Opinion
No. 35582-5-II.
March 25, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-02350-3, Brian M. Tollefson, J., entered November 9, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton, C.J., and Quinn- Brintnall, J.
Alberto Carbonal challenges his conviction for unlawful possession of cocaine with intent to deliver, arguing that (1) the trial court erred in admitting his confession because the State failed to establish the corpus delicti for his intent to deliver, (2) his counsel ineffectively represented him by failing to object to various findings of fact by the trial court, and (3) the conviction is not supported by sufficient evidence of his intent to deliver. In a statement of additional grounds (SAG), Carbonal argues that his counsel was ineffective in failing to challenge the probable cause for police to search his hotel room. Finding no reversible error, we affirm.
RAP 10.10.
FACTS
One evening, the Lakewood motel sweep team of the Lakewood Police Department went to the La Casa Motel to conduct a routine investigation that included reviewing registration records for patrons who might have outstanding warrants. The records for Room 25 showed that the person registered to that room, Sean Rogers, had an outstanding arrest warrant.
The officers went to Room 25 and knocked on the door. Carbonal answered the door and said he was alone. Carbonal was acting suspiciously, looking over his shoulder to the right, and reaching behind him. When Officer Jeff Johnson changed his position at the door to see what Carbonal was looking at, he saw rock cocaine on the bedside table. Based on that plain view observation, the officers entered the motel room and arrested Carbonal.
After being informed of his Miranda rights, Carbonal acknowledged that the cocaine was his. The officers took a photograph of the cocaine, which consisted of 14 small rocks worth $20 each, 3 pieces worth $40 each, some larger chunks, and some smaller "crumbs." Clerk's Papers (CP) at 38. They also found another baggie of cocaine in the pocket of a jacket on the bed; Carbonal admitted that it was also his.
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State charged Carbonal with unlawful possession of a controlled substance with intent to deliver. The declaration of probable cause asserted that Carbonal told Officer Angel Figueroa that, while he had some of the cocaine for personal use, he also intended to sell some of it and was "looking at making about $400." CP at 2. Carbonal moved to dismiss the charge, arguing that the State's evidence was insufficient to establish (1) corpus delicti for admission of his confession and (2) intent to deliver.
At a hearing on Carbonal's motion, Officer Sean Conlon testified about the significance of the quantity of cocaine and how it was cut up. Although Conlon had not participated in Page 3 Carbonal's case, he had eight-and-a-half years of experience in undercover narcotics investigation involving several hundred sales or distributions of cocaine; he also had talked with several hundred individuals involved in street level cocaine sales. Conlon had reviewed the photographs of the cocaine, and he testified that "[i]t appear[ed] to be one large cookie of crack cocaine in the process of being cut up into smaller pieces" with a razor blade also in the photograph; this was consistent with the normal process of selling cocaine in a "cookie" form.
1 Report of Proceedings (RP) at 12-13. Conlon testified that the setup of the cocaine in the photograph was more consistent with street level dealing than with personal use because "[s]omeone with personal use wouldn't go through the trouble of cutting the rocks up into little $20 pieces when they are not going to smoke an entire $20 piece at once. You would just chip it off as you need it . . . they are not going to stick that whole $20 rock in their pipe." 1 RP at 15. A smokable size was about a third of a $20 rock. Conlon testified that the setup in the photograph is "pretty typical" for crack cocaine dealing from motel rooms. 1 RP at 16. Further, the lack of drug use paraphernalia supported the conclusion that Carbonal was selling the cocaine, not using it.
The trial court denied Carbonal's motion to dismiss the charge, finding:
1. The layout of the cocaine on the tray along with the quantity of cocaine is indicative of an intent to deliver.
2. The defendant was in a hotel room with a phone which would serve as a means of communication with potential buyers.
3. The lack of any paraphernalia in the hotel room which could be used to ingest the cocaine is also indicative of an intent to deliver.
4. A separate quantity of cocaine was found in the pocket of a jacket belonging to defendant.
CP at 28.
Carbonal waived his right to a jury trial, opting for a bench trial instead. In addition to the facts discussed above, Officer Johnson testified that there was no drug paraphernalia in the motel room, such as pipes, scales, packaging materials, or anything that could be used to ingest cocaine. Officer Figueroa testified that when he asked Carbonal what he was going to do with the cocaine, Carbonal said it was cocaine for his personal use and that he was going to sell some of it because he needed $400.
