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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 85658-8-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
RICHARD NANDO PHILLIPS,
Appellant.
HAZELRIGG, C.J. â Richard Phillips appeals from the judgment and
sentence entered on a juryâs verdict convicting him of one count of drive-by
shooting and one count of unlawful possession of a firearm in the first degree
(UPF1). He asserts that the State did not present sufficient evidence of one
element of his drive-by shooting conviction, the trial court erred by denying his
requests to exclude ballistics identification evidence pursuant to Frye v. United
States1 and ER 702, and his UPF1 conviction, predicated on his prior conviction
of a violent felony, was an unconstitutional permanent deprivation of his right to
bear arms under the Second Amendment to the United States Constitution.
Phillips does not establish entitlement to appellate relief on any of his challenges.
Accordingly, we affirm.
1 54 U.S. App. D.C. 46, 293 F. 1013 (1923).
No. 85658-8-I/2
FACTS
On the evening of October 2, 2022, in a span of less than three minutes,
four individuals along a short section of 240th Street SW in Edmonds east of
Highway 99 each dialed 911 to report a gunshot-related incident. 2 One individual
reported to the emergency dispatcher that a bullet had passed through the
southern exterior wall of her motel room and lodged itself into the molding of the
doorframe on the opposite interior wall. The other three individuals lived either on
or near 240th Street SW to the east of the motel. Each reported that they heard
the sound of multiple gunshots (between eight and fifteen) and, shortly thereafter,
saw a large yellow or orange moving truck travel eastward at high speed along
240th Street SW.
In an amended affidavit of probable cause (PC affidavit) filed by a deputy
prosecuting attorney in March 2023, the State described the 911 calls as follows:
Linda White reported that she was staying at the K and E Motor Inn
at 23921 Highway 99 in room 205 and that someone just shot
through the wall of the unit she was in. . . .White said that bullet came
though the wall near the dance studio parking lot and the bullet went
into the molding on the door frame on the opposite wall.
Shawna Svenkerud reported that she was at her home . . . in
Edmonds when she heard about 12 shots and then a yellow moving
truck just flew down the road and it looked like the passenger door
was wide open. . . . Svenkerud explained the road the yellow moving
truck was driving down was 240th St SW and it was heading east
away from Highway 99.
Sandi Hamilton reported that she was at her home . . . in Edmonds
and that she had just heard 8 gun shots right up the street from her
house. . . . Hamilton reported after the gun shots one of the moving
trucks from just up the street screeched down her street. . . . Hamilton
stated the moving truck was going east on 240th St SW. . . . Hamilton
stated the truck was a big yellow or orange truck.
2 The 911 calls occurred between 6:55:52 p.m. and 6:58:17 p.m.
-2-
No. 85658-8-I/3
[A person who only identified herself to police as] Michelle reported
that she was at her home . . . in Edmonds. Michelle reported that
just two seconds ago she heard 15 shots and it sounded like a gun.
Michelle said after she heard the shots a big yellow or orange
delivery truck went speeding down the residential road like crazy.
Michelle reported the truck went east down 240th and that she had
never seen a truck move that fast.
One minute after the first 911 call was made, law enforcement officers from
the Edmonds and Mountlake Terrace Police Departments (EPD and MTPD,
respectively) responded to the resulting emergency dispatch and headed toward
the K&E Motor Inn. Several officers arrived shortly thereafter and initiated an
investigation. According to the March 2023 PC affidavit,
[EPD] Officer Erik Sanchez located multiple shell casings in roadway
on 240 St SW near the 8100 block of that street. Specifically, Officer
Sanchez located three 10 mm shell casings on the south side of 240
St SW in the 8100 block. Two of those casings were in the roadway
and another was in the grass near the roadway. Officer Sanchez
located three more 10 mm shell casings in the brush line on the
southside of 240 St SW. Office Sanchez also located one live 10
mm round on the pavement just south of 240 St SW on the area
connecting to the parking lot of Careful Movers located at 24111
Highway 99, Suite 303. Officers located a bullet hole in the exterior
south facing wall of Linda Whiteâs bathroom in unit 205 at the K and
E Motor Inn. Officers also located a second bullet hole in the wall
opposite [the] south wall of Linda Whiteâs unit. That bullet hole was
in the molding on a door frame. The bullet was so deeply lodged in
the wall that officers were unable to retrieve it.
While the Officers were at the K and E Motor Inn and in the area
around it speaking to potential witnesses[,] Sandi Hamilton provided
a written statement further describing what she had observed. Sandi
Hamiltonâs statement stated âHeard 8 gunshots and then one of the
orange âmoving trucksâ from behind Burlington Coat Factory racing
down 240th Street. Fairly immediately after the gunshotsâless than
30 sec.[,] then called 911.â
Meanwhile, nearly four minutes after the first 911 call,
-3-
No. 85658-8-I/4
[MTPD] Sergeant Jeremy Perry observed a large yellow moving
truck heading eastbound on 236th St SW and Interstate 5,
approximately two miles away from 23921 Highway 99 Edmonds,
WA 98026. Sergeant Perry observed the yellow truck was only
occupied by a single male driver and began to follow it in his patrol
vehicle. Sergeant Perry observed the yellow moving truck turn north
bound on 48th Ave W from 236th St SW. While the yellow moving
truck was driving north on 48th Ave W[,] it drove over the yellow
center line and into the oncoming left turn lane with both its driverâs
side tires. Sergeant Perry conducted a traffic stop of that large yellow
moving truck[,] which then pulled into the yard of a church located at
4700 228th St SW in Mountlake Terrace. With the assistance of
other responding officers[,] Sergeant Perry arrested the sole
occupant of that vehicle who was later identified as the Defendant,
Richard Phillips.
After the Defendant was in custody[,] Sergeant Perry observed an
empty bottle of R&R Whiskey on the floorboard of the yellow moving
truck where the Defendant had been sitting. That empty bottle of
whiskey was in open view and could be observed from outside the
yellow moving truck. Sergeant Perry also observed a black semi-
automatic handgun on the seat next to where the Defendant had
been seated. That handgun was also in open view and could be
observed from outside the yellow moving truck.
A search warrant was later obtained for the yellow moving truck
and[,] during the execution of that search warrant[,] a 10 mm
handgun was found in the yellow box truck right next to where the
Defendant had been seated while he was driving the yellow box
truck. [EPD] Detectives also located a wallet on the passenger seat
of the yellow moving truck that contained an ID Card and several
credit can [sic] debit cards with Richard Phillips[â] name on them.
A review of the Defendantâs criminal history in the Judicial Access
Database System . . . shows that the defendant has a 1996
conviction for Second Degree Assault under King County cause
number 96-1-03270-7.
On October 20, 2022, the State charged Phillips with one count of unlawful
possession of a firearm in the first degree, a class B felony; 3 one count of reckless
endangerment, a gross misdemeanor; one count of aiming or discharging a
3 RCW 9.41.040(1)(b).
-4-
No. 85658-8-I/5
firearm, a gross misdemeanor; and one count of driving under the influence (DUI),
a gross misdemeanor. The UPF1 charge was predicated on Phillipsâ September
1996 conviction of assault in the second degree, itself a class B felony and a
âserious offenseâ under RCW 9.41.010 for the purpose of the degree of the UPF
offense.
Thereafter, according to the March 2023 amended PC affidavit, the
following occurred:
On November 29, 2022, [EPD] Detective Patrick Clark test[-]fired the
10 mm semi-automatic handgun seized from the yellow moving truck
the Defendant had been driving on October 2, 2022. Detective Clark
was able to successfully test fire the handgun twice.
