                                                                             FILED 

                                                                          June 16,2015 

                                                                  In the Office of the Clerk of Court 

                                                                WA State Court of Appeals, Division III 





             IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                                DIVISION THREE 


STATE OF WASHINGTON,                          )         No. 32242-4-111
                                              )
                 Respondent.                  )
                                              )
        v.                                    )
                                              )
GUADALUPE AROUSA, JR.,                        )         UNPUBLISHED OPINION
                                              )
                 Appellant.                   )

       BROWN, J. -   Guadalupe Arousa, Jr. appeals his convictions for possessing

methamphetamine, IJsing drug paraphernalia, and failing to obey a law enforcement

officer. He contends (1) his trial counsel was ineffective in not raising a CrR ,3.6

evidence suppression motion, and (2) the trial court erred in not allowing other-suspect

evidence. Mr. Arousa's pro se statement of additional grounds for review (SAG) states

his personal concerns on these two contentions, and additional concerns regarding the

sufficiency of the charging document, instructional error, and sufficiency of the evidence

related to his use of drug paraphernalia conviction. We affirm.

                                          FACTS

       Moses Lake Police Officer Kyle McCain saw Mr. Arousa wearing a backpack

while riding a bicycle. He radioed his sergeant, Brian Jones, to notify him he has seen a
    No. 32242-4-111
    State v. Arousa


    Hispanic male matching the description of a rape suspect they were searching for in the

    area, then, when passing Mr. Arousa he notified the sergeant otherwise. Next, when

    Mr. Arousa saw the officer in his patrol car, he abruptly turned his bicycle and rode back

    in the direction from which he had just come. Officer McCain thought this behavior was


j   suspicious and' notified his sergeant. Sergeant Jones arrived and witnessed Mr. Arousa

    abruptly turn his bike around and ride against traffic in the opposite direction. Sergeant
1

I
    Jones decided to stop Mr. Arousa for riding his bicycle against traffic. Sergeant Jones

    related he frequently stops cyclists who ride against traffic because it is unsafe. The

    sergeant related he additionally wanted to ask Mr. Arousa if he had noticed an individual

    matching the rape suspect's description in the area.

          When Sergeant Jones approached Mr. Arousa, he sped away. The sergeant

    followed and got close enough to roll down his window and tell Mr. Arousa to stop. Mr.

    Arousa told Sergeant Jones to "fuck off." Report of Proceedings (RP) at 138. The

    sergeant told Mr. Arousa to stop, but Mr. Arousa cut in front of the sergeant's vehicle,

    continued down the street, turned into a driveway, threw down his bike, and ran away.

    The o'fficers pursued Mr. Arousa on foot. As Mr. Arousa rounded the corner of a trailer,

    Sergeant Jones saw him put his hand in his front right pocket, "digging" in the pocket,

    and make a throwing gesture with his hand. RP at 147.

           Mr. Arousa quit running soon after making his throwing motion. The officers then

    caught. arrested, and handcuffed him. Officer McCain stayed with Mr. Arousa while

    Sergeant Jones searched the area where he saw Mr. Arousa make the throwing motion.



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     No. 32242-4-111
     State v. Arousa


     The Sergeant found a bag of methamphetamine sitting on top of easily movable foliage.

     The bag would have likely fallen to the ground had it been there longer. During the

     search incident to Mr. Arousa's arrest, the officers found a glass smoking device

     consistent with the inhalation of methamphetamine in one of his back pockets. The

j	   residue in the pipe tested positive for methamphetamine.

J
}           The State charged Mr. Arousa with possession of methamphetamine, use of drug
]
1	   paraphernalia, and failure to obey a law enforcement officer. Pretrial, Mr. Arousa

     objected to the sufficiency of the information and requested a bill of particulars for the

     use of drug paraphernalia charge, claiming he could not prepare his defense because
1
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~
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     the information listed multiple ways he could have used drug paraphernalia. The court

     denied his request, finding Mr. Arousa would be able to prepare his defense following
j
     discovery and a bill of particulars was not needed at that time. Mr. Arousa sent multiple

     letters to the court, partly complaining about his attorney's decision not to pursue a erR

     3.6 suppression motion, and asking for a new lawyer. Mr. Arousa's counsel filed a 25
I    page memorandum explaining his decisions and pointing out an in-car video clearly

j	   showed the events, including the throw-down behavior and arrest:

j                  [D]efense counsel finds no basis for a suppression motion.
I                  The initial attempt to stop appears to have been supported
                   by articulable suspicion of a traffic infraction. The
                   subsequent arrest was supported by probable case [sic] that
                   defendant committed a gross misdemeanor in the officer's
                   presence. And the search was justified as a search incident
                   to arrest. Defense counsel respectfully finds that any
                   contentions as to racial profiling or pretextual stop are
l                  without merit. 


