STATE v. AGUILAR-ALMANTE, 25906-1-II (Wash.App. 6-7-2002)

No. 25906-1-II.The Court of Appeals of Washington, Division Two.
Filed: June 7, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Cowlitz County, No. 99-1-01043-1, Hon. Randolph Furman, April 20, 2000, Judgment or order under review.

Counsel for Appellant(s), Jill M. Johanson, Attorney At Law, 1717 Olympia Way # 206, Longview, WA 98632.

Counsel for Respondent(s), Edwin N. Norton, Cowlitz Co Dep Pros Atty, 312 S.W. 1st Ave, Kelso, WA 98626-1739.

ELAINE M. HOUGHTON, J.

Antonio Aguilar-Almante appeals his conviction of three counts of delivery of heroin, arguing insufficiency of the evidence and ineffective assistance of counsel. We affirm.

FACTS
On July 20, 1999, the Cowlitz County Wahkiakum County Narcotics Task Force made a `controlled buy’ of heroin at 612 North First Street, an apartment in Kelso. Detectives John Johnston and Patrick Moore used a paid informant, Patrick Webb. Johnston gave Webb $300 in recorded bills to buy heroin and drove him within walking distance of the apartment. Johnston and Moore then watched Webb walk toward the apartment.

Webb testified that once inside, he met a person whom he knew only as `Kitty Kitty.’ I Report of Proceedings (RP) at 48.[1] Webb was an admitted drug user and he had known Kitty Kitty for six to nine months before Webb began working as an informant. Webb asked Kitty Kitty for an `eight ball’ of heroin and handed him the $300. I RP at 48. Kitty Kitty broke off about an ounce of heroin, weighed it on a scale, put it into a plastic bag, and gave it to Webb.

On October 1, the Task Force used Webb to conduct a similar controlled buy at the same address. Again, the officers gave Webb $300 in recorded bills and drove him to 612 North First. With the help of another officer, Sergeant Taylor, they watched Webb as he approached and entered the apartment. Taylor testified that he saw Webb approach the apartment, speak with an Hispanic male, and enter the apartment. Webb testified that, once inside, he and Kitty Kitty went into the bedroom. Again, Webb paid Kitty Kitty with the recorded $300 and Kitty Kitty broke off some heroin, weighed it, put it in a plastic bag and gave it to Webb.

On October 26, the Task Force used Webb to conduct a third controlled buy from Kitty Kitty. Webb was again searched and given a recorded $300. This time Johnston drove Webb to a new address: 1420 North Pacific #20, Kelso. Webb testified that Kitty Kitty had been evicted from the North First address. Webb had visited this new apartment about five or six times in October and believed that Kitty Kitty had lived there since October 5. Once inside, Webb again asked Kitty Kitty for an eight ball of heroin. Kitty Kitty went to the garage and returned with about one-half ounce of heroin. Kitty Kitty broke off a piece; weighed it; and gave it to Webb, who paid Kitty Kitty the $300.

On October 27, the Task Force obtained a warrant and searched 1420 North Pacific #20. Aguilar-Almante was present at the house. In the garage, Johnston saw several holes punched in the wall. Inside the wall, small plastic bags of black and white substances dangled from pipes or cables.

In the kitchen, Johnston found a digital scale inside the microwave oven.

The scale was of the type commonly used to weigh controlled substances for illegal sale. Johnston also searched Aguilar-Almante and found over $500 in cash and a Mexican registration document `with his name on it.’ I RP at 33.

The State charged Aguilar-Almante with three counts of delivery of a controlled substance — one count for each time he sold heroin to Webb (counts I-III).[2] Based on the evidence found during the search, it also charged him with possession with intent to deliver cocaine[3]
(count IV); possession with intent to deliver heroin[4] (count V); and keeping or maintaining a drug house[5] (count VI).

At trial, Webb identified the defendant in the courtroom as the person he knew as Kitty Kitty.[6] Webb also testified that he dealt with persons other than Kitty Kitty and that there were at least nine other persons with Hispanic names at the 612 North First address. Johnston identified the defendant in the courtroom as the person that he saw during the search `and on whose person [he] found the money and that document[.]’ I RP at 39.

The State moved for admission of the registration document, Plaintiff’s Exhibit 12, to help establish that the person Webb knew as Kitty Kitty was Aguilar-Almante.[7] The trial court denied the motion because the prejudice of admitting the evidence outweighed any probative value.[8]
After the close of the State’s case, Aguilar-Almante moved to dismiss counts IV, V and VI (keeping a drug house) for insufficient evidence. The trial court granted the motion and withdrew jury instructions and evidence associated with the dismissed charges. The removed evidence included the controlled substances found in the wall, lab reports, and photographs from the garage (exhibits 9, 10, 13, and 14).