On February 9, 2023, Detective Patrick Clark again test[-]fired the 10
mm semi-automatic handgun seized from the yellow moving truck
the Defendant had been driving on October 2, 2022. This time[,]
Detective Clark test fired that handgun three times and kept the three
spent shell casings from those test firings. Those three shell casings
were sent into the Washington State Patrol Crime Lab for firearm tool
mark analysis and comparison along with three other shell casings
that had been located near the K and E Motor Inn on 240th St SW
on October 2, 2022.
On March 16, 2023, State Forensic Scientist Dijana Coric conducted
firearm tool mark analysis and comparison[4] on the three shells
casings taken from the scene of the alleged shooting that took place
near the K and E Motor Inn on 240th St SW on October 2, 2022, with
the three shell casings test fired from the 10 mm semi-automatic
handgun seized from the yellow moving truck the Defendant had
been driving on October 2, 2022. [Coricâs] results and conclusions
as outlined in her Crime Laboratory Report were that the three shell
casings taken from the scene of the alleged shooting on 240th St SW
were identified as having been fired from the same firearm that fired
the three shells that were test fired by Detective Clark on February
9, 2023.
4 Coric testified that she relied on the Association of Firearm and Tool Mark Examiners
methodology of ballistics identification in order to form her opinion.
-5-
No. 85658-8-I/6
On March 31, 2023, relying on the amended PC affidavit, the State filed a first
amended information that charged Phillips with one count of UPF1, one count of
drive-by shooting, a class B felony, 5 and one count of DUI.
Prior to trial, Phillips requested a Frye hearing to challenge the Association
of Firearm and Tool Mark Examiners (AFTE) methodology of ballistics
identification underlying Coricâs report. This was necessary, he argued, â[b]ecause
recent developments in the field continue to erode the scientific basis for toolmark
pattern comparison and firearm identification.â He also sought to exclude or limit
Coricâs ballistics identification testimony pursuant to ER 702.
The State opposed Phillipsâ motions and contended that no Frye hearing
was required and Coricâs testimony satisfied the requirements of ER 702 in light of
her qualifications and the helpfulness of her testimony to the jury. The trial court
reserved ruling on Phillipsâ motions until later in the trial.
Phillipsâ six-day jury trial commenced the following day. After opening
statements, and continuing into the fourth day of trial, the State called one public
records officer and eleven law enforcement officers to testify and presented
numerous exhibits, including recordings of the 911 calls and investigative
photographs, many of which the court admitted.
On the morning of the fourth day of trial, the day before Coric was set to
testify, the court held a hearing on Phillipsâ ballistics identification motions. After
reviewing the partiesâ written materials and receiving their arguments, the court
denied Phillipsâ motions. The court ruled that a Frye hearing was not required
5 RCW 9A.36.045(3).
-6-
No. 85658-8-I/7
regarding the AFTE methodology because this court had recently rejected a similar
challenge to the AFTE methodology in State v. DeJesus6 and because Phillips had
not presented persuasive argument in support of departing therefrom. The court
also ruled that the State was authorized to present Coric to testify as an expert,
ânot about probability but that in her opinion a particular firearm fired a particular
bullet[,] by resorting to the [AFTE] theory,â and that âin her opinion, based on what
she has learned, what she has experienced, firearms do leave unique marks on
bullets and casings depending on the firearm.â
The State then called Coric to testify and elicited her opinion that the
âunknownâ shell casings that she was asked to examine matched the casings test-
fired from the 10-millimeter handgun seized from the yellow moving truck. The
âunknownâ shell casings were those discovered on 240th Street SW on the night
in question. The State rested its case at the close of Coricâs testimony. 7
Phillips rested his case-in-chief shortly thereafter without presenting
witnesses. On July 19, the jury returned a verdict acquitting Phillips of the DUI
charge and convicting him of the UPF1 and drive-by shooting charges. The court
imposed 30 months in prison on his UPF1 conviction and 36 months on his drive-
by shooting conviction, to be run concurrently, followed by 18 months of community
custody upon his release from prison.
Phillips timely appealed. 8
6 State v. DeJesus, 7 Wn. App. 2d 849, 859-65, 436 P.3d 834 (2019).
7 Phillips then moved to dismiss the charges against him on the basis of insufficient
evidence, which the court denied.
8 Both Phillips and the State filed a notice of appeal. The State, however, withdrew its
cross appeal on October 24, 2024.
-7-
No. 85658-8-I/8
ANALYSIS
I. Sufficiency of the Evidence as to the Drive-By Shooting Conviction
Phillips first asserts that the State did not present sufficient evidence to
support the juryâs conviction of drive-by shooting. This is so, Phillips contends,
because insufficient evidence was adduced to support a conclusion beyond a
reasonable doubt that the moving truck in question was the motor vehicle used to
transport him and the 10-millimeter firearm to the scene of the discharge and he
discharged such firearm from inside, or in the immediate area, of that moving truck.
The State responds that ample circumstantial evidence, and reasonable
inferences drawn in its favor therefrom, was presented at trial to support that
Phillips drove the yellow moving truck to the scene of the discharge and he was
within the truck, or in its immediate area, at the time the firearm in question was
discharged. The State is correct.
We review a challenge to the sufficiency of the evidence de novo. State v.
Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). In so doing,
âwe view the evidence in the light most favorable to the prosecution
and ask whether any rational fact finder could have found the
essential elements of the crime beyond a reasonable doubt.â State
v. Wentz, 149 Wn.2d 342, 347, 68 P.3d 282 (2003). âIn claiming
insufficient evidence, the defendant necessarily admits the truth of
the Stateâs evidence and all reasonable inferences that can be drawn
from it.â State v. Drum, 168 Wn.2d 23, 35, 225 P.3d 237 (2010); see
also State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)
(the evidence is âinterpreted most strongly against the defendantâ).
This court defers to the finder of fact on issues of witness credibility,
persuasiveness, and conflicting testimony. In re Pers. Restraint of
Martinez, 171 Wn.2d 354, 364, 256 P.3d 277 (2011). Circumstantial
and direct evidence are equally reliable. State v. Lazcano, 188 Wn.
App. 338, 363, 354 P.3d 233 (2015).
-8-
No. 85658-8-I/9
State v. Roberts, 32 Wn. App. 2d 571, 584, 553 P.3d 1122 (2024), affâd, No. 103546-
2 (Wash. July 31, 2025), https://www.courts.wa.gov/opinions/pdf/1035462.pdf.
Given that a defendantâs claim of evidentiary insufficiency admits all reasonable
inferences that can be drawn from the evidence adduced at trial, an inference
supporting the conviction need not be the only one that could be drawn from the
evidence at issue. Rather, the inference must merely be one that is reasonably
drawn from such evidence, rather than based on speculation. State v. Yusuf, 21
Wn. App. 2d 960, 966, 512 P.3d 915 (2022). Notably, in making findings, a fact
finder âmay rely upon common sense and the âcommon experience of mankind.ââ
State v. Welker, 37 Wn. App. 628, 638 n.2, 683 P.2d 1110 (1984).
The State charged Phillips with one count of drive-by shooting pursuant to
RCW 9A.36.045. The trial court instructed the jury, in pertinent part, as follows:
INSTRUCTION NO. 4
The evidence that has been presented to you may be either
direct or circumstantial. The term âdirect evidenceâ refers to evidence
that is given by a witness who has directly perceived something at
issue in this case. The term âcircumstantial evidenceâ refers to
evidence from which, based on your common sense and experience,
you may reasonably infer something that is at issue in this case.
