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                                       2013 SEP-9 AH 9=26




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,               No. 67509-5-1
                                   (Consolidated with Nos.
               Respondent,         67516-8-1 and 67556-7-1)

     v.                            DIVISION ONE


KEVIN ISAJAH VOLANTE,

               Appellant.          UNPUBLISHED OPINION



STATE OF WASHINGTON,               FILED: September 9, 2013

               Respondent,

     v.



DARA KHANN,

               Appellant.


STATE OF WASHINGTON,

               Respondent,



MICHAEL MARTINEZ COPOL AKA
JUAN MIGUEL MACHADO,

               Appellant.
No. 67509-5-1 (consol. with
Nos. 67516-8-1 and 67556-7-1) / 2



       Leach, C.J. — Appellants Kevin Volante, Michael Copol (aka Juan

Machado), and Dara Khann appeal their convictions for first degree robbery and

burglary. Volante and Khann also appeal their convictions for first degree rape.

All appellants challenge the admission of evidence seized by the arresting deputy

during a warrantless search of their vehicle, claiming that the initial stop of their

vehicle was unlawful. They also challenge the court's imposition of a firearm

enhancement on each count, arguing that the State did not present sufficient

evidence that the gun used was operable. Separately, Khann challenges the

court's denial of his motion to sever his trial from the codefendants.          In a

statement of additional grounds, he alleges that the court erred when instructing

the jury about the need for unanimity regarding the firearm special verdicts.

       Because the deputy had a reasonable, articulable suspicion that the

appellants had been involved in criminal activity, the court correctly denied the
suppression motion. The State presented sufficient evidence of operability to
support the firearm special verdicts. The court properly denied Khann's motion
because, at the close of evidence, the weight of the evidence was not so

disparate as to justify severance. Because our Supreme Court has overruled the
authority relied upon by Khann to challenge the special verdicts, the court
properly instructed the jury regarding the special verdicts. Therefore, we affirm.

                                         -2-
No. 67509-5-1 (consol. with
Nos. 67516-8-1 and 67556-7-1) / 3



                                      FACTS


      At 2:55 a.m. on the morning of August 11, 2010, C.H.1 called the King
County Sheriff's Office to report a home invasion and rape. When deputies

arrived, she told them that three men had bound her hands and mouth with tape

and that at least two of them penetrated her vagina with their fingers.          The

assailants stole C.H.'s BMW and drove away in it.

      About an hour later, deputies received a report that someone had

abandoned a BMW at a Chevron station near C.H.'s house.                 The station's

surveillance footage did not show a clear photo of the driver, but a witness

reported seeing three males with medium complexions near the vehicle.

       Deputy Daniel Murphy heard the original 911 dispatch call, which

described the assailant as an Asian male, aged 25-30 years old, and another

deputy's updated description of three "younger" Asian males.                He began

searching the area for the suspects. Shortly after 4:00 a.m., while stopped at a

stop sign, Murphy saw a beige Cadillac approach. As the car passed him,

Murphy noticed the three occupants, who all appeared to be Asian males in their
late teens or early 20s. He reported that all three of them stared at him as they

passed his marked patrol car.

       1The victim is referred to by her initials to protect her privacy.
       2Through an interpreter, the gas station clerk testified that the people he
saw were not black, white, or Mexican.
                                          -3-
No. 67509-5-1 (consol. with
Nos. 67516-8-1 and 67556-7-1) / 4



        Finding this behavior suspicious and believing the men matched C.H.'s

description of her attackers, Murphy made a U-turn and began to follow the

Cadillac. He stated that the car sped up after it went through the stop sign, but

that it was not speeding, and that the driver made a quick left turn into a

neighborhood.         Suspecting that the car was attempting to "duck" him, Murphy

decided to execute a traffic stop. As the car made a "rolling stop" at the next stop

sign, Murphy activated his emergency lights and stopped the vehicle.              He

testified that by this point, based on his suspicions that the occupants

participated in the home invasion, he intended to stop them regardless of the

traffic infraction.


        As he walked up to the driver's side window, Murphy noticed a large

kitchen knife on the backseat.        After Murphy's backup arrived, they had the

suspects exit the vehicle, handcuffed them, and placed them under arrest.

