Opinion
42298-1-II
01-16-2013
STATE OF WASHINGTON, Respondent, v. AARON MICHAEL HUDSPETH, Appellant.
UNPUBLISHED OPINION
VAN DEREN, J.
Aaron Michael Hudspeth appeals his convictions on two counts of first degree unlawful possession of a firearm and one count unlawful possession of a controlled substance (methamphetamine) with intent to deliver with a firearm enhancement. He asserts that (1) the evidence seized during the February 3, 2011, search of his residence should have been suppressed because it was seized under an overbroad search warrant; (2) the trial court's denial of his pretrial motion for new counsel violated his Sixth and Fourteenth Amendment right to counsel; (3) his trial counsel was ineffective for not moving to suppress the evidence seized on February 3 based on an overbroad warrant; (4) the evidence is insufficient to support the jury's finding that he was "armed" for purposes of the firearm sentence enhancement; and (5) the information provided inadequate notice of the State's intention to seek a firearm enhancement.
U.S. Const.
We affirm.
FACTS
On February 3, 2011, around 3:00 am, Tumwater police officer Bryant Finch was on patrol when he noticed a vehicle turn without signaling with expired tabs that pulled into the driveway at 1645 58th Avenue SE. Finch was familiar with that address because he had made several narcotic related arrests there and had spoken to property owner, Kaye Thomas, who confirmed that there was a lot of narcotics activity coming from the property. Thomas had previously given Finch permission to enter the property to do random checks for illegal activity.
The property included a house, detached garage, motor home, and several trailers. Finch pulled into the driveway behind the vehicle. The passenger, Natausha Olsen, left the vehicle and walked between the detached garage and the motor home. When the vehicle's driver, Bruce Barker, got out of the vehicle, Finch approached him. After speaking with Barker, Finch arrested him for driving with a suspended license. Olsen returned to the vehicle.
Tumwater police officer, Ty Hollinger, and Tumwater police officer and canine handler, Russell Mize, arrived on the scene to assist Finch. Hollinger traced Olsen's path between the car and the detached garage. Hollinger returned with a woman's purse that he found on a rack near the entrance to the living area on the backside of the detached garage. Hollinger thought the purse appeared out of place because it was dry and clean while the ground, rack, and surrounding items were dirty and wet with morning dew. The officers asked Olsen if the purse belonged to her. Initially, she denied ownership. Hollinger opened the purse and found that it contained a credit card with Olsen's name on it, a small amount of methamphetamine, a pipe with methamphetamine residue, and a digital scale. The officers confronted Olsen with the contents of the purse and then she admitted that it was her purse. Finch arrested Olsen for possession of the methamphetamine found in her purse, and Hollinger advised her of her Miranda rights.
A portion of the detached garage is walled off from the rest of the garage to create a small, six-by-nine feet living space. The living quarters have a separate entrance on the back of the detached garage and cannot be reached from inside of the garage. For convenience, we refer to the converted living space as the detached garage.
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed. 694 (1966).
Olsen waived her right to remain silent. She told the officers that she came to the property to purchase methamphetamine from Hudspeth on behalf of her dealer, "Larry." Olsen owed Larry money and, to repay the debt, Larry directed Olsen to travel to Tumwater to purchase a large amount of methamphetamine for him. Olsen had purchased an eight-ball of methamphetamine the night before, and she had returned to purchase another eight-ball from Hudspeth. Olsen said that Hudspeth lived in the detached garage and that she observed two handguns while buying the methamphetamine from Hudspeth.
Olsen told officers that an "eight-ball" of methamphetamine was 3.5 grams. Clerk's Papers at 46.
Barker also waived his Miranda rights and spoke to officers. Barker independently confirmed that he drove Olsen there to purchase methamphetamine from Hudspeth so she could pay her debt to an out-of-town dealer. He also said that Olsen had purchased narcotics at the property on two other occasions. On previous occasions, when Finch, Hollinger and Mize had been to the property for drug related investigations they had encountered Hudspeth at the detached garage. Finch and Mize knew that Hudspeth had been convicted of a felony.