The law does not distinguish between direct and
circumstantial evidence in terms of their weight or value in finding the
facts in this case. One is not necessarily more or less valuable than
the other.
....
INSTRUCTION NO. 15
A person commits the crime of Drive-By Shooting when [they]
recklessly discharge[] a firearm in a manner that creates a
substantial risk of death or serious physical injury to another person
and the discharge is either from a motor vehicle or from the
immediate area of a motor vehicle that was used to transport the
shooter or the firearm to the scene of the discharge.
-9-
No. 85658-8-I/10
INSTRUCTION NO. 16
To convict the defendant of the crime of Drive-By Shooting,
as charged in Count 2, each of the following elements of the crime
must be proved beyond a reasonable doubt:
(1) That on or about October 2, 2022; the defendant recklessly
discharged a firearm;
(2) That the discharge created a substantial risk of death or
serious physical injury to another person;
(3) That the discharge was either from a motor vehicle or from
the immediate area of a motor vehicle that was used to
transport the shooter or the firearm to the scene of the
discharge; and
(4) That this act occurred in Snohomish County, Washington.
If you find from the evidence that each of these elements has
been proved beyond a reasonable doubt, then it will be your duty to
return a verdict of guilty.
On the other hand, if after weighing all the evidence you have
a reasonable doubt as to any one of these elements, then it will be
your duty to return a verdict of not guilty.
....
INSTRUCTION NO. 18
In deciding your verdict, you should consider that âimmediate
area means within a few feet or yards.â
(Emphasis added) (boldface omitted).
The Stateâs theory of the case at trial was that Phillips had driven the yellow
moving truck to the scene of the discharge and, âbased on the inferences in this
case and the facts and the timing of everything[,] Mr. Phillips had to have been in
that truck or basically right next to it to fire off those shots, to jump in, and then be
screaming down that road away from the scene.â
On appeal, Phillips does not dispute whether sufficient evidence was
presented to the jury regarding the first, second, and fourth elements of drive-by
shooting as provided in jury instruction No. 16, the âto convictâ instruction for the
offense. Instead, he contends that the State failed to adduce sufficient evidence
- 10 -
No. 85658-8-I/11
of the third element: âThat the discharge was either from a motor vehicle or from
the immediate area of a motor vehicle that was used to transport the shooter or
the firearm to the scene of the discharge.â We consider each component of this
element separately.
A. Scene of the Discharge
At trial, the State sought to establish that the scene of the discharge was
the short section of roadway on 240th Street SW between the parking lot of Careful
Movers to the south and the K&E Motor Inn across another parking lot to the north.
Phillips does not dispute that the State presented sufficient evidence to establish
this portion of the roadway as the scene of the discharge. This unchallenged
portion of the third element was supported by testimony and exhibits of 911 audio
recordings of individuals indicating that they resided to the east of a section of
roadway on 240th Street SW and, on the evening in question, heard the sound of
multiple gunshots to the west. The State also presented a 911 audio recording of
an individual residing at the K&E Motor Inn, due north of the section of roadway at
issue, who called 911 to report that a bullet had passed through the southern
exterior wall of her motel room and lodged itself in the opposite wall to the north.
The State also offered testimony from EPD Officer Melinda Leen and
former9 EPD Officer Ashley Saunders, along with supportive exhibits, establishing
that the south-facing exterior wall of the motel room had two bullet holes and the
presence of a bullet hole in a doorframe on the opposing interior wall to the north.
In addition, the State presented Sanchezâs testimony explaining that six 10-
9 At the time of trial, Saunders was working on behalf of the Bellevue Police Department.
- 11 -
No. 85658-8-I/12
millimeter shell casings and an unfired 10-millimeter bullet round, all imprinted with
âAmmo Inc.,â were found on or adjacent to the southern section of roadway
between the Careful Movers parking lot to the south and the K&E Motor Inn to the
north. 10 Sanchez also testified that if a vehicle were to head eastbound legally on
240th Street SW, it would be traveling on the south side of that street. He further
explained that the roadway on that street was higher in the middle than on its sides
and, when a firearm discharges a bullet from its shell casing, the firearm ejects
that casing off to the side, to the left or to the right.
Taken together, the trial record in this matter contains ample evidence to
support that the scene of the discharge was the short section of roadway on 240th
Street SW between the parking lot of Careful Movers and the K&E Motor Inn.
B. Motor Vehicle Used to Transport Shooter or Firearm to Scene of the
Discharge
The State also had the burden to establish beyond a reasonable doubt that
the vehicle in which Phillips drove both himself and the 10-millimeter firearm to the
scene of the discharge was the same yellow moving truck in which he was
observed minutes after the gunfire. In support of this, the State introduced
testimony and 911 audio recordings of several eyewitnesses who live near the
scene of the discharge indicating that shortly after hearing the sound of gunshots,
they observed a large yellow or orange moving truck traveling at high speed
eastward on 240th Street SW, away from the scene. The State also offered
10 Another police officer testified that she canvassed the area around the motel and the
Careful Movers parking lot across the street but did not locate any additional shell casings, bullets,
or firearms.
- 12 -
No. 85658-8-I/13
testimony from law enforcement officers, including Perry, former 11 Brier Police
Department Officer Gabrielle Munn, and MTPD Officer Eugene Shin, stating that
Phillips was the sole occupant of a yellow moving truck that matched the
description of the moving truck in question in a location relatively nearby, minutes
after the gunshots were reported. 12 Additional law enforcement officer testimony,
including that by Perry and EPD Detective Robert Allen, specified that the truckâs
cabin contained a key inserted in the ignition and a wallet that held Phillipsâ driverâs
license and other documents bearing his name.
The State also presented testimony from Sanchez and one eyewitness
indicating that the yellow moving truck appeared to be from a moving company
that had a parking lot adjacent to the scene of the discharge that contained similar
large yellow moving trucks. Sanchezâs testimony further illustrated that the Careful
Movers parking lot was connected to 240th Street SW, attempting to turn from the
Careful Movers parking lot onto 240th Street SW would be a âkind of narrowâ turn
in general and it would be a âdifficultâ turn for a large moving truck to make. Lastly,
the State offered the testimony of Perry, Allen, and EPD Officer Rheshaun
Strange, along with exhibits of investigative photographs, indicating that the yellow
moving truck in Phillipsâ control matched the description of the truck seen leaving
the scene shortly after the discharges in question. The testimony and exhibits
further showed that a 10-millimeter firearm was located within the passenger cabin
11 Munn was employed as a marshal with the Snohomish County Sheriffâs Department by
the time of trial.
12 The State also presented law enforcement officer testimony that despite responding to
the emergency dispatch and converging on K&E Motor Inn from different directions, they did not
observe any large yellow moving trucks.
- 13 -
No. 85658-8-I/14
of the truck, which matched the caliber of the bullet casings found at the scene of
the discharge.
Taking the evidence in the light most favorable to the State, including all
reasonable inferences therefrom, the State presented sufficient evidence to
establish that the yellow moving truck was the vehicle used to transport Phillips
and the 10-millimeter firearm to the scene of the discharge. For instance,
presuming that the jury credited the foregoing testimony and exhibits, if the truck
was seen traveling away from the scene of the discharge, it would be reasonable,
and a matter of common sense, to infer that the truck had traveled to the scene of
the discharge. Similarly, if Phillips was identified as the sole occupant of the yellow
moving truck shortly after the gunfire reported by the callers and if he had control
over the yellow moving truck, it is reasonable to infer that Phillips had driven the
truck away from the scene of the discharge, which, in turn, supports the conclusion
that he had driven it to that location.
