Opinion
No. 36036-5-II.
May 20, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-04001-7, Kitty-Ann van Doorninck, J., entered March 2, 2007.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Houghton, C.J., and Hunt, J.
On February 13, 2007, a jury convicted Chance Rivers of unlawful delivery of a controlled substance (cocaine), unlawful possession of a controlled substance with intent to deliver, and second degree unlawful possession of a firearm. The jury also returned two special verdicts, finding Rivers was armed with a firearm at the time he committed the two drug offenses. Rivers appeals, arguing that (1) sufficient evidence does not support his conviction for unlawful delivery of a controlled substance; (2) sufficient evidence does not support his conviction for unlawful possession of a controlled substance with intent to deliver; and (3) sufficient evidence does not support the jury's finding that he was armed with a firearm when he committed the two drug offenses. In his statement of additional grounds (SAG), Rivers raises additional claims regarding admissibility of evidence, ineffective assistance of counsel, and probable cause. Sufficient evidence supports Rivers' conviction for unlawful delivery of a controlled substance and unlawful possession of a controlled substance with intent to deliver, as well as the jury's finding that he was armed with a firearm when he committed these offenses. Rivers' SAG arguments are without merit. We affirm.
FACTS
On August 25, 2006, Lakewood police officer Ryan Hamilton arrested a woman for prostitution. In order to avoid prosecution, the woman offered to purchase drugs from a man she identified as Chance (Rivers), the intent being to provide grounds on which to arrest and charge Rivers for violating felony drug laws. The informant had a slip of paper with the letter "C" and a phone number written on it. She called the number and arranged to meet Rivers at the intersection of Bridgeport Way and Pacific Highway in Lakewood.
Before meeting with Rivers, a female police officer strip searched the informant. Following the search, Officer Hamilton kept the informant under constant surveillance. Officer Hamilton gave the informant photocopied and prerecorded "buy money." Report of Proceedings (RP) (Feb. 8, 2007) at 17. Officer Hamilton and the informant then traveled together to the Bridgeport Way location. When they arrived at the location, Officer Hamilton observed a silver-colored PT Cruiser drive into the parking lot. The informant exited Officer Hamilton's vehicle, walked over to the PT Cruiser, and got inside. The informant and Rivers were the only people in the vehicle at that time. The informant remained in the vehicle for a few minutes. She then returned to the police vehicle. The informant handed Officer Hamilton a baggie filled with crack cocaine. The female police officer strip searched the informant again and found no narcotics or money. Officer Hamilton then released the informant.
The State did not file charges against the informant.
Moments later, the police stopped the PT Cruiser and took Rivers into custody. The officers initially placed Rivers in a police vehicle, but they later removed and searched him after the officers observed him "squirming" around in the back seat. RP (Feb. 8, 2007) at 37. The police officers observed a small bag of crack cocaine fall out of Rivers' pant leg and found another small bag of crack cocaine on the police vehicle's backseat floorboard. Police officers also found the prerecorded "buy money" in Rivers' shirt pocket. RP (Feb. 8, 2007) at 60. During a search of the PT Cruiser, officers found a Crown Royal bag containing a razor blade and a rock of crack cocaine under the driver's seat. Officers also found papers with the letter "C" and a phone number written on them in the front of the vehicle, and a digital scale at the rear of the vehicle. The pieces of paper matched the piece of paper the informant possessed prior to the transaction.
One officer found a loaded and operable firearm on the front driver's side floorboard, located halfway between the pedals and the seat. Another officer found bullets in the vehicle's glove box. When questioned about the firearm, Rivers stated that he knew the officer would find the firearm and that he was not going to try to hide it. Rivers also stated that some of the live rounds had fallen out of the gun.
On February 7, 2007, the State charged Rivers with one count of unlawful delivery of a controlled substance (cocaine) under RCW 69.50.401, one count of unlawful possession of a controlled substance (cocaine) with intent to deliver under RCW 69.50.401, and one count of second degree unlawful possession of a firearm under RCW 9.41.040. Rivers called three witnesses during trial. The first witness, Reginald Jenkins, testified that he left his firearm in the PT Cruiser's center console earlier that day. The second witness, Tyrone Richardson, testified that he was in the vehicle with Rivers on the night of the incident and never saw Rivers with drugs or a firearm. Rivers then testified on his own behalf. He admitted having cocaine on the night in question, but claimed that it was for personal use only. He also stated that he put cocaine in his pants when the police stopped him, but he claimed that the drugs did not belong to him. However, Rivers was unable to identify the person to whom the cocaine belonged. Rivers denied selling the informant drugs, denied the presence of a firearm on the vehicle's floorboard, and denied knowledge of the pieces of paper marked with the letter "C."
