                                                                                               ILEO
                                                                                       COURT OF APPEALS
                                                                                           DIVISION II .

                                                                                      2015 AUG 26       PM 12: 53
                                                                                      STATE OF WASHINGTON

                                                                                       BY
                                                                                                  E UTY




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                       DIVISION II

 STATE OF WASHINGTON,                                                                  No. 45058 -5 -II


                                            Respondent,


             v.



 SOEUN SUN,


                                            I1


            JOHANSON, C. J. —             A jury found Soeun Sun guilty of first degree burglary, first degree

conspiracy to commit first degree burglary, and several related firearm and trafficking offenses

with    accompanying firearm              enhancements.       Soeun Sun appeals his convictions, arguing that ( 1)

the State unlawfully seized evidence, (2) there was insufficient evidence that Soeun Sun was armed

with    a    firearm, ( 3)     the trial     court    committed    several    instructional    errors, (   4)   counsel   was



ineffective,       and (   5) the trial   court violated     Soeun Sun'   s   speedy trial   right.   He also appeals his


sentence,         arguing that ( 6)       imposition of the Persistent Offender Accountability Act of the

Sentencing Reform Act of 1981, ch. 9. 94A RCW, violated Soeun Sun' s right to due process and

right   to   equal protection.          We   reject   his   arguments   that ( 1)   insufficient evidence supports his


convictions, (       2) the trial court improperly instructed the jury, and ( 3) his speedy trial right was

violated. In addition, we decline to reach his ineffective assistance of counsel claim and the several


sentencing issues he          raises.     However,    we    hold that Soeun Sun     was   unlawfully   seized and    that the
No. 45058 -5 -II



fruits   of   the unlawful seizure must         be   suppressed.   Accordingly we vacate the trial court' s order

denying        Soeun Sun' s       motion   to   suppress,   reverse   his   convictions,   and remand for further


proceedings consistent with this opinion.


                                                            FACTS


                                                      I. BACKGROUND


          On December 17, 2011, Fife Police Officer Thomas Vradenburg investigated a burglary at

Sportco, a Fife sporting goods store. An inventory revealed that a total of 42 guns had been stolen.

Detective Jeff Nolta reviewed surveillance videos captured by Sportco' s security system showing

a white vehicle driving back and forth and stopping near the Sportco several times between 3: 00

AM and        3: 30   AM.   Sportco surveillance videos showed two people entering the store and running

toward the gun display cases.

          Coincidentally, Fife Police Officer Ryan Micenko ran the license plate information of the

suspicious white vehicle            approximately 20        minutes   before the Sportco    alarms   triggered.   The


vehicle, a white Honda, was registered to Phalay Soeung at a Tacoma address on Yakima Avenue.

          Later, Detective Nolta received information that an individual named David Bunta had


been involved in the Sportco burglary. Fife police surveilled Bunta' s home, workplace, and car.

On December 27, Fife police officers followed Bunta to the same Yakima Avenue address where


the   white     Honda       was registered.     Outside the Yakima Avenue home, police observed the white


Honda that was. seen near Sportco on the night of the crime.


          The following day, police arrested Bunta and searched his car and person incident to that

arrest. Police found two black ski masks, a 9 mm pistol, a global positioning system unit, two rolls




                                                              2'
No. 45058 -5 -II



of duct tape, and four pairs of gloves. Bunta confessed to participating in the Sportco burglary and

admitted that others were involved, but he refused to identify his cohorts.

         Later that day, 11 days after the burglary took place, police surveilled the white Honda at

the Yakima Avenue address.            That evening, police observed a man approach the white Honda

carrying   a small object   that   appeared   to be     wrapped   in   a   blanket.   According to the officers, the

man, later identified as Soeun Sun, looked around suspiciously before opening the trunk and

placing the unknown item inside. Officers then followed Soeun Sun as he drove from the residence

in the   white -Honda:   Soeun Sun arrived at a nearby gas station, parked, and began to pump gas.

Officers approached Soeun Sun with drawn guns and handcuffed him.


