                                                                                    FILED
                                                                             CC'' T OF APPEALS
                                                                               P
                                                                                  01 ii

                                                                            2013 MAY -7   AM 11: 47
                                                                            ST)

                                                                            By




    IN THE COURT OF APPEALS OF THE STATE OF WASH]

                                        DIVISION II

STATE OF WASHINGTON,                                            No. 41949 1 II
                                                                          - -


                               Respondent,

      V.



DWAYNE WRIGHT,                                            UNPUBLISHED OPINION


                               Appellant.

            BRINTNALL, P. .
       QUINN-           J         —   A jury found Dwayne Wright guilty of unlawful possession

of a controlled substance (methamphetamine) with intent to deliver while armed with a firearm

within.1,00 feet of a school-bus stop, unlawful possession of a controlled substance (heroin),
        0
second degree unlawful possession of a firearm, third degree driving with a suspended license,
and unlawful   use   of drug   paraphernalia.   RCW 69. 0.RCW 9.
                                                    b);
                                                    401(
                                                       2)(
                                                       5      530;RCW
                                                               94A.

4013(
69. 0.RCW 9.1.
    1
    5 ); 040(
          a)(RCW 46. 0. former RCW 69. 0.2002).
            i);
            2
            4 )( 2
                 342;              412(
                                      1
                                      5 ) (
Wright appeals, arguing that (1) counsel was ineffective for failing to challenge the validity
                                his
of a vehicle search warrant obtained, in part, by establishing probable cause with potentially

inadmissible evidence from a drug dog sniff; 2)insufficient evidence supports his unlawful .
                                             (

possession convictions and firearm enhancement; and (3) trial court's sentencing provisions
                                                       the
violate his freedom of association.
No.41949 1 II
         - -



          We hold that because probable cause supported issuing the search warrant even absent

the drug dog evidence, counsel was not ineffective for failing.to challenge the warrant on those

grounds. In addition, sufficient evidence supports Wright's unlawful possession convictions and
a sufficient nexus exists between the firearm Wright constructively possessed and the drugs he

intended to sell to support the firearm sentencing enhancement. However, we agree with Wright

that the sentencing court's community custody provision prohibiting him from associating with

drug possessors, users, [or] sellers,"without requiring that any association be knowing, is

impermissibly vague. Clerk's Papers (CP)at 224. Accordingly, we affirm Wright's conviction
and sentence but remand to the sentencing court to clarify the community custody provision.

                                                   FACTS


BACKGROUND


            On March 5,2010, at approximately 1:5 AM, Pierce County Deputy Sheriff Robert Shaw
                                               1

detained Wright for driving a vehicle with a burned out license plate light. Shaw approached the
driver side of Wright's vehicle while his partner, Pierce County Deputy Sheriff Michael Cooke,

approached the vehicle's passenger side. Inside the vehicle, the deputies saw a broken narcotics
       in           view   along with     shaved"key of the type commonly used              to steal   cars.   The
pipe        plain                       a "




deputies had Wright step out of the vehicle and, as he did, Cooke noticed that Wright had been
sitting     on a   pair of black leather gloves   and   a   metal   paint   scraper.   Cooke also saw Wright's,

smart phone in plain view displaying a text message that read, If you still want to do the deal
                                                               "
wit dem       pills,   call me." CP at 16.        The deputies arrested Wright for possessing drug

paraphernalia and automotive theft tools and in a pat down search of Wright incident to arrest,
                                                      -
discovered another glass pipe with residue and $565 in bills grouped together in smaller


                                                            F)
No. 41949 1 II.
          - -



denominations. Cooke field tested the pipe's residue which was positive for methamphetamine.

A records check revealed that Wright's driver's license was suspended

       After placing Wright in their patrol car, the deputies requested that a K 9 officer respond
                                                                                 -

to the scene. The narcotics dog, Timber, alerted indicating the presence of narcotics in a metal

lockbox on the passenger seat of the vehicle as well as in the area where the deputies first saw

the broken narcotics pipe. While Wright was booked.at Pierce County Jail, the deputies had the

vehicle towed to a nearby precinct to be impounded.

