State of Washington v. John Warren Epps, Jr. ( 2020 )

FILED
JULY 9, 2020
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 36705-3-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JOHN WARREN EPPS, JR., )
)
Appellant. )
PENNELL, C.J. — John Epps Jr. appeals his conviction for second degree unlawful
possession of a firearm. He argues the firearm was seized as a result of an invalid warrant
and he was deprived of his constitutional right to conflict-free counsel. We disagree and
affirm.
No. 36705-3-III
State v. Epps
FACTS
In June 2017, a protection order was issued against John Epps. As a result of the
order, Mr. Epps was required to surrender firearms or concealed pistol licenses in his
possession. Mr. Epps surrendered his concealed pistol license, but he did not turn over
any firearms. He instead completed a declaration of nonsurrender stating he no longer had
any guns in his possession.
Law enforcement came to doubt Mr. Epps’s denial of ongoing gun possession.
Mr. Epps spoke with a law enforcement officer when he surrendered his concealed pistol
license. During that conversation, Mr. Epps admitted he “still had firearms in a, ‘safe’
place because he lived in the woods.” Clerk’s Papers (CP) at 54. Mr. Epps also admitted
he “had firearms in pawn.” Id.
Additional investigation revealed Mr. Epps had been holding a silver and black rifle
when he was served with the original protection order. Officers reviewed local pawn
records that indicated Mr. Epps had pawned 13 different guns between October 6, 2014,
and June 24, 2017. Law enforcement accounted for the whereabouts of some of the 13
guns, but not all of them.
A search warrant was obtained for Mr. Epps’s property based on the foregoing
information. During execution, officers found a shotgun, a .22-caliber rifle, and several
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No. 36705-3-III
State v. Epps
boxes of ammunition. The State charged Mr. Epps with two counts of second degree
unlawful possession of a firearm.
Prior to trial, Mr. Epps filed a motion to suppress evidence. He argued the search
warrant affidavit did not establish probable cause. The trial court denied the motion.
Mr. Epps’s case proceeded to trial. A jury convicted him of possessing the
shotgun, but acquitted him of possessing the rifle.
After the jury’s verdict, the State sought to have Mr. Epps immediately remanded
into custody. In arguing for detention, the State referenced an e-mail it had received from
defense counsel indicating Mr. Epps may have attempted through a third party to tamper
with a witness in a separate case. Defense counsel opposed detention, arguing the
information referenced by the State was stale. The trial court remanded Mr. Epps into
custody. It subsequently imposed a sentence of six months’ imprisonment.
Mr. Epps appeals.
ANALYSIS
The first issue raised by Mr. Epps is the validity of the search warrant. All warrants
must be supported by probable cause. U.S. CONST. amend. IV. In this context, probable
cause requires a reasonable belief—greater than mere suspicion—that evidence of a crime
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No. 36705-3-III
State v. Epps
will be found in the place to be searched. State v. Neth, 165 Wash. 2d 177, 182-83, 196 P.3d
658 (2008).
Mr. Epps claims the warrant lacked probable cause because there was no evidence
of ongoing firearms possession or a nexus between firearms and his residence. According
to Mr. Epps, he merely admitted his firearms were in pawn shops or a safe place. He
claims his admission was insufficient to permit an inference of ongoing personal
possession, let alone ongoing possession at his residence, as opposed to some other safe
location.
Mr. Epps’s arguments fail because they do not accurately reflect the record.
According to the search warrant affidavit, Mr. Epps did not merely tell law enforcement
his firearms were in a “‘safe’ place.” CP at 54. Nor did he only state the firearms were
“in a ‘safe’ place because he lived in the woods.” Id. Instead, Mr. Epps admitted he “still
had firearms in a ‘safe’ place because he lived in the woods.” Id. (emphasis added). That
statement indicated ongoing possession. Mr. Epps was known to have possessed firearms
at his property prior to issuance of the protection order. His statement, coupled with the
failure to surrender any firearms, permitted a reasonable inference that Mr. Epps
continued to possess firearms at his property. See State v. Lyons, 174 Wash. 2d 354, 363,
275 P.3d 314 (2012). The search warrant was valid.
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No. 36705-3-III
State v. Epps
In addition to challenging the search warrant, Mr. Epps argues he was denied his
right to constitutionally effective counsel because his attorney breached a duty of loyalty
by disclosing damaging information to the prosecution. In re Pers. Restraint of Gomez,
180 Wash. 2d 337, 348, 325 P.3d 142 (2014) (“[T]he right to effective assistance of counsel
includes the right to conflict-free counsel.”).
The record fails to support Mr. Epps’s claim. The messages defense counsel shared
with the State were not material to Mr. Epps’s firearms case. At the time they were
mentioned in court, neither Mr. Epps nor his attorney voiced an objection to the
disclosure. We have no information about how or why the messages were disclosed.
Speculating that counsel violated the rules of professional conduct and their constitutional
duties to Mr. Epps by disclosing the messages to the State would be contrary to the
“strong presumption” that counsel’s representation was effective. State v. McFarland,
127 Wash. 2d 322, 335, 899 P.2d 1251 (1995). Mr. Epps has not established a basis for
relief. See id. (“The burden is on a defendant alleging ineffective assistance of counsel to
show deficient representation based on the record established in the [trial court]
proceedings.”). His ineffective assistance of counsel challenge fails.
CONCLUSION
The judgment of conviction is affirmed.
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No. 36705-3-III
State v. Epps
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Pennell, C.J.
WE CONCUR:
______________________________
Korsmo, J.
______________________________
Fearing, J.
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