STATE v. JONES (2007)

OPINION PUBLISHED IN PART

¶ 1 Gene Jones appeals his jury trial convictions for:  (1) possession of methamphetamine with intent to manufacture or deliver;  (2) possession of an unlawful firearm;  and (3) possession of marijuana with intent to manufacture or deliver.   The jury returned special verdicts that the methamphetamine and marijuana charges occurred within 1,000 feet of a school bus stop and while armed with a dangerous weapon.   Jones challenges the sufficiency of the evidence supporting the school bus stop sentence enhancement and argues that charging the methamphetamine and marijuana in separate counts violates double jeopardy.   In his statement of additional grounds (SAG), Jones challenges the sufficiency of the evidence establishing his ownership of the backpack, money, marijuana, and methamphetamine.   Additionally, Jones argues that there should not have been a firearm enhancement because the bedroom clutter would have made it difficult for him to reach the guns.   He also asserts ineffective assistance of counsel.   We affirm Jones's convictions, reverse the school bus stop sentence enhancement, and remand for resentencing.

FACTS

¶ 2 Officers conducted three controlled methamphetamine buys from Magdalena Turrieta using a confidential informant.   Based on these controlled buys, officers obtained a search warrant for Turrieta's house.   On April 25, 2005, officers of the Kitsap County Sheriff's Office executed the search warrant on Turrieta's house located in Suquamish, Washington.   The officers found Jones and Turrieta, Jones's girlfriend, in a locked bedroom of the house.   Both Turrieta and Jones resided in the house.

¶ 3 Pictures admitted into evidence at trial show a cluttered bedroom, estimated to be about 10 feet wide and 12 feet long.   Detective Elton testified that “[i]t wasn't very big.”   Report of Proceedings (RP) (Jan. 6, 2006) at 108.   Detective Plumb testified that he observed “a pile of stuff ․ anything you can imagine stacked up, piled up in the room.”   RP (Jan. 6, 2006) at 89.   In the bedroom, Detective Plumb found a blue backpack containing $900 in cash and Jones's Washington identification card.

¶ 4 Underneath the mattress in the bedroom, Detective Elton found a locked bank bag containing digital scales and marijuana.   He also found two glass pipes with residue.   He testified that glass pipes are commonly used to smoke methamphetamine.   Next to the pipes were plastic baggies containing methamphetamine.

¶ 5 Detective Plumb had to walk on the items on the floor to reach the closet.   There, he found “a couple of rifles and a smaller old shotgun” leaning against the wall in the bedroom closet and a gun leaning barrel-up against the wall near the bed.   RP (Jan. 6, 2006) at 91.   When Detective Elton pulled the action back, a live round ejected from the gun.   Detective Plumb testified that drug dealers often keep firearms accessible for personal protection in drug distribution.

¶ 6 Officers also discovered a closed circuit television system in the house.   The cameras were operating, monitoring real time views of outside the house at the time of the search warrant.   Officers also found night vision goggles and a police scanner.

¶ 7 The State charged Jones with:  (1) possession of methamphetamine with intent to manufacture or deliver ¹ , while armed with a firearm ² and within 1,000 feet of a school bus stop; ³  (2) possession of an unlawful firearm; ⁴  and (3) possession of marijuana with intent to manufacture or deliver,⁵ while armed with a firearm and within 1,000 feet of a school bus stop.⁶

¶ 8 At trial, Detective Weiss testified that there is a North Kitsap School bus stop at the intersection of Brockton and Columbia Street.   Detective Weiss measured the distance from the bus stop to the corner of Geneva and Brockton as 410 feet.   He then measured the distance between the corner of Geneva and Brockton to Jones's driveway as 595 feet.   The house was approximately 50 to 75 feet from the road.   Detective Weiss estimated the distance from the bus stop to the house as approximately 750 feet, “as the crow flies.” RP (Jan. 9, 2006) at 169.

¶ 9 The State asked the trial court to take judicial notice of the Pythagorean theorem.   Specifically, the State asked the court to take notice that “A squared, plus B squared, equals C squared” when applied to triangles with a 90 degree angle.   RP (Jan. 9, 2006) at 288.   The State argued that by using the Pythagorean theorem, the distance between the bus stop and the house is 722 feet.   The trial court noted that a sketch was entered that made the intersection appear to be a 90 degree angle, but that there was no specific evidence that it was actually a right angle.   The trial court denied the State's request to take judicial notice of the Pythagorean theorem.