       Pierce County Deputy Sheriff Christian Nordstrom obtained a search warrant for the

impounded   vehicle.   In executing the warrant, Nordstrom opened the lockbox on Wright's

passenger seat and, inside, discovered a digital scale, three small containers containing
methamphetamine, money gram receipts with Wright's name on them, a .40 caliber pistol, a
piece of black tar heroin, and various paperwork including a letter to Wright from the
Washington Department of Licensing.        Inside Wright's trunk, Nordstrom found three bags of

marijuana   and   a "window   punch,"a   tool   typically   used to break   car   windows.   2 Report of

Proceedings (RP)at 334. As part of the investigation, Nordstrom also performed school zone
measurements and determined that Wright had been arrested within 1,00 feet of a school zone.
                                                                  0

        The State charged Wright with (1) unlawful possession of a controlled substance

 methamphetamine) with intent to deliver while armed with a firearm, 2)
                                                                     ( unlawful possession of
a controlled substance ( marijuana) with intent to deliver while armed with a firearm, (3)

unlawful possession of a controlled substance (heroin), ( second degree unlawful possession of
                                                      4)
a firearm, ( )driving with a third degree suspended license, and (6)unlawful use of drug
           5

paraphernalia.      RCW   b);2)( 530; RCW 69. 0. RCW
                          69. 0. RCW 9.
                          401(
                             5        94A. c);
                                           401(
                                              2)(
                                              5

4013(
69. 0.
    1 RCW 040(
    5 );9.1.
          a)(i);
             2)( 20.former RCW 69. 0. The State
             4 RCW 46.
                   342;        412(
                                  1
                                  5 ).
                                                    3
No. 41949 1 II
          - -



later amended the charges to include school zone enhancements for both unlawful possession

with intent to deliver charges.

PROCEDURE


       Before trial, Wright moved the trial court to suppress all of the evidence against him,

arguing that Deputies Shaw and Cooke pulled him over as part of a pretextual stop to "conduct a

speculative    criminal      investigation   unrelated to [    Wright's]driving, and not for the purpose of

enforcing the traffic code." CP at 9. The State responded that the stop was not pretextual as

Wright's    rear   license   plate light   was    nonoperational, a   traffic code violation. At.the CrR 3.
                                                                                                          6


hearing, Wright admitted that the broken methamphetamine pipe and shaved key were in plain
view when officers approached, but maintained that the officers never told him why they had

pulled him over. Wright did not argue that the police lacked probable cause to arrest him after
he had been pulled over or that they lacked probable cause to obtain a warrant to search his
vehicle. After hearing additional testimony from Shaw, Cooke, and Wright's mechanic, the trial
court ruled that the stop was not pretextual.

        Wright's jury trial began            on   February 10, 2011. Deputies Shaw and Cooke testified

about the traffic      stop and the ensuing          arrest.    Deputy Nordstrom testified about searching

Wright's vehicle. Wright testified in his own defense and admitted that both methamphetamine
pipes were his, that the "shaved" key on his key ring was given to him by a friend because
Wright had lost his own car key, and that the lockbox was his but that he had left it unlocked in
his trunk prior to the incident and that he had loaned his car to an unnamed friend earlier in the
                                                               ,
 evening.     In light of this testimony, the defense requested and received a jury instruction for

 unwitting possession.



                                                           0
No.41949 1 II
         - -



        On February 16, the jury returned its verdict, finding Wright guilty of all counts except

count   II,the marijuana charge. The trial court sentenced Wright to 204 months confinement,

including a 60 month firearm enhancement and 24 month school zone enhancement. The trial
               -                                -

court also ruled that upon his release, Wright would be placed in community custody .for 24

months during which time he should have no contact with " rug possessors, users, or]sellers."
                                                        d                        [

CP at 224. Wright timely appeals his judgment and sentence.

