IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                       No. 71095-8-1
                      Respondent,
                                                       DIVISION ONE
             v.

                                                       UNPUBLISHED OPINION
MICHAEL ANTHONY WADE
                                                       FILED: June 29, 2015
                      Appellant.


       Appelwick, J. — Michael Wade appeals 12 convictions in a bench trial

arising from three residential burglaries. The admission of a co-participant's out-

of-court statement, as a statement of identification under ER 801(d)(1)(iii),

implicating him in the crimes was not error.     Sufficient evidence supports the

convictions. Any error in failing to treat six counts of theft of a firearm as ths       o
                  '                °                                            C=>   C/>o

same criminal conduct was waived by failing to object. We affirm.               ^     £{~j

                                       FACTS                                    vo    ^±*~
                                                                                      **-5f-n
       On a Tuesday afternoon, October 9, 2012, three homes in Seattle ania jr'
                                                                               r—i    —^O
suburban neighborhoods were burglarized within a three-hour time-span, "me S<

first burglary took place at the Kirkland home of Paul Wu. Wu's neighbor, Hana

Trnka, was unloading groceries from her car at around noon, when she noticed a

grayish sedan parked near her house in front of an empty lot. Trnka approached

the car and asked the driver if he was lost or needed assistance.        The sole

occupant sitting in the driver's seat was a bald-headed thin man who appeared to

be of Middle Eastern descent. The man was talking on a cell phone. He told

Trnka he did not need help, but explained that he parked to avoid talking while

driving.
No. 71095-8-1/2




       Wu's wife returned home after lunch and discovered the break-inThe

burglars had entered the home by shattering a sliding glass door at the back

deck. The stolen items included laptop computers, a tablet, jewelry, a Pentax

camera, handbags, and coins.

       The second burglary occurred at a Kenmore home belonging to Binh Vu.

The Vus returned home at approximately 2:00 p.m. and discovered their home

had been ransacked and burglarized. The burglars again entered the home by

breaking a glass door at the back of the house. The items taken from the home

included numerous bottles of liquor, gold jewelry, and a tablet Vu recently

purchased.

      The third burglary occurred at the Kirkland home of Carl Reek.         That

afternoon, Reek's neighbor, Vanessa Simpson, walked her dog past the Reeks'

house and noticed a golden brown sedan parked in front. A thin man with brown

skin was sitting in the driver's seat and leaned back in his seat as Simpson

passed.      When Simpson passed the Reeks' home a second time about 10

minutes later, the car was gone and Reek's wife was standing at the front door.

       It was shortly after 2:00 p.m. when Reek's wife returned home, thought

she heard people inside the house, and then saw that the front door had been

kicked in.    Several upstairs rooms were visibly disturbed and plastic shopping

bags normally stored in the bathroom were strewn around.          Reek reported

numerous missing items including six firearms, approximately $1,400 in cash,

jewelry, laptops, a tablet, a Kodak camera, and a package of .38 caliber

ammunition.
No. 71095-8-1/3




       About a month before the burglaries, Reek answered a knock at the door

and observed a thin African-American man on the doorstep.          It was not clear

what the man wanted. He backed off the porch when Reek opened the door and

said something unintelligible about an "opportunity." Then, exactly two weeks

before the burglaries, Reek answered another knock at the door and a different,

larger African-American man was at the door. Reek communicated that he was

occupied on the telephone and the man left.          Also, in the weeks before the

burglary, Reek noticed a brownish gold Toyota Camry parked in different places

in the neighborhood.

       A few days before the burglaries, a caller reported seeing a gold Camry

parked in several different locations in an Eastside residential neighborhood.

The caller provided a license plate number and said that at one point, the

occupants got out of the car and walked around a house. A police officer went to

investigate and saw the car as it passed him travelling in the opposite direction.

There were at least three African-American males in the car.       The officer was


unable to catch up with the car.

