State Of Washington, V. Lewis Anthony Scheinost ( 2022 )

Filed
Washington State
Court of Appeals
Division Two
March 8, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 55334-1-II
Respondent,
v.
LEWIS ANTHONY SCHEINOST, UNPUBLISHED OPINION
Appellant.
PEÑALVER, J.P.T.1 – Lewis Scheinost appeals his convictions of obstructing a law
enforcement officer and unlawful possession of a controlled substance. The convictions arose out
of an incident in which a police officer attempted to stop Scheinost for questioning, believing that
Scheinost may have been a suspected shoplifter. Scheinost was riding a bicycle, and sped up when
the officer asked him to stop. The officer pursued Scheinost for 20 feet before apprehending him
and arresting him for obstruction. Upon a search incident to arrest, Officer Morine found a
controlled substance and drug paraphernalia. Following a bench trial, Scheinost was convicted of
obstructing a law enforcement officer and unlawful possession of a controlled substance.
Scheinost argues that the officer did not have enough information to conduct a lawful
Terry2 stop. In addition, Scheinost argues that any delay caused by his failure to stop was too
1
Judge Peñalver is serving as a judge pro tempore of the court pursuant to RCW 2.06.150.
2
Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
No. 55334-1-II
insignificant to be a considered an obstruction, and that even if the delay were significant enough,
he was still not guilty of obstruction because RCW 9A.76.020 does not impose an obligation to
proactively cooperate with a police investigation. Finally, Scheinost contends that his conviction
for unlawful possession of a controlled substance must be vacated in accordance with Blake.
We conclude that, regardless of any authority to order a Terry stop and any duty to obey
that order, the delay in this case was too insignificant to warrant an obstruction conviction. We
also agree that under State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021), Scheinost’s conviction
of unlawful possession of a controlled substance must be vacated, but this issue is moot because
the trial court has already vacated Scheinost’s unlawful possession of a controlled substance
conviction. Accordingly, we reverse and remand to vacate Scheinost’s conviction for obstruction
of a law enforcement officer.
FACTS
On August 30, 2019, Officer Morine of the Shelton Police Department received a call from
dispatch informing him that a shoplifting incident at the Shelton Safeway had “just occurred.”
Clerk’s Papers (CP) at 89. Dispatch provided Officer Morine with a description of the suspect, and
Officer Morine responded to the area to help search for the suspect.
Within a few minutes of the initial 911 call, Officer Morine observed Scheinost riding his
bike approximately four blocks from the Safeway. Officer Morine believed that Scheinost matched
the suspect’s description.
Officer Morine concluded that he had grounds for a lawful Terry stop for third degree theft.
He therefore activated his emergency lights and pulled into the opposite lane to stop in front of
Scheinost. Officer Morine got out of his vehicle and yelled at Scheinost to stop. Scheinost began
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to slow down as he approached the officer, but he did not stop, so Officer Morine again yelled for
Scheinost to stop. Scheinost told the officer that he did not believe that the officer had a reason to
stop him and began to peddle faster.
Officer Morine pursued Scheinost, caught up to him, and pushed him against a fence to
stop him, all within 20 feet of the start of the chase. Having stopped Scheinost, Officer Morine
handcuffed him and told him that he was under arrest for obstructing a law enforcement officer.
During a search incident to his arrest, Officer Morine discovered that Scheinost had suboxone,
later discovered to contain buprenorphine, and drug paraphernalia on him. The Safeway security
guard arrived at the scene and advised the police that Scheinost was not the suspected shoplifter.
The State charged Scheinost with unlawful possession of a controlled substance and
obstructing a law enforcement officer. Scheinost moved to suppress the suboxone and drug
paraphernalia, and to dismiss the unlawful possession of a controlled substance charge, arguing
that Officer Morine did not have a sufficient basis for a valid Terry stop and that the search incident
to arrest for obstruction was unlawful because Scheinost was not obligated to respond to the
officer’s orders to stop. The trial court denied the motion.
For the trial, Scheinost stipulated to the facts in the police report. Following a bench trial,
the trial court found Scheinost guilty on both charges.
Scheinost appeals his convictions.
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No. 55334-1-II
DISCUSSION
I. OBSTRUCTION OF AN OFFICER
Scheinost argues that any delay caused by his decision not to stop was insufficient to be
considered obstruction. And even if the delay were significant enough, he still did not violate RCW
9A.76.020 because the statute does not impose a duty to cooperate with police investigations.
Focusing on the short delay at issue in this case, we conclude that Scheinost did not violate
RCW 9A.76.020.
A. LEGAL PRINCIPLES
1. RCW 9A.76.020
“A person is guilty of obstructing a law enforcement officer if the person willfully hinders,
delays, or obstructs any law enforcement officer in the discharge of his or her official powers or
duties.” RCW 9A.76.020.
