Opinion
No. 61056-2-I.
March 9, 2009.
Appeal from a judgment of the Superior Court for Whatcom County, No. 06-1-01667-2, Steven J. Mura, J., entered December 13, 2007.
Affirmed by unpublished per curiam opinion.
In a prosecution for possession of a controlled substance with intent to deliver, the intent element is established if the evidence shows both possession of a controlled substance and facts suggestive of a sale. The evidence in this case showed that Ricardo Sandoval possessed a large amount of methamphetamine, a large quantity of loose jewelry, and a number of small, unused baggies typically used in sales of methamphetamine. Because we conclude that this evidence was sufficient to support an inference of an intent to deliver, and because the trial court did not abuse its discretion in refusing or modifying several of Sandoval's proposed jury instructions, we affirm Sandoval's conviction for possession of methamphetamine with intent to deliver. We also affirm the sentence imposed because any error in the computation of his offender score was harmless.
I
Following a traffic stop, Bellingham police officers Mark Wright and Bill Medlen approached opposite sides of the stopped car. The backseat passenger, later identified as Ricardo Sandoval, had his left hand inside his jacket. Both officers asked him to remove his hand, but Sandoval did not respond. Officer Wright noticed that Sandoval's other hand was slowly pushing "a wad of something" away from his body and under a black garbage bag sitting next to him on the seat. The officers immediately removed Sandoval from the car, handcuffed him, and searched him. They found a baggie containing 1.8 grams of methamphetamine and six one-inch, unused plastic baggies in his pocket. They also found a ring box containing rings and earrings on his person and a bag containing 77.67 grams of methamphetamine under the black garbage bag on the back seat. The garbage bag contained additional jewelry, including necklaces, pendants, and rings.
The State charged Sandoval with possession of methamphetamine with intent to deliver. At trial, Deputy Erik Francis of the Whatcom County Sheriff's narcotics unit testified that typically methamphetamine users purchase one-half to three and one-half grams of methamphetamine. It would be "very unusual" for a user to buy 77 grams of methamphetamine because it would cost roughly $3,200 and users typically do not have that much money.
Deputy Francis also testified that the baggies found in Sandoval's pocket were the kind commonly used for drug sales of one-half to three and one-half grams, and that buyers and sellers sometimes barter for drugs with electronics or jewelry.
Sandoval moved to dismiss the charge at the close of the State's case, arguing there was insufficient evidence of an intent to deliver. In denying the motion, the court cited the large amount of jewelry and individual baggies as indicia of Sandoval's intent to deliver.
A jury convicted Sandoval as charged. The court imposed an 18-month sentence on a standard range of 12 to 20 months.
II
Sandoval first contends his conviction is not supported by sufficient evidence. Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits any reasonable juror to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A defendant claiming insufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences that may be drawn from that evidence. Salinas, 119 Wn.2d at 201. Here, Sandoval contends the State failed to prove that he intended to deliver the methamphetamine he possessed. We disagree.
Intent to deliver may be inferred where the evidence shows both possession and facts suggestive of a sale. State v. Hagler, 74 Wn. App. 232, 236, 872 P.2d 85 (1994). Mere possession of a controlled substance, including quantities greater than needed for personal use, is insufficient to support an inference of intent to deliver. State v. Lopez, 79 Wn. App. 755, 768, 904 P.2d 1179 (1995); Hagler, 74 Wn. App. at 235-36. There must be at least one additional fact, such as a large amount of cash or sale paraphernalia, suggesting an intent to deliver. Hagler, 74 Wn. App. at 236 (large amount of cocaine and $342 sufficient to establish intent to deliver); State v. Lane, 56 Wn. App. 286, 297-98, 786 P.2d 277 (1989) (ounce of cocaine, large amount of cash, and scales); State v. Simpson, 22 Wn. App. 572, 575, 590 P.2d 1276 1979) (possession of uncut heroin, lactose for cutting, and balloons for packaging). Here, the large amount of methamphetamine, the unused baggies commonly used for drug sales, the large quantity of loose jewelry, and the absence of paraphernalia for using methamphetamine support an inference of an intent to deliver.
Sandoval argues, however, that the State did not prove that he possessed the methamphetamine found next to him in the car. He contends that the evidence at most established only his momentary handling of the drugs. But even a momentary handling is sufficient to establish possession if there are "other sufficient indicia of control," State v. Staley, 123 Wn.2d 794, 802, 872 P.2d 502 (1994), or the momentary handling is terminated by police action. State v. Summers, 107 Wn. App. 373, 385, 28 P.3d 780, 43 P.3d 526 (2001). In this case, Sandoval did more than briefly handle the drugs; he exercised purposeful control over them by attempting to move them out of the officers' sight and underneath items on the seat. See Staley, 123 Wn.2d at 801 (possession involves control, care and management, as opposed to mere passing control); Summers, 107 Wn. App. at 386-87 ("evidence of momentary handling, when combined with other evidence, such as . . . a motive to hide the item from police, is sufficient to prove possession"). In addition, his control was more than passing because it terminated only when the officers removed him from the car. State v. Werry, 6 Wn. App. 540, 548, 494 P.2d 1002 (1972) (grabbing and trying to hide drugs when police arrived was more than passing or momentary control); see also State v. Bowman, 8 Wn. App. 148, 153, 504 P.2d 1148 (1972). The evidence thus supported a finding that Sandoval possessed the drugs found on the seat.
Next, Sandoval contends that the trial court erred by declining to give several of his proposed jury instructions. Instructions are sufficient if they accurately state the law, are not misleading, and permit the parties to argue their respective theories of the case. State v. Huckins, 66 Wn. App. 213, 217, 836 P.2d 230 (1992). A specific instruction is not necessary when a more general instruction adequately explains the law. State v. Brown, 132 Wn.2d 529, 605, 940 P.2d 546 (1997). A trial court has "considerable discretion" in the wording of instructions, State v. Alexander, 7 Wn. App. 329, 336, 499 P.2d 263 (1972), and we review the rejection of proposed instructions for abuse of discretion. State v. Hall, 104 Wn. App. 56, 60, 14 P.3d 884 (2000). There was no abuse of discretion here.
Sandoval proposed, and the trial court rejected, an instruction stating that "[a]ctual possession entails actual control, not a passing control which is only a momentary handling." Sandoval contends he was entitled to this instruction because it correctly stated the law and informed the jury that the duration of possession was a factor to consider in deciding whether he possessed the drugs. But the instruction is an incomplete and potentially misleading statement of the law. While passing or momentary control is generally insufficient to establish possession, "momentary control can amount to actual possession in some circumstances." Summers, 107 Wn. App. at 387; Staley, 123 Wn.2d at 802 ("[D]epending on the total situation, a `momentary handling,' along with other sufficient indicia of control over the drugs, may actually support a finding of possession."). Because the proposed instruction did not indicate that momentary possession can sometimes amount to actual possession, the court did not abuse its discretion by declining to give it.
The trial court also rejected Sandoval's proposed instruction on proximity, which stated: "Proximity to a controlled substance, by itself, does not establish constructive possession." While this is a correct statement of the law, State v. Porter, 58 Wn. App. 57, 62-63, 791 P.2d 905 (1990), the standard possession instruction given in this case is generally sufficient, particularly when the State's case does not rest on proximity alone. See State v. Portrey, 102 Wn. App. 898, 903, 10 P.3d 481 (2000); State v. Castle, 86 Wn. App. 48, 61-62, 935 P.2d 656 (1997). Because the State's case was based on more than Sandoval's proximity to the drugs, and because the court's instruction allowed the parties to argue their theories of the case, the court did not abuse its discretion in refusing Sandoval's proposed instruction.
For similar reasons, the court properly refused to give the emphasized portion of the following instruction:
Possession of a controlled substance alone, even possession of a large amount of controlled substance, without some additional factor, is insufficient to establish an inference of intent to deliver. A police officer's opinion that a defendant possessed more drugs than normal for personal use is insufficient to establish intent to deliver.
(Emphasis added.)
Again, the rejected language was a correct statement of the law, but the remainder of the instruction was sufficient since it allowed Sandoval to argue his theory of the case. In this regard, we bear in mind the rule that
Lopez, 79 Wn. App. at 768 (police officer's opinion that defendant possessed more drugs than normal for personal use is insufficient, without more, to establish intent to deliver).
"[I]nstructions should not be so factually detailed as to emphasize certain aspects of a party's case and thus point up or buttress his argument to the jury, but rather should be limited to enunciating basic and essential elements of the legal rules necessary to enable the parties to each present their theories of the case."
State v. Deiro, 20 Wn. App. 637, 640, 581 P.2d 1079 (1978) (quoting Alexander, 7 Wn. App. at 335). The court's modification of Sandoval's proposed instruction was consistent with this rule and well within its discretion. And because the State's evidence of intent to deliver was not limited to the amount of drugs and/or the police officer's opinion regarding the amount, any error in failing to give the entire proposed instruction was harmless beyond a reasonable doubt.
Sandoval's last argument is that the trial court miscalculated his offender score. He contends that an out-of-state conviction included in his score was not comparable to any Washington felony, and therefore his score should have been zero, not one. We need not decide whether the court miscalculated Sandoval's score because any error was harmless.
Under the drug offense sentencing grid, Sandoval's standard range is the same whether his offender score is zero or one. RCW 9.94A.517. "Where the standard sentence range is the same regardless of a recalculation of the offender score, any calculation error is harmless." State v. Fleming, 140 Wn. App. 132, 138, 170 P.3d 50 (2007), review denied, 163 Wn.2d 1047 (2008) ("A trial court may determine that nine convictions exist and then stop calculating, so long as the court is not considering the imposition of an exceptional sentence based on reasons related to the offender score. Where the standard sentence range is the same regardless of a recalculation of the offender score, any calculation error is harmless.") (citation omitted); State v. Argo, 81 Wn. App. 552, 569, 915 P.2d 1103 (1996).
In addition, it is evident that the trial court would have imposed the same sentence whether Sandoval's score was one or zero. Prior to imposing sentence, the court stated:
Well, you've got a very short history as an adult, Mr. Sandoval, and you've got pretty much constant criminal activity. 2003, California; then you come up here and there's more meth and meth in 2007. At some point the law is going to have to impose enough punishment on you so you can learn to stay away from crime or you will spend the rest of your life in prison.
In light of these comments, and because the court was entitled to consider the California conviction for purposes of a standard range sentence even if it could not be included in Sandoval's offender score, it is clear that a one point change in Sandoval's offender score would not alter the court's sentence.
Sandoval did not dispute the existence and validity of the California conviction below and argues only that the offense would be a misdemeanor under Washington law. While misdemeanors do not count in a defendant's offender score, a court may consider them in determining the length of a standard range sentence. Washington Sentencing Guidelines Comm'n, Implementation Manual II-32 (1984) ("The Commission anticipates that in some instances an offender's history of misdemeanors may be used by the court in selecting a sentence within the standard sentence range.").
Affirmed.