State Of Washington, V. Kavey Jumon Pollard, Sr. ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 84278-1-I
v.
UNPUBLISHED OPINION
KAVEY JUMON POLLARD SR.,
Appellant.
DWYER, J. — Kavey Pollard appeals from the judgment and sentence
entered on the jury’s verdicts convicting him of possession of a stolen firearm
and two counts of unlawful possession of a firearm in the second degree. Pollard
contends that the trial court erred by granting the State’s motion to excuse a
certain juror for cause and that outrageous government misconduct requires
dismissal. He also seeks reversal of his convictions for reasons set forth in a
statement of additional grounds. We affirm Pollard’s convictions, but remand for
the trial court to strike the requirement that he pay a victim penalty assessment
(VPA) from Pollard’s judgment and sentence.
I
In May 2021, Detective Adam Berns of the Bellevue Police Department
Special Operations Group was assigned to monitor social media platforms for
evidence of illegal activity. To accomplish this task, Berns created multiple
fictitious profiles on different social media platforms such as Facebook,
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Instagram, Twitter, and Snapchat using a “random name, random picture.” He
then sent friend requests to whatever users were suggested to him by the social
media platforms. Some people accepted Berns’s friend requests and others did
not. Berns would then search through the photo and video content posted by the
individuals in his “friends” lists.
On May 21, 2021, Berns observed a video posted to a Snapchat account
on his friends list named “kpurkonnect.”1 Snapchat is a social media platform
that allows users to post photos and videos to their personal “story” for 24 hours
before disappearing. The video depicted a man, who was later identified as
Pollard, sitting in a car with a pistol on his lap. Based on his experience, Berns
could see that there was live ammunition in the gun because the magazine was
made of transparent material. The presence of the gun drew Berns’s attention to
that account. A stamp on the video showed that it had been posted 21 hours
previously.
Berns subsequently observed a video posted to the “kpurkonnect” account
showing an individual holding a gun and moving it back and forth to show a red
dot through the mounted sight. The video had been posted 14 hours before
Berns viewed it. Two hours earlier, “kpurconnect” posted a video showing a
person walking through the inside of an apartment building and pointing out
patches on the walls where he said bullet holes had been painted over. Berns
also observed a video posted to the “kpurconnect” account bearing the captions
“Bellevue” and “May 26, 2021” in which the person recording was sitting in a car
1 Pollard later changed the name of his Snapchat account to “kpurconnect1.”
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in the parking lot and recording a dark SUV with tinted windows parked nearby.
A few minutes later “kpurconnect” posted videos showing the same SUV with the
caption “You a Cop?” and a video showing the SUV driving away.
Berns recognized a building in the background of the video as the Sophia
Way Shelter in Bellevue, which is adjacent to the 3040 Bellevue Way
Apartments. Berns, who was aware that other detectives in his unit were
conducting an unrelated surveillance operation in that area, contacted those
detectives and learned that they had observed someone sitting nearby in a
Dodge Charger. The Charger was registered to Pollard. Pollard’s driver’s
license photograph matched the man Berns had observed in the May 21
“kpurconnect” video.
A database search revealed that a no-contact order prohibited Pollard
from possessing, controlling, or owning firearms. Based on the court order and
the Snapchat videos, Berns believed that Pollard had illegally possessed a gun.
Berns then called the manager of the 3040 Bellevue Way Apartments, identified
himself as a police officer, and asked whether they had heard of Pollard. The
apartment manager informed Berns that Pollard worked there as a facilities
manager and provided him with Pollard’s address on file, 5000 Renton Avenue
South in Seattle. The address matched the address on Pollard’s driver’s license
and vehicle registration.
On June 1, 2021, Berns surveilled the Renton Avenue South address in
an unmarked car to confirm Pollard’s presence. Berns then obtained a search
warrant for that address and for Pollard’s car, as well as an arrest warrant for
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Pollard. On June 9, 2021, police initiated a traffic stop and arrested Pollard while
other officers served the search warrant at the Renton Avenue South house.
When informed that police had observed him displaying a firearm on social
media, Pollard stated that he rarely uses social media and does not own any
firearms. Pollard also stated that he lives with his mother at a different address
in Seattle and visits the Renton Avenue South address “maybe once in a blue
moon.”
