Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 66194-9-I
                      Respondent,           )
                                            )       DIVISION ONE
              v.                            )
                                            )       UNPUBLISHED OPINION
OSCAR SANCHEZ,                              )
AKA REYNALDO MEDINA,                        )
                                            )
                      Appellant.            )       FILED: March 5, 2012

       Grosse, J.  --  Evidence is sufficient if, when viewed in a light most 

favorable to the State, it permits any rational trier of fact to find the elements of 

the crime beyond a reasonable doubt.  Here, the evidence supporting Oscar 

Sanchez's convictions of delivery of a controlled substance and possession of a 

controlled substance with intent to deliver meets this test of sufficiency.  

Accordingly we affirm.

                                        FACTS

       During the evening of January 22, 2010, while working undercover buying 

street-level narcotics, Seattle Police Officer Raul Vaca noticed a hand-to-hand 

transaction occurring between a person later identified as appellant Oscar 

Sanchez and another person.  When the transaction was complete, Officer Vaca 

crossed the street and asked Sanchez if he had any "piedra," which is a Spanish 

street term meaning crack cocaine.  Sanchez told Officer Vaca that he did have 

piedra and asked him how much he wanted.  Then Sanchez and the officer 

walked slowly down the sidewalk and stepped into a doorway.  Sanchez opened  

No. 66194-9-I / 2

his hand and Officer Vaca saw a brown napkin.  Inside the napkin was a clear 

plastic baggie containing pieces of crack cocaine.  Sanchez handed the drugs to 

Officer Vaca, who gave Sanchez $50 of buy money in return.  Officer Vaca gave 

a good buy signal to the other undercover officers on his team and walked away.

       Seattle Police Officer Jason Diamond watched the transaction between 

Officer Vaca and Sanchez from across the street and reported the activities by 

radio to the arrest team.  Officer Diamond saw Officer Vaca and Sanchez walk to 

a doorway, make a hand-to-hand exchange, and then walk away in opposite 

directions on First Avenue.  When Officer Diamond saw Officer Vaca give the 

good buy signal, he radioed Sanchez's description and watched the arrest team 

arrive.  Officer Diamond testified that the person who was placed under arrest 

was the same person he saw make the hand-to-hand exchange with Officer 

Vaca.

       Seattle Police Sergeant Brian Kraus was in charge of the arrest team on 

the night Officer Vaca bought cocaine from Sanchez.  Officer Kraus and his 

arrest team heard Officer Diamond describing the suspect and his location.  

When the arrest team heard that a good buy signal had been given, Officer 

Kraus and two other officers on the arrest team came out of a parking garage.  

Officer Kraus immediately spotted Sanchez based on the description given in the 

radio report.

       Officer Kraus watched Sanchez walk down First Avenue, drop a dark 

object at the base of a tree, and continue walking.  Officer Kraus walked to the 

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No. 66194-9-I / 3

tree and saw that the dropped object was a brown napkin.  Inside the napkin was 

a plastic baggie containing what Officer Kraus believed was crack cocaine.  The 

pieces of cocaine in the baggie were similar in shape and size to the pieces of 

cocaine Officer Vaca bought from Sanchez.  The cocaine in the baggie Officer 

Kraus recovered weighed 4.6 grams.

       The arresting officers recovered $731 from Sanchez's person.  Included 

in the money recovered from Sanchez was the money Officer Vaca used to buy 

the cocaine from him.  The officers also recovered a wad of brown napkins of the 

same style and color as the napkin Officer Kraus found at the base of the tree.

       After a jury trial, Sanchez was convicted of one count of delivery of a 

controlled substance (cocaine) and one count of possession of a controlled 

substance (cocaine) with intent to deliver.

                                      ANALYSIS

Sufficiency of the Evidence

       Sanchez argues that the evidence was insufficient to support his 

convictions on the two counts with which he was charged.  The standard of 

review of a claim of sufficiency of the evidence is well settled:

       Evidence is sufficient if, when viewed in a light most favorable to 
       the State, it permits any rational trier of fact to find the elements of 
       the crime beyond a reasonable doubt.  A claim of insufficient 
       evidence admits the truth of the evidence and all reasonable 
       inferences that can be drawn from that evidence.  Circumstantial 
       evidence and direct evidence are equally reliable, and we must 
       defer to the trier of fact on issues of conflicting testimony, credibility 
       of witnesses, and the persuasiveness of the evidence.[1]

1 State v. Killingsworth, No. 65456-0-I, 2012 WL 255856, at *2 (Wash. Ct. App. 
January 30, 2012) (internal citations omitted).

