Opinion
No. 33712-6-II.
April 17, 2007.
Appeal from a judgment of the Superior Court for Thurston County, No. 05-1-00766-8, Gary Tabor, J., entered August 5, 2005.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Bridgewater and Armstrong, JJ.
Hemmingsen appeals his conviction for unlawful possession of methamphetamine with intent to deliver while armed with a deadly weapon, claiming that (1) insufficient evidence supported his conviction, (2) the trial court violated Blakely v. Washington, 542 U.S. 296, 301, 124 s. Ct. 2531, 159 L. Ed. 2d 403 (2004) when it failed to sentence him under the statute in effect at the time of the commission of the offense, and (3) defense counsel's failure to object to the sentencing statute constituted ineffective assistance of counsel. Hemmingsen also filed a statement of additional grounds (SAG) alleging that (4) the trial court violated his rights to a speedy trial, (5) police illegally searched his vehicle, and (6) defense counsel's failure to contact a witness constituted ineffective assistance of counsel. We affirm.
FACTS I. The Incident
On May 1, 2005, Lacey Police Officer Kenneth Westphal observed a Mitsubishi Eclipse, driven by Hemmingsen, run a red traffic light. Officer Westphal initiated a normal traffic stop, activating his lights but not his siren because Hemmingsen immediately pulled into a gas station and stopped. Officer Westphal called in the license plate number and initiated contact with Hemmingsen and his female passenger. The officer checked Hemmingsen's driver's license and found that Hemmingsen had an outstanding arrest warrant. Officer Westphal called for backup and when Officer Landwehrle arrived to assist, he placed Hemmingsen under arrest. Officer Westphal noticed a large knife fall from the driver's seat to the floorboard when Hemmingsen stood to get out of the car. Officer Westphal immediately yelled "knife." Report of Proceedings (RP) (Jul. 11-12, 2005) at 17. He then handcuffed Hemmingsen and searched his pockets finding $1,901 separated into increments of one hundred dollars. Officer Westphal asked the passenger, Sherrie Boutwell, to step out of the car and then searched the vehicle. Officer Westphal found the large knife that had fallen to the floorboard and a smaller silver knife located next to the seatbelt release mechanism. Officer Westphal also found a fanny pack on the passenger side floorboard. Officer Westphal asked Hemmingsen what the fanny pack contained and Hemmingsen stated "crystal meth." RP (Jul. 11-12, 2005) at 80, 105. The fanny pack contained some paper articles and a black eyeglass case. The eyeglass case contained a large bag with suspected methamphetamine, numerous smaller one-inch diameter square packets, a digital scale, and a ceramic pipe. Some of the small packets were empty, while others contained residue of the suspected methamphetamine. The Washington State Patrol Crime Laboratory tested and identified the substance in the plastic bag as 28.6 grams of crystal methamphetamine.
On May 3, 2005, the State filed an information in superior court charging Hemmingsen with one count of unlawful possession of a controlled substance, methamphetamine, with intent to deliver while armed with a deadly weapon, a knife, contrary to RCW 69.50.401, RCW 9.94A.602, and RCW 9.94A.510.
II. The Pretrial Hearing
On July 5, 2005, at a pretrial hearing, both attorneys agreed that trial could be set over one week because a courtroom and judge were not available on the applicable dates. The court agreed with both parties that there was good cause for the continuance and that the continuance would not violate Hemmingsen's right to a speedy trial because the new date fell within the next 30 days. Hemmingsen refused to sign the continuance. Neither party filed motions for a CrR 3.5 or CrR 3.6 hearing.
III. The Trial
At trial, Officer Westphal and Officer Landwehrle testified to the facts cited above. Officer Westphal added that the larger knife had a blade measuring eight and one-quarter inch and the smaller knife found by the seatbelt release mechanism had a blade measuring four inches. Officer Westphal testified that when Hemmingsen was unable to produce registration for the car, Hemmingsen told him he had just bought the vehicle. While searching Hemmingsen's person, Officer Westphal asked him if he knew what was in the car. When asked what was in the bag, Hemmingsen said "[c]rystal meth," and when asked if it was his, he said "yes." RP (Jul. 11-12, 2005) at 105. Hemmingsen again claimed ownership of the methamphetamine when Officer Westphal informed him that he could charge both him and the passenger with possession of the methamphetamine. Later the same day, Hemmingsen issued a taped statement that the methamphetamine belonged to him. Hemmingsen testified that he had lied about owning the methamphetamine so that the police would not arrest his passenger. Hemmingsen additionally testified that he was not the owner of the car, and thus was unaware of the knives, the fanny pack, and the methamphetamine. Hemmingsen then testified that he was merely test driving the vehicle to help his niece decide whether to purchase it.