Chantel McClure, who was at the residence when the warrant was served
and who was listed on the lease, told police that she and Pollard were in a
relationship and that he lived there with her. Investigators discovered three guns
and ammunition in the main bedroom of the Renton Avenue South home. One
was a loaded Smith & Wesson 9mm pistol with a transparent magazine and a
red dot laser sight mounted on top, which was found on top of a nightstand.
Although the serial number had been tampered with, Berns was able to
determine that the gun had been reported stolen in 2020. On top of the same
nightstand, investigators recovered loose ammunition and pieces of mail bearing
Pollard’s name and the Renton Avenue South address. They also found a
driver’s license bearing Pollard’s information in the top drawer, along with men’s
underwear. Investigators also found a loaded Micro Draco AK-47 pistol at the
top of the bedroom closet and a .40 Stoeger Cougar pistol on the bedroom floor
next to the TV stand.
Police test-fired all three guns found in the bedroom and determined that
they were in working order. A fingerprint matching Pollard’s left middle finger
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was found on the AK-47 pistol. A palm print matching Pollard was found on the
magazine of the Cougar pistol, and a latent print found on the same magazine
matched Pollard’s right thumb.
The State charged Pollard by amended information with one count of
possessing a stolen firearm for the Smith & Wesson and three counts of unlawful
possession of a firearm in the second degree, one for each firearm found at the
Renton Avenue South address.
The trial court conducted jury selection remotely, with Pollard’s
agreement. Seven potential jurors chose to appear in person. After
administering a questionnaire, the court excused some potential jurors for
hardship or for cause and scheduled the remaining jurors in panels of numerical
order for voir dire.
During voir dire, the prosecutor noted that juror 71 expressed “some
concerns regarding being fair and impartial” on his jury questionnaire. Juror 71
explained that he had negative experiences in his past that made him distrustful
of “people in positions of authority and power [who] abuse that power.” When the
prosecutor asked juror 71 if he would be able to set those feelings aside to
impartially consider the testimony and follow the court’s instructions even though
police officers and judges are “authority figures,” juror 71 responded “I’m not
sure. . . . [I]t is a maybe for me.”
The State challenged juror 71 for cause. In response to further
questioning from Pollard, juror 71 reiterated that he was “not sure if . . .
something that’s relatable in this case to my experience would impair my
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judgment.” Pollard objected to removing juror 71 for cause on the ground that he
had not stated that he was unable to follow instructions.
The court then engaged in the following colloquy with juror 71:
THE COURT: . . . So, it sounds like you’ve been through
some very difficult circumstances recently, and they have to do with
an authority figure who purportedly is fair -- not being fair, and it
having some really adverse consequences for you that you have
really strong feelings about, and that you’re worried that those
strong feelings may cause you to, depending on exactly what came
out at trial -- but if it sort of related to your particular situation, you’re
concerned that you might not be able to sort of just focus on the
evidence, and the facts, and the law in this case. Is that -- am I
understanding you correctly?
JUROR NUMBER 71: Correct.
THE COURT: Okay. Knowing what you know, and it -- it
sounds like you would try, to but you’re just worried you would not
be able to, that because -- it sounds like your personal recent
experience is really deeply impactful for you, that you’re just
worried that in -- in a sense, something might trigger that, and if it
did, then it would be hard for you to just follow the direction --
Instructions, and follow the evidence. Is -- is that right?
JUROR NUMBER 71: Yeah. And if I may, you know,
following Instruction -- if an Instruction is, “Don’t talk to anyone”, it’s
a specific Instruction that you can follow. But if somebody says,
“Hey, don’t be biased”, it’s a qualitative Instruction. At the given
moment, how are -- how am I supposed to know, yes, I will follow
that Instruction hundred percent? And how would I even know after
the judgment that I did follow that Instruction hundred percent?
That’s the concern I have. Following Instructions really depends on
what the Instruction is and how you can measure it.
THE COURT: All right. Is there anything that you’ve seen or
heard so far about the charges, about the lawyers, and about Mr.
Pollard that makes you think that your personal situation is likely to
be triggered in a way that will make it difficult for you to be fair and
impartial?
JUROR NUMBER 71: Not at this moment. But I’ll be honest
with you, even sitting here right now and -- and expressing my
feelings in front of two lawyers and a Judge is making me very
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uncomfortable. And so, the part of, you know, sitting in a
Courtroom -- it is my first time, so I’m sure there -- all first timers
have some anxiety, so I -- I wouldn’t deny that. But so far I haven’t
heard anything where I would be able to tell you yes, now I’m sure
whether I’ll be fair, or no, I -- I won’t be fair. I’m still unsure.
