Opinion
No. 25515-8-III.
February 5, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-1-03132-1, Harold D. Clarke III, J., entered August 25, 2006.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Schultheis and Kulik, JJ.
The State bears both the burden of production and the burden of persuasion in the trial of a criminal case. On a challenge to the sufficiency of the evidence, we review the record to determine whether the State has met its burden of production only. Whether the evidence presented by the State is persuasive to the requisite burden of persuasion (preponderance of the evidence or beyond a reasonable doubt) is a question for the jury. Here, the State produced ample evidence that the defendant delivered drugs within a school zone, and we therefore affirm his conviction.
FACTS
Deliveries. Spokane Police Department Detective Larry Bowman contracted with Jake Christensen to work as a confidential informant. Mr. Christensen agreed to make some controlled buys to work off criminal charges.
Detective Bowman received reports of suspicious activity at Michael Yaeger's home. He sent Mr. Christensen to Mr. Yaeger's house to buy drugs from Mr. Yaeger. Mr. Christensen knocked on Mr. Yaeger's door, asked for Mike, and said "Alicia" sent him to try to get something. Mr. Yaeger said he did not have pills or anything else and closed the door.
The next day Mr. Christensen called Mr. Yaeger. He asked Mr. Yaeger if he had $60 worth. Mr. Yaeger told Mr. Christensen to come over. He said he could probably get crack cocaine for Mr. Christensen. Mr. Christensen went to Mr. Yaeger's house and gave Mr. Yaeger money. He then waited in Mr. Yaeger's house. Mr. Yaeger left to buy crack cocaine from his contact. Mr. Yaeger returned to the house with the drugs approximately 15 minutes later. He gave the drugs to Mr. Christensen and received some of the drugs for his efforts. Mr. Christensen then left. Mr. Yaeger bought crack cocaine for Mr. Christensen three additional times, using the same procedure each time.
Bail Jumping: Police arrested Mr. Yaeger on September 17, 2004. He appeared in court on November 17. Mr. Yeager signed a scheduling order setting trial and other hearings while in court. The order required Mr. Yaeger to appear at a case scheduling hearing on December 1 at 11:00 am. Mr. Yeager did not appear at the December 1 hearing. He said he did not know he had a hearing that day.
Sentencing. Mr. Yaeger pleaded guilty to third degree possession of stolen property. And a jury found Mr. Yaeger guilty of one count of bail jumping and four counts of delivery of a controlled substance within 1,000 feet of a school bus route stop.
The standard sentencing range for each conviction was:
• 0-365 days for third degree possession of stolen property;
• 12+-16 months for bail jumping; and
• 44+-84 months for each count of delivery of a controlled substance (including enhancements).
Clerk's Papers (CP) at 206. The sentencing judge heard arguments and considered Mr. Yaeger's memo in support of a downward sentence and the State's response to the defendant's motion. The court then imposed the following sentences:
• 365 days on third degree possession of stolen property;
• 16 months on bail jumping; and
• 44+ months on each count of delivery of a controlled substance (including enhancements).
CP at 210. The court ordered the sentences to run concurrently, which resulted in an actual number of 44 months plus 1 day of total confinement. CP at 210.
DISCUSSION
Entrapment
Mr. Yaeger first argues that he presented sufficient evidence to support his entrapment defense and that the jury should have accepted it.
The burden of persuasion for the defense of entrapment is a preponderance of the evidence. State v. Matthews, 132 Wn. App. 936, 940, 135 P.3d 495 (2006) (citing State v. Lively, 130 Wn.2d 1, 13-14, 921 P.2d 1035 (1996)), review denied, 160 Wn.2d 1004 (2007). The burden of production for the defense of entrapment is whether, considering the evidence in the light most favorable to the State, a rational trier of fact could have found that the defendant failed to prove the defense by a preponderance of the evidence. Lively, 130 Wn.2d at 17. We are concerned here on appeal with the burden of production. Nw. Pipeline Corp. v. Adams County, 132 Wn. App. 470, 475, 131 P.3d 958 (2006) (citing State v. Dolan, 118 Wn. App. 323, 331, 73 P.3d 1011 (2003)).
