STATE v. LOWERY, 25898-6-II (Wash.App. 12-13-2002)

No. 25898-6-IIThe Court of Appeals of Washington, Division Two.
Filed: December 13, 2002 UNPUBLISHED OPINION

Appeal from Superior Court of Lewis County Docket No: 99-1-00783-7 Judgment or order under review Date filed: 04/05/2000

Counsel for Appellant(s), David Dean Lowery (Appearing Pro Se), 121 Delray Rd, Mossyrock, WA 98564.

Wade Steven Samuelson (Appearing Pro Se), Olson Althauser Lawler
Samuelson, P.O. Box 210, Centralia, WA 98531-0210.

Counsel for Respondent(s), J. Andrew Toynbee, Attorney at Law, M/S Pr001, 360 N.W. North St, Chehalis, WA 98532-1925.

HOUGHTON, J.

David Lowery appeals his conviction of first degree unlawful possession of a firearm, arguing trial court evidentiary error.

We affirm.

FACTS[1]
On October 14, 1999, Sheriff McCroskey of the Lewis County Sheriff’s Office and Chief Clements of the Mossyrock Police Department responded to a complaint that Lowery had threatened two people. As the officers approached his residence, Lowery came outside to meet them.

Lowery invited the officers inside to listen to the message left by the complainant on his answering machine. Neither officer threatened or coerced Lowery into gaining entrance into the house. Lowery was not under arrest or in custody when the officers were in his house.

Once inside, the officers saw a Savage hunting rifle on the couch. As Clements handled the rifle and moved it for safety, Lowery stated that it was loaded. He also said that he was preparing to hunt with it and had purchased a hunting license.

After McCroskey, Clements, and Lowery listened to the tape, McCroskey asked for Lowery’s identification. Lowery indicated that he had his driver’s license outside in his truck, so the three proceeded to the truck, closing the door to the house behind them. After they were outside, McCroskey ran Lowery’s name with dispatch and discovered that he had been previously convicted of second degree assault.[2] The officers then arrested Lowery for unlawful possession of a firearm.

After Lowery’s arrest, Clements re-entered the house to retrieve the rifle. He did not ask Lowery’s permission to re-enter.

On October 15, the Lewis County Prosecutor’s Office contacted Deputy Sergeant Austin of the Lewis County Sheriff’s Office to obtain Lowery’s statement regarding the incident. Austin advised Lowery of his Miranda[3]
rights and Lowery waived those rights. Lowery then gave a taped statement, wherein he admitted to possessing the rifle.

A judge convicted Lowery of first degree unlawful possession of a firearm and he appeals.

ANALYSIS
Lowery first contends that the trial court erred by admitting the firearm into evidence because it was obtained through an illegal search of his residence. The State concedes that the firearm should have been suppressed. We agree and turn to Lowery’s other arguments.

Lowery also contends that the trial court should have suppressed the taped statement[4] made after his arrest because it was obtained as a result of an illegal search. And he asserts that absent the rifle, the remaining evidence does not support his conviction. Lowery’s argument fails because even assuming, without so holding, that the trial court erred admitting the statement, the remaining evidence supports his conviction of first degree unlawful possession of a firearm.[5] To find an error affecting a constitutional right harmless, we must find it harmless beyond a reasonable doubt. State v. Reuben, 62 Wn. App. 620, 626-27, 814 P.2d 1177 (citing Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986)), review denied, 118 Wn.2d 1006 (1991). We analyze harmless error under the “overwhelming untainted evidence” standard. Reuben, 62 Wn. App. at 627. We look only at the untainted evidence to determine if it is so overwhelming that it necessarily leads to a finding of guilty. Reuben, 62 Wn. App. at 627 (citing Guloy, 104 Wn.2d at 426).

Our review of the stipulated facts, exclusive of the rifle and Lowery’s taped statement, discloses the following: Lowery invited the officers into his home; there they saw a Savage hunting rifle; Chief Clements moved the rifle; Lowery said that the rifle was loaded and that he had purchased a hunting license and planned to hunt with it. Furthermore, it is undisputed that Lowery was convicted of a serious offense. This evidence overwhelmingly shows that Lowery possessed a firearm as defined in RCW 9.41.010(1).

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

QUINN-BRINTNALL, A.C.J., and MORGAN, J., concur.