Based on his observations and conversations with Olsen and Barker, Finch believed that Hudspeth was selling narcotics in the detached garage. Finch sought a telephonic search warrant for the detached garage for items related to selling narcotics. The issuing judge allowed a search of the detached garage for methamphetamine; marijuana; paraphernalia used for manufacturing, packaging, and distributing controlled substances; records evidencing distribution of controlled substances; and proceeds from the sale of controlled substances; and weapons.
The search warrant authorized a search of the detached garage for the following items:
1) Controlled substances, including but not limited to methamphetamines [and] marijuana[;]
2) Paraphernalia and/or equipment relating to the manufacture, packaging, use, transportation, ordering, purchase and/or distribution of controlled substances;
3) Notes and/or records and/or ledgers (including records stored on computer or other electronic medium), evidencing the acquisition, manufacture and/or distribution of controlled substances, as well as sources, customers, and/or other conspirators. In addition, records evidencing income from sales of controlled substances and/or the acquisition, possession or re-sale of assets purchased with proceeds of sales of controlled substances, and records evidencing occupancy, dominion and/or control of the premises or any controlled substances found;
4) All monies, negotiable instruments, and/or other proceeds or assets acquired from proceeds of sales of controlled substances and otherwise seizable under RCW 69.50.505, as well as all weapons authorized to be seized under RCW 9.41.098 and 69.50.505;
5) Any personal property or other assets subject to seizure under RCW 69.50.505.Ex. 4.
Finch, Hollinger, and Mize executed the search warrant at 5:30 am on February 3. The officers announced their presence and, after several minutes, Hudspeth and Lynn Barney came out of the detached garage without incident.
Mize and his drug dog entered the small living space, which contained a futon, built-in counter space, men's clothing, music equipment, and a surveillance camera with a monitor showing the driveway. In three locations, Mize's drug dog signaled that it detected narcotics. Officers searched the detached garage, beginning in the areas where the dog alerted. Inside an unlocked black and silver case, officers found a Blackhawk Ruger revolver and a black box containing a Walther .380 semi-automatic handgun with a magazine containing four rounds.Officers seized the two firearms. Inside a blue rubber container, officers found a locked silver and black case and a plastic container with marijuana inside.
The record does not reflect whether the magazine was in the handgun.
A Tumwater police lieutenant and firearm instructor tested the firearms and determined that they were both properly functioning firearms.
Finch obtained an addendum to the earlier search warrant that authorized a search of all locked containers. Officers then forced open the locked black and silver case. It contained three large baggies of methamphetamine, clean baggies, a digital scale, and a canister with a small amount of methamphetamine. Police found and seized these additional items: a glass jar containing marijuana, a green duffel bag with miscellaneous tactical gear, a metal smoking pipe in a tin, a camouflage bag with M-16 parts, a green gas mask pouch with M-16 parts, and a police scanner with a list of police codes and frequencies.
The State charged Hudspeth with two counts of first degree unlawful possession of a firearm (counts I and II) and two counts unlawful possession of a controlled substance (methamphetamine; marijuana) with intent to deliver with a firearm enhancement (counts III and IV).
Before trial, Hudspeth moved for a change of counsel, alleging that his assigned counsel failed to communicate with him, forgot to write a brief for the CrR 3.6 suppression hearing, and was not prepared for trial. Hudspeth's counsel responded that he had prepared a brief and submitted it to the court, he did not know why Hudspeth had not received it, he felt prepared for the CrR 3.6 hearing, and he felt that he could be adequately prepared for trial set for the following week. The trial court denied Hudspeth's motion because the court was not convinced that the representation presented an ethical conflict or that counsel was not able to move forward with the case.
At the CrR 3.6 hearing, Hudspeth's counsel moved unsuccessfully to suppress the evidence seized during the February 3 search, arguing that the warrant did not authorize officers to search for firearms or to search locked containers and, thus, the search exceeded the scope of the warrant. The trial court ruled that (1) the warrant authorized the search for and seizure of the firearms and, even if it did not, the seizure was authorized under the plain-view doctrine; and (2) the original warrant was sufficient to authorize the search of locked containers and, even if it was not, the locked container was not opened until an additional warrant was granted that expressly authorized the search of locked containers.
