    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                        No. 72221-2-1
                     Respondent,
                                                        DIVISION ONE
              v.
                                                        PUBLISHED OPINION
LAVELLE XAVIER MITCHELL,

                     Appellant.                         FILED: November 2, 2015


      Appelwick, J. — Mitchell was convicted of unlawful possession of a firearm in the

first degree. The firearms were discovered when a fare enforcement officer stopped him
to check proof of fare payment as he exited a Metro bus. Mitchell argues he was
unlawfully detained and the trial court erred by not suppressing evidence of the firearms.

We affirm.

                                         FACTS

      On March 2, 2012, fare enforcement officer (FEO) Christopher Johnson was

checking passengers' proof of payment on King County Metro Transit (Metro) RapidRide
buses.1 Lavelle Mitchell and several other passengers exited a RapidRide bus at Pacific


       1 At the time, FEO Johnson was a security officer employed on a contract with
Metro. FEOs are not police officers. Their role is to ensure individuals riding on public
transportation have paid the fare. This task is particularly important with the RapidRide
buses, which allow travelers to prepay their fare and enter through the bus's rear door
without showing proof of payment to the driver.
No. 72221-2-1/2




Highway South near 240th Street. FEO Johnson was waiting at the bus stop, by the bus's

rear door. As Mitchell and the other passengers exited from the rear of the bus, FEO

Johnson asked each of them to display proof of fare payment.

       Mitchell was unable to provide proof of his fare payment. He told FEO Johnson

that he had paid the fare with cash and received a transfer, but he gave his transfer to

another passenger as he departed the bus.         FEO Johnson responded that proof of

payment is nontransferable.

       At that point, FEO Johnson asked for Mitchell's identification. Mitchell did not have

his identification with him. He verbally provided FEO Johnson with his name, date of

birth, and address instead.     FEO Johnson then radioed for assistance in verifying

Mitchell's identity. King CountySherriff Deputy George Drazich, who was already nearby,

was dispatched to assist FEO Johnson. He arrived in a matter of minutes. When Deputy

Drazich ran Mitchell's information, he discovered that Mitchell had an outstanding warrant

for his arrest.


       Deputy Drazich then placed Mitchell under arrest and handcuffed him. Before

searching Mitchell incident to arrest, Deputy Drazich asked Mitchell if he had any

weapons. Mitchell revealed that he was carrying two guns in his jacket. Deputy Drazich

searched Mitchell and recovered two loaded revolvers.

       Mitchell had been previously convicted as a juvenile of a serious offense. As a

result, he was charged with unlawful possession of a firearm in the first degree.

        Before trial, Mitchell moved to suppress the evidence obtained through the search

incident to arrest, arguing that the original detention was unlawful. The trial court denied

this motion.
No. 72221-2-1/3




        At trial, Mitchell asserted the affirmative defense that at the time of his prior

conviction he had not received statutory notice that it was illegal for him to possess a

firearm. Mitchell was convicted as charged. He appeals.

                                       DISCUSSION


   I.   Authority to Stop

        Mitchell argues that the trial court erred in denying his motion to suppress, because

FEO Johnson was not authorized to stop him. When reviewing a motion to suppress, we

evaluate findings of fact under the substantial evidence standard. State v. Lew. 156

Wn.2d 709, 733, 132 P.3d 1076 (2006). Conclusions of law are reviewed de novo. Id,

We may affirm the trial court for any reason supported by the record and the law. State

v. Kellev. 64 Wn. App. 755, 764, 828 P.2d 1106 (1992).

        Mitchell's argument requires us to decide whether FEO Johnson was statutorily

authorized to request proof of payment from passengers disembarking the bus. Chapter

35.58 RCW defines the scope of authority of FEOs for metropolitan municipal

corporations, including Metro.2 First, RCW 35.58.580 sets out certain responsibilities of

persons traveling on public transportation. They must pay the established fees and

produce proof of fare payment when asked by someone tasked with monitoring fare

       2 In the court below, the State asserted that chapter 81.112 RCW authorized FEO
Johnson to ask Mitchell for proof of fare payment. The trial court accepted the State's
argument and concluded that FEO Johnson had authority to stop and request proof of
payment under Title 81 and chapter 7.80 RCW. As the State now concedes, chapter
81.112 RCW does not apply to Metro—it explicitly governs regional transit authorities, not
metropolitan municipal corporations. RCW 81.112.020. But, chapter 35.58 RCW mirrors
chapter 81.112 RCW—RCW 35.58.585 gives Metro FEOs the same powers that RCW
81.112.210 gives Sound Transit FEOs. Therefore, we may affirm the trial court on this
basis if we conclude chapter 35.58 RCW provided FEO Johnson the authority to stop
Mitchell. See Kellev, 64 Wn. App. at 764 (noting that the trial court can be affirmed on
any basis supported by the record and the law).
No. 72221-2-1/4




payment. RCW 35.58.580(1). Failing to pay the required fare or produce proof of

payment when asked is a civil infraction. RCW 35.58.580(2)(a)-(b). Additionally, RCW

