                                                                                                   0    F
                                                                                                         tiT 0 ,   APPEALS
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                                                                                               2' Ili FED f ! '             3:


    IN THE COURT OF APPEALS OF THE STATE OF W

                                                 DIVISION II

STATE OF WASHINGTON,                                     I                  No. 437=


                                    Respondent,


        V.




SAM NANG YOU,                                                         UNPUBLISHED OPINION


                                    I.
                                     1



        LEE, J. —    Sam Nang You appeals his conviction of first degree unlawful possession of a

firearm, arguing that ( 1) the firearm' s discovery was the result of an illegal stop of the car in

which   he   was   a passenger, (   2) the State failed to prove that he constructively possessed the

firearm, and ( 3) the trial court erred in rejecting his request to continue sentencing so that he

could argue that some of his prior offenses counted as one under the same criminal conduct rule.


We hold that the stop of the car was justified and that the State provided sufficient evidence of

constructive possession,       but that the trial   court erred   in refusing to    continue   sentencing.         We


affirm the conviction, but remand for resentencing.

                                                     FACTS


        Shortly after 11: 00 PM on March 4, 2012, Puyallup Tribal Police Officer Joey Tracy

responded to the 3700 block of East Roosevelt Avenue to assist Tacoma police officers in


finding a vehicle involved in a drive - y shooting near the 6400 block of East Portland Avenue.
                                      b

The majority   of   Tracy' s   work   involves   investigating   gang- related   crimes.   Based   on   his training -
No. 43738 -4 -II



and experience, Tracy knew this location 'to be a high -crime area with frequent incidents of gang

activity and violence.

         Tacoma dispatch described the suspect car as a black Pontiac Grand Prix last seen


heading   northbound on        East Portland Avenue.               While Officer Tracy was patrolling the area in

search of the Pontiac, his vehicle was approached from behind by a dark blue sedan with its high

beam headlights       activated.      Tracy saw the blue sedan, which contained three occupants, circle

the block and leave the area. Tracy continued to investigate the drive -by shooting.

         About five minutes later, Officer Tracy saw the blue sedan turn from East 35th onto East

Portland Avenue.        The    sedan    turned    out   in front   of   Tracy,   who   then followed it. As he did so,


the driver continuously looked back               at   the   patrol vehicle.     After both vehicles turned right onto


East 29th Street, Tracy saw the sedan turn right onto East R Street and drive southbound to East

35th Street, where it turned and made a full circle from where Tracy had initially seen the car.

         Officer Tracy wondered why the sedan was driving in circles in an area that had just

experienced     a    drive -
                           by shooting.        He suspected that the sedan had some involvement in the


shooting based on these facts:                its circling of the neighborhood moments after a drive -by

shooting, the lateness of the hour, the sedan' s use of its high beams, the neighborhood' s many

incidents of gang -related crimes and violence, the number of passengers, and the driver' s

behavior   on   noticing the       officer.   Although he knew he was not following a Pontiac, he thought

that the dark blue sedan could have been mistaken for that vehicle.

          Officer    Tracy decided      to stop the      sedan and      investigate.   The driver was waiting with his

license and registration paperwork and appeared both combative and unusually talkative, as

though    he   was   trying   to   distract the   officer.     Tracy    noticed   that the   driver had the   number   four
No. 43738- 4- 11



tattooed on each forearm,       which   Tracy    understood   to be   a   gang -related   symbol.   Tracy also saw

that the   passengers were     wearing     red, which   is the   color associated with a      Tacoma gang.    The


driver told Tracy he was attempting to drive through Salishan, which is an area claimed by a

gang.


           While Officer Tracy was contacting the driver, he noticed that You, the front seat

passenger, was     sitting   motionless.    After Tracy had the driver step out of the vehicle for a pat -

down, he opened the passenger door and brought You out. When You moved his feet, Tracy saw

a revolver    between them that was protruding from              under    his   seat.   The gun was blocked from


going completely under the seat by a plastic bottle, and its handle was wrapped with toilet paper.

           Officer Tracy arrested You and the other occupants and obtained a search warrant for the

vehicle.    In the front center console, he found . 357 ammunition that matched the ammunition in


the gun. - Tracy found a 9 mm semi -automatic pistol underneath the back seat and a 9 mm bullet

in the jacket that had been      next   to the   rear passenger.   That passenger' s identification was in the


j acket.

           Because You had a prior serious felony conviction, the State charged him with first

degree unlawful possession of a firearm. After the trial court denied You' s motion to suppress,


Officer Tracy testified to the above facts, and the jury found You guilty as charged.

           When the verdict was returned on June 19, You' s attorney asked the court to delay

sentencing until late July because a same criminal conduct analysis might apply to some of

You' s criminal history. Defense counsel had requested documents from the State to assist in that

analysis.     The State objected to the delay, and the trial court set sentencing for June 29 over

defense counsel' s objection.




