Opinion
No. 36006-3-II.
April 29, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 06-1-00881-6, Richard D. Hicks, J., entered March 2, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Armstrong, J.
A jury convicted Alonzo William Baggett on charges of attempting to elude a pursuing police vehicle, unlawful possession of a controlled substance with intent to deliver while armed with a firearm, discharging a firearm, and first degree unlawful possession of a firearm. Baggett appeals only the conviction for the unlawful possession of a controlled substance with intent to deliver, asserting that the trial court erred in not giving his proposed instruction. He also challenges the trial court's calculation of his offender score. We affirm.
Facts
In the early morning hours of May 14, 2006, Olympia Police Officer Dwaine Hinrichs and his K-9 dog responded to a report of gunshots fired at a residence in Olympia. When he arrived at the scene of the reported disturbance, he observed a car backing out of the residence's driveway into the street. Officer Hinrichs stopped his patrol car and got out to contact the driver to investigate the disturbance report. When the driver made eye contact with the approaching officer, he drove rapidly away squealing his tires. Officer Hinrichs pursued the fleeing suspect's car in his patrol car, with the emergency lights and siren engaged. The vehicles reached speeds in excess of 80 miles per hour through the 35-mile-per-hour speed zone in the residential neighborhood. The chase ended when the car that Officer Hinrichs was pursuing was unable to negotiate an intersection, ran off the road, and crashed into some trees.
After the crash, the driver of the car attempted to flee on foot. Officer Hinrichs directed his dog to apprehend the suspect. The dog did so. Meanwhile, another police unit arrived on the scene and the two officers subdued and arrested the fleeing driver, Alonzo Baggett. The other officer, Jacob Brown, searched Baggett incident to the arrest and found a baggie containing 95 1/2 pills, samples of which subsequently tested positive for methamphetamine and methylenedioxmethamphetamine, also known as Ecstacy. Officer Brown also found $160 in cash on Baggett, all in twenties.
After Baggett's arrest, Officer Hinrichs found a handgun lying on the passenger seat of the car Baggett had been driving. The gun contained six cartridges, three of which had been spent. In a statement to police, Baggett said that he had been at a party at the residence where the disturbance occurred, he had been jumped by several people, and he pulled the handgun in self-defense. He said that he fired the gun several times in the air to scare off his attackers and his attackers retreated. He said that he then panicked, ran to his car and took off, and at that point the police came on the scene.
The State ultimately charged Baggett with one count each of attempting to elude a pursuing police vehicle, unlawful possession of a controlled substance with intent to deliver — methamphetamine or methylenedioxymethamphetamine (aka Ecstacy) while armed with a firearm, discharging a firearm, first degree unlawful possession of a firearm, and possession of a stolen firearm. At trial, Officers Hinrichs and Brown testified to events as above described. Officer Brown initially testified that he had not found any currency on Baggett, but later remembered that he had in fact found $160 in twenties. Officer Brown testified that he made a mistake in not seizing it at the time he arrested Baggett. Detective Paul Bakala also testified at the subsequent trial that, based on his training and experience, personal use of Ecstasy usually involved between one to three tablets per use, that the tablets were often sold without packaging, that the price per individual tablet runs between $15 to $30, and that 100 tablets, called a "stack," would represent a dealer quantity that could be acquired at a wholesale price. 2 RP at 192-93. Baggett stipulated at trial that he had a felony conviction that prohibited him from possessing a firearm. Baggett also offered the following instruction and took exception to the court's failure to give it. "Where intent to deliver is inferred from possession of a large quantity of a controlled substance, some additional factor consistent with an intent to deliver beyond the mere possession of a controlled substance must be present." CP at 39.
The jury acquitted Baggett of the possession of a stolen firearm count, but found him guilty as charged on all remaining counts. At Baggett's subsequent sentencing hearing, the State presented a statement of criminal history listing four juvenile criminal convictions for Baggett.
The statement of criminal history included a 2003 King County juvenile conviction for delivery of cocaine, two 2002 King County juvenile convictions for possession with intent to deliver, and a 2001 Pierce County juvenile conviction for third degree assault.
Defense counsel acknowledged the criminal history and the trial court calculated Baggett's offender score accordingly. The court imposed a standard range concurrent sentence for each of the counts for which Baggett was convicted and added a mandatory firearm enhancement, sentencing Baggett to a total confinement period of 81 months. See CP at 98; RP (Mar. 2, 2007) at 11. Baggett now appeals, challenging only the trial court's failure to give his proposed instruction and the calculation of his offender score.
