                                                                         FILED
                                                                      JUNE 19, 2018
                                                              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. 35210-2-III
                    Respondent,             )
                                            )
      v.                                    )
                                            )
JAMES EDWARD BOYD,                          )         UNPUBLISHED OPINION
                                            )
                    Appellant.              )

      KORSMO, J. — James Boyd appeals his conviction for possession of

methamphetamine, primarily contending that the trial court erred in denying his motion

to suppress evidence. We affirm.

                                        FACTS

      The Spokane Fire Department arrived at room 105 of the Downtowner motel in

response to a 911 call to provide medical assistance to Mr. Boyd. He was combative, so

assistance was sought from the police department. By the time officers arrived, Mr.

Boyd had calmed down and was accepting treatment. Officers stood by in case their

service was needed. The original 911 caller had also reported that Mr. Boyd was not the

registered occupant of the room.

      An officer called in Mr. Boyd’s name and date of birth, obtained from a

firefighter, while treatment was being provided. Seconds after medical assistance was
No. 35210-2-III
State v. Boyd


concluded, officers were alerted to an outstanding arrest warrant for Mr. Boyd. Two

other officers began questioning Mr. Boyd if he was in the correct room. They had him

put his shoes on. He was then arrested on the outstanding warrant.

       During a pat down prior to beginning a search, an officer felt what appeared to be

a syringe and asked him if there was a needle in the pocket. Mr. Boyd said yes. The

syringe was extracted from the pocket and appeared to be full of heroin. A field test

reported that the substance was heroin. The syringe was subsequently booked into

evidence.

       An initial charge of possession of heroin was filed. The contents of the syringe

were emptied out and sent for laboratory testing. That testing determined that the

controlled substance was methamphetamine rather than heroin. The charge was amended

to reflect the test result.

       The defense moved to suppress the evidence, arguing that the officers had misused

their caretaking function and inappropriately seized Mr. Boyd. Testimony at the

suppression hearing indicated that officers had been alerted to the existence of the arrest

warrant less than ten seconds after the firefighters left the motel room. Mr. Boyd was not

notified of that fact until he had put his shoes back on.

       The trial court denied the motion to suppress, concluding that officers had not

exceeded the scope of the community caretaking function and that the brief delay was

justified while officers confirmed the existence of the arrest warrant. The case

                                              2
No. 35210-2-III
State v. Boyd


subsequently proceeded to jury trial. The defense argued the inconsistency between the

field test and the laboratory test indicated someone may have tampered with the evidence.

Nonetheless, the jury convicted Mr. Boyd as charged.

       He timely appealed to this court. A panel considered the case without hearing

argument.

                                       ANALYSIS

       This opinion addresses two issues.1 First, we consider Mr. Boyd’s challenge to the

suppression hearing ruling. We then turn to his argument that the test results should not

have been admitted into evidence because of a possible break in the chain of custody of

the controlled substance.2




       1
          The brief of appellant also claims that the court erred by imposing the $800 in
mandatory LFOs and that this court should waive appellate costs. The trial court had no
authority to waive the mandatory LFOs, so we will not further discuss that issue. State v.
Mathers, 193 Wn. App. 913, 918-919, 376 P.3d 1163 (2016). We defer the appellate cost
issue to our commissioner in accordance with RAP 14.2 in the event that the State claims
costs on appeal, although we note that Mr. Boyd has not filed a report of continued
indigency in accordance with our General Order.
        2
          Mr. Boyd also filed a personal statement of additional grounds that raises
challenges to the suppression ruling. Since that matter is adequately briefed by appointed
counsel, we need not address it. RAP 10.10(a). However, we will comment on one of
his arguments. He contends that the firefighters violated his health care privacy rights by
giving his identification information to the police. This argument fails because there is
no violation of the statute unless both personal identification information and health care
information are disclosed. Prison Legal News, Inc. v. Dep’t of Corr., 154 Wn.2d 628,
645, 115 P.3d 316 (2005). This record does not show that any health care information
was disclosed to police.

                                            3
No. 35210-2-III
State v. Boyd


       Suppression Hearing

       Mr. Boyd argues that the trial court erred in determining that officers were still

acting in their caretaking capacity when they discovered and arrested him on the

outstanding warrant. Because there were unresolved issues relating to Mr. Boyd’s right

to be in room 105, the police were still acting in the caretaking function.

       One exception to the constitutional protection against warrantless searches and

seizures is the community caretaking function. Cady v. Dombrowski, 413 U.S. 433, 93 S.

