Opinion
No. 37766-7-II.
January 26, 2010.
Appeal from a judgment of the Superior Court for Skamania County, No. 08-1-00040-9, E. Thompson Reynolds, J., entered May 15, 2008.
Reversed by unpublished opinion per Bridgewater, J., concurred in by Houghton, J.; Hunt, J., dissenting.
Nathan D. Goncalves appeals his jury trial conviction for delivery of a controlled substance (methamphetamine) under RCW 69.50.401(1). We hold that substantial evidence does not support Goncalves's conviction. We reverse and vacate his conviction.
Goncalves's judgment and sentence recites that the jury convicted him of "[d]elivery of controlled substance." CP at 94. The jury's verdict form, however, found him guilty of "[p]ossession of [m]ethamphetamine with [i]ntent to [d]eliver." CP at 86.
FACTS
On December 12, 2007, Detective Tracy Wyckoff met with a confidential informant (CI) to conduct a controlled purchase of methamphetamine at a Maple Way residence in Skamania County, Washington. Before Detective Wyckoff followed the CI to the residence, he searched the CI's person and clothing to check for drugs or hidden materials. Detective Wyckoff found $94 but no drugs or paraphernalia. Detective Tim Garrity searched the CI's vehicle, and he found no drugs, paraphernalia, or money. Detective Wyckoff gave the CI $50 to purchase methamphetamine, and Detective Garrity drove to a location where he could monitor cars entering and leaving the residence.
Although the detectives positioned themselves to observe the residence, neither of them could see the entryway or residence's front door. During their surveillance, Detective Garrity saw a Ford Taurus drive into the driveway next to the CI's car, but he did not see whether the unidentified driver entered the house. Shortly thereafter, the CI entered his vehicle and drove off to meet Detective Wyckoff, but the CI reported that he needed to go back to the house to pick somebody up. Detective Wyckoff again searched the CI's person, but he did not search the CI's car.
The detectives watched the CI return to the residence and leave in his vehicle three minutes later with "another individual," whom the detectives later identified as Goncalves. RP at 58. Detectives Wyckoff and Garrity followed the vehicle to the Main Street area and watched the CI park in a convenience store parking lot. The detectives saw Goncalves exit the CI's vehicle and walk down First Street while the CI remained in his parked vehicle. Detective Garrity next saw Goncalves walk into a nearby trailer park but then lost sight of him. Ten to fifteen minutes later, Detective Garrity saw Goncalves leave the trailer park and return to the CI's parked vehicle. Detective Garrity drove back to the residence, and the CI and Goncalves left together in the CI's vehicle. Detective Wyckoff followed the CI's vehicle back to the residence.
Several minutes after pulling into the residence's driveway, the CI, by himself, left the residence, drove to where Detective Wyckoff had parked, and handed him two baggies of a crystalline substance, which field-tested positive for methamphetamine. Detectives Wyckoff and Garrity searched the CI's person, clothing, and vehicle for signs of drugs, drug paraphernalia or money; they found nothing.
The State charged Goncalves with delivery of a controlled substance — methamphetamine. At trial, detectives Garrity and Wyckoff testified about their observations of the controlled buy. But, because the trial court granted Goncalves's pro se motion to exclude the CI as a witness, the State failed to produce any evidence that Goncalves had sold the methamphetamine to the CI. The jury found Goncalves guilty. He appeals.
ANALYSIS
Goncalves argues that substantial evidence does not support his conviction for unlawful delivery of a controlled substance — methamphetamine. We agree.
Because of our holding that there was not substantial evidence, we do not address Goncalves's other arguments concerning the peculiar procedure of the jury finding that Goncalves was guilty of possession with intent to deliver methamphetamine, and the trial court's sentence for delivery.
In analyzing the sufficiency of the evidence, we use the familiar tests set forth in State v. O'Neal, 126 Wn. App. 395, 412, 109 P.3d 429 (2005), aff'd, 159 Wn.2d 500, 150 P.3d 1121 (2007).
A person is guilty of unlawful delivery of a controlled substance when he or she (1) delivers a controlled substance as classified in schedule I or II (2) with knowledge that the substance delivered was a controlled substance. RCW 69.50.401(1), (2)(a); State v. DeVries, 149 Wn.2d 842, 849-50, 72 P.3d 748 (2003). Methamphetamine is a schedule II controlled substance. RCW 69.50.206(d)(2).
Substantial evidence does not support Goncalves's conviction for delivery of a controlled substance, methamphetamine because:
(1) No witness, the detectives or otherwise, saw Goncalves possess or deliver methamphetamine and the trial court prohibited the CI from testifying;
(2) No one testified as to where the methamphetamine came from that the CI delivered to the deputies — no testimony showed that it came from Goncalves, from someone inside the targeted residence, or from the trailer park;
(3) No one, including the detectives, actually saw the CI enter the targeted residence — the CI could have gone to another residence or met someone outside the targeted residence;
(4) Even if the CI did enter the residence, there is no evidence that he obtained the drugs from someone inside the residence, let alone from Goncalves;
(5) There was no testimony that the drugs did not come from the unidentified driver of the Taurus;
(6) No one, including the detectives, saw any passage of baggies or money between the CI and Goncalves.
In short no witness saw Goncalves possess or deliver methamphetamine, and the two police detectives could not see the CI for significant periods of time during the controlled buy.
Although the police detectives thoroughly searched the CI and his vehicle before and after the controlled purchase, and they attempted to monitor the controlled purchase from hidden locations, they observed only the CI and Goncalves depart in the same vehicle for a secondary location, Goncalves exit the vehicle and enter a nearby trailer park, and return to the vehicle 10-15 minutes later after leaving the trailer park. The detectives lost sight of Goncalves while he was in the trailer park; and they never saw any money or other items, such as suspected drugs, pass between Goncalves and the CI. Typically, the State would have filled this evidentiary gap with the CI's testimony or the detectives' direct observations of the purchase. Here, the State offered no such evidence.
