State v. Hernandez
| Decision Date | 07 March 1997 |
| Docket Number | 19624-7-I,19607-7-II,Nos. 19077-0-I,19185-7-I,s. 19077-0-I |
| Citation | 85 Wn.App. 672,935 P.2d 623 |
| Court | Washington Court of Appeals |
| Parties | The STATE of Washington, Respondent and Cross Appellant, v. Arturo HERNANDEZ, Appellant. The STATE of Washington, Respondent, v. Ruben SOTO, aka Jesus Ortiberoz Diaz, Appellant. The STATE of Washington, Respondent, v. Juan Gomez DAVILA, Appellant. The STATE of Washington, Respondent, v. Leobardo GILL, Appellant. |
Clayton R. Dickinson, Walker Walker Bradshaw & Oaks PS, Nicholas George, Tacoma, for Appellants.
John M. Neeb, Pierce Co. Deputy Pros. Atty., Tacoma, for Respondents.
In these consolidated appeals, Juan Davila, Leobardo Gill, and Arturo Hernandez challenge their convictions for the delivery of controlled substances. Ruben Soto appeals his conviction for conspiracy to deliver a controlled substance. The appellants all contend that the evidence was insufficient to establish that the object delivered was a controlled substance. In addition, Davila challenges a jury instruction. We find that the evidence was sufficient and that the jury instruction was neither a comment on the evidence nor a misstatement of the law. Thus, we affirm.
In each of these cases, a pair of police officers at a distant location used high power binoculars to observe the defendant engage in what appeared to be a drug delivery. In each case, the customer and the merchandise was gone by the time the officers arrested the defendant, but the arresting officer found a substance on the defendant or on the defendant's accomplice that appeared similar to the item delivered. In each case, the substance tested positive as an illicit drug. At each of the trials, the State introduced the controlled substance found on the defendant or on his accomplice as circumstantial evidence that the object the defendant delivered was also a controlled substance. At each trial, the police officers described their extensive experience in tracking and arresting persons involved in street level narcotic transactions. They also described the defendant's conduct at the time of the delivery and the appearance of the substance delivered.
To find a person guilty of the unlawful delivery of a controlled substance, the trier of fact must find that the defendant (1) delivered a controlled substance and (2) knew that the substance delivered was a controlled substance. RCW 69.50.401(a)(1)(i). The defendants here confine their challenge to the sufficiency of the proof that the object delivered was a controlled substance.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Chapin, 118 Wash.2d 681, 691, 826 P.2d 194 (1992). " 'A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.' " State v. Sanchez, 60 Wash.App. 687, 693, 806 P.2d 782 (1991) (quoting State v. Porter, 58 Wash.App. 57, 60, 791 P.2d 905 (1990)). Circumstantial evidence is equally reliable as direct evidence. State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980). This court must defer to the trier of fact on issues involving conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wash.App. 410, 415-16, 824 P.2d 533 (1992).
Circumstantial evidence and lay testimony may be sufficient to establish the identity of a drug in a criminal case. In re Reismiller, 101 Wash.2d 291, 294, 678 P.2d 323 (1984); State v. Eddie A., 40 Wash.App. 717, 720, 700 P.2d 751 (1985). Further, a witness who demonstrates an expertise "acquired either by education or experience" in this area may give an opinion as to the identity of a substance. State v. Hutton, 7 Wash.App. 726, 731, 502 P.2d 1037 (1972); see United States v. Dominguez, 992 F.2d 678, 681 (7th Cir.1993) (). The opinion need not be based upon expert chemical analysis. See United States v. Schrock, 855 F.2d 327, 334 (6th Cir.1988) ().