Entrapment requires that (1) the crime originates in the mind of the police or an informant, and (2) the defendant is induced to commit a crime which he was not predisposed to commit. RCW 9A.16.070. The court appropriately instructed the jury on these elements and the necessary burden of persuasion. CP at 130. abiding citizen will commit an offense. State v. Hansen, 69 Wn. App. 750, 764 n. 9, 850 P.2d 571 (1993), rev'd on other grounds sub nom. State v. Stegall, 124 Wn.2d 719, 881 P.2d 979 (1994). But the informant's pressure on a defendant to sell drugs does not amount to entrapment so long as it is "normal" and used to overcome "expected resistance." State v. Smith, 101 Wn.2d 36, 42-43, 677 P.2d 100 (1984).
Mr. Yaeger says that he was not predisposed to deliver a controlled substance. The ready compliance of a person who is given the opportunity to commit a crime by a police officer or agent is evidence of the person's predisposition to commit such a crime. State v. Swain, 10 Wn. App. 885, 889-90, 520 P.2d 950 (1974). A defendant's predisposition to commit an offense may be inferred from his history of involvement in the same type of criminal activity, combined with his ready response to the inducement offer. Hansen, 69 Wn. App. at 764 n. 9.
In State v. Pleasant, the court concluded that substantial evidence supported the jury's factual determination that the defendant had the predisposition to sell marijuana. 38 Wn. App. 78, 81, 684 P.2d 761 (1984). Defendant Jack Pleasant quickly and readily complied with a paid agent's request to procure marijuana. Id. He also had extensive knowledge of the customs and usages of the drug trade. Id. And he exhibited refined knowledge of the going street price for marijuana and of the types of marijuana available on the market. Id.
The court's analysis in Pleasant is helpful here. Mr. Yeager quickly and readily complied with Mr. Christensen's four consecutive requests for drugs. Mr. Christensen would call Mr. Yaeger on the phone and ask if he could get him drugs. Mr. Yaeger would invite Mr. Christensen over to the house. He would then get the drugs minutes later. Also similar to Mr. Pleasant, Mr. Yaeger admitted to a long history of buying and using drugs, including cocaine use: "I have been using drugs since I was in high school in the `60s. . . . I have used drugs off and on for about 37 years . . . — marijuana and cocaine." Report of Proceedings (RP) (June 22, 2006) at 560. And when asked if Mr. Yaeger knew people who would sell him cocaine, he answered: "Yes. There are people all over — selling drugs, okay." RP (June 22, 2006) at 561. He also testified: "Like I told you, this is a clandestine operation. I buy dope, okay, to smoke. . . . Of course I know someone to buy it from." RP (June 27-28, 2006) at 676.
There is, in sum, ample evidence to support the jury's rejection of Mr. Yaeger's entrapment defense.
School Zone Sentence Enhancement
The elements of delivery of a controlled substance are (1) delivery and (2) guilty knowledge. State v. Nunez-Martinez, 90 Wn. App. 250, 253, 951 P.2d 823 (1998). Enhanced penalties follow delivery of a controlled substance within 1,000 feet of a school bus route stop designated by the school district. RCW 69.50.435(1)(c). The defendant may avoid the enhanced penalty if he can show that (1) the prohibited conduct took place entirely within a private residence, (2) no person under 18 years of age or younger was present in such private residence at any time during the commission of the offense, and (3) "the prohibited conduct did not involve delivering . . . with the intent to . . . deliver any controlled substance in RCW 69.50.401 for profit." RCW 69.50.435(4). Mr. Yaeger argues that enhanced penalties are not proper because he proved the affirmative defense.
Again, we review the record to determine whether any rational trier of fact could have convicted the defendant based on the evidence presented when that evidence is viewed in the light most favorable to the State. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993).
