                                                              FILED
                                                         FEBRUARY 23, 2017
                                                     In the Office of the Clerk of Court
                                                    WA State Court of Appeals, Division Ill



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                          )         No. 32961-5-111
                                              )         (consolidated with
                     Respondent,              )         No. 34159-3-111)
                                              )
              V.                              )
                                              )
JOEL MATTHEW GROVES,                          )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )
                                              )
In the Matter of the Personal Restraint of    )
                                              )
                                              )
JOEL M. GROVES.                               )

       LAWRENCE-BERREY, A.CJ. -        Joel Groves appeals his convictions for first degree

assault, drive-by shooting, felony harassment, and first degree unlawful possession of a

firearm. He argues the State failed to present sufficient evidence to sustain any of his

convictions. He also argues that the trial court improperly added a firearm enhancement

to his drive-by shooting sentence and that his sentence for harassment exceeded the

statutory maximum. Mr. Groves raises numerous other arguments in his statement of

additional grounds for review (SAG), a supplemental SAG, and a consolidated personal

restraint petition (PRP).
No. 32961-5-111; No. 34159-3-111
State v. Groves; PRP of Groves


       We conclude the State failed to present sufficient evidence to sustain Mr. Groves's

harassment conviction and accept the State's concession that the trial court erred when it

imposed the firearm enhancement to Mr. Groves's drive-by shooting conviction, but

otherwise affirm his other convictions and reject his SAG and PRP arguments.

                                         FACTS

       In the summer of 2014, Ryan Smith and Zach Koback began arguing with one

another over Facebook. Mr. Smith insulted Mr. Koback's mother, Cathy Sampson. At

some point Mr. Smith's friend, DaQwon "Dizzy" Kessay, became involved in the dispute

as well.

       On July 8, 2014, Mr. Koback was at the lake with his friend Jordan Hanson, his

mother, and his mother's boyfriend, Mr. Groves. Mr. Koback told Mr. Groves about how

Mr. Smith had insulted his mother. Both Mr. Koback and Mr. Groves were very upset.

Mr. Groves told Mr. Koback that he needed to "defend [his] mom's honor" and stand up

for her. Report of Proceedings (RP) at 682. Mr. Koback decided he needed to fight Mr.

Kessay.

       Mr. Groves drove Mr. Koback and Mr. Hanson to Mr. Kessay's apartment so Mr.

Koback could fight Mr. Kessay. Only these three were in the car. Mr. Groves drove his

gray Mitsubishi while Mr. Koback gave him directions. Mr. Groves told Mr. Koback to


                                            2
No. 32961-5-111; No. 34159-3-111
State v. Groves; PRP of Groves


"try [his] hardest and to just-do what [he could] to defend [his] mom's honor." RP at

685.

       At this time, Mr. Smith, Devon Lowe, Blake Campbell, and Scott Adams were at

Mr. Kessay's apartment relaxing and playing video games. Mr. Kessay had just arrived

home from work and was in the shower. Mr. Adams heard a car pull up outside, and he

looked out the window and saw the Mitsubishi. He saw Mr. Koback get out of the

passenger side door. Mr. Adams saw the driver was a bald white man in his mid-to-late

40s with stubby facial hair, but Mr. Adams did not recognize him. The man was fidgeting

with something in his lap.

       Mr. Koback, with Mr. Hanson following, walked up to Mr. Kessay's apartment.

Mr. Koback pounded on the door. He told the people inside the apartment to come

outside. Mr. Lowe went and opened the door. He saw Mr. Koback, closed the door, and

went and got Mr. Kessay.

       Mr. Kessay retrieved a loaded handgun from a drawer. Mr. Kessay cracked the

door open and began arguing with Mr. Koback through the crack in the door. Mr.

Hanson stood silently behind Mr. Koback. Mr. Kessay did not see anything in either Mr.

Koback's or Mr. Hanson's hands. Off to the side of the apartment building, Mr. Kessay

noticed a man inside a car who looked busy.



                                              3
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


       Mr. Koback noticed Mr. Kessay's handgun and then said, "'Dizzy's got a gun."'

RP at 378. Mr. Kessay opened the door wider and saw a portion of the older man, who by

then was standing near the car passenger door. Mr. Kessay noticed the man was holding

a large black revolver.

       At this point, Mr. Lowe heard an older man's voice that he did not recognize say,

"'Dizzy, I got something for you.'" RP at 469. Mr. Adams heard an older voice that he

did not recognize say, '"Come outside so I can beat your ass."' RP at 558.

       Mr. Kessay slammed the apartment door right as the man holding the gun fired.

Mr. Koback heard the gunshot go off behind him. He did not think the shot came from

Mr. Hanson's direction. Mr. Hanson grabbed Mr. Koback's sleeve and told Mr. Koback

to get to cover. The bullet went through the door and struck the oven inside the

apartment. Mr. Smith, Mr. Lowe, Mr. Campbell, and Mr. Adams all ran into the back

bedroom or the bathroom.

       After the first shot rang out, Mr. Kessay opened the door slightly and, without

looking outside, fired his handgun at the car. Mr. Koback dove into the back of the car,

followed by Mr. Hanson. Once inside the car, Mr. Koback saw Mr. Groves had a

revolver. Mr. Groves handed Mr. Koback the revolver and told him to put it inside the

speaker in the back seat. Mr. Koback did.



                                            4
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


       Mr. Groves, Mr. Koback, and Mr. Hanson drove back to Ms. Sampson's house on

Highway 97. When they arrived, Mr. Groves told Mr. Koback to hand him the revolver.

Mr. Koback did. Ms. Sampson then arrived at the house from the lake and asked what

happened. Mr. Groves and Mr. Koback both told her nothing happened. Mr. Groves

spent the night at the house.

       The police arrived at Mr. Kessay's apartment not long after the shooting. They

noticed large dents and a bullet hole in the door, as well as used shell casings on the

ground. They also found a bullet fragment underneath the oven.

       The police identified Mr. Groves as a possible suspect and issued a press release to

the community the next day. Mr. Adams saw the pictures of Mr. Groves in the press

release and was 90 to 95 percent sure it was the same person he saw driving the

Mitsubishi. The police arrested Mr. Groves. When they arrested him, Mr. Groves had a

goatee, a very short buzz cut, sleeve tattoos, and a muscular build.

