FILED

COURT OF APPEALS D1V ]

STATE OF WASHINGTON

2013 APR 29 AM 10: 16

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

J.J.I.,

DOB: 7/11/1995,

D.M.P.,

DOB: 4/10/1995,

Appellants.

DIVISION ONE

No. 69891-5-1

UNPUBLISHED OPINION

FILED: April 29, 2013

Dwyer, J. — Based upon an incident in which J.J.I, and D.M.P., along with

other juveniles, were handling various firearms in a Tacoma alleyway, the trial

courtfound J.J.I, guilty of unlawful possession ofa firearm in the first degree and

found D.M.P. guilty of unlawful possession ofa firearm in the second degree. On

appeal, J.J.I, contends thatthe evidence ofthe firearm that he possessed should

have been excluded because his arrest was unlawful. However, because J.J.I,

did not move to suppress the evidence before trial—and, thus, no record was

developed from which to determine the lawfulness of his arrest—J.J.I, cannot
No. 69891-5-1/2

demonstrate a manifest error reviewable on appeal. Similarly, because J.J.I,

cannot show that he was prejudiced because his trial counsel did not move to

suppress the evidence, J.J.I.'s ineffective assistance of counsel claim fails.

D.M.P. asserts on appeal that a condition of community custody imposed by the

trial court has no rational basis in the record and is unconstitutionally vague.

However, because D.M.P.'s term of community custody has been completed, this

issue is moot. Accordingly, we affirm both J.J.I.'s and D.M.P.'s adjudications of

guilt.

I

On June 25, 2011, T.C. picked up his cousin, D.M.P., from D.M.P.'s home.

T.C. was in possession ofa Glock 9 mm handgun, which he kept in the trunk of

the vehicle that he was driving. D.M.P. was carrying his .357 caliber Ruger

revolver. T.C. and D.M.P. put both guns in the trunk of T.C.'s vehicle and "drove

around town." Theywent to the home ofJ.J.I., who retrieved his .22 caliber

Ruger revolver, and put the three firearms in the trunk ofT.C.'s vehicle. T.C,

D.M.P., and J.J.I, then picked up anotherjuvenile from his home, and the four

continued to drive around Tacoma "to waste time."

T.C. drove to the area of the Tacoma Mall, where the group saw some

other friends, K.L. and Tyreese Woods.1 K.L. and Woods informed the others

that they also had firearms in their possession. The group then decided to drive

to a nearby alleyway "in order to show one another their respective firearms."

1Because Woods was not a juvenile when these eventsoccurred, he isidentified by his

full name herein.

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No. 69891-5-1/3

K.L. and Woods drove a separate vehicle. Upon their arrival, each member of

the group removed his respective firearm from the trunk of the vehicle and

"engaged in a 'show-and-tell.'" Following the "show-and-tell,"T.C, D.M.P., and

J.J.I, again placed their respective firearms in the trunk of T.C.'s vehicle. T.C,

who later accepted a plea agreement and testified against D.M.P. and J.J.I, at

trial, testified that he was certain that D.M.P. and J.J.I, "each handled and had in

[his] possession a firearm."

A few minutes later, Pierce County Deputy Sheriff Jason Mills arrived at

the scene. Deputy Mills was dispatched to the scene following a 911 call

"reporting that severaljuvenile males were in the alley moving firearms from the

trunk of one vehicle to the trunk of another vehicle." Deputy Mills observed the

six young men in and around the vehicles at the listed location. He held the

group at gunpoint while waiting for other officers to arrive. Woods then fled the

scene, though hewas later apprehended.2 Deputy Mills identified and

determined the birthdates of each of the five juveniles.

Additional officers arrived at the scene, and T.C. consented to a search of

his vehicle. The officers recovered the three firearms from the trunk of the

vehicle. Following his arrest, T.C. informed the officers that the Glock 9 mm

handgun belonged to him, that the .357 caliber Ruger revolver belonged to

D.M.P., and that the .22 caliber Rugerrevolver belonged to J.J.I. J.J.I, and

D.M.P. were also arrested.

2After Woods was apprehended by police, he informed theofficers that "he 'rolls' with the

Knoccout Crips." T.C. testified attrial that he had told police that K.L. and Woods were members

of a gang called the "Knockouts."
No. 69891-5-1/4

On June 27, 2011, D.M.P. was charged by information with unlawful

possession of a firearm in the second degree in violation RCW 9.41.040(2)(a)(iii).

The next day, J.J.I, was charged by amended information with unlawful

possession of a firearm in the first degree in violation of RCW 9.41.040(1 )(a).

