                                                                               FILED
                                                                           LIRT OF APPEALS
                                                                             DIVISIM 11
                                                                       2013 SEP -4   AN IQ? 14
                                                                       91'ATE 01=WASHMGT0Na
                                                                       lI Y—._




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II


STATE OF WASHINGTON,                                              No. 42844 0 II
                                                                            - -


                              Respondent,

        V.



                                                              PUBLISHED IN PART
TAWANA LEA DAVIS,                                                    OPINION




             BRINTNALL, J.
        QUINN-                 =   On September 23,2011, a jury found Tawana Lea Davis guilty

of three counts of unlawful delivery of a controlled substance (methamphetamine) within 1,00
                                                                                         0

feet of a school bus route stop or perimeter of a school ground, and unlawful use of a building for

drug   purposes.' Davis appeals, arguing that (1)her counsel was ineffective for failing to
challenge the probable cause basis for the search warrant; 2)
                                                           ( insufficient evidence supports the

delivery of a controlled substance convictions; 3)
                                                ( insufficient evidence supports the school zone

enhancements; ( )the trial court violated her right to present a complete defense by limiting
              4

certain testimony bearing on the credibility of the State's witnesses; 5) trial court erred in
                                                                       ( the

allowing the presentation of impermissible hearsay evidence; and (6)RCW 69. 3.the
                                                                        010(
                                                                           1
                                                                           5 ),

  The jury also found Davis guilty of possession of a controlled substance, two counts of bail
jumping, and one count of witness tampering. Davis does not challenge these convictions on
appeal.
No.42844 0 II
         - -



statute criminalizing use of a building for drug purposes, is unconstitutional as applied. Davis

also argues, in a statement of additional grounds (SAG), she received ineffective assistance
                                                       that

of counsel because trial counsel failed to "object,request a mistrial, or address in any way"that a

juror was nodding off during part of the trial; the Bremerton Police Department violated its own

manual in handling the confidential informants in this case; and the cumulative error doctrine

requires reversal. SAG at 2.

       In the published portion of this opinion, we address Davis's argument that RCW

010(
69. 3.is unconstitutional as applied. Because RCW 69. 3.does not apply to the
   1
   5 )                                            010(
                                                     1
                                                     5 )

circumstances alleged in this case, we vacate Davis's conviction for unlawful use of a building

for drug purposes and remand for resentencing. The remaining issues are fact specific and are

addressed in the unpublished portion of our opinion; because Davis received effective assistance

of counsel, probable cause supported issuing the search warrant, sufficient evidence supports her

delivery of a controlled substance convictions and school zone enhancements, and the remainder

of Davis's arguments lack merit, we affirm Davis's unlawful delivery of a controlled substance

convictions along with the school zone enhancements.
                                                   FACTS


BACKGROUND


        In November 2010, Bremerton Police Detective Matthew Musselwhite was conducting

several methamphetamine -related drug investigations in the City of Bremerton. As part of that

effort, Musselwhite " intended             on   starting   an   investigation   into   Tawana   Davis's


methamphetamine distribution, specifically from the Chieftain Motel,"
                                                                    where Davis lived and
worked   as a   maid. 2   Report   of   Proceedings (RP)at   165 66. Musselwhite had Laura Suttona
                                                                 -                               —
         A Aal
           lM



confidential informant (CI) seeking a favorable recommendation from law enforcement on

pending drug charges—
                    arrange to purchase drugs from Davis.
         A little before noon on November 16, Detective Musselwhite and Bremerton Police

Sergeant Randy Plumb      met with Sutton at    a secure   location not far from the Chieftain. The


officers .conducted a "thorough search of Ms. Sutton's person, including her vehicle." 2 RP at

170. Although no contraband was found on Sutton, officers did locate " ome drug paraphernalia
                                                                     s

and a small amount of methamphetamine in the car."2 RP at 170. After briefly interviewing

Sutton about these contraband items, the officers determined that Sutton was not "
                                                                                 trying to hide

anything" and decided    to continue with the controlled     buy.    2 RP at 172.   Musselwhite gave

Sutton $ 0 in prerecorded funds, discussed the plan for the buy, then told Sutton where to meet
       8

him and Plumb after "the deal was done." 2 RP at 173. At that point, Sutton left in her own

vehicle.


         The officers followed, keeping visual surveillance of Sutton's vehicle the whole time.

After Sutton arrived at the Chieftain, Detective Musselwhite "
                                                             saw her get out of her car and walk

in the direction the         hotel office"but then "ost sight of her after she walked towards the
                                                   l

rooms."2 RP at 174. According to Musselwhite, the Chieftain presented " bit of a surveillance
                                                                      a

problem" because law enforcement could not come too close to the motel without residents

alerting other residents of   their presence.   2 RP at 179.        Thus, although the officers could

maintain visual surveillance of CIs' vehicles from afar, they could not see which motel rooms
                                ,

CIs entered to purchase drugs.




2
    By the time of trial, Sutton appears to have married and is sometimes referred to in the record
as "Laura Sutton Husted."

                                                   3
No. 42844 0 II
          - -



       After about 10 minutes, Sutton reemerged from the hotel and returned to the secure

location.    At the secure location, Sutton gave Detective Musselwhite "about a gram" of

methamphetamine which she said she purchased from Davis. 2 RP at 180. After discussing the

details of the transaction, Musselwhite thoroughly searched Sutton's person while Sergeant

Plumb searched her vehicle.         Neither search revealed hidden contraband         or   money.   Next,

Musselwhite showed Sutton       a   photomontage    he had   previously prepared. Sutton immediately

selected a photo of Davis as the person she had purchased the drugs from.

       On December 3, 2010, Sutton performed a similar controlled buy with Detective

Musselwhite and Sergeant Plumb. During this second controlled buy, she purchased .4 grams of

methamphetamine from Davis.

