                                                                                                    1L   D
                                                                                         CO-UPT' OF APPEALS
                                                                                                DIVISION II
                                                                                        2015 AUG 11      AM 9. 19
         IN THE COURT OF APPEALS OF THE                                                                         ON
                                                                               STAT -,
                                                                                    W
                                                          DIVISION II                    Y--
                                                                                                 Of PTY
    STATE OF WASHINGTON,                                                                 No. 46205 -2 -II


                                                Respondent,


              V.




    ADAM G. JONES,                                                                 UNPUBLISHED OPINION


                                                Appellant.




             SUTTON, J. —             Adam G. Jones appeals his conviction for possession of a controlled


substance (methamphetamine). 1 He argues that the trial court violated his constitutional rights by

denying       his    motions      to ( 1)   suppress evidence found as a result of an unlawful Terry stop and

    2)   strike    the entire     jury   panel   before    voir   dire.   We hold that ( 1)    the Terry stop was lawful

and ( 2) Jones cannot prove that he was prejudiced by the trial court' s denial of his motion to strike

the      entire   jury   panel and       any   error was   harmless beyond       a reasonable    doubt. Accordingly, we


affirm Jones' s conviction.


                                                                  FACTS


             At about 5: 30 a.m. in January 2014, Deputy Mathew Schlecht responded to a suspicious

vehicle report           in   rural   Lewis    County. The reporting party said that a vehicle had pulled into her

driveway a few minutes earlier and when she went outside to investigate, the driver rolled down




1
    Uniform Controlled Substances Act (VUCSA), ch. 69. 50 RCW.

2
     Terry   v.   Ohio, 392 U.S. 1; 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968).
No. 46205 -2 -II



the   window, said   to      her, "   Sorry,   ma' am,"   and drove away. Clerk' s Papers ( CP) at 32. She gave a

description of the vehicle as well as a license plate number.


          Schlecht knew that several homes had been burglarized over the past few months in the


same area as where           the   reporting party lived. These burglaries all occurred in a similar manner,

which    Schlecht knew from viewing home                   surveillance video     from the burglarized homes.       The


videos showed that a vehicle pulled into a driveway, the suspect waited to see if anyone was at

home, and then the suspect burglarized the home if it appeared to be empty.

          When Schlecht went to investigate, he saw a vehicle that matched the description provided


by    the reporting party.         The license plate number matched as well except for two numbers that


Schlecht believed had been transposed.                    Schlecht stopped the vehicle and the driver identified


himself    as   Jones;   a   female     passenger,      Cassandra Anderson,      was also   in the   vehicle.   Schlecht


checked Jones' s driving status and learned that his driving privilege had been suspended. Schlecht

placed    Jones   under arrest         for   driving   while   license   suspended (   DWLS).   During his post -arrest

search, Schlecht found in Jones' s pants pocket a small glass vial with a cork top and white powder

inside, which he confirmed was methamphetamine after a field test.


          The State. charged Jones with one count of unlawful possession of a controlled substance


 methamphetamine).             The trial court denied Jones' s motion to suppress the vial containing white

powder, ruling that Schlecht discovered the vial pursuant to a Terry stop based on reasonable belief

that a crime had been committed. The trial court granted Jones' s motion to preclude the State from


mentioning that Schlecht arrested Jones for DWLS.

          On the first day of trial before voir dire, Jones asked the trial court to strike the entire jury

panel. Jones explained that the assigned panel contained jurors that deliberated in Anderson' s trial


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No. 46205 -2 -II




the week before. The trial court denied Jones' s motion to strike the panel because the jury would

not be hearing testimony from the same witnesses and the expected testimony in Jones' s trial was

going to be "     quite   limited." 1 Verbatim Report      of    Proceedings ( VRP) ( Jury Trial —April 21, 2014)


at   13. The trial court explained,


           I looked at my notes from the testimony that was given. The testimony was really
              it was very, very brief. We basically have the introductory evidence from ...
            Schlecht saying that there         was   a suspicious   vehicle     call, [   Schlecht] stopped the

           vehicle, there was three people, he took the driver out of the vehicle for driving
           while suspended, male passenger had a warrant and then [ Anderson] was left in the
           car.....   So what the jury has heard would be the basic background information
           that they are going to hear in any event.

1 VRP at 12, 13 ( emphasis added).


           During voir dire, Jones' s counsel asked the jurors from Anderson' s trial whether they could

be impartial in Jones'         s case.   2 VRP ( Voir Dire —April 21, 2014) at 13- 16. Each juror replied that


they could. When the trial court called the numbers of the jurors who would serve in Jones' s trial,

the only juror called who had also been involved in Anderson' s trial was the alternate juror,

number      35.   The alternate juror was ultimately discharged prior to jury deliberations on Jones' s

case. The jury found Jones guilty. He appeals.

