State v. Taylor

• Docket Number: 39019-5-III
• Decision Date: 23 January 2024
• Citation: 541 P.3d 1061
• Parties: STATE of Washington, Respondent, v. Jarod Roland TAYLOR, Appellant.
• Court: Washington Court of Appeals

541 P.3d 1061

STATE of Washington, Respondent,

v.Jarod Roland TAYLOR, Appellant.

No. 39019-5-III

Court of Appeals of Washington, Division 3.

Filed January 23, 2024

Erin Irene Moody, Nielsen Koch & Grannis, PLLC, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, for Appellant.

Rebekah Kaylor, Grant County Prosecuting Attorney's Office, P.O. Box 37, Ephrata, WA, 98823-0037, for Respondent.

OPINION PUBLISHED IN PART

Lawrence-Berrey, J.

¶1 Jarod Roland Taylor appeals his conviction for unlawful possession of a firearm in the second degree. In the published portion of this opinion, we address his arguments that (1) the trial court erred by concluding he was not seized when a police officer held his identification and called dispatch, and (2) the prosecutor committed misconduct during rebuttal closing argument when he told jurors they were not required to find that Mr. Taylor actually knew the firearm was in his truck.

¶2 We conclude that Mr. Taylor was not seized because the officer did not use physical force or a show of authority. Absent this, a reasonable person could not believe they were not free to leave due to an officer's use of physical force or a show of authority. This is especially true where, as here, the officer assured the person they were not suspected of any criminal activity.

¶3 We further conclude that Mr. Taylor waived his argument of prosecutorial misconduct by failing to object to the prosecutor's misstatement of the law. The prosecutor's misconduct of misstating the law was not flagrant or ill intentioned. He correctly stated the law throughout most of his argument, and a timely objection could have cured his misstatement.

FACTS

¶4 We take our facts from the uncontested portions of the trial court's findings¹ and from the arresting officer's audio-video body camera.

¶5 On February 2, 2021, at around 9:00 p.m., Moses Lake Police Department Officer Colton Ayers received a report of a theft from the local Lowe's hardware store. Dispatch advised the officer that the suspect was wearing jeans and a white sweatshirt and that he was carrying items from the store. The officer drove to an open field behind Lowe's after a store employee reported the suspect had headed in that direction.

¶6 Once in the field, Officer Ayers located a parked Toyota pickup truck. He looked through the windows of the truck for the suspect or the stolen merchandise but found neither. He then ascended a 20-foot high dirt mound near the truck to gain a better view of the field. At the top of the mound, Officer Ayers encountered Jarod Roland Taylor, who was sleeping.

¶7 The officer shined a flashlight on Mr. Taylor because it was dark and asked for his identification. At this point, the officer's body camera audio begins. Mr. Taylor asked, "What is going on?" Ex. D1 at 00:31-1:00. The officer replied,

So someone saw someone running out the back of Lowe's over here in the field with a bunch of stuff in their hands ... and you don't match the description or anything, but we just gotta, I just gotta get your name just so we have that in case we need to contact you again at some point.

Ex. D1 at 00:31-1:00.

¶8 Mr. Taylor handed his identification to Officer Ayers. After the two had a brief cordial discussion, the officer provided Mr. Taylor's name and birthdate to dispatch.² Officer Ayers returned Mr. Taylor's identification to him. Mr. Taylor then said the truck was his and asked if it was all right—him being there. The officer responded it was, unless someone complained.

¶9 Soon after, dispatch reported the information to Officer Ayers, and the officer asked Mr. Taylor if he knew he had a felony warrant. Mr. Taylor said he did not, and the officer arrested Mr. Taylor.

¶10 Around the same time, Officer Caleb Martin arrived and looked inside the windows of the truck where he saw the barrel of a rifle and two boxes of ammunition. After Officer Martin obtained a warrant, he seized the rifle.

Pretrial procedure

¶11 The State charged Mr. Taylor with unlawful possession of a firearm in the second degree. Before trial, Mr. Taylor moved to suppress all statements and evidence gathered by law enforcement during his "warrantless seizure and detention." Clerk's Papers (CP) at 31. He argued that Officer Ayers had no reasonable, articulable suspicion that he was engaged in criminal activity and that he was unlawfully seized when Officer Ayers asked to see his identification. He also argued that the officers lacked authority to search the flatbed of his pickup truck before they obtained a warrant.

