      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                 )
STATE OF WASHINGTON,                             )        No. 75234-1-I
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                                                 /                                    cz~
                           Respondent,           )        DIVISION ONE                ~
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                                                                                      I      c~--~.
               V.                                )                                    P0

                                                 )
EUAL NEOSHIE DAVIS,                              )        UNPUBLISHED

                           Appellant             )        FILED July25 2016           ~



       Cox, J.      —   EuaI Davis appeals his judgment and sentence for theft and

possession of a controlled substance. He argues that the court abused its

discretion by admitting physical evidence without a sufficient chain of custody.

He also argues he established that he unknowingly possessed the controlled

substance. Finally, he argues that he was subject to custodial interrogation in

violation of Miranda v. Arizona.1

       Davis’s arguments about the chain of custody go to the evidence’s weight,

not its admissibility. Substantial evidence supports the trial court’s finding that

Davis failed to establish the defense of unwitting possession of the controlled

substance. Finally, Davis was not subject to custodial interrogation because the

private security guard who questioned him was not a state agent. We affirm his

judgment and sentence.




       1   384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 75234-1 -1/2


       Davis was in a Wal-Mart store when the store’s loss prevention manager

noticed him opening and hiding merchandise. The manager called the police,

who arrested Davis in the store. When the arresting officer searched Davis, he

found a glass pipe in his pocket. This pipe contained a controlled substance.

While Davis was being searched, the loss prevention manager asked Davis

questions.

       The State charged Davis with theft and possession of a controlled

substance. The parties agreed to a bench trial. At trial, the State introduced the

glass pipe and Davis’s statements to the loss prevention manager. Davis

testified that he did not know the pipe contained a controlled substance.

       The trial court found Davis guilty as charged.

       Davis appeals.

                            ADMISIBILITY OF EVIDENCE

       Davis argues that the trial court abused its discretion by admitting the

glass pipe into evidence without a proper chain of custody. We disagree.

       “Before a physical object connected with the commission of a crime may

properly be admitted into evidence, it must be satisfactorily identified and shown

to be in substantially the same condition as when the crime was committed.”2

Factors that the trial court may consider “‘include the nature of the article, the

circumstances surrounding the preservation and custody of it, and the likelihood

of intermeddlers tampering with it.”3 Minor discrepancies affect only the


       2   State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984).

           Id. (quoting Galleqo v. United States, 276 F.2d 914, 917 (9th Cir. 1960)).

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No. 75234-1-113


evidence’s weight, not its admissibility.4 Thus, failure to establish an unbroken

chain of custody does not make the item inadmissible if the State “properly

identifie[s] [it] as being the same object and in the same condition as it was when

it was initially acquired.”5

       We review for abuse of discretion a trial court’s evidentiary rulings.6 “A

trial court abuses its discretion if its decision is manifestly unreasonable or based

upon untenable grounds or reasons.”7

       Here, the trial court did not abuse its discretion. At trial, the arresting

officer testified that he found a “[d]ark blue glass pipe” in Davis’s pocket.

Although the officer found the pipe intact, and the State introduced a partially

broken pipe, the officer identified the pipe as the one he found in Davis’s pocket.

       The officer further testified that he handed the pipe to another officer to

conduct a field test. He also described his department’s evidence handling

protocols. He testified that the evidence sheet for the pipe contained a badge

number that matched the badge number of the officer who field tested the pipe.

The evidence sheet also contained the investigation number that the arresting

officer assigned to Davis’s case.




       ~ Id.

       ~ State v. Picard, 90 Wn. App. 890, 897, 954 P.2d 336 (1998) (quoting
State v. DeCuir, 19 Wn. App. 130, 135, 574 P.2d 397 (1978)).
       6   State v. Garcia, 179 Wn.2d 828, 846, 318 P.3d 266 (2014).

           Id. (quoting State v. Lamb, 175 Wn.2d 121, 127, 285 P.3d 27 (2012)).


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No. 75234-1 -114


       The officer testified that under his department’s protocol, the evidence

would be placed in temporary evidence locker, from which only an evidence

technician could remove the evidence. From there, the evidence would be

placed in a secure and alarmed room.

       The evidence sheet for the pipe also included a sticker from the

Washington State Patrol Crime Lab. The number on this sticker matched the

number on the crime lab’s report, which was also admitted into evidence.

       The trial court did not abuse its discretion by admitting the evidence based

on this testimony. At trial, the officer positively identified the pipe as the same

one the officer confiscated near the time of Davis’s arrest. And although it was

partially broken, it was still in substantially the same condition as when he found

it. And the officer’s testimony about the department’s protocols allowed the court

to consider the likelihood that the evidence had been tampered with. Minor

discrepancies, such as the fact that the pipe was partially broken, go to the

weight of the evidence. They do not establish that the court abused its discretion

by admitting the evidence.

       Davis argues that the trial court abused its discretion because the

arresting officer was not present when the pipe was field tested, packed as

evidence, or sent to the crime lab. But these arguments go the evidence’s

weight, not its admissibility. For the reasons described earlier, the court did not

abuse its discretion in admitting the pipe.




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No. 75234-1 -1/5


                 POSSESSION OF A CONTROLLED SUBSTANCE

       Davis argues that he established that he unknowingly possessed the

controlled substance in this case. We disagree.

       RCW 69.50.4013 criminalizes possession of a controlled substance.

