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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

THE STATE OF WASHINGTON, ) No. 81019-7-I

)

 Respondent, )

)

 v. ) UNPUBLISHED OPINION

)

TERRELL TRAYSHAWN JOHNSON, )

)

 Appellant. )

BOWMAN, J. — Terrell Trayshawn Johnson argues insufficient evidence 

supports his conviction for one count of first degree unlawful possession of a 

firearm. In a statement of additional grounds for review (SAG), Johnson claims 

the trial court erred in denying his motion to suppress evidence of a warrantless 

search and in admitting opinion testimony at trial. Johnson also contends his trial 

counsel was ineffective by not introducing other suspect evidence. We affirm.

FACTS

The Seattle Police Department anti-crime team (ACT) investigates crimes,

conducts “tactical operations,” and coordinates arrests of violent suspects. It 

also searches for people with outstanding arrest warrants. In April 2019, ACT

officers were searching for Johnson.

On April 5, 2019, plainclothes ACT officers learned that Johnson was at 

his mother’s home in Rainier Valley. They believed Johnson might be armed. 
No. 81019-7-I/2

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When police arrived at the house, they saw parked out front the white Chrysler 

Sebring with California license plates they knew Johnson sometimes drove. 

Officers watched the car for about 15 minutes1 before seeing Johnson 

leave the house and get in the driver’s seat. Johnson was wearing a black 

“beanie” hat, a tan shirt under a black North Face fleece jacket, and tan pants. 

Officers did not see Johnson carrying a gun. Johnson sat in the car for about 10 

minutes2 before driving away. 

Uniformed officers tried to stop Johnson. Johnson briefly stopped the car

but as an officer approached on foot, Johnson backed up and drove away. 

Johnson then turned onto a residential street and began driving at “a very high 

rate of speed.” Officers activated their emergency lights and followed Johnson 

for about a mile. Johnson crashed into an unoccupied parked car and a school 

fence, got out of the car, and ran. 

Police lost sight of Johnson for “less than a minute” during the car chase.

But when they reached the crash site, bystanders pointed them in the direction

Johnson ran. Lamour Burke, who lived nearby, told the officers he saw a man 

wearing “tan sweats” and “a black shirt” running a half-block away from the car 

just after it crashed. Officers quickly saw Johnson3running through alleys and 

yards, but he was wearing only a “tan . . . jogging suit.” At times during the foot 

chase, officers lost sight of Johnson, but for only a moment. Police caught 

 

1 One officer estimated they watched the car for 10 to 15 minutes. Another officer said it 

was 35 to 45 minutes. 

2 Another officer testified Johnson stayed in the car for 30 minutes. 

3 Officers did not see him get out of the car but saw him running “[w]ithin seconds” after 

the crash. 
No. 81019-7-I/3

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Johnson about a block and a half from where he crashed the car. When police 

arrested Johnson, he was wearing a “tan brown jogging suit.” He was not 

carrying a firearm. 

Because police believed Johnson was armed, they brought K-9 Officer

Blitz to the scene to search for a firearm. The dog and his handler arrived within 

20 minutes of Johnson’s arrest and first alerted on Johnson’s black beanie.

Officer Blitz found the beanie on the ground just outside the driver’s side door of 

the crashed Chrysler. After searching the surrounding area for 6 to 7 minutes,

Officer Blitz alerted on a black North Face jacket hanging on a backyard fence

near where Johnson had run. His handler testified that Officer Blitz’s strong 

reaction during the search suggested the jacket had not been there long and was 

still “saturated with fresh human odor.” Officers found a “wall plug charger,”

some cash, and a loaded 9 mm Remington handgun in the jacket pockets. 

Officers later identified the jacket as the same one they saw Johnson 

wearing when he left his mother’s home and got into the Chrysler. When tested, 

the gun did not reveal any usable fingerprints. Detectives did not test the jacket 

or the charger for fingerprints and tested none of the items for DNA.

