State v. Lee

• Decision Date: 26 July 2011
• Docket Number: No. 39917–2–II.,39917–2–II.
• Citation: 162 Wash.App. 852,259 P.3d 294
• Parties: STATE of Washington, Respondent,v.Darrell Montae LEE, Appellant.
• Court: Washington Court of Appeals

162 Wash.App. 852

259 P.3d 294

STATE of Washington, Respondent,

v.Darrell Montae LEE, Appellant.

No. 39917–2–II.

Court of Appeals of Washington, Division 2.

July 26, 2011.

Sheri Lynn Arnold, Attorney at Law, Tacoma, WA, Reed ManleyBenjamin Speir, Attorney at Law, University Place, WA, for Appellant.Stephen D. Trinen, Pierce County Prosecutor's Ofc., Tacoma, WA, for Respondent.

PART PUBLISHED OPINION

WORSWICK, J.

[162 Wash.App. 853]¶ 1 A jury convicted Darrell Montae Lee of possession of methadone with intent to deliver, possession of cocaine, driving with a suspended license, two counts of bail jumping, and forgery.Lee appeals, arguing (1) the cocaine should have been suppressed under Arizona v. Gant,¹(2) there was insufficient evidence to convict him of possession of methadone with intent to deliver, (3) there was insufficient evidence to convict him of forgery, and (4) cumulative error deprived him of a fair trial.We affirm, holding that there was sufficient evidence to support the verdicts and that Lee failed to preserve the suppression issue for review.

FACTS

¶ 2 On July 10, 2008, at 2:00 am, Tacoma Police Officer Douglas Walsh stopped Lee for speeding.Officer Walsh recognized Lee and believed that Lee had a suspended driver's license.After verifying this fact, Officer Walsh arrested Lee and searched him incident to arrest, finding 12 methadone pills.Officer Walsh also found $1,295 in cash in Lee's front right pocket and $540 in counterfeit $20 bills in Lee's wallet.

¶ 3 After searching Lee's person, Office Walsh placed Lee in his patrol car.Officer Walsh then searched the interior of Lee's vehicle incident to arrest.Officer Walsh opened the sliding door covering the vehicle's sunroof and inside found a large crack cocaine rock.

¶ 4The State charged Lee with unlawful possession of methadone and cocaine with intent to deliver (counts I and II), driving with a suspended license (count III), two counts of bail jumping (counts IV and VI), and forgery (count V).On September 23, 2009, the trial court conducted a CrR 3.5 hearing to determine the admissibility of Lee's statements on arrest.Lee's trial counsel did not move to suppress any of the physical evidence against Lee.

¶ 5 Before trial, Lee moved to exclude testimony regarding the counterfeit money.The testimony was expected to show that bills with the same serial numbers as those in Lee's possession had been passed in Washington, although there was no evidence connecting such incidents to Lee.Lee argued that the prejudice of this evidence would exceed any probative value.The trial court found that the testimony was relevant, that it was “very prejudicial,” but also that it was “very probative” of “the intent to deliver, as well as ... the forgery.”2 Verbatim Report of Proceedingsat 97.

¶ 6 At trial, Officer Walsh testified about the circumstances that showed Lee's intent to deliver cocaine and methadone.Officer Walsh testified that Lee's intent was shown by (1) the size of the crack cocaine rock, which was larger than the size usually purchased for personal use; (2) the methadone on Lee's person (with no reference as to whether the amount was small enough for personal use); (3) the fact that Lee had multiple narcotics; (4) the large amount of money in Lee's possession; and (5) the lack of any drug paraphernalia.

¶ 7 Also at trial, the State called Special Agent Timothy Hunt of the United States Secret Service.Agent Hunt testified that the $540 in Lee's possession was counterfeit.Over Lee's objection, Agent Hunt testified that bills with the same serial numbers as those in Lee's possession had been passed in Washington, Arizona, and Oregon.Agent Hunt also testified, without objection by Lee, that in his personal experience, counterfeit money was often used to purchase illegal drugs.Lee testified that he had planned to use the counterfeit money to make invitations for his children's birthday party.

¶ 8The trial court gave jury instructions on unlawful possession of cocaine and methadone, instructing the jury to consider these crimes as lesser included offenses.The jury found Lee guilty of all charges except for unlawful possession of cocaine with intent to deliver, but found him guilty of the lesser included offense of unlawful possession of cocaine.

ANALYSIS

I.Suppression of Evidence

¶ 9 Lee asserts that the warrantless search of his vehicle violated the Fourth Amendment to the United States Constitution under Arizona v. Gant,556 U.S. 332, 129 S.Ct. 1710, 1723–24, 173 L.Ed.2d 485(2009).He also argues, without citing on-point state law, that the search violated article I, § 7 of the Washington Constitution.The State contends that Lee waived any objection to the validity of the search of his vehicle by failing to raise a motion to suppress at trial.In his brief, Lee did not address whether he preserved this issue for review, but at oral argument Lee argued that we should address the validity of the search for the first time on appeal under RAP 2.5(a).

