Opinion
No. 27802-2-II
Filed: January 24, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County Docket No: 01-1-01967-0 Judgment or order under review Date filed: 08/31/2001
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 109 Tacoma Ave N, Tacoma, WA 98403-2631.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Dundray Calhoun appeals from his conviction of unlawful possession of cocaine. He claims that the trial court erred in not granting his request for a Franks hearing, that the evidence was insufficient, and that the court incorrectly included prior washed-out juvenile convictions in his offender score calculation. We affirm the conviction but remand for resentencing.
Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
Facts
On April 11, 2001, Tacoma police officers executed a search warrant on Nicole Johnson's Tacoma residence. When no one responded to the 8:00 a.m. knock and announce, the officers breached the door and entered the residence. Officers Calitis and Muse entered a bedroom, where they found Johnson and Calhoun in bed. Calhoun was on the right side of the bed and next to his head was a nightstand where Detective Rosenquist discovered a bag of cocaine. Rosenquist also discovered a bulletproof vest, a handgun, and $220 in cash. Detective Krause discovered a plate in the kitchen that contained cocaine fragments.
By amended information, the State charged Calhoun with one count of first degree unlawful possession of a firearm and one count of unlawful possession of a controlled substance with intent to deliver while armed with a firearm, and with a school zone enhancement. Following the State's case-in-chief, the court granted Calhoun's motion to dismiss the delivery charge and its school zone enhancement.
A violation of RCW 9.41.040(1)(a).
A violation of RCW 69.50.401(a)(1)(i).
A violation of former RCW 9.94A.370 (recodified as RCW 9.94A.530 in 2001).
A violation of RCW 69.50.435.
The State then amended its information to add a charge of unlawful possession of cocaine while armed with a firearm. The jury found Calhoun guilty of unlawful possession of a controlled substance, not guilty of possession of a firearm, and rejected the firearm enhancement to the cocaine possession charge.
Analysis
1. Request for Franks hearing.
According to the affidavit in support of the search warrant, the confidential informant (CI) was in the residence of Johnson, Calhoun's friend. On April 5, 2001, Johnson, Calhoun, and another couple were present, the CI saw an ounce of cocaine on the coffee table, and the CI saw Calhoun with a gun in his waistband and in his hand. The CI also stated that during the 72-hour period before the April 9 warrant application, he had seen Johnson, Calhoun, and another person cooking cocaine in the residence. The CI also stated that Calhoun mentioned purchasing a bulletproof vest for one thousand dollars.
Calhoun filed a pretrial motion questioning whether the affidavit in support of the search warrant omitted critical information about Calhoun's relationship with Johnson, who was Brown's former girlfriend. He alleged that the information was critical to reliability because it showed that Brown had a grudge against Calhoun. But when Krause averred that Brown was not the CI, Calhoun withdrew his motion.
On the day of trial, Calhoun revived his motion for a Franks hearing, arguing that defense counsel's interview of Johnson revealed that the affidavit contained false and misleading information. Johnson had explained that on April 3, 2001, Brown had assaulted her, shattered her coffee table, and broken her television. Thus, when Calhoun moved in there was no longer a coffee table. Further, Calhoun had been in Brown's home only during family gatherings when his girlfriend and son accompanied him. Consequently, the CI must have lied to Detective Krause when he said there was cocaine on the coffee table at the time Calhoun was in Johnson's house.
The trial court denied Calhoun's motion for a Franks hearing. It ruled that Johnson's statements to defense counsel were insufficient to show that the affidavit included intentional lies or a reckless disregard for the truth.
If a defendant makes a substantial preliminary showing that the affiant knowingly, or with reckless disregard for the truth, included a false statement in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that an evidentiary hearing be held at the defendant's request. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Allegations of negligent or innocent mistakes are insufficient. Franks, 438 U.S. at 171. Thus, Calhoun must demonstrate that the alleged deliberate or reckless misstatements were material to the probable cause determination. See State v. Taylor, 74 Wn. App. 111, 117, 872 P.2d 53 (1994).
Recklessness is shown where the affiant entertained serious doubts as to the truth of facts or statements in the affidavit. State v. O'Connor, 39 Wn. App. 113, 117, 692 P.2d 208 (1984) (citing United States v. Davis, 617 F.2d 677 (D.C. Cir. 1979). Serious doubts can be shown by (1) actual deliberation by the affiant or (2) the existence of obvious reasons to doubt the informant's veracity or the accuracy of the affiant's reports. O'Connor, 39 Wn. App. at 117.
There is no evidence here that Detective Krause knew or should have known that the CI may have fabricated his allegations. The CI had been reliable in the past, personally knew Calhoun, and had recently been in the residence. Calhoun does not establish an intentional or reckless omission here. See State v. Garrison, 118 Wn.2d 870, 872, 827 P.2d 1388 (1992).
The Franks Court was explicit in limiting the inquiry to the affiant: "The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant." 438 U.S. at 171. Calhoun has failed to show that Detective Krause knowingly, or with reckless disregard for the truth, included false statements in his warrant affidavit.
2. Sufficiency of the Evidence
In proving unlawful possession of a controlled substance, the State must show the nature of the substance and that the defendant possessed it. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). Possession is either personal custody or dominion and control. Staley, 123 Wn.2d at 798 (citing State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). Here, it is undisputed that the substance found was cocaine and that Calhoun did not have actual possession. Thus, the State had to prove dominion and control. Staley, 123 Wn.2d at 798.
Citing Callahan, Calhoun argues that (1) he did not have dominion and control of Johnson's residence; (2) he had only been at the house for two or three days;(3) only some of his personal belongings were present; and (4) he merely was near the cocaine when the police discovered it. He claims that the evidence showed only his proximity to the drugs, and proximity alone is insufficient. State v. Gutierrez, 50 Wn. App. 583, 592-93, 749 P.2d 231 (1988).
There is no evidence of this in the trial testimony, only in the preliminary hearings.
There is no evidence of this in the trial testimony, only in the preliminary hearings.
In Callahan, the police executed a search warrant and found drugs in several locations on a houseboat. Callahan was a visitor on the boat but admitted that he had handled the drugs earlier that day. After concluding that Callahan did not have actual possession, the court found insufficient evidence of dominion and control because the evidence only showed proximity to the drugs and a momentary handling. Callahan, 77 Wn.2d at 31. The court considered it significant that another person claimed ownership of the drugs and had control over them. Callahan, 77 Wn.2d at 31.
Here the State showed that Calhoun had dominion and control of the premises. See State v. Summers, 107 Wn. App. 373, 389, 28 P.3d 780 (2001) (living in a residence means that a person has dominion and control and thus we engage a rebuttable presumption that the person had dominion and control of the items in that residence). When the police entered the bedroom they found Calhoun in bed with Johnson. Officer Calitis said that "They were as if they were in bed for the evening for the night." Report of Proceedings at 74. And Officer Muse said they appeared to have been sleeping. The remains of a marijuana cigarette, sixty dollars in cash, and a small box containing loose change and a bag of cocaine were on top of a nightstand next to where Calhoun was lying. The closet next to the bed was filled with men's clothes, including a bulletproof vest and a shirt containing $160 in cash.
Given this evidence, the jury could reasonably infer that Calhoun was living in the residence and thus had dominion and control of the items in that residence. See State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (we view the evidence and all reasonable inferences from it in a light most favorable to the State). This was more than mere proximity and is sufficient to support the jury's verdict.
3. Offender Score.
Calhoun next contends that the sentencing court improperly included washed-out juvenile adjudications in his offender score. Calhoun was born on November 9, 1972, turned 18 in 1990, and turned 23 on November 9, 1995.
At the time of sentencing, he had the following juvenile history:
Offense Sentencing Offense Class Age Date Date Rape 3 10/15/87 9/10/87 C 14 years old PSP 1 3/18/88 1/18/88 B 15 years old Att. 3/18/88 2/21/88 B 15 years Burglary 2 old TMVWOP 6/03/88 4/16/88 C 15 years old Escape 1 6/21/88 6/20/88 B 15 years old Burg 1 6/22/90 3/5/ 90 A. 17 years old Rape 3 6/22/90 3/5/90 C 17 years old
Until 1997, a defendant's prior juvenile class B felony convictions washed out for purposes of calculating an offender score once the defendant turned 23 years old; convictions for crimes committed before the juvenile reached age 15 did not count in the adult offender score and thus washed out on an offender's 18th birthday. See former RCW 9.94A.030(12)(b) (1996). The Legislature eliminated both wash-out provisions in 1997. See Laws of 1997, ch. 338 sec. 2.
Former RCW 9.94A.030(12)(b) (1996) defined a defendant's criminal history:
[A] defendant's other prior convictions in juvenile court if: (i) The conviction was for an offense which is a felony or a serious traffic offense and is criminal history as defined in RCW 13.40.020(9); (ii) the defendant was fifteen years of age or older at the time the offense was committed; and (iii) with respect to prior juvenile class B or C felonies or serious traffic offenses, the defendant was less than twenty-three years of age at the time the offense for which he or she is being sentenced was committed.
All of Calhoun's juvenile offenses washed out prior to the 1997 amendment except his class A felony adjudication. Thus the sentencing court erred in including the juvenile offenses in his offender score. See State v. Smith, 144 Wn.2d 665, 30 P.3d 1245, 39 P.3d 294 (2001) (the 1997 amendment applies prospectively only and cannot be used to revive juvenile offenses that had already washed out at the time of its enactment); State v. Cruz, 139 Wn.2d 186, 985 P.2d 384 (1999); State v. Dean, 113 Wn. App. 691, 54 P.3d 243 (2002).
The State argues here that the analysis in Smith and Cruz does not control because unlike the defendants there, Calhoun committed his offense after June 8, 2000, which was the effective date of RCW 9.94A.345. That statute provides that "[a]ny sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed." RCW 9.94A.345. In Smith, the Supreme Court examined this statute and comment and found no clear legislative intent that the 1997 Amendment should apply retroactively. 144 Wn.2d at 672. Thus, RCW 9.94A.345 does not allow the 1997 Amendment to revive juvenile offenses that washed out under former RCW 9.94A.030(12)(b) (1996). See Smith, 144 Wn.2d at 673-75.
As we recently held, we must read the reasoning in Smith as having been originally written into RCW 9.94A.345. Dean, 113 Wn. App. at 699. Accordingly, the analysis in Smith controls even though Calhoun committed his current offense after RCW 9.94A.345 took effect. Finally, the enactment of SSB 6423 in 2002, in which the Legislature expressly denounces the analysis in Smith and Cruz, does not affect our analysis as the express disapproval of those holdings does not apply retroactively. Dean, 113 Wn. App. at 699.
As Calhoun's offender score should have included only his class A felony juvenile adjudication along with his adult criminal history, we remand for resentencing.
We affirm the conviction, reverse and remand 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.
BRIDGEWATER and HOUGHTON, JJ., concur.