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State v. Ellingsen

October 7, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
CURTIS ELLINGSEN, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-1-01884-6. Date filed: 02/14/96. Judge signing: Hon. James A. Noe JR

Petition for Review Denied April 2, 1997,

PER CURIAM -- After being arrested for paying $1,800 cash for three ounces of cocaine, Ellingsen confessed that he intended to resell the cocaine. He now argues that his confession and other pre-arrest statements were inadmissible under the corpus delicti rule. Under that rule, a confession is admissible only after the State introduces independent prima facie proof of the crime. Here, Ellingsen not only had a pager, but in a single transaction he bought an amount of cocaine consistent with resale, paying nearly $2,000 cash. These circumstances, which raise the inference he was in the business of buying and selling cocaine, constitute prima facie proof of possession of cocaine with intent to deliver. We accelerate review under RAP 18.12 and affirm.

The Drug Transaction and Ellingsen's Confession A confidential informant advised police that Curtis Ellingsen wanted to buy a large amount of cocaine. The police told the informant to arrange a meeting at Burger King in Burien. Ellingsen and the informant arrived together, Ellingsen driving. After a brief conversation with the informant, undercover Officer Garske approached Ellingsen and handed him three ounces of cocaine. They discussed the quality of the cocaine and Ellingsen said he was interested in meeting every Friday for similar transactions. Ellingsen gave the officer $1,800 cash in exchange for the cocaine. The officer later testified that three ounces is consistent with resale, not personal use.

Ellingsen was arrested immediately after the sale. The police found a pager and an additional $80 cash on his person. He confessed that his salary had been garnished and he was trying to make some extra money by selling cocaine.

The State charged Ellingsen with possession of cocaine with intent to deliver. Before trial, Ellingsen moved to exclude his pre-and post-arrest statements, arguing they were inadmissible under the corpus delicti rule.

The court concluded that the large amount of cash, drugs, the presence of a pager, and the officer's testimony constituted independent prima facie proof of the corpus delicti of the crime. Thus, the court denied the motion to exclude the statements or dismiss the charge. The parties proceeded to trial on stipulated facts, on which the court found Ellingsen guilty.

The Corpus Delicti Rule was Satisfied

A defendant's out-of-court confession or statements are not admissible unless the State introduces independent prima facie proof of the corpus delicti of the crime. A "relatively modest amount of evidence" satisfies the independent evidence test. *fn1 The independent proof need not establish the corpus delicti beyond a reasonable doubt, or even by a preponderance of the evidence; it need only support a logical and reasonable inference that the crime occurred. *fn2

Ellingsen challenges the trial court's determination that the corpus delicti rule was satisfied. He argues that possession alone, even possession of a large quantity of cocaine, fails to prove intent to deliver. He cites numerous cases that hold that when intent to deliver is inferred from possession, some additional factor is present. See e.g., State v. Hutchins, 73 Wash. App. 211, 868 P.2d 196 (1994)(possession in excess of 40 grams of marijuana and testimony from officer that the amount exceeded normal amount for personal use failed to prove possession with intent to deliver); State v. Llamas-Villa, 67 Wash. App. 448, 836 P.2d 239 (1992)(possession of drugs and $3,200, combined with officer's observations of deals, proved intent to deliver); State v. Kovac, 50 Wash. App. 117, 119, 747 P.2d 484 (1987)(possession of seven baggies totaling eight grams of marijuana failed to prove possession with intent to deliver).

But Ellingsen's reliance on these cases is flawed because they involve a challenge to the sufficiency of the evidence for conviction, not for corpus delicti purposes. Given the significant difference between the proof required for conviction compared with the proof required for establishing corpus delicti, these cases do not advance Ellingsen's argument.

Equally important, this is not a "mere possession" case. Ellingsen did not merely possess three ounces of cocaine, he bought it in a single transaction, paying $1,800 cash. Thus, the very circumstances of Ellingsen's possession raise an inference that he was in the business of buying and selling cocaine. Consider by contrast the facts in State v. Davis, 79 Wash. App. 591, 904 P.2d 306 (1995), where a police search yielded (among other items) six baggies of packaged marijuana, two baggies of marijuana seeds, a box of sandwich baggies, and a pipe. The total amount of marijuana, 19 grams, was consistent with personal use. *fn3 And there was no evidence that defendant "had bought or sold marijuana or was in the business of buying or selling." *fn4 Given the absence of such proof, the court held the evidence failed to prove intent to deliver and reversed Davis' conviction with possession with intent to deliver.

Here, the inference of intent to deliver is further supported by the officer's testimony that the quantity of cocaine involved, three ounces, is consistent with resale, not personal use. Finally, the police found a pager, along with an additional $80 cash when they searched Ellingsen. He argues that the pager cannot support an inference of intent to deliver because a pager has many legitimate uses. Even so, presence of a pager also supports the inference that it is being used for buying and selling controlled substances. This is sufficient for purposes of the corpus delicti rule. See, State v. Vangerpen, 71 Wash. App. at 99, (evidence establishing corpus delicti "need not exclude every reasonable hypothesis consistent with the crime not having occurred.").

Sufficient independent evidence established a prima facie case that Ellingsen possessed the cocaine with intent to deliver. The trial court properly denied ...


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