                                          DISCUSSION


INEFFECTIVE ASSISTANCE OF COUNSEL


         Wright argues that he received ineffective assistance of counsel because his trial counsel

failed to challenge the dog sniff search of his vehicle or the probable cause basis for the search
warrant.' Because the record reflects that probable cause supported issuing the search warrant



  Wright also argues, at length, that an appellant may raise an unpreserved evidentiary issue for
the first time on appeal so long as the appellate record is sufficiently developed to address the
issue. Our decisions have long held that a defendant may not raise a suppression issue for the
first time on appeal if they have failed to preserve the issue by not challenging the evidence at
trial. See, e. .,
              g State v. Lee, 162 Wn. App. 852, 259 P. d 294 (2011),
                                                        3               review denied, 173 Wn. d2
1017 (2012); also State v. Tarica, 59 Wn. App. 368, 798 P. d 296 (1990),
               see                                              2                overruled on other
grounds by State v. McFarland, 127 Wn. d 322, 899 P. d 1251 (1995);
                                          2               2                 State v. Mierz, 72 Wn.
App. 783, 866 P. d 65, 875 P. d 1228 (1994),aff'd, 127 Wn. d 460, 901 P. d 286 (1995).
                   2              2                               2                 2
Wright argues, however, that recent decisions have created a "modern" approach to issue
preservation that allows a party to challenge a suppression issue for the first time on appeal. In
support of this contention, Wright relies on State v. Abuan, 161 Wn. App. 135, 257 P. d 1      3
2011),   State v. Contreras, 92 Wn. App. 307, 966 P. d 915 (1988), State v. Robinson, 171
                                                      2                and
Wn. d 292, 253 P. d 84 (2011).
  2             3
         But these cases do not stand for Wright's proposition that Washington jurisprudence has
developed a "modern"approach to issue preservation. Abuan, for one, held that a defendant had
not waived his challenge to a warrantless vehicle search because two seminal cases, State v.
Patton, 167 Wn. d 379, 219 P. d 651 (2009), State v. Valdez, 167 Wn. d 761, 224 P. d 751
              2              3              and                       2              3
2009),  were decided after his trial and convictions and principles of retroactivity allowed him to
raise preservation issues that would be controlled by the Patton and Valdez cases for the first
time    on   appeal. Abuan,   161   Wn. App.   at 148 49.
                                                      -     The Robinson court came to the same
conclusion and established a four part test for determining whether issue preservation principles
                                  -
 should apply when a defendant makes a suppression challenge for the first time on appeal
                                                   5
No. 41949 1 II
          - -



irrespective of information contributed by the canine officer, any challenge to the search warrant

below would have been fruitless in excluding the evidence contained in the lockbox.

Accordingly, Wright fails to establish that his counsel's performance prejudiced him and his
ineffective assistance claim fails.


         To prevail on his ineffective assistance of counsel claim, Wright must show both

deficient performance and resulting prejudice. Strickland v. Washington, 466 U. .668, 687, 104
                                                                              S
S. Ct.   2052, 80 L. Ed. 2d 674 (1984). Counsel's performance is deficient if it fell below an

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

1997),
     cent. denied, 523 U. . 1008 (1998). This court's scrutiny of counsels performance is
                        S                                                '
highly deferential; this court strongly presumes reasonableness. State v. McFarland, 127 Wn.2d
322, 335 36, 899 P. d 1251 (1995).To rebut this presumption, a defendant bears the burden of
         -        2                '
               the    absence    of           conceivable   legitimate   tactic   explaining   counsel's
establishing                           any


performance. "' State v. Grier, 171 Wn. d 17, 33, 246 P. d 1260 (2011) quoting State v.
                                      2                3               (

Reichenbach, 153 Wn. d 126, 130, 101 P. d 80 (2004)). establish prejudice, a defendant
                   2                  3             To

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
                                                         2                  2                "


following substantive changes in the law. 171 Wn. d at 305. Both Abuan and Robinson are
                                                2
distinguishable as, here, Wright does not claim that any substantive changes in the law have
occurred since his trial.
       In Contreras, this court held that if a defendant raises an ineffective assistance of counsel
claim for failure to suppress evidence, the court may address the claim if the record is sufficient
to determine whether the suppression motion would have been granted below. 92 Wn. App. at
313 14. But the Contreras court explicitly noted that RAP 2. "`
    -                                                             5 does not guarantee that the
appellate   court   will decide "'   an evidentiary issue raised for the first time on appeal. 92 Wn.
App. at 317 18 n. (quoting 2 LEWIS H. ORLAND AND KARL B. TEGLAND, WASHINGTON
            -   6
PRACTICE: RULES PRACTICE, at 567 (1997)).
                                       Because we address Wright's evidentiary claims in
the context of his ineffective assistance of counsel claim, we do not separately address the
unpreserved suppression argument.

