State Of Washington, V Theotis L. Moore ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
January 15, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50327-1-II
Respondent,
UNPUBLISHED OPINION
v.
THEOTIS LENDELL MOORE,
Appellant.
MAXA, C.J. – Theotis Moore appeals his convictions of unlawful possession of a
controlled substance with intent to deliver while armed with a firearm (count 1), unlawful
possession of methamphetamine with intent to deliver while armed with a firearm (count 2), and
first degree unlawful possession of a firearm (count 3). The drugs and firearms he was convicted
of possessing were discovered in a search of his residence pursuant to a search warrant.
We hold that (1) defense counsel’s failure to challenge the lawfulness of the search
warrant did not constitute ineffective assistance of counsel; (2) the State presented sufficient
evidence to prove that Moore was armed with a firearm at the time he committed counts 1 and 2;
(3) as the State concedes, the trial court used an incorrect sentencing range on count 3; and (4)
Moore’s statement of additional grounds (SAG) claims have no merit. Accordingly, we affirm
Moore’s convictions and sentencing enhancements, but we remand for resentencing.
No. 50327-1-II
FACTS
In July 2016, Pierce County Sheriff’s Deputy Jesse Hotz began investigating Moore. He
employed a confidential informant (CI) who had previously purchased drugs for the Sheriff’s
Department. The CI also previously had purchased controlled substances from Moore multiple
times.
In a controlled buy, the CI purchased controlled substances from Moore while under
police surveillance. Another deputy observed Moore leave his apartment in a Cadillac Escalade
and kept him under constant surveillance until he reached the place of the transaction.
Hotz made application for a search warrant, submitting an affidavit that recited the facts
stated above and identified Moore’s address. A superior court judge issued a warrant authorizing
a search of Moore, his apartment, and his vehicle.
On August 18, 2016, Hotz and several deputies executed the search warrant on Moore’s
apartment. Moore and his girlfriend Melissa Scanlan were in bed when the deputies entered. In
the master bedroom the deputies discovered multiple oxycodone pills and a baggie of
methamphetamine as well as a digital scale, small plastic bags, and cash. They also found an
unloaded semiautomatic handgun on a shelf in the bedroom closet.
The State charged Moore with unlawful possession of a controlled substance with intent
to deliver while armed with a firearm, unlawful possession of methamphetamine with intent to
deliver while armed with a firearm, and first degree unlawful possession of a firearm.
At trial, the deputies testified to finding the drugs and the firearm as discussed above.
Doug Hyland testified on behalf of Moore, stating that he owned the firearm and had placed it in
the closet.
2
No. 50327-1-II
The jury found Moore guilty as charged. Moore appeals.
ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Moore argues that defense counsel’s failure to file a motion to suppress the results of the
search of his apartment constituted ineffective assistance of counsel. He claims that nothing in
the affidavit in support of the warrant application made it probable that drugs and evidence
would be found in his apartment. We disagree.
1. Legal Principles
Ineffective assistance of counsel arises from the Sixth Amendment to the United States
Constitution and article I, section 22 of the Washington Constitution. State v. Estes, 188 Wash. 2d
450, 457, 395 P.3d 1045 (2017). To prevail on an ineffective assistance claim, the defendant
must show both that (1) defense counsel’s representation was deficient and (2) the deficient
representation prejudiced the defendant. Id. at 457-58. Representation is deficient if, after
considering all the circumstances, it falls below an objective standard of reasonableness. Id. at
458. Prejudice exists if there is a reasonable probability that, except for counsel’s errors, the
result of the proceeding would have differed. Id.
In the context of failing to file a motion to suppress, defense counsel’s performance will
only be considered deficient if the defendant can show that the trial court likely would have
granted the motion. State v. D.E.D., 200 Wash. App. 484, 490, 402 P.3d 851 (2017). Accordingly,
the question here is whether, had defense counsel filed a motion to suppress evidence relating to
the allegedly illegal search, the trial court likely would have granted the motion.