2. Sufficiency of the Evidence
The State must prove every element of the crime beyond a reasonable doubt. State v. Rich,
184 Wn.2d 897, 903, 365 P.3d 746 (2016). The evidence is sufficient to support a conviction if,
beyond a reasonable doubt when viewing the evidence in the light most favorable to the State, any
rational trier of fact can find the essential elements of the crime. Id. Every inference “must be
drawn in favor of the State and interpreted most strongly against the defendant.” State v. Salinas,
119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Following a bench trial, an appellate court’s review
is limited to whether substantial evidence supports the trial court’s findings of fact and whether
those findings support the trial court’s conclusions of law. State v. Homan, 181 Wn.2d 102, 105-
06, 330 P.3d 182 (2014).
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B. ANALYSIS
Relying on State v. E.J.J., 183 Wn.2d 497, 354 P.3d 815 (2015), Scheinost argues that even
if he were required to stop for the officer, any delay that he caused by not stopping was too minor
to be considered obstruction. In E.J.J., the defendant appealed his conviction for obstructing a law
enforcement officer that stemmed from a “verbal interaction” he had from his front door with law
enforcement officers in his front yard. 183 Wn.2d at 499-501. On appeal, he argued that RCW
9A.76.020 was unconstitutional as applied to his behavior. Id. at 501. Even though the defendant’s
behavior prompted an officer to escort the defendant to the home, the court explained that “minor
delay [wa]s of no import” and reversed the conviction for insufficient evidence. Id. at 506, 508.
In reversing the conviction, E.J.J. focused on the mere inconvenience of the delay that the
defendant had caused: “ ‘[s]tates cannot consistent[ ] with our Constitution abridge . . . freedoms
to obviate slight inconveniences or annoyances’ ” in order to achieve “a more convenient
resolution to the situation.” Id. at 506 (first alternation in the original) (quoting Giboney v. Empire
Storage & Ice Co., 336 U.S. 490, 501-02, 69 S. Ct. 684, 93 L. Ed. 834 (1949)). “ ‘[I]nconvenience
cannot, taken alone, justify an arrest [for obstruction].’ ” Id. (alternations in the original) (quoting
Wilson v. Kittoe, 337 F.3d 392, 401 (4th Cir. 2003)).
Here, even assuming that Officer Morine had the authority to order a Terry stop and there
existed a duty to comply with the order to stop, there still only appears to be a minor delay of no
import. As in E.J.J., such a minor delay is insufficient to support an obstruction conviction. The
trial court made no specific findings of facts on any delays or hindrances that Scheinost caused.
Rather, the court only found that Scheinost failed to follow the officer’s “directions,” Scheinost
increased his speed after another order to stop, and the officer “caught up to Mr. Scheinost and
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removed him from the bicycle.” CP at 109. Furthermore, the police report, to which the parties
stipulated, shows that even as Scheinost sped up on his bike, Officer Morine was able to detain
him within 20 feet.
It is certainly believable that the 20-foot pursuit was an inconvenience to the officer, but a
delay of mere seconds is too insignificant to warrant an arrest for obstruction. We therefore
conclude that the findings that Scheinost merely disregarded a direction and order to stop, resulting
in a minor delay, is insufficient to sustain his conviction of obstructing a law enforcement officer.
II. UNLAWFUL POSSESSION OF CONTROLLED SUBSTANCE
Scheinost argues that under Blake this court must reverse and remand for the trial court to
vacate his conviction for unlawful possession of a controlled substance. Blake declared the statute
criminalizing the possession of a controlled substance to be unconstitutional. 197 Wn.2d at 195.
We have already ruled that the trial court’s order in this case vacating Scheinost’s
conviction for unlawful possession of a controlled substance could be formally entered. RAP
7.2(e); Comm’r’s Ruling (June 15, 2021) (granting the State’s motion). Therefore, this issue is
now moot. Harbor Lands, LP v. City of Blaine, 146 Wn. App. 589, 592, 191 P.3d 1282 (2008) (“
‘A case is moot if a court can no longer provide effective relief.’ ” (quoting Orwick v. City of
Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984)).3
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Scheinost further argues that his two previous convictions for unlawful possession of a controlled
substance must be removed from his offender score and—while the language is ambiguous—
appears to ask us to vacate those convictions as well. Because Scheinost’s only remaining
conviction in this case is to be vacated in its entirety, Scheinost’s offender score is not relevant to
this conviction. Additionally, convictions from earlier cases are not properly before us on this
appeal; therefore, this appeal is not the appropriate mechanism to have those convictions vacated.
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CONCLUSION
We conclude that there was insufficient evidence to support Scheinost’s obstruction
conviction because the delay was too insignificant to be considered obstruction. In addition,
because Scheinost’s unlawful possession of a controlled substance conviction has already been
vacated, the Blake issue he raises is now moot. Accordingly, we reverse the trial court and remand
for Scheinost’s conviction to be vacated.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
PEÑALVER, J.P.T.
