STATE v. MAYFIELD, 33740-1-II (Wash.App. 7-10-2007)

THE STATE OF WASHINGTON, Respondent, v. CHARLES KEITH MAYFIELD, Appellant.

Nos. 33740-1-II; 35460-8-II.The Court of Appeals of Washington, Division Two.
July 10, 2007.

Appeals from a judgment of the Superior Court for Pierce County, No. 04-1-02556-9, Kathryn J. Nelson, J., entered August 12, 2005.

Affirmed in part and remanded by unpublished opinion per Van Deren, J., concurred in by Houghton, C.J., and Penoyar, J.

VAN DEREN, J.

Charles Keith Mayfield appeals his conviction for unlawful possession of a controlled substance, second degree unlawful possession of a firearm, and two counts of bail jumping. Mayfield argues that the trial court erred when it (1) failed to admit a written statement that the drugs did not belong to Mayfield and (2) denied his request for a continuance. He also argues that the State’s affidavit of probable cause for issuance of a search warrant was deficient and that the evidence was not sufficient to convict him of the crimes charged.

Mayfield’s Statement of Additional Grounds (SAG)[1] asserts that the trial court abused its discretion when it (1) did not conduct a same criminal conduct analysis on his bail jumping convictions and calculated his offender score including four bail jumping convictions, (2) denied his motion to suppress evidence found under the search warrant, (3) allowed prosecution of bail jumping charges following quash proceedings on warrants for his arrest for failure to appear, and (4) refused to allow his bail bondsman to testify. He also claims that he was denied effective assistance of counsel.[2] Mayfield raises the same arguments in his PRP.

We affirm and remand only for correction of his offender score.

FACTS[3]
On May 24, 2004, Bonney Lake Police Officer Scott Lien stopped a “suspect vehicle” that he believed was involved in a crime the day before. Stipulation Regarding Search Warrant (SRSW) at 11. Lien saw motorcycle parts in the back seat of the vehicle and a records check of the motorcycle’s license plate showed that it was reported stolen on May 7, 2004. Lien questioned the driver, Matthew Ellefson, who told him that he received the parts from Joe Shockey. Ellefson said that Shockey told him the missing gas tank and carburetor for the motorcycle “were located at [Shockey’s] brother Chuck’s house over by Swiss Park in Bonney Lake.” SRSW at 11.

Bonney Lake Police Officer Kurt Alfano filed a complaint for a search warrant for “19616 94th Street East in Bonney Lake, Washington.” SRSW at 7. In support of the warrant, Alfano informed the reviewing judge that he was “very familiar with the residence next to Swiss Sportsmans Club, . . [had] seen Shockey at the residence on several occasions, . . . and [knew] the address to be 19616 94th Street East in Bonney Lake, Washington.” SRSW at 12. The search warrant authorized Alfano to locate stolen motorcycle parts and a person named James Shockey.

Alfonso spoke with Frederick Lehman, the homeowner, and read him the search warrant before commencing the search. Charles Mayfield was inside the residence at the time of the search. Alfano observed needles, a book on how to manufacture methamphetamine, and a plastic baggie of white powder on a bed in one of the bedrooms. Alfano also talked with Mayfield at the residence and observed paperwork addressed to Mayfield.

Mayfield admitted that he stayed in the bedroom where Alfano found the needles, book, and baggie and that he had seen them in the room before officers arrived, but denied that the items belonged to him. The officers contacted Frederick Lehman and Lehman told them that Mayfield rented the room where the evidence was discovered.

Because the search warrant was only issued for stolen motorcycle parts, the officers applied for and were issued an addendum to the search warrant allowing them to search for anything related to methamphetamine, drugs, or drug paraphernalia. After the addendum was approved, the officers searched Mayfield’s room and discovered a loaded .45 caliber gun, a baggie of powder that field tested positive for methamphetamine, a baggie of white pills, a wallet containing Mayfield’s driver’s license, used coffee filters wrapped in foil, and an electronic measuring scale.

The police ran a check on the registration of the gun and discovered that it was registered to a female. At trial, Mayfield’s girlfriend, Sherry Adair, testified that she bought the gun from Mayfield’s stepfather, left it sitting on the floor of Mayfield’s room, and he did not know that the gun was in the house. Mayfield also testified that he did not know the gun was in the home.

Mayfield was charged with one count of unlawful possession of methamphetamine with intent to deliver and one count of second degree unlawful possession of a firearm.

On August 26, 2004, Mayfield signed an order promising to appear for an omnibus hearing on September 9, 2004. Mayfield failed to appear on September 9, 2004, and a bench warrant was issued for his arrest. On October 27, 2004, Mayfield signed a scheduling order promising to appear for an omnibus hearing on November 3, 2004. Mayfield also failed to appear on November 3, 2004, and a bench warrant was issued for his arrest. Two counts of bail jumping were added to the charges against Mayfield, but the amended information stated that Mayfield committed the first count of bail jumping “on or about the 11th day of September, 2004.” Clerk’s Papers (CP) at 23.

