State v. Erwin, No. 37024-7-II (Wash. App. 5/5/2009)
| Decision Date | 05 May 2009 |
| Docket Number | No. 37024-7-II.,37024-7-II. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. RANDY K. ERWIN, Appellant. |
Appeal from Clark Superior Court. Docket No: 07-1-00614-1. Judgment or order under review. Date filed: 11/30/2007. Judge signing: Honorable Robert A Lewis.
Counsel for Appellant(s), John A. Hays, Attorney at Law, 1402 Broadway St, Longview, WA, 98632-3714.
Counsel for Respondent(s), Michael C. Kinnie, Attorney at Law, 1200 Franklin St, Po Box 5000, Vancouver, WA, 98666-5000.
UNPUBLISHED OPINION
Randy Erwin appeals his unlawful possession of a controlled substance with intent to deliver conviction, claiming insufficient evidence. He also challenges the constitutionality of a community custody provision, alleging it to be overly vague. In his statement of additional grounds (SAG)1, Erwin alleges ineffective assistance of counsel and violations of protections against double jeopardy. We affirm Erwin's convictions. However, we strike the "crime-related" provision of Erwin's judgment and sentence and remand to the trial court to consider imposing a more narrowly worded provision.
On April 4, 2007, Officer Troy Rawlins pulled over Erwin for failing to signal while turning. A woman was seated in the passenger's seat. RP (11/5/07) at 12. Rawlins asked Erwin for his license, registration, and proof of insurance; Erwin provided only a driver's license. After running Erwin's name through his database, Rawlins discovered an outstanding felony warrant for his arrest. Rawlins called for a "cover officer" to assist him in arresting Erwin. 1 Report of Proceedings (RP) at 13. After the cover officer arrived, Rawlins arrested Erwin and handcuffed him, without incident.
After handcuffing Erwin, Rawlins searched him, finding a digital scale and a gold coin. Rawlins placed Erwin in the back of his patrol vehicle and searched Erwin's car. Rawlins asked the female passenger to exit the car and stand with the cover officer while he completed the search of the car. Inside the center console, Rawlins found a purple leather coin bag that contained 11 small plastic baggies filled with a white crystal substance, a small plastic measuring spoon, a short plastic straw, two small baggies containing a green leafy substance, and empty plastic bags. Between the center console and the driver's seat, Rawlins found a "hard pack" of cigarettes containing cigarettes and a small plastic bag with a white crystal-like substance inside. 1 RP at 19. Having completed the search, Rawlins returned to his patrol car, read Erwin his Miranda2 warnings, and asked him about the items he found. Erwin told Rawlins that he used the digital scale to buy gold, but he denied knowing about the other items in the car.
The State charged Erwin with one count of unlawful possession of methamphetamine with intent to deliver, one count of possession of under 40 grams of marijuana, and one count of use of drug paraphernalia. At trial, the State called five witnesses, including Rawlins. In addition to Rawlins's testimony, the jury heard the lab results from the items collected from Erwin's car, which showed that several of the bags contained methamphetamine. The lab results showed also small amounts of methamphetamine located in the crevices of the small digital scale recovered from Erwin's pocket. Lab results further concluded that the green leafy substance found in the leather bag was marijuana.
Erwin called only one witness, William Abernathy. Abernathy testified that the day before Erwin's arrest, they had driven the car from Puyallup to Vancouver, Washington. Abernathy co-owned the car with his step-daughter but had let Erwin borrow it on April 4. Abernathy testified that he had seen the woman in the passenger's seat smoking Camel cigarettes, the same brand as the hard pack located during the vehicle search. He further testified that though Erwin used to smoke, he had not seen Erwin smoke since Erwin suffered a heart attack in 2004. Abernathy also testified that there were no drugs in the car when he lent the car to Erwin on April 4.
The trial court dismissed the paraphernalia count at the close of Erwin's case, based on a defense motion. The jury convicted Erwin on the other two counts. The trial court sentenced Erwin to 90 months in prison on count I, and 90 days in jail on count II. The trial court also imposed 9-12 months' community custody on count I, including the following provision:
Defendant shall not possess or use any paraphernalia that can be used for the ingestion or processing of controlled substances or that can be used to facilitate the sale or transfer of controlled substances including scales, pagers, police scanners, and hand held electronic scheduling or data storage devices. Clerk's Papers (CP) at 69.
Erwin now appeals.
Erwin argues that the State failed to present sufficient evidence to prove beyond a reasonable doubt that he intended to deliver or sell the methamphetamine in his possession. The State disagrees, relying on baggie evidence and the methamphetamine residue discovered in the digital scale. We agree with the State.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
Under RCW 69.50.401(1), the statutory elements of possession of a controlled substance with intent to deliver are: (1) unlawful possession (2) with intent to deliver (3) a controlled substance. Here, Erwin challenges only whether the jury could have found beyond a reasonable doubt the element of intent to deliver.
It is well settled that Washington case law forbids a trier of fact to infer an intent to deliver based on "bare possession of a controlled substance, absent other facts and circumstances[.]" State v. Brown, 68 Wn. App. 480, 483, 843 P.2d 1098 (1993) (quoting State v. Harris, 14 Wn. App. 414, 418, 542 P.2d 122 (1975)). Washington courts require evidence beyond possession to infer an intent to deliver. Brown, 68 Wn. App. at 484; see also State v. Campos, 100 Wn. App. 218, 998 P.2d 893 (2000) (); State v. Hagler, 74 Wn. App. 232, 236, 872 P.2d 85 (1994) (); State v. Lane, 56 Wn. App. 286, 297-98, 786 P.2d 277 (1989) ().
In addition to the drugs, Rawlins found a measuring spoon, extra baggies, and a digital scale that had methamphetamine bits recovered from its crevices. This is more than bare possession and a jury could have easily found beyond a reasonable doubt, based on this evidence, that the drugs in Erwin's possession were not solely for his personal use. We affirm Erwin's possession with intent to deliver conviction.
Erwin argues that the community custody condition imposed by the...
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