Opinion
No. 52090-3-I
Filed: May 9, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Island County. Docket No: 02-1-00227-8. Judgment or order under review. Date filed: 03/04/2003. Judge signing: Hon. Vickie I Churchill.
Counsel for Appellant(s), Axelson — Informational Only (Appearing Pro Se), WA.
Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Joshua Choate, Island County Prosecutors Ofc, PO Box 5000, Coupeville, WA 98239-5000.
Jason P. Axelson pleaded guilty to six counts of burglary in the second degree, five counts of theft in the first degree, and one count of theft in the second degree. He proceeded to a jury trial on one count of possession of amphetamine with intent to deliver and was found guilty. The court imposed a mid-range sentence on the conviction of possession with intent to deliver, but imposed an exceptional sentence by ordering it to run consecutively to the sentence on one of the burglary convictions.
After viewing the evidence in the light most favorable to the State, we determine the evidence supports the jury's finding of the essential elements of the crime of possession with intent to deliver beyond a reasonable doubt and affirm the conviction. However, because Axelson received an exceptional sentence premised on facts other than those found by a jury, under Blakely v. Washington, he must be resentenced.
Blakely v. Washington, U.S., 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
FACTS
By amended information, Jason P. Axelson was charged with six counts of burglary in the second degree, five counts of theft in the first degree, one count of theft in the second degree, and one count of possession of methamphetamine with intent to deliver. Axelson pleaded guilty as charged to the burglary and theft counts. The pleas did not include an admission that the burglary or thefts were a major economic offense, that the monetary losses were greater than typical, or that there was a high degree of sophistication and planning inherent in the crimes.
Axelson went to trial before a jury on the sole remaining charge, the possession of methamphetamine with intent to deliver. During trial evidence was presented that a lock-box was found in the bathroom of the trailer in which Axelson was residing. The lock-box contained plastic baggies with 12.5 grams of methamphetamine as well as a bag containing 18.5 grams of marijuana. In addition to the drugs, the box held 20 to 30 smaller clean plastic baggies. Next to the box were a small electronic scale and a mirror with a `line' of methamphetamine on it. Officers testified that such items are commonly used in the delivery of drugs, and are consistent with their sale. Despite telling the officers he was unemployed, Axelson had $170 on his person.
Additionally, a search of Axelson's rental storage unit produced opened blister packs that had contained 846 tablets of pseudoephedrine (cold medicine), a gallon can of acetone about three-quarters full, a camera case containing hypodermic needles, an air tank with breathing apparatus and other chemicals. There was testimony that these items are commonly used in the manufacture of methamphetamine.
A jury found Axelson guilty of possession of methamphetamine with intent to deliver. At sentencing, the trial court imposed an exceptional sentence of 178 months by imposing a mid-range sentence of 127 months for the conviction of possession with intent to deliver consecutively with a low end sentence of 51 months for count 1, one of the second degree burglary convictions. The trial court concluded:
This is a major economic crime as there are multiple victims, monetary loss substantially greater than typical for the offenses and the defendant used a high degree of sophistication and planning in committing the offense.
Axelson appeals.
After the appeal was heard, the United States Supreme Court held in Blakely v. Washington, that `[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' Following the Blakely decision, this court permitted additional briefing. A stay of the appeal was granted pending resolution of a number of cases under Blakely. The stay is lifted and the opinion of the court follows.
Blakely, 124 S. Ct. at 2536 (citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)).
DECISION
Axelson first argues there is insufficient evidence to support the jury's verdict that he possessed methamphetamine with the intent to deliver. The long-standing test for establishing the sufficiency of the evidence on review is stated in State v. Green:
State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
[W]hether, after viewing the evidence most favorable to the State, any rational trier of fact could have found the essential elements of [the crime] beyond a reasonable doubt.
Green, 94 Wn.2d at 221-22 (citing Jackson v. Virginia, 443 U.S. at 320 (emphasis added)).
A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences that can be drawn therefrom.
See State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
To convict for possession of a controlled substance with intent to deliver, the State must show the defendant intended to deliver the substance (methamphetamine) presently or at some future time. Evidence of an intent to deliver must be sufficiently compelling that the specific criminal intent of the accused may be inferred from the conduct, plainly indicated as a matter of logical probability. The intent to deliver must logically follow as a matter of probability from the evidence presented. `Naked possession of a controlled substance is generally insufficient to establish an inference of an intent to deliver.' The many Washington cases in which intent to deliver was inferred from possession of narcotics all involve at least one additional factor.
State v. Darden, 145 Wn.2d 612, 624, 41 P.3d 1189 (2002) (citing State v. Davis, 79 Wn. App. 591, 595, 904 P.2d 306 (1995)).
Davis, 79 Wn. App. at 594.
Darden, 145 Wn.2d at 624 (citing State v. Brown, 68 Wn. App. 480, 485, 843 P.2d 1098 (1993)).
Darden, 145 Wn.2d at 625 (citations omitted); State v. McPherson, 111 Wn. App. 747, 759, 46 P.3d 284 (2002).
In the instant case there was evidence that Axelson possessed a lock-box containing 12.5 grams of methamphetamine and 18.5 grams of marijuana. The box held several clean, unused, small plastic baggies. In the bathroom at the residence along with the box were a digital scale and a mirror with amphetamine on it. There was testimony indicating that these items are commonly used for delivery of drugs, and are consistent with their sale. The evidence was not confined to that found in Axelson's residence. His rental storage unit contained 846 empty cold medicine packets, acetone, hypodermic needles, and an air tank with breathing apparatus. There was testimony at trial that each of the above is commonly used in the manufacture of methamphetamine. However, taking the evidence in the light most favorable to the State, the items and ingredients found at the storage facility, coupled with the drugs and paraphernalia found at the residence, support the argument and determination that Axelson was engaged in the handling and distribution of methamphetamine. This evidence meets the standard for sufficiency and the jury verdict is affirmed.
We are aware that Axelson was not charged with the manufacture of methamphetamine.
Axelson next claims the Blakely decision requires reversal of the trial court's imposition of the exceptional sentence and that he must be resentenced within the standard range. The exceptional sentence cannot stand in light of Blakely. Although the parties dispute the appropriate remedy in this case, we are constrained to follow the recent decision in State v. Hughes and remand for resentencing within the standard range.
We are mindful of the recent case of State v. Kinney, Wn. App., 106 P.3d 274 (2005), and note factual differences between that case and this one. As noted in footnote 3 of the Kinney case, that case involved consecutive sentences for serious violent crimes. This one does not.
Hughes, No. 74147-6, 2005 WL 851137 (Wash. April 14, 2005).
The conviction is affirmed. The case is remanded for resentencing.
BECKER and BAKER, JJ., concur.