       On July 9, Detective Tim Weed sought a telephone search warrant to search a

house located at 2407 N. Ellington Street, where he believed Mr. Groves occasionally

stayed. Detective Weed believed a handgun and ammunition might be there. In his

affidavit to the court, Detective Weed stated that an eyewitness, Patrick Kennedy, saw

Mr. Groves shoot at Mr. Kessay's door. Detective Weed also stated that another officer


                                              5
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


had attempted to contact Mr. Groves at this address one month before. Detective Weed

declared that this other officer "knocked on the door and Groves answered the door."

PRP Response, Ex. C, at 4. The court authorized the police to search the 2407 N.

Ellington address for "all handguns, all ammunition, all cellular phones and documents

showing dominion and control over the residence." PRP Response, Ex. C, at 6.

       The police executed the search warrant on the 2407 N. Ellington house that day.

Inside a room, the police found prescription bottles and mail with Mr. Groves's. name on

them. The police also found a black bag, which contained spent bullet casings as well as

mail addressed to Mr. Groves. The police also found a locked safe underneath a desk.

One of the officers popped the lock, and inside the safe were two bullet holsters

containing live ammunition. The police collected the spent casings from the black bag

and sent them to the Washington State Patrol Crime Laboratory for testing. Mr. Groves

never challenged the probable cause for the issuance of the search warrant.

       The State charged Mr. Groves with first degree assault, drive-by shooting, felony

harassment, and first degree unlawful possession of a firearm.

       On August 11, Ms. Sampson asked an acquaintance, Brian Anderson, to haul her

trailer full of garbage to the dump. Mr. Anderson went to her house, hooked up the

trailer, and was pulling out of the driveway when he noticed the trash on the trailer was


                                             6
No. 32961-5-111; No. 34159-3-111
State v. Groves; PRP of Groves


not balanced. He began to move the bags of trash around and found a gun among the

bags. He called the police.

       Detective Weed drove to Ms. Sampson's house and met with Mr. Anderson.

Detective Weed recovered the gun from the trash and identified it as a Ruger revolver

with a single action, which meant the user needed to cock the hammer before each shot.

The revolver contained five live rounds and one spent cartridge. Detective Weed took the

revolver back to the station and it was immediately sent to the Washington State Patrol

Crime Laboratory for testing.

      Around mid-September, Mr. Groves requested an interview with a detective.

Detective Cameron Clasen arranged to meet at the jail with Mr. Groves and Mr. Groves's

attorney. At the beginning of the interview, Detective Clasen obtained permission from

Mr. Groves and his attorney to record the conversation. Detective Clasen then advised

Mr. Groves of his Miranda 1 rights, which included the phrase, "Anything you say can be

used against you in a court of law." RP at 86. Mr. Groves indicated he understood his

rights and agreed to speak to Detective Clasen.

      Mr. Groves gave Detective Clasen his version of the incident. He told Detective

Clasen that he drove Mr. Koback and Mr. Hanson over to Mr. Kessay's apartment in the


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

                                              7
No. 32961-5-111; No. 34159-3-111
State v. Groves; PRP a/Groves


Mitsubishi Eclipse. He stated that Mr. Koback and Mr. Hanson went to the apartment's

door while he remained near the driver's side of the Eclipse. He said a shot was fired and

Mr. Koback got back into the Eclipse holding a black revolver. He stated he then drove

back to Ms. Sampson's house with Mr. Koback.

       During the interview, Mr. Groves concluded that Detective Clasen was not

interested in solving the crime, but was only interviewing Mr. Groves so he could "use it

against [Mr. Groves] in some fashion." RP at 97. Mr. Groves became upset and agitated.

At the end of the interview, Detective Clasen asked Mr. Groves if he had given his

statement freely, voluntarily, and without any promises. Mr. Groves responded, "'I don't

want to say anything else. I'm talking to a man who thinks I'm guilty. I don't want to say

anything more to you.'" RP at 89.

       Mr. Groves moved to suppress his interview with Detective Clasen. The trial court

found that Mr. Groves made the statements knowingly, voluntarily, and intelligently, and

ruled they would be admissible at trial.

       In late September, the prosecutor called the crime laboratory and informed them

the deoxyribonucleic acid (DNA) analysis on the revolver needed to be done as quickly as

possible. The prosecutor called the crime laboratory on a weekly basis to check its

progress. An employee at the laboratory eventually told the prosecutor that she could



                                            8
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP o[Groves


expedite the analysis if she had a reference sample of Mr. Graves's DNA. The prosecutor

stated she would attempt to get one.

       Mr. Graves's trial was set to begin November 4. The last day of Mr. Graves's

speedy trial period was November 10. On October 31, the State moved for an order

allowing it to take a sample of Mr. Graves's DNA. At the hearing, the prosecutor

informed the court that the laboratory had not yet finished analyzing the DNA on the

revolver. The prosecutor stated the analysis would be faster if the crime laboratory had a

sample of Mr. Graves's DNA, as opposed to running the DNA from the revolver through

the Combined DNA Index System (CODIS) database. The court ordered Mr. Groves to

provide a DNA sample.

       On November 3, Mr. Groves moved in limine to exclude any potential DNA

evidence from the revolver. He argued that he wished to seek a second opinion on any

DNA evidence that might be on the revolver, and that allowing the State to introduce this

late-produced evidence would force him to choose between a speedy trial and effective

assistance of counsel. The trial court held a hearing on Mr. Graves's motion. The State

indicated the DNA analysis would be done either that day or the next day, but the crime

laboratory had not started ballistics testing yet. The State asked the court to extend Mr.

Groves' s speedy trial expiration date in order to allow the crime laboratory to finish



                                              9
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


analyzing the revolver. Mr. Groves objected. The trial court found that adequate grounds

supported the State's motion for a continuance within the cure period and continued the

trial to November 12 per CrR 3.3(g).

       On November 5, the crime laboratory completed its DNA analysis. Amy Jagmin,

the DNA scientist, found a DNA profile on the hammer of the revolver that originated

from at least two people. She compared the major profile to the sample from Mr.

Groves's buccal swab and concluded they matched. Ms. Jagmin's report also stated:

      The major profile from the hammer of the revolver (QC) was uploaded to
      and searched against the state level of the Combined DNA Index System
      (CODIS) database, and no probative matches resulted. The profile will be
      searched against the national level of the CODIS database at a future date.
      If any probative matches occur, an additional report will be provided.

