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

Respondent,

v. JOHN WARREN EPPS, JR.,

Appellant. ) ) ) ) ) ) ) ) ) No. 36705

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UNPUBLISHED OPINION

P ENNELL , C. J.

— John Epps Jr. appeals his c onviction for second degree unlawful possession of a firearm. He argues the firearm was seized as a result of an invalid warrant and he was deprived of his constitutional right to conflict

- free c ounsel. We disagree and affirm. FILED JULY 9, 2020 In the Office of the Clerk of Court WA State Court of Appeals Division IIINo. 36705

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State v. Epps

2 FACTS
In June 2017, a protect ion order was issued against John Epps. As a result of the order , Mr. Epps was required to surrender firearms or concealed pistol licenses in his possession

. Mr. Epps surrendered his concealed pistol license, but he did not turn over any firearms. H e inste ad completed a d eclaration of n on s urrender stating he no longer had any guns in his possession

. Law enforcement came to doubt Mr. Epps’s denial of ongoing gun possession

. Mr. Epps spoke with a law enforcement officer when he surrendered his concealed pisto l license. During that con versation, Mr. Epps admitted he “still had firearms in a , ‘safe ’ place because he lived in the woods.” Clerk’s Papers ( CP ) at 5 4. Mr. Epps also admitted he “had firearms in pawn.” Id. Additional investigation revealed Mr. Epps had been holding a silver and black rifle when he was served with the original protection order. Officers review ed local pawn records that indicated Mr. Epps had pawned 13 different guns between October 6, 2014 , and June 24, 2017. Law enforcement accounted fo r the whereabouts of some of the 13
guns , but not all of them. A search warrant was obtained for Mr. Epps’s property based on the foregoing information

. During execution, o fficers found a shotgun, a .22

- caliber rifle, and severalNo. 36705

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State v. Epps

3 boxes of ammunition. The S tate charged Mr. Epps with two counts of second degree

un lawful possession of a firearm. Prior to trial, Mr. Epps filed a motion to suppress evidence. He argue d the search warrant affidavit did not establish probable cause. T he tri al court denied the motio n . Mr. Epps’s c ase proceeded to trial. A jury convicted him of possessing the shotgun, but acquitt ed him of possessing the rifle. After the jury’s verdict, the State sought to have Mr. Epps immediately r emanded into custody

. In arguing for detention, the State referenced an e

- mail it had received from defense counsel indicating Mr. Epps may have attempt ed through a third party to tamper with a witness in a separate case. De fense counsel opposed detention , arguing the information referenced by the State was stale. The trial court remanded Mr. Epps into custody. It subsequently imposed a sentence of six months’ imprisonment

. Mr. Epps appeals

. ANALYSIS The first issue raised by Mr. Epps is the validity of the search warrant. All warrants
must be supported by probable cause. U.S. C ONST
. a mend. IV. In this context, probable cause requires a reasonable belief

— greater than mere suspicion

— that evidence of a crimeNo. 36705

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State v. Epps

4 will be found in the place to be searched. State v. Neth , 165 Wn.2d 177, 18 2

- 8 3, 196 P.3d 658 (2008)

. M r. Epps claims the warrant lacked probable cause because there was no evidence of ongoing firearms p ossession or a nexus between firearms and his residence

. According to Mr. Epps, he merely admitted his firearms were in pawn shops or a safe place. He claim s his admission was insufficie nt to permit an inference of on going personal possession, let alone on going possession at his residence, as opposed to some other safe location. Mr. Epps’ s arguments fail because they do not accurately reflect the record.
Acco rding to the search warrant affidavit, Mr. Epps did not merely tell law enforcement his firearms were in a “‘ safe ’ place.” CP at 54. Nor did he only state the firearms were “in a ‘ safe ’ place because he lived in the woods.” Id

. Instead, Mr. Epps admitted h e “ still had firearms in a ‘safe ’ place because he lived in the woods.” Id

. (emphasis added)

. That
statement indicated o n going possession . Mr. Epps was known to have possess ed fi rearms at his property prior to issuance of t he protection order . H is statemen t , coupled with the failure to surrender any firearms, permitted a reasonable inference that Mr. Epps continued t o possess firearms at his property. See State v. Lyons , 174 Wn.2d 354, 363, 275 P.3d 314 (2012). The search warrant was valid.No. 36705

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State v. Epps

5 In addition to c hallenging the search warrant , Mr. Epps argues he was denied his right to constitutionally effective counsel because his attorney breached a duty of loyalty by disclosing damaging information to the prosecution. In re Pers. Restraint of Gomez , 180 Wn.2d 33 7, 348 , 325 P.3d 142 (2014) ( “ [T]he right to effective assistance of counsel includes the right to conflict

- free counsel

. ”)

. The record fails to support Mr. Epps’s claim

. T he messages defense co unsel shared with the State were not material to Mr. Epps’s fi rearms case . At the time they were mentioned in court, neither Mr. Epps nor his attorney voiced an objection to the disclosure

. W e have no information about how or why the messages were disclosed. S peculating that counsel violated the rul es of professional conduct and their constitutional duties to Mr. Epps by disclosing the messages to the State would b e contrary to the “strong presumption” that counsel’s representation was effective

. State v. McFarland , 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Mr. Epps h as not establish ed a basis for relief. See id

. (“ The burden is on a defendant alleging ineffective assistance of counsel to show deficient representation based on the record esta blished in the [trial court] proceedings. ”). His ineffective assista nce of co unsel challenge fails. CONCLUSION The judgment of conviction is affirmed

.No. 36705

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State v. Epps

6 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.

_________________________________ Pennell, C.J. WE CONCUR:

______________________________ Korsmo, J.

______________________________ Fearing, J.