Discussion Proposed Instruction Baggett relies on the rule that a defendant is entitled to have his theory of the case submitted to the jury under appropriate instructions when the theory is supported by substantial evidence in the record. See State v. Washington, 36 Wn. App. 792, 793, 677 P.2d 786, review denied, 101 Wn.2d 1015 (1984) (so stating). This court reviews a trial court's decision to reject a jury instruction for abuse of discretion. State v. Hall, 104 Wn. App. 56, 60, 14 P.3d 884, review denied, 143 Wn.2d 1023 (2001). Here, the trial court stated that while Baggett's proposed instruction was a correct statement of the law, the court would not give it because the court's instructions already permitted Baggett to argue his theory of the case. The court noted that depending on what evidence the jury believed, the record did contain additional evidence besides the quantity of Ecstasy found, including testimony regarding cash found on Baggett and testimony about a gun. The court agreed with Baggett that, alone, Detective Bakala's opinion testimony regarding the significance of the quantity of drugs found on Baggett's person was insufficient, but that Baggett was free to argue as he wished regarding the evidence in closing.
Baggett contends that in light of Detective Bakala's opinion evidence, that 100 pills constituted a dealer quantity, he was entitled to his instruction that some additional factor other than quantity was required to show intent to deliver. He relies on State v. Campos, 100 Wn. App. 218, 998 P.2d 893, review denied, 142 Wn.2d 1006 (2000). There, the court explained that the intent to deliver must logically follow as a matter of probability from the evidence. Campos, 100 Wn. App. at 222. Possession of a controlled substance, without more, is insufficient to establish an inference of intent to deliver. Campos, 100 Wn. App. at 222. A police officer's opinion that a defendant possessed more drugs than normal for personal use is insufficient to establish intent to deliver. Campos, 100 Wn. App. at 222. The Campos court explained that where intent to deliver is inferred from possession of a large quantity of a controlled substance, "some additional factor must be present," such as a weapon, paraphernalia to facilitate the delivery, or a substantial sum of money. Campos, 100 Wn. App. at 222. Thus, Baggett argues, it was reversible error for the trial court to not give his proposed instruction in light of Detective Bakala's testimony.
But Baggett's reliance on Campos is misplaced. There, the court was addressing a claim of insufficient evidence of intent to deliver, not a claim of instructional error as Baggett argues here. See Campos, 100 Wn. App. at 222. In any event, there was other evidence in this case demonstrating Baggett's intent to deliver. Baggett not only had a large amount of Ecstacy, he took the large quantity of drugs to a dance party. The pills were readily distributable, needing no packaging, weighing, or other preparation prior to sale. Baggett also had a gun, he was apprehended with $160 in $20 bills, and $20 was within the retail price range for each pill. In light of the totality of the evidence, had the trial court given the instruction the outcome of the trial would not have been different. Moreover, as noted, the trial court has considerable discretion in how the instructions are worded. Instructions should not be so factually detailed as to emphasize certain aspects of a party's case and thus point up or buttress his argument to the jury, but rather should be limited to enunciating basic and essential elements of the legal rules necessary to enable the parties to each present their theories of the case. See State v. Deiro, 20 Wn. App. 637, 640, 581 P.2d 1079 (1978), review denied, 91 Wn.2d 1014 (1979). Accordingly, the applicable inquiry is whether the instructions as given correctly stated the law and permitted Baggett to argue his theory of the case to the jury. State v. Huckins, 66 Wn. App. 213, 217, 836 P.2d 230 (1992), review denied, 120 Wn.2d 1020 (1993). Here, Huckins is instructive. In that case, the defendant had been charged with multiple counts of possession of depictions of minors engaged in sexually explicit conduct, a violation of former RCW 9.68A.070 (1989). Defense counsel argued that possessing depictions of nudity was not illegal, and submitted a proposed instruction that read: "[d]epictions of nudity, without more, constitute protected expression and the law does not prohibit the possession of such depictions." Huckins, 66 Wn. App. at 215 (internal quotations omitted). As in the present case, the trial court declined to give the proposed instruction, stating that counsel was free to argue the proposition that it advanced. Huckins, 66 Wn. App. at 215. Huckins held that the trial court did not err because "the instructions as given embraced the concept that [the] proposed instruction advanced." Huckins, 66 Wn. App. at 217. The court reasoned that the "to convict" instructions clearly advised the jury that before it could convict the defendant of the counts charged, it first had to conclude that, for each count, the defendant knowingly possessed the identified materials (a named magazine) and that the materials depicted "a minor engaged in the exhibition of the genitals or unclothed pubic or rectal areas of any minor for the purpose of sexual stimulation of the viewer." Huckins, 66 Wn. App. at 217 (internal quotations omitted). From those instructions, the court reasoned, the defense could argue that the possession of depictions of nudity, without more, did not violate former RCW 9.68A.070. Huckins, 66 Wn. App. at 217.
