Opinion
No. 37810-8-II.
October 20, 2009.
Appeal from the Superior Court, Lewis County, No. 08-1-00127-4, Scott E. Blinks, J. Pro Tem., entered April 24, 2008.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Hunt and Quinn-Brintnall, JJ.
Andrew Skyberg appeals his bench trial conviction of unlawful possession of a controlled substance, methamphetamine. He claims the evidence was insufficient to support his conviction and that he never properly waived his right to a jury trial. We affirm.
A violation of RCW 69.50.4013(1).
Facts
On February 27, 2008, Centralia police officers went to 421 West Cherry Street to serve a search warrant. Officer Timothy Warren's assignment was to cover the rear of the home and to detain any suspects that might flee. As he and his canine dog, Kayo, drove up to the residence, he heard on the radio that someone was fleeing, and he saw someone leaping the last fence leading to the alley. Warren got out of his patrol car and yelled at the suspect, "Police. Stop." Report of Proceedings (RP) (Apr. 24, 2008) at 13. The man continued to flee.
Warren then chased the suspect, again ordered him to stop, and when he did not, ordered Kayo to "[t]ake him." RP (Apr. 24, 2008) at 14. Kayo reached the suspect in seconds and struck him in the buttocks, causing both the suspect and Kayo to fly forward to the ground. When the suspect again started to flee, Kayo knocked him down but the man continued to fight Kayo until the suspect agreed to comply with Warren's demands and Warren called Kayo off.
After arresting the suspect, Skyberg, and returning Kayo to the police car, Warren and Sergeant Patrick Fitzgerald retraced Skyberg's route and recovered a backpack containing clear plastic baggies, a cellular phone, and a lighter. About five feet from where Warren had taken Skyberg into custody, Fitzgerald found a clear baggie filled with a crystalline substance. Warren testified that he believed that Fitzgerald handed the baggie to Officer Mike Lowery. Fitzgerald testified that he pointed out the baggie to Warren, who picked it up.
Lowery testified that he was part of the team serving the search warrant and that Warren gave him the baggie of methamphetamine. Lowery also testified that it was very unusual to find such a large bag of methamphetamine, 5.6 grams, for one person's use, and that it was worth $250-$350. He also testified that Skyberg repeatedly told him, "It wasn't on me. It wasn't on me." RP (Apr. 24, 2008) at 41. Skyberg said that we could not prove it was on him and "[t]he only thing I got on me is some marijuana." RP (Apr. 24, 2008) at 42.
The State charged Skyberg with unlawful possession of methamphetamine. Before trial, Skyberg waived his right to a jury trial. The following colloquy took place regarding this waiver:
[DEFENSE COUNSEL]: Defense is also confirming. Mr. Skyberg has indicated he wants to waive jury and have the matter proceed to a trial by judge rather than jury.
. . . .
THE COURT: Okay. This case is set in Department 2. Mr. Skyberg, you have an absolute right to a trial by a jury of 12. The only way you wouldn't have a trial by a jury is if you give it up in writing, which you appear to have done here. I need to explain a couple of things to you about this.
There are two main differences between a jury and non-jury trial. The first is obvious, there is no jury. That means a single judge will make up the decision, it won't be 12 different people having to come to a unanimous decision. The second one is not quite as obvious, but occasionally it happens there is an objection or motion or something to strike evidence. The judge hears that motion. The same judge who hears the trial hears what the evidence is that might be stricken and then proceeds to trial. So he's hearing the evidence that he says he's not going to consider. That can seem a little unusual to a defendant. But the judges are trained to disregard that and I know all three of us can do that. Do you understand those differences?
THE DEFENDANT: Yes.
THE COURT: Anything change your mind about waiving jury under those circumstances?
THE DEFENDANT: No.
THE COURT: All right. Is anybody forcing you to sign this jury waiver?
THE DEFENDANT: No.
THE COURT: All right, I'll endorse it now. It is subject to approval by the trial court and I think Judge Lawler is available if you want to make sure.
RP (Apr. 17, 2008) at 1-2. The court signed and entered the written waiver into the record.
The waiver contains the interlineation, "subject to trial judge approval." Clerk's Papers (CP) at 24. The record does not show that the trial court formally approved this waiver.
The case proceeded to a bench trial in which the trial court found Skyberg guilty of one count of possessing methamphetamine. It later imposed a 24-month sentence. The trial court made the following findings of fact:
1. On 02-27-2008, members of the Street Crimes Unit served a search warrant at 421 W. Cherry, Centralia WA.
2. Law enforcement arrived and Defendant ran from the 421 W Cherry location.
3. As Defendant ran he discarded a backpack. The backpack would later be searched and discovered to contain several clean baggies.
4. Defendant was apprehended by K-9 Kayo after his handler, Officer Warren, instructed Kayo to apprehend. Kayo struck Defendant from the rear (back) as he ran.
5. Defendant was detained and placed in restraints. Within 5 feet of the arrest location, Sgt Fitzgerald found a baggie containing a crystal substance. The baggie was found 5 feet away in the direction Defendant had been running prior to being struck by Kayo.
