State v. Gomez

• Decision Date: 21 December 1994
• Docket Number: No. 20660,20660
• Citation: 126 Idaho 700,889 P.2d 729
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Baldemar GOMEZ, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 729

889 P.2d 729

126 Idaho 700

STATE of Idaho, Plaintiff-Respondent, v. Baldemar GOMEZ, Defendant-Appellant.

No. 20660.

Court of Appeals of Idaho.

Dec. 21, 1994.

Rehearing Denied Feb. 14, 1995.

[126 Idaho 702] Van G. Bishop, Canyon County Public Defender, Nampa, for appellant.

Larry EchoHawk, Atty. Gen., Douglas A. Werth, Deputy Atty. Gen., Boise, for respondent.

LANSING, Judge.

Baldemar Gomez appeals his conviction for two counts of possession of a controlled substance with intent to deliver and the denial of his motion for a reduction of sentence pursuant to I.C.R. 35. We conclude that the admission at trial, over Gomez's objection, of evidence that may have constituted hearsay was harmless error, and that the district court properly refused a jury instruction requested by Gomez to define the word "knowingly." On Gomez's challenge to the sufficiency of the evidence to support his convictions, we conclude that his conviction for possession of cocaine with intent to deliver is supported by substantial, competent evidence, but that the evidence was inadequate to support the jury verdict finding Gomez guilty of possession of marijuana with intent to deliver. We find no merit in Gomez's contention that the district court abused its discretion in imposing a unified sentence of eighteen years with a six-year minimum term of confinement on the cocaine conviction. Accordingly, we affirm the judgment of conviction and sentence for possession of cocaine with intent to deliver and reverse the judgment of conviction for possession of marijuana with intent to deliver.

I. FACTS

In the fall of 1992 a federal postal inspector in Idaho received a tip that a package containing marijuana was being mailed from Corpus Christi, Texas to Caldwell, Idaho. The inspector was given details regarding the package, including the name of the sender and the name of the addressee, Baldemar Gomez. The package was mailed to an address on Linden Street in Caldwell. The inspector obtained a search warrant, and the package was opened on its arrival in Idaho. A field test indicated the package contained marijuana. The package was resealed, and the inspector arranged, in cooperation with the Idaho Bureau of Narcotics (IBN) and the City/County Narcotics Unit (CCNU), ¹ to make a controlled delivery to the Linden Street address. Detectives of the CCNU also obtained a state search warrant to search the residence at that address for cocaine and other evidence of drug trafficking. ²

On November 3, 1992 the postal inspector obtained a United States' postal delivery vehicle and, while IBN agents conducted surveillance, drove to the Linden street address. Upon his arrival Sylvia Casillas, Gomez's girlfriend, answered the door. The inspector informed her that he had a package for Baldemar Gomez to which she replied, "I'll accept it." The inspector gave her the package and then returned to a staging area in a nearby parking lot. After approximately fifteen minutes the inspector and five other CCNU and IBN narcotics agents returned to the Linden Street address to execute the state search warrant.

The agents arrived in the postal vehicle and used it to block the driveway. They immediately observed two males, one of whom was Gomez, standing in the driveway doing mechanical work on a vehicle. The officers exited the delivery truck and announced that they were police. Gomez began to flee. The other man, Gail Philbrick, did not. Gomez ran between the garage and house into the backyard. An officer gave chase and next observed Gomez "just standing in the backyard" approximately five feet from a trash receptacle. In the trash the officers found a cardboard beer carton inside of which were a small cloth bag containing 22 grams of cocaine and some United States currency, and a separate plastic bag containing 3.2 grams of cocaine.

The postal inspector and the narcotics agents next entered the residence. There they observed the package of marijuana that had been delivered earlier sitting unopened on a coffee table in the living room.

Based upon the cocaine found in the trash, Gomez was charged with possession of cocaine with the intent to deliver, I.C. § 37-2732(a)(1)(A). (Count I of the information). On the basis of the package of marijuana, Gomez was also charged with possession of marijuana with intent to deliver, I.C. § 37-2732(a)(1)(B). (Count II). Although none of the drugs were found on Gomez's person, at trial the prosecution argued that he had been in constructive possession. A jury found Gomez guilty of both counts and also found him to be a persistent violator of the law under I.C. § 19-2514. Gomez was subsequently sentenced to confinement of not less than six nor more than eighteen years on Count I and not less than two nor more than five years on Count II, with the sentences to be served concurrently.

