State Of Washington v. William G. Canning ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
February 13, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50160-1-II
Respondent,
UNPUBLISHED OPINION
v.
WILLIAM GENE CANNING,
Appellant.
MAXA, C.J. – William Canning appeals his conviction of unlawful possession of a
controlled substance (methamphetamine) with intent to deliver and the imposition of certain
legal financial obligations (LFOs).1 We hold that (1) sufficient evidence supports the intent to
deliver element of his conviction; (2) as the State concedes, the trial court erred in imposing a
discretionary LFO (jury demand fee) without assessing his ability to pay and the criminal filing
fee must be stricken; and (3) the judgment and sentence contains an incorrect offender score.
Accordingly, we affirm Canning’s conviction but remand for the trial court to strike the jury
demand fee and criminal filing fee and to correct Canning’s offender score in the judgment and
sentence.
FACTS
In July 2016, officers arrested Canning for not having a valid driver’s license and for
failing to register the pickup he was driving. In a search incident to arrest, they seized a
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Canning also was convicted of unlawful possession of a controlled substance (heroin), but he
does not appeal that conviction.
No. 50160-1-II
container from Canning’s front pants pocket. Inside the container were three baggies of
suspected methamphetamine and one baggie of suspected heroin. Canning also had $125 in
cash. Officers recovered a smoking pipe from the truck, but Canning denied that the pipe
belonged to him.
The State charged Canning with unlawful possession of a controlled substance,
methamphetamine, with intent to deliver, and unlawful possession of a controlled substance,
heroin.
Sergeant Mark Langlois testified without objection that he suspected Canning was
distributing rather than personally using the large quantity of methamphetamine. He explained
that a typical user amount is one gram or less and that he suspects a person is distributing if the
person possesses over three grams of methamphetamine. He also stated that how the drugs were
packaged and the amount of drugs seized convinced him that Canning was distributing.
Detective Benjamin Mortensen testified without objection that anytime a person
possesses 3.5 grams of methamphetamine or more, he suspects distributing. He also testified
that the overall weight of the drugs, how they were packaged, and that Canning had $125 told
him that Canning was distributing.
A forensic scientist testified that that the substance in the three bags was
methamphetamine. She also stated that the bags of methamphetamine weighed 1 gram, 5.2
grams, and 6.8 grams, respectively.
A jury found Canning guilty of possession of methamphetamine with intent to deliver.
The State argued that Canning’s offender score was 5, but Canning argued that it was 3. The
parties eventually agreed to an offender score of 3 because it did not change Canning’s
sentencing ranges. But the judgment and sentence was not corrected to reflect this agreement.
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No. 50160-1-II
The trial court stated that it was imposing financial obligations as required by statute. Two of the
LFOs that the court imposed were a jury demand fee of $250 and a criminal filing fee of $200.
Canning appeals his conviction and the imposition of the LFOs.
ANALYSIS
A. SUFFICIENCY OF EVIDENCE
Canning argues that the State failed to present sufficient evidence to prove that he
intended to deliver the methamphetamine he possessed. He argues that there was no evidence
other than the quantity of drugs to support the intent to deliver element of the offense. We
disagree.
1. Standard of Review
The test for determining sufficiency of the evidence is whether, after viewing the
evidence in the light most favorable to the State, any rational trier of fact could have found guilt
beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014). In a
sufficiency of the evidence claim, the defendant admits the truth of the State’s evidence and all
reasonable inferences drawn from that evidence. Id. at 106. Credibility determinations are made
by the trier of fact and are not subject to review. State v. Miller, 179 Wn. App. 91, 105, 316 P.3d
1143 (2014). Circumstantial and direct evidence are equally reliable. Id.
2. Legal Principles
In order to prove unlawful possession of a controlled substance with intent to deliver, the
State had to prove (1) unlawful possession (2) of a controlled substance (3) with the intent to
deliver. RCW 69.50.401(1).
As a general rule, “[m]ere possession of a controlled substance, including quantities
greater than needed for personal use, is not sufficient to support an inference of intent to deliver.”