Neither of the parties objected to jury instructions and on July 12, 2005, the jury found Hemmingsen guilty as charged, including the deadly weapon enhancement.
IV. Sentencing
On August 8, 2005, the trial court determined the standard sentence range to be 12 months plus one day to 20 months. The court included an additional 12 months for the deadly weapon enhancement. The trial judge sentenced Hemmingsen to 30 months, which is less than the maximum, but two months greater than the mid-range. The court also imposed 9-12 months of community supervision. Hemmingsen now appeals his conviction and sentence, additionally alleging ineffective assistance of counsel.
ANALYSIS
I. Insufficient Evidence
Hemmingsen contends that insufficient evidence supported his conviction for unlawful possession of methamphetamine with intent to deliver while armed with a deadly weapon.
Evidence is sufficient to support an adjudication of guilt if, when viewed in the light most favorable to the State, the evidence permits any reasonable juror to find that the State proved the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A defendant claiming insufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences therefrom. Salinas, 119 Wn.2d at 201. We view both circumstantial and direct evidence as equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). The jury is entitled to weigh the credibility of witness testimony in a criminal trial, and its conclusions will not be disturbed by a reviewing court. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004).
In order to convict Hemmingsen of unlawful possession of methamphetamine with intent to deliver, the jury was required to find that the defendant (1) possessed a controlled substance (2) with the intent to deliver the controlled substance and (3) that the acts occurred in Washington. RCW 69.50.401. Possession may be actual or constructive. State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d 1214 (1997). "Actual possession means that the goods are in the personal custody of the person charged with possession; whereas, constructive possession means that the goods are not in actual, physical possession, but that the person charged with possession has dominion and control over the goods." State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). Dominion and control do not need to be exclusive for constructive possession. State v. Summers, 107 Wn. App. 373, 384, 28 P.3d 780 (2001). Dominion and control over the premises raises a rebuttable inference or presumption that the defendant also had dominion and control over the controlled substances therein. Summers, 107 Wn. App. at 384. A vehicle is a "premises" for this type of analysis. State v. Huff, 64 Wn. App. 641, 654, 826 P.2d 698 (1992).
Sufficient evidence supports the finding that Hemmingsen possessed the methamphetamine. Because Hemmingsen told Officer Westphal that he had just purchased the car and had knowledge of the methamphetamine, it is reasonable to infer dominion and control. See Huff, 64 Wn. App. at 654 (defendant had dominion and control where he was driving the vehicle and smelled like methamphetamine); State v. Potts, 1 Wn. App. 614, 617, 464 P.2d 742 (1969) (it is reasonable to infer dominion and control where defendant had the car keys and was driving). Additionally, Hemmingsen told Officer Westphal that there was methamphetamine in the vehicle before the search and on two occasions reported that the methamphetamine belonged to him. Although Hemmingsen later claimed that he had lied about possessing the methamphetamine to protect his passenger, we do not review credibility determinations on appeal. Varga, 151 Wn.2d at 201. Here, the jury simply chose to believe that Hemmingsen knew of the methamphetamine. Sufficient evidence exists such that a reasonable juror could conclude that the State proved at least constructive possession of methamphetamine beyond a reasonable doubt.
Hemmingsen also claims that insufficient evidence supported the finding that he intended to deliver the methamphetamine. A large quantity of a controlled substance is insufficient, without some additional factor, to establish intent to deliver. State v. Campos, 100 Wn. App. 218, 222, 998 P.2d 893 (2000). One additional factor that can help to establish intent is a large sum of money in the defendant's possession in close proximity to the controlled substance. Campos, 100 Wn. App. at 224; State v. McNeal, 98 Wn. App. 585, 595-96, 991 P.2d 649 (1999); State v. Hagler, 74 Wn. App. 232, 236, 872 P.2d 85 (1994). The presence of paraphernalia related to drug sales is also an additional factor in support of finding intent to deliver. State v. Zunker, 112 Wn. App. 130, 136, 48 P.3d 344 (2002).
