No. 56810-8-I.The Court of Appeals of Washington, Division One.
November 13, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-1-00430-9, George N. Bowden, J., entered March 22, 2006.
Affirmed by unpublished per curiam opinion.
Counsel for Appellant/Cross-Respondent, Jennifer M. Winkler, Nielson, Broman Koch, PLLC, Seattle, WA.
Lori M. Mitchell, (Appearing Pro Se).
Counsel for Respondent/Cross-Appellant, Thomas Marshal Curtis, Snohomish County Pros Ofc, Everett, WA.
PER CURIAM.
Lori Mitchell appeals her conviction for possession of methamphetamine for two reasons. First, she argues that the trial court’s failure to enter written findings of fact and conclusions of law warrants reversal. Second, she claims that the plain-view exception to the warrant requirement was not met here, and thus, the methamphetamine evidence should have been suppressed. The trial court subsequently entered written findings and conclusions not tailored to meet the issue presented here, and Mitchell has not established that she was prejudiced by the delayed entry. Moreover, the plain-view exception does apply here. For those reasons, we affirm.
FACTS
Everett Police Officer Daniel Rabelos was dispatched to Mitchell’s home due to a domestic disturbance between Mitchell and Robert Fouchaux, who had been ordered to have no contact with Mitchell. Rabelos and Officer Townsend (whose first name is not in the record) approached the house and heard yelling. The officers knocked on the door and Mitchell answered. She did not give them permission to enter, but Rabelos testified that they entered to investigate the violation of the no-contact order.
The officers entered the home to find Mitchell, Fouchaux, and another woman in the living room in the dark because there was no electricity in the house. Townsend stayed with the three occupants while Rabelos walked through the house with his flashlight. When Rabelos returned to the living room, Mitchell stood up and went to the kitchen for a drink of water. Rabelos noticed Mitchell was wearing a fanny pack and she was trying to fit a Tupperware container into the pack. Rabelos directed his flashlight at the container and testified that he could see a crystal or glass-like substance in the container that he recognized as methamphetamine. Rabelos did not mention anything about the substance at that time because Townsend was still investigating the no-contact order violation.
After Townsend arrested Fouchaux, Rabelos told Mitchell that she needed to hand over the drugs and grabbed for the fanny pack, which was sitting on the chair next to her. After a brief struggle over the pack, Rabelos gained control of the pack and arrested Mitchell for possession of a controlled substance. Rabelos opened the pack and saw the Tupperware container, which held a plastic bag. The substance in the bag was later identified as methamphetamine, and Mitchell was arrested and charged with its possession.
Mitchell moved to suppress the methamphetamine, but the trial court denied the motion after a hearing. The court explained its ruling orally in May 2005, but did not enter written findings of fact or conclusions of law until March 2006. Mitchell now appeals the denial of her motion to suppress on two grounds.
ANALYSIS Failure to Enter Written Findings and Conclusions
At the time Mitchell filed her brief, the trial court’s written findings of fact and conclusions of law had not been entered. She argues that the failure to enter written findings warrants reversal of her conviction because she has been prejudiced by the unnecessary delay. She has not filed a reply brief since the written findings and conclusions were entered.
CrR 3.6(b) requires trial courts to enter written findings of fact and conclusions of law, but does not set a time limit on the entry. We “will not reverse a conviction for tardy entry of findings unless the defendant can establish either that she was prejudiced by the delay or that the findings and conclusions were tailored to meet the issues presented in her appellate brief.” State v. Gaddy, 114 Wn. App. 702, 705, 60 P.3d 116
(2002), aff’d, 152 Wn.2d 64, 93 P.3d 872 (2004).
Mitchell claims that she was prejudiced by the delay in entry, but does not explain why the delay was prejudicial. Because she has not demonstrated prejudice or tailoring, we conclude that the delayed entry does not warrant reversal.
The Plain-View Exception
Mitchell argues that the plain-view exception does not apply here because Rabelos could not have immediately recognized the substance in a bag inside a Tupperware container to be methamphetamine.
Warrantless searches and seizures are generally unconstitutional, and the State bears the burden of showing that a warrantless seizure falls within one of the few exceptions to this general rule. State v. Kinzy, 141 Wn.2d 373, 384, 5 P.3d 668 (2000). “The `plain view’ doctrine is an exception to the warrant requirement that applies after police have intruded into an area in which there is a reasonable expectation of privacy.
The doctrine requires that the officer had a prior justification for the intrusion and immediately recognized what is found as incriminating evidence such as contraband, stolen property, or other item useful as evidence of a crime.” State v. O’Neill, 148 Wn.2d 564, 582-83, 62 P.3d 489 (2003) (citation omitted).
Mitchell does not dispute that Rabelos had prior justification for the intrusion, but argues that it “strains the imagination that Officer Rabelos could, in a dark room, immediately recognize a something inside a Ziploc bag inside a Tupperware container to be methamphetamine.” Brief of Appellant, at 10. Mitchell does not assign error to any of the trial court’s findings because they had not been entered at the time of her briefing. The trial court’s findings of fact are verities on appeal if they are supported by substantial evidence, “a sufficient quantity of evidence . . . to persuade a fair-minded, rational person of the truth of the finding.” State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Like the State, we assume — based on the argument raised in her brief — that Mitchell would challenge the trial court’s finding that Rabelos immediately recognized the substance to be methamphetamine, and we now must determine whether that finding is supported by substantial evidence.
Rabelos — who had special training in narcotics identification, six years of experience as an officer, and had made hundreds of arrests for methamphetamine possession — testified that he was 2 to 3 feet from Mitchell when she was holding the Tupperware container and that he shined his high-intensity flashlight directly onto the container to see the crystal substance inside. He testified that he immediately recognized the substance as methamphetamine and explained why the substance did not look like sugar or bath salts. In light of Rabelos’s training and experience, this testimony is substantial evidence supporting the trial court’s finding that Rabelos immediately recognized the substance as methamphetamine. Because Rabelos had a prior justification for entering Mitchell’s home and immediately recognized methamphetamine in plain view, the plain-view exception to the warrant requirement applies to this seizure.
Statement of Additional Grounds for Review
Mitchell raises, pro se, six additional grounds for review, claiming that her constitutional right to remain silent was violated by police, that the trial record is incomplete and inaccurate, and that she received ineffective assistance of trial and appellate counsel.
The record before us is inadequate to consider any of Mitchell’s pro se claims. If Mitchell wishes to bring these claims in a personal restraint petition, the reviewing court could then consider matters outside the record. See State v. McFarland, 127 Wn.2d 322, 337-38, 899 P.2d 1251 (1995).
For the foregoing reasons, we affirm.
AGID and BAKER, JJ., concur.