IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. ASKIA ROMMULWILLIAMS, Appellant. No. 75030-5-1 DIVISION ONE

UNPUBLISHED OPINION FILED: June 6, 2016 r^a <—} C3 "6 0"» C_ Cl'l"
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### Becker, J. —Appellantwas carrying a gun and talking to himselfon a street near a community recreation center. When an officer stopped him and asked for his name, appellant spontaneously volunteered the information that he



### was a convicted felon. This led to his conviction for unlawful possession of a 

### firearm. Appellantcontends the initial stop was an unlawfulseizurejustifying suppression ofthe officer's discovery of his felony record. Because appellant freely consented to stop and talk with the officer, the initialstop was not a seizure. The trial courtproperly denied the motion to suppress. On an October afternoon in2015, the Pierce County Sheriff's Department received a call reporting that a man with a gun on his hip was walking around and talking to himselfacross the streetfrom a community recreation center. Deputy Kohl Stewart responded, aware ofthe possibility thatthe man might haveNo. 75030-5-1/2 mental problems. Stewart arrived atthe scene and sawthe man, who was later 

### identified as appellantAskiaWilliams. Stewart made a u-turn, drove his patrol

caronto a nearby sidewalk, parked it, and approached Williams on foot. Williams 

### put his hands on his head without being asked to do so. 

### Stewarttestified that he did not draw his own gun or issue commands to Williams. "I let him knowWashington State is an open carry state, so Ihad no 

### problem with him having a gun on his hip." Stewarttold Williams he could put his hands down to his side. He said Williams looked around and made a remark that

a woman passerby was his ex-wife who was inthe Federal Bureau of Investigation. Stewart asked Williams for his name. Williams stated his name 

### and spontaneously disclosed that he was a convicted felon and that his gun was

a black powder revolver. Stewart ran a record check and confirmed that Williams was a convicted 

### felon with a conviction for unlawfully possessing a firearm. He told Williams to place his hands behind his back. Williams was compliant. Stewart handcuffed Williams and took the handgun from him. Stewart again consulted records to confirm the felony record. He arrested Williams for unlawful possession of a firearm. The State charged Williams with the crime ofunlawful possession of a firearm inthe second degree. Williams made motions under CrR 3.5 and CrR3.6 to suppress certain statements he made during his interaction with Stewart. Stewart and Williams testified at an evidentiary hearing. The trial court denied both motions. Ajury convicted Williams as charged. This appeal followed.No. 75030-5-1/3 

### Williamscontends he was illegally seized bythe time Stewartasked him for his name and that as a result, his statement identifying himselfas a convicted felon, and all other incriminating evidence discovered thereafter, should have been suppressed. 

### Whetherpolice have seized a person is a mixed question of law and fact. The resolution by a trial court of differing accounts ofthe circumstances surrounding the encounterare factual findings entitled to great deference, but the ultimate determination ofwhether those facts constitute a seizure is one of law and is reviewed de novo. State v. Harrington. 167 Wn.2d 656, 662, 222 P3d 92 (2009). Ifpolice unconstitutionally seize an individual prior to arrest, the exclusionary rule calls for suppression ofevidence obtained via the government's illegality. Harrington, 167 Wn.2d at 664. The trial court is required to enterwritten findings and conclusions after conducting an evidentiary hearing on a CrR 3.6 motion to suppress. CrR 3.6(b). Inthis case, the courtfirst made a written ruling denying Williams' motion to suppress under CrR 3.5, finding that atthe timeWilliams supplied his name and date ofbirth and the fact that he was a convicted felon, he was not under arrest and the statements were spontaneously made. Shortly thereafter, Williams moved to suppress under CrR3.6. He briefly argued that another ground for suppressing the challenged statements was that he was unlawfully detained. The trial court denied this motion as well, stating that itwould stand by the CrR 3.5 ruling. Because there is no substantive dispute aboutthe facts ofthe encounter, the lack offindings specifically designated as CrR 3.6 findings doesNo. 75030-5-1/4


### nothinderappellate review and Williamsdoes not raise lack of findings as an issue. Not every encounterbetween a law enforcement officer and a citizen is a seizure. United States v. Mendenhall. 446 U.S. 544, 551, 100 S. Ct. 1870, 64 L. 