On February 13, 2007, a jury convicted Rivers on all charges and found that Rivers was armed with a firearm at the time he committed the two drug offenses. The trial court sentenced Rivers to 120 months in custody. Rivers appeals.
ANALYSIS
Rivers argues that sufficient evidence does not support his conviction for the two drug offenses and that sufficient evidence does not support the jury's finding that he was armed with a firearm when he committed the two drug offenses. In his SAG, Rivers raises additional claims regarding admissibility of evidence, ineffective assistance of counsel, and probable cause. Sufficient evidence supports Rivers' conviction for unlawful delivery of a controlled substance and unlawful possession of a controlled substance with intent to sell, as well as the jury's finding that he was armed with a firearm when he committed these offenses. Rivers' SAG arguments are also without merit and we affirm.
I. Standard of Review
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). When the sufficiency of evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in the State's favor and interpreted most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (en banc) (citing State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385, 622 P.2d 1240 (1980)). In determining the sufficiency of the evidence, circumstantial evidence is not inherently less reliable than direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980) (citing State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975)). Credibility determinations are for the trier of fact and we will not review on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).
II. Unlawful Delivery of a Controlled Substance
In order to convict Rivers of unlawful delivery of a controlled substance, the State was required to establish beyond a reasonable doubt (1) that on or about August 25, 2006, Rivers delivered a controlled substance (cocaine); (2) that Rivers knew that the substance delivered was a controlled substance; and (3) that the acts occurred in Washington State. Rivers argues that the State's evidence did not establish that Rivers delivered a controlled substance to the informant. Rivers' argument is without merit. Viewed in the light most favorable to the State, there was clearly sufficient evidence for a rational trier of fact to find that Rivers committed unlawful delivery of a controlled substance.
Here, the evidence clearly shows that the informant had a piece of paper with the letter "C" and a phone number written on it. She then called the number and arranged to meet with Rivers. It is clear from Officer Hamilton's testimony that the informant did not have any drugs or money in her possession before she met with Rivers on the day in question. The informant was searched and then kept under constant surveillance by Officer Hamilton until she met with Rivers. Officer Hamilton testified that an informant is strip searched and then kept under constant surveillance to ensure that money or narcotics are not on their person before a controlled transaction. Officer Hamilton also testified that proper informant strip search protocol was followed in this case. Additionally, police gave the informant prerecorded money. After meeting with Rivers, the informant returned to the police vehicle with a baggie of cocaine. Finally, upon Rivers' arrest, police officers recovered the prerecorded money from Rivers' shirt pocket.
In light of this evidence and drawing all inferences in the State's favor, a rational trier of fact could conclude that the informant obtained cocaine from Rivers in exchange for the prerecorded money later found in his possession. The evidence supports the conviction.
III. Unlawful Possession of a Controlled Substance with Intent to Deliver
In order to convict Rivers of unlawful possession of a controlled substance with intent to deliver, the State was required to establish beyond a reasonable doubt (1) that on or about August 25, 2006, Rivers possessed a controlled substance; (2) that Rivers possessed the substance with the intent to deliver a controlled substance; and (3) that the acts occurred in Washington State. Rivers argues that the State's evidence did not establish that he intended to deliver the cocaine, or that the cocaine was not for his personal use. Rivers' arguments are without merit.
The specific criminal intent of the accused may be inferred from the conduct where it is plainly indicated as a matter of logical probability. Delmarter, 94 Wn.2d at 638. It is firmly established Washington law that mere possession of a controlled substance is generally insufficient to establish an inference of intent to deliver; rather, at least one additional factor must be present. State v. Goodman, 150 Wn.2d 774, 783, 83 P.3d 410 (2004) (citing State v. Darden, 145 Wn.2d 612, 624, 41 P.3d 1189 (2002); State v. Zunker, 112 Wn. App. 130, 136, 48 P.3d 344 (2002)). There was sufficient evidence that Rivers committed unlawful possession of a controlled substance with intent to deliver.
