State Of Washington v. Ayalneh Marcus Anebo ( 2015 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 45826 -8 -II
Respondent, UNPUBLISHED OPINION
V.
AYALNEH M. ANEB O,
Appellant.
BJORGEN, A.C. J. — A jury returned verdicts finding Ayalneh Marcus Anebo guilty of
unlawful delivery of a controlled substance ( Oxycodone) and unlawful possession of a controlled
substance ( Oxycodone) with intent to deliver. The jury also returned special verdicts finding that
Anebo committed both offenses within 1, 000 feet of the perimeter of a school ground. Anebo
appeals his sentencing enhancements, asserting that ( 1) the trial court erred by admitting as
evidence a snap containing inadmissible hearsay, ( 2) the admission of the map violated his
constitutional right of confrontation, and ( 3) his counsel was ineffective for failing to make a
No. 45826 -8 -II
proper objection to the admission of the map.. Anebo contends that absent admission of the map
at issue, the State failed to present sufficient evidence in support of his school zone sentencing
enhancements. In his statement of additional grounds for review ( SAG), Anebo appeals his
convictions, asserting that ( 1) the trial court erred by seating a juror who had prior knowledge of
the case and ( 2) his counsel was ineffective for failing to object to the juror being seated on the
jury.' We affirm.
FACTS
On March 20, 2013, a confidential informant working with Centralia Police Officer
Adam Haggerty performed a " controlled buy" of 100 Oxycodone pills.2 Report of Proceedings
RP) at 89. The informant arranged to purchase the 100 pills from Veasna Uon for $3, 000 and
met Uon at Uon' s home in Olympia, Washington for the transaction. Approximately 30 minutes
later, Anebo arrived in a silver Volvo and parked in Uon' s driveway. The informant handed
3, 000 in prerecorded buy money to Uon and waited with Haggerty in Haggerty' s vehicle. Uon
then handed the cash to Anebo, who counted the money and then retrieved a bag of pills from the
In his SAG, Anebo also appears to reference Brady v. Maryland, 373 U. S. 83, 83 S. Ct. 1194,
10 L. Ed. 2d 215 ( 1963), but he does not explain the nature or occurrence of any claimed errors
under Brady, contrary to the requirements of RAP 10. 10( c). Instead, Anebo' s SAG merely
states:
The Brady obligations apply to a prosecutor['] s conduct even when the defense has
not requested discovery
the exculpatory
of A prosecutor['] s duty to
evidence.
disclose exculpatory evidence under' Brady extends his or her personal knowledge
of such evidence.
SAG Because Anebo does not allege that the State withheld any evidence in violation of
at 2.
Brady, we do not further address the issue.
2
Haggerty described a " controlled buy" as:
A] purchase of narcotics or contraband from a suspect, known or unknown, and it
is directed by law enforcement entirely from the word go. And the informant is
sterilized, so I can testify on the stand that they did not have any narcotics on them
prior to going into the vehicle, and they park near the house to buy narcotics.
RP at 89.
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No. 45826 -8 - II
trunk of his Volvo. After Uon gave the bag of pills to the informant, law enforcement officers
moved in to arrest the suspects. Anebo fled in his Volvo and crashed into an undercover police
vehicle that was blocking his escape.
Based on this incident, the State charged Anebo by second amended information with
unlawful delivery of a controlled substance, unlawful possession of a controlled substance with
intent to deliver, and second degree assault.3 The State also alleged that Anebo committed the
offenses of unlawful delivery of a controlled substance and unlawful possession of a controlled
substance with intent to deliver within 1, 000 feet of the perimeter of school grounds.
Before trial, there was a brief sidebar discussion between counsel and the. trial court
regarding a potential juror who had thought he read about Anebo' s case in the newspaper. The
trial court later created a record of the sidebar discussion, stating:
Trial Court]: Juror Number 29 ... had indicated that he thought he had
read about this case recently in the newspaper. The lawyers and I both indicated
that we did not believe that this case had been in the newspaper recently, and also,
there was not a basis [ to dismiss the juror for cause], because the juror ultimately
said that that would not affect his consideration in this case.
Is there anything you would like to add to that side bar, [ State]?
State]: No, Your Honor.
Trial Court]. [ Defense counsel]?
Defense counsel]: I have nothing.
RP at 33- 34.
At trial, Officer Haggerty testified consistently with the facts as stated above.
Additionally, Haggerty testified that on the day of the incident he saw children playing on the
other side of a chain link fence that separated Uon' s residence from the neighboring property
3 The trial court declared a mistrial with respect to the second degree assault charge after the jury
indicated that it could not reach a verdict on that charge.
