Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, No. 88482-4-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION BARAKA ASABA, Appellant. FELDMAN, J.— Baraka Asaba appeals his conviction for first degree unlawful possession of a firearm, arguing the conviction is not supported by sufficient evidence and the trial court erroneously admitted inadmissible hearsay. We affirm. I On January 12, 2024, Asaba’s girlfriend reported to Everett police that Asaba had assaulted her with a firearm on January 11 and failed to return her motor vehicle. Police began searching for Asaba and, on January 18, investigating officers observed Asaba enter the front passenger seat of a Kia sedan while holding a bag. After observing the vehicle park, officers positioned themselves in front of and behind the vehicle and activated their lights and sirens. Following the stop, officers observed Asaba leaning down toward the floorboard. After Asaba exited the vehicle and was taken into custody, multiple No. 88482-4-I officers were able to see a firearm and bag on the front passenger floorboard. The firearm was later identified as a Smith and Wesson SD9VE with a magazine containing 9mm bullets, and an examination of the bag revealed that it contained Asaba's personal effects and several bullets matching those in the firearm. The State charged Asaba with first degree assault domestic violence, fourth degree assault domestic violence, and two counts of first degree unlawful possession of a firearm related to the alleged assault on January 11 and the arrest on January 18. A jury convicted Asaba of one count of unlawful possession of a firearm related to the January 18 arrest, and he was sentenced to 41 months of confinement. This timely appeal followed. II A. Sufficiency of the Evidence Asaba argues his conviction for first degree unlawful possession of a firearm is not supported by sufficient evidence. We disagree. In determining whether sufficient evidence supports the jury’s verdict, we must assess “‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” State v. Zghair, 4 Wn.3d 610, 619-20, 567 P.3d 1 (2025) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). Our standard of review in a challenge to the sufficiency of the evidence is “‘highly deferential to the jury’s decision.’” In re Pers. Restraint of Arntsen, 2 Wn.3d 716, 724, 543 P.3d 821 (2024) (quoting State v. Davis, 182 Wn.2d 222, 227, 340 P.3d 820 (2014)). “[A]ll reasonable inferences from the -2- No. 88482-4-I evidence must be drawn in favor of the State and interpreted most strongly against the defendant.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Also, “[c]ircumstantial and direct evidence are equally reliable, and we defer to the trier of fact on conflicting testimony, witness credibility, and the persuasiveness of the evidence.” State v. Raleigh, 157 Wn. App. 728, 736-37, 238 P.3d 1211 (2010). “We review the sufficiency of the evidence in light of the instructions given.” Millies v. LandAmerica Transnation, 185 Wn.2d 302, 313, 372 P.3d 111 (2016) (internal citations and footnote omitted). To convict Asaba of unlawful possession of a firearm, the jury was instructed in relevant part: To convict the defendant of the crime of unlawful possession of a firearm in the first degree, as charged in Count 4, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about the 18th day of January, 2024, the defendant knowingly owned a firearm or knowingly had a firearm in his possession or control. (2) That the defendant had previously been convicted of a serious offense; and (3) That the ownership or possession or control of the firearm occurred in the State of Washington. Regarding the meaning of “knowingly” or “with knowledge,” the jury was further instructed: A person acts knowingly or with knowledge with respect to a fact circumstance or result when he or she is aware of that fact, circumstance, or result. It is not necessary that the person know that the fact, circumstance, or result is defined by law as being unlawful or an element of a crime. If a person has information that would lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted but not required to find that he or she acted with knowledge of that fact. When acting knowingly as to a particular fact is required to establish an element of a crime, the element is also established if a person acts intentionally as to that fact. As to the meaning of possession, including both actual and constructive -3- No. 88482-4-I possession, the jury was also instructed: Possession means having a firearm in one’s custody or control. It may be either actual or constructive. Actual possession occurs when the item is in the actual physical custody of the person charged with possession. Constructive possession occurs when there is no actual physical possession but there is dominion and control over the item. Proximity alone without proof of dominion and control is insufficient to establish constructive possession. Dominion and control need not be exclusive to support a finding of constructive possession. In deciding whether the defendant and dominion and control over an item, you are to consider all the relevant circumstances in the case. Factors that you may consider, among others, include whether the defendant had the ability to take actual possession of the item, whether