                                                     m
No. 41949 1 II
          - -



reasonable probability is a'probability sufficient to undermine confidence in the outcome."

Strickland, 466 U. .at 694.
                 S

       Had the canine search been illegal (as Wright contends),any information contributed by

the canine search would be impermissible for supporting the affidavit of probable cause for a

search warrant.   As the Washington Supreme Court explained in State v. Eisfeldt, 163 Wn. d
                                                                                        2

628, 640, 185 P. d 580 ( 008)second alteration in original),
               3       2      (

       Where evidence is obtained as a direct result of an unconstitutional search, that
       evidence must ... be excluded as "` ruit of the poisonous tree. "' [ Wong Sun v.
                                         f
       United States, 371 U. . 471, 487 88, 83 S. Ct. 407, 9 L.Ed. 2d 441 (1963)]. f
                           S            -                                          I]"[
       information contained in an affidavit of probable cause for a search warrant.was
       obtained by an unconstitutional search, that information may not be used to
       support the warrant."State v. Ross, 141 Wn.2d 304, 311 12,4 P. d 130 (2000).
                                                              -     3
       The court must view the warrant without the illegally gathered information to
       determine if the remaining facts present probable cause to support the search
       warrant. [Ross, 141 Wn. d] at 314 15. If the warrant, viewed in this light, fails
                                2           -
       for lack of probable cause, the evidence seized pursuant to that warrant must also
       be excluded.


       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. Patterson,
83 Wn. d 49, 58, 515 P. d 496 (1973).Probable cause for a search "requires a nexus between
     2                2

criminal activity and the item to be seized and between that item and the place to be searched."
State v. Neth, 165 Wn. d 177, 183, 196 P. d 658 (2008).But even assuming (without deciding)
                     2                  3

that the canine search in this case was invalid, probable cause still existed to support issuing the

search warrant.


        Here, Deputy Nordstrom's affidavit for search warrant contained the following
information   independent   of the   dog sniff evidence: ( 1)Deputy Shaw.saw a "broken glass

smoking pipe in a storage cubby near the'steering wheel" of Wright's car as he approached the
                                                 7
No. 41949 1 II
          - -



vehicle; 2)Deputy Cooke noted that
         (  "                                     one                keys had been shaved down; ...
                                                        of [ Wright's]                                     a




common     method of     making keys which         will work in   a   number of similar vehicles "; (3)after

arresting Wright for possession of drug paraphernalia and possession of auto theft tools, Shaw

located "a glass drug pipe of the variety commonly used to smoke methamphetamine" in

Wright's shorts which Cooke field-
                                 tested positive for methamphetamine; and (4)a records
check revealed that "      Wright's criminal history includes, among other things, arrests for:

Unlawful Possession of a Controlled Substance, Unlawful Possession of a Controlled Substance

with Intent to Deliver, Unlawful Delivery of a Controlled Substance, Unlawful Possession of a

Firearm, Possession of Burglary Tools, Felony Theft, and Altering a Firearm's Identification

Numbers."CP at 21 22.
                  -


         In addition, Deputy Nordstrom attached the deputies' incident report to the affidavit for
the   issuing judge magistrate
                    /                   to   review.    CP at 21 ( " Deputy   Shaw's report is attached as

Attachment One. ").       That report further notes that a patdown search of Wright, incident to
                                                              -

arrest, revealed that he had 1565 ($
                                   515 in the left pocket, 50 in the right). The money was
                                                           $

folded in smaller denominations, consistent with money received over the course of numerous

