Opinion
No. 58120-1-I.
October 8, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-06835-0, Douglas D. McBroom, J., entered April 24, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Cox, J., concurred in by Coleman and Ellington, JJ.
James Donaldson appeals his judgment and sentence for one count of unlawful possession of cocaine and one count of possession with the intent to manufacture or deliver Oxycodone. The undercover police officers in this case had reasonable and articulable suspicion that a drug transaction was in progress in the automobile parked adjacent to them at a drive-in restaurant. Accordingly, a Terry stop was reasonable to allow the police to investigate. Moreover, the officers did not exceed the valid scope of the stop by drawing and pointing their weapons at the suspects prior to arresting them. In any event, under the inevitable discovery doctrine, the officers would have discovered the illegal drugs even if they had not drawn and pointed their weapons at the suspects. The court properly denied the motion to suppress the evidence. The officers had probable cause to arrest Donaldson both upon smelling burnt marijuana when they approached the suspects' vehicle and when the purchaser of the drugs disclosed the illegal transaction that had just transpired. The evidence was sufficient to support the conviction. Donaldson's counsel was not ineffective for declining to challenge his offender score. However, the imposition of a sentencing condition requiring Donaldson to submit to alcohol evaluation and treatment was not authorized under the circumstances of this case. We affirm in part, reverse in part, and remand with instructions.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Donaldson and his passenger were inside a parked vehicle at Dick's drive-in restaurant in the Wallingford area of Seattle around 1:00 a.m. Sergeant James Dyment and Officer Troy Swanson were on undercover duty that evening, and parked next to Donaldson, to the right of his vehicle. They were taking a meal break. At some point, another vehicle arrived and parked to the right of the officers. A woman, later identified as Erica Bertman, exited her vehicle and ran directly to Donaldson's car. She entered the car and seated herself in the backseat, behind the front seat passenger.
The officers testified at the suppression hearing that they could see inside the tinted windows of Donaldson's vehicle. They were suspicious because they did not see any of the suspects buy food from Dick's. They watched the individuals in Donaldson's vehicle and witnessed Bertman hand Donaldson some cash. In turn, Donaldson handed her a small object that the officers could not identify. Based on their experience and training, they suspected that a hand-to-hand drug transaction had occurred.
They called for backup. Bertman started to exit Donaldson's vehicle. As she did, Sergeant Dyment and Officer Swanson exited their truck and approached the suspects with their guns drawn and pointed at the suspects. They told the suspects they were not free to leave and to show their hands.
Finding of Fact 7, Clerk's Papers at 15.
Upon leaning into the passenger door of the vehicle, Sergeant Dyment smelled what he described as burnt marijuana. He ordered everyone out of the vehicle. Officer Swanson also smelled marijuana from his position near the driver's door of the vehicle, although he did not describe the smell as burnt marijuana.
Finding of Fact 7, Clerk's Papers at 15.
Officer Swanson detained Bertman, and she confessed to him that she had just purchased two Oxycodone pills from Donaldson for $50 each. Sergeant Dyment detained Donaldson and seized a bottle of Oxycodone containing 51 pills from him during a pat-down frisk. The backup officers arrived after they were called and assisted with the detentions of all three suspects.
Finding of Fact 8, Clerk's Papers at 15; Report of Proceedings February 14, 2006 at 49; Clerk's Papers at 3 (certification of probable cause).
Finding of Fact 10, Clerk's Papers at 15.
The police arrested all three suspects. In a search incident to arrest, police seized 1.6 grams of marijuana from inside the car, and some cocaine and $3,730 in cash from Donaldson.
The State charged Donaldson with possession of cocaine and possession with the intent to manufacture or deliver Oxycodone. The trial court denied Donaldson's motion to suppress the drugs and cash seized during the arrest. He submitted to a bench trial based on stipulated facts. The trial court found him guilty of all charges.
Donaldson appeals.
TERRY STOP
Donaldson challenges the Terry stop, arguing that the stop was not supported by reasonable suspicion of criminal activity. He also argues that the officers exceeded the scope of the stop by drawing and pointing their weapons at him. He challenges several of the trial court's findings of fact. We hold that the trial court properly denied the motion to suppress.