35.58.585(1) empowers metropolitan municipal corporations to designate individuals to

monitor fare payment. These persons have all the powers granted to enforcement

officers under RCW 7.80.050 and 7.80.060. RCW 35.58.585(2)(b). This means an FEO

can issue a notice of civil infraction when the infraction occurs in the officer's presence,

request identification, and detain a person for a period of time reasonably necessary to

identify the person. RCW 7.80.050-.060. RCW 35.58.585(2)(b) also specifically grants

FEOs the additional authority to:

              (i) Request proof of payment from passengers;
             (ii) Request personal identification from a passenger who does not
       produce proof of payment when requested;
             (iii) Issue a citation conforming to the requirements established in
       RCW 7.80.070; and
              (iv) Request that a passenger leave the bus or other mode of public
       transportation when the passenger has not produced proof of payment after
       being asked to do so by a person designated to monitor fare payment.
       In challenging the legality of the stop, Mitchell does not dispute that FEOs have

the authority to request proof of payment from passengers. Rather, he construes the

word "passenger" in RCW 35.58.585 very narrowly. He argues that the word "passenger"

includes only those persons physically present on a mode of public transportation. Under

this theory, an FEO may request proofof payment from someone currently traveling on a

bus, because that traveler's freedom of movement is already restricted by his or her

presence on a moving vehicle. He argues that once the person disembarks the bus,

additional authority is needed to request proof of payment, because to do so an FEO

must first stop the person.
No. 72221-2-1/5




       We disagree with Mitchell's reading of RCW 35.58.585(2)(b)(i). Here, there is no

question Mitchell was a passenger. FEO Johnson witnessed Mitchell disembarking the

bus. He asked Mitchell and the other departing passengers for their proof of payment as

they stepped off the bus. By using the bus, as a passenger, Mitchell had already incurred

the obligation to display proof of payment when asked. See RCW 35.58.580(1), .020(16)

(defining "proof of payment" as "evidence of a fare prepayment authorized by a

metropolitan municipal corporation or a city-owned transit system for the use of buses or

other modes of transportation."). Under these facts, FEO Johnson acted within the scope

of his statutory authority by requesting proof of payment from Mitchell.        Additional

authority to detain was unnecessary.

       And, when FEO Johnson asked Mitchell to show his proof of payment, Mitchell

voluntarily responded that he did not still have his transfer. In other words, he failed to

show proof of payment—a civil infraction under RCW 35.58.580(2)(b). This triggered

RCW 35.58.585(2)(b)(ii), which authorized         FEO Johnson to request personal

identification from Mitchell. He did so, and Mitchell was unable to provide government

issued identification. Mitchell's failure to provide identification triggered RCW 7.80.060.

Under this provision, FEO Johnson had the authority to detain Mitchell for the time

reasonably necessary to identify him.      RCW 7.80.060.      Accordingly, FEO Johnson

radioed for assistance and, within minutes, Deputy Drazich arrived and confirmed

Mitchell's identity. At each step of this encounter, FEO Johnson acted within the scope

of his statutory authority.

       Despite this clear statutory authority, Mitchell contends that FEO Johnson

unlawfully detained him by asking him to show proof of payment. He argues that FEO
No. 72221-2-1/6




Johnson had no reason to believe Mitchell had committed an infraction until after he


requested proof of payment, so the detention was unlawful. Mitchell relies on State v.

Duncan, 146 Wn.2d 166, 43 P.3d 513 (2002) for this proposition, but he misreads that

case. Duncan recognized that, when investigating a civil infraction, an officer does not

need a reasonable articulable suspicion of criminal activity to detain someone. See 146

Wn.2d at 179 (distinguishing stops for criminal activity from stops for civil infractions).

Instead, the prevailing consideration is whether the officer acted within the scope of his

statutory authority. See id. The sole statutory authority there was RCW 7.80.050, which

permits an enforcement officer to issue a notice of civil infraction when the infraction

occurs in the officer's presence or the officer has reasonable cause to believe a civil

infraction was committed. Id. at 178. But, RCW 35.58.585 explicitly gives FEOs powers

above and beyond those granted to officers under RCW 7.80.050—including the power

to request proof of payment.        RCW 35.58.585(2)(b).     Considering FEO Johnson's

statutory authority under RCW 35.58.585(2)(b), if requesting proof of payment constitutes

a detention, it is a lawful detention.

       Mitchell does not challenge the constitutionality of chapter 35.58 RCW.3 It is

sufficient that the stop and detention of Mitchell was statutorily authorized. We hold that

the trial court did not err in refusing to suppress the evidence obtained as a result of the

subsequent search incident to arrest.




       3 Mitchell challenged the constitutionality of the mirrored chapter 82.112 RCW in
the court below. However, he has not raised that argument on appeal.
No. 72221-2-1/7




   II. Ineffective Assistance of Counsel


       Mitchell also argues that he received ineffective assistance of counsel.

Specifically, he claims that he never received oral notice that he had lost the right to own

or possess a firearm and that the transcript from his prior offense proceedings shows this.

