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UNPUBLISHED OPINION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.

Filed

Washington State

Court of Appeals

Division Two

January 15, 2019
No. 50327-1-II

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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.
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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 Wn.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 Wn. 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.
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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 Wn.2d 83, 90, 355 P.3d 1111 (2015) (Fourth Amendment); 

State v. Ollivier, 178 Wn.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 

Wn.2d at 846–47 (quoting State v. Jackson, 150 Wn.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 Wn.2d 177, 183, 196 P.3d 658 (2008). We consider 

only the information contained in the affidavit supporting probable cause. Neth, 165 Wn.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 Wn.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 Wn.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.
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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 Wn.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 Wn. 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. 
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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 Wn.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 Wn.2d 1, 16-17, 391 P.3d 409 (2017). “To establish that a defendant was armed for the 
No. 50327-1-II

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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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.2d at 506; State v. Eckenrode, 159 Wn.2d 488, 494-95, 150 P.3d 

1116 (2007). 
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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 Wn.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
No. 50327-1-II

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The State has a legitimate interest in protecting the identity of CIs. State v. Moen, 150 

Wn.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 Wn. 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 Wn. 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 Wn. 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.
No. 50327-1-II

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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 Wn.2d 438, 442, 258 P.3d 43 (2011) 

(quoting State v. Magers, 164 Wn.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 Wn.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.
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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.