State of Washington v. Myron Lynn Woods Jr. ( 2021 )

FILED
JULY 27, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 37985-0-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
MYRON LYNN WOODS, JR., )
)
Appellant. )
LAWRENCE-BERREY, J. — Myron Woods appeals after being convicted of five
counts of unlawful possession of a controlled substance (UPCS) with intent to deliver and
two counts of unlawful possession of a firearm (UPFA). Woods received an enhanced
sentence based on the jury’s findings related to the first UPCS count. The jury found
Woods committed that crime with a firearm and it was a major violation of the Uniform
Controlled Substances Act (UCSA), chapter 69.50 RCW.
No. 37985-0-III
State v. Woods
Woods argues the trial court erred in denying his Franks,1 Knapstad,2 and
severance motions, and the State produced insufficient evidence to sustain either
enhancement. We disagree and affirm. There were no material omissions in the affidavit
establishing probable cause, CrR 8.3(c) precluded the Knapstad motion, and sufficient
evidence supports the enhancements.
FACTS
Myron L. Woods is a level 1 registered sex offender requiring yearly address
verification. In March 2017, the Pierce County Sheriff’s Department began attempting to
verify Woods’s address. He was last verified living at his mother’s residence in
March 2016. Between March 5 and June 6, 2017, police made 15 unsuccessful attempts
to contact Woods there at various times on different days.
In May 2017, Detective Ray Shaviri contacted Woods’s community corrections
officer Mike Vitacolonna, who said he suspected Woods was not living at his registered
address. Vitacolonna said Woods would arrive at his registered address about 30 minutes
after being called. Vitacolonna told Detective Shaviri that he thought Woods lived with
his girlfriend, Jennifer Johnson.
1
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
2
State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986).
2
No. 37985-0-III
State v. Woods
On the morning of June 1, 2017, Detective Shaviri went to Ms. Johnson’s home.
He saw Woods exit the house and talk on the phone. He also saw a white BMW parked
next to the garage. The next day, he returned and saw the BMW again, but he did not see
Woods.
On June 6, 2017, Detective Shaviri obtained an order authorizing a trap and trace
for Woods’s cell phone to aid in his investigation of the crime of failure to register and to
learn where Woods was residing. The affidavit in support of the trap and trace order
alleged the following facts and circumstances:
Based on my experience investigating violations of [RCW
9A.44.132], it is common for offenders to give Law Enforcement a
girlfriend, ex-wife, parent or relative’s address but live at [a] different
location to avoid community notification. It is also common for family and
friends to lie to law enforcement about an offender’s residency. . . .
Myron Woods is a level 1 sex offender . . . . Woods gave his
residence address as 14506 26th avenue court east in Tacoma. The
residence belongs to his mother.
Since 03/05/17, Deputies and Detectives have made 15 attempts to
verify Myron’s residency in person with no results. The[y] were told by
occupants at the house that Myron was at work or many times they got no
answer at the door. The attempts were made at different hours of the days
and different days of the week to include weekends. . . . I called the phone
number on record . . . identified myself . . . and stated that this call was
regarding his residency requirements. As of this date, I have not been
contacted by Myron or anyone in his household.
On 5/31/16,[3] I contacted Myron’s Community Corrections Officer,
Mike Vitacolonna [who] stated that over the past 2 to 3 months, he has
3
This appears to be a typographical error. The year was 2017.
3
No. 37985-0-III
State v. Woods
attempted to check on Myron at his residence multiple times with negative
results. . . . [H]e suspected that Myron was residing elsewhere.
He stated Myron has a girlfriend named Jennifer Johnson who was
also his approved chaperone. . . .
I located Jennifer M. Johnson’s residence at 5645 South Cedar
Avenue in Tacoma. . . .
On 06/01/17, at about 0825 hours, I drove by 5645 South Cedar
Avenue . . . . At about 0850 hours, I noticed a black male had stepped
outside and was sitting on a chair that was to the right of the front door.
He appeared to be on the phone. I . . . recognized the male to be Myron
Woods.
