State v. Newman (In re Pers. Restraint Petition of Newman)

STATE OF WASHINGTON, Respondent, v. ERIC JACOB NEWMAN, Appellant.

In the Matter of the Personal Restraint Petition of ERIC JACOB NEWMAN, Petitioner.

No. 52603-4-II

C/W No. 53963-2-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

May 4, 2021

UNPUBLISHED OPINION

WORSWICK, J. — In this consolidated appeal and personal restraint petition (PRP), Eric Newman contests his convictions for unlawful possession of a controlled substance with intent to deliver—methamphetamine, unlawful possession of a controlled substance—heroin, unlawful possession of a firearm, and unlawful possession of a stolen firearm. He also claims the trial court failed to follow CrR 3.2 and violated constitutional guarantees by requiring him to post bail in the amount at $35,000. In his direct appeal, Newman challenges only his conviction for unlawful possession of a stolen firearm, arguing (1) the prosecutor committed misconduct during closing argument by asking the jury to presume an essential element, (2) his attorney provided ineffective assistance, and (3) the trial court violated Newman's constitutional rights when it failed to follow CrR 3.2 in setting his bail at $35,000. Newman also filed a Statement of Additional Grounds (SAG) for Review. Additionally, the trial court transferred Newman's CrR 7.8 motion to us as a PRP. Finally, Newman filed a supplemental brief arguing that his conviction for unlawful possession of heroin must be dismissed because the statute has been struck down as unconstitutional. We reverse Newman's conviction for unlawful possession of a controlled substance—heroin, and remand to the trial court for resentencing. We affirm his convictions for unlawful possession of a controlled substance with intent to deliver—methamphetamine and unlawful possession of a stolen firearm. We further hold that his pretrial release arguments are moot. Finally, we deny Newman's PRP.

FACTS

I. UNDERLYING FACTS

In February 2018, the Longview Police Department served a search warrant at an apartment in Longview. Newman was observed in the apartment, standing in the space between the living room and the kitchen. Newman and other people present were detained. Police searched a room they believed was Newman's because it contained medical supplies and medical paperwork belonging to him. On the side of the bed, police found a small safe, but could not locate a key. Police forced the safe open. Inside the safe, police found a customized Ruger 1911 .45 caliber semiautomatic pistol without a magazine, a scale with drug residue, various pills, drugs, and drug paraphernalia. A key was later found inside the apartment, near where Newman had been standing. Police also found a glass pipe containing methamphetamine in the room believed to be Newman's. Newman was arrested and transported to the Cowlitz County jail.Because Newman was recovering from a preexisting gunshot wound to his leg, Newman had to be transported to the King County jail system.

A check of Newman's criminal history showed that he had multiple prior felony convictions, which precluded him from lawfully possessing a firearm. The pistol located in the safe found in the apartment had been reported stolen the month before in the neighboring town of Kelso. The lawful owner of that firearm was a veteran of the armed forces and had custom-engraved the pistol as a platoon memorial piece. There were only 36 of their kind produced. In March, Newman was taken back into Cowlitz County. The State charged Newman with unlawful possession of a controlled substance with intent to deliver—methamphetamine¹ with a firearm enhancement, unlawful possession of a controlled substance—heroin,² first degree unlawful possession of a firearm,³ and possession of a stolen firearm.⁴

II. PRETRIAL

Newman attended a preliminary hearing on March 9. At the hearing, Newman was still recovering from the gunshot wound to his leg that required medical attention. The State sought bail in the amount of $50,000 based on Newman's extensive criminal history, including 6 prior warrants, 7 prior misdemeanor convictions, and 14 prior felony convictions. Defense counsel asked the court to release Newman on his personal recognizance, arguing that Newman had amedical appointment to meet with a surgeon regarding his leg wound. The court set bail at $35,000.

