No. 26604-1-IIThe Court of Appeals of Washington, Division Two.
Filed: January 4, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County, No. 001003576, Hon. Stephen M. Warning, October 17, 2000, Judgment or order under review.
Counsel for Appellant(s), Randolph Furman, Attorney At Law, P.O. Box 2998, Longview, WA 98632.
Counsel for Respondent(s), Susan I. Baur, Cowlitz County Prosecuting Attorney, Hall of Justice, 312 S.W. 1 st, Kelso, WA 98626.
HOUGHTON, J.
Franklin Roland Agpaoa appeals his convictions of two counts of delivery of a controlled substance and one count of involving a minor in drug dealing, arguing that the evidence was insufficient to support his convictions, and that the trial court erred in admitting his son’s out-of-court statements as those of a coconspirator under ER 801(d)(2)(v). We affirm.
Facts
On April 18, 2000, the State charged Agpaoa with two counts of delivery of a controlled substance and one count of involving a minor in drug dealing. After Agpaoa waived his right to a jury trial, the court held a bench trial on October 9, 2000. The State’s primary witness was Cowlitz-Wahkiakum Narcotics Task Force Detective John M. Johnston. The only other witnesses were two task force detectives who observed the undercover buys that Johnston arranged and who afterward arrested Agpaoa and his son.
The court found Agpaoa guilty of all three counts and imposed a standard range sentence on October 17, 2000. On April 6, 2001, the court filed written findings of fact and conclusions of law in support of its verdict. The court’s findings are as follows.
On April 13, 2000, Johnston attempted to arrange a drug purchase from Fred Cabanela by telephone. A younger man named “Frankie” answered the phone. Johnston asked for Cabanela and asked how long he would be gone.[1]
Johnston commented, “[W]ell that’s too bad because I really needed to get one.” Clerk’s Papers at 1. Johnston arranged with Frankie to purchase an ounce of marijuana for $240 after meeting him at the Maltese Tavern in Kelso. After Johnston asked what type of vehicle Frankie would be driving, Frankie hollered, “Hey dad, what are we going to be driving?” Johnston heard an older male say, “Blue Ford Granada.” Clerk’s Papers at 1.
Johnston went to the Maltese Tavern and waited for the transaction to take place. A few minutes later, he saw a blue Ford Granada pull into the train depot parking lot. Johnston left the tavern and walked toward the vehicle. Johnston noticed that Agpaoa was driving and contacted him. The two men shook hands and made small talk, and Agpaoa told Johnston that his son had the “stuff” and would take care of him. Clerk’s Papers at 2. Johnston walked over to the Granada and opened the driver’s door. The young male in the passenger seat identified himself as Frankie. (Agpaoa stipulated to the fact that Frankie was under the age of 18 at the time of this and a subsequent transaction.)
Frankie pulled out a plastic bag of marijuana and handed it to Johnston. Frankie told Johnston that he and his father would be able to take care of the detective while Cabanela was in jail. Johnston then gave Frankie $240.
After concluding the transaction, Johnston walked toward the tavern and met Agpaoa, who assured Johnston that his son was 18. Agpaoa also indicated that he would be able to take care of Johnston at any time. When Johnston asked if they could meet and do another transaction the following day, Agpaoa stated, “[Y]es.” Clerk’s Papers at 2.
On April 14, 2000, Johnston spoke with Agpaoa by telephone. When Agpaoa asked if he was “ready,” Johnston said that he was and asked if Agpaoa had the marijuana. Clerk’s Papers at 2. Agpaoa said that he had to call and see if the marijuana was ready and asked Johnston to call him back in 10 minutes. Approximately 30 minutes later, Johnston called back. Agpaoa told him that he could not get hold of his supplier but added that he would be going to the supplier’s house for dinner and would be back around 7:00 p.m. Agpaoa said that he would expect to hear from Johnston at that time.
After making numerous attempts to contact Agpaoa by telephone, Johnston received three messages from Frankie on April 16, 2000. When he returned Frankie’s call, Frankie asked if he still wanted “it.” Clerk’s Papers at 3. Frankie told him that he and his father kept the marijuana overnight and that Agpaoa was returning it “right now.” Frankie told Johnston that he would contact Agpaoa and have him bring the marijuana back.
A few minutes later, Frankie called Johnston and the two arranged for another transaction at the same location for the same price. At approximately 5:15 p.m., Frankie again called Johnston and indicated that he and Agpaoa were on their way to the Maltese Tavern. Johnston went to the tavern and waited for Agpaoa and Frankie.
After observing their vehicle pull into the train depot parking lot, Johnston left the tavern and walked to the vehicle. Agpaoa informed him that they might be able to get two ounces that day and then walked into the tavern.
