Opinion
No. 31175-5-II
Filed: March 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No. 03-1-00629-7. Judgment or order under review. Date filed: 10/31/2003. Judge signing: Hon. Roger a Bennett.
Counsel for Appellant(s), David Schultz, Attorney at Law, 430 NE Everett, Camas, WA 98607-2115.
Counsel for Respondent(s), Robert W. Shannon, Attorney at Law, Clark Co Prosecutors Offc, 1200 Franklin St, Vancouver, WA 98660-2812.
Michael Alan Hansen appeals his conviction of unlawful possession of a controlled substance with intent to deliver marijuana, while armed with a firearm. We affirm.
On March 23, 2003, at approximately 6:00 a.m., a SWAT team of Vancouver Police Department officers executed a warrant at Hansen's residence at 3106 Norris Road in Clark County, Washington. Officer Erik McGarrity testified that a SWAT team was used because entry into the residence was considered `high-risk.'1 Report of Proceedings (RP) (Oct. 29, 2003) at 17.
Once inside the residence, Sergeant John Chapman and Sergeant Creager entered a bedroom and found Hansen standing inside the room. Sergeant Creager ordered Hansen to get down, and he informed Sergeant Chapman that Hansen had a gun. Sergeant Creager then ordered Hansen to `drop it,' and Sergeant Chapman observed the gun falling to the floor. 1 RP at 66. The officers seized the weapon, a .38-caliber revolver.
The officers detained three other people and then began searching the residence. Five zip-lock baggies of marijuana, totaling approximately 32 grams, two digital scales, and a box of Glad zip-lock sandwich bags were found in Hansen's bedroom. Officer McGarrity testified that in his experience, scales are typically used by drug sellers to weigh the drugs prior to sale and sandwich bags are typically used for packaging marijuana for sale. He further testified that marijuana is frequently sold in increments of one-eighth of an ounce.
The baggies of marijuana, labeled at trial as items 4, 5, 7, 8, and 9, were found in various locations in Hansen's bedroom.
Officer McGarrity arrested Hansen and interrogated him at the residence. Prior to questioning Hansen, Officer McGarrity read him the following Miranda rights from a preprinted notebook issued by the Vancouver Police Department:
Miranda v. Ariz., 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
You have the right to remain silent. Anything you say can and will be used against you in a court of law.
You have the right at this time to talk to a lawyer and have him present with you while you're being questioned.
If you cannot afford to hire a lawyer, one will be appointed to represent you at no expense.
Do you understand your rights?
Understanding your rights, are you willing to talk to me?
1 RP at 9-10. Hansen indicated that he understood his rights and agreed to speak with Officer McGarrity.
Hansen told Officer McGarrity that he was selling marijuana from his residence and that he sold from an ounce to one-quarter pound per day and between one to two pounds each week. Additionally, he told Officer McGarrity that he used the scales to weigh his marijuana for each customer prior to selling it, he used the sandwich baggies to package the marijuana, and he carried a loaded .38-caliber revolver for `protection.' 1 RP at 29. Hansen also stated that he used a cell phone and pager to `conduct his business.' 1 RP at 54.
Hansen was charged with one count of unlawful possession of a controlled substance with intent to deliver, marijuana. In addition, the information alleged that he was armed with a firearm during the commission of the crime.
Immediately preceding trial by a jury, the trial court held a CrR 3.5 hearing concerning the admissibility of Hansen's statements to Officer McGarrity. The court admitted Hansen's statements, finding that he was properly advised of his Miranda rights and that he voluntarily, knowingly, and intelligently waived them.
At trial, the State presented the testimony of Hansen's roommates, Christine Bowman and Aaron Belanger. Bowman testified that she had purchased about $20-40 worth of marijuana from Hansen in their residence. Additionally, she testified that she did not know whether Hansen was selling marijuana to others, but around 20 people per week came to see Hansen at their residence. She stated that they would `come to the door, ask if Mike was home . . . and everybody'd [sic] go into his room and shut the door.' 1 RP at 102. Belanger testified that he had purchased $20 to $40 of marijuana from Hansen five or six times, including once a few days prior to Hansen's arrest. He stated that Hansen would go into his bedroom and come back out with the marijuana in a sandwich baggy. He further testified that he had only seen the marijuana he purchased for himself and that Hansen did not appear to have `a lot of money.' 1 RP at 111.
The jury convicted Hansen as charged and found that he was armed with a firearm during the commission of the crime. His timely appeal follows.
I. Miranda
Hansen first contends that he was not adequately advised of his Miranda rights before making statements to Officer McGarrity and, consequently, the trial court should have suppressed his statements at trial. Although Hansen's trial counsel did not move to suppress Hansen's statements on the grounds of inadequate advisement of his Miranda rights, Hansen may nevertheless raise this issue for the first time on appeal. State v. Brown, 132 Wn.2d 529, 580, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998); RAP 2.5(a). He assigns error to the trial court's CrR 3.5 findings of fact 3 and 4 and conclusions of law 2 and 3.
