State of Washington v. Eric Allen Haggin

FILED
August 2, 2016
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. 33280-2-111
)
Respondent, )
)
V. ) OPINION PUBLISHED IN PART
)
ERIC ALLEN HAGGIN, )
)
Appellant. )
LAWRENCE-BERREY, J. - Eric Haggin appeals his convictions for two counts of
first degree unlawful possession of a firearm, possession of methamphetamine with intent
to deliver, possession of heroin with intent to deliver, use of drug paraphernalia, second
degree theft, and witness tampering. He raises six arguments on appeal.
In the published portion of this opinion, we address Mr. Haggin's fourth argument:
the trial court erred when it ran his two unlawful possession of firearm sentences
consecutively. We hold that the second sentence ofRCW 9.94A.589(l)(c) must be read
in tandem with the first sentence, so that multiple current convictions for unlawful
possession of firearm offenses result in concurrent sentences, unless there also is a current
conviction for theft of a firearm and/or possession of a stolen firearm. In the unpublished
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portion of this opinion, we address and generally reject Mr. Haggin's remaining
arguments. We therefore affirm in part and remand for resentencing in accordance with
this opinion.
FACTS
In August 2014, Christy Stransky and her boyfriend, Cordra Gill, traveled to
Ellensburg, Washington, so Mr. Gill could compete as a professional roper in the
Ellensburg Rodeo. During their stay, they went to a laundromat to wash their clothes.
Ms. Stransky put their clothes in the dryer and the two left. When they returned, their
clothes were not there. Ms. Stransky contacted the laundromat's owner and they watched
the laundromat's surveillance video. On the video, Ms. Stransky saw a man come in,
open the dryer that her and Mr. Gill's clothes were in, and take them. Ms. Stransky
eventually called the police.
The laundromat's owner showed Officer Josh Ingraham the video and Officer
Ingraham recognized Mr. Haggin as the man who took the clothes. Officer Ingraham
obtained a warrant to search Mr. Haggin's apartment for the clothing. The police went to
the apartment where Mr. Haggin and his girlfriend, Asenet Diaz, both lived. The police
searched the apartment and found the missing clothing. While searching the apartment,
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Officer Ingraham saw a tray of suspected heroin, methamphetamine, and drug
paraphernalia.
Officer Ingraham showed the tray to Detective Klifford Caillier, who then left and
applied for a warrant to search for controlled substances. Officer Ingraham then found a
pistol in a backpack and a revolver inside a box on a dresser. There were two dressers in
the room, and the dresser with the revolver on top of it had female clothing in it, as well
as makeup and feminine products on it. Detective Caillier believed this dresser was Ms.
Diaz's.
The officers executed the second warrant and found a plastic bag and a tin in the
freezer that contained suspected heroin. Detective Caillier also searched the backpack,
which contained baggies of suspected heroin and large quantities of suspected
methamphetamine in rock form. Detective Caillier also found digital scales and ledgers.
The State charged Mr. Haggin and Ms. Diaz with possession of a stolen firearm,
possession of methamphetamine with intent to deliver, possession of heroin with intent to
deliver, and two counts of use of drug paraphernalia. The State also charged Mr. Haggin
individually with two counts of first degree unlawful possession of a firearm and second
degree theft. Ms. Diaz pleaded guilty to solicitation to possess a controlled substance
with intent to deliver and possession of a stolen firearm.
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The jury convicted Mr. Haggin of both counts of first degree unlawful possession
of a firearm, both counts of possession of a controlled substance with intent to deliver,
both counts of use of drug paraphernalia, second degree theft, and tampering with a
witness. The jury also returned a special verdict finding that Mr. Haggin was armed with
a firearm at the time he committed both counts of possession with intent to deliver. The
jury acquitted Mr. Haggin of possession of a stolen firearm.
The trial court sentenced Mr. Haggin to 101 months' incarceration on both
unlawful possession of a firearm counts and ordered both sentences to run consecutively.
The trial court ran the remaining sentences concurrently. The trial court sentenced Mr.
Haggin to 36 months' confinement on each firearm enhancement, and ran each
enhancement consecutively to the end of the sentence. The trial court also imposed 12
months' community custody to follow Mr. Haggin's terms of confinement for his
possession with intent to deliver convictions. Mr. Haggin appeals.
ANALYSIS
A. CONSECUTIVE SENTENCES FOR UNLAWFUL POSSESSION OF FIREARM
CONVICTIONS AND RCW 9.94A.589(l)(c)
Mr. Haggin argues the trial court erred when it ran his two sentences for
unlawful possession of a firearm consecutively. The parties dispute the meaning of
RCW 9.94A.589(l)(c), which provides:
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If an offender is convicted under RCW 9 .41.040 for unlawful possession of
a firearm in the first or second degree and for the felony crimes of theft of a
firearm or possession of a stolen firearm, or both, the standard sentence
range for each of these current offenses shall be determined by using all
other current and prior convictions, except other current convictions for the
felony crimes listed in this subsection ( 1)( c), as if they were prior
convictions. The offender shall serve consecutive sentences for each
conviction of the felony crimes listed in this subsection ( 1)( c), and for each
firearm unlawfully possessed.
The fundamental goal of statutory interpretation is to discern and implement the
legislature's intent. State v. JP., 149 Wash. 2d 444, 450, 69 P.3d 318 (2003). When
interpreting a statute, courts look first to the statute's plain meaning. State v. Armendariz,
160 Wash. 2d 106, 110, 156 P .3d 201 (2007). "Plain meaning is discerned from the
ordinary meaning of the language at issue, the context of the statute in which that
provision is found, related provisions, and the statutory scheme as a whole." Christensen
v. Ellsworth, 162 Wash. 2d 365, 373, 173 P.3d 228 (2007). "If the statutory language is
susceptible to more than one reasonable interpretation, then a court may resort to statutory
construction, legislative history, and relevant case law for assistance in discerning
legislative intent." Id.
