Opinion
No. 35071-8-II.
January 15, 2008.
Appeal from a judgment of the Superior Court for Lewis County, No. 06-1-00150-2, Richard L. Brosey, J., entered July 5, 2006.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Bridgewater and Penoyar, JJ.
Scott Ridgley appeals his conviction and sentence on possession of a controlled substance, RCW 69.50.4013(1). He raises numerous arguments. We affirm.
FACTS
We derive the facts from the trial testimony.
On March 4, 2006, as Lewis County Sheriff's Deputy Eric Weinreich was on patrol in the Onalaska area, he followed a Ford Astrovan coming from Gish Road until the vehicle stopped in front of a residence on Main Street. Ridgley apparently drove the Astrovan from his residence on Gish Road to the residence on Main Street.
Weinreich stopped his patrol car and approached the van. He recognized Ridgley. Weinreich testified that he knew Ridgley had outstanding arrest warrants. As Ridgley began to exit the van, Weinreich drew his firearm and told Ridgley that "he had two outstanding felony warrants for his arrest and that he was under arrest." I Report of Proceedings (RP) at 27-28. Weinreich reported Ridgley's response was to the effect of "`[w]hat are you talking about? I don't understand. What do you mean? I don't have any warrants.'" RP at 28.
After Ridgley stepped out of the van, Weinreich holstered his firearm and attempted to handcuff Ridgley. But Ridgley broke free and ran and a foot chase ensued. Ridgley eventually fell in the front lawn of a nearby residence. While Ridgley was lying on the ground, Weinreich handcuffed him. Upon raising Ridgley, Weinreich saw a clear baggie containing a crystal-like substance on the ground where he had been lying. Weinreich testified that when he picked up the baggie, Ridgley blurted out something to the effect of "`[i]t's not mine.'" RP at 34. The State charged Ridgley with possession of a controlled substance, RCW 69.50.4013(1), and resisting arrest, RCW 9A.76.040. At a CrR 3.5 hearing, the trial court found Miranda did not apply to any of the statements Ridgley made during his arrest because Weinreich did not obtain the statements through interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct 1602, 16 L. Ed. 2d 694 (1966). The trial court admitted the statements.
Ridgley testified that Weinreich never grabbed hold of him before the chase ensued.
Ridgley testified that he did not remember making any statements about the baggie and that he never saw it prior to Weinreich arresting him.
Weinreich testified at the CrR 3.5 hearing that, as Ridgley exited the Astrovan and before the foot chase, he "knew that Mr. Ridgley had two outstanding warrants for his arrest, and at that point [he] told Mr. Ridgley that [he] was aware of [Ridgley's] warrants, that [Ridgley] had warrants, and that [Ridgley] was under arrest for those warrants." RP at 14. Weinreich also testified that Ridgley responded to the effect that "he didn't have any idea what [Weinreich] was talking about." RP at 14.
During Weinreich's cross-examination, defense counsel addressed the warrants as follows:
Q. So you knew that night, because you talked about warrants, that you had some photographs of what Ridgley looked like, right?
A. I did not have them in hand, but there was one in the control room.
Q. You had seen those?
A. Yes.
Q. So that was refreshing your memory of what [Ridgley] looked like; correct?
A. As well as booking photos, yes.
RP at 17-18. Defense counsel did not address the warrants any further during the hearing.
During trial, Franklin Boshears, a forensic scientist with the Washington State Patrol Crime Lab, testified that laboratory analysis revealed the white crystalline powder inside the baggie contained methamphetamine. Based on Boshear's testimony, the trial court admitted the baggie into evidence as exhibit one, the sole exhibit entered over the course of Ridgley's trial. Boshears did not testify about any other controlled substance.
The issue of whether the Weinreich checked the validity of the warrants prior to arresting Ridgley did not arise until closing argument. At that point, defense counsel argued that Weinreich never confirmed the existence and validity of the arrest warrants. Defense counsel asserted accordingly that the State failed to prove a required element of resisting arrest, namely, that Ridgley resisted a lawful arrest.
The jury found Ridgley guilty as charged. The trial court sentenced him to 24 months out of a standard sentence range of 12-plus to 24 months. Ridgley appeals.
ANALYSIS Validity of Arrest Warrants
Ridgley first contends that his arrest was unlawful, violating his constitutional rights under the Fourth Amendment and article I, section 7 of the Washington Constitution. He bases this argument on the assumption that Weinreich failed to confirm the existence and validity of the arrest warrants before arresting him. Ridgley presents this argument for the first time on appeal, asserting a manifest error affecting his constitutional rights.
Even assuming it is of constitutional magnitude, Ridgley's argument fails. His argument presupposes that Weinreich failed to check the existence and validity of the warrants and that the warrants were invalid. Nothing in the record shows that Weinreich failed to check the status of the warrants before he attempted to arrest Ridgley.
Because Ridgley cannot point to any prejudice within the record, his argument fails.