the defendant had the capacity to exclude others from possession of the item, and whether the defendant had dominion and control over the premises where the item was located. No single one of these factors necessarily controls your decision. Because no party objected to these instructions, they are “law of the case” and “‘are treated as the properly applicable law for purposes of appeal.’” State v. Johnson, 188 Wn.2d 742, 755, 399 P.3d 507 (2017) (quoting Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005)). Sufficient evidence supports the jury’s verdict as to the charged offense. The previous conviction element is not at issue, as Asaba stipulated he was previously convicted of a serious crime that would make it illegal for him to knowingly own or possess a firearm. As to the elements of knowledge and possession, the firearm at issue was visible from the passenger window, was positioned underneath Asaba’s seat, and was discovered next to a bag containing some of his belongings and bullets of the type used in the firearm. Further, multiple officers on the scene attested to seeing Asaba lean down to the floorboard prior to exiting the vehicle. Finally, the State also presented at trial video evidence showing Asaba wielding what appeared to be a similar firearm. Based on this -4- No. 88482-4-I evidence, a rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Asaba’s contrary arguments lack merit. Asaba likens his case to cases like State v. Chouinard, 169 Wn. App. 895, 282 P.3d 117 (2012), and State v. George, 146 Wn. App. 906, 193 P.3d 693 (2008). In both cases, the court concluded there was insufficient evidence to establish constructive possession of a firearm (in Chouinard) or drug paraphernalia (in George) where the defendant was a passenger in a vehicle in which those items were found. Summarizing both cases, the court in Chouinard stated: Like George, here Chouinard rode as a backseat passenger, and then police stopped the vehicle in which he rode and found contraband near his seat. Both George and Chouinard knew the contraband was in the vehicle next to them, and in neither case did the State offer evidence that the defendants owned or used the contraband. Also, like George, which dealt with drug possession, a jury convicted Chouinard on a constructive possession theory, and there, Division One reversed for insufficient evidence, holding that, although George rode as a passenger in near proximity to the contraband with knowledge of the contraband’s presence next to him, the State produced insufficient evidence to establish dominion and control and convict him for constructive possession. We apply this reasoning here. As in George, the State demonstrated Chouinard’s mere proximity to the weapon and his knowledge of its presence in the vehicle. This evidence, alone, does not sustain a conviction for constructive possession of a firearm. Chouinard, 169 Wn. App. at 902-03. Based on the absence of evidence establishing dominion and control, the court in both cases reversed the defendant’s conviction. Id. at 903; George, 146 Wn. App. at 923. Here, in contrast to Chouinard and George, there is evidence beyond mere proximity and knowledge to support Asaba’s conviction, including testimony of multiple officers regarding Asaba’s movements prior to exiting the vehicle, the -5- No. 88482-4-I location and contents of Asaba’s bag, and video evidence showing Asaba holding what appeared to be a similar firearm. On this record, Chouinard and George are distinguishable. And while Asaba points to evidence purportedly negating knowledge, such as the location of the firearm and lighting conditions, the applicable standard of review requires the court to defer to the trier of fact on conflicting testimony, witness credibility, and the persuasiveness of the evidence and draw all reasonable inferences from the evidence in the State’s favor. Raleigh, 157 Wn. App. at 736-37. Applying that standard of review, there is sufficient evidence for a rational trier of fact to have found the elements of the crime beyond a reasonable doubt. B. Admission of Hearsay At trial, the prosecutor asked the arresting officer, Brandon Hoelzel, “Without telling us what the driver said at this point, what did you do with the driver?” Officer Hoelzel responded: So, Sergeant Bennett was speaking with the driver of the vehicle as I walked up to the driver’s side. Sergeant Bennett explained to me that there was personal property belonging to Mr. Asaba in the passenger area. So, Sergeant Bennett went around to the passenger side as I kind of stood next to the driver. And then --. As can be seen, Officer Hoelzel repeated Sgt. Bennett’s statement that “there was personal property belonging to Mr. Asaba in the passenger area.” Asaba objected to the answer on hearsay grounds. The trial court concluded that Officer Hoelzel was “explaining what he did” and “it is relevant what somebody told him” and overruled the objection. -6- No. 88482-4-I Asaba claims Sgt. Bennett’s statement to Officer Hoelzel is inadmissible hearsay. ER 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” “Out-of-court statements offered to show their effect on the listener, regardless of their truth, are not hearsay.” State v. Heutink, 12 Wn. App. 2d 336, 356-57, 458 P.3d 796 (2020) (quoting Henderson v. Tyrrell, 80 Wn. App. 