SAG Attach.Bat 2.

      The revolver was then immediately sent to a ballistics analyst, who completed

ballistics testing on November 7. The ballistics analyst concluded the bullet that was

underneath Mr. Kessay's oven in the apartment came from the same revolver.

      On November 7, the State provided the DNA and ballistics analyses to Mr.

Groves. Mr. Groves again moved to suppress the DNA evidence on the basis that he

needed time to have the DNA on the revolver retested. The trial court denied Mr.

Groves's motion, but ordered the State to give Mr. Groves "complete access" to the DNA



                                            10
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


and ballistics analysts up until the day the analysts would testify at trial. RP at 171. The

trial court also found that the State had made diligent efforts to obtain the evidence.

       While awaiting trial, Mr. Groves made three telephone calls from jail to his new

girlfriend. During the first call, he told her that, "' Even if I had a gun nobody got hurt.'"

RP at 1160. During the second call, he said, "'This all happened so goddam [sic] fast,

you know what I mean, it just happened fast. I'm thinking that I'm going (inaudible)

handle a fistfight or something, you know?'" RP at 1161. During the last call, he said,

'" I could have just went ahead and let (inaudible) shoot Zack. . . . That's what's I should

have done. I should have just left the kid (inaudible) on his goddam [sic] own-let this

happen."' RP at 1161-62.

       At trial, in addition to calling Mr. Koback, Mr. Hanson, and everyone who was

inside the apartment, the State produced another witness: Patrick Kennedy, who was

friends with Mr. Koback and Mr. Hanson. Mr. Kennedy was riding his bike to Mr.

Kessay's apartment on the night of the shooting. When he arrived at the apartment

building, he saw Mr. Koback banging on Mr. Kessay's door and yelling. He saw Mr.

Hanson standing just off Mr. Koback, to the side of the door.

       Mr. Kennedy testified he also saw an older bald man with sleeve tattoos who he

did not recognize. This man had a revolver. Mr. Kennedy heard the man say, "' Oh, I got



                                              11
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


something for you."' RP at 591. After the older man said this, Mr. Kennedy ran away.

He then heard a gunshot. Mr. Kennedy testified the older man got into the driver's side

of the car, and Mr. Koback and Mr. Hanson got in on the passenger's side. They then

left. Finally, Mr. Kennedy testified that the police later showed him a photo lineup and he

was 90 percent sure Mr. Groves was the shooter.

       The State also called Detective Clasen. Detective Clasen testified about his

interview with Mr. Groves in the jail.

       The State also called Kathy Geil, the firearm and toolmark examiner at the

Washington State Patrol Crime Laboratory. Ms. Geil testified she received the Ruger

revolver, the spent casings, and the bullet fragment. She fired test shots from the revolver

and compared those test shots to the spent casings and the bullet fragments she had

received. She determined the bullet fragment that was under Mr. Kessay's oven came

from the Ruger revolver. She also determined the spent casings from the black bag in Mr.

Graves's bedroom also came from the revolver.

      The State also called Ms. Jagmin, the DNA scientist at the Washington State Patrol

Crime Laboratory who tested the Ruger revolver. Ms. Jagmin testified that she tested the

revolver's grip, cylinder, and trigger, and found at least three people's DNA on them, but




                                            12
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


because it was a low level and it was a complex mixture, she could not do any further

analysis or comparisons.

       However, Ms. Jagmin testified she was able to obtain a robust profile on the

revolver's hammer, which the user needed to pull back to cock the gun. She determined

there was a mixture of two people's DNA on the hammer. Of these two people, there was

"one main person and then a trace of somebody else." RP at 1006. She was able to

compare the major profile to Mr. Groves's reference sample and concluded they matched.

She was not given anyone else's DNA to compare.

      The jury found Mr. Groves guilty on all four counts. It also returned special

verdicts finding Mr. Groves was armed with a firearm at the time he committed the first

degree assault, drive-by shooting, and harassment.

      On the first degree assault count, the trial court sentenced Mr. Groves to 279

months' confinement plus a 60-month firearm enhancement. On the drive-by shooting

count, the court sentenced Mr. Groves to 101 months' confinement plus a 36-month

firearm enhancement. On the harassment count, the court sentenced Mr. Groves to 55

months' confinement plus an 18-month firearm enhancement. On the unlawful

possession count, the trial court sentenced Mr. Groves to 101 months. The court ran all




                                           13
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP a/Groves


the sentences concurrently except for the corresponding firearm enhancements, which it

ran consecutively to the rest of the sentence.

       Mr. Groves appealed. Mr. Groves later filed a CrR 7 .8 motion to dismiss the case,

arguing the search and arrest warrants were defective and he received ineffective

assistance of counsel. The trial court transferred Mr. Groves's motion to this court for

consideration as a PRP pursuant to CrR 7.8(c)(2). This court consolidated Mr. Groves's

PRP with his direct appeal.

                                         ANALYSIS

       A.     SUFFICIENCY OF THE EVIDENCE


       Mr. Groves argues the State presented insufficient evidence to sustain all four of

his convictions.

       In a criminal case, evidence is sufficient to convict if it permits a rational trier of

fact to find the essential elements of the crime proved beyond a reasonable doubt. State v.

Munoz-Rivera, 190 Wn. App. 870, 882, 361 P.3d 182 (2015). When a defendant

challenges the sufficiency of the evidence, the proper inquiry is "whether, after viewing

the evidence in the light most favorable to the State, any rational trier of fact could have

found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d

1068 (1992). "[A]ll reasonable inferences from the evidence must be drawn in favor of



                                              14
No. 32961-5-111; No. 34159-3-111
State v. Groves; PRP of Groves


the State and interpreted most strongly against the defendant." Id. Furthermore, "[a]

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

reasonably can be drawn therefrom." Id.

       In a challenge to the sufficiency of the evidence, circumstantial evidence and

direct evidence carry equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410

(2004). This court's role is not to reweigh the evidence and substitute its judgment for

that of the jury. State v. Green, 94 Wn.2d 216,221, 616 P.2d 628 (1980). Instead,

because the jurors observed the witnesses testify firsthand, this court defers to the jury's

resolution of conflicting testimony, evaluation of witness credibility, and decision

regarding the persuasiveness and the appropriate weight to be given the evidence. State v.