Your affiant is requesting permission to have T-Mobile obtain
location information for [Woods’s phone number] in the hopes of building
a case to show that Myron Lynn Woods is not residing at his registered
address and [is]thereby committing the crime of Failure to register as a sex
offender, a violation of RCW 9A.44.132, a felony in the State of
Washington.
Clerk’s Papers (CP) at 29-30.
Detective Shaviri continued conducting physical and electronic surveillance of
Woods through June 2017. He saw Woods and his BMW at Ms. Johnson’s home many
times and saw the BMW at a residence on Waller Road. His investigation revealed that
Woods was at his registered address for less than five hours in a two and one-half week
period, never spent the night, and stayed with Ms. Johnson or at the Waller Road
residence. Detective Shaviri found probable cause to arrest Woods for failure to register
as a sex offender. Detective Shaviri enlisted the help of Detective Shawn Darby and the
Special Investigations Unit to arrest Woods.
4
No. 37985-0-III
State v. Woods
Arrest and subsequent searches
On June 27, 2017, Detective Darby followed Woods’s BMW as he left Waller
Road and parked in front of a business. When Detective Darby told Detective Shaviri
that Woods was parked nearby, Detective Shaviri instructed him to effect an arrest.
When Detective Darby and his coworker approached the vehicle, they saw cash and
several small “baggies” on Woods’s lap. The baggies were tightly wound, filled with a
white and a dark brown substance, and looked typical for street level drug sales. They
detained a passenger, who identified himself as Julian Jennings. They arrested Woods
and found $3,795 in various denominations on his person.
After Woods was in custody, Detective Darby obtained a search warrant for
Woods’s vehicles and the Waller Road residence. His probable cause statement in
support of the search warrant was based in part on statements given by Mr. Jennings, who
said he bought heroin from Woods almost every day.
A search of Woods’s BMW revealed two cell phones, a pill bottle filled with 70
alprazolam pills, and 4 amphetamine pills, in addition to the 9 bags of cocaine and heroin
seen on Woods’s lap before his arrest. The bags of heroin weighed approximately 3
grams each.
5
No. 37985-0-III
State v. Woods
A search of the Waller Road residence revealed a surplus of drugs and drug
dealing paraphernalia. In a dresser drawer in the bedroom, police found 522
methamphetamine pills and 21 bindles of cocaine weighing approximately 1 gram each.
A bindle containing 223 grams of heroin and another 8 bindles each containing 25 grams
of heroin were found in the laundry room. They also found tablets with the
pharmaceutical markings of oxycodone and loose cocaine on the kitchen table.
The police found numerous items used for the preparation, packaging, and
distribution of controlled substances in the kitchen. In the cabinet, detectives found
coffee grinders with white powder inside, an electronic money counter, a digital scale
covered with white and dark residue, three bottles of caffeine powder, two plastic cups
containing black residue, 1,000 empty gelatin caps, and 18 boxes of plastic bags.
A detective discovered a secret compartment in the kitchen table that contained a
kilogram (2.25 pounds) of cocaine. The kitchen table was five to seven feet away from
the couch in the living room. Underneath a couch cushion, detectives found a loaded
firearm. The firearm was registered to an individual named Kenneth Holtz. Another
firearm was found underneath the cushion of a chair nearby. This weapon was registered
as stolen.
6
No. 37985-0-III
State v. Woods
Procedural history
The State initially charged Woods with six counts of unlawful possession of a
controlled substance with intent to deliver and two counts of unlawful possession of a
firearm in the first degree.4 With respect to the first count, the State alleged various
enhancements and aggravators including a firearm enhancement and that the crime
constituted a major violation of the USCA. The State additionally charged Woods with
failure to register as a sex offender under another cause number not on appeal.
Woods’s criminal history showed 12 prior felony convictions, including three
second degree child molestation convictions and one second degree assault conviction.
In September 2017, the State notified him that he faced sentencing as a persistent
offender on count 1.
In January 2019, Woods requested a Franks hearing on the trap and trace order for
his cellphone location data. He argued the Department of Corrections (DOC) made
numerous contacts with him over the past year, his address was verified in 2016 and no
one attempted to do so again until 2017, and only five of the attempted verifications
occurred during the period when he had constant contact with the DOC.