This court construes the meaning of a statute by reading it in its entirety and
considering its relation with other statutes. Dep 't ofEcology v. Campbell & Gwinn, LLC,
146 Wash. 2d 1, 11, 43 P.3d 4 (2002). Statutes relating to the same subject matter must be
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construed together. Hallauer v. Spectrum Prop., Inc., 143 Wash. 2d 126, 146, 18 P.3d 540
(2001) (quoting In re Pers. Restraint of Yim, 139 Wn.2d 581,592,989 P.2d 512 (1999)).
Statutes relating to the same subject matter "' are to be read together as constituting a
unified whole, to the end that a harmonious, total statutory scheme evolves which
maintains the integrity of the respective statutes.'" Id. (quoting State v. Wright, 84
Wn.2d 645,650,529 P.2d 453 (1974)). Statutory interpretation is a question of law this
court reviews de novo. State v. Gonzalez, 168 Wash. 2d 256, 263, 226 P.3d 131 (2010).
The issue here is whether RCW 9.94A.589(l)(c) requires consecutive sentences
when a defendant is convicted of multiple counts of unlawful possession of a firearm, but
is not convicted of either firearm theft or possession of a stolen firearm. The crux of the
issue is whether RCW 9.94A.589(l)(c)'s second sentence functions independently of the
first sentence, as if it were its own separate statute, or whether the second sentence only
functions in tandem with the first sentence. Because it is not clear how the second
sentence functions with respect to the first, there is an ambiguity that requires this court to
apply rules of statutory construction.
The State argues the sentences function independently. This would mean that trial
courts must run all sentences for unlawful possession, firearm theft, and possession of a
stolen firearm consecutively, in addition to consecutive sentences for every firearm. In
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contrast, Mr. Haggin argues the second sentence only applies when a person is convicted
of unlawful possession and either theft of a firearm or possessing a stolen firearm.
Because the jury acquitted him of possessing a stolen firearm, he contends that RCW
9.94A.589(l)(c) does not apply and RCW 9.94A.589(l)(a) controls, which requires
concurrent sentences.
I. Canons ofstatutory construction
Several canons of statutory construction support Mr. Haggin' s interpretation.
First, the principle that a statute should be construed by reading it in its entirety supports
interpreting RCW 9.94A.589(l)(c) so the second sentence modifies the first sentence.
The principle that construing statutes together when they relate to the same subject
matter also supports this interpretation. A similar provision, RCW 9.41.040(6), provides
in relevant part:
Notwithstanding any other law, if the offender is convicted under this
section for unlawful possession of a firearm in the first or second degree
and for the felony crimes of theft of a firearm or possession of a stolen
firearm, or both, then the offender shall serve consecutive sentences for
each of the felony crimes of conviction listed in this subsection.
This provision states the rule more clearly: a trial court can only impose consecutive
sentences when the defendant is convicted of unlawful possession and either theft of a
firearm or possession of a stolen firearm. Thus, under RCW 9 .41.040(6), if a person is
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convicted of multiple counts but only in one category (i.e., multiple counts of unlawful
possession), the trial court must run those sentences concurrently. Interpreting
RCW 9.94A.589(l)(c) consistently with RCW 9.41.040(6) results in a harmonious,
unified statutory scheme.
2. Relevant case law
Although no published case explicitly addresses this ambiguity, relevant case law
supports Mr. Haggin's interpretation. In Murphy, the jury convicted Thomas Murphy of
five counts of firearm theft and five counts of unlawful possession. State v. Murphy, 98
Wash. App. 42, 45,988 P.2d 1018 (1999). The trial court ran the five theft counts
concurrently with one another and the five unlawful possession counts concurrently with
one another, but ran the two groups of firearm counts consecutively to one another. Id. at
46. The Murphy court reversed, finding that under RCW 9.41.040(6) "the trial court
should have run each of [Mr.] Murphy's 10 firearm theft and unlawful possession
convictions consecutively to one another." Id. at 49.
In doing so, the Murphy court acknowledged that the legislature had recently
amended the Hard Time for Armed Crime Act (HTACA) to include the provision at issue
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in this case. 1 Id. at 48 n.7. The court noted that it "view[ ed] this amendment, not as a
change to the effect of the statute as previously worded, but rather as an underscore that
the Legislature meant what it said originally in the plain language of [RCW 9.41.040(6)],
as prefaced by 'Notwithstanding any other law."' Id. (emphasis added); see also State v.
Haddock, 141 Wn.2d 103,115 n.7, 3 PJd 733 (2000) ("LAWS OF 1998, ch. 235, § 2
added subsection ( 1)( c) relating to serving consecutive sentences for crimes involving
both possession of a firearm and theft of a firearm or possession of a stolen firearm.")
(emphasis added).
3. Legislative history
Finally, RCW 9.94A.589(1)(c)'s legislative history supports Mr. Haggin's
interpretation. In 1995, the legislature passed the HTACA. LAWS OF 1995, ch. 129. The
HTACA originally included RCW 9.41.040(6). 2 See LAWS OF 1995, ch. 129, § 16(6).
The purpose of this subsection, according to the House Bill Report, was to establish that
If the person is also serving time for possession of a stolen firearm or
stealing a firearm, the time served for unlawful possession of firearms must
be served consecutively with the other offenses.
