Opinion
No. 31015-5-II
Filed: November 16, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 03-1-02711-3. Judgment or order under review. Date filed: 10/17/2003. Judge signing: Hon. Brian Maynard Tollefson.
Counsel for Appellant(s), Stephanie C. Cunningham, Attorney at Law, 4616 25th Ave NE #552, Seattle, WA 98105.
Counsel for Respondent(s), Miry Kim, Pierce Co Pros Attorney, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Johnny Cash appeals his conviction and sentence for unlawful delivery of a controlled substance, arguing that the trial court erred in excluding certain evidence, that insufficient evidence supports his conviction, and that the offender score used to calculate his sentence is incorrect. We affirm.
Facts
On June 9, 2003, the Tacoma Police Department conducted an undercover operation in which it used confidential informant Mark Moyer to buy drugs from street dealers. Before dropping Moyer off in an area known for drug activity, the police attached audio and video wires to him, searched him for drugs and money, and gave him a prerecorded $20 bill.
Once Moyer was on the street, he made contact with an individual with the last name of Dale. Moyer told Dale he wanted to buy a $20 rock of cocaine, and Dale said that he would find some. When a maroon Ford pulled up in a nearby alley, Dale approached it. Moyer followed him and then backed away, but not before seeing the driver, whom he subsequently identified as Cash. He saw Cash fiddling with something in his hand that appeared to be a rock or plastic with a rock inside.
After walking away from the car, Dale exchanged a rock of cocaine for Moyer's $20 bill. Moyer then signaled that the transaction was complete.
The police moved in and arrested Dale and saw Cash and a woman walking toward the Ford. The couple saw the police arresting Dale, got into the Ford, and sped away. The police then followed the Ford and arrested Cash after he ran from the car. The police also apprehended the woman, whom they identified as Margaret Parker, after she attempted to drive the Ford away. They found the prerecorded $20 bill in Parker's shirt pocket. After being read his Miranda rights, Cash told the officers that he was selling drugs to help Parker with her medical bills and that he no longer had drugs in his possession because he had sold them all.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
By amended information, the State charged Cash with unlawful delivery of cocaine within 1000 feet of a school bus stop. Before trial, the court ruled that Cash could not use Parker's 1993 second degree theft conviction to impeach her testimony under ER 609 because the conviction was more than 10 years old. The trial court adhered to this ruling after Parker testified that she had never been in trouble. The court also declined to admit Moyer's 2002 shoplifting charge because the municipal court had entered a `continuance without finding' that did not constitute a conviction. Report of Proceedings (RP) at 53.
Moyer, Parker, and members of the Tacoma Police Department testified to the facts cited above, and Officer Scott Yenne testified that the drug transaction took place within 1000 feet of two different school bus stops. A routing specialist for the Tacoma School District confirmed that the transaction occurred within 1000 feet of an active school bus stop.
After the jury found Cash guilty as charged, the parties agreed that he had an offender score of eight. The trial court imposed a standard range sentence of 90 months on the underlying charge and 24 months on the sentence enhancement. Cash now appeals his conviction and sentence.
Discussion I.
Cash argues initially that the trial court erred in excluding evidence of Parker's prior theft conviction.
Before trial, the court ruled that Parker's 1993 theft conviction was inadmissible under ER 609. This rule allows the credibility of a witness to be attacked with evidence of a prior conviction. ER 609(a); State v. Rivers, 129 Wn.2d 697, 705, 921 P.2d 495 (1996). A conviction more than 10 years old is not admissible, however, unless specific facts and circumstances show that its probative value outweighs its prejudicial effect. ER 609(b); State v. Russell, 104 Wn. App. 422, 436-37, 16 P.3d 664 (2001).
During the State's direct examination, Parker referred to the fact that she was facing charges from the drug transaction at issue and added, `I've never been in trouble like this. I've never been in trouble.' RP at 257. The defense tried to explore this statement on cross examination:
[COUNSEL]: Ms. Parker, you said prior that you've never been in trouble before.
[PARKER]: Not like this. I was in trouble once 10 years ago.
[COUNSEL]: Really? What was that for?
[PARKER]: My mom and I lived together and she woke up at 1:00 in the morning and didn't see her car outside of the front window. She immediately called the police. Then after she talked to them, told them the car was stolen, she got up and went to my room and I wasn't in there, she remembered she let me use the car, but this was 1:00 in the morning. So she called them back and told them, [m]y daughter has the car.
[COUNSEL]: Is your testimony that you've never been in trouble since that time until this time?
RP at 259-60. When the State objected, defense counsel argued that Parker had opened the door to questions about her 1993 conviction by claiming that she had never been in trouble before. The court adhered to its prior ruling that the conviction was inadmissible and added that Parker did not open the door to questioning about the prior theft conviction.
