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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

In the Matter of the Personal Restraint ) No. 81122-3-I

of )

)

ROBERT NICHOLAS POUNDS, ) UNPUBLISHED OPINION

 )

 Petitioner. )

BOWMAN, J. — Robert Nicholas Pounds seeks relief through this personal 

restraint petition (PRP) from his convictions of one count of firearm theft and one 

count of unlawful firearm possession. He claims he suffered prejudice when the 

trial court erroneously denied his pretrial suppression motion and committed 

several errors during the bifurcated jury trial. In the alternative, he contends his 

trial and appellate attorneys provided ineffective assistance of counsel. We 

disagree and deny the petition.

FACTS

On June 5, 2017 at 1:58 p.m., Huong Vuong called 911 to report a 

burglary at her neighbor William Hansen’s house. Police responded within fifteen

minutes and questioned the two people they found in the home, Pounds and

Kimberly Ausbun. Ausbun told officers she knew Hansen and had permission to 

be in his home. Pounds told officers he was only there to “work on Kimberly’s 

car.” Hansen arrived shortly after police and confirmed Ausbun had permission 

to be there. He also told them he did not believe any crime had been committed
No. 81122-3-I/2

2

so the officers left the scene. Pounds and Ausbun also left, driving a red Ford 

minivan. Twenty minutes later, Hansen called 911 to report his gun safe had 

been broken into and several of his guns were missing. 

About two hours later, police responded to the scene of an abandoned 

black Toyota Celica in a driveway a few miles away from Hansen’s home. 

Witnesses told police that a woman recently left it there. When police searched 

the car, they found three handguns, including a Colt .22 revolver registered to 

Hansen. Vuong identified the Celica as the car she saw Ausbun “come from” 

when it was parked at Hansen’s house a few days before the robbery. Hansen

eventually identified all three of the revolvers found in the Celica as his property.

A few days later, Detective Benjamin Wheeler began investigating the gun

theft. The detective knew both Pounds and Ausbun from prior police contacts. 

During his investigation, Detective Wheeler spoke with Vuong. She described 

seeing Pounds and Ausbun acting suspiciously at Hansen’s house while Hansen 

was gone. She told the detective she called 911 after she watched Pounds carry 

a “cumbersome load” to the red minivan. Pounds put “a number of long items” in

the van that appeared to be “three to four feet long, . . . wrapped in a blanket.” 

Pounds and Ausbun then left the property together in the red minivan. Detective 

Wheeler also spoke with Hansen, who confirmed no one had permission to take 

his guns. Hansen’s descriptions of the stolen guns and rifles matched the “size 

and length” of the items Vuong saw Pounds carrying from Hansen’s house to the 

minivan.
No. 81122-3-I/3

3

On June 13, 2017, Detective Wheeler and Detective Sergeant Scott Dery 

went looking for Pounds so they could arrest him for gun theft, unlawful 

possession of a firearm,

1 and possibly burglary. They found the red minivan 

parked near a local business but before they could detain him, Pounds drove

away. After a short distance, Pounds turned around and drove back toward the 

officers, who activated their emergency lights and “blocked him” with their 

unmarked patrol car. They arrested Pounds, placed him in handcuffs, and 

searched him incident to arrest. Officers recovered a .22 caliber “rimfire round”

in Pounds’ pants pocket. Detective Wheeler saw Ausbun walking nearby during

Pounds’ arrest.

Police later obtained a search warrant for the minivan and discovered a 

“military style” ammunition box, gun cleaning kits, and a yellow reflective vest in 

the van. Officers saw a handgun sitting on top of the vest and found two loaded

handgun magazines inside a pocket. They found Pounds’ identification card in 

the other vest pocket. Hansen later identified as his property the ammunition 

box, cleaning kits, handgun, and two magazines that officers found in the 

minivan. 

