No. 19075-7-III.The Court of Appeals of Washington, Division Three. Panel Four.
Filed: May 1, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Okanogan County, No. 99-1-00227-8, Hon. John G. Burchard Jr, January 7, 2000, Judgment or order under review.
Counsel for Appellant(s), David N. Gasch, P.O. Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Ralph L. Perkins, P.O. Box 1130, Okanogan, WA 98840-1130.
Dale L. Lehrman, P.O. Box 1130, Okanogan, WA 98840.
DENNIS J. SWEENEY, A.C.J.
Miguel Sandoval-Lopez told a confidential informant he could get him some cocaine. Mr. Sandoval-Lopez’s brother then sold the informant cocaine. Mr. Sandoval-Lopez was charged with delivery of a controlled substance as either a principal or an accomplice. The matter proceeded to trial, and he was convicted as charged. Mr. Sandoval-Lopez appeals, arguing the evidence is insufficient to support his conviction.
We view the evidence in the light most favorable to the State and, in doing so, the evidence here amply supports his conviction.
Pro se, Mr. Sandoval-Lopez asserts the informant’s testimony should be disregarded. The jury, however, weighed the witness’s credibility and concluded otherwise. State v. Todd, 101 Wn. App. 945, 950, 6 P.3d 86
(2000). Mr. Sandoval-Lopez also complains that the jury could not hear and/or understand the witnesses. But he failed to bring this up at trial. He cannot raise it now for the first time. RAP 2.5(a). We affirm Mr. Sandoval-Lopez’s conviction.
FACTS
The North Central Washington Narcotics Task Force used Romualdo Trejo as a confidential informant to purchase drugs at the Omak City Park during the Omak Stampede. Two members of the Task Force, Detectives Robert Gaines and Kevin Newport, observed Mr. Trejo as he tried to purchase drugs from people in the park.
Mr. Trejo asked Miguel Sandoval-Lopez if he could get some cocaine. Mr. Sandoval-Lopez told him he could get the cocaine but had to first make a phone call. He told Mr. Trejo to wait for him in the park and then left with his brother.
Mr. Sandoval-Lopez and his brother returned to the park approximately 20 to 30 minutes later and sat at a picnic table. Mr. Trejo approached the table and asked Mr. Sandoval-Lopez if he had the drugs. Mr. Sandoval-Lopez said he had the drugs and, `Let’s go to the bathroom.’ Report of Proceedings at 68. Mr. Trejo and Mr. Sandoval-Lopez began walking toward the bathroom. Mr. Sandoval-Lopez then said it was his brother who had the cocaine, and they walked back to the table. Mr. Sandoval-Lopez told Mr. Trejo where to sit at the table. Mr. Trejo then purchased cocaine from Mr. Sandoval-Lopez’s brother.
Mr. Trejo signaled the detectives that drugs had been purchased. The detectives approached Mr. Sandoval-Lopez and his brother. Detective Newport showed his badge and identified them as police officers while Detective Gaines began to handcuff Mr. Sandoval-Lopez’s brother. Mr. Sandoval-Lopez ran away. Both detectives gave chase and Mr. Sandoval-Lopez’s brother escaped.
The detectives caught and arrested Mr. Sandoval-Lopez. No drugs were found on him. Mr. Trejo gave the detectives the cocaine he purchased.
The State charged Mr. Sandoval-Lopez with delivery of a controlled substance as either a principal or accomplice. The matter was tried to a jury.
Mr. Sandoval-Lopez testified that his conversations with Mr. Trejo concerned employment, and drugs were not discussed. He claimed Mr. Trejo followed him toward the bathrooms on his own volition. Mr. Sandoval-Lopez said he saw no drug transaction occur. He claimed he ran away from the detectives because he thought they might be robbers.
The jury convicted Mr. Sandoval-Lopez as charged.
DISCUSSION Sufficiency of the Evidence
Mr. Sandoval-Lopez contends the evidence showed only that he was present at the park with knowledge of the criminal activity. And this is insufficient to convict him of delivery of a controlled substance. No drugs were found on Mr. Sandoval-Lopez’s person. He only told Mr. Trejo that his brother had drugs.
