                                                                           FILED 

                                                                        August 6, 2015 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                          )         No. 32215-7-111
                                              )
                     Respondent,              )
                                              )
              v.                              )
                                              )
ROBERT GENE WATIS,                            )         UNPUBLISHED OPINION
                                              )
                     Appellant.               }

       BROWN, A.C.J. -   Robert Watts appeals his conviction for delivery of a controlled

substance (methamphetamine). He contends (1) probable cause did not support his

warrantless arrest, (2) irrelevant testimony was admitted, (3) insufficient evidence

supports his conviction, and (4) cumulative error. In his statement of additional grounds

for review (SAG), Mr. Watts raises one additional concern, alleging ineffective

assistance of counsel. We affirm without reaching cumulative error.

                                          FACTS

       The State charged Mr. Watts with delivering methamphetamine within 1,000 feet

of a school bus stop while acting as a principal or accomplice on January 4, 2013.

These charges arose from an investigation by the Organized Criminal Drug

Enforcement Task Force (OCDET) targeting Christian Gonzales, known as Chino, for

distribution of controlled substances in parts of Washington. In a joint effort with
No. 32215-7-111
State v. Watts


OCDET, Commander Steve Brown, Detective Brian Bowling, Agent Jeff Prock, and

Agent Seth Thomas, part of the North Central Washington Narcotics Task Force ("Task

Force"), utilized a confidential informant, Lyle Long, to execute multiple controlled buys

of methamphetamine from Lisa Mumm. The Task Force wanted to use Ms. Mumm to

get to Chino.

       The first controlled buy occurred on December 7, 2012. Mr. Long, under Task

Force supervision, met Ms. Mumm at 95 Old Riverside Highway, a house owned by Mr.

Watts' mother. The house was occupied by Mr. Watts, his girlfriend Ms. Mumm, and

their roommate, Melissa Starzyk. Shortly after Mr. Long entered the house, a white

Chevrolet Tahoe arrived; Ms. Mumm exited the house and made contact with Chino, the

driver, before reentering the house. Ms. Mumm delivered methamphetamine to Mr.

Long. Soon after, Mr. Long left and met up with detectives. Mr. Long told detectives

that while Mr. Watts was at the house that day, he did not directly participate in the buy.

      The second controlled buy occurred on January 4, 2013. The buy began at the

house at 95 Old Riverside Highway before moving to the parking lot of Gene's Food

Harvest (Gene's). Mr. Watts drove Ms. Mumm to Gene's in a blue Ford Explorer

registered to him and parked in the north parking lot; Mr. Long drove to Gene's

separately, parking in the same lot. Ms. Mumm exited the passenger side, entered

Gene's via the north doors, then exited Gene's through the south doors and met with

Chino in the south parking lot. After Ms. Mumm returned to the Explorer, Mr. Watts and

Mr. Long drove separately to the south parking lot. The Task Force lost sight of Mr.



                                             2

No. 32215-7-111
State v. Watts


Long, but Mr. Long told the Task Force Mr. Watts drove Ms. Mumm to Gene's, was in

the car when Ms. Mumm weighed the methamphetamine, and passed the bag of

methamphetamine from Ms. Mumm to Mr. Long. Mr. Long remained in contact with the

Task Force throughout the buy.

       The final controlled buy occurred on February 1, 2013. Mr. Long drove to the

house at 95 Old Riverside Highway. Ms. Mumm and Ms. Starzyk then used Mr. Watts'

Explorer to deliver methamphetamine to Mr. Long at a different location. Again, Mr.

Long remained in contact with the Task Force. Following the controlled buy, Mr. Long

met with the Task Force, who discovered $20 in stolen Task Force money hidden in his

hat. Mr. Long was not used as an informant again, and he was arrested for theft.

       On February 4, 2013, Commander Brown and Agent Thomas met with Mr. Watts

and Ms. Mumm at their home and told Mr. Watts of the evidence of his involvement in

the January 4 delivery. Both Mr. Watts and Ms. Mumm signed a contract to act as Task

Force informants in lieu of facing charges. On February 6, 2013, Agent Thomas and

Detective Bowling met with Mr. Watts and Ms. Mumm. Mr. Watts provided information

about Chino and named other individuals he believed sold drugs. However, Mr. Watts

did not fulfill his contract and charges were filed against him.

