From Casetext: Smarter Legal Research

State v. Mayes

The Court of Appeals of Washington, Division One
Mar 14, 2011
160 Wn. App. 1031 (Wash. Ct. App. 2011)

Opinion

No. 64733-4-I.

Filed: March 14, 2011.

Appeal from a judgment of the Superior Court for King County, No. 08-1-11763-1, Jeffrey M. Ramsdell, J, entered December 18, 2009.


Affirmed by unpublished opinion per Appelwick, J., concurred in by Becker and Schindler, JJ.


Mayes challenges his conviction for delivery of a controlled substance in violation of the Uniform Controlled Substances Act, chapter 69.50 RCW. He argues there was insufficient evidence to prove he constructively transferred cocaine to an undercover officer. The State's evidence was sufficient. We affirm.

FACTS

On the evening of September 22, 2008, undercover police officer Adley Shepherd was posing as a drug buyer in a buy-bust operation in Rainier Valley. At about 11:50 p.m., Shepherd made contact with an individual he recognized. The man, Mr. Jones, had been involved in a controlled buy with Shepherd earlier that night. When Shepherd approached, Jones was standing with a female and two males. The two men were later identified as Daniel Mills and the defendant, Willie Mayes. Shepherd initiated a conversation with Jones. He told Jones he wanted a "40," or $40 worth of cocaine. In exchange for facilitating, Jones wanted to receive a portion of the cocaine.

After Shepherd agreed, Jones called out to Mills and Mayes who had begun walking away. Jones yelled the word, "Slow." In response, Mayes "acknowledged and turned around." Mayes then tapped Mills on the arm to get his attention. Jones and Shepherd approached the two men. Jones told Mayes that Shepherd wanted a 40. Mayes instructed Mills to give Shepherd the drugs, which he did. Mayes then asked Shepherd for payment, and Shepherd handed the cash to Mills. Mayes did not handle the drugs or the cash during the transaction. When Shepherd received the cocaine, he looked it over. Mayes told Shepherd: "It is what it is man. That's a 40." Shepherd walked away and gave the "good buy" sign to the arresting officers. Mayes and Mills were arrested shortly thereafter. Police found the prerecorded buy money on Mills. As the police approached, an officer also observed Mills toss aside two bags of what turned out to be cocaine. They recovered only a used crack pipe during a search of Mayes.

Shepherd testified that he believed that "Slow" was Mayes' street name.

At trial, the defense's theory was that Mayes lacked the mental capacity to direct the transfer. Defense expert Dr. David White testified that a traumatic brain injury had left Mayes with an IQ (intelligence quotient) of 72. According to White, Mayes's speech was slurred and he "would have very significant difficulty directing others." The jury was able to observe the defendant's demeanor when the defense played video of Mayes in the police car following arrest.

Shepherd testified at trial that it is typical for drug dealers to work in teams in order to make prosecution harder.

The State charged Mayes with violating the Uniform Controlled Substances Act by delivering cocaine, a controlled substance, contrary to RCW 69.50.401(1), (2)(a). The jury found Mayes guilty as charged. Mayes appeals.

DISCUSSION

Mayes contends the State failed to present sufficient evidence to prove beyond a reasonable doubt that he delivered a controlled substance. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993). Criminal intent may be inferred from conduct, and circumstantial evidence is as reliable as direct evidence. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004). This court defers to the trier of fact on issues involving conflicting testimony, credibility, and the persuasiveness of the evidence. State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997).

The Washington Uniform Controlled Substances Act provides, "[I]t is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance." RCW 69.50.401(1). To find a person guilty of unlawful delivery of a controlled substance, the trier of fact must find that the defendant (1) delivered a controlled substance and (2) knew that the substance delivered was a controlled substance. Hernandez, 85 Wn. App. at 675.

Mayes challenges the sufficiency of the evidence only as to the delivery element. "Deliver" or "delivery" is defined as "the actual or constructive transfer from one person to another of a substance, whether or not there is an agency relationship." RCW 69.50.101(f). The act does not define either "actual transfer" or "constructive transfer," but these terms are discussed in case law.

