Opinion
No. 33999-4-II.
March 20, 2007.
Appeal from a judgment of the Superior Court for Clark County, No. 05-1-00837-7, Diane M. Woolard, J., entered October 27, 2005.
Counsel for Appellant(s), John A. Hays, Attorney at Law, Longview, WA.
Counsel for Respondent(s), Michael C. Kinnie, Attorney at Law, Vancouver, WA.
Affirmed in part and remanded by unpublished opinion per Houghton, C.J., concurred in by Van Deren and Penoyar, JJ.
Joseph Fuller appeals his convictions of unlawful delivery of a controlled substance (methamphetamine) and unlawful possession of a controlled substance with intent to deliver (methamphetamine). He claims that the trial court erred by denying his motion to sever counts, by allowing improper opinion testimony, and in sentencing him. We affirm his convictions but remand to correct the period of community placement.
FACTS
On October 27, 2004, Detective Vargas of the Snohomish County Sheriff's Department called a person he knew as Jay to set up an undercover methamphetamine buy. The next day, Vargas arranged to purchase two ounces of methamphetamine from Jay in Vancouver, Washington.
Vargas and Detective Warren, also of the Snohomish County Sheriff's Department, drove to Vancouver to conduct the buy. The Snohomish detectives contacted Officer Moore of the Vancouver Police Department, who served as case officer for the buy.
Before the detectives met with Jay, Moore showed them a picture of Fuller because he believed Jay was Fuller. The detectives then met Jay at a Vancouver restaurant. Moore also went to the restaurant to conduct surveillance and provide safety backup.
While the detectives waited, Fuller and a male passenger arrived. Once Fuller was inside the restaurant, Vargas asked, "Are you Jay?"; Fuller responded, "Yes, I'm Jay"; then Fuller and the other male sat at the table next to the detectives. II-B Report of Proceedings (RP) at 283.
Shortly after Fuller sat down, he placed two ounces of methamphetamine next to Vargas's leg. Fuller also placed a small sample of suspected methamphetamine on the detectives' table.
Vargas gave Fuller $1,700 cash in exchange for the methamphetamine. Fuller told the detectives he was selling nearly $35,000 worth of methamphetamine a week. After the transaction, Fuller drove away.
On April 12, 2005, a Vancouver police officer pulled Fuller's car over, arresting him in connection with the undercover methamphetamine sale. In a search of Fuller and his car subsequent to his arrest, police found $690 in his front pocket, $1,115 in his wallet, $8,800 stored in a "hide-a-can," 17 gift cards, a pouch above the driver's side visor containing 9 grams of methamphetamine and a glass pipe, a black zipper case containing 85.4 grams of methamphetamine, and a digital scale. A further warrant search of the car revealed a cell phone, documents showing Fuller's association with the car, and scale weights.
Fuller told police that the money was his, mostly from legitimate sources; the methamphetamine and pipe in the pouch above the visor were his; and the digital scale was his. He also said the cell phone belonged to a friend, he did not know where the scale weights came from, and someone named Juan had accidentally left the methamphetamine in the black zipper case in his car.
The State charged Fuller with one count of unlawful delivery of a controlled substance (methamphetamine), former RCW 69.50.401(1), (2)(c) (2004), and unlawful possession of a controlled substance with intent to deliver (methamphetamine), former RCW 69.50.401(1), (2)(c). The delivery charge had a school bus route stop enhancement, RCW 69.50.435(1)(c), and the possession with intent to deliver charge had a school grounds enhancement, RCW 69.50.435(1)(d).
Although the first, second, and third amended informations state that the enhancement for the delivery charge was contrary to RCW 69.50.435(1)(b) and the enhancement for the possession with intent to deliver charge was contrary to RCW 69.50.435(1)(c), the text of the informations and the jury instructions make it clear that the State intended to charge Fuller with a school bus route stop enhancement under RCW 69.50.435(1)(c) for the delivery charge and a school grounds enhancement under RCW 69.50.435(1)(d) for the possession with intent to deliver charge. No objection was raised below.
Before trial, Fuller moved twice to sever the two counts. The trial court denied both motions.
A jury trial began on August 24, 2005. Vargas and Warren both identified Fuller as the man they purchased methamphetamine from at the Vancouver restaurant. The State also presented the evidence the police uncovered in their search of Fuller and his car after his arrest.
Moore testified about the evidence found in Fuller's car, including the following:
[The State]: Corporal Moore, (inaudible) since you are an expert in this area, if, let's say, a person was found to be in control of a portable digital scale; approximately, give or take, 85 grams of methamphetamine or suspected methamphetamine; large amounts of cash, over $10,000; cell phone; and some weights for, presumably, for the scale, what would that indicate to you that person —
A. All those items together found in one area or one location or one arrest would indicate to me, based on my training and experience, that that is possession with intent to deliver.