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1    No. 32242-4-111
Ii   State v. Arousa

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I    Clerk's Papers (CP) at 52. The court denied Mr. Arousa's request for a new lawyer.
1          At trial, when questioning Sergeant Jones Mr. Arousa wanted to introduce

     evidence of the drug use history of the individual who lived at the trailer near where the
1    methamphetamine was found and the drug use history of individuals who visited the
1
     trailer. The court denied his request, finding such evidence speculative, but allowed

I    Sergeant Jones to testify he knew the individual who lived at the home was Kimberly




I
     Hughes and that the officer did not know where Mr. Arousa lived at the time of the stop.

     Mr. Arousa unsuccessfully requested dismissal of the IJse of drug paraphernalia charge



I
   at the close of the State's case. Mr. Arousa did not present a defense. 


           Regarding the use of a drug paraphernalia charge, the court instructed the jury,

     "A person commits the crime of use of drug paraphernalia when he or she uses drug
1
     paraphernalia to plant; propagate, cultivate, grow, harvest, manufacture, compound,

1    convert, produce; process, prepare, test, analyze, pack, repack, store, contain, conceal;

     inject, ingest, inhale or otherwise introduce into the human body a controlled

     substance." CP at 169. The court did not give a unanimity instruction. The jury found

     Mr. Arousa guilty as charged. He appealed.

                                            ANALYSIS

                         A. Ineffective Assistance of Counsel Claim Fails

           The issue is whether Mr. Arousa was denied effective assistance of counsel. He

     claims his counsel was ineffective for failing to request a CrR 3.6 suppression hearing.




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     State v. Arousa

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I           To demonstrate ineffective assistance of counsel, appellant must show: "(1)
iI   defense counsel's representation was deficient, i.e., it fell below an objective standard
1

II   of reasonableness based on consideration of all the circumstances; and (2) defense


I    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
1
!    would have been different." State v. MacFarland, 127 Wn.2d 322, 334-35, 899 P.2d

     1251 (1995). We presume effective representation. State v. Hendrickson, 129 Wn.2d

1    61, 77, 917 P .2d 563 (1996). This presumption can be overcome by a showing
J
i    counsel's "representation was unreasonable under prevailing professional norms and

I    that the challenged action was not sound strategy.   tt   In re Pers. Restraint of Davis, 152

     Wn.2d 647, 673, 101 P.3d 1 (2004). "A failure to establish either element of the test

     defeats the ineffective assistance of counsel claim." Id.

            Defense counsel's decision not to pursue a written erR 3.6 motion to suppress



I    was reasonable. At Mr. Arousa's insistence, his counsel interviewed Sergeant Jones

     and aggressively questioned him about the purpose of the stop. Sergeant Jones


I
,
     consistently asserted he stopped Mr. Arousa to address his illegal and unsafe cycling

     and to question him about the rape suspect officers were looking for in the area. As

     discussed below, counsel researched relevant case law for guidance, and decided such

     stops were not pretextual under the facts. The tactical and strategic decisions

     concerning the case defense are well supported in his counsel's pretrial memorandum.

     Based on this record, the decision to not request suppression did not amount to



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    No. 32242-4-111
    State v. Arousa

j
    deficient performance. Even assuming defense counsel's representation was deficient,
I
    the representation did not prejudice Mr. Arousa because a CrR 3.6 motion would likely
1
J   have been denied.