At an April 17 omnibus hearing, Newman again asked the court to consider release on personal recognizance or to reduce his bail due to his ongoing medical complications and doctor appointments related to his gunshot wounds. The State argued that Newman should not be released because his prior criminal history and pending firearm charges made him a danger to the community if released. The court agreed with the State and denied Newman's request. Nonetheless, the record suggests, and the State's brief says, that Newman was released from custody at some point between April 17 and August 20.⁵

III. THE TRIAL

Newman's trial commenced on August 29. The State called the lawful owner of the firearm found in the safe, who testified that his pistol was stolen in January and that Newman did not have permission to possess the pistol. The State called the investigating officers from the February arrest, who each testified about the arrest, and the circumstances surrounding finding the safe and gun in what was believed to be Newman's room of the apartment. Detective Benjamin Mortensen testified that when he entered the apartment to conduct the search, Newman was standing "in the living room/kitchen or the space between the two." Report of Proceedings (RP) at 200. Mortensen testified that he believed the bedroom that contained the safe was Newman's room because of the presence of medical supplies and medical discharge paperworkbearing Newman's name. Mortensen testified that the key to the safe was eventually found "right where the defendant was standing when the door initially opened." RP at 270.

Detective Jordan Sanders testified that the key to the safe was eventually located inside the apartment in the middle of the living room between the living room and the kitchen floor. The Court read a factual stipulation to the jury, that Newman was a convicted felon and was on notice on the date of his arrest that he could not lawfully possess or control a firearm due to his conviction.

Newman called Kristen Celeski, who testified that the safe in question was hers, and that she put the safe in that apartment because she was in a "domestic violence situation at [her] house." RP at 344. In her testimony, Celeski accurately described the contents of the safe. She testified that she had left the key on top of the refrigerator at the apartment. Newman did not testify, and there was no direct evidence that Newman knew the firearm in the safe was stolen.

The trial court's instructions to the jury included an instruction that "the lawyers' statements are not evidence," and that the jury must "disregard any remark, statement, or argument that is not supported by the evidence or law in [the court's] instructions." RP at 289. The instructions described the equal value of direct and circumstantial evidence in a criminal trial, defining circumstantial evidence as "evidence from which, based on your common sense and experience, you may reasonably infer something that is at issue in this case." RP at 293. The instructions included a definition of "knowledge," explaining that "[i]f 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 acted with knowledge of that fact." RP at 296-97.

During closing arguments, the prosecutor argued that the jury should find that Newman had knowledge that the firearm was stolen based on the evidence:

The second element is that the defendant acted with knowledge that the firearm had been stolen. So how do we know that he knew that the gun was stolen? First of all, he's a convicted felon who's not allowed to possess firearms, so he can't go into a gun shop and buy a gun.

So if he is obtaining a gun, he has to go through back channels. Back channels frequently include stolen firearms. We also know that this particular gun is fairly unique. I believe Mr. Lorenzo testified that there are only 35 or 36 of this particular firearm with these particular engravings. His platoon essentially ordered them up with the custom engravings and got them when he came back to the States from their tour.

So when you go back into the jury room, this will be with you for your deliberations. Look at these distinctive markings. Look at the engravings. It says Operation Enduring Freedom 13. So this is a very specific firearm that a typical person would wonder about these custom engravings and think this gun belongs to somebody.

So we know that the defendant can't obtain a firearm in the usual way. We know that this is a very distinctive firearm and a reasonable person would conclude under those circumstances that this firearm is stolen, and the jury can infer that if a reasonable person would know something the defendant also can [UNINTELLIGIBLE] to know that.

RP at 365-66 (alteration in original).

Newman did not object to the State's closing arguments at trial. Newman was found guilty of all charged offenses, but the jury did not find evidence to support the firearm enhancement.

Newman appeals his convictions. Newman also filed a motion for relief from judgment under CrR 7.8, which was transferred and accepted by this court as a PRP and consolidated with this case.

ANALYSIS

I. DIRECT APPEAL

A. Prosecutorial Misconduct

Newman argues that the prosecutor committed misconduct during her closing arguments at trial when she urged jurors to draw an impermissible inference, thereby relieving the State of its burden of proof beyond a reasonable doubt for all the elements of the crime of unlawful possession of a stolen firearm. Newman argues that the prosecutor committed misconduct by arguing to the jury that they...