Opinion
40450-8-II
02-07-2012
STATE OF WASHINGTON, Respondent, v. JASON ROSS BURNS, Appellant.
UNPUBLISHED OPINION
QUINN-BRINTNALL, J.
A jury found Jason R. Burns guilty of one count of selling a controlled substance, in violation of RCW 69.50.410(1), and entered a unanimous special verdict finding that Burns delivered a controlled substance within 1, 000 feet of a designated school bus stop, in violation of RCW 69.50.435. On appeal, Burns challenges the special verdict and sentencing enhancement, arguing that the trial court's special verdict instructions improperly relieved the State of its burden of proof. In his statement of additional grounds (SAG), Burns appeals his conviction for sale of a controlled substance, alleging that (1) the trial court lacked jurisdiction, (2) the State committed a Brady violation, (3) the government committed misconduct under CrR 8.3, and (4) the evidence is insufficient. Because we have twice determined that a defendant may not raise the special jury instruction at issue for the first time on appeal, we do not address the merits of Burns's assignment of error related to the special verdict instruction. His remaining SAG issues lack merit and we affirm.
RAP 10.10.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
FACTS
Background
Brad Lampman, a heroin addict, agreed to work as a police informant in exchange for dismissal of his driving while license suspended charges. Lampman began working with Detective Duane Dobbins of the Kitsap County Sheriff's Office. Dobbins was assigned to the West Sound Narcotics Enforcement Team (WestNET).
During his time as an informant, Lampman performed two controlled buys for Detective Dobbins and attempted a third. Both times Lampman bought drugs from Burns. The first controlled buy occurred on July 17, 2009. After arranging to buy a half ounce of heroin from Burns, Lampman met with Dobbins in the parking lot of a Fred Meyer. Lampman then went to Burns's residence where he bought a half ounce of heroin from Burns using $260 of prerecorded WestNET funds. Lampman immediately returned to the Fred Meyer's parking lot, where he turned over 11.1 grams of black tar heroin to Dobbins.
A controlled buy is a police operation where an informant, and any vehicle being used, is searched before a scheduled drug purchase to ensure that the informant does not have any drugs, weapons, or personal money available for use. The informant receives prerecorded or otherwise traceable money from the police, purchases drugs while under police surveillance, and then turns the drugs and any money over to the police. The informant and any vehicle used are immediately searched again after the drug purchase.
A half ounce of heroin weighs approximately fourteen grams, but Lampman testified that Burns took a two-gram "tax" from the heroin he sold to Lampman so the total weight of the heroin Lampman turned over to police, in both buys, was lighter than a traditional half ounce.
On August 10, 2009, Lampman performed his second controlled buy for Detective Dobbins. On this occasion, Burns did not have the heroin with him, so he told Lampman that they would have to travel to another dealer in order to buy the half ounce. Dobbins approved this and provided Lampman with $260 in prerecorded WestNET funds in order to make the purchase from the second supplier. Lampman was fitted with a covert camera. Lampman then proceeded to Burns's house, picked him up, and drove to the home of Burns's supplier. Lampman gave Burns the $260 and Burns went into the house and returned with black tar heroin. Lampman and Burns returned to Burns's house, where Lampman weighed the heroin and cut off Burns's "tax." Lampman then returned to the Fred Meyer parking lot and turned the remainder of the heroin, 12.7 grams, over to Dobbins.
After the second controlled buy, Detective Dobbins applied for a search warrant for Burns's house in Tacoma. Kitsap County Superior Court issued the search warrant. Dobbins and several other members of WestNET served the search warrant on Burns's house. During the search, the detectives recovered a digital scale. Dobbins advised Burns of his Miranda rights and Burns agreed to talk to him. Burns admitted that he sold heroin in order to finance his drug habit and pay the bills.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Procedure
On August 18, 2009, the State charged Burns with two counts of delivery of a controlled substance in violation of RCW 69.50.401(1)(2)(a). The State later amended the information, instead charging Burns with two counts of the more serious offense of unlawful sale of a controlled substance in violation of RCW 69.50.410(1). On February 11, 2010, the trial court addressed a motion by Burns to proceed pro se. After lengthy colloquy, the trial court granted Burns's motion to proceed pro se and appointed Burns's public defender as standby counsel. Following this, Burns moved to dismiss the case, arguing that the Pierce County Superior Court lost jurisdiction when the Kitsap County Superior Court issued the search warrant. The trial court denied the motion. At another pretrial hearing on February 17, the morning of trial, Burns made a motion to dismiss for prosecutorial misconduct. The trial court denied the motion. Burns also requested that the State provide him with the arrest report from Lampman's driving while license suspended charge. The trial court decided to move forward with trial while the attorneys attempted to obtain the report.