2
  Wright also argues that "[ ] fact that [he] was booked for unlawful possession of drug
                           the
paraphernalia must also be excised from the complaint for the search warrant"because "[ ere
                                                                                       m]
possession of drug paraphernalia is not a crime and cannot be the basis for an arrest" and "[
                                                                                            a]
police   officer ...   cannot arrest for a misdemeanor unless the arrestee commits that crime in the
officer's presence. Br. of Appellant at 43 (emphasis omitted) citing State v. McKenna, 91 Wn.
                                                                    (
App. 554, 563, 958 P. d 1017 (1998);
                         2                 State v. O' eill, 148 Wn. d 564, 584 n. , 62 P. d 489
                                                         N            2               8       3
2003);    RCW 10. 1. But Wright misreads the dispositive statute at issue. Former RCW
                 100). 3
412(
69. 0.clearly states that it is a misdemeanor "for any person to use drug paraphernalia to
         1
         5 )
       pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the
human body a controlled substance." Emphasis added.)Here, although officers did not observe
                                         (
Wright ingest drugs in their presence (the only portion of the statute Wright focuses on in his
argument),both methamphetamine pipes contained significant drug residue and, accordingly, the
pipes were being used to store or contain illicit drugsa misdemeanor occurring in the officers'
                                                          —
presence    warranting   an   arrest.
No. 41949 1 II
          - -



drug-
    related transactions." CP at 16. It also mentions the text message on Wright's phone, in

plain view, mentioning a potential drug deal.

       Taken together, these facts clearly support a finding of probable cause that Wright was

involved in criminal activity and that evidence of that activity would be found in his vehicle.

Although "[
          i]nnocuous objects that are equally consistent with lawful and unlawful conduct do

not constitute probable cause to search" a vehicle, Wright's possession of a methamphetamine
pipe with a significant amount of illicit drug residue still contained in it was not innocuous.
Neth, 165 Wn. d
            2     at 185.      Nor were the potential automotive theft tools, the second (broken)

methamphetamine, pipe in the vehicle, or the text message concerning a drug transaction.
Moreover, where strong factual similarities exist between a defendant's past crimes and his or

her currently charged offenses, criminal history can significantly contribute to a probable cause
determination. State v. Hobart, 94 Wn. d 437, 446, 617 P. d 429 (1980).Here, Wright had an
                                     2                  2

extensive criminal   history    related to   drug   use,   drug dealing, and theft.   Accordingly, a

commonsense" evaluation of Deputy Nordstrom's affidavit supports a probable cause finding

without reliance on information received from the dog sniff. State v. Jackson, 150 Wn. d 251,
                                                                                     2

265, 76 P. d 217 (
         3       2003).

       Thus, even if Wright had successfully challenged the drug dog sniff at trial, probable

cause still clearly supported issuing the search warrant for Wright's vehicle. Accordingly, there

is no probability that the outcome of the trial would have been different had a challenge to the




                                                     6
No. 41949 1 II
          - -



drug dog sniff been successful. Wright fails to establish that he was prejudiced by his counsel's

performance.
SUFFICIENCY OF THE EVIDENCE


          Wright argues that insufficient evidence supports his convictions for unlawful possession

of heroin, unlawful possession of methamphetamine with intent to deliver, and unlawful

possession    of   a   firearm. Wright also argues that insufficient evidence supports the firearm

enhancement attached to his unlawful          possession   with intent to deliver conviction. Because


sufficient evidence supports the convictions and the enhancement, we disagree.
          Sufficient evidence exists to support a conviction if any rational trier of fact could find

the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the

light   most favorable to the State. State     v.   Hosier, 157 Wn. d 1, 8, 133 P. d 936 (2006). A
                                                                  2              3


defendant claiming insufficiency of the evidence admits the truth,of the State's evidence and all
inferences that reasonably can be drawn from the evidence. State v. Salinas, 119 Wn. d 192,
                                                                                   2

201, 829 P. d 1068 (1992). Circumstantial evidence and direct evidence are equally reliable.
          2


State v. Delmarter, 94 Wn. d
                         2           634, 638, 618 P. d 99 (1980). We defer to the trier of fact on
                                                    2