The State charged Pounds with one count of first degree unlawful 

possession of a firearm and one count of theft of a firearm. A jury convicted 

Pounds of both counts in a bifurcated trial.2 On direct appeal, Pounds’ appellate 

counsel challenged only the sufficiency of the evidence to support the 

 

1 Detective Wheeler confirmed Pounds was a felon not allowed to possess firearms. 

2

In phase I, the jury issued a verdict on count 2, theft of a firearm. In phase II, the jury 

issued its verdict on count 1, unlawful possession of a firearm.
No. 81122-3-I/4

4

convictions. In an unpublished decision, we affirmed Pounds’ convictions.3 

Pounds timely filed this PRP.

ANALYSIS

Relief through a PRP is extraordinary. In re Pers. Restraint of Coats, 173 

Wn.2d 123, 132, 267 P.3d 324 (2011). To obtain relief, a petitioner must show 

(1) that he was actually and substantially prejudiced by a violation of 

constitutional rights or (2) that his trial suffered from a nonconstitutional defect 

that inherently led to a complete miscarriage of justice. Coats, 173 Wn.2d at 

132; In re Pers. Restraint Petition of Brett, 142 Wn.2d 868, 874, 16 P.3d 601 

(2001). The petitioner may not rely on bald assertions or conclusory allegations. 

In re Pers. Restraint Petition of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). 

Rather, he must show by a preponderance of the evidence that the error caused 

him actual prejudice. In re Pers. Restraint Petition of Cook, 114 Wn.2d 802, 814, 

792 P.2d 506 (1990). 

Pounds argues the trial court erred by denying his motion to suppress 

evidence seized as a result of his unlawful arrest, admitting recordings of jail calls 

as evidence, refusing to grant his motion for a mistrial, and refusing to 

adequately clarify a jury question. Pounds also asserts ineffective assistance of 

both trial and appellate counsel. We address each claim of error in turn.

 

3 State v. Pounds, No. 77863-3-I (Wash. Ct. App. June 10, 2019) (unpublished), 

https://www.courts.wa.gov/opinions/pdf/778633.pdf, review denied, 194 Wn.2d 1003, 451 P.3d 

325 (Nov. 6, 2019).
No. 81122-3-I/5

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Probable Cause To Arrest

Pounds argues the trial court erred when it refused to suppress evidence 

seized as a result of his unlawful arrest. He contends Detective Wheeler lacked

probable cause to arrest him without a warrant. We disagree.

We review the trial court’s conclusions of law on a motion to suppress de 

novo and the findings of fact used to support those conclusions for substantial 

evidence. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).

Substantial evidence means enough evidence to persuade a fair-minded rational 

person of the truth of the finding. State v. Allen, 138 Wn. App. 463, 468, 157 

P.3d 893 (2007). We treat unchallenged findings as verities on appeal. Allen, 

138 Wn. App. at 468.4 

Probable cause must support a physical arrest. Dunaway v. New York,

442 U.S. 200, 213, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979). Probable cause 

exists “when the arresting officer is aware of facts or circumstances” sufficient to 

cause a reasonable officer to believe a person has committed a crime. State v. 

Gaddy, 152 Wn.2d 64, 70, 93 P.3d 872 (2004). We use an objective standard to 

determine whether probable cause supports an arrest. Gaddy, 152 Wn.2d at 70

(citing State v. Graham, 130 Wn. 2d 711, 724, 927 P.2d 227 (1996)). It is not a 

technical inquiry. State v. Perez, 5 Wn. App. 2d 867, 872, 428 P.3d 1251 (2018). 

Instead, it rests on “ ‘the totality of facts and circumstances within the officer’s 

knowledge at the time of the arrest.’ ” Perez, 5 Wn. App. 2d at 872 (quoting 

 

4 Pounds challenges several of the trial court’s findings of fact. We note that the court 

identified the findings as “undisputed facts” below. In any event, we do not reach the issue as 

none of the challenged findings are relevant to whether Detective Wheeler had probable cause to 

arrest Pounds.
No. 81122-3-I/6

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State v. Fricks, 91 Wn.2d 391, 398, 588 P.2d 1328 (1979)); see also Wong Sun 

v. United States, 371 U.S. 471, 481-82, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). 

