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v. ) UNPUBLISHED OPINION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.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 81019-7-I/2
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 Johnson3 running 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.
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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.
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No. 81019-7-I/4
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.
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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,
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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.
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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
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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.”
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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).
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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).
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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:
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