Furthermore, given the proximity of a moving company with similar moving
trucks immediately adjacent to, and accessible from, the scene of the discharge, it
is a reasonable inference that Phillips had driven the truck from the moving
companyâs parking lot to the scene of the discharge. Finally, the discovery of a
10-millimeter pistol in the passenger cabin of the moving truck that was under
Phillipsâ control shortly after the reported firearm discharges, when considered
alongside the discovery of 10-millimeter shell casings at the scene of the
discharge, supports a rational inference that the firearm was located within the
truck after the reported gunfire, which in turn supports an inference that the firearm
- 14 -
No. 85658-8-I/15
was located in the truck before those discharges. Therefore, given all the evidence
and reasonable inferences drawn therefrom in the Stateâs favor, the State
presented sufficient evidence to support the juryâs determination that the yellow
moving truck stopped by Perry while under Phillipsâ exclusive control was the
vehicle that transported Phillips and the 10-millimeter firearm to the scene of the
discharge.
C. Discharge Was Either from a Motor Vehicle or from the Immediate
Area of a Motor Vehicle
In order to convict Phillips of the crime of drive-by shooting, the State was
also required to establish that he either fired the 10-millimeter handgun from inside
of the passenger cabin of the yellow moving truck or within a few feet or yards of
it. To meet its burden, the State presented the testimony of Strange, Perry, and
Allen, along with exhibits of photographs, indicating that a 10-millimeter firearm
was observed inside the moving truckâs passenger cabin to the right side of the
driverâs seat buckle, the firearm was seen in that location after Phillips was seen
driving and having control over the moving truck, and there were no unfired rounds
remaining in the handgunâs magazine or in its chamber. As set out in Section I.A
supra, the State also introduced Sanchezâs testimony that he discovered multiple
10-millimeter casings in the southern section of roadway between the Careful
Movers parking lot and the K&E motel, the roadway itself was higher in the middle
than it was on the sides and, when a firearm discharges a bullet from its shell
casing, the casing is ejected off to one side of the firearm.
- 15 -
No. 85658-8-I/16
The State offered the testimony of EPD Detective Patrick Clark, who
explained that he test-fired the 10-millimeter handgun both to ensure that it was a
functioning firearm and to produce test shell casings for comparison purposes and
that a 10-millimeter caliber firearm is not a commonly found firearm caliber. The
State also presented Coricâs testimony opining, in effect, that the 10-millimeter
casings located at the scene of the discharge matched the 10-millimeter casings
test-fired from the 10-millimeter firearm recovered from the yellow moving truck
under Phillipsâ control minutes after the firearm discharges in question. As
explained in Section I.B supra, the State presented evidence describing the
difficulty of maneuvering a moving truck from the Careful Movers parking lot exit
onto the 240th Street SW roadway. Additionally, also set out in Section I.B supra,
the State presented testimony of eyewitnesses and an exhibit of 911 audio
recordings indicating that within a few blocks of the scene of the discharge and
less than 30 seconds after the sound of gunshots was heard, the yellow moving
truck was seen traveling at a high speed.
The State presented sufficient evidence to establish beyond a reasonable
doubt that Phillips discharged the 10-millimeter firearm seized from the yellow
moving truck pursuant to the search warrant from either inside or within a few feet
or yards of the truck. The foregoing evidence supports reasonable inferences that
(1) the moving truck was facing eastward the time of the discharge and either
parked, or stopped, at the scene of the discharge on 240th Street SW; (2) a firearm
was discharged at the scene from either the southern section of roadway itself or
from the middle of the roadway; (3) Phillips either fired the handgun from inside
- 16 -
No. 85658-8-I/17
the truck cabin and placed it to his right side, or he fired it from outside of the cabin,
entered the cabin, and then placed it to his right side; (4) he was either immediately
nearby or in the truck at the time that the gunshots in question were fired; and (5)
the firearm later found in the truck was the same one that was discharged toward
the K&E Motor Inn. 13 Considering all of the evidence and inferences together, a
reasonable jury could conclude that with the yellow moving truck parked eastward
on 240th Street SW at the scene of the discharge, Phillips fired the 10-millimeter
handgun that was later seized from the truck either while he was outside of the
truck on the southern side of 240th Street SW, with the ejected casings falling to
the ground around him and rolling to the roadâs southern side and nearby grass,
or while inside of the truck, with the ejected casings falling from the driverâs side
window in the middle of the road and rolling to the roadâs southern side and nearby
grass. Thus, the State presented sufficient evidence to support the juryâs
conviction of drive-by shooting with regard to the challenged element in that
crimeâs âto convictâ instruction. Accordingly, Phillipsâ assertion of evidentiary
insufficiency fails.
II. Admission of Ballistics Identification Evidence and Coricâs Testimony
Phillips next asserts that the trial court erred when it denied his motion for
a Frye hearing regarding the AFTE methodology of ballistics identification and
13 The State also introduced evidence indicating that the truckâs exterior driverâs side door
was inoperable. From this, it is reasonable to infer that if Phillips fired the handgun from outside of
the truck, it is consistent with Phillips entering and exiting through the functioning passenger side
door or, in the alternative, consistent with Phillips exiting from the driverâs side of the truck, which
he did when he was later stopped by Perry, and leaving the driverâs side door open for his reentry
after discharging the firearm.
- 17 -
No. 85658-8-I/18
denied his motion to suppress or limit Coricâs ballistics identification expert
testimony pursuant to ER 702. The trial court did not err.
A. Request for Frye Hearing on AFTE Methodology
Phillips first contends that the trial court erred when it denied his motion for
a Frye hearing to challenge the AFTE methodology of ballistics identification. In
that motion, Phillips argued that ârecent developmentsâ in the relevant scientific
community suggest that the AFTE methodology is no longer generally accepted
therein. Phillips does not establish an entitlement to appellate relief.
We use the Frye test to evaluate scientific evidence for its admissibility in a
court of law. State v. Gregory, 158 Wn.2d 759, 829, 147 P.3d 1201 (2006),
overruled on other grounds by State v. W.R., 181 Wn.2d 757, 336 P.3d 1134
(2014). Under Frye, scientific evidence is not admissible unless â[b]oth the
scientific theory underlying the evidence and the technique or methodology used
to implement itâ are generally accepted in the relevant scientific community. Id.
Although scientific opinion need not be unanimous, the evidence may not be
admitted if there is a significant dispute among qualified scientists in the relevant
community. Id. Notably, once a particular methodology has been generally
accepted in the community, âapplication of the science to a particular case is a
matter of weight and admissibility under ER 702.â Id.
We review a trial courtâs determination as to whether to hold a Frye hearing
de novo. Id. at 830. Our Supreme Court has remarked that
[o]nce this court has made a determination that the Frye test
is met as to a specific novel scientific theory or principle, trial courts
can generally rely upon that determination as settling such theoryâs
- 18 -
No. 85658-8-I/19
admissibility in future cases. However, trial courts must still
undertake the Frye analysis if one party produces new evidence
which seriously questions the continued general acceptance or lack
of acceptance as to that theory within the relevant scientific
community.
