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State v. Rojas

October 28, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
ANTONIO ROJAS, APPELLANT.



Appeal from Superior Court of King County. Docket No: 93-1-06180-0. Date filed: 12/12/94. Judge signing: Hon. Robert Alsdorf.

PER CURIAM. Antonio Rojas appeals from his conviction for possession of cocaine with intent to deliver. He argues that opinion testimony was erroneously admitted and that the evidence was therefore insufficient to establish an intent to deliver. He also argues that his conviction should be reversed because of the delayed entry of findings of fact and Conclusions of law following a CrR 3.6 hearing. We disagree and affirm.

On May 19, 1992, Kirkland Police Sergeant Brian McNaghten received a report of suspicious activity from the manager of the Kirkland Motel 6. The manager said that the occupants of Room 122 had checked in on May 17 and had been extending their stay by paying cash each day. The occupants were also receiving frequent telephone calls at short intervals.

Sergeant McNaghten drove to the motel to investigate and was given a key to Room 121. He then entered the room and began listening at the adjoining doorway. He was able to hear a woman ask where the "chiva" was, a street term for heroin. He also heard a man say that he was weighing a "half," which Sergeant McNaghten suspected was a reference to a half-gram of heroin. The man and woman then discussed dropping something off. The woman, later identified as co-defendant Tamara Snell, and a man left Room 122, got into a Corvette parked outside, and drove off. Sergeant McNaghten contacted dispatch and directed that the car be stopped. The man in the car turned over a substance to the officers that was later determined to be heroin.

Based on his investigation, Sergeant McNaghten obtained a search warrant for Room 122. During execution of the warrant, officers recovered a number of items, including small plastic sandwich bags, a pager, a small scale, baking soda, isotol, a pipe used for smoking cocaine, and a small amount of cocaine. According to Sergeant McNaghten, baking soda is mixed with cocaine for purposes of "rocking up," i.e., making cocaine hard so that it can be smoked. Isotol is a cheap white powder that drug dealers commonly use to "cut" or dilute cocaine for sale.

On the basis of information developed during the investigation, several surveillance officers were stationed outside the motel room following execution of the search warrant. At about 2:00 a.m. on May 20, 1992, officers observed a car park in the center of the grocery store parking lot next to the Motel 6. Three males exited the vehicle and walked about 200 yards to Room 122. While one of the men knocked on the door, the other two looked around the motel parking lot. At this point, officers detained and then arrested the three men, one of whom was identified as appellant Rojas. A piece of cocaine weighing 10.6 grams was removed from Rojas' shirt pocket. Rojas was not carrying any money or drug paraphernalia.

Rojas first contends that the trial court erred in admitting Sergeant McNaghten's speculative testimony about intent. Over defense objections, Sergeant McNaghten testified that based upon his experience, the fact that the three suspects had parked their car in an adjoining lot, at a considerable distance from the motel, was significant because drug dealers are concerned about having their drugs stolen and wish to avoid seizure of their vehicles. Sergeant McNaghten also testified that the piece of cocaine removed from Rojas' shirt pocket was hard and appeared to have been broken off a larger "brick" or kilo of cocaine. He explained that cocaine is commonly pressed into such "bricks" for purposes of transportation and that the breaking off of larger chunks occurs "early" in the distribution chain.

On appeal, Rojas contends that the challenged evidence was inadmissible because the State failed to establish the appropriate foundation for Sergeant McNaghten's opinion testimony, either as an expert witness or as a lay witness. ER 702, 602. He further maintains that there was no showing that the testimony would be of assistance to the trier of fact or involved a matter beyond common understanding that warranted expert testimony. ER 702.

None of the specific arguments that Rojas raises on appeal were presented to the trial court. Defense counsel's sole objection at trial was that Sergeant McNaghten's opinion constituted "speculation." Because the challenge to the officer's qualifications and the foundation for his testimony is raised for the first time on appeal and is not of constitutional magnitude, this court need not address it. State v. Sanders, 66 Wash. App. 380, 385, 832 P.2d 1326 (1992).

Moreover, contrary to Rojas' assertion, Sergeant McNaghten testified to extensive training in drug enforcement and experience in undercover narcotics operations. His testimony was therefore properly admissible over objections based on foundation or expertise. State v. Sanders, 66 Wash. App. at 386 (officer qualified to offer opinion that lack of drug user paraphernalia in house indicates that residents do not frequently use drugs); State v. Strandy, 49 Wash. App. 537, 745 P.2d 43 (1987), review denied, 109 Wash. 2d 1027 (1988) (experienced police officer qualified to opine that numbers on piece of paper in defendant's wallet were consistent with numbers used in narcotics transactions). Rojas' remaining challenges go to the weight to be accorded Sergeant McNaghten's testimony, not its admissibility.

Rojas next contends that the evidence was insufficient to establish that he possessed the cocaine with the intent to deliver. Intent may be inferred "'where a defendant's conduct plainly indicates the requisite intent as a matter of logical probability.'" State v. Lopez, 79 Wash. App. 755, 768, 904 P.2d 1179 (1995) (quoting State v. Stearns, 61 Wash. App. 224, 228, 810 P.2d 41, review denied, 117 Wash. 2d 1012, 816 P.2d 1225 (1991)). Mere possession is insufficient to establish intent to deliver. State v. Brown, 68 Wash. App. 480, 485, 843 P.2d 1098 (1993) ("Convictions for possession with intent to deliver . . . require substantial corroborating evidence in addition to the mere fact of possession."). Nor is an experienced police officer's opinion of the quantity of controlled substance that is normal for personal use sufficient to establish an intent to deliver. State v. Brown, 68 Wash. App. at 485.

In this case, however, the record contains more than evidence of mere possession. When arrested, Rojas possessed a chunk of cocaine weighing 10.6 grams and with a street value of approximately $1000. Rojas did not have any cash or drug paraphernalia. Sergeant McNaghten's testimony indicated that the cocaine was in a form that is typically found early in the distribution chain. In addition, Rojas was attempting to contact the occupants of a motel room in which police officers had found paraphernalia for weighing and packaging drugs for sale and a pipe for smoking cocaine.

Viewed in the light most favorable to the State, the foregoing evidence supports a reasonable inference that Rojas intended to deliver the cocaine to the occupants of the motel room and is therefore sufficient to support his conviction.

Rojas' final contention is that his conviction should be reversed because the trial court failed to enter findings of fact following the suppression hearing as required by CrR 3.6. The trial court rejected Rojas' contention that the cocaine seized from his shirt pocket should be suppressed because officers lacked probable cause to arrest him. Written findings of fact and Conclusions of law were not entered until January 2, 1996, after Rojas filed his opening brief in this appeal.

Contrary to Rojas' assertion, the record provides a sufficient basis to permit appellate review of the trial court's ruling. Rojas has not challenged the substance of the ruling or filed any challenge to the written findings. Under the circumstances, the delayed entry of findings was not prejudicial and does not warrant reversal. See State v. Moore, 70 Wash. ...


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