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

              I.     First degree assault

       Mr. Groves contends insufficient evidence supports his conviction for first degree

assault because no one saw him fire a gun at Mr. Kessay.

       "A person is guilty of assault in the first degree if he or she, with intent to inflict

great bodily harm [a]ssaults another with a firearm or any deadly weapon or by any force

or means likely to produce great bodily harm or death." RCW 9A.36.0I l(l)(a). Mr.

Groves does not argue the State's evidence was insufficient to prove a specific element of


                                               15
No. 32961-5-111; No. 34159-3-111
State v. Groves; PRP of Groves


first degree assault. Rather, his sufficiency claim is more general-he argues the State's

evidence was insufficient to prove he was the shooter.

       Mr. Groves is correct that none of the State's witnesses conclusively identified him

as the shooter. However, this court gives equal weight to circumstantial evidence.

Goodman, 150 Wn.2d at 781. Ample circumstantial evidence supports the jury's finding

that Mr. Groves was the shooter.

       First, multiple witnesses testified that Mr. Groves had a revolver immediately

before and after the shooting. Mr. Adams saw Mr. Groves "fidgeting" with something in

his lap before he got out of the car. RP at 554. Mr. Kennedy saw Mr. Groves holding the

revolver moments before the shot was fired. Mr. Kessay saw the shooter's arm holding a

large black revolver. Immediately after the shooting, Mr. Groves gave Mr. Koback a

revolver and told him to hide it in the car speaker.

       Moreover, the State's scientific evidence established two facts: (1) Mr. Groves had

handled the revolver that was in Ms. Sampson's trash, and (2) that same revolver was

used in the shooting. Ms. Jagmin testified Mr. Groves's DNA was on the hammer, which

was used to cock the gun. Ms. Geil testified the bullet fragment under Mr. Kessay's oven

came from that same revolver. She also testified the spent casings the police found in Mr.

Groves's black bag were fired from that revolver. Based on these facts, a reasonable jury



                                             16
No. 32961-5-111; No. 34159-3-111
State v. Groves; PRP of Groves


could have deduced that Mr. Groves was the shooter.

       Additionally, a reasonable jury could have concluded Mr. Groves was the shooter

based on the process of elimination. It is undisputed that Mr. Groves, Mr. Hanson, and

Mr. Koback were the only ones who went to Mr. Kessay's apartment in the Mitsubishi.

Multiple witnesses testified that Mr. Koback stood at the door while Mr. Hanson stood

close behind him. Mr. Koback heard the gunshot go off behind him, and it did not come

from Mr. Hanson's direction. Multiple witnesses also testified Mr. Koback and Mr.

Hanson did not have anything in their hands.

       Accordingly, viewed in the light most favorable to the State, and drawing all

reasonable inferences in favor of the State, we conclude that the foregoing evidence was

sufficient to permit a rational jury to find, beyond a reasonable doubt, that Mr. Groves

was the shooter. Sufficient evidence supports his first degree assault conviction.

              2.     Drive-by shooting

       Mr. Groves also argues the State's evidence was insufficient to convict him for

drive-by shooting. Mr. Groves does not argue the State's evidence was insufficient to

prove any particular element of drive-by shooting as it is defined in RCW 9A.36.045(1).

Rather, he relies on his previous argument that the State presented insufficient evidence




                                            17
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


to prove he was the shooter. As discussed above, the State presented ample

circumstantial evidence he was the shooter. Thus, this claim fails.

             3.      First degree unlawful possession ofa firearm

      Mr. Groves argues insufficient evidence supports his conviction for first degree

unlawful possession of a firearm. He argues the State failed to prove he constructively

possessed the gun.

       RCW 9.4I.040(l)(a) provides that a person is guilty of first degree unlawful

possession of a firearm if he or she has been convicted of a serious offense and "owns,

has in his or her possession, or has in his or her control any firearm." "Possession may be

actual or constructive." State v. Chouinard, 169 Wn. App. 895, 899, 282 P.3d 117

(2012). Actual possession means the defendant had '" personal custody'" or"' actual

physical possession."' State v. Manion, 173 Wn. App. 610, 634, 295 P.3d 270 (2013)

(quoting State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994); State v. Spruell, 57

Wn. App. 383,385, 788 P.2d 21 (1990)).

       The State may prove actual possession by direct evidence, such as testimony that a

witness observed the defendant with the firearm. See State v. Berrier, 110 Wn. App. 639,

647, 41 P.3d 1198 (2002). The State may also prove actual possession by circumstantial

evidence, such as the defendant's DNA on the firearm. Manion, 173 Wn. App. at 634.



                                            18
No. 32961-5-111; No. 34159-3-111
State v. Groves; PRP of Groves


       Here, the State proved actual possession through direct evidence. Mr. Kennedy

saw a man with the revolver, and he later identified the man as Mr. Groves. Mr. Koback

also saw Mr. Groves possess the revolver in the Mitsubishi immediately after the

shooting. The State also proved actual possession through circumstantial evidence-Mr.

Groves's DNA was on the hammer of the revolver. Sufficient evidence supports Mr.

Groves' s conviction for unlawful possession of a firearm.

             4.     Felony harassment

       Mr. Groves also asserts that insufficient evidence supports his felony harassment

conviction. He claims the State presented no evidence that Mr. Kessay reasonably feared

Mr. Groves would carry out his threat because Mr. Kessay never actually heard the

threats.

       To convict a person for felony harassment based on threats to kill, the State

has to prove beyond a reasonable doubt that the defendant (1) without lawful authority,

(2) knowingly threatened to kill some other person immediately or in the future, and

(3) the defendant's words or conduct placed the person threatened in reasonable fear that

the threat to kill would be carried out. RCW 9A.46.020(1)(a)(i), (2)(b); State v. C.G., 150

Wn.2d 604, 609-10, 80 P.3d 594 (2003).




                                             19
No. 32961-5-111; No. 34159-3-111
State v. Groves; PRP of Groves


       The person to whom the threat is communicated does not have to be the victim of

the threat. State v. J.M, 144 Wn.2d 472,488, 28 P.3d 720 (2001). For example, a child

can still be guilty of harassment if he tells his classmates that he wants to bring a gun to

school and shoot his principal. Id. The statute also does not require the defendant to

know that his or her threat will eventually be communicated to the victim. Id. For

example, if the child tells his classmates in confidence that he wants to shoot the

principal, his classmates tell a counselor, and the counselor tells the principal, the child is

still guilty of harassment. Id. at 475, 488.

