No. 28934-2-IIThe Court of Appeals of Washington, Division Two.
Filed: December 16, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 02-1-00965-6. Judgment or order under review. Date filed: 05/17/2002.
Counsel for Appellant(s), Sheri Lynn Arnold Attorney at Law, PO Box 7718, Tacoma, WA 98406-0718.
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, C.J.
Willie Earl Coleman appeals his convictions of unlawful delivery of a controlled substance with a school-bus-stop-zone enhancement; unlawful possession of a controlled substance with a firearm enhancement; and second degree unlawful possession of a firearm. Through counsel, he argues that the evidence was insufficient to support (1) the unlawful delivery conviction; (2) the school-bus-stop enhancement; and (3) the firearm enhancement. In his pro se Statement of Additional Grounds[1]
(SAG), he raises several additional issues, including that the evidence was insufficient to support the second degree unlawful possession of a firearm conviction.
We hold that the evidence was sufficient to support the challenged convictions and enhancements and that Coleman’s additional issues either have no merit or pertain to matters outside the record. Accordingly, we affirm.
FACTS
Based on an alleged sale of drugs to an informant and a later search of the place where the sale had taken place, the State charged Coleman by amended information with unlawful delivery of a controlled substance within 1000 feet of a school bus route stop; unlawful possession of a controlled substance while armed with a firearm; and second degree unlawful possession of a firearm. The case went to a jury trial.
I. State’s Evidence A. Singleton
Sherry Singleton, the informant, testified that on February 20, 2002, she assisted the Pierce County Sheriff’s Office with a controlled drug buy involving Coleman. Police first searched Singleton to ensure that she did not have any money or drugs on her person and supplied her with money for the drug purchase. Then, Deputy Joe McDonald drove her to a location in Tillicum, Washington. There, she contacted Coleman, entered a nearby cottage with him, and purchased a single rock of crack cocaine from him for $20. She then returned to McDonald and handed him the single rock of cocaine. The police searched her for additional money and drugs following the controlled buy.
Singleton further testified that two other people, `Golda’ and `Nancy,’ were in the cottage when she purchased the drugs from Coleman. Later, on cross examination, she admitted that she had used drugs on and off for ten years, both before and after February 20, and that she had previously used drugs inside the cottage. But she denied having used drugs on February 20.
During Singleton’s testimony, the prosecutor handed her Plaintiff’s Exhibit 10 and asked her to identify the contents of the evidence bag. She testified that the bag appeared to contain the crack cocaine she had purchased from Coleman but that when she purchased the cocaine it was a single rock and not `broken apart’ as it was inside the evidence bag.[2]
She testified that she did not know why the rock was now in three pieces.
B. Other State Witnesses 1. Delivery
McDonald, II RP at 119, testified that he had worked with Singleton for approximately a year and a half and that he had completed approximately 20 drug buy operations with her assistance. He described picking up Singleton on February 20, taking her to the station where she was `searched by a female to make sure she had no drugs and no money,’ delivering her to the location of the drug buy, and watching her contact Coleman and enter the cottage with him. He admitted that he could not observe what happened inside the cottage and that Singleton was not wearing a wire so the transaction was not recorded. He further testified that when Singleton returned, she gave him the crack cocaine and told him she had purchased it from Coleman.
On cross examination, McDonald testified that Singleton had handed him three small rocks of cocaine. He identified the contents of Exhibit 10 as the substance Singleton had given him on February 20, and testified that the substance had field-tested positive for cocaine. He further testified that if the pieces of cocaine in the evidence bag were combined they would comprise what would typically be a $20 rock of cocaine.
2. Search
McDonald also testified that he subsequently requested and obtained a search warrant for the cottage. On February 26, he and several other deputies served the search warrant and searched the cottage.
When the deputies entered, they found Coleman sitting on the end of a couch located away from the doorway and approximately one and a half to two feet away from the wall. In the space between the couch and the wall, `within arms reach’ of Coleman, was a black bag sitting on top of what appeared to be a pile of clothing.
Inside the bag, the deputies found a handgun and a prescription bottle with Coleman’s name on it.[3] The gun appeared operational, but it was not loaded. None of the deputies observed Coleman in actual possession of the black bag.
After the deputies advised Coleman of his Miranda[4] rights, Coleman told them that (1) the bag was his; (2) he `was holding [the gun] for a friend named Derrick’; (3) his fingerprints would be on the gun; and (4) the gun was not loaded. As Coleman had explained, the gun was not loaded.
Coleman also told the deputies that (1) there were drugs under the couch cushion where he had been sitting; and (2) he sold cocaine `to finance his own drug habit.’
The deputies did not find the money Singleton had used in the controlled buy. But McDonald testified that he would have been surprised to find the bill in Coleman’s possession six days after the sale.
3. Location of school bus stop
McDonald identified an aerial map that showed the group of cottages where the drug buy took place and a nearby school bus stop. He marked the location of the cottages and the school bus stop on the map. Kenneth Bryant, from the Clover Park School District transportation department, verified that the map showed the Tillicum area and that McDonald had accurately located the school bus route stop.