       On the date of the          burglaries,   Bellevue Police Detective Jeffrey

Christiansen received the information about the gold Camry from a few days

before, and without knowing the burglaries had just occurred, decided to

investigate.   Christiansen learned that the Camry was registered to Carol

Anderson and associated with her grandson, Michael Wade. Christiansen and a

surveillance team arrived at Anderson's home in South Seattle at approximately

3:30 p.m.
No. 71095-8-1/4




       About 30 minutes later, the gold Camry arrived. There were four people in

the car.   Wade was driving the Camry and a person later identified as Filmon

Berhe was in the front passenger's seat. After Wade parked, he went around to

the back of the car and opened the trunk. One of the back seat passengers, later

identified as Wade's brother Cody Wade, got out of the car and stood next to

Wade. Wade appeared to be manipulating items in the trunk while Cody visually

scanned the area.1 About a minute later, as a parking enforcement vehicle drove

by, Cody tugged at the back of Wade's shirt and Wade closed the lid of the trunk.

[Id. at 78-79] Wade then reopened the trunk, Cody took a white plastic shopping

bag and walked across the street with it and out of the detectives' view. The bag

appeared to be weighed down by heavy objects.

       Wade, Berhe, and the fourth person, later identified as Christopher

Patterson, went toward Anderson's house. A few minutes later, all four returned

to the car, Wade drove away from the house, and the officers followed.

Eventually, the car stopped at a strip mall and Cody and Patterson got out of the

car and carried a small bag into a jewelry store. Wade parked across the street.

       At that point, Detective Christiansen was able to definitely confirm that

Wade was the driver and decided to arrest him on an outstanding warrant.

During the process of that arrest, police officers learned of another warrant for

Berhe's arrest and arrested him at the same time.      From outside the Camry,




     1 Because Cody and Michael Wade share the same last name, we refer to
Cody Wade by his first name for clarity.
No. 71095-8-1/5




Detective Christiansen could see several cloth gloves and a partially obscured

tablet inside the car.


        While some officers arrested Wade and Berhe, other officers briefly

detained Cody and Patterson. After the officers released Cody and Wade, the

jewelry store owner confirmed that they had sold some jewelry and later, one of

the homeowners confirmed that some of the jewelry belonged to him.

        The police searched the Camry and found a substantial amount of

property stolen from all three homes including tablets, computers belonging to

Wu and Reek, Wu's Camera, and bottles of alcohol. The Camry also contained

an extra-large jacket with glass shards in the pockets and several cell phones.

However, the firearms taken from the Reek residence were not in the Camry.

Seattle police officers eventually found one of the firearms missing from the Reek

residence in a stolen car.

        Two days after arresting Wade and Berhe, police officers arrested Cody

and Patterson. Patterson admitted that he committed the burglaries with Wade,

Berhe, and Cody.         Patterson specifically confirmed that the stolen property

included firearms and said that Wade was the person who primarily handled the

guns.


        Within an hour of his arrest, Wade began making desperate telephone

calls from the jail, telling Cody that if he ever wanted to see him and Berhe "alive"

again, he must "immediately" get rid of the "dunt-dunt-da-dunt-dunt-dalas" that

were located in "Barney the dinosaur"         Wade stressed the urgency of this,

repeatedly stating that the "dunt-dunt-da-dahs" must be "[o]ut of Barney" and
No. 71095-8-1/6




that "Barney" had to be absolutely "clean and sober." Wade talked at length

about the numerous potential firearms charges and sought assurance that the

State would not be able to pursue those charges without finding the stolen

firearms.


       Police searched Anderson's home and a purple GMC Yukon vehicle

associated with Cody parked across the street from Anderson's home, but found

no evidence inside the home or the vehicle related to the burglaries. However,

when the Yukon was towed, police found a white plastic shopping bag

underneath the vehicle containing ammunition.

       The State charged Wade, Berhe, Patterson, and Cody with three counts of

residential burglary and two counts of theft of a firearm. The State later amended

the information and charged each defendant with a total of 12 counts: three

counts of residential burglary, six counts of theft of a firearm, one count of

trafficking in stolen property, one count of theft in the second degree, and one

count of unlawful possession of a firearm.2 Berhe, Patterson, and Cody each

entered guilty pleas and were sentenced prior to trial.3 Wade waived his right to

a jury and proceeded to a bench trial.