       To strengthen his narcotics distribution cases, Detective Musselwhite often used
             informants" to   purchase drugs     from "the    same    target."   2 RP at 206.    Thus, on
multiple

December 30, 2010, Musselwhite asked another CI familiar with Davis, Robert White, to

purchase methamphetamine from her. White was already working as a CI for Musselwhite in a
different case and, in that case, all of his information that was provided ...
                                  "                                                        was found to be


true." RP at 207.
     2


       On the day of this buy, Detective Musselwhite and Bremerton Police Detective Steven

Polonsky met White at a secure location, searched his person and vehicle for contraband, and
talked about the    plan. Musselwhite gave White $
                                                 130 of prerecorded money to purchase a

teener," approximately 1.5 grams of methamphetamine. 2 RP at 210. As with the buys
       or               7

involving Sutton, the detectives lost sight of White shortly after he reached the Chieftain. White

left the Chieftain only a few minutes after arriving. As he later told Musselwhite, rather than

meeting     Davis in her motel room     as   planned, the   deal   happened "hand to hand through
                                                                                   - -               a car
No. 42844 0 II
          - -



window in the parking lot of the motel"because Davis was leaving as White arrived. 2 RP at

213.


       After following White back to the secure location, Detectives Musselwhite and Polonsky

searched White's person and vehicle, finding no contraband. White gave Musselwhite a baggie

of what appeared to be imitation narcotics. The officers confronted White but he maintained that -

because the buy happened so quickly (and not in Davis's motel room as expected),he did not

realize that the substance was fake. White told Musselwhite that during the next controlled buy,

he would confront Davis about the fact that " hat stuff was bad." RP at 212.
                                            t                   2

       The final controlled   buy   took   place   on   January 14, 2011. Detective Musselwhite and

Sergeant Plumb used White as the CI for the buy. At the secure location, neither officer found
contraband   on   White's person or in his    car.      Musselwhite "planned to use a video recording

device on the informant during the course of the buy"because the equipment was available and

after setting up the camera, gave White $
                                        140 in prerecorded funds. 2 RP at 218. As before,
Musselwhite observed White leave his vehicle at the Chieftain but lost sight of him before he

entered Davis's room. Davis had apparently switched rooms since White was last at the hotel

and, accordingly, White "had to go to the front desk and ask them because [he] couldn't find

 Davis's]
        room."3 RP at 407.

       After about 10 minutes, White returned to his vehicle and left to meet Detective

Musselwhite and Sergeant Plumb at the secure location. White gave Musselwhite the baggie " e
                                                                                         h

said he obtained from [Davis] in the motel room in room 102" and Musselwhite "immediately


3 Detective Musselwhite discovered, after the buy was complete, that the recording device had
malfunctioned.     But because the "device had done this before" due to "a wiring insulation
problem,"
        Musselwhite was confident that White did not intentionally damage or tamper with the
video equipment. 2 RP at 223.

                                                        5
No.42844 0 II
         - -



noticed that it was far less methamphetamine in the baggie"than was expected. 2 RP at 220. .

Plumb searched White's vehicle and, in the backseat, found "pieces of methamphetamine ...

laying openly on the backseat." 2 RP at 220. White denied knowing how the drugs got on the

backseat but later admitted to dumping "some in the back for later."3 RP at 417. White also

told Musselwhite that upon Davis insisting that it was "the house rules," dumped a little of the
                                                                        he

methamphetamine out on Davis's table for her boyfriend. 3 RP at 415. Because of this, White

presumed that, unlike the first buy,the methamphetamine was real.
         On January 18, following the CIs' three successful purchases of methamphetamine from

Davis, Detective Musselwhite obtained   a   search warrant for the Chieftain's   room   102. After


knocking and announcing police presence multiple times, Musselwhite attempted unsuccessfully

to open the door with a room key. After that, he "breached the door by kicking it,entered, and

contacted Ms. Davis."2 RP at 233. After reading Davis her Miranda rights, Musselwhite had a
conversation with her in which she acknowledged her actions in distributing and selling

methamphetamine.

         As Detective Musselwhite spoke with -
                                             Davis, other officers _searched her motel room.

They found " some drug paraphernalia, some digital scales, packaging materials, unused

packaging materials, some used packaging materials that had residue in them that appeared to be

methamphetamine residue, [ nd] some other items that are associated with methamphetamine
                         a

distribution and usage."3 RP at 251. Davis admitted that all of the items were hers. After the

conversation, Davis "was transported to the Kitsap County Jail and booked for delivery of
methamphetamine."3 RP at 264.


4
    Miranda v. Arizona, 384 U. .436, 86 S. Ct. 1602, 16 L.Ed. 2d 694 (1966).
                             S

                                                r
No. 42844 0 II
          - -


PROCEDURE


       The State charged Davis by information with three counts of unlawful delivery of a

controlled substance ( methamphetamine) within 1,00 feet of a school bus route stop or
                                                0

perimeter of a school ground, one count of delivery of a substance in lieu of a controlled

substance, and one count of unlawful use of a building for drug purposes. RCW 69. 0.
                                                                              b),
                                                                              401(
                                                                                 2)(
                                                                                 5

c) 1)(RCW -( RCW 69. 3. Davis pleaded not guilty to all of the
435( d);  4012;
          69. 0.
            5    010(
                    l).
                    5

charges.

       On September 15, 2011, the trial court held a CrR 3. hearing. The trial court ruled that
                                                          5

Detective Musselwhite appropriately advised Davis of her Miranda rights and that Davis's post-

Miranda statements to Musselwhite were made in a knowing, voluntary, and intelligent fashion.

Davis did not request a CrR 3. hearing or move to have any of the physical evidence collected
                             6

from the controlled buys or her motel room excluded from trial.

