State v. Paine

• Decision Date: 17 May 1993
• Docket Number: No. 27896-7-I,27896-7-I
• Citation: 69 Wn.App. 873,850 P.2d 1369
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Appellant, v. Adriel PAINE, Respondent. Division 1

Page 873

69 Wn.App. 873

850 P.2d 1369

The STATE of Washington, Appellant, v. Adriel PAINE, Respondent.

No. 27896-7-I.

Court of Appeals of Washington,

Division 1.

May 17, 1993.

Norm Maleng, Pros. Atty., Catherine Shaffer, Seattle, for appellant

Washington Appellate Defender, Eric Broman, Seattle, for respondent.

SCHOLFIELD, Judge.

The State appeals the imposition of an exceptional sentence below the standard range. Respondent/cross-appellant Adriel Paine appeals his conviction on one count of possession of a controlled substance with intent to deliver, RCW 69.50.401, contending there was insufficient evidence for a conviction. We remand for resentencing.

FACTS

On July 14, 1990, Seattle Police Officer Michael Alphin went to 7501 24th Avenue S.W., Apt. 6, to attempt to make a purchase of cocaine. Alphin wore plain clothing and drove an unmarked vehicle.

On arrival Alphin proceeded to apartment 6. He knocked and defendant Paine responded. After Alphin inquired as to whether he could get some "D" (rock cocaine), Paine asked him to come inside, and told him to keep the noise down so the neighbors would not hear. Alphin told Paine he was looking for a "20", which was one small rock of cocaine. Paine asked him if he was a police officer, and Alphin replied, "[N]o".

The apartment had a living room, kitchen, a bathroom and two bedrooms (referred to by Alphin as the "southeast" and "southwest" bedrooms). Paine took $20 from Alphin and went into the southeast bedroom, motioning for another black male, approximately 17 years of age, to accompany him. A short time later, Paine reappeared and motioned for Alphin to approach him. The two went into the southwest Alphin returned to the precinct and prepared a search warrant, which was subsequently issued and served at 7501 24th Avenue S.W., Apt. 6, on July 15, 1990, at 9 p.m. At the execution of the search warrant, Paine identified Alphin, who was standing on a sidewalk in front of stairs leading up to the apartments. Paine was detained and later placed in custody. He had no narcotics or paraphernalia in his possession.

                bedroom, closed the door, and Paine handed Alphin a small piece of rock cocaine.   As Alphin prepared to leave, Paine told him that if he came back for more to "keep it down" to prevent the neighbors from learning what was going on
                

Inside the apartment Alphin saw an individual, subsequently identified as William Jones, who had assisted Paine in the drug transaction the day before. Approximately five or six other persons were in the apartment as well, the majority of them juveniles.

Veronica Murphy, Paine's former girl friend, lived in the apartment at 7501--24th Avenue S.W., although she was not home at the time of the raid. Paine had two children by Murphy: 7-year-old Aaron Paine and 16-year-old Adriel Paine, Jr. Aaron and Adriel resided in the southeast bedroom, along with another of Murphy's sons, 20-year-old DeShawn Brown. Fifteen-year-old Adria Paine, a daughter of the defendant, was staying for the summer in the living room of the apartment. William Jones also resided periodically in the living room. Veronica Murphy slept in the southwest bedroom.

Alphin and Officer Christofferson searched the southeast bedroom, where they found a quantity of suspected rock cocaine in a large plastic garbage bag filled with clothing. In a closet, Christofferson located some crack cocaine pipes containing suspected cocaine and a large quantity of ammunition. The material seized tested positive for cocaine and weighed approximately 4.2 grams.

In the kitchen, Officer Donna O'Neal found a plastic container of baking soda, a baby food jar containing a "wet rock Officer Alm searched the southwest bedroom. In that room, he located several documents: (1) an arraignment notice bearing defendant's name (and birth date) from the Seattle Municipal Court--the notice contained no address and no envelope was found; (2) a civil demand letter bearing the name "Adriel Paine" (also stating no address and not designating "Jr." or "Sr."); (3) a document from the Culinary Worker's Union, addressed to "Adriel Paine" at 7501 24th S.W. No. 6; and (4) numerous papers addressed to Veronica Murphy. ¹

                white rock" substance, a plate containing a white rock substance, cocaine, razor blades with cocaine powder on them, a crack pipe, and baggies similar to those found in the southeast bedroom.   A crack pipe was found in the dining room, and nothing was found in the bathroom
                

Eric Taylor, a pretrial screener with King County Court Services, interviewed Paine on July 16, 1990 for the purpose of obtaining background information. Paine told Taylor he resided at 7501 24th Avenue S.W., Apt. 6, Seattle, Washington 98106. Paine stated that he rented the apartment, that he had lived there for 1 year with his girl friend, Veronica Murphy, and that he had previously lived at 1916 East Cherry in Seattle. Paine stated his marital status was "[s]ingle, cohabitant", which Taylor interpreted as meaning single and living with someone. Paine provided Taylor with the apartment's phone number. He also told Taylor he had a problem with drugs.