THE COURT: All right.
JUROR NUMBER 71: So, I’m still at that same point.
The court individually asked juror 71 to further describe the experiences
that made him concerned he might not be able to be impartial. Juror 71
responded that it was “not a single isolated situation,” but “multiple situations” in
his personal and professional life where he observed “people in positions of
authority” displaying “favoritism” and treating a “small set of people unfairly.” He
said he immigrated to this country 20 years ago largely “because of the law and
order” but “it’s a repeated hammering . . . where I see people in authority just
going [scot-] free.” Juror 71 also revealed that he had lost custody of his
daughter in court and that he has “seen bias at every level . . . in that
experience.” Juror 71 said he saw people taking “the path of least resistance”
and so he thought “maybe that’s the way to go.” Thus, his “first impression” upon
coming to court was to “not care” whether the right decision was made but rather
to go with “whatever gets this case sorted out quickly.” He further stated that
because he has been “penalized for having a minority opinion at work,” he might
decide to “just . . . get it over the finish line” even if he disagreed with the other
jurors. Juror 71 also expressed concern that if he was “able to relate to anything
in the case” it could “be a trigger point” influencing his decision. In response to a
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follow-up question from Pollard as to whether juror 71’s biases would impact his
ability to serve as a juror, juror 71 admitted that “it depends on the Instruction.”
The court then asked juror 71 whether he was concerned that, as a result
of the “trauma and impact” he had experienced, “at some point in time you might
just go along to get along . . . and agree with a verdict . . . [and] not be willing to
stand up and have the minority view, even if you’re persuaded that it’s different
than the other jurors.” Juror 71 responded, “[t]hat is one of the scenarios I worry
about. Not the only scenario, but yes.”
The State renewed its motion to strike potential juror 71 for cause, given
that “he just doesn’t know if he can be fair and impartial, and it depends on how
the facts of the case turn out.” In opposing the motion, Pollard argued that juror
71 would make a “wonderful juror” and that his “processing” of the court’s
questions shows he is able to follow instructions. The trial court excused juror 71
for cause, reasoning as follows:
I think [juror 71] said – it’s not really just about following
instructions, it[’s] also about an ability to be fair and impartial. And
he just stated repeatedly that he fears that something could come
up that would not allow him to do that, and for that reason, although
I think he might possibly be a wonderful juror, something might
happen that might make him be an inappropriate juror. And he was
clear enough about that concern that I do find that there is cause
for excusing him, and I am going to excuse him for cause.
At trial, Detective Berns and other witnesses for the State testified as
described above. Pollard and McClure testified that Pollard did not live at the
Renton Avenue South address and only stopped by for social visits. McClure
further stated that several other people occasionally stayed there, including her
ex-boyfriend, her cousin, and her brother. Pollard and McClure also testified that
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No. 84278-1-I/9
Pollard had permission to use McClure’s address as his mailing address and to
store his AK-47 pistol there pending restoration of his firearm rights. Pollard
admitted owning the AK-47 pistol but denied owning the other two firearms found
at the Renton Avenue South address. Pollard also admitted that he was the
individual depicted in the Snapchat video holding a firearm but claimed it was an
old image that someone else posted to his account.
Ultimately, the jury found Pollard guilty of possession of a stolen firearm
and unlawful possession of a firearm in the second degree as charged in counts
2 and 3. The jury could not reach a verdict as to unlawful possession of a firearm
as charged in count 4, so the court dismissed that charge with prejudice. At
sentencing, the court imposed standard range sentences totaling eight months
and authorized electronic home detention. As part of Pollard’s judgment and
sentence, the trial court imposed the then-mandatory $500 VPA.
Pollard appeals.
II
Pollard contends that the trial court erred by excusing juror 71 for cause.
We disagree.
The Sixth Amendment to the United States Constitution and article I,
section 22 of the Washington Constitution both guarantee a criminal defendant
the right to trial by an impartial jury. To protect this constitutional right, “the trial
court will excuse a juror for cause if the juror’s views would preclude or
substantially hinder the juror in the performance of his or her duties in
accordance with the trial court’s instructions and the jurors’ oath.” State v.
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Lawler, 194 Wn. App. 275, 281, 374 P.3d 278 (2016). “The right to an impartial
jury applies to both the prosecution and the defense.” State v. Teninty, 17 Wn.
