### FILED 

### August6,2015 In theOfficeoftheClerkofCourt W AStateCourtofAppeals, Division III



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) 

### No. 32215-7-111 ) 

### Respondent, ) ) 

### v. ) ) 

### ROBERT GENE WATIS, ) 

### UNPUBLISHED OPINION ) 

### Appellant. } 

### BROWN, A.C.J.

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### Robert Watts appeals his conviction fordelivery ofa controlled substance (methamphetamine). He contends (1) probable cause did not support his warrantless arrest, (2) irrelevanttestimonywas admitted, (3) insufficientevidence supports his conviction, and (4) cumulative error. In his statementofadditional grounds for review (SAG), Mr. Watts raises one additional concern, alleging ineffective assistance ofcounsel. We affirm without reaching cumulative error. FACTS The State charged Mr. Watts with delivering methamphetaminewithin 1,000feet ofa school bus stopwhile acting as a principal oraccomplice on January4, 2013. These charges arose from an investigation bythe Organized Criminal Drug EnforcementTask Force (OCDET) targeting Christian Gonzales, known as Chino, for distribution ofcontrolled substances in parts ofWashington. In ajointeffortwithNo. 32215-7-111 State v. Watts OCDET, Commander Steve Brown, Detective Brian Bowling, Agent Jeff Prock, and Agent Seth Thomas, part ofthe North Central Washington Narcotics Task Force ("Task Force"), utilized a confidential informant, Lyle Long, to execute multiple controlled buys ofmethamphetaminefrom Lisa Mumm. TheTask Force wanted to use Ms. Mumm to getto Chino. The first controlled buyoccurred on December7, 2012. Mr. Long, underTask Force supervision, met Ms. Mumm at 95 Old Riverside Highway, a house owned by Mr. Watts' mother. The house was occupied by Mr. Watts, his girlfriend Ms. Mumm, and their roommate, Melissa Starzyk. Shortly after Mr. Long entered the house, a white Chevrolet Tahoe arrived; Ms. Mumm exited the house and made contactwith Chino, the driver, before reentering the house. Ms. Mumm delivered methamphetamineto Mr. Long. Soon after, Mr. Long left and met up with detectives. Mr. Long told detectives thatwhile Mr. Watts was atthe house that day, he did notdirectly participate in the buy. The second controlled buy occurred on January4, 2013. The buy began atthe house at 95 Old Riverside Highway before moving to the parking lot ofGene's Food Harvest (Gene's). Mr. Watts drove Ms. Mumm to Gene's in a blue Ford Explorer registered to him and parked in the north parking lot; Mr. Long droveto Gene's separately, parking in the same lot. Ms. Mumm exited the passenger side, entered Gene's via the north doors, then exited Gene's through the south doors and metwith Chino in the south parking lot. After Ms. Mumm returned to the Explorer, Mr. Watts and Mr. Long drove separatelyto the south parking lot. TheTask Force lost sight of Mr.

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### No. 32215-7-111 State v. Watts Long, but Mr. Long told the Task Force Mr. Watts drove Ms. Mumm to Gene's, was in the carwhen Ms. Mumm weighed the methamphetamine, and passed the bag of methamphetaminefrom Ms. Mummto Mr. Long. Mr. Long remained in contactwith the Task Force throughoutthe buy. The final controlled buy occurred on February 

### 1, 2013. Mr. Long drove to the house at 95 Old Riverside Highway. Ms. Mumm and Ms. Starzyk then used Mr. Watts' Explorerto deliver methamphetamineto Mr. Long ata different location. Again, Mr. Long remained in contact with the Task Force. Following the controlled buy, Mr. Long metwith theTask Force, who discovered 

### $20 in stolen Task Force money hidden in his hat. Mr. Long was not used as an informantagain, and hewas arrested fortheft. On February 4, 

### 2013, Commander Brown and AgentThomas metwith Mr. Watts and Ms. Mumm at their home and told Mr. Watts ofthe evidence of his involvement in the January4 delivery. Both Mr. Watts and Ms. Mumm signed a contract to act as Task Force informants in lieu offacing charges. On February 6, 

### 2013, AgentThomas and Detective Bowling metwith Mr. Watts and Ms. Mumm. Mr. Watts provided information about Chino and named other individuals he believed sold drugs. However, Mr. Watts did notfulfill his contract and charges were filed against him. Attrial, Mr. Wattswaived a CrR 

### 3.5 hearing and stipulated to the admissibility of his statementstothe Task Force. He was convicted as charged and appealed.