Mayfield moved to suppress all evidence obtained in the search of the house, arguing that the affidavit in support of the search warrant lacked probable cause. The court denied the motion.

Before trial, Kenneth Hartley admitted in two separate written statements that he was the owner of the drugs found at the house. But when Hartley testified at trial, he invoked his Fifth Amendment rights.[4] Mayfield moved to admit Hartley’s written statements under ER 804(b)(3) as prior statements against interest. Mayfield made an offer of proof through the testimony of John Fraser, a defense investigator. Fraser testified that Hartley told him that he had put some of his belongings in Mayfield’s room while he was in the process of moving into the room. The items included a scale, baggies, and 12-13 ounces of methamphetamine. The court ruled that Hartley’s written statements were unreliable and refused to admit them.

Mayfield informed the trial court that he intended to call his stepfather as a witness on the morning of May 3, 2005, but that the stepfather was not able to appear in court that day. The trial court advised that it was not going to grant any more continuances for missing witnesses; instead, it granted a recess until 1:30 p.m. But at 1:30, counsel told the court that the witness would not make it to court that day or the next. Counsel did not request a further continuance, but instead asked the court to allow Mayfield’s stepfather to give telephonic testimony. The court denied the request.

Mayfield also called his bail bond agent, Debra Charles, as a witness. After conducting voir dire of Charles, the State argued that her testimony was not relevant to the bail jumping charge. The court agreed and struck her as a witness.

The “to convict” jury instruction for bail jumping on count III required the jury to find that Mayfield committed the crime of bail jumping on September 9, 2004. CP at 82. The jury returned guilty verdicts on the charges of unlawful possession of a controlled substance, second degree unlawful possession of a firearm, and two counts of bail jumping. The trial court sentenced Mayfield to 51 months based on an offender score of 12. Mayfield filed a direct appeal, a personal restraint petition (PRP), and a SAG.

ANALYSIS
I. Direct Appeal

A. ER 804(b)(3)

Mayfield argues that the trial court erred in holding that Hartley’s written statements were inadmissible. The trial court found that there was nothing about Hartley that suggested trustworthiness; that he had a motive to lie because of his relationship with Mayfield and that there was nothing spontaneous about his written statements or interview with Fraser.

Under ER 804(b)(3) a statement against interest is a statement made against a declarant’s interest and is an exception to the hearsay rule.

A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true. In a criminal case, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

ER 804(b)(3).

ER 804(b)(3) provides that hearsay statements are admissible if (1) the declarant is unavailable to testify, (2) the statements so far tend to expose the declarant to criminal liability that a reasonable person in the same position would not have made the statement unless convinced of its truth, and (3) corroborating circumstances clearly indicate the statement’s trustworthiness.

State v. Edmondson, 43 Wn. App. 443, 447, 717 P.2d 784 (1986). A witness is considered legally unavailable to testify if he asserts his Fifth Amendment constitutional privilege against self-incrimination Edmondson, 43 Wn. App. at 447.

Here, the State concedes that Hartley was unavailable because he exercised his Fifth Amendment privilege against self-incrimination. The State also concedes that Hartley’s written statements were against his penal interest. Nevertheless, the State argues that the trial court properly determined that Hartley’s statements lacked sufficient reliability.

We review a trial court’s refusal to admit evidence under the hearsay exception to ER 804(b)(3) for abuse of discretion. State v. McDonald, 138 Wn.2d 680, 693, 981 P.2d 443 (1999). A trial court abuses its discretion when its decision is “manifestly unreasonable or based on untenable grounds or reasons.” McDonald, 138 Wn.2d at 696 (quoting State ex rel. Carroll v. Junger, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). Our Supreme Court has established certain factors to determine reliability and trustworthiness of out-of-court declarations.

The factors are: (1) whether the declarant had an apparent motive to lie; (2) whether the general character of the declarant suggests trustworthiness; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; and (5) whether the timing of the statements and the relationship between the declarant and the witness suggest trustworthiness. Factors to be considered in conjunction with those above are: [6] whether the statements contained express assertions of past fact; [7] whether cross examination could not help to show the declarant’s lack of knowledge; [8] whether the possibility of the declarant’s recollection being faulty is remote; and [9] whether the circumstances surrounding the statements give no reason to suppose that the declarant misrepresented the defendant’s involvement.

The purpose of this inquiry into trustworthiness is to ensure that the proffered evidence offers some reliability in terms of the declarant’s perception, memory, and credibility — a function traditionally performed by cross examination.

State v. Anderson, 107 Wn.2d 745, 750-51, 733 P.2d 517 (1987) (internal citations omitted). These factors are not exclusive, and not all of the factors are necessary to determine trustworthiness. State v. Parris, 98 Wn.2d 140, 146, 654 P.2d 77 (1982). In reviewing the trial court’s decision for abuse of discretion, we apply these factors to Hartley’s statements.[5]

Three factors are easily analyzed. Factor three is irrelevant because Hartley’s two statements were written, not oral. There is no dispute that Hartley’s statements were not spontaneous, although Mayfield argues that there is no evidence in the record that his statements were not spontaneous. Thus, the fourth factor weighs neutrally as to admissibility. The sixth factor weighs in favor of admissibility because “Hartley’s statement contain[ed] express assertions of past fact.” Brief of Resp’t at 14.