The burden is on the State to establish probable cause for an arrest. State v. 

Grande, 164 Wn.2d 135, 141, 187 P.3d 248 (2008). 

Pounds argues Detective Wheeler lacked probable cause to arrest him

because no witness observed him with the stolen guns, Pounds had no direct 

connection with Hansen, and no evidence directly tied Pounds to the Celica 

where police found the stolen guns.5 But the evidence established that when he 

arrested Pounds, Detective Wheeler knew that Pounds was inside Hansen’s 

home without permission, that he left with Ausbun carrying items consistent with 

the size and shape of Hansen’s missing firearms, and that shortly after the theft,

police found some of Hansen’s stolen guns inside the Celica—a car associated 

with Ausbun—abandoned near Hansen’s house.

 These facts are sufficient for a 

reasonable officer to believe Pounds took Hansen’s guns.6 The trial court did not 

err in denying Pounds’ motion to suppress.

Jail Calls

Pounds claims the trial court erred by refusing to suppress recordings of 

jail calls that the State did not provide in discovery and by refusing to declare a 

 

5 Pounds also argues that his arrest was unlawful because the traffic stop was a pretext 

to investigate the firearm theft. The record does not support this claim. Detective Wheeler 

testified that he stopped Pounds not for any claimed traffic infraction but to arrest him for gun 

theft, unlawful possession of a firearm, and possibly burglary. 

6 Pounds also suggests that Detective Wheeler was subjectively motivated to target 

Pounds because of prior contacts with him. But we determine probable cause by objective facts, 

not the subjective opinion of an officer. State v. Huff, 64 Wn. App. 641, 645, 826 P.2d 698 

(1992).
No. 81122-3-I/7

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mistrial after the prosecutor called the recordings “jail calls” during closing 

argument.

A. Discovery Violation

Pounds claims the jail calls “were late discovery” that the court should 

have excluded and admission of the calls prejudiced him. We disagree.

The purpose of discovery rules is to protect against surprise that results in 

prejudice to the opposing party. State v. Bradfield, 29 Wn. App. 679, 682, 630 

P.2d 494, review denied, 96 Wn.2d 1018 (1981). When a party violates a 

discovery rule or discovery order, the trial court “may order such party to permit 

the discovery of material and information not previously disclosed, grant a 

continuance, dismiss the action or enter such other order as it deems just under 

the circumstances.” CrR 4.7(h)(7)(i). Failure to produce evidence or identify 

witnesses timely may be “appropriately remedied by continuing trial to give the 

nonviolating party time to interview a new witness or prepare to address new 

evidence.” State v. Hutchinson, 135 Wn.2d 863, 881, 959 P.2d 1061 (1998), 

abrogated on other grounds by State v. Jackson, 195 Wn.2d 841, 467 P.3d 97 

(2020). Exclusion or suppression of evidence or dismissal for a discovery 

violation are extraordinary remedies that the court should apply narrowly. 

Hutchinson, 135 Wn.2d at 882; State v. Smith, 67 Wn. App. 847, 852, 841 P.2d 

65 (1992). 

A trial court has broad discretion to determine the proper remedy for a 

discovery violation. Bradfield, 29 Wn. App. at 682. We review the court’s rulings

for an abuse of that discretion. State v. Barry, 184 Wn. App. 790, 797, 339 P.3d 
No. 81122-3-I/8

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200 (2014). The trial court abuses its discretion when it relies on untenable 

grounds or reasons or if its decision is manifestly unreasonable. Barry, 184 Wn. 

App. at 797.

Several months before trial, the State disclosed to Pounds that it had

recordings of jail calls between Pounds and Ausbun. Pounds’ attorney told the 

prosecutor not to provide them unless the State planned to use them at trial. 