App. 2d 957, 963, 489 P.3d 679 (2021) (citing State v. Elmore, 155 Wn.2d 758,
773, 123 P.3d 72 (2005)).
Either party may challenge a prospective juror for cause based on actual
bias. RCW 4.44.130; .170(2). A juror demonstrates actual bias when the juror
exhibits “ʻa state of mind . . . in reference to the action, or to either party, which
satisfies the court that the challenged person cannot try the issue impartially and
without prejudice to the substantial rights of the party challenging.’” State v.
Guevara Diaz, 11 Wn. App. 2d 843, 855, 456 P.3d 869 (2020) (alteration in
original) (quoting RCW 4.44.170(2)). The challenging party must establish actual
bias “by proof.” State v. Noltie, 116 Wn.2d 831, 838, 809 P.2d 190 (1991). To
sustain a challenge based on actual bias, “the court must be satisfied, from all
the circumstances, that the juror cannot disregard such opinion and try the issue
impartially.” RCW 4.44.190; State v. Griepsma, 17 Wn. App. 2d 606, 612, 490
P.3d 239 (2021).
On the other hand, “[e]quivocal answers alone are not sufficient to
establish actual bias warranting dismissal of a potential juror.” State v. Sassen
Van Elsloo, 191 Wn.2d 798, 808-09, 425 P.3d 807 (2018)). The question for the
trial court is “whether a juror with preconceived ideas can set them aside.”
Noltie, 116 Wn.2d at 839.2 “If the court has only a ‘statement of partiality without
2 Noltie continues to properly state the law with respect to for cause challenges. State v.
Smith, No. 102402-9, slip op. at 14 (Wash. Sept. 12, 2024),
http://www.courts.wa.gov/opinions/pdf/1024029.pdf.
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a subsequent assurance of impartiality,’ a court should ‘always’ presume juror
bias.” Guevara Diaz, 11 Wn. App. 2d at 855 (quoting Miller v. Webb, 385 F.3d
666, 674 (6th Cir. 2004). But “[w]hen the juror has expressed reservations but
agrees they can set those aside to be fair and impartial, it is within the trial court’s
discretion to allow that juror to remain.” State v. Phillips, 6 Wn. App. 2d 651, 666,
431 P.3d 1056 (2018).
The trial court is in the best position to evaluate a juror’s ability to be fair
and impartial because it can assess the juror’s “tone of voice, facial expressions,
body language, or other forms of nonverbal communication when making . . .
statements.” Lawler, 194 Wn. App. at 287. Accordingly, we review a trial court’s
decision regarding whether to discharge a juror for abuse of discretion. State v.
Depaz, 165 Wn.2d 842, 852, 204 P.3d 217 (2009). A trial court abuses its
discretion when its decision is based on untenable grounds or reasons. State v.
Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
Pollard suggests that the real reason potential juror 71 was struck from the
jury was that he is a person of color who expressed skepticism of the criminal
justice system. He contends that juror 71’s answers were merely equivocal and
that juror 71’s awareness of his own bias demonstrated his ability to follow the
court’s instructions and weigh the evidence. But the record does not support this
interpretation of events. To the contrary, juror 71 never expressed confidence in
his ability to put aside his personal feelings and try the issue impartially. Instead,
juror 71 repeatedly indicated that his ability to be fair and impartial was
conditioned on whether or not something came up during trial that related to his
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own negative experiences. And he steadfastly maintained this position despite
the trial court’s rehabilitation efforts. Given that juror 71 was unable to assure the
trial court that his verdict would not be influenced by bias based on past
experiences, the court did not abuse its discretion granting the State’s motion to
dismiss juror 71 for cause.
Pollard likens his case to State v. Gosser, 33 Wn. App. 428, 656 P.2d 514(1982), but that case is distinguishable. In Gosser, a potential juror who was a
former law enforcement officer initially indicated that he would tend to find the
testimony of a police officer more credible than that of an accused person. Upon
further questioning, however, the potential juror clarified “that he had an open
mind as to the issue of guilt” and would not automatically believe the testimony of
a witness merely because the witness was a police officer. Gosser, 33 Wn. App.
at 434. Noting that the trial court was in a better position to evaluate and
interpret the juror’s responses than was a reviewing court, the appellate court
held that the trial court did not abuse its discretion in denying a challenge for
cause. Gosser, 33 Wn. App. at 434. Here, in contrast, juror 71 repeatedly stated
that his ability to deliberate fairly and follow the court’s instructions was
conditional on the evidence presented and the instructions eventually given.
