No. 27799-9-IIThe Court of Appeals of Washington, Division Two.
Filed: May 13, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County Docket No: 00-1-04332-7 Judgment or order under review Date filed: 08/31/2001
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 109 Tacoma Ave N, Tacoma, WA 98403-2631.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
HUNT, C.J.
Dundray Monterrist Calhoun appeals his conviction for possession of cocaine with intent to deliver in a school bus zone. He argues that the evidence was insufficient to convict and that his offender score was miscalculated. Finding sufficient evidence to support his conviction, including the school zone enhancement, we affirm his conviction and remand for resentencing.
FACTS I. Arrest
Responding to a drug complaint call, Tacoma Police Officer Nathan Clammer recognized Calhoun, for whom he knew there was an outstanding arrest warrant. Clammer pulled his police vehicle over to speak with Calhoun, confirmed the warrant, arrested Calhoun, and performed a cursory search of Calhoun’s outer clothing. Clammer then transported Calhoun to the Pierce County Jail, where Clammer performed another cursory search of Calhoun’s outer clothing.
In so doing, Clammer discovered and seized a cell phone and $550 cash four 50-dollar bills, thirteen 20-dollar bills, five 10-dollar bills, and eight 5-dollar bills. Clammer advised Calhoun of his Miranda[1]
rights.
During the booking process, Calhoun exchanged his shoes and socks for a pair of plastic jail slippers. Before placing Calhoun in a holding cell, Clammer searched the cell to make sure that there was nothing in it. After Officer Roland Gervacio and Calhoun entered the cell, Gervacio asked Calhoun to remove his clothes, and the officers performed a strip search.
When Gervacio asked to see the bottom of Calhoun’s feet, Calhoun started shuffling his feet and picked up his left foot. Gervacio noticed a plastic baggy hanging from between Calhoun’s slipper and his foot. Clammer took the plastic bag to the property room. He estimated that the bag contained 12 rocks of crack cocaine and a bunch of crumbs.
II. Procedure
The State charged Calhoun with unlawful possession of a controlled substance with intent to deliver. The State added a school bus zone enhancement, alleging that the crime took place within 1000 feet of a school bus route stop.
At trial, Shalon Lewis, Calhoun’s former girlfriend and the mother of Calhoun’s child, testified that she had given Calhoun $550 earlier in the day for him to deposit on an apartment for her. Clammer testified that based on his experience with narcotics, (1) the amount of cocaine in Calhoun’s possession indicated that it was for sale rather than for personal use; (2) the cocaine rocks were smaller than average and could sell for $20 or less; and (3) Calhoun could have used the cell phone to solicit sales.
The jury found Calhoun guilty as charged and returned a special verdict finding that Calhoun had possessed a controlled substance within 1000 feet of a school bus route stop.[2] The trial court sentenced Calhoun to 168 months total confinement for the unlawful possession of a controlled substance with intent to deliver charge.[3] He appeals his unlawful possession of a controlled substance with intent to deliver conviction and his offender score.
ANALYSIS I. Sufficiency of Evidence
Calhoun argues that the evidence is insufficient to support his conviction. We disagree.
A. Standard of Review
Evidence is sufficient to support a conviction if, after viewing the evidence in a light most favorable to the State, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). On review, we deem the truth of the State’s evidence established and draw all reasonable inferences in the State’s favor. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Criminal intent may be inferred from conduct if it is evident `as a matter of logical probability.’ State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Circumstantial evidence and direct evidence are equally reliable. Delmarter, 94 Wn.2d at 638. But the circumstantial evidence must be consistent with the hypothesis that the defendant is guilty and inconsistent with any hypothesis or theory tending to establish innocence. State v. Todd, 101 Wn. App. 945, 950, 6 P.3d 86
(2000).
B. Evidence
Intent to deliver may not be based solely on possession of a controlled substance. Rather, there must be at least one additional factor to make an inference of intent to deliver. State v. Brown, 68 Wn. App. 480, 483-84, 843 P.2d 1098 (1993).[4] Several additional factors were present here from which a jury could rationally infer beyond a reasonable doubt that Calhoun possessed the cocaine with intent to deliver.
First, Calhoun had in his possession a cell phone, $550 in cash in various denominations, and 12 smaller than average size rocks of cocaine, amounting to a gram of cocaine, a quantity greater than that for personal use. The jury, as judge of witness credibility, was entitled to infer Calhoun’s intent to sell based on the quantity of cocaine and the amount and denominations of cash in his possession. Conversely, the jury was entitled to discount Shalon Lewis’s testimony that she had given Calhoun the money for a deposit on her apartment.
Second, according to Officer Clammer, an experienced police officer in narcotics, the amount of cocaine, 12 rocks, suggested sale rather than personal use because crack users usually buy one to two rocks and smoke them immediately. Smaller rocks like Calhoun’s sometimes sell for less than $20.
Finally, Calhoun’s cell phone, although viewed in isolation would prove nothing, when coupled with the other evidence, could have been reasonably viewed by the jury as a tool for arranging sales of the rock cocaine in his possession, for which he was paid in cash. This evidence, taken in the light most favorable to the State post-verdict, is sufficient to support Calhoun’s conviction for possession with intent to deliver cocaine.[5]
II. Miscalculated Offender Score
Calhoun next contends that the State miscalculated his offender score by including juvenile convictions that had washed. At oral argument, the State conceded that recent cases filed since Calhoun’s sentencing require exclusion of Calhoun’s prior juvenile offenses from his offender score such that we should remand for resentencing.
Calhoun was born on November 9, 1972. Under Smith, Calhoun’s juvenile convictions washed out for sentencing purposes on November 9, 1995, when he turned 23, prior to the SRA amendments in 1997. State v. Smith, 144 Wn.2d 665, 669, 30 P.3d 1245 (2001); State v. Dean, 113 Wn. App. 691, 698-99, 54 P.3d 243 (2002).[6] At the time of sentencing here, the trial court considered Calhoun’s 13 prior criminal convictions, seven of which were juvenile adjudications, in calculating an offender score of 11. Excluding Calhoun’s juvenile offenses under Smith and Dean will result in a lower offender score, warranting resentencing.
Because we agree with the State and Calhoun that his offender score was miscalculated, we do not address Calhoun’s alternative argument that the trial court was precluded from modifying his sentence.
Accordingly, we affirm Calhoun’s conviction and remand for sentencing.
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 and BRIDGEWATER, JJ., concur.
(1966).