3
    We also note that Wright's counsel made the strategic decision to challenge the police stop on
the grounds that it was pretextual. This was a legitimate tactic which explains why counsel did
                                          basis for the warrant.   Grier, 171 Wn. d
                                                                                2     at 33.   Had the
not     challenge the probable    cause


pretextual challenge succeeded, all evidence from the stop would have been excluded. Had a
challenge to the search warrant succeeded, some evidence would still have been admissible
against Wright ( . ., drug pipes in plain view).
               eg the
4
    We note that Wright's appellant counsel does not clearly argue that insufficient evidence
 supports Wright's convictions for unlawful possession of the drugs and gun. Instead, counsel's
 sufficiency of the evidence analysis relates only to the analysis concerning whether probable
 cause supported the vehicle search warrant. This approach confuses the two markedly distinct
 concepts (whether probable cause supports the issuing of a search warrant and whether sufficient
 evidence supports a criminal conviction).We address each issue separately.
                                                      10
No.41949 1 II
         - -



issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.

State v. *
         Walton, 64 Wn. App. 410, 415 16, 824 P. d 533, review denied, 119 Wn. d 1011
                                      -        2                             2

1.
 992).

       A.        HEROIN POSSESSION


       To convict Wright for unlawful possession of a controlled substance (heroin), State
                                                                                   the

had to prove beyond a reasonable doubt that Wright possessed a controlled substance without a
valid prescription or other authorization. RCW 69. 0.Here, officers found heroin in a
                                               4013(
                                                   1
                                                   5 ).
lockbox   on   the front seat of   Wright's   vehicle. , Wright   neither denies that the substance was

heroin nor claims that he had a prescription or other authorization to possess the substance.

Accordingly, we must merely determine whether Wright constructively possessed the lockbox.
       Possession may be actual or constructive. Actual possession of contraband occurs when

the goods are in the personal custody of the person charged with possession; whereas,
constructive possession occurs when the person charged with possession has dominion and
control over the goods. State v. Callahan, 77 Wn. d 27, 29, 459 P. d 400 (1969).To determine
                                                2                2
whether a defendant constructively possesses an unlawful -
                                                         substance, we examine the totality of
the situation to ascertain if substantial evidence exists that tends to establish circumstances from

which the trier of fact could reasonably infer the defendant had dominion and control over the

contraband. State v. Cote, 123 Wn. App. 546, 549, 96 P. d 410 (2004).Constructive possession
                                                      3

may be proved by circumstantial evidence. State v. Sanders, 7 Wn. App. 891, 893, 503 P. d 467
                                                                                      2
1972). Proof of the defendant's exclusive control is not necessary to establish constructive

possession. State v. Davis, 117 Wn. App. 702, 708 09,72 P. d 1134 (2003),
                                                  -      3              review denied, 151
Wn. d 1007 (2004).
  2



                                                     III
No. 41949 1 II
          - -



       Here, the State produced sufficient evidence from which any rational trier of fact could

conclude that Wright constructively possessed the lockboxand all the contents therein
                                                         —

including   the heroin —discovered   on the front seat of his automobile. At the time of Wright's

arrest, he was the sole occupant of the vehicle and the arresting officers immediately noticed the

lockbox on the passenger seat, clearly within Wright's reach. Further, after validly obtaining a

search warrant, Deputy Nordstrom discovered paperwork in the lockbox, including a letter

addressed to Wright from the Washington State Department of Licensing and multiple "money

gram" receipts with Wright's     name   on   them.    Last, Wright admitted at trial to owning the

lockbox. Although Wright claimed that he had loaned his car to a friend some hours before and

that he was unaware of the illegal contents of the box found at the time of his arrest, we defer to

the trier of fact on issues of witness credibility and the persuasiveness of the evidence. Walton,

64 Wn. App. at 415 16. Accordingly, the State presented sufficient evidence to support Wright's
                   -

unlawful possession of heroin conviction.

       B.        POSSESSION WITH INTENT TO DELIVER


       To convict Wright for unlawful possession of a controlled substance with intent to deliver

methamphetamine),the State had to prove beyond a reasonable 'doubt that he (1)unlawfully
possessed (2)with intent to deliver (3) controlled substance. RCW 69. 0. b);
                                       a                          401(
                                                                     l 2)( State
                                                                     5 ),                                 (
v. Sims, 119 Wn. d 138, 142, 829 P. d 1075 (1992).A jury may infer the defendant's specific
               2                  2

criminal intent from conduct plainly indicating such intent as a matter of logical probability.

