                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                            June 28, 2016
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                              No. 47002-1-II

                                Respondent,

         v.

    SUSAN ANN CHRISTOPHER,                                     UNPUBLISHED OPINION

                                Appellant.

        LEE, J. — Susan Ann Christopher appeals her conviction and sentence of possession of

methamphetamine with intent to manufacture or deliver while armed with a firearm, arguing that

(1) the State did not prove that she was armed, (2) the State committed prosecutorial misconduct

during closing arguments, and (3) the trial court erred by ordering forfeiture of all property without

statutory authority. In a statement of additional grounds (SAG), Christopher argues that her right

to a speedy trial was violated because the State misused CrRLJ 3.2.1 to file this criminal case

against her. The State concedes that the trial court erred by ordering forfeiture. We accept the

State’s concession, but hold that the remainder of Christopher’s arguments fail. Thus, we affirm

her conviction and sentence, but we vacate the forfeiture order.

                                              FACTS

        The Kitsap County Sheriff’s Department used a confidential informant (CI) to investigate

Christopher for selling methamphetamine. Working with law enforcement, primarily Detective

Michael Grant, the CI executed three controlled buys with Christopher.1


1
  A controlled buy is when an informant, with the help and supervision of law enforcement, buys
illegal contraband. In this case, law enforcement provides the informant with money allocated for
No. 47002-1-II


          The State charged Christopher by amended information with two counts of delivery of

methamphetamine2 (counts I and II); one count of delivery of methamphetamine,3 with a firearm

sentencing enhancement4 (count III); one count of possession of methamphetamine with intent to

manufacture or deliver,5 with a firearm sentencing enhancement6 (count IV); and two counts of

possession of a controlled substance7 (counts V and VI).8 At trial, law enforcement officers and

the CI testified to the following facts.

          The CI testified that she “always went into [Christopher’s] room to purchase the

[methamphetamine] no matter what.” 2 Verbatim Report of Proceedings (VRP) at 190. The CI

also testified that when she and Christopher went into the bedroom, she either “put the money on

the bed” or gave it to Christopher directly. 2 VRP at 191.

          Following the third controlled buy, officers obtained and executed a search warrant for

Christopher’s residence. In searching Christopher’s bedroom, a “very visible” rifle was “standing




drug investigations, and meets with and searches the informant before and after the drug deal. Law
enforcement then enters into evidence the drugs purchased by the informant. Some controlled
buys use a video camera.
2
    RCW 69.50.401.
3
    RCW 69.50.401.
4
    RCW 9.94A.825.
5
    RCW 69.50.401.
6
    RCW 9.94A.825.
7
    RCW 69.50.4013.
8
    Count IV is the only count at issue here.


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No. 47002-1-II


up to the right side of the entry to the door. Just inside the room.” 2 VRP at 248-49. Ammunition

for the rifle on a dresser was found “just inside the door.” 3 VRP at 268. Officers also found a

Beretta 9 mm pistol and ammunition piled on a suitcase at the foot of the bed. The 9 mm pistol

was not loaded.

       On Christopher’s bed, officers found a case containing, among other things, a digital scale,

two small cups, a small scoop with white powdery substance, and a small book. The book

contained records of “purchase costs, cash cost and front cost of various quantities of drugs.” 3

VRP at 288. The book was consistent with drug ledger notes. As a whole, the case looked “like

a portable kit for selling drugs.” 3 VRP at 287. Additionally, the case contained small plastic bags

with various pills and labels, and two small bags of “a white crystal-type substance,” consistent

with methamphetamine. 3 VRP at 301.

       Officers also found two safes stacked in Christopher’s bedroom. The bottom safe was

unlocked, and contained a digital scale, paperwork, and a loaded .357 magnum pistol. A monitor

“displaying surveillance cameras that were installed on the exterior of the house” sat on top of the

safes. 3 VRP at 412. It is common to see similar surveillance systems in homes that police

“encounter for drug investigations” for the homeowner to be alerted if police arrive or a potential

theft. 3 VRP at 412. Also, drug dealers often use firearms “to protect themselves from other drug

dealers or people that are buying drugs from them . . . to protect their own product, their own

money.” 3 VRP at 423.

       Detective Grant testified that drug dealers may use a weapon during a controlled buy “to

discourage someone from attempting to rip them off or steal their money or steal their drugs.” 3




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No. 47002-1-II


VRP at 313. Detective Grant also testified that he performed test fires with the .22 rifle, the Beretta

9 mm, and the .357 Magnum. Detective Grant concluded that the three firearms were functional.

       During closing arguments, the prosecutor argued that

       “armed” means that there’s a firearm that is easily accessible and readily available.
       Basically it’s close-by and it’s not locked up. You’ll notice in the definition it
       doesn’t say it has to be loaded, though at least in Count 4 on the possession with
       intent, each of those firearms was actually loaded.