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No. 45826 -8 -II
He further testified that the building on the, neighboring property was the Olympic View
Elementary School.
Kelly Alfaro- Haugen testified that she works as a geographic information systems analyst
for the Thurston County GeoData Center. Alfaro- Haugen stated that the Thurston County
GeoData Center provides mapping and data services for Thurston County, using mapping
software to create maps that depict locations within the county. With respect to this case, Alfaro-
Haugen testified that she created two maps depicting a 1, 000 -foot radius around the center point
of Uon' s residence, the location of Anebo' s alleged crimes. Alfaro- Haugen stated that she
identifies the location of all Thurston County public schools by using data from the Thurston
County 911 office, and that she verifies this information with parcel data from the county
assessor' s office. Alfaro-Haugen said that she was able to locate the Olympic View Elementary
School using this process, and that she had identified its location on one of the maps, Exhibit 16,
by labeling the building with the name of the school.
Anebo objected to the admission Exhibit 16, arguing that the text, " Olympic View
Elementary School," printed over the building behind Uon' s residence, was based on
inadmissible hearsay. RP at 228; Ex. 16. The trial court overruled the objection under the
business record exception to the hearsay rule, stating:
I find that Exhibit 16 was prepared in the witness' [ s] regular course of business. I
further find, as it relates to business records, that the underlying information used
to create that exhibit is reliable information. The witness testified that that
information came from the Assessor' s Office of Thurston County and from the
Thurston County 911 Center. And I find that that information is reliable
information. It is information that this witness has testified to that she relies upon,
basically, on a daily basis, in the preparation of maps that she does on a daily basis.
And therefore, it does fit within the business records exception because of the
reliability of the underlying information. And I am going to overrule the objection
and admit the exhibit.
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No. 45826 -8 - II
RP at 234. The jury returned verdicts finding Anebo guilty of unlawful delivery of a controlled
substance and unlawful possession of a controlled substance with intent to deliver. The jury also
returned special verdicts finding that Anebo committed his crimes within 1, 000 feet of the
perimeter of school grounds. Anebo appeals.
ANALYSIS
1. ADMISSION OF EXHIBIT 16
Anebo first contends that the trial court erred by admitting a map containing inadmissible
hearsay in the form of text superimposed over a building on the map stating, " Olympic View
Elementary School." Anebo further contends that the admission of the map violated his right to
confront adverse witnesses, because he could not cross- examine the person who generated the
data Alfaro- Haugen used to determine the location of the Olympic View Elementary School.
We need not decide whether the trial court erred by admitting the map at issue or whether such
error violated Anebo' s confrontation right because, even assuming that the text " Olympic View
Elementary School" constituted inadmissible hearsay, any error in admitting the map was
harmless beyond a reasonable doubt in light of Haggarty' s testimony regarding the location of
the school.
Under ER 802, hearsay evidence is inadmissible unless an exception applies. A
nonconstitutional error in admitting hearsay evidence is harmless, unless there was a reasonable
probability that the error materially affected the outcome of the trial. State v. AlvarezAbrego,
154 Wn. App. 351, 369, 225 P. 3d 396 ( 2010). The Sixth Amendment to the United States
Constitution and article I, section 22 of the Washington State Constitution provide an accused
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No. 45826 -8 -II
person with the right to confront the witnesses against him or her.4 Therefore, in general a
witness may not testify against a defendant unless that witness appears at trial or the defendant
had a prior opportunity to cross- examine the witness. State v. Jasper, 174 Wn.2d 96, 109, 271
P. 3d 876 ( 2012).
Admission of hearsay evidence in violation of a defendant' s right to confront adverse
witnesses is subject to the constitutional harmless error test. State v. Watt, 160 Wn.2d 626, 633,
160 P. 3d 640 ( 2007). Under this test, we may affirm Anebo' s sentencing enhancements only if
we are convinced beyond a reasonable doubt that the jury would have found that Anebo
committed his crimes within 1, 000 feet of the perimeter of a school absent admission of the map
at issue. State v. Tyler, 138 Wn. App. 120, 129, 155 P. 3d 1002 ( 2007). To determine if the jury
would have reached the same special verdict finding, we look to whether the untainted evidence
regarding the school' s location was so overwhelming that it would have necessarily led to the
jury' s finding that Anebo committed his offenses within 1, 000 feet of the school. Tyler, 138 Wn.
