                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                          February 13, 2019
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                          DIVISION II
    STATE OF WASHINGTON,                                              No. 50160-1-II

                                Respondent,
                                                               UNPUBLISHED OPINION
         v.

    WILLIAM GENE CANNING,

                                Appellant.



        MAXA, C.J. – William Canning appeals his conviction of unlawful possession of a

controlled substance (methamphetamine) with intent to deliver and the imposition of certain

legal financial obligations (LFOs).1 We hold that (1) sufficient evidence supports the intent to

deliver element of his conviction; (2) as the State concedes, the trial court erred in imposing a

discretionary LFO (jury demand fee) without assessing his ability to pay and the criminal filing

fee must be stricken; and (3) the judgment and sentence contains an incorrect offender score.

Accordingly, we affirm Canning’s conviction but remand for the trial court to strike the jury

demand fee and criminal filing fee and to correct Canning’s offender score in the judgment and

sentence.

                                              FACTS

        In July 2016, officers arrested Canning for not having a valid driver’s license and for

failing to register the pickup he was driving. In a search incident to arrest, they seized a


1
 Canning also was convicted of unlawful possession of a controlled substance (heroin), but he
does not appeal that conviction.
No. 50160-1-II


container from Canning’s front pants pocket. Inside the container were three baggies of

suspected methamphetamine and one baggie of suspected heroin. Canning also had $125 in

cash. Officers recovered a smoking pipe from the truck, but Canning denied that the pipe

belonged to him.

          The State charged Canning with unlawful possession of a controlled substance,

methamphetamine, with intent to deliver, and unlawful possession of a controlled substance,

heroin.

          Sergeant Mark Langlois testified without objection that he suspected Canning was

distributing rather than personally using the large quantity of methamphetamine. He explained

that a typical user amount is one gram or less and that he suspects a person is distributing if the

person possesses over three grams of methamphetamine. He also stated that how the drugs were

packaged and the amount of drugs seized convinced him that Canning was distributing.

          Detective Benjamin Mortensen testified without objection that anytime a person

possesses 3.5 grams of methamphetamine or more, he suspects distributing. He also testified

that the overall weight of the drugs, how they were packaged, and that Canning had $125 told

him that Canning was distributing.

          A forensic scientist testified that that the substance in the three bags was

methamphetamine. She also stated that the bags of methamphetamine weighed 1 gram, 5.2

grams, and 6.8 grams, respectively.

          A jury found Canning guilty of possession of methamphetamine with intent to deliver.

The State argued that Canning’s offender score was 5, but Canning argued that it was 3. The

parties eventually agreed to an offender score of 3 because it did not change Canning’s

sentencing ranges. But the judgment and sentence was not corrected to reflect this agreement.




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No. 50160-1-II


The trial court stated that it was imposing financial obligations as required by statute. Two of the

LFOs that the court imposed were a jury demand fee of $250 and a criminal filing fee of $200.

       Canning appeals his conviction and the imposition of the LFOs.

                                            ANALYSIS

A.     SUFFICIENCY OF EVIDENCE

       Canning argues that the State failed to present sufficient evidence to prove that he

intended to deliver the methamphetamine he possessed. He argues that there was no evidence

other than the quantity of drugs to support the intent to deliver element of the offense. We

disagree.

       1.    Standard of Review

       The test for determining sufficiency of the evidence 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. Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014). In a

sufficiency of the evidence claim, the defendant admits the truth of the State’s evidence and all

reasonable inferences drawn from that evidence. Id. at 106. Credibility determinations are made

by the trier of fact and are not subject to review. State v. Miller, 179 Wn. App. 91, 105, 316 P.3d

1143 (2014). Circumstantial and direct evidence are equally reliable. Id.

       2.    Legal Principles

       In order to prove unlawful possession of a controlled substance with intent to deliver, the

State had to prove (1) unlawful possession (2) of a controlled substance (3) with the intent to

deliver. RCW 69.50.401(1).

       As a general rule, “[m]ere possession of a controlled substance, including quantities

greater than needed for personal use, is not sufficient to support an inference of intent to deliver.”