Another officer then spotted the butt of a gun underneath the front passenger

seat of the Cadillac.       Officers then conducted a showup identification.    C.H.

identified Khann and Copol as the men who had broken into her house. She did

not identify Volante.

        The State charged all three with first degree robbery, first degree burglary,

and first degree rape. In each count, the State alleged that the defendants were
No. 67509-5-1 (consol. with
Nos. 67516-8-1 and 67556-7-1) / 5



armed with a firearm at the time.     After the State concluded its case in chief,

Khann's counsel rested without presenting any evidence.          At the same time,

based on the asserted disparity of evidence linking Khann and the other

defendants to the crime, he moved to sever.         The judge deferred ruling on

Khann's motion until Copol and Volante had both presented their cases. At the

close of all evidence, the court determined that the disparity in evidence against

the three defendants did not warrant severance.          The jury found all three

defendants guilty on the robbery and burglary counts. It also found Volante and

Khann guilty on the rape charge. The jury found that the defendants were armed

with a firearm during the commission of all counts. The court imposed standard

range sentences plus firearm enhancements. All defendants appeal.

                             STANDARD OF REVIEW


       We review the denial of a motion to suppress evidence by determining

whether substantial evidence supports the trial court's findings of fact and

whether those findings support the trial court's conclusions of law.3 Substantial

evidence exists if it is sufficient to persuade a fair-minded, rational person of the

truth of the matter asserted.4 Unchallenged findings of fact become verities on

appeal.5 We review conclusions of law de novo.6

       3State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001).
       4 State v. Lew, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006).
       5 State v. Hill. 123 Wn.2d 641, 644, 870 P.2d 313(1994).
                                         -5-
No. 67509-5-1 (consol. with
Nos. 67516-8-1 and 67556-7-1) / 6



      When reviewing the sufficiency of the evidence, we view the evidence in

the light most favorable to the State and ask whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable

doubt.7 By challenging the sufficiency of the evidence, the defendant admits the

truth of the State's evidence and all reasonable inferences drawn from it.8

       Lastly, we review a trial court's severance ruling under CrR 4.4(c)(2) for a

manifest abuse of discretion.9      "A manifest abuse of discretion is a decision

manifestly unreasonable or exercised on untenable grounds or for untenable

reasons. It is one that no reasonable person would have made."10
                                     ANALYSIS


       In this consolidated appeal, all three appellants challenge the validity of

the initial stop of their vehicle and the sufficiency of the evidence to support the

firearm special verdicts. Volante and Khann assign error to various findings and

conclusions in the court's decision on the CrR 3.6 hearing. Because Copol does

not assign error to these findings or conclusions, the findings are verities for

purposes of his appeal. Additionally, Khann appeals the denial of his motion to

sever his trial from the codefendants'. He alone filed a statement of additional

       6 State v. Acrev, 148 Wn.2d 738, 745, 64 P.3d 594 (2003).
       7 State v. Lord, 117 Wn.2d 829, 881, 822 P.2d 177(1991).
       8 State v. Pedro, 148 Wn. App. 932, 951, 201 P.3d 398 (2009).
       9 State v. Larry, 108 Wn. App. 894, 911, 34 P.3d 241 (2001).
       10 In re Marriage of Tower, 55 Wn. App. 697, 700, 780 P.2d 863 (1989).
                                         -6-
No. 67509-5-1 (consol. with
Nos. 67516-8-1 and 67556-7-1) / 7



grounds challenging the court's instruction on jury unanimity for each special

verdict.


        First, the appellants contend that the arresting officer did not have

reasonable suspicion, supported by specific, articulable facts, to stop their

vehicle. Article I, section 7 of the Washington Constitution provides, "No person

shall be disturbed in his private affairs, or his home invaded, without authority of

law."   Warrantless seizures are presumptively unconstitutional unless they fall

into one of several carefully defined categories.

