State v. Garcia
| Decision Date | 18 May 1992 |
| Docket Number | No. 25211-9-I,25211-9-I |
| Citation | 65 Wn.App. 681,829 P.2d 241 |
| Parties | STATE of Washington, Respondent, v. Roberto GARCIA, Appellant. |
| Court | Washington Court of Appeals |
Norm Maleng, Pros. Atty., and Cheryl B. Carey, Deputy Pros. Atty., Seattle, for respondent.
Roberto Garcia appeals his judgment and sentence for delivery of and possession with intent to deliver a controlled substance. Appellant claims that his constitutional right to due process was violated by his conviction of a crime not named in the information. Appellant also claims that the possession with intent to deliver charge should have been merged into the delivery charge, and that it was a violation of double jeopardy to convict him of both crimes. Finding that the trial court erred in convicting the appellant for both possession with intent to deliver a controlled substance and delivery of a controlled substance, we reverse the judgment on the possession with intent to deliver conviction and remand for a new trial on that charge and for resentencing on the delivery of controlled substance conviction.
On July 7, 1988, Seattle Police Officer C.W. Trebesh saw a man whom he later identified as Garcia remove a white tissue from his pants and give a white bindle to another man. Officer Trebesh apprehended the person to whom the white bindle was given, one Mr. Rutherford, and arrested him. The white bindle was later determined to contain cocaine.
Believing Garcia to be the party who made the delivery, Officer Trebesh stopped him and informed him that he was On September 28, 1988, the appellant was charged by information with the crime of possession of a controlled substance with intent to deliver. A co-defendant, the aforesaid Rutherford, was charged with possession of a controlled substance in count 2 of the same information. Appellant went to trial on October 12, 1989, at which time the state moved to amend the information to add a third count charging appellant with delivery of a controlled substance. The motion to amend was granted. The actual text of the amended count 3 in the information alleged delivery of a controlled substance "to Officer Trebesh", which the respondent admits was error. The State had intended to charge delivery of a controlled substance to Mr. Rutherford.
under arrest. After being read his Miranda 1 rights, appellant admitted to Trebesh that he sold the narcotics to the other individual. 2 In a search of the appellant pursuant to the arrest, Trebesh found $68 and a white napkin with bindles of white powder and black tar. The contents of this napkin were determined by forensic scientists to contain cocaine and heroin
The case was tried to a jury, and after the evidence was presented, the jury was instructed that to convict, it must find each of the elements of the crimes beyond a reasonable doubt. As to count 1, the possession with intent to deliver, the jury was instructed that the elements were:
(1) That on or about the 7th day of July, 1988, the defendant possessed with intent to deliver a controlled substance;
(2) That the defendant knew it was a controlled substance; and
(3) That the acts occurred in King County, Washington.
As to count 3, the delivery charge, the jury was instructed that the elements were:
(1) That on or about the 7th day of July, 1988, the defendant delivered a controlled substance;
(2) That the defendant knew it was a controlled substance; and
(3) That the acts occurred in King County, Washington.
As can be seen from the instructions, there was no requirement that the jury find that the delivery had been made to Officer Trebesh. However, the instructions submitted by appellant's counsel did not name delivery to Officer Trebesh as an element of the crime either. All of the evidence at trial with respect to count 3 related to the alleged delivery to Mr. Rutherford.
During deliberations, the jury inquired of the court as follows:
To this, the court replied that "[t]he elements of the crime are as stated in instruction Number Four."
The jury subsequently found the appellant guilty on both counts, and the court then entered judgment, sentencing the appellant to 31 months confinement based upon an offender score of 4, the sentences for each count to run concurrently. This appeal followed.
Appellant alleges error in his conviction on two distinct grounds. First, he claims that by failing to include the name of Officer Trebesh in the delivery of controlled substance jury instruction when Officer Trebesh was named in the information, the trial court violated his due process right to be convicted of the crime for which he was charged. Second, appellant contends that it was error to convict him both for delivery of a controlled substance and possession with intent to deliver a controlled substance, claiming that the two offenses should have merged into one offense. We consider appellant's challenges in turn.
Const. art. 1, § 22 (amend. 10) states in pertinent part:
In criminal prosecutions the accused shall have the right to ... demand the nature and cause of the accusation against him, to have a copy thereof, ...
State v. Baker, 48 Wash.App. 222, 224, 738 P.2d 327, review denied, 108 Wash.2d 1033 (1987).
It is a well settled rule in this state that a party cannot be convicted for an offense with which he was not charged. State v. Pelkey, 109 Wash.2d 484, 487, 745 P.2d 854 (1987); State v. Rhinehart, 92 Wash.2d 923, 928, 602 P.2d 1188 (1979); State v. Brown, 45 Wash.App. 571, 576, 726 P.2d 60 (1986).
Respondent admits that the amended information erroneously named Officer Trebesh as the party to whom delivery was made but contends that the error was harmless and does not require reversal. We agree.