The other factors require more scrutiny. The first factor examines whether Hartley had an apparent motive to lie. Mayfield argues that Hartley made self-incriminating statements that suggested he had no reason to lie. But the trial court found that the evidence showed that Hartley was a “lost kid”, RP at 295, that Mayfield looked out for him, and that Hartley looked up to Mayfield as a “father figure.” RP at 359. This is sufficient for the trial court to have concluded that Hartley had a motive to lie for Mayfield and weighs against admissibility of the statements.

The second factor addresses whether Hartley’s general character suggested trustworthiness. Mayfield argues that there was little evidence introduced to establish Hartley’s credibility. But when Hartley claimed that the drugs were his, he was in custody on drug charges and a pending third degree theft charge. Hartley’s criminal history includes juvenile convictions for third degree theft, taking a motor vehicle without permission, first degree possession of stolen property, and adult convictions for second degree possession of stolen property, malicious mischief, and possession of a controlled substance. Furthermore, both of Hartley’s written statements indicated that he was willing to testify on Mayfield’s behalf, but then he repudiated those statements. Based on Hartley’s criminal past and his refusal to testify after writing that he would, this factor weighs against the reliability and trustworthiness of the statements.

The fifth factor deals with the timing of Hartley’s statements and Hartley and Mayfield’s relationship. Hartley wrote the statements more than a year after Mayfield’s arrest and Mayfield knew about the written statements. The defense concedes that Hartley viewed Mayfield “as sort of a role model.” Br. of Appellant at 15. Mayfield argues that independent evidence supports the truthfulness of Hartley’s statements by showing that Mayfield was not present at the house for over a week, and, before police executed the search warrant, Hartley began moving into Mayfield’s room. But the timing of the statements, Mayfield’s relationship with Hartley, and Mayfield’s knowledge of the statements support the trial court weighing this factor against admission.

The seventh factor inquires whether cross-examining Hartley would likely expose his lack of knowledge about the details of the drug and paraphernalia possession. Here, cross-examination would have exposed the inconsistency between his two statements. The State considered dismissing the case if someone else took responsibility for the drugs. After learning this, Hartley sent the letter saying that he was responsible for the drugs. When the State determined that the first letter was too general, he sent a second letter saying that he was responsible for the drugs, scale, and baggies. These inconsistencies suggest that the State would have exposed Hartley’s motive or lack of knowledge during cross-examination and the trial court did not abuse its discretion in finding that the inconsistencies between the statements weighed against admissibility, even though the State could have exposed those inconsistencies during cross-examination.

The eighth factor asks whether Hartley’s recollection of the events would be faulty. Here, it is unlikely that Hartley would erroneously recall whether the drugs and paraphernalia belonged to him and this factor weighs in favor of admission of his statements.

The ninth factor looks at the general circumstances surrounding the statements to see if they give any reason to suppose that Hartley misrepresented Mayfield’s involvement. Here, the relationship between Hartley and Mayfield again suggests that Hartley had possible motives to lie and to draft his statements in a manner favorable to Mayfield, thus weighing against the statements’ admissibility.

In reviewing all nine Anderson factors, we conclude that the trial court did not abuse its discretion in refusing to allow Mayfield to introduce Hartley’s two written statements after Hartley asserted his Fifth
Amendment rights.

Mayfield argues that by denying him the ability to present Hartley’s statements, the trial court denied him the right to present a defense, thereby violating his Sixth Amendment[6] right to present a defense. Br. of Appellant at 11. He alleges that if the jury had been aware of Hartley’s statements, the outcome of the trial most likely would have been different. But the Sixth Amendment does not allow a defendant an unfettered right to offer evidence that is inadmissible under the rules of evidence. Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988). Here, the trial court found and, we agree, that Hartley’s statements were not reliable; and, therefore, the trial court did not abuse it discretion in refusing to admit them and the trial court did not deny Mayfield his right to compulsory process under the Sixth
Amendment.

B. Denial of Request for Continuance

Mayfield argues that the trial court deprived him a right to present a defense when it refused to grant a continuance so his stepfather could testify.

“Denial of a continuance is reviewed under the abuse of discretion standard.” State v. Hurd, 127 Wn.2d 592, 594, 902 P.2d 651 (1995). “In exercising discretion to grant or deny a continuance, trial courts may consider many factors, including surprise, diligence, redundancy, due process, materiality, and maintenance of orderly procedure.” State v. Downing, 151 Wn.2d 265, 273, 87 P.3d 1169 (2004). “We will not disturb the trial court’s decision unless the appellant . . . makes `a clear showing . . . [that the trial court’s] discretion [is] manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'” Downing, 151 Wn.2d at 272 (quoting State ex rel. Carrol v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1991)).