Officer Conlon testified as an expert about street sales of controlled substances, with no objection from Carbonal. Conlon had arrested several hundred suspects for delivery or possession of crack cocaine where the cocaine was not contained in any packaging materials; he testified that drug sellers avoid packaging the drugs so they can drop the drugs and step on them if they are approached by law enforcement. Here, the cocaine in the photograph was being cut, with $20 rocks at the top of the photo, crumbs in the middle, and three $40 rocks and a couple of bigger pieces at the bottom.
Carbonal testified that he intended only to smoke the cocaine himself, using cigarettes that he had just purchased at a convenience store. He had never used a pipe or a can. He denied telling Officer Figueroa that he intended to sell some of the cocaine.
The trial court found Carbonal guilty and entered findings of fact and conclusions of law. Carbonal objects only to the following two findings: (1) that "Officer Figueroa testified that defendant [Carbonal] made statements to him to the effect that he was going to sell some of the cocaine and that he was looking to make $400" and (2) that "[t]here were no items of paraphernalia associated with ingesting rock cocaine found in the motel room." CP at 39-40.
ANALYSIS I. Corpus Delicti
Carbonal first argues that the State failed to establish corpus delicti for his alleged intent to deliver and that the trial court's ruling denying dismissal was based on improper evidence.
A trial court may not admit extrajudicial incriminating statements by an accused unless the State presents independent evidence of the corpus delicti of the crime to corroborate the statements. See State v. Brockob, 159 Wn.2d 311, 327-28, 150 P.3d 59 (2006) (citing State v. Aten, 130 Wn.2d 640, 655-56, 927 P.2d 210 (1996)). In other words, the State must present evidence independent of the defendant's incriminating statement that the crime the defendant described actually occurred. Brockob, 159 Wn.2d at 328.
In determining whether there is sufficient independent evidence under the corpus delicti rule, we view the evidence in the light most favorable to the State. Brockob, 159 Wn.2d at 328. The evidence need not be sufficient to support a conviction, but it must provide prima facie corroboration of the crime, or support "a `logical and reasonable inference'" that the crime occurred. Brockob, 159 Wn.2d at 328 (quoting Aten, 130 Wn.2d at 656, and State v. Vangerpen, 125 Wn.2d 782, 796, 888 P.2d 1177 (1995)).
Here, the State had to establish the corpus delicti for Carbonal's intent to deliver the cocaine. RCW 69.50.401(1). Generally, the corpus delicti rule does not require independent proof of a crime's mens rea; rather, the rule refers to the "`objective proof or substantial fact that a crime has been committed.'" State v. C.M.C., 110 Wn. App. 285, 288, 40 P.3d 690 (2002) (quoting State v. Solomon, 73 Wn. App. 724, 727, 870 P.2d 1019 (1994)). But here, the State does not dispute that it had the burden of proving the corpus delicti of Carbonal's intent to deliver at least some of the cocaine.
The trial court found that the State had established the corpus delicti from (1) the layout and quantity of the cocaine on the tray, (2) the presence of a phone in the motel room with which to communicate with potential buyers, (3) the lack of any paraphernalia with which to ingest the cocaine, and (4) the separate stash of cocaine in Carbonal's jacket.
A. Substantial Evidence
Carbonal argues that these findings were not supported by substantial evidence. Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006) (quoting State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999)).
Carbonal also argues in the body of his brief that the court's "Undisputed Findings" were also unsupported by substantial evidence, but because he does not assign error to them they are verities on appeal and we need not review them. Brockob, 159 Wn.2d at 343 (citing State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994)).
Carbonal first challenges the trial court's finding that "[t]he layout of the cocaine on the tray along with the quantity of cocaine is indicative of an intent to deliver." CP at 28. But Officer Conlon testified that based on his experience, the photographs of the cocaine appeared to depict a "cookie" of crack cocaine "in the process of being cut up" into a size that is marketable, not consumable, 1RP at 12-13, 15-16, and that a person intending only personal use would not "go through the trouble" of producing rocks of that size. 1 RP at 12-13, 15. This testimony provides a sufficient basis to persuade a fair-minded, rational person that the layout of the cocaine on the tray supported an intent to deliver. Carbonal argues that the trial court should not have relied on Conlon's testimony at all because he was not sworn as an expert witness. But Carbonal does not argue that Conlon was not qualified to be a witness, and he waived any procedural argument by not objecting to it at the hearing. RAP 2.5(a).
