No. 30848-7-IIThe Court of Appeals of Washington, Division Two.
Filed: October 26, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 03-1-02041-1. Judgment or order under review. Date filed: 09/03/2003. Judge signing: Hon. James R Orlando.
Counsel for Appellant(s), Rebecca Wold Bouchey, Attorney at Law, PO Box 1401, Mercer Island, WA 98040-1401.
Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
HUNT, J.
Pedro Alberto Hernandez appeals his conviction for unlawful possession of cocaine. He contends the State failed to disprove his unwitting possession defense and the sentencing court erred in calculating his offender score. We disagree and affirm.
Facts
Hernandez struck the vehicle in front of him while driving northbound on I-5. Washington State Patrol Officer Linda Allen contacted Hernandez, who appeared uninjured. Hernandez explained that he did not see the vehicle stop in front of him.
Allen then asked for his registration, proof of insurance, and driver’s license. Hernandez responded that he did not have any. Allen then noticed a glass smoking pipe on the center console between the front seats and arrested Hernandez. During a search of the vehicle incident to arrest,[1] Allen recovered the smoking pipe, four rocks of cocaine from the open glove box, and Hernandez’s wallet from under the passenger-side visor. When she asked Hernandez when he had last used drugs or marijuana, he initially replied that he did not remember; then he admitted that he had done so `last week.’
The State charged Hernandez with unlawful possession of a controlled substance, cocaine, in violation of RCW 69.50.401(d). Following a CrR 3.5 hearing, the trial court ruled Hernandez’s statements to Allen admissible, but it excluded evidence that he was intoxicated.
At trial, Franklin Broshears, a forensic scientist with the Washington State Patrol Crime Lab, testified that the glass pipe contained less than 1/10th of a gram of cocaine residue, and the four rocks of cocaine weighed a total of 0.7 grams.
Hernandez testified that: (1) the car he was driving belonged to a friend’s wife; (2) he had only had the car for two hours before the accident; (3) the glass pipe and cocaine were not his; (4) he did not know they were in the car; and (5) he had not opened the glove box before the accident. Hernandez identified his friend as `Carlos’ but did not give a last name. Hernandez admitted to having prior convictions for robbery, possession of stolen property, and shoplifting.[2]
Hernandez argued and the trial instructed the jury on unwitting possession. The jury found him guilty. The trial court calculated his offender score as three points, one point because he was on community custody when he committed the current offense. RCW 9.94A.525(17). It then imposed a five-month standard range sentence. Hernandez appeals.
ANALYSIS I. Sufficiency of the Evidence
Hernandez argues the evidence is insufficient to support his cocaine-possession conviction because the State did not controvert his unwitting possession defense. He contends he presented uncontroverted evidence that (1) the car was not his; (2) he did not know drugs were in the glove box; and (3) the glove box popped open during the collision.
To prove unlawful possession of a controlled substance, the State had to prove (1) the unlawful nature of the substance, and (2) that the defendant possessed it. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). Once the State establishes these elements, a defendant may raise an unwitting possession affirmative defense. Staley, 123 Wn.2d at 799.
Hernandez does not assert that the State failed to prove the elements of the offense. Instead, he claims that he proved unwitting possession.
To prove unwitting possession, a defendant must show by a preponderance of the evidence that he did not know he possessed the substance or did not know it was a controlled substance. Staley, 123 Wn.2d at 799. See also State v. Hundley, 126 Wn.2d 418, 895 P.2d 403 (1995); State v. Riker, 123 Wn.2d 351, 869 P.2d 43 (1994); State v. Cleppe, 96 Wn.2d 373, 380-81, 635 P.2d 435 (1981), cert. denied, 456 U.S. 1006 (1982).
The only evidence of unwitting possession Hernandez presented was his own testimony. The jury chose not to believe it. Moreover, the jury heard other evidence. For example, the jury knew that Hernandez claimed the car belonged to Carlos’s wife, but he did not identify Carlos by last name or show that the car was not his. The jury also knew that Hernandez had multiple prior convictions for crimes of dishonesty; and it heard Hernandez admit having used drugs in the past. And even though, according Hernandez, he had been in possession of the car for only two hours, he claimed he did not even look in the glove box for the vehicle’s registration and proof of insurance, suggesting that he knew that the glove box contained cocaine. Further, the jury heard that a glass smoking pipe was resting in open view on the console between the seats and that the pipe contained cocaine residue.
It was the jury’s task to weigh this evidence and decide whether Hernandez’s claim of unwitting possession was credible. Because such determinations are for the trier of fact and are not subject to review, State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990), we defer to the jury on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011
(1992). Here, the jury did not accept Hernandez’s unwitting possession claim, and we will not disturb that decision.
II. Offender Score
When calculating Hernandez’s offender score, the court included one point after finding that Hernandez was on community custody for his 1998 robbery conviction. See RCW 9.94A.525(17) (additional point if current offense committed while on community placement); RCW 9.94A.030(7) (`community placement’ includes `community custody’).
Hernandez argues nothing in the record supports the trial court’s finding that he was on community custody status and, thus, the State failed in its burden of proof. See State v. Dolen, 83 Wn. App. 361, 365, 921 P.2d 590 (1996), review denied, 131 Wn.2d 1006 (1997); RCW 9.94A.500 (state must prove criminal history by a preponderance of the evidence and all information must be part of record). Even were we to agree with Hernandez’s assertion, there is no meaningful relief we can provide.[3] The sentencing court imposed a standard-range, five-month sentence and gave Hernandez credit for 126 days served. Because Hernandez has served his sentence, the additional point can have no discernible impact on him in the future; thus, this claim is moot and we do not consider it. In re Rebecca K., 101 Wn. App. 309, 2 P.3d 501 (2000) (issue moot because at-risk youth petition dismissed and confinement served).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and QUINN-BRINTNALL, C.J., Concur.