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No. 50160-1-II


State v. O’Connor, 155 Wn. App. 282, 290, 229 P.3d 880 (2010). But a finder of fact can infer

intent to deliver from possession of a significant amount of a controlled substance plus at least

one additional factor. Id. Several courts have upheld convictions for intent to deliver based on a

large amount of drugs and additional evidence. See, e.g., State v. Hotchkiss, 1 Wn. App. 2d 275,

281-82, 404 P.3d 629 (2017) (8.1 grams of methamphetamine and $2,150 sufficient), review

denied, 190 Wn.2d 1005 (2018); O’Connor, 155 Wn. App. at 291 (a large amount of marijuana,

a sophisticated grow operation, and a scale sufficient); State v. Simpson, 22 Wn. App. 572, 575-

76, 590 P.2d 1276 (1979) (quantity of drugs and nature of packaging sufficient); State v. Harris,

14 Wn. App. 414, 418-19, 542 P.2d 122 (1975) (quantity of drugs, value and a scale sufficient).

       3.   Analysis

       Here, both officers testified that the amount of methamphetamine that Canning possessed

was far more than a typical user would possess. This evidence supported an inference that

Canning intended to deliver the drug. Further, three additional factors supported the jury’s

finding that Canning possessed the methamphetamine with the intent to deliver.

       First, the methamphetamine was packaged in three separate baggies. Both officers

testified that if someone is buying methamphetamine in bulk, the drugs usually would be in one

bag, not three bags of different weights, and typically would weigh less than 3.5 grams. A

reasonable inference is that the methamphetamine was packaged for delivery rather than for

personal use.

       Second, Canning was not in possession of any devices that would allow him to use the

methamphetamine. Although officers found a pipe in the truck, Canning denied that it belonged

to him. The absence of any device to use methamphetamine supports a reasonable inference that

Canning was delivering the methamphetamine rather than using it himself.




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No. 50160-1-II


       Third, Canning possessed a relatively small amount of cash. Sergeant Langlois testified

that when he apprehends someone with a small amount of money and a large amount of drugs,

that person likely just spent all his money to buy the drugs. This evidence supports a reasonable

inference that Canning had just replenished his drug supply for delivery.

       Viewed in a light most favorable to the State, the evidence supports the jury’s finding that

Canning possessed the methamphetamine with the intent to deliver it. Accordingly, we hold that

the evidence was sufficient to convict Canning of possession of methamphetamine with intent to

deliver.

B.     LEGAL FINANCIAL OBLIGATIONS

       1.    Discretionary LFO

       Canning argues, and the State concedes, that the trial court improperly failed to assess his

ability to pay before imposing the jury demand fee – a discretionary LFO. State v. Lundy, 176

Wn. App. 96, 107, 308 P.3d 755 (2013) (jury demand fee is discretionary cost). We accept the

State’s concession that the trial court improperly imposed the jury demand fee and that the fee

should be stricken.

       2.    Criminal Filing Fee

       Canning argues, and the State concedes, that the criminal filing fee must be stricken

based on the 2018 amendments to the LFO statutes. RCW 36.18.020(2)(h) now provides that the

trial court cannot impose a criminal filing fee on an indigent defendant. This statute applies

prospectively to cases pending on direct appeal when the statute was amended. State v. Ramirez,

191 Wn.2d 732, 749-50, 426 P.3d 714 (2018). We accept the State’s concession that criminal

filing fee should be stricken.




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No. 50160-1-II


C.      OFFENDER SCORE

        Canning argues that his judgment and sentence improperly lists his offender score as 5

when it should have been 3. We accept the State’s concession that this was a scrivener’s error,

as the record clearly reflects the parties’ agreement that the offender score was 3.

                                          CONCLUSION

        We affirm Canning’s conviction for possession of a controlled substance

(methamphetamine) with intent to deliver, but we remand for the trial court to strike the jury

demand fee and criminal filing fee and to correct Canning’s offender score in the judgment and

sentence.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      MAXA, C.J.



 We concur:




 JOHANSON, J.



 LEE, J.




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