State of Washington v. Ronald Keith Middlebrooks ( 2024 )

Filed
Washington State
Court of Appeals
Division Two
June 25, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 58213-9-II
Respondent,
v.
RONALD KEITH MIDDLEBROOKS, UNPUBLISHED OPINION
Appellant.
GLASGOW, J.—In September 2020, Officer Nile Teclemariam stopped Ronald
Middlebrooks for driving without his headlights on in the middle of the night. Middlebrooks was
alone in the car and Teclemariam saw Middlebrooks moving around in the car after he pulled
Middlebrooks over. When contacted, Middlebrooks provided a false name and date of birth.
Officers ultimately arrested Middlebrooks, got a search warrant, and searched Middlebrooks’ car.
They found a pistol, loaded magazines, and extra ammunition in various bags and compartments
in the car, all within arms’ reach of Middlebrooks. The State charged Middlebrooks with unlawful
possession of a firearm in the first degree among other things.
On the morning of the second day of trial, the State produced for the first time a recorded
jail call between Middlebrooks and an unidentified woman that the State believed was helpful to
its case. The State sought to admit the recording and Middlebrooks objected because the State had
violated CrR 4.7 and the court’s pretrial orders governing discovery by producing the recording
after the omnibus hearing. The trial court admitted the recording because Middlebrooks could not
No. 58213-9-II
articulate specifically how the late production was prejudicial to his defense. The jury found
Middlebrooks guilty, and the court imposed a $500 crime victim penalty assessment.
Middlebrooks appeals his conviction for unlawful possession of a firearm, arguing that the
State failed to present sufficient evidence of knowing possession of the firearm. He further argues
that the trial court abused its discretion when it admitted the recording of the jail call. Finally, he
asks us to remand to strike the crime victim penalty assessment from his judgment and sentence.
The evidence is sufficient to support Middlebrooks’ conviction and the trial court did not
abuse its discretion by admitting the audio recording of the jail call. We affirm Middlebrooks’
conviction but remand for the trial court to strike the crime victim penalty assessment.
FACTS
I. MIDDLEBROOKS’ ARREST AND SEARCH OF THE CAR
In September 2020, Middlebrooks was driving a Nissan1 without headlights on at
approximately 3:00 AM. Lakewood Police Officer Nile Teclemariam conducted a traffic stop.
Once he and Middlebrooks came to a stop, Teclemariam turned his vehicle’s spotlight on
Middlebrooks’ car. From inside his police car, Teclemariam saw Middlebrooks move from the
driver’s seat toward the passenger area of his car. That movement caused Teclemariam to call
another officer to the scene. Teclemariam then waited for approximately one minute and thirty
seconds until Lakewood Police Officer Cody White arrived.
While he waited, Teclemariam continued to observe Middlebrooks. He testified that during
that time, he saw Middlebrooks check his rearview mirror, then move his body into the center
console area where he “crept down, [then] moved back over [into the driver’s seat] and looked
1
Middlebrooks was not the registered owner of the car he was driving.
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No. 58213-9-II
directly out of the side-view mirror.” Verbatim Rep. of Proc. (VRP) (Apr. 6, 2023) at 181-82.
When Officer White arrived, Teclemariam approached the car and asked Middlebrooks for his
license, registration, and proof of insurance. Middlebrooks responded that he had none of those
documents and gave Teclemariam a name and date of birth. Middlebrooks was sweating and
seemed hesitant to share his personal information. Because Middlebrooks seemed overly nervous,
Teclemariam required him to exit his car.
Teclemariam asked Middlebrooks if there were any weapons in the car. Middlebrooks
responded that there were none that he was aware of. Teclemariam then checked the Department
of Licensing database for the name and date of birth Middlebrooks provided and discovered that
the person who came up was obviously a different height and weight. Teclemariam concluded
Middlebrooks had lied about his identity. Further, White realized he recognized Middlebrooks
from White’s time working at the Department of Corrections.
The officers arrested Middlebrooks and recited a Miranda2 warning. Middlebrooks then
told the officers his real name. Teclemariam discovered that Middlebrooks had a suspended
driver’s license and an outstanding warrant for his arrest. He then applied for a search warrant for
Middlebrooks’ car, which was executed the following day.