1
At the time, the provision was codified as former RCW 9 .94A.400(1 )( c ). In
2001, the legislature recodified former RCW 9.94A.400 as RCW 9.94A.589, but did not
make any substantive changes. See LA ws OF 2001, ch. 10, § 6.
2
The legislature has never amended RCW 9 .41.040(6).
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H.B. REP. ON INITIATIVE 159, at 6, 54th Leg., Reg. Sess. (Wash. 1995).
In 1998, the legislature enacted former RCW 9.94A.400(1)(c):
If an offender is convicted under RCW 9 .41.040 for unlawful possession of
a firearm in the first or second degree and for the felony crimes of theft of a
firearm or possession of a stolen firearm, or both, then the offender shall
serve consecutive sentences for each conviction of the felony crimes listed
in this subsection, and for each firearm unlawfully possessed.
LAWS OF 1998, ch. 235, § 2(1)(c). Former RCW 9.94A.400(l)(c) was virtually
identical to RCW 9.41.040(6). As noted above, the Murphy court interpreted
former RCW 9.94A.400(1)(c) and RCW 9.41.040(6) as having the same meaning.
Murphy, 98 Wash. App. at 48 n.7. The stated purpose of the amendments was to
amend[] the Sentencing Reform Act [of 1981, chapter 9.94A RCW] to
provide that sentences must be served consecutively for the multiple
offenses of unlawful possession of a firearm in the first or second degree
and possession of a stolen firearm or theft of a firearm, but that current
weapon-related offenses may not be considered in criminal history when
calculating the offender score to determine the sentence range.
FINAL H.B. REP. ON H.B. 1544, at 3, 56th Leg., Reg. Sess. (Wash. 1999).
However, after the former RCW 9.94A.400 amendments went into effect, the
legislature determined that "[t]he language of the bill had an unintended effect of
preventing the consideration of any current offense when calculating the offender score."
FINAL H.B. REP. ON H.B. 1544, at 3, 56th Leg., Reg. Sess. (Wash. 1999). Accordingly,
the next year the legislature "amend[ ed] the statute for persons convicted of multiple
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firearm offenses to allow consideration of any current and prior convictions except other
current weapons related convictions when calculating the offender score." S.B. REP. ON
H.B. 1544, at 2, 56th Leg., Reg. Sess. (Wash. 1999).
This 1999 amendment separated former RCW 9.94A.400(l)(c) into two different
sentences. See LAWS OF 1999, ch. 352, § 1 l(l)(c). The first sentence clarified that all
current and prior convictions must be added to the defendant's offender score except
current weapons-related convictions. The second sentence-which states that the
defendant must serve consecutive sentences on each conviction for the crimes in this
subsection and for each firearm unlawfully possessed-remained the same as it did before
the amendment.
The legislative history expressly states that the purpose of the amendment that
separated RCW 9.94A.589(1)(c) into two sentences was to make sentencing courts
calculate other nonweapons-related current offenses into defendants' offender scores.
The legislature never intended for the second sentence in RCW 9.94A.589(1)(c) to
operate independently from the rest of subsection (l)(c). RCW 9.94A.589(1)(c) only
requires trial courts to run sentences consecutively when a person is convicted of
unlawful possession in addition to firearm theft or possession of a stolen firearm.
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RCW 9.94A.589(1)(c) does not apply here because the jury acquitted Mr. Haggin
of possessing a stolen firearm and, therefore, the trial court erred when it ran his two
unlawful possession of a firearm sentences consecutively. The trial court should have run
the sentences concurrently per RCW 9.94A.589(1)(a).
Remanded for resentencing. In the unpublished portion of this opinion, we affirm
Mr. Haggin's convictions.
A majority of the panel has determined that only the forgoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder,
having no precedential value, shall be filed for public record pursuant to RCW 2.06.040.
ADDITIONAL FACTS
While awaiting trial in the county jail, Mr. Haggin called an unknown female
through the jail's telephone system. Mr. Haggin asked the female to find Ms. Stransky on
Facebook and offered to compensate her for dropping the charges. The jail's telephone
system recorded Mr. Haggin's telephone conversation and Detective Caillier listened to it
the next day. No one other than the police and prosecutor's office ever contacted Ms.
Stransky about the case.
The State amended the information to include a witness tampering charge and an
additional count of first degree unlawful possession of a firearm. In the amended
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information, the State alleged that Mr. Haggin or an accomplice was armed with a firearm
during the commission of each of the possession with intent to deliver offenses.
Detective Caillier testified at trial. He testified that a person who has drugs for
personal use has a small amount-one gram or less of methamphetamine and one-half a
gram of heroin. He testified that the methamphetamine he found in the backpack was the
size of a racquet ball and he recognized this amount to be larger than an amount for
personal use. He later testified that the money he found in Mr. Haggin's wallet was
indicative of money from drug sales. Mr. Haggin did not object to any of this testimony.
Ms. Diaz testified the revolver in the box on the dresser was hers, as well as the
backpack that contained the pistol and suspected methamphetamine. In closing, Mr.
Haggin argued the guns and drugs were Ms. Diaz's, Ms. Diaz was the person dealing the
drugs, and he was not aware the guns and drugs were in the house. The State argued both
guns belonged to Mr. Haggin.
The trial court instructed the jury regarding the deadly weapon special verdict for
the possession with intent to deliver charges. Instruction 38 provided in part, "[i]f one
participant to a crime is armed with a deadly weapon, all accomplices to that participant
are deemed to be so armed, even if only one deadly weapon is involved." Clerk's Papers
(CP) at 139. Mr. Haggin did not object to the instruction.