Here, Rivers was stopped shortly after the informant met with him and returned to the police vehicle with cocaine. Police officers recovered from his vehicle several pieces of paper that had the letter "C" and a phone number written on them; these pieces of paper were virtually identical to the piece of paper the informant used to arrange the meeting with Rivers. Additionally, police officers recovered a digital scale from Rivers' vehicle and found cocaine on Rivers' person and in his vehicle. Finally, there is sufficient evidence to prove that Rivers had just delivered other cocaine to the informant. Clearly, a rational trier of fact could have concluded from this evidence that Rivers intended to deliver some or all of the remaining cocaine in his possession.
IV. Armed with a Firearm
A person may be subject to a deadly weapons enhancement if he is armed while committing a crime. RCW 9.94A.533(3), (4); RCW 9.94A.602. "A person is 'armed' if a weapon is easily accessible and readily available for use, either for offensive or defensive purposes" and there is a connection between the defendant, the weapon, and the crime. State v. Easterlin, 159 Wn.2d 203, 208-209, 149 P.3d 366 (2006) (quoting State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993)).
However, the connection between the defendant, the weapon, and the crime is not an element the State must explicitly plead and prove; instead, it is merely definitional. Easterlin, 159 Wn.2d at 209. It is the defendant's burden to establish, against all inferences in the State's favor that this connection did not exist. State v. Eckenrode, 159 Wn.2d 488, 496, 150 P.3d 1116 (2007). "So long as the facts and circumstances support an inference of a connection between the weapon, the crime, and the defendant, sufficient evidence exists." Easterlin, 159 Wn.2d at 210. Rivers argues that the evidence here did not support the jury's conclusion that he used a firearm in furtherance of the crimes of possessing and delivering cocaine. Rivers' argument is without merit.
The facts here are analogous to those presented in Easterlin. There, police officers found Easterlin asleep in the driver's seat of his car with a 9 mm pistol in his lap and a loaded 9 mm magazine on the passenger seat. Easterlin, 159 Wn.2d at 207. Subsequent investigation revealed that Easterlin had cocaine in his sock and a prior felony conviction, making his possession of the gun illegal. Easterlin, 159 Wn.2d at 207. Easterlin plead guilty to unlawful possession of cocaine with a firearm enhancement and unlawful possession of a firearm. He specifically acknowledged that he possessed a controlled substance and had a firearm with him. Easterlin, 159 Wn.2d at 207. On appeal, Easterlin argued that there was insufficient evidence to support the firearm enhancement. Easterlin, 159 Wn.2d at 210. The Washington Supreme Court upheld the firearm enhancement, stating:
In this case, an officer saw a gun on Easterlin's lap. That is more than sufficient for the trial judge to find a connection between Easterlin and the weapon.
There was [] ample evidence from which a trier of fact could find Easterlin was armed to protect the drugs. Easterlin's statement on plea of guilty specifically admitted, in his own words, that he was armed and that he possessed a controlled substance. Even without his statement, there was more than sufficient evidence to uphold a jury's determination that he was armed in connection with a crime.
Easterlin, 159 Wn.2d at 210 (citations omitted). As in Easterlin, there is sufficient evidence to support River's firearm enhancement.
Here, the firearm was easily accessible and readily available for use. The firearm was located on the driver's side of the vehicle, at Rivers' feet. At the time of recovery, the firearm was loaded; it was later determined to be operable. Officer Sean Conlon, who discovered the firearm on the floor of the PT Cruiser, testified that it was within reach, stating, "[i]f you were sitting in the seat with your feet flat on the floor, you could just reach down and grab the gun, pick it up off the floor." RP (Feb. 8, 2007) at 59. Furthermore, Rivers admitted to police that he knew the firearm would be found and that he was not trying to hide it, thus acknowledging its presence in the vehicle. According to police, Rivers also admitted that some of the rounds had fallen out of the gun.
The defendant was convicted of second degree unlawful possession of a firearm, which he does not challenge on appeal.
At trial, Rivers testified that there was no firearm on the floorboard of the vehicle at the time of his arrest. Credibility determinations are not subject to review. Thomas, 150 Wn.2d at 874. Clearly, the jury did not find Rivers' testimony credible.
