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State v. Gonzalez

Court of Appeals of Washington, Division 2

January 17, 2018

STATE OF WASHINGTON, Respondent,
v.
LEONEL GONZALEZ, Appellant.

          JOHANSON, P.J.

         Leonel Gonzalez appeals his jury trial convictions and sentence for unlawful possession of a controlled substance (methamphetamine) and tampering with a witness. He argues that (1) the "to-convict" instruction for the unlawful possession of a controlled substance charge omitted an essential element because it failed to identify the controlled substance he possessed, (2) this error is not harmless as to the conviction or sentence, and (3) the witness tampering conviction must be reversed because there was insufficient evidence to prove that he attempted to induce a witness to testify falsely.

         We agree that the identity of the controlled substance is an essential element of the offense of unlawful possession of a controlled substance and that it was error not to identify the substance in the to-convict instruction. But we hold that the error was harmless as to the conviction. However, we hold that the unauthorized sentence resulting from the unlawful possession of a controlled substance conviction is not subject to a harmless error analysis. We further hold that the evidence was sufficient to support the witness tampering conviction. Accordingly, we affirm the convictions, but we remand for resentencing on the unlawful possession of a controlled substance conviction.

         FACTS

         I. Background

         A. Theft of the Jeep and Arrest

         Gonzalez was in a relationship with Nona Hook for several years. Hook lived with her mother, Carol Salyers, and several other family members, and Gonzalez was frequently in the home. Salyers owned a Jeep and permitted Hook, but not Gonzalez, to drive it.

         On the evening of September 17, 2015, Hook and Gonzalez argued while in the Jeep. According to Hook, after the argument, she dropped Gonzalez off at a gas station, returned home, parked the Jeep, left the Jeep keys near the back door where her mother usually put them, and went to bed.

         Early the next morning, Hook awoke to find Gonzalez in her room asking her if she wanted some coffee. Hook told him to leave her alone. When he left, she went back to sleep. Later that morning, Salyers discovered that her keys and her Jeep were missing. Salyers contacted the police and reported that her Jeep had been stolen.

         In the early morning hours of September 21, Gonzalez called Hook, and she asked him if he had taken the Jeep. According to Hook, Gonzalez denied knowing anything about the Jeep, but he told her that he was "coming home." 2 Report of Proceedings (RP) at 195. At some point after this call, someone contacted the police.

         The police were waiting when Gonzalez arrived at Hook's home in the Jeep. Upon seeing the police, Gonzalez drove away, jumped out of the Jeep while it was still moving, and attempted to flee on foot. The Jeep rolled into and damaged a parked vehicle. The police caught and arrested Gonzalez. Following his arrest, officers discovered a white substance that later tested positive for both methamphetamine and cocaine in Gonzalez's back pocket.

         B. Jail Call

         While in jail following his arrest, Gonzalez called Hook. This call was recorded.

         During the call, Gonzalez insisted that Hook listen to him and told her that some people were trying to contact her and that when his "investigator" or "somebody" called her, she was to tell them that she "gave [him] permission." Ex. 1A at approx. 7 min. Hook responded, "Tell them that I gave you permission, " and Gonzalez interrupted her and told her to "listen" and said adamantly, "That's it." Ex. 1A at approx. 7 min. 8 sec. Hook responded by chuckling and saying, "That's gonna be a little bit hard for me to do." Ex. 1A at approx. 7 min. 14 sec. Gonzalez appears to respond, "Well, then don't do it." Ex. 1A at approx. 7 min. 18 sec. The rest of Gonzalez's response is unclear.

         Hook replied, "I mean, for one thing, I was-you already know what the deal was." Ex. 1A at approx. 7 min. 24 sec. And Gonzalez told her aggressively to "listen" and that they were not "going to talk about all that." Ex. 1A at approx. 7 min. 33 sec. He then stated, "You know what to do, so." Ex. 1A at approx. 7 min. 37 sec.

         Gonzalez and Hook then talked about when Hook could visit so they could talk about their relationship and whether they would marry even if he was in prison. During this part of the conversation, Hook commented about how hard it was for her to be away from him, and Gonzalez responded by asking her whether she "would rather deal with" 6 or 15 years. Ex. 1A at approx. 10 min. 33 sec.-10 min. 45 sec.