Under this statute, the State must prove that the defendant possessed the

substance and that it was a controlled substance.8 The State is not required to

prove knowledge about either possession or the substance’s controlled nature.9

       To lessen “‘the harshness of the almost strict criminal liability” of this

statute, the supreme court created the affirmative defense of “unwitting

possession.”1° Once the State establishes a prima facie case, the defendant

may establish that he unknowingly possessed the controlled substance.11

Because unwitting possession is an affirmative defense, the defendant bears the

burden of proving it by a preponderance of the evidence.12

       We defer to the fact finder’s determination as to the weight and credibility

of the evidence.13




       8   State v. Bradshaw, 152 Wn.2d 528, 538, 98 P.3d 1190 (2004).

       ~ State v. Staley, 123 Wn.2d 794, 799, 872 P.2d 502 (1994).

       10 City of Kennewick v. Day, 142 Wn.2d 1, 11, 11 P.3d 304 (2000) (quoting
State v. Cle~pe, 96 Wn.2d 373, 381, 635 P.2d 435 (1981)).
       ~ Staley, 123 Wn.2d at 799.

       12   City of Kennewick, 142 Wn.2d at 11.

       13   State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).



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No. 75234-1-116


       Here, the pipe found in Davis’s pocket contained the controlled substance.

Davis testified that he found the pipe and did not know that the substance was in

the pipe.

       Davis argues that his conviction was improper because there was no

evidence that he knew the pipe contained a controlled substance. This argument

is unpersuasive.

       It was Davis’s burden to establish unwitting possession. The fact finder, in

this case the trial court, was free to disbelieve Davis’s testimony. The court

identified several inconsistencies between Davis’s testimony and the other

evidence in the case. We defer to the fact finder’s credibility determinations.14

Substantial evidence supports the court’s determination that Davis failed to meet

his burden for unknowing possession.

       Davis also assigns error to two of the court’s findings. But his opening

brief does not include any argument on these assignments of error. “A party that

offers no argument in its opening brief on a claimed assignment of error waives

the assignment.”15 Thus, we do not further discuss these assignments of error.

                                     MIRANDA

       Davis also argues that the trial court admitted a statement he made during

custodial interrogation in violation of Miranda. We hold that there was no

custodial interrogation by a state agent.



       14   Id.

       15   Brown v. Vail, 169 Wn.2d 318, 336 n.11, 237 P.3d 263 (2010).



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No. 75234-1-1/7


       Miranda prohibits the State from using a defendant’s statements resulting

from “custodial interrogation” unless the defendant was informed of certain

rights.16 We presume that self-incriminating statements made in custody violate

the Fifth Amendment unless the State shows that the defendant received

Miranda warnings.17

       Miranda’s requirements initially applied only to law enforcement officers.18

But Miranda now applies to any state agent “who ‘testifie[s] for the prosecution’

regarding the defendant’s custodial statements.”19 The supreme court has noted

that “any state employee” who conducts a custodial interrogation is likely a state

agent under Miranda.2°

       Here, the loss prevention manager questioned Davis after he had been

handcuffed by the arresting police officer. The State concedes that Davis was in

custody and that the questions would constitute interrogation. Thus, the

determinative question is whether the loss prevention manager was a state

agent. We hold that he was not.




        16   Miranda, 384 U.S. at 444.

        17   Statev. Sargent, 111 Wn.2d 641, 648, 762 P.2d 1127 (1988).

        18   Miranda, 384 U.S. at 444.

        19   State v. Heritage, 152 Wn.2d 210, 216, 95 P.3d 345 (2004) (alteration in
original).
        20   Id. (quoting State v. Warner, 125 Wn.2d 876, 885, 889 P.2d 479
(1995)).


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No. 75234-1-1/8


      First, the loss prevention manager was not a state employee. Additionally,

he was not acting on the State’s behalf. He testified that he questioned Davis

because Wal-Mart policy required him to write a statement. He testified:

      I have to write a statement for [Wal-Mart], because we never know
      what’s going to happen later on down the road. And I have to
      answer to why this person is in the office. I have to let [Wal-Mart]
      know what they were saying and all this kind of stuff. So my
      questions are more for me.~21~

He also testified that he asked Davis questions because he enjoyed talking to

people:

      And just the way I am and the way I’ve always been, I like to know
      what’s going on with people, why they are doing what they are
      doing, what’s going on in their life, and so I just ask questions. And
      I like to talk to them and so kind of that’s just what I do.~221

      Thus, the loss prevention manager was not seeking to gather evidence

against Davis on the State’s behalf. Instead, he was asking questions for his

private purposes.

       Davis relies on State v. Heritage23 to argue that the loss prevention

manager was a state agent. But that case is distinguishable. In Heritage, the

supreme court applied Miranda to park security officers who were “city

employees but not commissioned police officers.”24 These officers “wore a duty

belt containing pepper spray, a collapsible baton, handcuffs, a radio, and a


       21   Report of Proceedings (June 11, 2015) at 24.

       22   Id.

       23   152 Wn.2d 210, 95 P.3d 345 (2004).

          24kiat212.


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No. 75234-1 -119


flashlight holder.”25 And their duties included investigating and reporting

crimes.26 Because the officers in that case approached the defendant and

“authoritatively asked questions,” the court determined that a reasonable person

would view the officers as law enforcement officers.27

       But Heritage is distinguishable from the present case. Here, the loss

prevention manager was not a government employee. Additionally, he was not

investigating crimes on the government’s behalf. And the facts of this case do

not indicate that a reasonable person would believe that the loss prevention

manager was a law enforcement officer. Thus, Davis’s argument is

unpersuasive.

       We affirm the trial court’s judgment and sentence.~             ~..T

WE CONCUR:




       25kiat217.
       26   Id.

       27   Id.


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