Opinion
No. 29288-2-II
Filed: November 9, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-1-01677-6. Judgment or order under review. Date filed: 08/27/2002. Judge signing: Hon. Kitty-Ann Vandoorninck.
Counsel for Appellant(s), Kathryn A. Russell Selk, Attorney at Law, PO Box 30124, Seattle, WA 98113-0124.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
A jury convicted Robin Dale Miller of manufacturing methamphetamine, possession of pseudoephedrine with intent to manufacture methamphetamine, and possession of methamphetamine with intent to deliver, all with firearm enhancements. On appeal, he challenges the sufficiency of the evidence that he was armed, alleges the firearm enhancement instructions were deficient, contends that the prosecutor engaged in misconduct and claims that his defense counsel was ineffective. Miller also challenges the trial court's computation of his offender score. The State concedes that Miller's offender score was miscalculated. We agree and remand for resentencing. But we affirm Miller's substantive convictions and firearm enhancements in all other respects.
The State concedes that Miller's juvenile convictions were improperly included in his offender score but argues that because the record is insufficient to determine whether one of his prior adult felony convictions `washed out,' that we should defer ruling on it until Miller files a personal restraint petition. Resentencing is required. In the interest of judicial economy, the trial court should address the adult `wash out' issue at the time of resentencing.
FACTS
On April 8, 2002, Pierce County Deputy Sheriff Jeff Papen and Department of Corrections Officer Evan Brady arrested Miller in the parking lot of the Country Rose Caf` on Pacific Avenue in Pierce County. Papen had received an anonymous tip that Miller would be in the parking lot in a Mercury Tracer, and the officers planned to arrest him on an outstanding warrant.
A hatchback car.
Papen arrested Miller and searched him incident to that arrest, seizing a wad of cash found in Miller's front pocket. Papen then searched the Tracer incident to arrest and recovered the following:
Miller believed that he had between $750 and $800 in his pocket, but Papen only found $235.
(1) A fanny pack behind the driver's seat along the driver's side door. Inside the fanny pack was a digital scale, a red Velcro wallet containing a hypodermic needle, a spoon, a straw, a bag of needles, and several clear plastic bags of a white powder.
(2) A backpack behind the driver's seat and center console, within reach of the driver of the car. Inside the middle compartment of the backpack Papen found a Hi-Point 9 mm pistol with a loaded magazine. The backpack also contained 10 to 20 four-packs of Energizer lithium batteries, a plastic bag containing coffee filters and a white powder substance, a large bag containing several packages of Sudafed tablets, several bags of off-white powder, and a paper bag containing needles.
Papen recognized the items as the type `commonly found in the manufacturing and distribution of methamphetamine' and notified Deputy Robert Kocher, an on-call officer who handled methamphetamine laboratory processing. 3 Report of Proceedings (RP) at 112.
While waiting for Kocher to arrive, Papen asked Miller about the gun. Miller told him the gun had not been fired and that he had gotten it from someone named Donna a few weeks earlier. At trial, Miller testified that the items in the backpack and fanny pack belonged to him but that he was not using the gun for an `offensive purpose or whatever' and that `it was just something [he] purchased . . . in regards to [him] being shot a few years ago.' 4 RP at 345. Deputy Mark Fry processed the evidence and explained the significance of each item in the methamphetamine manufacturing process. Fry testified that it was common to find guns with methamphetamine labs because `[i]f you have an investment . . ., you're going to try to protect it.' 3 RP at 175.
Lab tests on the powder showed approximately 14-20 grams of methamphetamine and 53 grams of pseudoephedrine, an ingredient in the manufacturing process that would produce about 29 grams of methamphetamine.
The State charged Miller with one count of unlawful manufacturing of a controlled substance (methamphetamine) (count one), one count of unlawful possession of pseudoephedrine with intent to manufacture methamphetamine (count two), one count of unlawful possession of methamphetamine with intent to deliver (count three), and one count of first degree unlawful possession of a firearm (count four). Miller pleaded guilty to the first degree firearm possession charge, but he went to trial on the other three charges and the attendant firearm sentence enhancements.
