Opinion
No. 33855-6-II.
November 7, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-04489-0, Lisa R. Worswick, J., entered September 23, 2005.
Counsel for Appellant(s), Kathryn A. Russell Selk, Russell Selk Law Office, 1037 Ne 65th St Box 135, Seattle, WA, 98115-6655.
Counsel for Respondent(s), Todd Andrew Campbell, Pierce Co Pros Attorneys Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA, 98402-2171.
Affirmed in part and remanded by unpublished opinion per Armstrong, J., concurred in by Bridgewater and Penoyar, JJ.
Steven Anthony Haggard appeals his convictions of first degree unlawful possession of a firearm and unlawful possession of a controlled substance while armed with a firearm, arguing that the evidence was insufficient to support the firearm enhancement, that his attorney erred in failing to propose an unwitting possession instruction on the firearm count, and that he was sentenced erroneously. We affirm his convictions but remand for resentencing.
Facts
On September 20, 2004, at approximately 10:30 p.m., Pierce County Sheriff's Deputies Richard Scaniffe and Scott Mock were on patrol when they observed a gray Mazda pickup truck with only one operational headlight. After stopping the truck, Mock contacted Haggard, who was driving.
Mock asked Haggard for his driver's license and proof of insurance. Haggard said that he did not have his license and that his name was "Brian Hempstead." Report of Proceedings (RP) at 80. Because Haggard was fidgeting, shaking, and appeared to be nervous, Mock did not believe him and told him he would be arrested if the information he had given was false. Haggard then stated his true name and birth date and said that he had lied because there was a warrant out for his arrest.
The deputies arrested Haggard as well as his passenger, Brenton Metzger, who also had an outstanding warrant. After the two men were secured in the patrol car, Mock searched the Mazda truck. Mock found two handguns, one in each truck door. Each gun was in an open speaker hole in the door panel. The butt end of the gun on the driver's door was sticking up and was visible with the aid of a flashlight. The gun had rounds of ammunition in its magazine. The other gun was loaded.
The deputies also found a partially open black bag between where Haggard and Metzger had been sitting. The bag contained the registration for another vehicle in Haggard's name, some court paperwork belonging to Haggard, two plastic baggies at least one of which contained methamphetamine, and a box with several cartridges. The cartridges were of the same brand and bullet style as those in the handguns. Mock also found a digital scale behind the truck seat.
The State charged Haggard by amended information with first degree unlawful possession of a firearm, unlawful possession of a controlled substance with intent to deliver while armed with a firearm, and making a false statement to a public servant. At trial, the deputies testified to the facts cited above. They added that they did not document the registered owner of the Mazda truck and could not recall whether Haggard was the owner. The parties stipulated that Haggard previously had been convicted of a serious offense.
Kathryn Haggard, the defendant's mother, was the sole defense witness. She testified that Metzger visited her on the evening of September 20, 2004, and showed her two handguns. She gave Metzger a court document to give to her son and said Metzger was driving a gray Mazda pickup that she believed belonged to his mother.
The jury convicted Haggard as charged on Counts I and III, the firearm and false statement counts. On Count II, the jury found him guilty of the lesser offense of unlawful possession of a controlled substance (methamphetamine). The jury found by special verdict that Haggard was armed with a firearm at the time he possessed the methamphetamine.
The court sentenced Haggard to 87 months on the firearm count and 42 months on the drug count, plus 18 months on the firearm enhancement. The court also ordered 9-12 months of community custody on the drug count and ran the sentences concurrently except for the firearm enhancement, which the court ran consecutively to all other confinement. The court imposed no time on the false statement count. Haggard now appeals his firearm and drug convictions.
ANALYSIS I.
Haggard argues initially that the evidence was insufficient to prove that he was armed with a firearm at the time he possessed the methamphetamine.
A firearm enhancement must be proved beyond a reasonable doubt. See State v. Tongate, 93 Wn.2d 751, 754, 613 P.2d 121 (1980). To meet that burden, the State had to establish that Haggard was within the proximity of an easily and readily available firearm for offensive or defensive purposes and that a nexus existed between him, the crime, and the firearm. See State v. Barnes, 153 Wn.2d 378, 383, 103 P.3d 1219 (2005).
Mere proximity or constructive possession is insufficient to show that a defendant was armed at the time the crime was committed. State v. Gurske, 155 Wn.2d 134, 138, 118 P.3d 333 (2005). Instead, the firearm must be easy to get to for use against another person, whether to facilitate the commission of the crime, escape from the scene, protect contraband, or prevent investigation, discovery, or apprehension by the police. Gurske, 155 Wn.2d at 139.
