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State v. Hernandez

March 7, 1997

STATE OF WASHINGTON, RESPONDENT AND CROSS APPELLANT,
v.
ARTURO HERNANDEZ, APPELLANT. STATE OF WASHINGTON, RESPONDENT, V. RUBEN SOTO, AKA JESUS ORTIBEROZ DIAZ, APPELLANT. STATE OF WASHINGTON, RESPONDENT, V. JUAN GOMEZ DAVILA, APPELLANT. STATE OF WASHINGTON, RESPONDENT, V. LEOBARDO GILL, APPELLANT.



Appeal from Superior Court of Pierce County. Docket No: 94-1-03586-1. Date filed: 12/27/94. Judge signing: Hon. Thomas R. Sauriol.

As Amended April 18, 1997.

Authored by Karen G. Seinfeld. Concurring: Elaine M. Houghton, Carroll C. Bridgewater.

The opinion of the court was delivered by: Seinfeld

SEINFELD, J. -- In these consolidated appeals, Juan Davila, Leobardo Gill, and Arturo Hernandez challenge their convictions for the delivery of controlled substances. Ruben Soto appeals his conviction for conspiracy to deliver a controlled substance. The appellants all contend that the evidence was insufficient to establish that the object delivered was a controlled substance. In addition, Davila challenges a jury instruction. We find that the evidence was sufficient and that the jury instruction was neither a comment on the evidence nor a misstatement of the law. Thus, we affirm.

Discussion

In each of these cases, a pair of police officers at a distant location used high power binoculars to observe the defendant engage in what appeared to be a drug delivery. In each case, the customer and the merchandise was gone by the time the officers arrested the defendant, but the arresting officer found a substance on the defendant or on the defendant's accomplice that appeared similar to the item delivered. In each case, the substance tested positive as an illicit drug. At each of the trials, the State introduced the controlled substance found on the defendant or on his accomplice as circumstantial evidence that the object the defendant delivered was also a controlled substance. At each trial, the police officers described their extensive experience in tracking and arresting persons involved in street level narcotic transactions. They also described the defendant's conduct at the time of the delivery and the appearance of the substance delivered.

The Applicable Law

To find a person guilty of the unlawful delivery of a controlled substance, the trier of fact must find that the defendant (1) delivered a controlled substance and (2) knew that the substance delivered was a controlled substance. RCW 69.50.401(a)(1)(i). The defendants here confine their challenge to the sufficiency of the proof that the object delivered was a controlled substance.

Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Chapin, 118 Wash. 2d 681, 691, 826 P.2d 194 (1992). "'A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.'" State v. Sanchez, 60 Wash. App. 687, 693, 806 P.2d 782 (1991) (quoting State v. Porter, 58 Wash. App. 57, 60, 791 P.2d 905 (1990)). Circumstantial evidence is equally reliable as direct evidence. State v. Delmarter, 94 Wash. 2d 634, 638, 618 P.2d 99 (1980). This court must defer to the trier of fact on issues involving conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wash. App. 410, 415-16, 824 P.2d 533 (1992).

Circumstantial evidence and lay testimony may be sufficient to establish the identity of a drug in a criminal case. In re Reismiller, 101 Wash. 2d 291, 294, 678 P.2d 323 (1984); State v. Eddie A., 40 Wash. App. 717, 720, 700 P.2d 751 (1985). Further, a witness who demonstrates an expertise "acquired either by education or experience" in this area may give an opinion as to the identity of a substance. State v. Hutton, 7 Wash. App. 726, 731, 502 P.2d 1037 (1972); see State v. Dominguez, 992 F.2d 678, 681 (7th Cir. 1993) (circumstantial evidence establishing the identity of an illegal drug may include "lay-experience based on familiarity through prior use, trading, or law enforcement"). The opinion need not be based upon expert chemical analysis. See United States v. Schrock, 855 F.2d 327, 334 (6th Cir. 1988) (chemical analysis identification evidence is not always practical given that "illegal drugs will often be unavailable for scientific analysis because their nature is to be consumed").

Federal courts have found evidence that a defendant was in possession of a controlled substance at the time of an arrest and engaged in an apparent drug sale activity shortly before the arrest sufficient to support a reasonable inference that the defendant delivered a controlled substance on the date of the apparent delivery. United States v. DeFundora, 893 F.2d 1173, 1176, 113 A.L.R. Fed. 873 (10th Cir. 1990). Fact finders regularly rely on a similar inference when addressing the intent element of a possession with intent to deliver charge, i.e., a fact finder can reasonably infer that a defendant possessed a controlled substance with intent to deliver based on evidence that, before the arrest, he or she delivered a substance to another person. State v. Brown, 68 Wash. App. 480, 484, 843 P.2d 1098 (1993); see also State v. Cobelli, 56 Wash. App. 921, 925, 788 P.2d 1081 (1989) (insufficient evidence to infer intent where "the officers saw nothing exchanged and no suspicious gestures"). Likewise, it is reasonable to infer that a defendant just delivered cocaine when, minutes later, police recover bindles of cocaine in his possession.

Further, federal courts have rejected sufficiency challenges to narcotics convictions where the government offered various combinations of the following circumstantial evidence to prove that the item at issue was a controlled substance: the price paid for the substance, the physical appearance of the substance and its packaging, behavior by the defendant characteristic of a drug sale, the furtive nature of the transaction, testimony by government witnesses who have purchased and used narcotics supplied by defendant before, and the location of the delivery in an area known for the availability of a particular kind of drug. Dominguez, 992 F.2d at 681; United States v. Brown, 887 F.2d 537, 542 (5th Cir. 1989); United States v. Scott, 725 F.2d 43, 45-46 (4th Cir. 1984); Toliver v. United States, 224 F.2d 742, 745 (9th Cir. 1955).

The defendants cite Eddie A., 40 Wash. App. 717, 700 P.2d 751, as authority for their position that the circumstantial proof here was insufficient. Eddie was convicted in juvenile court of unlawfully contracting to deliver to a classmate a controlled substance, and then delivering a counterfeit controlled substance to her. See RCW 69.50.401(c). The State had not offered into evidence any substance, controlled or uncontrolled. It provided only the purchaser's testimony that the defendant had indicated to her that he would deliver a controlled substance but instead delivered "Pamprin." Eddie A., 40 Wash. App. at 718.

On appeal, Eddie argued that the State had failed to prove the nature of the substance delivered. The State contended that it did not need to prove the identity of the delivered substance, only that "some substance was actually delivered." In reversing the conviction, the Eddie A. court stated that RCW 69.50.401(c) requires proof of the nature of the substance delivered and that the purchaser's bare ...


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