A jury found Miller guilty on all remaining charges with firearm sentence enhancements. Miller stipulated to his criminal record. The trial court sentenced Miller to 149 months on the manufacturing charge, within the standard range, plus two 36-month firearm enhancements on counts one and three to run consecutively, for a total of 221 months total confinement. He was sentenced to 108, 108, and 67 months for counts two through four, respectively, to run concurrently.
Crime Date of Sentence Sentencing Court (County State) Date of Crime Adult or Juv Crime Type
BURG 2 11/28/79 WHATCOM 09/05/77 JUV NV
BURG 2 11/28/79 WHATCOM 08/25/79 JUV NV
BURG 2 11/28/79 WHATCOM 10/18/79 JUV NV
FORGERY 07/10/82 PIERCE 04/22/82 ADULT NV
ROBBERY 2 06/05/86 PIERCE 12/27/85 ADULT V
PSP 2 11/15/93 THURSTON 04/10/93 ADULT NV
PSP 2 09/26/95 THURSTON 01/27/95 ADULT NV
C-UMCS METH 12/12/01 PIERCE 05/14/01 ADULT NV
Clerk's Papers (CP) at 93. Miller refused to sign a document, but stipulated to his criminal history on the record in open court.
The judge determined that the methamphetamine manufacturing and unlawful possession of pseudoephedrine convictions constituted the same course of conduct for purposes of his offender score and his enhancement.
ARGUMENT Prosecutorial Misconduct
Miller contends that he is entitled to a new trial because the prosecutor committed `flagrant, prejudicial misconduct' by misstating the law on (1) firearm enhancements and (2) reasonable doubt. Br. of Appellant at 41.
To establish prosecutorial misconduct, the defendant must prove the impropriety of the prosecutor's conduct and its prejudicial effect on the trial. State v. Johnson, 113 Wn. App. 482, 492, 54 P.3d 155 (2002), review denied, 149 Wn.2d 1010 (2003). We review the prosecutor's comments `in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.' State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).
(1) Firearm Enhancement
In closing, when arguing that the firearm enhancements had been proven, the prosecutor told the jury:
What the law says, in terms of its strictness, is if you want to own a gun to go hunting or you want to have a gun in your drawer for home protection or if you even want to get a concealed weapons permit . . ., you can do that.
All this law says is if you're going to commit crimes, you can't be armed at that time. Not that you can't use it. You cannot be armed. And that makes sense because it's in the commission of crimes that the greatest risk of confrontation exists. Confrontation with the victim of a crime; confrontation with the police. That is the greatest likelihood for a gun to be used in the wrong manner, so the law says if you're committing a crime, you don't even get to have one on you.
. . . .
Remember Officer Brady said [Miller's gun] was within an arm's reach. Reach back and get it. And now what? It might have been in a zippered compartment. . . . For sake of argument, . . . let's say it was zippered. Reach for the backpack, open the zipper, pull out the gun. Is that good enough to be armed? Takes like a second or two.
4 RP at 377-79 (emphasis added).
Miller's counsel did not object. But for the first time on appeal, Miller excepts to the prosecutor's statement `that `the law says' that a person who commits a crime cannot have a gun, even if it is in a zippered compartment in a backpack in the back seat of a car.' Br. of Appellant at 17 (citing 3 RP at 178). But taken in the context of the State's whole argument, the challenged statement did not misstate the law. A person committing a crime may not be lawfully armed while committing the offense. The prosecutor's argument was proper and there was no misconduct.
(2) Reasonable Doubt
Next, Miller asserts that the prosecutor's `puzzle example' mischaracterized the law of reasonable doubt. The prosecutor stated:
At some point in the day, I'm going to have to put in enough puzzle pieces that you can walk by, and without every single piece being there — like all of you being at the scene and seeing exactly what happened — you're going to walk by that puzzle, look at it and say, `That's the Statue of Liberty.'
4 RP at 396. The judge overruled defense counsel's objection to these remarks.
Miller does not cite any authority to support the proposition that the puzzle analogy is improper. And the State correctly points out that the gist of the argument was that even if jurors are not present to witness the commission of the crime, they can still understand what happened to a level of certainty that satisfies the reasonable doubt standard.
Further, the puzzle analogy is consistent with 11 Washington Pattern Jury Instructions: Criminal 4.01, at 65 (2d ed. 1994), which the jury received as Instruction No. 2. That instruction states in part:
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence. If, after such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.
Clerk's Papers (CP) at 41. Again, taken in context, the puzzle analogy is not a mischaracterization of the law and therefore not prosecutorial misconduct.
Miller's claim that the prosecutor engaged in misconduct is unfounded.
Ineffective Assistance of Counsel
Miller contends that his trial counsel provided ineffective assistance by failing to object to the prosecutor's firearm enhancement argument and by failing to object to the improper calculation of Miller's offender score. We disagree.
To prevail on his ineffective assistance of counsel claim, Miller must demonstrate that (1) his counsel's performance was deficient; and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Prejudice results when there is `a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The decision of when or whether to object is a matter of trial tactics and, only in egregious circumstances will the failure to object constitute incompetence of counsel justifying reversal. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662, review denied, 113 Wn.2d 1002 (1989).
Miller claims that his counsel was ineffective for failing to object to the State's firearm enhancement argument. But the State did not misstate the law of firearm enhancements. Miller's counsel was not ineffective for failing to object to proper argument. Because this case will be remanded for resentencing, Miller's second ineffective counsel claim, that his counsel was ineffective for failing to object to an incorrect offender score, is moot.
Insufficient Evidence of Firearm Enhancements
Miller also contends that there was insufficient evidence to support the firearm sentence enhancements because the evidence at trial did not support the jury verdict that he was armed at the time of commission of the crimes. Correspondingly, he asserts that the jury instructions relieved the State of its burden to prove the enhancements beyond a reasonable doubt.
In order to find a firearm enhancement, the jury must find `the defendant or an accomplice was armed with a deadly weapon at the time of the commission of the crime.' RCW 9.94A.602. A defendant is `armed' if he or she has a weapon that is readily available and accessible for his use for either offensive or defensive purposes. State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993); State v. Sabala, 44 Wn. App. 444, 448, 723 P.2d 5 (1986). In addition, we recently held that the State must instruct and prove that there is a nexus between the defendant and the weapon, and the weapon and the crime. State v. Holt, 119 Wn. App. 712, 727, 82 P.3d 688 (2004) (citing State v. Schelin, 147 Wn.2d 562, 577, 55 P.3d 632 (2002) (Alexander, C.J., concurring)). See also State v. Johnson, 94 Wn. App. 882, 895, 974 P.2d 855 (1999), review denied, 139 Wn.2d 1028 (2000); State v. Mills, 80 Wn. App. 231, 235-37, 907 P.2d 316 (1995).
Miller contends that the jury's firearm enhancement instructions relieved the State of its burden of showing a `nexus' between the gun and each of the crimes charged.
Jury instructions are sufficient if they correctly state the law, are not misleading, and permit counsel to argue his theory of the case. State v. Mark, 94 Wn.2d 520, 526, 618 P.2d 73 (1980). A jury instruction that misstates the law and prejudices the defendant requires reversal. State v. Kennard, 101 Wn. App. 533, 537, 6 P.3d 38, review denied, 142 Wn.2d 1011 (2000). We read the instructions in their entirety to determine their sufficiency. See State v. Schulze, 116 Wn.2d 154, 167, 804 P.2d 566 (1991).
Here, Instruction No. 23 stated `[a] person is armed with a firearm if the firearm is easily accessible and readily available for offensive or defensive use.' CP at 62. Instruction No. 22 informed the jury that `[f]or purposes of a special verdict, the State must prove beyond a reasonable doubt that the defendant was armed with a firearm at the time of the commission of the crime in Count One, Two, Three, respectively.' CP at 61. Thus, Miller argues that nothing informed the jury as to the necessary `nexus' between the firearm and the charged crimes and that his sentence may not be enhanced.