“Both general standards of jurisprudence and more than seventy-five years of Washington case law dictate that a continuance is improper when the moving party has failed to exercise due diligence in issuing subpoenas for necessary witnesses.” City of Kirkland v. Ellis, 82 Wn. App. 819, 830, 920 P.2d 206 (1996).

Here, Mayfield informed the court that his stepfather could not appear and the trial court made it clear that it would not allow a further continuance. Rather, a recess was ordered to allow time for the stepfather to appear. At the conclusion of the recess, Mayfield informed the court that the stepfather was unavailable for the rest of that trial day and the next. The trial court refused to allow a further delay and Mayfield did not renew his motion for a continuance. He also failed to tell the court when the stepfather could appear and there is no evidence in the record that Mayfield subpoenaed his stepfather as a witness. Under these circumstances, the trial court did not abuse its discretion in concluding that Mayfield did not exercise due diligence to compel his appearance. A trial court may exert reasonable efforts to maintain orderly procedure and it did not abuse its discretion by requiring that the trial continue.

C. Probable Cause for Search Warrants

Mayfield argues that the trial court erroneously denied his motion to suppress evidence obtained pursuant to the initial search warrant because probable cause did not support its issuance.

The Fourth Amendment to the United States Constitution provides that search warrants may be issued only upon a showing of “probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.

Probable cause exists where there are facts and circumstances sufficient to establish a reasonable inference that the defendant is involved in criminal activity and that evidence of the criminal activity can be found at the place to be searched. It is only the probability of criminal activity, not a prima facie showing of it, that governs probable cause. The magistrate is entitled to make reasonable inferences from the facts and circumstances set out in the affidavit.

State v. Maddox, 152 Wn.2d 499, 505, 98 P.3d 1199 (2004) (citations omitted).

“Absent a sufficient basis in fact from which to conclude evidence of illegal activity will likely be found at the place to be searched, a reasonable nexus [between the items to be seized and the place to be searched] is not established as a matter of law.” State v. Jackson, 150 Wn.2d 251, 267, 76 P.3d 217 (2003) (quoting State v. Thein, 138 Wn.2d 133, 147, 977 P.2d 582 (1999)).

A magistrate exercises judicial discretion in determining whether to issue a warrant. That decision is reviewed for abuse of discretion. This court generally accords great deference to the magistrate and views the supporting affidavit for a search warrant in the light of common sense. Doubts concerning the existence of probable cause are generally resolved in favor of issuing the search warrant.

State v. Vickers, 148 Wn.2d 91, 108-09, 59 P.3d 58 (2002) (citations omitted). “If [an] affidavit . . . does not establish probable cause, the motion to suppress should be granted.” State v. Anderson, 105 Wn. App. 223, 229, 19 P.3d 1094 (2001).

Alfano requested the initial search warrant for the green gas tank and the silver carburetor from the stolen motorcycle and James J. Shockey. Ellefson told Lien that he suspected that the motorcycle was stolen and that he was on his way to return the parts to Chuck. Alfano ran a criminal history check on Shockey that revealed prior felony convictions for attempting to elude, unlawful possession of a controlled substance, and misdemeanor convictions for possession of stolen property and theft. While Ellefson did not give the officers the exact address of the residence near Swiss Park, Alfano stated that he knew the address and he had seen Shockey at the residence on several occasions.

Mayfield argues that probable cause did not support the first search warrant and that the officer’s knowledge of the address next to Swiss Park amounts to mere speculation and personal belief that the stolen property would be found there. He relies on Anderson, 105 Wn. App. at 229-32, for his argument. But Anderson is distinguishable. In Anderson, the police believed that methamphetamine was being manufactured at Anderson’s house but they did not have sufficient evidence to support probable cause to search his home Anderson, 105 Wn. App. at 226. When police observed a third party with an outstanding misdemeanor warrant watering the plants in front of Anderson’s house, they requested a search warrant for this third person at his home in another city as well as at Anderson’s home. The police did not conduct a search for the third party at his home in the other city, but focused solely on gaining access to Anderson’s home. Anderson, 105 Wn. App. at 227.

In Anderson, the officer’s affidavit in support of the search warrant misrepresented that he had observed the third party enter and exit Anderson’s home as if he lived there. Anderson, 105 Wn. App at 229. When police entered the property to search for the third party, they discovered evidence of methamphetamine production. Anderson, 105 Wn. App. at 228. At a suppression hearing, the officer acknowledged that he was only guessing about whether the third party had entered and exited the defendant’s home. Anderson, 105 Wn. App. at 230.

The court held that “[t]o allow an arrest warrant for a nonviolent misdemeanor to create carte blanche for searching the homes of third parties creates the risk of the sort of abuse complained of here: using the arrest warrant as a `pretext for entering a home in which the police have a suspicion, but not probable cause to believe, that illegal activity is taking place.'” Anderson, 105 Wn. App. at 232 (citations omitted).