Sufficient evidence supports the finding that Hemmingsen possessed the methamphetamine with intent to deliver. In addition to the 28.6 grams of methamphetamine, Officer Westphal discovered $1,901 in currency grouped in bundles of one hundred dollars in Hemmingsen's pocket. Additionally, Officer Westphal discovered paraphernalia for drug sales such as a digital scale and small plastic baggies in the fanny pack with the methamphetamine. Sufficient evidence exists such that a reasonable juror could conclude that the State proved beyond a reasonable doubt that Hemmingsen possessed methamphetamine with intent to deliver.
Finally, Hemmingsen claims that insufficient evidence supported the finding that he was armed with a deadly weapon at the time of the commission of the crime. RCW 9.94A.602 includes "any knife having a blade longer than three inches" as a deadly weapon. The statute fails, however, to define the term "armed." As a result, courts have developed standards for determining when a defendant is "armed" for purposes of sentence enhancement.
Our Supreme Court first set out the test for determining whether a defendant was "armed" by requiring the State to prove that the deadly weapon was "easily accessible and readily available for use, either for offensive or defensive purposes." State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993). However, courts began applying a two part "nexus" test after determining that the weapon was "easily accessible and readily available," State v. Willis, 153 Wn.2d 366, 372-73, 103 P.3d 1213 (2005). The first question is whether a nexus exists between the defendant and the weapon. State v. Schelin, 147 Wn.2d 562, 567-68, 55 P.3d 632, 635 (2002). The second question is whether the weapon is connected to the crime. Schelin, 147 Wn.2d at 568. As such, in order to prove that a defendant is "armed," "the State must establish that the defendant was within the proximity of an easily and readily available [deadly weapon] for offensive or defensive purposes and that a nexus exists between the defendant, the crime, and the [deadly weapon]." State v. Barnes, 153 Wn.2d 378, 383, 103 P.3d 1219 (2005).
Potential for confusion exists regarding the purpose and applicability of the first part of the nexus test, which, similarly to the Valdobinos test, also turns on whether the weapon was in the proximity of the defendant. Any weapon that is "easily accessible and readily available" is by definition in close proximity of the defendant. The first part of the nexus test is repetitive to the Valdobinos test in application. Even our Supreme Court seems to have replaced the first part of the nexus test with the language of the Valdobinos court by using the "easily accessible and readily available" test when applying the nexus test to determine a nexus sufficient to connect the defendant to the deadly weapon. State v. Gurske, 155 Wn.2d 134, 141-42, 118 P.3d 333 (2005).
The second nexus question requires the court to determine whether the evidence permitted an inference that the defendant was using the weapon in connection with the crime. Schelin, 147 Wn.2d at 568. The court should consider the nature of the crime, the type of weapon, and the circumstances under which the weapon was found. Schelin, 147 Wn.2d at 570.
A defendant is "armed" for the purposes of RCW 9.94A.602 when the State proves a nexus (1) between the defendant and the weapon by showing that the weapon is easily accessible and readily available for use, either for offensive or defensive purposes, and (2) between the weapon and the crime. Schelin, 147 Wn.2d at 567-68. Without this test, courts run the risk of convicting defendants under the deadly weapon enhancement for having a weapon unrelated to the crime. State v. Johnson, 94 Wn. App. 882, 892, 974 P.2d 855 (1999). "The theory behind the deadly weapon enhancement is that a crime is potentially more dangerous to the victim, bystanders or the police if the defendant is armed while he is committing the crime because someone may be killed or injured." Johnson, 94 Wn. App. at 896 (emphasis added).
In reviewing the sufficiency of the evidence in a criminal case, the question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).
Sufficient evidence supports the deadly weapon enhancement. Here, the knives were easily accessible and readily available to Hemmingsen, as driver of the car. Additionally, it is reasonable that a defendant in possession of methamphetamine and two knives, each with blades longer than three inches, would use those knives as security during drug sales or delivery. While Hemmingsen claimed he was unaware of the knives, the jury did not believe him. Again, this court will not review credibility determinations. Varga, 151 Wn.2d at 201. Sufficient evidence exists such that a reasonable juror could conclude that the State proved beyond a reasonable doubt that Hemmingsen was armed with a deadly weapon.
II. Sentencing and Blakely Violation
Hemmingsen next contends that the court violated Blakely, 542 U.S. at 301, when it failed to sentence him under the statute in effect at the time of the commission of the offense, which would have required the jury to identify that the particular substance underlying the conviction was methamphetamine base. Hemmingsen claims that this error resulted in a Blakely violation for an enhanced sentence without a jury determination.
Hemmingsen claims that he should have been sentenced under former RCW 69.50.401(a)(1)(ii) (2002), which omitted "salts, isomers, and salts of isomers," and which was in effect at the time of the commission of his crime. He is correct. Hemmingsen further alleges that if the court had properly sentenced him, doing so would have invaded the province of the jury and violated Blakely. This argument is incorrect because the error did not increase his sentence and did not therefore violate Blakely.
Sentencing courts must look to the statute in effect at the time a defendant committed a crime. Varga, 151 Wn.2d at 191. And, under Blakely, 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. Blakely, 542 U.S. at 301. Former RCW 69.40.401(a)(1) (2002) states:
Any person who violates this subsection with respect to:
. . .
(ii) amphetamine or methamphetamine, is guilty of a crime and upon conviction may be imprisoned for not more than ten years. . . .
(iii) any other controlled substance classified in Schedule I, II, or III, is guilty of a crime and upon conviction may be imprisoned for not more than five years . . .
Hemmingsen claims that he was subjected to the 10-year maximum sentence prescribed by the current version of RCW 69.50.401(2)(b), which includes "salts, isomers, and salts of isomers." Former RCW 69.50.401(a)(1)(ii) (2002) specifically mentions only methamphetamine and amphetamine. Schedule II lists "[m]ethamphetamine, its salts, isomers, and salts of its isomers." RCW 69.50.206(d)(2). Hemmingsen's argument is that former RCW 69.50.401(a)(1)(ii) (2002) imposes the longer maximum sentence, ten years, for methamphetamine base only. As such, methamphetamine hydrochloride would fall under "any other controlled substance," and be controlled by former RCW 69.50.401(a)(1)(iii) (2002), which limits the maximum sentence to five years.
Hemmingsen is correct in asserting that the court sentenced him under the incorrect version of the statute. Hemmingsen committed his crime on May 1, 2005. The legislature amended RCW 69.50.401, including salts, isomers, and salts of isomers, effective July 24, 2005. Laws of 2005, ch. 218, § 1. Therefore, the court should have sentenced Hemmingsen under the statute in effect on May 1, not July 24. Hemmingsen claims that if the court had sentenced him under the older version of the statute, the trial court would have committed a Blakely error by imposing an increased sentence for methamphetamine base without requiring the jury to determine the identified substance was actually base instead of salt.
The Washington Supreme Court recently established precedent controlling Hemmingsen's allegations. In State v. Cromwell, the court clarified that the plain language of former RCW 69.50.401(a)(1)(ii) (2002) encompassed all forms of methamphetamine, including hydrochloride (salts). State v. Cromwell, 157 Wn.2d 529, 536, 140 P.3d 593 (2006). Defendants in Cromwell argued that former RCW 69.50.401(a)(1)(ii) did not include methamphetamine salts, isomers or salts of isomers. Cromwell, 157 Wn.2d at 536. The Court held that base and salt methamphetamine are the same chemical substance and that when the legislature used the word "methamphetamine" in former RCW 69.50.401(a)(1)(ii), that word included all forms of the substance. Cromwell, 157 Wn.2d 536.
Therefore, even if the jury would have determined that Hemmingsen possessed the salt form instead of the base form of methamphetamine, the sentencing range would have been the same and Blakely is not violated. Here, both base and salt are legally the same and resulted in the same sentence. Even if the court had charged Hemmingsen under the former statute, the sentencing range would be a maximum of 10 years. As such, the trial court did not commit a Blakely violation because his sentence was not increased.
III. Counsel's Failure to Challenge Sentencing Statute
Hemmingsen claims that counsel's failure to object to the trial court sentencing him under the statute in effect at the time of the commission of the crime and counsel's failure to object to a Blakely violation constituted ineffective assistance of counsel.
Because sentencing Hemmingsen under the incorrect version of the statute was harmless, Hemmingsen is unable to show either prejudice or that the result of the trial would likely have been different. Hemmingsen fails to show ineffective assistance of counsel.
