                                                                                                                      PEA LS

                                                                                                   20,14 APR - I
                                                                                                                    4M 05' 25
                                                                                                   S'           J
                                                                                                                    MINGTON




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                  DIVISION II


STATE OF WASHINGTON,                                                            No. 44645 -6 -II


                                    Respondent,


       V.



ALEJANDRO BUSTOS- OCHOA,                                                 UNPUBLISHED OPINION




       JOHANSON, A.C. J. —            Alejandro Bustos -Ochoa appeals from his delivery of a controlled

substance   conviction.-    He claims that -
                                           the State offered -insufficient -evidence -to prove that he

                            to a
transferred methamphetamine -               confidential-informant       Q.-He- argues- that law- enforcement - - - - -_-
                                                                        -(


lost contact and control over the CI for nearly 90 minutes while they waited for the transaction to

happen,   and   that   no one              saw   Bustos -Ochoa   give   the Cl the   methamphetamine.    Because
                                actually


the State offered sufficient evidence at trial from which a reasonable juror could infer that

Bustos -Ochoa delivered         methamphetamine       to the CI,   we affirm   Bustos- Ochoa'   s conviction.
No. 44645 -6 -II


                                                           FACTS


           On March 22, 2012, a Cl, arrested earlier that day on different drug charges, assisted the

Cowlitz/Wahkiakum Narcotics Task Force ( " task force ")                        in a controlled buy' in the parking lot

of   the Longview Home Depot.             The task force supervised the CI at all times between his arrest


and the end of the controlled buy later that day. Kelso Police Detective Jeffrey Brown drove the

CI in the CI'    s vehicle     from the CI'     s   home to the location for the           controlled     buy.    Before the



controlled buy, Longview Police Detective Brian Streissguth searched the CI and his car.
Streissguth did        not   find any drugs         or   cash   on   the   CI    or   anywhere   in his    car.    Detective


Streissguth     gave    the CI $ 1, 240 in prerecorded cash to purchase an ounce of methamphetamine.


           Although the       detectives'   testimony differed about the passage of time during the

controlled    buy,   the   substance of   the   events and observations was consistent.              The task force had


sight of the CI at all times between 8: 00 PM and 10: 00 PM while waiting for the meeting to

happen. The Cl never interacted with anyone or any part of his vehicle until a black Volkswagon

arrived around       10: 00 PM.   The CI was in the black Volkswagon for a few minutes, and then the

                        Although
           drove away. --
Volkswagon--                                        none -of the surveillance officers could -see inside"-of the - - - - -

black Volkswagon when the CI got in, Detectives Streissguth and James Hanberry saw the driver

as   he left.    After the black Volkswagon left, Kelso Police Sergeant Kevin Tate saw the CI

 interact" with the fuel door area of his car where it was planned the CI would hide the drugs he

purchased.      After the meeting was over, Detective Streissguth again searched the CI and his car

     A "         buy" is when law enforcement uses a Cl to conduct a drug buy. Law
           controlled

enforcement searches the CI before and after the buy, holds any money found on the CI until
after the buy, and gives the CI only prerecorded cash for the drug deal.  Law enforcement

follows the CI to the meeting location and there is continuous surveillance of the CI to ensure
that he /she interacts only with the targeted suspect.



                                                                2
No. 44645 -6 -II



finding about an ounce of methamphetamine in the fuel door of the car which had not been there

before. The CI     no    longer had the $ 1, 240 Detective Streissguth gave to him.


           All of the detectives, including Sergeant Tate and Detective Hanberry, testified that they

followed the Volkswagon after it left the Home Depot parking lot and eventually arrived at an

address on 78th Street in Vancouver. They saw the male driver, identified as Bustos- Ochoa, get

out of the car and walk into the house.

           After police executed a search warrant on the Vancouver house, the State charged

Bustos -Ochoa      with    delivery    of a controlled substance.                    At trial, the detectives involved in the


surveillance of    the   controlled    buy    testified to the above            facts.    The Cl did not testify because the

State could not locate him. A jury found Bustos -Ochoa guilty as charged, and he now appeals.

                                                           ANALYSIS


           Bustos -Ochoa argues that there was insufficient evidence to convict him because no one

saw   the   delivery   occur    and   the   CI did   not   testify     at   trial.    Because there was sufficient evidence


from which a jury could infer that Bustos Ochoa delivered a controlled substance to the CI, we
Ziff rm.




           An insufficiency claim admits the truth of the State' s evidence and all inferences

reasonably drawn from the              evidence.      State      v.   Salinas, 119 Wn.2d 192, 201,            829 P. 2d 1068


 1992).     There is sufficient evidence to convict when, after viewing the evidence in the light most

favorable to the State, any rational juror could have found the elements of the crime met beyond
a reasonable     doubt.     Salinas, 119 Wn.2d             at   201.        Direct and circumstantial evidence carry the

 same weight.      State   v.   Allen, _      Wn.    App. ,            317 P. 3d 494, 498 ( 2014).       We do not reweigh




                                                                  3
No. 44645 -6 -II



the evidence and substitute our judgment for that of the jury. State v. Kilburn, 151 Wn.2d 36, 57,

84 P. 3d 1215 ( 2004).


        RCW 69. 50.401( 1) prohibits the manufacture, delivery, or possession of any controlled

substance with     intent to   manufacture or    deliver the    controlled substance.    Methamphetamine is a


schedule   II    controlled   substance.    RCW 69. 50. 206( d)( 2). "      Delivery"   and "   deliver" mean the


actual or constructive transfer of a substance from one person to another. RCW 69. 50. 101( f).

        Bustos -Ochoa argues that without direct observation of what occurred in the car and

without    the    CI' s   testimony, the      State   cannot prove       that Bustos -Ochoa       transferred   the


                          to the Cl.    Bustos -Ochoa also asserts that the task force did not observe the


 CI for over 90 minutes and that the CI could have gotten the methamphetamine from another

person because Sergeant Tate and Detective Hanberry testified that they had only been watching

 the CI for a short time. We disagree.

          The State needed to prove that Bustos -Ochoa transferred methamphetamine to the CI on

 March 22, 2012.      Before meeting with Bustos -Ochoa, the CI did not have drugs on his person or

anywhere in his car.          Detective Streissguth gave the Cl $        1, 240 in -
                                                                                   premarked bills to buy an -

 ounce of methamphetamine. After the black Volkswagon left, Detective Streissguth found about

 an ounce of methamphetamine in the CI' s car and the Cl no longer had the premarked cash.

 Detectives Streissguth and Hanberry identified the driver of the black Volkswagon and the man

 who walked       into the house   at   78th Street   as   Bustos -Ochoa.    Despite the discrepancies in their


 calculation of time, all the State' s witnesses stated that they had sight of the CI from the time he

 was arrested earlier in the day until after the controlled buy was complete and never observed

 2 Both parties stipulated that the substance Detective Streissguth recovered from the fuel door of
 the CI' s car was methamphetamine.


                                                            4
No. 44645 -6 -II



him, interact with anyone else or any other part of his car until after the meeting with the black

Volkswagon. Based on this evidence and the reasonable inferences therefrom, any rational juror

could determine that Bustos -Ochoa transferred methamphetamine to the CI on March 22, 2012.


        Although no one directly witnessed Bustos -Ochoa delivering the methamphetamine to

the CI in the car, the reasonable inferences drawn from the State' s evidence establish that a


transfer of methamphetamine occurred. Accordingly, we affirm his conviction.

        Affirmed.


        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.




                                                    J   HANSON, A.C. J.
We concur:




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