       2 The court granted the State's motion to amend the information again just
before trial to correct a scrivener's error with respect to the monetary amount
required for theft in the second degree.
       3 Patterson pleaded guilty to three counts of residential burglary, one count
of unlawful possession of a firearm, and one count of theft of a firearm. According
to the State's sentencing memorandum, the State made the same plea offer to
Wade before trial and offered to recommend a low-end sentence of 164 months.
After the State rested, the State made a second offer to dismiss four of the six theft
of a firearm counts, which would have reduced the bottom of the range from 549
months to 241 months. The record does not include any information about the
sentences of the other participants, but Wade indicates in his briefing that the
No. 71095-8-1/7




       The State presented evidence of cell phone activity indicating that Wade,

Berhe, and Cody were in cell phone contact with each other and were "in

proximity to each house at the time of the burglaries." For instance, there was a

25 minute call between Berhe and Cody near the Wu home that started at

approximately 11:45 am, encompassing the time that Trnka reported speaking to

someone matching Berhe's description, who was talking on a cell phone.

       Patterson reluctantly testified under a grant of immunity. Contrary to his

statement at the time of his arrest, Patterson testified that he burglarized two

houses by himself on October 9.       He denied stealing any firearms.    Patterson

said that Cody and Berhe picked him up after the burglaries and he sold some

stolen laptops while driving around with them. Patterson testified that Wade later

joined the group, they switched cars to the Camry, and he put another stolen

item, an iPad, in the trunk of the Camry and planned to sell it. Patterson claimed

that the jewelry he sold belonged to his girlfriend.

       Patterson testified that he never implicated the others or admitted to taking

firearms. Patterson acknowledged that he signed a statement containing false

information, but explained that the police forced him to sign and said they would

help him. The State read some portions of Patterson's statement and asked

whether or not those specific statements were true, including Patterson's

statement that he "was with Mike and Cody Wade and Phil" on October 9, 2012




sentences of Berhe, Cody, and Patterson were 124 months, 89 months, and 84
months, respectively.
No. 71095-8-1/8




and his statement that Wade brought the guns into the house and that the six

guns were together in one plastic shopping bag.

       Detective   Christiansen   described   Patterson's    arrest   and   recounted

Patterson's postarrest statements that he committed the burglaries with Wade,

Cody and Berhe and his statement that Wade was the person who handled the

firearms after the burglaries.

       Investigators did not find any fingerprint print evidence at the burglary

scenes, suggesting that the suspects wore gloves.           Police showed the Wus'

neighbor, Trnka, a photo montage and she identified Berhe immediately as the

man parked on the Wus' street at the time of the burglary.

       The court entered findings of fact and conclusions of law and found Wade

guilty of all twelve charges. At sentencing, the State conceded that theft in the

second degree involving the property stolen from the Vu residence, amounted to

the same criminal conduct as residential burglary of the Vu residence. The court

did not include the theft conviction in the offender score calculation and did not

impose a sentence on that count. Due to the operation of RCW 9.94A.589 (1)(c),

which requires consecutive terms for          the theft of firearm and unlawful

possession of a firearm convictions, Wade's standard range was between 549

and 728 months. The court imposed 549 months. Wade appeals.

                                   DISCUSSION


  I.   Statement of Identification Under ER 801(d)(1)(iii)

       Wade challenges the trial court's determination that Patterson's statement

implicating him in the October 2012 crimes was admissible as substantive


                                         8
No. 71095-8-1/9




evidence. He contends that statements of identification under ER 801(d)(1)(iii)

do not encompass incriminating postarrest statements made by a former

codefendant.


       It was apparent before Patterson testified that he would not testify in

accordance with his initial statement to the police.     The court rejected Wade's

argument that the State should not be able to call Patterson as a witness merely

to impeach him.    See State v. Lavaris, 106 Wn.2d 340, 344-45, 721 P.2d 515

(1986) (party may not call a witness for the primary purpose of impeachment with

otherwise inadmissible evidence).        Nevertheless, the trial court expressed

concern as to whether Patterson's statement naming Wade as "the person I did

the crime with" was truly a statement of identification within the meaning of ER

801(d)(1)(iii) and therefore admissible as substantive evidence. After considering

briefing and argument, the court determined that Patterson's prior statement was

admissible as substantive evidence based on this court's decision in State v.


Grover. 55 Wn. App. 252, 256-57, 777 P.2d 22 (1989).

       We review the trial court's interpretation of the rules of evidence de novo

and its application of the rules to particular facts for abuse of discretion. State v.