4
The State dismissed count 5, unlawful possession of ecstasy, on the first day of
trial.
7
No. 37985-0-III
State v. Woods
The court denied Woods’s request for a Franks hearing, finding Woods “has not
met his burden of a substantial preliminary showing that a false statement knowingly and
intentionally or with reckless disregard for the truth was included by Detective Shaviri in
the warrant affidavit.” CP at 180. The undisputed facts showed that sheriffs physically
went to Woods’s registered address 19 times to check on him but never made contact.
The DOC had in-person contact at their offices 10 times during that period. The court
discounted the 10 in-person contacts at DOC because “[t]he real issue is whether or not
defendant was residing at the residence he registered at . . . .” CP at 180.
Woods also moved to dismiss the firearm enhancement on count 1 and the
persistent offender allegation pursuant to Knapstad. The court denied the motion. It
explained the dismissal of a firearm sentencing enhancement was not appropriate at that
time because cases depending on a nexus between the defendant, the crime, and a firearm
are extremely fact specific. It found: “A reasonable jury could infer that the defendant
had the firearm to protect the drugs found inside the home, without prejudice to any
defense motion.” CP at 184. The material issues regarding the nexus needed to be
determined by the trier of fact; therefore, resolving this issue on Knapstad grounds was
“difficult.” Id.
8No. 37985-0-III
State v. Woods
Shortly before trial, Woods moved to sever the controlled substances and firearms
charges. He argued the firearms charges would necessitate the admission of prior
convictions and cause prejudice on the drug charges. The State opposed severance,
arguing any prejudice could be cured by stipulation to prior convictions and jury
instructions. The court denied severance. Woods then stipulated to a prior offense
disqualifying him from possessing firearms.
Trial and sentencing
Several law enforcement officials testified to the street value and nature of the
drugs found in the Waller Road residence. The kilogram of cocaine alone, not accounting
for increased volume with cutting agents, was worth between $32,000 and $37,000.
Typically, cocaine is transported across the border in kilogram packages, requiring an
established relationship between Woods and a supplier. The 445 grams of heroin and
522 methamphetamine pills in Woods’s home were estimated to be worth $45,000 and
$76,000, respectively.5
At the close of evidence, the court denied Woods’s renewed motion to sever. The
jury found him guilty as charged and further found by special verdict that he was armed
5
See Report of Proceedings (RP) at 429-30 (Detective testifies that heroin sells for
$80 to $100 and methamphetamine pills sell for $20 to $60.); RP at 966-70 (Prosecutor
estimates total value in closing argument.).
9
No. 37985-0-III
State v. Woods
with a firearm and committed a major controlled substances violation with respect to
count 1.
Woods moved to dismiss the special verdict allegations notwithstanding the
verdict. The State argued the motion was untimely and sufficient evidence supported the
firearm enhancement. The court denied Woods’s motion.
At sentencing, Woods stipulated to his criminal history and offender score of 9+.
The court found that he was a persistent offender and imposed a life sentence without the
possibility of release on count 1.
Woods timely appealed.
ANALYSIS
A. LEGALITY OF THE TRAP AND TRACE WARRANT
Woods contends the trial court erred by failing to suppress the trap and trace
warrant and refusing to grant him a Franks hearing. He raises several subissues that we
address in turn.
1. General standards
Both the state and federal constitutions require a search for cell phone location
data to be authorized by a warrant based on probable cause. State v. Muhammad, 194
Wn.2d 577, 595-96, 451 P.3d 1060 (2019); Carpenter v. United States, __ U.S. __, 138
10
No. 37985-0-III
State v. Woods
S. Ct. 2206, 2221, 201 L. Ed. 2d 507 (2018). Probable cause exists where sufficient facts
lead a reasonable person to conclude there is a probability of criminal activity, the
evidence of which can be found at the place searched. State v. Maddox, 152 Wn.2d 499,
509, 98 P.3d 1199 (2004). “It is only the probability of criminal activity and not a prima
facie showing of it which governs the standard of probable cause.” State v. Seagull, 95
Wn.2d 898, 907, 632 P.2d 44 (1981). The determination is a practical one where the
magistrate considers all circumstances alleged in the affidavit and draws common sense
inferences therefrom. Id.; Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed.