¶ 10 Our Supreme Court has recently addressed issue preservation in the context of search and seizure.In State v. Robinson,171 Wash.2d 292, 306–07, 253 P.3d 84(2011), police conducted warrantless vehicle searches that were arguably illegal under Gant,129 S.Ct. at 1723, andState v. Patton,167 Wash.2d 379, 394–95, 219 P.3d 651(2009).And the trials for both defendants concluded before Gant or Patton were decided.Robinson,171 Wash.2d at 298, 300, 253 P.3d 84.Under these facts, Robinson announced a new rule:

[P]rinciples of issue preservation do not apply where the following four conditions are met: (1)a court issues a new controlling constitutional interpretation material to the defendant's case, (2) that interpretation overrules an existing controlling interpretation, (3) the new interpretation applies retroactively to the defendant, and (4)the defendant's trial was completed prior to the new interpretation.

Robinson,171 Wash.2d at 305, 253 P.3d 84.Because the facts of Robinson met all four conditions, our Supreme Court held that issue preservation was “simply not applicable” there.Robinson,171 Wash.2d at 306, 253 P.3d 84.The court thus remanded the cases on review for suppression hearings.Robinson,171 Wash.2d at 307, 253 P.3d 84.

[162 Wash.App. 857]¶ 11 Here, in contrast, Lee's trial began approximately five months after the United States Supreme Court decided Gant.Lee therefore fails the fourth prong of the Robinson test and ordinary principles of issue preservation apply.171 Wash.2d at 305, 253 P.3d 84.

¶ 12 Under RAP 2.5(a), a party may raise manifest error affecting a constitutional right for the first time on appeal.“A failure to move to suppress evidence, however, constitutes a waiver ² of the right to have it excluded.”State v. Mierz,72 Wash.App. 783, 789, 866 P.2d 65, 875 P.2d 1228(1994)(citingState v. Tarica,59 Wash.App. 368, 372–73, 798 P.2d 296(1990), overruled on other grounds byState v. McFarland,127 Wash.2d 322, 337, 899 P.2d 1251(1995)).Because Lee did not move to suppress the cocaine seized from his vehicle under Gant,he did not preserve the issue for review and we do not address it for the first time on appeal.³

¶ 13 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

******UNPUBLISHED TEXT FOLLOWS******

II.Sufficiency of Evidence—Methadone

¶ 14 Lee next argues that there was insufficient evidence to convict him of possession of methadone with intent to deliver.He claims that the State presented insufficient evidence of the intent element of this charge.We disagree.

¶ 15 In evaluating the sufficiency of the evidence, we review the evidence in the light most favorable to the State.State v. Drum,168 Wash.2d 23, 34, 225 P.3d 237(2010).“The relevant question is ‘whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt.’ ”Drum,168 Wash.2d at 34–35, 225 P.3d 237(quotingState v. Wentz,149 Wash.2d 342, 347, 68 P.3d 282(2003)).A claim of insufficient evidence admits the truth of the State's evidence and all reasonable inferences therefrom.Drum,168 Wash.2d at 35, 225 P.3d 237.

¶ 16RCW 69.50.401(1) prohibits (1) unlawful possession (2) of a controlled substance (3) with the intent to deliver.State v. O'Connor,155 Wash.App. 282, 290, 229 P.3d 880(2010).Mere possession of a controlled substance is not enough to show intent to deliver.State v. Nyegaard,154 Wash.App. 641, 648, 226 P.3d 783(2010).The State must introduce evidence of at least one other fact suggesting an intent to deliver, such as sale paraphernalia or large amounts of cash.O'Connor,155 Wash.App. at 290, 229 P.3d880.Sale paraphernalia include such items as scales, cell phones, and address lists.State v. Slighte,157 Wash.App. 618, 627 n. 13, 238 P.3d 83(2010).

¶ 17 Here, Officer Walsh testified that the size of the rock of cocaine found was greater than what would normally be purchased for personal use.He did not testify as to whether the amount of methadone found was too great for personal use.Lee argues that because the cocaine should have been excluded, and because there was no evidence about the amount of methadone, there was insufficient evidence to show his intent to deliver.But because Lee did not preserve the search of his vehicle for review, his argument that the cocaine should have been suppressed fails.

¶ 18 Even without the cocaine evidence however, there was sufficient evidence of Lee's intent to deliver.Lee possessed 12 methadone pills, $1,295 in cash, and $540 in counterfeit cash.Moreover, there was evidence at trial that counterfeit money is often used in illegal drug transactions.Although the State need show only one factor beyond possession to prove intent to...