       Trial began on September 19. Detectives Musselwhite and Polonsky, Sergeant Plumb,

Sutton, and White testified as to the events described above. A Washington State Patrol Crime

Laboratory   forensic   scientist   testified   that - both _purchases   made by Sutton contained

methamphetamine, that one of the two purchases made by White contained methamphetamine,

and that a number of the items located in Davis's motel room contained methamphetamine.

Additionally, the.State presented evidence that the Chieftain was within 1,00 feet of a school,
                                                                          0

the West Sound Technical Skills Center, and a Bremerton School District bus stop.




5
 The State also charged Davis with one count of unlawful possession of a controlled substance
methamphetamine),and (later)two counts of bail jumping and one count of witness tampering.
RCW    69. 0.RCW 9A. 6. RCW 9A. 2. The jury convicted Davis of these
       4013;
         5       170;
                   7        120.
                              7
charges and, as noted earlier, she has not challenged them on appeal.

                                                     7
No. 42844 0 II
          - -



          On September 23, the jury returned its verdict, finding Davis guilty of three counts of

delivering a controlled substance (methamphetamine)within 1,00 feet of a school ground or bus
                                                           0

route stop, one count of possession of a controlled substance (methamphetamine),and one count

of unlawful use of a building for drug purposes. The jury acquitted Davis of the delivery in lieu

of   a   controlled substance   charge. At sentencing, in light of Davis's extensive criminal
                                                                           "

history,"
        offender score of 14, and "attempt to influence a witness not to appear," trial court
                                                                                the

sentenced Davis to the top of the standard range, 120 months. RP (Nov. 18, 2011) at 14. Davis
now appeals.

                                               DISCUSSION


USE OF A BUILDING FOR DRUG PURPOSES


          Davis argues that the statute criminalizing use of a building for drug purposes, RCW

010,
69. 3.is unconstitutionally vague. We disagree with Davis's vagueness challenge. But we
  5

conclude thatbased
             —           on   its   plain language ' the statute is inapplicable to the facts of Davis's

case as alleged and we reverse Davis's conviction for unlawful use of a building for drug

purposes.




6
    Davis challenges the sufficiency of the evidence related to this charge, presented as count III in
the seconded amended information. Although the jury acquitted Davis of this charge, making
such a challenge moot, some confusion exists in the trial court's judgment and sentence. Rather
than keep the numbering used in the second amended information and jury verdicts, the trial
court omitted the delivery in lieu of a controlled substance charge and renumbered the remaining
counts (what would have been counts IV through IX)as counts III through VIII. On remand, the
trial court should correct the judgment and sentence to alleviate this confusion.

7 The exact sentence entails Davis serving 96 months, concurrently, on each delivery of a
controlled substance conviction plus three 24 month enhancements ( for the school zone
                                              -
violations) served concurrently. Davis's other sentences run concurrently to the delivery of a
controlled substance sentences. The maximum sentence for delivery of a controlled substance is
120 months, the same as the top end of the standard range in this case. RCW 69. 0.
                                                                            b).
                                                                            401(
                                                                               2)(
                                                                               5
                                                      M.
No. 42844 0 II
          - -



        Our review of the constitutionality of a statute is de novo. In re Det. ofKeeney, 141 Wn.

App. 318, 323, 169 P. d 852 ( 2007). We presume that statutes are constitutional, and a
                    3


defendant who challenges a statute as unconstitutionally vague must prove vagueness beyond a

reasonable doubt. State   v.   Watson, 160 Wn. d 1, 11, 154 P. d 909 (2007). For statutes not
                                             2               3


involving First Amendment rights, we evaluate a vagueness challenge by examining the statute

as applied under the particular facts of the case. Watson, 160 Wn. d at 6 (quoting State v. Coria,
                                                                 2

120 Wn. d 156, 163, 839 P. d 890 (1992)). statute is void for vagueness if 1) does not
      2                  2              A                                  ( it

define the criminal offense with sufficient definiteness that ordinary people can understand what

conduct is proscribed or (2) does not provide ascertainable standards of guilt to protect against
                            it

arbitrary enforcement. Watson, 160 Wn. d at 6 (quoting State v. Williams, 144 Wn. d 197, 203,
                                     2                                          2

26 P. d 890 (2001)).
    3

        RCW 69. 3.
            010(
               1 provides,
               5 )

        It is unlawful for any person who has under his or her management or control any
        building, room, space, or enclosure, either as an owner, lessee, agent, employee,
        or mortgagee, to knowingly rent, lease, or make available for use, with or without
        compensation, the building, room, space, or enclosure for the purpose of
        unlawfully manufacturing; delivering, selling, storing, or giving -away any
        controlled substance under chapter 69. 0 RCW, legend drug under chapter 69. 1
                                              5                                        4
        RCW, or imitation controlled substance under chapter 69. 2 RCW.
                                                               5

        Here, Davis argues that " is not reasonable to suppose that the Legislature intended to
                                it

increase the penalty for drug offenses committed in the privacy of a defendant's own room rather

than elsewhere." Br. of    Appellant   at   28.   This argument fails to establish either that RCW

010(
69. 3. insufficiently definite such that ordinary people cannot understand what conduct
   1 is
   5 )

it proscribes or that the statute provides no ascertainable standards of guilt. Watson, 160 Wn. d
                                                                                              2
at 6.   Accordingly, Davis's contention that the statute is unconstitutionally vague on its face
lacks merit.


