### FILED 

### JUNE 11,2015 In the Office ofthe ClerkofCourt W A StateCourtofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, ) ) No. 31440-5-111 Respondent, ) ) 

### v. ) ) SHANERICHARD BUCKMAN, ) UNPUBLISHED OPINION ) Appellant. ) FEARING, J. Shane Buckmanappeals from his conviction for possessing a dangerous weapon. Hecontendsthe trial court shouldhave grantedhis motion to suppress incriminating statements. He also challenges the sufficiency ofevidence. We affirmhis conviction. FACTS Onthe night ofFebruary 3, 2012, a YakimaWalmart store managerreportedto the store's loss prevention officerthata customer carriedbrass knuckles. Kyle Levi, theNo.3l440-5-II1 State v. Buckman
loss prevention officer, calledpolice and reported that a young man in the store was displaying brass knuckles to other customers. Levi described the subject as a male "wearingbrass knuckles, a black flat billedNY Yankees hat, a black t-shirt and blue jeans." Clerk's Papers (CP) at 4. The brass-knuckled male exited Walmart and entered a black Acura Legend, which left the Walmart parking lot heading east. Yakima Police searched for a black AcuraLegend, which Officer Tory Jason Adams located and stopped. OfficerAdams spoke with the vehicle's driver and saw Shane Buckman seated in the Acura's backseat. Buckmanwore a flat-billed cap, a black shirt, and bluejeans, and held sunglasses. Shane Buckmanwas fifteen years old. Officer Jeffrey Miller arrived to assist Tory Adams. While holding a flashlight, OfficerMillerrapped on the Acura's rearpassenger window, which separatedhim and Shane Buckman. Miller motioned for Buckman to roll down the window. Buckman complied. OfficerMiller asked Buckman for identification and then asked Buckman twice aboutthe location ofthe brass knuckles. Buckman pointedto the vehicle's map pocket in front ofhim and said, "they'rein there." Report ofProceedings (RP) (Jan. 25, 2013) at 44. OfficerMiller asked Buckmanto hand him the knuckles and Buckman complied. Buckman removedthe knuckles from the pocket and handedthem to Officer Miller through the vehicle's open window. BuckmantoldMillerthatthe knuckles were actually a beltbuckle. The trial court later observed:

2No. 31440-5-111 State 

### v. Buckman
The device also had a small hookbetween the second and third finger holes that might fit into a hole on a beltworn about the waist, suggesting it couldbe used as a beltbuckle. Howeverthe device was not attached to a belt and a beltwas notproducedby [Shane Buckman] while in the automobile or at time oftrial. CP at 116. OfficerJeffrey Miller laid the knuckles on the Acura's trunk. Officer Miller had not yetwarned Shane Buckman ofthe latter'sMiranda rights. Miller arrested Buckman for possession ofa dangerous weapon. PROCEDURE The State ofWashington charged Shane Buckman with possession ofa dangerous weapon in violation ofRCW9.41.250. Before trial, Buckman moved to suppress, under CrR 3.5, all statements made by Buckman to OfficerJeffrey Millerbecause Miller did not advise Buckman ofhis Miranda warnings until "after completing a custodial interrogation." CP at 9. Buckman argued that his comments, while inside the car, about the knuckles and belt, occurred while in custody. YakimaPolice Officers Jeffrey Miller and Tory Adams testified atthe suppression hearing. After hearing testimony, the trial court denied the suppression motion. The juvenile court later found Shane Buckman guilty ofpossession ofa dangerous weapon. LA W AND ANALYSIS On appeal, Shane Buckman contends: (1) the trial court erred when it denied his motion to suppress testimonial statements and actions given the lack ofMiranda warnings, and (2) the facts ofthis case are insufficient to support Buckman's conviction

3No. 31440-5-II1 State 

### v. Buckman

onthe basis ofconstructivepossession. We reject both arguments and affirmthe conviction. Motionto Suppress Shane Buckman contends that his statements and actions during thetraffic stop are inadmissible because they were obtained as a result ofa custodial interrogation without Miranda warnings. These actions and statements include: Buckmanpointingto the car's mappocket; Buckmantelling OfficerMiller, "they're in there"; Buckmanhandingthe knuckles to Miller; and Buckman's comment that the knuckles were part ofa beltbuckle. RP (Jan. 25, 2013) at 44. Shane Buckman does not challenge any ofthetrial court's findings offact. The rule in Washington is that unchallenged findings entered after a suppressionmotion hearing are verities on appeal. State v. O'Neill, 148 Wn.2d 564, 571,62 P.3d 489 (2003); State v. Hill, 123 Wn.2d 641,647, 870 P.2d 313 (1994). Nevertheless, the ultimate determination ofwhetherthe accused underwent a custodial interrogation is one oflaw and is reviewed de novo. State v. Lorenz, 152 Wn.2d 22,36,93 P.3d 133 (2004). This courtreviews "atrial court's custodial determination de novo." Lorenz, 152 Wn.2d at 36. We take these principles ofreviewto mean we accept the trial court's findings ofthe bare facts uninfectedby any inferences and unencumbered by legal significance. TheUnited States Supreme Court formulated Miranda warnings to protect a defendant's constitutional right not to make incriminating confessions or admissions to