Johnston got into the vehicle via the driver’s door and Frankie opened a vinyl pouch, revealing what Johnston recognized as marijuana. Johnston removed the bag of marijuana from the pouch, paid Frankie, and walked toward the tavern. Johnston contacted Agpaoa, and the two discussed the possibility of a two-ounce transaction at a later time. Agpaoa and Frankie were then arrested, and the money used to purchase the marijuana was found in the vehicle.
After entering these findings, the court entered the following conclusions of law:
1. Although Frankie actually delivered the marijuana to Det. Johnston, the defendant is liable for delivery of marijuana on 4-13-00 and on 4-16-00 as an accomplice to Frankie. This is based upon the defendant’s driving the vehicle to each transaction, his statements to Det. Johnston, and discussions regarding future transactions. These actions indicate that the defendant was aware of the transactions and acted to facilitate each of those transactions.
2. The defendant was a coconspirator with Frankie.
3. Frankie’s statements to Det. Johnston regarding his father’s involvement in the transactions [are] admissible pursuant to ER 803(d)(2)(v).
4. Pursuant to State v. Hollis, 93 Wn. App. 804[, 970 P.2d 813, review denied, 137 Wn.2d 1038] (1999), the notion of “involved” with respect to the crime of involving a minor in a drug transaction is broader than mere accomplice liability. When one is an accomplice to a minor in such a transaction, he is liable. To this extent, because the defendant was an accomplice to Frankie, he is liable.
5. The Court has jurisdiction over this matter.
Clerk’s Papers at 3-4. The court then entered guilty verdicts on each count. Agpaoa now appeals.
Analysis I. Delayed Findings and Conclusions
Agpaoa argues initially that he has been prejudiced by the tardy filing of the findings of fact and conclusions of law. Because the case was tried without a jury, written findings and conclusions were required. CrR 6.1(d). The court’s findings and conclusions were filed almost two months after Agpaoa filed his appellant’s brief.
An appellate court will not reverse a conviction based on a delayed entry of findings and conclusions unless the defendant can establish prejudice, such as tailoring to meet issues on appeal. State v. Cannon, 130 Wn.2d 313, 330, 922 P.2d 1293 (1996). Here, the findings follow Detective Johnston’s testimony and conclusions one and four parallel the court’s oral ruling regarding the sufficiency of the evidence to support each verdict. The conclusions regarding Frankie’s statements are more definitive than the court’s oral ruling, however, as the court admitted the “statements in furtherance of the conspiracy if in fact a conspiracy exists.” Report of Proceedings at 17. This ambiguity did not prejudice Agpaoa in filing his appeal, however, as he was able to argue against the conspiracy conclusions that the trial court eventually entered. After reviewing Agpaoa’s arguments on appeal, the record, and the court’s written findings and conclusions, we do not find any tailoring to meet the issues on appeal. Accordingly, we conclude that no prejudice resulted from the trial court’s late entry of findings and conclusions. Because Agpaoa failed to challenge the findings in either a supplemental or reply brief, they are verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
II. Coconspirator Statements
Agpaoa argues further that the trial court erred in admitting Frankie’s statements as those of a coconspirator under ER 801(d)(2)(v).
ER 801(d)(2)(v) provides that a statement of a coconspirator made `during the course and in furtherance of the conspiracy’ is not hearsay State v. St. Pierre, 111 Wn.2d 105, 118, 759 P.2d 383 (1988). Before admitting coconspirator statements, the trial court must determine whether the State has shown, with substantial independent evidence, a prima facie case of conspiracy. St. Pierre, 111 Wn.2d at 118. The trial court must also find that the statements were made during the course and in furtherance of the conspiracy. St. Pierre, 111 Wn.2d at 118-19.
The trial court’s conclusions of law state simply that Frankie and his father were coconspirators and that Frankie’s statements to Johnston about his father’s involvement were admissible under ER 803(d)(2)(v). The trial court did not enter oral or written findings that a prima facie case of conspiracy existed, even without Frankie’s statements, or that his statements were made during the course and in furtherance of the conspiracy. Such error is harmless, however, if the existence of a conspiracy is amply supported by substantial evidence. See State v. Guloy, 104 Wn.2d 412, 420, 705 P.2d 1182 (1985) (finding coconspirator exception to hearsay rule applicable based on substantial evidence in record despite trial court’s failure to make an independent determination of conspiracy), cert. denied, 475 U.S. 1020 (1986).
To admit a statement under ER 801, the State need establish no more than an agreement made by two or more persons confederating to do an unlawful act. State v. Halley, 77 Wn. App. 149, 154, 890 P.2d 511
(1995).
In Halley, a prima facie case of conspiracy to sell cocaine was shown where the defendant drove up at a prearranged time and place, where an informant with police buy money went inside the defendant’s car a few minutes later and where a significant amount of the money was found in the car shortly thereafter. Halley, 77 Wn. App. at 154.
