                                                                                            FILED
                                                                                     CRT OF APPEALS
                                                                                          DIVISION 11

                                                                                    Z0111 SEP - 3     MI 3> 14

                                                                                     STATE OF WikSHlWGTON




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                 DIVISION II

STATE OF WASHINGTON,                                                                 No. 45002 -0 -II


                                       Respondent,


         v.



MARYLENA SHERMEIRA BLOCKMAN,                                                UNPUBLISHED OPINION


                                        Appellant.


          LEE, J. —       Marylena Shermeira Blockman appeals from the judgment and sentence


imposed following her convictions for unlawful delivery of a controlled substance, bail jumping

and    obstructing   a   law   enforcement officer.       She   argues   that: (   1) the trial court erred in allowing

testimony from her son' s probation officer and ( 2) the State failed to present sufficient evidence

that   she obstructed a        law   enforcement officer.       In her Statement of Additional Grounds ( SAG)


under RAP 10. 10, she asserts that she received ineffective assistance of counsel, that the jury

should have been instructed on a lesser included offense of conspiracy and that the evidence

against her on the unlawful delivery of cocaine conviction was insufficient. The State denies that

the trial court erred in admitting evidence but concedes that there was insufficient evidence of

obstructing   a   law    enforcement officer.        We   affirm   Blockman' s      convictions     for bail   jumping   and
No. 45002 -0 -II



unlawful delivery of a controlled substance, vacate Blockman' s conviction for obstructing a law

enforcement officer, and remand for resentencing on the remaining convictions.

                                                                FACTS

                  1
          S. G.       volunteered     to   participate     in   a $    300 controlled buy of cocaine from Connie

Calloway. When the supervising detective drove her to the agreed -upon meeting place, S. G. met

with    Calloway        and another woman who was with                   Calloway,   Blockman.      After a dispute as to


whether the transaction was to occur inside or outside Calloway' s vehicle, Blockman said to S. G.

 just   give   it to   me"   and   took the $ 300 from S. G. 2 Report          of   Proceedings ( RP) ( June 3, 2013) at


145.    An     officer who       walked    by   the   car overheard      Blockman'   s statement.    Blockman gave the


    300 to Calloway, took a package from Calloway and gave it to S. G. S. G. then gave the package

to the. detective. The contents of the package later tested positive for cocaine.

          Calloway and Blockman were stopped by police as they drove away. Blockman initially
                                                 2
gave    her   name as     Bonitta Burnette.           After she arrived at the jail for booking, Blockman provided

her true name.


          The State charged Blockman with unlawful delivery of cocaine and with obstructing a

police    officer.        At her arraignment on August 24, 2012, the trial court entered an Order


Establishing Conditions of Release that ordered Blockman to not travel outside Pierce, King,

Thurston       and     Kitsap   Counties.    It also entered an Order Continuing Trial that ordered Blockman

to   appear at an omnibus           hearing     on   January    8, 2013.   Blockman did not appear for that omnibus


hearing. The State then amended its information to add a charge of bail jumping.


1
    We use initials to maintain confidentiality. We mean no disrespect.

2 Blockman testified that she told the police that her name was Banika Burnette. RP ( June 4,
2013) at 66.
                                                                   2
No. 45002 -0 -II



          At trial, the State called Patrice Paschich, who was Blockman' s son' s probation officer,

to   testify   as   to   a conversation she           had   with     Blockman in December 2012. Blockman objected on


grounds of relevance. The trial court allowed the testimony under ER 404( b) as being relevant to

Blockman' s          state of mind as        to the bail         jumping. Paschich testified that Blockman told her that

she was in California and did not plan to return to Washington in the near future.

          Blockman testified that she knew Calloway and was present during S. G.' s meeting with

Calloway, but denied listening to their conversation, being aware that a drug deal was occurring,

taking    the money from S. G.                   or   giving the money to         Calloway. The jury found her guilty as

charged. Blockman appeals.


                                                                   ANALYSIS


1.        ER 404( b)


          Blockman argues that the trial court erred in admitting the testimony from Paschich. We

review the admission of evidence under ER 404( b) for an abuse of discretion. State v. Tharp, 27

Wn.    App.     198, 205 -06, 616 P. 2d 693 ( 1980),                   aff'd, 96 Wn.2d 591 ( 1981).

