Opinion
No. 34611-7-II.
April 24, 2007.
Appeal from a judgment of the Superior Court for Lewis County, No. 05-1-00823-1, Richard L. Brosey, J., entered March 20, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Hunt and Penoyar, JJ.
Albert Leroy Nickols appeals his conviction of two counts of delivery of a controlled substance (methamphetamine), arguing that the evidence was insufficient to support his convictions, that the trial court incorrectly instructed the jury, and that the trial court incorrectly calculated his offender score. Nickols raises additional issues in his pro se brief. We affirm.
Facts
On October 8, 2005, detectives with the Chehalis Police Department arranged for confidential informant Robert Sibley to buy methamphetamine from Nickols at the latter's residence. The officers searched Sibley and his truck before he drove over to Nickols's residence, gave him buy money, and watched him go inside. After Sibley came out, he gave them a bindle of white crystalline powder that field tested positive for methamphetamine. Sibley completed a second controlled buy from Nickols at the same location on October 13. When the officers arrested Nickols, he admitted selling methamphetamine from his residence to Sibley.
Based on those buys, the State charged Nickols with two counts of delivering methamphetamine within 1000 feet of a school bus stop. At trial, several detectives testified to the facts cited above. Sibley described the two buys and admitted that he was a methamphetamine addict who used the drug while working with the police as an informant. He denied, however, that he was high during either of the buys in question. A forensic scientist testified that the crystalline substance Sibley gave the detectives following each buy contained methamphetamine hydrochloride.
The trial court's "to convict" instruction required the State to prove that Nickols acted with knowledge that the substance he delivered was a controlled substance. Without objection, the court defined "knowledge" for the jury as follows:
A person knows or acts knowingly or with knowledge when he or she is aware of a fact, circumstance or result described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime. If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.
Clerk's Papers (CP) at 30.
The jury found Nickols guilty as charged, and the trial court imposed standard range sentences. Nickols now appeals.
Analysis I.
Nickols argues initially that the evidence was insufficient to prove that he delivered a controlled substance, i.e., "methamphetamine, including its salts, isomers, and salts of isomers," because the forensic scientist testified only that the substance seized was methamphetamine hydrochloride. Br. of Appellant at 3; see RCW 69.50.401(2)(b). Nickols contends that additional testimony was necessary to show that methamphetamine hydrochloride is a salt of methamphetamine.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, 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 (citations omitted). Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Viewed in the light most favorable to the State, the evidence shows that Sibley twice went into Nickols's residence and emerged with methamphetamine. Sibley admitted to being a methamphetamine addict; Nickols admitted to selling him methamphetamine; the detectives tested the crystalline powder Sibley gave them after leaving Nickols and found that it tested positive for methamphetamine.
Nickols's argument focuses only on the additional expert testimony that further identified the substance delivered as methamphetamine hydrochloride. Even if we consider that testimony in isolation, we find it sufficient to support the defendant's convictions, as it is an established fact that methamphetamine hydrochloride is a salt of methamphetamine. State v. Cromwell, 157 Wn.2d 529, 534-35, 140 P.3d 593 (2006); State v. Malone, ___Wn. App.___, 150 P.3d 130 (2007). We find the evidence sufficient to prove that Nickols delivered methamphetamine to Sibley on the two dates in question.
II.
Nickols next contends that the trial court's knowledge instruction violated his right to due process because it did not track the language of RCW 9A.08.010(1)(b). Instead of stating that a person acts knowingly when he is aware of a fact, circumstance, or result "described by a statute defining an offense," the instruction stated that a person acts knowingly when he is aware of a fact, circumstance or result "described by law as being a crime." RCW 9A.08.010(1)(b)(i); CP at 30. Nickols contends that the phrase used in the instruction was confusing and misleading.
This court recently rejected this argument in upholding the same knowledge instruction in State v. Gerdts, 136 Wn. App.720, 150 P.3d 627 (2007). We adhere to the analysis in Gerdts and conclude that the trial court's knowledge instruction did not violate Nickols's right to due process.
Nickols also argues that his trial counsel was ineffective for failing to object to the knowledge instruction. Having upheld the instruction, we reject this argument as well. See Gerdts, 136 Wn. App. 720 (rejecting ineffective assistance claim on same basis).