Here, the defense's first prong requires that Mr. Yaeger's deliveries take place entirely within his private residence. "Delivery" means
"the actual or constructive transfer from one person to another of a substance, whether or not there is an agency relationship." RCW 69.50.101(f). Because the statute does not define "transfer," we look to its common dictionary meaning. Citing the dictionary, we have previously interpreted "transfer" to mean "to cause to pass from one person or thing to another," as well as "to carry or take from one person or place to another." State v. Campbell, 59 Wn. App. 61, 64, 795 P.2d 750 (1990) (quoting Webster's Third New International Dictionary 2426-27 (1971)).
State v. Martinez, 123 Wn. App. 841, 846-47, 99 P.3d 418 (2004) (footnote omitted). Here, Mr. Yaeger physically handed the drugs to Mr. Christensen inside Mr. Yaeger's home.
But none of these "deliveries" took place entirely within Mr. Yeager's private residence as the statute requires. Mr. Yaeger left his residence every time to purchase the cocaine from a contact who was not inside Mr. Yaeger's home. He then had to return to his residence in order to pass the drugs to Mr. Christensen. The evidence was, then, that the prohibited conduct did not take place entirely within Mr. Yaeger's residence. RCW 69.50.435(4). And moreover, Mr. Yaeger received some of the product as compensation for his efforts. This fails to satisfy the requirement that he not receive a profit. Id. There is, then, ample evidence upon which the jury could have rejected Mr. Yaeger's affirmative defense to the school bus route stop enhancement.
Bail Jumping
Mr. Yaeger next contends that the evidence does not support his conviction for bail jumping because he did not know the date he was supposed to be in court and his lawyer never told him the date.
"Any person having been released by court order or admitted to bail with knowledge of the requirement of a subsequent personal appearance before any court of this state . . . and who fails to appear . . . as required is guilty of bail jumping." RCW 9A.76.170(1). The State must show, and need only show, that the defendant "(1) was held for, charged with, or convicted of a particular crime; (2) had knowledge of the requirement of a subsequent personal appearance; and (3) failed to appear as required." State v. Downing, 122 Wn. App. 185, 192, 93 P.3d 900 (2004).
Mr. Yaeger argues the State failed to satisfy the knowledge element of bail jumping. "[T]he knowledge requirement is met when the State proves that the defendant has been given notice of the required court dates." State v. Fredrick, 123 Wn. App. 347, 353, 97 P.3d 47 (2004) (citing State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004)).
In State v. Ball, the court concluded that the State established the "knowledge" element when it admitted two documents (an order setting conditions of release and a notice of trial setting) signed by defendant Brian Ball. 97 Wn. App. 534, 536, 987 P.2d 632 (1999). Both documents contained hearing dates and bold print language requiring Mr. Ball to appear. Id.
The same thing happened here. Mr. Yaeger signed a scheduling order setting trial and other hearings on November 17, 2004. The one-page order indicated that a case scheduling hearing was scheduled for December 1, 2004 at 11:00 am. Plaintiff's Ex. 20. The very next line stated in bold print: " Defendant must appear at Case Scheduling Hearing." Plaintiff's Ex. 20.
Mr. Yeager's signature on the scheduling order dated November 17 is sufficient to establish that Mr. Yaeger was aware that he was required to appear in court on December 1. Ball, 97 Wn. App. at 536.
Exceptional Sentence Downward
A defendant may not appeal a sentence within the standard range unless the sentencing court's procedure for imposing the sentence was flawed. RCW 9.94A.585; State v. Friederich-Tibbets, 123 Wn.2d 250, 252, 866 P.2d 1257 (1994); State v. Henderson, 99 Wn. App. 369, 993 P.2d 928 (2000). Mr. Yaeger does not assign error to the procedure used by the court to impose this sentence. He, then, asserts no grounds justifying the appeal from this standard range sentence. State v. Mail, 121 Wn.2d 707, 712, 854 P.2d 1042 (1993).
We affirm the convictions and the sentence.
A majority of the panel has determined that 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.
Schultheis, J., Kulik, J., concur: