FILED 


August 6, 2015 


In the Office of the Clerk ofCourt 


W A State Court of Appeals, 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ROBERT GENE WA TIS, ) UNPUBLISHED OPINION 

) 

Appellant. } 

BROWN, A.C.J. - Robert Watts appeals his conviction for delivery of a controlled 

substance (methamphetamine). He contends (1) probable cause did not support his 

warrantless arrest, (2) irrelevant testimony was admitted, (3) insufficient evidence 

supports his conviction, and (4) cumulative error. In his statement of additional grounds 

for review (SAG), Mr. Watts raises one additional concern, alleging ineffective 

assistance of counsel. We affirm without reaching cumulative error. 

FACTS 

The State charged Mr. Watts with delivering methamphetamine within 1,000 feet 

of a school bus stop while acting as a principal or accomplice on January 4, 2013. 

These charges arose from an investigation by the Organized Criminal Drug 

Enforcement Task Force (OCDET) targeting Christian Gonzales, known as Chino, for 

distribution of controlled substances in parts of Washington. In a joint effort with 
No. 32215-7-111 

State v. Watts 

OCDET, Commander Steve Brown, Detective Brian Bowling, Agent Jeff Prock, and 

Agent Seth Thomas, part of the North Central Washington Narcotics Task Force ("Task 

Force"), utilized a confidential informant, Lyle Long, to execute multiple controlled buys 

of methamphetamine from Lisa Mumm. The Task Force wanted to use Ms. Mumm to 

get to Chino. 

The first controlled buy occurred on December 7, 2012. Mr. Long, under Task 

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 contact with Chino, the 

driver, before reentering the house. Ms. Mumm delivered methamphetamine to Mr. 

Long. Soon after, Mr. Long left and met up with detectives. Mr. Long told detectives 

that while Mr. Watts was at the house that day, he did not directly participate in the buy. 

The second controlled buy occurred on January 4, 2013. The buy began at the 

house at 95 Old Riverside Highway before moving to the parking lot of Gene'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 drove to 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 met with 

Chino in the south parking lot. After Ms. Mumm returned to the Explorer, Mr. Watts and 

Mr. Long drove separately to the south parking lot. The Task 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 car when Ms. Mumm weighed the methamphetamine, and passed the bag of 

methamphetamine from Ms. Mumm to Mr. Long. Mr. Long remained in contact with the 

Task Force throughout the 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' 

Explorer to deliver methamphetamine to Mr. Long at a different location. Again, Mr. 

Long remained in contact with the Task Force. Following the controlled buy, Mr. Long 

met with the Task Force, who discovered $20 in stolen Task Force money hidden in his 

hat. Mr. Long was not used as an informant again, and he was arrested for theft. 

On February 4, 2013, Commander Brown and Agent Thomas met with Mr. Watts 

and Ms. Mumm at their home and told Mr. Watts of the evidence of his involvement in 

the January 4 delivery. Both Mr. Watts and Ms. Mumm signed a contract to act as Task 

Force informants in lieu of facing charges. On February 6, 2013, Agent Thomas and 

Detective Bowling met with Mr. Watts and Ms. Mumm. Mr. Watts provided information 

about Chino and named other individuals he believed sold drugs. However, Mr. Watts 

did not fulfill his contract and charges were filed against him. 

At trial, Mr. Watts waived a CrR 3.5 hearing and stipulated to the admissibility of 

his statements to the Task Force. He was convicted as charged and appealed. 

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No. 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 primarily from an informant's tip, 

which did not pass the Aguilar·Spinell/1 test, and thus his arrest was unsupported by 

probable cause. 