III.
Nickols contends further that the trial court erred in failing to determine on the record whether his five prior convictions, each with the same offense date and the same sentencing date, constituted the same criminal conduct.
Nickols makes this argument under RCW 9.94A.525(5), which provides that a sentencing court shall determine, with respect to prior offenses for which sentences were served concurrently, whether those offenses shall be counted as one offense or as separate offenses using the "same criminal conduct" analysis. RCW 9.94A.525(5)(a)(i); see also RCW 9.94A.589(1)(a) ("same criminal conduct" means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim).
A defendant generally cannot waive a challenge to a miscalculated offender score. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002). There are two exceptions to this rule, however, and a defendant waives the right to appeal his sentence if the alleged error either (1) involves a stipulation to incorrect facts, or (2) is a matter of trial court discretion. Goodwin, 146 Wn.2d at 874.
A same criminal conduct analysis necessarily involves factual determinations and matters of trial court discretion. State v. Nitsch, 100 Wn. App. 512, 523, 997 P.2d 100 (2000). This case therefore involves both Nickols's failure to raise a factual dispute and his failure to request an exercise of the trial court's discretion. Nitsch, 100 Wn. App. at 520. At sentencing, the trial court counted each of Nickols's prior convictions separately. Nickols did not ask the trial court to make a same criminal conduct determination, and he did not challenge the trial court's calculation of his offender score. By agreeing to his offender score calculation, Nickols waived his right to raise the same criminal conduct issue for the first time on appeal. State v. Wilson, 117 Wn. App. 1, 21, 75 P.3d 573 (2003).
IV.
Nickols raises three additional issues in his pro se statement of additional grounds. See RAP 10.10.
He argues first that the trial court erred by relying on disputed evidence that the State introduced during sentencing without holding an evidentiary hearing. The "evidence" at issue is the State's assertion, made during its sentencing recommendation, that Nickols was engaged in the distribution of methamphetamine as a business of his own to make money. Defense counsel, in turn, described Nickols as a small-time seller who was dealing in part to fund his own drug habit. Nickols may disagree with the State's characterization of his actions, but that description did not constitute an introduction of material facts that necessitated an evidentiary hearing. See RCW 9.94A.530(2) (where defendant disputes material facts introduced during sentencing, court cannot consider such facts without granting evidentiary hearing on the point).
Nickols next argues that he was sentenced in excess of the statutory maximum authorized for his offenses under RCW 69.50.401. Nickols was sentenced to 96 months plus a 24-month school zone enhancement, for a total of 120 months on each count. The maximum sentence possible under RCW 69.50.401 for each count was 120 months. See RCW 69.50.401(2)(b). But, as Nickols points out, he also received 9-12 months of community custody, and a court may not impose a sentence where the term of confinement plus the community custody term exceeds the statutory maximum term. State v. Zavala-Reynoso, 127 Wn. App. 119, 124, 110 P.3d 827 (2005).
Nickols overlooks the fact that his judgment and sentence, as well as the charging document, lists the maximum sentence possible for his offenses as 20 years. This maximum is correct under RCW 69.50.408, which permitted the trial court to double the maximum penalty because of Nickols's prior conviction under chapter 69.50 RCW. State v. Clark, 123 Wn. App. 515, 520-21, 94 P.3d 335 (2004). The combined total of Nickols's months of incarceration and community custody is well below the maximum sentence of 20 years.
Finally, Nickols argues that his attorney was ineffective because he failed to move to suppress the testimony of Robert Sibley, the confidential informant, on the grounds that Sibley was an unreliable "dope fiend rogue agent."
Statement of Additional Grounds (SAG) at 11; see State v. Levy, 156 Wn.2d 709, 729, 132 P.3d 1076 (2006) (to prove ineffective assistance, defendant must show that his attorney's performance was deficient and that prejudice resulted). While suppression may be a remedy for portions of a witness's proposed testimony, it is generally not exercised in an attempt to prevent a witness from testifying altogether. Rather, the practice when faced with a witness who is deemed unreliable is to cross examine that witness and thereby expose his lack of credibility, which is what defense counsel did in this instance. We see no deficiency in defense counsel's performance.
Affirmed.
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.
Armstrong, P.J.
We concur: Hunt, J. Penoyar, J.