The amended information also charged Burns with unlawful possession of an imitation controlled substance with intent to distribute contrary to RCW 69.52.030(1), unlawful possession of a controlled substance (40 grams or less of marijuana) in violation of RCW 69.50.4014, and unlawful possession of a controlled substance (oxycodone) contrary to RCW 69.50.4013. The trial court dismissed the oxycodone possession charge as untimely. After the trial court ruled at a CrR 3.6 hearing that the search of Burns's home was illegal, the State dropped the imitation controlled substance and marijuana charges. Toward the end of the trial, the court ruled that Burns opened the door to testimony about evidence seized during execution of the search warrant. Accordingly, the State presented evidence that police seized a digital scale at Burns's home. At a separate pretrial CrR 3.5 hearing, the court ruled that Burns's incriminating statements to Detective Dobbins were admissible. Burns does not assign error to any of the trial court's admissibility rulings.
That afternoon, the parties presented opening statements. Lampman testified about the controlled buys that he performed for Detective Dobbins and he testified about the driving while license suspended arrest that led to him working as an informant for WestNET. Dobbins testified about the controlled buys performed by Lampman and he testified to the statements Burns made at the time of his arrest. Maude Kelleher, the lead routing specialist with the Tacoma School District, testified that there was an elementary school, a middle school, and a high school bus stop all within 1, 000 feet of Burns's residence. The State rested its case. Burns rested his case without testifying or presenting any witnesses.
Burns did not object to the reasonable doubt language in jury instruction 12. The jury instruction on the school zone enhancement, jury instruction 12, read,
There was a discussion regarding jury instruction 12 but only whether the jury instruction should also contain the affirmative defense language. The affirmative defense language was not included in the instruction. Burns does not challenge the instruction on that basis.
If you find the defendant guilty on counts I or II, it will then be your duty to determine whether the defendant committed the crime or crimes within one thousand feet of a school or school bus route stop as designated by a school district. You will be furnished with special verdict forms for this purpose and shall fill in the blank with the answer "yes" or "no" according to the decision you reach. Because this is a criminal case, all twelve of you must agree in order to answer the special verdict form. In order to answer the special verdict form "yes", you must unanimously be satisfied beyond a reasonable doubt that "yes" is the correct answer. If you unanimously have a reasonable doubt as to this question, you must answer "no".Clerk's Papers (CP) at 200.
The jury found Burns guilty on count I and not guilty on count II. The jury answered "yes" on the special verdict form for count I. At sentencing, Burns made a motion to arrest judgment on the verdict because of insufficient evidence. The court denied the motion. The trial court imposed 96 months on count I and an additional 24 months for the school zone sentencing enhancement, for a total of 120 months confinement. Burns timely appeals his conviction.
DISCUSSION
Manifest Error Affecting a Constitutional Right
Burns alleges that jury instruction 12 improperly relieved the State of its burden to prove the school zone enhancement beyond a reasonable doubt because it does not explicitly state that the State has the burden of proof. In addition, Burns argues that the trial court was obligated to issue a separate instruction to the jury which explicitly stated that the State bears the burden of proof for sentencing enhancements, as well as all elements of the crime charged. However, Burns did not object to this jury instruction at trial. Generally, an appellant may not raise an issue for the first time on appeal unless it involves a "manifest error affecting a constitutional right." RAP 2.5(a)(3). We have twice determined that the unanimity language in the special verdict instruction at issue in this case does not involve a "manifest error affecting a constitutional right" and a defendant's failure to object to the instruction leaves any error unpreserved. See State v. Grimes, No. 40392-7-II, 2011 WL 6018399 (Wash.Ct.App. Dec. 2, 2011); State v. Bertrand, No. 40403-6-II, 2011 WL 6097718 (Wash.Ct.App. Dec. 8, 2011). Accordingly, Burns has failed to preserve this issue and we will not address it for the first time on appeal.
