                                                                                                               FILED
                                                                                                        COURT OF APPEALS
                                                                                                             DIVIS10tq II
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                 2015 JUL 21                                                        AP! 9: 28
                                                       DIVISION II
                                                                                                       STi

 STATE OF WASHINGTON,                                                                  No. 46222 -2 -IIB y

                                           Respondent,


           V.



FRANK ANTHONY BARBARO,                                                         UNPUBLISHED OPINI


                                           I1

       MELNICK, J. —              Frank Anthony Barbaro appeals his conviction of unlawful possession of

a firearm in the first degree, arguing that the trial court abused its discretion by denying his motion

for a continuance and that this ruling violated his due process and Sixth Amendment rights.

Because Barbaro does not show that the trial court abused its discretion or that its ruling resulted

in prejudice, we affirm the conviction.


                                                             FACTS


        When Barbaro tried to pawn a rifle on November 30, 2013, the pawn shop declined the

pawn. Police Sergeant Adam Seig was in the pawnshop at the time and followed Barbaro, outside

and questioned            him.   Barbaro admitted that he was a convicted felon and that he knew he could

not have the rifle. Seig arrested Barbaro and seized the rifle.

        The State charged Barbaro with unlawful possession of a firearm in the first degree and

unlawful possession of a controlled substance based on methamphetamine found after his arrest.

He pleaded not guilty on December 17, and the trial court set the trial to begin the week of February
3, 2014.        On February 5, the parties moved to continue the trial date to allow additional time for
                           The trial               the trial to begin the   week of   April 14.
testing the      rifle.                court set
46222 -2 -II



          The State then filed a motion in limine to preclude Barbaro from arguing that he did not

know the rifle was an operable firearm. At an April 9 status hearing, defense counsel asked for a

one- week continuance of the trial date to give him time to research and brief the State' s motion.

The trial court continued the trial one week and scheduled the State' s motion for hearing on April

14. In a written response to the State' s motion, defense counsel argued that Barbaro' s defense to

the firearm charge was that he believed he possessed a replica gun that was merely a collector' s

piece.




          During the April 14 hearing, the State argued that Barbaro' s proposed defense was
                    State        Releford, 148 Wn.        App.    478, 200 P. 3d 729 ( 2009).         The Releford court
controlled     by           v.




rejected the argument that a conviction for unlawful possession of a firearm requires proof that the

defendant knew not only that he possessed a firearm but also that the weapon was a firearm under

Washington law; i.e., that it could be rendered operational in a reasonable time and with reasonable

          148 Wn.                     495- 96. Releford          involved the      possession of a replica     firearm. 148
effort.               App.       at                       also




Wn. App. at 484.

          Defense counsel responded that Barbaro should be able to argue that he did not know that

the replica firearm was operational and therefore illegal for him to possess. Defense counsel added

that if the court granted the State' s motion, there would be no trial because Barbaro did not dispute

he possessed the rifle. The trial court ruled that Releford controlled and that the State did not have

to prove that Barbaro knew the weapon he possessed was operable.

          On April 16, Barbaro             asked   the   court   to    continue   the trial to the   week of    May    5.   His



attorney explained that the court' s ruling had precluded him from presenting the defense that he
planned to pursue and that he and Barbaro needed some time " to digest what this trial would look

like   should   the   case proceed        to trial."   Report    of    Proceedings ( Apr. 16, 2014)     at   5- 6.   The State




                                                                  F)
46222 -2 -II




opposed the continuance, explaining that its witnesses were ready after adjusting their schedules

to accommodate the previous continuance. The State also noted that there were no developments

that defense counsel could not have foreseen. The trial court denied the continuance.

           On the first day of trial, Barbaro pleaded guilty to the drug charge. He also stipulated to a

prior serious offense. Sergeant Seig then testified to the facts set forth above, and Detective Keith

Mercer testified that he      witnessed       the rifle' s successful test   firing. He acknowledged, however,

that the   rifle would not    fire   until   the hammer   was   properly   positioned.   Officer Robert Cecil then


explained that although the rifle was a replica muzzleloader, it would not fire without modification.

He also stated that the rifle did not fire until he figured out how to position the hammer.

           After the jury found Barbaro guilty, the trial court imposed a prison -based drug offender
alternative sentence.'       Barbaro appeals.


                                                       ANALYSIS


           Barbaro argues that the trial court abused its discretion by denying his motion to continue

the trial to the week of May 5. We disagree.

           The decision to deny a continuance rests within the sound discretion of the trial court. State

v.   Downing, 151 Wn.2d        265, 272, 87 P. 3d 1169 ( 2004).        We review such a decision for abuse of


discretion and will not disturb it unless the appellant shows that the trial court' s exercise of decision

was manifestly unreasonable or based on untenable grounds. Downing, 151 Wn.2d at 272- 73.
           Barbaro maintains that the trial court' s denial of a continuance violated his due process and

Sixth Amendment rights by denying him and his attorney adequate time to consult and to prepare

for trial. See State    v.   Sain, 34 Wn.       App.   553, 558, 663 P. 2d 493 ( 1983) ( constitutional right to


assistance of counsel includes time for consultation and preparation, the denial of which violates



 1
     RCW 9. 94A. 660.
46222 -2 -II




due   process).   Whether the denial of a continuance constitutes a constitutional violation requires a


case- by- case inquiry. Downing, 151 Wn.2d at 275.

         The factors that a trial court may consider in ruling on a motion for a continuance include

 surprise, diligence, redundancy, due process, materiality, and maintenance of orderly procedure."

Downing, 151 Wn.2d at 273. A party establishes that the trial court abused its discretion in denying

a continuance by showing " that the accused has been prejudiced and/ or that the result of the trial

                  have been different had the   continuance not   been denied."   State v. Eller, 84 Wn.2d
would    likely

90, 95, 524 P. 2d 242 ( 1974).


         To find Barbaro guilty of unlawful possession of a firearm in the first degree, the jury had

to find that he knowingly had a firearm in his possession or control, that he had previously been
convicted of a serious offense, and that the firearm possession occurred in Washington. The trial

court further instructed the jury that a firearm " is a weapon or device from which a projectile may

be fired by an explosive such as gun powder and which can be rendered operable with reasonable

effort and within a reasonable     time   period."   RP ( Apr. 21, 2014) at 214- 15.


         The only issue at trial related to the operability of the rifle. Defense counsel closely cross

examined the State' s witnesses about the rifle' s test firing and focused his closing argument on the

theory that the gun malfunctioned during testing and was not operable. In arguing on appeal that
defense counsel needed more time to prepare a defense, Barbaro does not explain what other

defense, if any,     was available.   Consequently, he does not show prejudice from the denial of the

continuance.       He also fails to show that the trial result would have differed had the continuance

been granted. The trial court did not abuse its discretion by denying the continuance.




                                                        0
46222 -2 -II



        We affirm the 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.




                                                                    a




                                                             Melnick, J.


We concur:




        Johanson, C. J.




                                                  5