                                                       ANALYSIS


                      I. SCHLECHT STOPPED JONES PURSUANT TO A VALID TERRY STOP


            Jones argues that the trial court' s conclusion that Schlecht' s stop of.his vehicle was a valid

Terry stop was incorrect because Schlecht did not have reasonable, articulable suspicion of

criminal activity. Because the stop was unlawful, he argues, the fruit of that stop found pursuant

to   his   arrest must    be   suppressed.    We hold that Schlecht'     s.   stop   of   Jones'   s car was   lawful. Thus,


we hold that the trial court properly ruled that the vial of methamphetamine was admissible.


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No. 46205 -2 -II



          We review a trial court' s ruling on a motion to suppress evidence to determine whether

substantial evidence supports                    the trial       court' s   findings     of   fact. State v. Russell, 180 Wn.2d 860,


866, 330 P. 3d 151 ( 2014).                    Substantial       evidence     is   evidence     that   is   sufficient "`   to persuade a fair-


minded person of          the truth of the stated                 premise."'        Russell, 180 Wn.2d at 866- 67 ( quoting State

v.   Garvin, 166 Wn.2d 242, 249, 207 P. 3d 1266 ( 2009)). Unchallenged findings of fact are verities


on appeal.      State   v.   Hughes, 118 Wn.                    App.   713, 722, 77 P. 3d 681 ( 2003).             We review conclusions


of law de novo to determine if the conclusions of law are supported by the findings of fact. Russell,

180 Wn.2d at 866- 67.


          Although we presume that warrantless seizures are unreasonable under the Fourth


Amendment          and    article .       1,    section 7 of the Washington Constitution, one exception to this


presumption is a brief investigatory stop, called a Terry stop. State v. Doughty, 170 Wn.2d 57, 61-

62, 239 P. 3d 573 ( 2010).                     An officer may conduct a Terry stop when he or she has reasonable,

articulable suspicion of a substantial possibility that criminal conduct has occurred or is about to

occur    based     upon a        totality       of   the   circumstances.          State v. Snapp, 174 Wn.2d 177, 197- 98, 275

P. 3d 289 ( 2012).           To       justify    a   Terry      stop, the    officer must       have "` specific and articulable facts


which, taken together with rational inferences from those facts, reasonably warrant that intrusion."'

Snapp,     174 Wn. 2d            at   197 ( quoting         Terry,     392 U. S.    at   21).     Presence at a high crime area is not


enough     to   justify      a    Terry        stop.   State v. Fuentes, Nos. 90039- 6, 90270- 4, 2015 WL 2145820


at *   5 ( Wash.   May 7,        2015).        The State bears the burden to establish that the Terry stop was justified

with clear and convincing evidence. Doughty, 170 Wn.2d at 62.

          Jones     analogizes           this    case      to   Doughty, but        that   case   is distinguishable.          In Doughty, an

officer stopped a person who spent about                               two   minutes at a suspected "             drug   house"    in the early


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No. 46205 -2 -II




morning.    Doughty,      170 Wn.2d       at   64.   The officer did not observe Doughty interact with anyone

in the house and the only evidence that the police had to suspect drug activity in the house were

neighbor complaints.           Doughty,    170 Wn.2d      at   60, 64.     The suspect' s presence at the house, the


short time he spent there, and the time of day, together with the complaints were insufficient to

justify a Terry stop. Doughty, 170 Wn.2d at 64- 65.

          Here, Schlecht' s stop of Jones was not based solely on Jones being in a high crime area,

but also based on a report of a suspicious vehicle in the area. The reporting party said that a vehicle

entered   her   driveway, but when she         approached      it the   person said, "`   Sorry,   ma' am"'   before driving

away. CP at 32. Schlecht knew that this behavior was similar to the pattern of home burglaries in
                                                3
the   area over   the   past   few   months.         Once he arrived in the area, Schlecht saw a vehicle that


matched the description of the suspicious vehicle reported by the caller, but the caller had
transposed two numbers of the license plate number of the vehicle.4 The trial court' s findings of




3 The trial court made the following findings of fact:
          6) Dep. Schlecht had previous knowledge of burglaries that had taken place in the
          area over the past few months where the suspect would pull into a driveway, wait
          to see if anyone was home, and then burglarize the home if nobody was home.
           7) These prior burglaries took place ... in the general area of the call Dep. Schlecht
          was responding to.
           8) Dep. Schlecht gained his knowledge of the burglaries by briefings and by.
          observing home surveillance video from homes that were burglarized.
           9) The. suspect in the prior burglaries was recorded engaging in these actions,
          which were similar to what the caller had described in this incident.
           10) Dep. Schlecht could not recall the description of the vehicle in those burglaries,
          but could recall the " modus operandi" of the burglar.
CP at 32.


