Opinion
No. 37024-7-II.
May 5, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 07-1-00614-1, Robert A. Lewis, J., entered November 30, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Penoyar, A.C.J., concurred in by Armstrong, J.; Quinn-Brintnall, J., dissenting.
UNPUBLISHED OPINION
Randy Erwin appeals his unlawful possession of a controlled substance with intent to deliver conviction, claiming insufficient evidence. He also challenges the constitutionality of a community custody provision, alleging it to be overly vague. In his statement of additional grounds (SAG), Erwin alleges ineffective assistance of counsel and violations of protections against double jeopardy. We affirm Erwin's convictions. However, we strike the "crime-related" provision of Erwin's judgment and sentence and remand to the trial court to consider imposing a more narrowly worded provision.
RAP 10.10.
FACTS
On April 4, 2007, Officer Troy Rawlins pulled over Erwin for failing to signal while turning. A woman was seated in the passenger's seat. RP (11/5/07) at 12. Rawlins asked Erwin for his license, registration, and proof of insurance; Erwin provided only a driver's license. After running Erwin's name through his database, Rawlins discovered an outstanding felony warrant for his arrest. Rawlins called for a "cover officer" to assist him in arresting Erwin. 1 Report of Proceedings (RP) at 13. After the cover officer arrived, Rawlins arrested Erwin and handcuffed him, without incident.
After handcuffing Erwin, Rawlins searched him, finding a digital scale and a gold coin. Rawlins placed Erwin in the back of his patrol vehicle and searched Erwin's car. Rawlins asked the female passenger to exit the car and stand with the cover officer while he completed the search of the car. Inside the center console, Rawlins found a purple leather coin bag that contained 11 small plastic baggies filled with a white crystal substance, a small plastic measuring spoon, a short plastic straw, two small baggies containing a green leafy substance, and empty plastic bags. Between the center console and the driver's seat, Rawlins found a "hard pack" of cigarettes containing cigarettes and a small plastic bag with a white crystal-like substance inside. 1 RP at 19.
Having completed the search, Rawlins returned to his patrol car, read Erwin his Miranda warnings, and asked him about the items he found. Erwin told Rawlins that he used the digital scale to buy gold, but he denied knowing about the other items in the car.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State charged Erwin with one count of unlawful possession of methamphetamine with intent to deliver, one count of possession of under 40 grams of marijuana, and one count of use of drug paraphernalia. At trial, the State called five witnesses, including Rawlins. In addition to Rawlins's testimony, the jury heard the lab results from the items collected from Erwin's car, which showed that several of the bags contained methamphetamine. The lab results showed also small amounts of methamphetamine located in the crevices of the small digital scale recovered from Erwin's pocket. Lab results further concluded that the green leafy substance found in the leather bag was marijuana.
Erwin called only one witness, William Abernathy. Abernathy testified that the day before Erwin's arrest, they had driven the car from Puyallup to Vancouver, Washington. Abernathy co-owned the car with his step-daughter but had let Erwin borrow it on April 4. Abernathy testified that he had seen the woman in the passenger's seat smoking Camel cigarettes, the same brand as the hard pack located during the vehicle search. He further testified that though Erwin used to smoke, he had not seen Erwin smoke since Erwin suffered a heart attack in 2004. Abernathy also testified that there were no drugs in the car when he lent the car to Erwin on April 4.
The trial court dismissed the paraphernalia count at the close of Erwin's case, based on a defense motion. The jury convicted Erwin on the other two counts. The trial court sentenced Erwin to 90 months in prison on count I, and 90 days in jail on count II. The trial court also imposed 9-12 months' community custody on count I, including the following provision:
Defendant shall not possess or use any paraphernalia that can be used for the ingestion or processing of controlled substances or that can be used to facilitate the sale or transfer of controlled substances including scales, pagers, police scanners, and hand held electronic scheduling or data storage devices.
Clerk's Papers (CP) at 69.
Erwin now appeals.
ANALYSIS
I. Sufficiency of the Evidence
Erwin argues that the State failed to present sufficient evidence to prove beyond a reasonable doubt that he intended to deliver or sell the methamphetamine in his possession. The State disagrees, relying on baggie evidence and the methamphetamine residue discovered in the digital scale. We agree with the State.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
Under RCW 69.50.401(1), the statutory elements of possession of a controlled substance with intent to deliver are: (1) unlawful possession (2) with intent to deliver (3) a controlled substance. Here, Erwin challenges only whether the jury could have found beyond a reasonable doubt the element of intent to deliver.