Unlike the circumstances in Anderson, Ellefson told the officers that the stolen property was “at [Shockey’s] brother Chuck’s house by Swiss Park in Bonney Lake.” SRSW at 11. The officers were not looking for a reason to enter Mayfield’s house, but were directed to the house by Ellefson. We are unaware of any authority, and Mayfield does not provide any, to support the theory that a warrant is invalid if the officers already know the defendant’s address.

In his SAG, Mayfield argues that the trial court also erred in denying his motion to suppress the evidence used to support the second search warrant because the State did not prove Ellefson’s veracity in the affidavit supporting the first search warrant.

We give great deference to the issuing judge’s probable cause determination and resolve doubts about the existence of probable cause in the judge’s favor. State v. Young, 123 Wn.2d 173, 195, 867 P.2d 593
(1994). Probable cause exists if the supporting affidavit recites “objective facts and circumstances which, if believed, would lead a neutral and detached person to conclude that more probably than not, evidence of a crime will be found if a search takes place.” In re Detention of Peterson, 145 Wn.2d 789, 797, 42 P.3d 952 (2002). We review the sufficiency of a search warrant affidavit standing alone and will not supplement the affidavit with evidence or information presented during a subsequent motion to suppress. See State v. Blackshear, 44 Wn. App. 587, 590, 723 P.2d 15 (1986).

We evaluate an informant’s tip under the two pronged Aguilar-Spinelli[7] test. State v. Jackson, 102 Wn.2d 432, 433, 688 P.2d 136 (1984). Under Aguilar-Spinelli, the search warrant affidavit must establish: (1) the basis for the informant’s knowledge and (2) the informant’s veracity. State v. Tarter, 111 Wn. App. 336, 340, 44 P.3d 899
(2002). The second prong is at issue here.

The veracity prong can be satisfied in either of two ways: (1) by establishing the informant’s credibility, usually by showing that the informant has a track record of providing reliable information, or (2) if “nothing is known about the informant, the facts and circumstances under which the information was furnished may reasonably support an inference that the informant is telling the truth.” State v. Lair, 95 Wn.2d 706, 710, 630 P.2d 427 (1981).

A variety of factors are relevant to finding a reasonable inference of truthfulness. See State v. O’Connor, 39 Wn. App. 113, 120-21, 692 P.2d 208 (1985). An informant’s statement against penal interest to a police officer is one factor. State v. Estorga, 60 Wn. App. 298, 304, 803 P.2d 813 (1991). Another factor is if the informant is named in the search warrant affidavit. O’Connor, 39 Wn. App. at 121. An independent police investigation can corroborate a tip to the extent that it overcomes a deficiency in either prong. Jackson, 102 Wn.2d at 438. But it is not sufficient to verify innocuous details; the investigation should point to suspicious activities or indications of criminal activity similar to what the informant suggests. Jackson, 102 Wn.2d at 438. “[C]orroboration may also be a factor in the veracity determination,” but it is not “prerequisite to a reasonable inference of truthfulness.” O’Connor, 39 Wn. App. at 120.

Here, nothing is known about Ellefson, so he does not have an established track record for providing reliable information. But the facts and circumstances surrounding the information reasonably support that Ellefson was telling the truth. Ellefson made a statement against penal interest when he admitted that he thought he was in possession of stolen property; he is also named in the affidavit. Moreover, Alfano could independently corroborate Ellefson’s reference to Joe Shockey’s presence at the house near Swiss Park from his prior observations. Based on these factors, it was reasonable for the reviewing magistrate to conclude that Ellefson’s statements to the officers satisfied the veracity prong of Aguilar-Spinelli.

The facts and circumstances alleged in the complaint for both search warrants were sufficient to establish a reasonable inference that residents of the house were involved in criminal activity. Thus, we conclude that the reviewing judicial officer had probable cause to issue both search warrants.

D. Sufficiency of the Evidence

Mayfield argues that the evidence was insufficient for the jury to find him guilty of possession of a controlled substance, felony possession of a handgun, and bail jumping.

The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.

State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (internal citations omitted).

“Credibility determinations are for the trier of fact and are not subject to review. This court must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.” State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (citations omitted).

1. Possession of a Controlled Substance

Mayfield argues that because the initial search warrant was erroneously issued, the drugs, scale, and baggies should have been suppressed, leaving no admissible evidence establishing that he possessed a controlled substance. But the search warrant was properly issued. Furthermore, the evidence seized under the second search warrant was sufficient to prove the elements for unlawful possession of a controlled substance.

In a prosecution for unlawful possession . . . the State must establish two elements: the nature of the substance and the fact of possession by the defendant. Possession is defined in terms of personal custody or dominion and control.

The State may establish that possession is either actual or constructive. “Actual possession means that the goods are in the personal custody of the person charged with possession; whereas, constructive possession means that the goods are not in actual, physical possession, but that the person charged with possession has dominion and control over the goods.”

State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994) (citations omitted). “Dominion and control means that the object may be reduced to actual possession immediately. However, mere proximity is not enough to establish possession.” State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062
(2002) (internal citations omitted). “[E]xclusive control by the defendant is not required.” State v. Turner, 103 Wn. App. 515, 522, 13 P.3d 234 (2000).