2d 527 (1983).
Great deference is given to the issuing judge’s determination of facts relevant to
probable cause. State v. Clark, 143 Wn.2d 731, 748, 24 P.3d 1006 (2001). All doubts are
resolved in favor of the order’s validity. Id. We review de novo the trial court’s
determination of probable cause. State v. Garcia-Salgado, 170 Wn.2d 176, 183, 240 P.3d
153 (2010).
2. Probable cause supported the warrant
Woods first argues the affidavit supporting the trap and trace warrant failed to
establish probable cause that he was not residing at his registered address in violation of
RCW 9A.44.130. Under the statute, a person convicted of a qualifying sex offense
11
No. 37985-0-III
State v. Woods
must provide the sheriff’s department a complete and accurate residential address.
RCW 9A.44.130(1)(a). That residence must be the place the offender “‘habitually uses
as living quarters a majority of the week.’” State v. Cathers, 13 Wn. App. 2d 29, 32, 461
P.3d 375 (2020) (emphasis omitted) (quoting RCW 9A.44.128(5)). This means the
offender is consistently and usually at this residence. Id. at 33.
Detective Shaviri suspected Woods was violating RCW 9A.44.130 based on
several facts. Most importantly, Woods was not at his registered address on 15 separate
occasions despite attempts to verify on different days and at different times to
accommodate his work schedule. Further, Woods’s community corrections officer
suspected he was living with Ms. Johnson because he would arrive at his registered
address 30 minutes after being called, and Ms. Johnson lived that far away. Detective
Shaviri saw Woods outside Ms. Johnson’s house one morning, supporting this suspicion.
These facts, viewed in their totality, support an inference that Woods was not habitually
living at his registered address in violation of RCW 9A.44.130.
3. The warrant was not issued based on generalized statements alone
Woods next argues the court should not have considered Detective Shaviri’s
generalized statements about sex offenders. He relies on State v. Thein, 138 Wn.2d 133,
977 P.2d 582 (1999). There, Thein sought to suppress evidence from a search of his
12
No. 37985-0-III
State v. Woods
home. The search warrant was based on contraband found outside his home and an
officer’s generalized statement that drug dealers commonly store contraband in their
homes. The Supreme Court held that an officer’s broad generalizations about the habits
of drug dealers were insufficient, alone, to establish probable cause. Id. at 148-50. Thein
is distinguishable.
Here, the finding of probable cause did not depend on Detective Shaviri’s
generalized statements about sex offenders. Detective Shaviri provided specific
information that there had been 15 failed attempts to verify that Woods was living with
his mother at his registered address. As noted previously, a person’s residence is a place
where a person habitually lives the majority of the week. The warrant was based on the
allowable inference that 15 failed attempts to verify that Woods was living at his
registered address meant that Woods probably was not habitually living there the majority
of the week. The detective’s generalized statement that it was not unusual for an offender
to register with a relative but reside elsewhere merely confirmed the allowable inference.
4. Unsupported “ruse” argument
Woods next argues the warrant was a ruse to gather information on controlled
substance violations after he failed a urinalysis in January 2017. Yet he provides no
evidence that Detective Shaviri, who works for the sex offender registry unit, sought to
13
No. 37985-0-III
State v. Woods
catch Woods with drugs or weapons. While Detective Shaviri enlisted the help of the
Special Investigations Unit to effectuate Woods’s arrest, there is no evidence that the
entire investigation into Woods’s failure to register offense was a ruse. Without a
meaningful argument or citations to the record and authority, we will not review this
claim. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809,
828 P.2d 549 (1992).
5. Franks hearing
Woods contends the trial court erred in denying his requested Franks hearing. He
alleges the affidavit supporting the trap and trace order contained false and misleading
statements entitling him to a hearing on the matter. We disagree.
A warrant may be invalidated by material factual inaccuracies in the supporting
affidavit that are made with reckless disregard for the truth. State v. Chenoweth, 160
Wn.2d 454, 462, 479, 158 P.3d 595 (2007); Franks, 438 U.S. at 155-56. Negligence or
inadvertence does not meet this standard. Chenoweth, 160 Wn.2d at 462; Franks, 438
U.S. at 171. We presume the affidavit supporting a search warrant is valid. State v.