Pollard’s case is more akin to two cases he seeks to distinguish, State v.
Smith, 27 Wn. App. 2d 838, 534 P.3d 402 (2023), review granted, 2 Wn.3d 1011,
540 P.3d 775 (2024), and State v. Gonzales, 111 Wn. App. 276, 45 P.3d 205(2022), overruled on other grounds by State v. Talbott, 200 Wn.2d 731, 521 P.3d
948 (2022). In Smith, we held that a potential juror should have been excused
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for cause where she stated that if she was “‘on the fence’” she might just go
along with the other jurors during deliberations, and that only “ʻ[i]f [she] was a 100
percent very confident’” would she not change her “‘vote to whatever the rest of
the group thinks.’” 27 Wn. App. 2d at 847, 850 (alterations in original). In
Gonzales, a prospective juror candidly admitted that she would “ʻhave a very
difficult time’” disbelieving a police officer’s testimony and “did not know if she
could presume Gonzales innocent in the face of officer testimony indicating guilt.”
111 Wn. App. at 278, 281. Given that the prospective juror never expressed
confidence in her ability to deliberate fairly and the trial court made no attempt at
rehabilitation, we held that the trial court erred in rejecting the defendant’s
challenge for cause. Gonzales, 111 Wn. App. at 282. Here, like the jurors in
Smith and Gonzales, juror 71 never expressed unconditional confidence in his
ability to deliberate fairly and follow the trial court’s instructions.
Next, Pollard cites to General Rule 37 in support of the proposition that
“negative experiences with the police and a distrust of police do not constitute
actual bias sufficient to exclude a juror” as a matter of law. Br. of Appellant at 29.
“Under GR 37, a judge must deny a party’s attempt to remove a juror without
cause (known as a peremptory challenge) if an objective observer could view
race or ethnicity as a factor in the attempted removal.” State v. Lahman, 17 Wn.
App. 2d 925, 928, 488 P.3d 881 (2021). “A peremptory challenge is an objection
to a juror for which there is no reason given, but upon which the court shall
exclude the juror.” CrR 6.4(e)(1). “[R]ace can subconsciously motivate a
peremptory challenge that the attorney genuinely believes is race-neutral.” State
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v. Saintcalle, 178 Wn.2d 34, 87-88, 309 P.3d 326 (2013), abrogated by State v.
Erickson, 188 Wn.2d 721, 398 P.3d 1124 (2017). “[E]xpressing a distrust of law
enforcement or a belief that law enforcement officers engage in racial profiling” is
one of seven presumptively invalid reasons to exercise a peremptory challenge
under GR 37(h)(ii).
Here, however, the prosecutor challenged juror 71 for cause. Unlike a
peremptory challenge for which no reason need be given, a challenge for cause
based on actual bias requires proof that the juror cannot try the case impartially.
RCW 4.44.190. “Safeguarding jury impartiality means a juror suffering from
actual bias may be excluded from service, regardless of race or the reasons for
the bias.” Teninty, 17 Wn. App. 2d at 963-64. Thus, “if the party requesting a
strike proves the proposed juror holds a bias that impairs the juror’s ability to
fairly and impartially decide the case, the strike should be sustained regardless of
the juror’s race or disparate impact concerns.” Teninty, 17 Wn. App. 2d at 964.
As discussed above, the trial court properly concluded that juror 71’s actual bias
warranted his dismissal from the jury. We decline Pollard’s invitation to
analogize the analysis applicable to peremptory challenges to the for-cause
challenge at issue in his case.
Pollard further asserts that the erroneous dismissal of juror 71 prejudiced
his constitutional right to a fair trial by excluding most, if not all, people of color
from the jury panel that was ultimately seated in his case. We disagree. As
noted above, the trial court did not abuse its discretion in dismissing juror 71
based on actual bias. In any case, erroneous dismissal of a potential juror for
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cause does not automatically violate a defendant’s constitutional rights to an
impartial jury. Sassen Van Elsloo, 191 Wn.2d at 816. This is so because no
party acquires a vested right to have a particular member of the panel sit on the
jury until that juror has been accepted and sworn. Sassen Van Elsloo, 191
Wn.2d at 816. Moreover, erroneously dismissing a potential juror for cause does
not result in a biased juror being impaneled, as we presume that the replacement
juror is impartial. Sassen Van Elsloo, 191 Wn.2d at 816.
