Opinion
No. 37097-2-II.
April 7, 2009.
Appeal from a judgment of the Superior Court for Mason County, No. 07-1-00342-8, Toni A. Sheldon, J., entered November 26, 2007.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Penoyar, A.C.J., and Bridgewater, J.
A jury found Mary L. Balaski guilty of unlawful possession of a controlled substance — methamphetamine. Balaski appeals her conviction and sentence, arguing that (1) the trial court erred in not taking the case from the jury because Balaski produced sufficient evidence that her possession was unwitting and (2) the trial court erred in calculating Balaski's offender score. Because substantial evidence supports the jury's finding that Balaski's possession of a bag of methamphetamine found on the top of her refrigerator was not unwitting and her offender score was properly calculated at a three, we affirm.
FACTS
Background Facts
On July 11, 2007, law enforcement officers entered a property located in Mason County, Washington, to determine if individuals had vacated the property pursuant to an order for non-occupancy of residence. Officers contacted Balaski and her boyfriend, Steven M. Banks, near a trailer that was parked on the property. Balaski told officers that the trailer belonged to her and Banks. Officers searched the trailer and discovered a small plastic bag containing methamphetamine on top of the refrigerator.
Balaski told officers that she would take full responsibility for the methamphetamine. After being advised of her Miranda rights, Balaski explained that she had discovered the bag outside her trailer and, recognizing the bag to be drug paraphernalia of some sort, had taken it inside her trailer so kids would not discover it. On July 16, 2007, Mason County charged Balaski with unlawful possession of a controlled substance — methamphetamine. Procedural Facts On October 18, 2007, Balaski's jury trial began and, on October 19, 2007, the jury returned a verdict of guilty on the charge of unlawful possession of a controlled substance. At her November 26, 2007 sentencing hearing, the sentencing judge calculated Balaski's offender score at three for two prior convictions out of the Mason County Superior Court, unlawful possession of methamphetamine and attempt to elude a pursuing police vehicle, and for committing the current offense while on community custody. Balaski's trial counsel did not object to Balaski's offender score calculation. The trial court sentenced Balaski within the standard range for a level I offense with an offender score of three. Balaski timely appeals her conviction and sentence.
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
ANALYSIS
Sufficiency of the Evidence
Balaski first argues that her conviction should be reversed because the trial court erred when it failed to enter a directed verdict after Balaski produced sufficient evidence to show that her possession of methamphetamine was unwitting. We disagree.
The record below does not show that Balaski requested a directed verdict. Accordingly, we treat Balaski's argument as a challenge to the sufficiency of the evidence. In determining whether sufficient evidence supports the jury's verdict finding her guilty of unlawful possession of methamphetamine, "[t]he standard of review is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt." State v. Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134 (1990) (citing State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980)). Balaski's claim of insufficiency admits the truth of the State's evidence and all reasonable inferences drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally reliable for purposes of drawing inferences. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Even if Balaski moved for a directed verdict below, a challenge to a trial court's denial of a motion for a directed verdict becomes a sufficiency of the evidence challenge on appeal because this court looks at the whole record to determine if sufficient evidence supports a conviction. State v. Jackson, 82 Wn. App. 594, 608, 918 P.2d 945 (1996) ("Regardless of when a court is asked to examine the sufficiency of the evidence, it will do so using the best factual basis then available."), review denied, 131 Wn.2d 1006 (1997).
To convict Balaski of unlawful possession of a controlled substance, the State had to prove that Balaski (1) unlawfully possessed (2) a controlled substance. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). Possession can be actual or constructive. Staley, 123 Wn.2d at 798. A defendant has constructive possession over an object when he or she has dominion or control over the object or the place where the object was found. Staley, 123 Wn.2d at 798. Dominion and control need not be exclusive and can be established by circumstantial evidence. State v. Weiss, 73 Wn.2d 372, 375, 438 P.2d 610 (1968); State v. Wood, 45 Wn. App. 299, 312, 725 P.2d 435, review denied, 107 Wn.2d 1017 (1986).
Here, Balaski admitted that she found a plastic bag that she believed contained methamphetamine and that she placed it inside her trailer. This is sufficient evidence for a jury to find that Balaski possessed the bag later found to contain a controlled substance. See State v. Chakos, 74 Wn.2d 154, 443 P.2d 815 (1968) (sufficient evidence of constructive possession where controlled substance found in nearly every room of residence that defendant rented, although she did sublet rooms to other tenants), cert. denied, 393 U.S. 1090 (1969); Weiss, 73 Wn.2d 372 (sufficient evidence of constructive possession where controlled substance found in residence that defendant shared with others).