         Detectives frisked Soeun Sun for weapons and asked him to identify himself. Soeun Sun

initially gave false names and dates of birth. Officers continued to ask questions, suspecting that

Soeun Sun was not telling the truth because the false information he provided was not found in the

computer system. Police established Soeun Sun' s true identity when one ofthe officers recognized

him from previous encounters. Police determined that Soeun Sun had an outstanding Department

of Corrections warrant and arrested him.


          After officers read Miranda' rights, Soeun Sun admitted that he lived at the Yakima


Avenue     address.   Police obtained and executed a search warrant for the white Honda where they

found    a pistol wrapped   in   a   towel inside   a   backpack in the       vehicle' s   trunk.   A former Sportco


employee identified the gun found in Soeun Sun' s vehicle as one stolen during the burglary.




1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

                                                           3
No. 45058 -5 -II



          Officers also found ammunition and gloves in the car along with various documents

featuring Soeun Sun' s. name. And a search of Soeun Sun' s cell phone revealed several messages

relating to   potential    firearms transactions.       A search of the Yakima Avenue address revealed


another 9 mm pistol. This pistol was also one of the guns stolen in the Sportco burglary.

                                                    II. PROCEDURE


         By amended information, the State charged Soeun Sun with one count of first degree

unlawful possession of a firearm, one count of theft of a firearm, one count of first degree burglary,

one count of conspiracy to commit first degree burglary, one count of first degree trafficking in
                                                                                                                          2
stolen   property,    and one count of      conspiracy to     commit   first degree trafficking in   stolen   property.


Before trial, the trial court denied Soeun Sun' s motion to suppress all evidence *obtained as a result


of what he deemed an unlawful Terry stop.

          During trial, the State presented the testimony of several witnesses who were related to

Soeun Sun and who were connected to the alleged burglary and subsequent distribution of the

stolen firearms. The State also called T.J. Wells, a former gun salesman at Sportco. Wells recalled


seeing three suspicious individuals wearing hoods and dark clothing on the day before the burglary.

Wells remembered seeing the suspicious men examining the guns in the display case from which

they   were   later   stolen.    According to Wells, one of the men had a visible tattoo of writing or

scripture on   his    neck.     Soeun Sun has such a tattoo. Wells also testified that all of the guns were


operable firearms. Soeun Sun did not testify.



2
    See RCW 9. 41. 040( 1)(      a);   RCW 9A. 56. 300( 1);    RCW 9A.52. 020( 1)( a); RCW 9A.28. 040; RCW
9A.82. 050( 1).

3
    Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968).

                                                              M
No. 45058 -5 -II



             The jury found Soeun Sun guilty of all counts and answered "yes" to the four special verdict

forms finding that Soeun Sun or an accomplice was armed with a firearm during the commission

of those offenses.4 The trial court sentenced Soeun Sun to life in prison without the possibility of

parole   as a persistent offender on     the   burglary,   conspiracy,   and   trafficking   counts.   Soeun Sun


appeals.



                                                  ANALYSIS


                                           I. UNLAWFUL SEIZURE


             Soeun Sun contends that the evidence obtained as a result of his seizure and subsequent


arrest should have been suppressed because police did not have reasonable suspicion to conclude


that Soeun Sun was involved in any criminal activity. We agree. We hold that the trial court erred

as a matter of law by denying Soeun Sun' s motion to suppress because the officers lacked a

reasonable, particularized suspicion that Soeun Sun was involved in criminal activity.

                                            A. LEGAL PRINCIPLES


             We review conclusions of law in an order pertaining to suppression of evidence de novo.5
State   v.   Arreola, 176 Wn.2d 284, 291, 290 P. 3d 983 ( 2012). Warrantless disturbances of private


affairs are subject to a high degree of scrutiny. Our Supreme Court has explained that Washington



4 The jury determined that Soeun Sun was anned with a firearm at the time he committed the first
degree burglary, conspiracy to commit first degree burglary, first degree tracking in stolen
property, and conspiracy to commit first degree trafficking in stolen property.

