Opinion
No. 53233-2-I
Filed: November 8, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-00533-5. Judgment or order under review. Date filed: 10/03/2003. Judge signing: Hon. Richard F McDermott.
Counsel for Appellant(s), Catherine Lynn Floit, Attorney at Law, PO Box 27713, Seattle, WA 98165.
Dana M Nelson, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Robe Sharp — Information Only (Appearing Pro Se), 20716 168th Pl SE, Covington, WA 98042.
Counsel for Respondent(s), Amy R Holt, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Robert Sharp appeals his conviction for manufacturing methamphetamine. He argues the trial court erred in denying his motion to suppress evidence obtained during a search incident to arrest and in admitting certain testimony he considers to be irrelevant and unduly prejudicial. Sharp also contends there is insufficient evidence to support his conviction. Pro se, Sharp contends he received ineffective assistance of counsel. We reject these arguments, and affirm.
FACTS
Kent Police Officer Elliot Hale was on patrol in an area known for stolen vehicles at about 2:30 in the morning on January 5, 2002. He observed an SUV idling in a parking lot, with two adults and a small child apparently sleeping inside. The man in the driver's seat later identified himself as Robert Sharp. Hale ran the SUV's license plate number through the Washington Criminal Information Center (WACIC) and National Criminal Information Center (NCIC) databases, and discovered it was associated with a reported stolen vehicle. Hale blocked the SUV with his patrol car and waited for requested back-up to arrive.
Kent Police Officer Sagiao arrived within minutes, and the two approached the SUV. Hale tapped on the window and ordered the defendant to turn off the engine and step outside. When Sharp complied, Hale informed him he was under arrest and placed him in handcuffs. Sharp volunteered that the passenger was his girlfriend and that "she had nothing to do with this." Clerk's Papers at 66.
Hale took Sharp to a patrol car, advised him of his rights, and asked for identification. Sharp identified himself with his full name and date of birth. Hale checked this information with dispatch, and discovered Sharp had several outstanding warrants for his arrest.
Meanwhile, Officer Sagiao ran the vehicle identification number on the dashboard of the SUV, and dispatch informed him it did not match the plates on the SUV and that the vehicle was stolen. Dispatch called the police department that had reported the theft to confirm the SUV was still listed as stolen.
Hale searched the SUV within 30 minutes of his first contact with Sharp. He saw items he considered to be consistent with the manufacture of methamphetamine, based on his training and experience. Hale sealed the SUV, which was impounded. Detectives Trogdon and Wilson later unsealed and searched the vehicle. Inside a duffel bag, Trogdon found glass containers with both liquid and solid contents and three packages of over-the-counter pseudoephedrine pills. Trogdon confirmed that two latent fingerprints he discovered on a jar at the bottom of the duffel bag belonged to Sharp. The contents of that jar were not sampled, but forensic tests later showed that substances in other containers included pseudoephedrine hydrochloride and iodine, primary components in the methamphetamine manufacturing process.
Sharp was charged by amended information with manufacturing methamphetamine. Before trial, Sharp unsuccessfully moved to suppress the evidence discovered in the SUV. After trial, a jury convicted Sharp as charged. Sharp received a sentence under the Drug Offender Sentencing Alternative, and was ordered to serve 44.75 months in custody and 44.75 months of community custody.
The statute Sharp allegedly violated provided:
(a) Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.
(1) Any person who violates this subsection with respect to:
. . . .
(ii) amphetamine or methamphetamine, is guilty of a crime and upon conviction may be imprisoned for not more than ten years.
Former RCW 69.50.401 (1998), amended by Laws of 2003, ch. 53, sec. 331.
Sharp appeals his conviction.
DISCUSSION
Motion to Suppress. Sharp contends Officer Hale had no probable cause to arrest him, and the trial court therefore erred by denying his motion to suppress all evidence obtained in the search incident to his arrest. A ruling on a motion to suppress will be affirmed if substantial evidence supports findings of fact and the findings support the conclusions of law. State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001). We review conclusions of law de novo. Id.
As a general rule, warrantless searches and seizures are per se unreasonable. State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984). The State may rebut this presumption by establishing one of the "jealously and carefully drawn" exceptions to the warrant requirement. State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980) (quoting Arkansas v. Sanders, 442 U.S. 753, 759, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979)). One of these exceptions exists where an officer has probable cause to arrest. State v. Todd, 78 Wn.2d 362, 365, 474 P.2d 542 (1970). Probable cause exists where an officer is aware of facts and circumstances that would lead a reasonable person to conclude that a crime has been committed. State v. Graham, 130 Wn.2d 711, 724, 927 P.2d 227 (1996).
