Opinion
No. 31368-5-II
Filed: April 5, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No. 03-1-00869-2. Judgment or order under review. Date filed: 01/30/2004. Judge signing: Hon. Gary R. Tabor.
Counsel for Appellant(s), Peter B. Tiller, The Tiller Law Firm, PO Box 58, Centralia, WA 98531-0058.
Counsel for Respondent(s), Steven Curtis Sherman, Thurston County Pros Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6045.
Earl Lee Alexander (`Lee') appeals Thurston County convictions on two counts of delivery of a controlled substance, with school bus stop sentencing enhancements. He argues insufficiency of evidence and ineffective assistance of counsel. We affirm.
On May 5, 2003, while arresting Mary Alexander at the scene of a drug deal, Lacey police detectives saw a man leave the scene in a blue station wagon. They notified Lt. Mack, who knew Mary and where she lived. About an hour later, Lt. Mack and Officer McLamore drove to Mary's mobile home, where they saw a blue station wagon parked in front of the dwelling. They saw a white male, Kurt Shoemaker, standing at the vehicle's rear. Mack spoke with Shoemaker, who admitted having driven Mary to the drug deal site. Mack detained and handcuffed him.
Shoemaker consented to a search of the station wagon. In it, the police found a Wal-Mart bag containing: assorted drug paraphernalia, glass pipes and shot glasses with white powder residue in them, a baggie of marijuana, and two bottles of pills.
Meanwhile, at the scene of her arrest, Mary had asked Detective Miller to call Lee Alexander, her estranged husband, and `have him go get her children[,] who were playing in the yard.' Report of Proceedings (RP) (Jan. 21, 2004) at 72. When he got the call, Lee was inside Mary's house watching television with Shoemaker, his cousin. Lee had been staying with Mary for several days, and Shoemaker was visiting. Shoemaker had driven Mary to her drug deal and returned to the house. Lee went outside to bring in the children. Then he `got to thinking about things and thought maybe I should clean the house up in case the police came to the house. I wanted it to be safe for the kids.' RP at 81.
Shoemaker testified that he was a bystander while Lee collected articles of drug paraphernalia from the back bedroom and put them into a Wal-Mart bag. Lee told Shoemaker to dispose of the bag. He took the bag outside and hid it in the station wagon just before Lt. Mack and Officer McLamore drove up. Shoemaker testified that Lee wanted him to remove `anything that might be illegal' and could be found by a police search. RP at 38. Lee's version at trial was that Shoemaker helped him put the drug paraphernalia into the Wal-Mart bag.
After finding the Wal-Mart bag and its contents, the officers went to Mary's front door, called Lee out, and arrested him. When questioned at the station, Lee admitted to Officer McLamore that when Detective Miller called to report Mary's arrest, `he decided to gather up the illegal items within the home and get rid of them or get them out of residence, I should say.' RP at 14. Lee was referring to the pipes and other drug paraphernalia, which he told Officer McLamore he collected personally before handing them to Shoemaker.
A state patrol scientist tested the items from the Wal-Mart bag, with these findings: a `small amount' of methamphetamine residue in the glass smoking devices, and several tablets of oxycodone, a controlled substance. RP at 61.
Detective Miller used a measuring wheel to calculate the distance between Mary's residence to a school bus stop on Martin Way, and came up with 685 feet, 7 inches.
The State charged Lee Alexander with two counts of delivery of a controlled substance for the methamphetamine residue and the oxycodone, and also charged that the delivery occurred within 1,000 feet of a designated school bus stop, which would enhance the sentence. The State's theory was that the delivery occurred when Lee gave Shoemaker the drugs and paraphernalia, with instructions to dispose of them. The jury convicted on both counts, and Lee appeals.
(1) Lee challenges the sufficiency of the evidence to convict him on count I, delivery of methamphetamine, arguing that drug residue is not sufficient to support a conviction for delivery. (2) He also argues that the evidence was insufficient because he and Shoemaker were `arguably part of an uncharged conspiracy to possess pills, drug residue, and drug paraphernalia, thus making `delivery' between them a legal impossibility.' Br. of Appellant at 1. (3) He argues further that delivery was impossible because Shoemaker was also in possession of the drugs. (4) Finally, he says his trial counsel was ineffective for failing to move to dismiss the charges on the basis of issue (1).
(1) A challenge to the sufficiency of the evidence admits the truth of the State's evidence, and all reasonable inferences therefrom are drawn in the light most favorable to the State. State v. Baeza, 100 Wn.2d 487, 488, 670 P.2d 646 (1983). The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the defendant's guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In assessing the sufficiency of the evidence, circumstantial evidence is no less reliable than direct evidence, State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980); as between them, the law makes no distinction. State v. Bencivenga, 137 Wn.2d 703, 711, 974 P.2d 832 (1999).
It is well settled that the possession of `any amount' of a controlled substance will support a conviction for simple possession under the Uniform Controlled Substances Act, RCW 69.50.401. State v. Malone, 72 Wn. App. 429, 439, 864 P.2d 990 (1994) (possession of cocaine residue in a baggie, in amount neither measurable nor usable). Put another way, `[t]here is no minimum amount of narcotic drug which must be possessed in order to sustain a conviction.' State v. Williams, 62 Wn. App. 748, 751, 815 P.2d 825 (1991) (citing State v. Larkins, 79 Wn.2d 392, 394, 486 P.2d 95 (1971)), review denied, 118 Wn.2d 1019 (1992) (possession of cocaine residue in crack pipe bowl). Lee cites two cases from Division Three to support his position that there must be more than residue to support a conviction for delivery.
The first of these, State v. Todd, 101 Wn. App. 945, 6 P.3d 86 (2000), is apposite. Todd involved a challenge to the evidence to convict for possession of methamphetamine with intent to deliver. The court found the evidence insufficient where the defendant possessed assorted equipment and materials for making methamphetamine, but no amount of the finished product that could have been delivered. Todd, 101 Wn. App. at 948-49, 954.
In State v. McPherson, 111 Wn. App. 747, 46 P.3d 284 (2002), Division Three considered a challenge to the sufficiency of evidence of possession of methamphetamine with intent to manufacture or deliver. Citing Todd, the court remarked that white powder residue alone was insufficient to prove delivery. McPherson, 111 Wn. App. at 759. But this statement is obiter dicta, because the defendants in both Todd and McPherson were not charged with delivery, but with possession with intent to deliver a crime that requires proof of both drug possession and some additional factor supporting an inference of intent to deliver it, e.g., a large amount of the drug, or of cash, or paraphernalia indicating a plan to weigh and package it into smaller amounts. State v. Zunker, 112 Wn. App. 130, 135-36, 48 P.3d 344 (2002), review denied, 148 Wn.2d 1012 (2003); State v. Brown, 68 Wn. App. 480, 843 P.2d 1098 (1993). In neither Todd nor McPherson was the issue sufficiency of the evidence to convict for actual delivery of methamphetamine based on a residue amount.
Common sense dictates that if a residue amount any amount, or no minimum amount, in the phrasing of Malone and Williams will support a conviction for simple possession, then a residue amount can also be delivered to someone else. A person who possesses such a small amount can give it to someone else, who then possesses it. It follows that the transaction linking the two possessors is a delivery of the drug in sufficient quantity to support a conviction. The claim of insufficient evidence as to count I lacks merit.
(2) Lee next argues that delivery from him to Shoemaker was legally impossible because the two were `arguably' criminal co-conspirators in the possession of the drugs and drug paraphernalia. Br. of Appellant at 1. Without deciding whether the two might have been charged with conspiracy to possess the contraband, the fact is that the State was justified in electing to charge Lee with delivery to Shoemaker. The Uniform Controlled Substances Act defines `delivery' as `the actual or constructive transfer from one person to another of a substance, whether or not there is an agency relationship.' RCW 69.50.101(f). The State introduced evidence that Lee collected the contraband items from the bedroom, put them into the Wal-Mart bag, and handed the bag to Shoemaker, asking him to `throw it away.' RP at 38. This describes a transfer from one person to another. Lee's argument fails.
(3) Lee contends that because Shoemaker, a fellow occupant of the house who was aware of the drugs, was also in possession of the contraband, Lee cannot be charged with delivery to Shoemaker. Like issue (2), this argument ignores the evidence that Lee was the one who collected the articles from the bedroom and asked Shoemaker to dispose of them so the police would not find them. Thus, Shoemaker gained fleeting possession from Lee via delivery of the drugs. Lee's testimony sought to implicate Shoemaker as co-equal possessor, but the jury was free to believe Shoemaker's version. State v. Smith, 90 Wn. App. 856, 862, 954 P.2d 362 (1998). Likewise, the State had the right to drop charges against Shoemaker in exchange for his testimony against Lee a suggestion defense counsel planted in the jury's mind.
(4) Finally, as it would have been futile for defense counsel to move to dismiss count I for insufficient evidence, the ineffective assistance claim also fails.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, J. and QUINN-BRINTNALL, C.J., Concur.