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During deliberations, the jury had the bailiff deliver the following question to the
court:
For [the] special verdict, since [Ms.] Diaz plead guilty to possession with
intent to distribute and claimed [the] firearms were hers, is [Mr.] Haggin
considered an accomplice for purposes of instruction 3 8 lines 14-15 [?]
CP at 142. Mr. Haggin asked the trial court to answer the question "no," arguing that he
was not charged under an accomplice theory and that telling the jury to reread the
instructions would result in the jury convicting him based on an uncharged element. The
State asked the trial court to refer the jury to the instructions, but added that perhaps the
term "accomplice" should have been defined. Mr. Haggin did not argue for the court to
define "accomplice." The trial court, unsure of what the jury was thinking and not
wanting to lead them one direction or another, responded to the question by telling the
jury to refer to the instructions.
The judgment and sentence stated that Mr. Haggin's legal financial obligation
(LFO) payments would "commenc[e] upon release." CP at 168. The trial court attached
an appendix to the judgment and sentence that stated Mr. Haggin's first payment "shall be
due 30 days from the date of ... the Judgment and Sentence was signed in court." CP at
174.
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ADDITIONAL ANALYSIS
A. OPINION TESTIMONY
Mr. Haggin argues that the State improperly solicited opinion testimony from
Detective Caillier that the quantity of drugs was too great for personal use and that the
money in Mr. Haggin's wallet looked like it came from drug sales. 3 Mr. Haggin argues
this testimony invaded the province of the jury.
Under ER 704, "[t]estimony in the form of an opinion or inferences otherwise
admissible is not objectionable because it embraces an ultimate issue to be decided by the
trier of fact." However, lay and expert witnesses may not testify as to the guilt of the
defendants, either directly or by inference. State v. Olmedo, 112 Wash. App. 525, 530, 49
P.3d 960 (2002). The question of whether a witness's testimony constitutes an
impermissible opinion on the defendant's guilt is determined from the circumstances of
each case. Id. at 531.
Generally, improper opinions on guilt involve an assertion pertaining directly to
the defendant. City of Seattle v. Heatley, 70 Wash. App. 573, 577, 854 P.2d 658 (1993);
State v. Sanders, 66 Wash. App. 380, 387, 832 P.2d 1326 (1992). Opinion testimony is not
3
Officer Ingraham also testified about the quantities of methamphetamine and
heroin that personal users typically purchase, and Dr. Edward Suzuki testified about the
average quantities of the drugs he analyzes. Mr. Haggin only challenges Detective
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improper if it is not a direct comment on the defendant's guilt, is otherwise helpful to the
jury, and is based on inferences from the evidence. Heatley, 70 Wash. App. at 578.
However, an opinion about a defendant's guilt is more likely to be improper when it is
given by a police officer or other government official because it carries an "aura of
reliability." State v. Montgomery, 163 Wn.2d 577,595, 183 P.3d 267 (2008).
In Sanders, the police searched Betty Sanders's apartment and found a plate with
two large balls of crack cocaine on it, but did not find any used drug paraphernalia.
Sanders, 66 Wash. App. at 381-82. The State charged Ms. Sanders with possession with
intent to deliver and at trial the prosecutor asked the officer if there was "' any
significance in the absence of implements used to smoke crack cocaine.'" Id. at 383.
The officer responded that "' the lack of items associated with the smoking of crack
cocaine indicates that that house is not used for that purpose and the persons within do
not do so frequently at all.'" Id. at 384.
The Sanders court held the officer's testimony was not an improper opinion on
Ms. Sanders's guilt, reasoning that it was an inference based solely on the physical
evidence and the officer's experience, the officer did not express any direct opinion as to
Caillier' s testimony.
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Ms. Sanders's guilt or credibility, and the testimony left the question of whether Ms.
Sanders unwittingly possessed the cocaine to the jury. Id. at 388-89.
Mr. Haggin relies on Montgomery. In Montgomery, the detectives followed the
defendants from store to store where the defendants purchased various ingredients that
could be used to manufacture methamphetamine. Montgomery, 163 Wash. 2d at 585. The
State charged Mr. Montgomery with possessing pseudoephedrine with intent to
manufacture. Id. at 586. At trial the detective testified:
"I felt very strongly that they were, in fact, buying ingredients to
manufacture methamphetamine based on what they had purchased, the
manner in which they had done it, going from different stores, going to
different checkout lanes. I'd seen those actions several times before."
Id. at 587-88. Another detective testified that '"those items were purchased for
manufacturing."' Id. 588. Later, the State's forensic chemist looked at the combined
purchases and testified that "' these are all what lead me toward this pseudoephedrine is
possessed with intent.'" Id.
The Montgomery court held that all of this testimony was an improper opinion on
Mr. Montgomery's guilt. Id. at 595. The court stated that the opinions went to the core
issue of Mr. Montgomery's intent, used explicit expressions of personal belief, once even
parroted the legal standard, and although the opinions contained an "aura of reliability,"
police officers' opinions on guilt actually have low probative value. Id. at 594-95.
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At trial, Mr. Haggin did not object to any of Detective Caillier's opinion testimony.
This court generally declines to address issues not raised below. See RAP 2.5(a). One
exception to this general rule is a manifest constitutional error. See RAP 2.5(a)(3).
"Permitting a witness to testify as to the defendant's guilt raises a constitutional issue
because it invades the province of the jury and the defendant's constitutional right to a
trial by jury." Olmedo, 112 Wash. App. at 533; accord State v. Kirkman, 159 Wash. 2d 918,
927, 155 P.3d 125 (2007).
