STATE v. BOEHLER, 28554-1-II (Wash.App. 9-9-2003)

No. 28554-1-II.The Court of Appeals of Washington, Division Two.
Filed: September 9, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Wahkiakum County. Docket No: 01-1-00026-3. Judgment or order under review. Date filed: 03/11/2002.

Counsel for Appellant(s), Christopher William Bawn, Attorney at Law, 1013 10th Ave SE, Olympia, WA 98501-1566.

Counsel for Respondent(s), Irene Kiyoko Asai, Tulsa County District Atty Office, 500 S Denver Ave Ste 900, Tulsa, OK 74103.

ARMSTRONG, J.

Aaron David Boehler appeals his convictions of possession of a controlled substance — methamphetamine and possession of less than 40 grams of marijuana. He argues that (1) the trial court erred when it refused to reveal the name of a confidential informant; and (2) the prosecutor committed misconduct by failing to produce the confidential informant’s statement. He also argues instructional and sentencing error.

We affirm.

Facts
On October 12, 2001, officers from the Wahkiakum County Sheriff’s Office and the Cowlitz-Wahkiakum Narcotics Task Force executed a search warrant at a trailer home located at 805 Elochoman Valley Road. After knocking and announcing themselves, one of the officers observed someone inside the trailer run away from the door, and the deputies entered forcefully. The officers found Boehler in the kitchen and his co-defendant, Nathan Chamberlain, in the living room.

In the living room of the trailer, the officers found a cracked mirror with a line of methamphetamine on it, a wooden box, a small metal tin containing several rolled up baggies of marijuana, a syringe, a black pouch, and a burned spoon. The officers also found a plastic container of marijuana; a variety of pills that later tested as Morphine and Oxycodone; a glass bong; other drug paraphernalia, including `snort{ing} tubes;’ another wooden box; and a set of scales. I Report of Proceedings (RP) (Feb. 5, 2002) at 154-55. The officers found these additional items in different areas of the trailer, including a back bedroom containing personal items belonging to one of Boehler’s former roommates, Troy Heagy, and in a bathroom.

While the officers were searching the trailer, Paul Porter, Boehler’s housemate, and Brandon Souse, one of Boehler’s former housemates arrived at the trailer. The officers allowed Porter to enter the trailer to retrieve his work clothes but did not arrest him.

The State charged Boehler with unlawful possession of a controlled substance — methamphetamine, unlawful possession with intent to deliver — marijuana, and unlawful possession with intent to deliver — Morphine and Oxycodone. Boehler pleaded not guilty. The State also charged Chamberlain, and the court later granted the State’s motion to join the two trials.

In an omnibus application, Boehler requested that the State reveal whether an informant was involved and whether it planned to call the informant as a witness at trial, and to either disclose the informant’s name and address or `claim the privilege.’ Clerk’s Papers (CP) at 20. He also requested that the State `disclose evidence in {its} possession favorable to defendant on the issue of guilt.’ CP at 20. At the omnibus hearing, Boehler’s counsel told the court that discovery was `complete;’ moved to suppress the evidence found in the search;[1] and discussed plea negotiations, speedy trial issues, and Boehler’s release conditions. RP (Nov. 20, 2001) at 2. Boehler’s counsel did not raise any issues related to the identity of the confidential informant or the informant’s statement.

At trial, Chamberlain’s counsel attempted to elicit testimony about the confidential informant from one of the officers, apparently suggesting that Porter was the informant. When the officer refused to reveal the name of the informant and Chamberlain’s counsel asked why he would not do so, the prosecutor objected, arguing that this information was irrelevant.

In a colloquy outside the presence of the jury, the trial court observed that none of the parties had previously raised the issue of the informant’s identity. But the court allowed Chamberlain’s counsel to continue his line of questioning outside the presence of the jury as an offer of proof.

The officer testified that he based his affidavit in support of the search warrant on information provided by a confidential informant, `X.’ He testified that `X’ had provided him with a two-page voluntary statement, that `X’ had personal knowledge of the drugs and paraphernalia at the trailer, and that `X’ had lived at the trailer approximately two months before the search occurred.

In response to this testimony, Chamberlain’s counsel stated:

Well, that’s where I’m going, Your Honor. I have a feeling and I believe that he may have been a resident, may have information pertinent to the case. He’s never been disclosed to us. I’ve never received a statement that was apparently written and provided to Officer Grasseth and I just need — I just want information on that because I feel that he may have been the person who is responsible for this but didn’t really have any way to confirm it.

I RP at 174-75. Although Chamberlain’s counsel admitted that the complaint in support of the search warrant revealed that the officer had relied on an informant, he argued that he never knew the informant’s identity. He asserted that he had requested in his omnibus application that the State disclose the informant’s identity and exculpatory information, but he admitted that the issue was never addressed at any hearing.