McDonald also described having watched Deputy Smith measure the distance from the cottage where Coleman had sold the crack to the school bus stop with a wheeled measuring device commonly used to measure skid marks and to mark accident scenes. Following the sidewalk, they determined that the school bus stop was 272 feet from the cottage.
McDonald acknowledged that (1) he had neither calibrated the measuring wheel or tested its accuracy nor observed Smith test the accuracy of the wheel; and (2) his written report indicated that they had taken the measurements from cottage No. 4 rather than cottage No. 1, the cottage where the drug buy had taken place. He explained, however, that this was a scrivener’s error and that they had in fact taken the measurements from cottage No. 1.
The trial court received the map into evidence as Plaintiff’s Exhibit 11. The jury had an opportunity to examine the map during McDonald’s testimony. The court also stated that the jurors would be able to take the map with them into the jury room during deliberations.
Coleman stipulated that he had a prior felony conviction.
II. Defense Evidence
Coleman presented two witnesses, Golda Schneider and Martha `Nancy’ Vaughn. They testified that (1) Singleton had previously used drugs inside the cottage; (2) although they had seen her inside the cottage on February 20, they did not observe Coleman sell her any drugs; (3) the gun and the black bag belonged to Schneider; and (4) Coleman had not been aware that the gun was in the black bag. Schneider also testified that she had been friends with Singleton for some time and that Singleton may have been a bit `jealous’ because she (Schneider) had recently reunited with Coleman.
The jury found Coleman guilty as charged. He appeals his convictions and sentencing enhancements.
ANALYSIS I. Sufficiency of the Evidence A. Standard of Review
Evidence is sufficient to support a conviction or enhancement if, viewed in the light most favorable to the State, the evidence presented at trial permits any rational trier of fact to find the essential elements of the crime or enhancement beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We draw all reasonable inferences from the evidence in favor of the State and interpret the evidence most strongly against the defendant. Salinas, 119 Wn.2d at 201.
Additionally, we consider circumstantial and direct evidence to be equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99
(1980). And we defer to the trier of fact, here the jury, on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied 119 Wn.2d 1011 (1992).
B. Unlawful Delivery
Coleman first contends that the evidence was insufficient to establish that he delivered the cocaine to Singleton. He argues that Singleton’s testimony was not credible because (1) she admitted to having used drugs before and after the February 20 controlled buy; (2) she admitted to having used drugs inside the cottage; (3) others testified that they did not observe Coleman give her any drugs on February 20; (4) there was no testimony corroborating Singleton’s assertion that Coleman gave her the drugs; and (5) there was a discrepancy between Singleton’s and McDonald’s testimonies about the number of rocks of cocaine Singleton handed McDonald.
As stated above, it is the jury’s province to determine what weight to accord the evidence. The factors Coleman advances, though potentially relevant to Singleton’s credibility, do not undermine the jury’s having found her testimony credible. We will not review the jury’s credibility determination on appeal.
Moreover, the jury could reasonably have inferred that the single rock of cocaine Singleton had obtained from Coleman simply broke apart when she delivered it to McDonald. Additionally, the testimony, taken in the light most favorable to the State, showed that (1) deputies had searched Singleton before the controlled buy and found no drugs or money on her person; (2) Singleton was with Officer McDonald until she contacted Coleman and went inside the cottage; and (3) a search of Singleton after she handed the cocaine over to McDonald revealed that she had no additional drugs or money on her person. This evidence, coupled with Singleton’s testimony that it was Coleman who provided her with the drugs, is sufficient to support the jury’s conviction of Coleman for unlawful delivery.
C. School Bus Stop Enhancement
Coleman next contends that the evidence did not support the school bus stop sentencing enhancement because (1) McDonald did not measure the distance from the cottage to the school bus route stop himself; (2) the deputy who took the measurements did not testify; (3) it was unclear where the deputies began measuring the distances; (4) there was no evidence that the measuring wheel was calibrated or accurate; and (5) Bryant did not testify about the relative distances in the aerial photograph.
A school bus stop enhancement applies when a drug offense takes place `[w]ithin one thousand feet of a school bus route stop designated by the school district.’ RCW 69.50.435(a)(3). The statute further provides that maps may be considered prima facie evidence of the location of a school bus stop. RCW 69.50.435(e).
Here, Exhibit 11, the aerial map of the area where the drug sale took place, clearly shows the location of the school-bus-route stop and the cottage. Contrary to Coleman’s assertion that the map does not show the distances between these locations, the map includes a scale from which the distances can be readily determined. Thus, although Bryant did not testify about the relative distances on the map, the map was available to the jury during trial and deliberations. And by applying the scale on the map, the jury could have easily determined that the school bus route stop was well within 1000 feet of the cottage where the drug sale took place. Thus, there is sufficient evidence to support the jury’s conclusion that Coleman possessed the drugs within 1000 feet of a school-bus-route stop.