Mr. Watts challenges his warrantless arrest for the first time on appeal. The 

State argues he waived any right to challenge his warrantless arrest when he failed to 

challenge it at trial. 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 for the first time on appeal. See State v. Trujillo, 153 Wn. App. 454, 

458,222 P.3d 129 (2009). But RAP 2.5(a)(3) allows a claim of error to be raised for the 

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 of the trial, the alleged error actually affected the defendant's 

rights; it is this showing of actual prejudice that makes the error 'manifest,' allowing 

appellate review." State v. McFarland, 127 Wn.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 

of facts necessary to adjudicate the claimed error. Id. As recognized by this court, 

"[a]ttacks on probable cause do not qualify for one of the exceptions to [RAP 2.5(a)]: a 

1 Spinelli v. United States, 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). 

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No. 32215-7-111 

State v. Watts 

defendant waives the right to challenge the trial court's admission of evidence gained by 

an illegal search or seizure by failing to move to suppress the evidence at triaL" Trujillo, 

153 Wn. App. at 548 (internal quotations omitted). 

Mr. Watts waived his right to directly attack the legality of his arrest because he 

failed to object or move to suppress evidence at trial. Moreover, Mr. Watts cannot show 

actual prejudice. Because no motion to suppress was made, the record does not 

indicate whether the trial court would have granted the motion. 2 Without a showing of 

actual prejudice, the error is not manifest and 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, 13 Wn. App. 526, 536 P.2d 683 (1975), 

to argue for de novo review. But Thompson involved a challenge to an affidavit 

supporting a search warrant that was challenged at trial. While the Aguilar-Spinelli test 

enunciated in Thompson is equally applicable to determinations of probable cause to 

make an arrest without a warrant, even a de novo review of the 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 arrest where the 

two prongs of the Aguilar-Spinelli test 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 of the prongs if the police can support the missing prong by sufficiently 

corroborating the informant's tip. Id.; State v. Jackson, 102 Wn.2d 432,445,688 P.2d 

136 (1984). Mr. Watts only challenges the veracity prong. Under the veracity prong, 

"facts must be presented to determine either the inherent credibility of the 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, 102 Wn.2d at 437; 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 informant for stealing Task Force money. 

He had also been a successful informant in two other independent cases. Mr. Long had 

a track 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 arrest would have properly been denied. 

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No. 32215-7-111 

State v. Watts 

The issue is whether Mr. Watts was denied a fair trial when the trial court allowed 

testimony about the December 7,2012 controlled buy. Mr. Watts contends his 

constitutional right to a fair trial was denied when the court allowed the jury to hear such 

irrelevant testimony as this testimony did not directly or indirectly implicate him in any 

wrongdoing. Rather, it materially misled the jury because the jury could infer Mr. Watts' 

involvement based on the fact the controlled buys occurred in or around his home. 

While Mr. Watts did not object on any grounds to this testimony at trial, he now 

assigns error based on ER 401 and ER 403. Absent manifest constitutional error, a 

party may not raise an objection on appeal not properly preserved at trial. State v. 

Powell, 166 Wn.2d 73, 82, 206 P.3d 321 (2009). We "adopt a strict approach because 

trial counsel's failure to object to the error robs the court of the opportunity to 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 if an objection had been made, a trial court's ruling on the admissibility of 

evidence is reviewed for abuse of discretion. State v. Powell, 126 Wn.2d 244,258,893 

P.2d 615 (1995) (abuse of discretion exists when a trial court's exercise of discretion is 

manifestly unreasonable or based on untenable grounds or reasons). Relevant 

evidence is that which has "any tendency to make the existence of any fact that is of I 

consequence ... more probable or less probable." ER 401. The testimony about the 

December 7,2012 buy was relevant as it tended to make the State's theory that Mr. I

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

f 

I 

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No. 32215-7-111 

State v. Watts 

probable. The evidence was probative of Mr. Watts' knowledge of the drug transactions 

occurring at his house as he was present at the time of the controlled buy. It was 

relevant to the credibility of Mr. Watts and other witnesses 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 a trial court to exclude relevant evidence "if its probative value is 

substantially outweighed by the danger of unfair prejudice, ... or misleading the jury." 

