State v. Scheibe

STATE OF WASHINGTON, Respondent, v. JAMES ROBERT SCHEIBE, Appellant.

No. 81839-2-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

November 16, 2020

UNPUBLISHED OPINION

CHUN, J. — A jury found James Scheibe guilty of second degree assault, unlawful possession of a firearm in the second degree, domestic violence court order violation, and two counts of reckless endangerment. On appeal, he says the trial court erred in denying his motion to suppress statements made to law enforcement because reasonable suspicion did not support his Terry¹ stop. But Scheibe waived this argument. And he does not establish ineffective assistance of counsel or the deprivation of his right to present a defense. We thus affirm.

I. BACKGROUND

A. Facts

1. The incident

Scheibe and M.S. were in a relationship. They have a son, W.S. After the relationship, M.S. obtained a protective order against Scheibe that prohibited him from contacting her or W.S., or owning a firearm. Yet the three still saw each other despite the order because M.S. wanted her "son's father to be in his life."

One day, M.S. took W.S. to a relative's property where Scheibe was staying. M.S. testified that she went there to check on a relative with an injury; Scheibe testified that she went there seeking drugs. While M.S. was still in her vehicle, they began arguing about whether Scheibe could see W.S. the next day for Father's Day. M.S. testified that at that point, Scheibe pulled out a gun and pointed it at her. Scheibe testified that he did not do so and did not have a gun that day. He did say that he punched her vehicle.

M.S. quickly tried to pull out of the driveway with W.S. in the back seat. She testified that Scheibe was standing in front of her vehicle with a gun, and she was reversing out of the driveway away from him. Scheibe testified that as M.S. turned her vehicle around, he stepped in front of it to stop her from leaving, and she intentionally hit him with her vehicle. M.S. then heard a gunshot; she did not see Scheibe firing a gun. Scheibe told a deputy that the gun was in his hip holster and discharged when M.S. hit him; but he testified at trial that he did not have a gun and did not fire one that day.

Scheibe then jumped onto M.S.'s vehicle while it was moving, though they dispute which part of it he jumped onto. M.S. testified that in doing so, Scheibe blocked her view and she was unable to see an oncoming vehicle. The vehicles collided. Multiple neighbors called 911 to report an accident and a gunshot. One neighbor testified that after the accident, he heard M.S. ask Scheibe why he was shooting at her.

2. The initial seizure and later arrest

Several Clark County Sheriff deputies arrived and used a squad car as a "rolling bunker" to approach the scene. Unprompted, Scheibe walked into the middle of the road with his hands in the air. The deputies immediately seized him and placed him in handcuffs while they assessed the scene. They patted Scheibe down to check for weapons. They found knives, syringes, and a shoulder holster but no gun. The deputies searched the area and found a gun under a nearby container. They also recovered a spent shell casing at the scene. A deputy testified at trial that it appeared to be from the gun that they found.

After handcuffing Scheibe, Deputy Eric Swenson read him his Miranda² rights and told him he was not yet under arrest. Then, Scheibe made three sets of statements to the deputies.

First, Scheibe answered a series of questions from Swenson.

Second, about 30 minutes after they handcuffed him, deputies placed Scheibe under arrest and took him to a squad car. Scheibe asked Swenson whether he could see or speak with M.S. or W.S. and the deputy denied the request.

Third, on the way to the Clark County Law Enforcement Center, Scheibe made the unsolicited statement to Deputy Thomas Maxfield that he was only trying to see his child. Maxfield asked him some follow up questions and Scheibe told him that M.S. was at the property that day to "score" somemethamphetamine, she had tried to run him over, and when she hit him with her vehicle, "the gun went off."

B. Procedural History

The State ultimately charged Scheibe with second degree assault, unlawful possession of a firearm in the second degree, domestic violence court order violation, and two counts of reckless endangerment.

Before trial, Scheibe moved to suppress the three sets of his statements, arguing that law enforcement obtained them in violation of Miranda. The trial court suppressed the first set of statements, concluding that Scheibe did not waive his Miranda rights with respect to them, but it admitted the second and third sets, concluding that he impliedly waived Miranda before making them.