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No. 4373 8 -4 -II



          At the June 29 sentencing hearing, defense counsel again sought a continuance of two to

three weeks because he still needed police reports to determine whether some of You' s prior

offenses might constitute            the   same    criminal    conduct.   The State responded that there was no


precedent for what counsel was requesting, and the trial court denied You' s request for a

continuance, ruling that 'a same criminal conduct analysis of You' s . prior convictions was not

appropriate.      Based on an offender score of 8 that counted You' s prior offenses separately, the

trial court imposed a sentence of 90 months. You appeals his conviction and sentence.

                                                         DISCUSSION


A.        TERRY STOP


          You first contends that the initial stop of the car in which he was a passenger was invalid

and that the trial court erred in denying his motion to suppress. We disagree.

          The Fourth Amendment protects against unlawful search and seizure, and article I,

section 7 of the Washington Constitution protects against unlawful government intrusions into

private    affairs.   State    v:   Doughty,      170 Wn.2d 57, 61, 239. P. 3d 573 ( 2010).      A seizure occurs


when,     considering    all   the   circumstances, a reasonable person would not         feel free to leave. State


v.   Diluzio,    162 Wn.       App.     585,      590, 254 P. 3d 218,     review   denied, 272 P. 3d 850 ( 2011).


Warrantless seizures are per se unreasonable, and the State must demonstrate that a warrantless


seizure falls into a narrow exception to the rule. Doughty, 170 Wn.2d at 61.

          One exception to the prohibition on warrantless seizures is a law enforcement officer' s


investigatory stop of a vehicle based on a reasonable suspicion to believe that criminal activity is

indicated. Diluzio, 162 Wn.                App.   at   590.   To be lawful, an investigatory stop, also known as a

 Terry   stop,   must   be based      on "`   specific and articulable facts which, taken together with rational




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No. 43738- 4- 11



inferences from those facts, reasonably                     warrant [ the]   intrusion. "'    Diluzio, 162 Wn. App. at 590

 quoting      Terry   v.   Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968)).                           The standard


for   articulable       suspicion   is   a "   substantial possibility that criminal conduct has occurred or is

about   to    occur."      State v. Kennedy, 107 Wn.2d 1, 6, 726 P. 2d 445 ( 1986).

             Whether a warrantless seizure or a Terry stop is lawful is a question of law that we

review       de   novo.     State v. Bailey, 154 Wn. App. 295, 299, 224 P.3d 852, review denied, 169

Wn.2d 1004 ( 2010).             The State must establish the exception by clear and convincing evidence.

State   v.   Garvin, 166 Wn.2d 242, 250, 207 P. 3d 1266 ( 2009).                        The purpose of the Terry rule is to

stop police from acting on mere hunches. Doughty, 170 Wn.2d at 63; Kennedy, 107 Wn.2d at 5-

6.    Crime prevention and crime detection are legitimate purposes for investigative stops or


detentions.        Doughty, 170 Wn.2d            at   63;   Kennedy, 107        Wn.2d   at   5 - 6.   However, where no crime


has been committed, simply being in a high -
                                           crime area at night is insufficient to justify a stop.

State v. Moreno, 173 Wn. App. 479, 492, 294 P. 3d 812, review denied, 177 Wn.2d 1021 ( 2013).

             A police officer may rely on his experience to evaluate apparently innocuous facts.

Moreno, 173 Wn. App. at 492; State v. Thierry, 60 Wn. App. 445, 448, 803 P. 2d 844 ( 1991).

Such experience was key to upholding the investigatory stop in Thierry, where officers watched

two teenagers drive through a high -
                                   crime area one winter afternoon with the car windows rolled

down     and      loud    music   playing.      60 Wn.        App.   at   446 -47.   The car drove through a parking lot

containing        open spaces without          attempting to       park and stopped at         the    entrance.     Thierry, 60 Wn.

App.    at   447.   As the officers approached, they saw a wooden bat at the driver' s feet and noticed

the   passenger       making furtive hand             motions.       Thierry,   60 Wn.   App.         at   447.   After ordering the




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No. 43738 -4 -II



two to   bring     their   hands into    view, an officer saw a pistol        between the front   armrests.   Thierry,

60 Wn. App. at 447.

         This court upheld the stop, stating that the officers had observed behavior consistent with

the   profile of       drive -
                             by   shootings and were not required        to ignore their   observations.   Thierry, 60

Wn.    App.   at   448.     We explained that officers may bring their experience to bear on a situation,

and it is necessary only that the circumstances at the time of the stop be more consistent with

criminal    than       innocent    conduct.   Thierry, 60   Wn.   App.   at   448.   Given the high crime nature of


the area in question and the drive - y shooting profile, the facts that existed immediately before
                                   b

the stop did not comport with innocent activity. Thierry, 60 Wn. App. at 448 -49.