Federal courts have found evidence that a defendant was in possession of a controlled substance at the time of an arrest and engaged in an apparent drug sale activity shortly before the arrest sufficient to support a reasonable inference that the defendant delivered a controlled substance on the date of the apparent delivery. United States v. DeFundora, 893 F.2d 1173, 1176, 113 A.L.R. Fed. 873 (10th Cir.1990). Fact finders regularly rely on a similar inference when addressing the intent element of a possession with intent to deliver charge, i.e., a fact finder can reasonably infer that a defendant possessed a controlled substance with intent to deliver based on evidence that, before the arrest, he or she delivered a substance to another person. State v. Brown, 68 Wash.App. 480, 484, 843 P.2d 1098 (1993); see also State v. Cobelli, 56 Wash.App. 921, 925, 788 P.2d 1081 (1989) (). Likewise, it is reasonable to infer that a defendant just delivered cocaine when, minutes later, police recover bindles of cocaine in his possession.
Further, federal courts have rejected sufficiency challenges to narcotics convictions where the government offered various combinations of the following circumstantial evidence to prove that the item at issue was a controlled substance: the price paid for the substance, the physical appearance of the substance and its packaging, behavior by the defendant characteristic of a drug sale, the furtive nature of the transaction, testimony by government witnesses who have purchased and used narcotics supplied by defendant before, and the location of the delivery in an area known for the availability of a particular kind of drug. Dominguez, 992 F.2d at 681; United States v. Brown, 887 F.2d 537, 542 (5th Cir.1989); United States v. Scott, 725 F.2d 43, 45-46 (4th Cir.1984); Toliver v. United States, 224 F.2d 742, 745 (9th Cir.1955).
The defendants cite Eddie A., 40 Wash.App. 717, 700 P.2d 751, as authority for their position that the circumstantial proof here was insufficient. Eddie was convicted in juvenile court of unlawfully contracting to deliver to a classmate a controlled substance, and then delivering a counterfeit controlled substance o her. See RCW 69.50.401(c). The State had not offered into evidence any substance, controlled or uncontrolled. It provided only the purchaser's testimony that the defendant had indicated to her that he would deliver a controlled substance but instead delivered "Pamprin." Eddie A., 40 Wash.App. at 718, 700 P.2d 751.
On appeal, Eddie argued that the State had failed to prove the nature of the substance delivered. The State contended that it did not need to prove the identity of the delivered substance, only that "some substance was actually delivered." In reversing the conviction, the Eddie A. court stated that RCW 69.50.401(c) requires proof of the nature of the substance delivered and that the purchaser's bare statement that the substance was Pamprin failed to prove that element. Eddie A., 40 Wash.App. at 720, 700 P.2d 751.
The Eddie A. opinion identifies several items of circumstantial evidence that might be sufficient to prove the identity of a substitute uncontrolled substance. Eddie A., 40 Wash.App. at 720-21, 700 P.2d 751; see RCW 69.50.401(c). The list, contrary to the defendant's argument, is not exclusive. Further some of the suggested evidence would be inapplicable to a delivery of a controlled substance case. Thus, it would be inappropriate to use the Eddie A. court's list of evidence that would support a conviction for delivery of a counterfeit controlled substance to measure the sufficiency of the evidence here.
As sufficiency of the evidence analysis, by its terms, is fact sensitive, we address each case in more detail below.
A jury convicted Gill of two counts of unlawful delivery of a controlled substance (cocaine). The arresting officer, Officer Miller, testified that he was investigating drug activity in an area known to be "the hub of all powder cocaine [and] black tar heroin street level sales." The officer also described, based on his knowledge and experience, the modus operandi of drug peddlers in this area and explained that powder cocaine was packaged differently and was lighter in color and a different consistency than black tar heroin.
Officer Miller testified that during the surveillance he saw Gill showing a passerby "a number of small white objects" cupped in his hand that were consistent in size and packaging with "loosely packaged bindle[s] ... of cocaine." The first sale took place when a white male spoke briefly with Gill and then gave Gill money in exchange for a small object.
Following still another contact between Gill and a pedestrian, a woman the officer knew to be a drug user contacted Gill. After a short conversation, Gill removed from his pants pocket a plastic bag containing "several small white objects." He then exchanged several of these objects for four or five paper money bills. Gill counted the money, put it in his pocket, and entered a nearby soup kitchen.
Officer Miller testified that he...
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