Trial Court's Jurisdiction
In his SAG, Burns alleges that the trial court did not have jurisdiction over his case because the Kitsap County Superior Court had already asserted jurisdiction over the case by issuing the search warrant. Further, Burns alleges that his right to be free from double jeopardy was violated because the search warrant in Kitsap County commenced the criminal case against him. Because the issuance of a search warrant does not commence a criminal case, Burns's claim fails.
A criminal action is commenced either by (1) filing of an information by the prosecutor in the superior court, (2) grand jury indictment, (3) inquest proceedings, or (4) filing of a criminal complaint before a magistrate. State v. Koch, 38 Wn.App. 457, 459, 685 P.2d 656 (1984) (quoting State v. Jefferson, 79 Wn.2d 345, 347, 485 P.2d 77 (1971)). A search warrant does not commence a criminal case for purposes of double jeopardy. Moreover, a search warrant can be issued by a court that does not and would not have jurisdiction over the criminal case if filed. State v. Goss, 78 Wn.App. 58, 61, 895 P.2d 861 (1995). There was nothing improper in Pierce County Superior Court asserting jurisdiction over a case after Kitsap County Superior Court issued a search warrant in an effort to obtain evidence related to the matter.
Burns argues that under the double jeopardy rule articulated in State v. Womac, 160 Wn.2d 643, 160 P.3d 40 (2007), he was subjected to two prosecutions by the same sovereign for the same charges. But Womac is inapposite. In Womac, the double jeopardy resulted from Womac's convictions for homicide by abuse, second degree felony murder, and first degree assault. 160 Wn.2d at 647-48. Our Supreme Court determined that the three convictions encompassed the same criminal conduct and entering judgment on all three convictions constituted multiple punishments for the same crime. Womac, 160 Wn.2d at 659-60. Womac is clearly inapposite to Burns's assertion that the issuance of a search warrant commenced a criminal case for purposes of jurisdiction and double jeopardy.
Burns also cites cases in which the State filed a complaint which was subsequently dismissed and the State attempted to refile. Burns alleges that these cases support his argument because the search warrant was labeled "Complaint for Search Warrant for fruits/instrumentalities and/or evidence of a crime for: A Violation of the Uniform Controlled Substances Act . . ., R.C.W. 69.50.401, Possession, Possession with Intent to Deliver and/or Delivery of a Controlled Substance, to wit: Heroin." CP at 93. But Burns misunderstands the distinction between a criminal complaint or information charging him with a crime and a complaint for a search warrant. Accordingly, Burns's challenges to Pierce County Superior Court's jurisdiction over his case and his allegation that his right to be free from double jeopardy was violated fail. Brady Violation Second, Burns alleges that the State committed a Brady violation by failing to provide a copy of Lampman's arrest report. Specifically, Burns alleges that the police report regarding Lampman's driving while license suspended arrest contradicts certain parts of Lampman's trial testimony. But we cannot review matters outside the record, and the record before us is not adequate to allow us to address the issue on direct appeal.
There are three components to a Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be material, meaning that the evidence must have resulted in prejudice to the accused. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Prejudice occurs "'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Strickler, 527 U.S. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). Prejudice is determined by analyzing the evidence withheld in light of the entire record. In re Pers. Restraint of Sherwood, 118 Wn.App. 267, 270, 76 P.3d 269 (2003) (citing Benn v. Lambert, 283 F.3d 1040, 1053 (9th Cir.), cert. denied, 537 U.S. 942 (2002)).
