Opinion
Court of Appeals No. A-10011.
December 30, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, John Suddock, Judge, Trial Court No. 3AN-04-10274 CR.
Josie W. Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. W. H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Damon Ward was arrested at a bar in possession of crack cocaine. The State charged him with selling the cocaine in the bar. The police connected Ward to a car parked outside the bar which contained two handguns. The State also charged Ward with two counts of possessing firearms in furtherance of a drug crime. In addition, because Ward had a prior felony conviction, the State charged him with two counts of being a felon in possession of a concealable firearm.
Misconduct involving a controlled substance in the third degree, a class B felony. AS 11.71.030(a)(1).
Misconduct involving weapons in the second degree, a class B felony. AS 11.61.195(a)(1), (b).
Misconduct involving weapons in the third degree, a class C felony. AS 11.61.200(a)(1).
Superior Court Judge John Suddock presided over Ward's trial. Ward argued that the evidence of his possession of the firearms and particularly the evidence that he had a prior felony conviction was unduly prejudicial. He therefore argued that Judge Suddock should sever the firearms charges from the drug sale charge. He also argued that Judge Suddock should bifurcate any trial of the firearms charges by requiring the jury to decide all of the other issues in the case before hearing the evidence that he had previously been convicted of a felony.
Judge Suddock denied these motions. He concluded that evidence that Ward possessed the firearms was relevant to show that Ward's possession of cocaine was for sale rather than for personal use. And he concluded that evidence that Ward had taken the risk of possessing these weapons when he knew that possession of the weapons was illegal (because of his prior felony conviction) was an important fact for the jury to consider in determining whether Ward had possessed these weapons in furtherance of a drug crime. Judge Suddock concluded that the evidence of all of the charges was cross-admissible and that the probative value of this evidence was not outweighed by the danger of unfair prejudice. We conclude that Judge Suddock's ruling was not an abuse of discretion.
Factual and procedural background
On October 14, 2004, at the Gaslight Lounge in Anchorage, Security Officer Asosaotama Toleafoa saw a person, whom he later identified as Damon Ward, engaging in conduct that he considered suspicious. Toleafoa saw Ward enter and drink one beer. Ward went into the bathroom five or six times during a short period, followed each time by a different person. Ward wore a winter jacket. Each time, Ward and the other individual stayed in the bathroom about three to five minutes. Each of the individuals who followed Ward into the bathroom had just entered the bar, did not buy a drink, and left the bar after exiting the bathroom. Ward returned to his seat after each individual left the bar.
The fifth or sixth time that Ward entered the bathroom with another person, Toleafoa followed them. He observed that Ward was standing in a stall and the other man staying near the bathroom door. They watched Toleafoa use the toilet, wash his hands, and read the newspaper headlines posted on the wall. After seven to ten minutes, the man left. Toleafoa followed the man out. He saw the man leave the bar, followed by Ward, who returned about a minute later and began "messing" with his feet, shoes, and socks. Toleafoa did not observe any exchange of money or drugs.
Toleafoa notified the police of this activity. Officers Matt Williams and Kevin Mitchell responded. They approached Ward, who agreed to follow them outside. Officer Mitchell told Ward that there was a complaint about him selling drugs. Ward denied that he was selling drugs. Officer Mitchell observed that Ward was sober and not under the influence of drugs. The officers patted down Ward and found a ball, which was later found to be 4.8 ounces of crack cocaine, in his jacket pocket. The officers also found $33 wrapped around the cocaine, the keys to a Chrysler, and a cell phone. Evidence developed at trial established that Ward had received six phone calls that evening, and made two phone calls, each under one minute. The officers also found $160 in Ward's socks. They did not find a crack pipe, choreboy, or any other paraphernalia associated with crack cocaine usage.
Choreboy is a piece of steel wool used for holding crack cocaine in the pipe while it is being smoked.
