Opinion
No. 24174-2-III.
June 29, 2006.
Appeal from a judgment of the Superior Court for Spo-kane County, No. 04-1-03760-4, Neal Q. Rielly, J., entered May 9, 2005.
Counsel for Appellant(s), David N. Gasch, Gasch Law Office, PO Box 30339, Spokane, WA 99223-3005.
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.
Affirmed by unpublished opinion per Brown, J., concurred in by Kato and Kulik, JJ.
Stephen Paul White appeals his bench trial convictions for third degree theft, second degree malicious mischief, and legend drug possession. Mr. White does not appeal two fourth degree assault convictions. We review for evidence sufficiency, evidentiary error, and alleged sentencing error. We affirm.
FACTS
The facts are summarized from Mr. White's bench trial. Early on November 16, 2004 in the Spokane Valley, Fabtec employee David Keller told co-employee, Rich Nelson, he saw a person in Mr. Nelson's truck. The pair confronted the person, later identified as Mr. White, while Mr. White was holding a flashlight and apparently hiding in the front seat. Mr. White responded he was looking for a lighter. When ordered out, Mr. White hit Mr. Nelson and ran, but he was soon tackled. While waiting for a 911 response, another co-employee, Gary Brummett, discovered a flashlight was missing from his tampered truck. Mr. Brummett was 125 percent sure the flashlight found near the scuffle was his, although the strap was broken. Later, Mr. White again hit Mr. Keller trying to escape. Spokane County Sheriff deputies soon arrived.
Deputies handcuffed Mr. White and put him in the back of a patrol car. Deputy Ballard Bates advised Mr. White of his rights. Mr. White told Deputy Bates he had merely been walking and just needed a light. He admitted entering two trucks looking for a lighter and fighting. Mr. White explained he needed to get away so the pair would not think he had stolen from them.
Robert Borgman, who worked nearby approached the officers and reported his vehicle had been broken into. Mr. Borgman heard about the commotion and checked his vehicle. Mr. Borgman discovered a broken window and items missing, including a $75 trailer brake, a $300 CD changer, and $100 worth of CDs in a case. Mr. White denied stealing the items, but told the officers he knew where the items could be found nearby. The items were recovered at the place Mr. White designated. Mr. Borgman testified approximately $1,400.00 was paid by his insurance company for damage to his truck.
Mr. White was arrested. A green tablet and an unmarked pill bottle containing assorted pills were found in Mr. White's possession at the jail. Mr. White was charged with second degree robbery (Gary Brummett and Richard Nelson); second degree assault (David Keller); second degree theft (not a firearm) and second degree malicious mischief (Robert Borgman); and unlawful possession of a legend drug, to wit (cephalexin, cyclobenzaprine, and prescription ibuprofen).
Mitchell Nessan, a chemist with the Washington State Patrol Crime Laboratory, testified he visually examined the pills found on Mr. White's person. They consisted of two different types of tablets and one capsule. Nine of the pills were described as round, white tablets with `IP' and S131' imprinted on one side and `400' imprinted on the other side. Fourteen pills were described as round, yellow tablets with the letters `S' and `L' imprinted on the front and the number `563' imprinted on the back. Based upon the visual markings and logos on those pills, and a review of the `literature' and information on the internet, Mr. Nessan was able to identify the pills as prescription level ibuprofen (400 mg) and cyclobenzaprine, both legend drugs. The tablets he inspected looked `genuine.' At times the written record is difficult to follow as to which item he was describing, but it is apparent Mr. Nessan described each item as a legend drug.
Mr. Nessan contacted a poison control center in order to identify the lone capsule. An analysis on the powder inside the capsule was negative for a controlled substance. Based upon the logo and poison control information, Mr. Nessan identified the capsule as an antibiotic, a legend drug. The court denied Mr. White's hearsay objection to the poison control information. The court reasoned an expert can rely on evidence which does not necessarily comply with the evidence rules if it is the type of thing he would normally utilize or request to form his opinions.
The trial court found Mr. White guilty of two counts of fourth degree assault, third degree theft, second degree malicious mischief, and possession of a legend drug. Mr. White was sentenced within the standard range and given consecutive sentences for the misdemeanor assaults.
ANALYSIS
A. Evidence Sufficiency
The issue is whether sufficient evidence supports Mr. White's convictions for second degree malicious mischief, third degree theft, and legend drug possession. Mr. White first contends fingerprint and eyewitness evidence is essential for conviction. Second, he contends the legend drug evidence is insufficient because the State failed to establish the substances found were in fact legend drugs.
We review evidence insufficiency challenges in a light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Mr. White admits the State's evidence is true and accepts all reasonable inferences. Id. We defer to the trier of fact and will affirm where we can find the essential elements of the crime beyond a reasonable doubt. State v. Walton, 64 Wn. App. 410, 415, 824 P.2d 533 (1992). Circumstantial evidence and direct evidence are equally capable of supporting a conviction. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). See State v. Bernson, 40 Wn. App. 729, 700 P.2d 758 (1985); State v. Bauman, 77 Wn.2d 938, 468 P.2d 684 (1970) (Circumstantial evidence alone will support a criminal conviction.).
A person commits malicious mischief in the second degree if he `knowingly and maliciously [c]auses physical damage to the property of another in an amount exceeding two hundred fifty dollars.' RCW 9A.48.080(1)(a). A person is guilty of theft in the third degree if he commits theft of property which does not exceed $250 in value. RCW 9A.56.050. A person commits theft if he `wrongfully obtain[s] or exert[s] unauthorized control over the property . . . of another . . . with intent to deprive him of such property.' RCW 9A.56.020(1)(a).