In this case, Officer Hale believed he had probable cause to arrest when he learned from dispatch the license plates affixed to the SUV had been reported stolen. Sharp relies on our decision in State v. O'Cain, 108 Wn. App. 542, 31 P.3d 733 (2001), to argue probable cause could not exist unless and until Hale confirmed the accuracy of the dispatch report by contacting the police department that originally reported the plates stolen. Sharp misreads our decision.
In O'Cain, an officer observed two vehicles parked in an area frequently used for drug transactions and suspected, based on his experience in narcotics, that a drug sale was underway. The officer learned through a dispatch report that one of the vehicles had been reported stolen, and stopped the vehicle. Based on this stop, the officer discovered the driver was unlawfully carrying a firearm. The driver challenged the seizure, and we held the State could not simply rely on the fact that he had obtained the dispatch report, but must prove that the dispatch "was based on a sufficient factual foundation to justify the kind of seizure at issue." O'Cain, 108 Wn. App. at 544. "This is not to say that police officers receiving the dispatch may not act on it without further inquiry. They certainly may do so; indeed, effective law enforcement may very well require that they do so." Id. at 552. In such cases, however, the State has the burden to prove the reliability of the dispatch at a subsequent suppression hearing.
One way to satisfy this requirement is to "elicit the source of the information and the factual basis underlying the stolen-vehicle report." Id. at 556. Here, the trial court found Hale verified the status of the stolen plates by calling the originating police department (Des Moines Police Department), or by having dispatch call that department. In taking this action, Hale confirmed the plate returned to a vehicle that had been stolen the day before and was still listed as stolen. This finding is supported by substantial evidence. Hale testified at the hearing that, he is "very, very particular and very exacting" in his reports, and "will only write [that a suspect is] in custody if I have confirmed the plates or the stolen status of the car." Report of Proceedings (RP) (July 8, 2000) at 69. Otherwise, he uses the term "detained." Id. Based on his use of the phrase "in custody" in his report referencing Sharp, Hale stated, "I can say with certainty that I did confirm it before he was taken into custody." Id. Thus, the State provided a sufficient factual foundation for the dispatch report.
The court's written findings state that Hale had confirmed the status of the stolen SUV, rather than the status of the stolen plates. Although the SUV was also confirmed stolen, it was Officer Sagiao who verified that fact. The court specifically found as much. The court's mistake in referring to the vehicle rather than its plates is of little consequence; at the time Hale confirmed the status of the plates, he had no reason to know they belonged to a different vehicle. Hale testified he had investigated at least 40 vehicles with stolen plates, and in only one instance was the vehicle itself not stolen.
We are satisfied that Officer Hale had probable cause to arrest Sharp for possession of stolen property when he learned the license plates affixed to the SUV were reported stolen. The State produced adequate evidence that this fact had been confirmed when Hale called the reporting police department or had dispatch do so. The court did not err by admitting the evidence obtained during the search incident to arrest. Sufficiency of the Evidence. Sharp next contends the State failed to present sufficient evidence to support his conviction for unlawful manufacture of methamphetamine. The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bencivenga, 137 Wn.2d 703, 706, 974 P.2d 832 (1999). "When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Because we conclude Officer Hale had probable cause to arrest based on the stolen license plates, we do not reach the question whether the seizure can be justified based on Officer Sagiao's post-arrest verification that the vehicle itself was also stolen or Officer Hale's post-arrest discovery of several outstanding warrants for Sharp's arrest.
The jury was instructed to convict Sharp only if it found beyond a reasonable doubt that Sharp manufactured a controlled substance and that he knew the substance was methamphetamine. "Manufacture means the production, preparation, compounding, conversion, or processing, directly or indirectly, of any controlled substance." Clerk's Papers at 25. The evidence showed that Officer Hale discovered Sharp and his companion sleeping or passed out in an idling vehicle at 2:30 in the morning. At Sharp's feet was a bottle of denatured alcohol, a substance used to extract pseudoephedrine for the manufacture of methamphetamine. A bag found on the floorboard of the front seat contained, among other items, several glass containers and three packages of pseudoephedrine. Sharp's fingerprints were found on a container located at the bottom of the bag, beneath other containers. Forensic chemist Martin McDermot of the Washington State Patrol Crime Lab testified that samples from two of the other jars contained pseudoephedrine hydrochloride. A third sample contained iodine. Both of these substances are used in the manufacture of methamphetamine. McDermot was unaware of any other use for the two substances in combination.