5 VRP at 624. Christopher did not object.

       The jury found Christopher guilty of all counts. The jury also found by special verdict that

Christopher was armed with a firearm for the crime possession of methamphetamine with intent

to manufacture or deliver (count IV). The trial court sentenced Christopher to 72 months in

confinement and ordered Christopher to “[f]orfeit all seized property referenced in the discovery

to the originating law enforcement agency unless otherwise stated.” Clerk’s Papers (CP) at 89.

Christopher appeals.

                                            ANALYSIS

A.     SUFFICIENT EVIDENCE FOR FIREARM ENHANCEMENT

       Christopher argues that the State failed to prove that she was armed with a firearm during

the commission of the crime of possession of methamphetamine with intent to manufacture or

deliver (count IV).9 We disagree.




9
  We note that Christopher repeatedly misrepresents the record. For example, Christopher argues
that Detective Grant “testified that the rifle was so dirty that he could not use a magazine for it but
had to manually load an individual bullet to conduct the test fire at the range.” Br. of Appellant at
6. Detective Grant testified that that when he test fired the rifle, he “had to manually load it”
because “it didn’t have the magazine in it,” and that police do not package the weapon and the
magazine together. 3 VRP at 305. Detective Grant also testified that he had trouble manually


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No. 47002-1-II


        We review sufficiency of the evidence claims for whether, when viewing the evidence in

the light most favorable to the State, any rational trier of fact could have found the essential

elements of the charged crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201,

829 P.2d 1068 (1992). A sufficiency challenge admits the truth of the State’s evidence and all

reasonable inferences drawn from it. Salinas, 119 Wn.2d at 201. We defer to the fact finder on

issues of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v.

Ague-Masters, 138 Wn. App. 86, 102, 156 P.3d 265 (2007).

        “A person is ‘armed’ if a weapon is easily accessible and readily available for use, either

for offensive or defensive purposes.” State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199

(1993); accord State v. Neff, 163 Wn.2d 453, 462, 181 P.3d 819 (2008) (“This potential use may

be offensive or defensive and may be to facilitate the crime’s commission, to escape the scene, or

to protect contraband.”). “But a person is not armed merely by virtue of owning or even possessing

a weapon; there must be some nexus between the defendant, the weapon, and the crime.” State v.

Eckenrode, 159 Wn.2d 488, 493, 150 P.3d 1116 (2007). To apply the nexus requirement, we look

to the “nature of the crime, the type of weapon, and the circumstances under which the weapon is

found.” State v. Schelin, 147 Wn.2d 562, 570, 55 P.3d 632 (2002).

        In Neff, law enforcement discovered a methamphetamine manufacturing laboratory in the

defendant’s garage. Neff, 163 Wn.2d at 457. In the garage, law enforcement found three

handguns: two handguns were loaded and in a locked safe that also contained other controlled

substances, and one was “in a tool belt hanging from the garage rafters.” Id. Law enforcement



loading the rifle, but that he “couldn’t tell if it was because the firearm is particularly dirty or the
fact that the magazine wasn’t seated in it.” 3 VRP at 306.


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No. 47002-1-II


also found a monitor streaming surveillance footage from cameras on the defendant’s property.

Id. at 457.      The State charged Neff with, and Neff was convicted of, manufacturing

methamphetamine, along with a firearm enhancement. Id. at 457-58. On appeal, Neff claimed

that insufficient evidence supported the firearm enhancement. Id. at 461. The court held that the

three firearms, other controlled substances, and security monitors were sufficient for a rational

person to find beyond a reasonable doubt that the defendant was armed and used the firearms to

defend his drug operation. Id. at 464-65.

       Here, the evidence showed that the CI always purchased methamphetamine in

Christopher’s bedroom and that three guns, surveillance monitors, and drugs were found in the

bedroom. Based on the evidence, a rational fact finder could find beyond a reasonable doubt that

Christopher was armed while in possession of methamphetamine with intent to manufacture or

deliver (count IV). Thus, sufficient evidence supports the finding that Christopher was armed with

a firearm at the time she committed the crime of possession of methamphetamine with intent to

manufacture or deliver.

       Christopher also argues that because she was not arrested in the bedroom with the drugs or

near a loaded gun, the State failed to establish the required nexus between the weapons and the

charge of possession with intent to deliver. Her claim fails because the defendant does not have

to be armed at the time of the arrest for purposes of the firearm enhancement. State v. O’Neal, 159

Wn.2d 500, 504, 150 P.3d 1121 (2007) (“The defendant does not have to be armed at the moment

of arrest to be armed for purposes of the firearms enhancement.”).




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No. 47002-1-II


          Christopher further contends that “there was insufficient evidence to establish that either

weapon was loaded.” Br. of Appellant at 6. The evidence, however, showed that the .357 magnum

pistol found in the unlocked safe was loaded. Thus, Christopher’s insufficiency challenge fails.

