Opinion
No. 38107-9-II.
September 29, 2009.
Appeal from the Superior Court, Thurston County, No. 08-1-00741-7, Gary R. Tabor, J., entered July 17, 2008.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Bridgewater and Hunt, JJ.
A jury found John C. Peden guilty of possession of a controlled substance (heroin) and unlawful use of drug paraphernalia. Peden appeals only his possession of a controlled substance (heroin) conviction, arguing that sufficient evidence does not support proof of possession beyond a reasonable doubt. Peden also argues that his sentence is improper because the sentencing court failed to properly calculate his offender score in light of two out-of-state convictions. Because sufficient evidence supports Peden's conviction and the sentencing court erred in calculating his offender score, we affirm the conviction but vacate the sentence and remand for resentencing. At resentencing, the parties shall have the opportunity to present all relevant evidence regarding criminal history, including criminal history not previously presented.
FACTS
On April 23, 2008, at approximately 11:00 pm, Olympia Police Officers Cori Schumacher, Chris Johnstone, and Jacob Brown responded to a 911 call from the 600 block of 12th Avenue. Johnstone arrived at the site, an empty lot "overgrown by brush and some other . . . vegetation," and yelled for three or four minutes for whoever was inside to come out. Report of Proceedings (RP) (July 14, 2008) at 18. A mumbled response of "I'm coming, I'm coming" came out of the brush but no one exited the property. RP (July 14, 2008) at 19.
The three officers climbed the stairs of the property to find Peden sitting at the top with his back turned toward them. An open backpack was either next to or on Peden's lap. The officers did not find drug-related paraphernalia in the backpack. The officers also saw a black nylon dog collar within 12 inches of Peden. Peden admitted owning the dog collar but he denied owning a dog. Officer Schumacher found bright orange needles, ampoules of water, cotton balls, and a small metal cap containing heroin. The items were in a fresh, clean condition and stored in cutouts in concrete within arm's reach of where Peden was sitting.
Officer Schumacher arrested Peden for possession of a controlled substance (heroin) and unlawful use of drug paraphernalia. Peden had to be "physically walk[ed] down because he wasn't able to walk himself, and when he was at the patrol car having property removed from him, [the officers] had to hold him up; otherwise, he would have tipped over." RP (July 14, 2008) at 65. He had very slurred speech, a hard time standing, was very shaky, and was difficult to understand.
At the Olympia Police Station, Peden voluntarily submitted to an alcohol breath test. The result of the test was negative. Though Peden denied using drugs, Officer Schumacher asked Officer Brian Wyllie, a Certified Drug Recognition Expert, to observe Peden as the officers checked for, but did not find, fresh needle marks on Peden's arms, neck, back, legs, and feet. The officers did not check Peden's groin area. Wyllie performed a horizontal gaze nystagmus test and Peden's pupils were "very constricted." RP (July 14, 2008) at 76. Wyllie also took Peden's pulse, which was "very slow." RP (July 14, 2008) at 77. At trial, Wyllie testified that he considered these symptoms to be consistent with heroin use, but admitted that they could be symptoms of other drug use as well.
On April 25, 2008, Thurston County charged Peden with one count of possession of a controlled substance (heroin) and one count of unlawful use of drug paraphernalia. On June 26, 2008, Tami Kee, a forensic scientist with the Tacoma Crime Laboratory, determined that the substance found in the small metal cap was heroin.
On July 15, 2008, a jury found Peden guilty as charged. At the July 17, 2008 sentencing hearing, the State offered previous Washington judgments and sentences, which included Peden's out-of-state convictions, to calculate his offender score. While discussing the inclusion of the previous Washington judgments and sentences to the record, Peden's defense counsel conceded:
I think the point is likely moot, that even if you subtract those two [Arizona convictions] from the equation, Mr. Peden's standard range would remain 12 and a day to 24 in light of the fact that, even absent those two in the calculation, the points attributed to him at this time would be seven.
The standard sentencing range for possession of a controlled substance (heroin), with an offender score between 6 and 9, is 12 months and a day to 24 months.
RP (July 17, 2008) at 4. The sentencing court remarked:
I'll ask that [the previous Washington judgments and sentences] be made a part of the record, that it is significant, in this Court's opinion, that Mr. Peden has previously been sentenced here in the State of Washington based upon recitation of criminal history that included the two Arizona convictions as being felonies. In any event, it is correct that, based on the grid for possession of heroin, a range of either — I should say a range of anywhere from six to nine as the offender score would result in a standard range of 12 months and one day to 24 months. And so I agree with [Peden's defense counsel] that may be rather academic.