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No. 50160-1-II
State v. O’Connor, 155 Wn. App. 282, 290, 229 P.3d 880 (2010). But a finder of fact can infer
intent to deliver from possession of a significant amount of a controlled substance plus at least
one additional factor. Id. Several courts have upheld convictions for intent to deliver based on a
large amount of drugs and additional evidence. See, e.g., State v. Hotchkiss, 1 Wn. App. 2d 275,
281-82, 404 P.3d 629 (2017) (8.1 grams of methamphetamine and $2,150 sufficient), review
denied, 190 Wn.2d 1005 (2018); O’Connor, 155 Wn. App. at 291 (a large amount of marijuana,
a sophisticated grow operation, and a scale sufficient); State v. Simpson, 22 Wn. App. 572, 575-
76, 590 P.2d 1276 (1979) (quantity of drugs and nature of packaging sufficient); State v. Harris,
14 Wn. App. 414, 418-19, 542 P.2d 122 (1975) (quantity of drugs, value and a scale sufficient).
3. Analysis
Here, both officers testified that the amount of methamphetamine that Canning possessed
was far more than a typical user would possess. This evidence supported an inference that
Canning intended to deliver the drug. Further, three additional factors supported the jury’s
finding that Canning possessed the methamphetamine with the intent to deliver.
First, the methamphetamine was packaged in three separate baggies. Both officers
testified that if someone is buying methamphetamine in bulk, the drugs usually would be in one
bag, not three bags of different weights, and typically would weigh less than 3.5 grams. A
reasonable inference is that the methamphetamine was packaged for delivery rather than for
personal use.
Second, Canning was not in possession of any devices that would allow him to use the
methamphetamine. Although officers found a pipe in the truck, Canning denied that it belonged
to him. The absence of any device to use methamphetamine supports a reasonable inference that
Canning was delivering the methamphetamine rather than using it himself.
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No. 50160-1-II
Third, Canning possessed a relatively small amount of cash. Sergeant Langlois testified
that when he apprehends someone with a small amount of money and a large amount of drugs,
that person likely just spent all his money to buy the drugs. This evidence supports a reasonable
inference that Canning had just replenished his drug supply for delivery.
Viewed in a light most favorable to the State, the evidence supports the jury’s finding that
Canning possessed the methamphetamine with the intent to deliver it. Accordingly, we hold that
the evidence was sufficient to convict Canning of possession of methamphetamine with intent to
deliver.
B. LEGAL FINANCIAL OBLIGATIONS
1. Discretionary LFO
Canning argues, and the State concedes, that the trial court improperly failed to assess his
ability to pay before imposing the jury demand fee – a discretionary LFO. State v. Lundy, 176
Wn. App. 96, 107, 308 P.3d 755 (2013) (jury demand fee is discretionary cost). We accept the
State’s concession that the trial court improperly imposed the jury demand fee and that the fee
should be stricken.
2. Criminal Filing Fee
Canning argues, and the State concedes, that the criminal filing fee must be stricken
based on the 2018 amendments to the LFO statutes. RCW 36.18.020(2)(h) now provides that the
trial court cannot impose a criminal filing fee on an indigent defendant. This statute applies
prospectively to cases pending on direct appeal when the statute was amended. State v. Ramirez,
191 Wn.2d 732, 749-50, 426 P.3d 714 (2018). We accept the State’s concession that criminal
filing fee should be stricken.
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No. 50160-1-II
C. OFFENDER SCORE
Canning argues that his judgment and sentence improperly lists his offender score as 5
when it should have been 3. We accept the State’s concession that this was a scrivener’s error,
as the record clearly reflects the parties’ agreement that the offender score was 3.
CONCLUSION
We affirm Canning’s conviction for possession of a controlled substance
(methamphetamine) with intent to deliver, but we remand for the trial court to strike the jury
demand fee and criminal filing fee and to correct Canning’s offender score in the judgment and
sentence.
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 in accordance with RCW
2.06.040, it is so ordered.
MAXA, C.J.
We concur:
JOHANSON, J.
LEE, J.
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