However, RAP 2.5(a)(3) also requires an appellant to show the error was
"manifest," which requires a plausible showing "'that the asserted error had practical and
identifiable consequences in the trial of the case."' Kirkman, 159 Wash. 2d at 935 (internal
quotation marks omitted) (quoting State v. WWJ Corp., 138 Wash. 2d 595, 603, 980 P.2d
1257 (1999)). For a witness's opinion testimony to constitute "manifest error," the
witness's testimony must include an "explicit or almost explicit" opinion on the
defendant's guilt. Kirkman, 159 Wash. 2d at 937. We apply this standard to our analysis.
1. Testimony about personal use amounts
Mr. Haggin first argues the following was improper opinion testimony:
[State:] Do you know-have you had a chance to investigate
personal use cases where people just have drugs for their own personal use?
[Detective Caillier:] Yes, numerous times. On patrol mainly is
where I dealt with that.
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[State:] And when you're dealing with somebody who has drugs for
personal use, is there typically a quantity you're used to seeing?
[Detective Caillier:] Yes. It's a very small, small amount.
[State:] And when you say small amount, what does that mean to
you?
[Detective Caillier:] I normally what I would see is a gram or less of
methamphetamine and heroin was usually less than a gram, half a gram.
[State:] Okay. So when you see cases where there's a 100 or more
grams of methamphetamine what does that indicate to you, if anything?
[Detective Caillier:] That that's no longer being used for personal
use.
[State:] Okay. What about heroin, what's typical to see somebody
have for personal use, if you know?
[Detective Caillier:] The best way I can describe heroin personal use
is if you took a raisin and you cut it in half ... usually what we see on a
personal level is about your fingertip, the size of a raisin, usually looks kind
of like [a] raisin squished down. That's about what you're getting .... I
mean, you're looking at about a gram, half a gram.
Report of Proceedings (RP) at 89-90.
This testimony was not an explicit or almost explicit opinion on Mr. Haggin's
guilt. Although Detective Caillier's testimony carried an "aura of reliability," he only
described what quantities of methamphetamine and heroin are generally consistent with
personal use. This was general background information based on Detective Caillier's
experience, was helpful to the jury, and was not an assertion that pertained directly to Mr.
Haggin. See Heatley, 70 Wash. App. at 577-78.
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2. Testimony about methamphetamine in backpack
Later, the State questioned Detective Caillier about his search of the backpack.
Mr. Haggin argues the following was an improper opinion on his guilt:
[State:] Okay. And then No. 40, what's that show?
[Detective Caillier:] Those are the bags that were located inside that
previous photo that you just looked at.
[State:] Okay, and did you have an idea of what was contained in
these bags when you took them out?
[Detective Caillier:] Yes. Based on my training and experience, I
recognized it to be methamphetamine on a larger scale other than just
personal-what I recognize as personal use.
[State:] Okay, and you say a larger scale. What do you mean? What
are you talking about for those of us that don't [use] methamphetamine.
[Detective Caillier:] Typically a user amount like Officer Ingraham
also described. I mean, we're looking at about one gram of
methamphetamine and in its state used on the personal level, it's a little tiny
sometimes specks almost. . . . This-in this-in its form were large shards
and then even as to say, the size of [a] racquet ball, the one piece. I mean,
the best I can describe is the size of [a] racquet ball so you're looking about
that big. When you go from a gram of methamphetamine that can take a
little one inch by one inch approximately bag that we see normally used for
personal use and you barely, you know, line the bottom of it. That's what
we're looking at. I mean, that's what personal use is and that's all broken
down material. This is not one gram of methamphetamine.
[State:] This is-is it safe to say this is a lot of methamphetamine?
[Detective Caillier:] Yes.
[State:] Have you ever personally seen this much
methamphetamine?
[Detective Caillier:] No. I've only seen user amounts-
[State:] Okay.
[Detective Caillier:] -several grams.
RP at 128.
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This also was not an explicit or almost explicit opinion on Mr. Haggin's guilt.
Detective Caillier described the methamphetamine he found in the backpack as being
greater than a typical amount for personal use, but this testimony did not pertain directly
to Mr. Haggin. Like the testimony at issue in Sanders, Detective Caillier made an
inference based on the physical evidence and his experience.
3. Testimony about money in wallet
The State questioned Detective Caillier about various other items that were in the
apartment. One of these items was a wallet, which Detective Caillier identified as Mr.
Haggin's. Mr. Haggin argues the following was improper opinion testimony:
[State:] And what was in the wallet?
[Detective Caillier:] I believe it was over $800.00 in cash ....
. . . I believe I broke it down into hundred dollar stacks, and most of
it consisted of 20 dollar bills which based on my training and experience is
indicative of money from drug sales.
RP at 136.
Unlike the prior challenged testimony, this testimony directly involved Mr.
Haggin. However, unlike the officers' testimony in Montgomery, Detective Caillier did
not testify directly about Mr. Haggin's guilt or intent, did not use explicit expressions of
his personal belief, nor did he parrot the legal standard. Although it is a closer call than
the prior testimony, Kirkman requires a witness to state an "explicit or almost explicit"
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opinion on the defendant's guilt for unobjected to testimony to constitute manifest error.
Detective Caillier's testimony about the money in Mr. Haggin's wallet does not meet that
high standard.
We conclude that Detective Caillier's various opinions were not improper and
certainly were not so improper to constitute manifest constitutional error.