Nevertheless, based upon the documents that have been provided, it would appear to this Court that nine is the correct offender score at this time. If I'm mistaken, and the correct offender score is seven, the standard range is still the same.
RP (July 17, 2008) at 5. The sentencing court included Peden's out-of-state convictions and calculated his offender score at 9; it sentenced Peden to 18 months incarceration for possession of a controlled substance (heroin), followed by 9 to 12 months of community custody.
Peden timely appeals his possession of a controlled substance (heroin) conviction and sentence. He does not appeal his concurrent 90-day sentence or conviction for unlawful use of drug paraphernalia.
ANALYSIS
Peden argues that sufficient evidence does not support his conviction for possession of a controlled substance (heroin). The State argues that the evidence is sufficient because, in addition to showing proximity to the drug paraphernalia, it has proven that Peden was under the influence of something not alcoholic and he was alone at the scene. Peden also argues that his sentence is improper because the trial court failed to properly determine his criminal history and offender score in light of two out-of-state convictions. The State concedes that the trial court erred by failing to require proof of the out-of-state convictions other than their inclusion in prior Washington judgments and sentences and by failing to perform a comparability analysis but argues the error is harmless. We affirm the conviction but vacate the sentence and remand for resentencing.
Possession of a Controlled Substance (Heroin)
Peden argues sufficient evidence does not establish the dominion and control necessary to prove possession. A criminal defendant may challenge the sufficiency of evidence used to convict him for the first time on appeal. State v. Colquitt, 133 Wn. App. 789, 795-96, 137 P.3d 892 (2006). Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004); State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). A claim of insufficiency admits the truth of the State's evidence and all inferences this court reasonably can draw from that evidence. Thomas, 150 Wn.2d at 874 (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). Circumstantial and direct evidence are equally reliable. Thomas, 150 Wn.2d at 874. Whether Peden "possessed" the heroin was a question for the jury. See State v. Staley, 123 Wn.2d 794, 802, 872 P.2d 502 (1994). This court defers to the trier of fact on issues of conflicting testimony, credibility of witnesses, and persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75.
Possessing a controlled substance is unlawful under RCW 69.50.4013. Heroin is a controlled substance. RCW 69.50.204(b)(13). To prove that Peden possessed heroin beyond a reasonable doubt, the State must have established that he actually or constructively possessed the metal bottle cap containing heroin found among the drug paraphernalia in the abandoned lot. Staley, 123 Wn.2d at 798 (citing State v. Walcott, 72 Wn.2d 959, 968, 435 P.2d 994 (1967), cert. denied, 393 U.S. 890 (1968)); State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). "Actual possession means that the goods are in the personal custody of the person charged with possession; whereas, constructive possession means that the goods are not in actual, physical possession, but that the person charged with possession has dominion and control over the goods." Callahan, 77 Wn.2d at 29. Peden was not in actual possession of the contraband when police arrested him. The question is, thus, whether the State's evidence is sufficient to establish that Peden had dominion and control over the metal bottle cap.
RCW 69.50.4013 states.
(1) It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter.
(2) Except as provided in RCW 69.50.4014, any person who violates this section is guilty of a class C felony punishable under chapter 9A.20 RCW.
Heroin is listed as a controlled substance in Schedule I of the Uniform Controlled Substances Act, ch. 69.50 RCW, under RCW 69.50.204(b):
Opium derivatives. Unless specifically excepted or unless listed in another schedule, any of the following opium derivatives, including their salts, isomers, and salts of isomers whenever the existence of those salts, isomers, and salts of isomers is possible within the specific chemical designation:
. . . .
(13) Heroin.
Proximity to the controlled substance or the ability to reduce the substance to immediate possession does not prove, by itself, dominion and control beyond a reasonable doubt. State v. Hagen, 55 Wn. App. 494, 499, 781 P.2d 892 (1989); State v. Mathews, 4 Wn. App. 653, 656, 484 P.2d 942 (1971). Establishing constructive possession is a fact-specific inquiry that requires examining the totality of the situation to determine whether the jury could have reasonably inferred that Peden had dominion and control over the heroin. State v. Cote, 123 Wn. App. 546, 549, 96 P.3d 410 (2004) (citing State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977)). Dominion and control over the substance need not be exclusive. Cote, 123 Wn. App. at 549.
