TO ENGAGE IN CRIMINAL ACTIVITY, THE SUPPRESSION MOTION SHOULD
                                   HAVE BEEN GRANTED

       We first address whether the trial court erred in denying Mr. Tarango’s

suppression motion. When reviewing the denial of a suppression motion, we determine

whether substantial evidence supports challenged findings of fact and whether the

                                              6
No. 35305-2-III
State v. Tarango


findings support the conclusions of law. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d

1266 (2009). While Mr. Tarango challenges the trial court’s fourth and fifth factual

findings, there is no dispute on that score; the State concedes they are in error as to

timing. It agrees that officers responding to the 911 call had not heard about Mr.

Matthews’s report of Mr. Tarango’s intimidating conduct in the grocery store, which took

place after the 911 call was made. Because the only issue on appeal is whether the

correct factual findings support the trial court’s suppression decision, our review is de

novo.

        Warrantless searches and seizures are per se unreasonable unless one of the few

jealously and carefully drawn exceptions to the warrant requirement applies. State v.

Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). A Terry investigative stop is a well-

established exception. State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008).

The purpose of a Terry stop “‘is to allow the police to make an intermediate response to

a situation for which there is no probable cause to arrest but which calls for further

investigation.’” State v. Armenta, 134 Wn.2d 1, 16, 948 P.2d 1280 (1997) (quoting State

v. Kennedy, 107 Wn.2d 1, 17, 726 P.2d 445 (1986) (Dolliver, C.J., dissenting)).

        “To conduct a valid Terry stop, an officer must have ‘reasonable suspicion of

criminal activity based on specific and articulable facts known to the officer at the

inception of the stop.’” State v. Weyand, 188 Wn.2d 804, 811, 399 P.3d 530 (2017)

(quoting State v. Fuentes, 183 Wn.2d 149, 158, 352 P.3d 152 (2015)). The

                                              7
No. 35305-2-III
State v. Tarango


reasonableness of an officer’s suspicion is evaluated based on the totality of the

circumstances known to the officer. Id. The totality of the circumstances includes the

officer’s training and experience, the location of the stop, the time of day, the conduct of

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

suspect’s liberty. Id. at 811-12; State v. Mendez, 137 Wn.2d 208, 219 n.4, 970 P.2d 722

(1999), abrogated on other grounds by Brendlin v. California, 551 U.S. 249, 127 S. Ct.

2400, 168 L. Ed. 2d 132 (2007).

       A suspect’s activity that is consistent with noncriminal activity as well as criminal

activity may still justify a brief detention under Terry. Kennedy, 107 Wn.2d at 6. The

question for the officer and for a reviewing court is whether the circumstances support a

reasonable suspicion that there is a “substantial possibility that criminal conduct has

occurred or is about to occur.” Id.

       In evaluating whether the circumstances supported a reasonable suspicion of

criminal conduct, we bear in mind that Washington is an “open carry” state, meaning that

it is legal in Washington to carry an unconcealed firearm unless the circumstances

manifest an intent to intimidate another or warrant alarm for the safety of other persons.

RCW 9.41.050, .270; S. COMM. ON LAW AND JUSTICE, WASHINGTON FIREARMS LAWS

SUMMARY 2018, at 12 (Wash. 2018), http://leg.wa.gov/Senate/Committees/LAW

/Documents/Washington%20Firearms%20Laws.pdf [https://perma.cc/M8QJ-QNUJ].

Apart from the right to carry, legal restrictions on an individual’s possession of a firearm

                                              8
No. 35305-2-III
State v. Tarango


are imposed based on, e.g., the type of firearm; the individual’s age, criminal history, or

mental illness; provisions of protective orders; and on the possession of weapons in

certain locations. See id. at 2-6, 11, 15-18; see chapter 9.41 RCW.

       Generally, to carry a concealed weapon a person must have a license to carry a

concealed pistol. RCW 9.41.050(1)(a).2 A person may not lawfully carry or place a

loaded pistol in a vehicle unless the person has a concealed pistol license and the pistol is

either on the licensee’s person, the licensee is within the vehicle whenever the pistol is,

or, if the licensee is away from the vehicle, the pistol is locked inside and concealed from

view from outside. RCW 9.41.050(2)(a). Washington is a “shall issue” state, meaning

that law enforcement officials are required to issue a concealed pistol license to any

applicant who meets statutory requirements. WASHINGTON FIREARMS LAWS SUMMARY

2018, supra, at 12; RCW 9.41.070.

