No. 56767-5-I.The Court of Appeals of Washington, Division One.
November 13, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-1-00696-4, Michael T. Downes, J., entered August 12, 2005.
Affirmed by unpublished per curiam opinion.
Counsel for Appellant(s), Nielsen Broman Koch PLLC, Attorney at Law, Seattle, WA.
David Bruce Koch, Nielson Broman Koch PLLC, Seattle, WA.
David Christopher Pitts (Appearing Pro Se), Aberdeen, WA.
Counsel for Respondent(s), Thomas Marshal Curtis, Snohomish County Pros Ofc, Everett, WA.
PER CURIAM.
Appellant David Pitts, convicted of one count of possession with intent to deliver, raises the issue of jury unanimity. He contends the State, in proving possession, failed to elect between two different stashes of drugs located in different parts of the car he was driving when arrested. Because the evidence showed that the defendant was engaged in a single course of conduct aimed at the objective of dealing drugs, there is no doubt that the jury was unanimous. We affirm.
Late one evening, police pulled over David Pitts for failing to use headlights while driving at night. As Pitts unrolled the window, Officer Hatchel approached the van and detected the smell of marijuana emanating from the inside of the vehicle. Officer Hatchel arrested Pitts for driving with a suspended license, searched Pitts incident to arrest, and found $954 in cash. While searching the van, Officer Hatchel saw a backpack between the two front seats. A loaded 9 millimeter gun was protruding from an outer mesh pocket on the backpack. The backpack contained marijuana, plastic baggies, a scale, a notebook, and a can of “Gunk Super Spray.” Pitts told Officer Hatchel that he owned the van, but denied owning the backpack found inside his vehicle. Pitts said that the backpack had been left in the van by an unidentified person a few days earlier.
Using a drug sniffing dog, officers found a stash of what they believed to be cocaine in the center console of the van. The console contained seven small plastic bags of white powder. The Washington State Patrol Crime Lab later tested the contents of one bag and confirmed that the powder was cocaine.
While processing the evidence at the police station, police discovered that the can of Gunk Super Spray contained a plastic bag filled with a white powdery substance similar to what was in the bags. This substance was not tested.
At trial, Pitts faced two charges: possession of cocaine with intent to deliver and unlawful possession of a firearm. The jury convicted Pitts on both counts and returned a special verdict that he had been armed with a deadly weapon during the commission of the crime. As a result of this finding, the court imposed a 3-year firearm enhancement on top of his standard range sentence of 104 months. Pitts appeals the conviction for possession with intent, claiming that the court erred by failing to assure a unanimous jury. He also contends the enhancement should have been only one year, as required for a deadly weapon, rather than three years for a firearm.
In Washington, a defendant may be convicted only when a unanimous jury concludes the criminal act charged in the information has been committed. State v. Crane, 116 Wn.2d 315, 324-325, 804 P.2d 10 (1991). The issue may be raised for the first time on appeal. State v. Camarillo, 115 Wn.2d 60, 63, 794 P.2d 850 (1990).
To ensure jury unanimity, the State may elect the act upon which it will rely for conviction. Alternatively, the judge can give an instruction that all jurors must agree as to what acts or acts were proved beyond a reasonable doubt. State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984). An election by the State or a Petrich instruction is mandatory, however, only when there is evidence of “several distinct acts.” State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989).
The State’s presentation of the case against Pitts focused on the one bag of cocaine found in the console to prove the element of possession. The State used the scales and other items found in the backpack to prove intent to deliver. However, the prosecutor did at one point mention drugs found in the backpack:
The Defendant had a backpack full of drug dealing tools of the trade. He was armed with a firearm at the time right there [in] his van; it was in his easy reach. Backpack is full of drugs, a notepad that had names and numbers on it, grams, names, amounts. He had a digital scale in the backpack. He had a can with a false bottom that had another white powdery substance in it. He had a drug in the bag and he had it right there (indicating).[1]
Later in the closing argument, the prosecutor again mentioned drugs in the backpack: “I don’t think there’s much question that that is a drug dealer’s backpack. What’s in there? Controlled substances.”[2] Pitts contends that these comments may have led one or more jurors to believe that the powder in the can of Gunk Super Spray could support the element of possession.
It is unlikely that these stray remarks during closing argument would have led the jury to believe that the State was offering proof of two distinct acts of possession. The prosecutor continually referred back to the State’s key piece of evidence for the possession charge: the white powder conclusively identified as cocaine. It is even more unlikely that a reasonable juror would have found that Pitts possessed the unidentified powder in the Gunk can, but did not possess the cocaine in the console.
