State v. Afenir
| Decision Date | 24 April 2012 |
| Docket Number | No. 41311-6-II,41311-6-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JAMES AFENIR, Appellant. |
Quinn-Brintnall, J. — James Michael Afenir appeals his conviction for making a space under his control available for the purpose of selling methamphetamine. RCW 69.53.010(1). Afenir asserts that the search of his apartment was unreasonable, he was unlawfully seized, he did not intelligently waive his Miranda1 rights, he received ineffective assistance of counsel, the trial court erred in denying his motions to dismiss, and RCW 69.53.010(1) is unconstitutional as applied to his case.
We do not reach the merits of Afenir's unreasonable search and seizure and Miranda rights waiver arguments because he has either waived those challenges or failed to preserve them for our review. In addition, because Afenir does not present an argument on appeal as to why thetrial court erred in denying his first motion to dismiss, and he has waived his challenge to the trial court's denial of his second motion to dismiss, we cannot address either assignment of error. We hold that Afenir received effective assistance of counsel, that the trial court did not err in denying his Knapstad2 motion, and that RCW 69.53.010(1) is not unconstitutional as applied to Afenir. Accordingly, we affirm.
On June 28, 2009, Corporal Jesse Winfield of the Port Angeles Police Department knocked on the front door of Afenir's one-bedroom apartment in Port Angeles, Washington, in search of Robert Beck.3 Although Afenir was the only lessee of the apartment, he slept on the couch in the living room while Beck and Beck's girlfriend, Kim McCartney, slept in the bedroom. When Afenir answered the door, Winfield explained that he was looking for Beck. Afenir invited Winfield inside and gave the officer permission to look inside the apartment's bedroom and bathroom.
Corporal Winfield found and arrested Beck inside the apartment bathroom, which could be entered only through the bedroom. Beck admitted there was "a little . . . crystal [methamphetamine]" in the bedroom. Report of Proceedings (RP) at 98. Winfield applied for and received a telephonic warrant to search the apartment.
When police executed the search warrant, they found a police scanner, small plastic bags with methamphetamine residue, a plastic bag with a larger quantity of crystal methamphetamine,electronic scales with methamphetamine residue, a spoon, a knife, syringes, a possible cutting agent, a drug pipe, Aprazolan pills, and a notepad marked as "pay and owe records" in the bedroom where Beck and McCartney slept. Clerk's Papers (CP) at 26. Next to the couch in the living room where Afenir slept, the police found a "drug kit" containing pipes, syringes, scales, a spoon with methamphetamine residue, and a syringe loaded with methamphetamine. RP at 107.
Corporal Winfield asked Detective Clay Rife of the Port Angeles Police Department to interview Afenir. Afenir agreed to follow Rife outside to conduct a recorded interview. Afenir, who testified that he was not handcuffed, sat in the backseat of a patrol vehicle with the door open. Rife stood next to the vehicle. Rife read Afenir his Miranda rights and Afenir said he understood them. Afenir told Rife that everything in the bedroom belonged to Beck, and that he only entered the bedroom to use the bathroom. Afenir also told Rife he used methamphetamine for arthritic pain, "got some of the meth that he used from Mr. Beck," and that he knew that "Beck was selling methamphetamine out of the apartment." RP at 126-27. Last, Afenir said he did not accept any rental payments from either Beck or McCartney and that he did not pay for the methamphetamine he received from Beck. Rife did not specifically question Afenir about the items found near the couch.
On July 1, the State charged Afenir with violating RCW 69.53.010,4 which prohibits aperson from making available the use of a space for unlawful drug-related purposes. Afenir moved to dismiss, arguing that the evidence was insufficient to prove beyond a reasonable doubt that Afenir rented the room to Beck for the sole purpose of conducting illegal drug activity. The trial court denied the motion.
On January 27, 2010, the trial court heard Afenir's Knapstad motion on the issue of "whether [Afenir] knowingly allowed use of his apartment for the purpose of 'delivering, selling . . . or giving away any controlled substance.'" CP at 25. The trial court denied the motion, distinguishing the "drug house" statute, RCW 69.50.402,5 from RCW 69.53.010, because RCW 69.53.010 had no element of "maintaining" conduct. The trial court found that the evidence was sufficient to prove a prima facie case that Beck was dealing methamphetamine, and that, because the apartment was small and Afenir admitted he entered the bedroom to use the bathroom, Afenir knew that Beck was dealing drugs from the apartment. Thus, the trial court concluded that there was sufficient evidence to establish a prima facie case that Afenir was guilty of the crime charged.