Following an August 10 trial, the trial court adjudicated both D.M.P. and J.J.I,

guilty as charged. The court sentenced D.M.P. to 16 days detention and 7

months of community custody, imposing various conditions on the term of

community custody. One such condition required that D.M.P. have "[n]o contact

with known gang members" during the period of community custody, which

terminated on March 31, 2012. J.J.I, was sentenced to 30 days of detention and

12 months of community custody.

D.M.P. and J.J.I, filed timely appeals from their adjudications of guilt.

Their cases were thereafter consolidated.

II

J.J.I, contends that the State presented insufficient admissible evidence

demonstrating that he committed the offense of unlawful possession of a firearm

in thefirst degree. He assertsthat his arrest was unlawful because the arresting

officer lacked knowledge ofsufficient facts to support a reasonable belief that

J.J.I, was engaged in criminal activity and, thus, thatthe evidence ofthe firearm

obtained pursuant to the arrest was not properly admissible. J.J.I, raises this

claim of error for the first time on appeal. Because he did not move to suppress

3J.J.I, had previously been adjudicated guilty ofburglary in thesecond degree. See

RCW 9.41.010(16), .040(1)(a).

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No. 69891-5-1/5

the evidence of the firearm in the trial court, no record was developed from which

to determine the lawfulness of J.J.I.'s arrest or to raise a question as to the

admissibility of evidence. Accordingly, J.J.I, cannot show a manifest error

reviewable for the first time on appeal.

"As a general rule, appellate courts will not consider issues raised for the

first time on appeal." State v. McFarland, 127Wn.2d 322, 332-33, 899 P.2d

1251 (1995). However, the court may review a claim of error raised for the first

time on appeal where itconstitutes a "manifest error affecting a constitutional

right." RAP 2.5(a)(3). The error must be both of constitutional magnitude and

"manifest." State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009). '"Manifest

in RAP 2.5(a)(3) requires a showing of actual prejudice.'" O'Hara. 167Wn.2d at

99 (internal quotation marks omitted) (quoting State v. Kirkman, 159 Wn.2d 918,

935, 155 P.3d 125 (2007)): see also McFarland, 127Wn.2d at 333 ("The

defendant must identify a constitutional error and show how, in the context ofthe

trial, the alleged error actually affected the defendant's rights; it is this showing of

actual prejudice that makes the error 'manifest', allowing appellate review."). "'If

the facts necessary to adjudicate the claimed error are not in the record on

appeal, no actual prejudice is shown and the error is not manifest.'" State v.

Fenwick, 164Wn. App. 392, 400, 264 P.3d 284 (2011) (internal quotation marks

omitted) (quoting O'Hara, 167 Wn.2d at 99), review denied, 173 Wn.2d 1021

(2012).

Here, J.J.I, contends that his arrest was unlawful, and, thus, that the

evidence of hisfirearm was improperly admitted at trial. Specifically, J.J.I.

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No. 69891-5-1/6

asserts that Deputy Mills lacked knowledge of sufficient facts to support a

reasonable belief that J.J.I, was engaged in criminal activity based upon the

information provided to police by the "anonymous" 911 caller.4 In support of this

assertion, J.J.I, relies upon our Supreme Court's decision in State v. Lesnick, 84

Wn.2d 940, 530 P.2d 243 (1975), which provides:

"It is difficult to conceive of a tip more 'completely lacking in indicia

of reliability' than one provided by a completely anonymous and

unidentifiable informer, containing no more than a conclusory

assertion that a certain individual is engaged in criminal activity.

While the police may have a dutyto investigate tips which sound

reasonable, absent circumstances suggesting the informant's

reliability, or some collaborative observation which suggests either

the presence of criminal activity or that the informer's information

was obtained in a reliable fashion, a forcible stop based solely upon

such information is not permissible."

Lesnick, 84Wn.2d at 944 (quoting State v. Lesnick, 10Wn. App. 281, 285, 518

P.2d 199 (1973)).

Because he did not move to suppress the evidence before trial, J.J.I, has

the burden to show manifest error on appeal. Fenwick, 164 Wn. App. at 405.

The record indicates that Deputy Mills was dispatched to the scene following a

911 call reporting thatthere were "several individuals neartwo cars with

weapons."5 However, because J.J.I, did not request a suppression hearing

before trial, the record does not contain sufficient information regarding the

4We note thattheonly reference tothe anonymity ofthe 911 caller in the report of

proceedings is within defense counsel's argument. No witness testified that the 911 caller was

"anonymous." Moreover, defense counsel referenced the "anonymous" 911 caller only to argue

thatthe content ofthe call constituted "hearsay within hearsay" and was "entirely prejudicial." 5Deputy Mills began to testify further regarding the report, providing information about

the vehicles reported to be atthe scene, when defense counsel lodged a hearsay objection to the

testimony. The objection was sustained, and, as a result, no further information regarding the

911 call was entered into the record.