Donzell Owens was present when the officers made contact with Ward. Owens asked Ward if he should call someone to get the car. The officers asked Ward about the car keys. Ward told them that they were for his car, which he had left at home with his wife. Later, Ward admitted that he wasn't married and stated that the keys were to his girlfriend's car. The officers eventually found a black Chrysler in the parking lot of the bar. The key that the officers found on Ward fit this car. The officers looked into the car with a flashlight and noticed the barrel of a pistol underneath the passenger seat. Bernadette Nakea, the owner of the car, consented to a search of the car. The officers seized the pistol, a .40-caliber Smith and Wesson, and a magazine, which was inserted in the pistol. They then released the car to Nakea. When Nakea entered the car, she informed the officers that she had discovered another pistol, a nine-millimeter Witness, underneath the driver's seat, and the officers seized this pistol.
At trial, Nakea testified that she had loaned the car earlier that day to Ward and Owens. However, she gave the keys to Owens, because Ward was not licensed to drive. Nakea said that the car did not contain any guns when she loaned it to Owens.
The State presented evidence that there was an extremely high probability that DNA on the Witness, the handgun found under the driver's seat, came from Ward. But there was insufficient genetic material present on the Smith and Wesson, the handgun found under the passenger seat, to make a comparison.
Ward was indicted on one count of misconduct involving a controlled substance in the third degree for dealing cocaine, two counts of misconduct involving weapons in the second degree for possession of weapons in furtherance of a felony involving illegal drugs, and two counts of misconduct involving weapons in the third degree for possession of a concealable firearm as a convicted felon.
AS 11.71.030(a)(1).
AS 11.61.195(a)(1).
AS 11.61.200(a)(1).
Ward's trial began January 24, 2006. He moved to bifurcate the proceeding and try the misconduct involving controlled substances count and the second-degree weapons misconduct counts before the third-degree weapons misconduct counts, in order to prevent his felony status from being presented to the jury on the first three counts.
The court instead granted the State's motion to bifurcate and tried the misconduct involving controlled substances count before all of the weapons misconduct counts in order to prevent prejudicial evidence from being presented to the jury. The jury hung on the misconduct involving controlled substances count, and the court declared a mistrial. Because of this, the jury never reached the weapons counts.
Ward was retried between March 27, 2007, and April 4, 2007. He again moved to bifurcate the misconduct involving controlled substances count, the two second-degree weapons misconduct counts, and the third-degree weapons misconduct counts. The State changed its position and argued to try all of the counts together. The court denied Ward's motion and ordered that all five counts be tried together. The jury convicted Ward on all counts.
Judge Suddock did not abuse his discretion in allowing all the charges against Ward to be tried together
Ward argues that he was unfairly prejudiced because the State was able to present evidence of all of the charges against him in a single trial. He argues that evidence of his possession of concealable firearms and, in particular, the fact that he had previously been convicted of a felony, was unduly prejudicial. He argues that these charges should have been severed from the drug charges and from each other.
Ward is correct that in our prior decisions we have concluded that evidence of a defendant's prior convictions is prejudicial. And we have therefore limited the circumstances where evidence of a defendant's prior convictions is admissible. For instance, in Elerson v. State, the defendant was charged with theft by receiving stolen property. The property included concealable firearms. Elerson was charged with being a felon in possession of concealable firearms based upon the same evidence. We held that the trial court erred in denying Elerson's motion to sever the felon in possession charges from the theft charges. We held that "[s]ince the prior conviction would not have been admissible against Elerson in a separate trial on the theft charges, we conclude that it was error to deny severance of those charges." (We also noted that the trial court could have avoided the prejudice by conducting a bifurcated trial in which the jury would be informed of the defendant's prior conviction only after it had entered a verdict on the receiving stolen property charge. Alternatively, the defendant could have stipulated to the prior felony and stipulated that the jury did not have to decide that element of the felon in possession offense.)
732 P.2d 192 (Alaska App. 1987).
Id. at 195.
Id.
Id. (citations omitted).
Id. at 195; Wortham v. State, 689 P.2d 1133, 1138 n. 4 (Alaska App. 1984).
Wortham, 689 P.2d at 1138 n. 4.
