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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON^                         53 C-<

STATE OF WASHINGTON,
                                                DIVISION ONE
                       Respondent,
                                                No. 73364-8-1
                  v.

                                                UNPUBLISHED OPINION
BRIAN ALLEN SCOTT,

                       Appellant.               FILED: April 18, 2016


       Dwyer, J. — Brian Scott appeals from his conviction of violation of the

Uniform Controlled Substances Act—possession with the intent to deliver

cocaine.1 He contends that the State failed to present sufficient evidence of an

essential element of the crime—intent to deliver—and, thus, insufficient evidence

supports his conviction. Because the record contains sufficient evidence of

Scott's intent, we affirm.

                                         I


       On December 9, 2014, Detective Terry Bailey, Detective Jeffrey Sharp,

and Officer Wes Collier—all of the Seattle Police Department—were conducting

a "see-pop operation." "See-pop" is a term that "refers to ... an operation where

you are just. . . conducting] surveillance and watch[ing] somebody selling


        RCW 69.50.401(1), (2)(a).
No. 73364-8-112



narcotics and then arresting] them." When conducting such operations, officers

perform either one of two functions: engaging in observation or effectuating an

arrest. The observing officers dress in plain clothes while the arresting officers

dress in uniform. On this particular day, Collier was the observing officer while

Bailey and Sharp were the arresting officers. Collier was utilizing a concealed

earpiece that was connected to a radio, which allowed him to communicate with

Bailey and Sharp.

       At approximately 3:00 in the afternoon, Collier was on foot "looking for

narcotics activity" in the "Pike/Pine [corridor]" in downtown Seattle. Specifically,

he was "looking for any hand-to-hand transactions that could possibly be related

to narcotics."

       On the southwest corner of Second and Pine streets, Collier saw a man,

who was later identified as Scott. Scott caught Collier's attention because Collier

was "familiar with the people who [he] believe[d] [were] addicted to crack

cocaine. [He] s[aw] these guys in the area almost surrounding [Scott]." Collier
followed Scott and two other persons as they started walking westbound. Collier

estimated that he was "probably within an arm's length of Mr. Scott and the two

subjects."

       From this vantage point, Collier saw Scott remove "a small plastic baggie"
from his right jacket pocket. The bag contained "small white rocks, which
[Collier] believed to be crack cocaine." Collier then observed Scott engage in two
transactions with "[t]wo different people," which lasted "[p]robably less than five
seconds." During these transactions, Collier saw Scott hand "loose rocks" to
No. 73364-8-1 /3



each of the two people in exchange for money. The two people then walked

eastbound while Scott and Collier walked westbound.

       While following Scott, Collier gave "the arrest team information such as

[Scott's] description, direction of travel and what [Collier had] seen." Collier

described Scott as a light-skinned black male with short curly hair who was

wearing a dark jacket with the hood down, blue jeans, and light sneakers. Collier

noticed a distinctive Seahawks tattoo on Scott's neck, but did not relay this

information to the arrest team.

       Bailey and Sharp, who were riding together in a "subdued vehicle[ ],"2

were notified via radio of the need to effectuate Scott's arrest. While driving to

Collier's location, Bailey and Sharp continued to receive updated information

from Collier regarding Scott's movements. By the time that Bailey and Sharp

arrived at the scene, Collier and Scott had walked to the 1500 block of First

Avenue.

       Upon arriving at that site, Bailey saw a man matching Scott's description.
Collier stopped following Scott but continued observing, now from across the
street. Bailey started following Scott, who was now walking southbound. With
Scott walking ahead of him, Bailey loudly stated, "Seattle Police." Scott

continued walking southbound.




       2 Bailey described the vehicle:
       [W]e call them subdued cars. They are patrol cars but they don't have the black-
       they have a retroreflective marker on the sideso it's not easily visible and they
       don't have a light bar on top. They also don't have a cage in the back so it's just
       open seating.
No. 73364-8-1 /4



       As Scott passed a series of trash cans at the northeast corner of First and

Pike streets, Bailey observed that "[i]t looked like [Scott] put something in

between the bucket carrier. The green grate that holds the trash can bucket and

the trash -- and the actual trash bucket." Bailey testified that his view of Scott

was not obstructed. At trial, Bailey was asked if other people were surrounding

the trash can and if it looked like other people were using the trash can. Bailey

responded "no" to both questions. In addition, Collier testified that he "could see

[Scott] go into his right jacket pocket. . . and then put the baggie on the rim of the

metal container."3

       Following a directive from Bailey, Sharp "walked over to a trash can where

[he] located some narcotics." The contents of the bag "appeared to [Sharp] to be
cocaine."4 He then seized the bag, its contents included, and later took it back to

the station for it to be placed into evidence.

       Bailey then arrested Scott. He later performed a search. During this
search, Bailey found many items in Scott's possession including $78, two cell
phones, an electronic device, and an identification card. The white substance in
the baggie was sent to a crime lab where it tested positive for cocaine. The
cocaine weighed 1.1 grams.

       Scott was charged with one count of violation of the Uniform Controlled
Substances Act, with the intent to deliver. Following a jury trial, Scott was

convicted as charged. Scott's posttrial motion to arrest the judgment or, in the


       3The record indicates that Scott's right front pocket is the same pocket from which Collier
had seen Scott retrieve the "small white rocks" during the earlier transactions with the two people.
       4At trial, Sharp testified that "I think it was rock cocaine."
No. 73364-8-1 /5



alternative, to grant a new trial was denied. The trial court sentenced him to a

60-month term of imprisonment. He appeals.