In the car, police found a loaded pistol magazine in the center console. They found
Middlebrooks’ identification in a small pouch tucked in the backside pocket of the front passenger
seat. They also found a backpack on the floorboard behind the passenger seat. The backpack
contained a holstered pistol with another loaded magazine as well as a smaller athletic bag. The
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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No. 58213-9-II
bag contained spare ammunition for the pistol and black latex gloves. The backpack also contained
men’s clothing, which were mixed amongst the other contents.
The officers testified consistent with these facts and the trial court admitted photographs
of the car and its contents, including the backpack, the gun, and the men’s clothes.
II. LATE PRODUCTION OF JAIL CALL RECORDING
Middlebrooks’ jury trial began in April 2023. On the morning of the second day of trial,
Officer Teclemariam shared with the prosecutor a recording from the Nisqually jail of a call
between Middlebrooks and an unidentified woman.
In the call, Middlebrooks told the woman that police “got [his] toy,” they took his “toy and
searched it.” Ex. 36. He also said the backpack belonged to “Michael,” who left it in his car. Id.He further stated that shortly before he was pulled over he had changed clothes.
Teclemariam explained under oath why it took him until the second day of trial to share
the recording. He generally would conduct further investigation into cases that involved firearms.
So, a few weeks after Middlebrooks was arrested in September 2020, Teclemariam listened to
several of his jail calls. Teclemariam created notes about the recordings after he listened to them.
At the time, he did not think to notify prosecutors about the call because during the COVID-19
pandemic, the State delayed charging nonviolent offenses, so it did not charge Middlebrooks with
unlawful possession at that time.
However, his testimony on the first day of trial prompted Teclemariam to review the notes
he took on Middlebrooks’ jail call over the weekend between the first and second days of
Middlebrooks’ trial. He believed that one recording was pertinent to the unlawful possession
charge, so he sent it to the prosecutor on the morning of the second day.
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The State sought admission of the recording. Middlebrooks objected to admission of the
recording because of its late production. He asked the court to exclude the recording.
The trial court held a lengthy hearing where the parties argued about admission of the
recording. Defense counsel argued that the State’s late production of the recording was “prejudicial
to the defendant that has to prepare a case for trial and formulate some kind of strategy,” because
Middlebrooks was “blindsided with this . . . evidence on the last day of trial.” 2 VRP (Apr. 10,
2023) at 175. The parties and the trial court pointed out that various statements in the recording
could be interpreted as being helpful to both the State and the defense. For example, it would be
helpful to the State if “toy” referred to the gun and the clothes in the backpack were connected to
Middlebrooks, who spoke about changing his clothes in the recording. But Middlebrooks pointed
out that “toy” would more logically refer to the car Middlebrooks was driving because he said his
“toy” was searched, and he plainly said in the recording that the backpack belonged to someone
else at a time before he was ever charged with unlawful possession of the gun.3 Defense counsel
argued that to the extent the recording was helpful to the defense, it could have influenced
Middlebrooks’ strategic decisions, for example, his decision whether or not to testify. Thus,
Middlebrooks argued he suffered prejudice from the late disclosure.
The trial court admitted the recording despite Middlebrooks’ objection. The court
concluded that the State had failed to fulfill its discovery obligations because it did not uncover
and produce the recording earlier. However, the delayed production of the recording was not
willful. Further, the court explained that it did not find any prejudice because Middlebrooks was
3
Middlebrooks was originally held on a different charge, and the State charged Middlebrooks with
unlawful possession of a firearm after the recorded conversation occurred.
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No. 58213-9-II
aware of the call and its contents because he participated in it. The court gave defense counsel
another chance to identify prejudice, but the court remained unswayed after Middlebrooks could
not articulate specifically how the late production negatively affected his defense strategy.
The jury heard the recording of the jail call, and the State replayed the call during closing.
The State argued in closing that the reference in the call to a “toy” could have been code for the
gun. It also relied on the statement that Middlebrooks changed clothes shortly before he was pulled
over. Defense counsel countered that the reference to searching Middlebrooks’ “toy” did not make
sense unless he was actually referring to his car, which was searched. And counsel drew the jury’s
attention to Middlebrooks’ statement that the backpack was not his, as well as the fact that this
statement could not have been motivated by the charge for unlawful possession of a firearm, which
occurred much later.