During motions in limine, Pounds moved to exclude any nondisclosed evidence. 

The prosecutor told the court, “[E]very piece of evidence that I would seek to 

offer has already been provided to [the defense] in the process of discovery.” 

Based on that representation, the court granted Pounds’ motion. 

After the court addressed the parties’ written motions in limine, defense 

counsel said she would like to “address the Court on one more issue.” Counsel 

asked the court to exclude Detective Wheeler’s testimony that he knew Pounds 

and Ausbun as “boyfriend and girlfriend.” She argued that the testimony was 

hearsay and unduly prejudicial to Pounds because it suggested the detective 

investigated Pounds in the past. 

After consulting with the detective, the prosecutor conceded that the 

testimony was hearsay and told the court she would instead offer “four 

segments” of the jail calls between Pounds and Ausbun to establish their

relationship. Pounds’ attorney objected, arguing that she made a strategic 

decision to exclude Detective Wheeler’s testimony about Pounds and Ausbun’s 

relationship because the State said it would not offer the recordings. The trial 

court ruled that the State could use the recordings and offered to continue the 
No. 81122-3-I/9

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trial to allow Pounds’ attorney time to assess the evidence. Pounds declined. 

The parties agreed to redact the recordings to remove direct evidence that

Pounds was in custody during the calls.

Pounds fails to show that the State violated the rules of discovery or a 

court order. The State disclosed the evidence to Pounds several months before 

trial and offered to provide copies of the recordings even though the prosecutor

had no plans at that time to use them at trial. Pounds declined. Even so, a

continuance would have cured any prejudice to Pounds from the late disclosure. 

Pounds declined that relief as well. The trial court did not abuse its discretion in 

allowing the State to admit the recordings.

B. Mistrial

Pounds next argues that the court erred in refusing to grant a mistrial

when the prosecutor identified the recordings as “jail calls” in closing argument. 

Again, we disagree.

We review a trial court’s decision to deny a motion for mistrial for an abuse 

of discretion. State v. Jackson, 150 Wn.2d 251, 276, 76 P.3d 217 (2003); State 

v. Allen, 159 Wn.2d 1, 10, 147 P.3d 581 (2006). The court should grant a mistrial 

“only when the defendant has been so prejudiced that nothing short of a new trial 

can insure that the defendant will be tried fairly.” State v. Mak, 105 Wn.2d 692, 

701, 718 P.2d 407 (1986). 

In determining whether a trial irregularity is so prejudicial as to require a 

mistrial, we look to (1) the seriousness of the irregularity, (2) whether the 

statement in question was cumulative of other admissible evidence, and (3) 
No. 81122-3-I/10

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whether an instruction to disregard the remark could cure any irregularity. See

State v. Weber, 99 Wn.2d 158, 165-66, 659 P.2d 1102 (1983). We will reverse 

the trial court only if there is a substantial likelihood the irregularity affected the 

jury’s verdict. State v. Rodriguez, 146 Wn.2d 260, 269-70, 45 P.3d 541 (2002).

Here, Pounds’ only argument to support his motion for a mistrial was that

the prosecutor referred to the telephone conversations between Pounds and 

Ausbun as “jail calls” during the State’s closing argument in phase II of the trial. 

But the prosecutor’s one reference to “jail calls” in the second phase of a weeklong trial was fleeting.

7

 And while the court did not allow direct evidence at trial 

that Pounds was in custody, the recordings themselves suggested that the calls 

took place while Pounds was incarcerated. For example, Ausbun told Pounds in 

one call that she had “put $40 on [his] books yesterday” and promised to “come 

see [him] tomorrow.” Any irregularity was insignificant, cumulative of other 

evidence, and curable by a jury instruction. Pounds did not request a curative 

instruction. The trial court did not err by denying Pounds’ motion for a mistrial.