5 The record does not contain written findings of fact or conclusions of law regarding the
suppression motion. Although failure to enter findings of fact and conclusions of law is error, such
error is harmless if the trial court' s oral findings are sufficient to permit appellate review. State v.
Weller, 185 Wn. App. 913, 923, 344 P. 3d 695, review denied, No. 91406- 1 ( Wash. July 8, 2015).
Here, the trial court provided a detailed oral ruling from which we can identify the findings it used
to support its conclusion.


                                                           5
No. 45058 -5 -II



State Constitution           article   I,   section   7   protects "`     those privacy interests which citizens of this state

have held, and should be entitled to hold, safe from governmental trespass absent a warrant."'

State   v.   Ladson, 138 Wn.2d 343, 34% 979 P. 2d 833 ( 1999) (                          quoting State v. Myrick, 102 Wn.2d

506, 511, 688 P. 2d 151 ( 1984)).                  Thus, we presume that a warrantless search or seizure violates


article   I,   section   7   unless    the State      shows      that the     search or seizure   falls "` within certain narrowly


and   jealously     drawn      exceptions       to the     warrant requirement."'         Arreola, 176 Wn.2d at 292 ( internal


quotation marks omitted) ( quoting                    State   v.   Day,   161 Wn.2d 889, 894, 168 P. 3d 1265 ( 2007)). The


State must establish an exception to the warrant requirement by clear and convincing evidence.

State v. Garvin, 166 Wn.2d 242, 250, 207 P. 3d 1266 ( 2009).


             The categories of narrow exceptions recognized by our courts include investigative stops.

Arreola, 176 Wn.2d at 292. To be constitutional under article I, section 7 as an investigative stop,

a warrantless stop must be based on at least a reasonable articulable suspicion of criminal activity.

Arreola, 176 Wn.2d at 292- 93. Specifically, an investigatory stop is lawful if the officer possesses

 specific and articulable facts which, taken together with rational inferences from those facts,


reasonably        warrant     that intrusion."         Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889

 1968).        We evaluate the totality of the circumstances known to the officer at the time when passing

on   the propriety of this            warrantless         stop   and search.       State v. Glover, 116 Wn.2d 509, 514, 806


P. 2d 760 ( 1991).           If a Terry stop is unlawful, the fruits obtained as a result must be suppressed.

See Garvin, 166 Wn.2d                  at   254.      The exclusionary rule mandates the suppression of evidence

gathered        through      unconstitutional means.                Garvin, 166 Wn.2d at 254 ( quoting State v. Duncan,

146 Wn.2d 166, 176, 43 P. 3d 513 ( 2002));                         see also Wong Sun v. United States, 371 U.S. 471, 485,

83 S. Ct. 407, 9 L. Ed. 2d 441 ( 1963).



                                                                          2
No. 45058 -5 -II


                                               B. REASONABLE SUSPICION


           Soeun Sun     relies on     State   v.   Doughty,   170 Wn.2d 57, 239 P. 3d 573 ( 2010), and State v.


Martinez, 135 Wn.         App.    174, 143 P. 3d 855 ( 2006), in support of his claim that he was seized


unlawfully. We find these cases and another recent case from our Supreme Court instructive.

           In Doughty, our Supreme Court reversed Doughty' s conviction when a police officer

conducted a Terry stop on Doughty after observing him approach and return from a home about

which officers     had previously        received complaints        regarding   suspected   drug   activity. 170 Wn.2d


at   60.   The Doughty court reasoned that there was no articulable suspicion to conduct a stop

because there was no indication that Doughty interacted with anyone in the house, no informant' s

tip existed specifically regarding Doughty, and the officers observed no furtive movements. 170

Wn.2d at 62- 64.


           In Martinez, Division Three of this court held that police lacked the particularized


suspicion necessary to conduct an investigatory stop when officers stopped Martinez after they

observed him walking briskly and acting nervously in a high crime area. 135 Wn. App. at 177- 78.

The Martinez court stated that " there must be some suspicion of a particular crime or a particular


person, and some connection             between the two."        135 Wn. App..at 182.

