Opinion
Nos. 27882-4-III, 27885-9-III (Consolidated).
Filed: August 11, 2011. UNPUBLISHED OPINION.
Appeals from a judgment of the Superior Court for Stevens County, No. 08-1-00005-7, Allen Nielson, J., entered December 30, 2008.
Affirmed by unpublished opinion per Brown, J., concurred in by Korsmo, A.C.J., and Siddoway, J.
Today, we consider consolidated appeals. Daniel C. Turley, Jr., was convicted in one trial of second degree possession of stolen property and possessing more than 40 grams of marijuana with a multiple current offense aggravating factor, receiving a 60-month exceptional sentence (Court of Appeals No. 27882-4-III). In a second, separate trial, Mr. Turley was convicted of second degree burglary and second degree theft, receiving another 60-month sentence within the standard range, but to run consecutively to the first sentence for an exceptional sentence (Court of Appeals No. 27885-9-III). His convictions stem from stolen property and marijuana located at his residence while officers were present during a lawful eviction. Mr. Turley initially contended (1) sufficient evidence does not support his possession of marijuana conviction, (2) the jury was improperly instructed regarding unanimity, and (3) the sentencing court erred by imposing exceptional sentences. After we stayed this case because of the unanimity issue, we granted Mr. Turley's motion to formally withdraw his unanimity challenge and now proceed. Therefore, our facts and analysis omit any discussion of unanimity. In his statement of additional grounds for review, Mr. Turley, pro se, contends the trial court erred in denying his evidence suppression motion. We affirm.
FACTS
On January 3, 2008, Stevens County Sheriff deputies arrived at Mr. Turley and Christina Vaughn's residence in response to an unlawful detainer order and writ of restitution. Several individuals assisted Mr. Turley and Ms. Vaughn on the day of the move. Officers suspected Mr. Turley of being involved in stolen property. While overseeing the move, officers noticed several items reported stolen.
During the move, Mr. Turley attached a horse trailer to his truck and moved it to a nearby parking lot. Officers later arrested Mr. Turley for possessing stolen property and seized the property. They then obtained a search warrant to search the property, including the horse trailer. Inside the trailer, they located 457.1 grams of marijuana.
The trailer was attached to a truck registered in Mr. Turley's name. The title to the trailer could not be located.
The State charged Mr. Turley with first degree possession of stolen property with the aggravating factor that the crime involved multiple victims, multiple incidents, monetary loss substantially greater than the typical offense, and/or a high degree of sophistication or planning over a long period of time; and possession of more than 40 grams of marijuana with the aggravating factor that there were multiple current offenses, and Mr. Turley's offender score resulted in some of the current offenses going unpunished. Separately, the State charged Mr. Turley with second degree burglary and second degree theft, both with the aggravating circumstance that there were multiple current offenses and Mr. Turley's offender score resulted in some of the current offenses going unpunished.
Mr. Turley's CrR 3.6 motion to suppress the evidence seized was denied.
The jury found Mr. Turley guilty of possession of over 40 grams of marijuana and the lesser-included offense of second degree possession of stolen property. The jury found the possession of stolen property offense was, "a major economic offense or series of offenses." Clerk's Papers at 312. Following a separate trial, the jury found Mr. Turley guilty of second degree burglary and second degree theft.
Mr. Turley's offender score was 21. The court sentenced Mr. Turley to 60 months on the possession of stolen property conviction (an exceptional sentence based on the jury's finding that the crime was a major economic offense) and 24 months on the possession of marijuana conviction to run concurrently. Regarding the burglary and theft convictions, the standard range was 51-68 months for the second degree burglary conviction and 22-29 months for the second degree theft conviction. The court imposed 60 months on the second degree burglary within the standard range and made the sentence exceptional by running that sentence consecutive to the possession of stolen property sentence for a total sentence of 120 months. The sentencing judge related the exceptional sentence was imposed because Mr. Turley's high offender score resulted in the second degree theft conviction going unpunished. Mr. Turley appealed the convictions in each case and this court consolidated his appeals.
ANALYSIS A. Evidence Sufficiency
The issue is whether sufficient constructive possession evidence supports Mr. Turley's marijuana possession conviction.
An evidence sufficiency challenge requires the reviewing court to view the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the elements of the charged crime beyond a reasonable doubt. State v. Brown, 162 Wn.2d 422, 428, 173 P.3d 245 (2007). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). 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. Galisia, 63 Wn. App. 833, 838, 822 P.2d 303 (1992).
In Washington, it is a felony for a person to possess over 40 grams of marijuana. RCW 69.50.4013. To prove possession of a controlled substance, "the State must establish two elements: the nature of the substance and the fact of possession by the defendant." State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). Possession of an illegal substance may be either actual or constructive. Id. "Constructive possession is proved when the person charged with possession has dominion and control over either the drugs or the premises upon which the drugs were found." State v. Mathews, 4 Wn. App. 653, 656, 484 P.2d 942 (1971). Deciding if constructive possession exists requires us to examine the totality of the situation. State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977). Circumstantial evidence and direct evidence are equally reliable for purposes of drawing inferences. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact's resolution of conflicting testimony and evaluation of the persuasiveness of the evidence. State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997).