Rivers argues that there is no evidence that he owned the firearm, placed the firearm in the vehicle, or handled the firearm. However, the State was not required to establish these things. Rather, the State was required to establish that the firearm was easily accessible and readily available for use. Rivers also argues that there is nothing in the record to show that the firearm was "in any way connected to the possession or delivery of the crack cocaine." Appellant's Br. at 11. However, as demonstrated in Easterlin, Rivers could have used the firearm to protect his drugs. Because sufficient evidence supports the jury's finding that Rivers was armed at the time he committed the drug offenses, we uphold the firearm enhancements and deny Rivers' request for resentencing.
V. Statement of Additional Grounds (SAG)
In his SAG, Rivers make several arguments. None is persuasive.
A. Admission of Self-Incriminating Statements
Rivers argues that the trial court erred in finding that the police properly read Rivers his Miranda warnings and that he knowingly, intelligently, and voluntarily waived his constitutional rights, and in consequently determining that his post- Miranda statements regarding the firearm were admissible. Rivers argues that this violated his Fifth Amendment and Fourteenth Amendment rights.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
We review the trial court's admission of evidence for abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995). "A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds." State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (1997) (quoting Havens v. C D Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994)). We may affirm on any ground adequately supported by the record. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004). The appellant bears the burden of proving abuse of discretion. State v. Hentz, 32 Wn. App. 186, 190, 647 P.2d 39 (1982), rev'd on other grounds, 99 Wn.2d 538 (1983).
Detective Todd Jordan, Officer Sean Conlon, and Rivers each testified during the February 7, 2007 CrR 3.5 hearing. The trial court found that "by a preponderance of the evidence the [ Miranda warnings were] given and that Mr. Rivers made the statements." RP (Feb. 7, 2007) at 42. The trial court noted, "I had two officers testify under oath with my perception of no reason to lie about that." RP (Feb. 7, 2007) at 41. Detective Jordan testified that after Rivers' vehicle was stopped and Rivers was taken into custody and handcuffed, Detective Jordan read Rivers' his Miranda warnings. Detective Jordan explained that he did not indicate in his report that he had read Rivers his Miranda warnings because it was standard operating procedure and, at the time, the department did not require reports to include this information. When asked whether he was absolutely certain that he had read Rivers his Miranda warnings, Detective Jordan responded, "Absolutely." RP (Feb. 7, 2007) at 13. He then testified that Rivers verbally indicated that he understood his rights, that he did not request an attorney, that he did not express any confusion regarding his rights, that he did not appear to be under the influence of narcotics or disabled in any way that would prevent him from understanding his rights, and that he was able to communicate in English. Finally, Detective Jordan testified that Officer Conlon was standing next to him when he provided the Miranda warnings.
When a statement of the accused is to be offered in evidence, the judge at the time of the omnibus hearing shall hold or set time for a hearing, if not previously held, for the purpose of determining whether the statement is admissible. CrR 3.5(a).
Officer Conlon testified that he was, in fact, standing in close proximity to Detective Jordan when Rivers received the Miranda warnings. Officer Conlon also testified that Rivers neither expressed any confusion as to his rights nor requested an attorney. Additionally, Officer Conlon testified:
I asked him about the gun, why the gun was on the floor board of the car. He said, "I knew you guys were going to find it." I also noticed there [were] two bullets on the floor board of the car. I asked [] about those. He said that they just fell out.
RP (Feb. 7, 2007) at 28. Although Rivers testified that Detective Jordan did not administer his Miranda warnings and that Rivers did not make statements regarding the firearm, clearly the trial court did not find his testimony credible. In light of the above testimony, Rivers has failed to demonstrate that the trial court's conclusion that he waived his Miranda rights and its ruling that his post- Miranda statements were admissible were manifestly unreasonable or based upon untenable grounds.
B. Ineffective Assistance of Counsel
Rivers argues that his trial attorney's failure to propose an "unwitting possession" jury instruction resulted in the jury's reliance on instructions that "permitted the jury to convict [Rivers of unlawful possession of a firearm] even if it believed [that he] was unaware of the firearm presence in the vehicle after Mr. Jenkins [the alleged owner of the gun] left." SAG at 12.
To prove ineffective assistance of counsel, appellant must show that (1) counsel's performance was deficient; and (2) that deficient performance prejudiced him. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In the Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). We give great judicial deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland, 466 U.S. at 689; State v. McFarland, 127 Wn.2d 332, 335, 899 P.2d 1251 (1995). A defendant is only entitled to a jury instruction supporting his case theory where that theory is supported by substantial evidence in the record. State v. Griffith, 91 Wn.2d 572, 574, 589 P.2d 799 (1979).