¶ 10 During trial, Jones objected to the marijuana and methamphetamine charges being separate counts.   He argued that they are both controlled substances and charging them separately constituted double jeopardy.   The trial court found that double jeopardy does not apply because the methamphetamine and marijuana charges have different elements.   The court gave separate jury instructions for the methamphetamine and marijuana charges.   Each instruction specified the controlled substance alleged.

¶ 11 Turrieta testified for the defense that the guns, digital scales, marijuana, methamphetamine, and glass pipes were hers.   She stated that she never told Jones about the drugs.   She said that she had been dating Jones for 9 years and that they have lived together for “two to three years.”   RP (Jan. 9, 2006) at 260.   They shared the bedroom.   During cross examination, Turrieta stated that she and Jones were still in a relationship.   Jones also testified that he did not know about the marijuana and methamphetamine.

¶ 12 The jury found Jones guilty of:  (1) possession of methamphetamine with intent to manufacture or deliver;  (2) possession of an unlawful firearm;  and (3) possession of marijuana with intent to manufacture or deliver.   The jury returned a special verdict finding that the State proved beyond a reasonable doubt that Jones committed the methamphetamine count within 1,000 feet of a school bus stop.   The jury returned another special verdict finding that Jones committed the marijuana count within 1,000 feet of a school bus stop.   Jones now appeals.

ANALYSIS

I. School Bus Stop Sentence Enhancement

¶ 13 Jones argues that the trial court erred when it denied his motion to dismiss the allegation that the crimes occurred within 1,000 feet of a school bus stop.   Jones made the motion to dismiss during the State's case-in-chief.   Relying on Zakel,⁷ the State argues that once a jury verdict has been rendered, a motion to dismiss is not appealable.

 ¶ 14 The State's interpretation of Zakel is incorrect.   We held that pretrial rulings will not be reviewed where the defendant failed to seek review at the time the motion was denied.  State v. Zakel, 61 Wash.App. 805, 811, 812 P.2d 512 (1991).   Jones made the motion to dismiss during trial.   The trial court's ruling on a motion during trial is reviewable.  State v. Santos, 104 Wash.2d 142, 145, 702 P.2d 1179 (1985);  State v. Vasquez, 80 Wash.App. 5, 9, 906 P.2d 351 (1995).   Because Jones made the motion during trial, we review his challenge to the school bus stop sentence enhancement.

 ¶ 15 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 beyond a reasonable doubt.  State v. Joy, 121 Wash.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 Wash.2d 192, 201, 829 P.2d 1068 (1992).   Jones argues that the trial court's denial of his motion to dismiss was in error because there was not sufficient evidence to find that the drug charges occurred within 1,000 feet of the school bus stop.

¶ 16 Division III of our court held that the terminal point for the school zone enhancement must be the actual site where the offense was committed.   State v. Clayton, 84 Wash.App. 318, 322, 927 P.2d 258 (1996).   In Clayton, the court found that there was insufficient evidence to uphold the enhancement where the officer measured the distance from the school playground to the defendant's property fence and determined it to be 926 feet 10 inches.   Clayton, 84 Wash.App. at 322, 927 P.2d 258.   The record was “devoid of any evidence of the measurement to the exact site where the crimes occurred.”   Id. The crime occurred in a room within the defendant's house.  Id at 320, 927 P.2d 258.

¶ 17 Here, the officer used a rolotape to measure west down one street for a distance of 410 feet.   He then measured along a street going north to Jones's driveway for a distance of 595 feet.   He estimated that the length of the driveway to the house was 50 to 75 feet.   The officer did not take measurements for the shortest distance between the school bus stop and Jones's house.   He testified that he could not do so because of the slopes and the wooded areas.   Based on his measurements along the street and his observations, the officer estimated that the distance between the start of Jones's driveway and the school bus stop was 750 feet.   The officer made a diagram of his measurements.   On the diagram, the intersection where the streets meet appear to be a 90 degree angle.   However, there was no testimony or evidence presented that this was an actual 90 degree angle.

¶ 18 The trial court refused to take judicial notice of the Pythagorean theorem because there was no testimony that the intersection was a 90 degree angle.   We decline to analyze the distance based on the Pythagorean theorem when there was no evidence or testimony that the intersection was a 90 degree angle and no testimony about the Pythagorean theorem's application.

