State v. Abuan

• Decision Date: 12 April 2011
• Docket Number: No. 38325–0–II.,38325–0–II.
• Parties: STATE of Washington, Respondent,v.Kevin Michael ABUAN, Appellant.
• Court: Washington Court of Appeals

161 Wash.App. 135

257 P.3d 1

STATE of Washington, Respondent,

v.Kevin Michael ABUAN, Appellant.

No. 38325–0–II.

Court of Appeals of Washington, Division 2.

April 12, 2011.

Valerie Marushige, Attorney at Law, Kent, WA, for Appellant.Stephen D. Trinen, Pierce County Prosecutors Office, Tacoma, WA, for Respondent.VAN DEREN, J.

[161 Wash.App. 140] ¶ 1 Kevin Abuan appeals his convictions for drive by shooting and two counts of second degree assault with firearm enhancements.¹ Abuan argues that (1) the pat down search of his person and the subsequent search of the vehicle in which he was a passenger incident to arrest of the driver violated article I, section 7 of the Washington State Constitution and (2) the evidence was insufficient to support his conviction on the second degree assault charge, count VI, wherein Fomai Leoso was the alleged victim.²

¶ 2 We reverse all of Abuan's convictions because the officer's pat down of Abuan, a vehicle passenger, without reasonable, articulable, and individualized suspicion that he was armed and dangerous or independently connected to illegal activity and the subsequent search of the vehicle violated article I, section 7 of the Washington constitution. We also hold that the evidence was insufficient to support Abuan's conviction on count VI, the second degree assault conviction involving Fomai Leoso. We remand to the trial court to vacate the convictions and to dismiss the second degree assault conviction on count VI with prejudice.

FACTS

¶ 3 The Outlaw Crip Killers (OLCK) is a street gang that is an offshoot of the larger Bloods gang.³ Fomai Leoso and his brother, Francis Leoso, ⁴ were both members of the OLCK street gang. During the time relevant to this case, the OLCKs came into a territorial conflict with a Crips-affiliated gang, the Native Gangster Crips (NGC).

¶ 4 Around midnight on August 15, 2007, Francis, his younger brother, and Francis's uncle were in the Leoso garage. The garage door was fully open. Francis heard a car driving by. Suddenly, someone shouted, “N–G–C, cuz” and gunfire erupted. 8 Report of Proceedings (RP) at 1016. Francis grabbed a gun, ran into the street, and returned fire at the car. Later a crime scene technician recovered nine, 9 millimeter shell casings in front of the Leoso residence. Forensics experts later matched all nine shell casings recovered from the scene to Francis's gun. And the technician detected bullet damage to only the residence's garage frame and door.

¶ 5 Before the shooting began on August 15, Fomai was inside the house on the telephone and he was unable to see who was shooting or what was happening in front of the garage. After the shooting, he ran outside where he found Francis. After Francis fired nine shots at the fleeing car, he and Fomai “jumped in[to a] car” and drove around looking for the car with the shooters, but they were unable to find it. 10 RP at 1288. Eventually, police officers pulled them over. During the stop, the officers found Francis's gun in the vehicle. The officers arrested Francis and released Fomai.

¶ 6 On August 17, Tacoma Police Officers Randall Frisbee and Henry Betts initiated a traffic stop of a red Chevrolet Corsica with expired registration tabs. Neither Frisbee nor Betts noted or recalled any furtive movements by the vehicle's occupants as they pulled it over. According to Frisbee, the vehicle's occupants were “cooperative [and] cordial” and there was “[n]o indication of drugs or alcohol or anything.” 5 RP at 368. The Corsica's driver identified himself as Raymond Howell. After Howell stated that he did not have a driver's license or other form of identification, Frisbee removed him from the vehicle and placed him in the back of the patrol car. After running a records check on Howell's name, Betts discovered that Howell had a suspended driver's license and informed Howell that he was under arrest for driving with a suspended license.

¶ 7 While Frisbee was contacting and removing Howell from the vehicle, Betts contacted Abuan, the passenger. Betts did not testify to any furtive movements by Abuan before or while the officers pulled the vehicle over, nor at any point after the vehicle was pulled over, did Betts lose sight of Abuan or observe him make any furtive movements. After Frisbee removed Howell from the vehicle, Betts asked Abuan to step out of the vehicle so that the officers could search it incident to Howell's arrest. When Abuan exited the vehicle, Betts told him that he was not under arrest but that Betts wanted to search Abuan for weapons. As Betts began to search Abuan, Abuan stated, “I ain't going to lie to you. I have a little bit of weed,” and began reaching for his “[r]ight pants or shorts pocket.” 5 RP at 481–82. Betts prevented Abuan from reaching into his pocket, handcuffed him, removed the suspected marijuana from Abuan's pocket, and placed him beside Howell in the back of the patrol car. Frisbee informed Abuan of his Miranda⁵ rights.