3No. 32215·7·111 State 

### v. Watts
ANALYSIS A. Probable Cause to Arrest The issue is whether probable cause supported Mr. Watts' warrantless arrest. Mr. Watts contends probable cause to arrest him came primarilyfrom an informant's tip, which did not pass theAguilar·Spinell/ 1 test, and thus his arrest was unsupported by probable cause. Mr. Watts challenges his warrantless arrest forthe first time on appeal. The State argues he waived any right to challenge his warrantless arrest when hefailed to challenge it attrial. Generally, we will not review an error not raised in the trial court. RAP 2.5(a). Both state and federal courts have declined to address search and seizure issues when raised forthe first time on appeal. See State v. Trujillo, 153Wn. App. 454, 458,222 P.3d 129 (2009). But RAP 2.5(a)(3) allows a claim oferrorto be raised forthe first time on appeal if it is a "manifest error affecting a constitutional right." To utilize this exception, a "defendant must identify a constitutional error and show how, in the context ofthetrial, the alleged error actually affected the defendant's rights; it is this showing ofactual prejudice that makes the error 'manifest,' allowing appellate review." State v. McFarland, 127Wn.2d 322,333,899 P.2d 1251 (1995). No actual prejudice is shown, and thus the error is not manifest, where the record is devoid offacts necessaryto adjudicate the claimed error. Id. As recognized bythis court, "[a]ttacks on probable cause do notqualifyfor one ofthe exceptions to [RAP 2.5(a)]: a

1 Spinelliv. UnitedStates, 393 U.S. 410, 415-16, 89 S. Ct. 584, 21 LEd. 2d 637 (1969); Aguilarv. Texas, 378 U.S. 108, 114,84 S. Ct. 1509, 12 LEd. 2d 723 (1964). 

### 4No. 32215-7-111 State v. Watts
defendantwaives the right to challenge the trial court's admission ofevidence gained by
an illegal search or seizure byfailing to move to suppressthe evidence at triaL" Trujillo, 153 Wn. App. at 548 (internal quotations omitted). Mr. Watts waived his right to directly attackthe legality ofhis arrest because he failed to object or moveto suppress evidence attrial. Moreover, Mr. Watts cannot show actual prejudice. Because no motion to suppress was made, the record does not indicate whetherthe trial courtwould have granted the motion.2 Without a showing of actual prejudice, the error is not manifestand is not reviewable under RAP 2.5(a)(3). B. Admitting Evidence of December 7,2012 Events

2 Mr. Watts relies on State v. Thompson, 13Wn. App. 526, 536 P.2d 683 (1975), to argue for de novo review. But Thompson involved a challenge to an affidavit supporting a search warrantthatwas challenged attrial. While the Aguilar-Spinellitest enunciated in Thompson is equally applicable to determinations of probable cause to make an arrestwithouta warrant, even ade novo review ofthe record does not reveal actual prejudice. See State v. Helfrich, 33 Wn. App. 338, 341,656 P.2d 506 (1982). Information from an informant can establish probable cause to arrestwhere the two prongs ofthe Aguilar-Spinellitest are met: (1) basis of knowledge and (2) credibility. Id. at 340-41. But probable cause can still be established where there is a deficiency in one ofthe prongs ifthe police can support the missing prong by sufficiently corroborating the informant's tip. Id.; State v. Jackson, 102Wn.2d 432,445,688 P.2d 136 (1984). Mr. Watts only challenges the veracity prong. Underthe veracity prong, "facts must be presented to determine eitherthe inherent credibility ofthe informant or the reliability of his information on that particular occasion." Helfrich, 33 Wn. App. at 341. An informant's reliability may be established from the informant's "track record" of providing reliable information or by showing the informant has a clear motive for being truthful. Jackson, 102Wn.2d at437; State v. Bean, 89 Wn.2d 467, 469-71, 572 P.2d 1102 (1978). Mr. Long's credibility is established in two successful controlled buys with the Task Force before he was removed as an informantfor stealing Task Force money. He had also been a successful informant in two other independent cases. Mr. Long had atrack record and a motive to tell the truth. Moreover, the information provided by Mr. Long was corroborated by the Task Force's ongoing investigation. Given all, probable cause supported Mr. Watts' arrest, and any motion to suppress based on his warrantless arrestwould have properly been denied. 