### Ed. 2d 497 (1980). When a citizen freely converses with a police officer, the 

### encounter is permissive. The officer's merely asking questions or requesting identification does not necessarily elevate a consensual encounter into a seizure. 

### State v. Barnes. 96 Wn. App. 217, 222, 978 P.2d 1131 (1999). An encounterwill not lose its consensual nature unless the police convey that compliance with their requests is required. Florida v. Bostick. 501 U.S. 429, 435, 111 S. Ct. 2382, 115 L.Ed. 2d 389 (1991). An encounterthat begins as a consensual social contact may escalate into a seizure. That is what happened in Harrington, 167 Wn.2d 656, and that is whatWilliams claims happened here. In Harrington, an officer noticed Dustin Harrington walking on a sidewalk late at night. The officerdrove past, made a u

### turn, parked his patrol car, and approached Harrington, who was then walking towards the officer. The officerdid not activate his emergency lights or siren, his patrol carwas not in sight, and the officerdid not inany way block Harrington's freedom ofmovement. They began a consensual conversation. Up to this point, the encounterwas not a seizure, even though the officerdid increase the level of intrusion by asking Harrington, who seemed nervous, to keep his hands out of his pockets. Harrington. 167 Wn.2d at 660, 655.No. 75030-5-1/5 

### The encounterwas escalated to a seizure by the next two things that happened. Anotherofficer, who happened to be driving by, made a u-turn, stopped, parked his car inthe northbound traffic lane, and stood about eightfeet away from Harrington. Meanwhile, the first officer asked Harrington for permission to pat him down. The patdown led to discovery of a drug pipe and to drug charges against Harrington, who moved to suppress the evidence on the basis of illegal seizure. The Supreme Court held the motion to suppress should have been granted. The pat-down request, combined with the show offorce created by the arrival ofthe second officer, was a seizure undertaken without specific and articulable facts thatwould create an objectively reasonable belief that Harrington was armed and presently dangerous. Harrington, 167 Wn.2d at 669. This case is not like Harrington. Although Williams testified that he was surrounded by four or five officers atthe beginning ofthe encounter, the trial court did notfind thattestimony credible. Stewart is the only officerwhose presence is disclosed by the record and the trial court's findings. And by the time Stewart put his hands on Williams, Williams had already spontaneously revealed his prior conviction, which supplied a legal basis forthe seizure. Harrington explains that police actions likelyresulting in seizure include the threatening presence of several officers, the display of a weapon by an officer, some physical touching ofthe person by the officer, or the use of language or tone ofvoice indicating thatthe compliance with the officer's request 

### might be compelled. None ofthose police actions were present here. StewartNo. 75030-5-1/6 

### did notuse flashing lights or a siren, he did not display hisweapon, he acknowledged to Williamsthatcarrying a weapon was not illegal, he gave no commands, and he did not touch Williams or box him in so that he could not
move away. Itwas Williams' burden to prove that a seizure occurred inviolation 

### ofconstitutional protections against illegal search and seizure. Harrington, 167 Wn.2d at 664. Williams has not met that burden. 

### Williams also argues that Stewart acted illegally while he investigated the firearm violation. After placing Williams in handcuffs, Stewartdetained Williams 

### while he once again consulted records to confirmthe prior felony. Nothing in the record suggests that any part ofthe detention was unreasonable in length. While waiting for the results ofthe records check, Stewart secured the revolver. Williams said he had a receiptfor it in his pocket. With Williams' consent, Stewartwentthrough his pockets and found a receiptfrom the pawn shop where Williams had recently purchased the gun. Williams contends that even ifthe seizure could bejustified as an investigative detention, the receipt should have been suppressed because the search of his pockets exceeded the scope of a frisk for officer safety. This argumentfails. The search ofthe pockets was done with Williams' consent. Voluntary consent is a valid exception to the rule that ordinarily prohibits warrantless searches. State v. Reichenbach. 153Wn.2d 126, 131-32, 101 P.3d 80 (2004). We conclude the trial court did not err by denying the motion to suppress.

