Opinion
No. 35768-2-II.
July 22, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 05-1-02777-1, John P. Wulle, J., entered January 5, 2007.
Affirmed in part and remanded by unpublished opinion per Houghton, J., concurred in by Penoyar, A.C.J., and Hunt, J.
UNPUBLISHED OPINION
Ryan Garman appeals his convictions of unlawful possession of a controlled substance with intent to deliver, with school bus route stop and firearm enhancements; and unlawful manufacture of a controlled substance, with a school bus route stop enhancement. He argues that insufficient evidence supported the firearm enhancement, and that the trial court erred by failing to hold an in camera hearing to determine a confidential informant's (CI) identity and by failing to specify that he may not serve a combined sentence beyond the statutory maximum. We affirm his convictions but remand for clarification of his sentence.
FACTS
We derive the facts from the trial evidence, taken in the light most favorable to the State. State v. Myers, 133 Wn.2d 26, 37, 941 P.2d 1102 (1997).
On December 14, 2005, Camas Police Officer Scot Boyles and other officers executed a search warrant on Garman's residence to search for suspected marijuana and drug paraphernalia. Upon entering the residence, the officers contacted Garman in the bathroom getting into or out of the bathtub. Garman admitted to the officers that they would find marijuana in the residence and claimed ownership to anything found.
This name also appears in the record as Scott Boyles.
Garman's school-age son also lived at the residence, but he was not home when the officers executed the search warrant.
The officers discovered 1173.4 grams of marijuana, 26.7 grams of hashish, six firearms, drug paraphernalia, and what appeared to be drug ledger notes. They found the bulk of the marijuana in the garage. They found three firearms in the residence, one firearm in the garage near a door between the residence and garage, and one firearm in Garman's vehicle, none of which were loaded and one of which was dismantled. The officers found a loaded handgun and a second magazine for the handgun inside a top dresser drawer in the garage. They found ammunition for all of the firearms in the garage but found no ammunition inside the residence.
Officer Jeffrey Smith testified that one could not fire the handgun immediately because it had no round in the chamber but that "it would take a second or two to load" by pulling back the slide. VI-A Report of Proceedings at 417-18.
The search warrant affidavit relied on information provided by the CI. In the affidavit, Boyles stated in part that "[t]he [CI's] motivation for supplying this information is for monetary again." Clerk's Papers (CP) at 28.
Boyles also stated in the affidavit that (1) in the past 72 hours, a reliable CI had contacted him and related that, within the same 72-hour period, he or she was an invited guest at Garman's residence; (2) the CI positively identified Garman from a booking photo and reported that the residence's occupant was named Ryan, matching a records check on the property owner; (3) at the residence, the CI observed Garman in possession of what he or she recognized as marijuana and what Garman offered to the CI for sale as marijuana; (4) the CI observed a scale and a marijuana pipe inside the residence; (5) the CI reported that Garman was involved in the ongoing sale and use of marijuana, stored it in several different locations at the residence, and had offered him or her marijuana for sale on a previous occasion; (6) the CI could correctly identify marijuana; (7) the CI's directions to and descriptions of the property matched a records check; and (8) the CI participated in two controlled buys for the police. The affidavit relied solely on the CI's information regarding Garman.
The State charged Garman with one count of unlawful possession of a controlled substance with intent to deliver, marijuana, and one count of unlawful manufacture of a controlled substance, marijuana, both within 1,000 feet of a school bus route stop. On June 15, it filed an amended information adding firearm enhancements to both counts.
The State also initially charged Garman with one count of third degree possession of stolen property but dismissed the charge at the outset of trial.
Pretrial, Garman moved to disclose the CI's identity and to strike the firearm enhancements. He argued no evidence showed that the firearms were easily accessible to him or a nexus between him, the firearms, and his alleged crimes. The trial court denied both motions.
In denying Garman's motion for in camera review, the trial court made the following relevant findings: (1) the CI was an invited guest at Garman's residence within 72 hours of the affidavit and observed Garman engaged in the ongoing sale and use of marijuana and observed a scale and marijuana pipe; (2) the CI had been inside Garman's residence on previous unspecified occasions when Garman had offered him or her marijuana for sale; (3) the CI positively identified Garman, gave detailed instructions to his residence, identified marijuana for the police officers, and participated in two controlled marijuana buys; (4) the CI's motivation for supplying information was "`monetary gain'"; and (5) the CI contacted the police within 72 hours of issuance of the search warrant. CP at 105. It concluded in part that the affidavit's statement that the CI contacted the police was sufficient evidence that he or she was not on the police payroll or acting as a police agent and that the affidavit's statement that "`monetary gain'" motivated the CI only raised the inference that the CI could contact the police and be paid for information. CP at 106.