        A brief investigative detention, commonly known as a Terry11 stop, is one

accepted exception to the warrant requirement.12 A Terry stop occurs when the

police briefly seize an individual for questioning based on "specific and

articulable," objective facts that give rise to a reasonable suspicion that the

individual has been or is about to be involved in a crime.13 When reviewing a

Terry stop's validity, we consider the totality of the circumstances,14 including
factors such as the officer's training and experience, the location of the stop, the

conduct of the person detained, the purpose of the stop, the amount of physical




        11 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L Ed. 2d 889 (1968).
        12 State v. Hendrickson. 129 Wn.2d 61, 71, 917 P.2d 563 (1996).
        13 Terry, 392 U.S. at 21-22; State v. Armenta, 134 Wn.2d 1, 10, 948 P.2d
1280(1997).
        14 State v. Glover. 116 Wn.2d 509, 514, 806 P.2d 760 (1991).
                                         -7-
No. 67509-5-1 (consol. with
Nos. 67516-8-1 and 67556-7-1) / 8



intrusion upon the suspect's liberty, and the length of time the suspect is

detained.15

      The appellants contend that Murphy's stated reasons for the stop were

pretextual and his only real justification was a hunch based on their racial

appearance.     A pretextual traffic stop is one made to "accomplish an

impermissible ulterior motive."16 The appellants rely on State v. Barber17 to
argue that race is an insufficient basis to justify an investigatory stop. There, the

court noted that "racial incongruity, j^e., a person of any race being allegedly 'out

of place' in a particular geographic area, should never constitute a finding of

reasonable suspicion of criminal behavior."18 But the Barber court also noted

that in some cases, "appearance, including race and other physical attributes of a

suspect, may be relevant in forming a suspicion of criminal activity."19 Racial
incongruity was not the reason for Murphy's suspicion.          Indeed, the deputy



      15Acrev, 148 Wn.2d at 747.
      16 State v. Ladson. 138 Wn.2d 343, 354, 979 P.2d 833 (1999). Under
Ladson, "a traffic infraction may not be used as a pretext to stop to investigate for
a sufficient reason to search even further." Ladson, 138 Wn.2d at 353. Murphy's
unchallenged testimony was that he would have stopped the vehicle regardless
of the driver's failure to stop fully at the stop sign.      Because this was an
investigative stop for suspected criminal activity, not merely a traffic violation
stop, Ladson's specific prohibition against the pretextual use of traffic infractions
to conduct warrantless stops and searches does not apply.
       17 118 Wn.2d 335, 346, 823 P.2d 1068 (1992).
       18 Barber, 118 Wn.2d at 346.
       19 Barber, 118 Wn.2d at 348.
                                         -8-
No. 67509-5-1 (consol. with
Nos. 67516-8-1 and 67556-7-1) / 9



testified that seeing Asian American males in that area was not unusual.

Instead, Deputy Murphy identified the occupants' resemblance to the suspect

description as a primary reason for the stop. Given the victim's description of her

attackers as young Asian American males, the race of the car's occupants was a

legitimate factor for Murphy to consider.

           Further, we review the evidence as a whole and do not evaluate the facts

on a piecemeal basis. Murphy also identified the defendants' behavior within the

car as a factor in his decision to execute the stop.           He described seeing their

shadows in the car moving around suspiciously after he began tailing them, and

he felt from his driving behavior that the driver was attempting to elude him.

Washington        courts   afford   police   officers   substantial   deference   in their

interpretation of potentially suspicious circumstances.           As this court noted in

State v. Marcum,20 an officer may "'draw on [his or her] own experience and

specialized training to make inferences from and deductions about cumulative

information available to [him or her] that might well elude an untrained person.'"

           Given the severity of the suspected crime, Deputy Murphy's experience in

law enforcement, the suspects' proximity to the abandoned BMW, and their

erratic,     suspicious behavior,     specific,     articulable facts support Murphy's

           20 149 Wn. App. 894, 908 n.5, 205 P.3d 969 (2009) (alterations in original)
(internal quotation marks omitted) (quoting United States v. Arvizu, 534 U.S. 266,
273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002)).
                                              -9-
No. 67509-5-1 (consol. with
Nos. 67516-8-1 and 67556-7-1) /10



reasonable suspicion that the appellants may have been involved in the home

invasion.   Because his observations led to a reasonable suspicion that the

suspects were involved in the home invasion, the Terry stop was valid and the

trial court correctly denied the defendants' suppression motion.

       Alternatively, the appellants assert that the State failed to present

sufficient evidence to support the firearm enhancement special verdicts.