Sanchez-Guillen, 135 Wn. App. 636, 642, 145 P.3d 406 (2006). "Hearsay" is "a

statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted."          ER

801(c). Unless an exception or exclusion applies, hearsay is inadmissible. ER

802. Under ER 801(d)(1), a statement is not hearsay if, "[t]he declarant testifies

at the trial or hearing and is subject to cross examination concerning the
No. 71095-8-1/10




statement and the statement is . . . (iii) one of identification of a person made

after perceiving the person."

       As the trial court observed, ER 801(d)(1)(iii) most commonly applies to

admit a prior statement of identification after seeing the defendant's photograph

or seeing the defendant in a line-up. See e.g. State v. McDaniel, 155 Wn. App.

829, 837-38, 877, 230 P.3d 245 (2010) (photomontage identification); [RP 7/17 at

13].   However, nothing in the language of the rule limits its scope to prior

statements of visual identification.

       As in Grover, this case involves a declarant who identified the defendant

by name after visually perceiving him. 55 Wn. App. at 254. Grover involved a

home invasion robbery. jd, Hughes was at home and her friend Price was out,

when Price's step-children, Gardner and Parker, stopped by the house, jd. Two

other men arrived shortly after and asked for Price's step-son, Parker. Id. Upon

entering the house, one of the men pulled Hughes into a separate room, attacked

her with a hatchet, threatened her, and demanded money,         jd.   When Price

returned, the other man threatened him with a knife and demanded money.

Parker told Hughes and Price to give the men their money. ]d, Curiously, neither

of the men robbed or attacked Parker or Gardner. ]d. After the men left with

money and property and the police arrived, Gardner gave a statement to the

police. Id. She identified both assailants by name and said that Parker left to

pursue them. When the police found Parker a short distance from the scene, the

two individuals Gardner named and who also matched Hughes's descriptions

were with him. ]cL at 254-55.


                                       10
No. 71095-8-1/11




       After she was arrested on a material witness warrant, Gardner testified

under a grant of immunity, id. at 255. She said she could not remember the

robbery, was intoxicated at the time, and only vaguely remembered giving a

statement to the police. Id. She denied receiving any threats, but admitted her

reluctance to testify,   jd     One police officer testified that Gardener was not

intoxicated at the time of the interview, and under ER 801(d)(1)(iii), the court

permitted another officer to testify that Gardner identified Grover as one of the

robbers. Id.

       Grover appealed his robbery conviction.               Id.    This court rejected his

argument that ER 801(d)(1)(iii) included only "statements of identification made

by a witness during a lineup or upon viewing a photographic montage." Jd at

256.   We concluded there was no basis to limit the rule to include visual, but

exclude verbal, identifications. Id at 257. In so holding, we noted that Oregon's

comparable evidence rule includes official commentary stating that its rule is not

"aimed at situations where, after an event, the declarant simply makes a

statement which identifies the person involved ('X did it')." Id at 257 n.7. There

is no similar commentary limiting Washington's rule. While Wade suggests that

the result in Grover is inconsistent with the rule's purpose, he cites no authority

that   undermines    our      determination        in   Grover     that   Washington's   rule

encompasses verbal identifications.

       Wade argues that the hearsay exception under ER 801(d)(1)(iii) does not

apply if the declarant is a coparticipant in the crime, because unlike a civilian

witness, a potential codefendant has "enormous incentive" to falsely implicate


                                              11
No. 71095-8-1/12




others. Nothing in Grover suggests such a limitation. In fact, the dynamics of

this case are strikingly similar to those in Grover.      The facts of Grover defeat

Wade's argument.       The circumstances clearly suggested Gardner's possible

involvement in the crime when police initially questioned her.        See Grover, 55

Wn. App. at 254.       Gardner recanted her earlier identification.       ]d at 255.

Although she denied being threatened, it is reasonable to infer that she did so out

of fear of retaliation. Id Here, Patterson recanted his earlier statement to police,

admitting he was involved and implicating the others. His testimony that he was

labeled a "snitch" which put his life in "jeopardy" likewise supports the inference

that he changed his story at trial out of fear.

       For a declarant's statement to be admissible under ER 801(d)(1)(iii), the

declarant must be available for cross-examination. Patterson, like Gardner, was

available for cross-examination.     Wade offers reasons to credit Patterson's trial


testimony over his initial statement but there are equally compelling reasons to

reach the opposite conclusion.         Nothing in ER 801(d)(iii) or in the cases

interpreting the rule suggests that a prior statement of identification is not

admissible because it creates a conflict that the trier of fact must resolve. Wade


had   the   opportunity   to   fully explore      Patterson's   motivations   and   the

circumstances of his initial statement. In sum, the court did not err in admitting

Patterson's statement as substantive evidence under ER 801(d)(1)(iii).