592, 620, 910 P.2d 522 (1996)). “To be admissible on [this] basis, the listener’s state of mind must be relevant to some material fact.” Id. at 357. While we review the admission of evidence under a hearsay exception for abuse of discretion, we review whether a statement was hearsay de novo. Id. at 356. In determining whether statements that would otherwise be excludable as hearsay are relevant to show their effect on the listener, we also apply ER 401, which states that evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence.” See State v. Israel, 113 Wn. App. 243, 268 n.4, 54 P.3d 1218 (2002); State v. Luvene, 127 Wn.2d 690, 706, 903 P.2d 960 (1995). We review a trial court’s rulings under ER 401 for abuse of discretion, which occurs when the trial court’s decision is manifestly unreasonable or based on untenable reasons or grounds. Luvene, 127 Wn.2d at 706-07; State v. Slater, 197 Wn.2d 660, 674, 486 P.3d 873 (2021). Here, Sgt. Bennett’s statement to Officer Hoelzel is not hearsay because it was not offered in evidence to prove the truth of the matter asserted. As noted, the State asked Officer Hoelzel, “what did you do with the driver?” Hoelzel then -7- No. 88482-4-I explained that he moved the driver away from the vehicle and frisked him before returning to the passenger side of the vehicle. Thus, Sgt. Bennett’s statement to Officer Hoelzel that “there was personal property belonging to Mr. Asaba in the passenger area” was offered in evidence to show its effect on Officer Hoelzel, including why he acted as he did in moving the driver away from the vehicle. This sequence of events was independently relevant, as the driver was another potential possessor of the firearm and the testimony established when and why the occupants were secured relative to the officers’ observations of the firearm on the floorboard. The prosecutor likewise confirmed that the statement was “not being offered to prove there was a gun in the car,” but instead “to explain why he frisked the driver.” On this record, the trial court correctly overruled Asaba’s hearsay objection because Officer Hoelzel was “explaining what he did” and “it is relevant what somebody told him.” Asaba argues State v. Rocha, 21 Wn. App. 2d 26, 504 P.3d 233 (2022), is controlling here. In Rocha, the appellant sought to overturn an arson conviction after lighting a car on fire on his father’s property. Id. at 29. The elements of arson required evidence that the defendant “acted knowingly and maliciously,” and the jury was instructed that “malice and maliciously” meant “an evil intent, wish, or design to vex, annoy, or injure another person.” Id. at 34 (emphasis omitted). At trial, Rocha moved to exclude all statements officers had received from the 911 dispatcher, specifically that he and his father were in a “domestic dispute.” Id. at 29. The trial court overruled the objection. Id. at 30. Division Three reversed, holding the statement from the 911 dispatcher had no purpose other than to prove -8- No. 88482-4-I Rocha had a motive to set fire to the vehicle. Id. at 32. In contrast, the testimony at issue here had a relevant purpose other than to prove knowledge and possession. Accordingly, Rocha is inapposite. But even if the trial court erred in overruling Asaba’s hearsay objection, any error in admitting Sgt. Bennett’s statement to Officer Hoelzel was harmless. Under the nonconstitutional harmless error standard, Asaba is not entitled to a new trial unless he shows that “within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.” State v. Wasuge, 5 Wn.3d 877, 890, 582 P.3d 320 (2026) (internal quotation marks omitted) (quoting State v. Goggin, 185 Wn. App. 59, 69, 339 P.3d 983 (2014)). “The improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole.” Id. at 890 (quoting State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997)). Applying this test here, there was sufficient evidence by which the jury could convict Asaba of first degree unlawful possession of a firearm, including the firearm’s location, the matching Blazer 9mm ammunition, the contents of Asaba’s bag, the testimony of multiple officers that Asaba leaned down to the floorboard prior to exiting the vehicle, and video evidence showing Asaba wielding what appeared to be a similar firearm. This evidence independently established knowledge and possession. Further, Sgt. Bennett’s statement was of little significance at trial; the State did not ask any other witnesses (including Sgt. Bennett) about the statement and did not mention the statement in its closing argument. Accordingly, any error in admitting the statement was harmless. -9- No. 88482-4-I Asaba argues Rocha is controlling on this issue as well. The hearsay statement in Rocha was the only evidence supporting the finding that Rocha had an evil intent to vex or annoy another person. 21 Wn. App. 2d at 34. Accordingly, addressing harmless error, Division Three concluded “there is a reasonable probability that, without the error, the outcome of the trial would have been materially affected.” Id. at 35. The record here is markedly different. As the above discussion confirms, there is ample non-tainted evidence supporting the disputed elements of the crime. Thus, both with regard to evidentiary error and prejudice, Asaba’s reliance on Rocha is misplaced. We affirm. WE CONCUR: - 10 -