Jury Question

Pounds claims he did not receive a fair trial because the trial court did not 

adequately clarify confusion raised in a jury question during deliberations. In the 

alternative, he argues his trial counsel was ineffective for not pointing the trial 

court to authority in support of her request that the court give the jury a more 

specific answer.

 

7 Pounds also claims the prosecutor committed misconduct by violating “the parties’ 

agreement not to disclose to the jury that the calls were jail calls.” But even if the inadvertent 

comment amounts to misconduct, Pounds fails to show that it “inherently result[ed] in a complete 

miscarriage of justice.” Cook, 114 Wn.2d at 812.
No. 81122-3-I/11

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A. Supplemental Jury Instruction

Jury instructions must accurately inform the jury of the relevant law. State 

v. Henderson, 192 Wn.2d 508, 512, 430 P.3d 637 (2018). Unless shown 

otherwise, we presume a jury follows the court’s instructions. State v. Swan, 114 

Wn.2d 613, 661-62, 790 P.2d 610 (1990). In response to a jury question after 

deliberations begin, CrR 6.15(f)(1) permits a trial court to provide supplemental 

written instructions on “any point of law.” We review a trial court’s decision 

whether to give a supplemental instruction for abuse of discretion. State v. 

Sublett, 176 Wn.2d 58, 82, 292 P.3d 715 (2012). 

Here, jury instruction 6 told the jury, “A person is guilty of theft of a firearm 

if he or she commits a theft of any firearm.” The “to convict” jury instruction, 

number 7, told the jury that to convict Pounds of “theft of a firearm,” it must find 

that the State proved each of these elements beyond a reasonable doubt:

(1) That between June 5, 2017, and June 13, 2017, the defendant 

wrongfully obtained a .22 caliber revolver belonging to another; 

(2) A .22 caliber revolver is a firearm; 

(3) That the defendant intended to deprive the other person of the 

firearm; and 

(4) That this act occurred in the State of Washington.

And jury instruction 8 told the jury:

To convict the defendant of Theft of a Firearm, one particular act of 

Theft of a Firearm must be proved beyond a reasonable doubt, and 

you must unanimously agree as to which act has been proved. 

You need not unanimously agree that the defendant committed all 

the acts of Theft of a Firearm.

During deliberations, jurors sent the following question to the court:

Instructions 6 & 8 state “theft of any firearm” and “theft of a firearm” 

on multiple occasions. Instruction 7 specifically states “a .22 caliber 

revolver.” 
No. 81122-3-I/12

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Are we ruling only on a .22 caliber revolver (7) or are we ruling on 

any firearm presented in the case (8)?

The court e-mailed the jury question to the parties and asked for their 

input. The State agreed with the court’s proposed response to “re-read your 

instructions.” Defense counsel asked the court to refer the jury back to 

instruction 7, the to-convict instruction, but the court declined.

Pounds relies on several cases to argue that the court’s answer to the 

jurors’ question failed to “clarify the applicable law for the jury,” warranting

reversal.8 Each case is distinguishable. In Gotcher and Davenport, the 

prosecutors misstated the law in closing arguments and it was apparent from the 

juries’ questions that the misstatements created confusion. State v. Gotcher, 52 

Wn. App. 350, 355-56, 759 P.2d 1216 (1988); State v. Davenport, 100 Wn.2d 

757, 759, 765, 675 P.2d 1213 (1984). Even so, the courts did not correct the 

errors in response to the questions. Gotcher, 52 Wn. App. at 356; Davenport

100 Wn.2d at 759. In Campbell, one of the jury instructions contained an 

erroneous statement of law that the court compounded in its answer to a jury 

question. State v. Campbell, 163 Wn. App. 394, 401-02, 260 P.3d 235 (2011), 

rev’d on recons., 172 Wn. App. 1009 (2012). And in Young, the trial court 

refused to clarify the meaning of a technical term and instead referred the jury 

back to the instructions as a whole, even though none of the instructions 

contained any information about the term’s meaning. State v. Young, 48 Wn. 