       Mr. Tarango places substantial reliance on the United States Supreme Court’s

decision in J.L. In that case, police made an investigative stop after an anonymous caller

reported that a young black man standing at a particular bus stop and wearing a plaid shirt

was carrying a concealed gun. They were able to locate a 15-year-old black man meeting

the caller’s description at the reported location. No gun was seen by police on arrival, but

one was found on J.L.’s person when he was detained and frisked.


       2
         Excepted from the requirement are carrying a concealed weapon in the person’s
place of abode or fixed place of business. RCW 9.41.050(1)(a).

                                              9
No. 35305-2-III
State v. Tarango


       Unlike the facts in our case, the clear implication of the opinion in J.L.—and its

premise—is that the information law enforcement received from the 911 call was that the

young black man illegally possessed the gun.3 According to the decisions of the Florida

courts, the tip received was that a concealed weapon violation was taking place. This is

clear from the decision of the intermediate appellate court, see State v. J.L., 689 So. 2d

1116, 1117 (Fla. Dist. Ct. App. 1997) (“The police received an anonymous complaint that

a concealed weapon violation was taking place.”), and from the decision of the Florida

Supreme Court that quashed that decision, J.L. v. State, 727 So. 2d 204, 206 (Fla. 1998)

(analyzing the case as falling within the class of tips that allege criminal conduct but only

describe innocent details of identification). The decision of the United States Supreme

Court reveals that under applicable Florida law, it was a crime for someone under the age

of 18 to possess a firearm, and as previously indicated, J.L. was 15.

       Rather than turning on whether information that an individual possesses a gun is

enough to justify an investigative detention, J.L. turned on case law holding that


       3
         E.g., J.L., 529 U.S. at 268 (“Apart from the tip, the officers had no reason to
suspect any of the three [individuals at the bus stop] of illegal conduct” (emphasis
added)), 271 (citing to an argument by amicus that “a stop and frisk should be permitted
‘when (1) an anonymous tip provides a description of a particular person at a particular
location illegally carrying a concealed firearm,’” along with other factors (emphasis
added)), 272 (characterizing the State as supporting an exception to Terry under which “a
tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail
standard pre-search reliability testing” (emphasis added); such an exception could set in
motion a search “simply by placing an anonymous call falsely reporting the target’s
unlawful carriage of a gun” (emphasis added)).

                                             10
No. 35305-2-III
State v. Tarango


information obtained from an anonymous tip does not provide reasonable suspicion

unless, through corroboration, the tip exhibits sufficient indicia of reliability. 529 U.S. at

270. On appeal to the Supreme Court, the State of Florida argued that because of the

danger posed by firearms, officers receiving a tip that an individual illegally possesses a

firearm should only need partial corroboration, of any “innocent details” provided by the

anonymous source:

       To require police, in situations where there is an anonymous tip that a
       specific individual is unlawfully carrying a firearm not observed by police
       officers, to wait for the brandishment or use of the firearm before finding
       reasonable suspicion effectively negates the Terry doctrine. Thus, in the
       instant situation, where innocent details of the anonymous tip are
       immediately verified, reasonable suspicion exists that the individual is
       committing a crime.

Pet’r’s Br. on the Merits, Florida v. J.L., No. 98-1993, 1999 WL 1259993, at *8 (U.S.

Dec. 23, 1999) (emphasis added). The State of Florida argued that once officers found

three black youths at the bus stop, one wearing a plaid shirt, they had sufficient

corroboration.

       The Supreme Court refused to modify the reliability analysis for anonymous tips

of illegal possession of a firearm, holding, “The reasonable suspicion here at issue

requires that a tip be reliable in its assertion of illegality, not just in its tendency to

identify a determinate person.” J.L., 529 U.S. at 272 (emphasis added).

       In denying Mr. Tarango’s suppression motion, the trial court correctly observed

that whether an anonymous tip was sufficiently corroborated was not at issue in this case,

                                                11
No. 35305-2-III
State v. Tarango


which does not involve an anonymous tip. Mr. Matthews provided his name and

telephone number to the 911 operator. He even remained in the parking lot of the

grocery store until he could see that police had arrived in response to his 911 call.

       Mr. Tarango also cites this court’s decision in Cardenas-Muratalla, which relies

on J.L. We recognize that the opinion in Cardenas-Muratalla states at one point, citing

only to J.L., that “[t]he presence of a firearm in public alone is insufficient for an

investigatory stop.” 179 Wn. App. at 313. We view the statement’s unwarranted citation

to J.L. as dicta, since the remainder of the opinion in Cardenas-Muratalla—which

involved an anonymous tip—legitimately follows J.L.’s holding that an anonymous

report of someone’s illegal possession of a firearm is not, without more, sufficient to

support a Terry stop.