Ct. 2523, 37 L. Ed. 2d 706 (1973). This police function is “totally divorced from a

criminal investigation.” State v. Kinzy, 141 Wn.2d 373, 385, 5 P.3d 668 (2000), cert.

denied, 531 U.S. 1104 (2001). Officers may perform routine checks on an individual’s

health and safety and courts will assess those encounters by balancing the individual’s

privacy interest against the public’s interest in having police perform the caretaking

function. Id. at 386-388, 394. A specific type of community caretaking is the emergency

aid function. That function applies when an officer subjectively believes someone needs

assistance, a reasonable person would agree with that assessment, and there is a

connection between the need and the police actions. Id. at 386-387. The emergency aid

function typically “involves circumstances of greater urgency and searches resulting in

greater intrusion.” Id. at 386. In evaluating a general caretaking stop, courts look to the




                                              4
No. 35210-2-III
State v. Boyd


reasonableness of the officer’s behavior. State v. Acrey, 148 Wn.2d 738, 753-754, 64

P.3d 594 (2003).3

       The trial court concluded that the behavior of the police was reasonable and we

agree. There was a very brief ten second period of time between when the firefighters

departed and the police confirmed the existence of the warrant. While it was reasonable

to wait for confirmation, the police could have acted on the preliminary information.

They also still had the unresolved issue of the defendant’s presence in a room that he had

not rented. It was reasonable to determine whether he was a guest or an uninvited visitor.

It also made great sense for police to ask Mr. Boyd to put his shoes on before informing

him that he was under arrest for the warrant. The risk of a confrontation justified a brief

delay in announcing the arrest warrant in order that Mr. Boyd would be properly attired

when he was removed from the motel.

       In short, the brief ten second delay while officers confirmed the existence of an

arrest warrant and sorted out the defendant’s status in the room was consistent with the

caretaking function. The officers’ caretaking purpose had not been completed with the

departure of the medical care providers. The subsequent questioning and dressing of Mr.

Boyd did not unduly extend the caretaking visit.


       3
         Since the police were present to assist firefighters with the medical emergency, it
is arguable that this case involves the emergency aid function rather than the general
community caretaking function. Nonetheless, the firefighters had departed before the
seizure and the trial court analyzed the matter as a caretaking issue. We will as well.

                                             5
No. 35210-2-III
State v. Boyd


       Officers acted reasonably and consistent with their caretaking function in staying

on briefly after the medical caregivers had departed. The trial court did not err in

denying the motion to suppress.

       Chain of Custody

       Mr. Boyd also argues that the conflicting test results indicate that the chain of

custody was interrupted, thus rendering the evidence insufficient to support the

conviction. That argument is not logical and fails for two distinct reasons.

       As to the chain of custody argument, Mr. Boyd has not established any break in

the chain. In criminal cases, evidence is customarily identified by the testimony of each

custodian in the chain of custody from the time the evidence was acquired. State v.

Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984). The proponent need not establish an

unbroken chain of custody. State v. Picard, 90 Wn. App. 890, 897, 954 P.2d 336 (1998).

An allegation that the evidence may have been tampered with goes to weight, not

admissibility. Id.

       Even if a genuine break in the chain of custody had been established, the

appropriate time to raise a foundation objection was when the State sought to admit the

evidence. A successful argument could have led to the exclusion of the controlled

substance test result and a dismissal of charges. Here, however, there was no direct

indication that the chain of custody had been tampered with. Instead, the defense merely

argued that the jury should draw the inference that someone had swapped drug samples

                                              6
No. 35210-2-III
State v. Boyd


from the fact that the two tests conflicted. This allegation merely went to the weight to

be accorded the evidence and was not a basis for exclusion. Id.

       The second reason the chain of custody claim fails is that it is presented as a

sufficiency of the evidence challenge. However, chain of custody does not present a

sufficiency problem. Sufficiency of the evidence is considered under well settled

standards. This court reviews the appellate record to determine if there was evidence

from which the trier of fact could find each element of the offense proved beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d

560 (1979); State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980). The reviewing

court will consider the evidence in a light most favorable to the prosecution. Id. The

appellate court’s focus is on the evidence actually presented to the jury. State v. Jackson,

82 Wn. App. 594, 608, 918 P.2d 945 (1996). Reviewing courts also must defer to the

trier of fact “on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence.” State v. Thomas, 150 Wn.2d 821, 874-875, 83 P.3d 970

(2004). “Credibility determinations are for the trier of fact and are not subject to review.”

Id. at 874.

       Proper consideration of these standards leads to the easy conclusion that the

evidence was sufficient. As charged, the State needed to establish that Mr. Boyd

possessed methamphetamine. The evidence allowed the jury to conclude that Mr. Boyd

possessed the syringe in his pocket. The report of the laboratory technician was that the

                                              7
No. 35210-2-111
State v. Boyd


contents of the syringe were methamphetamine. Ergo, the evidence allowed the jury to

find each of the necessary elements and was sufficient.

       The allegation that there was a break in the chain of custody fails this standard in

several respects. First, it does not view the evidence in a light most favorable to the

Stat�. Second, it does not actually focus on the evidence. Instead, the argument focuses

on mere argument about an inference to be drawn from the facts. Third, the argument

ignores the fact that potential breaks in the chain of custody are merely matters of weight

to be considered by the trier of fact. Here, this argument was made to the jury and

rejected by that body. This court does not get to countermand that decision. Id.

      The evidence was sufficient to allow the jury to make the decision it did.

      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.




WE CONCUR:




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