B. SUFFICIENCY OF EVIDENCE FOR WITNESS TAMPERING
Mr. Haggin argues that the State's evidence was insufficient to support his
conviction for witness tampering because he never asked Ms. Stransky to withhold
testimony, recant, or not show up for court. He argues he never actually contacted Ms.
Stransky, and only instructed the female on the telephone to offer to pay for Ms.
Stransky's lost clothing to see if she would drop the charges.
In a criminal case, the State must provide sufficient evidence to prove each
element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). When a defendant challenges the
sufficiency of the evidence, the proper inquiry 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." State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068
22
No. 33280-2-III
State v. Haggin
(1992). "[A]ll reasonable inferences from the evidence must be drawn in favor of the
State and interpreted most strongly against the defendant." Id.
This court's role is not to reweigh the evidence and substitute its judgment for that
ofthejury. State v. Green, 94 Wn.2d 216,221,616 P.2d 628 (1980). Instead, because
the jurors observed the witnesses testify firsthand, this court defers to the jury's resolution
of conflicting testimony, evaluation of witness credibility, and decision regarding the
persuasiveness and the appropriate weight to be given the evidence. State v. Thomas, 150
Wash. 2d 821, 874-75, 83 P.3d 970 (2004).
RCW 9A.72.120 defines the crime of witness tampering:
( 1) A person is guilty of tampering with a witness if he or she
attempts to induce a witness or person he or she has reason to believe is
about to be called as a witness in any official proceeding or a person whom
he or she has reason to believe may have information relevant to a criminal
investigation ... to:
(a) Testify falsely or, without right or privilege to do so, to withhold
any testimony; or
(b) Absent himself or herself from such proceedings; or
(c) Withhold from a law enforcement agency information which he
or she has relevant to a criminal investigation ....
In arguing that the evidence was insufficient to support his convictions, Mr.
Haggin cites State v. Rempel, 114 Wash. 2d 77, 785 P.2d 1134 (1990). In Rempel, the State
charged Dale Rempel with attempted rape. Id. at 81. Mr. Rempel called the victim from
23
No. 33280-2-III
State v. Haggin
jail and apologized, stated "'it'" was going to ruin his life, and asked the victim to "' drop
the charges."' Id. at 83.
The court first looked at Mr. Rempel's literal words, noting they did not contain a
request to withhold testimony, an express threat, or a promise of any reward, but rather
reflected a lay person's perception that the complaining witness can cause a prosecution
to be discontinued. Id.
Although Mr. Rempel's literal words did. not contain an attempt to induce the
victim to withhold testimony, the court reasoned the State "is entitled to rely on the
inferential meaning of the words and the context in which they were used." Id. at 83-84.
While the court found that the words "drop the charges" could sustain a conviction in the
right factual context, the context of Mr. Rempel's conversation did not lead to a
reasonable inference that he actually attempted to induce the victim to withhold
testimony. Id. at 84.
Here, the State offered the recording of the jail call between Mr. Haggin and the
unknown female to support its witness tampering charge:
"MR. HAGGIN: Stransky.
FEMALE: Stransky.
MR. HAGGIN: That is the person, ifyou can find her on Facebook.
That is the person that I accidentally took her clothes-
FEMALE: I'm going to find her FB. It's the girl that supposedly
(inaudible).
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No. 33280-2-III
State v. Haggin
MR. HAGGIN: Not supposedly, I accidentally took this female's
clothes and it was an accident.
FEMALE: Okay.
MR. HAGGIN: Get a hold of her ifyou can and ask her what she
wants for ... the inconvenience.
FEMALE: I'm supposed to ask her what she wants for
compensation for the inconvenience.
MR. HAGGIN: Feel me?
FEMALE: Yes, I gotcha.
MR. HAGGIN: That's my second degree theft. See what-if she 'II
drop charges or if-she don't have to drop charges but if she'd be
interested in being compensated whatever she wants-
FEMALE: I got it, I got it.
MR. HAGGIN: -to drop charges.
FEMALE: Yeah, I'm looking her up right now."
RP at 165-66.
Rempel is distinguishable. Unlike in Rempel, where Mr. Rempel asked the victim
to drop the charges but did not promise any reward, Mr. Haggin instructed the female to
see if Ms. Stransky would "' be interested in being compensated whatever she wants ...
to drop charges."' RP at 166. A rational jury could have interpreted Mr. Haggin's
statement as an attempt to bribe Ms. Stransky to withhold her testimony.
Mr. Haggin argues that the evidence is insufficient because he never actually
contacted Ms. Stransky. However, witness tampering does not require actual contact with
the witness but only an attempt to alter the witness's testimony. State v. Williamson, 131
Wash. App. 1, 6, 86 P.3d 1221 (2004) (sufficient evidence supported witness tampering
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No. 33280-2-III
State v. Haggin
conviction where defendant asked a third party to tell the victim to recant her allegations
of sexual abuse), review granted, 154 Wash. 2d 1031, 119 P.3d 852 (2005).
Mr. Haggin also argues he was simply offering to pay Ms. Stransky for the lost
clothing. This argument asks this court to reweigh evidence and substitute its
interpretation of the conversation for the jury's. That is not this court's role. Mr.
Haggin's innocent explanation that he was offering to pay for the lost clothing was an
appropriate jury argument, but the jury did not believe him. See State v. Brockob, 159
Wn.2d 311,337, 150 P.3d 59 (2006) (when evidence supports both innocent and criminal
explanation, jury is entitled to infer guilt). This court reviews the evidence in the light
most favorable to the jury's verdict. We conclude sufficient evidence supports Mr.
Haggin's witness tampering conviction.
