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State v. Shaw

December 16, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
ARDELL J. SHAW, APPELLANT.



Appeal from Superior Court of King County. Docket No: 93-1-06969-0. Date filed: 04/27/94. Judge signing: Hon. Michael C. Hayden.

PER CURIAM. Ardell Shaw appeals his conviction for possession with intent to deliver cocaine. He contends he was denied his right to a unanimous verdict because the evidence showed several different acts that would each support conviction on the charge, the court did not give a unanimity instruction, and the State never elected the act it relied on for conviction. He further contends the jury could have convicted him of an uncharged act.

Because the evidence permitted guilty verdicts based on different conduct, and because the continuing course of conduct exception is inapplicable to these facts, the absence of an election or unanimity instruction requires reversal.

FACTS

The State filed an information alleging that on October 12, 1993, Shaw possessed cocaine with intent to deliver within 1,000 feet of a school.

At trial, Officer Peter Rossen testified that while performing surveillance in an area known for high narcotics traffic, he saw Shaw contact various people. Shaw left the area in a black vehicle, but soon returned and walked to an area near the bus tunnel.

Watching through binoculars, Rossen saw Shaw accompany several men into an alley. Shaw removed a white napkin from his pants, opened it up, and gave a small white item to one of the men. The recipient popped the item into his mouth and gave Shaw cash. Shaw then performed an essentially identical transaction with the other man.

After those customers left, another man contacted Shaw. Rossen could not see what they were doing, but Shaw had the white napkin in his hand when the man left. Eventually, Shaw put the napkin back in his pants.

Shaw left the alley and was arrested a few minutes later. Police searched him and found a white napkin containing seven small white rocks that weighed around one third of a gram and tested positive for cocaine. Shaw also possessed $85 in cash. He had no drug paraphernalia on his person. In response to questions, he told Rossen he sometimes used cocaine.

Officer Stewart -- Rossen's surveillance partner -- generally corroborated Rossen's observations. Stewart saw numerous off-white rocks in Shaw's napkin during the apparent deliveries. He testified that after the last contact, Shaw walked over to the black vehicle. Stewart and Rossen then left the building to arrest Shaw. When arrested, Shaw was back across the street in front of the bus tunnel and had a sandwich in his hand.

Gil Orr, a chemical dependency counselor, testified that he had interviewed and evaluated Shaw. He concluded that Shaw was addicted to alcohol, marijuana, and cocaine. Based on his evaluation and experience, he believed Shaw could have used over a third of a gram of cocaine per day for his personal use.

The court instructed the jury that in order to convict Shaw, it had to find that on October 12, 1993, he possessed cocaine with intent to deliver.

Concerned that the jury might convict based on Shaw's possession of, and intent regarding, the unrecovered substances sold in the apparent deliveries, defense counsel requested an instruction telling the jury that the charge was based solely on the rocks in Shaw's possession at the time of arrest. The court denied the request, but did admonish the prosecutor to refrain from arguing that the deliveries observed by the officers constituted the crime of possession with intent to deliver.

In closing, the State focused on Shaw's possession of the rocks found on his person, but did not make an affirmative election or otherwise indicate that the jury should not consider whether Shaw's possession of, and intent regarding, the unrecovered substances could also support a conviction.

During deliberations, the jury inquired "Does the intent to deliver consist of the transaction itself, Disposition remaining rocks and/or both?" The court prepared a reply stating that "the intent to deliver relates to the cocaine possessed by the defendant at the time of the arrest." ...


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