Opinion
No. 31342-1-II
Filed: March 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No: 03-1-00189-9. Judgment or order under review. Date filed: 01/15/2004. Judge signing: Hon. James B. II Sawyer.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), Dione Joy Ludlow, Mason County Prosecutors Office, 521 N 4th, PO Box 639, Shelton, WA 98584-0639.
A jury convicted John R. Ring of unlawful delivery of a controlled substance. On appeal Ring argues that the evidence was insufficient to support his conviction, that he was entitled to an entrapment instruction and to the testimony of several character witnesses, and that he received ineffective assistance of counsel. We affirm.
FACTS
On May 21, 2003, police operative Mary Austin contacted Ring in an attempt to obtain methamphetamine. During her second trip to Belfair Towing, where Ring both resided and worked, Austin and Ring arranged to meet at a nearby QFC store. Austin wore a court-authorized wire transmitter that allowed the Mason County Sheriff's Office to record her conversations with Ring.
Austin met Ring in the QFC parking lot at approximately 2:00 a.m. on May 22. Detectives Martin Borcherding and Jason Dracobly witnessed their meeting but could not see whether anything was exchanged. After Austin reported that the transaction was complete, she met the deputies and gave them a baggie of methamphetamine and the buy money they had given her earlier.
The State charged Ring with one count of unlawful delivery of a controlled substance. At his trial, Austin testified that she had told Ring she needed money to pay her electric bill but would take methamphetamine for resale purposes instead. Her brother was responsible for the bill, and Ring said he would take care of it because he owed her brother money. She said that during her second trip to Belfair Towing, Ring showed up and arranged to meet her at the QFC after he got methamphetamine from a friend. She initially testified that she got methamphetamine at Belfair Towing when Ring was not there, but after a short recess stated that she did not get methamphetamine at Belfair Towing in Ring's absence. She denied an earlier affair with Ring.
Detective Dracobly testified that he and Detective Borcherding searched Austin and her car before her second trip to Belfair Towing. He said that she drove directly to the QFC without stopping and then to the meeting with the detectives afterward. He added that the transaction with Ring was part of a larger investigation of drug dealing at Belfair Towing, and that Austin had been involved in five previous buys at the site earlier in May that did not involve Ring.
Ring testified that he did have an affair with Austin that ended before the alleged May 22 delivery. He said that after meeting Austin at Belfair Towing, he went to a friend's house to collect on a debt and then gave Austin two $50 bills at the QFC. He also testified that Austin already had a baggie of methamphetamine when he met her.
The jury found Ring guilty as charged and the trial court imposed a standard range sentence. Ring now appeals his conviction.
ANALYSIS
Ring argues initially that the evidence was insufficient to support his conviction.
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. Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). In determining whether the necessary quantum of proof exists, the reviewing court need not be convinced of the defendant's guilt beyond a reasonable doubt, but only that substantial evidence supports the State's case. State v. McKeown, 23 Wn. App. 582, 588, 596 P.2d 1100 (1979). This court must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
The trial court instructed the jury that it had to find the following elements proved beyond a reasonable doubt to convict Ring of unlawful delivery of a controlled substance:
(1) That on or about the 21st day of May, 2003[,] the defendant delivered a controlled substance;
(2) That the defendant knew that the substance delivered was methamphetamine, a controlled substance; and
(3) That the acts occurred in the State of Washington.
Clerk's Papers (CP) at 34. Ring contends that the State failed to prove beyond a reasonable doubt that he delivered the methamphetamine found in Austin's possession. He asserts that the only evidence on this issue came from Austin, whose credibility is suspect because of her conflicting testimony on whether she received methamphetamine at Belfair Towing from someone other than Ring. He also argues that there was reason to believe that Austin was seeking revenge as a 'woman scorned,' and he contends that his testimony that he gave her two $50 bills at the QFC is more persuasive than her testimony that he gave her methamphetamine. Br. of Appellant at 7. He also points out that the detectives could not see exactly what happened either at Belfair Towing or the QFC, and that it is possible Austin got methamphetamine from others before she met Ring.
When viewed in the light most favorable to the State, the evidence shows that Austin did interact with others the first time she went to Belfair Towing on May 21 and that no methamphetamine was found on her afterward. During her second trip to Belfair Towing, Detective Dracobly heard Ring make a phone call and say that he was coming over to get some 'stuff' for a friend. The jury heard the tape of the transaction at the QFC in which Austin asked 'how much is that worth,' to which Ring replied '90 to 120 bucks.' Exhibit 12. Austin subsequently stated that 'if this is worth $100' she still needed $100, and Ring responded that he would get the money the following day. Exhibit 12. If Ring gave Austin two $50 bills, the above conversation makes little sense. Austin's testimony was initially contradictory, but she then asserted repeatedly that Ring gave her the baggie of methamphetamine that she gave to the detectives. The jury heard all of the testimony and evidently found the State's witnesses more compelling than Ring. We find the evidence sufficient to support Ring's conviction.
