Opinion
42047-3-II
01-29-2013
STATE OF WASHINGTON, Respondent, v. THOMAS JAMES McCOY, Appellant.
UNPUBLISHED OPINION
Johanson, A.C.J.
A jury convicted Thomas James McCoy of manufacturing, possessing, and intending to deliver marijuana and first degree unlawful firearm possession. McCoy appeals his convictions and his sentence. Because McCoy's prior California conviction for assault with a deadly weapon is factually comparable to a second degree assault in Washington, the California conviction properly served as a predicate serious offense to unlawful firearm possession. Consequently, the trial court correctly included the California conviction in McCoy's offender score. We also conclude that sufficient evidence supports his marijuana convictions. Accordingly, we affirm McCoy's convictions and sentence.
FACTS
In May 2006, when officers responded to a call at McCoy's home, they smelled a strong marijuana odor. McCoy explained that he had a medical marijuana card, 49 marijuana plants, and that he donated any marijuana he could not personally use to a marijuana clinic. When asked if he had any weapons in his home, McCoy admitted that he kept a pistol in his bedroom.
Law enforcement located and seized McCoy's medical marijuana authorization paperwork; indoor marijuana growing equipment; scales; packaging materials; a Davis Industries .380 semiautomatic pistol and ammunition; over 300 marijuana plants, including 68 budding/flowering marijuana plants; harvested marijuana in various stages of curing; and over $250 in cash.
The State charged McCoy with (1) unlawful manufacture of marijuana, (2) unlawful marijuana possession with intent to deliver, (3) unlawful possession of over 40 grams of marijuana, and (4) first degree unlawful firearm possession. The State charged the firearm offense, applying a 1981 California assault with a deadly weapon conviction as the predicate conviction. The California conviction included an enhancement for committing the assault while using a firearm. The jury convicted McCoy on each of the four counts.
RCW 69.50.401(1), (2)(c).
RCW 69.50.401(1), (2)(c).
At sentencing, the trial court reiterated its earlier ruling that the California assault with a deadly weapon conviction was comparable to second degree assault in Washington. Accordingly, the trial court added to McCoy's offender score a point for the California conviction. McCoy timely appeals his judgment and sentence.
ANALYSIS
I. Prior California Conviction
McCoy argues that the trial court erred in finding that his California conviction for assault with a deadly weapon was comparable to a second degree assault in Washington. McCoy reasons that if his California conviction is not comparable to Washington's second degree assault statute, then it cannot serve as the predicate offense to an unlawful firearm possession charge; and further, his California conviction should not be included in his offender score. We disagree because the California conviction is factually comparable to Washington's second degree assault statute and therefore the trial court did not err.
A. Standards of Review and Rules of Law
First degree unlawful possession of a firearm requires that the State prove that the defendant has "been convicted . . . in this state or elsewhere of any serious offense as defined in this chapter." RCW 9.41.040(1)(a). For purposes of an out-of-state conviction, a "serious offense" is "[a]ny felony offense . . . that is comparable to a serious offense" in Washington at the time the offense was committed. RCW 9.41.010(16)(o). We review de novo whether a prior out-of-state conviction is comparable to a Washington statute. State v. Werneth, 147 Wn.App. 549, 552, 197 P.3d 1195 (2008).
The sentencing court employs a two-part test to determine the comparability of a foreign offense. State v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d 580 (2007). First, it must determine whether the foreign offense is legally comparable—whether the elements of the foreign offense are substantially similar to the elements of the Washington offense. Thiefault, 160 Wn.2d at 415. Second, if the foreign offense elements are broader than Washington's elements, precluding legal comparability, the sentencing court must determine whether the offense is factually comparable—whether the conduct underlying the foreign offense would have violated the comparable Washington statute. Thiefault, 160 Wn.2d at 415. In making its factual comparison, the sentencing court may rely on facts in the foreign record that are admitted, stipulated to, or proved beyond a reasonable doubt. Thiefault, 160 Wn.2d at 415. We may review the defendant's conduct, as evidenced by the facts alleged in the charging document and proved beyond a reasonable doubt, to determine whether his conduct would have violated the comparable Washington statute. See State v. Duke, 77 Wn.App. 532, 535, 892 P.2d 120 (1995).
We review de novo a sentencing court's calculation of an offender score. State v. Mutch, 171 Wn.2d 646, 653, 254 P.3d 803 (2011). Where a defendant's criminal history includes out-of-state convictions, the court must classify the convictions "according to the comparable offense definitions and sentences provided by Washington law." RCW 9.94A.525(3); State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999).
B. Finding of Comparability
Here, the trial court compared the elements of the California and Washington statutes and found that McCoy's California conviction was comparable to a second degree assault in Washington. The trial court did not perform the two-part test that requires a legal comparability analysis, followed by a factual comparability analysis only if the legal comparability analysis results in a finding of no legal comparability. But it implied that it reached a finding of factual comparability—citing the way the State charged the case that led to the California conviction. So we may review its finding de novo to determine whether the trial court erred in its apparent finding of factual comparability.
In 1978, California defined assault with a deadly weapon as: "[e]very person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury." Former Cal. Penal Code § 245(a)(1) (1976).