 ¶ 19 Enough uncertainties remain after the officer's testimony to foreclose a rational conclusion beyond a reasonable doubt that the offenses took place within 1,000 feet of a school bus stop.   Because there were no direct measurements between the school bus stop and the home, no measurements of the driveway or the house's bedroom, and no evidence showing the angle of the street intersection, the actual distance is unclear.   There are Global Positioning Systems (GPS), hard copy maps, digital maps, pedometers, satellite imaging, and numerous other measuring devices that can be used to establish distance beyond a reasonable doubt.   None of these technologies was used here.   Viewing the evidence in the light most favorable to the State, a rational trier of fact could not have found beyond a reasonable doubt that Jones's possession of drugs occurred within 1,000 feet of a school bus stop.   We reverse the sentence enhancement for being within 1,000 feet of a school bus stop and remand for resentencing.

¶ 20 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

II. Double Jeopardy

¶ 21 Jones argues that the trial court erred when it denied his motion to consolidate the methamphetamine and marijuana counts.   Jones asserts that charging the marijuana and methamphetamine separately violates double jeopardy.   Claims of double jeopardy are questions of law that we review de novo.  State v. Jackman, 156 Wash.2d 736, 746, 132 P.3d 136 (2006);  State v. Freeman, 153 Wash.2d 765, 770, 108 P.3d 753 (2005).   The United States Constitution provides that a person may not be “subject for the same offense to be twice put in jeopardy of life or limb.”   U.S. Const., amend.   V. Similarly, the Washington State Constitution provides that a person may not be “twice put in jeopardy for the same offense.”   Wash. Const. art.   I, § 9.

¶ 22 Washington courts look first to the statutory language to determine if it expressly permits multiple punishments for the applicable statutes.   Jackman, 156 Wash.2d at 746, 132 P.3d 136 (citing State v. Calle, 125 Wash.2d 769, 777, 888 P.2d 155 (1995)).   If the statutes do not expressly allow multiple punishments, the courts apply the same evidence rule.  Jackman, 156 Wash.2d at 746, 132 P.3d 136.   Under the same evidence rule, if each offense contains elements not contained in the other offense, the offenses are different and multiple convictions can stand.  Jackman, 156 Wash.2d at 747, 132 P.3d 136 (citing State v. Baldwin, 150 Wash.2d 448, 454, 78 P.3d 1005 (2003)).   The test requires the court to determine “whether each provision requires proof of a fact which the other does not.”  Jackman, 156 Wash.2d at 747, 132 P.3d 136 (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)).

A. Methamphetamine and Marijuana Charges

¶ 23 Jones relies on Garza-Villarreal 8 and Casarez to argue that the counts for methamphetamine and marijuana should be charged as one.   In Garza-Villarreal, the Washington Supreme Court held that convictions for different controlled substances involved in the same transaction constitute the “same criminal conduct” for purposes of calculating the offender score.  Garza-Villarreal, 123 Wash.2d at 44, 49, 864 P.2d 1378.   However, the rule in Villarreal applies only to a defendant's sentence.   See Garza-Villarreal, 123 Wash.2d at 44, 864 P.2d 1378.   The analysis in the cases Jones cited do not apply to his double jeopardy argument.

¶ 24 In an applicable case, the defendant in O'Neal was charged with manufacturing methamphetamine and marijuana.  State v. O'Neal, 126 Wash.App. 395, 417, 109 P.3d 429 (2005).   We applied the same evidence rule to find that these were two distinct crimes.  O'Neal, 126 Wash.App. at 417, 109 P.3d 429.   We held that manufacturing methamphetamine and marijuana “are neither identical in law or in fact.”  Id. Because manufacturing methamphetamine and marijuana are two distinct crimes, the double jeopardy argument failed.  Id.

¶ 25 Jones's convictions for possession of methamphetamine and marijuana do not violate double jeopardy.   The counts contained different elements.   There can be no question that marijuana and methamphetamine are different substances the law treats differently.   Each count required proof of a fact the other did not.   We affirm Jones's convictions.

B. Jury Instructions

¶ 26 Jones argues that the jury instructions that separated the methamphetamine count from the marijuana count violated double jeopardy because they should have been charged as one count.   We held above that they do not.   This argument fails.

C. Sentence Enhancements for Both Substance Charges

¶ 27 Jones argues that the trial court erred by imposing the sentence enhancements for being armed with a deadly weapon to both the methamphetamine and marijuana charges.   He argues that because of double jeopardy, the methamphetamine and marijuana counts should have been one charge and the sentence enhancements should only be applied once.   Because there was no double jeopardy, Jones's argument fails.

III. Firearm Enhancement

¶ 28 In his SAG, Jones argues that all the guns in the bedroom were in the closet.   He asserts that the guns were 9 to 10 feet from the bed where he was arrested.   He argues that the debris and clutter within the bedroom would have obstructed his access to the firearms.

