Opinion
No. 31043-1-II
Filed: December 21, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 03-1-00953-1. Judgment or order under review. Date filed: 10/24/2003. Judge signing: Hon. Gary Steiner.
Counsel for Appellant(s), Sheri Lynn Arnold, Attorney at Law, PO Box 7718, Tacoma, WA 98406-0718.
Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Tamara Jo O'Connor appeals her jury conviction for possession of methamphetamine with intent to deliver with a school zone enhancement, contending that the trial court's admission of her neighbors' testimony regarding high foot and vehicle traffic at her residence was prejudicial error, that there was insufficient evidence to convict her, and that she received ineffective assistance based on her trial counsel's failure to object to a police officer's expert testimony regarding the significance of high traffic at a residence. We disagree and affirm.
FACTS
On February 27, 2003, at approximately 4:45 p.m., officers of the Tacoma Police Department served a search warrant on O'Connor's residence at 2916 Northeast 57th Street in Tacoma, Pierce County. Officer Von Narcisse knocked and announced the presence of police, but no one answered the door. Narcisse entered through the unlocked front door and encountered O'Connor's friend, Ginger Woodbury, in the master bedroom. O'Connor's two sons, Justin, 17, and Jordan, 14, were also at home. Narcisse asked Jordan `if he had anything on him that [Narcisse] needed to be aware of.' Report of Proceedings (RP) (Sept. 18, 2003) at 137. Jordan told Narcisse that he had something in his pocket and Narcisse removed a pill bottle containing marijuana. After Officer Patrick Stephen located O'Connor installing floor tile in a trailer-style motor home parked in the driveway, O'Connor, Woodbury, and the two boys were brought to the couch in the living room. Detective Terry Krause then read them the search warrant.
The police officers began their search of the house. In the master bedroom, Stephen discovered a digital scale with methamphetamine residue on it, a one-inch by one-inch zip-lock baggy containing 0.5 grams of methamphetamine, and a box of zip-lock sandwich bags. Stephen found documents with O'Connor's name and address on the same desk where he found the scale. Officer Corina Hopkins searched O'Connor and discovered two sandwich-sized zip-lock baggies containing 1.4 and 1.7 grams of methamphetamine and $279 in cash in O'Connor's pants pocket.
When Stephen was handling the sandwich bag box while testifying at trial, he heard a clinking noise and discovered glass pipes and a syringe in the box; none of the officers who had previously handled the box had noticed the items.
John Dunn of the Washington State Patrol Crime Laboratory testified that tests revealed that the 1.4-gram sample `likely' contained methamphetamine but that the results were inconclusive. The sample also contained caffeine, which is used as a cutting agent to increase the quantity of methamphetamine so that a seller can make more money.
Police also found small zip-lock baggies containing methamphetamine residue in Woodbury's backpack, and she was arrested for possession of methamphetamine. Fourteen-year-old Jordan was arrested for possession of marijuana and seventeen-year-old Justin was arrested for violating probation.
O'Connor was charged with possession of methamphetamine with intent to deliver with a school zone enhancement.
Former RCW 69.50.401(a)(1)(ii) (1998); former RCW 69.50.435 (1997).
At trial, three of O'Connor's neighbors testified about the abnormally frequent foot and vehicle traffic at O'Connor's residence. Christine Huggins, who had lived down the street from O'Connor's residence for 20 years, testified that after O'Connor moved in, she had noticed an increase in pedestrian, bicycle, and automobile traffic at the house. She noticed that visitors would `park on the street, get out, walk on down, maybe five, ten minutes later, walk back.' RP (Sept. 18, 2003) at 52. Up to three cars an hour would visit the residence, which Huggins considered abnormal.
Next-door neighbor Thomas LaFrenz testified that he often saw multiple vehicles stop at the residence at all hours of the day and night, including the early morning before he left for work at 7:00 a.m. Many different vehicles would stop for only short visits. And next-door neighbor Mary Shriver testified that she saw different vehicles stopping at the residence for five- to ten-minute periods, up to eight to ten times per hour, at all hours of the day.
Stephen testified that he had experience surveilling houses suspected of drug trafficking and that he had been trained to look for `[t]he amount of traffic going to and from the house, how much time a single individual will stay in the house. . . . It just shows how busy the house is. You know, the amount of people coming in and out of the house at a certain period of time.' RP (Sept. 22, 2003) at 188-89.