In State v. Campbell, the court cited to the dictionary for the common understanding of "transfer," interpreting it to mean "`to carry or take from one person or place to another'" or, more broadly, "`to cause to pass from one person or thing to another.'" 59 Wn. App. 61, 64, 795 P.2d 750 (1990) (quoting Webster's Third New International Dictionary 2426-27 (1971)). The court also looked to how other states had interpreted "constructive transfer" in construing their versions of the Uniform Controlled Substances Act. Id. at 63-64. In particular, it cited an opinion from the Texas Court of Criminal Appeals, adopting its description of a constructive transfer as "`the transfer of a controlled substance either belonging to the defendant or under his direct or indirect control, by some other person or manner at the instance or direction of the defendant.'" Id. (quoting Davila v. State, 664 S.W.2d 722, 724 (Tex. Crim. App. 1984)).

Here, the State concedes Mayes did not physically transfer the drugs to Shepherd. Instead, it contends Mayes is guilty under a theory of constructive transfer. Both parties rely on cases from other states. The results in these cases vary based on their facts.

Mayes relies on Davila, but that case is factually dissimilar. In Davila, an informant took an undercover drug enforcement agent to a residence to get heroin. 664 S.W.2d at 723. Davila and her husband were present at the home, which belonged to his sister and her husband. Id. at 724 n. 2. Davila had met the agent two weeks before. Id. at 723. She asked him what he was looking for and he replied simply, "`[F]our.'" Id. Davila left the room and conversed with her husband outside. Id. Shortly thereafter, her husband came inside and asked the agent what he wanted. Id. The agent again replied, "`[F]our.'" Id. With Davila watching, her husband gave the agent four balloons containing heroin in exchange for $120. Id. at 723-24. A jury convicted Davila for delivery of heroin by constructive transfer. Id. at 723. On appeal, the court held there was insufficient evidence to support the conviction because there was no evidence that the heroin belonged to Davila, that it was under her direct or indirect control prior to its delivery, or that her husband transferred it at her instance or direction. Id. at 724-25. The court concluded, "There is no proof that [Davila] had any control over [her husband's] actions." Id. at 725.

The State argues that Mayes's case is less analogous to Davila, and closer instead to Swinney v. State, 828 S.W.2d 254 (Tex. Ct. App. 1st Dist. 1992). In Swinney, an appellate court affirmed the defendant's conviction for delivery of cocaine based on constructive transfer. 828 S.W.2d at 256. An undercover officer drove past the defendant and three other males who were standing in a convenience store parking lot and giving gestures to indicate they were selling drugs. Id. The officer stopped and told the group he needed "`a twenty.'" Id. The defendant left the group, directed the officer to park his car, and asked him what he needed. Id. When the officer told the defendant he was looking for a $20 rock, the defendant returned to the group and spoke with one of them, a juvenile. Id. The defendant then accompanied the juvenile back to the officer's car. Id. The juvenile sat in the passenger seat, and the defendant stood just inside the open car door. Id. The juvenile handed cocaine to the officer in exchange for $20, and then returned to the group with the defendant. Id. In viewing these facts in the light most favorable to the State, the court concluded that the evidence supported the conclusion that the defendant exercised indirect control over the cocaine and that the juvenile acted under his direction. Id. at 258.

This case is more like Swinney than Davila. Drawing all reasonable inferences in favor of the State, the evidence indicates that Mayes was not only an active participant, but actually expressly directed the delivery of cocaine to Shepherd. Mayes turned around in response to Jones's call, "Slow". Jones told Mayes — not Mills — that Shepherd was looking for cocaine. Mills only gave Shepherd a 40 after Mayes directed him to do so. After Mills complied, Mayes was the one to ask Shepherd for payment. Finally, it was Mayes who reassured Shepherd as to the content of his purchase. Mills remained silent throughout the transaction. Combined with Shepherd's testimony that these circumstances were common for street drug sales, this evidence was sufficient for a rational jury to find that Mayes constructively transferred the drugs.

Accordingly, the State presented sufficient evidence that Mayes transferred the cocaine to Shepherd. We affirm.


Summaries of

State v. Mayes

The Court of Appeals of Washington, Division One
Mar 14, 2011
160 Wn. App. 1031 (Wash. Ct. App. 2011)
Case details for

State v. Mayes

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. WILLIE JOE MAYES, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Mar 14, 2011

Citations

160 Wn. App. 1031 (Wash. Ct. App. 2011)
160 Wash. App. 1031