We reached a similar conclusion in Ostlund v. State. Ostlund was charged with felony driving while intoxicated. The offense was a felony because Ostlund had two prior convictions for driving while intoxicated. Ostlund moved for a bifurcated trial. He argued that the trial court should only have the jury determine whether he had committed the present offense of driving while intoxicated. He agreed to stipulate to his prior convictions if the jury convicted him. The trial court declined to bifurcate the trial. We concluded that the trial judge abused her discretion. We noted that the evidence of Ostlund's prior convictions was not relevant (except to establish that his current offense was a felony) and was highly prejudicial:
51 P.3d 938 (Alaska App. 2002).
Id. at 939.
Id. at 942.
The State never argued that Ostlund's prior offenses were relevant for any purpose other than to establish that [Ostlund's] driving while intoxicated offense was a felony. By holding a unitary trial in which the State was allowed to present evidence that Ostlund had two prior convictions for DWI, the judge necessarily presented the jurors with information that could . . . unfairly prejudice their deliberations. Having heard that Ostlund had committed DWI on two prior occasions, the jury might have used this information for the purpose prohibited by Evidence Rule 404(b)(1): to infer that Ostlund was a person who characteristically drove while intoxicated, thus making it more likely that he was guilty of the current DWI charge.
Id. at 941.
In a concurring opinion, Judge Mannheimer pointed out that bifurcation was not required in situations where the defendant's prior crimes were independently relevant and where the trial judge concluded that the probative value of the prior offenses was not outweighed by the danger of unfair prejudice:
If evidence of the defendant's prior crimes is independently relevant, and if the trial judge performs the balancing mandated by Rule 403 and concludes that the evidence of these crimes should be admitted, then bifurcation is no longer an issue. The judge will have concluded that the jury needs to hear evidence of the prior crimes in order to adequately understand the nature and context of the defendant's current conduct, so a unified trial is the answer.
Id. at 948.
In denying Ward's motion for severance or bifurcation, Judge Suddock concluded that the evidence of Ward's possession of firearms was independently relevant and admissible on the charge that Ward was selling the crack cocaine rather than just possessing it for personal use. He observed that, in Ward's first trial, the jury had apparently been unable to agree on the issue of whether Ward was selling cocaine. He noted that the State had presented expert testimony that drug dealers are frequently armed in order to protect their drugs and money. He concluded that "[t]he evidence is of critical importance to the State and is highly relevant to the issue of sale." He observed that if Ward was in possession of the firearms illegally, this was relevant to determining that Ward possessed the weapons for the purpose of carrying out the drug sales: "Possession of weapons put Mr. Ward at extraordinary risk of re-incarceration. Why did he bear this risk if he was at the Gaslight for an innocent purpose?" Judge Suddock concluded that the prejudicial impact of the evidence that Ward had previously been convicted of a felony could be "ameliorated by an instruction."
The State presented testimony from an expert witness, Lieutenant David Koch, who had extensive training and experience in investigating drug offenses. Lieutenant Koch basically testified that the street value of the drugs Ward possessed was approximately $480. Lieutenant Koch testified that drug dealers are a target for robberies by addicted crack users. And, because drug dealers are operating illegally, they cannot rely on the law to protect them. He testified that the danger of a robbery was higher in the alley and parking lot behind the Gaslight than inside the Gaslight. He testified that this explained why a drug dealer might have weapons readily available in his car. The State relied on his testimony to argue that Ward's possession of the weapons supported the conclusion that he was selling, rather than simply possessing, the drugs that the police found in his possession. This testimony supported Judge Suddock's decision that Ward's possession of the weapons was relevant to show that he was selling drugs. In addition, evidence that Ward was selling drugs was cross-admissible to show that he was in knowing possession of the weapons.
Our prior decisions support the conclusion that a defendant's illegal possession of a firearm may be relevant to whether the defendant possessed the firearm in furtherance of a drug offense. Alaska Statute 11.61.195 prohibits a person from knowingly "possessing] a firearm during the commission of an offense under AS 11.71.010 — 11.71.040 [i.e., misconduct involving controlled substances]." In Collins v. State, this court held that mere contemporaneous possession of a firearm at the time that a drug offense was committed was not sufficient to establish that the defendant possessed the weapon in furtherance of a drug offense. Rather, the State is required to prove "a nexus between a defendant's possession of the firearm and the defendant's commission of the felony drug offense." In Murray v. State, this court held that:
977 P.2d 741 (Alaska App. 1999).
Id. at 751-53 (Mannheimer, J., concurring).