A jury convicted O'Connor of possession of methamphetamine with intent to deliver with a school zone enhancement. She was sentenced to 85 months confinement, the high end of the standard range. She appeals her conviction.
O'Connor's standard range given her offender score of `5' was 46-61 months, with a mandatory 24-month school zone enhancement.
ANALYSIS
Admission of Neighbor's Testimony Regarding High Traffic
O'Connor contends that the trial court committed prejudicial error in permitting the State, over objection, to elicit her neighbors' testimony regarding unusually frequent foot and vehicle traffic at the residence and short stays by the visitors.
During the pre-trial oral argument on the motions in limine, the trial court ruled that the testimony was admissible as `part of the res gestae in relation to what went on at the house . . . to show, by circumstantial evidence, that there was something going on there . . ., not a prior bad act, but part of this case.' RP (Sept. 18, 2003) at 19.
We review the admission of evidence under an abuse of discretion standard. State v. Tharp, 27 Wn. App. 198, 205-06, 616 P.2d 693 (1980), aff'd, 96 Wn.2d 591 (1981). A trial court abuses its discretion if its decision is manifestly unreasonable or is based on untenable grounds. State v. Gonzalez-Hernandez, 122 Wn. App. 53, 57, 92 P.3d 789 (2004).
We examine whether the trial court erred in finding the evidence more probative than prejudicial under ER 403. Relevant evidence is evidence that has any tendency to make the existence of a fact of consequence to the determination of the action more or less probable. ER 401. Generally, relevant evidence is admissible. ER 402; State v. Eakins, 73 Wn. App. 271, 277, 869 P.2d 83 (1994), aff'd, 127 Wn.2d 490 (1995). But a trial court may exclude relevant evidence if it determines that its probative value is substantially outweighed by the danger of unfair prejudice. ER 403. Unfair prejudice is that which is more likely to arouse an emotional response than a rational decision by the jury. State v. Cronin, 142 Wn.2d 568, 584, 14 P.3d 752 (2000) (quoting State v. Gould, 58 Wn. App. 175, 183, 791 P.2d 569 (1990)). In addition, [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
ER 404(b).
The res gestae exception to ER 404(b) permits the admission of evidence of other crimes or misconduct where it is `a link in the chain of an unbroken sequence of events surrounding the charged offense . . . in order that a complete picture be depicted for the jury.' State v. Acosta, Wn. App. ___, 98 P.3d 503, 512 (2004) (quoting State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997)). The res gestae exception requires that evidence `be relevant to a material issue and its probative value must outweigh its prejudicial effect.' Acosta, 98 P.3d at 512 (quoting Brown, 132 Wn.2d at 571).
In response to O'Connor's argument that the evidence is not admissible under the doctrine of res gestae, the State correctly asserts that the neighbors' testimony is not subject to an ER 404(b) analysis at all because it is not evidence of another bad act. Instead, it is circumstantial evidence from which a trier of fact could infer O'Connor's intent to deliver the methamphetamine discovered by the police at her home and on her person. And, in fact, the trial court correctly noted that the evidence would be used `to show, by circumstantial evidence, that there was something going on there.' RP (Sept. 18, 2003) at 19.
No cases explicitly discuss the admissibility of neighbors' testimony regarding high traffic at a home where drug trafficking is suspected. In State v. Fernandez, 89 Wn. App. 292, 948 P.2d 872 (1997), Division One discussed, but expressed no opinion on, evidence presented at trial supporting convictions for operating a drug house and possession of cocaine with intent to deliver:
Former RCW 69.50.402(a)(6) (1994).
Three neighbors also testified to a dramatic increase in pedestrian and vehicular traffic on their street after the defendants moved in. Numerous visitors would come to the house for two to ten minutes and then leave. One witness estimated that as many as 15 cars an hour were coming and going from the house. Fernandez appeared to greet their visitors with the greatest frequency, but the other two defendants also did so at various times. One neighbor said that Fernandez and Cummings would lean into the cars that stopped on the street. The unusual activity occurred at all hours of the day and occasionally the traffic completely blocked the street.