The jury found Middlebrooks guilty of unlawful possession of a firearm in the first degree.
The trial court imposed a $500 crime victim penalty assessment at sentencing.
ANALYSIS
I. SUFFICIENCY OF THE EVIDENCE
Middlebrooks argues that the State failed to meet its burden to prove knowing possession
of the firearm. According to Middlebrooks, “the State demonstrated Middlebrooks’ mere
proximity to the weapon, and nothing more.” Opening Br. of Appellant at 12. We disagree.
A. Constructive Possession
Evidence to support a conviction is sufficient if, when viewing the evidence in the light
most favorable to the State, any rational trier of fact could find guilt beyond a reasonable doubt.
State v. Bergstrom, 199 Wn.2d 23, 40-41, 502 P.3d 837 (2022). In arguing that the evidence is
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No. 58213-9-II
insufficient, the defendant admits the truth of the State’s evidence and all reasonable inferences
drawn from that evidence. Id. at 41. We defer to the jury as to the credibility of witnesses and the
persuasiveness of the evidence. Id. Further, circumstantial and direct evidence are considered
equally reliable. State v. Cardenas-Flores, 189 Wn.2d 243, 266, 401 P.3d 19 (2017).
RCW 9.41.040(1)4 states that “[a] person, whether an adult or juvenile, is guilty of the
crime of unlawful possession of a firearm in the first degree, if the person . . . possess[es] . . . any
firearm after having previously been convicted . . . of any serious offense.” Middlebrooks
stipulated that he had previously been convicted of a serious offense under the statute.
Middlebrooks disputes whether there was sufficient evidence that he knowingly possessed the
firearm found in his car.
To be guilty of unlawful possession of a firearm, possession must be “knowing.” State v.
Anderson, 141 Wn.2d 357, 366, 5 P.3d 1247 (2000). Either actual or constructive possession can
constitute knowing possession. State v. Chouinard, 169 Wn. App. 895, 899, 282 P.3d 117 (2012).
Here, the State sought to prove Middlebrooks’ guilt via constructive possession.
Constructive possession occurs where a defendant exerts dominion and control over an
item. State v. Davis, 182 Wn.2d 222, 234, 340 P.3d 820 (2014) (Stephens, J., dissenting); id. at
232-33 (Wiggins, J., and three additional justices concurring with Justice Stephens’ opinion on
whether evidence was sufficient for constructive possession). Whether a person had dominion and
control is determined by the totality of the circumstances. Id. at 234 (Stephens, J., dissenting).
While proximity to the item and ownership of the premises may be considered, these factors are
not alone sufficient. Id.
4
We cite the current statute as the relevant language has not changed.
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No. 58213-9-II
Multiple cases have evaluated evidence of constructive possession where contraband was
found in a car. Factors weighing against constructive possession include when a passenger is not
in control of the car or the contraband inside it. For example, in Chouinard, the defendant rode in
the backseat of a car as a passenger. Chouinard, 169 Wn. App. at 897. He knew a firearm was
behind the backseat. Id. at 898. However, evidence was insufficient to prove constructive
possession because there were multiple other occupants and there was no evidence Chouinard was
in control of the car or firearm. Id. at 900-03.
In contrast, where the defendant controlled the car, a jury can infer that the defendant
constructively possessed the item within it. For instance, “[a]n individual’s sole occupancy and
possession of a vehicle’s keys sufficiently supports a finding that the defendant had dominion and
control over the vehicle’s contents,” even where the firearm was not visible because it was inside
a bag. State v. Bowen, 157 Wn. App. 821, 828, 239 P.3d 1114 (2010). Ownership of the car is
relevant. See id.; see also State v. Turner, 103 Wn. App. 515, 523-34, 13 P.3d 234 (2000).
