State v. Kenyon, 35237-1-II.

• Decision Date: 20 February 2008
• Docket Number: No. 35237-1-II.,35237-1-II.
• Citation: 177 P.3d 196,143 Wn. App. 304
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. James Ryan KENYON, Appellant.

177 P.3d 196

143 Wn. App. 304

STATE of Washington, Respondent, v. James Ryan KENYON, Appellant.

No. 35237-1-II.

Court of Appeals of Washington, Division 2.

February 20, 2008.

Thomas Edward Doyle, Attorney at Law, Hansville, WA, Patricia Anne Pethick, Attorney at Law, Tacoma, WA, for Appellant.

Edward P. Lombardo, Mason County Prosecuting Attorney, Shelton, WA, for Respondent.

PART PUBLISHED OPINION

QUINN-BRINTNALL, J.

¶ 1 James R. Kenyon appeals his conviction for seven counts of first degree unlawful possession of a firearm, arguing that (1) the trial court violated his speedy trial rights and (2) insufficient evidence supported the jury's verdict finding him guilty on counts I, II, and III. As demonstrated in the published portion of the opinion, Kenyon's trial was timely under CrR 3.3. In the unpublished portion of this opinion, we review the evidence supporting the jury's verdict and hold that it is sufficient as a matter of law. Accordingly, we affirm.

FACTS Procedural History

¶ 2 On August 3, 2006,¹ the State charged Kenyon by fourth amended information with seven counts of first degree unlawful possession of a firearm, contrary to former RCW 9.41.040(1)(a) (2003).

¶ 3 On March 13, Kenyon appeared before the trial court for an omnibus hearing. Kenyon's attorney requested a continuance of the hearing so that he could conduct "some further investigat[ing]" and interview "several witnesses in different statuses of custody." 1 Report of Proceedings (RP) at 1. Kenyon's attorney stated that he was not sure how long it would take to conduct his investigation and, thus, he would not make "a strenuous objection to continuing the [initial] trial date if it comes to that." 1 RP at 2. The trial court continued the hearing until March 27.

¶ 4 On March 27, Kenyon appeared before the trial court for his omnibus and pretrial hearing. Defense counsel informed the trial court that he was awaiting transcripts of testimony from a previous related trial. Defense counsel also indicated that he was anticipating several reports from his investigator.

¶ 5. On April 7, Kenyon appeared before the trial court for a readiness hearing. Due to "a number of outstanding discovery issues," Kenyon's attorney requested that the trial court continue the case. 1 RP at 12. Specifically, Kenyon's attorney "identified a couple of . . . persons of interest that [he] wanted] to interview." 1 RP at 13. At the hearing, Kenyon waived his right to a speedy trial and a new speedy trial deadline of June 6 was set. The trial court scheduled Kenyon's new readiness hearing for May 19.

¶ 6 On May 19, Kenyon's attorney requested another continuance, but Kenyon himself objected to the continuance and refused to sign the paperwork. The court noted that the final start date remained June 6. The trial court rescheduled Kenyon's readiness hearing for May 26.

¶ 7 On May 26, Kenyon appeared for his readiness hearing and his attorney informed the court that Kenyon had faxed him a "Motion for Change of Attorney" because Kenyon believed his attorney was taking too long to prepare his case for trial. See 1 RP at 24. Kenyon's attorney-noted that, while Kenyon was frustrated that the case had been continued several times and perceived it as a relatively simple litigation, he felt it was "somewhat more complicated" because Kenyon was facing multiple felony charges and faced a long prison term if convicted. 1 RP at 25. Kenyon's attorney also noted that there was "a lot of discovery in this case, and [that] this discovery's span[ned] years of time." 1 RP at 25. Kenyon's attorney also informed the court that he had not yet received the report from his private investigator. The trial court found Kenyon's motion without merit and denied his request to change attorneys. In addition, the State noted that it was having some discovery issues. Kenyon's attorney also indicated that it was having "ongoing discovery issues" and needed to interview at least one person prior to trial. 1 RP at 28. The trial court reset the readiness hearing for June 2.

¶ 8 On June 2, Kenyon appeared for his readiness hearing, and both his attorney and the. State indicated that their respective discovery issues had not been resolved. The trial court reset the readiness hearing for June 5.

¶ 9 On June 5, Kenyon's attorney reiterated that his investigative reports were still not done. Kenyon's attorney also stated that he had "another individual" that he and Kenyon wanted to interview and that he would like a 30-day continuance under State v. Campbell² 1 RP at 43. Kenyon's attorney remarked that, although he had not been able to interview all of the potential witnesses, everyone had been cooperative. Kenyon himself objected to the continuance. The trial court granted the continuance with a new final trial start date of July 5. The trial court then set the readiness hearing for June 7, with trial to start potentially as early as the next day.