I concur:
MAXA, P.J.
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PRICE, J. (dissenting) — Officer Morine ordered Scheinost to stop during what the majority
assumes to be a lawful Terry stop. Rather than comply with the officer’s order, Scheinost
attempted to flee—unsuccessfully, as it turned out, because the officer was able to chase down,
tackle, subdue, and handcuff the defendant fairly quickly. The majority concludes that because of
Officer Morine’s efficiency in apprehending Scheinost, no crime was committed. Because this
conclusion misconstrues the case law and has potentially damaging consequences, I respectfully
dissent.
The majority relies on State v. E.J.J., 183 Wn.2d 497, 354 P.3d 815 (2015), for the principle
that if law enforcement only experiences a “minor delay” in carrying out its duties, then no
obstruction of a law enforcement officer occurs under RCW 9A.76.020. This oversimplifies the
case and contorts its principles in an effort to fit it into a very different context.
E.J.J. involved the question of whether the defendant was guilty of obstruction when he
disrupted police officers’ efforts to investigate the defendant’s sister who was intoxicated and “out-
of-control” outside of the defendant’s residence. Id. at 499-500. The defendant was “calling the
officers abusive names, yelling, and using profanity toward the officers while they were engaged”
in their investigation. Id. at 499. The officers explained to the defendant that they were in the
middle of the investigation and “instructed him multiple times to leave the scene and return to the
house.” Id. at 500. For a period of 10-15 minutes, the officers continued to tell the defendant to
return to his residence and shut the door, but the defendant persisted in “yelling profanities and
calling the officers abusive names.” Id. at 500-01. Eventually, the officers arrested the defendant
for obstruction of a law enforcement officer. Id.
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No. 55334-1-II
In reversing the conviction for obstruction, our Supreme Court found significance in the
First Amendment ramifications of criminalizing the defendant’s abusive speech.
[T]he Court of Appeals found sufficient evidence of obstruction from the fact that an
officer was eventually required to escort E.J.J. back to the home, thus delaying
officers. That E.J.J.’s behavior may have caused a minor delay is of no import.
Although the officer’s request that E.J.J. return to his home . . . might have been an
attempt for a more convenient resolution of the situation, “[s]tates cannot consistently
[sic] with our Constitution abridge those freedoms to obviate slight inconveniences or
annoyances.” In the First Amendment context, we must be vigilant to distinguish
between obstruction and inconvenience.
Id. at 506 (some alterations in original) (quoting Giboney v. Empire Storage & Ice Co., 336 U.S.
490, 501-02, 69 S. Ct. 684, 93 L. Ed. 834 (1949)). Moreover, the decision in E.J.J. emphasized
that conduct and not merely speech was required to establish obstruction. Id. at 502 (“Our cases
have consistently required conduct in order to establish obstruction of an officer.”). The court
concluded by stating, “Where individuals exercise their constitutional rights to criticize how the
police are handling a situation, they cannot be concerned about risking a criminal conviction for
obstruction.” Id. at 508.
Here, Officer Morine’s interaction with Scheinost has no First Amendment implications.
If we assume this was a valid Terry stop, as the majority does, Officer Morine gave a lawful order
to Scheinost to stop. Scheinost responded by accelerating away on his bicycle. Unlike E.J.J.,
Scheinost was not charged for obstruction for exercising his right to yell profanities at the officer.
Rather, he was charged for his conduct—his attempt to flee a lawful order to stop.
The majority minimizes Scheinost’s attempt to run by pointing out that Officer Morine
successfully apprehended Scheinost relatively quickly, within 20 feet, and characterizes this as
only a “minor delay of no import” mirroring the language in E.J.J. Majority Op. at 5. This “minor
delay,” however, had more than minor consequences to Scheinost. During his capture by Officer
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Morine, Scheinost was pushed against a fence, thrown to the ground, a knee shoved in his back,
and forcibly handcuffed. Tying a defendant’s culpability for fleeing a lawful order to either a
stopwatch or a tape measure to gauge the “inconvenience” to law enforcement could incentivize
more of these flee attempts. And, I fear, more violent interactions will be the result.
I would hold that Scheinost’s refusal to stop in response to the officer’s lawful order,
assuming a valid Terry stop, constitutes obstruction. See generally, State v. Mendez, 137 Wn.2d
208, 223, 970 P.2d 722 (1999), abrogated on other grounds by Brendlin v. California, 551 U.S.
249, 127 S. Ct. 2400, 168 L. Ed. 132 (2007) (“Flight from officers where the officers have grounds
a Terry stop and a refusal to halt at their order may constitute obstruction of a public servant under
former RCW 9A.76.020.”). Respectfully, I dissent.
PRICE, J.
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