State v. Moreno
| Decision Date | 19 April 2022 |
| Docket Number | 54218-8-II |
| Parties | STATE OF WASHINGTON, Respondent, v. TIMOTHY CHARLES MORENO, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Timothy C. Moreno appeals his convictions and sentence for unlawful possession of a controlled substance, heroin, with intent to deliver and unlawful possession of a controlled substance methamphetamine, with intent to deliver. He argues that (1) the evidence was insufficient to sustain his convictions, (2) the trial court erred by denying suppression of physical evidence resulting from a search warrant, (3) the trial court erred by giving an accomplice liability jury instruction, (4) the trial court erred by allowing the jury to hear prejudicial evidence of a child being in the car where the crimes occurred, and (5) he should be resentenced without consideration of his prior drug possession convictions. Moreno also argues in a statement of additional grounds (SAG)[1] that he received ineffective assistance of counsel and the prosecutor committed misconduct.
Except for Moreno's argument that he should be resentenced without consideration of his prior drug possession convictions, Moreno's arguments are unpersuasive. Also Moreno's SAG claims fail. Accordingly, we affirm Moreno's convictions, reverse Moreno's sentence, and remand to the trial court for resentencing consistent with State v. Blake.[2]
After receiving a tip about a drug deal from a confidential informant (CI), Sergeant Chris Packard of the Thurston County Sheriff's Office observed Moreno and another man, Jimmy Castilla-Whitehawk, sitting in a Mini Cooper in a retail store parking lot. Sergeant Packard eventually approached the car with another officer, detained Moreno and Castilla-Whitehawk, and applied for a search warrant for the Mini Cooper.
Sergeant Packard applied telephonically for a search warrant. During the call with the magistrate, the magistrate asked about probable cause, and Sergeant Packard noted that the CI had been a reliable informant in past investigations. Sergeant Packard said that the CI told him Moreno was a drug dealer but that the CI "did not . . . ever purchase or I should say recently has not purchased . . . any narcotics from Mr Moreno, but . . . [Moreno]'s offered narcotics to [the CI] on several different occasions." Clerk's Papers (CP) at 186. Sergeant Packard also said that the CI told him that they were "taking Moreno to the [retail store]" to meet up with Castilla-Whitehawk, and "the plan was for Mr. Moreno to purchase . . . a few ounces of believed heroin from Whitehawk." CP at 186. The magistrate found probable cause and issued the requested search warrant for the Mini Cooper.
In the search of the Mini Cooper, law enforcement found methamphetamine and heroin in a bag under the driver's seat where Moreno was sitting. Additionally, law enforcement found a digital scale with residue on it on the driver's side floorboard where Moreno was sitting. Law enforcement also found methamphetamine, heroin, and Alprazolam pills in a bag under the front passenger seat, along with $1, 620 in a fanny pack that was taken from Castilla-Whitehawk.
The State charged Moreno with one count of unlawful possession of a controlled substance, heroin, with intent to deliver and one count of unlawful possession of a controlled substance, methamphetamine, with intent to deliver. The State jointly tried Moreno and Castilla-Whitehawk as co-defendants.
Prior to trial, Moreno sought to exclude evidence resulting from the search warrant, arguing that the affidavit supporting the warrant did not show the basis of knowledge for the informant's tip. CP 23-24, 195; 2 PDF 27. The trial court denied the suppression motion, ruling:
Additionally, I'm going to note that I believe that Aguilar Spinelli has been satisfied as the basis of knowledge because I believe the court may take the reasonable common sense inferences from what has been stated, and it is clear from the record that it was Mr. Moreno giving [the CI] that information.
1 Verbatim Report of Proceedings (VRP) (Sept. 16, 2019) at 119.
Moreno sought to exclude any reference to a child sitting in the backseat of the car when Moreno and Castilla-Whitehawk were detained. The State argued that the age of the person in the backseat was relevant because their age made it "unlikely that that person would be in possession of those types of drugs." 1 VRP (Sept. 16, 2019) at 122. The trial court agreed with the State but ruled that any references to age would be very limited, and they could have later discussions about the issue if necessary.
Moreno again raised the issue before witness testimony, arguing that the child's presence was irrelevant and "highly prejudicial." 2 VRP (Sept. 17, 2019) at 262. The State argued that they were not seeking to admit evidence of the child's presence to show that the defendants were dangerous, but "[t]he fact of where people were seated and how many people were in the vehicle is a fact of this case" and showed "what was occurring was occurring between [the defendants] and not someone else." 2 VRP (Sept. 17, 2019) at 260-61. The trial court agreed with the State, ruling:
While there is some prejudice to the defense concerning this evidence, it is the State's burden to establish possession, and the natural question the jury would ask when hearing about the car is who else was in the car? The State is entitled to present its case to satisfy its sole burden of establishing the guilt beyond a reasonable doubt, and it has to be as to all elements. And so even if the defense does not raise the argument that there was someone else in the car, their identity and such, that is something that I would expect and in fact hope a jury would be wondering about when determining whether or not the State has met its burden.
2 VRP (Sept. 17, 2019) at 262-63. The court also ruled "that the State is not to go on at any more length than what is necessary" to show that the drugs did not likely belong to the person in the backseat. 2 VRP (Sept. 17, 2019) at 262. The trial court further ruled that the jury would be given a limiting instruction, instructing the jury that it could consider the evidence about the child only for the issue of possession. The limiting instruction read:
Certain evidence has been admitted in this case for only a limited purpose. This evidence consists of the fact that a child was located in the back of the Mini Cooper and may be considered by you only for the purpose of deciding whether a defendant possessed a controlled substance. You may not consider it for any other purpose. Any discussion of the evidence during your deliberations must be consistent with this limitation.
Sergeant Packard testified that, when he approached the Mini Cooper, he observed Moreno sitting in the driver's seat and reaching under the seat. When he witnessed this movement, Sergeant Packard was concerned that Moreno was either reaching for a firearm or stashing narcotics. Another police officer who approached the vehicle testified that Castilla-Whitehawk had a fanny pack that was only halfway closed, and he could see a plastic baggy through the half open zipper, which he recognized as being packaging materials for narcotics.
Sergeant Packard also testified that when officers searched the car, they found $1, 620 in the fanny pack that had been taken from Castilla-Whitehawk. Moreno had $66 on his person, and Castilla-Whitehawk had $100 on his person. Officers also found an operable digital scale with residue on it on the driver's side floorboard, and, in Sergeant Packard's experience, digital scales are used to weigh narcotics in the drug trade. There were approximately two ounces of methamphetamine and packaging in a bag on the driver's floorboard, and there were eight individually packaged bags of heroin, altogether weighing one ounce, in a bag on the floorboard of the driver's seat. The methamphetamine and heroin found in the bag under Moreno's seat were worth about $2, 000. Officers also found approximately three ounces of methamphetamine, one ounce of heroin, and Alprazolam under the passenger seat where Castilla-Whitehawk had been sitting.
Sergeant Packard further testified that, from his experience, purchasing an ounce of heroin or methamphetamine is more consistent with someone who is dealing drugs than purchasing for personal use. Possession of small plastic baggies can indicate that someone deals narcotics. Another police officer also testified that, in his experience, he would not expect a street level user to possess ounces of methamphetamine or heroin "unless they're an entrepreneur and they're selling drugs." 3 VRP (Sept. 18, 2019) at 493.
During the trial, three separate police officers testified that officers removed a child from the backseat of the Mini Cooper.
The State requested a jury instruction on accomplice liability, and Moreno objected because the information did not charge accomplice liability. The trial court gave the following accomplice liability instruction to the jury:
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