### 5No. 32215-7-111 State v. Watts
The issue is whether Mr. Watts was denied afair trial when the trial court allowed testimony aboutthe December 7,2012 controlled buy. Mr. Watts contends his constitutional rightto afairtrial was denied when the court allowed thejuryto hear such irrelevanttestimony as this testimony did notdirectly or indirectly implicate him in any wrongdoing. Rather, it materially misled thejury becausethejury could infer Mr. Watts' involvement based on the factthe controlled buys occurred in or around his home. While Mr. Watts did notobject on any grounds to this testimony attrial, he now assigns error based on ER 401 and ER 403. Absent manifestconstitutional error, a party may not raise an objection on appeal not properly preserved attrial. State v. Powell, 166 Wn.2d 73, 82, 206 P.3d 321 (2009). We "adopt a strict approach because trial counsel's failure to objectto the error robs the court ofthe opportunityto correct the
error and avoid a retrial." Id. Evidentiary errors under ER 401 are nonconstitutional in nature. Cobb v. Snohomish County, 86 Wn. App. 223, 236, 935 P.2d 1384 (1997). Even ifan objection had been made, atrial court's ruling on the admissibility of evidence is reviewed for abuse ofdiscretion. State v. Powell, 126Wn.2d 244,258,893 P.2d 615 (1995) (abuse ofdiscretion exists when a trial court's exercise ofdiscretion is manifestly unreasonable or based on untenable grounds or reasons). Relevant evidence is thatwhich has "anytendencyto make the existence ofanyfactthat is of 

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consequence ... more probable or less probable." ER 401. The testimony aboutthe 

# I December 7,2012 buywas relevant as ittended to make the State's theorythat Mr. 

# i Watts was a principal or accomplice in the distribution of methamphetamine more 

# f I 6No. 32215-7-111 State v. Watts probable. The evidence was probative of Mr. Watts' knowledge ofthe drug transactions occurring at his house as he was present at the time ofthe controlled buy. Itwas relevant to the credibility of Mr. Watts and otherwitnesses about discrepancies in when exactly Mr. Long was present at Mr. Watts' house and whether he knew Ms. Mumm sold methamphetamine. The court did not abuse its discretion in allowing the testimony. ER 403 allows atrial court to exclude relevant evidence "if its probative value is substantially outweighed bythe dangerof unfair prejudice,

... or misleading the jury." Mr. Watts briefly argues the testimonywas prejudicial because it associated him with drug dealing even though he was not involved in the controlled buy. Mr. Watts' argumentfails. Even ifadmission ofthe testimonywas constitutional error, itwas not manifest as it had no "practical and identifiable consequences in the trial ofthe case" where there was othertestimony showing Mr. Watts had knowledge ofthe drug transactions occurring at his house. State v. Stein, 144Wn.2d 236, 240, 27 P.3d 184 (2001). Because the error is not a manifest constitutional error, Mr. Watts failed to preserve the issue on appeal. C. Evidence Sufficiency The issue is whethersufficientevidence supports Mr. Watts' conviction for delivery ofa controlled substance. Mr. Watts contends the State's evidence does not prove beyond a reasonable doubt he delivered methamphetamine on January4, 2013. He mainly argues Mr. Long was nota credible witness.