Further, where the evidence of two or more criminal acts indicates a continuing course of conduct, neither election nor a unanimity instruction is required. Handran, 113 Wn.2d at 17. In determining whether criminal conduct constitutes one continuing act, a court should evaluate the facts “in a common sense manner.” Handran, 113 Wn.2d at 17. If the defendant has a single objective and commits several different acts while attempting to meet that objective, courts have generally characterized the acts as a continuing course of conduct.
The continuing course of conduct exception has been applied to a series of acts of assault over a two-hour period that collectively resulted in a fatal injury. State v. Crane, 116 Wn.2d 315, 330, 804 P.2d 10 (1991). The exception also applied when two distinct physical assaults occurred in one place, during a short period of time, and by the same aggressor upon a single victim. Handran, 113 Wn.2d at 17. In Handran, the court found that both acts of assault were in an attempt to achieve the singular goal of securing sexual relations. Promoting prostitution is also a continuing course of conduct which falls within the Petrich exception. State v. Gooden, 51 Wn. App. 615, 620, 754 P.2d 1000 (1988). The defendant in Gooden drove two girls to locations known for prostitution, rented motel rooms, and had the girls turn over the money they had earned. The court applied the exception because each distinct act worked in conjunction to further the ongoing criminal enterprise. Gooden, 51 Wn. App. at 620.
Not all drug possession cases meet the criteria for the continuing course of conduct exception, as shown by State v. King, 75 Wn. App. 899, 878 P.2d 466 (1994). King was a passenger in a car that was pulled over and searched by police. The police arrested the occupants after discovering a Tylenol bottle containing cocaine in between the seats. Later, during an inventory search at the station, police found a rock of cocaine in King’s fanny pack. The State charged King with one count of possessing cocaine. The State relied on each instance of alleged possession — the first constructive, the second actual — to prove the single count. There was no election by the State, and no unanimity instruction. Finding that Petrich had been violated and it was not harmless error, we reversed.
We distinguished King in a case where the charge was possession with intent to deliver. State v. Love, 80 Wn. App. 357, 908 P.2d 395 (1996). In Love, police found cocaine in two locations: on the defendant’s person and in his home. Police also recovered guns, a large sum of money, plastic bindles, and two scales from the defendant’s home. We rejected the defendant’s argument that the evidence proved two distinct acts:
Love was charged with possession with intent to deliver. Love’s possession of the five rocks of cocaine on his person and the 40 rocks in his residence, when considered in conjunction with the other evidence of an ongoing drug trafficking operation found at Love’s residence, reflect his single objective to make money by trafficking cocaine; thus, both instances of possession constituted a continuous course of conduct. The inference is strengthened by the fact that Love, who possessed no paraphernalia, was searched within minutes of leaving his residence where the much larger stash was kept, and was found to possess five rocks of cocaine in an easily concealed but readily accessible container.
Love, 80 Wn. App. at 362.
The facts in this case make it more like Love than King. The cocaine bindles in the console, the scale in the backpack, the loaded gun, and the large amount of cash on Pitts indicate that Pitts was engaged in a continuous course of conduct aimed at the single objective of dealing drugs. Pitts did not appear to be under the influence of drugs at the time of his arrest, and the police did not find any paraphernalia for using cocaine in the van. The jury’s verdict finding Pitts guilty of possessing the firearm located in his backpack demonstrates that they rejected his argument that the backpack was left in his van by an unidentified person. We conclude the State was not required to elect and a Petrich instruction was not necessary.
Because Pitts had a gun in his possession when arrested on the cocaine charge, the State sought a three-year firearm enhancement. Pitts contends that the question of whether he was armed with a firearm should have been submitted to the jury under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The special verdict form only required the jury to make a finding that the defendant was “armed with a deadly weapon at the time of the commission of the crime in Count 2.” Pitts argues that because the special verdict form only contains the words “deadly weapon,” the jury did not make a specific finding that he was armed with a firearm.
Before receiving the special verdict form, the jury received the following instruction: “For purposes of a special verdict, the State must prove beyond a reasonable doubt that the defendant was armed with a firearm at the time of the commission of the crime in Count II.” Although the term “firearm” is not specifically listed on the special verdict form, the jury could not have returned its special verdict without finding beyond a reasonable doubt that Pitts was armed with a firearm. Under these circumstances, there was no Blakely violation. The special verdict should be read in conjunction with the jury instructions: “The jury’s special verdict, read in light of the instructions, constitutes a specific finding that the State met its burden to show . . . that Pharr was armed with a firearm.” State v. Pharr, 131 Wn. App. 119, 125, 126 P.3d 66 (2006).
Affirmed.
SCHINDLER and COLEMAN, JJ., concur.
Page 1043