Challenged Findings of Fact
We first address Donaldson's challenges to certain of the trial court's findings of fact at the CrR 3.6 hearing. We hold that these findings are supported by substantial evidence in the record.
Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. We do not review on appeal the trial court's credibility determinations.
State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006).
State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
Donaldson challenges the following findings:
In his brief, Donaldson also challenged Finding of Fact 9, but this appears to be a typographical error. See Appellant's Brief at 10 n. 9 (challenging Finding of Fact 9, but discussing the content of Finding of Fact 10).
5. The Officers saw Bertman pull out some money and give it to the [sic] Donaldson. Then he saw Donaldson give Bertman a small item he could not see. He also saw Bertman take a donut from a box in the car.
7. . . . As soon as [Sergeant Dyment] leaned into the passenger door of the vehicle to contact the passenger and driver, he smelled what he described as burnt marijuana. . . . Officer Swanson contacted the driver of the vehicle near the driver's door where he also smelled marijuana. He did not describe it as burnt marijuana.
8. . . . Officer Dyment recovered 2 pills of Oxycodone from Bertman. She gave a statement to Officer Swanson that she purchased the two pills from Donaldson for $50 a piece.
10. Officer Dyment also recovered a large, unmarked, plastic pill container with 51 pills of Oxycodone from Donaldson. Officer Dyment noticed that the pills were identical to those found on Bertman. . . .
Clerk's Papers at 15.
These findings are supported by substantial evidence in the record. Sergeant Dyment saw an exchange of money and "some items." Officer Swanson also saw the exchange of items. Sergeant Dyment testified that he smelled "the burning of marijuana." Officer Swanson also smelled marijuana, although he did not describe it as burning. Sergeant Dyment testified that "we" discovered two pills on Bertman. Officer Swanson testified that Bertman admitted coming to Dick's to buy Oxycodone from "L." The pills were found on Donaldson, and the officers testified that they witnessed the drug sale. This evidence supports the inference that Donaldson was "L." Finally, Donaldson is correct that there was no specific testimony that the Oxycodone discovered on Donaldson was "identical" to that discovered on Bertman. But the pills on Bertman and those seized from Donaldson were both Oxycodone. Whether they were "identical" for purposes of the charged offense is irrelevant. The evidence properly supported the conviction for the charge.
The specific finding that Bertman testified to buying two pills from Donaldson for $50 each appears to have come from the certification of probable cause. Clerk's Papers at 42. On the same day as the 3.6 hearing, the trial court considered all of the evidence in the case, including the certification of probable cause, and issued a verdict in the trial on stipulated facts. Report of Proceedings (February 14, 2006) at 135-38.
In short, the challenged factual findings are all supported by substantial evidence in this record.
Justification for Terry Stop
The heart of Donaldson's main argument begins with the assertion that the officers did not have reasonable articulable suspicion that he was involved in criminal activity. We disagree.
Warrantless searches and seizures are per se unreasonable under the Fourth Amendment to the United State Constitution and article 1, section 7 of the Washington constitution. Evidence obtained in violation of these constitutional provisions must be suppressed, and evidence obtained as a result of any subsequent search must also be suppressed as fruit of the poisonous tree. However, evidence will not be excluded if it falls within the scope of one of the narrowly drawn exceptions to the warrant requirement.
State v. Kinzy, 141 Wn.2d 373, 384, 5 P.3d 668 (2000); State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999).
State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986) (citing Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)).
State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980).
A Terry stop is one of the narrowly drawn exceptions to exclusion of evidence. It allows officers to briefly seize a person if specific articulable facts, in light of the officers' training and experience, give rise to reasonable suspicion that the person is involved in criminal activity. The rule also allows police to conduct certain types of limited searches, such as a frisk of the person, but only if the officer has reasonable grounds to believe the person is armed and presently dangerous.
Terry, 392 U.S. at 21, 30.
Id.; State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991).
State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994).
We examine the totality of the circumstances to determine whether a Terry stop and frisk were justified. A court may consider factors such as the officer's training and experience, the location of the stop, and the conduct of the person detained. Based on an officer's experience and the surrounding circumstances, observation of behavior that could reasonably constitute a drug transaction can be the basis for a legitimate Terry stop. Although the observed activity must be more consistent with criminal activity than innocent activity, "reasonableness is measured not by exactitudes, but by probabilities." Here, it is not disputed that Donaldson was seized from the beginning of his interaction with the officers because a reasonable person would not have felt free to leave. Thus, we conduct a two-part inquiry, asking whether the seizure was justified under Terry, and whether the officers exceeded the valid scope of the seizure by their actions.
Glover, 116 Wn.2d at 514.
State v. Pressley, 64 Wn. App. 591, 596, 825 P.2d 749 (1992).
See id. at 597.
Id. at 596 (quoting State v. Mercer, 45 Wn. App. 769, 774, 727 P.2d 676 (1986)).
State v. Williams, 102 Wn.2d 733, 739, 689 P.2d 1065 (1984).
Based on their training and experience, Sergeant Dyment and Officer Swanson had reasonable, articulable suspicion to conduct a Terry stop of Donaldson. They testified about their training and experience in narcotics transactions, which was undisputed. They witnessed what they reasonably thought was a hand-to-hand drug transaction in the car adjacent to their parked vehicle when they saw Bertman give Donaldson cash in exchange for a small object. This occurred after she arrived at Dick's restaurant in Wallingford, without purchasing anything, and ran directly to and entered Donaldson's vehicle. These events gave the officers reasonable suspicion that an illegal drug transaction had taken place, justifying a Terry stop.
Scope of Terry Stop
Donaldson next argues that the officers exceeded the scope of the Terry stop when they approached his vehicle with guns drawn and pointed at the occupants as the trial court expressly found. This is the closer and more difficult question.
We first note that the trial court made no express findings or conclusions with respect to this stage of the Terry stop. Rather, the record indicates that the scope of the stop was not the primary focus of either party's arguments below. However, we may affirm on any ground supported by the record even if the trial court did not consider the argument. We conclude that the record in this case is sufficient for us to make a determination of whether the officers exceeded the scope of the stop.
State v. Michielli, 132 Wn.2d 229, 242-43, 937 P.2d 587 (1997).
As we also observed in State v. Mitchell, the intrusion upon Donaldson's liberty was greater than the normal Terry stop because the stop here involved the drawing and pointing of weapons at the suspects. But as we also noted in that case,
80 Wn. App. 143, 906 P.2d 1013 (1995).
In comparison, the officer in Mitchell was outnumbered and observed that the suspect was carrying a gun. Id. at 146.
[U]nder certain circumstances measures such as handcuffing, secluding, and drawing guns on the suspect may be appropriate to accomplish a Terry stop. Such circumstance only exists when the police have a reasonable fear of danger. For example, it is reasonable for an officer to draw a weapon to effect a stop where a suspect is believed to be armed. In addition, an emergency situation may warrant temporary restraint of a suspect without investigation.
Id. at 145-46 (internal citations omitted).
Whether the police had a reasonable fear of danger under the circumstances is the focus of the proper inquiry. Courts hesitate to substitute their judgment for that of police officers in the field. We thus require only a well-founded suspicion that the officer's safety or another's safety was in danger, "some basis from which the court can determine that [the action] was not arbitrary or harassing."
State v. Belieu, 112 Wn.2d 587, 601-02, 773 P.2d 46 (1989).
Id. (emphasis omitted).
Courts look to three factors in analyzing whether the scope of a Terry stop is reasonable, or alternatively, whether the intrusion is so substantial that it must be supported by probable cause: (1) the purpose of the stop, (2) the amount of physical intrusion on the suspect's liberty, and (3) the length of detention.
Id. at 596.
Here, the purpose of the stop was clear: the officers had reasonable suspicion to believe that an illegal narcotics transaction had just taken place in the car parked next to them. The length of the Terry stop was brief, lasting only until the officers smelled marijuana, the point at which they had probable cause to arrest the suspects. Thus, the second factor — the amount of physical intrusion on Donaldson's liberty — is the only factor over which there is any real dispute.