Delmarter, 94 Wn. d at 638. Mere possession of a controlled substance is generally insufficient
                2

to establish an inference of intent to deliver; rather, at least one additional factor must be present.

State v. Goodman, 150 Wn. d 774, 783, 83 P. d 410 ( 004).
                        2                 3       2



                                                     12
No. 41949 1 II
          - -



       Here, as we explained with regard to Wright's conviction for heroin possession, Wright

had constructive possession of the lockbox found on the passenger seat of his vehicle and all the

contents    inside, including the methamphetamine.           Moreover, Wright not only possessed

quantities of methamphetamine in an amount greater than police normally associate with

personal use, he also possessed the methamphetamine in a manner from which any reasonable

juror could infer that he intended to deliver it. Deputy Nordstrom testified that when searching

Wright's vehicle pursuant to the properly obtained search warrant, he discovered a digital scale
and three separate containers       containing methamphetamine. Nordstrom testified that in his

               the type of scale discovered is "used to       weigh drugs."     3 RP at 302.   Further,
experience,

Nordstrom explained that because he found three separate quantities of methamphetamine, all

larger than is typical   for   personal   use, i] would
                                               "[ t       suggest ...   that the person in possession of

those was a drug dealer, rather than a drug user."3 RP at 340. Viewing this evidence in a light
most favorable to the State, we hold that sufficient evidence supported the jury's verdict finding

Wright guilty of unlawful possession of a controlled substance with intent to deliver.
        C.       FIREARM POSSESSION


        To convict Wright of second degree unlawful possession of a firearm, the State needed to

prove beyond a reasonable doubt that Wright, 1)
                                             ( having been previously convicted of a felony,
2)knowingly had a firearm (3)in his possession or control. RCW 9.1.Wright
                                                               a)(
                                                               040(
                                                                  i).
                                                                  2
                                                                  4 )(
stipulated to having a previous felony conviction at trial. Accordingly, we need only determine
whether Wright knowingly had a firearm in his possession or control.

           Here, Wright had constructive possession of the lockbox found on the passenger seat of
his vehicle and all the contents inside, including the firearm. And as we explained in State v.

 Turner, 103 Wn. App. 515, 524, 13 P. d 234 (2000), " jury may infer that a defendant has
                                    3             a
                                                    13
No. 41949 1 II
          - -



constructive possession of an item when that person has dominion and control over the premises
where   an   item is located.   Ownership and actual control of a vehicle establish dominion and

control."     Accordingly, viewed in a light most favorable to the State, sufficient evidence

supported the jury's verdict finding Wright guilty of second degree unlawful possession of a
firearm.


        D.       FIREARM ENHANCEMENT


        In his statement of additional grounds ( SAG),'
                                                      RAP 10.10, Wright argues that.

insufficient evidence supports his firearm enhancement because he "was not in a commission of
a crime and the firearm was not easily accessible."SAG at 1. Because the evidence, viewed in
                                                    ,

the light most favorable to the jury's verdict, supports a finding that a sufficient nexus existed
between Wright, the crime of unlawful possession of a controlled substance with intent to
deliver, and the weapon found in the passenger seat lockbox, we disagree.

        A defendant is armed with a deadly weapon, as a matter of law, if the weapon is easily

accessible and    readily   available for   use   for either offensive   or   defensive purposes. State v.


Barnes, 153 Wn. d 378, 383, 103 P. d 1219 (2005);
              2                  3              State v. Gurske, 155 Wn. d 134, 137, 118
                                                                       2

P. d 333 (2005);
 3             State v. Valdobinos, 122 Wn. d 270, 282, 858 P. d 199 (1993).T] e mere
                                          2                  2              "[ h

presence of a deadly weapon at the scene of the crime,mere close proximity of the weapon to the
defendant, or constructive possession alone [ are] insufficient to show that the defendant is
armed." State     v.   Brown, 162 Wn. d 422, 431, 173 P. d 245 ( 2007). There must be a nexus
                                    2                  3