Consequently, even if we were to hold that the trial court erred in declining to give the proposed instruction, that error would be harmless in light of the totality of the evidence before the jury. See State v. Berube, 150 Wn.2d 498, 506, 79 P.3d 1144 (2003) (if the record supports a finding that the jury verdict would be the same absent the error, harmless error may be found). See also Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002) (even if an instruction is misleading and thus erroneous, it will not require reversal unless prejudice is shown); State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985) (even constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error), cert. denied, 475 U.S. 1020 (1986); Thomas v. French, 99 Wn.2d 95, 104, 659 P.2d 1097 (1983) (error without prejudice is not grounds for reversal, and error will not be considered prejudicial unless it affects, or presumptively affects, outcome of trial).
Similarly, the instructions here, while not as elaborate as those presented in Huckins, nevertheless permitted Baggett to argue his theory — that the State's evidence failed to establish intent to deliver. The to-convict instruction advised the jury that before it could convict Baggett of possession with intent to deliver a controlled substance, it had to find beyond a reasonable doubt that (1) on or about May 14, 2006, Baggett knowingly possessed a controlled substance identified as "Methamphetamine or Methylenedioxymethamphetamine (aka MDMA/ecstacy)," (2) that Baggett "possessed the substance with the intent to deliver a controlled substance," and (3) the acts occurred in Washington State. CP at 68. The instructions accurately stated the law and permitted both parties to argue their theories, which they vigorously did.
During closing argument, the State argued that intent to deliver was shown by the totality of the evidence. The State noted that Baggett was arrested with 90 plus pills of Ecstasy on his person, $160 in cash, and a gun. According to an experienced narcotics detective, these Ecstasy pills, a "dealer quantity amount" and "not a personal use amount," had a street value of between $1,300 and $2,700.3 RP at 268. Moreover, because Baggett had taken this large quantity of pills to a dance party attended by many young adults, the State asked the jury "what other reason could [Baggett] have but to deliver them?" 3 RP at 302. The State argued that together this evidence established Baggett's intent to deliver.
Defense counsel argued that the evidence was only circumstantial and established possession, but not intent to deliver. Counsel argued there was no evidence of drug use at the party, the arresting officer's testimony that $160 was found on Baggett was not credible, the presence of a gun or money did not establish drug selling, and Baggett had no cell phone or packaging materials indicative of an intent to deliver drugs. Moreover, defense counsel described Detective Bakala's testimony — that Baggett had an amount of pills greater than that required for normal personal use — as "anecdotal." 3 RP at 288.
Clearly, the instructions permitted both parties to argue their theories, and they did so. Jury instructions are sufficient if they correctly state the law, are not misleading, and permit counsel to argue his or her theory of the case. Huckins, 66 Wn. App. at 217. Under this record, the trial court did not err in declining to give Baggett's additional proposed instruction.
Offender Score.
Baggett next contends that the trial court erred in including three of his alleged prior juvenile criminal convictions in calculating his offender score. Generally, the trial court calculates an offender score by adding together the current offenses and the prior convictions. State v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007). The State bears the burden of proving the existence of prior convictions by a preponderance of the evidence. Bergstrom, 162 Wn.2d at 93. In Bergstrom, our Supreme Court discussed the proper procedure to be applied to a defendant's post-sentencing challenge to the trial court's calculation of his offender score. The court described three different approaches depending on the circumstances presented. Bergstrom, 162 Wn.2d at 93-94. Relevant here, the court explained that "if the State alleges the existence of prior convictions and the defense not only fails to specifically object but agrees with the State's depiction of the defendant's criminal history, then the defendant waives the right to challenge the criminal history after sentence is imposed." Bergstrom, 162 Wn.2d at 94. Sentencing courts can rely on defense acknowledgment of prior convictions without further proof. Bergstrom, 162 Wn.2d at 94. See also In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 873, 123 P.3d 456 (2005).
Prior non-violent juvenile felony convictions are scored at one-half point each. See RCW 9.94A.525(7)-(9).
Here, although Baggett contends that the State presented his prior criminal history at sentencing "without . . . acknowledgment," that is not the case. Br. of Appellant at 9. After the State presented its statement of criminal history listing Baggett's four prior juvenile criminal convictions at the sentencing hearing, defense counsel acknowledged that Baggett had "a number of convictions in juvenile court" and stated "we stipulate that the four [convictions] listed by the prosecutor do in fact comprise [Baggett's] criminal history." RP (Mar. 2, 2007) at 7. In light of this express stipulation, Baggett cannot now be heard to complain about the inclusion of his juvenile convictions in the calculation of his offender score. Bergstrom, 162 Wn.2d at 94.
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, J.
We concur:
Van Deren, A.C.J.
Armstrong, J.