Opinion
No. 61094-5-I.
January 26, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-04222-5, Christopher A. Washington, J., entered December 24, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
Appellant Rigoberto Martinez-Alvarez was convicted of delivering cocaine to an undercover police officer. He contends defense counsel was ineffective by failing to object to testimony that police found additional cocaine under his car during a search incident to arrest. Because the evidence was relevant and not unfairly prejudicial, an objection would not have been sustained and counsel was not ineffective by failing to object. We affirm.
In April 2007, undercover Officer Jay Diamond approached Frederick Shoecraft and asked Shoecraft to sell him $20 worth of crack cocaine. Shoecraft said "no" and Officer Diamond walked away. Shoecraft and his companion crossed the street to a white four-door Mercedes. Shoecraft then yelled to Officer Diamond asking if he was still looking to buy cocaine. Officer Diamond nodded and Shoecraft told him to come over to the Mercedes.
Shoecraft got into the back seat of the car and asked Officer Diamond to get in. Officer Diamond refused for safety reasons and stood in the swing of the left rear-passenger door, bending down so he could see into the car. He saw Martinez-Alvarez sitting in the driver's seat while the car was idling.
Officer Diamond testified that he saw Shoecraft and Martinez-Alvarez speak briefly to each other and watched Martinez-Alvarez hand Shoecraft a rock of cocaine that Shoecraft gave to Officer Diamond. As soon as Diamond gave Shoecraft a twenty dollar bill, Martinez-Alvarez and Shoecraft drove away.
Officer Diamond signaled to nearby officers to let them know that he had made a successful drug transaction. Officers Brian Lundin and Darik Denherder followed the Mercedes in their patrol car. Officer Denherder testified that he saw small white objects, which he believed to be drugs, coming out from under the car and bouncing on to the street.
After police stopped the car, Martinez-Alvarez and Shoecraft were immediately arrested. When Officer Lundin searched the car incident to arrest, he observed a two-inch diameter hole in the metal floor below the driver's seat, and found a plastic baggie that contained crack cocaine underneath the hole. At trial, testimony about the cocaine sold to Officer Diamond and the cocaine found by Officer Lundin was admitted without objection.
Martinez-Alvarez contends he was denied effective assistance of counsel because defense counsel failed to object to the admission of evidence of the cocaine baggie found by Officer Lundin.
We review ineffective assistance of counsel claims de novo. State v. Meckelson, 133 Wn. App. 431, 435, 135 P.3d 991 (2006). To prevail on an ineffective assistance claim, a defendant must prove both that counsel's representation was deficient, and that counsel's representation prejudiced the defense. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). In order to show prejudice, we must determine that but for counsel's failure to object, the outcome would have been different. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). The defendant bears the burden of showing prejudice. State v. McFarland, 127 Wn.2d 322, 337, 899 P.2d 1251 (1995).
Martinez-Alvarez argues that defense counsel should have objected to the cocaine evidence found underneath the driver's seat because it was irrelevant and unfairly prejudicial. He asserts that the cocaine found underneath the seat was irrelevant because the charge was delivery of the cocaine Shoecraft sold to Officer Diamond. He was not charged with possession of cocaine or possession with intent to deliver. The State responds that cocaine found during a search incident to arrest is admissible circumstantial evidence to show a defendant's delivery of cocaine. See State v. Hernandez, 85 Wn. App. 672, 676, 935 P.2d 623 (1997).
In Hernandez, police observed the defendants seemingly engaged in drug delivery. By the time the officers arrested the defendants, the drug customers were gone with the purchased drugs, but the arresting officers found a controlled substance on the defendants and on the defendants' accomplices. Based on these facts, the court ruled that the "evidence that a defendant was in possession of a controlled substance at the time of an arrest" is circumstantial evidence to support "a reasonable inference that the defendant delivered a controlled substance on the date of the apparent delivery." Hernandez, 85 Wn. App. at 676.
Evidence is relevant if it is of consequence to the outcome of the action and tends to make the existence of the identified fact more or less probable. State v. Thomas, 68 Wn. App. 268, 273, 843 P.2d 540 (1992). Here, Officer Diamond said he observed Martinez-Alvarez hand the cocaine to Shoecraft, who then gave it to Officer Diamond. As in Hernandez, the cocaine found under the car is "circumstantial evidence" supporting the inference that Martinez-Alvarez was involved in the cocaine transaction that Officer Diamond observed. This inference makes it more probable that Martinez-Alvarez actually delivered cocaine. The cocaine evidence from the car, therefore, is relevant.
Martinez-Alvarez also claims the evidence was unfairly prejudicial. Unfair prejudice means "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." State v. Hanson, 46 Wn. App. 656, 662, 731 P.2d 1140, rev. denied, 108 Wn.2d 1003 (1987). Evidence is presumed admissible and should be excluded only when its probative value is substantially outweighed by the danger of unfair prejudice. ER 403; Carson v. Fine, 123 Wn.2d 206, 225, 867 P.2d 610 (1994). Martinez-Alvarez provides no evidence or authority to demonstrate that the prejudicial effect of the cocaine found underneath the car outweighed its probative value.
Accordingly, even if Martinez-Alvarez had objected to admission of the cocaine evidence, it is unlikely that the trial court would have sustained the objection. Because the outcome of the trial would have been no different, Martinez-Alvarez fails to show he was prejudiced by the admission of the evidence. There was no ineffective assistance of counsel.
Affirmed.