       Although the person who hears the threat and the victim of the threat do not have

to be the same person, "the harassment statute requires that the person threatened learn of

the threat and be placed in reasonable fear that the threat will be carried out." State v.

Kiehl, 128 Wn. App. 88, 93, 113 P.3d 528 (2005); see also J.M, 144 Wn.2d at 482

(harassment statute requires that "the person threatened must find out about the threat

although the perpetrator need not know ... that the threat will be communicated to the

victim").

       For example, in Kiehl, Gary Kiehl to.ld his mental health counselor that he wanted

to kill a local judge. Kiehl, 128 Wn. App. at 90. He then acted out in detail how he

would kill the judge. Id. The State charged Mr. Kiehl with felony harassment based on


                                               20
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


these statements. Id. The judge did not testify at trial. Id. at 91. The State presented no

evidence that the judge was aware of the threat, or that he reasonably feared Mr. Kiehl

would carry out the threat. Id.

        The Kiehl court held the State's evidence was insufficient to support Mr. Kiehl's

conviction. Id. at 94. The court reasoned that the harassment statute requires the victim

to learn of the threat, and therefore the State needed to prove that (1) Mr. Kiehl threatened

to kill the judge, (2) the judge learned of the threat Mr. Kiehl communicated to his

counselor, and (3) upon learning of this threat, the judge was placed in reasonable fear

that the threat would be carried out. Id. at 93. Because the State failed to prove the

judge-not the counselor-knew about Mr. Kiehl's threat and feared the threat would be

carried out, the evidence was insufficient to support Mr. Kiehl's harassment conviction.

Id. at 94.

       Here, the State charged Mr. Groves with harassment based on his threat to kill Mr.

Kessay. The State argues the evidence is sufficient to support Mr. Groves's felony

harassment conviction based on both a verbal threat as well as a nonverbal threat.

       Mr. Groves made several verbal threats before shooting into Mr. Kessay's

apartment. However, the harassment statute requires Mr. Kessay to have been in

reasonable fear that Mr. Groves would carry out his verbal threats. Like the judge in



                                             21
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


Kiehl, there is no evidence Mr. Kessay ever learned about Mr. Graves's verbal threats.

Mr. Lowe heard Mr. Groves say, "' Dizzy, I got something for you.'" RP at 469. Mr.

Adams heard Mr. Groves say, "'Come outside so I can beat your ass."' RP at 558. Mr.

Kennedy heard Mr. Groves say, "' Oh, I got something for you.'" RP at 591. But Mr.

Kessay never testified he heard any of these statements.

       The State appears to also argue that Mr. Groves nonverbally threatened Mr. Kessay

by pointing the revolver at him. Thus, the evidence may still be sufficient to uphold Mr.

Graves's harassment conviction if the arm pointing the gun was a "threat to kill" for

purposes of the harassment statute.

       "Threat" means to communicate, directly or indirectly, the intent to cause bodily

injury in the future to the person threatened. RCW 9A.04.110(28)(a).

"'Communication' is ' [t]he expression or exchange of information by speech, writing,

gestures, or conduct; the process of bringing an idea to another's perception.'" State v.

Toscano, 166 Wn. App. 546, 554, 271 P.3d 912 (2012) (quoting BLACK'S LAW

DICTIONARY 296 (8th ed. 2004)).

       In Burke, the court held that Mr. Burke's "physical behavior" met the statutory

definition of "threat" when he took a "fighting stance" like a boxer with raised fists.

State v. Burke, 132 Wn. App. 415,421, 132 P.3d 1095 (2006). In contrast, in Toscano,


                                             22
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


the court held that Ms. Toscano's actions did not meet the statutory definition of "threat"

when she attempted to run her car into a police vehicle and then stopped her car in the

police officer's path. Toscano, 166 Wn. App. at 554. The Toscano court held that unlike

the defendant in Burke, Ms. Toscano was not expressing information to or exchanging

information with the officer. Id. Although her actions suggested she wanted to hurt the

officer or interrupt his chase, the Toscano court held that wanting a particular result is not

communication. Id.

       Here, Mr. Groves's actions were not clear nonverbal communication. Mr. Kessay

could not see Mr. Groves at all. He only got a "quick glimpse" of an arm and a barrel

before he slammed the door. RP at 378. Mr. Groves did not express or exchange

information with Mr. Kessay or bring an idea to his perception. Because this was not a

communication between Mr. Groves and Mr. Kessay, it was not a nonverbal threat and,

therefore, it was not felony harassment.

       We conclude the evidence is insufficient to support Mr. Groves's harassment

conviction. We reverse and remand for judgment of dismissal with prejudice. 2 See State

v. Rodgers, 146 Wn.2d 55, 60, 43 P.3d 1 (2002); Kiehl, 128 Wn. App. at 94.




       2
           Because we reverse Mr. Groves's harassment conviction, we need not consider

                                             23
No. 32961-5-111; No. 34159-3-111
State v. Groves; PRP a/Groves


       B.      FIREARM ENHANCEMENT ON DRIVE-BY SHOOTING CONVICTION


       Mr. Groves argues, and the State concedes, that the trial court exceeded its

statutory authority when it imposed a firearm enhancement for his drive-by shooting

conviction. Although Mr. Groves did not object at the sentencing hearing, defendants

may generally challenge sentences that do not comply with sentencing statutes for the first

time on appeal. E.g., State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008).

       A sentencing court adds a firearm enhancement to the standard sentence range for

felony crimes if the offender was armed with a firearm and the offender is being

sentenced for one of the crimes eligible for firearm enhancements. RCW 9.94A.533(3).

RCW 9.94A.533(3)(f) provides:

      The firearm enhancements in this section shall apply to all felony crimes
      except the following: Possession of a machine gun, possessing a stolen
      firearm, drive-by shooting, theft of a firearm, unlawful possession of a
      firearm in the first and second degree, and use of a machine gun in a felony.

(Emphasis added.)

      Because RCW 9.94A.533(3)(f) prohibits courts from imposing firearm

enhancements to drive-by shooting convictions, we remand for the trial court to strike this

enhancement.




his argument that his sentence for harassment exceeded the statutory maximum.
                                            24
No. 32961-5-III; No. 34159~3-III
State v. Groves; PRP of Groves


                        STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
                             AND PERSONAL RESTRAINT PETIT10N 3

       A defendant is permitted to file a prose SAG in a criminal case on direct appeal.