State v. Cauthron, 120 Wn.2d 879, 888 n.3, 846 P.2d 502 (1993) (emphasis
added), overruled in part on other grounds by State v. Buckner, 133 Wn.2d 63,
941 P.2d 667 (1997). Six years ago, we recognized that the AFTE ballistics
identification methodology meets the Frye test in State v. DeJesus, 7 Wn. App. 2d
849, 436 P.3d 834 (2019).
Nevertheless, Phillips argued at trial, and reiterates on appeal, that the trial
court was required to undertake a Frye analysis because of recent developments
that, he avers, seriously questioned either the general acceptance or lack of
acceptance as to the AFTE theory within the relevant scientific community. In so
arguing, Phillips relied on the National Research Council of the National Academy
of Sciences (NAS) reports from 2008 and 2009 14 as well as the Presidentâs Council
of Advisors on Science and Technology (PCAST) report from 2016. 15
However, the foregoing argument and evidence are identical to that which
we considered and rejected in DeJesus. There, the challenged scientific evidence
stemmed from a Washington State Patrol Crime Laboratory analystâs comparison
of two spent shell casings and that analystâs conclusion that the casings were fired
14 COMM. TO ASSESS THE FEASIBILITY, ACCURACY, & TECH. CAPABILITY OF A NATâL BALLISTICS
DATABASE, NATâL RESEARCH COUNCIL, BALLISTIC IMAGING (2008), www.nap.edu/read/12162/chapter/1
[https://perma.cc/37GE-4S4C]; COMM. ON IDENTIFYING THE NEEDS OF THE FORENSIC SCI. CMTY. ET AL.,
NATâL RSCH. COUNCIL, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD
(2009), www.nap.edu/read/12589/chapter/1 [https://perma.cc/3GXP-RCFR].
15 PRESIDENTâS COUNCIL OF ADVISORS ON SCI. AND TECH., EXEC. OFFICE OF THE PRESIDENT,
FORENSIC SCIENCE IN CRIMINAL COURTS: ENSURING SCIENTIFIC VALIDITY OF FEATURE COMPARISON
METHODS (Sept. 2016), https://www.broadinstitute.org/files/sections/about/PCAST/2016%20pcast-
forensic-science.pdf [https://perma.cc/B6G9-EBPX].
- 19 -
No. 85658-8-I/20
from the same gun. Id. at 858. DeJesus argued that there was a âsignificant
dispute among qualified scientists in the relevant scientific community about the
validity of ballistic identification methodology.â Id. at 860. He cited the 2008 and
2009 NAS reports and the 2016 PCAST report in support of his argument. Id. at
861. We rejected his contention, holding that
the reports on which DeJesus relies do not affect the general
scientific acceptance of ballistic identification. Instead, the problems
they espouse bear on the question of reliability of the individual test
and tester at issue. These questions are then considered by the trier
of fact in assessing the weight to be given the evidence.
Id. at 863-64. 16
Because DeJesus considered the same challenges to the validity of the
evidence as Phillips presents on appeal, we continue to adhere the previous
judicial determination that this method of ballistics identification satisfies the Frye
test. 17 Thus, Phillipsâ assertion fails. He nevertheless contends that
16 In 2019, we looked to other jurisdictions and concluded that â[c]ourts from around the
country have universally held that toolmark analysis is generally accepted.â DeJesus, 7 Wn. App.
2d at 865. Since then, other jurisdictions applying the test announced in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), have questioned the general
acceptance of the AFTE methodology. See, e.g., Abruquah v. State, 483 Md. 637, 692, 296 A.3d
961 (2023) (determining âgeneral acceptanceâ factor regarding AFTE ballistics identification
methodology is âneutralâ under Daubert); United States v. Briscoe, 703 F. Supp. 3d 1288, 1307-08
(D.N.M. 2023) (determining that scientific criticism of ballistics identification does not establish
general acceptance in the relevant scientific community under Daubert); United States v. Cloud,
576 F. Supp. 3d 827, 844-45 (E.D. Wash. 2021) (determining that the âgeneral acceptanceâ factor
weighs âslightlyâ against admitting ballistics identification evidence under Daubert); United States
v. Adams, 444 F. Supp. 3d 1248, 1266 (D. Or. 2020) (explaining, pursuant to Daubert, âwhere the
scientific community at large disavows the theory because it does not meet the parameters of
science, [the court] cannot find that the AFTE method enjoys âgeneral acceptanceâ in the scientific
communityâ); United States v. Shipp, 422 F. Supp. 3d 762, 783 (E.D.N.Y. 2019) (determining, under
Daubert reliability analysis, that AFTE theory âhas not achieved general acceptance in the relevant
communityâ).
However, this authority from other jurisdictions is not controlling, and our Supreme Court
has rejected the Daubert test and adhered to the Frye test for the purpose of determining the
admissibility of scientific evidence. State v. Copeland, 130 Wn.2d 244, 251, 922 P.2d 1304 (1996).
Thus, these cases do not guide our analysis.
17 Since we issued our decision in DeJesus, we have not been persuaded to depart from the
reasoning set forth therein. See, e.g., State v. Kime, No. 79439-6-I (Wash. Ct. App. Aug. 30, 2021)
- 20 -
No. 85658-8-I/21
[t]he panel in DeJesus did not say the scientific community
agreed that the [AFTE] methodology supports an unqualified match
of a specific firearm to specific cartridges. To the extent DeJesus
implied otherwise, this [c]ourt can and should chart its own course.
See State v. Miller, [30] Wn. App. 2d [461], 545 P.3d 388, 392 (2024)
(â[I]f we conclude one of our prior opinions was incorrect, we are free
to depart from it.â).
(One alteration in original.)
We decline his invitation. Phillips does not provide citation to DeJesus in
support of his proposed interpretation of that case nor does he provide argument
in support of establishing that our holding in DeJesus is favorable to his appeal in
this matter. We do not consider assertions unsupported by argument and citation
to legal authority. See RAP 10.3(a)(6).
Thus, Phillips does not establish that a Frye hearing was required for the
purpose of determining the admissibility of evidence arising from the AFTE
methodology of ballistics identification. Accordingly, the trial court did not err when
it denied Phillipsâ request.
B. Request to Exclude Coricâs Testimony under ER 702
Phillips next asserts that the trial court erred when it denied his motion to
limit or exclude Coricâs ballistics identification testimony pursuant to ER 702. He
(unpublished), https://www.courts.wa.gov/opinions/pdf/794396.pdf; State v. Beal, No. 39574-0-III
(Wash. Ct. App. July 9, 2024) (unpublished), https://www.courts.wa.gov/opinions/pdf/395740_unp.pdf;
In re Pers. Restraint of Curry, No. 54033-9-II (Wash. Ct. App. June 15, 2021) (unpublished),
https://www.courts.wa.gov/opinions/pdf/D2%2054033-9-II%20Unpublished%20Opinion.pdf; State v.
Hatfield, No. 77512-0-I (Wash. Ct. App. Dec. 2, 2019) (unpublished), https://www.courts.wa.gov/
opinions/pdf/775120.pdf. The unpublished opinions cited here are provided pursuant to GR 14.1
solely to illustrate this courtâs consistent ruling on this issue. See also People v. Ross, 129 N.Y.S.
3d 629, 640-41 (N.Y. Sup. Ct. 2020) (applying Frye test to ballistics identification, determining the
test is satisfied with regard to the relevant communityâs general consensus of class characteristics
of ballistics identification, rejecting a challenge to âall expert testimony on toolmarksâ).