3
No. 50327-1-II
2. Validity of Search Warrant
a. Probable Cause Requirement
Both the Fourth Amendment to the United States Constitution and article 1, section 7 of
the Washington Constitution require probable cause to support the issuance of a search warrant.
See State v. Figeroa Martines, 184 Wash. 2d 83, 90, 355 P.3d 1111 (2015) (Fourth Amendment);
State v. Ollivier, 178 Wash. 2d 813, 846, 312 P.3d 1 (2013) (article 1, section 7). “Probable cause
exists when the affidavit in support of the search warrant ‘sets forth facts and circumstances
sufficient to establish a reasonable inference that the defendant is probably involved in criminal
activity and that evidence of the crime may be found at a certain location.’ ” Ollivier, 178
Wash. 2d at 846–47 (quoting State v. Jackson, 150 Wash. 2d 251, 264, 76 P.3d 217 (2003)). There
must be “a nexus between criminal activity and the item to be seized and between that item and
the place to be searched. State v. Neth, 165 Wash. 2d 177, 183, 196 P.3d 658 (2008). We consider
only the information contained in the affidavit supporting probable cause. Neth, 165 Wash. 2d at
182.
A search warrant affidavit must identify specific facts and circumstances from which the
magistrate can infer that evidence of the crime will be found at the place to be searched. State v.
Thein, 138 Wash. 2d 133, 147, 977 P.2d 582 (1999). If an affidavit is no more than a declaration of
suspicion or belief, it is legally insufficient. Jackson, 150 Wash. 2d at 265.
b. Analysis of Search Warrant Validity
Here, the only connection between Moore’s apartment and his sale of controlled
substances stated in the warrant affidavit was that Moore left from his apartment when he drove
to the sale. The question is whether this connection is sufficient to establish probable cause.
4
No. 50327-1-II
Moore relies on Thein, where the Supreme Court addressed the State’s argument that if
there is sufficient evidence to believe that a person is a drug dealer, probable cause automatically
exists to search the person’s residence. 138 Wash. 2d at 141. The court rejected the proposition
that “it is reasonable to infer evidence of drug dealing will likely be found in the homes of drug
dealers.” Id. at 147. The court emphasized that probable cause to believe that a person has
committed a crime does not create probable cause to search that person’s home. Id. at 148.
However, here the State does not advocate for an automatic rule. Instead, the State relies
on the fact that Moore left his house and immediately drove to meet the CI, where Moore sold
him drugs. The State claims that this fact shows a nexus between Moore’s drug dealing and his
apartment.
The court in State v. G.M.V., 135 Wash. App. 366, 144 P.3d 358 (2006), addressed a
similar scenario. In that case, law enforcement obtained a search warrant of the defendant’s
residence based on the fact that the defendant left from the residence before and returned to it
after he sold drugs. Id. at 372. The court stated, “The warrant was to search the place Mr.
Longoria left from and returned to before and after he sold drugs. This was a nexus that
established probable cause that Mr. Longoria had drugs in the house.” Id.
We agree with G.M.V. Moore drove from his apartment to a location where he sold
controlled substances to the CI. This means that the controlled substances were in Moore’s
possession when he left his apartment. Therefore, it is reasonable to infer that evidence of
Moore’s drug dealing would be found in his apartment. We hold that probable cause supported
the warrant to search Moore’s apartment.
5
No. 50327-1-II
3. Analysis of Ineffective Assistance Claim
Based on the analysis above, the trial court would not have granted a motion to suppress
the evidence seized from Moore’s home. Therefore, it was neither objectively unreasonable nor
prejudicial for defense counsel not to challenge the validity of the search warrant. We hold that
Moore’s claim of ineffective assistance of counsel fails.