           A traffic stop is not unconstitutionally pretextual so long as there is an

I
I
    investigation of either criminal activity or a traffic infraction for which the officer has a

j   reasonable articulable suspicion. State v. Chacon Arreola, 176 Wn.2d 284,298,290
I
1
    P.3d 983 (2011). In Arreola, our Supreme Court held a traffic stop motivated primarily
~

I   by an uncorroborated tip "is not pretextual so long as the desire to address a suspected


I   traffic infraction (or criminal activity) for which the officer has a reasonable articulable

    suspicion is an actual, conscious, and independent cause of the traffic stop." Id. at 288.
1   In Arreola, the officer's primary motivation in pulling the defendant's car over was to

    investigate a reported DUI (driving while under the influence). Id. at 289. But, because

    his secondary motivation, the car's altered exhaust in violation of RCW 46.37.390, was

    an actual reason to stop the defendant, the stop was not pretextual. Id. at 299-300.

           Here, two valid, independent reasons for the stop existed: bicycling against traffic

    under RCW 46.61.755; and investigating a nearby rape. No pretext is shown. Thus, a

    motion to suppress would not have been granted based on the evidence in our record.

    Therefore, without a showing that, except for counsel's unprofessional errors, the result

    of the proceeding would have been different, Mr. Arousa cannot establish prejudice.

    "For judges to second-guess reasonable professional judgments and impose on

    appointed counsel a duty to raise every 'colorable' claim suggested by a client would



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No. 32242-4-111
State v. Arousa


disserve the very goal of vigorous and effective advocacy. Nothing in the Constitution

or our interpretation of that document requires such a standard."· Jones v. Barnes, 463

U.S. 745, 754, 103 S. Ct. 3308,77 L. Ed. 2d 987 (1983). Given all, we conclude Mr.

Arousa's ineffective assistance of counsel claim fails.

                                   B. Evidence Rulings

       The issue is whether the trial court erred by abusing its discretion in excluding

evidence of Ms. Hughes' alleged prior drug use and the alleged drug IJse of individuals

who visited Ms. Hughes' trailer near to where the controlled substance was found.

       We review a trial court's evidentiary rulings for abuse of discretion. State v.

McDonald, 138 Wn.2d 680, 693, 981 P.2d 443 (1999). Similarly, we review a trial

court's ruling on the scope of cross-examination for abuse of discretion. State v.

Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002). A trial court has "broad discretion

in ruling on evidentiary matters and will not be overturned absent manifest abuse of

discretion." Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662-63, 935 P.2d 555 (1997).

A trial court abuses its discretion when its decision is manifestly unreasonable or

exercised on untenable grounds or for untenable reasons. State v. Lord, 161 Wn.2d

276,283-84,165 P.3d 1251 (2007).

      "[A] criminal defendant 'does not have an unfettered right to offer testimony that

is incompetent, privileged, or otherwise inadmissible under standard rules of evidence."'

State v. Drummer, 54 Wn. App. 751, 755, 775 P.2d 981 (1989) (quoting Illinois v.

Taylor, 484 U.S. 400, 410, 108 S. Ct. 646 (1988)). ER 404(a) states, "Evidence of a



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No. 32242-4-111
State v. Arousa


person's character or a trait of character is not admissible for the purpose of proving

action in conformity therewith on a particular occasion." Further, ER 404(b) states,

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith."

       Mr. Arousa sought to admit evidence of Ms. Hughes' alleged drug use and

speculative evidence of other individuals' drug use who might have visited her trailer as

evidence of other crimes or wrongs offered to prove conformity on this occasion. Mr.

Arousa wanted to show that people on the property had possessed drugs in the past

and thus, the jury could infer that they were more likely to be the ones who discarded

the methamphetamine found in the bushes. This is clearly barred by ER 404(a) and (b).

There was no other purpose for the evidence other than conformity.

       Moreover, "when a defendant seeks to introduce evidence connecting another

person with the charged crime, a proper foundation [is required]. 'Before such

testimony can be received, there must be such proof of connection with the crime, such

a train of facts or circumstances as tend clearly to point out someone besides the

accused as the guilty party.'" State v. Clark, 78 Wn. App. 471,477, 898 P.2d 854

(1995) (quoting State v. Downs, 168 Wash. 664, 667, 13 P.2d 1 (1932)). In Clark, the

court held, u[T]he defendant cannot attempt to rebut the State's case with insufficient

evidence that someone else committed the crime." Id. at 479.