Three cases are instructive in defining the situations in which our courts have held that a trier of fact may find the firearm sentence enhancement appropriate. In Sabala, officers found a loaded gun underneath the driver's seat of the car driven by the defendant. 44 Wn. App. at 448. At trial, the State's witness testified the gun was easily visible to anyone leaning into the car; thus the court held that `there was sufficient evidence to support the finding the gun was easily accessible and readily available for use by the defendant for either offensive or defensive purposes.' Sabala, 44 Wn. App. at 448. In Valdobinos, however, where defendants were convicted on drug charges, the court held that an unloaded gun found in the bedroom under the bed did not support a deadly weapon enhancement under former RCW 9.94A.125 (1983). 122 Wn.2d at 281. And, in Schelin, while noting that `the mere presence of a weapon at a crime scene may be insufficient to establish the nexus between a crime and a weapon,' 147 Wn.2d at 570, our Supreme Court held:
[T]he evidence established Schelin was in close proximity to a loaded gun which he constructively possessed to protect his marijuana grow operation. When we apply the nexus test . . . the inferences support a conclusion that Schelin was `armed.' Schelin admitted to being in close proximity to an `easily accessible and readily available' deadly weapon. The jury was entitled to infer he was using the weapon to protect his basement marijuana grow operation. Schelin stood near the weapon when police entered his home and could very well have exercised his apparent ability to protect the grow operation with a deadly weapon, to the detriment of the police.
Schelin, 147 Wn.2d at 574-75 (emphasis added).
In Schelin, the Supreme Court resolved `seemingly inconsistent applications of nexus tests by the court of appeals concerning the deadly weapon sentence enhancement.' 147 Wn.2d at 570. Out of this division, State v. Simonson, 91 Wn. App. 874, 960 P.2d 955 (1998), review denied, 137 Wn.2d 1016 (1999), and out of Division One, Johnson, 94 Wn. App. 882. In Simonson, police discovered an exploded methamphetamine laboratory in a green trailer. The defendant, Simonson, had lived on the same property in a nearby silver trailer with his girlfriend, Susan Robinson. However, on the day of the explosion, Simonson was in jail on unrelated charges. The first person to arrive at the scene saw Robinson emerge from the silver trailer, badly burned. A few minutes later, emergency personnel found a loaded handgun in the mud outside the green trailer. A search of the silver trailer yielded a number of firearms found in the bedroom, in a cabinet above the bed, behind a table at the opposite end of the bed, and also behind the bedroom television on another table. The search also uncovered 10,000 pseudoephedrine pills in the bedroom. Simonson was convicted of unlawfully manufacturing a controlled substance and found, by special verdict, to have been `armed' with a deadly weapon at the time of the unlawful manufacture. We held:
Taken in the light most favorable to the State, the evidence here shows that Simonson and Robinson were committing a continuing offense, manufacturing methamphetamine, over a six-week period of time. During some or all of that time, they kept seven guns on the premises. . . . We conclude that the evidence is sufficient to support the deadly weapon enhancement.
Simonson, 91 Wn. App. at 883. Later, in Johnson, Division One criticized Simonson for `abandon[ing] the proximity rationale for one that allows the court to find a defendant `armed' with a deadly weapon where a weapon is present on the premises during a crime that continues over a period of time.' Johnson, 94 Wn. App. at 895. But, as Schelin later clarified, the critique [in Johnson] comes from a superficial analysis of Simonson which fails to account for the accomplice liability which was present in Simonson.
. . . .
. . . [T]he Simonson court did not abandon establishing a nexus between the crime, weapon, and defendant or accomplice. The Simonson court clarified only that the defendant or an accomplice must be in proximity to a deadly weapon at the time a crime is committed. This conclusion is consistent with Valdobinos and Mills.
147 Wn.2d at 572. Our holding here is consistent with Schelin.
An instruction that relieves the State of its burden to prove every element of a crime requires automatic reversal, but not every omission or misstatement in a jury instruction relieves the State of its burden. State v. Brown, 147 Wn.2d 330, 340, 58 P.3d 889 (2002) (plurality opinion) (adopting the Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), holding that a jury instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair). The question here is therefore `whether it appears `beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'' Brown, 147 Wn.2d at 341 (quoting Neder, 527 U.S. at 15). When applied to an element omitted from, or misstated in, a jury instruction, the error is harmless if that element is supported by uncontroverted evidence. Brown, 147 Wn.2d at 341 (citing Neder, 527 U.S. at 18).
