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 DIVISION ONE No. 69891-5-1 UNPUBLISHED OPINION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 incidentin which J.J.I, and D.M.P., alongwith 

### otherjuveniles, were handling various firearms in a Tacoma alleyway, thetrial courtfound J.J.I, guilty ofunlawful possession ofa firearm in the first degree and 

### found D.M.P. guilty ofunlawful possession ofa firearm in the second degree. On 

### appeal, J.J.I, contends thatthe evidence ofthefirearm that he possessed should have been excluded because his arrest was unlawful. However, because J.J.I, 

### did not move to suppress the evidence beforetrial—and, thus, no record was 

### developed from which to determine the lawfulness ofhis arrest—J.J.I, cannotNo. 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 thetrunk of the vehicle that he was driving. D.M.P. was carrying his .357 caliber Ruger 

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

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

### Ruger revolver, and putthethree firearms in thetrunk ofT.C.'s vehicle. T.C, D.M.P., and J.J.I, then picked up anotherjuvenile from his home, and thefour continued to drive around Tacoma "to waste time." T.C. drove to the area of the Tacoma Mall, where the group saw some 

### otherfriends, K.L. and Tyreese Woods.1 K.L. and Woods informed theothers 

### that they also had firearms in their possession. The group then decided todrive to a nearby alleyway "in ordertoshow oneanothertheir respective firearms."
1Because Woods wasnot ajuvenile when these eventsoccurred, he isidentified by his full name herein. -2-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 SheriffJason Mills arrived at the scene. Deputy Mills was dispatched to the scene following a 911 call 

### "reporting that severaljuvenile males werein the alley moving firearms from the trunk ofone vehicle to the trunk ofanother vehicle." Deputy Mills observed the 

### six young men in andaround thevehicles at the listed location. He held the 

### group atgunpointwhile 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 .22caliber Rugerrevolver belonged to J.J.I. J.J.I, and
D.M.P. were also arrested. 2AfterWoods wasapprehended by police, heinformed 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 inviolation RCW9.41.040(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 ofRCW 9.41.040(1 )(a). Following an August 10trial, 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 ofcommunity 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 ofcommunity 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 ofguilt. Their cases were thereafter consolidated.
II J.J.I, contends that the State presented insufficient admissible evidence 

### demonstrating that hecommitted theoffense ofunlawful possession ofafirearm 

### in thefirst degree. He assertsthat his arrestwasunlawful because the arresting officer lacked knowledge ofsufficientfacts to support a reasonable beliefthat 

### J.J.I, wasengaged in criminal activity and, thus, thattheevidence ofthefirearm 

### obtained pursuantto thearrest 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).
-4-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 ofevidence. 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 mayreview a claim of error raisedfor the first time on appeal where itconstitutes a "manifest error affecting a constitutional 

### right." RAP 2.5(a)(3). Theerror must be both ofconstitutional 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 ofactual prejudice.'" O'Hara. 167Wn.2d at 

### 99 (internal quotation marks omitted) (quoting Statev. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)): see also McFarland, 127Wn.2d at 333 ("The 

### defendant mustidentify a constitutional error and show how, in the context ofthe 

### trial, thealleged error actually affected thedefendant'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 notin the record on 

### appeal, no actual prejudice is shown and theerror is not manifest.'" Statev. Fenwick, 164Wn. App. 392, 400, 264 P.3d 284 (2011) (internal quotation marks 

### omitted) (quoting O'Hara, 167 Wn.2d at99), 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.
-5-No. 69891-5-1/6
asserts that Deputy Mills lacked knowledge of sufficient facts to support a reasonable beliefthat J.J.I, was engaged in criminal activity based upon the 

### information provided to police by the"anonymous" 911 caller.4 In support ofthis 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 ofreliability' than one provided by a completelyanonymous 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 ofcriminal 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 beforetrial, J.J.I, has the burden to show manifest error on appeal. Fenwick, 164Wn. App. at 405. 