                                                    01
No.42844 0 II
         - -



       Nevertheless, our de novo review of the statute establishes that it is inapplicable to the

facts of this   case.   At trial, the State had to establish that Davis knowingly provided a space

under her management or control as " an owner, lessee, agent, employee, or mortgagee,"to

others for storing, manufacturing, selling, or delivering drugs.'RCW 69. 3. Although
                                                                     010(
                                                                        1
                                                                        5 ).
the evidence clearly establishes that Davis worked at the Chieftain and sold drugs from the living

quarters on the premises provided as part of her compensation, the record does not establish that

Davis managed or controlled any portion of the motel other than the room she herself earned as

wages from her position as a maid or that she knowingly made her room available for other

people to use, store, or sell drugs.

        Very few Washington cases have addressed the "drug house" statute, but all those that

have involve situations where someone who manages or controls a building knowingly allows

someone   else to   use   the   building   to   sell, manufacture,   or   store   drugs. State v. Sigman, 118

Wn. d 442, 444, 826 P. d 144 (1992);
  2                  2             State v. Bryant, 78 Wn. App. 805, 807, 901 P. d 1046
                                                                               2

1995) homeowner knowingly allowed a tenant to grow marijuana in the home);State v.
      (

Roberts, 80 Wn. App. 342, 356 n.4, 908 -P. d 892 (1996) ( "
                               1         2              Roberts was not charged with
                                                                                -

violating either of Washington's crack house'
                                   `                          statutes. . . .       A landlord violates RCW


010(
69. 3. knowingly acquiescing in such activity by a tenant or subtenant. ").
   1 by
   5 )

        The plain language of RCW 69. 3.is clear. The legislature intended to punish
                                  010(
                                     1
                                     5 )

those managing or controlling property who allowed renters, lessees, etc., manufacture, sell,
                                                                         to

store, or deliver drugs from the property with their knowledge. Here, nothing established that

8
  After oral argument, we requested supplemental briefing on whether RCW 69. 3.    010(  1
                                                                                         5 )
requires the State to establish that a defendant knowingly provided a space under her
management or control to someone else to store, manufacture, or sell drugs. In its supplemental
brief,the State concedes that this is a correct interpretation of the statute.

                                                        10.
No. 42844 0 II
          - -



Davis acted as a landlord or, herself, allowed others to deal drugs from a space of which she

maintained      control.   Accordingly, we vacate Davis's conviction for violation of RCW

010(
69. 3. remand to the trial court for resentencing.
   1 and
   5 )

         A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for

public record in accordance with RCW 2.6.it is so ordered.
                                     040,
                                      0
INEFFECTIVE ASSISTANCE OF COUNSEL


         Davis argues that she received ineffective assistance of counsel because her trial counsel

failed to challenge the probable cause basis for the search warrant. Because the record reflects

that probable cause supported issuing the search warrant, any challenge below_ ould have been
                                                                             w

fruitless. Accordingly, Davis fails to establish that her counsel's performance prejudiced her and

her ineffective assistance claim fails.


9
  The State argues that because Davis told Detective Musselwhite at the time of her arrest that
she was working with Bernard Lee, her boyfriend, to sell drugs, sufficient evidence existed for
the   jury   to conclude that she violated the statute.   Contrary to its argument in supplemental
briefing, the State did not argue this in its explanation of the jury instructions during closing
argument. Cf. State v. Holt, 56 Wn. App. 99, 783 P. d 87 (1989),
                                                        2             review denied, 114 Wn. d2
1022 (1990).

io Davis also attempts to argue for the first time on appeal that insufficient evidence supports the
probable cause basis for the search warrant. This is an incorrect understanding of the law. First,
Washington decisions have long held that a defendant may not raise an evidentiary suppression
issue for the first time on appeal if he or she has failed to preserve the issue by not challenging
the evidence at trial. See, e. .,
                             g State v. Lee, 162 Wn. App. 852, 857, 259 P. d 294 (2011),
                                                                              3              review
denied, 173 Wn. d 1017 (2012); also State v. Tarica, 59 Wn. App. 368, 372, 798 P. d 296
                2               see                                                 2
1990),  overruled on other grounds by State v. McFarland, 127 Wn. d 322, 899 P. d 1251
                                                                   2             2
1995);  State v. Mierz, 72 Wn. App. 783, 789, 866 P. d 65, 875 P. d 1228 (1994), d,127
                                                   2            2              aff'
Wn. d 460, 901 P. d 286 (1995). Accordingly, this
  2             2                                           issue is not separately preserved and is
addressed solely in the context of Davis's ineffective assistance of counsel claim. Second, Davis
confuses the test this court applies for determining whether a magistrate judge has abused his or
                                                                           /
her discretion in issuing a search warrant based on the tip of a CI (whether a CI's basis of
knowledge and veracity have been established such that probable cause establishes a reasonable
                                                  11
No. 42844 0 II
          - -



         To prevail on her ineffective assistance of counsel claim, Davis must show both deficient

performance and resulting prejudice. Strickland v. Washington, 466 U. . 668, 687, 104 S. Ct.
                                                                    S

2052, 80 L.Ed. 2d 674 (1984).Counsel's performance is deficient if it falls below an objective

standard of reasonableness. State v. Stenson, 132 Wn. d 668, 705 06, 940 P. d 1239 (1997),
                                                    2            -        2

cent. denied, 523 U. . 1008 (1998).Our scrutiny of counsel's performance is highly deferential;
                   S

we   strongly   presume reasonableness.   State v. McFarland, 127 Wn. d 322, 335 36, 899 P. d
                                                                    2            -        2

1251 ( 1995).      To rebut this presumption, a defendant bears the burden of establishing the

                conceivable
absence of any "`                legitimate   tactic   explaining counsel's performance."' State   v.


