State v. Villarreal

• Decision Date: 02 April 2013
• Docket Number: 42315-4-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. JESUS M. VILLARREAL, Appellant.

STATE OF WASHINGTON, Respondent, v. JESUS M. VILLARREAL, Appellant.

No. 42315-4-II

Court of Appeals of Washington, Division 2

April 2, 2013

UNPUBLISHED OPINION

BRIDGEWATER, J.P.T. ^[1]

Jesus Villarreal appeals his conviction for unlawful possession of methamphetamine with intent to deliver within 1, 000 feet of a school. We hold that, at a suppression hearing, the trial court did not abuse its discretion in admitting hearsay testimony and did not violate Villarreal's right to confront witnesses. The trial court did not err in denying Villarreal's motion to suppress evidence because his investigatory detention under Terry^[2] and the subsequent search of his bag were lawful because he took the bag from a truck parked at a known drug house, acted suspiciously by dropping it when he noticed an approaching police officer, and consented to the bag's search. We also hold that the trial court did not abuse its discretion in admitting expert testimony on methamphetamine distribution and usage. Further, sufficient evidence supported Villarreal's conviction because he actually held the bag with the methamphetamine, had a large amount of money with him, and abandoned the bag with the drugs upon seeing the police. The prosecutor did not commit misconduct during closing by inviting the jury to make rational inferences from the evidence. Finally, Villarreal insufficiently briefed his unspecified "constitutional" challenge to RCW 69.50.435(l)(d), the school grounds sentence enhancement statute; although we could refuse to consider it, we deem his argument to be one of equal protection that fails. Accordingly, we affirm his conviction and sentence.

FACTS

I. Suppression Hearing

After Villarreal's May 25, 2010 arrest, the State charged him with unlawful possession of methamphetamine with intent to deliver, plus a school grounds aggravating factor. Villarreal moved before trial to suppress evidence obtained subsequent to his detention by law enforcement officers.

Kelso Police Department Sergeant Kevin Tate testified at the suppression hearing. According to Tate, on May 25, 2010, at approximately 9:00 or 10:00 PM, the Cowlitz-Wahkiakum^-Task Force conducted acontrolled buy of methamphetamine at the 99 Home Court residence of Victoria Ortega-Berrara. Afterward, Tate returned to the Kelso Police Department to author search warrant affidavits. Other law enforcement officers kept the residence under surveillance until Tate could obtain a warrant.

Tate testified that, at some point between 10:00 PM and 1:00 AM surveillance officers informed him that someone who "looked like a male" had "left the house " accessed a truck in the residence's driveway removed an object from the truck, and began walking away. Report of Proceedings (RP) at 6-8. Based on concerns that anyone leaving the residence might remove evidence related to the investigation, flee, or compromise the investigation by discovering surveillance, Tate "directed that someone" contact Villarreal. RP at 5-9.

According to Longview Police Department Detective Kevin Sawyer, Tate directed him around midnight to contact the individual. Sawyer knew of the ongoing investigation, and his understanding was that surveillance units had seen someone "leav[e] the residence" and retrieve a "bag or an item" from a vehicle in the driveway. RP at 13, 17-18. Surveillance units maintained visual contact with Villarreal and guided Sawyer to his location a "couple hundred yards" or about "two blocks" away from the residence. RP at 17, 25. Sawyer's patrol car was an unmarked, "white Crown Vic, " but was "obviously" recognizable as a "police car" because of its antennas, "push bumper, " and spotlight. RP at 14-15. As Sawyer approached in his patrol car, Villarreal looked back directly at Sawyer, made eye contact with him, immediately set a "computer bag" down behind a dumpster, and continued walking away. RP at 14.

Suspecting that either Villarreal was removing evidence related to the investigation from the residence or had stolen the bag, Sawyer activated his patrol car's emergency lights and contacted him. Villarreal continued walking away, so Sawyer exited his vehicle, identified himself, ordered Villarreal to stop, and asked about Villarreal's activities and the bag. After initially stating that he was doing "nothing" and did not know what bag Sawyer was asking about, Villarreal admitted that the bag belonged to him. RP at 18-19. Sawyer asked Villarreal whether anything in the bag could identify him as its owner; Villarreal said, "Yes, " and told Sawyer he could search the bag. RP at 18-19. Sawyer informed Villarreal that he did not have to consent to the bag's search and again asked to search the bag, to which Villarreal consented.