The court told Chamberlain’s counsel that it would examine the informant’s statement in chambers, but nothing in the record shows that the court made any formal ruling on whether the informant’s name should be revealed. Nor does the record show that the State revealed the informant’s identity. The record does show, however, that Boehler’s counsel did not comment during this portion of the proceedings, nor did he raise any issues related to the informant’s identity or statement at any time during pretrial proceedings or trial other than in his omnibus application.

During trial, the State presented evidence that Boehler lived in the trailer, which was known locally as the `flophouse,’ and presented the drug evidence found in the search of the trailer. III RP at 218. The State presented no evidence that supported the search warrant or the confidential informant’s identity or role in obtaining the warrant.

Boehler admitted using marijuana and methamphetamine in the past, but asserted that he had stopped using drugs at least one week before the officers served the search warrant; he explained that he was planning join the Merchant Marines and had to undergo drug testing. He also testified that he was in the process of moving out of the trailer when the search warrant was served, and he presented evidence intended to show that the drugs in the trailer belonged to Porter. Although Boehler subpoenaed Porter and attempted to call him to testify, Porter did not appear.

During trial, the State offered the following instruction defining the term `possession:’

Possession means having a substance in one’s custody or control. It may be either actual or constructive. Actual possession occurs when the item is in the actual physical custody of the person charged with possession. Constructive possession occurs when there is no actual physical possession but there is dominion and control over either the substance. Dominion and control need not be exclusive to establish constructive possession.

CP at 75 (emphasis added) Although the parties discussed the fact that the use of the term `either’ in the second to last sentence was a typographical error, the trial court initially provided an unedited version of this instruction to the jury as jury instruction 10. I RP at 182-83. While reading this instruction to the jury, the court noticed the error and instructed the jury to strike the extraneous word.

The jury found Boehler not guilty of possession of Morphine and/or Oxycodone and convicted him of possession of methamphetamine and possession of less than 40 grams of marijuana.[2] The trial court sentenced Boehler to concurrent sentences of 30 days on the methamphetamine charge and 90 days with 60 days suspended on the marijuana charge. Boehler appeals his conviction and his sentence.

Analysis I. Informant’s Identity
Boehler argues that the trial court erred when it refused to reveal the confidential informant’s identity. He contends that the trial court should have given him this information because the informant’s identity was important to his theory that the drugs belonged to Porter rather than to him. He also argues that there is nothing in the record showing that the trial court `followed through with its suggestion to review the document in chambers and rule upon it.’ Br. of App. at 19.

We review the trial court’s decision on whether to disclose an informant’s identity for abuse of discretion. State v. Petrina, 73 Wn. App. 779, 782-83, 871 P.2d 637 (1994). Generally, the State is privileged to refuse to disclose a confidential informant’s identity. Petrina, 73 Wn. App. at 783 (citing Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)). A defendant may overcome this privilege if he can show that disclosure of the informant’s identity is (1) relevant and helpful to his defense, or (2) essential to a fair determination of the case. Petrina, 73 Wn. App. at 783-84. This requirement is known as the `Roviaro standard.’ Petrina, 73 Wn. App. at 784. Once the defendant establishes either prong of the Roviaro standard, the trial court may not deny the motion for disclosure without an in camera hearing. Petrina, 73 Wn. App. at 787.

Here, although Boehler’s omnibus application shows that he requested the State to reveal whether the informant would testify and the informant’s name and contact information, he did not argue the motion, move to compel disclosure, or otherwise inform the court of the reason he requested the informant’s identity. In fact, at the omnibus hearing Boehler’s counsel specifically stated that discovery was complete. And, although the issue of the informant’s identity was raised at trial, the issue was raised by Boehler’s co-defendant, who was asserting a different defense;[3] and did not join in this motion.

By failing to disclose why he wanted the informant’s identity, Boehler denied the court the opportunity to determine whether the informant’s identity was relevant and helpful to his defense or whether it was essential to a fair determination of his case. As it was Boehler’s burden to establish either prong of the Roviaro standard and he failed to do so, the trial court did not err when it did not disclose the informant’s identity to Boehler. Further, because Boehler failed to establish either prong of the Roviaro standard, the trial court was not required to conduct an in-camera review to determine if the informant’s identity should be disclosed. See State v. Vargas, 58 Wn. App. 391, 395, 793 P.2d 455
(1990) (defendant must initially meet Roviaro standard before in-camera review is required).

II. Informant’s Statement
Boehler next argues that the prosecutor committed misconduct when he failed to produce the informant’s statement. He contends that by withholding this statement, the prosecutor failed to disclose evidence favorable and material to the determination of guilt or punishment. He appears to assert that the statement contained favorable and material evidence and it would have supported his argument that the drugs found during the search belonged to Porter.