          Blockman contends that the trial court abused its discretion because intent is not an

element        of    bail   jumping,        so    her    state    of mind   was    irrelevant.   And she contends that the


testimony       was      highly     prejudicial         in that it   suggested   that   she was an   irresponsible   mother.   ER


404( b) prohibits admission of the defendant' s other bad acts " to prove the character of a person

in    order    to    show     action    in conformity therewith."                  Here, the evidence is not evidence of


Blockman'           s other   bad   acts.    Therefore, the evidence is not evidence that would be used to prove

Blockman' s character, and, therefore, cannot be used to prove she acted in conformity with that

character.           Accordingly, the trial court did not abuse its discretion by admitting Paschich' s

testimony       under       ER 404( b).
No. 45002 -0 -II



        Furthermore, the trial court recognized the potential for prejudice and restricted the State


from soliciting any testimony about the circumstances surrounding the telephone conversation,

particularly   about   the   status of   Blockman'     s son.      Therefore, while the testimony was of limited

relevance,     we cannot say that the trial court abused its discretion in admitting it while

ameliorating any unfair prejudice that unrestricted testimony may have created.

2.      SUFFICIENCY OF THE EVIDENCE


        Blockman argues that the State failed to present sufficient evidence of obstructing a law

enforcement officer because " some conduct in addition to making false statements" is required to

prove that charge beyond a reasonable doubt. State v. Williams, 171 Wn.2d 474, 486, 251 P. 3d

877 ( 2011).    The State     concedes    that   she   is   correct.    We accept the State' s concession, and we


reverse and vacate Blockman' s conviction for obstructing a law enforcement officer.

3.      SAG ISSUES


        In her SAG, Blockman asserts that she received ineffective assistance of counsel because


her counsel said he had subpoenaed Calloway and would call her as a witness, but did neither.

To establish ineffective assistance of counsel, Blockman must demonstrate that her counsel' s

performance fell below an objective standard of reasonableness and that the result of her case

would   have been different but for defense            counsel' s      deficient   performance.   State v. McFarland,

127 Wn.2d 322, 334 -37, 899 P. 2d 1251 ( 1995); Strickland v. Washington, 466 U.S. 668, 687,


104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).                   Blockman does not identify how testimony from

Calloway would probably have changed the result of the trial, especially given the fact that if

Calloway were to have exonerated Blockman, Calloway would have had to inculpate herself.

Blockman' s ineffective assistance of counsel claim fails.




                                                               4
No. 45002 - -II
          0




          Blockman also asserts that the jury should have been instructed on a lesser included

offense of     conspiracy.        We disagree.             Blockman fails to point to any evidence of a conspiracy,

and she     denied    knowing     that   a   drug deal       was   occurring.      Accordingly, Blockman' s assertion that

the jury should have been instructed on conspiracy as a lesser included offense fails.

          Finally, Blockman asserts that the evidence was insufficient to support her unlawful
                                             because the $ 300 in          cash was not    found     after   the   arrest. "   The test
delivery     of cocaine conviction




for determining the 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.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). "                      A claim of insufficiency

admits the truth of the State' s evidence and all inferences that reasonably can be drawn

therefrom."      Salinas, 119 Wn.2d            at   201.     Circumstantial evidence and direct evidence are equally

reliable.      State       v.   Delmarter,      94     Wn.2d        634,    638,     618   P. 2d   99 ( 1980). "          Credibility

determinations        are   for the trier     of    fact   and cannot      be reviewed     on appeal."        State v. Camarillo,


115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990).                       Taken in the light most favorable to the State, S. G.' s


testimony as to the taking of the money and the exchange of the cocaine is sufficient evidence to

support an unlawful delivery of cocaine conviction, particularly given the passing police

officer' s   corroborating       testimony. Thus, Blockman'                s   SAG   claim   lacks   merit.
No. 45002 -0 -II



        We affirm Blockman' s convictions for bail jumping and unlawful delivery of cocaine,

reverse and vacate Blockman' s conviction for obstructing a law enforcement officer, and remand

to the trial court for resentencing on the remaining convictions.

        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.




We concur:


                                4



                                    I.
                   Bjorgen, A.C. J.