           Recently, in   State   v.   Fuentes, 183 Wn.2d 149, _              P. 3d (    2015), our Supreme Court


again examined the parameters of lawful Terry stops. 6 There, the court held that the totality of the

circumstances      did   not   justify   an    investigatory    stop   when   the arresting   officer   felt "` the entire


circumstance was suspicious."'                 Fuentes, 183 Wn.2d       at   161.   The Fuentes court conducted its




6 Fuentes is a consolidated case. Here, we rely on the facts from only State v. Sandoz, No. 90270-
4 ( Wash.    May   7, 2015), the case with which it was consolidated.


                                                                7
No. 45058 -5 -II



analysis. by considering each of the facts that the arresting officer relied on to justify the initial

stop.     183 Wn.2d              at   159.        The court noted that although we evaluate the totality of the

circumstances to determine whether reasonable suspicion exists, we do so in part by examining

each of the facts that contributed to the alleged suspicion. Fuentes, 183 Wn.2d at 159.

          The officer involved in that case relied on five facts to stop Steven Sandoz at an apartment

building that had       experienced a              high   number of criminal          incidents: ( 1) Sandoz' s surprise when he


saw     the    officer, (   2) conflicting stories between Sandoz and the driver of the vehicle in which

Sandoz        was   a passenger, (           3)   Sandoz'    s    pale   appearance      and   shaking, ( 4) the presence of an


unfamiliar vehicle, and ( 5) the officer' s. alleged authority to prevent loitering by nonoccupants.

Fuentes, 183 Wn.2d at 159.


          Considering all of these facts, the Fuentes court concluded that the officer who stopped

Sandoz lacked reasonable suspicion that was sufficiently individualized to Sandoz to justify his

stop.    183 Wn.2d          at   159.   Central to the court' s determination was the fact that, after considering

Sandoz' s conduct and all the accompanying circumstances, nothing suggested that Sandoz

specifically was engaged in criminal activity. Fuentes, 183 Wn.2d at 161. According to the court,

the officer' s hunch did not justify the stop. Fuentes, 183 Wn.2d at 161.

              C. SOEUN SUN WAS STOPPED WITHOUT A REASONABLE ARTICULABLE SUSPICION


      Here, Fife police suspected that the white Honda vehicle was involved in the Sportco burglary

because police knew that the vehicle was in the Sportco parking lot, having been seen on the store' s

surveillance video           driving back          and    forth   at   3: 00   AM.   Second, Detective Nolta obtained credible


information that Bunta was involved in the burglary and efforts to conduct surveillance on Bunta

further       connected     the   white      Honda to the        crime   because     police observed   Bunta   driving to   and   from
No. 45058 -5 -II



the home where the Honda was parked and, at some point, an unidentified male passenger from

the Honda made contact with an unidentified passenger in Bunta' s vehicle.


    Third, police arrested Bunta and confirmed his involvement in the crime along with the fact

that Bunta did     not act alone.   And fourth, 11 days after the burglary, police observed Soeun Sun

approach the Honda and place a relatively small, concealed item into the trunk. Police made this

observation knowing that the crime involved the theft of dozens of firearms.7 But like Fuentes,

the police here had no information that Soeun Sun specifically was or had been involved in any

criminal activity.


        The circumstances surrounding the arresting officers' suspicion of Soeun Sun consisted

entirely of (1) knowledge that a particular vehicle may have been associated with a crime and ( 2)

observing Soeun Sun placing an unidentified object into that vehicle and driving away 11 days

after the crime. Moreover, during the course of both the CrR 3. 5 and 3. 6 hearings, Detective Nolta

admitted that there was no reason to suspect Soeun Sun other than his connection and proximity

to the Honda.      Detective Nolta further admitted that police had seen the Honda being driven on

several occasions before Soeun Sun' s arrest, but he could not definitively say who was driving.

        Accordingly, like Fuentes, the totality of the circumstances here did not give rise to a

particularized suspicion     that Soeun Sun    was connected   to the   burglary.   An officer' s suspicion


must be reasonable and a hunch, without more, does not justify a stop. Doughty, 170 Wn.2d at 63.