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No. 66194-9-I / 4

       1.     Delivery of a Controlled Substance

       The Washington Uniform Controlled Substances Act provides, "[I]t is 

unlawful for any person to manufacture, deliver, or possess with intent to 
manufacture or deliver, a controlled substance."2            Cocaine is a controlled 

substance.3   "To find a person guilty of the  unlawful delivery of a controlled 

substance, the trier of fact must find that the defendant (1) delivered a controlled 

substance and (2) knew that the substance delivered was a controlled 
substance."4  "Deliver" means the actual or constructive transfer from one person 

to another of a substance, whether or not there is an agency relationship.5

       Sanchez argues that the evidence was insufficient to prove that he was 

the person who sold the cocaine to Officer Vaca.  We disagree.  Officer Vaca 

identified Sanchez during trial as the person from whom he bought the cocaine.  

Officer Diamond identified Sanchez as the person he saw from across the street 

engage in a hand-to-hand exchange with Officer Vaca.  Officer Kraus identified 

Sanchez as the person the arrest team apprehended after receiving Officer 

Vaca's good buy signal.  The prerecorded buy money was recovered from 
Sanchez when he was arrested.6          The cocaine Officer Vaca purchased from 

Sanchez was wrapped in a brown napkin; the object Officer Kraus saw Sanchez 

drop at the base of a tree was a brown napkin; a wad of brown napkins was 

2 RCW 69.50.401(1).
3 RCW 69.50.206(4).
4 State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997).
5 RCW 69.50.101(f).
6 We defer to the trier of fact's determination as to the credibility, or lack thereof,
of Sanchez's testimony that the money found on his person was money he was 
paid for work as a day laborer.  See Killingsworth, 2012 WL 255856, at *2. 

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No. 66194-9-I / 5

found on Sanchez's person when he was arrested.  The cocaine in the brown napkin 

Sanchez was observed dropping at the base of a tree was in pieces of similar size and 

shape to the cocaine Officer Vaca purchased.  The evidence, viewed in a light 

most favorable to the State, was sufficient to permit a rational trier of fact to find 

the elements of delivery of a controlled substance beyond a reasonable doubt.

       2.     Possession of a Controlled Substance with Intent to Deliver

       With regard to the crime of possession of a controlled substance with 

intent to deliver, an inference of intent to deliver cannot be based solely on 
possession of a controlled substance.7      There must be substantial corroborating 

evidence of intent to deliver in addition to the mere fact of possession of a 
controlled substance.8      At least one additional factor is required, and that 

additional factor must be suggestive of sale as opposed to mere possession.9  

Such additional factors include, for example, packaging and processing 
materials such as baggies, scales, and cutting agents.10                Another factor 

suggestive of sale is evidence that the defendant had conducted a number of 
drug sales prior to his arrest.11    So too is evidence of possession of a large 

quantity of drugs, a scale and a large amount of cash.12             The fact that the 

amount of the controlled substance is small does not invalidate a jury verdict of 
an intent to deliver if corroborating circumstances exist.13

7 State v. Brown, 68 Wn. App. 480, 483, 843 P.2d 1098 (1993).
8 Brown, 68 Wn. App. at 485.
9 State v. Hagler, 74 Wn. App. 232, 236, 872 P.2d 85 (1994).
10 State v. Taylor, 74 Wn. App. 111, 123, 872 P.2d 53 (1994).
11 State v. Thomas, 68 Wn. App. 268, 273, 843 P.2d 540 (1992).
12 State v. Lane, 56 Wn. App. 286, 298, 786 P.2d 277 (1989).
13 State v. Zunker, 112 Wn. App. 130, 137-38, 48 P.3d 344 (2002).

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No. 66194-9-I / 6

       Sanchez argues that the evidence was insufficient to prove his intent to deliver 

because there was insufficient corroborating evidence suggestive of sale as opposed to 

mere possession.  Again we disagree.  Sanchez was observed dropping a package 

containing 4.6 grams of cocaine.  A large amount of money was recovered from 

his person.  Before the controlled buy, Officer Vaca saw Sanchez engage in a 

hand-to-hand transaction with another person.  Other officers saw Sanchez

engage in a hand-to-hand transaction with Officer Vaca.  The evidence, viewed 

in a light most favorable to the State, was sufficient to permit a rational trier of 

fact to find the elements of possession of a controlled substance with intent to 

deliver beyond a reasonable doubt.

Prosecutorial Misconduct

       In his Statement of Additional Grounds (SAG), Sanchez raises claims of 

prosecutorial misconduct.  His arguments relate to his conviction of possession 

of a controlled substance with intent to deliver.

       Prosecutorial misconduct is grounds for reversal if the prosecutor's 
conduct was both improper and prejudicial.14            We evaluate a prosecutor's 

conduct by examining it in the full trial context, including the evidence presented, 

the total argument, the issues in the case, the evidence addressed in argument, 
and the jury instructions.15   A defendant suffers prejudice only where there is a 

substantial likelihood that the prosecutor's misconduct affected the jury's 
verdict.16 Where, as here, the defendant does not timely object to the comment 

14 State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011).
15 Monday, 171 Wn.2d at 675.
16 Monday, 171 Wn.2d at 675.