Ineffective Assistance of Counsel
Ridgley next contends that, because defense counsel failed to move to suppress the evidence obtained as a result of his arrest, he received ineffective assistance of counsel. He argues that defense counsel lacked any legitimate strategic or tactical reason for not requesting a hearing under CrR 3.6.
He also argues that such a motion would have been granted. We disagree. See Validity of Arrest Warrants section above.
We determine competency of counsel based on the entire record below and engage in a strong presumption of counsel's effective representation. State v. McFarland, 127 Wn.2d 322, 335, 889 P.2d 1251 (1995). To establish ineffective assistance of counsel, Ridgley must show defense counsel's deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We do not presume that a CrR 3.6 hearing is necessarily required in every case in which there is a question as to the validity of a search and seizure. McFarland, 127 Wn.2d at 336. Thus, failure to move for a suppression hearing is not per se deficient representation. McFarland, 127 Wn.2d at 336. If counsel's conduct can be characterized as legitimate trial tactics or strategy, that conduct cannot serve as the basis for a claim of ineffective assistance of counsel. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). Ridgley does not demonstrate ineffective assistance of counsel. Characterizing defense counsel's decision to wait until closing argument to address the validity and existence of the warrants as a strategic decision is not difficult. If defense counsel unsuccessfully raised the issue before closing, Ridgley would have lost the "unlawful" arrest argument. He also would have lost the opportunity to appeal his conviction on grounds of a manifest error affecting a constitutional right. Because Ridgley fails to meet the first prong of an ineffective assistance of counsel claim, we do not address the prejudice prong of Strickland. CrR 3.5 Pretrial Hearing Next, Ridgley contends the trial court was required to suppress his statements under CrR 3.5. He claims that "the trial court was charged (by CrR 3.5) with determining the admissibility of [his] statements and any testimonial acts" and that it should have excluded such evidence because Weinreich "did not confirm the existence or validity of the warrants" and the State did not produce evidence to show the warrants were valid. Appellant's Br. at 9-10. Thus, Ridgley argues the trial court had a duty to establish that Weinreich confirmed the validity and existence of the warrants before attempting the arrest and to require the State to show the warrants were valid, even though defense counsel did not question the propriety of the warrants. Ridgley fails to cite authority to support this argument; therefore, we decline to address it further. RAP 10.3(a)(6); State v. Kilgore, 107 Wn. App. 160, 175-76, 26 P.3d 308 (2001), aff'd, 147 Wn.2d 288, 53 P.3d 974 (2002); RAP 10.3(a)(6).
Even if we were to analyze the claim, we decline to read into the rule an affirmative duty on the trial court as Ridgley proposes.
"To Convict" Instruction
Additionally, for the first time on appeal, Ridgley contends that the trial court committed reversible error when it used "controlled substance" rather than "methamphetamine" in its "to convict" instruction, citing State v. Goodman, 150 Wn.2d 774, 785-86, 83 P.3d 410 (2004) and State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997).
Goodman is inapposite to Ridgley's appeal. Goodman involved whether an amended information was defective because it identified the controlled substance as "meth" rather than "methamphetamine." 150 Wn.2d at 778. Our Supreme Court determined that Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), was implicated in Goodman and held that "under Apprendi, the identity of a controlled substance is an element of the offense where it aggravates the maximum sentence with which the court may sentence a defendant." Goodman, 150 Wn.2d at 785-86. RCW 69.50.4013(2) provides: "Except as provided in RCW 69.50.4014, any person who violates this section is guilty of a class C felony punishable under chapter 9A.20.RCW." RCW 69.50.4014 provides: "Except as provided in RCW 69.50.401(2)(c), any person found guilty of possession of forty grams or less of marihuana is guilty of a misdemeanor." Here, unlike in Goodman, the possession of any controlled substance would have resulted in the same standard sentencing range, except for misdemeanor possession of marijuana. Ridgley's argument fails. See footnote 8.
Ridgley's reliance on Smith is also misplaced. Smith involved a defendant charged with conspiracy to commit murder in the first degree. 131 Wn.2d at 260. The "to convict" instruction informed the jury that, to convict the defendant of criminal conspiracy, it had to find the following elements proved beyond a reasonable doubt: the defendant "`agreed . . . to engage in . . . the performance of conduct constituting the crime of Conspiracy to Commit Murder in the First Degree.'" Smith, 131 Wn.2d at 260-61 (emphasis omitted). Our Supreme Court determined that the instruction was inadequate to advise the jury of the conspiracy charge. Smith, 131 Wn.2d at 261-63. Its rationale was that the "to convict" instruction purported "to be a complete statement of the law yet states the wrong crime as the underlying crime which the conspirators agreed to carry out" and it noted that, under the instructions, the jury simply found the defendant agreed to conspire to commit murder not that she agreed to commit murder. Smith, 131 Wn.2d at 263. Here, the instruction properly informed the jury of the applicable law. Ridgley's argument fails.
Appellant's Br. at 10-11. He argues that failure to identify the controlled substance as methamphetamine was improper based on the availability of a misdemeanor possession charge under RCW 69.50.4014.
