Opinion
No. 35742-9-II.
March 25, 2008.
Appeal from a judgment of the Superior Court for Clallam County, No. 06-1-00357-7, Kenneth D. Williams, J., entered December 15, 2006.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton, C.J., and Armstrong, J.
Edward A. Steward appeals his jury conviction for methamphetamine possession with intent to manufacture or deliver. He argues that (1) the detective's expert opinion testimony about methamphetamine use and distribution was an impermissible opinion about Steward's guilt; and (2) the instructions violated his right to a unanimous verdict because they did not require the jury to specify the alternative means on which they based their verdict. We affirm.
FACTS I. Methamphetamine Possession
Late at night on July 25, 2006, Officer James Vorhies was patrolling the west end of Sequim, when he noticed a dark-colored vehicle that he believed matched a vehicle description relating to a complaint about forged checks that police dispatch had sent earlier that evening. After catching up with the vehicle, Vorhies observed that it was not a Volvo, the type of car described in the forging complaint. He also realized, however, that the license plate was so "very old and mangled" that the last character on the plate was illegible. Vorhies stopped the vehicle for the license plate violation.
Vorhies contacted the driver, later identified as Edward A. Steward. When Vorhies requested his driver's license, Steward told Vorhies that (1) he did not have a license to show him, (2) he had an Illinois driver's license, and (3) he could not get a Washington license because he had a ticket that "he needed to take care of. . . ." Report of Proceedings (RP) (October 17, 2006) at 59. After police dispatch informed Vorhies that Steward's Illinois driver's license was suspended, Vorhies arrested him.
In a search of Steward's vehicle incident to his arrest, Vorhies found a military style zipper bag in the front seat. This bag contained: (1) two large bags of white substance weighing almost a quarter pound, which later tested positive as methamphetamine; (2) an electronic digital scale; (3) two large "zip lock" bags, each containing several smaller "zip lock" bags; (4) a large bag of a dietary supplement known as "MSM"; (5) a glass pipe for smoking methamphetamine; and (6) a cellular phone.
Vorhies read Steward his Miranda rights, which Steward waived. Steward initially told Vorhies that the methamphetamine was not his. Later, Steward said he was selling the methamphetamine so he could regain custody of his daughter. Steward admitted that he bought a quarter pound of methamphetamine "from a guy named Pepe" about every other day.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
II. Procedure
The State charged Steward with methamphetamine possession with intent to manufacture or deliver. Following a CrR 3.5 hearing, the trial court ruled that Steward's statements to Vorhies were voluntary and admissible.
A. Detective Grall's Testimony
Detective Michael Grall, a law enforcement officer for 20 years, specialized in narcotics investigations for the past seven years. At the time of trial, he was Washington State's representative in the Olympic Peninsula Narcotics Enforcement Team. The State qualified Grall as a narcotics expert at trial.
Based on his training and experience, Grall testified that (1) methamphetamine users, who are not also selling, usually buy quantities between a tenth of a gram and an eighth of an ounce; (2) "people that [sic] are purchasing in ounce quantities are people that [sic] either are just distributing the drug or distributing and using at the same time," RP (October 17, 2006) at 118; and (3) just under a quarter pound of methamphetamine is an amount "that would be at the seller level. I mean, it could be at the user/seller level as well, but it's definitely a[n] amount that a user's not — solely a user's not going to possess that much dope." RP (October 17, 2006) at 131.
An eighth of an ounce is three and a half grams. RP (October 17, 2006) at 122.
Grall further testified that methamphetamine dealers use MSM, a dietary supplement, as a "cutting agent" to increase their product and profit, because MSM resembles crystal methamphetamine and adding MSM to methamphetamine dilutes the potency of the drug. According to Grall, a methamphetamine user who was not also dealing would not possess MSM in pure form because "[t]he user wants the strongest drug that they [sic] can get. They [sic] wouldn't dilute it out, because if [its] gotten down to the user [its] probably already been diluted." RP (October 17, 2006) at 127-28. Grall also testified that electronic digital scales and numerous small "zip lock" bags were consistent with selling methamphetamine. According to Grall, the price of methamphetamine in the Sequim area at the time of trial was $100 per gram.
Grall also testified that a person who has (1) almost a quarter pound of methamphetamine, (2) an electronic digital scale, (3) numerous small zip lock bags, (4) the dietary supplement MSM, (5) a methamphetamine glass smoking pipe, and (6) a cellular phone is probably both using and selling methamphetamine. Steward did not object to Detective Grall's expert opinion testimony.
B. Steward's Testimony
Steward testified on his own behalf that: (1) he had previously sold methamphetamine, before his arrest in this case, in an attempt to obtain custody of his daughter; (2) he had bought methamphetamine on July 25, 2006, for his personal use, but he did not intend to sell it; (3) he had bought the large amount of methamphetamine because it was cheaper than buying it in smaller amounts; and (4) he owned the methamphetamine, electronic digital scale, "zip lock" bags, MSM, glass smoking pipe, and cellular phone that Officer Vorhies had found in Steward's vehicle.