¶ 8 Betts conducted a search of the vehicle incident to Howell's arrest. Betts discovered a 9 millimeter handgun under the driver's seat. Neither Frisbee nor Betts could see the gun from outside the vehicle. Because they had read the police report on the August 15 shooting and knew that law enforcement had recovered 9 millimeter shell casings from the scene, Frisbee and Betts began to inspect the vehicle more closely. They discovered that something had recently broken out the vehicle's rear passenger side brake light and had caused a small indentation in the light's inner, metal casing. According to Betts, the damage was consistent with a gunshot.

¶ 9 Abuan noticed the officers examining the vehicle and explained that he had been riding in it with a female cousin on another occasion when someone had fired two shots at them. Abuan also admitted to membership in the Native Gangster Bloods (NGB), a Bloods-affiliated gang and showed the officers his tattoos and his red belt and shoes, all of which indicated membership in the Bloods gang. Abuan stated that Howell was a “wannabe” ⁶ of the “Morton Blocc Crips.” 5 RP at 408. Law enforcement impounded the vehicle for evidence processing.

¶ 10 Later that day, Tacoma Police Detective John Bair visited Abuan in custody and again advised him of his Miranda rights. According to Bair, Abuan's demeanor was “cooperative,” “awake,” “responsive,” and did not indicate “anything out of the ordinary.” 6 RP at 645. Bair checked to ensure Abuan understood his rights, and Abuan indicated he voluntarily wanted to answer questions. Bair questioned him about the August 15 shooting. Abuan stated that he had driven the vehicle involved in the August 15 shooting, that Howell was the front seat passenger, and that “Marquez” and “Little Bear” were in the back seat. 6 RP at 646–47. Abuan stated that he thought the group was driving by the Leoso residence only to flash gang signs, but that something different happened once they got there. Following his interview with Abuan, Bair identified and located Marquez, determined he had a “very solid” alibi regarding the August 15 shooting, and excluded him as a suspect. 6 RP at 652.

¶ 11 On August 20, Bair interviewed Abuan a second time while he remained in custody. After advising Abuan of his Miranda rights and obtaining a waiver, Bair immediately told Abuan that he had lied about Marquez's presence in the vehicle, to which Abuan agreed. Abuan stated that he had spoken with Howell about the August 15 shooting. He further stated that he had been high on narcotics when Bair first interviewed him, that he had not been in the vehicle involved in the August 15 shooting, and that a “Jeremy [James]” had fired the shots on that day. 6 RP at 655. When Bair confronted Abuan with the claim that he had coordinated his story with Howell, Abuan said he “didn't want to talk about it anymore.” 6 RP at 660.

¶ 12 The State's second amended information charged Abuan with one count of drive by shooting with a gang aggravator in connection with the August 15 shooting (count III), one count of second degree unlawful possession of a firearm in connection with the August 17, 2007, traffic stop (count IV), and two counts of second degree assault in connection with the August 15 shooting, one involving Francis (count V) and one involving Fomai (count VI). Both assault counts included firearm enhancements and gang aggravators. The State did not charge Abuan with assault of the other two individuals who were actually in the garage with Francis at the time of the shooting.

¶ 13 At the conclusion of the State's case, the trial court granted Abuan's motion to dismiss count IV. The trial court's jury instructions stated that “[a] person commits the crime of assault in the second degree when he or she assaults another with a deadly weapon.” Clerk's Papers (CP) at 239. The trial court instructed the jury that to convict Abuan of second degree assault it had to find that Abuan had “assaulted Fomai Leoso with a deadly weapon” and that a firearm was a “deadly weapon.” CP at 242, 246. The jury convicted Abuan of drive by shooting, second degree assault of Francis, and second degree assault of Fomai, with firearm enhancements on the assault convictions. The jury found that the State had not proven the gang aggravator on any of the charges.

¶ 14 The trial court sentenced Abuan to standard range sentences of 36 months on the drive by shooting (count III) and 20 months each on the second degree assault convictions (counts V and VI), plus additional firearm enhancements of 36 months to be served consecutively on each second degree assault conviction, for a total sentence of 108 months.

¶ 15 Abuan appeals.

ANALYSIS

¶ 16 Abuan first argues that Betts's pat down search violated article I, section 7 of the Washington State Constitution. The State did not respond to this argument in its briefing.

I. Warrantless Pat Down Search

¶ 17 Abuan challenges the pat down search for the first time on appeal....