¶12 The court held a suppression hearing during which both Officer Ayers and Mr. Taylor testified. At the start of the suppression hearing, the State conceded the portion of the motion to suppress related to the search of the flatbed of the pickup truck. During the hearing, the court admitted and viewed the three-minute audio-video clip from the officer's body camera.

¶13 At the end of the hearing, the court announced its findings of fact and conclusions of law. The court determined that there was not "coercion or show of force that would cause a reasonable person to feel they weren't able to break off the contact" and denied Mr. Taylor's motion to suppress. Rep. of Proc. (RP) (Mar. 24, 2022) at 42. The court later entered its written findings of fact and conclusions of law. The court's written conclusions, which actually are findings, provide in relevant part:

1. There was nothing about the contact that suggested the defendant was not free to leave prior to the time the officer learned the defendant had a warrant.

....

3. The encounter was brief and cordial. There was no show of coercion or force.

4. Officer Ayers did not use any show of authority or force when he requested identification from the defendant.

....

6. Considering the totality of the circumstances, the Court cannot find there was any sort of coercion of [sic] force that would lead a reasonable person to believe he or she was not free to leave.

CP at 53.

Trial

¶14 The case proceeded to a jury trial. The State called three Moses Lake Police Department officers to testify. The officers testified consistent with the facts above. In addition, Officer Ayers testified that Mr. Taylor told him the truck was his and that when he searched Mr. Taylor, he found the keys to the truck.

¶15 Mr. Taylor stipulated to the fact that he had a prior felony conviction. The defense rested without calling any witnesses.

Jury instructions

¶16 The court instructed the jury on the charged crime. The to-convict instruction required the jury to find that the State had proved three elements beyond a reasonable doubt, including that Mr. Taylor "knowingly had a firearm in his possession or control." CP at 67. The court also instructed the jury on the definition of "knowledge":

A person knows or acts knowingly or with knowledge with respect to a fact, circumstance or result when he or she is aware of that fact, circumstance or result. It is not necessary that the person know that the fact, circumstance or result is defined by law as being unlawful or an element of a crime.

If a person has information that would lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted but not required to find that he or she acted with knowledge of that fact.

When acting knowingly is required to establish an element of a crime, the element is also established if a person acts intentionally.

CP at 65.

Closing arguments and rebuttal

¶17 During the State's initial closing argument, the prosecutor correctly and repeatedly told the jury that the State needed to prove that Mr. Taylor knowingly possessed a firearm. He read to the jury the instruction that defined "knowledge." From it, the prosecutor argued the circumstances why it should find that Mr. Taylor had knowledge, including that the truck was his, that an officer, when looking through the window, saw the partly exposed rifle, and that after they obtained the search warrant and searched the truck, they found gun scopes inside the center console, a bullet inside the pocket of the front door, and a box of bullets next to the rifle. The prosecutor argued, given these circumstances, it was unreasonable "to believe that the defendant did not know that that gun was in there." RP (Apr. 7, 2022) at 217.

¶18 During the State's rebuttal closing, the prosecutor argued:

[Defense counsel] states that the [S]tate has not proved to you that the defendant knew that a firearm was inside the truck. And again, I just want to quickly ... refresh your memory about ... the definition of knowledge.

It states in the second paragraph, if a person has information that would lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted but not required to find that he or she acted with knowledge of that fact.

So based on the circumstances, it's not required that you find that he knew. But the question is did [Mr. Taylor] have information that would lead a reasonable person to believe that a firearm was in that truck?

RP (Apr. 7, 2022) at 230-31 (emphasis added). Defense counsel did not object to the prosecutor's misstatement of the law. Soon after, toward the end of his closing rebuttal, the prosecutor told the jury, "the [S]tate's burden in this case is to prove that the defendant possessed a firearm knowingly." RP (Apr. 7, 2022) at 232.

¶19 The jury returned a guilty verdict. The court sentenced Mr. Taylor to 20 months of confinement and imposed the $500 victim penalty assessment (VPA). The court also found Mr. Taylor to be indigent.

¶20 Mr. Taylor timely appealed.

ANALYSIS

NO SEIZURE

¶21 Mr. Taylor contends the trial court erred when it denied his motion to suppress because he was unconstitutionally seized. We disagree.

¶22 Whether police have seized a person is a mixed question of law and fact. State v. Armenta, 134 Wash.2d 1, 9, 948 P.2d 1280 (1997). The trial court is tasked with resolving issues of credibility and weighing evidence, and we give great deference to its...