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State v. Tolliver

December 19, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
JAMES HENRY TOLLIVER APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-1-04638-8. Date filed: 01/13/95. Judge signing: Hon. James A. Noe JR.

)

PER CURIAM. James Tolliver appeals from his conviction for possession of cocaine with intent to deliver. He argues (1) the trial court erroneously failed to give his proposed "mere proximity" instruction; (2) the evidence was insufficient to establish possession with intent to deliver; and (3) the school zone sentence enhancement should not be applied to drug transactions that occur in a tavern. *fn1 We disagree and affirm.

Tolliver was charged with 2 counts of delivery of cocaine and 1 count of possession of cocaine with intent to deliver following a series of alleged drug transactions at the Elbow Room Tavern in South Seattle.

Evidence presented at trial established that the tavern was located within 470 feet of an elementary school.

On the afternoon of July 13, 1994, Seattle Police Officers Timothy Fields and Linda Wright entered the Elbow Room Tavern as part of an undercover investigation into cocaine dealing. After playing a game of dominoes with Robert Hamilton, Officer Fields asked Hamilton to "hook me up," a street term for arranging a sale of drugs. Hamilton then arranged for a third individual to sell $40 of rock cocaine to Officer Fields.

Tolliver, whom Officer Fields knew to be a suspect in the investigation, was not present in the tavern.

The following day, July 14, 1994, Officers Fields and Wright returned to the Elbow Room Tavern. Tolliver was sitting at the dominoes table with Hamilton and a third man. Officer Fields eventually walked over and asked Hamilton if he could "hook me up." After asking how much Officer Fields wanted, Hamilton immediately made eye contact with Tolliver. Hamilton got up, walked around the table, and whispered something into Tolliver's ear.

Tolliver then walked over to a nearby table, sat down, reached under the table, and removed a magnetic keyholder with a red top. Officer Fields observed Tolliver pour some white rocks into his hand and package them in a paper beverage coaster.

After replacing the keyholder under the table, Tolliver leaned over and handed the coaster package to Hamilton. Hamilton, in turn, handed the package to Officer Fields in exchange for $50.

Officer Fields and Officer Wright went back to the Elbow Room Tavern on July 18, 1994. Both Hamilton and Tolliver were seated at the dominoes table. Officer Fields sat down at the table and told Hamilton that he needed "a 50." In response, Tolliver went over to the same table used during the previous transaction and removed a magnetic keyholder with a red top. Tolliver then poured what appeared to be rock cocaine into his hand and packaged it in a paper coaster. Tolliver returned to the dominoes table and handed the package to Hamilton under the table. Hamilton passed the package under the table to Officer Fields in exchange for $50. Officer Fields also observed Tolliver participate in 3 other drug deals in the tavern.

On July 21, 1994, Officer Fields again entered the Elbow Room Tavern.

Upon seeing Tolliver, Officer Fields called in an arrest team. Tolliver and several others were arrested. A magnetic keyholder containing 7 grams of cocaine was recovered from under a table near where Tolliver was sitting. A similar magnetic keyholder was later recovered from Tolliver's residence following execution of a search warrant. A forensic scientist testified that the substance delivered to Officer Fields during each transaction on July 14 and July 18 consisted of .6 grams of cocaine.

Tolliver testified that he frequently played dominoes at the Elbow Room Tavern and used the paper coasters to keep score. He flatly denied selling drugs or having any "interactions" with Officer Fields.

The jury found Tolliver guilty as charged on all 3 counts. By special verdict, the jury found that the 2 delivery counts had occurred within 1000 feet of school grounds. Tolliver was subsequently sentenced to concurrent, standard-range terms of 101 months, ...


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