4No. 31440-5-III State v. Buckman police while in the coercive environment ofpolice custody. State v. Heritage, 152 Wn.2d 210,214,95 P.3d 345 (2004). WithoutMiranda warnings, a suspect's statements during custodial interrogation are presumed involuntary and are thus inadmissible. Heritage, 152 Wn.2d at 214. For statements to be later admissible, Miranda warnings must precede the statements when a state agent engages the suspect in a "custodial interrogation." Heritage, 152 Wn.2d at 214. Shane Buckman argues he underwent "interrogation"because OfficerJeffrey Miller should have known thathis questions and demands ofBuckman were reasonably likely to elicit an incriminatingresponse. The State does not refute this argument. The law confirms the conclusion that OfficerMiller's questioning involved an interrogation. Rhode Islandv. Innis, 446 U.S. 291, 301,100 S. Ct. 1682,64 L. Ed. 2d 297 (1980); State
v. Pejsa, 75 Wn. App. 139, 147,876 P.2d 963 (1994). The sole issue is whether Shane Buckmanwas "in custody" when he answered OfficerMiller's questions about the knuckles and complied with the officer's request toproduce them. In Miranda, the United States Supreme Courtdefined custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived ofhis freedom ofaction in any significant way." Miranda
v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). In Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984), the United States Supreme Courtrefined the definition of"custody." Berkemer set forth an objective test,

5No. 31440-5-III 

### State v. 

### Buckman focusing on "whether a reasonable person in the individual's position would believe he or she was in police custody to a degree associated with formal arrest." 

### Lorenz, 152 Wn.2d at 37. Washington has adopted the 

### Berkemertest. 

### Heritage, 152 Wn.2d at 218. Yakima police seizedthe Acurawhen it stoppedthe car. A routine traffic stop curtails the freedom ofa motorist such that a reasonablepersonwouldnot feel free to leave the scene. Therefore, a routine traffic stop, like a 

### Terry stop, is a seizure for the purposes ofthe Fourth Amendment. 

### State v. 

### Heritage, 152 Wn.2d 210,218,95 P.3d 345 (2004) (referring to 

### Terry v. 

### Ohio, 392 U.S. 1, 88 S. Ct. 1868,201. Ed. 2d 889 (1968». Shane Buckman sat in the seized vehicle whenhe made his statements to Officer Jeffrey Miller. Buckman could not exit the carwhile Officers Adams andMiller investigated whether someone in the Acura possessed a dangerous weapon. The

### Berkemertest requires more, however, before a citizen undergoes custody suchthat an officer must utterthe

### Miranda warnings. Washington courts agree that a routine 

### Terry stop is not custodial for the purposes of

### Miranda. Heritage, 152 Wn.2d at 218 (citing 

### State v. 

### Hilliard, 89 Wn.2d 430,432,435-36,573 P.2d 22 (1977». An officer making a 

### Terry stop may ask a moderate number ofquestions to determine the identity of
a suspect and to confirm or dispel the officer's suspicions without rendering the suspect "in custody" for thepurposes of

### Miranda. Heritage, 152 Wn.2d at 219 (citing 

### Berkemer, 468 U.S. at 439-40). Mere suspicionbefore the facts are reasonably developed is not



### 6No. 31440-5-II1 State 

### v. Buckman enough totransubstantiate the questioning into a custodial interrogation. State v. Hilliard, 89 Wn.2d at 436. When arguing he underwent custodial interrogation, Shane Buckman emphasizes the following facts: police stopped the black Acura with lights blazing; the presence ofa second patrol car and second officer; OfficerMiller required Buckman to roll down the window; and both officers wore a uniform and bore arms. Buckman does not explain howthese facts differ from a routine traffic stop, and experience would suggest they do not. OfficerMiller limitedhis questions to the impetus for the investigative stop, that being the possession ofa dangerous weapon. A relevant decision is Heinemann v. Whitman County, 105 Wn.2d 796, 718 P.2d 789 (1986). A Whitman County deputy sherifffollowed a car driven by Paul Heinemann, who the deputy suspected was intoxicated. When Heinemann drove the car into his residence's driveway, the deputy turned on his emergency light and pulled into the driveway behind Heinemann's vehicle. The sheriffdeputy asked Heinemann to perform field sobriety tests. HadHeinemann refused to perform the tests, the deputy would have arrested him. Heinemann failed the tests. The sheriffdeputy arrested Heinemann andthen delivered theMiranda warnings. Upon a prosecution for drunk driving, Heinemann moved to suppress evidence ofthe sobriety tests onthe ground he had not yet been read his Miranda rights. The Supreme Court affirmed the denial ofthe motion to suppress. When the deputy asked Heinemannto perform field tests,