B. SUFFICIENCY OF THE EVIDENCE – FIREARM ENHANCEMENTS
Moore argues that the State did not present sufficient evidence that he was armed with a
firearm at the time of his drug delivery and possession crimes. He claims that there was an
insufficient connection between him, the firearm found in his bedroom, and his crimes. We
disagree.
1. Sufficiency Standard
The test for determining sufficiency of the evidence 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. Cardenas-Flores, 189 Wash. 2d 243, 265, 401 P.3d 19 (2017). In a
sufficiency of the evidence claim, the defendant admits the truth of the evidence and the court
views the evidence and all reasonable inferences drawn from that evidence in the light most
favorable to the State. Id. Credibility determinations are made by the trier of fact and are not
subject to review. Id. at 266. Circumstantial and direct evidence are equally reliable. Id.
2. Legal Principles
Under RCW 9.94A.533(3), a court must add additional time to a sentence if the defendant
is found to have been armed with a firearm while committing the crime. State v. Houston-Sconiers,
188 Wash. 2d 1, 16-17, 391 P.3d 409 (2017). “To establish that a defendant was armed for the
6
No. 50327-1-II
purpose of a firearm enhancement, the State must prove (1) that a firearm was easily accessible
and readily available for offensive or defensive purposes during the commission of the crime and
(2) that a nexus exists among the defendant, the weapon, and the crime.” State v. Sassen Van
Elsloo, 191 Wash. 2d 798, 826, 425 P.3d 807 (2018).
Regarding the first requirement, the presence or even constructive possession of a
weapon found at a crime scene is not enough to establish that the defendant was armed in this
context. Id. On the other hand, “[t]he 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 Wash. 2d 500,
504, 150 P.3d 1121 (2007). “[T]he State need not establish with mathematical precision the
specific time and place that a weapon was readily available and easily accessible so long as it
was at the time of the crime.” Id. at 504-05. And a drug distribution operation is a continuing
crime that is ongoing even when the defendant is elsewhere. See State v. Neff, 163 Wash. 2d 453,
464-65, 181 P.3d 819 (2008) (stating this principle in the context of a drug manufacturing
operation).
Regarding the second requirement, we look to the nature of the crime, the type of firearm,
and the context in which it was found to determine if there was a nexus between the defendant,
the firearm, and the crime. Sassen Van Elsloo, 191 Wash. 2d at 827. Significantly, a sufficient
nexus exists if there is evidence that the firearm was present to protect an ongoing drug
operation. O’Neal, 159 Wash. 2d at 506; State v. Eckenrode, 159 Wash. 2d 488, 494-95, 150 P.3d
1116 (2007).
7
No. 50327-1-II
3. Analysis
When the deputies served the search warrant, Moore was in his bedroom with the firearm
and the drugs. The handgun was on a closet shelf where Moore easily could have armed himself.
Therefore, a nexus existed between Moore and the gun.
Other evidence establishes the nexus between the gun and the drugs. The deputies
recovered a digital scale, small plastic bags, empty prescription bottles, ammunition, and cash.
All these items were evidence of an ongoing drug operation. Taking the evidence in a light most
favorable to the State, a reasonable jury could find that Moore had the gun to facilitate his crimes
or to protect his contraband. See Neff, 163 Wash. 2d at 462.
Accordingly, we hold that the State presented sufficient evidence to establish that Moore
was armed with a firearm at the time of his drug offenses.
C. INCORRECT SENTENCING RANGE
Moore argues, and the State concedes, that his judgment and sentence contains an
incorrect sentencing range for his conviction of first degree unlawful possession of a firearm.
The sentencing court calculated Moore’s offender score as 3 but the judgment and sentence used
the range applied for an offender score of 4. Moore’s sentencing range should have been 31-41
months, not 36-48 months. RCW 9.94A.510. Therefore, we hold that the trial court erred in
imposing Moore’s sentence.