Here, the officers had nothing more than a hunch that Soeun Sun may have been involved in the




  The record establishes that no facts were in dispute at the time of the suppression hearing.

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No. 45058 -5 -II



burglary. This falls far short of the clear and convincing evidence the State must produce to justify

the investigative stop exception to the warrant requirement.

                                     D. FRUIT OF THE POISONOUS TREE


        If a Terry stop is unlawful, the fruits obtained as a result must be suppressed. See Garvin,

166 Wn.2d at 254. The exclusionary rule mandates the suppression of evidence gathered through

unconstitutional means.     Garvin, 166 Wn. 2d      at   254 ( quoting Duncan, ,146 Wn.2d      at      176);   see also




Wong Sun, 371 U.S. at 485.

         Because the trial court here ruled that officers seized Soeun Sun pursuant to a lawful Terry

stop, it did not suppress evidence obtained as a result of that stop, nor did it consider whether any

evidence was gathered      through     constitutional means.$     We hold that Soeun Sun was unlawfully

seized and that the fruits of the unlawful seizure must be suppressed. We reverse the trial court' s

order   denying    Soeun Sun' s   motion   to   suppress.     Accordingly, we reverse his convictions and

remand for further proceedings consistent with this opinion.


                                     II. SUFFICIENCY OF THE EVIDENCE


         Soeun Sun next contends that the State presented insufficient evidence 'to establish the

                                                                                                   9
existence of   the   requisite nexus   between the   weapon,     Soeun Sun,   and   the   crime.       Accordingly,

Soeun Sun argues that his convictions for first degree burglary, conspiracy to commit first degree




I The State did not argue and the trial court did not consider the effect of Soeun Sun' s arrest warrant
or the validity of the subsequently obtained search warrants.

9 Although we reverse his convictions without prejudice because of the unlawful seizure as
discussed above, we address Soeun Sun' s insufficiency argument because, if successful, it would
result in dismissal with prejudice.


                                                         10
No. 45058 -5 -II



burglary,   and   the firearm       enhancements       must    be    vacated.    We hold that the State presented


sufficient evidence that Soeun Sun was armed with a firearm.


           Evidence is sufficient to support a finding of guilt if, after viewing the evidence in the

light most favorable to the State, a rational trier of fact could find the essential elements of the


crime   beyond    a reasonable      doubt."    State   v.   Rose, 175 Wn.2d 10, 14, 282 P. 3d 1087 ( 2012). " A


claim of insufficient evidence admits the truth of the State' s evidence and all inferences that


reasonably    can   be drawn from that        evidence."      State v. Caton, 174 Wn.2d 239, 241, 273 P. 3d 980


 2012).   We consider circumstantial and direct evidence to be equally reliable. State v. Delmarter,

94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980).


          A person can be guilty of first degree burglary if the State proves, among other elements,
                                                                        10
that the defendant     was armed with a           deadly     weapon.         RCW 9A.52. 020( 1)(      a).   The statutory

definition for " deadly weapon" provides,.

           Deadly weapon" means any explosive or loaded or unloaded firearm, and shall
          include any other weapon, device, instrument, article, or substance, including a
           vehicle" as defined in this section, which, under the circumstances in which it is
          used, attempted to be used, or threatened to be used, is readily capable of causing
          death or substantial bodily harm.

RCW 9A. 04. 110( 6).         This definitional     statute creates     two   categories of   deadly   weapons:     deadly

weapons per se and deadly weapons in fact. A firearm, whether loaded or unloaded, is a deadly

weapon per se.       State   v.   Hernandez, 172 Wn.          App.   537, 543, 290 P. 3d 1052 ( 2012) (       citing In re




io " A person is guilty of criminal conspiracy when, with intent that conduct constituting a crime
be performed, he or she agrees with one or more persons to engage in or cause the performance of
such conduct, and      any   one of them      takes a substantial step       in pursuance   of such agreement."     RCW
9A.28. 040.  But we decline to address the conspiracy charge specifically because Soeun Sun
provides no meaningful argument related to that charge. For purposes of his sufficiency challenge,
Soeun Sun relies entirely on the nexus argument that we address in this section.
                                                               11
No. 45058 -5 -II



Pers. Restraint of Martinez, 171 Wn.2d 354, 365, 256 P. 3d 277 ( 2011)), review denied, 177 Wn.2d


1022 ( 2013).