[I]t is not a crime to have dominion and control over the premises
where controlled substances are found. . . . [D]ominion and control over the premises raises only a rebuttable inference of dominion and control over contraband inside the premises. Dominion and control of the premises is only one factor in determining whether a person had constructive possession of drugs.

State v. Tadeo-Mares, 86 Wn. App. 813, 816, 939 P.2d 220 (1997) (internal citations omitted). The defendant may rebut the presumption by asserting that possession was unwitting by “showing that [he] did not know he was in possession of the controlled substance.” Staley, 123 Wn.2d at 799.

Here, Mayfield was present when the drugs were found. His wallet and paperwork addressed to him were also found in the bedroom. He and his landlord admitted that he rented the room and Mayfield admitted that he saw the items in the room, but he denied that they belonged to him. Mayfield claimed that the drugs belonged to Hartley.

A jury makes credibility determinations that we do not disturb on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). The jury apparently rejected Mayfield’s assertion that he did not own or possess the drugs and paraphernalia. Based on the State’s evidence, a reasonable jury could conclude that Mayfield had constructive possession of the drugs and paraphernalia found in the room. Thus, his claim fails.

2. Unlawful Possession of a Firearm

Mayfield also argues that because the initial search warrant was issued in error, the admissible evidence did not establish that he possessed a firearm.

“A person commits the crime of second degree unlawful possession of a firearm if he or she `owns, has in his or her possession, or has in his or her control any firearm’ and the person has previously been convicted of any felony, other than a `serious offense,’ or certain specified gross misdemeanors.” State v. Anderson, 141 Wn.2d 357, 360, 5 P.3d 1247 (2000) (quoting RCW 9.41.040(1)(a)). There is no dispute that Mayfield had previously been convicted of a serious offense. The only issue is whether Mayfield knowingly possessed the gun.

Unlawful possession of a firearm in the second degree is not a strict liability crime; therefore, knowledge of possession is an essential element of the crime. Anderson, 141 Wn.2d at 363. Thus, the State has the burden to prove that Mayfield knew the gun was in his room. Anderson, 141 Wn.2d at 366.

The gun was found in Mayfield’s rented bedroom. Mayfield had dominion and control over the bedroom. But the State did not present any direct evidence that Mayfield knew that the gun was in the room. Additionally, when the police ran the registration of the gun, they discovered that it was not registered to Mayfield, but rather to a female. Mayfield’s girlfriend testified that the gun belonged to her; that she left the gun sitting on the floor of Mayfield’s room; and that he did not know that the gun was in the house.

The State argues that the gun was found in Mayfield’s room in a box labeled “Republic Arms .45 caliber” and that this is sufficient to prove that Mayfield knowingly possessed the firearm. Report of Proceedings (RP) at 120. Adair testified that she kept the gun in a “little backpack,” a “small little nylon bag,” and, on cross-examination, the State did not question this. RP at 292.

Here, the evidence is contradictory. The jury is the trier of fact and weighs credibility and we do not disturb its findings on appeal Camarillo, 115 Wn.2d at 71. A jury could have reasonably determined that Mayfield knew he had a gun in a box in his room, despite Adair’s testimony about her gun. The evidence was sufficient to convict Mayfield of second degree possession of a firearm.

3. Bail Jumping

Mayfield also asserts an affirmative defense to his bail jumping charges because uncontrollable circumstances prevented him from appearing. RCW 9A.76.170. He argues that there was no evidence in the record that he failed to appear for a hearing on September 11, 2004, or that there was a hearing scheduled for September 11, 2004. He asserts that there was insufficient evidence to prove beyond a reasonable doubt that he had an obligation to appear in court on that date; thus, there was insufficient evidence to convict him of bail jumping.

Under RCW 9A.76.170, the elements of bail jumping are met if the defendant:

(1) was held for, charged with, or convicted of a particular crime; (2) was released by court order or admitted to bail with the requirement of a subsequent personal appearance; and, (3) knowingly failed to appear as required. In addition to these elements, the statute implies a nexus between the crime for which the defendant was held, charged, or convicted and the later personal appearance.

State v. Pope, 100 Wn. App. 624, 627, 999 P.2d 51 (2000).

Here, Mayfield was charged with failing to appear at a hearing “on or about” September 11, 2004. CP at 82. This exact date was incorrect. All of the evidence on this count showed that Mayfield failed to appear for a hearing on September 9, 2004. Furthermore, the jury was instructed that it had to find that Mayfield committed the crime of bail jumping on September 9, 2004. Mayfield failed to appear at that hearing and, thus, the evidence is sufficient to support the bail jumping conviction.