4 " Schlecht arrived in the area and observed a vehicle matching the description given by the caller,
with the exception that a couple of the . numbers in the license plate had been transposed."
CP at 32.



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fact that detail these facts are verities because Jones does not challenge them. Hughes, 118 Wn.


App. at 722.

        These facts constitute more than Jones mere presence in the area where the burglaries


occurred. Considering the totality of the circumstances, the unchallenged findings of fact support

the trial   court' s conclusion      that Schlecht            conducted a valid       Terry   stop.   The trial court properly

ruled that the vial of methamphetamine was admissible.


   II. JONES CANNOT PROVE THAT HE WAS PREJUDICED BY THE TRIAL COURT' S DENIAL OF HIS
               MOTION TO STRIKE JURY PANEL AND ANY ERROR WAS HARMLESS


        Jones next argues that he is entitled to a new trial because the trial court violated his right


to a fair trial and to an impartial jury when it denied his motion to strike the entire jury panel.'

Jones' s claim of error fails because he cannot prove that he was prejudiced by the trial court' s

denial of his motion and any constitutional error was harmless beyond a reasonable doubt.

        The United States. Constitution and the Washington Constitution guarantee each criminal


defendant the right to a fair trial by an impartial jury. U. S. CONST. amend VI; U.S. CONST. amend

XIV; CONST.      art.   1, §    3; CONST.   art.   1, §       21.      CrR 6. 4( a) provides that a trial court shall sustain a


challenge " to the entire panel" only for a `.`material departure from the procedures prescribed by

law for their    selection."        A trial court' s denial of the right to a fair and impartial jury requires

reversal. State v. Gonzales, 111 Wn. App. 276, 282, 45 P. 3d 205 ( 2002).




  Jones also argues that his panel was tainted because the same panel heard about his arrest for
DWLS        during   voir      dire in Anderson'          s   trial.     We decline to address this argument because it
presents    facts that    are not   before   us.      The only information on the record of what Jones' s panel
knew from Anderson' s trial comes, from the trial court' s recitation of its notes on testimonial
evidence presented at Anderson' s trial, not details from voir dire in Anderson' s case.

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No. 46205 -2 -II




          But a defendant must demonstrate prejudice to justify reversal if the jury selection process

in fact substantially   complied with statutes and court rules.        State v. Williamson, 100 Wn. App.

248, 253, 996 P. 2d 1097 ( 2000).      Constitutional errors may be harmless if the State demonstrates

harmlessness beyond       a reasonable     doubt.   State v. Guloy, 104 Wn.2d 412, 425, 705 P. 2d 1182

 1985).   A constitutional error is harmless beyond a reasonable doubt if any reasonable jury would

have reached the same result in the absence of the error. Guloy, 104 Wn.2d at 425.

          Jones argues that because the trial court, when it read its notes from Anderson' s trial, stated


that the jury panel in that case heard that Jones was arrested for DWLS and he had successfully

moved to suppress that information, the jury was not impartial to his case because that information

was prejudicial. However, Jones cannot demonstrate prejudice.


          First, Jones does not argue that any part of the jury selection process in his trial violated a

statute or court rule. Second, the record does not show that Jones challenged any of the jurors for

cause after he questioned each of the jurors who had served in Anderson' s trial. Each juror,replied


that they could impartially evaluate the evidence in Jones' s trial. Lastly,.the record demonstrates

that   none of   the jurors   who sat on   Anderson' s trial ultimately deliberated   on   Jones'   s case.   The


trial court called only juror 35 as the alternate, but that juror was ultimately excused and did not

deliberate.


          Even assuming that some of the jurors in Jones' s trial knew that he was arrested for DWLS,

any    constitutional error was   harmless beyond      a reasonable   doubt.   The trial court instructed the


jury that to find Jones guilty of possession of a controlled substance it must find beyond a

reasonable doubt that ( 1) Jones possessed methamphetamine and ( 2) the act occurred in Lewis


County. Schlecht testified, that during his post -arrest search he found in Jones' s pants pocket a


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No. 46205 -2 -II



glass vial that contained white power, which a field test confirmed was methamphetamine, and


that this   occurred   in Lewis   County.   A forensic scientist testified that crime laboratory tests

confirmed the field test. Thus, any reasonable jury would have reached the same result even if the

trial court had granted Jones' s motion to strike the entire jury panel.

                                             CONCLUSION


        We hold that ( 1) the trial court properly concluded that the vial of methamphetamine was

admissible because the Terry stop was lawful and ( 2) Jones cannot prove that he was prejudiced

by the trial court' s denial of his motion to strike the entire jury panel and any error in the trial

court' s denial was harmless beyond a reasonable doubt. Therefore, we affirm Jones' s conviction.


        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 k,+fm, _
                                                       SUTTON, J.
                                                                               4




 We concur:




 MAXA, . J.




 Lft, J.
