Opinion
No. 24086-0-III.
June 29, 2006.
Appeal from a judgment of the Superior Court for Benton County, No. 05-1-00146-5, Robert G. Swisher and Cameron Mitchell, JJ., entered August 15, 2005 and April 22, 2006.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.
Counsel for Respondent(s), Alexander Carl Ekstrom, Benton County Prosecutors Office, M/S G, 7122 W Okanogan Ave, Kennewick, WA 99336-2341.
Mariah a Wagar, Benton County Prosecutor's Office, 7122 W Okanogan Ave Bldg a, Kennewick, WA 99336-2341.
Affirmed in part and reversed in part by unpublished opinion per Sweeney, C.J., concurred in by Brown and Kato, JJ.
Steven Lynn Cox appeals his conviction for possession of pseudoephedrine with intent to manufacture methamphetamine. He was a passenger in a vehicle stopped by deputies. The court properly concluded that the deputies conducted a lawful custodial arrest (of the driver) and search of the vehicle incident to arrest. Mr. Cox argues that he received ineffective assistance of counsel. But he has not shown that counsel's performance was deficient or prejudicial. He also argues that there is insufficient evidence to support his conviction and that the court improperly forfeited $2,513.89 of his cash bail. There is sufficient evidence here to support his conviction. The State concedes that the court clerk improperly used Mr. Cox's cash bail to pay his court imposed obligation. We therefore affirm Mr. Cox's conviction and reverse the court's forfeiture of $2,513.89 of Mr. Cox's cash bail.
FACTS
Detective Larry Smith saw Kimberly Hixson steal pseudoephedrine from several stores in the Tri Cities, Washington, and then head toward Oregon. The detective asked a deputy to stop the car if it was headed toward Oregon.
Two deputies stopped the car. Ms. Hixson was the driver. The deputies arrested her for driving without a valid driver's license. Detective Smith arrived and asked Mr. Cox, a passenger, to get out of the car. Mr. Cox unsuccessfully tried to hide numerous blister packs of pseudoephedrine under his jacket. Detective Smith arrested and searched Mr. Cox and found four lithium batteries. Detective Smith then impounded the car. He searched it and found four bottles of Heet, a water-soluble organic solvent, and several lithium batteries.
The State charged Mr. Cox with possession of pseudoephedrine with intent to manufacture methamphetamine. Mr. Cox moved to suppress the evidence seized at the time of his arrest. The court denied his motion. A jury convicted Mr. Cox. A deputy court clerk used part of his cash bail to pay for his court imposed financial obligations.
DISCUSSION
Forfeiture of Bail Money
The court improperly forfeited $2,513.89 of the cash bail. State v. Paul, 95 Wn. App. 775, 779, 976 P.2d 1272 (1999). And the State concedes as much. Court's Conclusions Following Suppression Hearing Supported by its Findings
Mr. Cox contends that the court's finding that Ms. Hixson was arrested for driving without a valid driver's license does not support its conclusion that the custodial arrest and subsequent search were proper. This is because arrest for a minor traffic infraction will not justify a custodial arrest. State v. Barajas, 57 Wn. App. 556, 559, 789 P.2d 312 (1990).
The State responds that there is more here than just the misdemeanor crime of driving without a license. It argues that there are `other reasonable grounds' supporting the officer's decision to seize Ms. Hixon and search the vehicle. State v. Reding, 119 Wn.2d 685, 695, 835 P.2d 1019 (1992); Barajas, 57 Wn. App. at 559.
Standard of Review
We review a trial court's conclusions of law in a motion to suppress evidence de novo. State v. Dodson, 110 Wn. App. 112, 123, 39 P.3d 324 (2002). A trial court's findings of fact must support its conclusions of law. Id. Unchallenged findings of fact are verities on appeal. Id. Here, Mr. Cox argues only that the court's findings (Ms. Hixson was arrested for a traffic infraction) do not support its conclusions (the custodial arrest and subsequent search were justified).
An officer must have probable cause to make a lawful custodial arrest. State v. Smith, 119 Wn.2d 675, 680, 835 P.2d 1025 (1992). Probable cause requires facts or circumstances sufficient to cause a reasonable officer to believe a crime has been committed. State v. Gaddy, 152 Wn.2d 64, 70, 93 P.3d 872 (2004).
Driving without a valid driver's license is a criminal offense. RCW 46.63.020(10); RCW 46.20.005; Barajas, 57 Wn. App. at 559. But it is a misdemeanor. RCW 46.20.005; Barajas, 57 Wn. App. at 559. It does not, by itself, justify a custodial arrest. Barajas, 57 Wn. App. at 559. Additional circumstances are required to justify an arrest. Id. Additional circumstances include: the failure to provide identification, giving a false name, and the presence of facts that suggest the person would not appear in court if given a citation. State v. Terrazas, 71 Wn. App. 873, 878, 863 P.2d 75 (1993); State v. Johnson, 65 Wn. App. 716, 720-21, 829 P.2d 796 (1992); State v. McIntosh, 42 Wn. App. 573, 576-77, 712 P.2d 319 (1986).