It is well settled that Washington case law forbids a trier of fact to infer an intent to deliver based on "bare possession of a controlled substance, absent other facts and circumstances[.]" State v. Brown, 68 Wn. App. 480, 483, 843 P.2d 1098 (1993) (quoting State v. Harris, 14 Wn. App. 414, 418, 542 P.2d 122 (1975)). Washington courts require evidence beyond possession to infer an intent to deliver. Brown, 68 Wn. App. at 484; see also State v. Campos, 100 Wn. App. 218, 998 P.2d 893 (2000) (undiluted cocaine, $1,750 in small denominations, pager, cell phone, and a list with a column of numbers and the Spanish word for "snow" demonstrated intent to deliver); State v. Hagler, 74 Wn. App. 232, 236, 872 P.2d 85 (1994) (possession of 24 rocks of cocaine as well as $342 in small denominations sufficient to infer intent to deliver); State v. Lane, 56 Wn. App. 286, 297-98, 786 P.2d 277 (1989) (large amount of narcotics and cash as well as scales indicative of intent to deliver).
In addition to the drugs, Rawlins found a measuring spoon, extra baggies, and a digital scale that had methamphetamine bits recovered from its crevices. This is more than bare possession and a jury could have easily found beyond a reasonable doubt, based on this evidence, that the drugs in Erwin's possession were not solely for his personal use. We affirm Erwin's possession with intent to deliver conviction.
II. Community Custody
Erwin argues that the community custody condition imposed by the trial court, prohibiting his possession of drug paraphernalia, is unconstitutionally vague. If a case can be decided on nonconstitutional grounds, however, we should decline to consider the constitutional issues. State v. Hirschfelder, ___ Wn. App. ___, 199 P.3d 1017, 1028 (2009). As such, we do not address the unconstitutionality of the community custody condition because we can resolve the issue on a statutory basis.
RCW 9.94A.703(3)(f) allows courts to impose "crime-related prohibitions" as part of community custody. In State v. Zimmer, this court held that a prohibition on possession of a cellular phone and an "electronic data storage device" was not a "crime related prohibition" because there was no evidence in the record indicating that the defendant used such a device in committing the crime. 146 Wn. App. 405, 413-14, 190 P.3d 121 (2008). Erwin's judgment and sentence prohibits him from possessing things that "can be used" for drug related purposes, even if Erwin has no such intent. As in Zimmer, in this case it is hard to see how possession of things such as boxes, matches, knives or other random objects is crime related, unless the intent is to use these items for drug related purposes.
We hold that the drug paraphernalia provision in Erwin's judgment and sentence is not a "crime related prohibition" under RCW 9.94A.703. We therefore strike this provision and remand this matter for the trial court to consider imposing of a more narrowly worded and "crime-related" provision. The trial court may consider referencing RCW 69.50.102(a) that defines "drug paraphernalia" and may also consider limiting the prohibition on possession to items that Erwin actually intends to use for drug purposes.
We affirm Erwin's convictions. However, we strike the "crime-related" provision of Erwin's judgment and sentence and remand to the trial court to consider imposing a more narrowly worded provision.
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.
I concur:
Armstrong, J.
I concur with the majority's decision to affirm Randy K. Erwin's unlawful possession of a controlled substance with intent to deliver conviction. But for the reasons stated in State v. Valencia, 148 Wn. App. 302, 198 P.3d 1065 (2009), I respectfully dissent from that portion of the majority's decision holding that the drug paraphernalia provision of Erwin's judgment and sentence is not a "crime-related prohibition." "Forbidding a defendant from possessing drug paraphernalia, where the conviction was related to drugs or substance abuse, 'is a "crime-related prohibition[]" authorized under RCW 9.94A.700(5)(e).'" Valencia, 148 Wn. App. at 323 (alteration in original) (quoting State v. Motter, 139 Wn. App. 797, 804, 162 P.3d 1190 (2007), review denied, 163 Wn.2d 1025 (2008)). In my opinion, community custody conditions such as the prohibition on possession of drug paraphernalia which do not infringe on a convict's constitutionally protected First Amendment rights are not ripe for review on direct appeal. Compare Motter, 139 Wn. App. at 804 (pre-enforcement challenge to prohibition of possessing drug paraphernalia not ripe for review because requires factual determination) with State v. Bahl, 164 Wn.2d 739, 752-53, 193 P.3d 678 (2008) (pre-enforcement challenge to possessing pornography ripe because First Amendment rights implicated as a matter of law, issue not fact specific); Valencia, 148 Wn. App. at 317-320. Accordingly, because the trial court was sentencing Erwin for possession with intent to deliver, the community custody condition prohibiting possession of drug paraphernalia is clearly crime-related and I would decline to review Erwin's challenge to the trial court's community custody condition prohibiting him from possessing drug paraphernalia, which necessarily requires a factual determination prior to any violation finding, as premature.