STATE v. SIMMONS, 43522-1-I (Wash.App. 12-24-2001)

No. 43522-1-I.The Court of Appeals of Washington, Division One.
Filed: December 24, 2001. UNPUBLISHED OPINION

Appeal from Superior Court of King County, No. 98-1-04178-8, Hon. Charles W. Mertel, October 6, 1998, Judgment or order under review.

Counsel for Appellant(s), Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.

Robert A. Weppner III, 2133 3rd Ave Ste 108, Seattle, WA 98121.

Eric Broman, Nielsen Broman Assoc. Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.

Counsel for Respondent(s), Jeffrey C. Dernbach, Room W554, 516 3rd Ave, Seattle, WA 98104-2312.

PER CURIAM.

Hollis Simmons was convicted of one count of delivering cocaine together with another within 1,000 feet of a school bus route stop. He appeals, arguing that the evidence was insufficient to prove he had knowledge that the substance given to the undercover officer was a controlled substance. The State also appeals, arguing that the trial court erred in finding that Simmons’ prior juvenile guilty plea statement created a contractual obligation between the State and Simmons; in finding that Simmons was entitled to specific performance of the juvenile guilty plea statement; and in excluding six of Simmons’ seven prior juvenile convictions from his offender score. Because the evidence established that Simmons knew the substance Pioli received in the drug transaction was a controlled substance, we affirm his conviction. Because we are compelled to do so by the decision in State v. Smith, 144 Wn.2d 665, 30 P.3d 1245 (2001), we hold that the trial court correctly excluded the contested juvenile convictions from the offender score.

FACTS
Officer Joseph Pioli was walking in the Denny regrade area of Seattle, working in a drug buy-bust operation as an undercover buyer. He asked Hollis Simmons whether Simmons had two for 30 (two rocks of cocaine for $30). Simmons answered “I only got one.” Pioli asked how much, and Simmons replied, “Twenty, what do you think?” The two began to walk together, and Simmons asked if Pioli was a police officer. Pioli said no. Simmons then asked whether Pioli had a pipe, and Pioli showed him a fake cocaine pipe. Simmons said “ok,” stopped, and held out his hand. Pioli saw that Simmons was holding a small ball of paper and said “Forget it.” Simmons then said, “It’s in the paper,” whereupon Pioli opened the paper and verified that there was nothing inside. He again told Simmons to forget it and began to walk away. Pioli testified that at this point, Simmons called to him, came jogging up, and said, “I’ll take care of you.” Pioli said he would not give Simmons anything and Simmons replied, “That’s okay; I don’t smoke.” Simmons testified that Pioli called him back when Pioli saw two youths (later identified as Griffin and Jackson) approaching and asked him whether they sold drugs.

Pioli testified that Simmons asked Griffin and Jackson, “Can you hook my partner up with two for 30?” and said, “He’s with me” and, “Can you juke me up?” Simmons testified he was merely talking with Griffin and Jackson about whether they knew his brother and where they went to school. The four of them began to walk together, Simmons and Griffin ahead and Jackson and Pioli behind. Griffin dropped back to walk with Pioli and Jackson, leaving Simmons a short distance ahead. Pioli showed them pre-recorded buy money and Jackson gave him two rocks of what appeared to be cocaine. Pioli gave the money to Griffin, gave the good buy signal, and walked away. He testified that Jackson, Griffin, and Simmons were still together when he left.

Simmons testified that he knew Griffin and Jackson were drug dealers by the way they dressed, but that he did not talk to them about a drug deal. He said he did not see the exchange, but he knew that Pioli wanted cocaine and that a drug transaction was occurring. The arresting officers testified that Simmons stayed with Griffin and Jackson after Pioli left.

They were together when they were arrested.

DECISION 1. Sufficiency of the Evidence
Simmons argues that the evidence was insufficient to prove that he knew beyond a reasonable doubt that the substance delivered to Pioli was a controlled substance and was in fact cocaine. He asserts that he was never in possession of the substance and did not actually see it. He also asserts the State did not prove he knew Griffin and Jackson, or that he knew what a controlled substance, and specifically cocaine, looked like.

When the sufficiency of the evidence is challenged, the reviewing court must determine whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could find the essential elements of the crime charged beyond a reasonable doubt.[1] A claim of insufficiency admits the truth of all the State’s evidence, and of all inferences reasonably flowing from it.[2] Guilty knowledge, or an understanding of the identity of the substance delivered, is an essential element of delivery of a controlled substance.[3] This element is established by proof that the defendant entered into a contract to deliver a controlled substance and delivered it, since it is impossible to contract for delivery of a controlled substance without knowing what one is doing.[4]

The second amended information charged Simmons with unlawfully and feloniously delivering cocaine together with another, knowing it was a controlled substance.[5] The trial court gave the following accomplice instruction:

A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of a crime, he or she either:

(1) solicits, commands, encourages, or requests another person to commit the crime; or

(2) aids or agrees to aid another person in planning or committing a crime.

The word “aid” means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.

The evidence adduced at trial, when viewed in the light most favorable to the State, shows that when Pioli asked about buying two for 30, Simmons responded in a manner that indicated knowledge that Pioli wanted two rocks of cocaine. He said, “I only got one”, and showed Pioli a small ball of paper instead of actual cocaine. After Pioli started to leave, Simmons called out to him and said he would take care of him. Simmons approached Griffin and Jackson, vouching for Pioli as his partner and asking them to give Pioli “two for 30” and to “juke” him up. Simmons stayed with the other three as they conducted the exchange, and remained with Griffin and Jackson after Pioli left. Further, Simmons testified that he knew Pioli was asking for two rocks of cocaine for $30, and that a drug transaction was occurring while the four walked along. The evidence is sufficient to prove that Simmons solicited and assisted in an exchange of money for cocaine between Griffin, Jackson and Pioli.

2. Offender Score
The State argues that the trial court erred when it excluded Simmons’ prior juvenile adjudications from the calculation of his offender score.

The State contends the trial court erred when it found that language in the juvenile guilty plea statements created contracts to exclude the adjudications from the offender score. We adhere to our holding in State v. McRae[6] and conclude that Simmons’ juvenile guilty plea statements did not create contracts governing use of those convictions in future cases.

The State also argues that the amended sentencing statute is not an ex post facto law and that the trial court erred when it refused to apply it in this case. After this appeal was filed, our Supreme Court held in Smith[7] that “washed out” juvenile offenses could not be revived for the purpose of calculating an offender score. Before 1997, under former RCW 9.94A.030, the criminal history used to calculate an adult’s offender score did not include prior juvenile adjudications unless the defendant was 15 or older when those offenses were committed. In 1997, the Legislature amended the statute so that these juvenile adjudications are now counted in the offender score. In 2000, the Legislature provided that “[a]ny sentence imposed [under the SRA] shall be determined in accordance with the law in effect when the current offense was committed.”[8] But in Smith, the Supreme Court determined that this law was not retroactive and that juvenile offenses that “washed out” under prior law could not be revived.

Therefore, the trial court correctly excluded Simmons’ prior juvenile convictions from its calculation of his offender score.

Affirmed.