In Gurske, a pistol was found underneath a torch in a zipped backpack behind the driver's seat of a truck. Gurske, 155 Wn.2d at 143. The defendant, who had been driving the truck before his apprehension by the police, could not have removed the backpack without either exiting the truck or moving into the passenger seat. Gurske, 155 Wn.2d at 136, 143. Because the State did not prove that he could have reached the weapon from the driver's seat, the court found insufficient evidence that the pistol was easily accessible and readily available for use for offensive or defensive purposes. Gurske, 155 Wn.2d at 143.
A plurality of the court found the accessibility requirement satisfied, however, in State v. Schelin, 147 Wn.2d 562, 567, 55 P.3d 632 (2002). The defendant was in the basement and within 6 to 10 feet of a loaded revolver when officers executing a warrant entered his home. Schelin, 147 Wn.2d at 564. The basement contained two rooms in which officers found evidence of a marijuana grow operation. The Schelin court held that the weapon was easily accessible and readily available for use to protect the marijuana grow operation. Schelin, 147 Wn.2d at 574-75.
The Court of Appeals also found sufficient evidence of accessibility in State v. Sabala, 44 Wn. App. 444, 723 P.2d 5 (1986). There, the defendant was stopped while driving his car after buying heroin, and a search of his person yielded heroin in his sock. Sabala, 44 Wn. App. at 445. During the consensual search of his car, police found a loaded gun under the driver's seat with the grip easily reached by the driver. The gun therefore was easily accessible and available for use by the defendant for either offensive or defensive purposes. Sabala, 44 Wn. App. at 448.
Here, the gun was found in a hole in the driver's side door panel with the handle sticking up. Haggard asserts that there was no testimony that he could have grabbed the gun from the driver's seat, but the evidence supports the inference that the gun was within reach when Haggard was in the truck. See State v. Willis, 153 Wn.2d 366, 375, 103 P.3d 1213 (2005) (when analyzing a sufficiency claim, the court draws all inferences from the evidence in favor of the State and against the defendant). The gun had cartridges in its magazine and could have been loaded quickly. A bag containing methamphetamine, ammunition, and documentation in Haggard's name was found on the seat beside him. From these facts, it is easy to conclude that the gun was easily accessible and readily available for offensive or defensive use against another person.
As stated earlier, there also must be a nexus between the weapon and the defendant and the weapon and the crime. Without a nexus between the defendant, the crime, and the weapon, courts risk punishing a defendant for having a weapon unrelated to the crime. Gurske, 155 Wn.2d at 141. The Supreme Court found no nexus between a defendant and a rifle when he was not in close proximity to the weapon at the time of its discovery and when there was no evidence that he had been in such proximity when its availability for offensive or defensive use was important. See State v. Valdobinos, 122 Wn.2d 270, 281-82, 858 P.2d 199 (1993). In Schelin, however, the nexus requirement was satisfied where the defendant was close to the easily accessible and readily available firearm when the police entered the house. See Schelin, 147 Wn.2d at 568. Similarly, the nexus requirement was met in Sabala because after purchasing heroin, the defendant was sitting in the driver's seat from which the weapon was easily accessible and readily available for use. See Sabala, 44 Wn. App. at 448.
Here, too, the defendant was close to the easily accessible handgun when the deputies stopped him. The open bag beside Haggard contained paperwork in his name as well as ammunition matching that already in the gun. This evidence is more than sufficient to show that there was a nexus between the firearm and Haggard.
There also must be a nexus between the weapon and the crime. The mere presence of a weapon at the scene of the crime may be insufficient. Gurske, 155 Wn.2d at 142. "One should examine the nature of the crime, the type of weapon, and the circumstances under which the weapon is found (e.g., whether in the open, in a locked or unlocked container, in a closet on a shelf, or in a drawer)." Schelin, 147 Wn.2d at 570.
Here, the gun was found next to where Haggard had been sitting when the deputies stopped him and was the only object in the open speaker hole. On his other side, in an open bag, was ammunition matching that in the gun, paperwork in his name, and methamphetamine. It would have been reasonable for the jury to conclude that the bag and its contents belonged to Haggard, and such a conclusion supplies the nexus between the firearm and the underlying drug possession charge. We find the evidence sufficient to prove beyond a reasonable doubt that Haggard was armed at the time he possessed the methamphetamine.
II.
Haggard argues next that his constitutional right to effective assistance of counsel was violated when his attorney failed to propose an unwitting possession instruction relevant to the unlawful possession of a firearm count.
To prove a claim of ineffective assistance, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2053, 80 L. Ed. 2d 674 (1984)). A defendant alleging ineffective assistance bears the burden of showing deficient representation based on the record established in the proceedings below. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Prejudice is established if there is a reasonable probability that, except for counsel's errors, the result of the proceeding would have been different. McFarland, 127 Wn.2d at 335. Scrutiny of counsel's performance is highly deferential, and there is a strong presumption of reasonableness. State v. Day, 51 Wn. App. 544, 553, 754 P.2d 1021 (1988). If counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim of ineffective assistance. Day, 51 Wn. App. at 553.