Evidence is sufficient if any rational trier of fact, viewing the evidence in the light

most favorable to the State, could find each element proved beyond a

reasonable doubt.21     We consider circumstantial and direct evidence equally

reliable and defer to the trier of fact on conflicting testimony, witness credibility,

and the persuasiveness of the evidence.22

       To enhance an appellant's sentence in this case, the State had the burden

of proving that he or an accomplice committed the crime while armed with a

"firearm," i.e., "a weapon or device from which a projectile or projectiles may be

fired by an explosive such as gunpowder."23 Appellants contend this burden
required the State to prove the firearm was operable, even though the applicable

statutes do not use this word. Thus, because the State never proved that the

       21 State v. Montgomery. 163 Wn.2d 577, 586, 183 P.3d 267 (2008).
       22 State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004),
abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124
S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
       23 RCW 9.94A.533(3); RCW 9.41.010(7).
                                         -10-
No. 67509-5-1 (consol. with
Nos. 67516-8-1 and 67556-7-1) /11



firearm was capable of firing shots, the State did not meet its burden. The State

disagrees, asserting that it met its burden by showing that Volante or an

accomplice used a real gun.

       We do not need to resolve the parties' disagreement about the State's

burden because, even if the law requires proof of operability, this may be inferred

without any direct evidence of operability.24 In State v. Mathe.25 we held that the
State proved the defendant used "a real and operable gun" with the testimony of

two robbery eyewitnesses who described the guns and the defendant's express

or implied threat to use them.        Similarly, in State v. Bowman.26 we held
eyewitness testimony describing a "real" gun and describing a threat to use it

was sufficient to establish "the existence of a real, operable gun in fact."

       At trial, the State admitted the handgun found in Volante's car at the time

of his arrest and presented evidence that it was loaded, had a serial number, and

was engraved "Smith and Wesson." This gun matched the victim's description of

the weapon used as a black-and-silver semiautomatic pistol.           Copol told the

police the gun belonged to him and that he had purchased it about one week

before for personal protection. Viewed in the light most favorable to the State,

       24 State v. Mathe, 35 Wn. App. 572, 581-82, 668 P.2d 599 (1983), affd,
102 Wn.2d 537, 688 P.2d 859 (1984).
       25 35 Wn. App. 572, 581-82, 668 P.2d 599 (1983), affd, 102 Wn.2d 537,
688 P.2d 859 (1984).
       26 State v. Bowman, 36 Wn. App. 798, 803, 678 P.2d 1273 (1984).
                                         -11-
No. 67509-5-1 (consol. with
Nos. 67516-8-1 and 67556-7-1) /12



this evidence sufficiently supports an inference that one of the appellants was

armed with a firearm during each of the offenses.

       Appellant Khann contests the court's refusal to sever his trial from his

codefendants'.27       To avoid unduly burdening administration of justice,

Washington law disfavors separate trials,28 and severance under CrR 4.4(c) is at

the discretion of the trial court.29

       CrR 4.4(c)(2) provides in part,

               (2) The court. . . should grant a severance of defendants
       whenever:
                  (i) if before trial, it is deemed necessary to protect a
               defendant's rights to a speedy trial, or it is deemed
               appropriate to promote a fair determination of the guilt or
               innocence of a defendant; or
                    (ii) if during trial upon consent of the severed defendant,
               it is deemed necessary to achieve a fair determination of the
               guilt or innocence of a defendant.

This court reviews a trial court's denial of a motion under an abuse of discretion


standard.30 A defendant must demonstrate undue prejudice from a joint trial to




     27 Khann moved twice for severance on speedy trial grounds. However,
on appeal, he only challenges the court's denial of his motion to sever for
disparity of evidence at the close of the State's case.
       28 State v. Grisbv. 97 Wn.2d 493, 506-07, 647 P.2d 6 (1982); State v.
Ferguson. 3 Wn. App. 898, 906, 479 P.2d 114(1970).
       29 Larry. 108 Wn. App. at 911.
       30 State v. Hoffman. 116 Wn.2d 51, 74, 804 P.2d 577 (1991).
                                         -12-
No. 67509-5-1 (consol. with
Nos. 67516-8-1 and 67556-7-1) /13



establish an abuse of discretion.31 To do this, the defendant "'must be able to

point to specific prejudice.'"32 Specific prejudice may be established by showing

