State v. Benson
| Decision Date | 30 October 2018 |
| Docket Number | 35000-2-III |
| Citation | 5 Wn.App.2d 1055 |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. DELBERT HAROLD BENSON, Appellant. |
UNPUBLISHED OPINION
Delbert Benson appeals his perjury conviction. We affirm.
Delbert Benson agreed to work as a confidential informant and facilitate a controlled drug buy on October 30, 2012. Prior to the controlled buy, Mr. Benson met with two police officers. The officers searched Mr. Benson's person and pickup truck and provided him $200 in buy funds. Mr. Benson was also outfitted with an audio transmitting and recording device. The device enabled the officers to listen to Mr Benson's conversations in real time and also to record the conversations for future use.
After being wired and prepped for the controlled buy, officers followed Mr. Benson to the residence of John Gant. Mr. Benson went inside the residence and met with Mr. Gant for approximately 40 minutes. During the meeting, officers could hear Mr. Benson negotiating a purchase for $150. The conversation included drug terminology such as a "ball," an "eight ball" and a "teen." Clerk's Papers (CP) at 36, 38. After finishing his meeting with Mr. Gant, the police followed Mr Benson back to the police station.
Once at the station, officers performed additional searches of Mr Benson and his pickup. They recovered $50 in buy funds and a plastic container containing methamphetamine. During a recorded debriefing, Mr. Benson said that he had gone to Mr Gant's house and given him $150. Mr. Benson was asked if Mr. Gant had methamphetamine.[1] He responded, "yes." CP at 59. Mr. Benson explained Mr. Gant weighed the methamphetamine and took the $ 150 in exchange for the drug.
As a result of Mr. Benson's controlled buy, the State charged Mr. Gant with controlled substance violations. Mr. Benson was called to testify at trial. During his testimony, Mr. Benson denied Mr. Gant had ever supplied him with methamphetamine. Mr. Benson claimed that the methamphetamine turned over to police belonged to him and had come from a tool box located in the bed of his pickup. Mr. Benson also testified that he had kept the $ 150 that he was supposed to have given to Mr Gant. According to Mr. Benson, he instead placed the $150 in his wallet. Mr. Gant was acquitted of the controlled substance charge.
Two years after Mr. Gant's acquittal, the State charged Mr. Benson with first degree perjury. The information alleged Mr. Benson gave materially false testimony when he stated he did not purchase any drugs from John Gant on October 30, 2012. The exact statements that formed the basis of the charge were identified in a bill of particulars.[2]
Mr. Benson's case proceeded to trial. The State presented testimony from the two officers who had handled Mr. Benson's cooperation. The officers described their surveillance activities and interactions with Mr. Benson. According to the officers' testimony, they would have searched any tool box located in Mr. Benson's truck as well as Mr. Benson's wallet. Yet during the pre-buy search, the officers did not discover any methamphetamine. Nor did the officers ever see Mr. Benson retrieve anything from the bed of his pickup during the course of their surveillance. During the post-buy search, Mr. Benson was not discovered to have $150 on his person. In addition to the officers' testimony, the State introduced the entire wire recording of Mr. Benson's undercover activity, along with Mr. Benson's post-buy recorded statement to police. The entire statement was played for the jury, as were portions of the undercover recording.
At several points during the trial, the prosecutor explained that Mr. Benson had perjured himself by claiming that the drugs turned over to police were his.[3] Defense counsel reiterated this clarification and pointed out the various false statements attributed to Mr. Benson that were not the subject of the perjury charge.
The prosecutor concluded his rebuttal argument with the following statement, to which the defense objected:
3 Report of Proceedings (Nov. 2, 2016) at 413-14.
The jury was given a standard pattern instruction that direct and circumstantial evidence carry equal weight and value (instruction 5).[4] The jury was also given an instruction specific to the heightened evidentiary requirements for perjury (instruction 7). See, e.g., State v. Singh, 167 Wn.App. 971, 976, 275 P.3d 1156 (2012) ( the requirement). Instruction 7 provided:
To convict the defendant of the crime of Perjury in the First Degree, there must be either positive testimony of at least two credible witnesses that directly contradicts the defendant's statement made under oath or there must be one such direct witness along with independent direct or circumstantial evidence of supporting circumstances that clearly overcomes the oath of the defendant and the legal presumption of defendant's innocence.
CP at 173. The to-convict instruction (instruction 11) listed the elements of first degreeperjury but did not contain any reference to the heightened evidentiary requirement described in instruction 7. Mr. Benson was found guilty of first degree perjury. He appeals.
ANALYSIS
Sufficiency of the evidence
In a sufficiency challenge, our inquiry is "whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). All reasonable inferences are drawn in the State's favor, and the evidence is interpreted most strongly against the defendant. Id. This court does not reweigh the evidence and substitute its judgment for that of the trier of fact. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).
State v. Rutledge, 37 Wash. 523, 528, 79 P. 1123 (1905) (quoting People v. Rodley, 131 Cal. 240, 261, 63 P. 351 (1900)). This direct testimony must come "from someone in a position to know of his or her own experience that the facts sworn to by defendant are false." Nessman v. Sumpter, 27 Wn.App. 18, 24, 615 P.2d 522 (1980).
Mr. Benson claims the State's evidence was insufficient to meet the heightened evidentiary requirements for perjury. We disagree. The State presented testimony from law enforcement officers that Mr. Benson did not have any methamphetamine on his person or in his vehicle prior to the meeting with Mr. Gant. This directly contradicted Mr. Benson's testimony that the methamphetamine had come from a tool box located on his truck bed. The officers' testimony regarding the origins of the methamphetamine was corroborated by the audio recording of Mr. Benson's interactions with Mr. Gant, during which the men discussed drug terminology and a $150 purchase. It was also corroborated by the statements made by Mr. Benson during his recorded debriefing. The State's corroborating evidence was inconsistent with Mr. Benson's claim of innocence. There was, therefore, sufficient evidence to justify the jury's guilty verdict.
To-convict jury instruction
Mr. Benson claims that the court's to-convict instruction was flawed in two ways: (1) the instruction did not inform the jury of the heightened evidentiary requirements applicable to perjury, and (2) the instruction did not specify which false statement formed the basis of the State's charge. We reject both challenges.
Essential elements
Jury instructions are reviewed de novo. State v. Johnson, 180 Wn.2d 295, 300, 325 P.3d 135 (2014); State v Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995). Taken together, the instructions must inform the jury that the State bears the burden of proving every essential element beyond a reasonable doubt. Johnson, 180 Wn.2d at 306; Pirtle, 127 Wn.2d at 656....
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