During hearings on the suppression issue, Scheibe says that when deputies handcuffed him, an arrest occurred. And he contended that the deputies lacked probable cause to arrest him and sought exclusion of his statements on that ground. The State responded that the initial seizure constituted a lawful Terry stop and not an arrest. Scheibe did not respond to this contention; he did not argue that any Terry stop was unsupported by reasonable suspicion. The trial court determined that a Terry stop occurred when deputies handcuffed Scheibe, that the stop was lawful, and that a lawful arrest followed. Based on these determinations, the trial court concluded that law enforcement did not obtain Scheibe's statements unlawfully and denied his motion to suppress his second and third sets of statements.

During the State's case-in-chief, M.S., neighbors, and responding deputies testified. M.S. testified that she had seen Scheibe throw the gun under the container where the deputies found it. She identified the gun as the one Scheibe pointed at her. The trial court admitted the gun, the shell casing, and the shoulder holster into evidence.

During the defense's case-in-chief, Scheibe and his girlfriend, Charlotte Frias, testified. As mentioned above, Scheibe denied possessing a gun, "pulling" one on M.S., or shooting one on the date of the incident. Frias testified that the gun belonged to her former boyfriend, Zachary Randall.³ To argue that Randall was framing him, Scheibe sought to introduce testimony that Randall had tried to frame him in the past by accusing him of taking the same gun. The trial court excluded the testimony.

A jury found Scheibe guilty on all counts. He appeals.

II. ANALYSIS

A. Terry Stop and Later Statements

Scheibe says that law enforcement lacked reasonable suspicion for his Terry stop, thereby rendering the statements he made later inadmissible. He thus claims the trial court erred in denying his motion to suppress the statements.⁴ The State counters that Scheibe cannot raise this issue for the firsttime on appeal. Scheibe does not respond to the State's argument or otherwise argue a lack of waiver. The State also says that reasonable suspicion supported the Terry stop. We conclude that Scheibe waived this argument.

We generally "refuse to review any claim of error which was not raised in the trial court." RAP 2.5. Exceptions to this rule include: "(1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, and (3) manifest error affecting a constitutional right." RAP 2.5. For us to conclude such an exception applies to a claim of error, the appellant must explain how it so applies. See State v. Lindsey, 177 Wn. App. 233, 247, 311 P.3d 61 (2013) (declining to address a claim of error when the party failed to argue any exception to RAP 2.5(a) applied). To benefit from the third exception—the only one that could conceivably apply here—an "appellant must 'identify a constitutional error and show how the alleged error actually affected the [appellant]'s rights at trial.'" State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011) (alteration in original) (quoting State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)).

Scheibe failed to preserve his claim of error before the trial court. He moved to suppress the three sets of statements described above. But his motion focused almost entirely on the argument that he had not waived his Miranda rights.⁵ And as discussed above, at the hearings on the motion, Scheibe alsosaid that his initial seizure—when deputies arrived at the scene and handcuffed him—constituted an arrest unsupported by probable cause. At no point did Scheibe say, as he does on appeal, that the detention was a Terry stop unsupported by reasonable suspicion. We may thus decline to address this claim of error unless an exception applies.

As noted above, on appeal, Scheibe offers only silence on the waiver issue. He does not argue that a RAP 2.5 exception applies, and though he identifies a Fourth Amendment seizure issue, he does not identify how the claimed error was manifest. An appellant must make these arguments explicitly. See Lindsey, 177 Wn. App. at 247 (declining to address a claim of error when the party failed to argue any exception to RAP 2.5(a) applied), State v. Bertrand, 165 Wn. App. 393, 402, 267 P.3d 511 (2011) (declining to address appellant's claim of error where she neither "argues nor shows that the instructional error was 'manifest'"). We may thus decline to address Scheibe's argument that reasonable suspicion did not support the Terry stop.⁶

B. Ineffective Assistance of Counsel (IAC)

Scheibe says that his defense counsel performed ineffectively by failing to move for suppression of the shoulder holster. The State says it does not directly address this issue because it depends on whether we determine that an illegal seizure of Scheibe occurred. We conclude that Scheibe has not established an IAC claim.

To show ineffective assistance, a defendant must establish that defense counsel's representation was deficient and that the deficient representation was prejudicial. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011). Proving that counsel's performance was deficient requires meeting a...