The standard of review is deferential. After viewing the evidence in a light most favorable to the State, could any rational trier of fact have found the essential elements of the crime beyond a reasonable doubt. State v. Potts, 93 Wn. App. 82, 86, 969 P.2d 494 (1998); State v. Bridge, 91 Wn. App. 98, 100, 955 P.2d 418 (1998). A claim of insufficiency admits the truth of the State’s evidence and all inferences that can reasonably be drawn therefrom. State v. Walton, 64 Wn. App. 410, 415, 824 P.2d 533 (1992). Mr. Sandoval-Lopez was charged with delivering a controlled substance as either a principal or an accomplice. `Accomplice liability exists if the defendant either aids or agrees to aid the primary actor in a crime.’ State v. Collins, 76 Wn. App. 496, 501, 886 P.2d 243 (1995); RCW 9A.08.020. An accomplice can aid a principal by being present and ready to assist. Collins, 76 Wn. App. at 501-02. Physical presence coupled with knowledge of criminal conduct, however, is not sufficient. Id. at 502; State v. McKeown, 23 Wn. App. 582, 588, 596 P.2d 1100 (1979). Essentially, an accomplice is a person who does something in association with the principal in order to accomplish a crime. State v. Sweet, 138 Wn.2d 466, 479, 980 P.2d 1223 (1999).
Mr. Sandoval-Lopez told Mr. Trejo he could obtain the drugs and to wait for him in the park. Mr. Sandoval-Lopez then contacted his brother and the pair left the park, returning 20 to 30 minutes later. Mr. Sandoval-Lopez was present when the sale occurred and even told Mr. Trejo where to sit. Mr. Sandoval-Lopez’s involvement is similar to the defendant’s involvement in McKeown. There, the defendant was present at the sale, personally contacted the actual seller, and discussed the purchase with others who were involved. McKeown, 23 Wn. App. at 589. Mr. Sandoval-Lopez was more than merely present with knowledge of criminal activity. A reasonable jury could conclude that Mr. Sandoval-Lopez aided in the sale of the cocaine.
Witness Credibility
Mr. Sandoval-Lopez contends that Mr. Trejo’s testimony was internally inconsistent. Mr. Trejo often could not remember details surrounding the alleged sale of cocaine. And no rational jury could have believed his testimony.
The jury is the `sole and exclusive judge of the evidence, the weight to be given thereto, and the credibility of witnesses.” State v. Fernandez-Medina, 141 Wn.2d 448, 460, 6 P.3d 1150 (2000) (quoting State v. Bencivenga, 137 Wn.2d 703, 709, 974 P.2d 832 (1999)). As such, `[w]e defer to the trier of fact on questions of conflicting testimony, witness credibility, and the persuasiveness of the evidence.’ Todd, 101 Wn. App. at 950.
The jury evaluated Mr. Trejo’s testimony and found it credible enough to convict Mr. Sandoval-Lopez. We will not second guess the jury’s assessment of Mr. Trejo’s credibility.
Jury’s Ability to Hear and/or Understand the Witnesses
Mr. Sandoval-Lopez argues the record demonstrates that the jury could not hear the witnesses throughout the trial. Additionally, Mr. Trejo had a difficult time speaking English, and an interpreter should have been used.
We will not review Mr. Sandoval-Lopez’s claim because it was not raised in the trial court. RAP 2.5(a); State v. Davis, 41 Wn.2d 535, 250 P.2d 548
(1952).
The trial court personally observed the proceedings and was in the best position to determine whether witnesses were speaking loud enough, or if Mr. Trejo’s testimony was understandable. We have only the cold record. See State v. Collins, 45 Wn. App. 541, 548, 726 P.2d 491 (1986) (trial judge is in best position to weigh probative value of evidence because the trial judge personally observes the testimony, and the appellate court reviews only a cold record); State v. Gosser, 33 Wn. App. 428, 434, 656 P.2d 514 (1982) (trial judge is in better position to determine whether juror should be struck for cause because trial judge personally observes juror’s demeanor and answers to questions, while appellate court reviews only the cold record).
The trial judge made reasonable efforts to ensure the jury could hear and understand all witnesses. He asked witnesses to speak up. And he asked Mr. Trejo to speak slower. And Mr. Sandoval-Lopez did not object, nor did he ask the court to do more.
Mr. Sandoval-Lopez’s conviction and sentence is affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: SCHULTHEIS, J., KATO, J.