. . . .
[Defense Counsel]: Objection, Your Honor, that's a legal conclusion.
. . . .
Q. Please — please rephrase your — your answer to what you think or based on your training and experience what the person —
A. That the individual that we had . . . came in contact with was selling methamphetamine.
IV-A RP at 717-18. The trial court allowed the testimony over defense counsel objection.
Fuller denied selling methamphetamine to undercover detectives, claiming he was in Yakima County when the undercover buy took place. He testified that he used methamphetamine; that the methamphetamine above the car's visor belonged to him; and that the methamphetamine found in the black zipper bag did not belong to him but, rather, to someone who accidentally left the drugs in the car.
After the State rested, Fuller renewed his motion to sever. The trial court again denied the motion.
One of the jury instructions read, "A separate crime is charged in each count. You must decide each count separately. You must decide any evidence associated with that count separately. Your verdict on one count should not control your verdict on any other count." Clerk's Papers at 34.
The jury found Fuller guilty of both charges. The jury also found by special verdict that he possessed methamphetamine with intent to deliver within 1,000 feet of the perimeter of school grounds.
The trial court sentenced Fuller to 120 months' confinement and 9 to 12 months' community custody for each count. He appeals.
ANALYSIS Severance of Counts
Fuller first contends that the trial court erred by denying his motions to sever count I, unlawful delivery of a controlled substance, and count II, unlawful possession of a controlled substance with intent to deliver.
CrR 4.3(a) permits a court to join two or more offenses of similar character in one trial. But a court may sever offenses properly joined under CrR 4.3(a) if it "determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense." CrR 4.4(b).
We will reverse a trial court's refusal to sever counts only for a manifest abuse of discretion. State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994). A trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). Fuller bears the burden to establish a manifest prejudice that outweighs a concern for judicial economy. State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990). He may satisfy this burden by showing that he was embarrassed in the presentation of separate defenses or if a joint trial invited the jury to cumulate evidence to find guilt or infer a criminal disposition. Russell, 125 Wn.2d at 62-63.
Factors that may eliminate joinder's prejudicial effect include (1) the strength of the State's evidence on each count, (2) the clarity of defenses as to each count, (3) the court instructions to the jury to consider each count separately, and (4) the admissibility of evidence of the other charges if not joined. Russell, 125 Wn.2d at 63. Additionally, any residual prejudice must outweigh the need for judicial economy. Russell, 125 Wn.2d at 63; Bythrow, 114 Wn.2d at 722.
The State presented strong evidence for both counts. Police officers testified that Fuller sold them methamphetamine, and the State presented testimony and physical evidence suggesting that Fuller possessed methamphetamine with intent to deliver. The strength of the State's evidence on both counts supported the trial court's decision to deny the motion to sever. See Bythrow, 114 Wn.2d at 721-22 (holding that when the State's evidence is strong on both counts, the jury will not be tempted to base its finding of guilt on the strength of evidence on the other count).
Fuller's defense to both charges was the same, general denial. This also supports the trial court's decision to deny his motion to sever. See Russell, 125 Wn.2d at 64-65 (noting that when the accused defenses are identical on each charge, there is very little prejudice).
Fuller asserts that the instruction to the jury to decide each count separately did not ameliorate any prejudice joinder caused and claims the jurors could not follow the instruction. But we presume jurors follow a trial court's instructions. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994). Moreover, courts have repeatedly approved and relied on essentially the same instruction in upholding decisions denying severance. See, e.g., Bythrow, 114 Wn.2d at 723; State v. Cotten, 75 Wn. App. 669, 688, 879 P.2d 971 (1994); State v. Herzog, 73 Wn. App. 34, 51, 867 P.2d 648 (1994). The trial court's jury instruction also supports its decision to deny his motion to sever.
Further, Fuller neither objected to the proposed instruction nor submitted a limiting instruction. Accordingly, his failure to request a limiting instruction waives any error or unfair prejudice that a limiting instruction may have cured. State v. Ramirez, 62 Wn. App. 301, 305-06, 814 P.2d 227 (1991).
Fuller also claims that the trial court should have severed the counts because evidence for count I would not be cross admissible as to count II under ER 404(b) had the trial court severed the counts. But even when evidence of one count would not be admissible in a separate trial on the other count, severance is not automatically required. Bythrow, 114 Wn.2d at 720. Instead, there may be no prejudicial effect when a trial lasts only a few days and the issues are relatively simple because "the jury can be reasonably expected to compartmentalize the evidence." Bythrow, 114 Wn.2d at 721.
The issues in Fuller's two charges were straightforward and simple, and his trial lasted only two days. Thus, even if the evidence on the two counts was not cross admissible, that the jury could compartmentalize the evidence if instructed to do so supports the trial court's denial of severance.