B.        PROSECUTORIAL MISCONDUCT

          Christopher argues that “the prosecutor committed prejudical, flagrant and ill-intentioned

misconduct” during closing arguments when he misstated the facts by arguing that all three guns

were loaded.10 Br. of Appellant at 8. We disagree.

          To prevail on a claim of prosecutorial misconduct, Christopher must show that the

prosecutor’s conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278

P.3d 653 (2012). When a defendant fails to object to alleged misconduct, she waives the error

unless she can show that the misconduct was so flagrant and ill-intentioned that no instruction

could cure the prejudice, and that the prejudice had a substantial likelihood of affecting the verdict.

Emery, 174 Wn.2d at 760-61. The prosecutor’s conduct is considered in the context of the total

argument, the issues in the case, the evidence, and the instructions given to the jury. State v. Yates,

161 Wn.2d 714, 774, 168 P.3d 359 (2007), cert. denied, 554 U.S. 922 (2008). The defendant

establishes prejudice when the misconduct had a substantial likelihood of affecting the verdict.

Emery, 174 Wn.2d at 760. Also, we presume the jury follows the trial court’s instructions. State

v. Anderson, 153 Wn. App. 417, 428, 220 P.3d 1273 (2009), review denied, 170 Wn.2d 1002

(2010).



10
  Christopher asserts, without support or analysis, that the prosecutor’s error could not have been
cured with an instruction and there is a substantial likelihood that the misconduct affected the
verdict. Therefore we do not consider this argument. RAP 10.3(a)(6); Cowiche Canyon
Conservatory v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).


                                                   7
No. 47002-1-II


       During closing arguments, the prosecutor argued, “You’ll notice in the definition it doesn’t

say it has to be loaded, though at least in Count 4 on the possession with intent, each of those

firearms was actually loaded.” 5 VRP at 624. Christopher did not object.

       Christopher argues that the prosecutor misinformed the jury because there was no evidence

that each firearm was loaded. Christopher is correct that the record does not show that each firearm

was loaded. The record shows that the .357 magnum pistol found in the unlocked safe was loaded;

the 9 mm Beretta was unloaded, but that the ammunition for that firearm was nearby; and the

record does not indicate whether the rifle was loaded. However, Christopher fails to show how a

curative instruction could not have cured any resulting prejudice. Also, the jury was instructed

that the lawyer’s arguments are not evidence, and we presume that the jury follows instructions.

Anderson, 153 Wn. App. at 428.

       Christopher does not argue that the jury was misinformed of the applicable standard or

law.11 Also, the evidence showed there was a loaded firearm in an unlocked safe in the bedroom.

Thus, even if the prosecutor’s statement was erroneous, Christopher fails to show that the

statement had a substantial likelihood of affecting the verdict.       Christopher’s prosecutorial

misconduct challenge fails.




11
  The jury was instructed, in part, that a “person is armed with a firearm if, at the time of the
commission of the crime, the firearm is easily accessible and readily available for offensive or
defensive use.” CP at 60.



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No. 47002-1-II


C.       FORFEITURE

         The trial court ordered Christopher to “[f]orfeit all seized property referenced in the

discovery to the originating law enforcement agency unless otherwise stated.”             CP at 89.

Christopher claims that the sentencing court erred by ordering forfeiture of property without

statutory authority, based on State v. Roberts, 185 Wn. App. 94, 339 P.3d 995 (2014). Roberts

held the trial court must have statutory authority to order forfeiture of property in connection with

a criminal conviction. Roberts, 185 Wn. App. at 96. The State concedes this issue. We accept

the State’s concession and vacate the trial court’s forfeiture order.

D.       STATEMENT OF ADDITIONAL GROUNDS12

         Christopher provides one argument in her SAG. She states:

         Under CrR 3.2.1(d)(1) a defendant shall appear in Superior Court “as soon as
         practicable after detention” unless scheduled to appear in District Court pursuant to
         CrRLJ 3.2.1. The State misused CrRLJ 3.2.1 to file this criminal case therefore
         violating the defendant’s right to a speedy trial. Defendant was initially arraigned
         in District Court in January 2014, knowing that the case would never be heard in
         District Court. Subsequently moved to Superior Court in April 2014.

SAG.

         The record does not contain any evidence of arraignment in district court in January 2014

or any district court records. Accordingly, Christopher’s argument is outside the record and not

properly raised in a statement of additional grounds. See State v. McFarland, 127 Wn.2d 322,

335, 899 P.2d 1251 (1995). Therefore, we do not address this issue.




12
     RAP 10.10.


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No. 47002-1-II


         We affirm Christopher’s conviction and sentence but vacate the trial court’s forfeiture

order.

         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

2.06.040, it is so ordered.



                                                                         Lee, J.
 We concur:



                   Johanson, P.J.




                     Sutton, J.




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