The evidence of conspiracy in this case is even more pronounced. Here, the findings show that Agpaoa drove his son to a prearranged location and told the detective that his son had the “stuff” and would take care of him. See State v. Barnes, 85 Wn. App. 638, 664, 932 P.2d 669
(conspiracy may be proven by showing the declarations, acts, and conduct of the coconspirators), review denied, 133 Wn.2d 1021 (1997); United States v. Heffington, 682 F.2d 1075, 1085 (5th Cir. 1982) (no error in considering defendant’s own statements as independent proof of conspiracy), cert. denied, 459 U.S. 1108 (1983). After the transaction occurred, Agpaoa again met Johnston and told him that he could take care of him at any time and agreed to arrange another transaction the next day. After Agpaoa obtained more marijuana, Johnston made arrangements with Frankie for a second buy that occurred after Agpaoa drove his son to the location. Just before that buy, Agpaoa told Johnston that they might be able to get two ounces of marijuana that day.
This evidence is more than sufficient to show that Agpaoa and his son were working together “with a single design for the accomplishment of a common purpose.” See State v. Smith, 65 Wn. App. 468, 471, 828 P.2d 654
(quoting Marino v. United States, 91 F.2d 691, 694 (9th Cir. (1937) cert. denied, 302 U.S. 764 (1938)), review denied, 119 Wn.2d 1019
(1992). The two conspired to sell marijuana, and Frankie’s statements to Johnston that he and his father would take care of Johnston and that his father would bring marijuana back so that Johnston could buy it were made during and in furtherance of the conspiracy. The trial court did not err in admitting Frankie’s statements to Johnston regarding his father’s involvement in the drug transactions.
III. Sufficiency of the Evidence
Agpaoa also argues that the evidence was insufficient to support each of the court’s guilty verdicts.
With regard to Counts I and II, Agpaoa contends that the evidence was insufficient to show that he acted as an accomplice and thus was guilty of delivering a controlled substance.
A person is an accomplice of another person in the commission of a crime if he or she knowingly “solicits, commands, encourages, or requests[,]” the commission of a crime, or aids in the planning or commission thereof. RCW 9A.08.020(3)(a)(i). To aid and abet another person’s criminal act, one must associate oneself with the undertaking, participate in it with the desire to bring it about, and seek to make it succeed by one’s actions. In re Wilson, 91 Wn.2d 487, 491, 588 P.2d 1161
(1979). `Mere knowledge or physical presence at the scene of a crime neither constitutes a crime nor will it support a charge of aiding and abetting a crime.’ Wilson, 91 Wn.2d at 491-92 (quoting State v. J-R Distribs., Inc., 82 Wn.2d 584, 593, 512 P.2d 1049 (1973), cert. denied, 418 U.S. 949 (1974)).
Agpaoa contends that the evidence of accomplice liability here is no stronger than that in State v. Gladstone, 78 Wn.2d 306, 474 P.2d 274
(1970). In Gladstone, the court rejected a finding of accomplice liability where the evidence showed only that the defendant told an undercover officer that Robert Kent might sell him marijuana and drew a sketch of his location. There was no evidence that the defendant had any association, understanding, agreement or arrangement with Kent to aid or persuade him in the sale of marijuana. Because the “vital element” of a nexus between the accused and the party whom he was charged with aiding and abetting was missing, the evidence was insufficient to support a finding of accomplice liability. Gladstone, 78 Wn.2d at 310.
We find the needed nexus much more evident here. As explained earlier, even if Frankie’s statements implicating his father are not considered, the evidence shows that the two conspired to sell marijuana and that Agpaoa, by both his actions and his statements, helped to arrange the necessary transactions. The trial court did not err in concluding that Agpaoa was his son’s accomplice during the transactions on April 13 and April 16.
Agpaoa also asserts that the evidence was insufficient to support his conviction for involving a minor in a drug transaction. He maintains that the buys were Frankie’s idea and were executed by Frankie alone.
A defendant violates RCW 69.50.401(f) if he or she compensates, threatens, solicits or in any other manner involves “i.e., surrounds, encloses, or draws in” a minor in an unlawful drug transaction, or obliges a minor to become associated with the drug transaction, “e.g., by inviting or bringing a minor to a drug transaction, or allowing the minor to remain during a drug transaction.” State v. Hollis, 93 Wn. App. 804, 812, 970 P.2d 813, review denied, 137 Wn.2d 1038 (1999). In Hollis, the court found the statute violated where one defendant convinced a minor to sell drugs to an undercover officer and where a second defendant brought a minor to a drug transaction and allowed her to remain. Hollis, 93 Wn. App. at 812.
The evidence here shows that Agpaoa twice brought a minor to the scene of a drug transaction. The evidence also shows that Agpaoa obtained the marijuana that his son sold. While Agpaoa may not have convinced his son to sell drugs, he certainly facilitated the transactions in which his son participated, and he is thereby guilty of involving a minor in an unlawful drug transaction.
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.
MORGAN, J. and HUNT, A.C.J., concur.