The trial court held a CrR 3.5 hearing on the admissibility of Afenir's statements made to the police on Fifth Amendment voluntariness grounds. Detective Rife testified that he stood next to Afenir during the interview, did not have his weapon drawn, but could not remember whether Afenir was handcuffed at the time. Rife also could not recall whether he had told Afenir that he was not interested in Afenir for any criminal activity. Afenir testified that Rife assured him thatthe police were at the apartment to arrest only Beck and that they would appreciate any information he could give them. The trial court found Afenir's statements admissible as voluntarily given because there was no evidence of coercion and Afenir had understood his Miranda rights.
Afenir waived his right to a jury trial. At a bench trial held on August 25, Afenir confirmed that he did not accept rental or utility payments from Beck or McCartney. Afenir testified that he did not give either person a key to the apartment and that if he left the apartment for any reason, they also had to leave. Afenir also testified that the bedroom door was never locked because he did not want to be blocked from the bathroom. Afenir testified that on the occasions when he entered the bedroom to use the bathroom, he noticed the couple kept the bedroom very neat and that Beck had a police scanner.
Afenir testified that at some point, Beck and McCartney stacked some of their belongings from the bedroom in the living room next to the couch because they were moving items into storage. Afenir did not know about the "drug kit" found next to the couch. Afenir further testified that he paid Beck in cash for the methamphetamine and that Beck would leave the apartment before returning with the drug. Last, Afenir testified that he did not know that Beck was dealing drugs from the bedroom and that he would not have asked Beck about it because the couple had been planning to move out of the apartment in two weeks.
After the State rested, Afenir moved again to dismiss for failure to make a prima facie case. Afenir argued that even if the State had proved Afenir had made available a space under his control from which Beck sold methamphetamine, the State could not prove either that Beck was a lessee or renter or that Afenir made the space available for the purpose of sellingmethamphetamine. The State argued that the statute did not require the State to prove that Afenir made the space available for the specific purpose of delivering drugs. The trial court, relying on State v. Sigman, 118 Wn.2d 442, 826 P.2d 144 (1992), found that "knowingly make available" meant the same as "knowingly allow," and denied the motion. The trial court found that Afenir knew and allowed Beck to sell methamphetamine from the bedroom and found him guilty has charged. Afenir timely appeals.
Afenir assigns error to the trial court's findings that the search and seizure of his home was reasonable and that his statements to Detective Rife were admissible. Afenir also assigns error to the trial court's denial of his dismissal and Knapstad motions. Last, Afenir asserts that Detective Rife unlawfully seized him, he received ineffective assistance of counsel, and that RCW 69.53.010(1) is unconstitutional as applied to his case. We affirm.
For the first time on appeal, Afenir asserts that the initial police entry into his apartment violated constitutional protections against unreasonable searches and seizures. U.S. Const. amend. IV; Wash. Const. art. I, § 7. Specifically, Afenir argues that although the police conducted the search pursuant to a search warrant, because their initial entry was without warrant and no exigent circumstances existed, all the State's physical evidence seized was "fruit of the poisonous tree" and the trial court erred in admitting it. The State argues that because Afenir did not request a CrR 3.6 hearing to suppress the evidence and did not object to the admission of the physical evidence on these grounds at trial, he has waived the challenge for appeal. We agree with the State.
Generally, Afenir may not raise an issue for the first time on appeal unless it is a "manifest error affecting a constitutional right." RAP 2.5(a)(3). A defendant waives the right to challenge the admission of evidence gained in an illegal search or seizure by failing to move to suppress the evidence at trial. See State v. Mierz, 127 Wn.2d 460, 468, 901 P.2d 286 (1995). When a defendant fails to move to suppress the evidence, the trial court is not required to rule on the admissibility of such evidence and the record on appeal contains no decision, correct or otherwise, for our review. See State v. Tarica, 59 Wn. App. 368, 372-73, 798 P.2d 296 (1990), overruled on other grounds by State v. McFarland, 127 Wn.2d 322, 337, 899 P.2d 1251 (1995).
Here, Afenir did not request a CrR 3.6...
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