The law makes no distinction between the weight to be given to either direct or circumstantial evidence. One is not necessarily more valuable than the other. See State v. Lopez, 29 Wn. App. 836, 840, 631 P.2d 420 (1981). While the detectives did inspect the CI's car before and after the scheduled buy, the detectives did not inspect the CI's car after he left the target house the first time and as such we cannot say that the CI did not have the drugs with him then. The only circumstance is that Goncalves accompanied the CI, and after spending some time with him, the CI had drugs and the buy money was gone. There are too many unanswered questions and holes in the circumstances to support a conviction of unlawful delivery of methamphetamine beyond a reasonable doubt. The evidence does not support Goncalves's conviction for delivery of a controlled substance, methamphetamine.
Accordingly, we reverse. Because we reverse based on insufficient evidence, the charge will be dismissed with prejudice, there will be no retrial, and we do not address Goncalves's other arguments.
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, P.J., concur.
I respectfully dissent. I would hold that looking at the evidence in the light most favorable to the State, as we must on appeal, substantial evidence supports Goncalves' conviction. I would affirm.
I further note that I would find the following assignment of error to be harmless: the discrepancy between the jury's verdict form, finding Goncalves guilty of possession with intent to deliver, and the information, the "to convict" instruction, and the judgment and sentence reciting the crime as delivery of a controlled substance. Not only did Goncalves fail to object or to move to correct this discrepancy in the trial court, but he also fails to show prejudice on appeal, especially, where, in my view, in proving delivery under the facts of this case the State necessarily also proved possession with intent to deliver.
At the outset, I reiterate the standard of review, which the majority also cites: In analyzing the sufficiency of the evidence, we view the facts and inferences drawn therefrom in the light most favorable to the State. State v. O'Neal, 126 Wn. App. 395, 412, 109 P.3d 429 (2005), aff'd, 159 Wn.2d 500 (2007). "Evidence is sufficient to support a conviction when it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." O'Neal, 126 Wn. App. at 412. To affirm a defendant's conviction, "we need not be convinced of a defendant's guilt beyond a reasonable doubt"; instead, we must be satisfied only that "substantial evidence supports the conviction." O'Neal, 126 Wn. App. at 412. Substantial evidence is that sufficient to "persuade a fair-minded, rational person of the truth of the finding." State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
Majority at 3.
Where the majority and I disagree, however, is in applying this standard of review to the facts of this case. The majority raises the possibility that the confidential informant (CI) might have obtained the drugs from someone other than Goncalves when he was out of the detectives' sight; from this possibility, the majority concludes that the evidence was not sufficient to prove the charge beyond a reasonable doubt. In my view, the majority is substituting itself for the jury at the time of trial — looking at the evidence in the light most favorable to the defendant to determine whether the State has overcome the presumption of innocence.
The jury's duty to determine whether the State has met its burden to prove guilt beyond a reasonable doubt at trial, however, is very different from our responsibility in reviewing that verdict on appeal. As an error-correcting appellate court, we are not the finders of fact. And the posture of this case on appeal is after the jury convicted Goncalves, who no longer enjoys the presumption of innocence. As my colleagues and I agree, we must review the record in the light most favorable to the State, not to Goncalves, and determine whether substantial evidence supports the jury's verdict.
The record shows that although no one actually saw Goncalves hand over anything to the CI, the circumstantial evidence supports that it was Goncalves who supplied the drugs to the CI, who then gave them to the detectives. It is unrefuted that: (1) the detectives had searched the CI and his car both before he and Goncalves drove to the trailer park and after they returned to the target residence with the methamphetamine; (2) the detectives saw only Goncalves get in and out of the CI's car during the intervening period of surveillance; (3) even though the detectives lost sight of Goncalves when he went into the trailer park and they lost sight of both the CI and Goncalves when the CI later drove his car out of sight at the end of the target residence's driveway, after his meeting with Goncalves, the CI returned to the detectives without the buy money and with the drugs.
As the trial court properly instructed the jury, and the majority recognizes:
Majority at 4.
Circumstantial evidence is evidence of facts or circumstances from which the existence or nonexistence of other facts may be reasonably inferred from common experience. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. One is not necessarily more or less valuable than the other.
Clerk's Papers at 77 (instruction no. 4). See State v. Lopez, 29 Wn. App. 836, 840, 631 P.2d 420 (1981). Here, the jury obviously rejected Goncalves' closing argument that the State had failed to prove the delivery beyond a reasonable doubt, in spite of his argument's focus on the lack of direct evidence — that the detectives did not have Goncalves and the CI in their view the entire time and did not actually see any money or drugs change hands. The circumstantial evidence outlined above creates more than a mere suspicion. Rather, it is sufficient to support the jury's inference from common experience that Goncalves took the money from the CI in exchange for the drugs during the period when they were together, between the time the detectives searched the CI and his car, before sending him with the money for the controlled buy, and his later return with the drugs and without the buy money.
I further note that if we were sitting as jurors, rather than as an appellate court, such a suspicion might create a reasonable doubt, thus, foreclosing conviction. Again, however, that is not the standard we apply to the evidence on appellate review: We look at the evidence to determine whether it supports the jury's verdict, not whether it would have led us to find a reasonable doubt had we been on the jury.
Looking at the evidence in the light most favorable to the State, post-conviction, I would hold that it is sufficient to support the jury's guilty finding beyond a reasonable doubt. I would affirm.