Atchley, 142 Wn. App. 147, 157, 173 P.3d 323 (2007) (citing Franks, 438 U.S. at 171).
A defendant challenging the affidavit must make a “substantial preliminary
showing that a false statement knowingly and intentionally, or with reckless disregard for
14
No. 37985-0-III
State v. Woods
the truth, was included by the affiant in the warrant affidavit, and . . . the allegedly false
statement is necessary to the finding of probable cause . . . .” Franks, 438 U.S. at 155-56.
If the defendant successfully shows a reckless or deliberate omission of fact, then the
omitted information must be considered part of the affidavit. Atchley, 142 Wn. App. at
158. If the affidavit supports a probable cause finding after inserting the improperly
omitted information, no Franks hearing is required. State v. Garrison, 118 Wn.2d 870,
873, 827 P.2d 1388 (1992). We review the denial of a Franks hearing for abuse of
discretion. State v. Wolken, 103 Wn.2d 823, 830, 700 P.2d 319 (1985).
Woods argues Detective Shaviri intentionally omitted the following information:
(1) he was verified in March 2016, (2) no attempts to verify his residency were made until
March 2017, and (3) according to DOC logs, DOC had frequent contact with him from
January 2017 until June 2017. To warrant a Franks hearing, Woods had to show that
Detective Shaviri intentionally or recklessly omitted this information from the affidavit.
As explained below, Woods has not shown this.
With respect to Woods’s first two points, the sheriff’s department verifies the
addresses of level 1 sex offenders once per year. That Woods’s address was last verified
in March 2016 and the sheriffs did not attempt to do so again until March 2017 is
predictable.
15
No. 37985-0-III
State v. Woods
With respect to Woods’s third point, the “omitted” DOC logs are quoted on pages
7-10 of his opening brief. An examination of those logs show that DOC had frequent in-
person contacts with Woods, but most of those contacts were at the DOC office. Only
two out of four times was DOC able to contact him at his registered address, which does
not show that DOC had frequent in-person contacts with Woods at his registered address.
These logs establish very little and were thus immaterial for determining whether Woods
actually resided at his registered address. We conclude that their omission did not
warrant a Franks hearing.
B. KNAPSTAD MOTION
Woods contends the trial court erred in denying his Knapstad motion to dismiss.
We disagree.
Under Knapstad, a defendant may move to dismiss a criminal charge when there
are no disputed material facts to establish guilt as a matter of law. State v. Bauer, 180
Wn.2d 929, 935, 329 P.3d 67 (2014); CrR 8.3(c). The court is to rely only on facts
admissible at trial and view those facts and the reasonable inferences drawn therefrom in
the light most favorable to the State. State v. Freigang, 115 Wn. App. 496, 502-03, 61
P.3d 343 (2002); CrR 8.3(c)(3). To survive a Knapstad motion, “the State must provide
at least some evidence supporting each element of the crime charged to merit
16
No. 37985-0-III
State v. Woods
consideration by a jury.” State v. Montano, 169 Wn.2d 872, 879, 239 P.3d 360 (2010).
We review a trial court’s Knapstad ruling de novo. Bauer, 180 Wn.2d at 935.
The State argues the trial court was precluded from dismissing the firearm
enhancement because the underlying unlawful possession with intent to deliver charge
was not subject to dismissal. We agree. CrR 8.3(c)(3) provides: “The court shall not
dismiss a sentence enhancement or aggravating circumstance unless the underlying
charge is subject to dismissal under this section.” Woods did not seek dismissal of count
1, which was one of the six initial possession with intent to deliver charges. Thus, the
firearm enhancement was not subject to dismissal under CrR 8.3(c)(3), and the trial court
properly denied Woods’s Knapstad motion.
C. SUFFICIENCY OF THE EVIDENCE
Woods contends the State brought insufficient evidence that he was armed and that
he committed a major controlled substances violation. We address each issue in turn.