The court found that the officers pointed their weapons at the suspects during the Terry stop. That was a significant intrusion into Donaldson's liberty. The question is whether the officers based their actions on a legitimate fear for their safety. A related question is whether there is any basis on which we should conclude that their actions were arbitrary or harassing.
When questioned at the hearing, Sergeant Dyment testified that he drew his gun because he had just witnessed a narcotics transaction and was concerned with the danger associated with "dealing with multiple suspects in a vehicle." In fact, the officers were outnumbered three to two by the suspects in the vehicle, felt the need to call for backup, and approached the suspects with guns drawn before the backup officers arrived. Moreover, Sergeant Dyment further testified that a potential felony was in progress, it was a dangerous time for this type of activity, and the show of force was intended to keep "everyone safe."
We also note that the undercover officers were not dressed in police uniforms when they approached the suspects with drawn guns. Although there was also testimony that the officers displayed badges and other identification when they approached the suspects, the officers could have reasonably believed that their civilian dress increased the likelihood that the suspects could react violently to the two men approaching them.
Whether the use of drawn guns during a Terry stop converts the stop to an arrest has been the subject of a number of opinions in federal courts. Many are catalogued in United States v. White, 648 F.2d 29 (D.C. Cir. 1981). Some cases uphold the threat of force as reasonably necessary for the protection of the officer:
Thus where police approach armed robbery suspects in a car with guns drawn, such action has been held to be a stop, not an arrest, United States v. Diggs, 522 F.2d 1310, 1313-14 (D.C. Cir. 1975) . . ., as has an armed stop of a plane about to taxi down a deserted runway, United States v. Richards, 500 F.2d 1025, 1028 (9th Cir. 1974). . . . See also United States v. Bull, 565 F.2d 869 (4th Cir. 1977) . . . (drawing of guns prior to approach of suspiciously acting persons in deserted parking lot late at night did not convert stop into arrest); United States v. Worthington, 544 F.2d 1275, 1280 n. 3 (5th Cir. [1977]) . . . (stop at gunpoint on dark, deserted airstrip held investigatory because reasonable); United States v. Maslanka, 501 F.2d 208, 213 n. 10 (5th Cir. 1974) . . . (reasonable for lone officer to draw guns when approaching car on a lonely highway containing three young males; stop held investigatory).
White, 648 F.2d at 35. On the other hand, some hold that the threat of force transformed the stop into an arrest, presumably requiring the existence of probable cause:
United States v. Strickler, 490 F.2d 378 (9th Cir. 1974) (encircling a suspect's car with policeman and ordering him out at gunpoint held an arrest); United States v. Lampkin, 464 F.2d 1093, 1095 (3d Cir. 1972) (arrest occurred at moment officers approached suspect with drawn guns to detain him).
Id. (internal footnote omitted).
In State v. Williams, the supreme court reversed the defendant's conviction because police exceeded the scope of a lawful Terry stop when they handcuffed and secluded the defendant even though they "did not and could not articulate a reason for believing" that he was dangerous. Responding to a burglar alarm, police saw Williams parked in a car in front of the house, and as they approached, he turned on the headlights and started to move. Because there was no evidence that Williams was armed or dangerous, he was not the subject of the investigation, and he made no furtive or violent gestures, police exceeded the scope of Terry by significantly intruding on his liberty.
102 Wn.2d 733, 740, 689 P.2d 1065 (1984).
Id. at 734.
Id. at 740-41.
In contrast here, Officer Swanson and Sergeant Dyment articulated a reasonable safety justification for their actions, as discussed above. The length of the Terry stop was brief, lasting only until the officers smelled marijuana, which gave them probable cause to arrest. This case is unlike Williams, where the defendant was patted down, handcuffed, and placed in a police car, an interaction that lasted longer than the brief one in this case. Finally, this case differs from Williams in that Donaldson was the suspect of an illegal narcotics transaction, whereas Williams had no obvious connection with the crime the police were investigating in that case, other than his proximity to the scene of that crime. For all of these reasons, we cannot conclude that the officers' actions in briefly pointing their guns at the suspects was either arbitrary or harassing. In short, the officers in this case did not exceed the scope of a legitimate Terry stop.