- 21 -
No. 85658-8-I/22
contends the court erred because the underlying ballistics identification
methodology on which Coric relied to form her opinion is itself unreliable.
The State responds that Phillips has not established an abuse of discretion
because his challenge to Coricâs expertise and opinion is predicated not on her
experience or training or her application of the AFTE methodology to the evidence
presented at trial but, rather, on the reliability of the AFTE methodology in general.
According to the State, Phillipsâ contention is a question of weight for the fact-finder
once such evidence is deemed admissible pursuant to the Frye standard, not a
basis to exclude her testimony under ER 702. We agree with the State.
We review a trial courtâs determination as to the admissibility of evidence
for abuse of discretion. Roberts, 32 Wn. App. 2d at 599.
âDiscretion is abused when the trial courtâs decision is manifestly
unreasonable, or is exercised on untenable grounds, or for untenable
reasons.â State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017
(1993). âThe party challenging an evidentiary ruling bears the burden
of proving the trial court abused its discretion.â State v. Briejer, 172
Wn. App. 209, 223, 289 P.3d 698 (2012).
Id. (footnote omitted).
âIf the Frye test is satisfied, the trial court must then determine whether
expert testimony should be admitted under the two-part test of ER 702.â Copeland,
130 Wn.2d at 256. We have stated that
[u]nder ER 702, the trial court may allow an expert witness to
testify in the form of an opinion concerning âscientific, technical, or
other specialized knowledgeâ if it âwill assist the trier of fact to
understand the evidence.â Expert testimony is admissible if the
witness is qualified as an expert and the testimony is helpful to the
finder of fact. State v. Morales, 196 Wn. App. 106, 122, 383 P.3d
539 (2016). Such testimony is helpful to the fact finder ââif it concerns
matters beyond the common knowledge of the average layperson
- 22 -
No. 85658-8-I/23
and is not misleading.ââ Id. at 122-23 (quoting State v. Groth, 163
Wn. App. 548, 564, 261 P.3d 183 (2011)).
Roberts, 32 Wn. App. 2d at 599. âCourts generally âinterpret possible helpfulness
to the trier of fact broadly and will favor admissibility in doubtful cases.ââ Groth,
162 Wn. App. at 564 (internal quotation marks omitted) (quoting Moore v. Hagge,
158 Wn. App. 137, 155, 241 P.3d 787 (2010)).
Once again, after a particular methodology has been determined to be
generally accepted in the relevant scientific community under Frye, âapplication of
the science to a particular case is a matter of weight and admissibility under ER
702.â Gregory, 158 Wn.2d at 829.
Notably, at oral argument on appeal, the State elaborated on the
relationship between the AFTE methodology, the Frye test, and ER 702:
[T]he firearm and tool mark examination theory includes a process
inside of it. It includes a framework by which examiners must
operate. . . . Where the State is asserting [that an expert] adhered
to the AFTE requirements[,] [where] thereâs nothing in the record
here to say [that the expert] did not follow those requirements, where
those requirements are set by the industry standard, essentially the
same scientific community, and the expert adheres to those
requirements, . . . the [ER] 702 analysis is pretty limited. The
challenge is to what would essentially be raised in a Frye hearing, [it]
can cast doubt on the reliability of the evidence at trial[;] weight, not
admissibility. 18
Here, Phillipsâ argument before the trial court was that because the ballistics
identification methodology on which Coric relied was itself unreliable, Coric was
unqualified as an expert and her testimony was unhelpful to the jury. Phillips did not
otherwise challenge Coricâs application of that methodology to the shell casings that
18 Wash. Ct. of Appeals oral arg., State v. Phillips, No. 85658-8-I (Mar. 5, 2025), at 13 min.,
55 sec., video recording by TVW, Washington Stateâs Public Affairâs Network,
https://tvw.org/video/division-1-court-of-appeals-2025031161/.
- 23 -
No. 85658-8-I/24
she examined herein, her qualifications to testify as an expert witness, or the
helpfulness of her testimony to the jury.
The State asserted in response that Coric
has both the formal education and training to testify as an expert. She
has been employed by the Washington State Patrol Crime Laboratory
for 9 years. She also has a masterâs degree in forensic science and
will testify that she has both taken courses in school, and received
training that specifically addressed firearms, ballistics, and
corresponding analysis. She has also previously testified as an expert
numerous times.
....
Here, the State will be calling FS Coric to testify in her capacity
as a forensic scientist related to the testing she did on shell casing test
fired from the 10 mm semi-automatic handgun found next to where
the Defendant had been sitting on the bench seat of the yellow moving
truck he had been driving. Under the rules regarding expert testimony,
Coricâ testimony is perfectly legal, and is specifically what is
contemplated by ER 702.
The State added that Phillipsâ challenge to the reliability of the AFTE methodology
is âripe for cross-examination, ripe for the jury to consider, things they can question
her about, things that she can answer. And the jury can judge her answers and
decide what weight to give her opinion.â 19 After considering both partiesâ arguments,
the trial court denied Phillipsâ ER 702 motion. 20
19 The State further indicated that the jury could be provided with an âinstruction regarding
expert opinions and the weight under the law that jurors are supposed to give when considering
those.â The trial court later instructed the jury as follows:
INSTRUCTION NO. 6
A witness who has special training, education or experience in a particular
science, profession or calling, may be allowed to express an opinion in addition to
giving testimony as to facts. You are not bound, however, by such an opinion. In
determining the credibility and weight to be given such opinion evidence, you may
consider, among other things, the education, training, experience, knowledge and
ability of that witness, the reasons given for the opinion, the sources of the witnessâ
information, together with the factors already given you for evaluating the
testimony of any other witness.
(Boldface omitted.)
20 The denial of Phillipsâ ER 702 motion was contingent on the State successfully
establishing the requisite foundation for Coric to testify as an expert witness on ballistics
- 24 -
No. 85658-8-I/25
The trial court did not abuse its discretion as to that ruling. Phillips did not
contest whether Coric possessed the requisite professional expertise to testify as an
expert with regard to the AFTE methodology or whether her specific testimony
linking the shell casings identified at the scene of the discharge to the test-fired shell
casings would be helpful to the jury. Instead, he challenged the general reliability of
the ballistics identification methodology employed by Coric. In so doing, Phillips was
either attempting to dispute the validity of the underlying methodology, which is the
domain of the Frye standard and not applicable to an ER 702 challenge, or
attempting to argue that her testimony should be entitled to less weight, which falls
within the purview of the fact-finder and is also not applicable to an ER 702
challenge. Nevertheless, neither of the bases presented by Phillips is one on which
Coricâs testimony should have been excluded pursuant to ER 702.
Moreover, Coric was plainly qualified to testify as an expert given her training
and experience, and due to the circumstantial nature of the evidence in this case,
Coricâs testimony helpfully supplemented the Stateâs evidence. Accordingly, the trial
court did not abuse its discretion when it denied Phillipsâ ER 702 motion.
Phillips nevertheless asserts that if we were to conclude that the trial court
erred by admitting Coricâs ballistics identification testimony (which we do not), the
trial courtâs error prejudiced him. The State responds that Coricâs testimony was not
the primary source of evidence connecting the 10-millimeter firearm seized from the
yellow moving truck to the scene of the discharge but, rather, served to corroborate
the other evidence presented at trial in support of that proposition. Therefore,
identification. The trial court later ruled that the State had established such foundation, Phillips did
not object to that subsequent ruling, and Phillips does not assign error to it on appeal.
