State Of Washington, V Edward L. Babine, Jr. ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
November 1, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48387-4-II
Appellant,
v.
EDWARD LAWRENCE BABINE, JR., UNPUBLISHED OPINION
Respondent.
LEE, J. — Edward Lawrence Babine, Jr. appeals his conviction for unlawful possession of
a controlled substance. He argues that there was insufficient evidence to support his conviction
because the State failed to prove that the offense occurred in the State of Washington. We disagree
and affirm.
FACTS
Officers arrested Babine following two controlled buys. During a search incident to arrest,
officers located methamphetamine in Babine’s pocket. The State charged Babine in a first
amended information with two counts of delivery of methamphetamine within a school, bus stop,
or other protected zone; and one count of unlawful possession of methamphetamine. The charging
document alleged that all offenses occurred within the State of Washington.
The matter proceeded to a jury trial. During trial, Detective Stephen Forbragd testified that
he worked for the Bremerton Police Department and that a controlled buy was set up after Babine
was identified as a possible drug dealer in the city. The prosecutor asked if the informant used in
No. 48387-4-II
the controlled buy was wearing a wire. Detective Forbragd answered, “No,” because “Washington
State is a two-party state for consent for wires.” Report of Proceedings (RP) (Oct. 28, 2015) at 66.
Detective Billy Renfro from the Bremerton Police Department testified that he assisted
Detective Forbragd with one of the controlled buys. The controlled buy was “at 8 — I believe
[i]t’s 827 - 6th Street, Apartment No. 2.” RP (Oct. 29, 2015) at 165. The prosecutor asked, “That
is in Bremerton?” Detective Renfro replied, “Yes.” RP (Oct. 29, 2015) at 165. The prosecutor
then asked, “In the State of Washington?” The Detective Renfro replied, “Yes.” RP (Oct. 29,
2015) at 165.
A second control buy later occurred at the same address. Babine admitted living at the
Bremerton apartment, but he later moved to a motorhome located on a friend’s property in
Bremerton.
Paul Andrews, a Kitsap County analyst, was called by the State to testify that the controlled
buys occurred in a protected area. Andrews testified about a map he had created of the area around
the apartment. The map showed the apartment was located in Bremerton.
Detective Forbragd testified that approximately two months after the second controlled
buy, Babine “was spotted by another officer,” who then tipped Detective Forbragd off as to
Babine’s location. RP (Oct. 28, 2015) at 80. Detective Forbragd and two other patrol officers
contacted Babine at the location where he was spotted, and Detective Forgragd arrested Babine.
In a search incident to arrest, methamphetamine was found in Babine’s pocket. Babine admitted
at trial that he possessed methamphetamine when he was arrested by Detective Forbragd.
Without objection, the trial court instructed the jury that to convict Babine of possession
of methamphetamine, it must find, beyond a reasonable doubt, that the “act occurred in the State
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of Washington.” Clerk’s Papers (CP) at 62. The jury found Babine not guilty of the two delivery
charges but guilty of the possession charge. Babine appeals the possession of methamphetamine
conviction.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Babine challenges the sufficiency of the evidence to support his possession of
methamphetamine conviction. He argues the State failed to prove the offense occurred in the State
of Washington. We disagree.
A claim of insufficiency of the evidence admits the truth of the State’s evidence and all
reasonable inferences from that evidence. State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470(2010). “[T]he relevant question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d
560 (1979). In determining the sufficiency of the evidence, circumstantial evidence and direct
evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Under RCW 69.50.4013(1), possession of a controlled substance is unlawful. The State
must prove all elements of a charged crime beyond a reasonable doubt. State v. Rich, 184 Wn.2d
897, 903, 365 P.3d 746 (2016). One element is the jurisdictional requirement that the crime
occurred in the state of Washington. RCW 9A.04.030(1). The trial court instructed the jury that
to convict Babine of possession of methamphetamine, it must find, beyond a reasonable doubt,
that the “act occurred in the State of Washington.” CP at 62.
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Here, Detective Forbragd and Detective Renfro testified they were detectives with the
Bremerton, Washington police department. They were investigating Babine for drug dealing
activities in Bremerton. Two controlled buys were set up. A Kitsap County employee testified
the controlled buys occurred in the Bremerton area and submitted a local map. The controlled
buys occurred at an apartment that Babine admitted living in. Babine continued to reside in
Bremerton after moving out of the apartment. Detective Forbragd, who works for the Bremerton
Police Department, along with two patrol officers contacted Babine after another officer tipped
him off to Babine’s location. Detective Forbragd arrested Babine, and Babine admitted Detective
Forbragd was the arresting officer.
Based on the above circumstantial evidence, which we view in a light most favorable to
the State, a rational trier of fact could find beyond a reasonable doubt that Babine’s possession
occurred in Washington. We hold sufficient evidence existed to support Babine’s conviction for
unlawful possession of a controlled substance.
B. APPELLATE COSTS
Babine requests that we exercise our discretion and decline to impose appellate costs,
asserting that he does not have the ability to pay. The State did not respond to Babine’s request.
In light of Babine’s indigent status, and our presumption under RAP 15.2(f) that he remains
indigent “throughout the review” unless the trial court finds that his financial condition has
improved, we exercise our discretion and waive the imposition of appellate costs in this matter.
RCW 10.73.160(1).
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We affirm.
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.
Lee, J.
We concur:
Worswick, P.J.
Sutton, J.
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