Finding of fact 3 states:
Officer McGarrity advised the defendant of his [Miranda] rights by reading them to the defendant from a Vancouver Police Department issued notebook. CP at 22.
Finding of fact 4 states:
The defendant stated that he understood his [Miranda] rights and agreed to answer questions posed by Officer McGarrity. CP at 22.
Conclusion of law 2 states:
The defendant was properly advised of his [Miranda] Rights and his statements were made in a voluntary manner, free from coercion. CP at 23.
Conclusion of law 3 states:
The defendant's statements to Officer McGarrity are admissible. CP at 23.
We determine whether substantial evidence supports a trial court's challenged findings of fact and, in turn, whether they support the conclusions of law. State v. Madarash, 116 Wn. App. 500, 509, 66 P.3d 682 (2003). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. Masarash, 116 Wn. App. at 509. We treat unchallenged findings of fact as verities on appeal. Madarash, 116 Wn. App. at 509. Finally, we review challenges to a trial court's conclusions of law de novo. Madarash, 116 Wn. App. at 509.
Under Miranda, a suspect in custody "must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning." Brown, 132 Wn.2d at 582 (quoting Miranda v. Ariz., 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)). But there is no requirement that officers use the precise language stated in Miranda; a "talismanic incantation" is not required. Duckworth v. Eagan, 492 U.S. 195, 203, 109 S. Ct. 2875, 106 L. Ed. 2d 166 (1989) (quoting Cal. v. Prysock, 453 U.S. 355, 359, 101 S. Ct. 2806, 69 L. Ed. 2d 696 (1981)); Brown, 132 Wn.2d at 582. "Reviewing courts . . . need not examine Miranda warnings as if construing a will or defining the terms of an easement." Brown, 132 Wn.2d at 582 (quoting Duckworth, 492 U.S. at 203). Rather, the inquiry is whether the warnings given to a suspect reasonably conveyed his or her rights as required by Miranda. Duckworth, 492 U.S. at 203; Brown, 132 Wn.2d at 582.
Hansen asserts that his Miranda warnings were defective because he was not told that he had the right to break off questioning at any time. Nor was he informed that he had the right to obtain counsel throughout the questioning process. He argues that officers must `convey the continuing nature of the rights available to the detainee,' Br. of Appellant at 9-10 (citing State v. Teller, 72 Wn. App. 49, 863 P.2d 590 (1993), review denied, 123 Wn.2d 1029 (1994); State v. Creach, 77 Wn.2d 194, 461 P.2d 329 (1969); and State v. Tetzlaff, 75 Wn.2d 649, 453 P.2d 638 (1969)).
But these cases are inapposite. They simply hold that Miranda warnings are constitutionally defective if they convey to a suspect that his or her rights only arise in the future or are conditioned on some future event and do not apply during questioning. Teller, 72 Wn. App. at 53. In Tetzlaff, the defendant was told, `I have a right to wait and if I am charged the court will provide me with an attorney.' Tetzlaff, 75 Wn.2d at 650 (emphasis added). Similarly, in Creach, the defendant was not advised that he had the right to have an attorney present during interrogation. Creach, 77 Wn.2d at 200 (defendant told only that he had the right to an attorney before making any statements).
The warnings given by Officer McGarrity did not present these problems. Hansen was advised, `You have the right at this time to talk to a lawyer and have him present with you while you're being questioned.' 1 RP at 9 (emphasis added). This language unambiguously communicated to Hansen the right to have counsel present throughout questioning.
We also note that there was no qualifying language on the advice that Hansen had the right to remain silent; thus, it is explicit that it would pertain to any police contact immediate and later in that same contact and interrogation that he could remain silent. And in State v. Koopman, 68 Wn. App. 514, 520-21, 844 P.2d 1024 (1992), review denied, 121 Wn.2d 1012 (1993), the court denied the defendant's claim that she was entitled to be advised of the right to break off questioning at any time. The court found that the defendant had failed to cite any authority to support her claim, and it cited United States v. Johnson, 467 F.2d 630 (2nd Cir. 1972), cert. denied, 413 U.S. 920 (1973), which held that officers are not required to advise a suspect that he or she may break off questioning at any point during interrogation. Koopman, 68 Wn. App. at 520-21. Here, as in Koopman, Hansen points to no authority in support of this claim, and the warning read by Officer McGarrity regarding the right to remain silent mirrors the language suggested in Miranda, 384 U.S. at 479.
In addition, Hansen argues that, although he was informed of the right to appointed counsel, he was not explicitly advised that he had the right to appointed counsel before questioning. But the preceding statement, `You have the right at this time to talk to a lawyer and have him present with you while you're being questioned' did convey the right to counsel both before and during questioning. 1 RP at 9 (emphasis added). See Brown, 132 Wn.2d at 583. When both statements regarding the right to counsel are read together, as they were to Hansen, it was made sufficiently clear that he had a right to counsel whether appointed or privately obtained prior to questioning. In conclusion, the warnings read to Hansen adequately informed him of his constitutional rights under Miranda. The trial court did not err in its findings of fact 3 and 4 and conclusions of law 2 and 3.