4

Police obtained a warrant to search the Chrysler. The search revealed 

boxes of 9 mm ammunition in the driver-side door and front center console, an 

unfired 9 mm bullet in the center crease of the backseat, a loaded magazine for a

9 mm semi-automatic Remington pistol under the front passenger seat, and a 

box of .40 caliber ammunition in the trunk. Officers also discovered an 

 

4 Deoxyribonucleic acid.
No. 81019-7-I/4

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identification card under the back passenger seat behind the driver’s seat for a 

person named Dominique Freman and credit and debit cards bearing several 

other names. A bill of sale inside the Chrysler suggested Aiden Riche sold the 

car to Aaron Tinselly a few weeks earlier. Police did not find any items 

identifying Johnson in the car.

The State charged Johnson with attempting to elude a pursuing police 

vehicle and first degree unlawful possession of a firearm.

Johnson moved to suppress evidence pretrial, alleging police conducted 

an unlawful search of the jacket.5 The trial court denied the motion, ruling

Johnson abandoned the jacket. At trial, Johnson conceded he was guilty of the 

eluding charge but argued the State did not prove beyond a reasonable doubt 

that he knowingly possessed a firearm. A jury convicted Johnson on both 

charges and the trial court sentenced him to a standard-range sentence.

Johnson appeals the unlawful possession of a firearm conviction.

ANALYSIS

Sufficiency of Evidence

Johnson argues the evidence at trial was insufficient to prove he 

possessed a gun because “[n]ot a single person, law enforcement or civilian, saw 

[him] possessing the handgun.” We disagree.

We review a sufficiency of the evidence challenge de novo. State v. Rich, 

184 Wn.2d 897, 903, 365 P.3d 746 (2016). Due process requires the State to 

prove each element of the charged crime beyond a reasonable doubt. State v. 

 

5 The record refers to the North Face item intermittently as a “jacket” and a “sweatshirt.” 

We use the term “jacket” for consistency.
No. 81019-7-I/5

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Baeza, 100 Wn.2d 487, 488, 670 P.2d 646 (1983); State v. Johnson, 188 Wn.2d 

742, 750, 399 P.3d 507 (2017). In considering a challenge to the sufficiency of 

evidence, we examine the facts in the light most favorable to the State and 

determine whether any rational trier of fact could have found the essential 

elements of the charged crime beyond a reasonable doubt. State v. Joy, 121 

Wn.2d 333, 338, 851 P.2d 654 (1993); State v. Salinas, 119 Wn.2d 192, 201, 

829 P.2d 1068 (1992). Such a challenge admits the truth of the State’s evidence 

and all reasonable inferences from it. Salinas, 119 Wn.2d at 201. 

Circumstantial evidence is as equally reliable as direct evidence. State v. 

Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). And we defer to the fact 

finder’s decision in our review. State v. Davis, 182 Wn.2d 222, 227, 340 P.3d 

820 (2014). “We do not consider ‘questions of credibility, persuasiveness, and 

conflicting testimony.’ ” Davis, 182 Wn.2d at 227 (quoting In re Pers. Restraint of 

Martinez, 171 Wn.2d 354, 364, 256 P.3d 277 (2011)).

The two elements of the crime of unlawful possession of a firearm are (1) 

knowingly possessing a firearm and (2) having a prior “serious offense” 

conviction. RCW 9.41.040(1)(a); State v. Nielsen, 14 Wn. App. 2d 446, 452, 471 

P.3d 257 (2020), review denied, 196 Wn.2d 1035, 478 P.3d 94 (2021). Because 

Johnson stipulated a court had convicted him of a serious offense and he

received notice that he was ineligible to possess firearms, the only issue at trial 

was whether he knowingly possessed a gun. 

The State may prove possession by showing a defendant had actual or 

constructive possession of a firearm. State v. Manion, 173 Wn. App. 610, 634, 
No. 81019-7-I/6

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295 P.3d 270 (2013). A person actually possesses something if it is in his 

physical custody. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). 

