Opinion
No. 21768-0-III.
Filed: February 17, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-1-01868-9. Judgment or order under review. Date filed: 01/21/2003. Judge signing: Hon. Richard J Schroeder.
Counsel for Appellant(s), Cece Lana Glenn, Attorney at Law, 1309 W Dean Ave Ste 100, Spokane, WA 99201-2018.
Sean Levon Watson (Appearing Pro Se), #838157, P.O. Box 2139, Airway Heights, WA 99001-2139.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Sean L. Watson appeals his conviction for involving a minor in a drug transaction. He contends the evidence was insufficient. He also contends the court erred in imposing an exceptional sentence for vehicular assault on grounds the two young pedestrians he ran over were particularly vulnerable. Mr. Watson also raises several other issues in his statement of additional grounds for review. We affirm.
Mr. Watson was the driver of a car that ran over 11-year-old Meagan Ballou and 15-year-old Brittany Banka near Rogers High School in Spokane on July 14, 2002. A test of Mr. Watson's blood revealed the presence of phencyclidine, a controlled substance also known as PCP, angel dust, or sherm. The drug, which is usually in liquid form, is ingested by dipping a tobacco or marijuana cigarette in it and then smoking it.
Both girls suffered life-threatening injuries and underwent several weeks of rehabilitation.
Mr. Watson was charged with two counts of vehicular assault, second degree driving with a suspended license, and involving a minor in a drug transaction.
At trial, the State presented evidence that Mr. Watson was living at his mother's house with his fiancée, Heather Chebahtah. Ms. Chebahtah's friend, 17-year-old Amanda Reit, also was staying at the house temporarily. Ms. Reit testified that on July 14, she and Ms. Chebahtah developed a plan to get high that day on PCP with her boyfriend, Aviance Webb. Ms. Reit testified she and Ms. Chebahtah picked up Mr. Webb and went to a park. Mr. Watson arrived with a new pack of cigarettes a few minutes later. She and Ms. Chebahtah testified no one else in the group had cigarettes. Ms. Reit testified a cigarette was dipped in PCP, and all four smoked it. The group then got into the car, with Mr. Watson driving, and dropped off Mr. Webb. Ms. Reit testified they were headed back to the house when the accident occurred.
Mr. Webb, Ms. Chebahtah, and Mr. Watson all denied there was a plan to get high on PCP that day. Mr. Webb (who was granted immunity for his involvement in the events of July 14) testified his plan was to meet Mr. Watson and be with Ms. Reit. He said he brought the PCP with him because it helped him to `conversate.' Webb Deposition at 17. After Mr. Watson arrived at the park, Mr. Webb asked for a cigarette, which he dipped in the PCP, lit, and passed around the group.
Ms. Chebahtah testified she called Mr. Watson and asked him to come to the park and bring a pack of cigarettes because she had run out. She testified she did not know anyone had PCP until she was passed a dipped cigarette, which she hit and passed to Mr. Watson.
Mr. Watson confirmed that Ms. Chebahtah asked him to bring him a pack of cigarettes. He acknowledged that Ms. Chebahtah passed him a lit cigarette, but he denied knowing it had been dipped in PCP. He testified he did not remember the accident or even leaving the park.
On rebuttal, an officer testified about Mr. Webb's statements to him a month after the accident. The officer said Mr. Webb told him the group's plan was to meet at the park and `smoke some sherm,' and Mr. Watson would be supplying the cigarettes. Report of Proceedings (RP) at 420.
A jury found Mr. Watson guilty on all counts. The court ordered an exceptional sentence of 144 months, finding the victims were particularly vulnerable and the maximum presumptive sentence of 75 months was clearly too lenient.
Mr. Watson first contends the evidence was insufficient to support the jury's finding that he involved Ms. Reit in a drug transaction.
When a defendant challenges the sufficiency of the evidence, we must view the evidence in a light most favorable to the prosecution and must determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). We must draw all reasonable inferences in the State's favor and interpret them most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). We may not resolve conflicts in the testimony or evaluate the credibility of witnesses. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989).
RCW 69.50.401(f) makes it unlawful `to compensate, threaten, solicit, or in any other manner involve a person under the age of eighteen years in a transaction unlawfully to manufacture, sell, or deliver a controlled substance.'