At trial, Finch, Hollinger, and Mize testified for the State. The State introduced the two firearms, methamphetamine, marijuana, and the police scanner seized during the search. The parties stipulated that Hudspeth had previously been convicted of residential burglary, which is a serious offense for the purpose of proving the elements of first degree unlawful possession of a firearm.
The jury found Hudspeth guilty of two counts of first degree unlawful possession of a firearm (counts I and II) and one count unlawful possession of a controlled substance (methamphetamine) with intent to deliver (count III). The jury also found by special verdict that Hudspeth was armed with a firearm while committing the crime of unlawful possession of a controlled substance (methamphetamine). The jury found Hudspeth not guilty of unlawful possession of a controlled substance (marijuana) with intent to deliver (count IV).
The trial court sentenced Hudspeth to a standard range sentence of 102 months on the unlawful possession of a firearm convictions (counts I and II) and to the statutory maximum sentence of 120 months on the unlawful possession of a controlled substance (methamphetamine) with intent to deliver with a firearm enhancement conviction (count III).
Counsel agreed that for count III, Hudspeth's standard range was 100 to 120 months with an additional mandatory 36 month firearm enhancement. But the statutory maximum was 120 months. Accordingly, the trial court sentenced Hudspeth to 84 months plus 36 months for the firearm enhancement for a total of 120 months on count III.
Hudspeth timely appeals.
ANALYSIS
Hudspeth challenges his convictions alleging that the search warrant was overbroad, the trial court's denial of his motion for new counsel violated his right to counsel, his trial counsel was ineffective for not challenging the warrant on the basis of overbreadth, the evidence is insufficient to show that he was "armed" for the firearm sentence enhancement, and the information provided inadequate notice of the firearm enhancement. We affirm. I. Breadth of Search Warrant
For the first time on appeal, Hudspeth alleges that the search of his residence on February 3 violated the First, Fourth, and Fourteenth Amendments and article I, section 7 of the Washington State Constitution because the search was conducted under an overbroad search warrant. Hudspeth concedes that the affidavit provided probable cause to search for methamphetamine and firearms, but argues that the warrant also authorized the search and seizure of items for which probable cause did not exist and the warrant failed to describe the things to be seized with sufficient particularity. Because Hudspeth cannot demonstrate that the alleged error had any practical and identifiable consequences at trial or caused him actual prejudice, it is not a manifest error and we need not address it for the first time on appeal. See State v. Huyen Bich Nguyen, 165 Wn.2d 428, 433, 197 P.3d 673 (2008). But, in any event, our review shows that the warrant was not overbroad because probable cause supported the search warrant and the items to be seized were particularly described in the search warrant.
A. Standard of Review
At the CrR 3.6 hearing, Hudspeth argued that the evidence found during the search should be suppressed because the police exceeded the scope of the warrant; he did not argue that the warrant was overbroad. Hudspeth argues that he may now raise this argument for the first time on appeal because it is a manifest error affecting a constitutional right. See RAP 2.5(a). Under RAP 2.5, an error is manifest if it has practical and identifiable consequences or caused actual prejudice to the defendant. Nguyen, 165 Wn.2d at 433. We "preview[] the merits of the claimed constitutional error to determine whether the argument is likely to succeed." State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001).
B. No Manifest Error
Hudspeth does not challenge sections 1 and 2 of the warrant and expressly concedes that Finch's affidavit provides probable cause to search for methamphetamine and firearms. And, even if we were to assume that the warrant was overbroad, under the severability doctrine, only the items seized under the invalid portions of the warrant must be suppressed. See State v. Perrone, 119 Wn.2d 538, 556, 834 P.2d 611 (1992).
The severability doctrine may save parts of a search warrant when other parts of the warrant are insufficiently particular or are overbroad. Perrone, 119 Wn.2d at 556; State v. Griffith, 129 Wn.App. 482, 489, 120 P.3d 610 (2005). "Under the severability doctrine, 'infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant' but does not require suppression of anything seized pursuant to valid parts of the warrant." Perrone, 119 Wn.2d at 556 (quoting United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir. 1983)). But we will not apply the doctrine "where to do so would render meaningless the standards of particularity which ensure the avoidance of general searches and the controlled exercise of discretion by the executing officer." Perrone, 119 Wn.2d at 558.
