State of Washington v. Jamie L. Waltari ( 2019 )

FILED
DECEMBER 12, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 36308-2-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JAMIE L. WALTARI, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — Jamie Waltari appeals after his convictions for three
counts of delivery of a controlled substance and one count of possession of a controlled
substance with intent to deliver, all with school bus route stop enhancements. The State
cross appeals, asserting the trial court lacked authority to impose a drug offender
sentencing alternative (DOSA) sentence. We affirm.
FACTS
In September 2016, Detective Bryson Aase learned through a confidential
informant (CI) that Jamie Waltari was selling methamphetamine. The CI told Detective
Aase she would assist with a controlled purchase of methamphetamine from Mr. Waltari
in exchange for consideration of pending drug charges against her.
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Detective Aase and other detectives arranged a controlled purchase of
methamphetamine from Mr. Waltari. The CI agreed to meet with Mr. Waltari at his
residence.
Prior to the meeting, detectives searched the CI to confirm the absence of cash and
contraband. Detectives fitted the CI with a body wire, gave her $200 in recorded
currency and directed her to purchase 3.5 grams of methamphetamine. The CI went to
Mr. Waltari’s residence and purchased 7 grams of methamphetamine from him. The
additional amount was fronted to the CI by Mr. Waltari, with the expectation of additional
payment later. The CI then met with detectives and turned over the methamphetamine.
Following this, Detective Aase set up another controlled purchase. The CI was
again given a body wire and $200 in recorded currency. Half of the money given to the
CI was to pay for the previously fronted drugs. At the meeting inside his residence, Mr.
Waltari told the CI he did not have any methamphetamine. But he did take $100 from the
CI to compensate him for the fronted drugs. Mr. Waltari discussed how he would
purchase 16 ounces of methamphetamine for sale, break it into smaller quantities, and
make a profit of $25 for each one-eighth of an ounce he sold. The CI later admitted she
used methamphetamine inside Mr. Waltari’s residence during the controlled purchase.
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Detective Aase set up two additional controlled purchases between the CI and Mr.
Waltari. On each of these occasions, the CI was given a sum of money—$150 the first
time and $140 the second time, and a body wire. Each time, the CI used the money to
purchase methamphetamine from Mr. Waltari and then gave the purchased drugs to
detectives.
On January 25, 2017, Deputy Joseph Snyder saw Mr. Waltari driving with a
broken tail light. Deputy Snyder eventually stopped Mr. Waltari for the infraction. He
learned that Mr. Waltari’s license was suspended and arrested him. A second deputy
searched Mr. Waltari incident to arrest and discovered a small amount of
methamphetamine in his pocket. The deputies also discovered two cell phones and $240
in cash in Mr. Waltari’s pocket. A third deputy deployed a certified K-9, which alerted to
the presence of narcotics in Mr. Waltari’s vehicle. A search warrant was issued, and
5.4 grams, or almost one-fifth of an ounce, was found in a bag under a seat cover.
On January 26, 2017, the State charged Mr. Waltari with two counts of delivery of
a controlled substance based on two of the controlled purchases Detective Aase had
arranged and one count of possession of a controlled substance, based on the January
2017 arrest. In September 2017, the State moved to amend the charges to (1) add a third
count of delivery of a controlled substance, based on the third controlled purchase
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arranged by Detective Aase, (2) add an alternative charge of possession with the intent to
deliver based on the January 2017 arrest, and (3) allege an enhancement that each of the
three deliveries took place within 1,000 feet of a school bus route stop designated by the
district. In early October 2017, the trial court granted the State’s motion.
In December 2017, the State filed a second motion to amend the charges. The
State moved to amend the count of possession with intent to deliver to include a special
allegation that the “delivery” occurred within 1,000 feet of a school bus route stop
designated by the district. In March 2018, the trial court granted the State’s second
motion to amend without objection. In May 2018, the State moved to amend for a third
time. The third motion sought to correct a scrivener’s error, changing the word
“delivery” to “possession.” The trial court granted the State’s third motion to amend
without objection.
On July 5, 2018, the case proceeded to a bench trial. Both Detective Aase and the
CI testified about the controlled purchases. In addition, Detective Aase testified, based
on his experience and training, that separate packaging of methamphetamine, having a
significant sum of cash, and having multiple cell phones were all indicative of trafficking
methamphetamine. Detective Carpenter testified, based on his experience and training,
narcotics meant for personal use were often hidden on a defendant’s body and that a
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second quantity hidden separately was usually indicative of an intent to deliver. Detective
Carpenter further testified that 5.4 grams of methamphetamine was not usually an amount
carried for personal use and the amount was indicative of a delivery.
The trial court found that the State had proved all charges and enhancements
beyond a reasonable doubt. The court granted Mr. Waltari’s request for a DOSA
sentence and sentenced him to 57 months of incarceration.