Fernandez, 89 Wn. App. at 298. And in State v. Goodin, 67 Wn. App. 623, 631, 838 P.2d 135 (1992), review denied, 121 Wn.2d 1019 (1993), the court noted that the fact neighbors had complained about excessive foot traffic in and out of the apartment supported the trial court's finding of probable cause. See also State v. Kennedy, 107 Wn.2d 1, 8, 726 P.2d 445 (1986) (neighbors' complaints about the frequent foot traffic to house, coupled with informant's tip, created reasonable, articulable suspicion supporting stop of vehicle leaving house).
We hold that the trial court's decision to admit the evidence was reasonable and not an abuse of discretion. See Tharp, 27 Wn. App. at 205-06; Gonzalez-Hernandez, 122 Wn. App. at 57. Relevant evidence evidence that has any tendency to make the existence of a fact of consequence to the determination of the action more or less probable is generally admissible, even if it is circumstantial. ER 401; ER 402. Especially combined with the police officers' expert testimony that higher-than-normal traffic suggests drug dealing at a residence, the neighbors' testimony was relevant.
Sufficiency of Evidence
O'Connor also contends that there was insufficient evidence for the jury to convict her of possession of methamphetamine with intent to deliver.
A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). `Circumstantial evidence is no less reliable than direct evidence; specific criminal intent may be inferred from circumstances as a matter of logical probability.' State v. Brown, 68 Wn. App. 480, 483, 843 P.2d 1098 (1993) (quoting State v. Zamora, 63 Wn. App. 220, 223, 817 P.2d 880 (1991)).
We defer to the trier of fact for purposes of resolving conflicting testimony and evaluating the persuasiveness of the evidence. State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997) (citing State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992)). Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
The statutory elements of possession of a controlled substance with intent to deliver are (1) unlawful possession of (2) a controlled substance with (3) intent to deliver. Former RCW 69.50.401(a)(1)(ii); State v. Goodman, 150 Wn.2d 774, 782, 83 P.3d 410 (2004); State v. Atsbeha, 142 Wn.2d 904, 918, 16 P.3d 626 (2001); State v. Sims, 119 Wn.2d 138, 141, 829 P.2d 1075 (1992).
A large amount of a controlled substance is not required to convict a person of intent to deliver. Goodman, 150 Wn.2d at 782-83 (citing State v. Zunker, 112 Wn. App. 130, 136, 48 P.3d 344 (2002), review denied, 148 Wn.2d 1012 (2003)). But mere possession of a controlled substance is generally insufficient to establish an inference of intent to deliver. State v. Darden, 145 Wn.2d 612, 624, 41 P.3d 1189 (2002); see also Brown, 68 Wn. App. at 483 (1993). At least one additional factor must be present. Zunker, 112 Wn. App. at 136.
In Goodman, the Court examined the facts of an earlier case regarding the sufficiency of evidence of intent to deliver, where, as in Goodman, only a relatively small amount of a controlled substance was discovered: In Zunker the Court of Appeals affirmed the conviction of a man arrested while possessing only 2.0 grams of methamphetamine. While recognizing the amount of methamphetamine was insufficient by itself to prove the intent to deliver element, the court cited the `scales bearing meth residue, notebooks with names and credit card numbers, a cell phone battery, and meth ingredients' as sufficient evidence to support a conviction. Even though evidence may be consistent with personal use, it is the duty of the fact finder, not the appellate court, to weigh the evidence.
150 Wn.2d at 783 (internal citations omitted). The Court then examined the evidence before it:
[T]he police found six baggies of a white powder substance totaling 2.8 grams; three baggies tested positive for methamphetamine. The police also found a scale, additional baggies, and an accessory kit in a safe located in Goodman's bedroom. The police also found three vials and another small baggie, which contained another 0.5 grams of methamphetamine. Moreover, the trial court found a link between the August 7 controlled buy and the items seized from Goodman's room, namely baggies with identical logos involved in each instance.
Goodman, 150 Wn.2d at 783. The Court concluded that `[t]he amount of methamphetamine alone may not have been sufficient to convict Goodman, but the evidence as a whole was sufficient to allow a rational jury to convict Goodman beyond a reasonable doubt.' Goodman, 150 Wn.2d at 783.
Here, as in Zunker and Goodman, there was sufficient evidence for a reasonable jury to convict O'Connor of possession of methamphetamine with intent to deliver.