         The trial court cited Thierry in upholding Officer Tracy' s stop of the car in which You

was    riding.         Although You argues that the facts are distinguishable, we are persuaded that


reliance on the officer' s experience controls here. Officer Tracy investigates gang- related crimes

and was     in     a   high -crime    area with   frequent incidents     of   gang activity   and violence.    Officer


Tracy was responding to a late night report of a drive -by shooting when he saw a car with its

high beams on. The car drove in circles around the area. Tracy knew that the blue sedan did not

match the description of the car he had received, but he thought that a mistaken description was


possible.     He also knew that drive -by shootings often involve multiple vehicles, including look-

out and /or   retaliatory         vehicles.   Although being in a high -crime area at night does not justify a

stop when a crime has not been committed, here a drive -by shooting had been committed.

Viewed through the lens of the officer' s training and experience, the circumstances at the time of

the stop were more consistent with criminal than innocent conduct, and the trial court did not err

in upholding the investigatory stop and in denying You' s motion to suppress.



                                                             M
No. 43738 -4 -II



B.        CONSTRUCTIVE POSSESSION


          You next argues that the evidence was insufficient to prove that he constructively

possessed the firearm found at his feet. We disagree.


          Evidence is sufficient to support a conviction if, when viewed in the light most favorable

to the prosecution, it permits any rational trier of fact to find the essential elements of the crime

beyond       a reasonable   doubt.    State   v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). "            A


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

can   be drawn therefrom."           Salinas, 119 Wn.2d      at   201.    Circumstantial and direct evidence are


equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980).

          Possession may be        actual or constructive.        State v. Raleigh, 157 Wn. App. 728, 737, 238

P. 3d    1211 ( 2010),      review    denied, 170 Wn. 2d           1029 ( 2011).        Constructive possession is


established     by   showing that the defendant had dominion              and control over      the   firearm. State v.


Murphy,       98 Wn.   App.   42, 46, 988 P. 2d 1018 ( 1999), review denied, 140 Wn.2d 1018 ( 2000).


The defendant' s control over the firearm does not have to be exclusive, but mere proximity to the

firearm is insufficient to     show control.         Raleigh, 157 Wn.      App.   at   737.   The ability to reduce an

object to actual possession is an aspect of dominion and control, but other aspects such as

physical      proximity   should   be   considered as well.        State v. Hagen, 55 Wn. App. 494, 499, 781

P. 2d 892 ( 1989).      The court must look at the totality of the circumstances to determine whether

the   jury   could   reasonably infer dominion         and control.      State v. Potts, 93 Wn. App. 82, 88, 969

P. 2d 494 ( 1998).


          You argues that the evidence showed only his proximity to the firearm, and thus, there

was     insufficient   evidence    to show that      he constructively    possessed     the   weapon.   As support, he




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No. 43738 -4 -II



cites   State   v.    Cote, 123 Wn.        App. 546,         550, 96 P. 3d 410 ( 2004), where officers found a Mason


jar containing         contraband        in the   car   in   which     the defendant   had been riding.    Although the jar


contained the defendant' s fingerprint, it was found in the back of the vehicle and not in the

passenger area.            Evidence that the defendant was in proximity to and at one point touched the

contraband was insufficient to establish the dominion and control needed to prove constructive


possession. Cote, 123 Wn. App. at 550.

          You        also cites   State   v.    George, 146 Wn.          App.   906, 922 -23, 193 P. 3d 693 ( 2008),   where




evidence that a marijuana pipe was found on the rear passenger floorboard of a vehicle, next to


where the defendant had been sitting, was insufficient to prove dominion and control. You relies

further on a more recent decision from this court holding that evidence was insufficient to prove

constructive possession where a firearm was found behind the backseat of a vehicle, next to

where    the defendant had been sitting.                     State v. Chouinard, 169 Wn. App. 895, 902 -03, 282 P. 3d

117 ( 2012),         review   denied, 176 Wn.2d 1003 ( 2013);                   but see State v. Echeverria, 85 Wn. App.

777, 783, 934 P. 2d 1214 ( 1997) ( evidence sufficient to prove constructive possession where


officer saw gun sticking out from under defendant' s seat; ability to reduce object to actual

possession is aspect of dominion and control).


          You asserts that the evidence of constructive possession in this case is even weaker than

that in Cote, George, and Chouinard. `We disagree.