       At trial, Mr. Watts waived a CrR 3.5 hearing and stipulated to the admissibility of

his statements to the Task Force. He was convicted as charged and appealed.




                                              3

No. 32215·7·111
State v. Watts


                                           ANALYSIS

                                 A. Probable Cause to Arrest

       The issue is whether probable cause supported Mr. Watts' warrantless arrest.

Mr. Watts contends probable cause to arrest him came primarily from an informant's tip,

which did not pass the Aguilar·Spinell/1 test, and thus his arrest was unsupported by

probable cause.

       Mr. Watts challenges his warrantless arrest for the first time on appeal. The

State argues he waived any right to challenge his warrantless arrest when he failed to

challenge it at trial. Generally, we will not review an error not raised in the trial court.

RAP 2.5(a). Both state and federal courts have declined to address search and seizure

issues when raised for the first time on appeal. See State v. Trujillo, 153 Wn. App. 454,

458,222 P.3d 129 (2009). But RAP 2.5(a)(3) allows a claim of error to be raised for the

first time on appeal if it is a "manifest error affecting a constitutional right."

       To utilize this exception, a "defendant must identify a constitutional error and

show how, in the context of the trial, the alleged error actually affected the defendant's

rights; it is this showing of actual prejudice that makes the error 'manifest,' allowing

appellate review." State v. McFarland, 127 Wn.2d 322,333,899 P.2d 1251 (1995). No

actual prejudice is shown, and thus the error is not manifest, where the record is devoid

of facts necessary to adjudicate the claimed error. Id. As recognized by this court,

"[a]ttacks on probable cause do not qualify for one of the exceptions to [RAP 2.5(a)]: a


       1 Spinelli v. United States, 393 U.S. 410, 415-16, 89 S. Ct. 584, 21 LEd. 2d 637
(1969); Aguilarv. Texas, 378 U.S. 108, 114,84 S. Ct. 1509, 12 LEd. 2d 723 (1964).

                                                4

No. 32215-7-111
State v. Watts


defendant waives the right to challenge the trial court's admission of evidence gained by

an illegal search or seizure by failing to move to suppress the evidence at triaL" Trujillo,

153 Wn. App. at 548 (internal quotations omitted).

       Mr. Watts waived his right to directly attack the legality of his arrest because he

failed to object or move to suppress evidence at trial. Moreover, Mr. Watts cannot show

actual prejudice. Because no motion to suppress was made, the record does not

indicate whether the trial court would have granted the motion. 2 Without a showing of

actual prejudice, the error is not manifest and is not reviewable under RAP 2.5(a)(3).

                   B. Admitting Evidence of December 7,2012 Events


        2 Mr. Watts relies on State v. Thompson, 13 Wn. App. 526, 536 P.2d 683 (1975),
to argue for de novo review. But Thompson involved a challenge to an affidavit
supporting a search warrant that was challenged at trial. While the Aguilar-Spinelli test
enunciated in Thompson is equally applicable to determinations of probable cause to
make an arrest without a warrant, even a de novo review of the record does not reveal
actual prejudice. See State v. Helfrich, 33 Wn. App. 338, 341,656 P.2d 506 (1982).
        Information from an informant can establish probable cause to arrest where the
two prongs of the Aguilar-Spinelli test are met: (1) basis of knowledge and (2) credibility.
Id. at 340-41. But probable cause can still be established where there is a deficiency in
one of the prongs if the police can support the missing prong by sufficiently
corroborating the informant's tip. Id.; State v. Jackson, 102 Wn.2d 432,445,688 P.2d
136 (1984). Mr. Watts only challenges the veracity prong. Under the veracity prong,
"facts must be presented to determine either the inherent credibility of the informant or
the reliability of his information on that particular occasion." Helfrich, 33 Wn. App. at
341. An informant's reliability may be established from the informant's "track record" of
providing reliable information or by showing the informant has a clear motive for being
truthful. Jackson, 102 Wn.2d at 437; State v. Bean, 89 Wn.2d 467, 469-71, 572 P.2d
1102 (1978). Mr. Long's credibility is established in two successful controlled buys with
the Task Force before he was removed as an informant for stealing Task Force money.
He had also been a successful informant in two other independent cases. Mr. Long had
a track record and a motive to tell the truth. Moreover, the information provided by Mr.
Long was corroborated by the Task Force's ongoing investigation. Given all, probable
cause supported Mr. Watts' arrest, and any motion to suppress based on his
warrantless arrest would have properly been denied.