II. Sufficiency of the Evidence
Hansen next contends that there was insufficient evidence for the jury to convict him of possession of marijuana with intent to deliver. He argues that the evidence showed only that he had sold marijuana in the past, not that he intended to sell the marijuana seized by police, and that the `small amount' of marijuana in his possession was more consistent with personal use. Br. of Appellant at 15. In essence, Hansen argues that this is a mere possession case. We disagree.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003). `A claim of insufficiency admits the truth of the State's evidence and all inferences that can be drawn therefrom.' State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence is as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact regarding a witness's credibility or conflicting testimony. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
The statutory elements of possession of a controlled substance with intent to deliver are (1) unlawful possession of (2) a controlled substance with (3) intent to deliver. Former RCW 69.50.401(a)(2003); State v. Goodman, 150 Wn.2d 774, 782, 83 P.3d 410 (2004). Mere possession of a controlled substance is generally insufficient to establish an inference of intent to deliver. Goodman, 150 Wn.2d at 783; State v. Darden, 145 Wn.2d 612, 624, 41 P.3d 1189 (2002). Rather, at least one additional factor must be present. Darden, 145 Wn.2d at 625. See, e.g., Goodman, 150 Wn.2d at 783 (evidence sufficient where police found several baggies of methamphetamine, a scale, additional baggies, and an accessory kit); State v. Zunker, 112 Wn. App. 130, 136, 48 P.3d 344 (2002) (evidence sufficient where police found scales bearing methamphetamine residue, notebooks with names and credit card numbers, a cell phone battery, and methamphetamine ingredients), review denied, 148 Wn.2d 1012 (2003). See also State v. Hutchins, 73 Wn. App. 211, 218, 868 P.2d 196 (1994) (evidence insufficient where police did not find packing material, scales, or other drug paraphernalia and the marijuana was not separately packaged); State v. Brown, 68 Wn. App. 480, 484, 843 P.2d 1098 (1993) (evidence insufficient where police did not find a weapon, substantial sums of money, scales, or other drug paraphernalia and the rocks of cocaine were not separately packaged).
Here, as in Goodman and Zunker, there were several `additional factors.' Hansen had approximately 32 grams of marijuana, separately packaged in five zip-lock baggies in his bedroom. By itself, this evidence might not have been enough to sustain his conviction. But Hansen also had two digital scales and a box of zip-lock sandwich bags in his bedroom, and he was armed with a .38-caliber revolver, which he used for `protection.' 1 RP at 29. Officer McGarrity testified that marijuana is commonly packaged in zip-lock baggies and that drug sellers typically use scales to weigh their drugs before selling them.
Further, Hansen admitted that he sold marijuana from his residence and that he sold from an ounce to one-quarter pound per day and between one to two pounds each week. He told Officer McGarrity that he used the scales to weigh his marijuana for each customer prior to selling it, he used the sandwich bags to package the marijuana, and he used a cell phone and pager to `conduct his business.' 1 RP at 54. This evidence, coupled with testimony by Bowman and Belanger that Hansen had sold them marijuana in sandwich baggies from his bedroom and that approximately 20 people a week came see Hansen in his bedroom, indicates more than mere possession. And although some of the evidence may have been consistent with personal use, `it is the duty of the fact finder, not the appellate court, to weigh the evidence.' Goodman, 150 Wn.2d at 783. Taken as a whole, the evidence was sufficient to support Hansen's conviction for possession with intent to deliver.
III. Jury Instructions
Hansen also challenges the trial court's jury instructions regarding the firearm enhancement charge. Hansen argues the instructions failed to adequately advise the jury that the State must prove a nexus between the defendant, the charged crime, and a firearm beyond a reasonable doubt. Our Supreme Court has recently resolved this issue in State v. Willis, Wn.2d, 103 P.3d 1213 (2005). The court held that where the jury is informed that it must find a relationship between the defendant, the crime, and the deadly weapon, nexus language is not required. Willis, 103 P.3d at 1217. The instructions in this case are similar to those in Willis. Accordingly, the instructions were proper.
IV. Ineffective Assistance of Counsel
Finally, Hansen asserts that he was denied effective assistance of counsel because his trial counsel failed to argue at the CrR 3.5 hearing that his Miranda warnings were inadequate. This claim is without merit.
In determining whether a defendant received constitutionally sufficient representation, we apply the two-part Strickland test. Strickland v. Wash., 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Tilton, 149 Wn.2d at 783-84. Hansen must show that (1) trial counsel's performance was deficient based on the entire record and (2) the deficient performance prejudiced him. Tilton, 149 Wn.2d at 784; State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Because Hansen's Miranda warnings were constitutionally sufficient, his trial counsel was not deficient for failing to object to statements properly admitted by the trial court.
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, P.J. and ARMSTRONG, J., Concur.