- 25 -
No. 85658-8-I/26
according to the State, any such error arising from admitting Coricâs testimony would
have been harmless. The State is correct.
âThe improper admission of evidence constitutes harmless error if the
evidence is of minor significance in reference to the overall, overwhelming evidence
as a whole.â State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). In its
brief on appeal, the State contends as follows:
The testimony provided by Dijana Coric only corroborated
other testimony by the State related to the drive-by shooting charge.
Multiple witnesses connected the shots they heard with the speeding
yellow truck leaving the scene seconds later. Absent Ms. Coricâs
testimony, the State would still have presented the defendantâs
admission to officers that he would do five years for the gun, the
officersâ recovery of a 10 mm pistol from the seat of the yellow truck,
discovery of the uncommon 10 mm caliber ammunition found in the
locked rear portion of the yellow truck, a matching headstamp
between the 10 mm ammunition in the box truck and the casings found
at the scene.
Even if the defendant could demonstrate the lower court erred
by admitting the testimony of Dijana Coric, any prejudice that resulted
from the opinion offered is minimal in light of the caveated testimony[21]
and the remaining unchallenged evidence against the defendant.
The Stateâs argument is persuasive. The evidence adduced at trial reflects
that Coricâs testimony was corroborated by that of other witnesses and by various
exhibits presented at trial. Furthermore, Coricâs opinion was limited in scope: the
substance of her testimony on this point was not that the 10-millimeter firearm seized
from the yellow moving truck was the only such firearm capable of resulting in the
shell casings discovered at the scene of the discharge but, rather, that it had fired
the shell casings uncovered at the scene of the discharge. Therefore, if the trial
court erred, which it did not, any error would have been harmless.
21 Coric expressly indicated on cross-examination that it was not her testimony that the
casings in question could not have been fired by any other firearm.
- 26 -
No. 85658-8-I/27
III. Second Amendment As-Applied Challenge To UPF1 Conviction
Phillips next asserts that the statutory scheme resulting in his conviction of
UPF1 represents an unconstitutional permanent deprivation of his right to bear arms
pursuant to the Second Amendment to the United States Constitution as applied to
him. We disagree.
The facts and analysis of our recent decision in State v. Hamilton guide our
analysis here. 33 Wn. App. 2d 859, 565 P.3d 595 (2025), review granted, No.
104072-5 (Wash. Aug. 6, 2025). There, Hamilton asserted that âWashingtonâs
statutes that restrict the firearms rights of persons with felony convictions violate the
Second Amendment to the United States Constitution as applied to him.â Id. at 861.
Reviewing his constitutional challenge de novo, we recited the applicable legal
standard as follows:
The Second Amendment states, âA well regulated militia being
necessary to the security of a free state, the right of the people to keep
and bear arms, shall not be infringed.â â[T]he right to keep and bear
arms is among the âfundamental rights necessary to our system of
ordered liberty.ââ United States v. Rahimi, 602 U.S. 680, 690, 144 S.
Ct. 1889, 219 L. Ed. 2d 351 (2024) (quoting McDonald v. City of
Chicago, 561 U.S. 742, 778, 130 S. Ct. 3020, 177 L. Ed. 2d 894
(2010)).
However, âthe right secured by the Second Amendment is not
unlimited.â District of Columbia v. Heller, 554 U.S. 570, 626, 128 S.
Ct. 2783, 171 L. Ed. 2d 637 (2008). In Heller, the Supreme Court held
that a Washington D.C. law prohibiting handgun possession in the
home was unconstitutional. Id. at 635. Notably, the Court clarified the
Second Amendment right to possess firearms belongs to âlaw-abiding,
responsible citizensâ and emphasized that ânothing in our opinion
should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill,â among other
limitations. Id. at 635, 626. Such regulations, Heller specified, are
âpresumptively lawful.â Id. at 627 n.26.
Id. at 864.
- 27 -
No. 85658-8-I/28
We then traced the recent development of the United States Supreme Courtâs
Second Amendment jurisprudence and explained that in New York State Rifle &
Pistol Assân v. Bruen, 597 U.S. 1, 17 (2022), the Court established a new framework
for evaluating Second Amendment challenges. Id. at 865-66. We summarized the
Courtâs newly announced two-step test as follows: âFirst, courts must determine
whether âthe Second Amendmentâs plain text covers an individualâs conduct.â [N.Y.
State Rifle, 597 U.S. at 17.] If so, âthe Constitution presumptively protects that
conduct,â and âthe government must demonstrate that the regulation is consistent
with this Nationâs historical tradition of firearm regulation.â Id.â Hamilton, 33 Wn.
App. 2d at 866.
In rejecting Hamiltonâs challenge on appeal, we held as follows:
As to New York State Rifleâs first step, we presume that felons are
among âthe peopleâ protected by the Second Amendment. See
Rahimi, 602 U.S. 690-92 (assuming defendant was protected by
Second Amendment and deciding case based on New York State
Rifleâs second step); Heller, 554 U.S. at 580 (noting âthe peopleâ
âunambiguously refers to all members of the political community, not
an unspecified subsetâ); [United States v.] DĂaz, 116 F.4th [458,] 467
[(5th Cir. 2024)] (â[T]he âtwo-stepâ view of [New York State Rifle] is
effectively collapsed into one question: whether the law is consistent
with our Nationâs history of firearm regulation.â).
As to New York State Rifleâs second step, we conclude that
disarming those with felony convictions is demonstrably consistent
with Americaâs historic tradition of firearms regulation. Common law
has a long history of disarming individuals, or categories of individuals,
who were viewed as a danger to public order. See [United States v.]
Williams, 113 F.4th [637,] 650-57 [(6th Cir. 2024)] (providing detailed
historical summary and concluding âgovernments in England and
colonial America long disarmed groups that they deemed to be
dangerousâ); Joseph G.S. Greenlee, The Historical Justification For
Prohibiting Dangerous Persons From Possessing Arms, 20 W YO. L.
REV. 249, 272 (2020) (â[T]he historical justification for felon bans
reveals one controlling principal that applies to each historical period:
violent or otherwise dangerous persons could be disarmed.â); R. Brian
Tracz, Comment, Bruen and the Gun Rights of Pretrial Defendants,
- 28 -
No. 85658-8-I/29
172 U. PENN. L. REV. 1701, 1719 (2024) (providing historical overview
showing âsubstantial burdens were placed on the rights of dangerous
people to possess firearms before, at, and directly after the foundingâ).
Id. at 870-71 (emphasis added) (some alterations in original). We emphasized that
Washingtonâs disarming statutes address a societal problem that existed at the time
of our nationâs founding: âdisarming of those who posed a threat of violence to
others.â Id. at 873. As we explained,
At the time of our nationâs founding, â[f]elonies were so
connected with capital punishment that it was âhard to separate them.ââ
Medina v. Whitaker, 913 F.3d 152, 158, 439 U.S. App. D.C. 294
(2019) (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES *98). The
death penalty served as a means for ââpreventing crimes in the future;
[and] it was also a backward-looking effort at purging the community
of guilt for crimes committed in the past.ââ Williams, 113 F.4th at 658
(alteration in original) (quoting STUART BANNER, THE DEATH PENALTY:
AN AMERICAN HISTORY 15 (2009)). âThe key idea was that capital
punishment would âprevent existing criminals from repeating their
crimes.ââ Id. (quoting BANNER, supra, at 13). The range of felony cases
punishable by death then was quite broad and âincluded nonviolent
offenses that we would recognize as felonies today, such as
counterfeiting currency, embezzlement, and desertion from the army.â
Medina, 913 F.3d at 158. Early legislatures âauthorized punishments
that subsumed disarmamentâdeath or forfeiture of a perpetratorâs
entire estateâfor non-violent offenses involving deceit and wrongful
taking of property. United States v. Jackson, 110 F.4th 1120, 1127
(8th Cir. 2024). â[I]t is difficult to conclude that the public, in 1791,
would have understood someone facing death and estate forfeiture to
be within the scope of those entitled to possess arms.â Medina, 913
F.3d at 158. Washington has eliminated the death penalty, the
ultimate deprivation of individual rights, but a mandatory life sentence
without parole similarly subsumes disarmament.