6No. 75030-5-1/7 

### Williams also alleges prosecutorial misconduct in argument. The crime of second degree unlawful possession of a firearm, RCW 9.41.040, includes a 

### judicially-imposed knowledge element. State v.Anderson. 141 Wn.2d 357, 363- 

### 64, 5 P.3d 1247 (2000) (jury instruction should have included knowledgeelement when defendant claimed he did not know the handgun was in the car). Here, the to-convict instruction properly informed thejurythatthe State had the burden of proving thatWilliams "knowinglyhad a firearm in his possession or control." The 

### jury was instructed that a "firearm" is a "weapon ordevice from which a projectile may be fired by an explosive such as gunpowder." 

### Williams' trial theory was that he did not know the object he was carrying

on the day inquestion was a firearm. He testified that he believed thatthe item 

### he purchased at the pawn shop was a nonfunctional replica of an antique revolverfrom the Civil War era, loaded withsynthetic materials that simulated 

### ammunition. The State contradicted his testimony withevidence that the gun

was loaded and did properlyfire when tested at a range. On appeal, Williams contends the prosecutor's rebuttal argument implied there was no mens rea element to the crime. 

### "Aprosecuting attorney commits misconductby misstating the law." State v. Allen. 182 Wn.2d 364, 373, 341 P.3d 268 (2015). If a prosecutor makes an improperargument and the defendanttimely objects, this court reviews to determine whetherthe prosecutor's misconduct resulted in prejudice that had a substantial likelihood ofaffecting thejury's verdict. Allen. 182Wn.2d at 375.No. 75030-5-1/8 

### The prosecutor's initial closing argumentdirected thejury to the elements ofthe crime as set forth in the to-convict instruction. The State discussed the 

### evidence and emphasized thatthe dispute involved the knowledge element. "Did the defendant know itwas a firearm?" In his closing, Williams argued thatthe evidence was insufficientto prove he knewthe weapon he was carrying was 

### capable ofbeing fired. He claimed thatthe salesperson's act of selling the pistol without running a background check misled him into believing itwas an item felons could possess. He pointed outthe lack ofevidence thatthe gun had been fired during the two weeks beforeWilliams was arrested. The prosecutorbegan rebuttal by characterizing the defense argument as
a collection ofred herrings. What does a background check have anything to do with whether defendant knowingly had a firearm or not? Who cares. Defendant could have purchased a firearm illegally. Williams objected, "That's not inevidence." The court overruled the objection. The prosecutorcontinued: What is before you is thatthe defendant bought a gun, a firearm. Antique, so what. Antique firearms, as I'm sure you're aware using yourown common sense and lifeexperiences know thatthey still go bang and they shoot projectiles. Replica of a CivilWar piece. So what. Itcould be a black powder muzzle loaderthat stillwent bang and shot a projectile, and it would still be a firearm. October 11 through the 25th did the gun fire? Who cares. What's before you is notwhetherthe firearm thatthe defendant had that he used itand fired it. What's before you is thatthe defendant had a firearm. Period.No. 75030-5-1/9 

### The defendant objected thatthe prosecutor had misstated the law. Beforethe trial court ruled on the objection, the prosecutorsaid, "Your Honor, I'll rephrase." The prosecutorcontinued by referring again to the elements instruction. He argued there could be no reasonable doubtthatWilliams knew he had an operable firearm when the evidence showed he had loaded it with four rounds. The statements to which Williams objected did not misstate the mens rea 

### requirement ofthe crime. There is nothing inthe prosecutor's argumentthat would mislead thejury into thinking the State did not have to prove knowledge. 

### As the arguments on both sides recognized, the central issue indispute was whetherWilliams knew the revolverwas a functioning weapon, as opposed to a 

### nonfunctioning replica of an antique firearm. Williams has not demonstrated prosecutorial misconduct. 

### In a statementofadditional grounds, Williams contends thatthe State 

### tampered withthe gun and ammunition evidence, thatcontinuances violated his right to a speedytrial, and thatthe court improperly denied his requestfor substitute counsel. We do not address these issues, either because the 

### statementdoes not adequately inform us as to the nature and occurrence ofthe 

### alleged errors orbecausethey involvefacts orevidence not in the record. RAP 10.10; see State v. Calvin. 176Wn. App. 1, 26, 302 P.3d 509, 316 P.3d 496 

### (2013), reviewgranted in part on othergrounds and remanded. 183 Wn.2d 1013, 353 P3d 640 (2015).No. 75030-5-1/10

Affirmed.

WE CONCUR: 

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