State v. Gilbert

5 Wn.App.2d 1029

STATE OF WASHINGTON, Respondent, v. SHANE CHRISTOPHER GILBERT, Appellant.

No. 50112-1-II

Court of Appeals of Washington, Division 2

October 2, 2018

UNPUBLISHED OPINION

Worswick, J.

Shane Christopher Gilbert appeals his conviction for possession of a controlled substance with the intent to deliver. Gilbert argues that (1) the trial court erred in admitting certain items of physical evidence because the State failed to establish the chain of custody, (2) the evidence is insufficient to show his constructive possession of drugs found in a car, and (3) he received ineffective assistance of counsel because his trial counsel did not move to suppress untested evidence purported to contain drugs.

We hold that (1) Gilbert failed to preserve his chain of custody argument for appeal, (2) there is sufficient evidence to support his conviction, and (3) Gilbert received effective assistance from his trial counsel. Consequently, we affirm Gilbert's conviction.

FACTS

While patrolling near Bonney Lake, Deputy Dennis Miller observed a Toyota 4Runner parked in front of a residence, seemingly unoccupied. ^[1] Deputy Miller peered through the rear window of the 4Runner and observed a body lying on the floorboards between the front and back seats. The upper half of the body was covered with clothing and a shop vac. Deputy Miller could see the body from the waist down. Deputy Ken Solbrack arrived at the scene to assist Deputy Miller. Both deputies repeatedly attempted to rouse the person by knocking on the window and speaking. The body did not move.

Fearing this person between the seats was either having a medical emergency or deceased, Deputy Miller opened the rear door. The person, later identified as Gilbert, moved his hand quickly toward his waistband area. Deputy Miller recognized Gilbert and was aware that he had an outstanding warrant for his arrest, so Deputy Miller took Gilbert into custody. Deputy Miller then searched Gilbert's person and found a glass drug pipe with residue, a zippered orange pouch, a small clear plastic bag containing a white crystalline substance, and forty dollars cash. Deputy Miller placed the items on the hood of his patrol vehicle. He did not open the orange pouch, but felt that the pouch contained something.

During the search, Gilbert began to shake and convulse as if he were suffering from a seizure. Deputy Solbrack called for medical assistance. Krystal Nyland emerged from the residence and alerted the deputies that Gilbert was hypoglycemic. Nyland's hair was dyed green and red. She retrieved some chocolate pudding to give to Gilbert. While Nyland knelt and administered scoops of pudding into Gilbert's mouth, the pair conversed. Neither Deputy Miller nor Deputy Solbrack heard what was said.

After speaking with Gilbert, Nyland stood up, grabbed the orange pouch from the hood of the patrol vehicle, and ran. Deputy Solbrack gave chase but was unable to catch Nyland. Deputy Solbrack returned to the scene, retrieved his patrol car, and continued to pursue Nyland. He located and apprehended Nyland, who was hiding in some blackberry bushes along the road. The amount of time between Nyland's flight from the scene and her apprehension was less than a minute. Deputy Solbrack searched Nyland and found a small bag of suspected methamphetamine. She did not have the orange pouch. A K-9 Unit was brought to the scene and found the orange pouch in blackberry bushes up an embankment along where Nyland had run. Inside the orange pouch Deputy Miller found two bags one containing a large uncut rock of suspected methamphetamine and the other containing smaller pieces of suspected methamphetamine.

Vance Mettlen, a firefighter and paramedic who responded to the aid call, observed a female with bright multicolored hair running down the street with "something baglike" in her hand. 2 Verbatim Report of Proceedings (VRP) at 340. Mettlen observed her moving quickly, falling and trying to throw the bag multiple times. Thomas Lewis, who had pulled over to the side of the road to yield to the firetruck, also saw Nyland. Lewis saw a woman with green hair staggering down the road and carrying what looked like a paper bag. Lewis observed her attempting to throw the bag multiple times. She then attempted to hide. Lewis directed Deputy Solbrack to her location.

Gilbert later admitted to Deputy Miller that he uses a large amount of methamphetamine. However, Gilbert denied selling methamphetamine, and denied possessing any that day.

The following day, Deputy Eric Jank searched the 4Runner and discovered a metal box on the floorboards between the front and back seats. The metal box was located under where Gilbert's legs would have been when he was first spotted by Deputy Miller. Inside the metal box were three bags of suspected methamphetamine, a digital scale, a cigarette package containing unused clear bags, and a plastic container with white residue. Deputy Jank photographed the contents of the metal box before sending them for testing. One photograph depicted the three bags of suspected methamphetamine appearing to contain similar substances and packaged similarly.