C. JURY INSTRUCTION FOR DEADLY WEAPON ENHANCEMENT
Mr. Haggin argues the jury instruction for the deadly weapon enhancement
relieved the State of its burden of proof because it allowed the jury to find that he was
armed based on Ms. Diaz's conduct, but failed to instruct the jury on the definition of
accomplice liability.
This court reviews alleged errors of law in jury instructions de nova. State v.
Willis, 153 Wash. 2d 366, 370, 103 P.3d 1213 (2005). "Jury instructions are proper when
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No. 33280-2-III
State v. Haggin
they permit the parties to argue their theories of the case, do not mislead the jury, and
properly inform the jury of the applicable law." Id.
RCW 9.94A.825 authorizes the jury to return a special verdict when there is
"evidence establishing that the accused or an accomplice was armed with a deadly
weapon at the time of the commission of the crime." An affirmative finding on the
special verdict results in an increase of the defendant's sentence. See
RCW 9.94A.533(3). WPIC 2.07.02 is the standard instruction for deadly weapon special
verdicts when the only weapon the defendant allegedly used is a firearm. See 11
WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL
(WPIC) 2.07 .02, at 48 (3d ed. 2008).
In this case, the trial court gave instruction 38, which is virtually identical to
WPIC 2.07.02:
For purposes of a special verdict the State must prove beyond a
reasonable doubt that the defendant was armed with a deadly weapon at the
time of the commission of the crime in Counts three and four (Possession
with Intent to Deliver Controlled Substances).
A person is armed with a deadly weapon if, at the time of the
commission of the crime, the weapon is easily accessible and readily
available for offensive or defensive use. The State must prove beyond a
reasonable doubt that there was a connection between the weapon and the
defendant. The State must also prove beyond a reasonable doubt that there
was a connection between the weapon and the crime. In determining
whether these connections existed, you should consider, among other
factors, the nature of the crime and the circumstances surrounding the
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No. 33280-2-III
State v. Haggin
commission of the crime, including the location of the weapon at the time
of the crime and the type of weapon.
If one participant to a crime is armed with a deadly weapon, all
accomplices to that participant are deemed to be so armed, even if only one
deadly weapon is involved.
A pistol, revolver, or any other firearm is a deadly weapon whether
loaded or unloaded.
CP at 139.
The third paragraph in WPIC 2.07.02 is in brackets. See WPIC 2.07.02, at 48 ("[If
one participant to a crime is armed with a deadly weapon, all accomplices to that
participant are deemed to be so armed .... ]"). WPIC 2.07.02's "note on use" provides
that "[i]fthe bracketed material on accomplices is used, use WPIC 10.51, Accomplice-
Definition, with this instruction."4 Id. at 49. The trial court never gave WPIC 10.51.
4
WPIC 10.51 provides:
[A person is guilty of a crime if it is committed by the conduct of
another person for which he or she is legally accountable. A person is
legally accountable for the conduct of another person when he or she is an
accomplice of such other person in the commission of the crime.]
A person is an accomplice in the commission of a crime if, with
knowledge that it will promote or facilitate the commission of the crime, he
or she either:
( 1) solicits, commands, encourages, or requests another person to
commit the crime; or
(2) aids or agrees to aid another person in planning or committing the
cnme.
The word "aid" means all assistance whether given by words, acts,
encouragement, support, or presence. A person who is present at the scene
and ready to assist by his or her presence is aiding in the commission of the
28
No. 33280-2-III
State v. Haggin
Here, instruction 3 8 was a proper statement of the applicable law: RCW
9.94A.825. It allowed both sides to argue their theories of the case: the State argued both
guns belonged to Mr. Haggin, and Mr. Haggin argued they both belonged to Ms. Diaz.
However, the jury was likely confused because both parties presented evidence
connecting the guns to Ms. Diaz (Detective Caillier testified the revolver was on Ms.
Diaz's dresser, and Ms. Diaz testified both guns were hers), and the trial court did not
give WPIC 10.51 despite WPIC 2.07.02's "note on use." The jury's confusion was
evidenced by the question it submitted during deliberations asking if Mr. Haggin was
"considered an accomplice for purposes of instruction 38." CP at 142.
Generally, a defendant cannot challenge a jury instruction on appeal ifhe or she
did not object to the instruction in the trial court. State v. Salas, 127 Wash. 2d 173, 181, 897
P.2d 1246 (1995). Mr. Haggin did not object to the jury instruction when the court asked
for objections. Also, Mr. Haggin did not argue later, when discussing the jury's question
to the court, that the term "accomplice" should be defined. He had the opportunity to
crime. However, more than mere presence and knowledge of the criminal
activity of another must be shown to establish that a person present is an
accomplice.
[A person who is an accomplice in the commission of a crime is
guilty of that crime whether present at the scene or not.]
WPIC 10.51,at217.
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No. 33280-2-III
State v. Haggin
argue this when the State mentioned that perhaps the instructions should have included a
definition for "accomplice."
"The failure to instruct a jury on every element of a charged crime is an error of
constitutional magnitude." State v. Gordon, 172 Wash. 2d 671, 677, 260 P.3d 884 (2011);
accord State v. Eastmond, 129 Wash. 2d 497, 502, 919 P.2d 577 (1996) (omission of
specific intent element of assault was manifest constitutional error under RAP 2.5(a)(3)).