A trial court's decision to admit or exclude evidence will not be disturbed on appeal absent abuse of discretion. State v. Alexander, 64 Wn. App. 147, 156, 822 P.2d 1250 (1992). Similarly, a court's decision regarding the scope of cross examination is reviewed for abuse of discretion. State v. Campbell, 103 Wn.2d 1, 20, 691 P.2d 929 (1984). A trial court abuses its discretion only if no reasonable person would adopt the view taken by the trial court. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001).
We do not question the trial court's initial decision to exclude Parker's prior theft conviction, but we do take issue with the court's decision barring cross examination concerning that conviction after she testified that she had never been in trouble. `The long-standing rule in this state is that a criminal defendant who places his character in issue by testifying as to his own past good behavior, may be cross-examined as to specific acts of misconduct unrelated to the crime charged.' State v. Brush, 32 Wn. App. 445, 448, 648 P.2d 897 (1982). When a witness `opens the door,' the opposing party may introduce prior convictions to counter assertions of a law abiding past regardless of whether the conviction would have been admissible under ER 609. See Brush, 32 Wn. App. at 451; Karl B. Tegland, 5D Wash. Prac. Rule 609, at 301 (2003). The Brush court cited a fifth circuit opinion that explained why the federal counterpart to ER 609 does not always bar impeachment with an older conviction:
We do not believe that Rule 609 was meant to cover this particular species of impeachment use of a prior conviction. Rule 609 was crafted to apply in those cases where the conviction is offered only on the theory that people who do certain bad things are not to be trusted to tell the truth. Here, the evidence had a different, surer value in that it directly contradicted the position taken by the witness.
United States v. Johnson, 542 F.2d 230, 234-35 (5th Cir. 1976).
Here, too, the defense sought to use Parker's prior theft conviction to directly contradict her assertion that she had never been in trouble before. The State argues that her statement was confined to prior drug trouble, but we do not read it so narrowly. We hold that the trial court abused its discretion in ruling that Parker did not open the door to questioning about her prior theft conviction and in excluding such impeachment under ER 609.
An erroneous evidentiary ruling is reviewed under the nonconstitutional harmless error standard. Rivers, 129 Wn.2d at 706. Such a ruling is not reversible error unless the court determines that within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected. Rivers, 129 Wn.2d at 706.
Parker testified that she was ill and asleep in the back of the car at the time of the alleged drug transaction. Her only material assertion was that Cash put something in her front shirt pocket before he ran from the car. When asked whether she was testifying in order to get Cash into trouble, she replied, `No. Why should I get the man in trouble, I didn't see him do anything.' RP at 259.
Although Cash argues on appeal that Parker is the only witness who connects him to the marked $20 bill, ample circumstantial evidence supplies that connection as well: Moyer testified that he gave the money to Dale for drugs and that Dale had drugs only after interacting with Cash, who was driving the car that carried Parker. An officer testified that he took the prerecorded money from Parker's pocket as soon as she was apprehended, which was shortly after the transaction occurred. Given this evidence, as well as Cash's admissions that he was dealing drugs, we see no reasonable probability that the outcome of the trial was affected by the exclusion of Parker's prior theft conviction.
II.
Cash argues next that the trial court erred in excluding evidence regarding the `continuance without finding' entered following Moyer's arrest for shoplifting in 2002. RP at 53. He contends that this evidence was admissible under ER 608(b).
ER 608(b) provides that, for purposes of attacking a witness's credibility, specific instances of conduct may, in the court's discretion, be inquired into on cross examination if probative of truthfulness or untruthfulness. State v. Johnson, 90 Wn. App. 54, 71, 950 P.2d 981 (1998). Conduct involving fraud or deception is indicative of a general disposition regarding truthfulness. Johnson, 90 Wn. App. at 71. Acts of misconduct that do not result in a conviction, however, are usually inadmissible for impeachment under ER 608. State v. Cardenas, 146 Wn.2d 400, 413, 47 P.3d 127 (2002), cert. denied, 538 U.S. 912 (2003); K. Tegland, 5A Wash. Prac. sec. 608.6 at 351-62 (1999).
Cash does not dispute that the `continuance without finding' entered in Moyer's shoplifting case does not constitute a conviction. RP at 53. He argues, however, that this evidence should have been admitted anyway because it was needed to explore the State's `deal' with Moyer concerning his testimony.
The State responds that it made no deal with Moyer concerning his shoplifting charge, and points out that the municipal court's final order was entered in October 2002, which was several months before the offense at issue occurred. We see no abuse of discretion in the trial court's refusal to admit evidence of Moyer's shoplifting charge.