Inevitable Discovery
Alternatively, the State argues that the evidence seized in this case would have been inevitably discovered, even if the police exceeded the scope of a valid Terry stop. We agree.
The doctrine of inevitable discovery allows the admission of unlawfully seized evidence when the State proves by a preponderance of the evidence that it would have discovered the evidence through proper procedures. The State must also prove that it did not act unreasonably or in an attempt to accelerate discovery. The reasonableness inquiry includes the nature of the privacy interest and the degree of its invasion.
State v. O'Neill, 148 Wn.2d 564, 591, 62 P.3d 489 (2003) (citing Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984)).
Id.; State v. Richman, 85 Wn. App. 568, 577, 933 P.2d 1088 (1997).
Richman, 85 Wn. App. at 577.
The State has met its burden here. We have already explained that the officers had reasonable suspicion that Donaldson was involved in criminal activity. This gave them authority to approach the vehicle and conduct a Terry stop. Upon approaching the vehicle, Sergeant Dyment would have smelled burning marijuana whether or not his gun had been drawn. Thus, he still would have had probable cause to arrest Donaldson and conduct a search incident to that lawful arrest.
The officers did not act unreasonably. Under these circumstances, the officers reasonably believed they were justified in drawing and briefly pointing their weapons in order to protect their safety and that of the suspects. As we have explained, their actions did not accelerate discovery or increase the likelihood that they would discover admissible evidence. For these reasons, the purpose of the exclusionary rule, to deter improper police conduct, would not be served by suppressing the evidence in this case.
We also note, although it was not argued by the parties, that the exclusionary rule does not apply to this case apart from the inevitable discovery doctrine. The critical question in applying the fruit of the poisonous tree doctrine is whether the evidence sought to be admitted at trial would have been discovered but-for the police illegality. Here, the police did not gain anything from pointing their weapons at the suspects. Rather, they obtained the evidence from a lawful search of Donaldson and his vehicle once they had probable cause to arrest and search him based in part on smelling marijuana. Again, they would have smelled the same odor upon approaching the vehicle even had they not pointed their weapons. Thus, the exclusionary rule does not prohibit the admission of the evidence obtained here.
State v. Thomas, 91 Wn. App. 195, 201, 955 P.2d 420 (1998) ( quoting Segura v. United States, 468 U.S. 796, 815, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984)).
PROBABLE CAUSE TO ARREST
Donaldson also argues that there was not probable cause to arrest him based on the smell of burning marijuana in his car. We hold probable cause existed based both on the smell of marijuana when the officers approached the suspects' vehicle and Bertman's disclosure to the officers that she purchased drugs from Donaldson.
A warrantless arrest is justified if police have probable cause to believe that a person has committed or is committing a felony. Probable cause exists when sufficiently trustworthy facts or circumstances would lead a reasonable officer to believe a crime has been committed.
RCW 10.31.100.
State v. Gaddy, 152 Wn.2d 64, 70, 93 P.3d 872 (2004).
Donaldson concedes that probable cause to arrest exists when an officer who has the requisite training and experience smells burning marijuana. His only argument is that the trial court did not specifically make a factual finding that the officers here had such training and experience. He argues that if the trial court fails to make a particular finding of fact, we must presume that the party with the burden of proof failed to prove the fact.
Appellant's Brief at 27 (citing State v. Cole, 128 Wn.2d 262, 289, 906 P.2d 925 (1995)).
Appellant's Brief at 28 (citing State v. Armenta, 134 Wn.2d 1, 14, 948 P.2d 1280 (1997)).
But there is a "well-recognized" exception to that rule when there is "uncontroverted evidence which the appellate court can hold requires a finding to the contrary."
State v. Souza, 60 Wn. App. 534, 541-42, 805 P.2d 237 (1991); see also State v. Alvarez, 128 Wn.2d 1, 18-19, 904 P.2d 754 (1995).
Here, there is undisputed evidence that Sergeant Dyment had sufficient experience and training to recognize the smell of burning marijuana. The trial court found that he did, in fact, smell burning marijuana. The trial court then made a legal conclusion that the officers had probable cause to arrest Donaldson based upon smelling marijuana. We therefore conclude that the exception applies, and the absence of a specific finding that Sergeant Dyment had the requisite training and experience to recognize marijuana was not prejudicial.