While executing the search warrant, Hopkins searched O'Connor and found sandwich-sized zip-lock baggies with 1.4 and 1.7 grams of methamphetamine in O'Connor's pants pocket. Stephen testified that it is not uncommon to sell uneven weights of methamphetamine. Additionally, in O'Connor's bedroom, on the same desk as documents bearing O'Connor's name and address, officers found a digital scale with methamphetamine residue and a box of zip-lock sandwich bags. Stephen testified that methamphetamine is commonly packaged in zip-lock baggies and that it is more common for drug dealers than drug users to use scales. And Hopkins found $279 in O'Connor's pants pocket.
The $279 consisted of one $50 note, nine $20 notes, one $10 note, six $5 notes, and nine $1 notes. Stephen testified that when a relatively small amount of money is found at a residence where drugs are sold, it is more common to find smaller denominations because `they would rather have a bunch of 20s than a bunch of $100 bills.' RP (Sept. 22, 2003) at 188.
This evidence, coupled with the neighbors' testimony regarding higher-than-normal foot and vehicle traffic, indicates more than mere possession and is sufficient to support O'Connor's conviction for possession with intent to deliver. And while Woodbury testified that the methamphetamine belonged to her and not O'Connor, the jury was free to disbelieve her testimony. See Camarillo, 115 Wn.2d at 71.
Ineffective Assistance of Counsel
Finally, O'Connor contends that she received ineffective assistance based on her trial counsel's failure to object to a police officer's expert testimony regarding the significance of high traffic at a residence.
To show ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced her. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Prejudice occurs when there is `a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In other words, counsel's deficiencies must have adversely affected the defendant's right to a fair trial to an extent that `undermine[s] confidence in the outcome.' State v. Brett, 126 Wn.2d 136, 199, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996); State v. Horton, 116 Wn. App. 909, 922, 68 P.3d 1145 (2003) (quoting Strickland, 466 U.S. at 694).
When trial counsel's actions involve matters of trial tactics, we hesitate to find ineffective assistance of counsel. State v. Jones, 33 Wn. App. 865, 872, 658 P.2d 1262, review denied, 99 Wn.2d 1013 (1983). And this court presumes that counsel's performance was reasonable. State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990). The decision of when or whether to object is an example of trial tactics, and only in egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence of counsel justifying reversal. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662, review denied, 113 Wn.2d 1002 (1989).
Here, during oral argument on the motions in limine, O'Connor's trial counsel moved to exclude the neighbors' testimony based on irrelevance. The trial court ruled that the testimony was admissible. The State then moved to admit Stephen's testimony regarding the significance of heavy traffic at a residence. The exchange proceeded as follows:
[The State]: In regards to expert testimony from Officer Stephen.
THE COURT: He's going to come in and say associated with drugs is an increased amount of traffic, it is one of the indicia?
[The State]: Yes.
THE COURT: That's what you want?
[The State]: Yes.
[Defense counsel]: As long as he's not commenting directly on the witness's observations and testimony.
THE COURT: He's going to come in, she's going to ask him, how long have you been in the drug field? 800 years. Can you tell us some of the characteristics of one of the places that uses drugs. One of them is heavy traffic, foot and car. End of story.
[Defense counsel]: Okay. Limited to that.
RP (Sept. 18, 2003) at 21.
Trial counsel's actions were reasonable in part because, as the State correctly points out, defense's strategy was to show that the foot traffic was associated with other members of the household and not O'Connor. This was a sound defense tactic, especially considering that the trial court had already ruled that the neighbors' testimony regarding high traffic would be admitted. See Madison, 53 Wn. App. at 763. Moreover, O'Connor cites no argument or authority as to why Stephen's testimony would have been inadmissible as expert testimony, and, in fact, such testimony is generally admissible provided that the officer testifies to sufficient experience and training in drug enforcement. See State v. Sanders, 66 Wn. App. 380, 386, 832 P.2d 1326 (1992) (officer's expert testimony regarding the significance of the absence of drug user paraphernalia in defendant's residence admissible); see also 5B Karl B. Tegland, Washington Practice: Evidence Law and Practice, sec. 705.3, at 255 (4th ed. 1999) (under ER 703 and 705, expert opinions can be admitted `without foundation except for testimony establishing the expert's qualifications').
The trial court's challenged evidentiary rulings were proper and O'Connor's counsel provided effective assistance.
Thus, O'Connor's conviction is 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.
HOUGHTON, J. and BRIDGEWATER, J., concur.