An officer may conduct a search of the passenger compartment of a vehicle incident to a lawful custodial arrest. Smith, 119 Wn.2d at 680.
The trial court's findings here show that deputies stopped Ms. Hixson's vehicle. Clerk's Papers (CP) at 87, 89 (findings of fact 1, 13). Ms. Hixson did not have a valid driver's license or any other identification. CP at 89 (finding of fact 13). She gave a false name. CP at 89 (finding of fact 13). The car was licensed in Oregon. CP at 88 (finding of fact 9). Ms. Hixson was headed toward Oregon. CP at 89 (finding of fact 12). Detective Smith had good reason to believe that Ms. Hixson stole pseudoephedrine from various stores. CP at 87-89 (findings of fact 3-7, 9-12). After November 2004 Oregon residents had to show identification to buy Sudafed. CP at 88 (finding of fact 9).
We conclude then that sufficient additional circumstances here justified the court's conclusion that a custodial arrest was justified. CP at 91 (conclusion of law 1). The trial court's findings support its conclusions. Dodson, 110 Wn. App. at 123. The arrest and subsequent search incident to arrest were then lawful. Smith, 119 Wn.2d at 680; McIntosh, 42 Wn. App. at 576-77.
Effective Assistance of Counsel
Mr. Cox next argues that the failure of his trial lawyer to object to the introduction into evidence of syringes found on his person amounted to ineffective assistance of counsel. This is because there was no evidence connecting those syringes to drug use.
The State responds that the evidence was relevant and therefore it was proper for Mr. Cox's lawyers not to object.
We review a claim of ineffective assistance of counsel de novo. State v. Shaver, 116 Wn. App. 375, 382, 65 P.3d 688 (2003). An appellant must overcome a strong presumption that defense counsel's performance was reasonable based on the trial record. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995); Shaver, 116 Wn. App. at 382. The appellant must first show that `defense counsel's performance fell below an objective standard of reasonableness.' McFarland, 127 Wn.2d at 334-35; Shaver, 116 Wn. App. at 382. This must be shown based upon the trial record. McFarland, 127 Wn.2d at 335. A defense lawyer's failure to object may often be justified by a strategic or tactical reason. Id. at 336. The appellant must also show that he or she was prejudiced by the deficient representation. Id. at 334-35. That means there must be `a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different.' Id.
Mr. Cox relies on State v. Lowrimore for the proposition that mere possession of drug paraphernalia, absent some connection to drug use, makes the evidence inadmissible. State v. Lowrimore, 67 Wn. App. 949, 959, 841 P.2d 779 (1992). That is an overreading of Lowrimore. Here is what the court said: mere possession of drug paraphernalia alone, without other circumstances to suggest a criminal use, is not a crime. Id. Here, the State showed that Mr. Cox possessed pseudoephedrine with intent to manufacture methamphetamine. And it showed that methamphetamine could be injected. 2 Report of Proceedings at 169. Evidence of syringes was then relevant. ER 402; Lowrimore, 67 Wn. App. at 959. Mr. Cox also argues that his counsel made an argument that was not at issue (police authority to ask Mr. Cox for identification). This does not show deficient representation since he has not shown that defense counsel failed to raise pertinent issues at the CrR 3.6 hearing.
Mr. Cox has also failed to show that he was prejudiced by the alleged deficiencies. McFarland, 127 Wn.2d at 334-35. Mr. Cox possessed pseudoephedrine blister packs and lithium batteries. Several items used to manufacture methamphetamine were also found in the vehicle. He has not shown that `the result of the proceeding would have been different.' Id.
Sufficient Evidence
Finally, Mr. Cox contends that the evidence was not sufficient to support his conviction for possession of pseudoephedrine with intent to manufacture methamphetamine. `The facts before the jury were that the pseudoephedrine was for the sole purpose of trading for a completed product.' Appellant's Br. at 20.
We review a challenge to the sufficiency of the evidence in a light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The challenge represents an admission of the truth of the State's evidence and all reasonable inferences. Id. Circumstantial evidence is viewed to be as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
`It is unlawful for any person to possess . . . pseudoephedrine . . . with intent to manufacture methamphetamine.' RCW 69.50.440(1). "Manufacture' means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly.' RCW 69.50.101(p) (emphasis added). `Manufacture' includes an individual's limited role in the process. State v. Keena, 121 Wn. App. 143, 148, 87 P.3d 1197 (2004).
Police found 31 blister packs of pseudoephedrine and four lithium batteries on Mr. Cox. They also found four bottles of Heet and additional lithium batteries in the vehicle. These items are precursors to the manufacture of methamphetamine. It was reasonable then for the jury to infer that Mr. Cox intended to manufacture methamphetamine. Salinas, 119 Wn.2d at 201.
We affirm Mr. Cox's conviction and reverse the court's forfeiture of $2,513.89 of Mr. Cox's cash bail.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and KATO, J., concur.