       We agree that the presence of a firearm in public is insufficient, standing alone, to

support an investigatory stop, even if we do not agree with Cardenas-Muratalla’s

reliance on J.L. for support. Support for the proposition is provided by the well-settled

requirement that to conduct a Terry stop, an officer must have a reasonable and

individualized suspicion of criminal activity based on specific and articulable facts

known to the officer at the inception of the stop. Our agreement with the proposition is

reinforced by the United States Supreme Court’s Second Amendment decisions in

District of Columbia v. Heller, 554 U.S. 570, 628, 128 S. Ct. 2783, 171 L. Ed. 2d 637

(2008) and McDonald v. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020, 177 L. Ed. 2d

                                              12
No. 35305-2-III
State v. Tarango


894 (2010), and by our Supreme Court’s similar construction of article I, section 24 of

the Washington Constitution in City of Seattle v. Evans, 184 Wn.2d 856, 366 P.3d 906

(2015) and State v. Rupe, 101 Wn.2d 664, 683 P.2d 571 (1984).

       In Heller, the Supreme Court construed “the inherent right of self-defense” as

“central to the Second Amendment right [to bear arms]” and as extending to the lawful

possession of handguns—a “class of ‘arms’ that is overwhelmingly chosen by American

society for that lawful purpose.” 554 U.S. at 628. In McDonald, the Court held that the

Fourteenth Amendment incorporates the Second Amendment right, making it fully

applicable to the states. 561 U.S. at 749-50.

       In Evans, our Supreme Court held that the Washington Constitution’s guarantee of

the right to bear arms “protects instruments that are designed as weapons traditionally or

commonly used by law-abiding citizens for the lawful purpose of self-defense.” 184

Wn.2d at 869. Our Supreme Court has also characterized Washington’s constitutional

protection of the right to bear arms as facially broader than the Second Amendment4 and

has held that possession of legal firearms “falls squarely within the confines of the right.”

Rupe, 101 Wn.2d at 706.



       4
           Article I, section 24 of the Washington Constitution provides:
       The right of the individual citizen to bear arms in defense of himself, or the
       state, shall not be impaired, but nothing in this section shall be construed as
       authorizing individuals or corporations to organize, maintain or employ an
       armed body of men.

                                              13
No. 35305-2-III
State v. Tarango


       Since openly carrying a handgun is not only not unlawful, but is an individual

right protected by the federal and state constitutions, it defies reason to contend that it can

be the basis, without more, for an investigative stop.

       The State offers a defense of the trial court’s suppression decision by suggesting

that the trial court had more:

       [T]he facts that police had at the time they stopped Mr. Tarango were: (1)
       Mr. Tarango was sitting in a vehicle; (2) the vehicle was “behind” the
       Bargain Giant store; (3) Mr. Tarango had a handgun in his hand; (4) there
       was a high risk to the public of robberies of establishments such as the
       Bargain Giant; (5) the named complainant called 911 to report what he had
       seen and left his information.

Br. of Resp’t at 12-13. From this, the State argues that “[a] reasonable inference . . . may

be drawn . . . that the complainant was concerned about Mr. Tarango’s presence with a

handgun in the parking lot of the Bargain Giant.” Id. at 13.

       The evidence and argument at the suppression hearing attached no importance to

Mr. Matthews’s report that the Suburban was parked “behind” the grocery store—which

is, after all, where Mr. Matthews parked. The trial court did not find that the Suburban

was parked “behind” the store or that where it was parked was relevant to suspecting

criminal activity.

       The court’s findings also make no reference to a high risk of robberies to

neighborhood grocery stores, which was not argued as a basis for reasonable suspicion




                                              14
No. 35305-2-III
State v. Tarango


during the suppression hearing. Only one responding officer mentioned such a risk in his

report. The State’s suggestion that in a high-risk setting there is a substantial possibility

that an individual openly carrying a handgun is planning to commit a robbery rather than

merely exercising the constitutional right to self-defense is not persuasive. See Kennedy,

107 Wn.2d at 6 (adopting the “substantial possibility” standard for deciding whether

ambiguous conduct is noncriminal or criminal).

       Finally, as to the relevance of the fact that Mr. Matthews was concerned enough to

make a 911 call, the federal Court of Appeals for the Sixth Circuit has observed that

laypersons in open carry jurisdictions might have a misplaced concern on seeing an

individual openly carrying a firearm, unaware that it is legal. Northrup v. City of Toledo

Police Dep’t, 785 F.3d 1128, 1131-32 (6th Cir. 2015). A police officer, on the other

hand, “ha[s] no basis for such uncertainty . . . at least with regard to unambiguous

statutes.” Id. at 1132. In Northrup—a civil rights action against an officer who stopped

(and later arrested) a plaintiff openly carrying a handgun—the appellate court rejected the

officer’s “reasonable suspicion” defense and held that he was not entitled to qualified

immunity.