A jury heard the matter. At the close of the State's case, Garman again moved to dismiss the firearm enhancement, and the trial court denied the motion. The jury convicted Garman of unlawful possession of a controlled substance with intent to deliver and of unlawful manufacturing a controlled substance, both with school bus stop route enhancements. He was convicted of the firearm enhancement to the possession with intent to deliver charge but not of the firearm enhancement to the manufacturing charge. The trial court denied Garman's motion for a new trial or arrest of judgment, and he appeals.
ANALYSIS Firearm Enhancement
Garman first contends that insufficient evidence supported the firearm enhancement. He argues that no firearms were readily available to him for offensive or defensive purposes when the officers executed the search warrant. Thus, he asserts insufficient evidence showed a relationship between the firearms and the crime to find him armed during its commission.
We find evidence sufficient where, viewed in the light most favorable to the State, it supports a rational fact finder's finding of guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences drawn from it. Salinas, 119 Wn.2d at 201. On review, direct and circumstantial evidence carry equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004).
Under RCW 9.94A.602, a jury must find by special verdict whether a defendant was armed with a deadly weapon during the commission of a crime. We consider a defendant armed
A deadly weapon includes an unloaded firearm. State v. Mills, 80 Wn. App. 231, 235, 907 P.2d 316 (1995).
during the commission of a crime if the weapon is "`easily accessible and readily available for use, either for offensive or defensive purposes'" and there is a nexus between him, the weapon, and the crime. State v. Schelin, 147 Wn.2d 562, 567, 55 P.3d 632 (2002) (quoting State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993)). Whether a weapon is "easily accessible and readily available for use" is a fact-specific inquiry based on the nature of the crime, the type of weapon, and the circumstances under which the police found it. See State v. Gurske, 155 Wn.2d 134, 138, 142-44, 118 P.3d 333 (2005).
"In a constructive possession case, the nexus test ensures that a defendant will not face a sentencing enhancement due to the incidental presence of a firearm." State v. Easterlin, 126 Wn. App. 170, 173, 107 P.3d 773 (2005), aff'd on other grounds, 159 Wn.2d 203, 149 P.3d 366 (2006). Garman does not dispute that he was in constructive possession of firearms here.
Our Supreme Court's recent affirmance of a firearm enhancement conviction in State v. Neff clarifies the circumstances under which a sufficient nexus may support finding a defendant armed. 163 Wn.2d 453, 181 P.3d 819 (2008). The Neff court held that sufficient evidence supported a firearm enhancement where the police discovered a methamphetamine manufacturing laboratory and marijuana grow operation in the defendant's unattached garage and also found two loaded firearms in a locked safe containing bags of marijuana, a third loaded firearm hanging from a tool belt in the garage's rafters, and surveillance equipment inside the garage. 181 P.3d at 821-22, 825. When the officers apprehended him, Neff was outside leaving the scene, having tossed away the garage keys. Neff, 181 P.3d at 821.
The Neff court determined that this evidence sufficiently supported the inference that Neff was using the firearms found in the garage to protect his ongoing drug operations located there. 181 P.3d at 825. It also noted that, because a drug operation is a continuing crime, a defendant need not be armed at the moment of arrest to be armed for purposes of a firearm enhancement and may be "elsewhere when the police arrive." Neff, 181 P.3d at 825.
Here, the officers apprehended Garman inside his residence, and he admitted to possessing marijuana and claimed ownership to anything found. The officers found the bulk of 1173.4 grams of marijuana in Garman's garage, a quantity suggesting that the drugs were for more than personal consumption. The garage was attached to Garman's residence and accessible by a door from the residence, and he appeared to use it as a converted living space. In an unlocked top dresser drawer near the large quantity of drugs, the officers found a loaded handgun with a second magazine in the holster, notably the only loaded weapon found ready for immediate use. They also found a second unloaded firearm in the garage and additional ammunition for all of the firearms in the garage.