¶ 29 In a criminal sufficiency claim, the defendant admits the truth of the State's evidence and all inferences that we may reasonably draw from it.   Salinas, 119 Wash.2d at 201, 829 P.2d 1068.   Evidence is sufficient to support a conviction when, viewed in the light most favorable to the State, a rational trier of fact could have found guilt beyond a reasonable doubt.   Salinas, 119 Wash.2d at 201, 829 P.2d 1068.   We defer to the fact finder's resolution of conflicting testimony, witness credibility, and persuasiveness of the evidence.  State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990).

¶ 30 A defendant is armed when he “is within proximity of an easily and readily available deadly weapon for offensive or defensive purposes and when a nexus is established between the defendant, the weapon, and the crime.”   State v. Schelin, 147 Wash.2d 562, 575-76, 55 P.3d 632 (2002) (plurality opinion).   Mere presence of a weapon at the crime scene may be insufficient to establish the nexus between a crime and a weapon.  Schelin, 147 Wash.2d at 570, 55 P.3d 632;  O'Neal, 126 Wash.App. at 422, 109 P.3d 429.   When analyzing whether the requisite nexus existed, we examine the nature of the crime, the type of weapon, and the circumstances under which it is found.   O'Neal, 126 Wash.App. at 422, 109 P.3d 429 (citing Schelin, 147 Wash.2d at 570, 55 P.3d 632).

¶ 31 In Simonson, the defendant was manufacturing methamphetamine over a six-week period.  State v. Simonson, 91 Wash.App. 874, 883, 960 P.2d 955 (1998).   During that time, seven guns were kept on the premises and some were loaded.  Simonson, 91 Wash.App. at 883, 960 P.2d 955.   We found that it was “reasonable to infer that the purpose of so many loaded guns was to defend the manufacturing site in case it was attacked.”  Id. We held that the evidence was sufficient to support the deadly weapon enhancement.  Id. In O'Neal, we found sufficient evidence to support the deadly weapon enhancement where a loaded gun with a chambered round was found in the bedroom closet.  O'Neal, 126 Wash.App. at 425, 109 P.3d 429.   We noted that the closet door was open and the weapon was “both easily accessible and readily available for offensive and defensive use.”  Id.

¶ 32 Here, Jones does not dispute that the bedroom contained firearms, a closed circuit security system, night vision goggles, and a police scanner.   Detective Plumb testified that drug dealers often set up closed circuit television systems in their houses to monitor people that are coming and going.   Other officers testified that drug dealers use cameras to monitor the arrival of police so that they can discard illegal items.   The officers also testified that drug dealers often have police scanners, surveillance equipment, binoculars, or night vision goggles at their residence.

¶ 33 Similar to Simonson and O'Neal, it is reasonable to infer that Jones had the numerous weapons, security system, police scanner, and night vision goggles to protect the methamphetamine and marijuana site from intrusion.   In O'Neal, a loaded gun was found in the bedroom closet.   O'Neal, 126 Wash.App. at 425, 109 P.3d 429.   Here, Detective Plumb found three firearms in the bedroom closet.   Jones argues that these weapons were not readily accessible because they were 9 to 10 feet away and there was too much clutter in the room to reach them.   Despite the clutter, the officers were able to walk around the room.   Furthermore, officers found a loaded gun leaning barrel up against the bedroom wall.   Accordingly, there was sufficient evidence of a nexus between Jones, the weapons, and the crime.   We affirm the firearm sentence enhancements.

IV. Sufficiency of the Evidence

¶ 34 In his SAG, Jones argues that the backpack, $900 in cash, methamphetamine, and marijuana were not his.   At trial, the jury heard the State's evidence as well as Jones's and Turrieta's testimony.   The State presented evidence that police found methamphetamine and marijuana in the bedroom that Turrieta and Jones shared.   In the bedroom, officers found a blue backpack containing $900 cash and Jones's Washington identification card.   Detective Plumb testified that drug dealers usually have large amounts of cash on or near their person.   Turrieta testified that the methamphetamine and marijuana were hers.   Jones testified that he did not know about the drugs.

¶ 35 A jury may reject suggested alternative reasonable inferences based on the evidence and circumstances of a case.  State v. Bencivenga, 137 Wash.2d 703, 708, 974 P.2d 832 (1999).   Here, the jury clearly rejected Jones's alternative theory that the evidence and drugs were not his when they returned guilty verdicts for the methamphetamine and marijuana charges.   We do not disturb the jury's fact-finding functions.  State v. Flett, 98 Wash.App. 799, 805, 992 P.2d 1028 (2000);  State v. Mewes, 84 Wash.App. 620, 622, 929 P.2d 505 (1997).   Additionally, the evidence viewed in the light most favorable to the State is sufficient to support Jones's convictions.