       Even if the statement that Wade was with Patterson on October 9, 2012

falls within the scope of ER 801(d)(1)(iii), Wade contends the rule does not apply

to Patterson's additional statements that described the nature of his involvement



                                          12
No. 71095-8-1/13




in the crimes.     But, in fact, the trial court decided the admissibility of only

Patterson's statement that he was with Wade and the others under ER

801(d)(1)(iii).   The record indicates that the court considered Patterson's

additional statements only for purposes of impeachment.

 II.   Sufficiency of the Evidence

       Wade contends that, without considering Patterson's statement that he

was the person who handled the firearms as substantive evidence, there is

insufficient competent evidence to establish that he committed any of the

charged crimes, apart from trafficking in stolen property. He thus challenges the

sufficiency of the evidence supporting his convictions for residential burglary,

theft of a firearm, unlawful possession of a firearm, and second degree theft.

       According to Wade, the stolen property in the Camry and his connection to

that car and the other codefendants was the only evidence connecting him to the

crimes. Wade argues that the recorded jail telephone calls may reveal a general

consciousness of guilt, but do not establish his participation in the burglaries or in

the crimes involving firearms.

       To satisfy due process, the State must prove every element of a charged

crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct.

1068, 25 L. Ed. 2d 368 (1970). When reviewing a challenge to the sufficiency of

the evidence, this court considers the evidence in the light most favorable to the

State to determine whether any rational trier of fact could have found the crime's

essential elements beyond a reasonable doubt. State v. Williams, 137 Wn. App.

736, 743, 154 P.3d 322 (2007). The court draws all reasonable inferences from


                                         13
No. 71095-8-1/14




the evidence in the State's favor and interprets the evidence "most strongly

against the defendant." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068

(1992). The reviewing court considers both circumstantial and direct evidence as

equally reliable and defers to the trier of fact on issues of conflicting testimony,

witness credibility, and the persuasiveness of the evidence.     State v. Thomas,

150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

      To prove that Wade committed residential burglary, the State had to

establish beyond a reasonable doubt that "with intent to commit a crime against a

person or property therein" he entered or remained unlawfully in a dwelling other

than a vehicle. RCW 9A.52.025. The court determined that Wade was acting in

concert with and as an accomplice to Patterson, Berhe, and Cody during all the

crimes that took place on October 9 and concluded that Wade or an accomplice

entered and remained unlawfully in the three homes and stole property from

each home.

       Wade likens this case to State v. Mace, 97 Wn.2d 840, 842-43, 650 P.2d

217 (1982), where the only evidence connecting the defendant to the residential

burglary was a bag and receipt bearing the defendant's fingerprints found near

an ATM machine where stolen bank cards were used.              The evidence here,

however, was far more substantial.      For instance, the evidence related to cell

phones and cell towers indicated that Wade was in contact with the other

participants and was in the area of each burglary at the time it occurred. Wade

was arrested a short time after the burglaries driving a car registered to his

grandmother and associated with him that contained property stolen from each


                                         14
No. 71095-8-1/15




residence, gloves, and a jacket that appeared to be his size containing shards of

glass. The testimony of two eyewitnesses indicated that Wade was one of the

group who entered the Reek and Wu residences. Finally, Wade acknowledged

his involvement in the burglaries when he expressed his view that the potential

punishment exceeded his culpability, because the group was merely "taking care

of our folks" and no one was hurt.      Sufficient evidence supports the court's

determination that beyond a         reasonable doubt Wade or an accomplice

committed each of the burglaries.

        RCW 9A.56.300 provides that a person "is guilty of theft of a firearm

[when he] commits a theft of any firearm."      With respect to each of the six

firearms, the trial court concluded that Wade or an accomplice stole it from the

Reek residence.    It is undisputed that six firearms were missing from Reek's

home after the burglary. Again, the cell tower evidence, eyewitness testimony,

and Patterson's statement that he was with Wade, placed Wade and the Camry

in proximity to the Reek home at the time of the burglary and indicated that Wade

was one of the people inside the house removing property.             The Camry

contained other property taken from the Reeks' home.           The testimony of

eyewitnesses, including Detective Christiansen, established that Wade and the

others stopped briefly at his grandmother's house shortly after the burglaries and

removed some property from the Camry. All of this evidence supports the court's

determination that Wade, along with the others, took firearms from the Reek

home.