On appeal Gomez contends that the district court improperly admitted hearsay testimony at trial; that the district court erred in refusing a requested jury instruction on the meaning of the word "knowingly;" that the trial evidence was insufficient to prove that he possessed the controlled substances; and that the court abused its discretion when it denied his motion for reduction of the sentences.

II. HEARSAY

At trial Officer Creech testified about his investigation of the drug-dealing activity of Gail Philbrick. The officer said that he had delivered marked money to a confidential informant who was to use the money to purchase cocaine from Philbrick. The informant wore a transmitter during the meeting with Philbrick which allowed Creech to overhear their conversations. Philbrick did not deliver drugs at that meeting, but took the money and immediately travelled to the residence on Linden Street where Gomez was staying. As evidence that Gomez intended to deliver drugs to Philbrick, the prosecution asked officer Creech about the conversation he heard between the informant and Philbrick regarding the transfer of money for drugs:

Q: During the course of the conversation with Mr. Philbrick, did you overhear any conversation indicating a transfer of the funds?

MR. BUTLER: Your Honor, I'll object as basing an answer based on hearsay of what he overheard, Judge. It's inadmissible in evidence.

THE COURT: Overruled. I'll permit it.

....

THE WITNESS: Yes, I could clearly hear the conversation and when the transfer of funds occurred.

Gomez asserts that this testimony was hearsay and should have been excluded.

Hearsay, which is made generally inadmissible by Idaho Rule of Evidence 802, is defined as: "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." I.R.E. 801(c). The hearsay rule not only prohibits repetition of the actual out-of-court statement; it also applies where the witness attempts to convey the substance or purport of the statement. Therefore, a hearsay objection may not be avoided merely by having the witness give a summary of the conversation or convey the purport of the information received rather than relating the details of the statement. If the purpose of such testimony is to prove the truth of facts asserted in the out-of-court statement, the proffered testimony is hearsay. See 2 KENNETH S. BROUN et al., McCORMICK ON EVIDENCE § 249 at 104-105 (John W. Strong ed., 4th ed. 1992) [hereinafter McCORMICK]; State v. Judkins, 242 N.W.2d 266 (Iowa 1976); Commonwealth v. Parks, 273 Pa.Super. 506, 417 A.2d 1163 (1979); Schaffer v. State, 777 S.W.2d 111 (Tex.Cr.App.1989).

Not all out-of-court statements are hearsay, however. If the statement is not an assertion of fact or is not offered to prove the fact asserted, it is not hearsay. Thus, words which accompany acts and are considered "verbal parts of acts" fall outside of the hearsay definition. "Explanatory words which accompany and give character to [a] transaction are not hearsay when under the substantive law the pertinent inquiry is directed only to objective manifestations rather than to the actual intent or other state of mind of the actor." McCORMICK, § 249 at 102. Such verbal parts of acts may include words accompanying the handing of money from one person to another. Id.; REPORT OF THE IDAHO STATE BAR EVIDENCE COMMITTEE, Comment to Rule 801 at 403 (1983 & Supp.1985) citing 4 J. WEINSTEIN & M. BERGER, WEINSTEIN'S EVIDENCE p 801(a) at 62 (Supp.1983).

The prosecutor's question to Officer Creech in this case may have elicited hearsay. The question as phrased asked whether Officer Creech overheard a conversation indicating a particular fact--that funds were transferred. Hence, even an answer stating only, "yes," would relate some content or purport of what was said even though the question did not request and the witness did not relate the actual statements that were heard.

It is possible, however, that the statements upon which Officer Creech relied for his conclusion that the money was transferred were not hearsay but, rather, fell within the category of the "verbal part of the act," of transferring money or were statements that contained no factual assertion, such as, "Go ahead and count the money." This Court cannot determine whether Officer Creech's response related the "purport" of factual assertions made by the out-of-court declarants, which would constitute hearsay, or related a conclusion that Officer Creech drew from non-hearsay statements.

In this circumstance, where it appears that a question directed to the witness may call for hearsay, the appropriate response is for the trial court to sustain the objection unless the proponent of the testimony shows, by an offer of proof, that the out-of-court statement upon which the testimony is grounded is not hearsay. Accordingly, the district court here should have sustained the defense objection to the prosecutor's question unless and until it was shown through an offer of proof that the out-of-court statements on...