Grier, 171 Wn. d 17, 33, 246 P. d 1260 (2011) quoting State v. Reichenbach, 153 Wn. d 126,
             2                3               (                                   2

130, 101 P. d 80 ( 2004)).To
          3                          establish prejudice, a defendant must show a reasonable

probability that the outcome of the trial would have differed absent the deficient performance.
State   v.   Thomas, 109 Wn. d 222, 226, 743 P. d 816 ( 1987). A reasonable probability is a
                           2                  2                "

probability sufficient to undermine confidence in the outcome."Strickland, 466 U. .at 694.
                                                                                S
         To establish that counsel was ineffective for failing to challenge the probable cause basis

of the search warrant,Davis must show that there is a reasonable probability that the outcome of
                                 -

her trial would have differed had trial counsel made such       a   challenge. Thomas, 109 Wn. d at
                                                                                             2

226. Because any such challenge would have been futile,Davis's argument fails.




inference that criminal activity or contraband exist at a certain location) with this court's test for
reviewing the sufficiency of the evidence (whether any rational trier of fact would find that the
facts, taken in the light most favorable to the jury's verdict, support the conviction).Essentially,
Davis asks this court to reweigh the evidence and conclude that both CIs in this case are not
credible and, in result, this court should suppress all evidence obtained with help of the CIs. But
 on appeal, a reviewing court does not weigh evidence or make credibility determinations. State
v. Thomas, 150 Wn. d 821, 874 75,83 P. d 970 (2004).
                 2            -      3

                                                   12
No. 42844 0 II
          - -



         Appellate courts generally review a magistrate or judge's decision to issue a search

warrant for an abuse of discretion. State v. Maddox, 152 Wn. d 499, 509, 98 P. d 1199 (2004).
                                                           2                 3

Great deference is given to the probable cause determination of the issuing judge or magistrate.

State   v.   Young,   123 Wn. d
                            2      173, 195, 867 P. d 593 ( 1994). However, as the Washington
                                                  2


Supreme Court explained in State v. Neth, 165 Wn. d 177, 182, 196 P. d 658 (2008),
                                                2                  3             while

appellate courts "defer to the magistrate's determination, the trial court's assessment of probable

cause is a legal conclusion we review de novo."

         Before a magistrate issues a search warrant, there must be an adequate showing of

circumstances going beyond suspicion and mere personal belief that criminal acts have taken

place and that evidence thereof will be found in the premises to be searched."'
                                                                              State v. Seagull,
95 Wn. d 898, 907, 632 P. d 44 (1981) quoting State v. Patterson, 83 Wn. d 49, 58, 515 P. d
     2                  2             (                                2                2

496 (1973)).
           Probable cause for a search "requires a nexus between criminal activity and the
item to be seized and between that item and the place to be searched."Neth, 165 Wn. d at 183.
                                                                                  2

         And " hen the existence of probable cause depends on an informant's tip,the affidavit in
             w

support of the warrant must establish the of the informant's information as well as the
            -
credibility of the informant."State v. Ibarra, 61 Wn. App. 695, 698, 812 P. d 114 (1991)citing
                                                                          2              (
State v. Jackson, 102 Wn. d 432, 433, 688 P. d 136 (1984);
                        2                  2             Spinelli v. United States, 393 U. .
                                                                                         S

410, 89 S. Ct. 584, 21 L.Ed. 2d 637 (1969);
                                          Aguilar v. Texas, 378 U. . 108, 84 S. Ct. 1509, 12
                                                                 S

L. Ed. 2d 723 (1964)).
                     Generally, both prongs of the test must be present to establish probable

cause. Jackson, 102 Wn. d at 437. As the Jackson court explained,
                      2

                The two prongs of the Aguilar-  Spinelli test have an independent status;
         they are analytically severable and each insures the validity of the information.
         The officer's oath that the informant has often furnished reliable information in
         the past establishes     general           While this is important, it is still
                                            trustworthiness.
         necessary that the "basis of knowledge" prong be satisfiedthe officer must
                                                                    —
                                                      13
No.42844 0 II
         - -



        explain how the informant claims to have come by the information in this case.
        The   converse   is also true.   Even if the informant states how he obtained the
        information which led him to conclude that contraband is located in a certain
        building, it is still necessary to establish the informant's credibility.

102 Wn. d at 437.
      2


        Here, the affidavit of probable cause seeking a search warrant for Davis's motel room

satisfied both prongs of the Aguilar-
                                    Spinelli test as to White and Sutton and, in result, clearly

established probable cause for issuing the search warrant.

        Davis concedes that Detective Musselwhite's affidavit established White's basis of


knowledge. Davis does not question Sutton's basis of knowledge. Nevertheless, in the search

warrant affidavit, Musselwhite stated that Sutton twice purchased methamphetamine from Davis

in   room   108.   Moreover, the affidavit stated that Sutton had a criminal history consisting of

multiple prior drug convictions adding further weight to her basis of knowledge of Bremerton's

methamphetamine culture. These facts sufficiently establish Sutton's basis of knowledge and, as

previously noted, Davis concedes White's basis of knowledge.
        The veracity prong of the Aguilar-
                                         Spinelli test can be established by showing that the CI

provided accurate information to the police in the past. State v. Fisher, 96 Wn. d 962, 965, 639
                                                                               2

P. d 743, cent. denied, 457 U. . 1137 (1982).Detective Musselwhite's affidavit established that
 2                           S

White had previously "conducted multiple successful controlled buys of methamphetamine in

the recent past" and "successfully completed one case for [ Musselwhite's unit] resulting in

felony charges being filed against multiple subjects." Clerk's Papers at 265. Accordingly, the

affidavit for probable cause established White's veracity.

        A successful "track record" as a police informant, however, is not the only method of

demonstrating the present reliability of a CI. State v. Casto, 39 Wn. App. 229, 233, 692 P. d 890
                                                                                          2

                                                   14
No. 42844 0 II
          - -



1984),review denied, 103          Wn. d 1020 ( 1985).
                                    2                           Instead, successful controlled buys may

themselves be "sufficient to establish the informant's reliability." Casto, 39 Wn. App. at 234.