                                             5

No. 32215-7-111
State v. Watts


       The issue is whether Mr. Watts was denied a fair trial when the trial court allowed

testimony about the December 7,2012 controlled buy. Mr. Watts contends his

constitutional right to a fair trial was denied when the court allowed the jury to hear such

irrelevant testimony as this testimony did not directly or indirectly implicate him in any

wrongdoing. Rather, it materially misled the jury because the jury could infer Mr. Watts'

involvement based on the fact the controlled buys occurred in or around his home.

       While Mr. Watts did not object on any grounds to this testimony at trial, he now

assigns error based on ER 401 and ER 403. Absent manifest constitutional error, a

party may not raise an objection on appeal not properly preserved at trial. State v.

Powell, 166 Wn.2d 73, 82, 206 P.3d 321 (2009). We "adopt a strict approach because

trial counsel's failure to object to the error robs the court of the opportunity to correct the

error and avoid a retrial." Id. Evidentiary errors under ER 401 are nonconstitutional in

nature. Cobb v. Snohomish County, 86 Wn. App. 223, 236, 935 P.2d 1384 (1997).

       Even if an objection had been made, a trial court's ruling on the admissibility of

evidence is reviewed for abuse of discretion. State v. Powell, 126 Wn.2d 244,258,893

P.2d 615 (1995) (abuse of discretion exists when a trial court's exercise of discretion is

manifestly unreasonable or based on untenable grounds or reasons). Relevant

evidence is that which has "any tendency to make the existence of any fact that is of
                                                                                                  I
consequence ... more probable or less probable." ER 401. The testimony about the

December 7,2012 buy was relevant as it tended to make the State's theory that Mr.                 I
Watts was a principal or accomplice in the distribution of methamphetamine more                   if
                                                                                                  I

                                              6

No. 32215-7-111
State v. Watts


probable. The evidence was probative of Mr. Watts' knowledge of the drug transactions

occurring at his house as he was present at the time of the controlled buy. It was

relevant to the credibility of Mr. Watts and other witnesses about discrepancies in when

exactly Mr. Long was present at Mr. Watts' house and whether he knew Ms. Mumm

sold methamphetamine. The court did not abuse its discretion in allowing the

testimony.

       ER 403 allows a trial court to exclude relevant evidence "if its probative value is

substantially outweighed by the danger of unfair prejudice, ... or misleading the jury."

Mr. Watts briefly argues the testimony was prejudicial because it associated him with

drug dealing even though he was not involved in the controlled buy. Mr. Watts'

argument fails. Even if admission of the testimony was constitutional error, it was not

manifest as it had no "practical and identifiable consequences in the trial of the case"

where there was other testimony showing Mr. Watts had knowledge of the drug

transactions occurring at his house. State v. Stein, 144 Wn.2d 236, 240, 27 P.3d 184

(2001). Because the error is not a manifest constitutional error, Mr. Watts failed to

preserve the issue on appeal.

                                 C. Evidence Sufficiency

      The issue is whether sufficient evidence supports Mr. Watts' conviction for

delivery of a controlled substance. Mr. Watts contends the State's evidence does not

prove beyond a reasonable doubt he delivered methamphetamine on January 4, 2013.

He mainly argues Mr. Long was not a credible witness.



                                             7

No. 32215-7-111
State v. Watts


       Evidence is sufficient to support a guilty finding if '''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) (emphasis omitted) (quoting Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). This sufficiency challenge

"admits the truth of the State's evidence and all inferences that reasonably can be

drawn therefrom." State v. Salinas, 119Wn.2d 192,201,829 P.2d 1068 (1992). We

defer to the jury's assessment of conflicting testimony, witness credibility, and evidence

weight. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308,789 P.2d 306 (1989).