      "(1) antagonistic defenses conflicting to the point of being
      irreconcilable and mutually exclusive; (2) a massive and complex
      quantity of evidence making it almost impossible for the jury to
      separate evidence as it related to each defendant when
      determining each defendant's innocence or guilt; (3) a co-
      defendant's statement inculpating the moving defendant; (4) or
      gross disparity in the weight of the evidence against the
      defendants."133'

To justify a severance, the claimed prejudice must outweigh the court's concern

for judicial economy.34 Khann moved for severance based upon the disparity of

the evidence against him and his codefendants. At the time the State rested, the

only evidence linking Khann to the crime was the victim's showup identification,

and the court noted that Khann successfully impeached her related testimony at

trial. Since Khann did not present any evidence in his own defense, he argues

that the court should have granted his severance motion based on the facts in

evidence at the time the State rested.


      CrR 4.4(a)(1) plainly states that a severance motion may be made "before

or at the close of all the evidence" in a consolidated case.   Khann's motion was



      31 State v. Alsup. 75 Wn. App. 128, 131, 876 P.2d 935 (1994).
      32 Larry, 108 Wn. App. at 911 (quoting State v. Wood. 94 Wn. App. 636,
641, 972 P.2d 552 (1999)).
       33 State v. Canedo-Astorga. 79 Wn. App. 518, 528, 903 P.2d 500 (1995)
(quoting United States v. Oglesbv. 764 F.2d 1273, 1276 (7th Cir. 1985)).
      54 Hoffman. 116 Wn.2d at 74.
                                         -13-
No. 67509-5-1 (consol. with
Nos. 67516-8-1 and 67556-7-1) /14



timely but, contrary to his argument, the rule does not require the judge to rule on

the motion immediately.    A rule discussing severance of multiple defendants'

trials necessarily contemplates that multiple parties may be presenting evidence.

Had the rule's author intended to require that the trial court make its decision

based solely on the evidentiary record at the time of the motion, rather than all

the evidence to be considered by the jury, it could have included this

requirement. But such a requirement would not address the pertinent problem,

the risk of one defendant being convicted based upon the strength of the

evidence against codefendants.

       The State correctly notes that Khann seeks to benefit from forcing the

judge to ignore probative evidence about Khann's guilt by requiring the court to

rule before hearing all the evidence.      This negates the principle of judicial

economy that consolidated trials serve. If the court had severed Khann's trial,

then the State could call Copol and Volante as the State's witnesses in Khann's

subsequent trial.    Because the court waited until after Copol and Volante

presented their defense evidence, which also provided more evidence against

Khann, the court determined that the disparity in the weight of the evidence did

not warrant severance.




                                        -14-
No. 67509-5-1 (consol. with
Nos. 67516-8-1 and 67556-7-1) /15



       Khann additionally argues that Copol's statements were impeachment

evidence and the court improperly considered them as substantive evidence

against him. "[A]bsent a request for a limiting instruction, evidence admitted as

relevant for one purpose is deemed relevant for others."35 Because Khann did

not object to Copol's testimony and did not request a limiting instruction, the jury

properly considered it as substantive evidence against Khann.

       In his statement of additional grounds, Khann alleges that the court's

instruction that the jury must be unanimous to return a special verdict violates the

nonunanimity rule established in State v. Bashaw.36          However, in State v.

Guzman Nunez.37 our Supreme Court reconsidered and overruled Bashaw. The

court concluded that the challenged jury instructions, which required a

unanimous "yes" or "no" decision on the special verdict form, were correct. Here,

based on Guzman Nunez, the trial court did not err with the special verdict form.

Khann's argument fails.

                                  CONCLUSION


      The court did not abuse its discretion by denying the appellants'

suppression motion.    The State presented sufficient evidence of operability to




      35 State v. Myers. 133Wn.2d 26, 36, 941 P.2d 1102 (1997).
      36 169 Wn.2d. 133, 146-47, 234 P.3d 195 (2010).
      37 174 Wn.2d 707, 709-10, 285 P.3d 21 (2012).
                                       -15-
No. 67509-5-1 (consol. with
Nos. 67516-8-1 and 67556-7-1) /16



support the firearm special verdicts. And the court did not abuse its discretion by

denying Khann's motion to sever. Therefore, we affirm.




                                                     A^^^/ (-^ - </.
WE CONCUR:




       ^Z7*,.^




                                       -16-