App. at 129- 30.
Here, the trial court admitted two maps, both of which depict a 1, 000 foot perimeter
surrounding Uon' s residence, the location where Anebo committed his crimes. Anebo did not
challenge at trial or on appeal the admission of Exhibit 15, the map that did not label the location
of the Olympic View Elementary School. On that map, it is clear that only one nonresidential
building abuts Uon' s residence, and that the nonresidential building is completely located within
the 1, 000 foot perimeter surrounding Uon' s residence. Haggerty' s untainted testimony that the
building abutting Uon' s residence was the Olympic View Elementary School established that .
4 The federal and state constitutions provide the same protections with respect toa defendant' s
right to confront witnesses against him or her. State v. Lui, 179 Wn.2d 457, 468, 315 P. 3d 493,
cert. denied, 134 S. Ct. 2842 ( 2014).
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No. 45826 -8 -II
this nonresidential building was the Olympic View Elementary School. Therefore, we are
convinced beyond a reasonable doubt that the jury would have reached the same special verdict
finding Anebo committed his crimes within 1, 000 feet of the perimeter of a school even absent
admission of Exhibit 16, the map at issue. Because we are convinced beyond a reasonable doubt
that Haggerty' s untainted testimony rendered any constitutional error in admitting the map
harmless, we hold that any nonconstitutional error in admitting the map was unlikely to have
materially affected the outcome of Anebo' s trial and was, thus, harmless. Accordingly, we hold
that any error in admitting Exhibit 16 was harmless.
II. SUFFICIENCY OF THE EVIDENCE
Next, Anebo contends that absent admission of Exhibit 16, the State failed to present
sufficient evidence in support of the jury' s special verdict finding that he committed his crimes
within 1, 000 feet of a school. However, we have already determined in our harmless error
analysis above that Exhibit 15 together with Haggarty' s testimony clearly established the
location of Anebo' s crimes in relation to a school zone. Accordingly, sufficient evidence
supports the jury' s special verdict.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, Anebo asserts that his trial counsel provided ineffective assistance by failing to
properly object to the admission of Exhibit 16. We disagree.
We review ineffective assistance of counsel claims de novo. State v. Binh Thach, 126
Wn. App. 297, 319, 106 P. 3d 782 ( 2005). To prevail on an ineffective assistance of counsel
claim, Anebo must show both that ( 1) counsel' s performance was deficient and ( 2) the deficient
performance prejudiced him. Strickland v. Washington, 466 U. S. 668, 687, 104 S. Ct. 2052, 80
L. Ed. 2d 674 ( 1984); State v. Brockob, 159 Wn.2d 311, 344- 45, 150 P. 3d 59 ( 2006).
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No. 45826 -8 -II
Here, defense counsel objected several times to the admission of Exhibit 16 and
preserved Anebo' s contentions with the admission of the exhibit for appeal. Accordingly, Anebo
fails to demonstrate that his counsel performed deficiently. Additionally, even if Anebo could
demonstrate deficient performance, he cannot show any resulting prejudice because, as discussed
above, we are convinced beyond a reasonable doubt that the jury would have reached the same
special verdict absent admission of Exhibit 16. We thus affirm Anebo' s sentencing
enhancements.
IV. SAG
In his SAG, Anebo appeals his convictions, asserting that ( 1) the trial court erred by
seating a juror who had prior knowledge of the case and ( 2) his counsel was ineffective for
failing to object to the juror being seated on the jury. Because there is no evidence in the record
that a sitting juror had actual knowledge of Anebo' s case prior to trial, we disagree on both
points.
Although the record indicates that a potential juror told the trial court that he thought he
had read about the case in a newspaper, article, the trial court concluded, and counsel agreed, that
there was no newspaper article regarding Anebo' s case, stating:
Juror Number 29 ... had indicated that he thought he had read about this case
recently in the newspaper. The lawyers and I both indicated that we did not believe
that this case had been in the newspaper recently, and also, there was not a basis [ to
dismiss the juror for cause], because the juror ultimately said that that would not
affect his consideration in this case.
RP at 33- 34. On this record, Anebo cannot demonstrate that the trial court erred by seating a
juror with prior knowledge of his case or that his defense counsel was ineffective for failing to
No. 45826 -8 -II
move for the juror' s dismissal for cause. We thus affirm Anebo' s convictions.
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 in accordance with RCW
2. 06. 040, it is so ordered.
BJl GiEN A. C. J.
We concur:
L, J.
AJ7' PM% I. —
SUTTON, J.
E