Constructive possession can be established by showing the defendant had 

“ ‘dominion and control’ ” over the firearm. Manion, 173 Wn. App. at 6346

(quoting State v. Lee, 158 Wn. App. 513, 517, 243 P.3d 929 (2010)). Dominion 

and control need not be exclusive. State v. Tadeo-Mares, 86 Wn. App. 813, 816, 

939 P.2d 220 (1997). But the State must prove more than a passing control; it 

must prove actual control. State v. Staley, 123 Wn.2d 794, 801, 872 P.2d 502 

(1994). The fact finder determines whether one has actual control under the 

totality of the circumstances. Staley, 123 Wn.2d at 802.

Here, the record shows police saw Johnson get into a car wearing a black 

beanie cap and a black North Face jacket over a tan shirt and tan pants. When 

confronted by police officers, Johnson sped away and crashed into a parked car 

and a school fence. Neighbor Burke saw a man running a half block from the 

crash site wearing “tan sweats” and a “black shirt.” Johnson ran through

backyards and alleys until police caught him. When police arrested Johnson, he

was wearing just a tan tracksuit. Officers found Johnson’s beanie cap on the 

ground just outside the crashed car and his black North Face jacket hanging on 

the fence of a backyard near where he had run. The jacket was dry even though 

the surrounding area was wet. A police canine tracked Johnson’s scent from his 

beanie cap to the jacket. A loaded 9 mm Remington handgun was in the jacket 

pocket. Inside the car Johnson was driving, police found boxes of 9 mm 

 

6

Internal quotation marks omitted. 
No. 81019-7-I/7

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ammunition and a loaded magazine for a 9 mm semi-automatic Remington pistol. 

Considering the evidence in the light most favorable to the State, a reasonable

trier of fact could find beyond a reasonable doubt that Johnson was wearing the 

black North Face jacket and possessed the Remington handgun. 

Statement of Additional Grounds

Johnson filed a SAG, arguing the trial court erred in denying his motion to 

suppress evidence based on an unlawful search of the jacket. Johnson also 

claims the trial court erred by allowing officers to testify that he drove recklessly

and contends his attorney was ineffective because he did not present other 

suspect evidence. 

A. Suppression of Evidence

“We review conclusions of law in an order pertaining to suppression of 

evidence de novo.” State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999), 

abrogated on other grounds by Brendlin v. California, 551 U.S. 249, 127 S. Ct. 

2400, L. Ed. 2d 132 (2007). We consider unchallenged findings of fact as

verities on appeal. State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).

Johnson argued below that officers unlawfully searched his jacket 

“incident to arrest” where he “was not wearing [it] at the time of the search but he 

had not abandoned it.” In his motion, Johnson admitted he dropped the jacket 

while fleeing but claimed it was inadvertent and not an intentional surrender of 

the item. 

Police may search voluntarily abandoned property without a warrant. 

State v. Reynolds, 144 Wn.2d 282, 287, 27 P.3d 200 (2001). This is because a 
No. 81019-7-I/8

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criminal defendant has no reasonable expectation of privacy in abandoned items. 

Reynolds, 144 Wn.2d at 287-88. We determine whether an individual voluntarily 

abandoned property based on actions and intent. State v. Dugas, 109 Wn. App. 

592, 595, 36 P.3d 577 (2001). We may infer intent from words spoken, acts 

done, and other objective facts and should consider all the relevant 

circumstances at the time of the alleged abandonment. Dugas, 109 Wn. App. at 

595. The defendant bears the burden of showing he had an actual, subjective 

expectation of privacy and that his expectation was objectively reasonable. State 

v. Evans, 159 Wn.2d 402, 409, 150 P.3d 105 (2007).

A critical factor in determining whether someone has abandoned property

is the status of the area where the item was located. State v. Hamilton, 179 Wn.

App. 870, 885, 320 P.3d 142 (2014). “Generally, no abandonment will be found 

if the searched item is in an area where the defendant has a privacy interest.” 

Hamilton, 179 Wn. App. at 885. Here, officers found Johnson’s jacket “hanging 

over a [metal] fence” near a tool shed in a yard Johnson passed through while 

fleeing police. Johnson had no privacy interest in the area. We agree with the 

trial court that Johnson relinquished his reasonable expectation of privacy by 

discarding the jacket. The warrantless search of Johnson’s abandoned jacket 

was lawful.