Pollard does not claim that any of the impaneled jurors were biased.
Rather, he suggests that several other potential jurors of color may have been
excluded for improper reasons, such as race or for expressing suspicion of law
enforcement. But the record shows that these other potential jurors were not
seated because the jury was empaneled before their numbers were reached, or,
in the case of one potential juror, for hardship. Pollard’s arguments to the
contrary are based on speculation and conjecture. Pollard’s right to a fair trial
was not denied by the exclusion of a biased juror.
III
A
For the first time on appeal, Pollard argues that the police investigation in
this case constituted outrageous governmental misconduct in violation of his
Fourteenth Amendment right to due process. The State counters that the record
is not sufficiently developed to review this claim. We agree with the State.
“[T]he conduct of law enforcement . . . may be ‘so outrageous that due
process principles would absolutely bar the government from invoking judicial
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processes to obtain a conviction.’” State v. Lively, 130 Wn.2d 1, 19, 921 P.2d
1035 (1996) (quoting United States v. Russell, 411 U.S. 423, 431-32, 93 S. Ct.
1637, 36 L. Ed. 2d 366 (1973)); U.S. CONST. amend XIV. However, “ʻ[d]ismissal
based on outrageous conduct is reserved for only the most egregious
circumstances.’” State v. Solomon, 3 Wn. App. 2d 895, 902, 419 P.3d 436(2018) (quoting Lively, 130 Wn.2d at 20).
Whether the State engaged in outrageous conduct violating due process
is evaluated based on the “‘totality of the circumstances.’” Lively, 130 Wn.2d at
21 (quoting United States v. Tobias, 662 F.2d 381, 387 (5th Cir. 1981)). In
making this determination, trial courts assess the following five factors: (1)
“whether the police conduct instigated a crime or merely infiltrated ongoing
criminal activity,” (2) “whether the defendant’s reluctance to commit a crime was
overcome by pleas of sympathy, promises of excessive profits, or persistent
solicitation,” (3) “whether the government controls the criminal activity or simply
allows for the criminal activity to occur,” (4) “whether the police motive was to
prevent crime or protect the public,” and (5) “whether the government conduct
itself amounted to criminal activity or conduct repugnant to a sense of justice.”
Lively, 130 Wn.2d at 22 (quoting People v. Isaacson, 44 N.Y.2d 511, 406
N.Y.S.2d 714, 378 N.E.2d 78, 83 (1978)).
A manifest error affecting a constitutional right may be raised for the first
time on appeal. RAP 2.5(a)(3). It is well established that to raise a claim for the
first time on appeal, “the trial record must be sufficient to determine the merits of
the claim.” State v. O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009) (citing State
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v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)). “Otherwise the error is
not ‘manifest.’” State v. Koss, 181 Wn.2d 493, 503, 334 P.3d 1042 (2014).
Thus, the question of whether we can review a claim of outrageous governmental
misconduct for the first time on appeal depends on whether the record is
sufficiently developed for us to determine that due process violations warrant
dismissal. See Solomon, 3 Wn. App. 2d at 903 (“[a] violation of due process
must be determined as a matter of law and it is the trial court which makes the
findings of fact related to that decision” (alteration in original) (quoting Lively, 130
Wn.2d at 24)).
In Lively, our Supreme Court reversed the defendant’s conviction based
on a claim of governmental misconduct raised for the first time on appeal. 130
Wn.2d at 27. Based on the uncontested evidence presented at trial and the
uncontested findings of fact entered by the trial court, the Supreme Court
concluded that the government’s conduct was so outrageous that it violated
principles of due process as a matter of law. Lively, 130 Wn.2d at 22-27. “Thus,
although the record in Lively did not include a trial court determination of whether
the State engaged in outrageous misconduct, the undisputed evidence of
misconduct of record therein allowed the Lively court to resolve the due process
issue without the necessity of setting forth the applicable appellate standard of
review.” Solomon, 3 Wn. App. 2d at 905.
Shortly after Lively was decided, our Supreme Court was again asked to
consider an outrageous law enforcement misconduct claim raised for the first
time on appeal. State v. Valentine, 132 Wn.2d 1, 935 P.2d 1294 (1997).
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Contrasting the record in Lively, the Supreme Court concluded that “the record
we have been furnished does not permit us to reach a determination that the
police acted in such an outrageous manner that due process considerations
dictate dismissal of the charge against Valentine.” Valentine, 132 Wn.2d at 23.