Inside the bag, Sawyer discovered three plastic baggies containing 12.9 grams, 20 grams, and 1.4 grams of methamphetamine. Sawyer then read Villarreal his Miranda^[3] rights; Villarreal waived his rights and stated that he was a drug user, the drugs in the bag belonged to him, and the drugs were for his personal use.

According to Villarreal's friend, Holly West, Villarreal came to her house at 2:00 AM to "catch up" and asked whether she wanted to walk down the street to pick up his bag. RP at 28-30. They walked to a residence, Villarreal retrieved his bag from the truck, and he knocked on the residence's door, but did not enter.

The trial court denied Villarreal's suppression motion. The trial court orally found that it was "not clear" whether Villarreal had left the residence itself or just its driveway and that he had left the residence "somewhere between midnight and two in the morning." RP at 58. Nonetheless, it found that he had retrieved the bag from a vehicle in the driveway of a residence where a "large drug transaction" had occurred "[w]ith in a couple of hours." RP at 58. The trial court orally concluded that these facts justified Villarreal's investigative detention and that Villarreal consented to Sawyer's search of his bag.

After both parties filed their briefing in this case, we remanded to the trial court for entry of written findings of fact and conclusions of law and allowed the parties to submit additional briefing. The trial court entered the following findings of fact:

1. The incident occurred on May 25th, 2010 in the City of Kelso, Cowlitz County, State of Washington.

2. On May 24th, 2010, between 9pm and 10pm, the Cowlitz-Wahkiakum Narcotics Task Force conducted a controlled-buy operation involving a large amount of methamphetamine from Victoria Ortega-Barrera at 99 Home Court, Kelso, Washington.

3. The Task Force left detectives in surveillance at the 99 Home Court address while Detective Sgt. Kevin Tate went to draft a search warrant for that residence, as well as another involved residence.

4. Sometime between midnight and two am, surveillance detectives at 99 Home Court observed a male enter a truck parked in the driveway of the residence, retrieve a bag of some sort, then leave the area.

5. Detective Kevin Sawyer of the Longview Police Street Crimes Unit was detailed to stop and question the person that had entered the truck. Surveillance units kept constant visual contact of the person and guided Detective Sawyer to his location.

6. The person in question was later identified as Jesus VILLARREAL.

7. Detective Sawyer observed VILLARREAL look up and make eye contact with him as he approached in his unmarked white Crown Victoria. Detective Sawyer observed VILLARREAL place, seemingly in response to the eye contact, a black bag behind a garbage can on the sidewalk where he was standing.

8. Detective Sawyer contacted VILLARREAL, who was standing with a female unrelated to the investigation. He asked him what was "going on, " and VILLARREAL said, "nothing;" When Sawyer asked about the bag, VILLARREAL replied that he did not know anything about the bag. Sawyer asked him again about it and whether the bag was his or stolen. VILLARREAL admitted the bag was his and that he had set the bag down. He also admitted that there were things in the bag that would identify him and told Sawyer that he could check it if he wanted. Sawyer picked up the bag and asked VILLARREAL again if it was okay to search it and told him that he had a right to refuse.

9. Detective Sawyer searched the bag and found approximately 34 grams of methamphetamine.

Supp. Clerk's Papers (Supp. CP) at. 1-2. The trial court entered the following conclusions of law:

1. There was sufficient evidence of criminal activity to support a limited Terry detention of VILLARREAL, based on the prior large drug transaction at 99 Home Court, the time of day that VILLARREAL was seen entering the vehicle in the driveway there, and the behavior of attempting to hide the bag he took from 99 Home Court when he spotted Detective Sawyer.

2. VILLARREAL knowingly and intelligently consented to the search of the bag and the circumstances surrounding that consent were not coercive.

Supp. CP at 2.

II. Trial

At trial, Department of Corrections Officer Dustin Pratt testified about being part of the surveillance unit for Ortega-Berrara's residence on May 25, and observing Villarreal "[going] up to the residence, " removing a bag from a vehicle, and walking away. RP at 79-82. According to Pratt, Villarreal was observed by surveillance officers after leaving the residence until he was contacted by a patrol car.

Sawyer testified consistent with his suppression hearing testimony. In addition, he testified that he discovered a police scanner in Villarreal's bag and $1, 750 in cash on Villarreal's person, but did not discover any packaging materials, scales, transaction ledgers, or customer lists. According to Sawyer, a normal, single usage amount of methamphetamine was 0.2 grams; the typical amount of...