1. Firearm enhancement
“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). The test for sufficiency requires us to ask whether, after
17
No. 37985-0-III
State v. Woods
interpreting the evidence and inferences in the light most favorable to the State, any
rational trier of fact could have found guilt beyond a reasonable doubt. Id.“Whether a person is armed is a mixed question of law and fact.” State v. Sassen
Van Elsloo, 191 Wn.2d 798, 825, 425 P.3d 807 (2018). We determine whether the facts
are sufficient to prove that the defendant was armed as a matter of law. Id. An offender
is armed for purposes of a firearm enhancement when: (1) the firearm is easily accessible
and readily available for offensive or defensive use at the time of the crime, and (2) there
is a nexus between the defendant, the crime, and the weapon. Id. at 826.
The nexus requirement means the firearm must be related to the defendant and the
crime, rather than being coincidentally present. Id. at 827; see also State v. Barnes, 153
Wn.2d 378, 383, 103 P.3d 1219 (2005) (“The mere presence of a deadly weapon at the
crime scene is insufficient to show that the defendant is ‘armed.’”). However, “[a]
defendant does not have to be armed at the moment of arrest to be armed for purposes of
the firearms enhancement.” State v. O’Neal, 159 Wn.2d 500, 504, 150 P.3d 1121 (2007).
There is sufficient evidence a defendant is armed if a jury could reasonably find that a
weapon is present to protect an ongoing criminal enterprise. Sassen Van Elsloo, 191
Wn.2d at 829; State v. Eckenrode, 159 Wn.2d 488, 494, 150 P.3d 1116 (2007).
18
No. 37985-0-III
State v. Woods
Woods contends the State failed to prove he was armed at the time of the
controlled substances violations, emphasizing that the firearms were not in his possession
when he was arrested and were in an entirely separate location.6 He cites State v.
Valdobinos, 122 Wn.2d 270, 858 P.2d 199 (1993), and State v. Mills, 80 Wn. App. 231,
907 P.2d 316 (1995), to support his position that no nexus was established. His reliance
on those cases is misplaced.
In Valdobinos, the defendants’ mobile home was searched following a controlled
buy. 122 Wn.2d at 273. The search revealed cocaine, thousands of dollars, and a bus
ticket under a bed. Id. at 273-74. An unloaded rifle was also found under a bed, although
it is unclear if it was under the same bed as the cocaine. Id. at 282. The jury found the
defendants guilty of controlled substances violations while armed. Id. at 274. The
Supreme Court reversed the firearm enhancement, holding that the State failed to prove
the rifle was readily accessible during the commission of the crime. Id. at 282.
In Mills, police found Mills outside of his home and found a small baggie of
methamphetamine in his car. 80 Wn. App. at 233. In the squad car, Mills attempted to
6
In his reply, Woods contends the State brought insufficient evidence that he
resided at the Waller Road address where the drugs and weapons were found. Although
he presented this argument at trial, he did not assign error to the issue on appeal nor did
he raise it in his opening brief. We will not address arguments raised for the first time in
the reply. Cowiche Canyon, 118 Wn.2d at 809; RAP 10.3(a)(4), (6).
19
No. 37985-0-III
State v. Woods
hide a motel key. Id. Police obtained a search warrant for the motel room and found 118
grams of methamphetamine and a pistol. Id. After a bench trial, Mills was convicted of
possession with intent to distribute with a firearm enhancement. Id.
This court reversed the firearm enhancement, holding that the State failed to prove
Mills, the pistol, and the methamphetamine were ever in the motel room at the same time.
Id. at 234. We found the trial court incorrectly reasoned there was “potential” for Mills to
have been in the room with the pistol even though he was not present when the search
was executed. Id. at 236-37.
Neither of these cases are persuasive. Valdobinos came out nearly three decades
ago, is devoid of facts relating to the firearm enhancement, and contains only a cursory
analysis of the issue. And Mills is distinguishable: Mills had a key to the motel room with
the gun and drugs but was never seen there. Here, on the day of his arrest, police saw
Woods leave the Waller Road residence—a subsequent search of which revealed large
amounts drugs, drug selling equipment, and two weapons.
