Opinion
No. 31440-1-II
Filed: March 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Grays Harbor County. Docket No. 03-1-00244-8. Judgment or order under review. Date filed: 02/09/2004. Judge signing: Hon. F. Mark McCauley.
Counsel for Appellant(s), John Lester Farra, Attorney at Law, Dune Square Bldg Ste 5, PO Box 817, Ocean Shores, WA 98569-0817.
Counsel for Respondent(s), Gerald R. Fuller, Grays Harbor Co Pros Ofc, 102 Broadway Ave W Rm 102, Montesano, WA 98563-3621.
James V. Fisher appeals his conviction for unlawfully delivering a controlled substance. He argues that the evidence is insufficient to support a finding that he was an accomplice to the delivery; that the trial court was required to dismiss because an undercover officer may have smoked marijuana after the delivery was complete; and that he was entitled to examine extrinsic witnesses about the undercover officer's alleged use of marijuana. We affirm. On April 19, 2003, Eric Cochran was working as an undercover police officer for the Ocean Shores Police Department. His assignment was to purchase drugs. At about 11:30 p.m., he saw Fisher at a local bar called Cadillac Jack's. He asked if Fisher could find someone to sell him some marijuana, and Fisher replied, `Yes.' They agreed to meet the next day around noon. Cochran the left the bar and drove to a nearby bowling alley, where he parked in the parking lot, went inside, and tried unsuccessfully to buy drugs from others. As he was walking back to his car in the parking lot, he was approached by Fisher and a man named Daniel Wieting. Fisher introduced Wieting as the person with whom Cochran would have to deal for marijuana. Cochran had earlier understood the price to be $320 per ounce, but Wieting now said the price would be $380 per ounce and that the transaction would occur that night. Fisher listened but did not participate in the negotiation over price. Cochran did not have enough `buy money' to pay $380, so he and Wieting drove to an ATM machine where Cochran obtained the rest of the money he needed. They then went to Wieting's house, where Cochran gave the money to Wieting's son David. David left, returned after a few minutes, and handed Cochran an ounce of marijuana.
Report of Proceedings (RP) at 21.
On May 12, 2003, the State charged Fisher with unlawfully delivering marijuana. Before trial, Fisher moved to dismiss. He alleged that Cochran had engaged in misconduct by smoking marijuana, and that the misconduct had induced him `to be involved in a conspiracy.' Cochran testified that he had not smoked or simulated smoking marijuana during the course of his investigation. David testified that he, a friend named Shawn Miller, and Cochran had all smoked marijuana after the deal was complete, and that Cochran had given him a small amount of the drug for helping with the transaction. A man named Rape testified that in mid-April 2003, he had seen Cochran and a man named Stucky smoking marijuana inside a parked van. Finding that any smoking of marijuana was tangential and not so outrageous as to require dismissal, the trial court denied the motion to dismiss.
Clerk's Papers (CP) at 4; see also CP at 6-8.
On the first morning of a jury trial, the State moved in limine to exclude evidence that Cochran had smoked marijuana after the delivery had been completed. Holding that any such evidence was irrelevant to whether Fisher had knowingly aided the delivery and also to the proposed defense of entrapment, the trial court granted the State's motion to exclude. The jury convicted, and the trial court imposed a standard range sentence of four months.
I.
The first issue is whether the evidence is sufficient to support Fisher's conviction for unlawful delivery. Evidence is sufficient if, when viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find each essential element of the crime beyond a reasonable doubt. A person is guilty of delivering marijuana if, with knowledge that his conduct will promote or facilitate the delivery, and with knowledge that the substance is marijuana, he encourages or aids another to deliver marijuana.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
RCW 69.50.401(a); RCW 9A.08.020(3)(a); State v. DeVries, 149 Wn.2d 842, 849-50, 72 P.3d 748 (2003).
The evidence here is sufficient. While speaking with Cochran in Cadillac Jack's, Fisher said that he knew someone who could deliver the marijuana and that the price would be $320. Later the same night, Fisher introduced Cochran to Wieting, said that Wieting would be the person with whom Cochran should deal, and stood by as Cochran and Wieting negotiated the price. Taking this evidence in the light most favorable to the State, a rational trier of fact could find that Fisher knowingly encouraged and aided the delivery of marijuana.
II.
The next issue is whether the trial court was required to dismiss the case because Cochran may have smoked marijuana while working undercover. CrR 8.3(b) provides:
The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial. The court shall set forth its reasons in a written order.
The court should reserve such a dismissal for extraordinary circumstances in which there has been material prejudice to the rights of the accused. The court has broad discretion, and we review only for abuse of that discretion.
State v. Moen, 150 Wn.2d 221, 226, 76 P.3d 721 (2003); see also State v. Lively, 130 Wn.2d 1, 20, 921 P.2d 1035 (1996).
Moen, 150 Wn.2d at 226; State v. Martinez, 121 Wn. App. 21, 30, 86 P.3d 1210 (2004).
Assuming without finding that Cochran smoked marijuana, he did that outside of Fisher's presence and after the marijuana sale was complete. His conduct could not have induced Fisher's, and Fisher could not have been prejudiced. The trial court did not abuse its discretion.
III.
The last issue is whether the trial court erred by excluding testimony from Wieting's son and a friend of his named Miller that they and Cochran smoked marijuana together after the delivery was completed. Fisher argues that the testimony was relevant to attack Cochran's credibility, while the State responds that the evidence was inadmissible under ER 608(b).
The State is correct. ER 404(a)(3) provides that when evidence of a specific instance of conduct is offered to impeach Witness X's credibility, it may be admitted under ER 608 or ER 609. ER 609 is not pertinent here. ER 608 requires that non-conviction evidence be `in the form of reputation' or be adduced by examining Witness X himself. ER 608(b) forbids adducing non-conviction evidence through Witness Y; its first sentence expressly declares that when a specific instance of prior conduct is offered to impeach Witness X's credibility, such instance `may not be proved by extrinsic evidence.' In this case, Cochran was Witness X, and David or Miller was Witness Y. Hence, the offered testimony was both `extrinsic' and inadmissible.
ER 608(a).
ER 608(b), second sentence.
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.
HOUGHTON, J, ARMSTRONG, J., Concur.