Instruction 12 provided:
To convict the defendant of the crime of manufacture of a controlled substance, methamphetamine, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the fifth day of January 2002, the defendant manufactured a controlled substance;
(2) That the defendant knew that the substance manufactured was methamphetamine; and
(3) That the acts occurred in the state of Washington. Clerk's Papers at 27.
Upon exiting the vehicle at Officer Hale's request, Sharp also volunteered that his companion had "nothing to do with this." RP (July 8, 2003) at 61. This statement suggests consciousness of guilt, and the jury could reasonably infer Sharp wished to exculpate his girlfriend from the illegal activity. Additionally, Officer Hale testified Sharp was lethargic, sweating, and "kind of unconscious," behavior consistent with a person coming down from a methamphetamine high. RP (July 10, 2003) at 43. Sharp argues this evidence amounts to no more than a "pyramiding of inferences." See Bencivenga, 137 Wn.2d at 711. He points out that several witnesses testified that not all of the components necessary for manufacturing methamphetamine were present in the car, and that police found none of the final product. As Sharp concedes, however, the law does not require the presence of all components or of the end product in order to support a conviction. See State v. Hepton, 113 Wn. App. 673, 682-83, 54 P.3d 233 (2002); State v. Zunker, 112 Wn. App. 130, 133-34, 48 P.3d 344 (2002), review denied, 148 Wn.2d 1012 (2003). Moreover, Detective Trogdon testified that methamphetamine producers frequently perform different stages of the process in different locations to avoid detection, and that "one person will do one portion of it, then take it to this other person, and then leave it, and then they will be out of it." RP (July 10, 2003) at 102.
Sharp challenges this evidence as unduly prejudicial. We review that argument below.
The evidence against Sharp did not consist of just "inferences." Sharp's fingerprints on a jar at the bottom of a bag full of material used to manufacture methamphetamine is strong evidence of his involvement in that activity. Sharp relies on State v. Todd, 101 Wn. App. 945, 951, 6 P.3d 86 (2000) to argue that fingerprint evidence alone is insufficient to support a conviction unless the fingerprint could only have been left during commission of the crime. He contends an innocent explanation of the fingerprint evidence is quite probable: "Sharp could easily have checked the contents of the duffel bags in the vehicle and thus left his fingerprints." Appellant's Brief at 22. But he never made that argument to the jury. And "[j]ust because there are hypothetically rational alternative conclusions to be drawn from the proven facts, the fact finder is not lawfully barred against discarding one possible inference when it concludes such inference unreasonable under the circumstances." Bencivenga, 137 Wn.2d at 708.
Viewing the evidence and reasonable inferences therefrom in the light most favorable to the State, we are convinced the evidence was sufficient to support Sharp's conviction.
Irrelevant and Prejudicial Evidence. Sharp contends the court abused its discretion by admitting irrelevant and unduly prejudicial testimony as to the dangerousness of the chemical items seized and the process of manufacturing methamphetamine, the street value of the drugs that could have been made from the seized materials, and Hale's observation that Sharp appeared to be under the influence of methamphetamines at the time of his arrest.
Evidence is relevant if it tends to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence. ER 401. Relevant evidence may be excluded if its probative value is substantially outweighed by the risk of unfair prejudice. ER 303. Evidentiary rulings will not be disturbed on appeal absent an abuse of discretion. State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997).
The State argues the testimony regarding the dangerousness of the materials and process associated with methamphetamine production was relevant to explain why certain substances were tested and others were not. It contends the evidence about the street value of the drugs that could have been produced from these materials was probative of whether the items belonged to Sharp, because their considerable value made it less likely that another person would have left the materials in the vehicle. Finally, the State argues that testimony about Sharp's use of methamphetamine made it more likely that the materials used to make that drug belonged to him. Given the other evidence presented by the State, we are skeptical that evidence of Sharp's methamphetamine use had great probative value, and the State's use of the evidence in its closing argument probably exacerbated its potential for unfair prejudice. But even if the court erred by admitting that evidence, Sharp cannot show a reasonable probability that the outcome of the trial would have been different had the error not occurred. Bourgeois, 133 Wn.2d at 403. He argues only that the evidence "may have affected the outcome" by eliciting an emotional response. Appellant's Brief at 26. We are not persuaded because, as we explained above, the evidence against Sharp was compelling. Accordingly, any error was harmless.