Since appellant admits having full notice of the actual charge against him, and acknowledges that the case was tried and argued as if he had been charged with delivery to Rutherford instead of to Trebesh, the error in the information must be considered merely a technical one which did not interfere with notice to the appellant of the crime for which he was convicted. State v. Weiding, 60 Wash.App. 184, 186, 803 P.2d 17 (1991); State v. Leach, 113 Wash.2d 679, 696, 782 P.2d 552 (1989); cf. Baker, 48 Wash.App. at 225, 738 P.2d 327. A variance between the information and the crime of which a party is convicted which is merely technical does not require reversal. Leach, 113 Wash.2d at 696, 782 P.2d 552. This is not a case where any essential elements of the crime were incorrect. See Leach, 113 Wash.2d at 687, 782 P.2d 552.
In reaching this conclusion, we do not intend to expand the holding of Leach to designate every error in which a wrong name is used a technical one. Our conclusion is based on the peculiar facts of this case where the defendant was apprised of the crime correctly in the certification for probable cause, which named Rutherford as the party to whom delivery was made, but where an error was made in the amended information filed on the day of trial, which error was not relied upon or even noticed by either party.
Even if the charging document error is ignored however, and the charge had read that the delivery was made to Rutherford and not Trebesh, the appellant contends that reversal is required. According to the appellant, the very fact that no name was included in the "to convict" delivery instruction when one was included in the charging document "broadened" the possible bases for conviction, resulting in a conviction for a crime with which he may not have been charged.
In Brown, 45 Wash.App. at 576, 726 P.2d 60, this court held that the defendant's right to be convicted of the elements of the crime charged was violated when the defendant may have been convicted of conspiracy with unnamed co-conspirators although he was charged in the information with conspiring with specific individuals. There was evidence presented at the trial which could allow the jury to convict on the basis of a conspiracy determination with the unnamed co-conspirators. Brown at 576, 726 P.2d 60. Although the facts in Brown are superficially similar to the present case they do not control. Garcia was charged with delivery to a specific person but was convicted pursuant to an instruction as to delivery to any party. In Brown where the defendant was charged with conspiracy with specific individuals but convicted pursuant to an instruction as to conspiracy with any party, there was evidence that other unnamed parties were involved in the conspiracy. In thepresent case, no such evidence of delivery to a person other than Rutherford existed. Thus, the jury could not have convicted appellant for delivery to another person, that is an uncharged delivery. The jury could only have convicted Garcia of the delivery to Rutherford.
Even if this were error, an instructional error is harmless if it is "trivial, or formal, or merely academic, was not prejudicial to the substantial right of the party assigning it, and in no way affected the final outcome of the case." Brown at 576, 726 P.2d 60 (citing State v. Rice, 102 Wash.2d 120, 123, 683 P.2d 199 (1984)). In Brown, the failure to include the co-conspirators named in the information in the "to convict" instruction was found to be prejudicial and not trivial because evidence was presented that would have allowed the conviction based upon conspiracy with parties not named in the complaint and for which appellant did not receive proper notification in the charging document.
Unlike the situation in Brown, in presenting his case, Garcia did not rely at all on the...
To continue reading
Request your trial
-
State v. Lopez
...v. McFadden, 63 Wash.App. 441, 452, 820 P.2d 53 (1991), review denied, 119 Wash.2d 1002, 832 P.2d 487 (1992); see also State v. Garcia, 65 Wash.App. 681, 690, 829 P.2d 241, review denied, 120 Wash.2d 1003, 838 P.2d 1143 (1992). The question in these cases is whether the events are so relate......
-
State v. Fisher
... ... 8 ... Page 817 ... Fisher relies on State v. Garcia, 65 Wash.App. 681, 829 P.2d 241, review denied, 120 Wash.2d 1003, 838 P.2d 1143 (1992), which was decided after the judgment and sentence were entered against him, and argues that because the "to convict" instruction for count 2, possession with intent to deliver, did not specify that the charge ... ...
-
State v. Frohs
... ... For all of the above reasons, we reject Frohs' contention that the two crimes merged and that his conviction of both crimes violated the prohibition against double jeopardy ... Relying on State v. Garcia, 65 Wash.App. 681, 690, 829 P.2d 241, review denied, 120 Wash.2d 1003, 838 P.2d 1143 (1992), Frohs also contends that the to-convict instruction for the fourth degree assault count violated the prohibition against double jeopardy because it did not distinguish the acts that constituted fourth ... ...
-
State v. Carter
... ... This case is different from State v. Garcia, 65 Wash.App. 681, 691, 829 P.2d 241, review [875 P.2d 8] denied, 120 Wash.2d 1003, 838 P.2d 1143 (1992), in which we held that where there is evidence of two instances from which the jury could have found intent to deliver a controlled substance, one of which violates an appellant's right to be ... ...