Although Balaski admits that she possessed the bag containing an illegal drug, she argues that her possession was unwitting. Unwitting possession is an affirmative defense to the charge of unlawful possession of a controlled substance. See Staley, 123 Wn.2d at 799 ("Once the State establishes prima facie evidence of possession, the defendant may . . . affirmatively assert that [her] possession of the drug was `unwitting.'") (citing State v. Morris, 70 Wn.2d 27, 34, 422 P.2d 27 (1966)). A defendant may establish the defense of unwitting possession by showing (1) that she did not know she was in possession of the controlled substance or (2) that she did not know the nature of the substance possessed. City of Kennewick v. Day, 142 Wn.2d 1, 11, 11 P.3d 304 (2000) (citing Staley, 123 Wn.2d at 799; State v. Cleppe, 96 Wn.2d 373, 381, 635 P.2d 435 (1981), cert. denied, 456 U.S. 1006 (1982)).
Here, Balaski admitted that she recognized the bag as some sort of drug paraphernalia but testified that she did not know that there was any substance in the bag. "`Generally, an instruction can be given to the jury if evidence exists to support the theory upon which the instruction is based.'" State v. Buford, 93 Wn. App. 149, 151, 967 P.2d 548 (1998) (quoting State v. Trujillo, 75 Wn. App. 913, 917, 883 P.2d 329 (1994), review denied, 126 Wn.2d 1008 (1995)). While this evidence is sufficient evidence to warrant instructing the jury on the law regarding unwitting possession, it is the jury's duty to determine the credibility of Balaski's testimony. To establish the defense of unwitting possession, the defendant must prove, by a preponderance of the credible evidence, that her possession of the unlawful substance was unwitting. State v. Balzer, 91 Wn. App. 44, 67, 954 P.2d 931, review denied, 136 Wn.2d 1022 (1998).
Here, the jury heard Balaski's testimony that she did not know that the bag contained methamphetamine and the trial court properly instructed the jury on the defense of unwitting possession. But the jury apparently did not believe her. Balaski is essentially asking us to re-examine her credibility and re-weigh the evidence, but the jury is the sole judge of the credibility of witnesses and persuasiveness of the evidence. Our review of the record reveals sufficient evidence supporting the jury's verdict finding Balaski guilty of unlawful possession of a controlled substance. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992). Offender Score
Next, Balaski asserts that the Mason County Superior Court judge erred by including two prior Mason County convictions in calculating her offender score without proper documentation. Balaski did not object to the court considering these convictions at the sentencing hearing. Nevertheless, she now asserts that, under our Supreme Court's decision in State v. Ford, 137 Wn.2d 472, 973 P.2d 452 (1999), the State was required to produce documentation of her convictions prior to sentencing. We disagree.
We review a sentencing court's calculation of an offender score de novo. State v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007). "[I]llegal or erroneous sentences may be challenged for the first time on appeal." Ford, 137 Wn.2d at 477.
There are two approaches to analyzing the issue of when an appellant challenges an offender score on appeal for insufficient evidence of prior convictions and the defense did not specifically object before the trial court imposed sentence. Bergstrom, 162 Wn.2d at 93-95. First, if the State alleges the existence of a prior conviction and the defense fails to "specifically object" before imposition of the sentence, then the case is remanded for resentencing and the State is permitted to introduce new evidence. Bergstrom, 162 Wn.2d at 93 (citing State v. Lopez, 147 Wn.2d 515, 520, 55 P.3d 609 (2002)). Second, if the State alleges the existence of prior convictions and the defense not only fails to specifically object, but also agrees with the State's description of her criminal history, then the defendant waives the right to challenge the criminal history after the trial court imposes the sentence. Bergstrom, 162 Wn.2d at 94 (citing In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002)). Sentencing courts may rely on defense acknowledgement of prior convictions without further proof. Former RCW 9.94A.530(2) (2005). Therefore, if Balaski's failure to object to the court's calculation of her offender score at sentencing constitutes "acknowledgement," then she has waived her right to challenge her criminal history on appeal.
