Opinion
No. 35794-1-II.
May 20, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-02559-0, Rosanne Buckner, J., entered January 12, 2007.
Affirmed in part and remanded by unpublished opinion per Van Deren, A.C.J., concurred in by Hunt and Penoyar, JJ.
Henry Pullen appeals his convictions for harassment and unlawful possession of a controlled substance, cocaine, with intent to deliver. Pullen took money from a confidential informant for crack cocaine and then told an undercover police officer that he would shoot him. Pullen argues on appeal that (1) substantial evidence did not support the trial court's finding of fact that police read adequate Miranda warnings to him before they spoke to him, (2) the evidence is insufficient to prove that he intended to deliver a controlled substance, (3) the prosecutor committed misconduct during closing argument, (4) the sentencing court improperly calculated his offender score, and (5) his judgment and sentence erroneously contains two crime victim assessments. We accept the State's concession on duplicate crime victim assessments and otherwise affirm.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
FACTS
Lakewood Police Officer Ryan Hamilton worked undercover with a confidential informant. The informant contacted Pullen, asking to buy cocaine with $40 of prerecorded buy money from the police. Police searched the informant for drugs and other money and found none. They set up surveillance and Hamilton and the informant first met Pullen at a Denny's parking lot, and then relocated to a nearby gas station.
The informant tried to complete the drug deal while Hamilton waited nearby but, after about ten minutes, Pullen approached Hamilton. Pullen introduced himself, hugged Hamilton, and told him he did not have anything to worry about, that he would take care of him. Hamilton asked about Pullen "hooking [him] up" and Pullen responded that he "had the stuff." 1 Report of Proceedings (RP) at 66-67.
The transcripts of hearings held on October 11, 12, 13, 2006, November 9, 2006, and January 12, 2007, are all included in one volume (1) of report of proceedings.
When Pullen noticed that Hamilton had a gun his demeanor instantly changed. He told Hamilton: "I will [f — ing] shoot you. Get into your [f — ing] car and leave. Don't come back."
1 RP at 68. Hamilton began to walk away and signaled for backup officers to approach. Pullen repeated, "I'm not joking. I will [f — ing] shoot you. Get into your [f — ing] car and [f — ing] leave." 1 RP at 68. Hamilton feared a gun fight would occur.
Police arrested Pullen. He told a backup officer, Sean Conlon, that he "was just a smalltime dealer." 1 RP at 107-08. Following a search incident to arrest, police found the $40 prerecorded buy money and an additional $129 in Pullen's pockets. Inside Pullen's car, police also found drug paraphernalia, the cell phone with the number that the informant had called to set up the drug deal, and a bag containing 2.5 grams of cocaine. The cocaine was in an open bag on Page 3 the floor near the driver's seat.
The State charged Pullen with: attempted unlawful delivery of a controlled substance (count I), unlawful possession of a controlled substance with intent to deliver (count II), and harassment (bodily injury) (count III). Following a CrR 3.5 hearing, the trial court ruled that Pullen's statement that he was a drug dealer was admissible. A jury found Pullen guilty of count II, possession with intent to deliver, and count III, harassment. It acquitted him on count I. The trial court sentenced him at the high end of the standard range, 120 months confinement, based on an offender score of 15.
Pullen appeals.
ANALYSIS
I. Miranda Warnings
Pullen first argues that the evidence is insufficient to support the trial court's finding that police read him adequate Miranda warnings before he confessed to being a drug dealer. We disagree.
Pullen does not argue the Miranda warnings were inadequate. Officer Hamilton read the contents of his constitutional rights card at trial. We hold that the warnings were adequate. State v. Brown, 132 Wn.2d 529, 582, 940 P.2d 546 (1997) (quoting Miranda, 384 U.S. at 479).
Findings of fact entered by a trial court following a CrR 3.5 hearing are binding if substantial evidence supports them. State v. Broadaway, 133 Wn.2d 118, 129-34, 942 P.2d 363 (1997). Evidence is substantial if it is "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), overruled on other grounds by Brendlin v. California, ___ U.S. ___, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007)).
Under Miranda, a suspect in custody "`must be warned prior to any questioning that [(1)] he has the right to remain silent, [(2)] that anything that he says can be used against him in a court of law, [(3)] that he has the right to the presence of of an attorney, and [(4)] that if he cannot afford an attorney one will be appointed for him.'" State v. Brown, 132 Wn.2d 529, 582, 940 P.2d 546 (1997) (quoting Miranda, 384 U.S. at 479). Before admitting a defendant's custodial statements, the State must prove by a preponderance of the evidence that the defendant was advised of his Miranda rights and made a voluntary, knowing, and intelligent waiver of those rights before making the statements to police. State v. Braun, 82 Wn.2d 157, 162, 509 P.2d 742 (1973).