Even assuming arguendo that the State was obligated to turn this evidence over to Burns, Burns's Brady claim fails because he cannot support his base assertion with evidence in the record that the evidence was either impeaching or material. The police report is not contained in the record presented for our review and we do not review matters outside the record. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
In addition, the evidence, as characterized in Burns's SAG, does not appear to be material. Evidence is material if it is prejudicial; Burns must show that there is a reasonable probability that the outcome of his case would have been different had the evidence been provided to him at trial. Strickler, 527 U.S. at 280-82. Here, Burns argues that the report would have contradicted Lampman's testimony that nothing had been found in his car at the time of his driving while license suspended. But the report relates to a collateral matter and does not contradict any of Lampman's testimony regarding the controlled buys which resulted in Burns's conviction. Further, Detective Dobbins's testimony corroborated Lampman's testimony about the controlled buys. And, in light of Burns's confession, Burns's argument does not demonstrate a reasonable probability that the outcome of his case would have been different if the State had provided the report prior to trial. Accordingly, we hold that Burns's allegation of a Brady violation fails. Government Misconduct Under CrR 8.3
Third, in his SAG, Burns claims that the government committed misconduct through its informant. He alleges that Lampman, as an informant, was acting as a government agent at the time he testified in trial and, in that capacity, committed perjury. But Burns again appears to rely on evidence outside the record to show that Lampman committed perjury. On direct appeal, we do not review matters outside the record. McFarland, 127 Wn.2d at 335. And the record before us is insufficient to review this claim.
Sufficiency of Evidence
Fourth, Burns alleges that there is insufficient evidence to support the jury's verdict on count I, sale of a controlled substance with a school zone enhancement. Essentially, Burns argues that if the jury found him not guilty on count II, they must not have found Lampman credible and, as a result, there is not sufficient evidence to support his conviction on count I. We disagree and hold that there is sufficient evidence to support the jury's verdict on count I.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the jury's verdict, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Notaro, 161 Wn.App. 654, 670-71, 255 P.3d 774 (2011). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences that a trier of fact can draw from that evidence. 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. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Walton, 64 Wn.App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992). We do not need to be convinced of the defendant's guilt beyond a reasonable doubt, but only that substantial evidence supports the State's case. State v. Jones, 93 Wn.App. 166, 176, 968 P.2d 888 (1998), review denied, 138 Wn.2d 1003 (1999).
A person is guilty of selling a controlled substance under RCW 69.50.410(1) if he sells any controlled substance "for profit." RCW 69.50.410(1); see State v. Leek, 26 Wn.App. 651, 655, 614 P.2d 209 (1980) ("It is obvious that the receipt of any item or thing of some worth in exchange for a controlled substance is what is meant by the words 'for profit.'"), review denied, 94 Wn.2d 1022 (1980). To prove the sentencing enhancement, the State needed to prove that the sale occurred within 1, 000 feet of a school bus route stop as designated by the school district or within 1, 000 feet of the perimeter of the school grounds. RCW 69.50.435.
RCW 69.50.435 actually provides for ten different conditions in which the sentencing enhancement would apply. Because the State's complaint alleges only the two conditions listed above, we do not address the other eight conditions.
In this case, Lampman testified that on July 17, 2009, he was given $260 to perform a controlled buy of heroin from Burns and that, in exchange for the $260, Burns sold him 11.1 grams of black tar heroin. We do not question a jury's determination of credibility. Camarillo, 115 Wn.2d at 71; Walton, 64 Wn.App. at 415-16. In addition, a school official testified that there were two schools and a bus stop within 1, 000 feet of Burns's home, which is sufficient to support the jury's verdict on the school zone enhancement. Taking the testimony in the light most favorable to the jury's verdict and deferring to the jury's credibility determinations, which we must, the elements of both sale of a controlled substance and the school zone enhancement have been satisfied. Accordingly, there was sufficient evidence to support the jury's verdict on count I with a school zone enhancement.
We hold that Burns failed to preserve his challenge to jury instruction 12, his SAG claim for lack of jurisdiction fails, the record is insufficient to review the allegations of a Brady violation and government misconduct, and there was sufficient evidence to support the jury's verdict. Accordingly, we affirm his convictions.
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 in accordance with RCW 2.06.040, it is so ordered.
We concur: HUNT, J. PENOYAR, C.J.