However, given that we consider the totality of the circumstances, ownership is not necessary,
especially where the defendant was the sole person in the car, not a passenger. See State v. Listoe,
15 Wn. App. 2d 308, 327, 475 P.3d 534 (2020).
B. The State Put Forth Sufficient Evidence
Here, Middlebrooks points to facts that, in his view, show that the State failed to meet its
burden: he did not own the car he was driving, there was a woman’s hairbrush in the center console,
there was no evidence regarding how long he had been driving the car before he was arrested, the
firearm was not in plain sight at the time of the traffic stop, no fingerprints were found on the gun,
and Middlebrooks never claimed he owned or was aware of the gun.
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No. 58213-9-II
But Middlebrooks was in control of the car; he was the sole occupant and driver. Officer
Teclemariam observed Middlebrooks moving about his vehicle for a minute and a half before
approaching him. A pistol with a loaded magazine, a spare loaded magazine, and extra ammunition
were all found in containers within arms’ reach of Middlebrooks. Men’s clothing was found in the
backpack that contained the pistol, and according to the jail call recording, Middlebrooks had
recently changed clothes. Although in the same call he claimed the backpack belonged to
“Michael,” who had forgotten it, we view conflicting evidence in the light most favorable to the
State. We do not reweigh conflicting evidence ourselves. Cardenas-Flores, 189 Wn.2d at 266.
Considering the totality of the circumstances, and viewing the evidence in the light most
favorable to the State, we conclude that a rational jury could infer from the evidence that
Middlebrooks constructively possessed the pistol, even though the evidence was conflicting.
II. LATE PRODUCTION OF THE AUDIO RECORDING OF THE PHONE CALL
A. Production of Evidence in a Criminal Case
CrR 4.7(a)(1)(ii) requires the prosecuting attorney to disclose any written or recorded
statements to the defendant no later than the omnibus hearing. The State produced the recording
of Middlebrooks’ jail call on the second day of trial. Thus, the trial court correctly found that the
State failed to fulfill its discovery obligations and violated both CrR 4.7 and its pretrial orders.
However, the court admitted the recording.
Where a party fails to comply with a discovery rule, “the court may order such party to
permit the discovery of material and information not previously disclosed, grant a continuance,
dismiss the action or enter such other order as it deems just under the circumstances.” CrR
4.7(h)(7)(i). “Discovery decisions based on CrR 4.7 are within the sound discretion of the trial
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No. 58213-9-II
court.” State v. Hutchinson, 135 Wn.2d 863, 882, 959 P.2d 1061 (1998). Discretion is abused
“when the trial court’s decision is manifestly unreasonable, or is exercised on untenable grounds
or for untenable reasons.” State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993). “Absent
some showing of actual prejudice, we will not interfere with the trial court’s exercise of discretion
in denying sanctions pursuant to CrR 4.7(h)(7)(i).” State v. Bradfield, 29 Wn. App. 679, 682, 630
P.2d 494 (1981). Relevant here, excluding evidence is an extraordinary remedy that courts should
apply narrowly where less severe remedies, like a continuance, would be meaningless or serve no
purpose. Hutchinson, 135 Wn.2d at 881-82.
B. Middlebrooks Does Not Demonstrate That the Trial Court Abused Its Discretion
Middlebrooks argues that the trial court should have excluded the recording. He states
generally that the late production left him unable to adequately prepare his defense and deprived
him of the ability to use the recording to negotiate a plea bargain. He further alleges that the trial
court failed to conduct the appropriate analysis to determine whether to grant an exclusion.
However, he does not explain why a less severe remedy would have been ineffective so as to
require an extraordinary remedy like exclusion. In fact, the trial court denied relief because it
believed that there was insufficient prejudice to warrant even a continuance. Further, he fails to
illustrate specifically how the late production of the recording changed his defense strategy in light
of the fact that portions of it favored both the prosecution and his defense.
Middlebrooks claims he suffered prejudice similar to that in State v. Sherman, 59 Wn. App.
763, 801 P.2d 274 (1990). In Sherman, the trial court granted the defendant’s motion to dismiss.
Id. at 766. By the time the trial started, the State had neither provided a witness list to the defendant
nor disclosed records that were subject to an omnibus order. Id. Further, the State sought to expand
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No. 58213-9-II
the witness list after trial had already commenced. Id. Notably, a continuance was insufficient to
cure the remedy because the trial had already been extended seven times. Id. at 769. Thus, Division
One upheld the trial court’s decision to grant a motion to dismiss. Id. at 773.