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No. 69891-5-1/7

content of the 911 call from which to determine whether, based upon the report,

Deputy Mills had a reasonable belief thatthe juveniles were engaged in criminal

activity. To show actual prejudice, J.J.I, must show thatthe trial court would

likely have granted the motion to suppress had such a motion been made.

McFarland, 127 Wn.2d at 333-34. Because no motion to suppress was made,

the State had no opportunity to fully develop the record in orderto demonstrate

the lawfulness of J.J.I.'s arrest. Fenwick, 164Wn. App. at 405. Accordingly, "the

record does not indicate whether the trial court would have granted the motion."

McFarland, 127 Wn.2d at 334.

"'Where, as here, the claim is brought on direct appeal, the reviewing court

will not consider matters outside the trial record.'"6 Fenwick. 164 Wn. App. at 406

(quoting McFarland, 127 Wn.2d at 335). Because, on this record, J.J.I, cannot

demonstrate actual prejudice, his claim of error regarding the admissibility of the

firearm evidence does not constitute a manifest error. Thus, J.J.I, cannot raise

the suppression issue for the first time on appeal pursuant to RAP 2.5(a)(3).

Accordingly, we evaluate J.J.I.'s contention that insufficient evidence

supports his adjudication of guilt for unlawful possession of a firearm in the first

degree in light of the actual record before us. When reviewing a challenge to the

sufficiency of the evidence, we must determine "whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

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

6"If a defendant wishes to raise issues on appeal that require evidence or facts not in the

existing trial record, the appropriate means of doing so is through a personal restraint petition, which may be filed concurrently with the direct appeal." McFarland, 127 Wn.2d at 335.
No. 69891-5-1/8

doubt." Jackson v. Virginia. 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979). A person "is guilty of the crime of unlawful possession of a firearm in the

first degree, if the person owns, has in his or her possession, or has in his or her

control any firearm after having previously been convicted ... of any serious

offense as defined in [chapter 9.41 RCW]." RCW 9.41.040(1 )(a). The State

presented evidence that J.J.I, had in his possession a .22 caliber Ruger revolver.

Certified copies ofJ.J.I.'s prior adjudication of guilt for burglary in the second

degree were admitted into evidence without objection.7 Based upon the record

before us, we do not conclude that the evidence of the firearm was improperly

admitted. Accordingly, we hold that a rational trier of fact could determine that

J.J.I, committed the offense of unlawful possession of a firearm in the first degree

and, thus, that sufficient evidence supports his adjudication of guilt.

Ill

J.J.I, additionally asserts that he received ineffective assistance ofcounsel

because histrial counsel did not move to suppress the firearm evidence obtained

pursuant to J.J.I.'s arrest. However, the burden is on J.J.I, to demonstrate

deficient representation based upon the record established in the trial court.

McFarland. 127 Wn.2d at 335. J.J.I, must show "that the result of the proceeding

would have been different but for counsel's deficient representation." McFarland.

127Wn.2d at 337. As explained above, J.J.I, has not made a showing of

7A"serious offense" includes "[a]ny crime ofviolence." RCW 9.41.010(16)(a). Thus,

burglary in the second degree constitutes a "serious offense" for purposes of unlawful possession ofafirearm. RCW9.41.010(16)(a), .040(1)(a); seeajso Stete_y^Re!eford, 148 Wn. App. 478,

489, 200 P.3d 729 (2009).

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No. 69891-5-1/9

prejudice, as the record does not demonstrate that the outcome of the

proceeding would have differed had defense counsel moved to suppress the

firearm evidence. Accordingly, because J.J.I, has not shown prejudice, his

ineffective assistance of counsel claim fails. See Strickland v. Washington, 466

U.S. 668, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (holding that an

ineffective assistance of counsel claim may be disposed of based solely upon a

lack of sufficient prejudice).

IV

D.M.P. challenges the trial court's imposition of the community custody

condition requiring that D.M.P. have "[n]o contact with known gang members."

He asserts that the trial court abused its discretion by imposing this condition

without any rational basis in the record for such imposition and that the condition

is impermissibly vague in violation ofdue process. However, because D.M.P. is

no longer subject to the community custody condition imposed by the trial court,

this issue is moot.

"As a general rule, we do not consider questions that are moot." State v.

Hunlev. 175 Wn.2d 901, 907, 287 P.3d 584 (2012). "A case is moot ifa court

can no longer provide effective relief." In re Cross. 99Wn.2d 373, 376-77, 662

P.2d 828 (1983) (concluding that, because the detention thatwas the subject of

the appeal had already ended, the court could not provide the relief sought).

However, even where an issue istechnically moot, we may nevertheless decide

it if it presents a matter of"continuing and substantial public interest." Hunlev.