He contends that his trial attorney should have investigated that transcript to corroborate

his testimony.

       Lack of notice of the firearm prohibition is an affirmative defense to unlawful

possession of a firearm. State v. Breitunq, 173 Wn.2d 393, 403, 267 P.3d 1012 (2011).

The defendant has the burden of proving this defense by a preponderance of the

evidence. Id. To succeed, the defendant must show that when he was convicted of the

prior offense, he did not receive either oral or written notice that it was illegal for him to

own a firearm. Id; see also RCW 9.41.047(1 )(a) (requiring the convicting court to notify

a person orally and in writing when a conviction makes him or her ineligible to possess a

firearm).

       We review ineffective assistance of counsel challenges de novo.               State v.

Sutherbv. 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To succeed, the defendant must

show both that counsel's performance was deficient and that counsel's deficient

performance prejudiced the defendant. Strickland v. Washington. 466 U.S. 668,687,104

S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

       The record below may well show that trial counsel did not investigate the transcript

of Mitchell's prior sentencing hearing. But, whether the failure to do so was ineffective

turns on whether the transcript would have shown what Mitchell claims. That transcript

is not in the record on appeal. Nor is there evidence that it was shown to the sentencing
No. 72221-2-1/8




court. Therefore, we cannot conclude on this record that counsel was deficient or that

Mitchell was prejudiced. 4 See State v. Garcia. 45 Wn. App. 132, 140, 724 P.2d 412

(1986) ("A party seeking review has the burden of perfecting the record so that the

appellate court has before it all the evidence relevant to the issue.").

   III. Lack of Notice Affirmative Defense

       We review affirmative defenses for sufficiency of the evidence. State v. Lively, 130

Wn.2d 1,17, 921 P.2d 1035 (1996). This analysis asks whether, viewing the evidence in

the light most favorable to the State, a rational trier of fact could have found that the

defendant failed to prove the defense by a preponderance of the evidence. Id.

       Even without corroborating evidence, Mitchell claims no reasonable juror could

have concluded that he had both written and oral notice of the firearm prohibition. Mitchell

asserts that "there is simply no evidence in the record" that the convicting court notified

him that he was ineligible to possess a firearm. But, the State showed that Mitchell

received written notice. It introduced Mitchell's statement on plea of guilty, which the trial

court admitted into evidence.5 This document was signed by Mitchell and acknowledged

the consequences of a guilty plea—including that he would lose the right to own or

possess firearms. Mitchell's statement on plea of guilty, in addition to providing that

Mitchell was ineligible to possess firearms, contained a bracketed statement in capital


       4 Additionally, though Mitchell only asserts that his trial attorney should have
discovered the sentencing court transcript, the convicting court transcript would have also
been necessary to corroborate his testimony that he never received oral notice. RCW
9.41.047(1 )(a) (providing that the convicting court has the responsibility of informing an
individual of the firearm prohibition).
       5 The name on both the statement on plea of guilty and the disposition order is
Lavelle Brown. Mitchell testified that at that time, his last name was Brown. He confirmed
that he signed both documents.


                                                  8
No. 72221-2-1/9




letters: "[JUDGE MUST READ THE FOLLOWING TO OFFENDER]." The trial court also

admitted Mitchell's disposition order into evidence.    This document similarly notified

Mitchell that he could not own, use, or possess a firearm. It was signed by the judge,

Mitchell, and Mitchell's attorney.

       But, Mitchell points out that these exhibits do not establish that he was actually

given oral notice. He claims the burden rested with the State to affirmatively establish

evidence of oral notice. Mitchell's argument rests on an inaccurate reading of State v.

Minor, 162 Wn.2d 796, 174 P.3d 1162 (2008) and Breitung, 173 Wn.2d 393. In both

cases, the record was silent on the question of oral notice, so the court assumed no oral

notice was given. Minor, 162 Wn.2d at 800; Breitung, 173 Wn.2d at 403. But, neither

Minor nor Breitung shifted the burden of establishing oral notice to the State. See Minor.

162 Wn.2d 800-04 (no discussion of the burden of proof); Breitung, 173 Wn.2d at 403

("Lack of notice under RCW 9.41.047(1) is an affirmative defense, which Breitung must

establish by a preponderance of the evidence.").

       Here, the only evidence to support his claim that he was not given oral notice he

could not possess firearms came from Mitchell himself. He testified that he did not

remember receiving oral notice. The State cross-examined him about the gaps in his

memory regarding the statement on plea of guilty. The jury was free to make its own

judgment as to whether Mitchell's statements were credible. State v. Camarillo, 115

Wn.2d 60, 71, 794 P.2d 850 (1990) (noting that credibility determinations are for he trier

of fact). Construing this evidence in the light most favorable to the State, the jury could

have disbelieved Mitchell.     No additional evidence from the State would have been

necessary to conclude that Mitchell failed to prove the affirmative defense by a
No. 72221-2-1/10




preponderance of the evidence. We reject Mitchell's challenge to the sufficiency of the

evidence on the affirmative defense.


      We affirm.




WE CONCUR:




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