Courts have attempted to define the level of mens rea necessary to prove California's assault with a deadly weapon statute. See United States v. Grajeda, 581 F.3d 1186, 1193 (9th Cir. 2009), cert. denied, 131 S.Ct. 583 (2010) ("The mens rea required for assault under California law has been the subject of a long, tortured, and ongoing set of explanations in the California courts."). Although it is agreed that the California assault statute requires only a "general" intent, see, e.g., People v. Miller, 164 Cal.App.4th 653, 662, 78 Cal.Rptr. 3d 918 (2008) (holding that a defendant need only have general intent to prove § 245(a)(1)), the State argues that judicial interpretation has supplied "specific" intent to the California statute and; thus, the statutes here are legally comparable. But because McCoy's California conviction is factually comparable to Washington's second degree assault statute, we do not reach the legal comparability issue.
Washington second degree assault, in 1978, was codified:
(1) Every person . . . shall be guilty of assault in the second degree when he:
(c) Shall knowingly assault another with a weapon or other instrument or thing likely to produce bodily harm.
Former RCW 9A.36.020(1)(c) (1975). Second degree assault is a most serious offense in Washington. RCW 9.94A.030(32).
Formerly codified at RCW 9.94A.030(29) (2005), when McCoy committed his current offense.
We perform a factual inquiry to determine whether McCoy's 1978 conduct leading to his 1981 conviction would have violated Washington's second degree assault statute. According to his charging documents and judgment and sentence, the California prosecutor charged, and McCoy pleaded guilty to assault with a deadly weapon, a shotgun, and also an enhancement because he "personally use[d] a firearm" in committing his assault with a deadly weapon. "Us[ing]" a firearm means more than merely committing a crime "while armed" and must be "conduct which produces a fear of harm or force by means or display of a firearm." See People v. Chambers, 7 Cal. 3d 666, 673, 498 P.2d 1024, 1028 (1972) (finding defendant "used" a firearm in committing robbery when he pointed gun at victim and demanded money because gun was utilized to accomplish taking of personal property by "means of force or fear."). The inclusion of this enhancement indicates that McCoy's criminal action involved a specific intent required to prove that he used the shotgun in committing the assault.
The record does not contain a plea form for the 1981 California conviction.
Former Cal. Penal Code, § 12022.5 (1978).
Accordingly, because McCoy pleaded to assaulting a victim with a deadly weapon, he admitted that he (1) assaulted the victim (2) with the deadly weapon (3) by force likely to cause bodily harm. The firearm enhancement supplies specific intent that he used the firearm in the course of the assault. Therefore, we conclude that McCoy's criminal actions that led to his 1981 California conviction also would have violated Washington's 1978 second degree assault statute. Because McCoy's California conviction is factually comparable to Washington's second degree assault statute, a most serious offense, the trial court here did not err in reaching that same conclusion. See State v. Thomas, 135 Wn.App. 474, 482, 144 P.3d 1178 (2006), review denied, 161 Wn.2d 1009 (2007).
II. Sufficiency of Evidence
McCoy also claims that the State presented insufficient evidence to demonstrate that McCoy illegally manufactured marijuana or intended to deliver marijuana. We disagree.
We review insufficient evidence claims for whether, when viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Yarbrough, 151 Wn.App. 66, 96, 210 P.3d 1029 (2009). Sufficiency challenges admit the truth of the State's evidence and all reasonable inferences drawn from it. State v. Theroff, 25 Wn.App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385, 622 P.2d 1240 (1980).
The trier of fact makes credibility determinations, and we will not review those determinations. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). We also defer to the trier of fact on issues of conflicting testimony, witness credibility, and the persuasiveness of evidence. State v. Walton, 64 Wn.App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
McCoy first argues that the State presented insufficient evidence that he illegally manufactured marijuana. At trial there was considerable testimony evidencing McCoy's marijuana manufacture. Authorities recovered over 300 marijuana plants, in various stages of development, from McCoy's property. Also, witnesses testified that McCoy converted and outfitted his garage and rooms in his house into an indoor marijuana grow operation. Authorities recovered from the property marijuana packaging materials and fluorescent lights, as well as shielded lights and ballasts. Finally, McCoy admitted growing marijuana in his home.
McCoy explained that he needed 13 plants per month to maintain a supply for his medical needs. He used roughly a quarter to an eighth of an ounce of marijuana daily for medicinal purposes. The jury rejected McCoy's medical marijuana defense.
Viewing this evidence in a light most favorable to the State, a rational trier of fact could have found beyond a reasonable doubt the essential elements required to prove that McCoy manufactured marijuana. Accordingly, sufficient evidence supports McCoy's conviction for manufacturing marijuana. See Yarbrough, 151 Wn.App. at 96.
McCoy next argues that the State presented insufficient evidence to demonstrate that he intended to deliver marijuana. At trial, the State presented evidence that authorities recovered from McCoy's property multiple sets of weighing scales, prepackaged marijuana, and packaging materials—including small and large plastic baggies—and over $250 in cash. Evidence showed that McCoy provided his excess marijuana to a Portland marijuana clinic. The State also presented evidence that McCoy gave marijuana to his acquaintances with medical marijuana cards; and, he provided marijuana to a family member and exchanged it with a handyman for work the handyman did on McCoy's property.
Again, viewing this evidence in a light most favorable to the State, a rational trier of fact could have found beyond a reasonable doubt the essential elements required to prove that McCoy delivered or intended to deliver marijuana contrary to Washington law. Accordingly, sufficient evidence supports McCoy's conviction for delivering or intending to deliver marijuana. See Yarbrough, 151 Wn.App. at 96.
We affirm.
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 in accordance with RCW 2.06.040, it is so ordered.
We concur: Hunt, J., Bridgewater, J.P.T.