App. 406, 417, 739 P.2d 1170 (1987). 

 

8 Pounds appears to argue in his PRP that this error affected his phase II conviction for 

count 1, unlawful possession of a firearm. We reject this claim because the court specifically told 

the jury that instructions “6 through 12 of the Phase I instructions do not apply to Count 1.” 
No. 81122-3-I/13

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Pounds does not argue that the jury instructions here were legally flawed

or that the court did not sufficiently explain a technical term. Instead, he argues 

that the court should have directed the jury to the more specific to-convict

instruction to clarify the law rather than the instructions as a whole. But we

presume the jury followed the court’s instruction to consider all of the instructions, 

including the to-convict instruction. While the trial court could have elected to 

answer the jury’s question by referring it to the elements listed in instruction 7, it 

did not have to. See State v. Ng, 110 Wn.2d 32, 41, 750 P.2d 632 (1988); State 

v. Sutton, 18 Wn. App. 2d 38, 45, 489 P.3d 268 (2021).

B. Ineffective Assistance of Trial Counsel

In the alternative, Pounds suggests that his trial attorney performed 

deficiently by not offering the trial court authority, presumably in the form of the 

cases discussed above, that would have compelled the court to give a more 

specific response to the jury inquiry.

To prevail on a claim of ineffective assistance, the defendant must show 

both that his counsel erred and that the error was so significant, in light of the 

entire trial record, it deprived him of a fair trial. Strickland v. Washington, 466 

U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). When a claim of 

ineffective assistance stems from counsel’s failure to request a particular jury 

instruction, the defendant must show he was entitled to the instruction, counsel’s 

performance was deficient in failing to request it, and the failure to request the 

instruction caused prejudice. State v. Thompson, 169 Wn. App. 436, 495, 290 

P.3d 996 (2012).
No. 81122-3-I/14

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Pounds acknowledges that his attorney requested a more specific 

instruction from the court but faults her for not supporting her request with case

law. His claim rests on the incorrect premises that he was entitled to the more 

specific instruction and that cases like Campbell and Davenport would have 

compelled the court to refer the jury to the to-convict instruction. As discussed 

above, those cases do not support that proposition. Pounds fails to show 

ineffective assistance of counsel. 

Ineffective Assistance of Appellate Counsel

Pounds argues that “[i]f this Court finds any of the issues raised by [him] in 

his petition have merit, then appellate counsel was deficient in failing to raise 

[them].” 

A petitioner claiming ineffective assistance of appellate counsel on 

collateral review must show that “the legal issue that appellate counsel failed to 

raise had merit” and that he “was actually prejudiced by appellate counsel’s 

failure to raise the issue.” In re Pers. Restraint Petition of Dalluge, 152 Wn.2d 

772, 777-78, 100 P.3d 279 (2004). “Failure to raise all possible nonfrivolous 

issues on appeal is not ineffective assistance.” In re Pers. Restraint of Lord, 123 

Wn.2d 296, 314, 868 P.2d 835 (1994). Instead, to establish deficient 

performance, the petitioner must show that his appellate counsel inadequately 

raised or failed to raise issues of merit and that the error led to prejudice. In re

Pers. Restraint of Netherton, 177 Wn.2d 798, 801, 306 P.3d 918 (2013). 

Prejudice requires the petitioner to “ ‘show a reasonable probability that, but for 

his counsel’s unreasonable failure to file a merits brief, he would have prevailed 
No. 81122-3-I/15

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on his appeal.’ ” Dalluge, 152 Wn.2d at 7889(quoting Smith v. Robbins, 528 

U.S. 259, 285, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000)). 

Because Pounds does not prevail on any of the issues raised in his PRP, 

he fails to show ineffective assistance of appellate counsel.

We deny his petition.

 

WE CONCUR:

 

9 Emphasis omitted.