Report of Proceedings (February 14, 2006) at 13-14. Officer Swanson did not testify about his specific training or experience with marijuana. Unlike Sergeant Dyment, he testified that he smelled marijuana generally, not necessarily burning marijuana.
Conclusion of Law 2, Clerk's Papers at 15 (citing State v. Hammond, 24 Wn. App. 596, 598, 603 P.2d 377, 378 (1979)).
In any event, there was probable cause to arrest on the basis of the information disclosed to police by Bertman, the purchaser of the illegal drugs. She told the police that she had just finished an illegal drug purchase when they spoke with her after she got out of the car.
SUFFICIENCY OF THE EVIDENCE
Donaldson argues that the trial court's factual findings do not support his conviction for possession with the intent to manufacture or deliver Oxycodone because the State did not prove that he knew the pills were a controlled substance. We hold that the evidence was sufficient to support the conviction.
When a defendant claims an insufficiency of evidence, the reviewing court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could find each element of the crime proved beyond a reasonable doubt. All reasonable inferences are drawn in favor of the State. Here, Donaldson does not challenge the trial court's findings of fact, but only alleges that those findings do not support his conviction.
State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980), abrogated on other grounds by Washington v. Recuenco, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006).
State v. Finch, 137 Wn.2d 792, 831, 975 P.2d 967 (1999).
Appellant's Brief at 33 (citing State v. Alvarez, 105 Wn. App. 215, 220, 223, 19 P.3d 485 (2001)).
The elements of possession with the intent to manufacture or deliver a controlled substance are: (1) possession, (2) with the intent to manufacture or deliver, (3) a controlled substance. Guilty knowledge of the nature of the controlled substance is not an element of this crime, but the requisite mental state of "intent" is higher, and the mens rea includes knowledge about what one intends to manufacture or deliver. Evidence is sufficient to show that a person intended to manufacture or deliver a controlled substance when there is at least one factor present, in addition to possession of the controlled substance, to support an inference that the defendant intended to sell or deliver the controlled substance.
RCW 69.50.401(1).
State v. Sims, 119 Wn.2d 138, 142, 829 P.2d 1075 (1992).
State v. Todd, 101 Wn. App. 945, 953, 6 P.3d 86 (2000), overruled on other grounds by State v. Rangel-Reyes, 119 Wn. App. 494, 81 P.3d 157 (2003).
Here, in addition to possessing the Oxycodone, Donaldson possessed $3,730 in cash on his person. Also, Bertman admitted to police that she purchased two Oxycodone pills from Donaldson. In fact, the police officers testified that they witnessed that particular transaction. These factors support the inference that Donaldson possessed Oxycodone with the intent to sell or deliver it. The evidence was sufficient to convict.
INEFFECTIVE ASSISTANCE OF COUNSEL
Donaldson argues that his counsel was ineffective for failing to challenge his offender score. We disagree.
To prevail on a claim of ineffective assistance of counsel, a defendant must first establish that his counsel's representation was deficient. To show deficient performance, he has the "heavy burden of showing that his attorneys 'made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" He may meet this burden by establishing that, given all the facts and circumstances, his attorney's conduct failed to meet an objective standard of reasonableness. This court employs a strong presumption that counsel's representation was effective.
State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996).
State v. Howland, 66 Wn. App. 586, 594, 832 P.2d 1339 (1992) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
State v. Huddleston, 80 Wn. App. 916, 926, 912 P.2d 1068 (1996).
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Second, he must show that the deficient performance resulted in prejudice that, with reasonable probability, affected the outcome of the trial.
Hendrickson, 129 Wn.2d at 78.
Two or more crimes constitute the same criminal conduct, and should therefore be counted as only one crime for purposes of sentencing, if they: (1) require the same criminal intent, (2) are committed at the same time and place, and (3) involve the same victim. The crimes do not need to be committed simultaneously to be committed at the same time, but they must at least be closely sequential in time. "Immediately sequential" drug sales qualify as occurring at the same time. A different criminal intent may be found for drug transactions when two sales did not occur as part of the same transaction and one crime did not further the other.
