Appeal from Superior Court of Klickitat County. Docket No: 93-1-00046-6. Date filed: 09/28/93. Judge signing: Hon. Ted Kolbaba.
Authored by Dennis J. Sweeney. Concurring: Ray E. Munson, Frank L. Kurtz
The opinion of the court was delivered by: Sweeney
SWEENEY, C.J. Sherrol Dean Trent appeals a jury conviction for two counts of delivery of a controlled substance, cocaine. She contends (1) the evidence is insufficient to support her convictions as an accomplice because there is no evidence she knew the substance was cocaine or that she encouraged the crime; (2) the trial court erred in allowing a police officer to give his opinion concerning the discrepancies between the police report and the informant's version of the events; (3) the court erred in joining the offenses and in joining her trial with the principal, William Midland; (4) the court erred in its to-convict instruction to the jury; (5) the court erred in denying her motion for a mistrial after the informant told the jury of alleged threats made by Mr. Midland; (6) the court erred in allowing the informant to testify that his contract terms with law enforcement required him to submit to a polygraph examination; (7) the court erred in instructing the jury as to the State's burden of proof on the school zone sentence enhancement; (8) the sentence enhancement violates her right to equal protection; (9) her offender score was miscalculated because the court did not consider the two offenses as the same criminal conduct; (10) the court erred in admitting evidence of an uncharged attempted buy; and (11) the combined effect of the above errors entitle her to a new trial. We affirm the convictions, but remand for resentencing.
In late March 1993, Lieutenant Elmer J. Kinder of the Klickitat County Sheriff's Office met with Scott Tiffany, who agreed to make five controlled purchases of cocaine from William Midland. Mr. Tiffany arranged a purchase for March 27. He met Lt. Kinder at the sheriff's office at approximately 8:30 p.m. Mr. Tiffany called Mr. Midland's home and spoke with Ms. Trent, who lived with Mr. Midland. She told Mr. Tiffany to come over because Mr. Midland would be home in 45 minutes. Mr. Tiffany was strip searched and given $100 in cash.
Ms. Trent answered the door when Mr. Tiffany arrived. He gave her the $100. Within a few minutes, Ms. Trent told Mr. Tiffany and Mr. Midland that they would have to leave because "George" was coming. Mr. Tiffany followed Mr. Midland to a nearby tavern. Ms. Trent called them about 15 minutes later and told them they could return. When they did, Ms. Trent told Mr. Midland she could not get it from George until later. Mr. Midland left and returned in a few minutes with a baggie of cocaine. Using a pocket scale, Mr. Midland weighed the cocaine. Ms. Trent handed Mr. Midland paper for the cocaine and discussed units of measurement. After wrapping the cocaine, Mr. Midland handed it to Ms. Trent, who in turn gave it to Mr. Tiffany.
Mr. Tiffany made a second controlled purchase on April 3. Again, he telephoned the Midland/Trent residence from Lt. Kinder's office and asked if he could come over. Ms. Trent said he could, but that Mr. Midland was at a tavern. Mr. Tiffany was strip searched and given $125. When he arrived, Ms. Trent answered the door and told him that Mr. Midland was still not home. Mr. Tiffany handed Ms. Trent the $125. She telephoned the tavern and told Mr. Midland that Mr. Tiffany was there. Mr. Midland arrived home in approximately five minutes. After a short conversation, Ms. Trent gave Mr. Midland the $125. Mr. Midland left and returned in a few minutes. He pulled four cocaine bindles from his pocket and told Mr. Tiffany the price would only be $100. Mr. Tiffany purchased the four bindles.
A third controlled buy was attempted on April 17. Mr. Midland advised Mr. Tiffany that police had stopped his source and that he would not be able to make the purchase until later that day. Mr. Midland followed Mr. Tiffany to the sheriff's office. He later told Mr. Tiffany that he had no cocaine.
Ms. Trent was convicted of two counts of delivery of a controlled substance, cocaine, on the theory she was an accomplice. RCW 69.50.401(a)(1)(i)(A); RCW 9A.08.020(3)(a)(ii). Ms. Trent's sentence was enhanced on the basis the delivery occurred within 1,000 feet of a school yard. RCW 69.50.435. She appeals.
SUFFICIENCY OF THE EVIDENCE
Ms. Trent first contends the evidence does not support the convictions because the evidence does not show that she knew the substance was in fact cocaine. She further argues that the evidence does not show that her presence or her actions encouraged or otherwise furthered Mr. Midland's criminal objective of delivering the controlled substance. We find no error.
Standard of Review. Appellate review of the sufficiency of the evidence which supports a jury verdict is limited to determining whether any rational trier of fact could find guilt beyond a reasonable doubt. State v. Zamora, 63 Wash. App. 220, 223, 817 P.2d 880 (1991). The evidence is viewed in a light most favorable to the prosecution. State v. Scoby, 117 Wash. 2d 55, 61, 810 P.2d 1358 (1991). We will overturn a jury verdict only if there is no substantial evidence to support it. State v. Galisia, 63 Wash. App. 833, 838, 822 P.2d 303, review denied, 119 Wash. 2d 1003, 832 P.2d 487 (1992). We need not be convinced of the defendant's guilt beyond a reasonable doubt. Id. at 838.
Accomplice Liability. A person is an accomplice to a crime if "with knowledge that it will promote or facilitate the commission of the crime, he [or she] . . . aids or agrees to aid such other person in planning or committing it[.]" RCW 9A.08.020(3)(a)(ii). An accomplice need not participate in each element of the crime or share the same mental state that is required of the principal. Galisia, 63 Wash. App. at 840. But physical presence and awareness of the transaction do not alone establish accomplice liability. In re Wilson, 91 Wash. 2d 487, 491, 588 P.2d 1161 (1979). Aiding and abetting requires that one associate with the undertaking, participate in it as something one desires to bring about, and seek to make the undertaking succeed. Id. at 491. An intent to facilitate the crime makes the accomplice liable. Galisia, 63 Wash. App. at 840. There must be evidence from which a readiness to assist or an intent to encourage could be inferred. Wilson, 91 Wash. 2d at 491-92. "To prove that one present at the commission of a crime is an accomplice, the State must establish that one is ready to assist in the commission of the crime." State v. Amezola, 49 Wash. App. 78, 89, 741 P.2d 1024 (1987).
Considering the evidence in a light most favorable to the State, Mr. Tiffany's only reason to visit the Midland/Trent household was to buy cocaine. Ms. Trent and Mr. Midland lived together. When Mr. Tiffany entered, he handed Ms. Trent money. Mr. Midland weighed and wrapped the cocaine in Ms. Trent's presence. There is evidence from which the jury could infer that Ms. Trent knew the substance being sold was cocaine.
A rational trier of fact could also have found that Ms. Trent assisted in the cocaine transaction. Ms. Trent told Mr. Tiffany to come over when he called on the telephone. She called Mr. Midland at the tavern and arranged for him to come home. She handed Mr. Midland paper to wrap the cocaine. She took Mr. Tiffany's money and discussed units of weight and measurement. She assisted Mr. Midland; she was not merely present. The jury could have found that her actions helped to facilitate the crime. The evidence is sufficient to support the convictions.
POLICE VERSION OF THE EVENTS
On cross-examination, Lt. Kinder was asked if in working with informants he had occasion to find discrepancies between their recollections and his police report. Over objection, Lt. Kinder answered that it happens "most of the time." Ms. Trent contends that the court erred in allowing Lt. Kinder to give his opinion because it enhanced the credibility of Mr. Tiffany as a witness.
But the prosecutor's question was not designed to compel Lt. Kinder to express an opinion or comment on Mr. Tiffany's accuracy or credibility. State v. Wright, 76 Wash. App. 811, 821, 888 P.2d 1214, review denied, 127 Wash. 2d 1010, 902 P.2d 163 (1995); State v. Walden, 69 Wash. App. 183, 186, 847 P.2d 956 (1993). Lt. Kinder was asked only whether he often found discrepancies. The court's admission of ...