II. SAG Issues

A. Same Criminal Conduct

Mayfield argues that the trial court abused its discretion when it did not conduct a same criminal conduct analysis for the bail jumping convictions because he failed to appear on the same dates for two separate cause numbers. There is no dispute that Mayfield failed to appear in Pierce County Superior Court on September 9, 2004, and November 3, 2004, for hearings on cause number 04-1-08511 and cause number 04-1-025569. In Mayfield’s direct appeal from Pierce County Superior Court cause number 04-1-08511, however, we held that Mayfield’s double jeopardy rights were violated and vacated the sentence for bail jumping on September 9, 2004, and November 3, 2004, in that case. State v. Mayfield, No. 33734-7-II, slip op. at 10 (Wn.App. June 26, 2007). Therefore, we do not discuss Mayfield’s same criminal conduct arguments here, as they are now irrelevant.

B. Bail Jumping Charges Following Quash Hearings

Mayfield failed to appear in court at 8:30 a.m. on October 27, 2004, for an omnibus hearing but when he appeared in court at 1:30 p.m. for a quash hearing the State did not charge Mayfield with the crime of bail jumping. He argues that the quash hearings conducted each time he appeared after a bench warrant was issued for his arrest for failure to appear acted as a bar to the State’s ability to file bail jumping charges. He cites no relevant authority for this assertion nor do we know of any. The trial court did not abuse its discretion by allowing the State to prosecute the bail jumping charges.

C. Denial of Request to Call Bonding Agent

Mayfield argues that the trial court erred by not allowing Charles, his bail bonds agent, to testify and, that in doing so, it denied him the right to present a defense. He argues that his conduct after he failed to appear is relevant because he could demonstrate an affirmative defense to the bail jumping charges. He asserts that Charles was a critical witness who would have provided independent, expert corroboration of Mayfield’s compliance with the bail jumping statute after he failed to appear in court.

After the State’s voir dire of Charles, it moved to strike her as a witness because her testimony was irrelevant to the bail jumping charge. The State argued that the issue before the court was whether Mayfield was in court for the scheduled hearings and that Charles would add nothing to that issue. The trial court agreed with the State.

[B]oth the Supreme Court and this court have noted that “[a]lthough guarded jealously, the right [to compulsory process] is not absolute.” In keeping with the right to establish a defense and its attendant limits, “a criminal defendant has no constitutional right to have irrelevant evidence admitted in his or her defense.”

State v. Thomas, 150 Wn.2d 821, 857, 83 P.3d 970 (2004) (internal citations omitted).

Here, the trial court found that Charles’ proposed testimony was not relevant to the charges or to Mayfield’s defense to those charges. Mayfield does not cite to any authority that prohibits a trial court from excluding irrelevant evidence. We reject Mayfield’s unsupported claim.

D. Assistance of Counsel

Finally, Mayfield argues that his counsel was ineffective for several reasons.

In order to show that he received ineffective assistance of counsel, [the defendant] must show (1) that defense counsel’s conduct was deficient, i.e., that it fell below an objective standard of reasonableness; and (2) that the deficient performance resulted in prejudice, i.e., that there is a reasonable possibility that, but for the deficient conduct, the outcome of the proceeding would have differed.

There is a strong presumption that defense counsel’s conduct is not deficient. However, there is a sufficient basis to rebut such a presumption where there is no conceivable legitimate tactic explaining counsel’s performance.

State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004) (internal citations omitted). “Because the presumption runs in favor of effective representation, the defendant must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel.” State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251
(1995).

1. Mayfield alleges that his counsel failed to show that Ellefson had a prior conviction for a crime of dishonesty. He argues that his counsel should have addressed Ellefson’s crimes for dishonesty to undermine his veracity as an informant. Mayfield cannot show that counsel’s performance was deficient. There is no evidence in the record that Ellefson had committed a crime of dishonesty. The exhibit that Mayfield relies on for proof of Ellefson’s criminal history indicates that the case was dismissed for other reasons. Counsel is not deficient for failing to challenge Ellefson’s veracity on this basis.

Furthermore, even if Ellefson had been convicted for a crime of dishonesty, Mayfield cannot show that he was prejudiced by counsel’s failure or that the result would have been different. The court was already aware that Ellefson was involved in criminal activity because he was arrested on a warrant at the scene of a traffic stop and he admitted that he was in possession of stolen property. Additionally, the officers corroborated the information provided by Ellefson by confirming that the motorcycle was stolen. As such, Mayfield is unable to show that counsel’s performance was deficient or that he was prejudiced.

2. Mayfield argues that his counsel failed to insist on a

Franks hearing.[8] He argues that Alfano knowingly, intentionally, and with reckless disregard for the truth submitted the affidavit for probable cause with material omissions. Mayfield argues that Alfano should have doubted Ellefson’s veracity based on a simple records check that would have disclosed Ellefson’s conviction for a crime of dishonesty. This, he claims, would have caused the reviewing magistrate to refuse to issue the search warrant.

But the record does not support Mayfield’s assertion that Ellefson committed a crime of dishonesty because the alleged charge was dismissed for other reasons. Mayfield does not provide any additional evidence that Ellefson had been convicted of such a crime. Thus, Mayfield’s counsel’s performance was not deficient for failing to argue that a Frank’s hearing was necessary because Alfano did not omit material facts in the affidavit of probable cause. See State v. Clark, 143 Wn.2d 731, 751, 24 P.3d 1006
(2001) (to invalidate a warrant for material omission or misstatement, the defendant must show deliberate material omission or statement in reckless disregard for the truth).