7No. 32215-7-111 State v. Watts
Evidence is sufficientto support a guiltyfinding if'''afterviewing the evidence in the light mostfavorable to the prosecution, any rational trier offact could havefound the essential elements ofthe crime beyond a reasonable doubt.'" State v. Green, 94 Wn.2d 216,221,616 P.2d 628 (1980) (emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). This sufficiency challenge "admits thetruth ofthe State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119Wn.2d 192,201,829 P.2d 1068 (1992). We deferto thejury's assessment ofconflicting testimony, witness credibility, and evidence weight. State v. Carver, 113Wn.2d 591, 604, 781 P.2d 1308,789 P.2d 306 (1989). RCW69.50.401(1) provides "it is unlawful for any person to deliver

... a controlled substance." The jurywas instructed each ofthe following elements must be proved beyond a reasonable doubt: "(1) That on or aboutJanuary4, 2013, the defendant[ ] de1ivered a controlled substance; (2) Thatthe defendant knewthatthe substance delivered was a controlled substance; and (3) Thatthe acts occurred in the State ofWashington." Clerk's Papers at 39. Mr. Watts' focus is thefirst element. When viewed in the light mostfavorable to the State, Detective Bowling and Mr. Long saw Mr. Watts driving the Explorer on January4,2013. Mr. Watts drove Ms. Mumm to Gene's, where she gotout ofthe car and metwith Chino to get drugs. Commander Brown verifiedjust priorto arriving at Gene's, Chino had frequented a known dope house. Mr. Watts was not seen leaving the Explorer. Mr. Long told the Task Force Mr. Watts was in the Explorerwith Ms. Mumm when she weighed outthe 

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8No. 32215-7-111 State v. Watts methamphetamine. Mr. Long said Ms. Mumm handed the bag ofmethamphetamine to Mr. Watts, who then handed it to Mr. Long. When Mr. Long metwith the Task Force right afterthis controlled buy, he had a bag of methamphetamine; Mr. Long and his car were searched immediately before the buy, and he was followed throughout the transaction. Mr. Watts' involvementwas further buttressed by Ms. Starzyk's testimony that Mr. Watts knew Ms. Mumm sold drugs and drove herto pick up the drugs. Thejury
was instructed on accomplice liability. Mr. Watts' act ofdriving Ms. Mumm to Gene's to pick up drugs and remaining in the carwith Ms. Mumm while she sold the drugs to Mr. Long shows Mr. Watts was an accomplice. "Accomplice liability is principal liability." State v. Toomey, 38 Wn. App. 831, 840, 690 P.2d 1175 (1984). Mr. Watts unpersuasively argues Mr. Long should not have been allowed to testify because his testimony was highly incredulous. But Mr. Watts' argument goesto the weight, notthe admissibility, of Mr. Long's testimony. We do not reweigh evidence
or decidewitness credibility. Mr. Watts was able to cross-examine Mr. Long about his dishonesty convictions and his potential bias. Atthat point, itwas up to thejuryto determine how much weight to give to Mr. Long's testimony. D. SAG Although Mr. Watts did not challenge the constitutionality ofa warrantless arrest below, he can raise that issue now in the context ofan ineffective assistance ofcounsel claim. McFarland, 127Wn.2d at 333,338. To establish ineffective assistance of counsel, a defendant must show

9No. 32215-7-111 State v. Watts (1) defense counsel's representation was deficient, i.e., itfell below an objective standard of reasonableness based on consideration ofall the circumstances; and (2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a reasonable probabilitythat, exceptfor counsel's unprofessional errors, the result ofthe proceeding would have been different. Id. at 334-35. Westrongly presume defense counsel's representation was effective. Id. at 335. As such, a "defendant must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel." Id. at 336. Mr. Watts has not metthis burden. Whilethe record does notshow whether defense counsel's decision to waive the erR 3.5 hearing was a legitimate strategic decision, Mr. Watts' arrestwas supported by probable cause, providing a plausible reason for counsel to have waived that hearing and to have not pursued other suppression hearings. Mr. Watts also fails to show prejudice. As discussed, Mr. Watts' arrestwas supported by probable cause. Absent an affirmative showing the motion would probably have been granted, there is no showing ofactual prejudice. Asfor Mr. Watts'
concern that Mr. Long's information was insufficientto establish probable cause, this
was addressed by his counsel and discussed above. See RAP 10.10(a). Similarly, Mr. Watts' appellate counsel addressed both of his concerns regarding evidence sufficiency and evidentiary error in his briefing. Thus, no need exists to further address the
concerns here. See RAP 10.10(a). In sum, Mr. Watts' SAG lacks merit. Affirmed.

10No. 32215-7-111 State v. Watts
A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but itwill be filed for public record pursuantto RCW 2.06.040.

# ~,ftP.:r. Br wn, A.C.J. WE CONCUR:

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