But Boehler never asked the State to disclose this statement. And the State’s failure to disclose material evidence violates a defendant’s due process and fair trial rights only if the defendant requested disclosure, the evidence was material to the issue or guilt or punishment, and the evidence favored the defendant. See State v. Blackwell, 120 Wn.2d 822, 828, 845 P.2d 1017 (1993). In his omnibus application, Boehler asked that (1) the State reveal whether an informant was involved, whether it would call the informant as a witness at trial, the name an address of the informant; and (2) the State disclose any evidence in its possession favorable to Boehler’s defense. But Boehler’s counsel stated at the omnibus hearing that discovery was complete, and, based on the record before us, his counsel did not raise the issue of the informant’s statement again during any of the preliminary proceedings or trial. Accordingly, this argument fails.

III. Sentencing
Boehler next argues that the trial court erred when it imposed a 90-day sentence after stating that it would impose only a mid-range standard sentence based on a standard range of 0-60 days. Boehler misapprehends the trial court’s statement and the sentence the court imposed.

Although the trial court orally ruled that it would impose a mid-range standard sentence on count I, the possession of methamphetamine charge, it also ruled that it would impose a sentence of 90 days, with 60 days suspended, on count II, the possession of marijuana charge.[4] The judgment and sentence imposes a mid-range standard sentence of 30 days on count I and 90 days on count II; this accurately reflects the court’s oral ruling.

IV. Instructional Error
Finally, Boehler argues that the court erred in providing the jury with instruction 10 because this instruction contained a typographical error. He contends that the term `either’ in the second to last line of instruction 10 was only partially struck out and that it was possible this typographical error would have `allowed the jury to conclude that {he} could be convicted of methamphetamine and marijuana possession if he had `either’ in his constructive possession.’ Br. of App. at 14-15. Again, we disagree.

Jury instructions are adequate if, taken as a whole, they properly inform the jury of the applicable law, are not misleading, and permit the defendant to argue his theory of the case. State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365 (1999), aff’d by 148 Wn.2d 350 (2003). We review instructions challenged at trial applying a de novo standard of review and consider the instructions as a whole. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995).

When a jury instruction contains a typographical error, we must determine whether the error could have influenced the judgment of the jury. State v. Gellerman, 42 Wn.2d 742, 754, 259 P.2d 371 (1953). `When there has been a substantial misdirection to the jury upon a material question of law . . . prejudice will be presumed unless it clearly appears from the whole case that there could be no prejudice.’ Gellerman, 42 Wn.2d at 754.

Instruction 10, as provided to the jury, read:

Possession means having a substance in one’s custody or control. It may be either actual or constructive. Actual possession occurs when the item is in the actual physical custody of the person charged with possession. Constructive possession occurs when there is no actual physical possession but there is dominion and control over either the substance. Dominion and control need not be exclusive to establish constructive possession.

CP at 108. The strike-out was obviously hand-done and it did not entirely cross the last two letters of the word.

The trial court recognized the error in the instruction while reading it to the jury, told the jury that this was a typographical error, and directed the jury that the extraneous word was struck from the instruction. Although the hard copy of the instruction shows that the word was not entirely struck, the court told the jury that the word was struck, and the jury clearly understood that the extraneous word was not part of the instruction. Thus, the error did not result in the jury being misinstructed.

Nor does Boehler’s reliance on Gellerman, and State v. Cantabrana, 83 Wn. App. 204, 921 P.2d 572 (1996), persuade us otherwise. In Gellerman, a typographical error in a jury instruction substituted the word `desire’ for `design’ in two places, and the prosecutor used the erroneous term in closing argument. Gellerman, 42 Wn.2d at 753. Unlike here, when defense counsel brought the error to the trial court’s attention, the court still did not inform the jury that the challenged instruction contained a typographical error or otherwise attempt to correct the error. Gellerman, 42 Wn.2d at 753. But the Gellerman court also indicated that the court could have cured the error had it called back the jury and informed it of the error. Gellerman, 42 Wn.2d at 753-54. Here, the trial court clearly corrected the error.

And in Cantabrana, the challenged instruction contained what Division I of this court found to be a clear misstatement of the law. Cantabrana, 83 Wn. App. at 207. Here, no such misstatement occurred.

Accordingly, we cannot conclude that the jury was substantially misdirected by the presence of a partially struck extraneous word that it was told to disregard. Further, because other instructions clearly required the jury to find that Boehler possess each individual substance in order to find him guilty,[5] we find no error.

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.

MORGAN, P.J. and HOUGHTON, J., concur.