¶ 10 On June 7, Kenyon's attorney reiterated that he needed to interview several individuals prior to trial and that "[a]lthough all parties are being cooperative ... there's a lot of people involved in different situations." 1 RP at 49. The trial court rescheduled the readiness hearing for June 23. On that date, Kenyon's attorney indicated that he still needed to interview several witnesses that he had not been able to contact through the prosecutor's office. When the trial court asked for a list of the witnesses that, he needed to interview, Kenyon's attorney stated that he did not have the names of who had been interviewed and who had not. The trial court rescheduled the hearing for June 26.

¶ 11 On June 26, Kenyon's attorney informed the court that he still had not interviewed all the witnesses and requested that the case be set for a new readiness hearing on June 30.

¶ 12 On June 30, the trial court informed the parties that during July there would only be one trial court in Mason County because one of the two judges was on vacation. Kenyon's attorney requested that the trial court set a status hearing for July 5.

¶ 13 On July 5, the trial court informed the parties that another criminal case was being tried and that it would likely continue through July 6. Kenyon's attorney moved to dismiss the case "pursuant to the speedy trial rules," but the trial court declined to do so. RP (July 5, 2006) at 2-3. The trial court stated that it was not continuing the trial because of "court congestion" but rather because of "unavailability." The trial court stated that the "unavailability" was "an unavoidable circumstance" because there was only one judge available and the judge was hearing a case that had not yet concluded. RP (July 5, 2006) at 4. The trial court noted it would call Kenyon's case again on July 6 for a status conference.

¶ 14 On July 7, the trial court informed the parties that the other criminal case was still pending but that it would sign an order regarding the "excluded period." 1 RP at 65. The trial court stated that the "excluded period" would end as soon as the other case concluded. 1 RP at 66. The deputy prosecutor reminded the trial court that he would be out of the office the week of July 9 "on a long-scheduled matter." 1 RP at 66. In addition, the State noted that it was prepared to begin a different trial that had "been specifically set to start [July 7]." 1 RP at 66.

¶ 15 On July 17, the trial court called the case for a status hearing. The trial court noted that the jury in the conflicting case was deliberating, and that "the [trial court] is available at this time to try the Kenyon case, so the unavailability period ends today." 1 RP at 72-73. Kenyon's attorney renewed his request to dismiss due to "court congestion," but the trial court reiterated that the "unavailability" was actually an "unforeseen circumstance" and, thus, a valid excluded period under CrR 3.3(e)(8).³ See 1 RP at 72.

¶ 16 Kenyon's trial began on August 1. On August 3, the jury found Kenyon guilty as charged of seven counts of first degree unlawful possession of a firearm. On August 21, the trial court sentenced Kenyon to 232 months in prison.

Statement of Facts—Counts I, II, and III⁴

¶ 17 On August 1, Kenyon stipulated to a prior conviction for second degree arson, a "serious offense" defined by RCW 9.41.010(12)(a).

¶ 18 David Stiner, Kenyon's friend, testified that a week or so before June 30, 2005, Kenyon gave him a gray lock box to give to Jana Newhouse or David Reading. The box was locked, but although Stiner did not open the box, he was able to tell that something was inside because it was heavy; Stiner put the box in Newhouse's trailer. Stiner testified that the box was a lock box with a combination lock. Stiner further testified that the gray metal box entered into evidence was "probably" the same box Kenyon gave him because it also had a combination lock.

¶ 19 Stiner also testified that in the week or so prior to June 30, 2005, Kenyon asked him "if [he] knew anybody that was looking to buy a couple of handguns." 2 RP at 144. Stiner further testified that "there was two other people" with Kenyon when he made the inquiry and, although they "had [the guns] in their hands . [Kenyon] was just the one doing the talking." 2 RP at 144-45. Stiner identified "the guns" as the 9 mm Smith & Wesson and the Hungarian-made 9 mm. Stiner further testified that Kenyon "could have" had physical possession of the weapons because he was the one who was asking about buyers. 2 RP at 145. When Stiner asked Kenyon where he obtained the guns, Kenyon told him "they belonged to a [girl] friend of his, and he was trying to sell them." 2 RP at 153.

¶ 20 Officer Steve Valley of the Department of Corrections testified that, after he arrested Reading, another of Kenyon's friends, for an unrelated crime, he searched Reading's home and recovered "three boxes in [a] trailer; a red box, a locked footlocker, and another little gray box that was located also in the trailer."...