Carbonal also challenges the findings that he "was in a hotel room with a phone" and that there was a "lack of any paraphernalia in the hotel room which could be used to ingest the cocaine." CP at 28. Carbonal is correct that there was no evidence at the hearing to support either of these findings; the facts do not appear in the police reports, exhibits, or testimony. This lack of supporting evidence, however, is harmless. Officer Johnson testified at trial that the officers did not find any pipes, cigarettes, or other consumption paraphernalia in the motel room, with no objection from Carbonal. And even if the court erred in finding that the motel room had a telephone, the State presented ample evidence through Officer Conlon's testimony of Carbonal's intent to deliver.
Finally, Carbonal challenges the trial court's finding that "[a] separate quantity of cocaine was found in the pocket of a jacket belonging to defendant" because it was based on police reports that were improperly admitted into evidence; he argues that they could have been admitted only as exhibits at the hearing or through affidavits under State v. Knapstad, 107 Wn.2d 346, 356, 729 P.2d 48 (1986). CP at 28. But the improper submission of the police reports was invited error; Carbonal submitted them to the trial court himself and explicitly stipulated to their accuracy for purposes of the motion. The doctrine of invited error prevents Carbonal from benefiting from an error he caused at trial. State v. Recuenco, 154 Wn.2d 156, 163, 110 P.3d 188 (2005), rev'd on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006).
B. Ineffective Assistance Of Counsel
In conjunction with the substantial evidence issue, Carbonal maintains that his counsel was ineffective for failing to object to the trial court's "Undisputed Facts" section of its pretrial findings of fact.
To demonstrate that counsel ineffectively represented him, Carbonal must show that (1) his attorney's performance was so deficient that it "fell below an objective standard of reasonableness" and (2) the deficient performance prejudiced Carbonal. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Brockob, 159 at 344-45. We allow trial counsel considerable deference and presume that counsel's representation was reasonable. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). Moreover, if trial counsel's conduct can be characterized as legitimate trial strategy or tactics, we will not find it deficient. McNeal, 145 Wn.2d at 362.
Here, the trial court's "undisputed" findings were all based on the police reports, and Carbonal's counsel stipulated to the accuracy of those reports for the purposes of the motion. This was a strategic decision to which we defer, McNeal, 145 Wn.2d at 362, particularly where, had counsel not stipulated to the reports, the State undoubtedly would have called the officers to testify and potentially expand on the facts in the police reports. Under these circumstances, Carbonal can show neither deficient performance nor prejudice; his claim that counsel was ineffective fails.
C. Legal Sufficiency
Carbonal argues that even if the record supports the trial court's findings of fact, they are legally insufficient to establish corpus delicti.
Carbonal relies, in part, on State v. Cobelli, 56 Wn. App. 921, 788 P.2d 1081 (1989). There, police officers observed the defendant engaging in a series of short conversations with several "clusters" of people in a known high-drug area. Cobelli, 56 Wn. App. at 922. After arresting the defendant, the officers found several baggies containing a total of 1.4 grams of marijuana on his person. Cobelli, 56 Wn. App. at 923. The defendant then confessed to selling two baggies of marijuana earlier for $10 each. Cobelli, 56 Wn. App. at 923. The court held that the State had failed to establish the corpus delicti of an intent to deliver because the circumstances observed by the officers were no more indicative of an intent to deliver than they were of mere possession. Cobelli, 56 Wn. App. at 925.
Cobelli is distinguishable. The State offered no evidence in Cobelli that either the quantity or packaging of Cobelli's drugs showed an intent to deliver. Here, the State presented evidence of a "cookie" of crack cocaine being cut up into pieces that were marketable on the street for $20 each. And just as the size was consistent with an intent to deliver, it was inconsistent with personal use because the pieces created were too big to consume. See Brockob, 159 Wn.2d at 329 (independent evidence must be consistent with guilt and inconsistent with a hypothesis of innocence) (quoting Aten, 130 Wn.2d at 660 (quoting State v. Lung, 70 Wn.2d 365, 372, 423 P.2d 72 (1967))). In sum, this is not, as Carbonal argues, a situation where the independent evidence is "equally as consistent with innocence as with guilt." Br. of Appellant at 27.
In this respect, this case is also distinguishable from the others on which Carbonal relies: State v. Whalen, 131 Wn. App. 58, 126 P.3d 55 (2005), State v. Bernal, 109 Wn. App. 150, 33 P.3d 1106 (2001), and Aten, 130 Wn.2d 640. In Whalen, the court held that the corpus delicti for intent to manufacture methamphetamine was not established by the mere fact that the defendant stole seven boxes of pseudoephedrine from a drugstore; there was no evidence of what he intended to do with them. Whalen, 131 Wn. App. at 64. In both Bernal and Aten, the issue presented was whether an injury to a person was caused by criminal activity when other plausible causes were equally likely. See Aten, 130 Wn.2d at 658-59; Bernal, 109 Wn. App. at 154.