      Mr. Arousa did not point to a specific visitor who might have dropped the drug.

Evidence showed Mr. Arousa was seen making a throwing motion after taking his hand



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No. 32242-4-111
State v. Arousa


out of his right pocket and the bag of methamphetamine was found where it would have

been had Mr. Arousa thrown it at that time. The bag was found on top of movable

foliage and unlikely to have been there for very long. Mr. Arousa had a pipe in his

pocket containing methamphetamine residue, and he stopped running away shortly

after he had made the throwing motion after refusing to stop several times previously.

No evidence showed other individuals in the area. Without a similarity between the

actual evidence and the circumstantial evidence offered by Mr. Arousa, the court

properly excluded the evidence.

      Even if the trial court abused its discretion in excluding the evidence, it is not

reasonably probable the outcome of the trial was materially affected by the exclusion.

Evidentiary errors under ER 404 are harmless unless the error, within reasonable

probabilities, affected the outcome of the trial. State v. Gresham, 173 Wn.2d 405, 433,

269 P.3d 207 (2012). Given the strength of the State's case, it is unlikely the outcome

of Mr. Arousa's trial has been any different. Thus, any error is harmless.

                                         C. SAG

      To the extent the SAG raises concerns adequately addressed by Mr. Arousa's

appellant counsel and discussed above, we do not review them again in the SAG

context. See RAP 10.1 O(a) (purpose of SAG is to "discuss those matters related to the

decision under review that the defendant believes have not been adequately addressed

by the brief filed by the defendant's counsel"). We turn now to Mr. Arousa's pro se

concerns regarding the charging document, unanimity, and evidence insufficiency.



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     State v. Arousa


             First, Mr. Arousa argues the information alleging multiple ways violate the drug


I    paraphernalia use statute was constitutionally insufficient. A defendant has a

     constitutional right to be informed of the nature and cause of the charges against him.
1

i
   State   v. Greathouse, 113 Wn. App. 889, 899-900, 56 P.3d 569 (2002) (citing WASH. 


I    CONST. article 1 § 22; United States Constitution, Sixth Amendment.) Under the

     essential elements rule, a charging document must allege facts supporting every

     element of the offense, in addition to adequately identifying the crime charged. State         v.
     Leach, 113 Wn.2d 679,689,782 P. 2d 552 (1989).

             We distinguish between charging documents that are constitutionally insufficient

     (Le., documents that fail to allege sufficient facts supporting each element of the crime

     charged) and those that are merely vague. Leach, 113 Wn.2d at 686. Mr. Arousa

     preserved this issue for appeal by requesting a bill of particulars. See State v. Holt, 104

     Wn.2d 315,320,704 P.2d 1189 (1985) ("a defendant is not entitled to challenge the

     information on appeal if he failed to request the bill of particulars at an earlier time.").

     We review a trial court's ruling on a bill of particulars for abuse of discretion. State v.

     AI/en, 116 Wn. App. 454, 460, 66 P.3d 653 (2003).

             The information states Mr. Arousa "did use drug paraphernalia to plant,

     propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process,

     prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or

     otherwise introduce into the human body a controlled substance, to-wit-Amphetamine;

     contrary to Revised Code of Washington 69.50.412(1 )." CP at 2. In an information, it is
                                                                                                         J

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     No. 32242-4-111
     State v. Arousa


     sufficient to charge in statutory language if the statute defines the crime sufficiently to

     apprise an accused person with reasonable certainty of the nature of the accusation.

     Leach. 113 Wn.2d at 686.


I           Here, the information mirrors RCW 69.50.412(1). The information lists several



I    ways to use drug paraphernalia, but the paraphernalia seized was a methamphetamine

     pipe, which is used for inhalation. Since residue was still in the pipe when it was
I
,!
1    located, the pipe would "contain" methamphetamine. RCW 69.50.412(1). Therefore,
I
II   because the information patterns the statutory offense and because all facts relied upon
i
i
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     by the State were revealed to the defense, the charging document was sufficient. "No


I    bill of particulars is required if the particulars are already in the charging document."

     State v. Turner, 167 Wn. App. 871,879,275 P.3d 356 (2012). Thus, the court had

     tenable grounds to deny Mr. Arousa's request for a bill of particulars.