 Wright also argues in his SAG that he was denied his right to counsel of his choice. But as the
United States Supreme Court explained in United States v. Gonzalez -Lopez, 548 U. . 140, 151,
                                                                                    S
126 S. Ct. 2557, 165 L.Ed. 2d 409 (2006), "[ e right to counsel of choice does not extend to
                                           T] h
defendants who require counsel to be appointed for them."See also State v. Aguirre, 168 Wn. d2
350, 365, 229 P. d 669 (2010).Here, the record clearly reflects that Wright's trial counsel was,
                3
 assigned through the Department of Assigned Counsel.
                                                       14
No.41949 1 II
         - -



between the defendant, the crime, and the weapon. State v. Schelin, 147 Wn. d 562, 567 70,
                                                                          2            -

575, 55 P. d 632 (2002).To apply, the nexus requires analyzing "the nature of the crime, the
         3

type of weapon, and the circumstances under which the weapon is found."Schelin, 147 Wn. d
                                                                                      2
at 570.


          Here, the crime involved was unlawful possession of a controlled substance with intent to

deliver and the weapon involved was a .40 caliber pistol located in the same lockbox (admittedly
owned by the      defendant) as   the   drugs. In a series of cases involving drug manufacturers,

Washington courts have held that the presence of weapons allows for a reasonable inference that

the drug manufacturer intends to defend their manufacturing operation in case of attack. See

State v. Eckenrode, 159 Wn. d 488; 494, 150 P. d 1116 (2007) ( " jury could readily have
                          2                  3               A

found that the weapons     were   there to protect the criminal   enterprise. "); State v. Simonson, 91

Wn. App.     874, 883, 960 P. d 955 (1998) ( " is ...
                            2              It             reasonable to infer that the purpose of so

many loaded guns was to defend the manufacturing site in case it was attacked. We conclude
that the evidence is sufficient to   support the deadly weapon enhancement. "), review denied, 137

Wn. d 1016( 999).
  2       1

          There is no principled reason to distinguish these cases from the case at hand. Having

determined that Wright had access to the drugs in his lockbox on the passenger seat, it was

reasonable for the jury to infer that Wright could easily access the gun located with the drugs and

that the gun was readily available for offensive or defensive purposes. Accordingly, we affirm
the firearm enhancement.




                                                   15
No. 41949 1 II
          - -



COMMUNITY CUSTODY PROVISIONS


       Last, Wright argues that the sentencing court's imposed condition that he "shall have no

contact with drug possessors, users, [ r] sellers"violates his freedom of association because he
                                     o

has no way of knowing whether most people he meets are involved with drugs. Br. of Appellant

at 55. We agree. Without qualifying that the prohibited contact with drug users be knowing, the

sentencing court's imposed condition is impermissibly vague. Accordingly, we remand to the

sentencing court for clarification.

       RCW 9. )
           505( 4A. authorizes a trial court to " impose and enforce crime -related
              8
              9

prohibitions and affirmative conditions."Nevertheless, an unconstitutionally vague condition

       cannot be cured by allowing the probation officer an unfettered power of
       interpretation, as this would create one of the very problems against which the
       vagueness doctrine is meant to protect, i.., delegation of basic policy matters
                                                e the              "
       to   policemen ... for resolution on an ad hoc and subjective basis."

United States v. Loy, 237 F. d 251, 266 (3rd Cir. 2001) quoting Grayned v. City of Rockford,
                           3                            (

408 U. . 104, 109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972)); also State v. Sansone, 127 Wn.
     S                                                    see

App. 630, 642, 111 P. d 1251 (2005).
                    3

        Here, while the sentencing court's crime -
                                                 related prohibition directly relates to the

circumstances of Wright's crime without a knowledge requirement, the provisionas written —
                                                                              —

is too vague to provide meaningful guidance as to what type of behavior would constitute

grounds for Wright's violation of the custody provision. Accordingly, remand is necessary so

that the sentencing court may provide greater specificity in its imposed community custody

provisions.




                                                 16
No. 41949 1 II
          - -



       We affirm Wright's judgment and sentence but remand to the sentencing court to correct

the community custody provisions attached to Wright's sentence.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0




                                                QUINN-
                                                     BRINTNALL, P. .
                                                                 J
We concur:




                                              17