Various factors determine dominion and control and the cumulative effect of a number of factors is a strong indication of constructive possession. State v. Ibarra-Raya, 145 Wn. App. 516, 525, 187 P.3d 301 (2008) (citing Partin, 88 Wn.2d at 906), review granted, 165 Wn.2d 1036 (2009). As a practical matter, control over the premises raises a rebuttable inference that the defendant possessed the drugs. 13A Seth A. Fine Douglas J. Ende, Washington Practice: Criminal Law § 906, at 174 (2d ed. 1998); see also Callahan, 77 Wn.2d at 30. The State does not contend Peden had dominion or control over the abandoned lot. However, when the police came to the lot in response to a neighbor's 911 call, Peden was the only person in the area and the police testified that there was only one entrance and exit from the lot. Moreover, the metal bottle cap was within Peden's reach, along with syringes, a paper towel, water ampoules, moist cotton balls, and alcohol swabs. There was also a black nylon dog collar found within 12 inches of Peden, which he admitted owning though he did not own a dog, and a lighter of the same brand as a lighter found in Peden's pocket. The items were in a clean condition when compared to the weathered condition of other, non-drug related items found in the area.
Peden argues that the State proved only that he had mere proximity to the metal bottle cap containing heroin and that mere proximity to the substance is not enough to prove possession. He relies on Callahan and State v. Spruell, 57 Wn. App. 383, 388, 788 P.2d 21 (1990), for support. Also, Peden argues that the record shows that "someone else was present and fled just before the officers discovered" him. Br. of Appellant at 6. We disagree.
Peden's reliance on Callahan and Spruell is misplaced. In Callahan, a person other than the defendant testified that the drugs belonged to him, not the defendant, and that he had sole control over them. 77 Wn.2d at 31. Others corroborated the person's account. Callahan, 77 Wn.2d at 31. In Spruell, more than one person was near the drugs when police entered the residence and the State did not present evidence that the defendant was an occupant of the residence or that he had any connection with the house other than being present on the day police seized the illegal drugs. 57 Wn. App. at 388. In contrast, here, there was no "undisputed direct proof plac[ing] exclusive possession in some other person" or anything in the record suggesting the presence of any person other than Peden in the abandoned lot at the time Officer Schumacher discovered him. Callahan, 77 Wn.2d at 31-32.
Despite Peden's claims, the totality of the evidence is sufficient to support the jury's verdict. Peden was the only one in the area when police arrived. He admitted owning the dog collar which was near all the other items that the police discovered. The heroin was within two feet of where Peden was sitting when the officers first arrived at the clearing in the abandoned lot. Peden appeared to be severely intoxicated and under the influence of something other than alcohol. Certified Drug Recognition Expert Officer Wyllie testified that he believed, after completing a horizontal gaze nystagmus test and taking Peden's pulse, that Peden's symptoms were consistent with someone under the influence of heroin.
Office Schumacher testified, based on her experience and training, that she believed all the essential ingredients for cooking and injecting heroin were present within arm's reach of Peden. Schumacher testified that a heroin user will use a lighter to "cook [the heroin] in the cap with a little water, use the syringe or use part of the cotton ball as the filter then use a needle to extract the substance" and use a dog collar or something similar as a tourniquet to gain access to a vein. RP (July 14, 2008) at 30.
Viewed in the light most favorable to the State, this evidence supports the jury's apparent finding that Peden's excuses were incredible and that, on April 23, 2008, he had dominion and control over the heroin. We do not substitute our view of the credibility of the witness for that of the jury, which is in a better position to make such determinations. Thomas, 150 Wn.2d at 874-75.
Accordingly, we affirm Peden's unlawful possession of a controlled substance conviction. Criminal History and Offender Score
Illegal or erroneous sentences, including classification errors of out-of-state convictions, may be challenged for the first time on appeal. State v. Ford, 137 Wn.2d 472, 485, 973 P.2d 452 (1999). We review the calculation of an offender score de novo. State v. Ortega, 120 Wn. App. 165, 171, 84 P.3d 935 (2004), remanded, 154 Wn.2d 1031 (2005).
In establishing the defendant's criminal history for sentencing purposes, the State must prove by a preponderance of the evidence that a prior conviction exists. Former RCW 9.94A.500 (2006); State v. Ammons, 105 Wn.2d 175, 186, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930 (1986). While the best evidence of a prior conviction is a certified copy of the judgment, Ford, 137 Wn.2d at 480, the State may also introduce documents of record or transcripts of prior proceedings to establish the defendant's criminal history. State v. Herzog, 48 Wn. App. 831, 834, 740 P.2d 380 (1987).