The evidence presented to the jury then included the scale (exhibit 11); substances and lab reports for counts I, II, and III; a photograph of the front of the house on North Pacific; and a photograph of the wallet and money seized during the search (exhibits 1-8). Among the remaining instructions was instruction 6, which read: `A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count.’ Clerk’s Papers (CP) at 47.

The jury convicted Aguilar-Almante of counts I, II, and III and he appeals.

ANALYSIS
Sufficiency of the Evidence

Aguilar-Almante first contends that the State introduced insufficient evidence to prove that he was Kitty Kitty, the person who delivered the heroin to Webb.

When reviewing the sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the State and determine whether a rational trier of fact could find the elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). By claiming insufficient evidence to support a conviction, Aguilar-Almante admits the truth of the State’s evidence and all inferences that reasonably can be drawn from it. Salinas, 119 Wn.2d at 201.

If there is sufficient evidence to support the conviction, the existence of contravening evidence will not disturb the verdict. We defer to the trier of fact for credibility determinations and for resolution of contradictory evidence. State v. Lubers, 81 Wn. App. 614, 619, 915 P.2d 1157, review denied, 130 Wn.2d 1008 (1996).

Here, Webb’s testimony that the defendant was the person who sold him the heroin was sufficient for the jury to convict Aguilar-Almante. But Aguilar-Almante contends that because Webb was the only eyewitness to the delivery and his testimony is without corroboration, the identification evidence is insufficient. We disagree. The jury is entitled to believe Webb’s testimony without corroboration and this argument fails. State v. Smith, 36 Wn. App. 133, 142, 672 P.2d 759 (1983) (the jury is the sole judge of witness credibility), review denied, 100 Wn.2d 1040 (1984).

Aguilar-Almante also argues that the courtroom identification was insufficient because, although Webb testified that Kitty Kitty was the defendant in the courtroom, the State did not expressly show that the defendant was also Aguilar-Almante. Again, we disagree. At trial, Kitty Kitty’s attorney referred to his client as Aguilar-Almante before the jury. And the defendant signed his judgment and sentence directly above his fingerprints, removing any possibility of misidentification. This argument fails.

Effective Assistance of Counsel

Counts IV, V, and VI, for possession with intent to deliver cocaine and heroin and for owning or maintaining a drug house, were dismissed at the close of the State’s case for want of evidence. Aguilar-Almante argues, however, that he was denied his right to effective assistance of counsel because his trial counsel allowed evidence relevant to the dismissed charges to come before the jury. Aguilar-Almante bases this argument on four separate claims. We address each claim separately.

To establish ineffective assistance of counsel, a defendant must demonstrate both that his or her counsel’s representation was deficient and that he or she was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We presume that counsel’s representation falls within the wide range of proper professional assistance. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991). To overcome this presumption, the defendant must show that there was no legitimate strategic or tactical rationale for counsel’s conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251
(1995). To establish prejudice, the defendant must show that but for counsel’s deficient performance, the result would have differed. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). No Pretrial Motion to Dismiss Counts IV, V, and VI

First, Aguilar-Almante argues that his trial counsel’s representation was deficient when he did not bring a Knapstad[9] motion to dismiss counts IV, V, and VI in limine.

In Knapstad, our Supreme Court held that a defendant may move in limine for the court to dismiss criminal charges if the undisputed facts are legally insufficient to support a finding of guilt. Knapstad, 107 Wn.2d at 351-53. Aguilar-Almante argues that because the trial court granted such a motion after the State rested its case, it would have granted the motion before trial. If a Knapstad motion is granted pretrial, the case is dismissed without prejudice, jeopardy does not attach, and the State may refile those charges after it has developed new evidence. Knapstad, 107 Wn.2d at 357. But when such a motion is granted after the State has presented its case in chief, the charges are dismissed with prejudice and jeopardy attaches. State v. Ridgley, 70 Wn.2d 555, 558, 424 P.2d 632 (1967). It is, therefore, a legitimate strategy to wait to bring a motion challenging the sufficiency of the evidence until after jeopardy attached and the charge could be dismissed with prejudice.

Because there was a legitimate strategy for the delay, Aguilar-Almante does not overcome the presumption that his trial counsel’s actions were within the acceptable range of professional conduct.

No Motion to Sever Counts IV, V, and VI

Second, Aguilar-Almante contends that his trial counsel’s representation was deficient when counsel did not move in limine to sever counts IV, V and VI. Aguilar-Almante argues that his counsel should have known before trial that the evidence the State had to prove these counts was insufficient. Aguilar-Almante further contends that his arrest in a house with a scale and large amounts of heroin and cocaine was unduly prejudicial to the jury’s determination on count’s I, II, and III (delivery of relatively small amounts of heroin). Aguilar-Almante asserts that this evidence would not have been admissible if counts I, II and III had been tried separately.