The . . . statute does not require that the minor actually participate in the drug transaction. In fact, the minor's culpability and actions — which are proscribed under other statutes — are inapposite for the purposes of the involving a minor in a drug transaction statute. Instead, the focus is on the defendant's affirmative acts. A defendant violates RCW 69.50.401(f) if he or she compensates, threatens, solicits or in any other manner involves — i.e., surrounds, encloses, or draws in — a minor in an unlawful drug transaction, or obliges a minor to become associated with the drug transaction, e.g., by inviting or bringing a minor to a drug transaction, or allowing the minor to remain during a drug transaction.
State v. Hollis, 93 Wn. App. 804, 812, 970 P.2d 813, review denied, 137 Wn.2d 1038 (1999). In Hollis, the court held a defendant violated the statute merely by permitting a minor to be present during a drug transaction. Id.
Mr. Watson argues there was insufficient evidence that his affirmative acts involved Ms. Reit in the events.
Based on RCW 69.50.101(p), the jury here was instructed that manufacturing means `the production, preparation, propagation, compounding[,] conversion[,] or processing directly or indirectly as well as the packaging or repackaging of any controlled substance.' Clerk's Papers (CP) at 88. Under this definition, a jury could conclude that the act of dipping the cigarette into the liquid PCP was preparation for ingesting it and thus that a manufacturing occurred at the park. The precise question, then, is whether Mr. Watson involved Ms. Reit in the manufacture of the PCP-dipped cigarette.
As Mr. Watson points out, there is no evidence he directly participated in dipping the cigarette. But the evidence is undisputed that none of the other three persons had any cigarettes before Mr. Watson arrived at the park and that one of the cigarettes he provided was dipped in PCP. In addition, Ms. Reit testified there was a plan to get high on PCP that day and Mr. Watson would supply the cigarettes. As Ms. Chebahtah testified, the group had no way to ingest the PCP without cigarettes. From this evidence, the jury reasonably could have inferred that Mr. Watson was a participant in the plan to ingest PCP and thus that he involved Ms. Reit by providing the essential cigarettes while she was present.
Mr. Watson relies on conflicting testimony that he was unaware of a plan to use PCP or even that a cigarette had been dipped in PCP. However, the jury obviously chose to disbelieve this testimony, and its decision is not subject to review. The evidence was sufficient.
Mr. Watson next contends the record does not support the sentencing court's finding that the accident victims were particularly vulnerable. A pedestrian victim of a vehicular assault may be considered particularly vulnerable (justifying an exceptional sentence under RCW 9.94A.535(2)(b)) if the defendant knew or should have known of the risk to pedestrians. State v. Cardenas, 129 Wn.2d 1, 10-12, 914 P.2d 57 (1996).
Here, the sentencing court's findings stated:
2. The defendant knew or should have known that The victims of the current offense were particularly vulnerable since the young girls were playing in an area that a reasonable person would consider safe from vehicle traffic.
CP at 175.
It is unclear why the first portion of the finding was stricken. An express finding is not necessary, however, if the evidence reasonably supports an assumption that the defendant knew or should have known of the risk to pedestrians. Cardenas, 129 Wn.2d at 12.
The evidence here amply supports such an assumption. Mr. Watson nevertheless argues the children intentionally were attempting to distract drivers, apparently contending the distraction made the children less vulnerable or his knowledge of the risk to them less reasonable. The record does indicate the children had made signs and were waving at passing cars. But this evidence makes it more likely that Mr. Watson knew or should have known of the children's presence, and therefore of their vulnerability. Mr. Watson also argues the children were in a place a reasonable person would not consider safe from vehicles. The record does not support this contention; the children were in a grassy area well off the curbed roadway.
The evidence supports the court's finding that the victims of the vehicular assault were particularly vulnerable.
Even if the court erred in relying on the vulnerability factor, the exceptional sentence still could be upheld. Remand is not required when it is apparent that the sentencing court would impose the same sentence even without considering an invalid factor. State v. Post, 118 Wn.2d 596, 616, 826 P.2d 172, 837 P.2d 599 (1992). The sentencing court here expressly concluded that either of its two reasons for imposing the sentence would support the sentence. Mr. Watson has not challenged the court's finding that the standard range was clearly too lenient under RCW 9.94A.535(2)(i). Remand thus is not required.
Pro se, Mr. Watson contends the court erred in denying his requested instruction on involuntary intoxication. However, he did not propose such an instruction. A court's failure to give a jury instruction need not be reviewed if no such instruction was requested. State v. Kroll, 87 Wn.2d 829, 843, 558 P.2d 173 (1976); State v. Donald, 68 Wn. App. 543, 547, 844 P.2d 447, review denied, 121 Wn.2d 1024 (1993). We therefore do not address Mr. Watson's contention.