An out-of-state conviction may not be used to increase the defendant's offender score unless the State proves it is a felony in Washington. State v. Weiand, 66 Wn. App. 29, 831 P.2d 749 (1992); Ford, 137 Wn.2d at 480 (citing State v. Cabrera, 73 Wn. App. 165, 168, 868 P.2d 179 (1994)). Where a defendant's criminal history includes out-of-state convictions, the Sentencing Reform Act of 1981, ch. 9.94A RCW (SRA), requires these convictions be classified "`according to the comparable offense definitions and sentences provided by Washington law.'" State v. Wiley, 124 Wn.2d 679, 683, 880 P.2d 983 (1994) (quoting former RCW 9.94A.360(3) (1992)); former RCW 9.94A.525. To properly classify an out-of-state conviction according to Washington law, the sentencing court must compare the elements of the out-of-state offense with the elements of potentially comparable Washington crimes. State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998); Wiley, 124 Wn.2d at 684; Weiand, 66 Wn. App. at 31-32. If the elements are not identical or if the Washington statute defines the offense more narrowly than does the foreign statute, it may be necessary to look into the record of the out-of-state conviction to determine whether the defendant's conduct would have violated the comparable Washington offense. Morley, 134 Wn.2d at 606. If evidence of prior out-of-state convictions is sufficient to support classification under comparable Washington law, that evidence should be presented to the court for consideration. Ford, 137 Wn.2d at 482.
Peden argues that he objected to the inclusion of the Arizona convictions in the calculation of his offender score at his prior sentencing hearing. The record does not support this contention. Peden's defense counsel stated that any dispute between a seven or nine offender score was likely "moot" because both fit within the standard range for sentencing. Because illegal or erroneous sentences, including classification errors of out-of-state convictions, may be challenged for the first time on appeal, this issue is not moot. Ford, 137 Wn.2d at 485.
The State attempts to concede that Peden objected to the use of the convictions in the prior proceedings. It is possible that the "objection" the State concedes to is defense counsel's statement: "Your Honor, I'm not certain as to whether the out-of-state charges, the two from Arizona, would — I don't know the definition of the felony theft in Arizona, nor do I know the definition of burglary second in Arizona. I would suspect burglary second is likely a felony in Arizona just [as] it is here or it would translate." RP (July 17, 2008) at 3. An objection is a statement opposing something that has occurred or is about to occur. Black's Law Dictionary 1102 (8th ed. 2004). Defense counsel's statements are insufficient to place the sentencing court on notice that there was an objection to including the Arizona convictions in calculating Peden's offender score. Accordingly, we do not accept the State's concession.
Next, Peden argues that the State failed to prove the "existence or comparability of [the] Arizona offenses [under Washington law]." Br. of Appellant at 8. The State concedes that it introduced no evidence to support classification of the disputed Arizona convictions. At the sentencing hearing, the State submitted four prior Washington judgments and sentences. The Washington judgments and sentences contain findings of fact that the Arizona convictions were part of Peden's criminal history for purposes of calculation of his offender score. Ford, 137 Wn.2d at 479 (prior convictions may be used as a basis for sentencing under the SRA if the State proves the existence of the prior conviction by a preponderance of the evidence) (citing Ammons, 105 Wn.2d at 186); cf. Cabrera, 73 Wn. App. at 168 (foreign convictions cannot be included in offender score if State fails to prove underlying conduct met statutory elements under Washington law).
Cause Nos. 06-1-0090-4, 01-1-1823-3, 99-1-172-2, and 96-1-1144-8.
The State argues, however, that the sentencing error is harmless. We disagree because it is not "virtually certain that the court would have imposed the same sentence even without the inclusion of the Arizona convictions." Br. of Resp't at 10. The State contends that because both the offender scores of 7 and 9 correspond to the sentencing range of 12 months plus one day to 24 months, there was no harm in the error. Because the court took into account Peden's high offender score in deciding the length of Peden's sentence, we cannot conclude that it would have chosen an identical sentence using a lower score. The court may well have sentenced Peden to the lower end of the 12 months plus one day to 24 months range if his offender score was 7.