III.
In a pro se brief, Cash asserts that the evidence was insufficient to support his underlying conviction and the school bus sentencing enhancement.
Evidence is sufficient if, when viewed in the light most favorable to the prosecution, it permits a rational trier of fact to find each essential element of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Credibility determinations are for the trier of fact. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
The trial court instructed the jury that to convict Cash of unlawful delivery of a controlled substance, it had to find the following elements proved beyond a reasonable doubt:
(1) That on or about the 9th day of June, 2003, the defendant delivered a controlled substance;
(2) That the defendant knew that the substance delivered was a controlled substance[,] cocaine; and
(3) That the acts occurred in the State of Washington.
Clerk's Papers (CP) at 25. The court added that `[d]eliver means the actual or constructive transfer of a controlled substance from one person to another,' and it defined a constructive transfer as `the transfer of a controlled substance either belonging to the defendant or under his direct or indirect control, by some other person or manner at the instance or direction of the defendant.' CP at 26-27. Cash now asserts that there was insufficient evidence to prove that he constructively sold drugs to Moyer through Dale.
When viewed in the light most favorable to the State, the evidence shows that Dale did not have any drugs until after he spoke with Cash, whom Moyer saw sitting in the Ford. Directly after his brief interaction with Cash, Dale approached Moyer and sold him a rock of cocaine. In addition, Cash admitted shortly after his arrest that he had been selling drugs. This evidence is sufficient to prove that he sold cocaine to Moyer with Dale's assistance.
Cash also asserts that the evidence was insufficient to prove that he sold cocaine within 1000 feet of a school bus stop. Officer Yenne testified that the transaction took place within 1000 feet of two different stops, and a school district employee confirmed that the location of the transaction was within 1000 feet of an active school bus stop. This evidence is sufficient to support the sentencing enhancement.
IV.
Finally, Cash asserts that his offender score of eight should have been reduced to five. He argues that if this argument is deemed waived because he stipulated to his offender score, he received ineffective assistance of counsel.
The record shows that after the trial court ruled that Cash's two 1991 convictions constituted the same criminal conduct, he stipulated to an offender score of eight. This score included a 1980 Arkansas burglary conviction and two convictions Cash committed in Washington on August 4, 1999: unlawful possession of a controlled substance and unlawful possession of a controlled substance with intent to deliver. Cash also had one point added to his offender score because he was in community custody when he committed his current offense. Cash now asserts that (1) his 1980 conviction `washed;' (2) his community custody violation does not count because his term of community custody terminated before he committed his current offense; and (3) his two 1999 convictions counted as one offense under the same criminal conduct rule.
Cash's claims regarding his 1980 burglary and his community custody violation survive his stipulation because, if accurate, they show the presence of a legal error that cannot be waived. See In re Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002). There is no support in the record, however, for either allegation of error. Cash's 1980 burglary was classified as a class B felony that washed only if Cash was crime free for 10 years following his release from confinement. RCW 9.94A.525(2). The record does not indicate when he was released from confinement or whether he was crime free for 10 years before he committed his next offense on February 19, 1991. Nor does the record establish that Cash's community custody terminated before he committed his current offense. Because the record contains no support for these claims of error, they are not considered further.
Cash's `same criminal conduct' argument is waived by his stipulation because it involves a matter of discretion. See Goodwin, 146 Wn.2d at 875 (citing State v. Nitsch, 100 Wn. App. 512, 520, 997 P.2d 1000 (2000)). Given Cash's alternative assertion of ineffective assistance, however, we will address the merits of his argument. To prevail, Cash must show that his attorney was deficient in failing to make a same criminal conduct argument and that this deficiency was prejudicial. See State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996).
When a defendant's history includes multiple prior convictions, the trial court is to determine whether two or more offenses served concurrently constitute the same criminal conduct. RCW 9.94A.525(5)(a)(i). Prior offenses that encompassed the same criminal conduct count as a single offense for purposes of the offender score. RCW 9.94A.525(5)(a)(i). `Same criminal conduct' is defined as two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim. RCW 9.94A.589(1)(a).
Unlawful possession of a controlled substance requires mere possession and no specific criminal intent. See former RCW 69.50.401(d); State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). Unlawful possession of a controlled substance with intent to deliver requires proof of an intent to sell drugs in the future. State v. Burns, 114 Wn.2d 314, 319, 788 P.2d 531 (1990). Cash's two 1999 offenses do not require the same criminal intent and do not constitute the same criminal conduct. Consequently, his attorney was not deficient in failing to make a same criminal conduct argument concerning these offenses and Cash did not receive ineffective assistance of counsel.
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.
BRIDGEWATER, P.J. and ARMSTRONG, J., Concur.