          Here, as in Echeverria, the officer saw a firearm sticking out from between You' s feet

when     he   approached          the   passenger side of        the   car.   There was ammunition in the center console


beside You that            matched        the   ammunition         in the     gun.   Tracy found a different type of gun

underneath           the   rear    passenger      seat,      and   ammunition        matching that   gun   was   in the   rear
No. 43738 -4 -II



passenger' s jacket. Viewing the circumstances as a whole, they show that You had the ability to

reduce the firearm at his feet to actual possession and that he had dominion and control over that

firearm.


C.        CONTINUANCE FOR SAME CRIMINAL CONDUCT DETERMINATION


          Finally, You argues that the trial court abused its discretion by refusing to continue the

sentencing hearing based on the understanding that no same criminal conduct analysis was

appropriate.



          The grant or denial of a continuance is within the trial court' s discretion and will not be


disturbed absent a showing that the court abused its discretion and the defendant was prejudiced

thereby. State v. Herzog, 69 Wn. App. 521, 524, 849 P.2d 1235, review denied, 122 Wn.2d 1021

 1993).      However, where a defendant has requested a sentencing alternative authorized by

statute, the categorical refusal to consider that alternative is a failure to exercise discretion and is

subject    to   reversal.   State   v.   Grayson, 154 Wn.2d 333, 342, 111 P. 3d 1183 ( 2005).           Further,


remand for resentencing is often necessary where a sentence is based on a trial court' s erroneous

belief about the governing law. State v. McGill, 112 Wn. App. 95, 100, 47 P.3d 173 ( 2002).

          At issue here is the trial court' s refusal to continue sentencing to address the issue of

whether some of        You'   s prior offenses    constituted   the    same criminal conduct.    Under the same


criminal conduct rule, multiple offenses count as one in calculating the defendant' s offender

score if they were committed at the same time and place against the same victim and require the

same criminal intent. RCW 9. 94A.589( 1)( a).


           A current sentencing court must calculate an offender score based on an offender' s " other

current    and prior convictions."          RCW 9. 94A.589( 1)(       a);   State v. Williams, 176 Wn. App. 138,



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No. 43738 -4 -II



141, 307 P. 3d 819 ( 2013).             If a prior sentencing court found multiple offenses that encompassed

the same criminal conduct, the current sentencing court must count .those prior convictions as

one offense.       RCW 9. 94A.525( 5)(          a)( i);   Williams, 176 Wn.       App.   at   141.    If the prior sentencing

court did not make this finding, but nonetheless ordered the offender to serve the sentences

concurrently, the current sentencing court must independently evaluate whether those prior

convictions encompass the same criminal conduct and, if they do, must count them as one

offense.    RCW 9. 94A. 525( 5)(          a)( i);   see also State v. Torngren, 147 Wn. App. 556, 563, 196 P. 3d

742 ( 2008) (    sentencing court must apply same criminal conduct test to multiple prior convictions

that   a court   has   not    already   concluded amount        to the   same criminal conduct), abrogated on other



grounds     by   State   v.   Graciano, 176 Wn.2d 531, 295 P. 3d 219 ( 2013).                        The defendant bears the


burden     of   proving that his        prior offenses constitute        the   same criminal conduct.         Graciano, 176


Wn.2d at 539.


          You' s criminal history includes 12 juvenile and adult offenses committed on three

different dates. You refused to sign a stipulation that counted these offenses separately, and after

the verdict he requested a month' s continuance so that he could obtain documentation that would

enable him to make the same criminal conduct argument. You' s attorney objected to the court' s

decision to set sentencing only 10 days later, and he again requested a continuance at sentencing

so   that he    could obtain     the documents         needed   to   make   the   same criminal conduct analysis.        The


trial court declined to grant the continuance, explaining that a same criminal conduct evaluation

was not then appropriate and was instead a matter for appellate review.

           While acknowledging the holding in Torngren set forth above, the State seems to assert

that You has waived this claim of error by being unprepared to make a same criminal conduct



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No. 43738 -4 -II




argument at sentencing and by failing to raise a related claim of ineffective assistance of counsel

on    direct             appeal.    The State asserts further that because You has failed to show that his prior


offenses constituted the same criminal conduct, he can show no prejudice from the court' s


refusal to continue sentencing.

                       These   arguments are not persuasive.       Defense counsel was unprepared to make the same


criminal conduct argument at sentencing because he did not have the documents he requested

from the State that he needed to make the argument. Without those documents, You is prevented

from making the                    same argument on appeal.        The trial court abused its discretion by declining to

continue sentencing so that the defense could prepare for the mandatory same criminal conduct

evaluation of                  You' s   prior offenses.   The trial court' s reason for not granting the continuance was

based on an erroneous belief of the governing law.

                       Accordingly, we affirm You' s conviction, but remand so the parties and the court may

engage in the same criminal conduct evaluation of You' s prior offenses before resentencing.

                       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.




                                                                                              ee,   J.
  T- -- -- - - - --.
                                                                                    c




                                    Maxa, J.




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