The sentencing court applied a mid-range sentence of 18 months while noting that Peden was "now at the top of the [offender score] range." RP (July 17, 2008) at 12.
In cases where the defense does not challenge the criminal history as presented by the State, the use of prior Washington judgments and sentences satisfies the State's burden. Cabrera, 73 Wn. App. at 168 (citing Ammons, 105 Wn.2d at 190). However, once the defendant challenges the use of the documents, as Peden has on appeal, the State must present additional evidence of the classification of the out-of-state convictions in order to carry its burden of proving the convictions by a preponderance of the evidence. Cabrera, 73 Wn. App. at 169 (citing Weiand, 66 Wn. App. at 31-34). Accordingly, we hold that the trial court erred in ruling that the Washington judgments and sentences sufficiently established that the Arizona convictions were comparable to Washington felonies and that the error was not harmless. Cabrera, 73 Wn. App. at 169.
We next turn to the issue of what evidentiary rules apply at the resentencing hearing. The State argues it should be allowed to produce additional evidence related to the Arizona convictions. Peden argues that because he objected to the inclusion of the Arizona convictions at the prior sentencing hearing, the State should be limited to the existing record on remand. Because Peden's trial counsel stated he believed this issue was "moot," he did not object to the use of the Arizona convictions at his initial sentencing hearing and we agree with the State.
This situation is similar to one presented in State v. Mendoza, 165 Wn.2d 913, 205 P.3d 113 (2009), where the court distinguished the proper remedies on remand when the State had the opportunity to present its evidence, but failed to do so, from situations in which the State never had such an opportunity. 165 Wn.2d at 930. "[W]here . . . there is no objection at sentencing and the State consequently has not had an opportunity to put on its evidence, it is appropriate to allow additional evidence at sentencing." Mendoza, 165 Wn.2d at 930.
Footnote 9 of Mendoza states that "[t]he parties agreed at oral argument that the 2008 versions of RCW 9.94A.500 and RCW 9.94A.530 would apply at resentencing." 165 Wn.2d at 930 n. 9.
In addition, we note in 2008, the legislature amended RCW 9.94A.530(2) to allow the parties an "opportunity to present and the court to consider all relevant evidence regarding criminal history, including criminal history not previously presented." See State v. Applegate, 147 Wn. App. 166, 172-74, 194 P.3d 1000 (2008) (no ex post facto violation when using current law at resentencing when a defendant had prior notice of the possible sentence range), review denied, 165 Wn.2d 1051 (2009). The 2008 amendment clarified the legislature's intent to ensure that sentences imposed accurately reflect the offender's actual, complete criminal history, whether imposed at sentencing or upon resentencing in light of the Washington Supreme Court's analysis in In re Personal Restraint of Cadwallader, 155 Wn.2d 867, 123 P.3d 456 (2005), State v. Lopez, 147 Wn.2d 515, 55 P.3d 609 (2002), Ford, 137 Wn.2d 472, and State v. McCorkle, 137 Wn.2d 490, 973 P.2d 461 (1999). Laws of 2008, ch. 231, § 1. Unlike the Blakely-fix statute, which sought to retroactively amend specific statutory judicial fact-finding provisions, the 2008 resentencing amendments address resentencing procedures and evidentiary restrictions imposed solely by case law. Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Compare State v. Pillatos, 159 Wn.2d 459, 470-74, 150 P.3d 1130 (2007) (applying the Blakely-fix statutory amendments that established a court's jury empanelling powers for aggravating sentencing factors only prospectively to new trials and new plea agreements), superseded by statute as stated in State v. Mann, 146 Wn. App. 349, 189 P.3d 843 (2008) (finding that Laws of 2007, ch. 205, § 1 explicitly supersedes Pillatos by requiring the application of the Blakely-fix statutes to all currently pending court cases), with In re Pers. Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002) (determining that assault cannot be a predicate offense for second degree felony murder based on developed common law rules), superseded by statute, former RCW 9A.32.050 (2003) (making assault a predicate offense for second degree felony murder and explicitly stating the legislative intent to supersede the court's opinion in Andress), as recognized in Bowman v. State, 162 Wn.2d 325, 335, 172 P.3d 681 (2007).
Accordingly, because Peden failed to adequately object to the trial court's offender score calculation at sentencing, we affirm the possession of a controlled substance conviction but we vacate the sentence and remand for resentencing at which the State may provide additional evidence to prove the defendant's criminal history.
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.
BRIDGEWATER, P.J. and HUNT, J., concur.