Haggard contends that he was entitled to an unwitting possession instruction because the main issue at trial was whether he knowingly possessed the firearm. He claims that a reasonable attorney would have proposed an unwitting possession instruction, thereby placing the burden of disproving that defense, or of proving knowing possession, on the State.
But, the State had the burden of proving knowing possession without the addition of an unwitting possession instruction. The "to convict" instruction properly informed the jury that the State had to prove that Haggard knowingly had a firearm in his possession or control on the date in question. See State v. Anderson, 141 Wn.2d 357, 5 P.3d 1247 (2000) (holding that knowing possession is an element of unlawful possession of a firearm). Haggard did not need an unwitting possession instruction to argue to the jury that he did not know about the firearm; that issue was before the jury under the instructions given. See State v. Ng, 110 Wn.2d 32, 41, 750 P.2d 632 (1988) (requested instruction need not be given if subject matter is adequately covered elsewhere in the instructions). Thus, there clearly was no prejudice from counsel's failure to request the unwitting possession instruction. Haggard was able to argue that there was no evidence that he knew the gun was present, and the State already had the burden of proving otherwise. Haggard does not succeed in showing that he received ineffective assistance of counsel because of his attorney's failure to request an unwitting possession instruction on the unlawful possession of a firearm count.
Defense counsel did propose and receive an instruction on unwitting possession on the drug count. Knowledge is not an element of unlawful possession of a controlled substance.
III.
Finally, Haggard argues that he was sentenced beyond the statutory maximum for his unlawful possession of methamphetamine conviction.
Haggard's judgment and sentence correctly indicates that the maximum sentence for his drug offense is 5 years, or 60 months. The trial court imposed a sentence of 42 months on that count in addition to a firearm enhancement of 18 months and a community custody period of 9-12 months.
Both parties point out that the judgment and sentence incorrectly provides a standard sentencing range of 51-60 months. Haggard's drug conviction is a level three offense because of his firearm enhancement. RCW 9.94A.518. With his offender score of 9+, his standard range sentence is 100+ to 120 months under the drug offense sentencing grid. RCW 9.94A.517. This range is limited, however, by the 60-month statutory maximum for Haggard's drug offense. Thus, the court correctly imposed a base sentence of 42 months plus the 18-month enhancement. See RCW 9.94A.599 (if the addition of a firearm enhancement increases the sentence so that it would exceed the statutory maximum for the offense, the portion of the sentence representing the enhancement may not be reduced).
With certain exceptions that are not relevant here, a trial court may not impose a sentence providing for a term of confinement or community supervision, community placement, or 69.50.401(1); State v. Johnson, 119 Wn.2d 143, 146, 829 P.2d 1078 (1992). community custody that exceeds the statutory maximum for the crime. RCW 9.94A.505(5). When the combined total of the defendant's community custody term and standard range sentence exceeded the statutory maximum term, Division Three vacated the sentence and remanded for resentencing in State v. Zavala-Reynoso, 127 Wn. App. 119, 124, 110 P.3d 827 (2005). In a similar situation, Division One recommended that when a court imposes community custody that could exceed the statutory maximum sentence for an offense, the court should set forth the maximum sentence and state that the total of incarceration and community custody cannot exceed that maximum. State v. Sloan, 121 Wn. App. 220, 223-24, 87 P.3d 1214 (2004). The State admits that the combined total of Haggard's standard range sentence, firearm enhancement, and community custody on the drug count exceeds the statutory maximum of 60 months and submits that the proper remedy should be a notation on the judgment and sentence stating that the term of confinement plus the term of community custody shall not exceed the statutory maximum for that offense. We agree and remand for such an amendment of Haggard's judgment and sentence as well as the correction of the reference to his standard sentencing range.
IV.
In a pro se statement, Haggard raises two additional issues. See RAP 10.10. In the first, he observes that Metzger's fingerprints were found on both firearms and that his codefendant was found guilty of being a minor in possession of firearms. This information is not part of the record and cannot be considered. Even if it were properly before us, it would not affect our conclusion that Haggard was "armed" for purposes of the firearm enhancement.
Haggard next contends that his 105-month sentence exceeded the maximum sentence permissible. As stated, the maximum sentence for the firearm count was 120 months. The sentence on that count was 87 months, and the trial court correctly ran the 18-month firearm enhancement consecutively to that sentence for a total of 105 months. See RCW 9.94A.533(3) (if the offender is being sentenced for more than one offense, the firearm enhancement must be added to the total period of confinement for all offenses, regardless of which underlying offense is subject to the firearm enhancement).
We affirm the defendant's convictions but remand for resentencing in accordance with this opinion.
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, P.J. and PENOYAR, J., concur.