Significantly, the Lively court was able to rely on undisputed evidence, whereas
the outrageous behavior alleged in Valentine was contested by both parties.
Valentine, 132 Wn.2d at 23. “The Valentine court thus emphasized that an
appellate court should neither weigh the underlying facts nor resolve factual
disputes prior to determining an outrageous governmental misconduct claim.”
Solomon, 3 Wn. App. 2d at 906. “[S]uch tasks are properly reserved to the trial
court.” Solomon, 3 Wn. App. 2d at 906.
Here, as in Valentine, Pollard’s governmental misconduct claim is based
almost entirely on facts unsupported by the record and contested by the State.
Evaluating this claim would require us to resolve the parties’ factual disputes, a
task which we cannot undertake. Pollard’s governmental misconduct claim fails
because it is unreviewable.
B
Pollard also argues that the police misconduct in his case was so
outrageous as to warrant dismissal under CrR 8.3(b). CrR 8.3(b) provides that
“[t]he court, in the furtherance of justice, after notice and hearing, may dismiss
any criminal prosecution due to arbitrary action or governmental misconduct
when there has been prejudice to the rights of the accused which materially
affect the accused’s right to a fair trial.”
18
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Pollard did not move for dismissal under CrR 8.3(b) in the trial court. He
cannot raise this rule-based claim of error for the first time on appeal. RAP
2.5(a). See also State v. Kone, 165 Wn. App. 420, 434-35, 266 P.3d 916 (2011)
(defendant could not argue for the first time on appeal that the trial court should
have granted his CrR 8.3(b) motion to dismiss due to purported CrR 3.3 time-to-
trial violations); State v. Nowinski, 124 Wn. App. 617, 630, 102 P.3d 840 (2004)
(holding that CrR 8.3(b) argument not presented to the trial court would not be
considered as a basis for dismissal on appeal); State v. Basra, 10 Wn. App. 2d
279, 286, 448 P.3d 107 (2019) (a criminal prosecution is no longer ongoing
postjudgment and therefore is not subject to an untimely motion to dismiss under
CrR 8.3(b)). We decline to review Pollard’s CrR 8.3(b) claim.
IV
Pollard contends that he is entitled to relief from the VPA imposed
pursuant to his convictions. In 2023, the legislature added a subsection to RCW
7.68.035 that prohibits courts from imposing the VPA on indigent defendants as
defined in RCW 10.01.160(3). See LAWS OF 2023, ch. 449, § 1. The amended
version of RCW 7.68.035 applies to cases on direct appeal. See State v. Ellis,
27 Wn. App. 2d 1, 17, 530 P.3d 1048 (2023). The State does not dispute that
Pollard is indigent and does not object to Pollard’s request. We accept the
State’s concession and remand for the trial court to strike the VPA from Pollard’s
judgment and sentence.
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No. 84278-1-I/20
V
Pollard raises several claims in a pro se statement of additional grounds
for review filed pursuant to RAP 10.10. None of these additional claims
demonstrate an entitlement to appellate relief.
Pollard first asserts that the State did not present sufficient evidence to
support his convictions for unlawful possession of a firearm because it failed to
establish that he had actual or constructive possession of the firearms. We
disagree.
Evidence is sufficient to support a conviction if it permits any reasonable
trier of fact to find the essential elements of the crime beyond a reasonable doubt
when viewed in the light most favorable to the State. State v. Condon, 182
Wn.2d 307, 314, 343 P.3d 357 (2015). “In claiming insufficient evidence, the
defendant necessarily admits the truth of the State’s evidence and all reasonable
inferences that can be drawn from it.” State v. Drum, 168 Wn.2d 23, 35, 225
P.3d 237 (2010). Circumstantial and direct evidence are equally reliable in this
context. State v. Fiser, 99 Wn. App. 714, 718, 995 P.2d 107 (2000).
Former RCW 9.41.040(2)(a)(iii) (2020) provides that “[a] person, whether
an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in
the second degree, if the person does not qualify under subsection (1) of this
section for the crime of unlawful possession of a firearm in the first degree and
the person owns, has in his or her possession, or has in his or her control any
firearm . . . [d]uring any period of time that the person is subject to a court order”
that meets certain statutory criteria. The State must also prove knowing
20
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possession of the firearm. State v. Anderson, 141 Wn.2d 357, 359, 5 P.3d 1247(2000).
