State v. Abuan
257 P.3d 1
| Wash. Ct. App. | 2011Background
- Abuan was convicted of drive by shooting and two counts of second degree assault with firearm enhancements; he challenges the pat down of a vehicle passenger and the vehicle search incident to arrest as violating Art. I, §7; the State charged two separate assault counts, including one against Fomai Leoso (count VI); the court granted a suppression issue on appeal and remanded to dismiss count VI with prejudice; the gun and related statements were obtained in part from searches following Howell’s arrest for driving with a suspended license; the evidence at trial included gang-related testimony and the August 15, 2007 drive-by near the Leoso residence; the majority holds the vehicle search unlawful and the Count VI conviction insufficient, while a dissent would affirm Count VI on transferred or alternative theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Pat down of Abuan incident to driver’s arrest violated Art. I, §7 | Abuan argues the pat down was unconstitutional. | State did not address the issue at trial; retroactive review possible. | Yes; pat down violated Art. I, §7. |
| Warrantless vehicle search incident to Howell’s arrest was unlawful | Abuan argues the vehicle search was invalid and should be suppressed. | State argues waiver/retroactivity and exceptions; but record shows no valid basis. | Unlawful; suppression required; Howell’s arrest could not justify the vehicle search. |
| Sufficiency of the evidence for Count VI (second degree assault of Fomai Leoso) | Abuan contends there was insufficient evidence of intended bodily harm or fear for Count VI. | State contends sufficient circumstantial and transferred-intent theories support the conviction. | Insufficient evidence; Count VI vacated and dismissed with prejudice. |
| Waiver/preservation of suppression issues after Gant and Afana | Abuan should be allowed to challenge suppression on appeal given retroactivity and Afana. | State argues waiver; but Afana supports appellate review of suppression challenges. | Manifest error review supports appellate consideration of suppression issues. |
| Sufficiency of the evidence for transferred-intent theory under second degree assault (in dissent) | Argues Elmi-based transferred-intent could sustain Count VI. | Majority rejects transferred-intent for second degree assault absent explicit instruction. | Not adopted by court; Count VI insufficiently proven under the majority view. |
Key Cases Cited
- State v. Afana, 169 Wash.2d 169 (2010) (vehicle search under Art. I, §7 violated; rejects good-faith/inevitable-discovery excuses)
- State v. Patton, 167 Wash.2d 379 (2009) (retroactivity/waiver considerations for suppression issues)
- State v. Valdez, 167 Wash.2d 761 (2009) (exclusionary rule under Art. I, §7; search incident to arrest standards)
- Arizona v. Gant, 556 U.S. 332 (2009) (vehicle search incident to arrest framework (Fourth Amendment) informally relied upon by Afana/Valdez)
- Elmi, 166 Wash.2d 209 (2009) (transferred intent and assault concepts under first-degree/second-degree framework)
- Byrd, 125 Wash.2d 707 (1995) (specific intent elements of second-degree assault require intent to cause harm or create apprehension of harm)
- Eastmond, 129 Wash.2d 497 (1996) (context on intent to cause bodily harm and apprehension)
- Krup, 36 Wash.App. 454 (1984) (two concepts of common-law assault: attempt to injure and causing apprehension of harm)
- Frazier, 81 Wash.2d 628 (1972) (assault concepts include attempt with unlawful force regardless of victim’s awareness)
- Miller, 71 Wash.2d 143 (1967) (fear appurtenant to gun-pointing evidence; foundational for fear-in-fact analysis)