         For purposes of first degree burglary, defendants are armed with a deadly weapon if a

firearm is easily accessible and readily available for use by the defendants for either offensive or

defensive    purposes.         State   v.   Brown, 162 Wn.2d 422, 431, 173 P. 3d 245 ( 2007). When a defendant


has actual possession of a firearm, sufficient evidence supports a first degree burglary conviction

despite the firearm being unloaded and no evidence showing that the defendant intended to use it.

Hernandez, 172 Wn. App. at 543- 44.

         Soeun Sun relies entirely on Brown in support of his argument that the State was required

to   prove   that   a nexus existed,           In Brown, two men burglarized a residence but did not have the


opportunity to actually remove any property because the occupant returned home during the crime.

162 Wn.2d at 425- 26. Brown and the other man had, however, moved the homeowner' s rifle from


a closet onto       a   bed.    Brown, 162 Wn.2d          at   426.   Our Supreme Court vacated the first degree


burglary conviction and firearm enhancement, holding _that application of a firearm sentence

enhancement required a nexus                   among the defendant, the     weapon, and   the   crime.   Brown, 162


Wn.2d at 435.


         But Brown involved the question of constructive possession and the vast majority of its

analysis, including its holding regarding the required nexus, related to being " armed" for purposes

of the firearm sentencing enhancement. See 162 Wn.2d at 434 n.4 ( stating that the dissent ignores

the fact that the vast majority of courts conclude that a defendant is armed when he enters a

building and acquires a firearm as " loot")




                                                                 12
No. 45058 -5 -II



           This court' s decision in Hernandez offers a more apt comparison to the facts here. There,


a group of burglars committed a series of burglaries, during one of which they took a 20 gauge

shotgun.      Hernandez, 172 Wn.           App.    at   540.    The Hernandez court was not persuaded by the

argument that the State must prove a nexus between the firearm and the crime because there is no


nexus requirement, either for the purpose of first degree burglary or for a firearm enhancement

where      there   is   actual possession of a    firearm,     rather   than   constructive possession.    172 Wn. App.

at 544.


           Here there is no dispute that firearms were taken in the course of the burglary and therefore

either Soeun Sun or his accomplices were in actual possession of the firearms during the

commission of the           burglary.   Soeun Sun    states    in his   own    brief that "[ t] here was evidence here that


the Sportco        store was     broken into   at night and     firearms   were stolen."     Br. of Appellant at 24; see


also Ex. 31 ( video surveillance evidence clearly showing two men running from the Sportco

carrying firearms).          This fact is sufficient evidence to support the first degree burglary conviction

and the firearm enhancement for the burglary.

           Aside from his nexus argument, Soeun Sun asserts only that no evidence. suggested that

anyone involved in the burglary intended or was willing to use the stolen firearms in furtherance

of   the   crime.       But "[   w]hen first degree burglary involves deadly weapons per se, specifically

firearms taken in the            course of a   burglary, ` no analysis of willingness or present ability to use a

firearm     as a   deadly    weapon"'    is necessary. Hernandez 172 Wn. App. at 543 ( internal quotation

marks omitted) (          quoting Martinez, 171 Wn.2d at 367).




                                                                 13
No. 45058 -5 -II



          Accordingly, we hold that the State presented sufficient evidence that Soeun Sun or an

accomplice was armed with a deadly weapon for purposes of first degree burglary and the

accompanying firearm enhancements.

                     III. FAILURE To INSTRUCT REGARDING " NEXUS" REQUIREMENT


          We address Sun' s " nexus" instructional error argument. due to the possibility that this issue

may recur in case of retrial. Soeun Sun argues that even if sufficient evidence did exist to present

the burglary and conspiracy charges to the jury, reversal is nevertheless required because the court

failed to instruct the jury as to the nexus requirement for purposes of the first degree burglary

charge.    We hold that for the burglary charge, no instruction regarding nexus is required because

Soeun Sun or an accomplice had actual, rather than constructive, possession of the guns.