Mr. Waltari timely appealed, and the State timely cross-appealed.
ANALYSIS
Mr. Waltari raises four arguments: (1) the trial court erred by allowing the State to
amend the charges three times, (2) there is insufficient evidence to sustain his conviction
for the January 2017 charge, (3) the trial court erred in finding the State proved the school
bus route stop enhancement for the January 2017 charge, and (4) there is insufficient
evidence to sustain his conviction for the three controlled purchase charges. In its cross
appeal, the State asserts the trial court lacked authority to impose a DOSA sentence. We
address these arguments in the order raised by the parties.
A. ALLOWING THE STATE TO AMEND THREE TIMES
Mr. Waltari contends the trial court erred in allowing the State to amend the
charges three times. However, Mr. Waltari did not preserve this issue by objecting
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below to the amendments. We may decline to review an unpreserved claim of error.
RAP 2.5(a). Because reviewing the claimed error is simpler than explaining why the
error is not manifest, we exercise our discretion and review the purported error.
Mr. Waltari claims the trial court violated his due process rights under article I,
section 22, of the Washington Constitution. The section reads: “In criminal prosecutions
the accused shall have the right . . . to demand the nature and cause of the accusation
against him . . . .” CONST. art. I, § 22. He argues, by allowing amendments after the
original charges were filed, and in the absence of any new information after the time
charges were filed, the trial court violated this right. Mr. Waltari’s argument is not
supported by any authority.
CrR 2.1 allows the State to amend charges “at any time before verdict or finding if
substantial rights of the defendant are not prejudiced.” Mr. Waltari fails to explain how
the amendments, all occurring well before trial, prejudiced his ability to mount a defense.
This failure is fatal to his argument. We conclude the trial court did not violate Mr.
Waltari’s constitutional right to be informed of the charges against him by granting the
State’s amendments well before trial.
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B. SUFFICIENCY OF EVIDENCE TO SUSTAIN CONVICTION FOR JANUARY 2017
CHARGE
Mr. Waltari argues there is insufficient evidence to sustain his conviction for the
January 2017 charge of possession with intent to deliver. We disagree.
In a criminal case, the State must provide sufficient evidence to prove each
element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). When a defendant challenges the
sufficiency of the evidence, the proper inquiry 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. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068
(1992). “[A]ll reasonable inferences from the evidence must be drawn in favor of the
State and interpreted most strongly against the defendant.” Id. Furthermore, “[a] claim of
insufficiency admits the truth of the State’s evidence and all inferences that reasonably
can be drawn therefrom.” Id. In a challenge to the sufficiency of the evidence,
circumstantial evidence and direct evidence carry equal weight. State v. Goodman, 150
Wash. 2d 774, 781, 83 P.3d 410 (2004). On issues of conflicting testimony, credibility of
witnesses, or persuasiveness of the evidence, this court defers to the trier of fact. State v.
Thomas, 150 Wash. 2d 821, 874-75, 83 P.3d 970 (2004).
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To prove possession with intent to deliver, the State must show, beyond a
reasonable doubt, the defendant not only possessed the narcotics, but also intended to
deliver the narcotics at that time or at some point in the future. State v. Davis, 79 Wn.
App. 591, 594, 904 P.2d 306 (1995). Simple possession, even in large quantities, is not
enough to infer an intent to deliver. State v. Hutchins, 73 Wash. App. 211, 216, 868 P.2d
196 (1994). “An officer’s opinion of the quantity of a controlled substance normal for
personal use is insufficient to establish, beyond a reasonable doubt, that a defendant
possessed the controlled substance with an intent to deliver.” Id. at 217. An additional
factor, such as possessing a significant quantity of cash, is required to establish intent to
deliver. State v. Campos, 100 Wash. App. 218, 222-23, 998 P.2d 893 (2000).
Mr. Waltari was arrested in January 2017 carrying two relatively small quantities
of methamphetamine. The quantities were hidden separately—one in his pocket and the
other in a bag under a seat cover. He also had $240 in cash and two cell phones. The
detectives testified that hiding drugs separately, a large quantity of cash, and multiple cell
phones all indicate a suspect’s intent to sell narcotics. Individually considered, the
relatively small amount of methamphetamine and cash are insufficient to sustain the
conviction. But together with evidence that Mr. Waltari had two cell phones and had
hidden the methamphetamine separately, there was sufficient evidence for a trier of fact
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to find beyond a reasonable doubt that he possessed the controlled substance with intent
to deliver.