Here, uncontroverted evidence established a nexus between Miller, the weapon, and the three crimes, possession of methamphetamine with intent to deliver, manufacture of methamphetamine, and possession of pseudoephedrine with intent to manufacture methamphetamine. Regarding the possession with intent to deliver charge, Miller testified that he borrowed the Tracer to make a drug sale because he deemed his own vehicle too likely to be pulled over because of its poor condition. And although Miller testified that he was not actually reaching for the backpack at the time that the officers approached the Tracer, there was uncontroverted evidence that Miller's gun was `easily accessible' while he was driving the Tracer the officers testified that the backpack where the loaded gun was found was located directly behind the driver's seat and within Miller's reach; there was no testimony to the contrary. Moreover, regarding the manufacturing and possession of pseudoephedrine with intent to manufacture, the gun was found in a backpack with items used in the manufacture of methamphetamine, including baggies of pseudoephedrine, and found near the fanny pack containing additional items used for manufacturing. Moreover, Miller himself testified to the relative scarcity of methamphetamine manufacturing supplies, and Fry testified regarding a methamphetamine manufacturer's need to protect his investment. Also, Miller's own testimony established a basis to infer that he was using the gun for protection: He testified that he had purchased the gun `in regards to . . . being shot a few years ago.' 4 RP at 345. The uncontroverted evidence overwhelmingly established a nexus between the gun and each of the crimes charged. The instructions did not relieve the State of its obligation to prove that Miller was armed at the time of commission of the crimes.
Miller testified that he tossed [the backpack and his leather jacket] in the back of the car, the back seat being down. Jeff[, the individual from whom Miller had borrowed the car,] had just moved . . . and he had some stuff in the car that required the seat to be down. I just threw the backpack and the coat to the back of the car. I don't know exactly where it landed. 4 RP at 299.
Because we hold that uncontroverted evidence established a nexus between firearm and the charged crimes, we also hold here was also sufficient evidence to support the jury's finding that he was armed at the time of commission of the crimes. See Schelin, 147 Wn.2d at 572.
Juvenile Convictions
Miller next contends that his juvenile convictions for second degree burglary should not count toward his offender score. The State correctly concedes that counting these convictions was error.
Prior to 1997, `criminal history' was defined to include a defendant's prior convictions in juvenile court if (1) the conviction was for an offense that is a felony or a serious traffic offense and is criminal history as defined in former RCW 13.40.020(9) (1995); (2) the defendant was 15 years of age or older at the time the offense was committed; and (3) with respect to prior juvenile class B or C felonies or serious traffic offenses, the defendant was less than 23 years of age at the time of the current offense. Former RCW 9.94A.030(12)(b) (1996).
The trial court used Miller's three juvenile convictions in computing his offender score. Miller was born on December 26, 1961. Thus, he turned 23 on December 26, 1984. He was over 23 years old at the time he committed the current offense, and his juvenile convictions, all class B felonies, had washed out. Moreover, Miller committed the current crimes on April 8, 2002, before the 2002 amendment requiring inclusion of a defendant's juvenile offenses in his offender score took effect. See State v. Varga, 151 Wn.2d 179, 192-94, 86 P.3d 139 (2004). Therefore, the State correctly concedes that Miller's sentence must be vacated and his case remanded to the trial court for recalculation of his offender score, excluding his washed out juvenile convictions, and for resentencing based on the recalculated score.
See RCW 9A.52.030 (`Burglary in the second degree').
Adult Convictions
Miller also challenges the use of his 1995 second degree possession of stolen property conviction in calculating his offender score. We have no information on Miller's release date and cannot determine from the record whether Miller's second degree possession of stolen property conviction has also washed out. But it is an inefficient use of resources to require Miller to address the washout issue in a personal restraint petition, as the State suggests. We may reverse, affirm, or modify the decision being reviewed and take any other action as the merits of the case and the interest of justice may require. RAP 12.2. Thus, on remand we direct the trial court to determine whether Miller spent five crime-free years in the community between 1995 and 2001, and therefore whether his second degree possession of stolen property conviction may be used in calculating his offender score and to sentence him accordingly. We affirm Miller's convictions and firearm sentence enhancements, but we remand for resentencing. On remand, the trial court must exclude Miller's washed out juvenile convictions. But the court may include Miller's adult second degree possession of stolen property conviction if the State proves that it has not washed out.
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.
MORGAN, J. and HUNT, J., Concur.