3. Mayfield alleges that his counsel failed to object to a stipulation to Mayfield’s prior felony convictions. He argues that because he did not know that prior felonies are a required element of unlawful possession of a firearm, his attorney’s advice to stipulate to a prior felony constituted ineffective assistance of counsel.

Mayfield pleaded guilty to one of the elements of the crime of unlawful possession of a firearm by stipulating to a previous felony conviction. Counsel was not deficient for failing to object to the stipulation because his failure was based on a legitimate trial strategy. Mayfield’s argument at trial was that he did not know of the firearm or have possession of it. He did not contest the prior felony but, rather, claimed that the prior felony supported the theory that he did not know of the gun’s presence.

Counsel addressed the stipulation to a prior felony conviction during closing argument to support his argument that Mayfield knew that he could not have a gun and that if he knew of the gun, “he would have been very upset.” RP at 422. Moreover, if Mayfield had not stipulated to the prior felony, the State would have introduced the judgment and sentence from the prior felony in order to prove that element of the crime. Under these circumstances, Mayfield cannot demonstrate any prejudice and his counsel’s failure to object to the stipulation constituted a legitimate trial strategy. Thus, Mayfield’s counsel was not ineffective based on the stipulation to a prior felony conviction.

4. Mayfield also contends that his counsel erroneously failed to object to certain jury instructions. He argues that his counsel was ineffective because she failed to object to two omitted elements in the jury instructions on the affirmative defense to the bail jumping charges.

The jury instruction stated:

As a defense to the charge of Bail Jumping in Count IV, the defendant has asserted the affirmative defense that he was unable to attend court as the result of an uncontrollable circumstance that prevented him from appearing. The defendant has the burden of establishing this affirmative defense by a preponderance of the evidence.

CP at 83. RCW 9A.76.170(2) provides:

It is an affirmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist.

Mayfield’s counsel did not object to the omission of “that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender,” or “that the person appeared or surrendered as soon as such circumstances ceased to exist,” thus relieving Mayfield of the burden to prove those two elements of the defense. RCW 9A.76.170(2). But the portion of the statute relating to uncontrolled circumstances, which was Mayfield’s claim, was included in the instruction.

By omitting these two elements of the affirmative defense, Mayfield was only required to prove that “he was unable to attend court as the result of an uncontrollable circumstance that prevented him from appearing.” CP at 83. Counsel’s performance was not deficient for failing to object to an instruction that eliminated Mayfield’s burden to prove two elements. Additionally, Mayfield fails to show prejudice as a result of his counsel’s agreement to the jury instruction because, as evident from the jury’s verdict, the jury did not believe that “uncontrollable circumstances” prevented Mayfield from attending court. CP at 83. Even if the court had instructed the jury that Mayfield was required to prove the additional elements, the result would not have changed and Mayfield’s claim fails.

5. Mayfield argues that his counsel provided ineffective assistance because she informed him that he was not required to appear at the September 9, 2004, hearing. But Mayfield refers to matters outside the record, as nothing in the record before us supports Mayfield’s statement that he was told not to appear at the September 9 hearing.

6. Mayfield alleges that his counsel failed to object to the trial court’s abuse of discretion, lack of jurisdiction, and exceeding its statutory authority to punish Mayfield because he had an affirmative defense to the bail jumping charges. But his counsel argued that Mayfield had demonstrated that he had an affirmative defense to the bail jumping charges and she attempted to call witnesses to testify to his asserted defense. That the trial court did not allow the witnesses to testify does not rebut the presumption that Mayfield had the benefit of effective assistance of counsel.

7. Mayfield alleges that his counsel failed to require same criminal conduct analysis by the trial court. He argues that his counsel provided ineffective assistance by failing to argue same criminal conduct on the bail jumping charges on both Pierce County cases for failure to appear on September 9, 2004 and November 3, 2004. Mayfield is mistaken.

When Mayfield entered his guilty plea to the bail jumping charges, his counsel argued:

Several counts of bail jump doubled because hearings were set on the same day for each of these cause numbers [04-1-018511 and 04-1-025569], and for each time that he failed to appear on those he . . . was either convicted of or now has pled guilty to two offenses and gets two points . . . for each one of those, and again, a large number of the points that he has at this point come from those while he did fail to appear he set quash hearings and did show up eventually. He didn’t skip the country. He didn’t leave so I think that needs to be taken into account.

RP (Aug. 12, 2005) at 12.

Mayfield’s counsel argued that his charges for bail jumping should not double because he failed to appear on one date for two cause numbers, but the trial court rejected her argument. The trial court’s rejection of her argument does not amount to ineffective assistance of counsel.

Mayfield makes other arguments that duplicate those in his direct appeal and we do not address them further.

We affirm Mayfield’s convictions and sentence.[9]

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: Houghton, C. J., Penoyar, J.