No. 24130-1-III.The Court of Appeals of Washington, Division Three.
Filed: April 20, 2006.
UNPUBLISHED OPINION
[EDITORS’ NOTE: This case is unpublished as indicated by the issuing court.]
Appeal from Superior Court of Grant County. Docket No: 02-1-00602-0. Judgment or order under review. Date filed: 05/09/2005. Judge signing: Hon. John Michael Antosz.
Counsel for Appellant(s), Paul J. II Wasson, Attorney at Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.
Counsel for Respondent(s), Teresa Jeanne Chen, Grant County Prosecutors Office, PO Box 37, Ephrata, WA 98823-0037.
Edward Asa Owens, Grant County Prosecutor’s Office, PO Box 37, Ephrata, WA 98823-0037.
SWEENEY, C.J.
A large quantity of drugs alone is not enough to support a conviction for possession of drugs with intent to deliver. More is required. Here, the State showed a ritual `dance’ of two cars, including blinking lights and slow driving in opposite directions from an apparent rendezvous site. It showed that the owner of one of the vehicles had been arrested before for drug violations. It showed a large quantity of drugs. It showed that the site — a convenience store — was often used for drug transactions. This is sufficient to support the jury’s finding that the possession here was with the intent to deliver. And we affirm the convictions.
FACTS
A jury found Mr. Silva guilty of possession with intent to deliver cocaine and simple possession of 40 grams or less of marijuana. The evidence viewed in a light most favorable to the State shows the following.
At around 11:15 p.m. on August 26, 2002, a narcotics team (Interagency Narcotics Enforcement Team) from the Moses Lake police and the sheriff’s offices of Adams and Grant counties parked a surveillance vehicle in the parking lot of the Pheasant Run Mini-Mart at the intersection of Highway 17 and Highway 170 near Warden. A car was parked at the opposite end of the lot, but they took no notice of it. They were expecting a particular green Nissan Pathfinder pickup. The owner of this pickup had been arrested before for narcotics violations. And the team had a warrant to search the pickup as well as any vehicle that might approach it and signal by flashing its lights.
The green Nissan arrived after about half an hour. Immediately, the car parked across the lot suddenly turned on its headlights. This car, a black Mitsubishi STR, then approached the Pathfinder very slowly, just `creeping’ along. Report of Proceedings (RP) at 100. It stopped at the parking lot exit and flashed its tail lights 10 to 20 times. The officers recognized this as a signal to the Pathfinder. The Mitsubishi then drove `very slowly’ down the highway in the direction of Warden, Washington. RP at 102.
A second surveillance car followed it. The black sports car turned around after about a mile and headed back toward the Pheasant Run. It re-entered the parking lot, flashed its tail lights at the pickup a few more times, then turned left onto Highway 17 and headed toward Othello.
A police witness for the State testified that, in his experience, people usually drive cautiously around the rendezvous point, often leaving briefly then coming back, when buying and selling drugs. The actual drug transaction often does not take place at the original meeting location. Another police witness testified, without objection, that it was his belief at the time that a drug transaction was taking place.
The police car followed the Mitsubishi, joined by more police cars. During the pursuit, the driver tossed a couple of things out the window, including a small plastic bag with a white substance and a bright green wrapper of some sort. The Mitsubishi eventually stopped. Mr. Silva was the registered owner and driver. The police searched Mr. Silva and found around $2,000 in cash. The defense showed that Mr. Silva was employed, had a bank account, and had withdrawn $2,000 earlier that day.
Mr. Silva was handcuffed and placed in the back of a police car. Police found a discarded baggie containing less than 40 grams of marijuana on the floor of the patrol car after they removed Mr. Silva.
The police team also recovered the baggie from the highway. It contained 13.5 grams of cocaine with a street value of $200 to $300. One witness thought 13.5 grams was `an exceptionally large amount for personal use’; one half to one gram was the usual amount for personal use. RP at 192, 194. The witness testified that it is not unusual either to buy or sell cocaine in larger amounts.
At the close of the State’s case, the defense moved to dismiss for failure to prove a prima facie case. The court denied the motion. The jury found Mr. Silva guilty of both counts. He appeals.
DISCUSSION Sufficient Evidence to Show Intent to Deliver
Mr. Silva argues that the evidence here was not sufficient to show intent to deliver, and he lists the usual evidence of intent and points out that none of it was produced: no direct link to the green Nissan Pathfinder and no weapon, scales, baggies, contact information, or any other `dealing’ paraphernalia. The State responds that it showed factors other than just quantity: suspicious nighttime behavior; a large amount of cash; the existence of a search warrant; the officers’ knowledge that the Pheasant Run Mini-Mart was often used for drug transactions; the signal to the Pathfinder, a known drug vehicle; and the absence of any evidence of personal cocaine use.
We will affirm a jury verdict if substantial evidence supports the State’s case such that a reasonable finder of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We accept all the State’s evidence as true and give the State the benefit of all inferences a jury could reasonably draw from the evidence. State v. Ward, 148 Wn.2d 803, 815, 64 P.3d 640 (2003). And we give circumstantial evidence the same weight as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Bare possession is not enough to support an inference of intent to deliver. Evidence of an additional factor is required. The corroborating evidence must be substantial. State v. Brown, 68 Wn. App. 480, 485, 843 P.2d 1098 (1993). But it may be circumstantial. State v. Gosby, 85 Wn.2d 758, 766, 539 P.2d 680 (1975); State v. Zunker, 112 Wn. App. 130, 135, 48 P.3d 344 (2002).
Here, the State’s police witnesses testified that this sort of signaling behavior is a typical drug deal ritual. And the evidence showed that Mr. Silva had in his possession a significant quantity of cocaine, even though there had been no direct contact between him and the driver of the pickup. Quantity of drug is not, by itself, proof of intent to deliver. But, given the circumstances here, the evidence that the defendant had a significant quantity of the drug before the transaction would support an inference that he intended to be on the delivering end of the deal.
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 .
SCHULTHEIS and KATO, JJ., concur.