According to the State, the garage contained furniture, suggesting it served as another living or recreational room.
Viewed in the light most favorable to the State, sufficient evidence supported the jury's reasonable inference that Garman was conducting an ongoing drug operation in his garage, that the reason for the loaded handgun's presence in the garage was to guard the operation, and that a sufficient nexus existed between Garman, the weapon, and the crime to find him armed during commission of the crime. Garman's argument fails.
In Camera Hearing
Garman next contends that the trial court erred by failing to hold an in camera hearing on the CI's identity. He asserts that the hearing was necessary to determine whether the CI unlawfully entered his residence as a police agent, particularly in light of the search warrant affidavit's statement that the CI acted for monetary gain.
Garman informed the trial court that the only person inside his residence during the relevant time period was Marta Gibson, an uninvited acquaintance who abusively insisted on purchasing marijuana. He stated that he gave Gibson a small amount of marijuana "to get her to shut up" and to leave. CP at 10. He argued that Gibson was a paid informant who entered his house unlawfully to acquire information and provided false information to the police.
We review the trial court's decision whether to hold an in camera hearing regarding a CI's identity for an abuse of discretion. State v. Vargas, 58 Wn. App. 391, 395, 793 P.2d 455 (1990). A trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The "informer's privilege" is the State's privilege to withhold from disclosure the identity of CIs furnishing information to law enforcement. State v. Thetford, 109 Wn.2d 392, 395-96, 745 P.2d 496 (1987); RCW 5.60.060(5); CrR 4.7(f)(2). The privilege is not absolute and must give way if disclosure "is relevant and helpful to the defense . . . or is essential to a fair determination of a cause." Roviaro v. United States, 353 U.S. 53, 60-61, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957); CrR 4.7(f)(2). In determining whether disclosure is necessary, we also balance the public's interest in the flow of information from a CI against the defendant's right to prepare a defense. State v. Cleppe, 96 Wn.2d 373, 381, 635 P.2d 435 (1981). The defendant bears the burden to make an initial showing that the CI may have evidence bearing on his innocence. State v. Smith, 101 Wn.2d 36, 41-42, 677 P.2d 100 (1984).
Here, the trial court acted within its discretion in finding that the CI's statement regarding monetary gain was an insufficient basis upon which to require disclosure. The trial court reasoned that the affidavit also set forth facts showing that the CI had approached the police, negating an interpretation that he or she was on the police payroll. And even assuming Garman's argument regarding the CI's identity or that she was working for the police was correct, it would only tend to prove his guilt. See State v. Potter, 25 Wn. App. 624, 629, 611 P.2d 1282 (1980).
The trial court noted that all could be presumed from a motivation of monetary gain was that the CI approached the police in the hope of receiving a reward.
Garman did not dispute that he already possessed marijuana when Gibson came to his residence or that he gave it to her. Further, it is an acceptable police practice for officers to work with CIs in conducting controlled buys. See State v. Henderson, 64 Wn. App. 339, 341, 824 P.2d 492 (1992). In affording a suspect an opportunity to violate the law, the police may use "deception, trickery or artifice." State v. Swain, 10 Wn. App. 885, 889, 520 P.2d 950 (1974). "Entrapment occurs only where the criminal design originates in the mind of the police officer or informer . . ., and the accused is lured or induced into committing a crime he had no intention of committing." State v. Waggoner, 80 Wn.2d 7, 10, 490 P.2d 1308 (1971).
Garman otherwise failed to demonstrate how the CI's identity would aid in his defense because the CI was not present when the officers discovered the evidence at his residence and did not testify. The trial court did not abuse its discretion.
Sentence
Finally, Garman contends, and the State concedes, that the trial court failed to clarify that the total combination of his incarceration and community custody terms may not exceed the statutory maximum sentence. The State correctly concedes, and we remand to the trial court for clarification that Garman's combined sentence of 111 months plus 9 to 12 months of community custody may not exceed the statutory maximum of 120 months.
The statutory maximum sentence for a class B felony possession of a controlled substance with intent to deliver is 10 years or 120 months. RCW 69.50.401; RCW 9A.20.021(b).
We affirm the convictions but remand for clarification of the sentence.
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.
HUNT, J. and PENOYAR, A.C.J., concur.