To convict a defendant of possession of a controlled substance with intent to deliver, the state must prove the defendant possessed the controlled substance and had an intent to deliver it to someone else. Whether the defendant actually possessed the controlled substances is often an issue. A defendant recently appealed his convictions for possession with intent to deliver because the drugs were found in his wife’s purse.
According to the unpublished opinion of the appeals court, the police saw the defendant put a backpack in a vehicle registered to his father-in-law and his wife put a purse in the area of the front passenger seat. The defendant drove. The police subsequently conducted a traffic stop.
The officers observed a purse in the front floorboard. The zipper was open and they could “clearly see a plastic bag containing what they believed to be methamphetamine. They also saw a glass pipe. They got a warrant to search both the car and the purse. They found methamphetamine, heroin, scales, baggies, and $195 cash. There were two phones mounted on the driver’s side and the wife was carrying another.
The state charged them both with possession of heroin with intent to deliver and possession of methamphetamine with intent to deliver, alleging the defendant acted either as principal or as an accomplice to his wife.
A detective testified at the defendant’s trial that methamphetamine and heroin were generally sold to individual users by the gram. He also testified the baggies were consistent with a narcotics dealer. The drugs found in the vehicle were valued at around $15,000.
Detectives testified that drug deals often happened inside a vehicle in a public parking lot. Traffickers often use other people’s vehicles and may have someone else drive. They also testified that having multiple cell phones is common for drug traffickers.
The jury found the defendant guilty of both charges and he appealed. He argued there was insufficient evidence to support his convictions and the state had not shown that he intended to deliver the drugs or that he acted as an accomplice to his wife.
The defendant argued the drugs were in his wife’s purse and there was no evidence he knew the amount of drugs or about the scales and baggies.
A person has constructive possession of an object when they have “dominion and control over” it, meaning it “may be reduced to actual possession immediately.” State v. Jones. Courts may also consider if the defendant had control over the premises where the object was located, even if that control was not exclusive. State v. Listoe.
The defendant was driving the vehicle and was physically near the open purse. The appeals court concluded that a rational jury could determine he had dominion and control over the vehicle, so there was sufficient evidence to support a finding he had constructive possession over the contents of the purse.
Evidence of intent to deliver is generally circumstantial. Possession alone is generally not enough, but a factfinder can infer intent to deliver if the defendant has possession of a significant amount of the control substance and there is at least one other factor, such as sale paraphernalia.
The appeals court noted that the quantities of methamphetamine and heroin in the purse exceeded the amount ordinarily kept for personal use. The methamphetamine was in multiple bags. The defendant also had constructive possession of baggies, three scales, and three cell phones, when there were only two adults in the vehicle. A detective testified that users generally buy individual grams and possession of baggies is consistent with narcotics dealing. Detectives also testified that drug dealers often have more than one cell phone. The appeals court concluded that the state had presented evidence of the defendant’s possession of a large amount of controlled substances and multiple additional factors that suggested intent to deliver.
The defendant also argued the state had not presented any evidence he knew his wife’s intent or associated himself with her crimes.
To prove accomplice liability, the state must prove the defendant knew they were promoting or facilitating the other person in the commission of the crime. The appeals court concluded that the defendant’s constructive possession of the significant quantity of controlled substances, multiple cell phones, scales, and small baggies was sufficient for a reasonable person to infer he knew of his wife’s intent to deliver. The state presented evidence other than the defendant’s relationship with his wife to show his knowledge that he was promoting or facilitating the crime. Additionally, there was testimony drug dealers often have someone drive them. The appeals court concluded a rational jury could infer the defendant had knowingly facilitated the crime by driving his wife.
The appeals court affirmed the convictions, but remanded the case to the trial court with instructions to strike the crime victim penalty assessment due to the defendant’s indigency.
If you are facing drug charges, a knowledgeable Washington criminal defense attorney can review your case and work with you to protect your rights. Set up a consultation with Blair & Kim, PLLC, at (206) 622-6562 for a consultation.