Opinion
No. 60878-9-I.
January 20, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-02280-1, Michael Heavey, J., entered November 19, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
The sole issue on this appeal by Orest Lakotiy is whether the evidence at trial was sufficient to support his conviction for possession of methamphetamine with intent to deliver under RCW 69.50.401. We conclude that it was and affirm.
FACTS
The State charged Orest Lakotiy with one count of unlawful possession of a firearm in the second degree and one count of violation of the Uniform Controlled Substances Act, for possession of methamphetamine with intent to manufacture or deliver, relating to his arrest on February 13, 2007. In amended information, the State also charged Lakotiy with one count of possession of stolen property in the third degree.
On February 13, 2007, at 5:00 a.m., Kent Police responded to a citizen's report of suspicious activity relating to car prowling. Officer Rogers encountered several people outside. Police detained these individuals, including Lakotiy. Officer Rogers testified that after being detained, Lakotiy appeared to be moving toward a garbage can, while shaking his leg. Despite instructions to the contrary, Lakotiy continued to move around, disobey orders, and make furtive movements. Officer Rogers decided to pat him down to search for weapons. During the search, Officer Rogers felt a sharp object in the left breast pocket of Lakotiy's jacket. Investigating further, Officer Rogers discovered a wallet and a Kent Police memorial badge. Another officer on the scene identified the badge as one that had been stolen from a house several years before. At that point, Lakotiy was arrested for possession of stolen property. In the search incident to arrest, the police found a pistol magazine with eight .22 caliber rounds.
In the right inside pocket of Lakotiy's jacket, the police also found what looked to be a can of Pepsi. The top was not open. Officer Rogers stated that as he, "held it in my hand, I could tell this does not feel like a normal pop can. You couldn't dent the sides like you could a normal unopened pop can. It felt very solid and very light." The pop can had a screw cap. It contained approximately one dozen little baggies containing methamphetamine. At trial, Officer Riener, a narcotics investigator, identified the street value to be approximately $70-150 worth of methamphetamine in each bag. He stated that in total, "[w]e're talking over $1,000 worth of methamphetamine."
Officer Riener testified that in possession cases a police officer looks for additional factors to indicate drug dealing. "I look — especially in the dealing, I'm looking for packaging materials, these one-by-one baggies, excessive amounts of cash, weapons are common in this, ledgers, pagers, cell phones." Moreover, he stated that possession of more than two baggies of methamphetamine is consistent with dealing, not personal use.
Additionally, at the time of his arrest, police found $700 in cash on Lakotiy. The denominations included four $100 bills and fifteen $20 bills. After Lakotiy met his bail, on the day after his arrest, the Kent Police Department returned the $700 to him. Detective Scholl testified that he returned it because, "the money had been documented. . . . And so, at that point, I had somebody there that said it was their money, and I had no reason to keep it from him at that point."
Lakotiy testified that on February 13, 2007, he was trying to locate a friend's vehicle, which had been stolen. Upon finding the car, Lakotiy found a can of Pepsi inside. He took the can of Pepsi from the car and put it in his pocket because he was thirsty. At trial, Lakotiy disavowed any knowledge that the Pepsi can contained drugs. Lakotiy testified that at this time he also found the police badge, which he put in his wallet. On direct examination, he testified that his friend had given him $1,600, on February 13, to repay Lakotiy for a prior debt. When questioned about why the police only found $700, Lakotiy initially testified, "I can't remember now. Maybe I gave my wife part of it. I can't say now." On cross-examination, Lakotiy clarified that his friend actually paid the debt on the prior day, February 12, 2007. He claimed to have then paid $500 to the Department of Corrections. Lakotiy further explained that he also gave some money to his wife. At closing arguments, the State presented several exhibits indicating that no payments had been made to the Department of Corrections in 2007.
A jury found Lakotiy not guilty of one count of unlawful possession of a firearm in the second degree. The jury found him guilty of one count of possession of methamphetamine with intent to deliver and one count of possession of stolen property in the third degree.