But "[a]s long as the instructions properly inform the jury of the elements of the charged
crime, any error in further defining terms used in the elements is not of constitutional
magnitude." State v. Stearns, 119 Wash. 2d 247, 250, 830 P.2d 355 (1992) (where drug
crime included element of intent to manufacture or deliver, failure to define
"manufacture" was not of constitutional magnitude); accord State v. Scott, 110 Wash. 2d
682, 691-92, 757 P.2d 492 (1988) (conviction for burglary under accomplice theory not
constitutionally flawed where instructions failed to define "knowledge" element of
accomplice liability). "Even an error in defining technical terms does not rise to the level
of constitutional error." Stearns, 119 Wash. 2d at 250.
The trial court instructed the jury as to the elements constituting the deadly weapon
special verdict. This is sufficient so that the alleged error is not of constitutional
magnitude. Moreover, the term "accomplice" is a well-understood term. If, as Stearns
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No. 33280-2-III
State v. Haggin
holds, the failure to define even a technical term does not rise to the level of constitutional
magnitude, we cannot fathom how the failure to define a well-understood term does. We
conclude that the alleged instructional error does not rise to one of constitutional
magnitude, and decline to review the claimed error.
D. CALCULATION OF MAXIMUM TERM/STATUTORY DOUBLING PROVISION
Mr. Haggin argues that the combined terms of confinement and community
custody for his possession with intent to deliver convictions exceed the statutory
maximum of 10 years. Whether a sentence exceeds the statutory maximum is an issue of
statutory interpretation this court reviews de novo. State v. Bruch, 182 Wash. 2d 854, 859,
346 PJd 724 (2015). Although Mr. Haggin did not object to these particular sentences at
the sentencing hearing, unpreserved sentencing errors may be raised for the first time on
appeal. See State v. Ford, 137 Wash. 2d 472, 477-78, 973 P.2d 452 (1999).
A defendant's sentence cannot exceed the statutory maximum term for the class of
crime for which the offender was convicted. RCW 9A.20.021(1). Possession of
methamphetamine with intent to deliver is a class B felony with a statutory maximum
term of 10 years, or 120 months. RCW 69.50.401(1), (2)(b). Possession of heroin with
intent to deliver is also a class B felony with a statutory maximum term of 10 years, or
120 months. See RCW 69.50.401(1), (2)(a) (10 year maximum for a "narcotic drug");
I
31
No. 33280-2-III
State v. Haggin
former RCW 69.50.lOl(z)(l) (2014) ("narcotic drug" includes opium derivatives);
RCW 69.50.204(b)(l l) (heroin is an opium derivative).
When a person is convicted of a felony offense under chapter 69.50 RCW, the trial
court must sentence that person to 12 months' community custody in addition to the other
terms of the sentence. RCW 9.94A.701(3)(c). Terms of confinement and community
custody are both included in the calculation of the statutory maximum term, and the
combination of the two cannot exceed the statutory maximum. RCW 9.94A.505(5); State
v. Boyd, 174 Wn.2d 470,473,275 P.3d 321 (2012).
RCW 69.50.408 doubles the maximum term for which a defendant may be
confined for drug offenses, thereby defining a new statutory maximum. See In re Pers.
Restraint of Cruz, 157 Wash. 2d 83, 90, 134 P.3d 1166 (2006) (clarifying that the statutory
maximum is doubled, not the standard range). RCW 69.50.408(1) provides that "[a]ny
person convicted of a second or subsequent offense under [chapter 69.50 RCW] may be
imprisoned for a term up to twice the term otherwise authorized, fined an amount up to
twice that otherwise authorized, or both." An offense is a second or subsequent offense
for purposes of the doubling statute if any of the defendant's prior convictions were
related to "narcotic drugs, marihuana, depressant, stimulant, or hallucinogenic drugs."
See RCW 69.50.408(2). This section does not apply to current possession of controlled
32
No. 33280-2-III
State v. Haggin
substance offenses. See RCW 69.50.408(3); State v. McGrew, 156 Wash. App. 546, 557,
234 P.3d 268 (2010).
Here, the criminal history section in Mr. Haggin's judgment and sentence lists two
prior convictions for violating the Uniform Controlled Substances Act (VUCSA
convictions), chapter 69.50 RCW. If either of these convictions were related to "narcotic
drugs, marihuana, depressant, stimulant, or hallucinogenic drugs," the statutory maximum
sentence for Mr. Haggin's possession with intent to deliver convictions is 20 years. See
RCW 69.50.408(2). If the doubling statute applies, Mr. Haggin's combined terms of
confinement and community custody for these convictions may not exceed the 240-month
statutory maximum.
On remand, the trial court must determine whether Mr. Haggin's prior VUCSA
convictions related to "narcotic drugs, marihuana, depressant, stimulant, or
hallucinogenic drugs." If so, the trial court must correct the judgment and sentence to
reflect that the statutory maximum term for Mr. Haggin's possession with intent to deliver
convictions is 20 years, rather than 10 years.
E. INCONSISTENCY BETWEEN JUDGMENT AND SENTENCE AND LFO APPENDIX
Mr. Haggin argues the judgment and sentence is inconsistent with an attached
appendix. He contends the judgment and sentence states that Mr. Haggin's LFO
33
No. 33280-2-III
State v. Haggin
payments will commence upon his release, but the attached appendix states that Mr.
Haggin's first LFO payment is due 30 days from when the judgment and sentence was
signed in court.
This inconsistency was likely a scrivener's error, and should be corrected on
remand. See State v. Naillieux, 158 Wash. App. 630, 646-47, 241 P.3d 1280 (2010) (the
remedy for clerical or scrivener's errors in judgment and sentence forms is remand to the
trial court for correction).
Affirmed in part and remanded for resentencing.
j
WE CONCUR:
Pennell, J.
34