                                         II


       Scott contends that insufficient evidence supports his conviction. This, he

asserts, is because the State failed to present sufficient evidence that Scott had

an intent to deliver the cocaine. We disagree.

       The due process clause of the Fourteenth Amendment requires that the

State prove every element of a crime beyond a reasonable doubt. Apprendi v.

New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000);

U.S. Const, amend. XIV. "[T]he critical inquiry on review of the sufficiency of the

evidence to support a criminal conviction must be ... to determine whether the

record evidence could reasonably support a finding of guilt beyond a reasonable

doubt." Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979). "[T]he relevant question is whether, after viewing the evidence in the
light mostfavorable to the prosecution, any rational trier offact could have found
the essential elements of the crime beyond a reasonable doubt." Jackson, 443

U.S. at 319.

       A claim of evidentiary insufficiency admits the truth of the State's evidence

and all reasonable inferences that can be drawn from that evidence. State v.

Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010). Circumstantial evidence and

direct evidence can be equally reliable. State v. Delmarter, 94 Wn.2d 634, 638,

618 P.2d 99 (1980). We defer to the jury on questions of conflicting testimony,
No. 73364-8-1 /6



credibility of witnesses, and the persuasiveness of the evidence. State v.

Killingsworth, 166 Wn. App. 283, 287, 269 P.3d 1064 (2012).

      "[I]t is unlawful for any person to manufacture, deliver, or possess with

intent to manufacture or deliver, a controlled substance." RCW 69.50.401(1). To

convict Scott of possession of a controlled substance with intent to deliver, the

jury was required to find that each of the following elements of the crime was

proved beyond a reasonable doubt:

              (1) That on or about [ ] December 9, 2014, the defendant
       possessed a controlled substance;
              (2) That the defendant possessed the substance with the
       intent to deliver a controlled substance; and
              (3) That the acts occurred in the State of Washington.

Jury Instruction 8. The jury was instructed that, "[c]ocaine is a controlled
substance," Jury Instruction 12, that "[possession means having a substance in

one's custody or control," Jury Instruction 10, and that "[d]eliver or delivery

means the actual transfer of a controlled substance from one person to another."

Jury Instruction 11.

       Thus, in order to convict Scott as charged, the State had to prove that he

acted with the specific intent to deliver the cocaine. "Specific intent to deliver a

controlled substance is a statutory element of the crime of possession with intent

to deliver." State v. Hernandez, 95 Wn. App. 480, 484, 976 P.2d 165 (1999)

(citing Former RCW 69.50.401(a)(1) (1998)). "Intent is assessed objectively,
rather than subjectively." Hernandez, 95 Wn. App. at 484 (citing State v.

Rodriguez, 61 Wn. App. 812, 816, 812 P.2d 868 (1991)). "A person acts with

intent or intentionally when he or she acts with the objective or purpose to


                                          -6-
No. 73364-8-117



accomplish a result which constitutes a crime." RCW 9A.08.010(1)(a); State v.

Atsbeha, 142 Wn.2d 904, 918, 16 P.3d 626 (2001). Specific intent cannot be

presumed, but it can be inferred as a logical probability from all of the facts and

circumstances. State v. Davis, 79 Wn. App. 591, 594, 904 P.2d 306 (1995).

       Intent to deliver cannot be inferred from mere possession of a controlled

substance. State v. Harris, 14 Wn. App. 414, 418, 542 P.2d 122 (1975).

However, intent to deliver can be inferred when all of the facts and circumstances

indicate that there is possession of a controlled substance plus "at least one

additional factor." State v. Brown, 68 Wn. App. 480, 484, 843 P.2d 1098 (1993).

       The State alleged that Scott had possessed the cocaine found on the

trash can. Laboratory analysis established that the substance was, in fact,

cocaine. Both Collier and Bailey testified to seeing Scott handle the cocaine and

place it on the trash can.

       The State further alleged that Scott's intent to distribute the cocaine was

proved by Collier's testimony that he, in fact, witnessed Scott distribute cocaine.
Further, that Scott was, indeed, the person observed by Collier distributing

cocaine was established by: (1) Collier's testimony that he observed Scott

distribute the cocaine; (2) Collier's testimony that he watched Scott's movements
until after Bailey began following Scott; (3) Collier's radio-transmitted description
of Scott's appearance and clothing which led Bailey to focus on Scott; (4) the
testimony of both Collier and Bailey that they each saw Scott put a baggie on the
trash can (indicating that they were both watching the same person); and (5)
Collier's in-court identification of Scott as being the person he saw distribute
No. 73364-8-1 /8



cocaine, in part based on the Seahawks tattoo. Taking this evidence in the light

most favorable to the State, the Jackson test is easily met.5

       Based on the resolution of this issue, Scott's other claim of error need not

be addressed.

       Affirmed.




We concur:



   j^&^a\ <v~




        5Scott challenges the jury's resolution of the factual issues presented at trial, asserting
various inconsistencies or contradictions in the prosecution's case. This approach is not
consistent with the Jackson mandate.


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