Mr. Turley argues he did not constructively possess the marijuana in the horse trailer. But officers saw Mr. Turley attach the horse trailer to his truck and move it to a nearby parking lot. The truck that pulled the trailer was registered to Mr. Turley, but title for the trailer could not be located. Mr. Turley's actions on the day of the move, in addition to the trailer being attached to his truck, establish dominion and control over the trailer. This dominion and control establishes constructive possession. Viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the elements of the charged crime beyond a reasonable doubt. Accordingly, sufficient evidence exists to support Mr. Turley's possession of marijuana conviction.
B. Exceptional Sentence
The issue is whether, considering excessiveness, the sentencing court erred in imposing an exceptional sentence on the second degree burglary conviction by running that sentence consecutive to the possession of stolen property sentence.
Generally, we review a trial court's imposition of an exceptional sentence in three steps. State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005); RCW 9.94A.585(4). First, we analyze, under a clearly erroneous standard, whether the reasons given for the exceptional sentence are supported by the record. Id. Second, our review is de novo to determine whether those reasons are substantial and compelling reasons that justify a departure from the standard range. Id. Third, we determine, under an abuse of discretion standard, whether the sentence is clearly too excessive or too lenient. Id. Mr. Turley challenges the sentence on his burglary conviction as being clearly too excessive.
In determining whether an exceptional sentence is clearly excessive, we review, "whether the trial court abused its discretion by relying on an impermissible reason or unsupported facts." State v. Halsey, 140 Wn. App. 313, 324, 165 P.3d 409 (2007). "'Stated otherwise, the "clearly excessive" prong of appellate review under the sentencing reform act gives courts near plenary discretion to affirm the length of an exceptional sentence, just as the trial court has all but unbridled discretion in setting the length of the sentence.'" Id. at 325 (quoting State v. Creekmore, 55 Wn. App. 852, 864, 783 P.2d 1068 (1989)).
A sentencing court may impose a sentence outside the standard range only if "there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.535. In RCW 9.94A.535, the legislature created a list of aggravating circumstances that constitute substantial and compelling reasons for an upward departure from the sentencing guidelines. One of those circumstances is when a defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished. RCW 9.94A.535(2)(c); State v. Newlum, 142 Wn. App. 730, 732, 176 P.3d 529 (2008).
The sentencing court found Mr. Turley had a high offender score, multiple current offenses, and an offender score resulting in one of the current offenses going unpunished. These findings support the trial court's conclusion that substantial and compelling reasons exist to impose an exceptional sentence pursuant to RCW 9.94A.535. The trial court did not err in concluding that an exceptional sentence was warranted and ordering Mr. Turley to serve 120 months of total confinement.
C. Statement of Additional Grounds
In his statement of additional grounds for review, Mr. Turley challenges the trial court's denial of his CrR 3.6 motion to suppress evidence seized from his property. Specifically, he challenges the search, contending it was unlawful because it was pretextual and untimely, given the time notice on his eviction order. He argues police should not have seized his property prior to obtaining a search warrant; rather, officers should have obtained a telephonic search warrant while they were at his residence.
"No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Const. art. I, § 7. "This provision, which is more protective of individual liberties than the Fourth Amendment, requires a warrant or recognized exception to the warrant requirement." State v. Ettenhofer, 119 Wn. App. 300, 307, 79 P.3d 478 (2003). Officers may not stop an individual as a pretext to search for evidence of an unrelated crime. State v. Ladson, 138 Wn.2d 343, 353, 979 P.2d 833 (1999).
First, nothing in the record suggests officers stopped Mr. Turley as in Ladson; instead, the record shows officers were at Mr. Turley's residence in response to an unlawful detainer action. While Mr. Turley lives in a small county and he was known to officers, he, nonetheless, was being evicted and officers were rightly on the premises. Similarly, a New York appellate court has held that when officers are lawfully on premises to effect an eviction, "contraband discovered in plain view therein was lawfully seized." People v. Davis, 169 A.D.2d 16, 19, 570 N.Y.S.2d 661 (N.Y.A.D. 1991). Many stolen items were discovered in plain view, which later led to the officers obtaining a search warrant, which led to additional contraband being discovered.
Second, Mr. Turley claims his privacy rights were violated by the early arrival of the officers. The evidence in the record shows officers notified Mr. Turley that they would be arriving at 10:00 a.m. on the day in question. Officers testified they arrived at approximately 9:40 a.m. It is unclear whether they actually entered the property at that time or waited a few minutes before approaching. Nevertheless, Mr. Turley does not demonstrate how he was prejudiced by the officers arriving at the property 20 minutes early. A defendant's expectation of privacy may not be reasonable when they are notified officers are going to be present to effect an eviction. See State v. Christian, 95 Wn.2d 655, 659, 628 P.2d 806 (1981) (regarding tenant who did not vacate on the date agreed, court held, "Whatever subjective expectation of privacy [tenant] might have claimed, under these circumstances it was not objectively reasonable").
Lastly, Mr. Turley argues the officers' seizure of his property and vehicles was intrusive when a telephonic warrant could have been issued right away and the items searched immediately without a seizure. Again, Mr. Turley fails to establish prejudice regarding when the officers searched the property. The evidence seized would have been the same. Given all, Mr. Turley fails to establish reversible error.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KORSMO, A.C.J. and SIDDOWAY, J., concur.