Id. at 873 (alterations in original).
Here, the UPF1 statute under which Phillips was convicted forbids an
individual from possessing a firearm when, as pertinent here, the individual has been
convicted of a serious offense. RCW 9.41.040(1)(a). Our legislature defined a
serious offense, as pertinent here, as âany of the following felonies or a felony
- 29 -
No. 85658-8-I/30
attempt to commit any of the following felonies, as now existing or hereafter
amended: (a) Any crime of violence.â RCW 9.41.010(42).
Phillips was convicted of assault in the second degree pursuant to RCW
9A.36.021(1)(c) in King County Superior Court in 1996. Our legislature established
this crime as a class B felony and defined it as follows: âA person is guilty of assault
in the second degree if [they], under circumstances not amounting to assault in the
first degree: . . . Assault[] another with a deadly weapon.â RCW 9A.36.021(2)(a),
.021(1)(c). Considering the relevant statutes together, assault in the second degree
is a felony and a crime of violence, and thus, the UPF1 statute has the effect of
criminalizing possession of a firearm by an individual convicted of assault in the
second degree.
On appeal, Phillips asserts that such a statutory framework is an
unconstitutional permanent deprivation of his right to possess a firearm as applied
to him. This is so, according to Phillips, because restricting his right to bear arms
based on his prior violent felony conviction is inconsistent with the historical tradition
of our nation.22
Phillipsâ argument fails. He was convicted of a violent felony for his conduct
amounting to physical violence against a member of the public with a deadly
weapon. Such a conviction places Phillips squarely in the category of persons
deemed dangerous to the public order for the purpose of historical firearms
regulation. See Hamilton, 33 Wn. App. 2d at 870-71. Accordingly, a statutory
22 Phillips also contends that he is included as among âthe peopleâ for the purpose of the
protections of the Second Amendment. As in Hamilton, for the purpose of the first step in New
York State Rifle, we presume that Phillips is counted among âthe people.â 33 Wn. App. 2d at 870.
- 30 -
No. 85658-8-I/31
framework depriving him of the right to bear arms is consistent with the historical
tradition of our nation. Thus, the statutory framework he challenges is not
unconstitutional as applied to him. Accordingly, Phillips does not establish an
entitlement to appellate relief. 23
IV. Statement of Additional Grounds for Review
Phillips presents two additional grounds for relief on appeal in his statement
of additional grounds for review (SAG). Neither have merit.
Phillips first contends as follows:
October 2, 2022 I was booked into Snohomish Co. Jail for possesion
[sic] of a stolen firearm, DUI, reckless endangerment. A day or 2 later
after issuing and executing a search warrant they changed the poss
[sic] of stolen firarm [sic] to unlawful possesion [sic] of firearm 1st
degree. How did they know it was a stolen firearm before the issuance
and execution of a search warrant?
This claim misstates the record in this matter and, based on the record herein, he
does not establish error or prejudice.
Here, on October 3, 2022, one day after the incident at issue, EPD Detective
Sergeant Ryan Speer wrote the âSynopsis/[Probable Cause] for Arrestâ describing,
in pertinent part, the following:
The sole occupant of the suspect vehicle was ultimately arrested by
Mountlake Terrace PD on a variety of misdemeanor traffic charges, to
include DUI, DWLS[24] 3, Ignition Interlock Device Restriction,
23 Phillips also asserts that his UPF1 conviction is unconstitutional because he has
completed all of the terms of his sentence arising from his conviction of assault in the second
degree. However, he did not present this argument to the trial court nor does he offer citation to
the record or other evidence in support of establishing as much on appeal. Therefore, he has not
demonstrated that such an error is âmanifestâ for the purpose of reviewing such a claim for the first
time on appeal. See RAP 2.5(a). We thus decline to consider it.
24 Common abbreviation for the simple misdemeanor crime of driving while license
invalidated in the third degree. RCW 46.20.342. Previous versions of the statute referred to the
crime as driving with license suspended or revoked (DWLS) and the acronym remains in use by
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No. 85658-8-I/32
Obstructing a Law Enforcement Officer, and Refusal to Give
Information. In addition, a black semi-automatic pistol was visible on
the seat of the vehicle.
A search warrant of the moving truck was later issued by the Edmonds
Municipal Court and executed by Speer and Allen who reported as follows:
Located in the front seat partially covered by a dark gray work jacket
was the black semi-automatic pistol. The slide was locked to the rear
and a partially-inserted but empty pistol magazine was in the
magazine well. The pistol with S/N MT49643 clearly visible. A check
of that firearm through SnoCom showed it was reported stolen by
Tacoma PD. . . .
Based on this investigation, probable cause exists to charge Phillips
with the crimes of:
Possession of a Stolen Firearm
....
Unlawful Possession of a Firearm 1st Degree
....
Reckless Endangerment.
The record plainly establishes that Phillips was not booked into Snohomish
County Jail on a charge of possession of a stolen firearm but, rather, on charges of
âDUI, DWLS 3, Ignition Interlock Device Restriction, Obstructing a Law Enforcement
Officer, and Refusal to Give Information.â The firearm in question was not seized
until after a search warrant had been issued. The issuance of this search warrant
had been based, in part, on the presence of a firearm in the passenger cabin of the
truck that was visible from the exterior of the vehicle. It was not until after the firearm
was seized and its identification number was entered into a database of stolen
firearms that its connection to a reportedly stolen firearm was made.
many criminal law practitioners and law enforcement officers despite the change to the title of the
relevant statute. See former RCW 46.20.342 (1998).
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No. 85658-8-I/33
Furthermore, nothing in the record suggests that Phillips was booked into jail
or charged by the prosecution with possession of a stolen firearm in this matter.
Notably, although Speer indicated that probable cause existed to charge Phillips
with the crime of possession of a stolen firearm, neither the original information nor
the amended information reflect that he was ever so charged and the âto convictâ
instructions provided to the jury did not include that crime. Given that he was never
booked or charged with the crime of possession of a stolen firearm, he does not
establish error or prejudice and does not prevail on this issue.
Phillips next states that certain camera footage taken from the dashboard
video camera of a law enforcement vehicle would exonerate him of his convictions
of drive-by shooting and unlawful possession of a firearm in the first degree. RAP
10.10(c) provides that â[o]nly documents that are contained in the record on review
should be attached or referred to in the statement.â Because the camera footage
he references is not contained in the record on review, this SAG issue cannot be
considered. We therefore decline to reach the merits of this challenge.
Affirmed.
WE CONCUR:
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Case Information
- Court
- Wash. Ct. App.
- Decision Date
- September 15, 2025
- Status
- Precedential