The State began its argument in this way:
On January 5, 2002, the defendant was on top of the world. He had a sweet ride, he had his girl on his arm, he had his little child on his girl's lap, and he had a meth lab at his feet. Unfortunately, the defendant was so exhausted coming down on methamphetamine that he couldn't drive another foot. He pulled into some random apartment complex, condominium apartment, actually backs his car in, and falls asleep. He falls asleep with the motor running, he can't even turn his car off. Because of this, you now know that just prior to that, the defendant had manufactured methamphetamine, because Officer Hale stumbled upon the defendant and found him.
RP (July 15, 2003) at 49-50.
Written Findings. In his opening brief, Sharp contends we must reverse because the trial court failed to enter written findings of fact and conclusions of law on the admissibility of his statement to police and the evidence obtained after his arrest, as required by CrR 3.5(c) and 3.6(b). The findings and conclusions were filed after Sharp submitted his opening brief on appeal. Sharp concedes in his reply brief that the findings have not been tailored and that he has not been prejudiced by the delay. Accordingly, we will not reverse on these grounds. State v. Byrd, 83 Wn. App. 509, 512, 922 P.2d 168 (1996).
Ineffective Assistance of Counsel. To establish a claim of ineffective assistance of counsel, Sharp must prove both that his trial attorney's representation was deficient and that the deficiency prejudiced his defense. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). In determining whether a defendant has met the first prong of this test, "scrutiny of counsel's performance is highly deferential and courts will indulge in a strong presumption of reasonableness." Id. at 226. Trial conduct that can be characterized as legitimate trial strategy or tactics cannot form the basis for a claim of ineffective assistance of counsel. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). If the defendant meets the first burden, the second prong requires the defendant to show only a "reasonable probability" that the outcome of the trial would have been different absent the attorney's deficient performance. Thomas, 109 Wn.2d at 226.
In his statement of additional grounds for review, Sharp contends his counsel was ineffective for failing to request a missing witness instruction when the State did not call as a witness Juan Lopez, the registered owner of the SUV Sharp occupied at the time of his arrest. A missing witness instruction allows the jury to infer from a party's failure to produce a particular witness who would ordinarily testify that the witness's testimony would have been unfavorable. 11 Washington Pattern Jury Instructions: Criminal 5.20, at 130 (2d ed. 1994). We reject Sharp's argument because he would not have been entitled to the instruction had it been requested. The instruction is to be given only where (1) the witness is peculiarly available to the State; (2) the testimony relates to an issue of fundamental importance as contrasted to a trivial or unimportant issue; and (3) the circumstances establish, as a matter of reasonable probability, that the State would not knowingly fail to call the witness in question unless the witness' testimony would be damaging. State v. Davis, 73 Wn.2d 271, 277, 438 P.2d 185 (1968). Sharp has not shown he could satisfy any of these conditions. Notably, Lopez told police that none those materials belonged to him, testimony that would benefit rather than damage the State's case. Furthermore, the record indicates Sharp's counsel considered calling Lopez to testify in order to establish that Sharp was not the registered owner of the SUV in which the incriminating evidence was found. The court ruled that such an inquiry would open the door for the State to establish the SUV was stolen, evidence the court had excluded on defense motion.
Sharp also contends his counsel was ineffective for failing to interview two witnesses: Juan Lopez and Audrey Miller, the woman who was present in the car when Sharp was arrested. Sharp argues that, had counsel interviewed these witnesses, he would have been able to prove he had "unwittingly committed a crime." Statement of Additional Grounds at 4. But Sharp does not explain why this is so, given Lopez's statement to police that none of the items seized from the vehicle belonged to him, and Sharp's own statement to police that Miller had "nothing to do with this." To the extent Miller would have testified that Sharp borrowed the car from a friend, this evidence would do nothing more than duplicate testimony by Bridget Mithun, who testified Sharp borrowed the car from a friend and carried nothing with him into the car.
Sharp has not demonstrated that his trial counsel's failure to interview witnesses or request a missing witness instruction amounted to conduct falling below an objective standard of reasonableness based on consideration of all of the circumstances. Nor has he established that his defense was prejudiced as a result. Accordingly, counsel's performance did not deprive Sharp of a fair trial.
Affirmed.
ELLINGTON, APPELWICK and AGID, JJ.