D. Firearm Enhancement
Coleman also contends that there is insufficient evidence to support the firearm enhancement. Again, we disagree.
A defendant may be subject to a sentence enhancement if the jury finds that he was armed with a firearm at the time of the commission of the crime. RCW 9.94A.510(3); RCW 9.94A.602. But the evidence must establish more than just that the defendant was in the proximity of the firearm; it must also show that weapon was accessible and readily available for use and demonstrate a nexus between the defendant, the weapon, and the crime. State v. Schelin, 147 Wn.2d 562, 572, 55 P.3d 632 (2002).
The evidence here, taken in the light most favorable to the State, establishes that (1) a firearm was present on the property; (2) it was in a bag that contained other items belonging to Coleman; (3) the bag and its contents were within Coleman’s immediate reach when the deputies entered the cottage; (4) his drugs were located in the same area; and (5) Coleman admitted to the deputies that the bag and drugs were his, that he knew about the gun, and that he was aware that the gun was not loaded. From this evidence, a reasonable jury could infer that Coleman was in constructive possession of the firearm and that he was using the weapon to protect his nearby drugs. See Schelin, 147 Wn.2d at 574-75. The evidence is, therefore, sufficient to support the firearm enhancement.
Further, to the extent Coleman’s argument could also be construed as asserting that there was insufficient evidence to establish that he possessed the firearm, this same evidence would allow a reasonable jury to conclude that Coleman was in constructive possession of the firearm. Although the defense witnesses testified that the bag and gun belonged to Schneider and that Coleman did not know about the gun, the jury was not required to believe this testimony. As we previously stated, we will not review the jury’s credibility determinations or the weight the jury gave to the competing evidence.
II. SAG
Coleman raises several additional arguments in his Statement of Additional Grounds (SAG). Coleman initially contends that there was no evidence that he sold Singleton cocaine. SAG at 1. He asserts that when Singleton entered the cottage and was out of McDonald’s view, she watched the other individuals inside the cottage getting high, took a hit of cocaine, picked up some of the cocaine, and then left with the drugs. But this evidence was not presented at trial. And even if Coleman had presented such evidence, whether the jury believed Singleton or the other witnesses would still be an issue of credibility, which we do not review on appeal.
Coleman also suggests that Singleton lied to the deputies about his involvement because he `was getting back with his wife’ and Singleton was attempting to get out of a prostitution charge.[5] SAG at 3. Schneider did testify that Singleton may have been jealous because of her relationship with Coleman. Again, however, we will not review the weight the jury gave to specific testimony. Moreover, as we noted above, the evidence as a whole was sufficient to support the verdict on the unlawful delivery charge.
Coleman next asserts that the prosecutor made inflammatory statements either while questioning the witnesses or during closing argument. But Coleman does not specify the nature of those comments. And our examination of the record reveals no such statements.
Coleman also appears to argue that the prosecutor committed misconduct by eliciting testimony from Singleton that contradicted the defense theory of the case and by arguing this evidence in his closing or by contrasting the evidence supporting the State’s case with the evidence supporting the defense case. But these arguments lack merit. State v. Harvey, 34 Wn. App. 737, 739, 664 P.2d 1281 (in closing argument, counsel has wide latitude in drawing and expressing reasonable inferences from the evidence), review denied, 100 Wn.2d 1008 (1983). Further, to the extent Coleman argues that his admissions to the deputies were inadmissible, he does not challenge the trial court’s CrR 3.5 ruling admitting these statements, or indicate why this ruling was incorrect.
Coleman also appears to assert that either the charging document or the to-convict instruction on the delivery charge failed to state all of the required elements. But our review of the charging information and to-convict instruction reveals that both are adequate.
Coleman further argues that he received ineffective assistance of counsel because his trial counsel failed to object when the prosecutor misrepresented the facts by stating that Singleton did not use any cocaine on February 20. Our review of the record reveals no testimony indicating that Singleton admitted she used drugs on February 20 or that any of the other witnesses observed her use drugs that day. Thus, the prosecutor’s assertion that Singleton had not used drugs that day is supported by the record, and Coleman’s counsel had no reason to object to this characterization of the evidence. Harvey, 34 Wn. App. at 739.
Coleman also asserts that his counsel was ineffective because she failed to investigate adequately. This argument pertains to matters outside the record. Accordingly, we will not review it on direct appeal. See State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995) (if a defendant wishes a reviewing court to consider matters outside the record, a personal restraint petition is the appropriate vehicle for bringing those matters before the court).
As for Coleman’s apparent assertion that the State failed to establish that he knowingly possessed the firearm, we have already addressed this issue in the context of his firearm enhancement argument.
Finally, Coleman argues that cumulative error requires reversal. Because Coleman has failed to establish any error, this argument also fails.
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.
MORGAN, J., and QUINN-BRINTNALL, J., concur.
(1966).