RAP 10.lO(a). This statement is not required to cite authorities or to the record itself, but

must have sufficient specificity to inform the court of the "nature and occurrence" of

specified errors. RAP 10.lO(c). The SAG must not rely on matters outside the record.

State v. McFarland, 127 Wn.2d 322,338,899 P.2d 1251 (1995).

       In order to obtain relief by means of a PRP, a petitioner must demonstrate that he

or she is under restraint and that the restraint is unlawful. In re Pers. Restraint of

Wheeler, 188 Wn. App. 613,616,354 P.3d 950 (2015). To show the restraint is

unlawful, a petitioner must either show that a constitutional error occurred that resulted in

actual and substantial prejudice, or a nonconstitutional error occurred that constituted a

fundamental defect and resulted in a complete miscarriage of justice. Id. at 617; In re

Pers. Restraint of Gentry, 170 Wn.2d 711, 714, 245 P.3d 766 (2010).

       A.     STATE'S DISCLOSURE OF DNA EVIDENCE

       Mr. Groves argues the trial court should have suppressed the DNA evidence from

the revolver because of the State's "blatant discovery violation." SAG at 20. He also


       3
         Mr. Groves's SAGs and PRP consist of 104 pages of briefing, not including
exhibits. Because many of the issues overlap, they are consolidated here.

                                             25
No. 32961-5-111; No. 34159-3-111
State v. Groves; P RP of Groves


argues that the trial court abused its discretion when it continued the trial from

November 4 to November 12.

       CrR 4.7 lists the prosecuting attorney's responsibilities when engaging in

discovery. Generally, the prosecuting attorney must disclose evidence in its possession or

control that is material and favorable to the defendant. CrR 4.7(a). Mr. Groves fails to

present any evidence that the DNA evidence was within the prosecuting attorney's

possession or control. The evidence actually refutes this. The crime laboratory had not

finished its DNA and ballistics analyses, and the trial court reasoned there had not been

"any kind of dilatory conduct on the part of the prosecution." RP at 145.

       The trial court also did not abuse its discretion when it declined to exclude the

DNA and ballistics evidence as a sanction. Washington courts have generally limited the

extraordinary remedies of exclusion and dismissal to situations where the State did not act

with due diligence. E.g., State v. Cannon, 130 Wn.2d 313, 328-29, 922 P.2d 1293 (1996).

Here, the trial court determined such an extraordinary remedy was inappropriate in light

of the State's diligent efforts to obtain the evidence.




                                              26
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


       B.      ALLEGED BRADr4 VIOLATION


       Mr. Groves argues the State violated Brady by not disclosing the fact that Ms.

Jagmin ran the DNA from the revolver against the CODIS database, which did not result

in a match.

       Brady imposes a duty on the State to disclose material evidence favorable to the

defendant. See Brady, 373 U.S. at 87. If the State suppresses such evidence, this violates

due process regardless of whether the State acted in good faith or bad faith. Id. To

establish a Brady violation, a defendant must demonstrate the existence of each of three

necessary elements: (1) The State must have suppressed the evidence, either willfully or

inadvertently, (2) The evidence at issue must be favorable to the accused, either because it

is exculpatory, or because it is impeaching, and (3) Prejudice must have ensued such that

there is a reasonable probability that the result of the proceeding would have differed had

the State disclosed the evidence to trial counsel. Strickler v. Greene, 527 U.S. 263, 281-

82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999). A defendant's Brady claim fails ifhe or

she fails to demonstrate any one element. Id.

       The State has a duty to learn of any favorable evidence "known to the others acting

on the government's behalf in the case, including the police." Kyles v. Whitley, 514 U.S.


      4
          Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

                                            27
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


419,437, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). But Brady does not obligate the

State to communicate preliminary or speculative information. United States v. Diaz, 922

F.2d 998, 1006 (2d Cir. 1990); State v. Davila, 184 Wn.2d 55, 71, 357 P.3d 636 (2015).

       Here, Mr. Groves argues the State violated Brady based on the following remark in

Ms. Jagmin's report: "The major profile from the hammer of the revolver (QC) was

uploaded to and searched against the state level of the [CODIS] database, and no

probative matches resulted." SAG Attach. B, at 2. Mr. Groves argues his DNA profile

was in the CODIS database and, therefore, the fact that the DNA on the revolver did not

match was favorable evidence.

       Mr. Groves fails to show that the State suppressed this evidence. We acknowledge

that Ms. Jagmin was acting on the State's behalf, and the State therefore had a duty to

learn of the information she had and to promptly disclose it. But there is nothing in the

record to suggest that Ms. Jagmin delayed the issuance of her report to the State, or that

the State withheld the report once it received the report.

       C.     DNA EXPERT'S STATISTICAL CONCLUSIONS

       Mr. Groves argues that the trial court improperly admitted Ms. Jagmin's expert

testimony that the "probability of selecting an unrelated individual at random from the




                                             28
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


U.S. population that has a matching profile to the evidence sample, is one in 2.7

sextillion." RP at 1002.

       Mr. Groves relies on Buckner I, which held that a DNA expert's testimony that the

defendant's DNA pattern would occur in only 1 in 19.25 billion Caucasians, and was thus

"unique," was inadmissible. State v. Buckner, 125 Wn.2d 915, 919, 890 P.2d 460 (1995)

(Buckner I). Even assuming Mr. Groves preserved this issue for appeal (he did not), and

also assuming Ms. Jagmin's testimony would be inadmissible under Buckner I (Ms.

Jagmin never testified the sample was "unique"), our Supreme Court reversed itself two

ye·ars later in State v. Buckner, 133 Wn.2d 63, 941 P.2d 667 (1997) (Buckner II). Buckner

II held that "there should be no bar to an expert giving his or her expert opinion that,

based upon an exceedingly small probability of a defendant's DNA profile matching that

of another in a random human population, the profile is unique." Id. at 66.

       D.     ALLEGED FIFTH AMENDMENT VIOLATIONS

      Mr. Groves argues the trial court erred when it admitted his statements to

Detective Clasen. 5 He argues he only agreed to the interview in order to explain his




       5
        Mr. Groves also gave a statement to Detective Jennifer Katzer, which Mr. Groves
argues was also obtained in violation of the Fifth Amendment. However, the trial court
suppressed this statement and the State did not seek to introduce it at trial.