                                        15
No. 71095-8-1/16




      Here also, Wade's statements in the recorded jail telephone calls were

damaging.   It is true that Wade did not overtly admit to stealing firearms, nor

expressly mention "guns" or "firearms."        But, given the context of the

conversations, it is clear that Wade was desperate to ensure that police would

not locate the firearms taken from the Reek home or connect them to him.

      Wade suggests a different interpretation and claims he was merely

concerned about stolen property located in the Camry. But, Wade did not inquire

about the Camry.    He appeared to assume that it was in police custody. At

certain points, Wade referred to the Camry as "the car," making no attempt to

disguise the reference. Wade fails to explain why "Barney" refers to the Camry.

Wade did not discuss the residential burglary, possession of stolen property, or

any other charges that could result from the police finding stolen property in the

Camry.

      Wade was singularly focused on the charges stemming from the stolen

firearms and whether those charges were viable if police did not locate the

firearms. In one of the calls, Wade explained to Cody that he was specifically

concerned after he learned that the police were watching when they stopped at

Anderson's house and therefore likely knew that "Barney is involved."          He

therefore urged Cody to make sure the "dunt-dunt-da-dahs" were "[o]ut of

Barney" and "further" away, "immediately."       He expressed interest only in

"Barney" or the "purple thing" and whether and to what extent it was "clean." The

clear inference from the recorded jail calls is that Wade participated in stealing

firearms from Reek's home.      Even absent Patterson's statement that Wade



                                        16
No. 71095-8-1/17




primarily handled the firearms, there was sufficient evidence to establish that

Wade committed theft of a firearm as a principal or an accomplice.

       Under RCW 9.41.040(1) a person commits unlawful possession of a

firearm "if the person owns, has in his or her possession, or has in his or her

control any firearm after having previously been convicted ... of any serious

offense." Wade does not dispute that he was previously convicted of a serious

offense. A person actually possesses something that is in his or her physical

custody, and constructively possesses something that is not in his or her physical

custody, but is still within his or her "dominion and control." State v. Callahan, 77

Wn.2d 27, 29, 459 P.2d 400 (1969).             For either actual or constructive

possession, the prosecution must prove more than a passing control. State v.

Stalev. 123 Wn.2d 794, 801, 872 P.2d 502 (1994).               While the ability to

immediately take actual possession of an item can establish dominion and

control, mere proximity to the item by itself cannot. Cf. State v. Jones, 146

Wn.2d 328, 333, 45 P.3d 1062 (2002); State v. Spruell, 57 Wn. App. 383, 388,

788 P.2d 21 (1990). Factors supporting dominion and control include ownership

of the item and, in some circumstances, ownership of the premises.          State v.

Tadeo-Mares, 86 Wn. App. 813, 816, 939 P.2d 220 (1997). Whether one has

actual control over the item at issue depends on the totality of the circumstances.

Stalev, 123Wn.2dat802.

       Wade claims there was no evidence that he exercised dominion and

control over any firearm, and at most, the evidence indicated only proximity to the

stolen guns. Wade relies on the Washington Supreme Court's recent decision in


                                         17
No. 71095-8-1/18




State v. Davis, 182 Wn.2d 222, 340 P.3d 820 (2014). In Davis, both defendants

were convicted of rendering criminal assistance and firearm possession charges

based on their actions following Maurice Clemmons's notorious shooting of four

Lakewood, Washington police officers.         Id at 224.   Clemmons sustained a

gunshot injury and stole a firearm from one of the officers he shot and killed, jd

at 224-25.   After the shooting, Eddie Lee Davis drove Clemmons to Letrecia

Nelson's home. Id. at 225. After Nelson let the two men inside, Clemmons told

Nelson about the shooting and the stolen firearm and requested clean clothes

and assistance in treating his wound,          jd   While another person helped

Clemmons with the wound, Nelson put clothes and the stolen firearm in a

shopping bag.      Id at 227-28.      Clemmons stayed at Nelson's home for

approximately 15 minutes.    Id. at 228.     Just before leaving, Clemmons asked

Davis, "'Where's the gun?'" Id Davis responded that the gun was in a bag and

handed the bag to Clemmons. k±

      A majority of the court determined that neither Nelson nor Davis exercised

dominion and control over the firearm, because neither "asserted any interest" in