The sentencing court ordered Lakotiy to pay $500, sentenced him to 40 months of confinement, and ordered him placed in community custody for 9-12 months. Lakotiy appeals.
DISCUSSION
Lakotiy argues that the State failed to prove beyond a reasonable doubt that on February 13, 2007, he possessed methamphetamine with the intent to deliver. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it would permit 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). An insufficiency claim admits the truth of the State's evidence and requires that all reasonable inferences be drawn in the State's favor and interpreted most strongly against the defendant. Id. at 201. Circumstantial evidence is equally as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Credibility determinations are for the trier of fact and are not subject to appellate review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
To convict Lakotiy, the State had to prove that he possessed methamphetamine with intent to manufacture or deliver. See RCW 69.50.401(1); State v. McPherson, 111 Wn. App. 747, 759, 46 P.3d 284 (2002). The elements of possession of a controlled substance with intent to deliver are (1) unlawful possession, (2) with intent to deliver, (3) a controlled substance. State v. Atsbeha, 96 Wn. App. 654, 660, 981 P.2d 883 (1999), rev'd on other grounds, 142 Wn.2d 904, 16 P.3d 626 (2001).
"Generally, bare possession of a controlled substance is not enough to support a conviction of intent to deliver or manufacture; at least one other factor supporting an inference of intent must exist." McPherson, 111 Wn. App. at 759 (citing State v. Hagler, 74 Wn. App. 232, 235-36, 872 P.2d 85 (1994)). Washington courts routinely affirm convictions for possession of a controlled substance with intent to deliver or manufacture where, in addition to the controlled substance, there were one or more of the following factors: large amounts of cash, scales, cell phones, address lists, methamphetamine ingredients, mixing vessels, empty drug packaging materials (including small plastic "sandwich baggies"), pagers, or crystalline cutting agents. McPherson, 111 Wn. App. at 759-61; State v. Zunker, 112 Wn. App. 130, 135-140, 48 P.3d 344; State v. Campos, 100 Wn. App. 218, 224, 998 P.2d 893 (2000); State v. Miller, 91 Wn. App. 181, 186, 955 P.2d 810, 961 P.2d 973 (1998); State v. Sanders, 66 Wn. App. 380, 382, 832 P.2d 1326 (1992).
The State points to the large amount of methamphetamine Lakotiy possessed, the method of concealment in the Pepsi can, and large amounts of cash on his person at the time of his arrest as sufficient evidence of intent to deliver.
Lakotiy was arrested with approximately a dozen individually packaged bags of methamphetamine, each worth approximately $70-150. In addition to the large amount of methamphetamine involved, additional factors indicating intent to deliver are present. Detective Reiner testified that such an amount is inconsistent with mere personal use. Although a detective's opinion that the amount was more than normal for personal use does not establish intent, it may be a factor. State v. Hutchins, 73 Wn. App. 201, 217, 868 P.2d 189; State v. Brown, 68 Wn. App. 480, 485, 843 P.2d 1098 (1993).
Moreover, Lakotiy was arrested with a large amount of cash. At the time of his arrest, Lakotiy was between construction jobs. The $700 he possessed was nearly identical to his monthly rent payment. Based on this evidence, a rational trier of fact could infer that the amount of money was significant for Lakotiy. The State further undermined Lakotiy's explanation when he testified that the money was repayment of a $1600 debt. The State presented evidence impeaching Lakotiy's assertion that he had paid the Department of Corrections with a portion of the money. Lakotiy claims that the Kent Police Department's return of the $700, upon his release on bail, is inconsistent with a finding that he possessed the methamphetamine with an intent to deliver. But, Detective Scholl testified that he was not a narcotics officer and returned the money because he believed he was following procedure.
Viewed in the light most favorable to the State, sufficient evidence supported the fact finder's determination of guilt here. We affirm.