       In so holding, Northrup cited with approval a Fourth Circuit case holding that the

possibility that an individual’s possession of a firearm might be illegal—the person might

be a felon, for instance—was not a justification for a Terry stop: “Where it is lawful to



                                              15
No. 35305-2-III
State v. Tarango


possess a firearm, unlawful possession ‘is not the default status.’” Id. (quoting United

States v. Black, 707 F.3d 531, 540 (4th Cir. 2013)). Among other jurisdictions that have

concluded that where openly carrying a firearm is legal, the exercise of the right, without

more, cannot justify an investigatory detention, include the Tenth, Third, Fifth and Eighth

Circuit Courts of Appeal and the Supreme Court of Indiana. See United States v. King,

990 F.2d 1552, 1559 (10th Cir. 1993); United States v. Ubiles, 224 F.3d 213, 218 (3d Cir.

2000); United States v. Roch, 5 F.3d 894, 899 (5th Cir. 1993); Duffie v. City of Lincoln,

834 F.3d 877, 883 (8th Cir. 2016); Pinner v. State, 74 N.E.3d 226 (Ind. 2017).

       Because the officers conducting the Terry stop of the Suburban had no information

at the inception of the stop that Mr. Tarango or Ms. Hutchinson had engaged in or were

about to engage in criminal activity, they lacked reasonable suspicion. The motion to

suppress should have been granted. We grant Mr. Tarango his requested remedy of

reversing the firearm possession convictions and remanding the case for further

proceedings. For reasons explained in the unpublished portion of this opinion, we direct

the trial court to dismiss the charge of unlawful possession of the revolver (count II).

       A majority of the panel having determined that only the foregoing portion of this

opinion will be printed in the Washington Appellate Reports and that the remainder

having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it

is so ordered.



                                             16
No. 35305-2-III
State v. Tarango


      INSUFFICIENT EVIDENCE SUPPORTS MR. TARANGO’S CONVICTION ON COUNT II

       We next address whether sufficient evidence supports Mr. Tarango’s conviction

on count II: his alleged unlawful possession of the revolver recovered from the canvas

bag located behind where he had been seated.

       RCW 9.41.040(1)(a) makes it a crime for a person to “own[ ], ha[ve] in his or her

possession, or ha[ve] in his or her control any firearm after having previously been

convicted or found not guilty by reason of insanity . . . of any serious offense.” Mr.

Tarango stipulated to his prior conviction of a serious offense. But since the only State

witness offering direct evidence of his possession of a firearm saw Mr. Tarango holding a

Glock, not a revolver, he challenges the sufficiency of evidence that he had the latter in

his possession or control. If the evidence is insufficient, Mr. Tarango is entitled not only

to reversal of his conviction on count II, but to dismissal of the charge.

       “‘The test for determining the 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. Witherspoon, 180 Wn.2d

875, 883, 329 P.3d 888 (2014) (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d

1068 (1992)). A criminal defendant’s claim of insufficient evidence admits the truth of

the State’s evidence and “‘all inferences that reasonably can be drawn [from it].’” State

v. Condon, 182 Wn.2d 307, 314, 343 P.3d 357 (2015) (alteration in original) (quoting

Salinas, 119 Wn.2d at 201).

                                             17
No. 35305-2-III
State v. Tarango


       Possession can be actual or constructive. State v. Turner, 103 Wn. App. 515, 520,

13 P.3d 234 (2000). In closing, the prosecutor told jurors:

       [I]f Mr. Tarango was seen with the Glock and then the Glock ends up right
       behind the seat and the bag is right over the Glock, you can decide whether
       or not Mr. Tarango must have been manipulating that bag, must have had
       the bag in his possession and, thus, the firearm in his possession.

RP (Dec. 5, 2016) at 462.

       Two decisions of our Supreme Court are key. State v. Callahan is a seminal case

holding that a “momentary handling” or “passing control” of property is not enough to

prove its unlawful possession. 77 Wn.2d 27, 29, 459 P.2d 400 (1969) (citing United

States v. Landry, 257 F.2d 425, 431 (7th Cir. 1958)). The Callahan court reviewed prior

Washington cases affirming drug possession convictions and summarized them as

involving evidence in each instance that the defendant was in dominion and control of

either the drugs or the premises on which the drugs were found. It distinguished the

State’s evidence against Callahan, who had been residing temporarily on a houseboat

where drugs were seized; he had merely been in close proximity to the drugs and handled

them momentarily. Id. at 31. The court found his mere proximity and momentary

handling of the drugs was not sufficient to establish dominion and control. Id. at 29.