Ring raises three issues in a pro se statement of additional authorities. He argues that the trial court erred in rejecting his entrapment instruction, that he received ineffective assistance of counsel when his attorney did not force Austin's mother to testify, and that the trial court erred in refusing to allow witnesses to testify about Austin's affair with Ring and her drug use.
RAP 10.10.
Entrapment is a defense that admits that the defendant committed the crime and seeks to excuse the unlawful conduct. State v. Buford, 93 Wn. App. 149, 152, 967 P.2d 548 (1998). To establish the defense, the defendant must prove that he was induced into committing the crime by law enforcement agents and would not otherwise have committed the crime. Buford, 93 Wn. App. at 152. Thus, an entrapment instruction is not appropriate unless the defendant admits acts which, if proved, would constitute the crime. State v. Hansen, 69 Wn. App. 750, 765, 850 P.2d 571 (1993), rev'd on other grounds, sub nom. State v. Stegall, 124 Wn.2d 719 (1994). Because Ring insisted that he did not give Austin drugs, but instead gave her cash, he denied committing the offense and the trial court properly rejected Ring's proposed entrapment instruction.
Ring also asserts that he received ineffective assistance of counsel because his attorney did not force Pearl Mathes, Austin's mother, to testify that her daughter is bipolar and a habitual liar. To prove a claim of ineffective assistance, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). A defendant alleging ineffective assistance bears the burden of showing deficient representation based on the record established in the proceedings below. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Prejudice is established if there is a reasonable probability that, except for counsel's errors, the result of the proceeding would have been different. McFarland, 127 Wn.2d at 335. Scrutiny of counsel's performance is highly deferential, and there is a strong presumption of reasonableness. State v. Day, 51 Wn. App. 544, 553, 754 P.2d 1021, review denied, 111 Wn.2d 1016 (1988). If counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim of ineffective assistance. Day, 51 Wn. App. at 553.
The decision to call a witness is generally a matter of legitimate trial tactics and will not support a claim of ineffective assistance of counsel. State v. Byrd, 30 Wn. App. 794, 799, 638 P.2d 601 (1981). To constitute ineffective assistance, the failure to call certain witnesses must have been unreasonable and must result in prejudice, or create a reasonable probability that, had the lawyer presented the witnesses, the outcome of the trial would have been different. State v. Sherwood, 71 Wn. App. 481, 484, 860 P.2d 407 (1993), review denied, 123 Wn.2d 1022 (1994).
The only evidence in the record showing how Mathes would have testified is found in the State's motion in limine seeking to bar her testimony:
[Mathes] will testify that [Austin] is a habitual liar. The State is assuming that the defendant intends to introduce evidence of [Austin's] reputation for truthfulness, however, the defendant has not established the 'community' in which the state's witness has a reputation for untruthfulness. The witness [Mathes] has indicated that in fact [Austin] is not a liar.
CP at 42. During the hearing on the State's motion, Ring's attorney indicated that he might attempt to call Mathes but never again referred to her. Thus, the only evidence in the record indicates that defense counsel fully considered calling Mathes as a witness and was not unreasonable in deciding not to compel Mathes's testimony. Even if Mathes had testified that Austin is a habitual liar, it is unlikely that the outcome of the trial would have been different. The detectives' testimony, as well as the tape of the transaction, supported Austin's testimony that Ring delivered methamphetamine. Furthermore, another defense witness testified that Austin's reputation for truthfulness was 'good and bad,' making Mathes's testimony, if admissible, largely cumulative. 4 Report of Proceedings (RP) at 413. The record does not support Ring's claim of ineffective assistance of counsel.
Finally, Ring asserts that the trial court erred in refusing to allow several witnesses to testify about Austin's drug use and her alleged affair with Ring.
A trial court has broad discretion in ruling on evidentiary matters and will not be overturned absent a manifest abuse of discretion. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997). When it takes a view no reasonable person would take, a trial court abuses its discretion. Castellanos, 132 Wn.2d at 97. Here, the trial court barred the testimony of a witness who would have testified that Ring and Austin were alone together several times as well as testimony from several witnesses concerning Austin's drug use. But, after Austin denied having an affair with Ring, the court allowed the defense to question Ring about his relationship with Austin. It also allowed the defense to introduce evidence showing Austin's familiarity with drugs and the terminology associated therewith. It refused to allow general 'character assassination,' however, ruling that the State did not open the door to such irrelevant evidence. 2 RP at 29.
The trial court did not abuse its discretion in ruling as it did. In the context of impeachment, evidence of a witness's prior misconduct is admissible only if probative of the witness's character for truthfulness under ER 608. State v. Cochran, 102 Wn. App. 480, 486-87, 8 P.3d 313 (2000), review denied, 143 Wn.2d 1004 (2001). Drug use is not probative of truthfulness because it has little to do with a witness's credibility. Cochran, 102 Wn. App. at 487. Similarly, the court did not err in excluding evidence that Austin and Ring were alone together because, even if true, the evidence lacked significant impeachment value.
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.
HUNT, J., VAN DEREN, J., Concur.