As the Casto court explained,

         In a "controlled buy," informant claiming to know that drugs are for sale at a
                              an
         particular place is given marked money, searched for drugs, and observed while
         sent into the specified location. If the informant "goes in empty and comes out
         full," assertion that drugs were available is proven, and his reliability
                his
         confirmed. Properly executed, a controlled buy can thus provide the facts and
         circumstances necessary to satisfy both prongs of the test for probable cause. 1
         W. LaFave, Search &         Seizure §
                                          b)
                                          3. (at 512 (1978);
                                             3                 State v. Jansen, 15 Wn.
         App. 348, 549 P. d 32, review denied, 87 Wn. d 1015 (1976).
                        2                           2

39 Wn. App. at 234.

         As Detective Musselwhite explained in his affidavit for probable cause, Sutton

successfully performed two controlled buys from Davis."Accordingly, the affidavit established
Sutton's present reliability.

         In light of both prongs of the Aguilar-
                                               Spinelli test being met as to each CI, the magistrate

did not abuse her discretion in correctly concluding that probable cause supported issuing a

search warrant in this instance:          three controlled buys of methamphetamine established a

reasonable inference that Davis would continue to distribute narcotics from her motel room in

the future and that contraband may exist in her motel room. In re Pers. Restraint of Yim, 139

11
     Davis argues at length that the "protocol employed in these buys was inherently unreliable"
because officers lost     sight of   the CIs for   a   time while   they    were   in the Chieftain.   Br. of

Appellant at 4. She argues that pursuant to State v. Maddox, 116 Wn. App. 796, 803, 67 P. d
                                                                                        3
1135 (2003), d,152 Wn. d 499, 98 P. d 1199 (2004), " police must at minimum observe
             aff'         2              3              the
the informant actually enter and leave the buy location." Br. of Appellant at 5. But this is a
misstatement of the law: although this court mentioned in Maddox that the police corroborated a
controlled buy by "searching the informant before he went into the house, watching him as he
entered and returned, and searching him afterward," no point in the opinion do we state that
                                                    at
police   must   witness   an   informant enter and exit     a
                                                                suspect's   door.    116 Wn. App. at 803.
Research reveals that no court, in Washington or elsewhere, has ever established so stringent a
requirement to establish a probable cause basis for issuing a search warrant.
                                                       15
No. 42844 0 I1
          - -


Wn. d 581, 594, 989 P. d 512 (1999).Moreover, because the record establishes.that probable
  2                  2

cause supported issuing the search warrant, any challenge to the warrant by trial counsel would

have been unsuccessful. Accordingly, we conclude that Davis's claim of ineffective assistance

on this ground necessarily fails. Thomas, 109 Wn. d at 226.
                                                2

SUFFICIENCY OF THE EVIDENCE


         Davis next argues that insufficient evidence supports her convictions for delivery of

methamphetamine and the jury's special verdict findings that she committed these crimes within

1, feet of
 000             a   school bus route stop   or   school   ground. Because sufficient evidence supports

Davis's delivery convictions and the jury's school zone findings, we disagree.

         A.       STANDARD OF REVIEW


         Evidence is sufficient if,when viewed in a light most favorable to the jury's verdict, it

permits any rational trier of fact to find the essential elements of the crime beyond a reasonable
doubt. State v. Salinas, 119 Wn. d 192, 201, 829 P. d 1068 (1992).A claim of insufficiency
                               2                  2               "

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

therefrom."Salinas, 119 Wn. d at 201. Circumstantial and direct evidence are equally reliable.
                          2

State   v.   Delmarter, 94 Wn. d 634, 638, 618 P. d 99 (1980). Our role is not to reweigh the
                             2                  2


evidence and substitute our judgment for that of the jury. State v. Green, 94 Wn. d 216, 221,
                                                                                2

616 P. d 628 (1980).Instead, because they observed the witnesses testify first hand, we defer to
     2

the jurors' resolution of conflicting testimony, evaluation of witness credibility, and decisions

regarding the persuasiveness and the appropriate weight to be given the evidence. See State v.

Walton, 64 Wn. App. 410, 415 -16, 24 P. d 533, review denied, 119 Wn. d 1011 (1992).
                                8     2                             2




                                                       16
No. 42844 0 II
          - -



       B.        DELIVERY OF A CONTROLLED SUBSTANCE


       To convict Davis of unlawful delivery of a controlled substance (methamphetamine),
                                                                                        the

State had to prove beyond a reasonable doubt that Davis (1)knowingly delivered ( ) controlled
                                                                               2a

substance. RCW 69. 0. b). (
               401(
                  1 2)(
                  5 ),

       Here, the State presented evidence that Davis delivered methamphetamine, as confirmed

by crime lab testing, to White on one occasion and Sutton on two occasions; for at least the final

delivery to White, a reasonable inference establishes that Davis knew the methamphetamine was

real as she asked White to leave some for her boyfriend to use; and after Detective Musselwhite

read Davis her Miranda rights, she admitted that she and her boyfriend were working together

selling methamphetamine. This evidence, when viewed in the light most favorable to the jury's
verdict, clearly permits any rational trier of fact to find the essential elements of delivery of a
controlled substance   beyond   a   reasonable doubt.   Accordingly, we conclude that Davis's

insufficient evidence argument lacks merit.

       C.        SCHOOL ZONE ENHANCEMENTS


       Davis claims that the evidence was insufficient to establish that she delivered a controlled

substance within 1,00 feet of a designated school bus route stop or school ground. We affirm
                  0

the jury's special verdicts.