                                             29
No. 32961-5-111; No. 34159-3-111
State v. Groves; PRP of Groves


innocence to Detective Clasen, and thus "did not waive his rights with a full awareness of

the consequences of his decision." Second Suppl. Br. of Appellant at 20.

       A suspect who has been advised of his or her Miranda rights against self-

incrimination may waive those rights, provided the waiver is made knowingly and

intelligently. Miranda, 384 U.S. at 444. To be knowing and intelligent, a waiver must be

"made with a full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412,421, 106

S. Ct. 1135, 89 L. Ed. 2d 410 (1986). But the Fifth Amendment does not require the

police to supply the defendant extraneous information about the case to help the

defendant calibrate his or her self-interest in deciding whether to speak or remain silent.

Id. at 422. Rather, "[o]nce it is determined that a suspect's decision not to rely on his

rights was uncoerced, that he at all times knew he could stand mute and request a lawyer,

and that he was aware of the State's intention to use his statements to secure a conviction,

the analysis is complete and the waiver is valid as a matter of law." Id. at 422-23.

       Here, before beginning the interview, Detective Clasen properly advised Mr.

Groves that anything he said could be used as evidence against him. Although Mr.

Groves requested the interview in an attempt to exonerate himself, the record does not

indicate that Detective Clasen ever misrepresented his intention to collect evidence.



                                             30
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


       Mr. Groves relies on State v. Humphries, 181 Wn.2d 708, 336 P.3d 1121 (2014).

The issue in that case was whether defense counsel could stipulate to an element of the

offense over the defendant's express objection. Id. at 714. Mario Humphries expressly

objected to the stipulation, but the trial court and his attorney both told him his consent

was not required. Id. at 717. The stipulation was then read to the jury as part of the

State's case-in-chief. Id. at 717-18. After the defense rested, Mr. Humphries eventually

acquiesced and agreed to sign the stipulation. Id. at 718. Our Supreme Court held that

Mr. Humphries's late acquiescence-after the damage had been done-was not a

knowing, intelligent, and voluntary waiver of his right to require the State to prove every

element of the crime. Id.

       Humphries does not apply here. Mr. Humphries was told he could not object to

the stipulation, and thus had incorrect information about the nature of his constitutional

right. Here, Mr. Groves knew his statements could be used as evidence, but still

consented to the interview. Accordingly, the trial court did not err when it admitted Mr.

Groves' s statement at trial.

       E.      VARIO US INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS


       Mr. Groves raises a variety of claims that he received ineffective assistance of

counsel. The Sixth Amendment guarantees criminal defendants the right to effective



                                             31
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984). A defendant receives ineffective assistance if the attorney's

conduct ( 1) falls below a minimum objective standard of reasonable attorney conduct, and

(2) prejudiced the defendant, i.e., there is a reasonable probability the attorney's conduct

affected the case's outcome. State v. Benn, 120 Wn.2d 631,663,845 P.2d 289 (1993).

Because ineffective assistance of counsel is an issue of constitutional magnitude, it may

be considered for the first time on appeal. State v. Ky/lo, 166 Wn.2d 856, 862, 215 P .3d

177 (2009).

       "There is a strong presumption that counsel has rendered adequate assistance and

has made all significant decisions in the exercise of reasonable professional judgment."

Benn, 120 Wn.2d at 665. Counsel does not perform deficiently when he or she declines

to raise a nonmeritorious argument at trial, given the argument's likelihood of failure.

See State v. Williams, 152 Wn. App. 937, 944-45, 219 P.3d 978 (2009), rev'd on other

grounds, 171 Wn.2d 474,251 P.3d 877 (2011). This court reviews ineffective assistance

claims de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).

              1.     Ineffective for not challenging search warrant

       Mr. Groves argues defense counsel was ineffective for failing to challenge the

search warrant. He argues Detective Weed's affidavit failed to establish the required



                                             32
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


nexus between the first degree assault and the 2407 N. Ellington Street home. He also

argues that the search of his bedroom exceeded the scope of the search warrant when

Detective Shull opened a locked safe in his room.

       When reviewing the issuing judge's decision to issue a search warrant, appellate

review is limited to the four comers of the affidavit. State v. Neth, 165 Wn.2d 177, 182,

196 P.3d 658 (2008). This court gives great deference to the issuingjudge's assessment

of probable cause and resolves any doubts in favor of the search warrant's validity. State

v. Chenoweth, 160 Wn.2d 454,477, 158 P.3d 595 (2007). The issuing judge "is entitled

to make reasonable inferences from the facts and circumstances set out in the affidavit."

State v. Maddox, 152 Wn.2d 499,505, 98 P.3d 1199 (2004). Here, the warrant request

stated probable cause that Mr. Groves had committed one or more crimes with a gun,

stated that Mr. Groves had been located by law enforcement at the 2407 N. Ellington

Street address one month before, and requested authority to search that residence for and

seize a handgun, ammunition, a cellular phone, and evidence that Mr. Groves resided at

the address.

       A search warrant may be issued only if the affidavit shows probable cause. State

v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). Probable cause exists where the

search warrant affidavit sets forth "facts and circumstances sufficient to establish a



                                             33
No. 32961-5-III; No. 34159-3-III
State v. Groves; P RP of Groves


reasonable inference that the defendant is involved in criminal activity and that evidence

of the criminal activity can be found at the place to be searched." Maddox, 152 Wn.2d at

505. Accordingly, "'probable cause requires a nexus between [the] criminal activity and

the item to be seized, and also a nexus between the item to be seized and the place to be

searched."' Thein, 138 Wn.2d at 140 (quoting State v. Goble, 88 Wn. App. 503, 509, 945

P.2d 263 (1997)). For drug crimes, this nexus between criminal activity and the place to

be searched requires more than a showing that the suspect is probably involved in drug

dealing and resides at the place to be searched. Id. at 141. Rather, the probable cause

standard requires specific facts from which to conclude evidence of illegal activity will

likely be found at the place to be searched. Id. at 14 7.