The nexus requirement simply requires a connection between Woods, the firearms,
and the controlled substances. The police arrested Woods after he left his residence
where two guns were hidden paces away from a kilogram of cocaine. While the drugs
were stowed all throughout the house and not directly next to the guns in the couch and
20
No. 37985-0-III
State v. Woods
chair, we view the evidence and inferences in the light most favorable to the State. To
establish a nexus, the State was not required to prove Woods had the guns on him at the
time of his arrest. O’Neal, 159 Wn.2d at 504. A kilogram of cocaine and numerous items
related to Woods’s drug operation were stashed within feet of the guns. A reasonable
jury could infer the firearms were used to protect Woods’s drug operation.
2. Major controlled substances violation
Woods next contends the State brought insufficient evidence that he committed a
major controlled substances violation justifying the sentence enhancement. Specifically,
he argues the State failed to prove he attempted to, or actually transferred, quantities of
controlled substances larger than for personal use. We disagree.
An exceptional sentence may be imposed for a major violation of the UCSA. A
major violation is “more onerous than the typical offense of its statutory definition.”
RCW 9.94A.535(3)(e). Any of the following factors turn an offense into a major offense:
(i) The current offense involved at least three separate transactions
in which controlled substances were sold, transferred, or possessed with
intent to do so;
(ii) The current offense involved an attempted or actual sale or
transfer of controlled substances in quantities substantially larger than for
personal use;
....
(iv) The circumstances of the current offense reveal the offender to
have occupied a high position in the drug distribution hierarchy;
21
No. 37985-0-III
State v. Woods
(v) The current offense involved a high degree of sophistication or
planning, occurred over a lengthy period of time, or involved a broad
geographic area of disbursement . . . .
Id.
When reviewing an insufficiency claim of this type, we compare the facts of the
case to an average violation of the UCSA. State v. Solberg, 122 Wn.2d 688, 703, 861
P.2d 460 (1993). For instance, the sale of one ounce of cocaine may constitute a major
violation when testimony establishes that one gram is a typical dose for personal use.
State v. Negrete, 72 Wn. App. 62, 69, 863 P.2d 137 (1993).
Here, viewing the evidence and inferences in the light most favorable to the State,
sufficient evidence supports the finding that Woods committed a major violation of the
UCSA. First, he had 8 3-gram packages of heroin and 1 baggie of cocaine on his lap
when he was arrested in his vehicle. Testimony established that typical street-level sales
are between 1 and 3 grams. This supports a finding that Woods intended to make more
than three transactions. Second, over 1,000 grams of cocaine were found in Woods’s
residence. If customers buy and use 1 to 3 grams at a time, this quantity is 333 to 1,000
typical doses. Third, testimony established that one must have cross-border connections
and established relationships to obtain a kilogram of cocaine. This supports a finding that
Woods occupies a higher position in a drug distribution hierarchy than a typical street-
22
No. 37985-0-III
State v. Woods
level dealer. Finally, Woods’s residence was filled with scales, substances to cut the
drugs with, empty pill capsules that he presumably filled with diluted product, and 18
boxes of plastic baggies. This supports a finding that Woods had a somewhat
sophisticated drug dealing operation.
Woods has not convinced us that any of the statutory factors do not apply. His
argument that there was no actual “delivery” or testimony that he planned to distribute the
drugs is weak. No recreational drug user has a kilogram of cocaine hidden in their
kitchen for personal use. The distribution paraphernalia paired with the sheer quantity of
cocaine alone supports a finding that Woods had intent to deliver the drugs. There is little
doubt that Woods’s offense was more onerous than a typical violation of the UCSA.
We conclude that the State presented sufficient evidence supporting the finding
that Woods was armed and that he committed a major violation of the UCSA.
D. SEVERANCE MOTION
Woods contends the trial court erred in denying his motion to sever the firearm
charges from the unlawful possession of controlled substances charges. We disagree.
CrR 4.3(a) permits joinder of charges where the offenses are of the same or similar
character, based on the same conduct, or are part of a single scheme or plan. State v.