In his SAG, Rivers refers to jury instructions 19 and 21. Jury instruction 19 states that "[a] person commits the crime of unlawful possession of a firearm in the second degree when he or she knowingly owns a firearm or has a firearm in his or her possession or control and, before the occasion of possession, [has] been convicted of a crime of Violation of a No Contact Order against a family or household member." Clerk's Papers (CP) at 37. Jury instruction 21 states that possession may be actual or constructive, and sets forth the definition of these terms. These jury instructions accurately state the law and merely provided the jury with guidelines for assessing Rivers' unlawful possession of a firearm charge.
Rivers plead guilty to a violation of a no contact order in August of 2003.
Jury instruction 19 states that someone commits second degree unlawful possession of a firearm "when he or she knowingly . . . has a firearm in his or her possession or control . . ." CP at 37 (emphasis added). One of the officers at the scene of Rivers' arrest testified that when questioned about the firearm, Rivers stated that he knew the officer would find it and that he was not going to try to hide it. Rivers also stated that some of the live rounds had fallen out of the gun. Rivers' testimony that these statements were never made does not alone constitute substantial evidence in support of his case theory. The jury clearly determined, after hearing the officer and Rivers' testimony, that Rivers had knowledge of the firearm. Rivers fails to show why counsel's failure to propose a different instruction "in support of [his] theory of the case" constitutes ineffective assistance of counsel or why counsel's performance fell below an objective standard of reasonableness. SAG at add. ground 3. Rivers also fails to demonstrate that, but for his attorney's failure to propose an "unwitting possession" instruction there is a reasonable probability that the outcome would have differed. SAG at add. ground 3.
C. Probable Cause
Rivers argues that the trial court abused it discretion by relying on the informant's testimony to establish probable cause to make a felony traffic stop, and that the traffic stop therefore violated his constitutional rights. Generally, an issue cannot be raised for the first time on appeal unless it is a "manifest error affecting a constitutional right." RAP 2.5(a). See also State v. Munguia, 107 Wn. App. 328, 340, 26 P.3d 1017 (2001). The exception to the general rule does not automatically mandate review whenever a criminal defendant identifies some constitutional issue not raised below. Munguia, 107 Wn. App. at 340 (citing McFarland, 127 Wn.2d at 333-34). The appellant must show actual prejudice in order to establish that the error is "manifest." Munguia, 107 Wn. App. at 340 (citing McFarland, 127 Wn.2d at 333).
Here, the portions of the record to which Rivers cites refer to a discussion between counsel and the trial court regarding hearsay testimony. It does not appear that the probable cause issue was raised during this discussion or at any time during trial. Rivers asserts that his constitutional rights were violated, but fails to explain how or demonstrate actual prejudice.
D. Hearsay
Rivers argues that the trial court abused it discretion when it allowed inadmissible hearsay testimony and out-of-court statements made by the informant, whose reliability was never established. Rivers contends that this materially affected the trial's outcome and violated his constitutional rights.
We review the trial court's admission of evidence for abuse of discretion. Pirtle, 127 Wn.2d at 648. During trial, Officer Hamilton testified that the informant agreed to buy crack cocaine from a person she knew as Chance. Rivers' counsel made a hearsay objection, which the trial court sustained. Counsel again objected when Officer Hamilton stated that the informant and Rivers "agreed to meet," which the trial court also sustained. RP (Feb. 8, 2007) at 13-14. Later, counsel asked to make a record of his objection to the introduction of any evidence that was obtained through the informant. Counsel also argued that the informant's reliability had not been established. The trial court overruled the objection, stating:
There was one attempt at a hearsay statement. There was an objection. That was sustained. This officer [Hamilton] testified about his observations and the operation, not anything about what the [informant] said.
RP (Feb. 8, 2007) at 31. Here, the trial court properly concluded that Officer Hamilton's testimony focused on his direct observations of the drug transaction. The trial court sustained defense counsel's hearsay objections when appropriate. Therefore, Rivers has failed to establish that the trial court abused its discretion in admitting Officer Hamilton's testimony regarding the transaction, or that it otherwise improperly admitted hearsay testimony.
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.
HOUGHTON, C.J. and HUNT, J., concur.