Here, if we excise all challenged portions of the warrant, the warrant still authorizes seizure of firearms; controlled substances including methamphetamines and marijuana; and paraphernalia and equipment relating to the manufacture, packaging, use, transportation, ordering, purchase and/or distribution of controlled substances. These remaining portions are a meaningful guide to officers executing the warrant and do not allow officers unfettered discretion to search Hudspeth's residence.
Moreover, only the firearms, methamphetamine, drug paraphernalia, and police scanner were admitted as evidence against Hudspeth. Hudspeth does not identify any evidence used to convict him that was seized under the challenged portions of the warrant, nor does he suggest what prejudice arose from the inclusion of the challenged language. Thus, even if we agreed with Hudspeth that portions of the warrant were overbroad, there was no error or prejudice to Hudspeth because no unlawfully seized evidence was used against him. We conclude that Hudspeth's argument related to overbreadth of the search warrant cannot be raised for the first time on appeal.
II. Sixth Amendment Right to Counsel
Next, Hudspeth argues that he had an irreconcilable conflict with his counsel about which the trial court failed to adequately inquire, thus violating his Sixth Amendment right to counsel. We disagree.
We review a trial court's denial of a motion to substitute counsel for abuse of discretion. State v. Cross, 156 Wn.2d 580, 607, 132 P.3d 80 (2006). A trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). If a defendant claims on appeal that the trial court failed to recognize an irreconcilable conflict, we review (1) the extent of the conflict, (2) the adequacy of the trial court's inquiry into the conflict, and (3) the timeliness of the motion. In re Pers. Restraint of Stenson, 142 Wn.2d 710, 723-24, 16 P.3d 1 (2001).
A defendant's right to assistance of counsel is protected by the Sixth Amendment. Stenson, 142 Wn.2d at 722. But a defendant does not have an absolute, Sixth Amendment right to his counsel of choice. State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004). "A criminal defendant who is dissatisfied with appointed counsel must show good cause to warrant substitution of counsel, such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant." Stenson, 132 Wn.2d at 734.
First, we consider the extent of the conflict between Hudspeth and his counsel. Hudspeth filed a timely pretrial motion requesting that the court appoint new counsel because his attorney had not written a brief for the CrR 3.6 hearing, had not communicated with him about the case, and would not be prepared for trial. These allegations do not describe a conflict with counsel but voice his concern that he had not had enough time and attention from counsel. These allegations do not demonstrate irreconcilable conflict requiring substitute counsel. "Generally, a defendant's loss of confidence or trust in his counsel is not sufficient reason to appoint new counsel." Varga, 151 Wn.2d at 200.
Next, we consider the adequacy of the trial court's inquiry. In deciding a motion to substitute counsel, the trial court must consider the defendant's reasons for dissatisfaction with counsel, the court's own evaluation of counsel, and the effect substitution of counsel would have on the scheduled proceeding. Stenson, 132 Wn.2d at 734. Here, the trial court gave Hudspeth a full opportunity to explain his dissatisfaction with counsel:
Your Honor, I feel, I like [defense counsel], but the whole time I've been in jail I've seen him for a whole three minutes. I have witnesses to my case, he hasn't contacted any of my witnesses, he doesn't return my phone calls, he doesn't return my wife's phone calls. I'm supposed to have a 3.5 and a 3.6 hearing today and a trial on Wednesday and I don't feel this man is adequately prepared to take me to trial and to give me a decent case. He hasn't talked to me. The last time I saw [defense counsel] was on May 4th for two minutes for him—long enough for him to tell me he forgot to write the brief for my suppression hearing, and then we came to court. He told the judge at that time that he would have the brief prepared on the 9th of May and he'd come see me that weekend and we'd discuss my case. I haven't seen him. This is the first time in five weeks since I've seen [defense counsel]. I haven't received anything from him. I don't feel this man is prepared to represent me in trial, Your Honor.Report of Proceedings (RP) (June 13, 2011) at 4-5.
The trial court asked counsel to respond. Counsel stated that he had prepared the brief, submitted it to the court, and sent a copy to the jail for Hudspeth. He did not know why Hudspeth had not received it. Counsel also assured the court that he was prepared for the CrR 3.6 suppression hearing and that he could be adequately prepared for trial, which was scheduled for the following week.