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

### 911 call reporting thatthere were "several individuals neartwo carswith 

### weapons."5 However, because J.J.I, did not request a suppression hearing before trial, the record does notcontain sufficient information regarding the
4We note thattheonly reference tothe anonymity ofthe911 caller in thereport of proceedings is within defense counsel's argument. No witness testified thatthe 911 callerwas "anonymous." Moreover, defense counsel referenced the "anonymous" 911 caller only to argue thatthecontent ofthecall 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 aresult, no further information regarding the 911 call was entered into the record.
-6-No. 69891-5-1/7

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

### Deputy Mills had a reasonable beliefthatthejuveniles were engaged in criminal activity. To show actual prejudice, J.J.I, must show thatthetrial court would 

### likely have granted themotion 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 noopportunity tofully develop the record in orderto demonstrate the lawfulness of J.J.I.'s arrest. Fenwick, 164Wn. App. at 405. Accordingly, "the 

### record does notindicate whether the trial court would have granted the motion." McFarland, 127 Wn.2d at 334. 

### "'Where, as here, theclaim is brought ondirect appeal, thereviewing court will not consider matters outside thetrial record.'"6 Fenwick. 164 Wn. App. at406 

### (quoting McFarland, 127Wn.2d at 335). Because, on this record, J.J.I, cannot demonstrate actual prejudice, his claim oferror regarding the admissibility ofthe firearm evidence does not constitute a manifest error. Thus, J.J.I, cannot raise 

### the suppression issue forthe firsttime on appeal pursuantto RAP 2.5(a)(3). Accordingly, we evaluate J.J.I.'s contention that insufficient evidence 

## supports his adjudication ofguiltfor unlawful possession ofafirearm in the first 

## degree in lightofthe actual record before us. When reviewing achallenge to the sufficiency ofthe evidence, we must determine "whether, afterviewing the evidence in the light mostfavorable to the prosecution, anyrational trier offact could have found theessential elements ofthecrime beyond a reasonable 6"Ifadefendantwishes to raise issues on appeal that require evidence orfacts not in the 

### existing trial record, the appropriate means ofdoing so isthrough apersonal restraint petition, 

### which may befiled concurrently with the directappeal." McFarland, 127Wn.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 ofunlawful possession of a firearm in the firstdegree, ifthe 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 Rugerrevolver. Certified copies ofJ.J.I.'s prior adjudication ofguilt forburglary 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 factcould determine that J.J.I, committed the offense ofunlawful possession of a firearm in the firstdegree and, thus, that sufficient evidence supports his adjudication ofguilt.
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 onJ.J.I, todemonstrate 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 forcounsel's deficient representation." McFarland. 

### 127Wn.2d at 337. Asexplained 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 ofunlawful 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). -8-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 contactwith 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
nolonger subject to the community custody condition imposed by thetrial 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 reCross. 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 notprovide the reliefsought). However, even where an issue istechnically moot, we may nevertheless decide 

### it ifit presents a matter of"continuing and substantial public interest." Hunlev. 175Wn.2d at 907. In determining whether a sufficient public interest is involved,
-9-No. 69891-5-1/10

we consider "(1) the public or private nature ofthe 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 ofBellingham. 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 notrelated to the offense for which he was adjudicated guilty and is unsupported by any rational basis in the record. "As part of any term ofcommunity 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 ofthecourt "prohibiting conductthat directly relates to the circumstances ofthe crime for which the offender has been convicted." RCW9.94A.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 ofafirearm. However, D.M.P.'s term ofcommunity custody expired onMarch 31, 2012. Because the term ofcommunity custody imposed by the trial court has ended, D.M.P. is nolonger 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 courtto impose 

### community custody conditions based upon whether such conditions have 

### previously beenimposed for prior offenses. Thus, thecommunity custody
-10-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 mustavoid; and second, to protectthemfrom 

### arbitrary, ad hoc, ordiscriminatory 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)). Aprohibition is unconstitutionally vague if it "does not define the criminal offense with sufficient definiteness that ordinary 

### people can understand whatconduct isproscribed" orit "does notprovide ascertainable standards ofguiltto 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 notinvolve First Amendment rights, it is not properly evaluatedfor facial vagueness; instead, it must be evaluated as 

### applied." Sansone, 127 Wn. App. at 638. BecauseD.M.P. does not challenge
-11

-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 ofthe prohibition "in the specific context ofthe 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

12No. 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: 

# MZ. yetsfhc^j

13