IV. Hemmingsen's Right to a Speedy Trial
Hemmingsen's trial began on July 11, 2005, 61 days following his arraignment, without considering any extended time for the continuance. The 60th day fell on a Sunday. Accordingly, CR 6(a) mandates that the final day of the period be included unless it falls on a Saturday, Sunday, or legal holiday. By excluding Sunday, Hemmingsen's trial began on the 60th day following his arraignment. Because Hemmingsen received a trial within 60 days, his right to a speedy trial was not violated and we need not consider whether the court granted a valid continuance for lack of an available courtroom or trial judge.
V. Search of Hemmingsen's Vehicle
Hemmingsen alleges that Officer Westphal illegally searched his car when the police allowed the passenger to leave with the vehicle and when Officer Westphal removed Hemmingsen from the car and handcuffed him before the second police officer arrived at the scene. Hemmingsen also contends that failure to impound the car would preclude the police from validly searching the cabin of the car incident to his arrest. Hemmingsen does not challenge the validity of his arrest.
A police officer may conduct an investigative stop if he or she has a reasonable, articulable suspicion based on specific, objective facts, that the person seized has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Police may conduct a warrantless search incident to a valid arrest but the search is limited to the arrestee's person and the area within his immediate control. State v. Johnson, 128 Wn.2d 431, 446-47, 909 P.2d 293 (1996); Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d. 685 (1969). The rationale underlying a search incident to arrest is the need to prevent the arrestee from obtaining a weapon or disposing of evidence. Chimel, 395 U.S. at 763; Johnson, 128 Wn.2d at 447. There is a bright line rule for determining the scope of a warrantless search of an automobile incident to an arrest: the police can search the contents of the passenger compartment exclusive of locked containers or locked glove box. State v. Fladebo, 113 Wn.2d 388. 395-96, 779 P.2d 707 (1989). A purse is not a locked container. Fladebo, 113 Wn.2d at 395. An unlocked purse could well conceal a readily useable weapon and when a police officer has made a lawful custodial arrest of the occupant of an automobile, he may, incident to that arrest, search the automobile, including the passenger area and an unlocked purse. Fladebo, 113 Wn.2d at 395.
Here, Officer Westphal properly initiated a Terry stop when Hemmingsen ran the red light. Once pulled over, Officer Westphal found that Hemmingsen had an outstanding warrant and had proper grounds to arrest him. After arresting Hemmingsen, Officer Westphal saw a knife fall from the front seat of the vehicle to the floorboard. Officer Westphal reasonably suspected Hemmingsen to be armed and conducted a proper search incident to Hemmingsen's arrest to prevent Hemmingsen from obtaining a weapon. Inside the passenger compartment of the car, Officer Westphal found two knives with blades longer than three inches and a fanny pack. When Officer Westphal asked Hemmingsen what the bag contained, Hemmingsen replied "crystal meth." RP (Jul. 11-12, 2005) at 80, 105. Given the other knives present in the car, it was also reasonable for the officer to suspect that the fanny pack also contained a weapon. Therefore, Officer Westphal's search of Hemmingsen's vehicle incident to arrest was proper.
VI. Failure of Defense Counsel to Contact Sherrie Boutwell as a Witness for the Defense
Finally, Hemmingsen contends that his trial attorney's failure to contact Sherrie Boutwell as a witness in his defense constituted ineffective assistance of counsel. A defendant claiming ineffective assistance of counsel must prove (1) that the attorney's performance was deficient, i.e. that the representation fell below an objective standard of reasonableness under the prevailing professional norms, and (2) that prejudice resulted from the deficient performance, i.e. that there is a reasonable probability that, but for the attorney's unprofessional errors, the results of the proceedings would have been different. State v. Graham, 78 Wn. App. 44, 56, 896 P.2d 704 (1995); State v. Early, 70 Wn. App. 452, 460, 853 P.2d 964 (1993). A reviewing court is not required to address both prongs of the test if the defendant makes an insufficient showing on one prong. State v. Tarica, 59 Wn. App. 368, 374, 798 P.2d 296 (1990).
Hemmingsen fails to show that prejudice resulted from the alleged deficient performance or that there is a reasonable probability that, but for the attorney's unprofessional errors, the results of the proceedings would have been different. Early, 70 Wn. App. at 460; Graham, 78 Wn. App. at 56. Hemmingsen has failed to establish that defense counsel attempted to subpoena Boutwell, whether Boutwell would have testified, or what the content of the testimony would have been. We will not address this argument, as the argument relies on matters outside the record. State v. McFarland, 127 Wn.2d 322, 330, 899 P.2d 1251 (1995).
We affirm.
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, P.J. Armstrong, J. concur