At the CrR 3.5 hearing, officer Hamilton testified that he advised Pullen of his Miranda rights from a preprinted card. But at the CrR 3.5 hearing he did not read the contents of the card on direct or cross-examination and the State did not seek to admit the card as an exhibit. Pullen testified that officer Conlon read him Miranda warnings, that Hamilton did not, and that he did not waive his rights. Pullen's attorney argued that: "Officer Hamilton never read into the record what rights he read to Mr. Pullen. . . . So we don't know what rights were read to Mr. Pullen by Officer Hamilton if he did, in fact, read him his rights." 1 RP at 41.
The trial court noted, "We do not have the exact wording of the constitutional rights as stated by or as read by Officer Hamilton to Mr. Pullen, but Mr. Pullen does acknowledge that he was advised of his constitutional rights." 1 RP at 43. And the trial court entered the "Undisputed Fact" that: "The defendant was advised of his [c]onstitutional rights." We infer from the context here that "[c]onstitutional rights" means the Miranda warnings. Clerk's Papers (CP) at 71. See State v. Ford, 110 Wn.2d 827, 832-33, 755 P.2d 806 (1988) (analyzing whether substantial evidence supported the trial court's "stated or reasonably inferred factual determinations"); State v. Mackenzie, 114 Wn. App. 687, 696, 60 P.3d 607 (2002) (holding that "we accept a trial court's stated or inferred factual determinations if they are supported by substantial evidence").
The evidence is sufficient to persuade a fair-minded, rational person of the truth of the trial court's finding that Pullen's Miranda rights were read to him before his statements to police. Hamilton testified that he read Pullen his constitutional rights from a pre-printed card and Pullen testified that Conlon read Miranda warnings to him. We hold that testimony or evidence in the record from the CrR 3.5 hearing about the content of Hamilton's printed card was unnecessary to the trial court's finding, particularly in light of the fact that Pullen failed to challenge the legal adequacy of the warnings at trial or on appeal.
II. Sufficient Evidence of Possession of Cocaine with Intent to Deliver
Pullen next argues that the evidence is insufficient to support his conviction for possession of cocaine with intent to deliver. Specifically, he argues the evidence did not support the "intent to deliver" element of the charge. Again, we disagree.
When reviewing a challenge to the sufficiency of the evidence, we view the evidence "in the light most favorable to the State [to determine whether] any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "In determining the sufficiency of the evidence, circumstantial evidence is not to be considered any less reliable than direct evidence." State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We must defer to the trier of fact on any issue that involves "conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
To convict Pullen for possession of a controlled substance with intent to deliver, the State had to prove that he unlawfully possessed a controlled substance, here cocaine, with the intent to deliver. RCW 69.50.401(1). "Convictions for possession with intent to deliver are highly fact specific and require substantial corroborating evidence in addition to the mere fact of possession." State v. Brown, 68 Wn. App. 480, 485, 843 P.2d 1098 (1993).
Substantial evidence supports Pullen's conviction: (1) Pullen met the confidential informant after the informant called him, asking to purchase cocaine; (2) Pullen told Hamilton, who was working undercover, that he had the "stuff" Hamilton wanted; (3) when arrested, Pullen possessed the buy money from the informant, an additional $129 in cash, the cell phone the informant had called Pullen on to arrange the cocaine purchase, 2.5 grams of cocaine, and drug paraphernalia; and (4) Pullen told officer Conlon that he was a "small-time dealer." 1 RP at 66, 107-08. Thus, Pullen's sufficiency claim fails.
III. Prosecutorial Misconduct During Closing Argument
Pullen also contends that the prosecutor committed prejudicial misconduct in closing argument. We disagree.
To establish prosecutorial misconduct, Pullen must show "that the prosecutor's conduct was both improper and prejudicial in the context of the entire record." State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003). A prosecutor commits error in closing argument if it is clear and unmistakable that he "is not arguing an inference from the evidence, but is expressing a personal opinion." State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983). We view the allegedly improper statements "within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions." State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). And "[a] defendant's failure to object to a prosecuting attorney's improper remark constitutes a waiver of such error, unless the remark is deemed so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997).