See State v. Porter, 133 Wn.2d 177, 183, 942 P.2d 974 (1997) (concluding that the crimes occurred at the same time when they were "part of a continuous, uninterrupted sequence of conduct over a very short period of time").
Id.
State v. Vike, 125 Wn.2d 407, 411 n. 3, 885 P.2d 824 (1994).
Here, the only evidence in the record supporting Donaldson's argument is that his two prior convictions for delivery of a controlled substance (cocaine) occurred on the same day and in the same county. There is no evidence that they occurred at the same time or as part of the same set of circumstances. There is also no evidence that they occurred at the same place, other than that they both occurred somewhere in Snohomish County. Given that the record is silent regarding the circumstances of the crimes, there is no evidence that they involved the same criminal intent. This is insufficient to show that the prior crimes were part of the same course of conduct. Thus, there is no showing that counsel was deficient in performing the role of advocate.
Clerk's Papers at 24, 97. Note, they also involved the same victim, the public at large. See State v. Garza-Villarreal, 123 Wn.2d 42, 47, 864 P.2d 1378 (1993).
Donaldson argues that there need only be a "reasonable probability" that defense counsel made a mistake. But "reasonable probability" is only part of the second element — whether counsel's deficient performance affected the outcome of the trial. We do not reach the prejudice prong because Donaldson has not established that his counsel's actions fell below an objective standard of reasonableness.
Hendrickson, 129 Wn.2d at 78.
CONDITION OF COMMUNITY CUSTODY
Donaldson argues that the trial court erred in requiring him to submit to an alcohol evaluation as a condition of community custody. We agree.
A sentencing court may order a defendant to participate in treatment if it is directly related to the circumstances of the crime committed. The court may not impose alcohol counseling when there is no evidence that alcohol contributed to the defendant's criminal conduct. We review sentencing conditions for an abuse of discretion.
RCW 9.94A.700(5)(c); former RCW 9.94A.715(2)(a) (2005); State v. Llamas-Villa, 67 Wn. App. 448, 456, 836 P.2d 239 (1992).
State v. Jones, 118 Wn. App. 199, 208, 76 P.3d 258 (2003).
State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993).
Here, the sentencing court required Donaldson to obtain an "alcohol/substance abuse evaluation" as a condition of community custody. During the sentencing proceedings, defense counsel objected, stating, "I am not sure that alcohol had anything to do with this offense." The court apparently began to clarify, stating, "Substance abuse —," and defense counsel interrupted that he did not object to a substance abuse evaluation generally.
While this exchange arguably clarifies what the court intended, the written record does not reflect that intent. The State argues on appeal that a fair reading of the condition directs a comprehensive substance abuse evaluation. While this may be true, the written document also directs that Donaldson follow all recommendations from the evaluation. To the extent such recommendations could be based solely on alcohol abuse, they would not be authorized.
The State also incorrectly argues that Donaldson did not object to the condition. The record, as we have indicated, shows otherwise.
For these reasons, remand for clarification of the written record is required.
STATEMENT OF ADDITIONAL GROUNDS
Donaldson filed a statement of additional grounds for review. He argues that the State did not prove that the seized Oxycodone pills were within his control or that police could see through the tinted windows of his vehicle to witness the alleged drug transaction. Donaldson also argues generally that both the search and his conviction were unlawful in light of these facts. We disagree.
At the suppression hearing, Donaldson testified that his windows were tinted darkly and that the Oxycodone pills were found in his car, not on his person. But Sergeant Dyment testified that he discovered the bottle of pills on Donaldson's person. And both officers testified that they could see through the windows of Donaldson's vehicle. Detective Gary Kinner also tested the vehicle under conditions similar to those of the night in question and found that he could see through the tinted windows. These are, in effect, challenges to credibility determinations. There was substantial evidence to support these findings by the trier of fact in this bench trial. We have already rejected Donaldson's more general argument that the search was unlawful.
We affirm the conviction, reverse the community custody condition of the sentence, and remand for entry of a proper condition for community custody.
WE CONCUR: