Opinion
No. 64386-0-I.
Filed: January 3, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 05-1-08503-3, Jeffrey M. Ramsdell, J., entered September 22, 2009.
Affirmed in part and remanded by unpublished opinion per Ellington, J., concurred in by Schindler and Lau, JJ.
Mr. Berube contends that the statute of limitations barred prosecution of the bail jumping charge. Respondent, the State of Washington, filed a motion asking this court to remand this case back to the trial court in order to allow the State to present facts sufficient to support tolling of the statutory period pursuant to State v. Walker, 153 Wn. App. 701, 224 P.3d 814 (2009). A commissioner of this court referred the motion to a panel for consideration. We agree with respondent that, under Walker, the appropriate resolution of this appeal is to remand this case to the trial court to hold a fact finding hearing to make a factual determination regarding tolling of the statutory period under RCW 9A.04.080(2).
In his supplemental statement of authority, Mr. Berube challenges his conviction of possession of cocaine with intent to deliver. He contends the evidence only supports bare possession of cocaine and no intent to deliver. In a criminal case, the test for determining the sufficiency of the evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Any challenge to the sufficiency of the evidence admits all inferences that reasonably can be drawn therefrom. The State had the burden of proving beyond a reasonable doubt that Berube had the intent to deliver cocaine in his possession. The elements of a crime may be proven by circumstantial evidence. Mere possession of a controlled substance is not sufficient evidence of intent to deliver the controlled substance, but a jury can reasonably infer that a defendant possessed a controlled substance with intent to deliver based on evidence that, before the arrest, the defendant delivered a substance to another person.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980).
State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
RCW 69.50.401(1), (2)(a).
State v. Delmarter, 94 Wn.2d at 638.
See State v. Hernandez, 85 Wn. App. 672, 676, 935 P.2d 623 (1997) (reasonable to infer that defendant just delivered cocaine when, minutes later, police recover bindles of cocaine in his possession); State v. Thomas, 68 Wn. App. 268, 273, 843 P.2d 540 (1992) (officers observations of defendant appearing to sell drugs in three incidents prior to arrest probative of his intent to deliver cocaine in his possession when arrested.); State v. Hubbard, 27 Wn. App. 61, 64, 615 P.2d 1325 (1980) (evidence of defendant's prior drug sales relevant to rebut his denial of an intent to sell a controlled substance.)
Berube argues that the observations of the police of his conduct while sitting on a bench are suspect and do not support intent to deliver. But Officer Jokela testified that watching through a zoomed in remote camera, he saw Berube drop at least one rock of what appeared to be rock cocaine from his cupped hand into the hand of another person who then handed Berube folded paper money. On redirect, Officer Jokela reaffirmed he had a clear unobstructed view of those events. Viewing that evidence in a light most favorable to the prosecution, a rational finder of fact could have accepted the officer's testimony that he observed Berube making a delivery to another person. The cases relied upon by Berube are not persuasive because this is not a mere possession case. There is substantial evidence to support the element of intent to deliver. The conviction for possession of cocaine with intent to deliver is affirmed.
See e.g. some additional factor beyond mere possession of a controlled substance is generally necessary to establish an inference of intent to deliver, such as observations by a police officer. State v. Goodman, 150 Wn.2d 774, 783, 83 P.3d 410 (2004); State v. Darden, 145 Wn.2d 612, 624, 41 P.3d 1189 (2002).
Remanded for a factual determination regarding tolling of the statutory period under RCW 9A.04.080(2) as to the bail jumping charge.