        Pursuant to RCW 69. 0. defendant who delivers a controlled substance within
                        435(
                           1 a
                           5 ),

1,00 feet of a school ground is subject to a sentence enhancement. Here, the State presented
 0

uncontroverted evidence that Davis's room at the Chieftain was within a 1, feet of the West
                                                                         000

Sound Technical Skills Center, as measured by Detective Musselwhite with a calibrated




                                                17
No. 42844 0 II
          - -



measuring wheel. Accordingly, sufficient evidence supports the jury's special verdict findings
                                                     12
and   we   affirm the   sentencing   enhancements.


RIGHT TO PRESENT A COMPLETE DEFENSE


           Davis next asserts that the trial court violated the confrontation clause by limiting certain

testimony that would        reveal White's and Sutton's biases.     Because this assertion materially

misrepresents the record and lacks merit, we disagree.

           Although Davis argues that the " dispositive" issue before this court concerns the

confrontation clause, ultimately she asks this court to review the trial court's ruling on whether

evidence of Sutton's and White's activities before and after the controlled buys should have been

admissible at trial. We review a trial court's ruling on the admissibility of evidence for an abuse

of discretion. State v. Powell, 126 Wn. d 244, 258, 893 P. d 615 (1995).Abuse exists when the
                                      2                  2

trial court's exercise of discretion is "manifestly unreasonable or based upon untenable grounds

or reasons." Powell, 126 Wn. d at 258. Similarly, a court's limitation on the scope of cross -
                           2

examination will not be disturbed unless it is the result of manifest abuse of discretion. State v.

Campbell, 103 Wn. d 1,20,691 P. d 929 (1984), denied, 471 U. . 1094 (1985). -
                2             2             cent.          S     -
           A.      SUTTON


           Davis states that the trial court excluded evidence that Sutton

           was dealing drugs during the entire period encompassed by the alleged Davis
           buys. That her best friend, Barbara Ivy, lived at the Chieftain and was getting
           drugs for her. That Sutton both bought and sold from Ivy during the Davis buy
           period. That Sutton bought drugs from Ivy at the Chieftain motel before going to
           Davis's room. And that she did drugs with Ivy at the Chieftain later that night.

 12
   Davis appears to argue that the State must prove that if the school ground in question is not
also within 1,00 feet of a school bus stop serving the same school within unobstructed walking
              0
distance of the crime scene, insufficient evidence supports this sentencing enhancement. This
interpretation of RCW 69. 0.is inconsistent with the canons of statutory construction.
                      435 5
                                                          18
No.42844 0 II
         - -




Br. of Appellant at 19 (citations omitted). She also states that the trial court excluded evidence

that "
     Sutton and her husband visited Davis's motel room during the buy period, bought drugs

from her and used with her there,"and that the trial court ruled that Davis could not cross -

examine Sutton about the contraband found in her car when she arrived at the first controlled

buy. Br. of Appellant at 19.

       These statements    materially misrepresent the record. First, no evidence in the record

supports Davis's assertion that Sutton bought drugs from Ivy before going to Davis's room.
Sutton testified that she did not see Ivy on either day she performed a controlled buy. Second,

the record also does not support Davis's contention that Sutton and Ivy ingested drugs at the
Chieftain on the night of any of the controlled buys. Third, contrary to Davis's assertion, the
trial court allowed the evidence she claims was excluded to be presented at-
                                                                           trial:

       In reviewing the notes and the testimony, the court is going to allow for both
       parties'] information -- basically everything that occurred between 11/ 6 and
                                                                               1
       12/3 [ days of the first and last controlled buys] is coming in. So I'l modify
            the                                                             l
       my ruling....  I think the jury is entitled to hear it all.

2 RP at 123 24. Accordingly, Sutton testified on direct that she and her husband bought drugs
            -

from Davis between the two controlled buys and that she did drugs in Davis's room, that she

bought drugs from Ivy during the period she was acting as a CI, and that she sold drugs during

the period in question. The trial court allowed Davis to cross -examine Sutton on all these issues
as well as on the issue of the contraband found in.Sutton's car on the day of the controlled buy.

        The only issues on which the trial court limited testimony involved the exact length of

Sutton's sentence (although it did allow Davis to characterize the sentence as being "lengthy ")

and the fact that Sutton   was   arrested   shortly after the second controlled buy. Davis fails to

explain how limiting evidence related to these topics prejudiced her or why the trial court's
                                                   19
No. 42844 0 II
          - -



decision to limit this evidence constituted an abuse of discretion. Moreover, in light of Davis's

admissions,   any   error   in   excluding   details of Sutton's sentence   was   harmless.   See State v.


Portnoy, 43 Wn. App. 455, 463 64,718 P. d 805, review denied, 106 Wn. d 1013 (1986).
                              -       2                             2

       B.        WHITE


       Davis further argues that the trial court erred in excluding evidence that White attempted

to steal drugs during a controlled buy that occurred in a subsequent investigation unrelated to

Davis's case. She fails to argue how the trial court's decision constituted an abuse of discretion

and cites no authority to support her argument. We refrain from addressing this argument. RAP

a)(
10.
  6).
  3(

IMPERMISSIBLE HEARSAY EVIDENCE


       Davis next argues that the trial court committed reversible error in allowing Detective

Musselwhite to testify that Sutton told him that Davis .had methamphetamine for purchase.

Although this statement was hearsay, as the State correctly concedes, any error in allowing it was
harmless.


       We will not reverse a conviction due to an error in admitting evidence that does not
               -

prejudice the defendant. State v. Bourgeois, 133 Wn. d 389, 403, 945 P. d 1120 (1997).And
                                                   2                  2
where the error is from violation of an evidentiary rule, appellate courts apply "he rule that error
                                                                                 t

is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have

been materially affected had the error not occurred." State v. Tharp, 96 Wn. d 591, 599, 637
                                                                           2

P. d 961 (1981).The improper admission of evidence constitutes harmless error if the evidence
 2               "

is of minor significance in reference to the overall, overwhelming evidence as a whole."

