IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,                      )
                                              )         No. 75748-2-1
                         Respondent,          )
                                              )
              v.                              )         DIVISION ONE
                                              )
 LO SHENG SAELEE,                             )         UNPUBLISHED OPINION
                                              )
                         Appellant.           )         FILED: April 30, 2018
                                              )

      APPELWICK, C.J. — A jury found Saelee guilty of possession with intent to

deliver. Saelee argues that the trial court erred in not giving a lesser included

offense instruction of possession, and that the imposition of mandatory LFOs

against him is unconstitutional. We affirm.

                                      FACTS

       Seattle Police asked a drug informant to make contact by phone with a drug

dealer. The informant had purchased drugs from this dealer before. The call was

on speakerphone with police present so that police could hear what was said. The

informant asked for an "eight ba11.1 The dealer and the informant agreed to meet

at 12th Avenue South and South King Street in Seattle.




        1 An eight ball refers to roughly an eighth of an ounce of cocaine. The
typical rate on the street for an eight ball is $200 to $300.
No. 75748-2-1/2


       With the help of the informant, police apprehended the dealer at the

arranged location. Police identified him as Lo Saelee. They recovered multiple

packages of crack cocaine from a hidden compartment inside the vehicle.

       The State charged Saelee with one count of possession with intent to

deliver. The charges proceeded to trial. Saelee requested a lesser included

offense instruction of possession of a controlled substance. The trial court denied

this request. The jury found Saelee guilty of possession of a controlled substance

with intent to deliver cocaine. As part of Saelee's sentence, the trial court imposed

mandatory legal financial obligations (LF05) for a mandatory victim penalty

assessment(VPA)and deoxyribonucleic acid (DNA)collection fee.

       Saelee appeals.

                                   DISCUSSION

       Saelee makes two arguments. First, he argues that the trial court erred by

not giving a lesser included offense instruction for simple possession, because the

facts warranted it. Second, he argues that RCW 7.68.035 and RCW 43.43.7541,

which impose mandatory LF0s, are unconstitutional as applied to defendants who

do not have the current or future ability to pay.

  I.   Lesser Included Offense Instruction

       Saelee first argues that the trial court erred by not giving a lesser included

offense instruction. He argues that the facts at trial, when viewed in the light most

favorable to Saelee, supported the conclusion that Saelee committed only simple

possession of a controlled substance, to the exclusion of possession with intent to

deliver.


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No. 75748-2-1/3


         When a defendant is charged with an offense, the jury may find the

defendant guilty of an offense that is necessarily included within that with which he

or she is charged. RCW 10.61.006. Under State v. Workman, a defendant is

entitled to an instruction on a lesser included offense if two elements are met. 90

Wn.2d 443, 447, 584 P.2d 382 (1978). First, each of the elements of the lesser

offense must be an element of the offense charged. Id. at 447-48. Second, the

evidence must support an inference that the lesser crime was committed. Id. at

448. Possession is a lesser included offense of possession with intent to deliver.

State v. Harris, 14 Wn. App. 414, 418, 542 P.2d 122 (1975). Thus, the first, legal

prong is not at issue. The outcome of this case turns on resolution of the factual

prong.

         An instruction on a lesser offense is proper only if there is " 'sufficient

evidence to support an inference that the lesser included crime was committed.'"

State v. Charles, 126 Wn.2d 353, 355, 894 P.2d 558 (1995) (quoting State v.

Speece, 115 Wn.2d 360, 362, 798 P.2d 294 (1990)). The evidence must be

viewed in the light most favorable to the party requesting the instruction. State v.

Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000). To satisfy the

factual prong, the evidence must affirmatively establish the defendant's theory of

the case—it is not enough that the jury might disbelieve the evidence pointing to

guilt. Id. at 456. The evidence must raise an inference that only the lesser included

offense was committed, to the exclusion of the charged offense. Id. at 455. We

review the decision not to give a lesser included offense instruction based on the




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facts of the case for an abuse of discretion. State v. Picard, 90 Wn. App. 890, 902,

954 P.2d 336 (1998).

       Saelee argues that the State did not present certain evidence that would

typically indicate intent to deliver. Seattle Police Department Narcotics Detective

Matthew Pasquan testified that drug dealers commonly: use storage lockers, keep

transaction records, keep jewelry, have incriminating photographs, have

processing paraphernalia, possess weapons, use aliases, launder money, travel

abroad, and use rental vehicles. Pasquan admitted that none of these facts were

present in Saelee's case. Saelee argues that this supports an inference that

Saelee did not have intent to deliver, "given that he did not do most of the activities

that, according to the State's principal witness, drug dealers commonly do."

       But, the absence of some evidence that would have strengthened the

indicia of intent to deliver does not negate the evidence presented that did support

the inference of intent to deliver. The unrefuted evidence at trial was that the

informant spoke with someone named Lo on the phone. The informant arranged

to buy an eight ball of narcotics from him at a specific time and place. Police found

Saelee, at the arranged time and place, with prepackaged amounts of cocaine that

officers testified were typical of drug dealing. The jury would have to have

disbelieved the evidence presented to conclude that only the lesser offense was

committed.

       Saelee argues that Fernandez-Medina, and State v. McClam,69 Wn. App.

885, 850 P.2d 1377 (1993) require reversal. Those cases generally hold that a

trial court must not decline to give a lesser included offense instruction merely


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No. 75748-2-1/5


because it would be inconsistent with one of the defense's theories.            See

Fernandez-Medina, 141 Wn.2d at 461; McClam,69 Wn.App. at 890. It is the jury's

job to determine whether to believe a theory of a lesser included offense, even if it

might be inconsistent with another defense theory. McClam, 69 Wn. App. at 890

n.4. But, here the trial court did not decline to give the lesser included offense

instruction because it might be inconsistent with one of Saelee's theories. The trial

court found that the facts and argument did not warrant the lesser included offense

instruction. This authority does not require reversal.

       Saelee fails to identify any evidence that would require an instruction of

mere possession, to the exclusion of intent to deliver. The trial court did not abuse

its discretion in refusing to instruct the jury on the lesser included offense

possession of a controlled substance.

 II.   LFOs

       Saelee next argues that the mandatory LFOs imposed against him under

RCW 7.68.035 and RCW 43.43.7541 are unconstitutional as applied to him,

because the trial court did not inquire into Saelee's ability to play. RCW 7.68.035

requires trial courts to impose a $500 VPA against defendants convicted of a

crime. RCW 43.43.7541 requires trial courts to impose a $100 DNA collection fee.

       Saelee contends that due process requires trial courts to inquire into the

defendant's ability to pay before imposing mandatory LFOs such as these. But,

this court addressed a virtually identical argument in State v. Shelton, 194 Wn.

App. 660,673-74, 378 P.3d 230(2016), review denied 187 Wn.2d 1002, 386 P.3d

1088 (2017). There, Shelton challenged the DNA fee on as applied due process


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No. 75748-2-1/6


grounds, because, he argued, the trial court had not inquired into his ability to pay.

Id. at 670. We held that "because imposition of the mandatory DNA fee does not

implicate constitutional principles until the State seeks to enforce collection of the

DNA fee or impose a sanction for failure to pay, the as-applied substantive due

process challenge to RCW 43.43.7541 is not ripe for review." Id. at 674. As a

mandatory fee, the same principle applies to the VPA.

       Like Shelton, nothing here shows that the State has attempted to collect the

challenged fees. Therefore, under Shelton these claims are not ripe for review.

       We affirm.



WE CONCUR:


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