A prosecutor may not argue that "in order to acquit a defendant, the jury must find that the State's witnesses are either lying or mistaken." State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996). But a prosecutor may properly draw inferences "from the evidence as to why the jury would want to believe one witness over another." State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995); see also State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996). Furthermore, "where a jury must necessarily resolve a conflict in witness testimony to reach a verdict, a prosecutor may properly argue that, in order to believe a defendant, the jury must find that the State's witnesses are mistaken." State v. Wright, 76 Wn. App. 811, 826, 888 P.2d 1214 (1995) (emphasis omitted).
Here, Pullen's sole defense to the charges was that the informant and officers were lying.
The prosecutor argued:
You are allowed to use your common sense. Based on everything you heard, you are judges of credibility. You decide. Did all the officers get up and lie? Did they tell you things that they just made up? They don't like Mr. Pullen? I don't think that's the case. . . . Use your common sense. You are allowed to use it when you are discussing this. 1 RP at 169 (emphasis added). Pullen did not object.
Pullen has not shown that the remarks were "flagrant and ill-intentioned." Stenson, 132 Wn.2d at 719. When viewed in context, the prosecutor's argument is crafted to inform the jury of its duty to judge credibility. And the prosecutor merely drew inferences from the evidence about why the jury should find the State's witnesses' testimony truthful. See State v. Fiallo-Lopez, 78 Wn. App. 717, 730-31, 899 P.2d 1294 (1995) (ruling that it is not misconduct for the prosecutor to argue that facts support the conclusion that the State's witnesses testified truthfully). Pullen's claim of prosecutorial misconduct fails.
Pullen also argues the prosecutor improperly appealed to the jury's passion and prejudice by saying "he intended to deliver that cocaine to community members." Pullen did not object to this statement at trial and we fail to see how the brief mention of "community members" is improper. 1 RP at 171. This argument has no merit.
IV. Crime Victim Assessments
Pullen also argues that his judgment and sentence erroneously contains two $500 crime victim assessments, one for his conviction for possession of cocaine with the intent to deliver and the other for his conviction for harassment. We accept the State's concession of error. RCW 7.68.035(2) authorizes a sentencing court to impose a $500 penalty "for each case or cause of action." As both convictions had the same cause number, the duplicate penalty was erroneous and we remand for resentencing.
V. Offender Score Calculation
Pullen further argues that his offender score was improperly calculated because several of his prior class C felony convictions "washed out." We hold that the record is insufficient to review this issue.
"We review de novo the sentencing court's calculation of the offender score." State v. Rivers, 130 Wn. App. 689, 699, 128 P.3d 608 (2005), review denied, 158 Wn.2d 1008 (2006), cert. denied, 127 S.Ct. 1882 (2007). "[I]llegal or erroneous sentences may be challenged for the first time on appeal." State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999). Although a defendant generally "`cannot waive a challenge to a miscalculated offender score,'" he may waive his challenge if "`the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion.'" State v. Ross, 152 Wn.2d 220, 231, 95 P.3d 1225 (2004) (quoting In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002)).
Pullen argues that several of the fifteen crimes in his offender score "washed out" under RCW 9.94A.525(2)(c). Prior class C felony convictions, other than sex offenses or driving while intoxicated, are not included in an offender score if the offender later spent five consecutive felony-free years in the community. The "wash-out" period is interrupted by confinement for any felony, including confinement on a parole revocation. State v. Smith, 65 Wn. App. 887, 892-93, 830 P.2d 379 (1992).
RCW 9.94A.525(2)(c) reads:
Except as provided in (e) of this subsection, class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.
The record is insufficient to show that Pullen's class C felonies washed out. Pullen's criminal history lists ten convictions between 1980 and 1990, followed by an eight-year gap and then four additional crimes between 1998 and 2005. Despite Pullen's assertions, the eight-year gap alone does not prove that his class C felony convictions before 1990 washed out. At any time during the eight years, Pullen could have been in prison, in community custody, or confined on a parole revocation. If so, the convictions at issue would not wash out. We cannot rule on the merits of this issue based on the record before us. See State v. Tolias, 135 Wn.2d 133, 140, 954 P.2d 907 (1998) (declining to decide issue because it "concerns matters outside the record and consequently cannot be considered on appeal").
Furthermore, Pullen may have waived this issue by failing to raise it at sentencing. Ross, 152 Wn.2d at 231. And it appears that any error would be harmless because Pullen's offender score would be more than 9; he was sentenced within the standard range, and the sentencing court indicated it based its sentence on his long criminal history as well as his multiple current offenses.
Accordingly, we remand for correction of the crime victim penalty assessment and affirm on all other grounds.
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.
HUNT, J. and PENOYAR, J., concur.