Defense counsel did propose instructions on the question of independent superseding cause. See State v. Souther, 100 Wn. App. 701, 998 P.2d 350, review denied, 142 Wn.2d 1006 (2000); 11 Washington Pattern Jury Instructions: Criminal 25.03, at 278 (2d ed. 1994). That question has no readily apparent relationship to involuntary intoxication. See generally State v. Hutsell, 120 Wn.2d 913, 920-21, 845 P.2d 1325 (1993) (as corollary to RCW 9A.16.090, forced or fraudulently induced intoxication is allowable defense).
Mr. Watson also contends pro se that the court improperly admitted impeachment testimony. Although he does not cite to the record, his argument refers to impeachment of Ms. Reit and Mr. Webb. Ms. Reit testified for the State, and defense counsel cross-examined her repeatedly about her prior inconsistent statements. It is unclear why Mr. Watson now objects to the cross examination; even if the questioning were improper, he suffered no prejudice.
The State did present extrinsic evidence of prior inconsistent statements by Mr. Webb, who testified by videotape deposition and was not available at trial. As Mr. Watson points out, extrinsic evidence of prior inconsistent statements by a witness are not admissible `unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.' ER 613(b).
If the rebuttal evidence were admitted solely to impeach Mr. Webb's deposition testimony, its admission would have been improper under ER 613(b). However, Mr. Webb's prior statements were admissible as relevant, substantive evidence, rebutting Mr. Watson's testimony that there was no plan to use PCP. The court properly admitted the officer's rebuttal testimony about Mr. Webb's prior statements.
The statements were admissible as exceptions to the hearsay rule, because Mr. Webb was unavailable and his admissions to the officer subjected him to criminal liability. See ER 804(b)(3). Although Mr. Watson contends the State failed to make a good-faith effort to make Mr. Webb available for trial, the rule requires no such effort. The hearsay exception applies unless the witness's absence `is due to the procurement or wrongdoing of the [State] for the purpose of preventing the witness from attending or testifying.' ER 804(a)(6). There is no evidence the State wrongfully prevented Mr. Webb from attending the trial.
Mr. Watson also contends pro se that the court erred in calculating his offender score. Mr. Watson's prior criminal history includes convictions for delivery of a controlled substance and use of a building for unlawful drug purposes, both committed on December 21, 2001. The sentencing court rejected Mr. Watson's contention that the crimes encompassed the same criminal conduct.
Prior offenses that encompass the `same criminal conduct' are counted as one offense in computing a defendant's offender score. RCW 9.94A.525(5)(a)(i). Offenses are the `same criminal conduct' if they `require the same criminal intent, are committed at the same time and place, and involve the same victim.' RCW 9.94A.589(1)(a).
The victim of a drug sale is the public at large. State v. Garza-Villarreal, 123 Wn.2d 42, 47, 864 P.2d 1378 (1993). However, owners and occupiers of neighboring properties — not the public at large — are the victims of use of a building for drug purposes. Because the two crimes do not involve the same victims, they cannot be treated as the same criminal conduct. The court did not err in rejecting Mr. Watson's argument.
Mr. Watson also contends pro se that the prosecutor engaged in misconduct during closing argument by misstating the evidence and expressing an opinion as to his guilt. He refers to several statements by the prosecutor during closing argument. We address each individually.
Referring to Ms. Reit's testimony that a PCP-dipped cigarette was smoked in the car, the prosecutor stated:
You heard Amanda Reit. Heather Chebahtah was in the front passenger seat. The defendant was driving that vehicle that, eventually, crashed into the garage. And, again, the transfer took place. The transfer of that dipped cigarette, that sherm containing the controlled substance, was, again, handed from Heather Chebahtah to Sean Watson. And who else is in the car? Amanda Reit.
RP at 443.
Mr. Watson incorrectly contends there was no evidence a PCP-dipped cigarette was passed around while the vehicle was moving. Ms. Reit testified:
Q Why do you think that two cigarettes dipped in sherm were smoked that day?
A Because I remember smoking one at the park and, then, I remember another one being lit up.
Q Could you tell the jury where this second dipped cigarette was being smoked?
A In the car.
Q And was the car parked, or was it in motion?
A In motion.
RP at 163.