V. Confidential Informant

¶ 36 In his SAG, Jones asks to know the confidential informant's name and criminal history as the confidential informant's controlled buys formed the basis for the search warrant.

¶ 37 Generally, a confidential informant's identity is privileged and not subject to disclosure.  State v. Casal, 103 Wash.2d 812, 815, 699 P.2d 1234 (1985).   Washington recognizes the informer's privilege by both statute and court rule.  RCW 5.60.060(5);  CrR 4.7(f)(2).   The privilege is not absolute.   If disclosure of an informer's identity is relevant and helpful to the defense or is essential to a fair determination of the cause, the privilege must give way.  Roviaro v. United States, 353 U.S. 53, 61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957);  State v. Potter, 25 Wash.App. 624, 627, 611 P.2d 1282 (1980).   A defendant is entitled to a special evidentiary hearing to determine probable cause to issue a search warrant if he makes a substantial preliminary showing that the affiant lied or acted in reckless disregard for the truth in obtaining a search warrant.  Franks v. Delaware, 438 U.S. 154, 155, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).   An accused seeking disclosure of an informant's identity has the burden of establishing that circumstances exist justifying an exception to the privilege.  State v. Massey, 68 Wash.2d 88, 92, 411 P.2d 422 (1966);  State v. Driscoll, 61 Wash.2d 533, 536, 379 P.2d 206 (1963).

¶ 38 Courts do not require disclosure of an informant when the evidence that the informant possesses would be cumulative or only tend to prove the defendant's guilt.  Potter, 25 Wash.App. at 629, 611 P.2d 1282.   The court should conduct an in camera hearing after the defendant makes an initial showing that the confidential informant may have evidence that would be relevant to the defendant's innocence.  Potter, 25 Wash.App. at 628-29, 611 P.2d 1282.   Jones did not make any such showing.   Nor is there evidence in the record that the confidential informant's identity is relevant to Jones's case.   The confidential informant's identity is privileged and Jones has not made a showing justifying disclosure.   We deny Jones's disclosure request.

VI. Ineffective Assistance of Counsel

¶ 39 In his SAG, Jones asserts ineffective assistance of counsel based on his attorney not requesting information about the confidential informant.   Effective assistance of counsel is guaranteed under the federal and state constitutions.   See U.S. Const. amend VI;  Wash. Const. art.   I, § 22.   We review an ineffective assistance of counsel claim de novo.  State v. S.M., 100 Wash.App. 401, 409, 996 P.2d 1111 (2000).   To prove ineffective assistance of counsel, a defendant must show deficient performance and prejudice.   State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987).  “If either part of the test is not satisfied, the inquiry need go no further.”  State v. Hendrickson, 129 Wash.2d 61, 78, 917 P.2d 563 (1996).

¶ 40 Counsel's performance is deficient when it falls below an objective standard of reasonableness.  State v. Stenson, 132 Wash.2d 668, 705, 940 P.2d 1239 (1997).   Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed.  In the Pers. Restraint of Pirtle, 136 Wash.2d 467, 487, 965 P.2d 593 (1998).   We give great judicial deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective.  Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995).

¶ 41 There is no evidence in the record that the confidential informant possessed information tending to show Jones's innocence.   Consequently, the confidential informant's identity is not subject to disclosure.   Jones fails to show that counsel's performance was deficient or that there was a probability that the outcome of his trial would have differed had his attorney sought disclosure of the confidential informant's identity.   Jones's ineffective assistance of counsel argument is unpersuasive.

¶ 42 We affirm in part, reverse in part, and remand for resentencing.

FOOTNOTES

1.   In violation of RCW 69.50.401(1) and 69.50.401(2)(b).

2.   In violation of RCW 9.94A.602.

3.   In violation of RCW 69.50.401 and 69.50.435(1).

4.   In violation of RCW 9.41.190(1).

5.   In violation of RCW 69.50.401(1), 69.50.401(2)(c) and 69.40.204(c)(14).

6.   The State also charged Jones with two counts of bail jumping in violation of RCW 9A.76.170. He was convicted of one count of bail jumping.   He does not appeal the bail jumping conviction.

7.   State v. Zakel, 61 Wash.App. 805, 812 P.2d 512 (1991).

8.   State v. Garza-Villarreal, 123 Wash.2d 42, 864 P.2d 1378 (1993) ( State v. Casarez was consolidated with Garza-Villarreal ).

PENOYAR, J.