         II. Procedure

         The State charged Gonzalez by amended information with theft of a motor vehicle, unlawful possession of a controlled substance (methamphetamine) under RCW 69.50.4013, [1] hit and run, and tampering with a witness. Although a forensic examination of the white substance revealed both methamphetamine and cocaine, the amended information stated that Gonzalez had unlawfully possessed "a controlled substance, to-wit: Methamphetamine, classified under Schedule II of the Uniform Controlled Substances Act" and did not mention cocaine. Clerk's Papers (CP) at 5-6.

         III. Trial

         The case proceeded to a jury trial. During its opening statement, the State briefly mentioned that the arresting officers had found methamphetamine when they searched Gonzalez following his arrest. Neither the State nor defense counsel mentioned cocaine or any drug other than methamphetamine in their opening statements.

         The State presented testimony from Salyers, Hook, the arresting officers, the woman who owned the car that the Jeep hit, and the forensic scientist who tested the white substance found in Gonzalez's pocket. Their testimony is consistent with the facts set out above. Gonzalez did not present any witnesses.

         In addition to the facts set out above, Hook listened to the recording of Gonzalez's call to her from the jail as it was played for the jury and testified about it. Hook testified that she loved Gonzalez and that it was hard for her to testify. When the State asked her what she meant when she told Gonzalez during the phone call that it would be hard for her to say that she had given him permission to drive the Jeep, Hook responded, "What - what I meant was it would be hard for me to say that I had given him permission. I mean, after we called the police and all of that, I can't go back and then say I gave you permission. I would look like a dumbass." 3 RP at 215. When the State asked Hook if she had at some point considered trying to help Gonzalez "get out of all of this, " Hook responded, "Get out of jail? No, I couldn't; that's my mom - I mean, my mom's car. I mean, I love him, but that's my parent." 3 RP at 215-16.

         On cross-examination, defense counsel asked Hook if she thought Gonzalez "was actually trying to get [her] to change what [she] would otherwise say." 3 RP at 217. Hook responded, "I think that he was just talking because he knows that I would not do that. I mean, I don't know what he - I really can't say. He knows I wouldn't change my mind. He knows me well enough." 3 RP at 217. She stated that she was "hard-headed, " so it did not matter what Gonzalez said. 3 RPat217.

         Hook acknowledged that during the call, she told Gonzalez that "the most difficult thing for [her] to do [was] being apart from him." 3 RP at 234. She also acknowledged she knew that if she did not say she gave him permission to take the car, they could end up being apart longer, perhaps as long as 6 to 15 years.

         Hook further testified that although she knew that Salyers did not want Gonzalez driving the Jeep, she (Hook) had occasionally allowed him to drive the Jeep when it was in her possession until Salyers found out about it. But Hook stated that Gonzalez knew he was not supposed to drive the Jeep. And at no point did Hook testify that she gave Gonzalez permission to drive the Jeep on the night it was taken.

         When the police officers who arrested Gonzalez testified, they stated that they believed the white substance they found in his pocket was methamphetamine and that a field test confirmed this suspicion. Neither officer mentioned cocaine or any drug other than methamphetamine. But a forensic scientist later testified that the white substance found in Gonzalez's possession contained both methamphetamine and cocaine.

         In their closing arguments, neither party mentioned cocaine. But defense counsel referred the jury to the forensic scientist's testimony, arguing, "The drugs we have just - we found them in his pocket. It's not really anything, except those are in his pocket. That's in his pocket, that's in his possession. You heard from a tech that those are drugs; that's [unlawful possession of a controlled substance]. Okay." 3 RP at 319.

         The to-convict instruction for the unlawful possession of a controlled substance charge provided, [2]

To convict the defendant of the crime of possession of a controlled substance, as charged in Count II, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 21st day of September, 2015, the defendant possessed a controlled substance; and
(2) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

CP at 32 (emphasis added). The instruction did not identify the type of controlled substance, but it did refer to the offense "as charged in Count II." CP at 32.

         In addition, jury instruction 17 stated, "It is a crime for any person to possess a controlled substance." CP at 31. And jury instruction 20 stated, "Methamphetamine is a controlled substance." CP at 34. There was no similar instruction stating that cocaine or any drug ...


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