Addressing the elements of the vehicular assault charge, the prosecutor stated:
Remember, in this particular instruction as well, he doesn't — the State doesn't have to prove to you that he knew he was smoking PCP. There's nothing in that instruction. But the circumstances in which he found himself on July 14th, 2002, show he knew. This wasn't an accident. This was a crime. And he needs to take responsibility for the crime.
RP at 446.
Mr. Watson incorrectly contends this statement was an improper opinion on his guilt. The statement is simply the prosecutor's explanation to the jury that the `to convict' instruction on vehicular assault contained no mens rea element. The argument was proper.
Addressing the severity of the victims' injuries, the prosecutor stated:
And what do you know about the injuries of Brittany Banka? Again, a healthy young woman going into high school but her summer was, then, tragically disrupted. Tragically disrupted because Mr. Watson wanted to get high on PCP and because Mr. Watson, then, wanted to get behind a wheel and drive that vehicle while under the influence of PCP.
RP at 447.
Mr. Watson incorrectly contends this statement was not supported by the evidence and was an expression of the prosecutor's belief in his guilt. The statement is not an expression of the prosecutor's personal belief. `The prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury.' State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). The prosecutor's comments were based on a reasonable inference from Ms. Reit's testimony that Mr. Watson actively participated in the drug use.
Addressing Mr. Webb's video deposition, the prosecutor stated: Remember that that particular video deposition took place sometime after this particular incident. And he is not here because the State knew he was going to flee the jurisdiction. The State would have liked to have Aviance Webb come take the stand before you so you could judge him for yourself, but that was impossible. In this particular case, sometimes the State is forced to do things that it has to do. And, in this particular case, the State granted Aviance Webb immunity.
RP at 469. The court then sustained a defense objection, noting there was no evidence of why the State granted Mr. Webb immunity.
Mr. Watson correctly points out that there was no evidence of why Mr. Webb's testimony was presented by videotape deposition. However, the court sustained an objection to the argument, clearly indicating to the jurors that they should not consider the statement. Moreover, the court's written instructions told jurors to disregard any remarks by the attorneys that were not supported by the evidence. The jury is presumed to have followed this instruction. See State v. Lough, 125 Wn.2d 847, 864, 889 P.2d 487 (1995). Mr. Watson thus was not prejudiced by the prosecutor's comment.
Again referring to evidence of transfers of PCP-dipped cigarettes, the prosecutor stated:
In this particular case, you were having multiple transfers. Again, transfers that were done in front of Amanda Reit. Once that cigarette was dipped in PCP, it was lit; and, then, it was passed. It was transferred from one person to the next person, and it did a rotation, at a minimum, once. And you know that the defendant was involved in that. . . . And the State submits that the evidence shows a transfer in the park, a transfer at 7-Eleven [where Mr. Webb was dropped off], and, then, a transfer while the car was in motion.
RP at 472.
Mr. Watson again contends there was no evidence a PCP-dipped cigarette was passed in the car. Ms. Reit's testimony, quoted above, refutes this contention.
Again addressing the elements of the vehicular assault charge, the prosecutor stated:
The issue is: Was he under the influence when he was driving that car; and, while he was under the influence and driving that car, did he, then, cause serious bodily injury to Meagan Ballou and Brittany Banka? And the answer is `Yes.'. . . .
And, again, the issue isn't whether or not he knew it was PCP. That's a distraction. You knew — you know from the facts that once he started smoking that PCP laced cigarette in the park, the signs of intoxication were present. According to Aviance Webb, there was a noticeable sweating on the defendant. You heard the [toxicology expert] talk about that. You heard [the officer] talk about a person under the influence of PCP: Sweating, profuse sweating.
RP at 473.
Mr. Watson incorrectly contends these statements expressed an opinion about his guilt. The statement is another attempt by the prosecutor to explain that the `to convict' instruction on vehicular assault contained no mens rea element. The argument was proper.
Finally, Mr. Watson contends pro se that the performances of both his trial and appellate counsel were ineffective, apparently because they failed to challenge the propriety of the prosecutor's comments in closing argument. As we have concluded, however, most of the comments were not improper. Defense counsel did object to the single improper statement, which at any rate did not prejudice Mr. Watson. See State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (defendant bears burden of establishing prejudice). Mr. Watson has failed to establish ineffective assistance of counsel.
The convictions and sentence are 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.
BROWN, C.J., and KURTZ, J., concur.