The above factors support the trial court's denial of Fuller's multiple motions to sever. Additionally, as the trial court found, any residual prejudice did not outweigh the concern for judicial economy. The trial court did not abuse its discretion in denying the motions to sever.
Opinion Testimony
Fuller next contends that Moore gave improper opinion testimony on guilt, violating his right to a jury trial.
We review a trial court's decision to admit opinion testimony for abuse of discretion. State v. Ortiz, 119 Wn.2d 294, 308, 831 P.2d 1060 (1992). ER 704 does not require a trial court to exclude opinion testimony merely because it encompasses an ultimate issue of fact to be decided by the fact finder. City of Seattle v. Heatley, 70 Wn. App. 573, 578-79, 854 P.2d 658 (1993). But no witness, lay or expert, is allowed to "`testify to his opinion as to the guilt of a defendant, whether by direct statement or inference.'" Heatley, 70 Wn. App. at 577 (quoting State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987)). Testimony that is deemed to be an improper opinion on guilt usually involves an assertion pertaining directly to the defendant. Heatley, 70 Wn. App. at 577. Yet testimony that is not a direct comment on the defendant's guilt is based solely on inferences arising from the physical evidence, is not based on the defendant's credibility, and is helpful to the jury does not constitute improper opinion testimony. State v. Baird, 83 Wn. App. 477, 485, 922 P.2d 157 (1996); Heatley, 70 Wn. App. at 578.
Here, based on the circumstances in this case, Moore's testimony regarding the evidence found in Fuller's car did not amount to an opinion as to Fuller's guilt. Instead, Moore provided an inference based solely on the physical evidence and his experience. He did not express any opinion as to Fuller's guilt or credibility.
Accordingly, the jury was still free to believe that Fuller did not intend to deliver the methamphetamine the police found in the car, which was consistent with Fuller's testimony. The jury was also free to believe that the methamphetamine in the black zipper bag belonged to another person, as Fuller testified. Therefore, the trial court did not abuse its discretion in admitting the testimony.
Sentence
Next, Fuller contends that the trial court sentenced him for the delivery charge in excess of the statutory maximum. He cites State v. Morris, 123 Wn. App. 467, 98 P.3d 513 (2004), arguing that the statutory maximum sentence for this count should have been 60 months because he delivered only methamphetamine salts.
The jury found Fuller guilty of unlawful delivery of a controlled substance, a class C felony, punishable with up to five years' incarceration. RCW 9A.20.021(1)(c); former RCW 69.50.401(1), (2)(c). But the trial court also found that this offense was a second or subsequent offense, invoking the provisions of RCW 69.50.408(1), which doubles the statutory maximum sentence for this count to 120 months. See In re Pers. Restraint Petition of Cruz, 157 Wn.2d 83, 90, 134 P.3d 1166 (2006). The trial court sentenced him within the statutory maximum for the delivery charge.
Fuller also contends that the trial court erred in sentencing him to community custody without stating that his total time incarcerated plus his community custody may not exceed the statutory maximum sentence. Fuller received 9 to 12 months' community custody and 120 months' confinement for each count to run concurrently. The maximum sentence for each count was 120 months. The State concedes that the judgment and sentence needs to be corrected to include this proviso.
The State charged Fuller with count II, unlawful possession of a controlled substance with the intent to deliver, as a class C felony, carrying a maximum sentence of 5 years' incarceration. RCW 9A.20.021(1)(c); RCW 69.50.401(1), (2)(c). But the trial court could have doubled the statutory maximum sentence for this count as a second or subsequent offense under RCW 69.50.408(1) or under RCW 69.50.435(1)(d) because the jury found he possessed methamphetamine within 1000 feet of the perimeter of school grounds. See Cruz, 157 Wn.2d at 90.
To avoid confusion, when a court imposes community custody that could theoretically exceed the statutory maximum sentence for that offense, the court should set forth the maximum sentence and state that the total of incarceration and community custody cannot exceed that maximum. State v. Sloan, 121 Wn. App. 220, 223-24, 87 P.3d 1214 (2004).
Because Fuller received the statutory maximum sentence and 9 to 12 months' community custody for each count, upon his release from confinement, his total time of incarceration plus community custody could theoretically exceed the statutory maximum sentence for his offenses. "`Where a sentence is insufficiently specific about the period of community placement required by law, remand for amendment of the judgment and sentence to expressly provide for the correct period of community placement is the proper course.'" Sloan, 121 Wn. App. at 224 (quoting State v. Broadaway, 133 Wn.2d 118, 136, 942 P.2d 363 (1997)).
We affirm Fuller's convictions but remand to correct the period of community placement.
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.
Van Deren, J., Penoyar, J., concur.