Id. at 753 (Mannheimer, J., concurring).
54 P.3d 821 (Alaska App. 2002).
[T]o establish the nexus . . ., the State must prove that the defendant's possession of the firearm aided, advanced or furthered the commission of the drug offense. Possession of drugs and a firearm alone is insufficient for such a finding — even if the drugs and firearm were located in close physical proximity.
Id. at 824.
We concluded that "while physical proximity of a firearm to drugs, with nothing more, is insufficient to support a nexus finding," the fact-finder may consider physical proximity as part of a list of relevant, non exhaustive factors:
(1) the type of drug activity conducted, (2) the accessibility of the firearm, (3) the type of firearm, (4) whether the firearm was stolen, (5) the status of the defendant's possession (legitimate or illegal), (6) whether the firearm was loaded, (7) the proximity of the firearm to drugs or drug profits, and (8) the time and circumstances under which the gun was found.
Id.
We cautioned that these factors should not be applied "in a mechanical manner" and that the factors are "relevant [only] to the extent that they show the defendant's possession of the firearm aided, advanced, or furthered the commission of the drug offense." As we have previously stated, Judge Suddock reasoned that a finding by the jury that Ward's possession of the weapons was illegal would be highly probative of the purpose of his possession.
Id.
We conclude that Judge Suddock did not abuse his discretion in allowing all of the charges against Ward to be tried together. We conclude that the evidence concerning all of the charges was cross-admissible. Even if all of the charges had been severed, all of the evidence against Ward would have been admissible in those separate trials.
The evidence was sufficient to support Ward's conviction for possessing firearms in furtherance of a drug crime
Ward contends that the evidence was insufficient to establish his guilt of possessing weapons in furtherance of a drug crime. In reviewing whether evidence is sufficient to support a conviction, we view the evidence in the light most favorable to the State. We are to determine whether reasonable jurors could find the defendant guilty beyond a reasonable doubt.
Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994).
The evidence, viewed in the light most favorable to the State, supports the jury's verdict. According to Nakea, she had loaned her car earlier in the day to Ward and Owens. She stated that the car did not contain any guns at that time. Later that day, Toleafoa saw Ward contacting several individuals in the bar in a suspicious manner which suggested that Ward was selling drugs to those individuals. Toleafoa contacted the police.
When officers Matt Williams and Kevin Mitchell contacted Ward, he had 4.8 ounces of crack cocaine in his jacket pocket. The officers also found money that Ward had wrapped around the cocaine and in his socks. They also found the key to Nakea's car. Ward initially lied about the car. The police ultimately found two loaded handguns in the car, one of which had Ward's DNA on it.
In the light most favorable to the State, the evidence showed that Ward had borrowed the car to go to the Gaslight Lounge to sell drugs. Ward had placed the loaded handguns in the car in order to protect the drugs and money which were involved in his drug-selling enterprise. Therefore, the evidence, and the reasonable inferences from that evidence, were sufficient to support the jury's verdict that Ward was in possession of the firearms in furtherance of his drug-selling activities.
Ward's conviction for being a felon in possession of a concealable firearm
Ward also argues that the evidence was insufficient to support his conviction for being a felon in possession of a concealable firearm. Ward has not contested the fact that he has a former felony conviction. And our conclusion that the evidence was sufficient to support Ward's conviction for possessing the firearm in furtherance of his drug-selling activity also supports the conclusion that Ward was in possession of firearms. We therefore conclude that the evidence was sufficient for the jury to find that Ward was guilty of the offense of being a felon in possession of concealable firearms.
Judge Suddock's instruction on "constructive possession"
Ward also argues that the instruction which Judge Suddock gave on "constructive possession" was erroneous. The instruction which the trial court gave was similar to the instruction we suggested in Alex v. State. Furthermore, the State's evidence was that Ward had actual possession of the firearms. Any error in the instruction would therefore be harmless.
127 P.3d 847, 851 (Alaska App. 2006).
Conclusion
The judgment of the superior court is AFFIRMED.