B. Opinion Testimony

Johnson claims the trial court “erroneously allowed police officers to testify 

that [he] drove recklessly or eluded the police.”
No. 81019-7-I/9

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We review a trial court’s evidentiary rulings for an abuse of discretion. 

State v. Arndt, 194 Wn.2d 784, 797-98, 453 P.3d 696 (2019). Questions of 

relevancy and the admissibility of testimonial evidence are within the sound 

discretion of the trial court. In re Welfare of Shope, 23 Wn. App. 567, 569, 596 

P.2d 1361 (1979); Roper v. Mabry, 15 Wn. App. 819, 822, 551 P.2d 1381 (1976); 

State v. Temple, 5 Wn. App. 1, 4-5, 485 P.2d 93 (1971). We will reverse a trial 

court’s rulings on those issues only if there is “a reasonable possibility that the 

testimony would have changed the outcome of trial.” State v. Fankhouser, 133 

Wn. App. 689, 695, 138 P.3d 140 (2006).

At trial, the prosecutor asked an officer to describe Johnson’s driving 

during the pursuit. He responded that Johnson drove “reckless[ly].” Defense 

counsel objected to the testimony as an improper legal conclusion. The trial 

court sustained the objection and struck the response but suggested the State 

lay a foundation. When then asked to describe what actions he saw, the officer 

testified that “the driver of the vehicle had increased speed, was driving 

erratically and with a disregard for the safety of any pedestrians or other vehicles 

in the area.” Defense counsel again objected and the trial court again sustained 

the objection and struck the improper portion of the response. The officer then 

testified without objection that Johnson was traveling at an “increasing speed” 

that the officer could not “keep up with” while also clearing intersections where 

pedestrians and other cars might be present.

We presume that jurors follow a trial court’s instructions to disregard 

improper testimony. State v. Dye, 178 Wn.2d 541, 556, 309 P.3d 1192 (2013). 
No. 81019-7-I/10

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Because the trial court sustained Johnson’s objections at trial and struck the

improper testimony, Johnson identifies no error. Johnson did not request a 

curative instruction and cites no authority that the court must offer one sua 

sponte. 

C. Ineffective Assistance of Counsel

Johnson claims his attorney was ineffective because “he failed to research 

or know the relevant law on evidence of other suspects” and “did not admit other 

suspect evidence.” 

A successful ineffective assistance of counsel claim requires both deficient 

performance and a showing of prejudice. Strickland v. Washington, 466 U.S. 

668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We need not “address both 

components of the inquiry if the defendant makes an insufficient showing on 

one.” Strickland, 466 U.S. at 697. 

To admit other suspect evidence, a defendant “must establish a train of 

facts or circumstances as tend clearly to point out someone besides the 

defendant as the guilty party.” State v. Strizheus, 163 Wn. App. 820, 830, 262 

P.3d 100 (2011). Remote acts, disconnected and outside the crime itself, do not 

suffice. State v. Franklin, 180 Wn.2d 371, 380, 325 P.3d 159 (2014).

Johnson provides no evidence that his attorney was not fully informed

about these legal requirements for introducing “other suspect” evidence.7 Nor 

does he show that the evidence at trial pointed to someone other than him 

wearing the black North Face jacket where officers found a gun. At best, the 

 

7 We do not review matters outside the record on direct appeal. State v. McFarland, 127 

Wn.2d 322, 337-38, 899 P.2d 1251 (1995). 
No. 81019-7-I/11

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evidence at trial suggested that people other than Johnson may have had access 

to the white Chrysler Sebring. And Johnson’s attorney argued to the jury that 

“many other people had access to the car” and police found “nothing, not one 

item or anything that tied Mr. Johnson to that car.” He urged the jury to consider 

also that “it’s not unreasonable to think that someone else in the car if they were 

in the back passenger side could have gotten out quicker and run around the 

corner without anyone having seen.” Johnson’s attorney was not deficient.

We affirm Johnson’s conviction for one count of first degree unlawful 

possession of a firearm.

WE CONCUR: