Opinion
Nos. 36105-1-II; 36108-6-II.
July 2, 2008.
Appeals from a judgment of the Superior Court for Thurston County, No. 06-1-01360-7, Gary R. Tabor, J., entered March 23, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Penoyar, J., concurred in by Van Deren, C.J., and Hunt, J.
Karen A. Lawson appeals her convictions of two counts of unlawful possession of a controlled substance with intent to deliver and one count of unlawful delivery of a controlled substance. She contends that (1) the evidence was insufficient to support her conviction as an accomplice to the delivery; (2) the school bus route sentence enhancements should not have been consecutive to one another; and (3) her trial attorney did not provide effective assistance because he did not object to the consecutive enhancements. Lawson also filed a statement of additional grounds for review (SAG), in which she raises objections to trial counsel's performance and challenges the sufficiency of the evidence regarding her possession with intent to deliver convictions. We affirm all of Lawson's convictions but vacate the sentence based on State v. Jacobs, 154 Wn.2d 596, 115 P.3d 281 (2005), and remand for resentencing.
FACTS
Lawson's convictions stem from events that took place on two different dates. On July 28, 2006, Thurston County sheriff's deputies searched the house Lawson shared with Karen Endecott. They found an electronic scale containing white residue; a piece of paper that appeared to be a "drug debt ledger"; $2,150 inside a checkbook cover; and a large Ziplock bag containing many smaller Ziplock bags, commonly used to package drugs. Lawson also turned over a small zip-lock baggie of methamphetamine, which she had in her pocket. Endecott was not present during this search.
Detective Rudloff explained that there were 20 different names on the ledger sheet with dollar amounts next to the names ranging from $20 to $200.
A few months later, on October 18, 2006, Thurston County officers organized a controlled buy with Endecott, in which an informant purchased $80 of methamphetamine. On the basis of this transaction, the officers obtained a search warrant for the Lawson-Endecott residence and executed it the same day. Lawson had not been home at the time of the transaction, but she returned shortly before the search.
This search turned up $625 from Endecott's person, including the marked buy money; plastic bags of various sizes, some containing a white residue; and another electronic scale. Outside, the officers found a bag of methamphetamine underneath a planter box. At Lawson's and Endecott's suggestion, they also searched a Toyota Camry parked in the yard. Inside the air cleaner, they found approximately seven ounces of methamphetamine. Lawson and Endecott said the car belonged to "Carlos" and "Jose", who regularly supplied them with the drugs they sold. Report of Proceedings (RP) (Feb. 26, 2007) at 126. According to the women, the two men had fled when they saw one of the police surveillance vehicles Lawson explained that she was not a methamphetamine user, and therefore more responsible than Endecott, and Carlos and Jose preferred to deal with her.
The State charged Lawson under cause number 06-1-01360-7 with one count of unlawful possession with intent to deliver, based on the July 28 incident. Under cause number 06-1-01951-6, the State charged her with delivery and another possession with intent to deliver, based on the October 18 incidents. Both Lawson and Endecott were tried together for all the charges.
Only Lawson has appealed.
Both women testified at trial. Endecott testified that she sold methamphetamine to the informant and that she put the other baggie of methamphetamine under the planter. She said that both she and Lawson had sold methamphetamine for some time, but Lawson stopped a few months before the searches. She, too, was trying to extricate herself from that lifestyle. Lawson testified that she sold methamphetamine in the past, but denied any current involvement. She said she did not use methamphetamine and asserted that the drugs she gave to the officers on July 28 was not hers, explaining that she had found the drugs on the floor during the search. She said that the $2,150 was a gift from her father before he died.
Two officers testified that their conversations with the women indicated that both were still involved in the drug trade. The State also produced transcripts of taped interviews confirming the officers' accounts of these conversations.
The jury convicted Lawson as charged, making special findings that the crimes occurred within one thousand feet of a school bus stop. The court initially sentenced her to three concurrent standard range 20-month sentence, plus three 24-month concurrent enhancements, consecutive to the sentences, a total of 44-months' incarceration. However, thereafter, the Department of Corrections requested modification, asserting that the enhancements had to be consecutive to each other. The State only sought modification of the sentence under cause number 06-1-01951-6. The court agreed that the two enhancements under that cause number had to be consecutive, but decreased the underlying sentences for both cause numbers to 12 months plus 1 day, making Lawson's total period of incarceration 60 months.
ANALYSIS
Lawson first challenges the insufficiency of the evidence that she was an accomplice to the October 18 controlled buy. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it would permit 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). An insufficiency claim admits the truth of the State's evidence and requires that all reasonable inferences be drawn in the State's favor and interpreted most strongly against the defendant. Salinas, 119 Wn.2d at 201. Circumstantial evidence is equally as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Credibility determinations are for the trier of fact and are not subject to appellate review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Even though Lawson was not present at the time of the transaction, the jury could find that she was Endecott's accomplice if, knowing that her actions would facilitate the commission of the crime, she solicited or encouraged Endecott to commit it; or aided her in planning it or carrying it out. See RCW 9A.08.020(3)(a). There was substantial evidence showing that Lawson and Endecott jointly engaged in selling methamphetamine, and that it was generally Lawson's task to deal with the suppliers and obtain the drugs. The jury could reasonably have found that Lawson's actions were intended to assist, and did assist in the transaction with the informant.
The same analysis applies to Lawson's pro se challenge to the sufficiency of the evidence of possession with intent to deliver. She argues that the baggie she gave the officers on July 28 was only enough for personal use, and Endecott admitted putting the other baggie under the planter. Again, there was evidence that it was Lawson who procured the drugs, knowing that Endecott would sell them. As to the July 28 crime, Lawson and Endecott both testified that Lawson did not use methamphetamine. Therefore, the jury could infer that any amount of the drug she possessed must have been intended for delivery.
There is merit in Lawson's objection to the sentence, however. The enhancements were imposed pursuant to RCW 9.94A.533(6), which requires that:
An additional twenty-four months shall be added to the standard sentence range for any ranked offense involving a violation of chapter 69.50 RCW if the offense was also a violation of RCW 69.50.435 or 9.94A.605. All enhancements under this subsection shall run consecutively to all other sentencing provisions, for all offenses sentenced under this chapter.
In Jacobs, 154 Wn.2d at 603, our supreme court held that this provision was ambiguous, and under the rule of lenity, it must be interpreted in the defendant's favor. The court vacated consecutive enhancements based on violations of the school bus stop prohibition and a prohibition against manufacturing marijuana when minors are present.
Contrary to the State's contention, the court did not base its decision on the fact that two enhancements were imposed on a single crime. See Jacobs, 154 Wn.2d at 604. While it is true that at the time Jacobs was decided, RCW 9.94A.533(6) did not contain the second sentence, requiring enhancements to be consecutive to "all other sentencing provisions," that language does not cure the ambiguity. Enhancements are not other sentencing provisions. See In re Post Sentence Review of Charles, 135 Wn.2d 239, 253-54, 955 P.2d 798 (1998), superseded on other grounds by statute as cited in State v. DeSantiago, 149 Wn.2d 402, 415-16, 68 P.3d 1065 (2003). Like Jacobs, Lawson is entitled to have the statute construed in her favor, making the enhancements concurrent to each other.
That sentence was added in 2006. See Laws of 2006, ch. 339 § 301.
Charles dealt with the deadly weapon and firearm enhancements established in RCW 9.94A.533(3) and (4). The legislature subsequently amended those subsections to specifically provide that the enhancements must be consecutive to each other. It has not done so with subsection (6).
In light of this determination, Lawson's challenge to trial counsel's performance is well taken. In order to establish ineffective assistance, she must show that counsel's performance was deficient, and the deficient performance prejudiced the defense. State v. Cienfuegos, 144 Wn.2d 222, 226-27, 25 P.3d 1011 (2001). Lawson's attorney did tell the trial court that Lawson did not agree that the school-zone enhancements should run consecutively, but he, himself, agreed that the statute required it. Counsel's concession satisfies both prongs of the test.
Lawson's remaining pro se complaints about her attorney's representation are meritless and will be addressed very briefly. She asserts that he should have asked for a lesser included offense instruction. She does not clearly identify that offense, but it appears that she is referring to simple possession. An instruction is warranted only if there is evidence to support an inference of the lesser crime. See State v. Hutchins, 73 Wn. App. 211, 219, 868 P.2d 196 (1994). Here, Lawson repeatedly insisted that she did not use methamphetamine, and there was no evidence to the contrary. There was no basis for a finding that she possessed the drug for her own use.
Lawson also assigns error to trial counsel's failure to present character witnesses, failure to have her trial severed from Endecott's, failure to seek suppression of the drugs from the Toyota, and absence from court at the time the verdict was taken. It is doubtful that the character evidence would have been admissible. In any case, given the admissions she made to the officers and in court, it is highly unlikely such testimony would have affected the result. Likewise, there does not appear to be any prejudice from the joint trial. Almost everything Endecott said, either to the officers, or in court, corroborated what Lawson said. As to suppression, it was Endecott and Lawson who called the Toyota to the officers' attention, and they made much of the fact that they had done so, arguing that they were fully cooperative with the investigation. Counsel's absence did not prejudice Lawson. He was in a different court at the time the jury returned its verdict, but he sent another attorney to assist her.
Finally, Lawson complains about trial counsel's failure to negotiate a plea bargain. She also raised this matter in the trial court, and the prosecutor advised the court that defense counsel had attempted to do just that, but he had rejected the proposal.
With the exception of the sentencing issue, Lawson has demonstrated neither error nor prejudice. We affirm the convictions and the sentence under cause number 06-1-01360-7. We vacate the sentence under cause number 06-1-01951-6 and remand for resentencing to provide for concurrent enhancements.
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, C.J. and HUNT, J. Concur.