The court assured Hudspeth that it had received counsel's brief, acknowledged that Hudspeth wanted more communication from counsel, and suggested that Hudspeth would have an opportunity to discuss that with his counsel as trial approached. Also, the trial court favorably evaluated counsel's competence and representation, "[Defense counsel] is counsel that's been before the court on many, many cases, he's represented his clients zealously, he has the ability to do so. I've seen the brief that he's filed and we're going to be taking that matter up." RP (June 13, 2011) at 6-7. Finally, the court noted that appointing new counsel would not be a good use of judicial resources because new counsel would have to get up to speed, trial would be delayed, and Hudspseth would remain in custody during that time.
The trial court denied Hudspeth's motion for new counsel only after it was satisfied that no conflict existed and that counsel was able to proceed. Our review of the record shows sufficient evidence to support the trial court's actions and we hold that the trial court did not violate Hudspeth's Sixth Amendment right to counsel nor abuse its discretion in declining to appoint new counsel.
III. Ineffective Assistance of Counsel
Hudspeth also argues that his counsel was ineffective for not challenging the search warrant's probable cause and particularity requirements. We disagree.
To prevail on an ineffective assistance of counsel claim, Hudspeth must show that defense counsel's objectively deficient performance prejudiced him. State v. McFarland, 127 Wn.2d 322, 334–35, 899 P.2d 1251 (1995). Performance is deficient if, after considering all the circumstances, it falls below an objective standard of reasonableness. McFarland, 127 Wn.2d at 334–35. Prejudice results if the outcome of the trial would have been different had defense counsel not rendered deficient performance. McFarland, 127 Wn.2d at 337. Where a defendant claims ineffective assistance of counsel for failure to make a particular motion, "[a]bsent an affirmative showing that the motion probably would have been granted, there is no showing of actual prejudice." McFarland, 127 Wn.2d at 337 n.4. We review claims of ineffective assistance of counsel de novo. State v. Castro, 141 Wn.App. 485, 492, 170 P.3d 78 (2007).
"Two different standards apply to our review of a probable cause determination." State v. Emery, 161 Wn.App. 172, 201, 253 P.3d 413 (2011), aff'd, 174 Wn.2d 741, 278 P.3d 653 (2012). We review "'historical facts' in the case, i.e., the events 'leading up to the stop or search'" for abuse of discretion. In re Det. of Petersen, 145 Wn.2d 789, 799–800, 42 P.3d 952 (2002) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). We review de novo the legal conclusion that "'the qualifying information as a whole amounts to probable cause.'" Emery, 161 Wn.App. at 202 (quoting Petersen, 145 Wn.2d at 800). We also review de novo whether a warrant meets the particularity requirement of the Fourth Amendment. State v. Reep, 161 Wn.2d 808, 813, 167 P.3d 1156 (2007).
The Fourth Amendment to the United States Constitution provides that "'no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'" Perrone, 119 Wn.2d at 545 (emphasis omitted) (quoting U.S. Const. amend. IV). "Probable cause exists if the affidavit in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime can be found at the place to be searched." State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). "Accordingly, 'probable cause requires a nexus between criminal activity and the item to be seized, and also a nexus between the item to be seized and the place to be searched.'" Thein, 138 Wn.2d at 140 (quoting State v. Goble, 88 Wn.App. 503, 509, 945 P.2d 263 (1997)).
"A warrant can be 'overbroad' either because it fails to describe with particularity items for which probable cause exists, or because it describes, particularly or otherwise, items for which probable cause does not exist." State v. Maddox, 116 Wn.App. 796, 805, 67 P.3d 1135 (2003) (footnote omitted), aff'd, 152 Wn.2d 499, 98 P.3d 1199 (2004). The particularity requirement limits the executing officer's discretion and informs the person subject to the search what items may be seized. State v. Higgins, 136 Wn.App. 87, 91, 147 P.3d 649 (2006). "[A] search warrant must be sufficiently definite so that the officer executing the warrant can identify the property sought with reasonable certainty." Stenson, 132 Wn.2d at 692. "A description is valid if it is as specific as the circumstances and the nature of the activity, or crime, under investigation permits." Stenson, 132 Wn.2d at 692.
Hudspeth argues that the warrant is overbroad because the affidavit did not contain probable cause to search for (1) "'[n]otes and/or records and/or ledgers . . . evidencing the acquisition, manufacture and/or distribution of controlled substances, as well as sources, customers, and/or other conspirators'"; (2) "'records evidencing income from sales of controlled substances and/or the acquisition, possession or re-sale of assets purchased with proceeds of sales of controlled substances'"; (3) "'monies, negotiable instruments, and/or other proceeds'"; or (4) "'assets acquired from proceeds of sales of controlled substances' or any 'personal property or other assets subject to seizure under RCW 69.50.505.'" Br. of Appellant at 12-14 (first alteration in original) (quoting Ex. 4). We disagree.
Finch's affidavit for the search warrant stated that Olsen (1) purchased a large quantity of methamphetamine from Hudspeth at the detached garage on February 2, (2) returned on February 3 to purchase another large quantity of methamphetamine, and (3) saw firearms in the detached garage. Finch's affidavit also stated that Hudspeth lived in the detached garage and was a convicted felon. The facts in Finch's affidavit are sufficient for a reasonable person to conclude that Hudspeth was probably selling drugs at the detached garage where he resided and unlawfully possessing firearms and that evidence of those crimes would probably be found there. Hudspeth is correct that Finch's affidavit does not state that Olsen saw records, notes, proceeds, or paraphernalia related to distributing controlled substances at Hudspeth's residence; but the existence of those items may be inferred from the facts and circumstances provided in the affidavit.
An issuing judge may "reasonably infer, from the fact that a person is dealing drugs from his or her home, the additional fact that the person probably has drugs or evidence of drug dealing in his or her home." Maddox, 116 Wn.App. at 804 (emphasis omitted). Here, there were sufficient facts from which the issuing judge could infer the likely presence of records, papers, documents, or proceeds relating to the distribution of controlled substances. Accordingly, we hold that probable cause supported the warrant.
Each item listed in the warrant is sufficiently linked with possession and distribution of controlled substances or to a particular statute authorizing seizure and forfeiture of the item. See Perrone, 119 Wn.2d at 555 ("'[r]eference to a specific illegal activity can . . . provide substantive guidance for the officer's exercise of discretion in executing the warrant'" (alteration in original) (quoting United States v. Spilotro, 800 F.2d 959, 964 (9th Cir. 1986))). Hudspeth argues that the warrant lists items protected by the First Amendment and thus, a greater degree of particularity is required than when items sought are not protected by the First Amendment. But books, which are merely ledgers of unlawful enterprise, are not subject to the heightened particularity requirement applied to material protected by the First Amendment. Perrone, 119 Wn.2d at 548. Here, the notes and records authorized to be seized were restricted to those related to the unlawful possession and sale of controlled substances and thus, are not protected by the First Amendment.
Because probable cause supports the warrant and the warrant contains sufficiently particularized descriptions, it is not overbroad. Thus, Hudspeth's counsel was not deficient for failing to raise the overbreadth issue before the trial court. Moreover, even if the warrant had been overbroad and counsel was deficient for failing to argue that the warrant was overbroad at trial, Hudspeth cannot show actual prejudice because the evidence used to convict him was seized under the properly tailored, valid, portions of the warrant and thus, would not have been suppressed. Accordingly, this claim of ineffective counsel fails. See McFarland, 127 Wn.2d at 334-35.
IV. Sufficiency of Evidence for Weapon Enhancement
Next, Hudspeth argues that the evidence at trial was insufficient to support the jury's special verdict on count III—unlawful possession of a controlled substance (methamphetamine) with intent to deliver with a firearm enhancement—that he was armed with a firearm, under the firearm sentence enhancement provision of RCW 9.94A.533(3). We disagree.
We review a jury's special verdict that a defendant was armed to determine whether any rational trier of fact could find beyond a reasonable doubt that the defendant was armed. State v. Eckenrode, 159 Wn.2d 488, 494, 150 P.3d 1116 (2007). A claim that the evidence was insufficient admits the truth of the State's evidence and all reasonable inferences drawn from that evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "We defer to the fact finder on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v. Ague-Masters, 138 Wn.App. 86, 102, 156 P.3d 265 (2007).
Defendants "armed" with a deadly weapon or firearm at the time of the commission of their crimes receive an enhancement to their standard range sentence. RCW 9.94A.825; RCW 9.94A.533(3), (4). "A person is 'armed' if a weapon is easily accessible and readily available for use, either for offensive or defensive purposes." State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993)). "But a person is not armed merely by virtue of owning or even possessing a weapon; there must be some nexus between the defendant, the weapon, and the crime." Eckenrode, 159 Wn.2d at 493. To apply the nexus requirement, we look to the "nature of the crime, the type of weapon, and the circumstances under which the weapon is found." State v. Schelin, 147 Wn.2d 562, 570, 55 P.3d 632 (2002).
In Eckenrode, where the police found firearms in a house containing a police scanner and marijuana growing operation, our Supreme Court held that the jury was entitled to infer that the weapons were there to protect the criminal enterprise. 159 Wn.2d at 494. Here, Hudspeth sold methamphetamine from his one room residence on the back of a detached garage. In the nine-by-six feet room, police found a large quantity of methamphetamine, packaging materials, a scale, surveillance equipment, police scanner and frequency codes, and two properly functioning firearms. Hudspeth's firearms were found in an unlocked box with a magazine loaded with bullets. Finch testified that people who sell narcotics often have police scanners to monitor police activity in their area. Although proximity alone does not establish a nexus between the crime and the weapon, here, the jury could reasonably have inferred that Hudspeth had the firearms to protect his criminal enterprise. See Eckenrode, 159 Wn.2d at 494.
Hudspeth argues that the firearms were not easily accessible and readily available for use because he came out of the residence with his hands up when the police announced their presence and was detained when the police found the weapons. But our Supreme Court has rejected this argument—"[t]he defendant does not have to be armed at the moment of arrest to be armed for purposes of the firearms enhancement" as long as the defendant was armed at the time of the crime. State v. O'Neal, 159 Wn.2d 500, 504-05, 150 P.3d 1121 (2007).
Hudspeth also argues that this case is analogous to Valdobinos. In Valdobinos, our Supreme Court vacated a weapon enhancement when police found cocaine, evidence of delivery, and an unloaded rifle in defendant's home, but there was no evidence of a connection between the firearm and the narcotic crime. 122 Wn.2d at 274, 282. But unlike in Valdobinos, here, the State's evidence was sufficient for the jury to infer that the firearms were connected to Hudspeth's illegal delivery activities. In the same small space as his methamphetamine and packaging supplies, Hudspeth kept firearms, ammunition, a police scanner with code frequencies, and a security camera system monitoring the driveway. Viewed in the light most favorable to the State, this evidence supports the jury's verdict that the firearms were easily accessible and readily available to protect Hudspeth's criminal enterprise. Thus, the requisite nexus existed between Hudspeth, evidence of delivery of methamphetamine, and the firearms. Accordingly, Hudspeth's sufficiency claim fails.
V. Adequacy of Information on Notice of Firearm Enhancement
Finally, Hudspeth argues that the trial court violated his right to adequate notice by imposing a firearm enhancement that was not charged in the information. We again disagree.
Hudspeth did not raise an adequate notice issue at trial, but "[a] challenge to the constitutional sufficiency of a charging document may be raised initially on appeal." State v. Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991). "We review a challenge to the sufficiency of the charging document de novo." State v. Williams, 162 Wn.2d 177, 182, 170 P.3d 30 (2007).
All essential elements of a crime, including sentencing enhancements, must be alleged in the information. State v. Recuenco, 163 Wn.2d 428, 434, 180 P.3d 1276 (2008). "The purpose of the essential elements rule is to provide defendants with notice of the crime charged and to allow defendants to prepare a defense." Recuenco, 163 Wn.2d at 434. Where the defendant challenges the sufficiency of an information for the first time on appeal, we construe the document liberally in favor of validity. State v. Brown, 169 Wn.2d 195, 197, 234 P.3d 212 (2010).
The State alleged in the information that during the commission of the crime of unlawful possession of a controlled substance (methamphetamine; marijuana) with intent to deliver (counts III and IV) that Hudspeth "was armed with a deadly weapon, to-wit: a firearm." Clerk's Papers at 2-3. The information cited RCW 9.94A.825, which provides that a jury must enter a special verdict regarding the use of a deadly weapon, and RCW 9.94A.533(3), which contains the firearm sentence enhancement. Accordingly, the charging language and the statutes cited in the information provided notice to Hudspeth that the State was seeking a firearm enhancement.