      RCW 69.50.401 (1) provides "it is unlawful for any person to deliver ... a



                                                                                                ,
controlled substance." The jury was instructed each of the following elements must be

proved beyond a reasonable doubt: "(1) That on or about January 4, 2013, the

defendant[ ] de1ivered a controlled substance; (2) That the defendant knew that the             r
                                                                                                I
substance delivered was a controlled substance; and (3) That the acts occurred in the

State of Washington." Clerk's Papers at 39. Mr. Watts' focus is the first element.

      When viewed in the light most favorable to the State, Detective Bowling and Mr.
                                                                                                I,
Long saw Mr. Watts driving the Explorer on January 4,2013. Mr. Watts drove Ms.

Mumm to Gene's, where she got out of the car and met with Chino to get drugs.

Commander Brown verified just prior to arriving at Gene's, Chino had frequented a

known dope house. Mr. Watts was not seen leaving the Explorer. Mr. Long told the

Task Force Mr. Watts was in the Explorer with Ms. Mumm when she weighed out the



                                              8

No. 32215-7-111
State v. Watts


methamphetamine. Mr. Long said Ms. Mumm handed the bag of methamphetamine to

Mr. Watts, who then handed it to Mr. Long. When Mr. Long met with the Task Force

right after this controlled buy, he had a bag of methamphetamine; Mr. Long and his car

were searched immediately before the buy, and he was followed throughout the

transaction. Mr. Watts' involvement was further buttressed by Ms. Starzyk's testimony

that Mr. Watts knew Ms. Mumm sold drugs and drove her to pick up the drugs. The jury

was instructed on accomplice liability. Mr. Watts' act of driving Ms. Mumm to Gene's to

pick up drugs and remaining in the car with Ms. Mumm while she sold the drugs to Mr.

Long shows Mr. Watts was an accomplice. "Accomplice liability is principal liability."

State v. Toomey, 38 Wn. App. 831, 840, 690 P.2d 1175 (1984).

       Mr. Watts unpersuasively argues Mr. Long should not have been allowed to

testify because his testimony was highly incredulous. But Mr. Watts' argument goes to

the weight, not the admissibility, of Mr. Long's testimony. We do not reweigh evidence

or decide witness credibility. Mr. Watts was able to cross-examine Mr. Long about his

dishonesty convictions and his potential bias. At that point, it was up to the jury to

determine how much weight to give to Mr. Long's testimony.

                                          D. SAG

       Although Mr. Watts did not challenge the constitutionality of a warrantless arrest

below, he can raise that issue now in the context of an ineffective assistance of counsel

claim. McFarland, 127 Wn.2d at 333,338. To establish ineffective assistance of

counsel, a defendant must show



                                             9
No. 32215-7-111
State v. Watts


       (1) defense counsel's representation was deficient, i.e., it fell below an
       objective standard of reasonableness based on consideration of all the
       circumstances; and (2) defense 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
       would have been different.

Id. at 334-35.

       We strongly presume defense counsel's representation was effective. Id. at 335.

As such, a "defendant must show in the record the absence of legitimate strategic or

tactical reasons supporting the challenged conduct by counsel." Id. at 336. Mr. Watts

has not met this burden. While the record does not show whether defense counsel's

decision to waive the erR 3.5 hearing was a legitimate strategic decision, Mr. Watts'

arrest was supported by probable cause, providing a plausible reason for counsel to

have waived that hearing and to have not pursued other suppression hearings.

       Mr. Watts also fails to show prejudice. As discussed, Mr. Watts' arrest was

supported by probable cause. Absent an affirmative showing the motion would

probably have been granted, there is no showing of actual prejudice. As for Mr. Watts'

concern that Mr. Long's information was insufficient to establish probable cause, this

was addressed by his counsel and discussed above. See RAP 10.10(a). Similarly, Mr.

Watts' appellate counsel addressed both of his concerns regarding evidence sufficiency

and evidentiary error in his briefing. Thus, no need exists to further address the

concerns here. See RAP 10.10(a). In sum, Mr. Watts' SAG lacks merit.

      Affirmed.




                                            10
No. 32215-7-111
State v. Watts


      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.

                                              ~,ftP.:r.
                                                  Br wn, A.C.J.

WE CONCUR:




                                           11 