       A second and much more recent case is State v. Davis, 182 Wn.2d 222, 340 P.3d

820 (2014) (plurality opinion) in which the dissent by Justice Stephens expressed the

opinion of the majority of the court on the issue of whether the State had proved two



                                            18
No. 35305-2-III
State v. Tarango


defendants’ possession of a firearm. Defendant Davis was at his home when an

acquaintance, Maurice Clemmons arrived, told Davis that he had been shot while killing

four police officers, and requested a ride to the home of a third individual, Nelson. Lead

opinion at 225. Upon arrival at the Nelson home, Clemmons was given fresh clothing

and help treating his gunshot wound. Id. Nelson put some clothes and a gun that Mr.

Clemmons had stolen from one of the officers into a shopping bag, leaving it on a

counter. Id. Just before leaving, Clemmons asked where the gun was and Davis replied

it was in the shopping bag, which he handed to Clemmons. Id. In addition to later being

found guilty of criminal assistance, Davis and Nelson were found guilty of possession of

a stolen firearm, and Davis was also found guilty of unlawful possession of a firearm. Id.

       The court majority characterized the facts as resembling the lack of dominion and

control addressed in Callahan “because neither Davis nor Nelson asserted any interest in

the gun. Instead, they briefly handled the item for Clemmons, the true possessor of the

gun.” Id. at 235 (Stephens, J., dissenting). The majority also found that Davis’s and

Nelson’s momentary handling of the gun was insufficient to prove actual possession.

Dissent at 237. It viewed Clemmons’s intimidating character and actions as a

circumstance contributing to his, rather than Davis’s or Nelson’s, dominion and control.

Id. at 235. See also State v. Chouinard, 169 Wn. App. 895, 899-900, 903, 282 P.3d 117

(2012) (fact that back seat passenger saw a rifle that was placed in the vehicle’s trunk and

protruded into the back seat was insufficient; defendant’s mere proximity to the rifle and

                                            19
No. 35305-2-III
State v. Tarango


knowledge of its presence was not enough to sustain a conviction for constructive

possession).5

       The prosecutor’s argument to the jurors in Mr. Tarango’s case that “Mr. Tarango

must have been manipulating th[e canvas] bag” to have placed the Glock underneath it

relies on only a momentary handling of the bag in which the revolver was located. RP

(Dec. 5, 2016) at 462. The facts are substantively indistinguishable from Callahan and

Davis. Evidence of possession of the revolver was insufficient and Mr. Tarango is

entitled to dismissal of that charge.6

       The State points out in responding to Mr. Tarango’s brief that his assignments of

error do not provide a basis for reversing his conviction for escape from community

custody. Mr. Tarango does not disagree.


       5
          We recognize that in the atypical case where a reasonable juror might find a
defendant’s connection to property to be a “momentary handling” or “passing control,”
it could be difficult to make that argument from the pattern instruction on possession of
a weapon. See 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL § 133.52, at 678 (4th ed. 2016). Additional instruction would
be appropriate.
        6
          The prosecutor also fleetingly invited jurors during closing to consider that
ammunition for the Glock was found in the canvas bag. RP (Dec. 5, 2106) at 462
(inviting jurors to look at “the nexus between the Glock .40 caliber and the ammunition
for the Glock .40 caliber being in that bag”). But that was not the testimony of the
corrections officer who performed the search. See RP (Dec. 5, 2016) at 124 (testifying,
“I do not recall if the ammunition was in the bag or not, or the ammunition box was in
there or not”), 126 (stating that the ammunition “could have been” in the bag, but he
didn’t know). The possibility that the ammunition might have fallen from the bag would
not support a finding, beyond a reasonable doubt, that Mr. Tarango possessed the
revolver.

                                           20
No. 35305-2-III
State v. Tarango


        We reverse Mr. Tarango's convictions for unlawful possession of a firearm, direct

the trial court to dismiss the charge stated as count II, and remand for further

proceedings. 7



                                                      J?~w~,~-
                                                  siddoway, J.

WE CONCUR:



   ~                1
                        <f·
FearinJ.d


 Q.
Pennell, A. C .J.




       7Because the State is not the substantially prevailing party, we need not address
Mr. Tarango's request that we deny any State request for an award of costs. Our decision
renders moot the issues raised in Mr. Tarango's prose statement of additional grounds.

                                             21