Sherman is distinguishable. First, the defendant was faced with far more egregious
discovery violations and mismanagement than Middlebrooks and Sherman involved application
of CrR 8.3, addressing prosecutorial misconduct, as well as CrR 4.7. Here, the State was very late
to produce the recording, but the trial court found that the State did not act willfully. The recording
began with a plain statement that the call was being recorded and Middlebrooks does not deny that
he made the call or that he knew the recording existed.
Second, the court in Sherman upheld the trial court’s dismissal of that case. It did not hold
that the trial court would have abused its discretion had it decided not to dismiss the case or adopted
a lesser sanction. Thus, Sherman did not set a baseline for when discovery violations require relief.
Here, we must decide if Middlebrooks faced prejudice to the extent that a trial court abused its
discretion when it admitted the late disclosed evidence. Therefore, Sherman is of little help.
The State argues that State v. Barry, 184 Wn. App. 790, 339 P.3d 200 (2014), is more
applicable. In Barry, the State produced a recording of the defendant’s confession five days before
the start of the trial. Id. at 795. The defendant argued that if his counsel had known about the
recording during plea negotiations, counsel would have advised the defendant differently on
whether to accept the State’s plea offer. Id. at 797. Division Three held that the recorded confession
was not prejudicial in part because he was aware he had confessed and knew his confession was
recorded. Id. at 798.
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No. 58213-9-II
Here, although the circumstances are not exactly the same, like the court in Barry, we do
not find prejudice where Middlebrooks was aware that his call was recorded, he knew who he was
talking to, and he knew what was said in the call. But independent of similarities to Barry, we also
find that the equivocal nature of the evidence in this case supports a lack of prejudice.
The recording contained some statements that supported the State, for example, the
admission that Middlebrooks changed clothes just before he was pulled over. But it also contained
some statements that supported Middlebrooks’ version of events, for example, his statement that
the backpack belonged to someone else. Both parties used portions of the call to support their
closing arguments to the jury.
In light of the fact that Middlebrooks used the recording to strengthen his defense, it is
difficult for him to show how he was prejudiced by its late disclosure and admission. Notably,
Middlebrooks claims the delayed disclosure impeded his ability to strategize and present his
defense, but he has never explained exactly how. Defense counsel suggested that Middlebrooks
could have summoned the other person on the call as a defense witness if he had earlier access to
the recording. But Middlebrooks fails to articulate how her testimony would have helped his case.
Middlebrooks also argues that plea negotiations were impeded by the late production of the
recording. But here, too, he does not explain how. He merely states that it deprived him of a “full
understanding” of the evidence. Opening Br. of Appellant at 24. Again, the recording contained
both helpful and damaging statements. Middlebrooks’ broad arguments about prejudice fail to
establish any specific prejudice Middlebrooks suffered from the late disclosure of the recording.
Although it may have also been within the trial court’s discretion to exclude the recording,
because Middlebrooks has not demonstrated prejudice, he has not shown that the trial court abused
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No. 58213-9-II
its discretion when it admitted the recording despite the State’s delay in producing it. Thus, we
decline to reverse on this basis.
III. CRIME VICTIM PENALTY ASSESSMENT
At sentencing, the trial court imposed a $500 crime victim penalty assessment. In 2023,
the legislature amended RCW 7.68.035 to prohibit courts from imposing the crime victim penalty
assessment on indigent defendants as defined in RCW 10.01.160(3). LAWS OF 2023, ch. 449, §
1(4). We have held that recent amendments to statutes governing legal financial obligations apply
retroactively to matters pending on direct appeal. State v. Ellis, 27 Wn. App. 2d 1, 16, 530 P.3d
1048 (2023). The State concedes that Middlebrooks meets the indigency requirements and the
crime victim penalty assessment should be stricken. We accept the State’s concession and
therefore remand for the trial court to strike the crime victim penalty assessment.
CONCLUSION
We affirm Middlebrooks’ conviction but we remand for the trial court to strike the crime
victim penalty assessment.
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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.
GLASGOW, J.
We concur:
MAXA, P.J.
PRICE, J.
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