Hudspeth argues that the inclusion of the extra 'deadly weapon' language and citation to RCW 9.94A.825 in the charging instrument means that the State actually charged Hudspeth with a deadly weapon enhancement rather than a firearm enhancement. This is incorrect. RCW 9.94A.825 directs "that the jury be asked by special verdict whether a defendant was armed with a deadly weapon and [it] includes firearms within the definition of "deadly weapons." Recuenco, 163 Wn.2d at 439; see RCW 9.94A.825. The legislature "'split the previous deadly weapon enhancement into separate enhancements for firearms and for other deadly weapons[, ]"' but RCW 9.94A.825 was not amended to reflect that change. Recuenco, 163 Wn.2d at 438 (internal quotation marks omitted) (quoting State v. Brown, 139 Wn.2d 20, 25, 983 P.2d 608 (1999)).
Recuenco refers to an altercation between a married couple that occurred on September 18, 1999, when former RCW 9.94A.125 (1983) was in effect. Former RCW 9.94A.125 was recodified as former RCW 9.94A.602 by Laws of 2001, chapter 10, section 6. Subsequently, the statute was again recodified as RCW 9.94A.825, the current statute, by Laws of 2009, chapter 28, section 41.
Hudspeth relies on In re Pers. Restraint of Delgado, 149 Wn.App. 223, 204 P.3d 936 (2009) to argue that the State charged a deadly weapon enhancement and thus, the trial court erred by imposing the lengthier firearm sentencing enhancement. In Delgado, this court held that the sentencing court exceeded its authority by imposing a firearm enhancement not authorized by the jury verdict because the firearm enhancement was not charged and the jury was not instructed on it. 149 Wn.App. at 235-38. Except for the similar charging language, in which the State alleged that Delgado committed his crimes while "armed with a deadly weapon, to-wit: a firearm, " Delgado is distinguishable. 149 Wn.App. at 229 (internal quotation marks omitted).
In Delgado, the charging document cited the weapon enhancement statute generally and did not specify that the State was charging the defendants under the section relating to the firearm enhancement. 149 Wn.App. at 229. But, here, the information specifically cited the firearm enhancement provision, RCW 9.94A.553(3), and did not cite the deadly weapon enhancement provision, RCW 9.94A.533(4). Unlike in Delgado, the State charged Hudspeth with a firearm enhancement and it provided Hudspeth adequate notice in the information.
Moreover, Delgado was not decided on the issue of notice or sufficiency of the charging document. In Delgado, the jury did not receive firearm enhancement instructions (presumably because the firearm enhancement was not charged) and thus, the sentencing court lacked the authority to impose a firearm sentence unauthorized by the jury verdict. 149 Wn.App. at 237. But here, the State charged a firearm enhancement, the trial court instructed the jury on the firearm enhancement; the jury returned a special verdict finding that Hudspeth was armed with a firearm during the commission of the crime of unlawful possession of a controlled substance (methamphetamine) with intent to deliver with a firearm enhancement, count III, and the court properly imposed a firearm enhancement authorized by the jury verdict. Accordingly, Hudspeth's claim fails.
Hudspeth does not assign error to the jury instructions. The trial court instructed the jury:
For purposes of a special verdict, the State must prove beyond a reasonable doubt that the defendant was armed with a firearm at the time of commission of the crime of Counts III and IV. A person is armed with a firearm if at the time of the commission of the crime a firearm is easily accessible and readily available for offensive and defensive use.
The State must prove beyond a reasonable doubt that there was a connection between the firearm and the defendant. The State also must prove beyond a reasonable doubt that there was a connection between the firearm and the crime. In determining whether these connections existed, you should consider, among other factors, the nature of the crime and the circumstances surrounding the commission of the crime, including the location of the weapon at the time of the crime.
A firearm is a weapon or device from which a projectile may be fired by an explosive, such as gunpowder.RP at 222-23.
We affirm.
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.
We concur: Quinn-Brintnall, J. Penoyar, J.