          Alleged errors of law injury instructions are reviewed de novo. State v. Willis, 153 Wn.2d

366, 370, 103 P. 3d 1213 ( 2005).         Jury instructions are proper when they permit the parties to argue

their.theories of the case, do not mislead the jury, and properly inform the jury of the applicable

law. Willis, 153 Wn.2d at 370.

          The trial court' s instruction provided,


           Armed    with a    firearm",   for the charge of Burglary in the First Degree only means
          that the defendant or an accomplice had a firearm in his possession or control and
          that the firearm, whether loaded or not, was readily available for offensive or
          defensive use."


Clerk'   s Papers   at   230. Soeun Sun requested that the instruction also include a ".nexus" definition


similar to that contained in the firearm enhancement instruction.


          The trial court refused to alter its proposed instruction to include any mention of a nexus

requirement because, in its view, the instructions as written allowed both sides to argue their


respective theories of the case and were consistent with current case law. As explained previously,

                                                         14
No. 45058 -5 -II



the trial court ruled correctly because there is no additional nexus requirement when the evidence

suggests that defendants in first degree burglary cases have actual possession of firearms.

Hernandez, 172 Wn. App. at 544.

             Soeun Sun again argues that the instruction was inadequate because evidence of intent or


willingness       to    use   the firearm is       required    to    prove    that   a   defendant is       armed.   But again, as


explained above,          Soeun Sun is incorrect because "`                no analysis of willingness or present ability to

use a   firearm        as a   deadly   weapon"'     is necessary when a first degree burglary involves a deadly

weapon per se,           specifically firearms taken in the                course of     that   burglary.    Hernandez, 172 Wn.


App:    at   543 ( quoting Martinez, 171 Wn.2d                 at   367). We hold that Soeun Sun' s claim fails.


                                  IX. STATEMENT OF ADDITIONAL GROUNDS ( SAG)


             In his SAG, Soeun Sun appears to argue that the trial court violated his right to a speedy

trial, he received ineffective assistance of counsel, and testimony from witnesses against him

should not have been used as evidence. We disagree that the trial court violated his right to speedy

trial and decline to reach his other additional grounds.


             Under CrR, 3. 3( b)( 1)( i),     an individual held in custody pending trial must be tried within 60

days    of arraignment.           But certain time periods are excluded from the computation of time,


including       continuances granted          by   the trial   court.      CrR 3. 3(   e).   With regard to continuances, CrR


3. 3( f)(2) explains,


             On motion of the court or a party, the court may continue the trial date to a specified
             date when such continuance is required in the administration of justice and the
             defendant will not be prejudiced in the presentation of his or her defense.... The
             court must state on        the   record or   in writing the        reasons         for the   continuance.   The

             bringing of such motion by or on behalf of any parry waives that party' s objection
             to the requested delay.



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No. 45058 -5 -II



Here, Soeun Sun'       s   trial did not    begin for   well over a year after       his      arrest.   But all of the orders


granting continuances in the record on appeal were made either by Soeun Sun' s trial counsel on

his behalf or by one of Soeun Sun' s codefendants with the agreement of his trial counsel. We hold

that no time for trial violation occurred for that reason.


         Regarding his claim of ineffective assistance of counsel, Soeun Sun states that, in his view,

his attorney did     not provide effective representation          because Soeun Sun' s attorney did               not "[ put]




forth   what [   Soeun Sun]         consider[ ed sufficient] effort."    SAG   at   1.    And concerning his challenge

to the use of the testimony of Witnesses against him, Soeun Sun claims that " many if not all

witness[ es]     against [   him] have      a record of   dishonesty."    SAG       at   1.    We need not address these


issues because we reverse on other grounds.


         We vacate the trial court' s order denying Soeun Sun' s motion to suppress, reverse his

convictions, and remand for proceedings consistent with this opinion.


         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.




                                                                    H     SON, C. J.
 We concur:

                               a.




 WOOWI—
      CCK, J.




 MELNICK, J.




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