175Wn.2d at 907. In determining whether a sufficient public interest is involved,

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No. 69891-5-1/10

we consider "(1) the public or private nature of the question presented; (2) the

desirability of an authoritative determination which will provide future guidance to

public officers; and (3) the likelihood that the question will recur." Cross. 99

Wn.2d at 377 (citing Sorenson v. City of Bellingham. 80 Wn.2d 547, 558, 496

P.2d 512 (1972)).

Here, D.M.P. first contends that the trial court erred by imposing the

condition of community custody requiring that he have "[n]o contact with known

gang members" because, he asserts, the condition is not related to the offense

for which he was adjudicated guilty and is unsupported by any rational basis in

the record. "As part of any term of community custody, the court may order an

offender to .. . [c]omply with any crime-related prohibition." RCW

9.94A.703(3)(f). A"crime-related prohibition" is an order ofthe court "prohibiting

conductthat directly relates to the circumstances ofthe crime for which the

offender has been convicted." RCW 9.94A.030(10). D.M.P. asserts that having

contact with "known gang members" is not related to the circumstances

surrounding his adjudication ofguilt for unlawful possession ofa firearm.

However, D.M.P.'s term ofcommunity custody expired on March 31, 2012.

Because the term of community custody imposed by the trial court has ended,

D.M.P. is no longer subjectto the condition from which he seeks relief.

Moreover, RCW 9.94A.703, which provides authority for the trial court to impose

community custody conditions, does not direct the trial court to impose

community custody conditions based upon whether such conditions have

previously been imposed for prior offenses. Thus, the community custody

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No. 69891-5-1/11

condition challenged by D.M.P. would not bind a future sentencing court were

D.M.P. convicted of another offense. Cf. State v. Vike. 125 Wn.2d 407, 409 n.2,

885 P.2d 824 (1994) (determining that sentencing issue was not moot because,

were defendant sentenced for a future crime, the issue of how convictions would

be scored would arise). Accordingly, we determine that this question is moot.

Moreover, D.M.P.'s assertion that the condition lacks a rational basis in the

record is particular to the facts of this case. Thus, because there is little

"likelihood that the question will recur," this question does not present an issue of

continuing and substantial public interest. Cross. 99 Wn.2d at 377.

D.M.P. additionally contends that the community custody condition is

impermissibly vague in violation of due process. "The due process vagueness

doctrine 'serves two important purposes: first, to provide citizens with fair

warning of what conduct they must avoid; and second, to protectthem from

arbitrary, ad hoc, or discriminatory law enforcement.'" State v. Sansone, 127

Wn. App. 630, 638, 111 P.3d 1251 (2005) (quoting State v. Halstien. 122Wn.2d

109, 116-17, 857 P.2d 270 (1993)). A prohibition is unconstitutionally vague if it

"does not define the criminal offense with sufficient definiteness that ordinary

people can understand what conduct is proscribed" or it "does notprovide

ascertainable standards of guilt to protect against arbitrary enforcement." Citv of

Spokane v. Douglass. 115 Wn.2d 171, 178, 795 P.2d 693 (1990). However,

"when a challenged prohibition does not involve First Amendment rights, it is not

properly evaluated for facial vagueness; instead, it must be evaluated as

applied." Sansone, 127 Wn. App. at 638. Because D.M.P. does not challenge

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No. 69891-5-1/12

the community custody condition on First Amendment grounds, D.M.P. can

challenge the condition only as applied to his conduct. See Sansone, 127 Wn.

App. at 638.

Because D.M.P.'s vagueness challenge is necessarily an as-applied

challenge, the fact that D.M.P.'s term of community custody has ended renders

this issue moot. An as-applied challenge is characterized by an allegation that

application of the prohibition "in the specific context of the party's actions or

intended actions is unconstitutional." Citv of Redmond v. Moore. 151 Wn.2d 664,

669, 91 P.3d 875 (2004) (reviewing an as-applied challenge to the

constitutionality of a statute). D.M.P. is no longer subject to the condition of

community custody challenged herein. Accordingly, there is no possibility that a

set of facts will arise to which the community custody condition could be applied.

Absent such a possibility, this question is moot. In such a context, we determine

that D.M.P.'s vagueness challenge is not of sufficient public interest to

necessitate appellate review notwithstanding the fact that the issue is moot. Cf.

Sansone, 127 Wn. App. at 637-38 (determining that appellant's vagueness

challenge to a community custody condition should be addressed where

sanctions had been imposed for violating the condition).

Because D.M.P.'s term of community custody has expired, he is no longer

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No. 69891-5-1/13

subject to the condition of community custody challenged herein. Accordingly,

we determine that D.M.P.'s challenge is moot and decline to address it.

Affirmed.

We concur:

yetsfhc^jMZ.

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