Carbonal also argues that the facts do not establish corpus delicti because they do not include factors present in other cases, such as eyewitness accounts, presence in a high crime area, scales, packaging materials, cell phones, pagers, or cash. This argument is not persuasive; none of the cases that Carbonal cites requires these facts, nor would such a requirement be consistent with the role of corpus delicti in merely confirming the commission of the crime, not proving it. Moreover, the absence of packaging material and scales is not persuasive; the trial court explicitly found that they were not necessary for delivery of crack cocaine, which is often sold loose by the rock instead of by weight. In sum, there is sufficient evidence both to support the trial court's findings of fact and to corroborate Carbonal's confession that he intended to sell some of his cocaine.
II. Sufficiency of the Evidence of Intent to Deliver
Carbonal next argues that the evidence at trial was insufficient to prove beyond a reasonable doubt that he intended to deliver cocaine.
We review a defendant's challenge to the sufficiency of the evidence by asking whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Finch, 137 Wn.2d 792, 831, 975 P.2d 967 (1999). In answering this question, we view the evidence in the light most favorable to the State, drawing all reasonable inferences from the evidence in the State's favor. State v. Gregory, 158 Wn.2d 759, 817, 147 P.3d 1201 (2006) (quoting State v. Clark, 143 Wn.2d 731, 769, 24 P.3d 1006 (2001)).
Here, in addition to Officer Conlon's testimony, Carbonal admitted that he intended to sell enough cocaine to make $400. The evidence that he possessed cocaine with the intent to deliver it was overwhelming.
Carbonal attempts to challenge this finding of fact for lack of substantial evidence but he assigns error to the wrong finding. The challenged finding, number VII, states that "Officer Figueroa testified that defendant made statements to him to the effect that he was going to sell some of the cocaine and that he was looking to make $400." CP at 39. The fact that Figueroa testified as such is hardly in dispute. But even if Carbonal had assigned error to the correct finding, the fact that he denied making the confession at trial does not mean that the court's finding is not supported by substantial evidence; we defer to the trier of fact on issues of conflicting testimony and the credibility of witnesses. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
III. Statement Of Additional Grounds
Carbonal argues in his SAG that his counsel was ineffective for failing to challenge the officers' probable cause to search his room. Specifically, Carbonal argues that his counsel should have forced the State to prove that the police had a valid reason to believe that Sean Rogers was the registered occupant of the hotel room. Carbonal maintains that he was the registered guest in the room.
Carbonal does not argue that the police conducted an illegal search by reviewing the motel registration information. A registered guest at a motel has a constitutionally protected privacy interest in the registration information. State v. Jorden, 160 Wn.2d 121, 123, 156 P.3d 893 (2007). But unless Carbonal was the actual registered guest, he lacks standing to challenge the officers' review of registration information. See State v. Link, 136 Wn. App. 685, 692, 150 P.3d 610 (only a claimant who has a legitimate expectation of privacy in the invaded space has standing to claim a privacy violation), review denied, 160 Wn.2d 1025 (2007). And Carbonal cannot argue that he has automatic standing because the possibly illegal search of the register did not produce evidence of his possession of the drugs. See State v. Jones, 146 Wn.2d 328, 332, 45 P.3d 1062 (2002). Thus, Carbonal could not claim that his attorney was ineffective for failing to challenge the officers' review of registration records.
As stated earlier, a defendant must prove both deficient performance and prejudice to satisfy the requirements for an ineffective assistance of counsel claim. Brockob, 159 Wn.2d at 344-45. Prejudice occurs when there is a reasonable probability that, but for the deficient performance, the outcome of the trial would have differed. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). In this case, Carbonal must show a reasonable probability that he would have prevailed on a motion to suppress had his attorney brought one.
Carbonal bases his argument on matters outside the record. The police reports admitted at the suppression hearing that the officers believed from the motel register that Sean Rogers was registered for the room. Carbonal offered no evidence to contradict this. And we cannot consider matters outside the record. See State v. Byrd, 30 Wn. App. 794, 800, 638 P.2d 601 (1981) (personal restraint petition is appropriate procedure to raise a claim based on matters outside the appellate record). Carbonal's argument, apparently suggesting that the officers contacted him on a ruse, fails.
Affirmed.
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.
HOUGHTON, C.J. and QUINN-BRINTNALL, J., concur.