            Second, we acknowledge Mr. Arousa's unanimity concern and review de novo

     whether a unanimity instruction is required. State v. Linehan, 147 Wn.2d 638,643,645,

     56 P .3d 542 (2002). Because the failure to give a unanimity instruction is an error of

     constitutional magnitude, Mr. Arousa may raise the issue for the first time here. State v.

     Locke, 175 Wn. App. 779, 802, 307 P.3d 771 (2013), review denied, 179 Wn.2d 1021

     (2014). For a defendant's conviction to be constitutionally valid, a unanimous jury must

     conclude the accused committed the criminal act charged. State v. Kitchen, 110 Wn.2d

     403,411,756 P.2d 105 (1988). When multiple incidents are alleged. anyone of which




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State v. Arousa


could constitute the crime charged, the jury must unanimously agree on which incident

constitutes the crime. Id.

       In deciding this question, we view the facts in a common sense manner. State v.

Petrich, 101 Wn.2d 566,571,683 P.2d 173 (1984). Our facts demonstrate the

paraphernalia was a pipe with methamphetamine residue. A bag of methamphetamine

was discarded nearby. The prosecutor elected two uses in closing argument, contain

and inhale: "There's [sic] a lot of ways that this crime, you could manufacture it, you

could harvest it, you could cultivate it, you can test it, you can pack it. The two that I

would like you to pay attention to are near the end, they're contain and inhale." RP at

260. In State v. Bland, 71 Wn. App. 345, 352, 860 P.2d 1046 (1993), the court held

closing argument identifying a particular act for each count supported conclusion that

the State made an election. At no point did the State argue the jury could base its

verdict on any other use. Based on our facts, a unanimity instruction was not required.

       Third, Mr. Arousa argues insufficient evidence supports his use of drug

paraphernalia conviction. He unsuccessfully made the same argument to the trial court.

A trial court's order denying a motion to dismiss is reviewed for a manifest abuse of

discretion. State v. Hanna, 123 Wn.2d 704, 715, 871 P.2d 135 (1994).

       Evidence is sufficient to support a conviction where, '''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) (quoting Jackson v. Virginia, 443 U.S. 307, 319,



                                              12 

No. 32242-4-111­
State v. Arousa


99 S. Ct. 2781,61 L. Ed. 2d 560 (1979». "When the sufficiency of the evidence is

challenged in a criminal case, all reasonable inferences from the evidence must be

drawn in favor of the State and interpreted most strongly against the defendant." State

v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Evidentiary inferences favoring

the defendant are not considered in a sufficiency of the evidence analysis. State v.

Jackson, 62 Wn. App. 53, 58 n. 2, 813 P.2d 156 (1991). Nor do we review a jury's

credibility determinations on appeal. State v. Camarillo, 115 Wn.2d 60, 71,794 P.2d

850 (1990). Circumstantial evidence can support a conviction. State v. Goodman, 150

Wn.2d 774, 781, 83 P.3d 410 (2004). "In determining the sufficiency of the evidence,

circumstantial evidence is not to be considered any less reliable than direct evidence."

State v. De/marier, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Circumstantial evidence

may be used to prove any element of a crime. State v. Garcia, 20 Wn. App. 401, 405,

579 P.2d 1034 (1978).

       To convict for unlawful use of drug paraphernalia, the State must prove beyond a

reasonable doubt the person has used "drug paraphernalia to plant, propagate,

cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare,

test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise

introduce into the human body a controlled substance other than marijuana." RCW

69.50.412(1 ).

       Here, officers found a glass smoking pipe in one of Mr. Arousa's back pockets.

The smoking device was consistent with the inhalation of methamphetamine. Residue



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No. 32242-4-111
State v. Arousa


of methamphetamine was in the pipe. Methamphetamine was located in a place Mr.

Arousa dug into his pocket and made a throwing gesture. Viewing the evidence in the

light most favorable to the State, and being mindful that circumstantial evidence is as

reliable as direct evidence, sufficient evidence exists to support Mr. Arousa's use of

drug paraphernalia conviction.

      Affirmed.

      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.




                                                   Brown, J.
WE CONCUR:




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