Former RCW 9.94.530(2) states:
In determining any sentence other than a sentence above the standard range, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to RCW 9.94A.537. Acknowledgement includes not objecting to information stated in the presentence reports. Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point. The facts shall be deemed proved at the hearing by a preponderance of the evidence, except as otherwise specified in RCW 9.94A.537.
Balaski argues that, under our Supreme Court's holding in Ford, a defendant does not acknowledge the correctness of an offender score simply by failing to object at sentencing. 137 Wn.2d 472. But Balaski's reliance on Ford is misplaced. In Ford, a defendant's criminal history included prior out-of-state convictions and a "bare assertion" by the State that the defendant's prior out-of-state convictions would be classified as felonies under Washington law. 137 Wn.2d at 482. Thus, Ford dealt purely with the issue of the classification of prior convictions and held that a defendant did not "acknowledge" the State's position regarding the classification of prior out-of-state convictions by failing to object at sentencing. 137 Wn.2d at 482-83. But Ford also noted that failing to challenge facts and information introduced at sentencing is an "acknowledgement" that the trial court may rely on in sentencing. 137 Wn.2d at 482-83. Subsequent cases support this limited application of the Ford decision. See State v. Nitsch, 100 Wn. App. 512, 520, 997 P.2d 1000 ("This is not an allegation of pure calculation error, as in Ford. . . . Rather, it is a failure to identify a factual dispute for the court's resolution and a failure to request an exercise of the court's discretion."), review denied, 141 Wn.2d 1030 (2000); State v. J.A.B., 98 Wn. App. 662, 667, 991 P.2d 98 ("Unlike Ford, here there is no suggestion that the offenses were committed outside the state. Consequently, there is no need to establish the elements of the crimes, which in any event are easily discernible by reference to Washington statutes."), review denied, 141 Wn.2d 1020 (2000).
It should be noted that, in reaching its decision, the Ford court relied on the statutory language under former RCW 9.94A.370(2) (1996) ("`In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing. Acknowledgement includes not objecting to information stated in the presentence reports.'"). 137 Wn.2d at 483 (quoting former RCW 9.94A.370(2) (recodified as RCW 9.94A.530 by Laws of 2001, ch. 10, § 6)). The language under former RCW 9.94A.370(2) does not significantly differ from the sentencing statute applicable to Balaski. Compare former RCW 9.94A.370(2) with former RCW 9.94A.530(2).
Here, unlike Ford, we are dealing with an unchallenged factual assertion by the State that Balaski had been convicted of two prior offenses committed in the State of Washington and, perhaps more importantly, in the Mason County Superior Court that was now sentencing her. By not objecting to the calculation of her offender score or requiring that the State prove the existence of her prior convictions, Balaski "acknowledged" the correctness of her prior criminal history.
At no time has Balaski claimed that these prior convictions do not exist or that her offender score has been miscalculated. She argues only that the State was required to produce certified copies of the judgment and sentence documents pertaining to her acknowledged prior criminal convictions. Moreover, she argues that the law requires that we remand the matter to the Mason County Superior Court with direction that the State be limited to the existing record at resentencing and precluded from producing these documents. The closing of the record remedy applies only when a defendant has preserved this issue by timely and specifically objecting to the use of alleged prior convictions and putting the State to its burden of proof and alerting the sentencing court to the issue. See Bergstrom, 162 Wn.2d at 93 ("if the defense does specifically object during the sentencing hearing but the State fails to produce any evidence of the defendant's prior convictions, then the State may not present new evidence at resentencing").
In State v. Mendoza, 139 Wn. App. 693, 701-02, 162 P.3d 439 (2007), review granted, 163 Wn.2d 1017 (2008), we held that a failure to object does not waive legal errors leading to the sentencing court's imposition of an excessive sentence. But here, Balaski does not raise a legal challenge to her sentence nor has she demonstrated that the sentence imposed is unlawful or excessive. She does not claim that her offender score was miscalculated nor does she assert that she does not have two prior Mason County felony convictions. She claims only that the trial court erred when it correctly calculated her standard sentence range based on an undisputed offender score of three without requiring the State to present certified copies of that court's prior judgments. And that, as a result, she is entitled to be resentenced based on an erroneous offender score of zero.
Balaski does not deny that she has twice been convicted of the alleged offenses in the same court and absent this, she will not receive meaningful relief if we remanded this case to the trial court for entry of certified copies of the court's prior judgments and resentencing. Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and PENOYAR, A.C.J., concur.