the gun, but merely "briefly handled the item for Clemmons, the true possessor of

the gun."4 Id at 235 (Stephens, J. dissenting). Critical to the court's conclusion

were the circumstances of Clemmons's arrival and his tendency to control his

family members.    Id While Clemmons was briefly distracted by other pressing

issues while at Nelson's home and apparently did not know the gun had been

placed in a bag, there was nothing to suggest he intended to transfer possession

      4 The four justice concurrence agreed with the dissent on this point.

                                        18
No. 71095-8-1/19




or control. Id at 237. Nelson's and Davis's actions amounted to "mere proximity

to and momentary handling" of the contraband. ]d at 235.

       The evidence here does not suggest that Wade momentarily handled the

guns on behalf of a true possessor or that he was merely proximate to stolen

firearms.   Unlike Nelson and Davis, Wade stole the guns as a principal or an

accomplice. Wade was the driver and exercised control over the Camry, used to

transport the guns.      Wade was the person who opened the trunk and

manipulated the property within it. Wade's attempt to conceal items as he stood

behind the trunk suggests that the items he was handling would be readily

recognized as contraband.       Wade appeared to be in charge of the initial

distribution of the stolen firearms. It is reasonable to infer from this evidence that

Wade exercised dominion and control over the guns.              Wade continued to

exercise control over the firearms after he was arrested, by directing Cody's

actions with respect to them.        Thus, here also, even absent Patterson's

statement that Wade was the person who handled the guns, the evidence is

sufficient to support the trial court's determination that he exercised dominion and

control and therefore committed the crime of unlawful possession of a firearm.5




       5 At oral argument, Wade suggested that his conviction for unlawful
possession of a firearm should be reversed because the trial court failed to make a
specific finding that Wade physically possessed any gun at a specific point in time.
However, when the findings are unclear or fail to address an important point, the
appropriate remedy is remand and Wade does not request this remedy. See State
v. Head, 136 Wn.2d 619, 624, 964 P.2d 1187 (1998) (no findings prepared); see
also State v. Alvarez, 128 Wn.2d 1,19, 904 P.2d 754 (1995) (no bench trial findings
on ultimate facts).


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        Finally, conviction for theft in the second degree requires proof that a

person "commits theft of . . . [property or services which exceed(s) seven

hundred fifty dollars in value."     RCW 9A.56.040(1)(a).        As explained, the

evidence is sufficient to establish that Wade participated in each of the residential

burglaries. Wade does not challenge the sufficiency of the evidence to establish

that the value of the items stolen from the Vu home was more than $750.

Sufficient evidence supports the court's verdict.

 III.   Offender Score

        For the first time on appeal, Wade contends that the court erred when it

failed to treat his six theft of a firearm convictions as the same criminal conduct

for the purpose of calculating his offender score.

        Although a criminal defendant may challenge an offender score for the

first time on appeal, a defendant waives that right when the alleged error involves

a factual dispute or trial court discretion. State v. Jackson, 150 Wn. App. 877,

892, 209 P.3d 553 (2009). Where a defendant is convicted of more than one

crime, the sentencing court must make discretionary decisions in determining

whether those crimes arose from the same criminal conduct. State v. Nitsch, 100

Wn. App. 512, 523, 997 P.2d 1000 (2000). Thus, by failing to raise the issue of

same criminal conduct at sentencing, a defendant waives the right to argue that

issue on appeal. State v. Jackson, 150 Wn. App. 877, 892, 209 P.3d 553 (2009).




                                         20
No. 71095-8-1/21




Because Wade did not argue at sentencing that his offenses constituted the

same criminal conduct, he cannot raise this issue for the first time on appeal.6

       We affirm.




WE CONCUR:




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       6 In any event, as the State points out, Wade's firearm convictions did not
count as current offenses against each other due to the operation of RCW
9.94A.589(1)(c). And, with respect to Wade's offender score for the residential
burglary and trafficking in stolen property counts, treating the firearm convictions as
the same criminal conduct would not affect the standard ranges and Wade was
sentenced to the bottom of the range on each count.


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