Possession may be actual or constructive. State v. Lee, 158 Wn. App.
513, 517, 243 P.3d 929 (2010). Actual possession means personal custody or
actual physical possession. State v. Manion, 173 Wn. App. 610, 634, 295 P.3d
270 (2013). “[C]onstructive possession can be established by showing the
defendant had dominion and control over the firearm or over the premises where
the firearm was found.” State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d
1214 (1997). In determining dominion and control, the court considers the totality
of the circumstances and does not view any single factor as dispositive. State v.
Collins, 76 Wn. App. 496, 501, 886 P.2d 243 (1995).
Here, the record contained sufficient evidence that Pollard actively or
constructively possessed the firearms at issue. Pollard put the Renton Avenue
South address on his driver’s license and vehicle registration, and it was the
address on file with his employer. Police observed Pollard coming and going
from that address, and Pollard admitted that he sometimes stayed there. Mail
addressed to Pollard at the Renton Avenue South address was found in the
same bedroom where the guns were recovered, along with Pollard’s driver’s
license and men’s underwear. Pollard admitted that he owned the AK-47 pistol,
which bore his fingerprint. And Pollard was seen holding what appeared to be
the Smith & Wesson pistol in a video posted to his Snapchat account. Pollard
and McClure offered testimony that conflicted with the State’s witnesses and
evidence. But we must “defer to the fact finder on issues of conflicting testimony,
21
No. 84278-1-I/22
credibility of witnesses, and the persuasiveness of the evidence.” State v. Ague-
Masters, 138 Wn. App. 86, 102, 156 P.3d 265 (2007). Viewed in the light most
favorable to the State, the evidence was sufficient to support Pollard’s
convictions beyond a reasonable doubt.
Pollard next contends that the jury instructions were “not detailed enough
for a constructive possession case to be accurate.” Statement of Additional
Grounds at 1. In particular, he claims that the jury instructions did not specify the
type of possession case and did not contain enough detail regarding the factors
needed to prove actual and constructive possession. He also asserts that the
jury instructions must have confused the jury because the instructions on each of
the three unlawful possession charges was identical, yet the jury convicted on
only two of the three charges.
Jury instructions are sufficient if they correctly state the law, are not
misleading, and permit the parties to argue their theories of the case. State v.
Killingsworth, 166 Wn. App. 283, 288, 269 P.3d 1064 (2012). Juries are
presumed to follow the court’s instructions. State v. Jackson, 145 Wn. App. 814,
824, 187 P.3d 321 (2008). Here, instructions 15, 16, and 17, the “to convict”
instructions, required the State to prove beyond a reasonable doubt that Pollard
“knowingly owned a firearm or knowingly had a firearm in his possession or
under his control.” Instruction 13 correctly defined actual possession and
constructive possession and informed the jury to “consider all the relevant
circumstances in the case” in deciding whether Pollard had dominion and control
over the firearms. In so doing, the jury convicted Pollard of unlawfully
22
No. 84278-1-I/23
possessing the Smith & Wesson and the AK-47, but was unable to reach a
verdict as to the Cougar. The jury instructions accurately stated the law and
were not confusing or misleading.
Pollard next asserts that he received ineffective assistance of counsel.
This is so, he contends, because his attorney did not challenge the search
warrant, did not utilize Pollard’s proposed cross-examination questions, and did
not object to what Pollard characterizes as misleading jury instructions or provide
the court with sufficiently detailed instructions.
A successful claim of ineffective assistance of counsel requires a
defendant to establish both objectively deficient performance and resulting
prejudice. State v. Emery, 174 Wn.2d 741, 754-55, 278 P.3d 653 (2012).
Pollard does not explain why he believes counsel should have challenged the
search warrant. Nor does he provide a list of questions he believes counsel
should have asked on cross-examination. Pollard has not sufficiently identified
the nature of these alleged errors to permit appellate review. See RAP 10.10(c)
(appellate court will not consider statement of additional grounds for review
unless it informs the court of the nature and occurrence of alleged errors).
Pollard’s challenge to the jury instructions is sufficiently developed for
review. However, as discussed above, the jury instructions correctly stated the
law and were not misleading, so counsel was not ineffective for failing to object to
them. Pollard’s ineffective assistance of counsel claim fails. Accordingly, none
of Pollard’s additional grounds warrant appellate relief.
23
No. 84278-1-I/24
Affirmed in part, reversed in part, and remanded.
WE CONCUR:
24