C. Jury Instructions
Among other jury instructions, the trial court gave the following "to convict" instruction:
To convict the Defendant of the crime of POSSESSION WITH INTENT TO MANUFACTURE OR DELIVER A CONTROLLED SUBSTANCE, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 25th day of July, 2006, the Defendant possessed a controlled substance;
(2) That the Defendant possessed the substance with the intent to manufacture or deliver a controlled substance; and
(3) That the acts occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
Supplemental Clerk's Papers (Supp. CP) at 37. Steward neither objected to any of the court's instructions nor requested an alternative-means unanimity instruction.
The jury convicted Steward as charged. He appeals.
ANALYSIS I. Expert Opinion Testimony
Steward argues for the first time on appeal that Detective Grall's expert opinion testimony about methamphetamine use and distribution was an impermissible opinion regarding Steward's guilt, which violated Steward's right to a jury trial. We disagree.
A. No Manifest Error
Steward did not object to Detective Grall's expert opinion testimony at trial. Generally, we will not consider issues raised for the first time on appeal, unless it involves a manifest error affecting a constitutional right. State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007); RAP 2.5(a)(3). To fall within this exception, "[t]he defendant must identify a constitutional error and show how the alleged error actually affected the defendant's rights at trial. It is this showing of actual prejudice that makes the error 'manifest,' allowing appellate review." Kirkman, 159 Wn.2d at 926-27 (quoting State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995)).
A witness's "[i]mpermissible opinion testimony regarding the defendant's guilt may be reversible error because such evidence violates the defendant's constitutional right to a jury trial, which includes the independent determination of the facts by the jury." Kirkman, 159 Wn.2d at 927. But Washington courts have "expressly declined to take an expansive view of claims that testimony constitutes an opinion on guilt." Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993), review denied, 123 Wn.2d 1011 (1994); see also State v. Cruz, 77 Wn. App. 811, 815, 894 P.2d 573 (1995). Thus, in the absence of an objection at trial, we do not automatically review, let alone reverse, a trial court's admission of witness opinion testimony on an ultimate fact, unless the witness gave "an explicit or almost explicit witness statement" on the veracity or guilt of the defendant. Kirkman, 159 Wn.2d at 936; State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987).
The record does not support Steward's assertion that Grall's expert testimony was tantamount to direct testimony that Steward was both using and dealing in methamphetamine. On the contrary, based on his narcotics training and experience, Grall testified in generalities, not about Steward specifically: Grall noted that methamphetamine users in general are likely also dealing when such users possess (1) almost a quarter pound of methamphetamine, (2) an electronic digital scale, (3) numerous small bags, (4) the dietary supplement MSM, (5) a methamphetamine glass smoking pipe, and (6) a cellular phone. That this expert testimony about indicia of dealing included items that Steward possessed does not transform this testimony into an impermissible opinion of Steward's guilt.
On the contrary, Washington courts have long held that opinion testimony is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact; thus, so long as it is not a direct comment on the defendant's guilt, an expert's testifying about the evidence in the case is not improper opinion testimony. See, e.g., Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658, review denied, 123 Wn.2d 1011 (1994) (an expert's opinion that "is based on inferences from the evidence is not improper opinion testimony."); State v. Cruz, 77 Wn. App. 811, 815, 894 P.2d 573 (COA I, 1995) (detective's testimony that embraced the ultimate issue of whether the defendant's actions were a heroin transaction was not an impermissible opinion because it did not directly implicate the defendant.)
See, in contrast, State v. Barr, 123 Wn. App. 373, 383, 98 P.3d 518, 523 (2004), in which Division III of our court held that the officer's testimony about his use of the "Reid Investigative Technique" and his express opinion that Barr was deceitful during the interview invaded the province of the jury by impermissibly commenting on Mr. Barr's guilt. Because this admission of testimony was a manifest constitutional error, the appellate court reviewed the issue even though Barr had failed to object below.
Because Grall did not explicitly comment on Steward's guilt or innocence, we hold that there is no manifest error allowing us to review this argument for the first time on appeal.
See, in contrast, n. 3, supra.
II. Unanimous Verdict
Steward next argues that the jury instructions violated his constitutional right to a unanimous jury verdict because they did not require the jury to specify the alleged alternative means on which it based its verdict. The State counters that sufficient evidence supports Steward's intent both to manufacture and to deliver the methamphetamine he possessed; and, therefore, the lack of a unanimity instruction on the specific means is not reversible error. We agree with the State.
A. Standard of Review
Criminal defendants in Washington have a right to a unanimous jury verdict. Wash. Const. art. I, § 21. "In certain situations, the right to a unanimous jury trial also includes the right to express jury unanimity on the means by which the defendant is found to have committed the crime." State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994). The threshold test governing whether unanimity is required on an underlying means of committing a crime is whether sufficient evidence exists to support each of the alternative means presented to the jury. Id. at 707. If the evidence is sufficient to support each of the alternative means submitted to the jury, a particularized expression of unanimity as to the means by which the defendant committed the crime is unnecessary to affirm a conviction because we infer that the jury rested its decision on a unanimous finding as to the means. Id. at 707-8.
When reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993); State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We draw all reasonable inferences in favor of the verdict and interpret them "most strongly against the defendant." State v. Zunker, 112 Wn. App. 130, 135, 48 P.3d 344 (2002) (citing State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105 (1995)), review denied, 148 Wn.2d 1012 (2003). "Credibility determinations are for the trier of fact and cannot be reviewed on appeal." State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
B. Sufficient Evidence
To convict Steward, the State had to prove that he possessed methamphetamine with intent to manufacture or deliver. See RCW 69.50.401(1); State v. McPherson, 111 Wn. App. 747, 759, 46 P.3d 284 (2002). Generally, bare possession of a controlled substance is not enough to support a conviction of intent to deliver or manufacture; at least one other factor supporting an inference of intent must exist. McPherson, 111 Wn. App. at 759 (citing State v. Hagler, 74 Wn. App. 232, 235-36, 872 P.2d 85 (1994)). Washington courts routinely affirm controlled substance with intent to deliver or manufacture convictions where, in addition to the controlled substance, there were one or more of the following factors: large amounts of cash, scales, cell phones, address lists, methamphetamine ingredients, mixing vessels, empty drug packaging materials (including small plastic "sandwich baggies"), pagers, or crystalline cutting agents. McPherson, 111 Wn. App. at 759-61; Zunker, 112 Wn. App. at 135-40; State v. Campos, 100 Wn. App. 218, 224, 998 P.2d 893, review denied, 142 Wn.2d 1006 (2000); State v. Miller, 91 Wn. App. 181, 186, 955 P.2d 810, amended, 961 P.2d 973, review denied, 136 Wn.2d 1016 (1998); State v. Taylor, 74 Wn. App. 111, 123-24, 872 P.2d 53, review denied, 124 Wn.2d 1029 (1994); State v. Sanders, 66 Wn. App. 380, 382, 832 P.2d 1326 (1992). The State proved such additional factors here.
The State proved and Steward admitted on the witness stand that he possessed (1) almost a quarter pound of methamphetamine, (2) an electronic digital scale, (3) numerous small bags, (4) the dietary supplement MSM, (5) a methamphetamine glass smoking pipe, and (6) a cellular phone. From this evidence, the jury could reasonably infer that Steward intended (1) to use the large quantity of methamphetamine, the MSM cutting agent, the digital scale, and the baggies to manufacture methamphetamine; and (2) to use the large quantity of methamphetamine, digital scale, numerous small bags, and cellular phone to deliver methamphetamine. As the trier of fact and judge of witness credibility, the jury was also free to doubt Steward's self-serving explanation for possessing such a large quantity of methamphetamine. Thus, even assuming, without deciding, that methamphetamine possession with intent to manufacture or to deliver are alternative means of committing the charged crime, we hold that sufficient evidence supports either alternative. Because sufficient evidence supports Steward's alleged alternative means, we hold that the jury's verdict did not violate his right to unanimity.
Although mere possession of a controlled substance is not enough to show intent to manufacture or to deliver, the State need only prove "at least one other factor supporting an inference of intent. . . ." McPherson, 111 Wn. App. at 759 (emphasis added). Such is the case here.
RCW 69.50.101(p) provides that "manufacture" means:
[T]he production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container.
Steward's possession of the MSM cutting agent together with the large quantity of methamphetamine support a reasonable inference that he intended to "prepar[e]," to "compound," and to "process" the methamphetamine, thus intending to "manufacture" within the definition of RCW 69.50.101(p). Moreover, his possession of the following additional evidence further supports his intent to "manufacture" methamphetamine within RCW 69.50.101(p)'s definition: In addition to possessing the MSM cutting agent and the large quantity of methamphetamine, he also possessed a digital scale and plastic baggies, which support a reasonable inference that he intended to "prepar[e]," to "packag[e] or repackag[e]" the methamphetamine.
Accordingly, we do not find persuasive Steward's additional arguments, for the first time on appeal, that: (1) the State had to prove he actually manufactured methamphetamine, and (2) only the dictionary definition of "manufacture" should apply because the trial court did not instruct the jury on the statutory definition. These arguments fail for several reasons: First, the State had to prove only that Steward intended to manufacture methamphetamine; it did not have to prove actual manufacture. See Supp. CP at 37 ("to convict" jury instruction); RCW 69.50.401(1); McPherson, 111 Wn. App. at 759. Second, Steward did not request any type of instruction defining "manufacture" at trial; therefore, he cannot raise it on appeal. See State v. Scott, 110 Wn.2d 682, 689-91, 757 P.2d 492 (1988) (appellate courts do not review issues raised for the first time on appeal, unless the defendant shows manifest constitutional error and nothing in the constitution requires courts to give definitional jury instructions). Third, the two definitions are not inconsistent; both include preparation for sale, packaging a large quantity into smaller quantities, and processing a substance.
Thus, we do not address the State's argument that methamphetamine possession with intent to manufacture or deliver describes one crime, not alternative means to commit the crime.
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, C.J. and ARMSTRONG, J., concur.