23
No. 37985-0-III
State v. Woods
Bluford, 188 Wn.2d 298, 310, 393 P.3d 1219 (2017). Generally, joint trials are preferred
over separate trials. State v. Dent, 123 Wn.2d 467, 484, 869 P.2d 392 (1994).
“‘Severance’ refers to dividing joined offenses into separate charging documents.”
Bluford, 188 Wn.2d at 305-06. A defendant seeking severance must show that a joint
trial “‘would be so manifestly prejudicial as to outweigh the concern for judicial
economy.’” State v. Nguyen, 10 Wn. App. 2d 797, 815, 450 P.3d 630 (2019) (quoting
State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990)), review denied, 195 Wn.2d
1012, 460 P.3d 178 (2020). If the defendant does so, the court severs the charges to
“promote a fair determination of the defendant’s guilt or innocence of each offense.”
CrR 4.4(b).
We review a trial court’s ruling on a severance motion for abuse of discretion.
Dent, 123 Wn.2d at 484. In determining whether to grant a motion to sever, a trial court
considers: (1) the strength of the State’s evidence on each count, (2) the clarity of the
defenses, (3) jury instructions to consider each count separately, and (4) the admissibility
of evidence of the other charges if not joined for trial. State v. Sutherby, 165 Wn.2d 870,
884-85, 204 P.3d 916 (2009). The court then weighs the prejudice to the defendant
against judicial economy. State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994).
Prejudice may arise “when there is a risk that the jury will use the evidence of one crime
24
No. 37985-0-III
State v. Woods
to infer the defendant’s guilt for another crime or to infer a general criminal disposition.”
Sutherby, 165 Wn.2d at 883; accord State v. Watkins, 53 Wn. App. 264, 268, 766 P.2d
484 (1989). In cases where “joinder will cause clear, undue prejudice to the defendant’s
substantial rights, no amount of judicial economy can justify requiring a defendant to
endure an unfair trial.” Bluford, 188 Wn.2d at 311.
The State filed all counts on the same charging document: all charges arose from
Woods’s ongoing drug distribution enterprise. Joinder was appropriate here under
CrR 4.3(a) and Woods fails to persuasively argue that any of the four severance factors
weigh in his favor. Nonetheless, we proceed to analyze them.
First, there was strong and similar evidence of the firearms and controlled
substances violations. Charges may be joined unless the strength of the evidence
supporting each is so dissimilar as to create undue prejudice. Russell, 125 Wn.2d at 64.
The State found the drugs and weapons on Woods’s person, in his vehicle, and in his
residence; the evidence was the same for each charge. This factor weighs against
severance.
Second, Woods asserted the same defense for all charges: he argued the State
failed to prove his dominion and control over the drugs and firearms. Joinder does not
impede a defendant’s ability to present a defense when the defense is the same for all
25
No. 37985-0-III
State v. Woods
charges and is not mutually antagonistic. State v. Canedo-Astorga, 79 Wn. App. 518,
528, 903 P.2d 500 (1995). This factor weighs against severance.
Third, the jury was instructed to consider each count separately. Charges may
remain joined unless the jury cannot be instructed to consider each count separately.
Russell, 125 Wn.2d at 62-63. We presume the jury follows the court’s instructions. State
v. Lamar, 180 Wn.2d 576, 586, 327 P.3d 46 (2014).
Finally, although the evidence of the firearms charges would not have been cross-
admissible in a separate controlled substances trial, no undue prejudice resulted. The jury
would have heard evidence of the firearms in the drug trial even if the charges had been
severed because count 1 was charged with a firearm enhancement.
Woods’s reliance on Sutherby is misplaced. Sutherby involved charges of child
rape and child pornography, and the court emphasized the heightened risk of prejudice in
sex cases where the jury is less likely to follow instructions to consider counts separately.
165 Wn.2d at 883-84. This reasoning is inapplicable here. That Woods committed
controlled substance violations does not tend to show he also committed firearms
violations. The inherently prejudicial nature of the crimes in Sutherby is simply not
present here. We conclude that the trial court did not abuse its discretion in denying
Woods’s motion to sever the firearms charges from the controlled substances charges.
26
No. 37985-0-111
State v. Woods
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J. \
j
WE CONCUR:
Siddoway, A.CJ.
27