       A warrant authorizing the search of an apartment may also include the search of a

padlocked locker located in a storage room next to the defendant's apartment, even if the

locker is not mentioned .in the affidavit supporting the search warrant. State v. Llamas-

Villa, 67 Wn. App. 448,453, 836 P.2d 239 (1992) (concluding that because the storage

locker did not constitute a separate building and was not intentionally excluded from the

warrant, the officers did not exceed the scope of the warrant when they searched the

locker).




                                              34
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


       Here, Mr. Groves is correct that an obvious connection between the evidence

sought and the 2407 N. Ellington address was not present in Detective Weed's affidavit.

However, guns, unlike drugs, are likely to be kept in an individual's home and are kept

for longer periods of time. Thus, additional information connecting guns to Mr. Groves's

room was not necessarily required to establish the required nexus. See United States v.

Steeves, 525 F.2d 33, 38 (8th Cir. 1975) (gun was likely to be found in the defendant's

home after the bank robbery because the gun was "not unlawful in itself or particularly

incriminating" and because "people who own pistols generally keep them at home or on

their persons"); United States v. Rahn, 511 F .2d 290, 293-94 (10th Cir. 197 5) (despite no

observation of guns at residence, there was sufficient nexus between firearms and home

because "it is pretty normal ... for individuals to keep weapons in their homes").

       Mr. Groves cites Thein, which requires a specific factual nexus between alleged

illegal drug activity and the defendant's residence. However, he cites no authority that

refutes the above federal holdings that pertain to searches for guns. Applying the strong

presumption that counsel has rendered adequate assistance, together with the fact that no

clear contrary authority exists, we conclude Mr. Groves has failed to demonstrate defense

counsel performed deficiently in not challenging the search warrant.




                                            35
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


               2.     Ineffective for not utilizing court-appointed forensic expert and
                      investigator

       Mr. Groves argues defense counsel was ineffective in failing to utilize Kate

Sweeney, his court-appointed forensics expert, and Marlene Goodman, his court-

appointed investigator. He argues defense counsel should have instructed Ms. Sweeney

and Ms. Goodman to acquire buccal swab samples from Mr. Koback, Mr. Hanson, and

Mr. Kennedy, in order to determine if any of their DNA was on the revolver.

       Mr. Groves fails to show deficient performance. Defense counsel intended to

independently test the DNA on the revolver and could have done so if Mr. Groves had

agreed to a continuance. Mr. Groves also fails to show prejudice. He asserts that Mr.

Koback's, Mr. Hanson's, or Mr. Kennedy's DNA could have also been on the revolver,

but this is entirely speculative.

               3.     Ineffective for filing frivolous motions

       Mr. Groves argues defense counsel rendered ineffective assistance for filing

pretrial motions "that had no basis in fact and were unsupported by legal authority." PRP

at 15. Specifically, he contends defense counsel was ineffective for filing three motions:

( 1) the motion to dismiss for insufficient evidence, (2) the motion to exclude late-

produced evidence, and (3) the motion in limine and motion to suppress the revolver the

police found at Ms. Sampson's house.

                                              36
No. 32961-5-111; No. 34159-3-111
State v. Groves; PRP of Groves


       However, in filing these pretrial motions, defense counsel sought the same relief

Mr. Groves now seeks in his SAG and PRP. Mr. Groves cannot argue that defense

counsel performed deficiently for doing what Mr. Groves now seeks to do. It is also

unclear how moving to exclude or suppress unfavorable evidence prejudiced Mr. Groves.

              4.     Ineffective for not bringing Brady claim

       As discussed above, Mr. Groves cannot establish that the State suppressed any

evidence and the record is insufficient to evaluate the question of prejudice. Both are

necessary here.

              5.     Ineffective for failing to secure the appearance of other eyewitnesses

       Mr. Groves argues defense counsel was ineffective for not securing "the fourteen

eyewitnesses ... who describe someone other than Mr. Groves as the suspect." Suppl.

SAG at 12. Mr. Groves later provides a list of 13 people who he contends "were

interviewed on the night of this event, and not one of them [identified] anyone resembling

Mr. Groves." Suppl. SAG at 13-14.

       The individuals Mr. Groves refers to are other tenants in the apartment building.

Two individuals on this list actually testified at trial: Jessica Felke and Melvin Thornton.

The likely reason why only these two testified was because they were the only tenants

who saw the shooting. The rest of the individuals are mentioned in various police reports,



                                             37
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


but these reports indicate they only saw minor portions of the incident and did not see the

actual shooting. Although Mr. Groves makes a general claim that he could have

benefitted from the testimony of these eyewitnesses, he does not point to any specific

information any of them could have supplied at trial that would have helped him.

Without this, this court is unable to determine whether counsel's performance was

deficient or if it prejudiced Mr. Groves.

       F.     FAIL URE TO ENTER FINDINGS AND CONCLUSIONS AFTER CRR 3.6 HEARING


       Mr. Groves contends the trial court's failure to enter findings of fact and

conclusions of law relating to his motion to suppress the revolver requires reversal and

dismissal.

       Under CrR 3.6(b), the trial court is required to enter written findings and

conclusions only if the trial court holds an evidentiary hearing on the CrR 3 .6 motion.

Here, the trial court did not hold an evidentiary hearing. The CrR 3 .6 hearing was limited

to argument and did not involve the admission or consideration of evidence. Because the

trial court did not conduct an evidentiary hearing on Mr. Graves's CrR 3.6 motion, it did

not violate CrR 3.6(b) by not entering written findings of fact and conclusions oflaw.

See State v. Powell, 181 Wn. App. 716, 722-23, 326 P.3d 859 (2014).




                                            38
No. 32961-5-III; No. 34159-3-III
State v. Groves; PRP of Groves


       G.     APPELLATE COSTS


       Because both parties prevailed on major issues, neither party has substantially

prevailed. We therefore decline to award appellate costs under RAP 14.2. McC/arty v.

Totem Elec., 157 Wn.2d 214, 230-31, 137 P.3d 844 (2006).

                                         CONCLUSION

       We affirm Mr. Groves's convictions for first degree assault, drive-by shooting, and

first degree unlawful possession of a firearm. We accept the State's concession that the

trial court erred when it imposed the firearm enhancement to the drive-by shooting

conviction. We reverse Mr. Groves's conviction for felony harassment and remand for

judgment of dismissal with prejudice for the felony harassment count and resentencing

consistent with this opinion.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




                                                 Lawrence-Berrey, A.CJ.

WE CONCUR:



Kift/                                       39
                                                 Pennell, J.