6. The crystal substance weighted [sic] 5.6 grams. The crystal substance was tested by the Washington State Patrol (WSP) Crime Lab and identified as methamphetamine. The State and Defendant stipulated to the identification by WSP and admissibility of the results.
7. Sgt. Fitzgerald and Officer Lowery both testified that 5.6 grams of methamphetamine is inconsistent with an amount typical for personal use. 5.6 grams is consistent with an amount that would suggest or signify distribution.
8. At the time Defendant was apprehended he told officers "you didn't find that stuff on me."
9. Defendant chose to testify at trial. The defendant testified that he was unaware that officers were pursuing him or wanting him to stop. Defendant also, testified that he was aware the dog was pursuing him and decided he would stop, go to the ground, and wait for the dog to arrive.
10. At the time defendant was apprehended by the K-9 dog, Kayo, Defendant struggled with dog until the Defendant complied with Officer Warren's directions and Kayo was removed.
11. The defendant was in possession of the methamphetamine.
12. The acts described herein occurred in Lewis County, Washington State.
Clerk's Papers (CP) at 14-16. Skyberg appeals.
analysis
I. Sufficiency of the Evidence
Skyberg claim there was no evidence to support his conviction because there was no evidence that the methamphetamine tested at the Washington State Patrol (WSP) Crime Lab was the same evidence as that Warren and Fitzgerald found near where they apprehended Skyberg.
On review of the sufficiency of the evidence, we ask whether any rational trier of fact, viewing the evidence in the light most favorable to the State, could have found the elements of the crimes beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Because 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), we 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 (1992). We treat any of the unchallenged findings of fact as verities. State v. Gentry, 125 Wn.2d 570, 605, 888 P.2d 1105 (1995). Finally, we review any disputed findings to determine whether substantial evidence supports them. State v. Halstien, 122 Wn.2d 109, 129, 857 P.2d 270 (1993).
The State had to prove that Skyberg either actually or constructively possessed the drugs. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). While there was no evidence that Skyberg physically possessed the drugs when he was arrested, there was sufficient evidence to suggest that he either dropped or threw the bag of methamphetamine when Kayo first knocked him down. He testified that he ran immediately upon seeing the officers approaching the residence, that he scaled fences, and that he ran down an alley to avoid capture. When Lowery later confronted him with the baggie of methamphetamine, he did not claim he knew nothing about it; instead, he insisted that they did not find it on him and they could not prove it was his.
All of these circumstances support finding that Skyberg possessed the methamphetamine found on the ground five feet from his capture. Warren testified that he believed that Sergeant Fitzgerald picked up the baggie and gave it to Lowery. Fitzgerald testified that Warren actually picked up the baggie. Finally, Lowery testified that Warren gave him the baggie of methamphetamine. This was the same baggie that Lowery showed to Skyberg and Skyberg insisted they did not find on his person. Lowery testified that he recorded the methamphetamine into evidence and that the baggie containing the 5.6 grams of methamphetamine admitted at trial was that same baggie. This is more than ample evidence to support the trial court's finding of fact that Skyberg possessed the baggie of methamphetamine marked as exhibit one.
Additionally, the State argued that the large quantity and high value of the methamphetamine gave Skyberg reason to flee, unlike his claim of only possessing marijuana.
II. Jury Trial Waiver
In State v. Pierce, we observed:
In examining the record, we consider whether Pierce was informed of his constitutional right to a jury trial. Woo Won Choi, 55 Wn. App. at 903.[] We also examine the facts and circumstances generally, including Pierce's experience and capabilities. Woo Won Choi, 55 Wn. App. at 903. A written waiver, as CrR 6.1(a) requires, is not determinative but is strong evidence that the defendant validly waived the jury trial right. Woo Won Choi, 55 Wn. App. at 904. An attorney's representation that his client knowingly, intelligently, and voluntarily relinquished his jury trial rights is also relevant. Woo Won Choi, 55 Wn. App. at 904. Courts have not required an extended colloquy on the record. Stegall, 124 Wn.2d at 725;[] State v. Brand, 55 Wn. App. 780, 785, 780 P.2d 894 (1989). Instead, Washington requires only a personal expression of waiver from the defendant. Stegall, 124 Wn.2d at 725.
State v. Woo Won Choi, 55 Wn. App. 895, 903, 781 P.2d 505 (1989).
State v. Stegall, 124 Wn.2d 719, 725, 881 P.2d 979 (1994).
. . . .
The right to jury trial, like the right to remain silent and the right to confront witnesses, is treated differently and is easier to waive. See Brand, 55 Wn. App. at 786.
134 Wn. App. 763, 771-73, 142 P.3d 610 (2006) (footnote omitted).
The circumstances here demonstrate that Skyberg waived his right to a jury trial in writing after advice of counsel, that the court questioned him about that decision, asked if he understood what it meant, explained key differences, and was assured that Skyberg was not coerced into making his decision. Skyberg validly and knowingly waived his jury trial right. See Pierce, 134 Wn. App. at 772.
We find no error and affirm.
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. and QUINN-BRINTNALL, J., concur.