7No. 31440-5-III State v. Buckman
Heinemann was not under coercive restraints and thus not in custody. Shane Buckman notes that he had recently turned fifteen years old, and he argues that we should consider his youth and naivety when assessing whether he was in custody. Buckman cites no authority to support his argument. RAP 10.3(a)(6) directs each party to supply, in his brief, "argumentin support ofthe issues presented for review, together with citations to legal authority and references to relevant parts ofthe record." We do not consider conclusory arguments that are unsupported by citation to authority. Joy v. Dep't o/Labor & Indus., 170 Wn. App. 614, 629, 285 P.3d 187, 194-95 (2012), review denied, 176 Wn.2d 1021,297 P.3d 708 (2013). Passing treatment ofan issue or lack ofreasoned argument is insufficientto meritjudicial consideration. West v. Thurston County, 168 Wn. App. 162, 187,275 P.3d 1200 (2012). Therefore, we decline to entertain the argument. Sufficiency ofEvidence Shane Buckman contends that the State'strial evidence was insufficient to support his conviction for possession ofa dangerous weapon in violation ofRCW 9.41.250. Buckman argues thatthe State showed his proximity to the brass knuckles, but failed to show constructive possession. Evidence is sufficient to support an adjudication ofguilt in ajuvenileproceeding ifany rational trier offact, viewing the evidence in a light most favorable to the State, could have found the essential elements ofthe crime beyond a reasonable doubt. State v.


### 8No. 31440-5-II1 

### State v. 

### Buckman Joy, 121 Wn.2d 333, 338,851 P.2d 654 (1993); 

### State v. 

### Green, 94 Wn.2d 216,221,616 P.2d 628 (1980); 

### State v. 

### Echeverria, 85 Wn. App. 777, 782,934 P.2d 1214 (1997). When the sufficiency ofthe evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor ofthe State and interpreted most strongly againstthe defendant. 

### Joy, 121 Wn.2d at 339; 

### State v. 

### Salinas, 119 Wn.2d 192, 201,829 P.2d 1068 (1992). Circumstantial evidence is no less probative than direct evidence. 

### State v. 

### De/marter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). UnderRCW 9.41.250, every person who "possesses any instrument orweapon of the kind usually known as ...metal knuckles" is guilty ofa gross misdemeanor. Possession may be actual or constructive. 

### Echeverria, 85 Wn. App. at 783. To establish constructive possession, there must be some evidence from which a trier offact can infer dominion and control. 

### State v. 

### Spruell, 57 Wn. App. 383, 389, 788 P.2d 21 (1990). This court examines the totality ofthe circumstances, includingthe proximity ofthe property and ownership ofthe premises where the contraband was found, to determine whether there is substantial evidence ofdominion and control. 

### State v. 

### Lakotiy, 151 Wn. App. 699, 714, 214 P.3d 181 (2009). Dominion and control means that the object may be reduced to actual possession immediately. 

### State v. 

### Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002). Mere proximity is not enough to establish constructivepossession, however. 

### Spruell, 57 Wn. App. at 389. Knowledge ofthe presence ofcontraband, without more, is insufficient to show

9No. 31440-5-II1 State 

### v. Buckman
dominion and control to establish constructive possession. State v. Chouinard, 169 Wn. App. 895, 899, 282 P.3d 117 (2012), review denied, 176 Wn.2d 1003,297 P.3d 67 (2013). The ability to reduce an objectto actual possession is an aspect ofdominion and control, but other aspects such as physical proximity shouldbe considered as well. State


### v. Chouinard, 169 Wn. App. at 899; State 

### v. Hagen, 55 Wn. App. 494,499, 781 P.2d 892 (1989). Exclusive control is not necessary to establish constructive possession. State v. Cote, 123 Wn. App. 546,549,96 P.3d 410 (2004). The totality ofthe circumstances in this case shows that Shane Buckman constructively, ifnot actually, possessedthe brass knuckles. Buckman knew the brass knuckles were in the map pocket in front ofhim. Buckman's commentthat the knuckles
were a beltbuckle shows familiarity with the object. Buckman sat nearest to the knuckles. Shane Buckman evidencedhis ability to reduce the knuckles to his actual possession when he retrievedthem from the map pocket and handed them to Officer Miller. Knowledge, proximity, and the capacity toreduce the knuckles to his possession combine to show that Shane Buckman constructively possessed the dangerous weapon. CONCLUSION We affirm Shane Buckman's conviction for possessing a dangerous weapon.

10No. 31440-5-111 State 

### v. Buckman
A majority ofthe panel has determined this opinion will not be printed inthe WashingtonAppellate Reports, but it will be filed for publicrecordpursuantto RCW 2.06.040.
Fearing, WE CONCUR: 

# KOfi.1. (A
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# ~'\..rv**...** Lawrence-Berrey, J.

11