Opinion
No. 60399-0-I.
December 22, 2008.
Petition for relief from personal restraint. Denied by unpublished opinion per Leach, J., concurred in by Schindler, C.J., and Ellington, J.
Laquana Green argues that insufficient evidence supports her conviction for Violation of the Uniform Controlled Substances Act (VUCSA), RCW 69.50.4013, possession of cocaine. We affirm.
Background
At 5:40 a.m. on August 4, 2004, Seattle Police Officers Burns and Willoughby were conducting a weekly patrol of the downtown corridor with Department of Corrections (DOC) Officer Mills. They were patrolling stay out of drug area (SODA) no. 1, a high narcotics trafficking area.
Officer Willoughby recognized Laquana Green, a convicted felon on DOC status, talking to a group of people on the corner of Second Avenue and Virginia Street in downtown Seattle. The group included known felons and narcotics users. Officer Mills ran Green's name and discovered that DOC records showed that she had told her community corrections officer that she was pregnant and on bed rest until delivery and, therefore, could not attend required DOC appointments. Since Green was not in bed, she was in violation of her DOC status, and the officers approached her.
As the officers approached the group, Green and another woman started walking away, and one of the people with whom they had been talking sloughed some rock cocaine onto the ground. Officer Mills confronted Green and asked if she was active with DOC. She responded that she was. He then asked her what she was doing so early in the morning talking to known drug users and felons in a high drug-use area. Green denied that she was involved in any narcotics-related behavior. Officer Mills arrested Green for violation of her DOC stipulations.
Green was taken to the West Precinct police station, where Officer Mills informed her that she was going to conduct a strip search and asked Green whether she had any narcotics on her person. Initially, Green denied that she possessed narcotics. However, when Officer Mills again stated that she would strip search Green and that she did not want to intrude on Green's person because she was pregnant, Green stated that she did have narcotics and pointed to the front of her pants. Officers recovered "approximately 1.2 grams of rock cocaine that field tested positive" from Green's pants. Green also had $111 concealed in her bra.
Green was charged with VUCSA, possession of cocaine, contrary to RCW 69.50.4013. She entered into a drug diversion court waiver and agreement, in which she waived her right to trial and agreed to complete the drug treatment program as instructed by the court. The agreement provided:
I understand and agree that if I do not comply with the conditions of this agreement, a hearing will be held at which the State will present all evidence related to this (these) charge(s) including but not limited to the police report and the results of any law enforcement field test. I understand that the judge will review the evidence presented by the State and will decide if I am guilty or not guilty of this charge based solely on that evidence.
Green voluntarily terminated the drug court treatment program on December 13, 2005. The court entered a judgment against Green for one count of VUCSA, possession of cocaine, on December 16, 2005, and sentenced her to 12+ months confinement. Green satisfied her sentence, and DOC closed its supervisory interest in this case on June 30, 2006.
Green moved for relief from judgment in King County Superior Court on May 8, 2007. The superior court transferred the motion to this court for review as a personal restraint petition.
Standard of Review
To prevail on her personal restraint petition, Green "has the burden of establishing either error of constitutional magnitude resulting in actual prejudice or nonconstitutional error resulting in a complete miscarriage of justice." "Sufficiency of the evidence is a question of constitutional magnitude because due process requires the State to prove its case beyond a reasonable doubt." The evidence is sufficient if, when viewed 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.'"
In re Pers. Restraint of Tortorelli, 149 Wn.2d 82, 90, 66 P.3d 606 (2003).
Tortorelli, 149 Wn.2d at 93.
Tortorelli, 149 Wn.2d at 93 (quoting State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980)).
Discussion
Green argues that her conviction must be vacated under State v. Colquitt because the only evidence that she possessed cocaine was a police report stating that "approximately 1.2 grams of rock cocaine that field tested positive was recovered from Green's pants." The State argues that Green waived her right to challenge the sufficiency of the evidence. We hold that while Green did not waive her right to challenge the sufficiency of the evidence, the evidence is sufficient to support her conviction.
133 Wn. App. 789, 137 P.3d 892 (2006).
The State argues that Green explicitly waived her right to challenge the sufficiency of the evidence under State v. Drum. However, where a defendant in a stipulated trial has not stipulated to the sufficiency of the evidence, the State has the burden of proving the elements of the crime. In Drum, the drug court contract expressly stated that the defendant "stipulates that the facts presented . . . are sufficient for the Court to find the defendant guilty of the pending charge(s)." The Drum court distinguished Colquitt because the contract there did not require the defendant to stipulate to the sufficiency of the evidence. Like the defendant in Colquitt, Green did not stipulate to the sufficiency of the evidence. Therefore, she did not waive her right to challenge the sufficiency of the evidence.
143 Wn. App. 608, 181 P.3d 18 (2008).
Colquitt, 133 Wn. App. at 795.
Drum, 143 Wn. App. at 611.
Drum, 143 Wn. App. at 614-15 (citing Colquitt, 133 Wn. App. at 795).
While a Washington court has held that an officer's testimony and positive field test, without more, are insufficient to support a conviction for narcotics possession, the conviction here is supported by sufficient evidence. In Colquitt, the only evidence supporting the conviction was a police report, which stated that the officer thought the substance appeared to be cocaine and that the substance tested positive in a field test for cocaine. Relying on State v. Roche, Division Two held that this evidence was insufficient. In Roche, evidence of malfeasance by the crime lab chemist discovered posttrial completely destroyed the chemist's credibility and created doubt as to whether the chain of custody had been preserved. The State had a positive field test, but no confession from Roche. Under the policy of the Snohomish County Prosecutor's Office, Roche " would not have been tried or sentenced at all if the newly discovered evidence had come to light before he was tried. . . ." Therefore, we reversed Roche's conviction and remanded so that the State could decide whether to retry Roche or to dismiss the charges against him. Colquitt distinguished Roche from another drug possession case, In re Personal Restraint of Delmarter. In Delmarter, we held that a confession by the defendant, plus a positive field test, constituted sufficient evidence to support a conviction for possession of a controlled substance.
Colquitt, 133 Wn. App. at 794.
114 Wn. App. 424, 59 P.3d 682 (2002).
Colquitt, 133 Wn. App. at 797-802.
Roche, 114 Wn. App. at 437-38.
Roche, 114 Wn. App. at 440.
Roche, 114 Wn. App. at 440.
Roche, 114 Wn. App. at 440.
124 Wn. App. 154, 101 P.3d 111 (2004).
Delmarter, 124 Wn. App. at 163-64.
This case is more like Delmarter than Colquitt because there is evidence other than the officer's testimony and field test supporting the conviction. Here, Green confessed that she possessed narcotics just before officers recovered the substance from her pants; records showed Green had narcotics-related stipulations; she was observed talking with known narcotics users, one of whom dropped a substance to the ground that also looked like rock cocaine and field tested positive for cocaine; and everyone in the group became nervous when they noticed the officers' presence. We conclude that the combined evidence, when viewed in the light most favorable to the State, is sufficient to convince a trier of fact that Green possessed cocaine beyond a reasonable doubt.
Green also argues that the judgment was invalid because the trial court failed to enter written findings of fact and conclusions of law. However, written findings and conclusions were entered on April 21, 2008, and Green has made no showing that she was prejudiced by the delayed findings or that the State tailored the findings to the issues raised in this personal restraint petition.
See State v. Head, 136 Wn.2d 619, 624-25, 964 P.2d 1187 (1998).
We affirm.
WE CONCUR: