Opinion
No. 35386-5-II.
October 31, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-00021-0, Brian M. Tollefson, J., entered October 2, 2006.
Reversed and remanded by unpublished opinion per Penoyar, J., concurred in by Houghton, C.J., and Bridgewater, J.
The State charged Chekyema Cubean with two counts of unlawful possession of cocaine and codeine with intent to deliver under RCW 69.50.401 and one count of unlawful use of drug paraphernalia under RCW 69.50.102. Before trial, Cubean unsuccessfully moved to suppress evidence that she possessed cocaine, codeine, and a pipe used for smoking crack cocaine. The jury found Cubean guilty on all three counts. Cubean appeals her conviction, arguing that (1) the trial court erred in failing to suppress evidence; (2) there was insufficient evidence to find that she intended to deliver the controlled substances; (3) the trial court erred in refusing to give Cubean's proposed jury instruction; and (4) prosecutorial misconduct during closing argument warrants a new trial. We hold that the trial court erred by failing to suppress the pipe and that there was insufficient evidence to prove intent to deliver the controlled substances. We reverse Cubean's convictions and remand for sentencing on the lesser included offense of possession of a controlled substance.
FACTS
I. Arrest
On January 2, 2006, Tacoma police officers Greg Hopkins and Wayne Beals were conducting surveillance on the area around 13th Street and Fawcett Avenue. This area is known to be a hotbed for drug activity, including street level drug dealing. While Officers Hopkins and Beals sat in an unmarked car, they observed a group of six people gathered in front of a vacant building. A car approached the curb where the group was gathered. A woman Officer Hopkins recognized as Dorothy Hurd left the group, approached the vehicle and leaned in through the driver's side window. Meanwhile, Cubean remained with the other members of the group. Officer Hopkins recognized both Hurd and Cubean from prior police contacts. Officer Hopkins believed Hurd's actions demonstrated a possible drug exchange.
When the car pulled away from the curb, Officer Hopkins followed it, recorded the license plate, and then returned to where the six individuals were gathered. As the police officers approached, a bag full of a white powder substance dropped between Hurd and Cubean., But Officer Hopkins was unable to see which woman dropped the bag. As the officers began to detain the women, the other four people in the group scattered.
Officers Hopkins and Beal detained the two women and began a pat down frisk for weapons. While conducting the frisk, Officer Hopkins saw cash in Cubean's pocket. In addition, Cubean told the officers she had a pipe in her possession. Hopkins removed the pipe and placed Cubean under arrest for unlawful use of drug paraphernalia under Tacoma Municipal Code 8.29.065.
Officer Hopkins then transported Cubean to jail for booking. When she was unhandcuffed at the jail, Cubean lifted her arms to adjust her t-shirt and bra. Two separate baggies containing what appeared to be drugs fell from her shirt; laboratory tests later revealed that one bag contained 14 pieces of rock cocaine and the other bag contained 8 codeine pills.
The State charged Cubean by information with two counts of unlawful possession of a controlled substance with intent to deliver in violation of RCW 69.50.401(1)(2)(a) and unlawful use of drug paraphernalia in violation of RCW 69.50.102.
II. Motion to Suppress
Before trial, Cubean moved to suppress the drug possession and drug paraphernalia evidence, arguing that (1) Officer Hopkins lacked reasonable suspicion to believe Cubean was armed and thus the pat down was unlawful; and (2) possession of drug paraphernalia is not a crime, and thus Officer Hopkins's arrest of Cubean was unlawful. The State responded that even if Officer Hopkins lacked probable cause to arrest Cubean for use of drug paraphernalia, he did have probable cause to arrest her for drug loitering, and thus the arrest was lawful.
The trial court agreed with Cubean that Officer Hopkins lacked probable cause to arrest her under Tacoma Municipal Code 8.29.065 because the law requires use of drug paraphernalia and not mere possession. However, the trial court concluded that Officer Hopkins did have probable cause to arrest Cubean for "Loitering for the Purposes of Drug Activity," and thus the arrest was lawful. Clerk's Papers (CP) at 52. The trial court then denied Cubean's motion to suppress the drugs and the paraphernalia.
III. Trial
A. Testimony
At trial, the State mainly relied on Officer Hopkins's testimony to prove Cubean possessed drugs with the intent to deliver. When the State asked Officer Hopkins to describe why he believed that Cubean intended to deliver the drugs, he stated that based on his experience, 14 rocks of cocaine was consistent with what he usually found on people selling narcotics. In addition, Officer Hopkins testified that Hurd's behavior appeared to involve a drug transaction, and it is common for drug sellers to work in tandem where one person deals with the customers while the other holds the narcotics. Officer Hopkins stated that he did not see Cubean, or any other member of the group assist Hurd or act as a lookout. Finally, Officer Hopkins testified that Cubean possessed $90 when arrested, but he did not state the significance, if any, of that amount.
Hopkins specific testimony was as follows:
"Fourteen rocks of cocaine would not be for personal use, it would be what we would find in the field to — for people who are selling narcotics in this quantity . . . If you, you know, find somebody that has 14 rocks on them isn't going to use them for personal use." 3 Report of Proceedings (RP) at 48.
On cross-examination, Officer Hopkins conceded that he did not find any other evidence of intent to deliver. He did not uncover evidence that would indicate that Cubean could repackage the crack cocaine or the codeine, nor did Officer Hopkins find any such material on Hurd. Hopkins stated that the main reason he believed that he witnessed a drug transaction was due to the fact that the events took place in an area known for drug trafficking but, he noted, that he did not witness any drug transactions during the entire surveillance period.
At the close of the State's case, Cubean moved to dismiss the charges, reasoning that the State presented insufficient evidence to show intent. The trial court denied the motion, reasoning that in the light most favorable to the State, the evidence showed (1) a highly experienced law enforcement officer gave his opinion that Cubean possessed narcotics above the quantity for personal use; (2) Cubean had two different types of drugs in her possession; and (3) she was located in a zone known for high drug activity.
Cubean then testified on her own behalf. She admitted to being a crack cocaine user, but she denied the fact that she sold drugs. In addition, Cubean testified that she received money from the State for her disability, and that is where the $90 came from. Cubean also called Wesley Clark from the Department of Social and Health Services as a witness. Clark corroborated that the Department's records showed that Cubean made two cash withdrawals (one for $40 and one for $50) on January 2, 2006.
The jury convicted Cubean on both counts of possession of a controlled substance with intent to deliver and unlawful use of drug paraphernalia. This appeal followed.
ANALYSIS
I. Suppression
The State concedes that the seizure of the pipe was unlawful, but argues that this error was harmless. The court will find a constitutional error harmless only if convinced beyond a reasonable doubt that any reasonable jury would reach the same verdict absent the error. State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996); see also State v. Aumick, 126 Wn.2d 422, 430, 894 P.2d 1325 (1995).
The State argues that admitting the pipe was harmless because Cubean would likely have introduced the pipe herself as it would have bolstered her defense that she was a drug user, not a drug seller. While it is plausible that Cubean would have introduced the pipe, we cannot find the error harmless based on speculation of what Cubean might have done. Cubean could have presented evidence that she was a drug user without the pipe. Without the pipe, the State would not have been able to prove unlawful use of drug paraphernalia, and thus it was error for the trial court to admit the evidence.
The holding in State v. O'Neill is not applicable to the seizure of the cocaine and codeine in this case. State v. O'Neill, 148 Wn.2d 564, 62 P.3d 489 (2003). While O'Neill holds that probable cause to arrest does not justify a search prior to arrest, it does not upset our finding in State v. Huff that an officer's erroneous subjective belief as to the existence of one crime does not nullify an arrest based on objective probable cause of another crime. State v. Huff, 64 Wn. App. 641, 826 P.2d 698 (1992). Here, the search and seizure of the drugs occurred after the police arrested Cubean, and thus the case falls under the umbrella of Huff rather than O'Neill.
II. Intent to Deliver
Cubean contends that the State presented insufficient evidence to demonstrate that she intended to deliver the drugs the police found while booking her into jail. We agree.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits any rational trier of fact 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 claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
Under RCW 69.50.401(1), the statutory elements of possession of a controlled substance with intent to deliver are: (1) unlawful possession (2) with intent to deliver (3) a controlled substance. Here, Cubean challenges only the issue of whether the jury could have found beyond a reasonable doubt the element of intent to deliver.
It is well settled that Washington case law forbids a trier of fact to infer an intent to deliver based on "bare possession of a controlled substance, absent other facts and circumstances[.]" State v. Brown, 68 Wn. App. 480, 483, 843 P.2d 1098 (1993) (quoting State v. Harris, 14 Wn. App. 414, 418, 542 P.2d 122 (1975)). Washington courts require evidence beyond possession to infer an intent to deliver. Brown, 68 Wn. App. at 484; see also State v. Campos, 100 Wn. App. 218, 998 P.2d 893 (2000) (undiluted cocaine, $1,750 in small denominations, pager, cell phone, and a list with a column of numbers and the Spanish word for "snow" demonstrated intent to deliver); State v. Hagler, 74 Wn. App. 232, 236, 872 P.2d 85 (1994) (possession of 24 rocks of cocaine as well as $342 in small denominations sufficient to infer intent to deliver); State v. Lane, 56 Wn. App. 286, 297-98, 786 P.2d 277 (1989) (large amount of narcotics and cash as well as scales indicative of intent to deliver).
In Brown, two police officers were patrolling a high crime area in Seattle when they approached two underage youths consuming alcohol. Brown, 68 Wn. App. at 481. As the officers approached, the defendants ran away and dropped a bag which the police later discovered contained 20 pieces of rock cocaine. At trial, the officer testified that personal consumption usually consists of two rocks, and thus in his opinion, the youth "definitely possessed with the intent to deliver." Brown, 68 Wn. App. at 482.
Division I of this court reversed the defendant's conviction, reasoning that it was a naked possession case, even though the arrest took place in a high crime area and the police officer believed 20 rocks of cocaine was excessive for personal use. In particular, the Brown court focused on the fact that the police failed to uncover weapons, large amounts of money, scales, or separate packaging for the narcotics. Additionally, the police officers did not observe the youth engaging in any activity indicative of selling drugs. Brown, 68 Wn. App. at 484. Division I voiced words of caution concerning possession cases which the State elevates to intent to deliver:
The State's position would mean that any person possessing a controlled substance in an amount greater than some experienced law enforcement officer believes is "usual" or "customary" for personal use is subject to conviction for possession with intent to deliver. This is inconsistent with the significant difference between the standard ranges for simple possession and for possession with intent . . . The courts must be careful to preserve the distinction and not to turn every possession of a minimal amount of a controlled substance into a possession with intent to deliver without substantial evidence as to the possessor's intent above and beyond the possession itself.
Brown, 68 Wn. App. at 485.
In State v. Wade, 98 Wn. App. 328, 989 P.2d 576 (1999), we cited Division I's analysis in Brown with approval when reversing a possession of a controlled substance with intent to deliver conviction. In Wade, police officers observed the defendant as he walked away from a white van. Once the police engaged the defendant, he began to walk away and dropped a bag the police later discovered to contain 9 rocks of cocaine. Wade, 98 Wn. App. at 331-32. In reversing the conviction, we held that possession of a large quantity of drugs, even with an officer's expert opinion, is insufficient to sustain a conviction for intent to deliver. Wade, 98 Wn. App. at 341. Rather, the State must show an additional factor beyond possession.
The facts here are analogous to both Brown and Wade. Police officers observed Cubean standing on a corner in an area known for high narcotics traffic. The State did not introduce any evidence that Cubean participated in what appeared to be drug selling activity, though the woman next to her did. After the police arrested Cubean, they found more drugs on her person than would normally be consumed in a short time. However, the police found no other evidence that she intended to deliver the drugs; no scales or packaging materials to divide the drugs for sale. Cubean had $90 on her person, not an unreasonably large sum of money, and there was no evidence that it was broken down into small denominations to assist drug sales. In sum, this appears to be the type of bare possession case that Brown and Wade warn should not be elevated into an intent to deliver case.
The State attempts to distinguish this case from Brown and Wade by noting that (1) Cubean was standing on a street corner in a high narcotics area; (2) another person in her group went to speak with a driver in a car which police believed looked like drug selling activity; (3) the jury heard evidence that drug sellers work in teams; and (4) Cubean had two types of drugs in her possession. However, none of this evidence provides the additional factor necessary to prove intent to deliver. That Cubean was in an area known for drug use cannot infer intent to deliver. Next, while Hurd engaged in suspicious activity, Hopkins did not see Cubean partake in any such activity and there was no evidence other than proximity linking Cubean to Hurd. Finally, while Cubean also possessed codeine tablets, the State did not present any evidence that she could package these pills or that these pills are used in conjunction with selling crack cocaine.
Because the jury convicted her of possession with intent to deliver, the State argues that it must have found her not credible. While the jury determines credibility, the State still bears the burden of proving every element beyond a reasonable doubt. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). The State must prove more than possession of large quantities of drugs in a high crime area to prove intent to deliver.
The State failed to produce sufficient evidence that Cubean engaged in drug sales and we reverse Cubean's unlawful use of drug paraphernalia and possession of a controlled substance with intent to deliver convictions. We remand for sentencing on two counts of simple possession of a controlled substance.
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.
HOUGHTON, C.J., and BRIDGEWATER, J., concur.