Mr. Watts briefly argues the testimony was prejudicial because it associated him with 

drug dealing even though he was not involved in the controlled buy. Mr. Watts' 

argument fails. Even if admission of the testimony was constitutional error, it was not 

manifest as it had no "practical and identifiable consequences in the trial of the case" 

where there was other testimony showing Mr. Watts had knowledge of the drug 

transactions occurring at his house. State v. Stein, 144 Wn.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 whether sufficient evidence supports Mr. Watts' conviction for 

delivery of a controlled substance. Mr. Watts contends the State's evidence does not 

prove beyond a reasonable doubt he delivered methamphetamine on January 4, 2013. 

He mainly argues Mr. Long was not a credible witness. 

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No. 32215-7-111 

State v. Watts 

Evidence is sufficient to support a guilty finding if '''after viewing the evidence in 

the light most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the 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 the truth of the 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 

defer to the jury's assessment of conflicting testimony, witness credibility, and evidence 

weight. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308,789 P.2d 306 (1989). 

RCW 69.50.401 (1) provides "it is unlawful for any person to deliver ... a 

controlled substance." The jury was instructed each of the following elements must be 

proved beyond a reasonable doubt: "(1) That on or about January 4, 2013, the 

defendant[ ] de1ivered a controlled substance; (2) That the defendant knew that the 

substance delivered was a controlled substance; and (3) That the acts occurred in the 

State of Washington." Clerk's Papers at 39. Mr. Watts' focus is the first element. 

When viewed in the light most favorable to the State, Detective Bowling and Mr. 

Long saw Mr. Watts driving the Explorer on January 4,2013. Mr. Watts drove Ms. 

Mumm to Gene's, where she got out of the car and met with Chino to get drugs. 

Commander Brown verified just prior to 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 Explorer with Ms. Mumm when she weighed out the 

, 

r 

I 

I

, 

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No. 32215-7-111 

State v. Watts 

methamphetamine. Mr. Long said Ms. Mumm handed the bag of methamphetamine to 

Mr. Watts, who then handed it to Mr. Long. When Mr. Long met with the Task Force 

right after this 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' involvement was further buttressed by Ms. Starzyk's testimony 

that Mr. Watts knew Ms. Mumm sold drugs and drove her to pick up the drugs. The jury 

was instructed on accomplice liability. Mr. Watts' act of driving Ms. Mumm to Gene's to 

pick up drugs and remaining in the car with 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 goes to 

the weight, not the admissibility, of Mr. Long's testimony. We do not reweigh evidence 

or decide witness credibility. Mr. Watts was able to cross-examine Mr. Long about his 

dishonesty convictions and his potential bias. At that point, it was up to the jury to 

determine how much weight to give to Mr. Long's testimony. 

D. SAG 

Although Mr. Watts did not challenge the constitutionality of a warrantless arrest 

below, he can raise that issue now in the context of an ineffective assistance of counsel 

claim. McFarland, 127 Wn.2d at 333,338. To establish ineffective assistance of 

counsel, a defendant must show 

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No. 32215-7-111 

State v. Watts 

(1) defense counsel's representation was deficient, i.e., it fell below an 

objective standard of reasonableness based on consideration of all the 

circumstances; and (2) defense counsel's deficient representation 

prejudiced the defendant, i.e., there is a reasonable probability that, 

except for counsel's unprofessional errors, the result of the proceeding 

would have been different. 

Id. at 334-35. 

We strongly 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 met this burden. While the record does not show whether defense counsel's 

decision to waive the erR 3.5 hearing was a legitimate strategic decision, Mr. Watts' 

arrest was 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' arrest was 

supported by probable cause. Absent an affirmative showing the motion would 

probably have been granted, there is no showing of actual prejudice. As for Mr. Watts' 

concern that Mr. Long's information was insufficient to 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. 

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No. 32215-7-111 

State v. Watts 

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. 

~,ftP.:r. Br wn, A.C.J. 

WE CONCUR: 

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