Bourgeois, 133 Wn. d at 403.
                 2



                                                       20
No. 42844 0 II
          - -



          The evidence Davis challenges consists solely of the following testimony elicited from

Detective Musselwhite on direct examination:


          Q.      What did Ms. Sutton tell you with respect to setting up this controlled buy

          A.      She told me --
          Q. --     limited to that.
          A.      She told   me   she called [Davis] and asked if she couldpurchase -- if she
                  had  methamphetamine available for purchase and if      she was -- [ Davis]
                  told her that there was methamphetamine available for purchase.

2RPat166.


          Although this statement is a statement made out of court and used as "evidence to prove

the truth of the matter asserted," 801( ), essentially cumulative of Sutton's testimony
                                 ER   c it was

and its   significance    was   minor.   Sutton testified that she purchased methamphetamine from

Davis on two separate occasions. In addition, Detective Musselwhite testified as follows:

          I asked [Davis] if she and Bernard Lee were working together to distribute the
          methamphetamine, or if it was something he was doing and maybe she was doing
          it kind of against her will or just because this was her boyfriend if he was making
          her do it. And she said that they [were] working together....

                        S] e did tell me that she was distributing along with Bernard Lee.
                         h

3 RP at 248.

          While Davis expresses concern that jurors may have viewed Detective Musselwhite's

statement about what Sutton said to him " substantive evidence of guilt," of Appellant at
                                        as                              Br.

22, Davis's own admissions to Musselwhite provided overwhelming evidence, corroborated by

Sutton's and White's testimony, to support her delivery convictions. Accordingly, the admission




13 The trial court ruled in its CrR 3. hearing that Davis's statements to Detective Musselwhite
                                     5
were made knowingly, voluntarily, and intelligently, and would be admissible at trial.
                                                     21
No. 42844 0 II
          - -



of Musselwhite's brief testimony that Davis told Sutton she had drugs to sell, though

inadmissible hearsay, was harmless.

SAG ARGUMENTS


         A.       INEFFECTIVE ASSISTANCE


         In her SAG, Davis argues that she received ineffective assistance of counsel because

t] counsel failed to object, request a mistrial, or address in any way that juror # was
 rial                                                                             5

repeatedly nodding off during trial."SAG at 2. To establish ineffective assistance of counsel,
Davis needs to show that had trial counsel requested that juror 5 be, replaced, there is a

reasonable probability that the outcome of her trial would have differed. Thomas, 109 Wn. d at
                                                                                        2

226. Here, the record reflects that a brief discussion occurred between the trial court and counsel

concerning a juror nodding off on the fourth day of trial. There is no evidence that the juror
                                                                                                              14
actually fell asleep       or was   unfit to   serve   as   a   juror through   the remainder of Davis's trial.


Moreover, under RCW 2.6.the trial court has a duty "to excuse from further jury service
                    110,
                      3

any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of ...
inattention ...     or by reason of conduct or practices incompatible with proper and efficient jury

service."Davis fails to argue and nothing in the record reflects that the trial court abused its
                              —                                  —

discretion in deciding to keep juror 5 on the jury panel and monitor the level of his attention. See

State v. Hughes, 106 Wn. d 176, 204, 721 P. d 902 (1986) ( " drowsiness issue was not again
                       2                  2              The

brought to the court's attention, except when breaks were requested. Both counsel and the court
were    aware     of the   potential problem,      monitored it and handled it          appropriately. Nothing




14
     Outside the jury's presence the trial court stated, The clerk informs me we have to keep an
                                                         "
eye on No. 5. Apparently he is nodding off frequently."3 RP at 300.
                                                            22
No. 42844 0 II
          - -



suggests that the jury drowsiness problem             was     such   as   to   prejudice   the defendant. "). This

                        15
argument lacks merit.

         B.      VIOLATING POLICE MANUAL


         Davis next argues that the Bremerton Police Department violated its own "Special

Operations Group Manual" by working with Sutton despite the fact that they found drugs and

drug paraphernalia in her vehicle. But as presented, whether or not Bremerton police violated a

departmental    rule has     no   bearing   on   Davis's convictions.          Accordingly, this argument lacks

merit.


         C.      CUMULATIVE ERROR DOCTRINE


         Last, Davis argues that she is entitled to a new trial pursuant to the cumulative error

doctrine. "The application of that doctrine is limited to instances when there have been several

trial errors that standing alone may not be sufficient to justify reversal but when combined may

deny a defendant a fair trial."State v. Greiff, 141 Wn. d 910, 929, 10 P. d 390 (2000). The
                                                      2                 3
cumulative error doctrine does not warrant reversal in this case as nothing in the record suggests

that Davis received an unfair trial ( r even that any significant errors occurred during her trial).
                                    o

          In conclusion, because Davis received effective assistance of counsel, probable cause

supported issuing the search warrant, sufficient evidence supports her delivery of a controlled
substance convictions and school zone enhancements, and the rest of Davis's arguments lack

merit, we affirm the delivery of a controlled substance convictions along with the school zone

enhancements. However, because RCW 69. 3. inapplicable to the circumstances of this
                                   010(
                                      1 is
                                      5 )

case, we vacate Davis's conviction for unlawful use of a building for drug purposes and remand

is
     Davis also argues that counsel was ineffective for failing to challenge the probable cause basis
for the search warrant. Because we already addressed this above, we do not again address that
argument here.
                                                         23
No. 42844 0 II
          - -


for   resentencing. In addition, on remand, the trial court is to correct Davis's judgment and

sentence to make clear that the counts as reflected in the jury's verdicts correspond to the counts

she is being sentenced on to avoid potential confusion.




                                                  QUINN-
                                                       BRINTNALL, J.
We concur:
                            q   T



JQHANSON, A. .
          J.
           C
                        T


FEARING, J.




                                                 M'