Fingerprint and eyewitness evidence is not required to support Mr. White's convictions. Viewing the evidence for the State, sufficient evidence supports the judge's guilt findings for theft and malicious mischief. On the morning of November 16, Mr. Borgman's vehicle was damaged and his property was stolen. Mr. White was caught rummaging inside a nearby vehicle without permission, and he was using a flashlight taken without permission from a second vehicle. When confronted, Mr. White fought and attempted to flee. Mr. White knew the location of the missing items. This circumstantial evidence sufficiently supports the conclusion Mr. White committed theft and malicious mischief.
RCW 69.41.030 provides: `[i]t shall be unlawful for any person to . . . possess any legend drug except upon the . . . prescription of a physician. . . .'
RCW 69.41.010(12) provides: "Legend drugs' means any drugs which are required by state law or regulation of the state board of pharmacy to be dispensed on prescription only.'
Crime lab chemist Mr. Nessan provided his opinion based upon a visual inspection of the markings observed on each pill. Although, no detailed chemical analysis was performed on each item, the objection merely goes to evidence weight, not admissibility. A chemical analysis of a suspected controlled substance is not essential to conviction in a criminal trial proceeding; lay testimony and circumstantial evidence may be sufficient to establish the identity of the substance. In re Pers. Restraint of Reismiller, 101 Wn.2d 291, 294-95, 678 P.2d 323 (1984); State v. Hernandez, 85 Wn. App. 672, 675-76, 935 P.2d 623 (1997).
Reviewing the evidence for the State, we accept Mr. Nessan's opinions as true, including reasonable inferences. Salinas, 119 Wn.2d at 201. We defer to the judge in this bench trial, who could have found the essential elements of the crime beyond a reasonable doubt. Walton, 64 Wn. App. at 415. Circumstantial evidence and direct evidence combined support the conclusion Mr. White possessed legend drugs. Delmarter, 94 Wn.2d at 638. Considering the facts, Mr. White did not legally possess the legend drugs. Mr. White did not raise any affirmative defense for the State to disprove beyond a reasonable doubt. Thus, we conclude the legend drug evidence sufficiently supports Mr. White's legend drug conviction
B. Hearsay Evidence
The issue is whether in this bench trial the judge abused his discretion in allowing hearsay from the poison control center regarding a legend drug identification.
We review a decision admitting expert testimony for abuse of discretion. State v. Stenson, 132 Wn.2d 668, 715, 940 P.2d 1239 (1997); State v. Nation, 110 Wn. App. 651, 41 P.3d 1204 (2002). Discretion is abused if based on untenable grounds or manifestly unreasonable or arbitrary reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Failure to follow the law exceeds discretionary limits. State v. Williamson, 100 Wn. App. 248, 257, 996 P.2d 1097 (2000). Judges in bench trials where the evidence is otherwise sufficient are presumed not to consider inadmissible evidence. State v. Read, 147 Wn.2d 238, 244-45, 53 P.3d 26 (2002).
Expert opinion may be based on data interpreted by another when certain requirements of ER 703 are met. State v. Ecklund, 30 Wn. App. 313, 318-19, 633 P.2d 933 (1981); see also State v. Russell, 125 Wn.2d 24, 74-75, 882 P.2d 747 (1994). ER 703 provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
The judge permitted Mr. Nessan to refer to his discussion with the poison control center because the facts or data did not need to be admissible in evidence for Mr. Nessan to state his opinion. Further, the court determined that type of evidence was typically relied upon by experts like Mr. Nessan.
However, even assuming error, we presume the judge did not rely on impermissible hearsay from the poison control center, but rather Mr. Nessan's own opinion. Read, 147 Wn.2d at 244-45. Mr. Nessan testified he relied upon the logo imprinted on the capsule and the poison control center information; thus, even excluding the hearsay, sufficient evidence supports Mr. Nessan's opinion. Further, Mr. White properly does not object to Mr. Nessan's reference to guides for determining logo and general description information at the crime lab. Such evidence is routinely referred to as a basis for expert identification opinion. Accordingly, the trial judge did not abuse his discretion in this bench trial when allowing Mr. Nessan's reference to assistance he received from the poison control center. C. Additional Grounds Mr. White contends the trial court erred in running his two fourth degree assault convictions consecutive to his other sentences.
A court may only impose statutorily-allowed sentences. State v. Phelps, 113 Wn. App. 347, 354-55, 57 P.3d 624 (2002). The Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, governs felony sentencing and states: `Sentences imposed under this subsection shall be served concurrently. Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.535.' RCW 9.94A.589(1)(a).
But the SRA does not apply to misdemeanor sentencing. RCW 9.94A.010; State v. Langford, 67 Wn. App. 572, 587-88, 837 P.2d 1037 (1992). Thus, the trial court had discretion to impose concurrent or consecutive sentences for misdemeanors. See RCW 9.92.080(2), (3) (allowing discretion to sentence concurrently or consecutively).
Here, the court expressly imposed the misdemeanor assault sentences to run consecutively to the sentence imposed for the felony conviction consistent with RCW 9.92.080(2) and (3). Therefore, the trial court did not err in exercising consecutive sentencing discretion. 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.
KATO, J. and KULIK, J., concur. Page 1036