By amended information filed October 3, 1990, Paine was charged with delivery of a controlled substance to Alphin on July 14, 1990, in violation of RCW 69.50.401(a) (count 1) and was also charged with possession with intent to deliver a controlled substance, contrary to RCW 69.50.401(a), with the alleged possession occurring July 15, 1990 (count 2).

The counts were severed for trial, and during trial on count 1, a mistrial was declared due to prosecutorial misconduct. Count 2 proceeded to trial on October 16, 1990.

Paine's defense regarding count 2 was generally that he did not reside at the apartment and possessed no cocaine. At a pretrial hearing, he testified that he did not use drugs and had no knowledge there were drugs in the apartment. He testified at trial that he did not sell any drugs to Alphin on July 14, 1990, did not live in the apartment at 7501 24th Ave. S.W., did not pay rent for the apartment, and kept no clothes there.

Paine was found guilty by a jury on count 2. He had an offender score of 1, and the seriousness level of his current offense was 8. The standard range for the offense was thus 26-34 months. The State recommended a standard range sentence of 34 months. The defense requested in part an exceptional sentence (downward) of 12 months in prison followed by inpatient substance abuse treatment.

On January 25, 1991, the court sentenced Paine to 12 months in jail and ordered 36 months of community placement. He was further ordered to follow all conditions set forth by TASC, and to enter and complete the Seadrunar program. On February 5, 1991, the State filed a motion for reconsideration of the sentence, but the record does not indicate the trial court's ruling on this motion.

SUFFICIENCY OF EVIDENCE TO CONVICT

Paine contends that the evidence is insufficient to sustain a finding that he exercised dominion and control over the apartment where the drugs were found. The test for determining the sufficiency of the evidence is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. Salinas at 201, 829 P.2d 1068; State v. Craven, 67 Wash.App. 921, 928, 841 P.2d 774 (1992). A claim of insufficiency admits the truth of the State's evidence and all inferences Since Paine had no controlled substances on his person at the time of his arrest, the State had to prove possession through the doctrine of constructive possession. See State v. Porter, 58 Wash.App. 57, 60, 791 P.2d 905 (1990). To establish constructive possession, courts must " 'look at the totality of the situation to determine if there is substantial evidence tending to establish circumstances from which the jury can reasonably infer that the defendant had dominion and control of the drugs and thus was in constructive possession of them.' " Porter at 60, 791 P.2d 905 (quoting State v. Partin, 88 Wash.2d 899, 906, 567 P.2d 1136 (1977)). Frequently, this involves establishing dominion and control over the premises where the drugs are found. Porter, 58 Wash.App. at 60-61, 791 P.2d 905. See also State v. Spruell, 57 Wash.App. 383, 387, 788 P.2d 21 (1990) (showing dominion and control over the premises where drugs are found is a means by which constructive possession of drugs is often established).

that reasonably can be drawn therefrom. Salinas, 119 [850 P.2d 1373] Wash.2d at 201, 829 P.2d 1068; Craven, 67 Wash.App. at 928, 841 P.2d 774.

In this case, several factors point to Paine's dominion and control over apartment 6 where the drugs were found. Paine's knowledge that narcotics were on the premises is demonstrated by his presence at the apartment on July 14, 1990 and the sale of cocaine to Alphin at that time. His request to Alphin to "keep it down" so that the neighbors would not discover what was going on indicates knowledge and an interest in ongoing drug trafficking. At least three of Paine's children live there. Veronica Murphy, Paine's present (or former) girl friend and the mother of two of his children, also lived at the apartment. At the time of his arrest on July 15, Paine was standing outside the apartments on a sidewalk. An arraignment notice from Seattle Municipal Court bearing Paine's name and birth date was found in the southwest bedroom, where Veronica Murphy slept. Two other documents bearing the name "Adriel Paine" were found in that room as well, although they did not specify "Jr." or "Sr." Most compelling is Paine's statement to Taylor, on the day following his arrest, that he had resided at the apartment for the past year with Paine relies upon State v. Callahan, 77...