Also on the following day, Gilbert made a telephone call while in police custody. On the call, Gilbert was heard saying "they hit me with 101 grams." 3 VRP at 463. He also said, "I had five ounces on me, and I dropped off two to Michelle," and "All I was going to do was drop off some to you all, some to my b**ch." 3 VRP at 463. The State charged Gilbert with possession of a controlled substance, to wit, methamphetamine, with the intent to deliver in violation of RCW 69.50.401(1)(2)(b).

At trial, witnesses testified to the above facts. Additionally Deborah Price, an analyst from the Washington State Patrol Crime Laboratory, testified. She tested five different items of evidence obtained from the scene. She tested the bag from Gilbert's pants pocket and confirmed it contained 2.8 grams of methamphetamine. Price tested the contents of two bags from the orange pouch, the uncut rock and smaller pieces found in the orange pouch, which both contained methamphetamine. One of these bags weighed 52.5 grams. Price also randomly tested one of the three bags found inside the metal box. She found that the tested bag contained methamphetamine. ^[2] Price did not testify as to why she randomly tested one of the three bags from the box instead of testing all three. Further, she did not test the plastic container with the white residue found in the metal box.

The trial court admitted several exhibits during the proceeding. The small bag from Gilbert's pants pocket was marked as "Exhibit" 15. Exhibits 16 and 17 were the two larger bags containing the uncut rock and smaller pieces found in the orange pouch. Exhibit 18 was the orange pouch itself. Gilbert did not object to the admission of Exhibits 15, 16, 17, or 18.

Exhibit 21 contained the three bags taken from the metal box. Deputy Jank took a photograph of these three bags during his search of the metal box, which was admitted as Exhibit 13. Gilbert did not object to the admission of either Exhibits 13 or 21. Exhibit 24 was the plastic container found in the metal box. Gilbert objected to the relevancy of Exhibit 24, but the court admitted the evidence over his objection. Exhibit 26 was the metal box itself and was admitted without objection.

During closing argument, Gilbert's counsel aimed to cast doubt on Exhibit 21, because two of the three bags were not tested. Specifically, Gilbert's attorney argued, "But keep in mind, ladies and gentlemen, that what's been admitted as No. 21, which contained three packages, she only weighed or tested one. So what's the other? Don't know. If we speculate, but we can't. . . . You['ve] got to run it through these tests. You got to compare the crystals." 4 VRP at 550. The State's closing argument emphasized the cumulative amount of methamphetamine as Gilbert's intent to deliver.

A jury found Gilbert guilty as charged. Gilbert appeals his conviction.

ANALYSIS

I. Chain of Custody of the Orange Pouch and its Contents

Gilbert argues that Exhibits 15, 16, and 17 were improperly admitted because the State did not prove a sufficient chain of custody after Nyland took the pouch from Deputy Miller's patrol vehicle and ran from the scene. The State argues that Gilbert failed to preserve this argument by not objecting during trial.

We agree with the State and hold that Gilbert failed to preserve his chain of custody argument for appeal because he failed to object to the exhibits' admission below.

With limited exceptions, we will not review an issue raised for the first time on appeal. RAP 2.5(a). A party objecting to the admission of evidence must make a timely and specific objection at trial unless the error constitutes manifest constitutional error. RAP 2.5(a)(3). When the defendant fails to object to an alleged error at trial, he "has the initial burden of showing that (1) the error was 'truly of constitutional dimension' and (2) the error was 'manifest.'" State v. Grimes, 165 Wn.App. 172, 185-86, 267 P.3d 454 (2011) (quoting State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)). "Generally evidentiary errors are not of [a] constitutional magnitude." State v. Grier, 168 Wn.App. 635, 643 n.16, 278 P.3d 225 (2012) (citing State v. Chase, 59 Wn.App. 501, 508, 799 P.2d 272 (1990)).

Here, Gilbert did not object to the admission of Exhibits 15, 16, or 17 during his trial. On appeal, Gilbert makes no attempt to show that the admission of these exhibits is manifest constitutional error. We hold that Gilbert failed to preserve his chain of custody issue regarding Exhibits 15, 16, and 17, and we do not consider Gilbert's chain of custody argument.

II. Constructive Possession of the...