We review alleged errors in jury instructions de novo in the context of the jury instructions as a whole. State v. Bennett, 161 Wn.3d 303, 307, 165 P.3d 1241 (2007). The "to convict" instruction must contain all the elements of the crime as it serves as the "yardstick" by which the jury measures the evidence to determine guilt or innocence. State v. Lorenz, 152 Wn.2d 22, 31, 93 P.3d 133 (2004). We may not rely on other instructions to supply a missing element from the "to convict" instructions. Smith, 131 Wn.2d at 262-63. "Instructions must convey to the jury that the State bears the burden of proving every essential element of a criminal offense beyond a reasonable doubt." Bennett, 131 Wn.2d at 307. We find jury instructions sufficient if the instructions allow counsel to argue their case theories, are not misleading, and properly inform the trier of fact of the applicable law when read as a whole. State. v. Douglas, 128 Wn. App. 555, 562, 116 P.3d 1012 (2005). When an instructional error has practical and identifiable consequences in the trial, we find that is a manifest error affecting a constitutional right. State v. Stein, 144 Wn.2d 236, 240-41, 27 P.3d 184 (2001); State v. Pittman, 134 Wn. App. 376, 381, 166 P.3d 720 (2006).
For the jury to convict Ridgley, the State had to prove that he possessed methamphetamine, RCW 69.50.4013(1). Instruction 6, the "to convict" instruction, required the State to prove that Ridgley possessed a controlled substance consistent with RCW 69.50.4013(1). Instruction 8 informed the jury that methamphetamine was a controlled substance. Also, methamphetamine was the sole controlled substance addressed in amended information, trial testimony, closing arguments, and instructions.
Ridgley's argument does not persuade us. Moreover, we can easily rule out misdemeanor possession of marijuana under the facts of his case. Read together in a commonsense manner, the instructions ensure that the jury found Ridgley guilty as charged. The asserted infirmities of instruction 6 did not result in practicable and identifiable consequences and Ridgley's argument fails. See Stein, 144 Wn.2d at 240-41; see also Pittman, 134 Wn. App. at 381.
The jury found Ridgley "guilty of the crime of Possession of a Controlled Substance as charged in Count I." Clerk's Papers (CP) at 19. Count I of the amended information stated in relevant part:
POSSESSION OF A CONTROLLED SUBSTANCE, which is a violation of RCW 69.50.4013(1), the maximum penalty for which is 5 years in prison and a $10,000 fine, in that defendant on or about March 04, 2006, in Lewis County, Washington, did then and there unlawfully possess a controlled substance, to-wit: methamphetamine; against the peace and dignity of the State of Washington.
CP at 15. Count I mentions no other drug. RCW 69.50.4013(1) provides:
(1) It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter.
(Emphasis added.)
Moreover, the trial court sentenced Ridgley to 24 months out of a standard range of 12 plus to 24 months. It determined the standard range based on his offender score of 9 plus and a seriousness level of one in accordance with RCW 9.94A.517. Violation of RCW 69.50.4013 results in a seriousness level of one for possession of narcotics from schedules III, IV, or V, nonnarcotics from schedules I-V, and either heroin or narcotics from schedules I or II. RCW 9.94A.518.
In other words, Ridgley received the lowest possible seriousness level and, in turn, the shortest standard range possible in light of his offender score. See 13A Seth A. Fine Douglas J. Ende, Washington Practice: Criminal Law § 901, at 75 (2d ed. Supp. 2007). Accordingly, even if the jury had confused methamphetamine with another controlled substance, any error would be harmless beyond a reasonable doubt. See Washington v. Recuenco, ___ U.S. ___, 126 S. Ct. 2546, 2553, 165 L. Ed. 2d 466 (2006).
Alleged Blakely Error
Finally, Ridgley argues that the trial court violated his Sixth Amendment right to trial by jury. He asserts that, because the jury did not make a finding as to the identity of the controlled substance, he received an aggravated sentence in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2005). Ridgley contends the trial court "was permitted to impose only the minimum sentence available for possession of a controlled substance, which is 90 days in jail and/or a fine of up to $1000," citing RCW 69.50.4014 and RCW 9.92.030.
RCW 9.92.030 provides:
Every person convicted of a misdemeanor for which no punishment is prescribed by any statute in force at the time of conviction and sentence, shall be punished by imprisonment in the county jail for a maximum term fixed by the court of not more than ninety days, or by a fine in an amount fixed by the court of not more than one thousand dollars or both such imprisonment and fine.
"Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). For purposes of Apprendi, the statutory maximum "is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303 (emphasis omitted). Here, the instructions did not require that the jury identify one controlled substance from two or more substances in reaching its verdict. And the trial court sentenced Ridgley within the standard range, which was based on the jury's verdict, and it did not consider enhancements in sentencing Ridgley. Accordingly, Apprendi and Blakely are not implicated, and Ridgley's argument 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.
BRIDGEWATER, J., PENOYAR, J., concur.