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No. 66194-9-I / 7

at issue, reversal is required only if the prosecutor's conduct is so flagrant and ill-

intentioned that it caused an enduring and resulting prejudice that could not have been 

neutralized by a curative jury instruction.17

       The prosecutor's comments of which Sanchez complains were made 

during the following argument:

              Ladies and gentlemen, you have received your instructions.  
       It's up to you to draw your own conclusions.  You have heard the 
       testimony.  You've heard what Officer Vaca said.  You've heard 
       what the Defendant was found with.  You have seen all this.  Given 
       all the factors surrounding how these drugs were recovered, the 
       amount, the amount of cash, the fact that the delivery was made, 
       it's pretty clear that he possessed them with intent to deliver.
              Now, Count I, he's guilty; Count II, he is guilty.  You saw 
       today, this morning, you had one instruction read to you that may 
       seem confusing, maybe isn't clear about if you find him not guilty of 
       Count II, there's a lesser included.  What this means is that if you 
       don't believe he had the intent to distribute on Count II, but you still 
       believe he possessed the drugs, the 4.6 grams, you can find him 
       guilty of a lesser included.  That's what the instruction tells you, 
       basically.
              But the first question is:  Do you think he had the intention to 
       deliver the rest of these 4.6 grams.  And if you do, he is guilty of 
       that, and he did have that intent, and he did sell the drugs to 
       Officer Vaca.  So he is guilty of Count I and Count II.  Thank you.

       During rebuttal closing argument, the prosecutor stated:

              The defense story doesn't add up.  What happened here is 
       very clear.  The Defendant was part of mistaken identity, but he 
       was the one who mistook the identity of the undercover officer for a 
       regular street junkie, and that mistake resulted in his arrest and 
       him   being caught for dealing drugs.  He dealt drugs to an 
       undercover officer, and so he's guilty of Count I, and he had more 
       drugs that he had the intent to deliver, and so he is guilty of Count 
       II.  Thank you.

       Sanchez argues that by making these comments, the prosecutor was 

17 State v. Warren, 165 Wn.2d 17, 43, 195 P.3d 940 (2008), cert. denied, 
Warren v. Washington, 129 S. Ct. 2007, 173 L. Ed. 2d 1102 (2009).

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No. 66194-9-I / 8

improperly expressing his personal opinion as to Sanchez's guilt.  A prosecutor may not 

express an independent, personal opinion as to the defendant's guilt.18        However, while it 

is improper for a prosecutor to express his or her personal opinion that the 

defendant is guilty, independent of the testimony in the case, the prosecutor may 

argue from the testimony that the accused is guilty, and that the testimony 
convinces him or her of that fact.19   "In other words, there is a distinction 

between the individual opinion of the prosecuting attorney, as an independent 
fact, and an opinion based upon or deduced from the testimony in the case."20

       It is not uncommon for statements to be made in final arguments 
       which, standing alone, sound like an expression of personal 
       opinion.  However, when judged in the light of the total argument, 
       the issues in the case, the evidence discussed during the 
       argument, and the court's instructions, it is usually apparent that 
       counsel is trying to convince the jury of certain ultimate facts and 
       conclusions to be drawn from the evidence.  Prejudicial error does 
       not occur until such time as it is clear and unmistakable that 
       counsel is not arguing an inference from the evidence,              but is 
       expressing a personal opinion.[21]

       The prosecutor's comments to which Sanchez objects, evaluated in the 

context of the entire trial, were not improper expressions of the prosecutor's 

personal opinion as to Sanchez's guilt.  Rather, the comments were proper 

inferences from the evidence and proper arguments that Sanchez is guilty based 

on the evidence presented.  Further, we note that the jury was instructed that 

statements of the lawyers are not evidence and that the jury must disregard any 

18 State v. McKenzie, 157 Wn.2d 44, 53, 134 P.3d 221 (2006).
19 McKenzie, 157 Wn.2d at 53 (quoting State v. Armstrong, 37 Wash. 51, 54, 79 
P. 490 (1905)).
20 Armstrong, 37 Wash. at 54-55.
21 McKenzie, 157 Wn.2d at 53-54 (quoting State v. Papadopoulos, 34 Wn. App. 
397, 400, 662 P.2d 59 (1983)) (emphasis omitted).

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No. 66194-9-I / 9

remark, statement, or argument that is not supported by the evidence or the law as 

stated in the court's instructions.  We presume that the jury followed the court's 
instructions.22

       Next, Sanchez argues that the prosecutor's comments had the effect of 

lessening the State's burden of proof at trial, confused the jury, and persuaded 

the jury to trust the State's judgment as to Sanchez's guilt on Count II, rather 

than its own view of the evidence presented.  We disagree.  The jury was 

instructed that the State had the burden of proving each element of the crimes 

with which Sanchez was charged beyond a reasonable doubt.  Again, we 

presume that the jury followed this instruction.  The prosecutor's comments did 

not lessen that burden or confuse the jury.  The comments were proper 

arguments and inferences based on the evidence presented at trial.

       Affirmed.

WE CONCUR:

22 State v. Koss, 158 Wn. App. 8, 21, 241 P.3d 415 (2010).

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