C. SCHOOL BUS ROUTE STOP ENHANCEMENT
Mr. Waltari argues the trial court erred by finding the State proved the school bus
route stop enhancement for the January 2017 charge. He argues he was not voluntarily in
the prohibited zone, but instead was involuntarily stopped in the prohibited zone by law
enforcement. To support his argument, he relies on State v. Eaton, 143 Wash. App. 155,
159, 177 P.3d 157 (2008), aff’d, 168 Wash. 2d 476, 229 P.3d 704 (2010). We disagree with
Mr. Waltari’s argument and distinguish Eaton.
In Eaton, the defendant was arrested for driving under the influence and taken to
jail. 168 Wash. 2d at 479. Once there, officers searched him and found methamphetamine
in his sock. The State charged him with driving under the influence, possession of a
controlled substance, and enhanced the latter by alleging that possession occurred within
a county jail. The defendant was convicted of both counts and received an enhanced
sentence. On appeal, the Supreme Court reversed the enhancement, and held that the
zone enhancement did not apply because the defendant was not voluntarily within the
prohibited zone. Id. at 487-88.
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Eaton is easily distinguished. Here, Mr. Waltari was voluntarily in the prohibited
school bus route stop zone when he was stopped and arrested. We conclude the trial
court did not err by applying the school bus route stop enhancement to the January 2017
charge.
D. SUFFICIENCY OF EVIDENCE TO SUSTAIN DELIVERY CONVICTIONS BASED ON
THE THREE CONTROLLED PURCHASES
Mr. Waltari argues there is insufficient evidence to sustain his three delivery of
controlled substance convictions because the CI was not credible. Whether the CI was
credible or not, we disagree with his argument.
As we previously noted, the State must provide sufficient evidence to prove each
element of the charged offense beyond a reasonable doubt. Jackson, 443 U.S. at 316.
When a defendant challenges the sufficiency of the evidence, the proper inquiry 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.” Salinas, 119 Wash. 2d at
201. On issues of conflicting testimony, credibility of witnesses, or persuasiveness of the
evidence, this court defers to the trier of fact. Thomas, 150 Wash. 2d at 874-75.
Mr. Waltari’s argument focuses on the fact that the CI was using
methamphetamine during at least one of the controlled purchases and was, thus, not
credible. First, we do not decide issues of credibility. Second, the purchases were
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controlled and audibly recorded, thus making the credibility of the CI irrelevant. The fact
the CI left with money and no drugs and returned with drugs and no money is
circumstantial evidence that Mr. Waltari sold methamphetamine to the CI. The audible
recordings are direct evidence of this. Regardless of the CI’s credibility, there is ample
evidence to sustain Mr. Waltari’s convictions based on the three controlled purchases.
E. DOSA ELIGIBILITY
By cross appeal, the State argues the trial court committed legal error when it
imposed a DOSA sentence. We note that the State is allowed to appeal a DOSA sentence
if the appeal involves purported legal error. State v. Williams, 149 Wash. 2d 143, 147, 65
P.3d 1214 (2003). We review claims of legal error de novo. In re Post-Sentence Review
of Bercier, 178 Wash. App. 148, 150, 313 P.3d 491 (2013).
RCW 9.94A.660 sets forth conditions that an offender must meet to be eligible for
a DOSA sentence. One condition requires that the offender not be convicted of a “violent
offense.” See RCW 9.94A.660(1)(a).
Ordinarily, the maximum penalty for delivery of a controlled substance, or
possession with intent to deliver a controlled substance, is 10 years. See
RCW 69.50.401. However, pursuant to RCW 69.50.435(1), the maximum period of
incarceration is doubled to 20 years if the delivery or possession occurred within a
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protected zone. Here, Mr. Waltari’s maximum period of incarceration for each of his four
convictions is 20 years.
A class A felony is a violent offense. See RCW 9.94A.030(56)(a)(i). Therefore, if
the present convictions include a class A felony, Mr. Waltari is ineligible for a DOSA
sentence. The State, citing RCW 9.94A.035(1), argues that each of Mr. Waltari’s
convictions are class A felonies because each is punishable for up to 20 years. We
disagree.
RCW 9.94A.035(1) provides:
For a felony defined by a statute of this state that is not in Title 9A
RCW, unless otherwise provided . . . (1) If the maximum sentence of
imprisonment authorized by law upon a first conviction of such felony is
twenty years or more, such felony shall be treated as a class A felony for
purposes of this chapter.
(Emphasis added.)
RCW 69.50.401(2)(b) explicitly lists delivery of a controlled substance
(methamphetamine), and possession of a controlled substance with intent to deliver
(methamphetamine) as class B felonies. Because the legislature has explicitly listed these
crimes as class B felonies, the “unless otherwise provided” phrase italicized above
controls. We conclude that Mr. Waltari’s convictions are not violent offenses because the
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convictions are class B felonies, not class A felonies. The trial court did not commit legal
error by imposing a DOSA sentence.
Affirmed.
A majority of the panel has determined 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.
WE CONCUR:
Pennell, J.
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