D. SAG CLAIMS
1. Probable Cause
Moore asserts that the State lacked probable cause to obtain a search warrant because it
did not produce the CI or any evidence of the three alleged controlled purchases. We disagree
8
No. 50327-1-II
The State has a legitimate interest in protecting the identity of CIs. State v. Moen, 150
Wash. 2d 221, 230, 76 P.3d 721 (2003). The ability to protect an informant’s identity from
disclosure is termed the “informers privilege,” which is the State’s right to withhold from
disclosure the identity of persons who provide information to law enforcement concerning the
commission of crimes. State v. Atchley, 142 Wash. App. 147, 155, 173 P.3d 323 (2007). The
privilege is recognized by both statute and court rule. RCW 5.60.060(5); CrR 4.7(f)(2).
Disclosure is only required if the failure to disclose will infringe on the defendant’s
constitutional rights. CrR 4.7(f)(2).
We typically balance several competing factors in determining whether to disclose a CI’s
identity. Atchley, 142 Wash. App. at 155-56. However, where the CI provided information
relating only to probable cause rather than the defendant’s guilt or innocence, disclosure of the
CI’s identity generally is not required. Id. at 156.
Here, the State used the CI’s activities only to establish probable cause for the search of
Moore’s apartment, not Moore’s guilt or innocence. Therefore, disclosure was not required.
And information provided by an unidentified CI is sufficient to establish probable cause for a
search warrant. State v. Casto, 39 Wash. App. 229, 233-34, 692 P.2d 890 (1984). Therefore, we
reject Moore’s argument that the search warrant lacked probable cause.1
2. Sufficiency of Evidence – Delivery
Moore claims that the State failed to prove that he delivered a controlled substance
because the only drugs put into evidence at trial were validly prescribed to him. We disagree.
1
Moore also generally claims that there was not probable cause to support the search warrant.
Because we already have addressed this claim, we do not repeat it here.
9
No. 50327-1-II
The State had to prove that Moore delivered a controlled substance to another. RCW
69.50.401(1). It was undisputed at trial that Moore possessed the oxycodone with a valid
prescription. At trial, the State presented evidence from Hotz that Moore admitted giving away
oxycodone. And Scanlan testified that Moore had lent some oxycodone pills to a man that later
paid him back once he got his own prescription filled. This was sufficient evidence to show an
unlawful delivery of a controlled substance.
3. Prosecutorial Misconduct
Moore appears to claim that his trial was tainted by prosecutorial misconduct when the
prosecutor implied that his possession of the oxycodone was illegal. We disagree.
To prevail on a claim of prosecutorial misconduct, a defendant must show “ ‘that the
prosecutor’s conduct was both improper and prejudicial in the context of the entire record and
the circumstances at trial.’ ” State v. Thorgerson, 172 Wash. 2d 438, 442, 258 P.3d 43 (2011)
(quoting State v. Magers, 164 Wash. 2d 174, 191, 189 P.3d 126 (2008)). We review allegedly
improper arguments of the prosecutor in the context of the total argument, the evidence
addressed during argument, the issues in the case, and the trial court’s instructions. State v.
Russell, 125 Wash. 2d 24, 85-86, 882 P.2d 747 (1994).
As we noted above, the State had to prove only that Moore delivered a controlled
substance to another. That Moore had a valid prescription for the oxycodone did not mean that
the State had no evidence of an unlawful delivery. And Moore statements to Hotz coupled with
Scanlan’s testimony proved that delivery. The State did not present false evidence that Moore
possessed or sold illegal drugs as Moore alleges. His claim of prosecutorial misconduct based on
this theory fails.
10
No. 50327-1-II
CONCLUSION
We affirm Moore’s convictions of unlawful possession of a controlled substance with
intent to deliver while armed with a firearm, unlawful possession of methamphetamine while
armed with a firearm, and first degree unlawful possession of a firearm. But we remand for
resentencing.
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.
MAXA, C.J.
We concur:
MELNICK, J.
SUTTON, J.
11