CrR 4.4(b) provides that a trial court shall sever offenses when `the court determines that severance will promote a fair determination of the defendant’s guilt or innocence of each offense.’ We review a trial court’s decision to deny a severance for an abuse of discretion. State v. Kalakosky, 121 Wn.2d 525, 537, 852 P.2d 1064 (1993). The defendant seeking severance must meet the burden of showing that a trial involving all counts “would be so manifestly prejudicial as to outweigh the concern for judicial economy.” Kalakosky, 121 Wn.2d at 537 (quoting State v. Bythrow, 114 Wn.2d 713, 717-18, 790 P.2d 154 (1990)).

A defendant may be prejudiced by a failure to sever offenses in three general ways:

`(1) [The defendant] may become embarrassed or confounded in presenting separate defenses; (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find.’

State v. Standifer, 48 Wn. App. 121, 126, 737 P.2d 1308 (quoting State v. Smith, 74 Wn.2d 744, 755, 446 P.2d 571 (1968)), review denied, 108 Wn.2d 1035 (1987).

Here, Aguilar-Almante argues that the second and third types of prejudice apply to him. He asserts first that a trial court would have granted a motion to sever the counts and second, that his identification at his arrest and the seizure of the cocaine and heroin found during the search of 1420 North Pacific # 20 would not have been admitted in a separate trial for counts I, II, and III.

This argument is unpersuasive. Even if the severance had been granted, it is not certain that the evidence of which he complains would not have been admitted in a trial for counts I, II and III. Notably, the scale seized during the search would likely have been admitted because it was similar to the one Webb described. Also, Aguilar-Almante’s presence at the residence during the search on the day after Webb’s last controlled buy would likely have been admitted as relevant to his identification.

Even assuming that this evidence would not have been admitted in a separate trial on counts I, II and III, Aguilar-Almante cannot show that its consideration by the jury prejudiced him. The jury was instructed to consider each count separately and that its `verdict on one count should not control [its] verdict on any other count.’ CP at 47 (instruction 6).

We presume that the jury follows the trial court’s instructions. State v. Grisby, 97 Wn.2d 493, 509, 647 P.2d 6 (1982), cert. denied sub nom. Frazier v. Washington, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446
(1983). Thus, Aguilar-Almante’s trial counsel did not err in failing to move to sever. Moreover, even if he did, Aguilar-Almante does not show that but for this alleged error, the verdict would have differed.

No Renewal of Objection to Admission of Seized Cocaine and Heroin

Next, Aguilar-Almante asserts that he was denied effective assistance of counsel when he did not renew an objection to the admission of cocaine and heroin seized during the search of 1420 North Pacific # 20.

Again, Aguilar-Almante has to prove that this conduct was an error and that but for the conduct, he would have been acquitted. McNeal, 145 Wn.2d at 362. He cannot meet this burden. Before counts IV, V, and VI were dismissed, the evidence of which Aguilar-Almante complains was still relevant. Thus, a renewed objection would have been overruled. After those counts were dismissed, the trial court removed the evidence from the jury’s consideration. Aguilar-Almante’s counsel’s failure to renew his objection to the evidence did not cause undue prejudice.

No Motion for a Mistrial on Counts I, II, and III.

Finally, Aguilar-Almante asserts that his trial counsel erred in not moving for a mistrial on the remaining counts after counts IV, V, and VI had been dismissed after the jury had heard prejudicial evidence relevant to the dismissed counts. But Aguilar-Almante does not demonstrate that the trial court would likely have granted a motion for a mistrial.

When considering whether to grant a mistrial, a trial court may consider `(1) the seriousness of the irregularity, (2) whether the [evidence] in question was cumulative of other evidence properly admitted, and (3) whether the irregularity could be cured by an instruction to disregard the [evidence], an instruction which a jury is presumed to follow.’ State v. Escalona, 49 Wn. App. 251, 254, 742 P.2d 190 (1987). We review the denial of a motion for mistrial for an abuse of discretion. Escalona, 49 Wn. App. at 254-55.

Here, the trial court would not have abused its discretion in denying a motion for mistrial if Aguilar-Almante’s trial counsel had made one. First, the trial court instructed the jury to consider each count separately. Second, the trial court removed the evidence not relevant to the remaining counts from the jury’s consideration. Because these measures cured any prejudice to Aguilar-Almante, a new trial was not warranted.

Aguilar-Almante maintains that his case is analogous to Escalona, in which the court held that the trial court erred in not granting a mistrial. But Escalona is distinguishable because it involved a direct violation of an order in limine to not mention a prior offense. Escalona, 49 Wn. App. at 253. Further, the State’s case against Escalona was much weaker than the case against Aguilar-Almante because the key witness against Escalona gave inconsistent testimony. Escalona, 49 Wn. App. at 255. In the present case, Webb’s testimony was consistent. Thus, Escalona is not analogous to the present case.

Because Aguilar-Almante cannot show that the failure to bring a motion for a mistrial was error or prejudicial, his trial counsel did not provide ineffective assistance. 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.

WE CONCUR: MORGAN, J. HUNT, C.J.