                                                           I




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 DIVISION ONE
                    Appellant,
                                                 No. 67874-4-1
               v.
                                                 ORDER AMENDING OPINION
KEITH THOMAS BLAIR,                              AND DENYING MOTION FOR
                                                 RECONSIDERATION
                    Respondent.


      The respondent, Keith Thomas Blair, filed a motion for reconsideration of

this court's decision filed February 25, 2013. A majority of the panel hearing the

case has considered the motion, decided to amend the opinion, and has

determined that the motion should be denied. Now, therefore, it is hereby

       ORDERED that:

       1. The first sentence at the top of page 12 of the slip opinion shall be

replaced with the following sentence: "Thus, the State argued, at a minimum, the
intent to deliver element of the underlying crime was satisfied through evidence

evincing Dunham's planned delivery of marijuana to Yates outside ofthe jail."
       2. The second sentence of the first full paragraph on page 12 of the slip

opinion shall be replaced with the following sentence: "We disagree with Blair's
contention that the State was required to establish that an agreement existed

between Blair and Yates to possess with intent to deliver marijuana to individuals

other than Yates or Blair."
67874-4-1/2



      3. The motion for reconsideration is denied,
                 on                        denied.

       Dated this   iirdayof Ap" ^ •2013.


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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON &                                ^ "2
                                                                                  en          ^^
STATE OF WASHINGTON,
                                                   DIVISION ONE                      ^ §£>
                     Appellant,                                                               o-
                                                                                     03
                                                   No. 67874-4-1                     £S       --::.
               v.

                                                   UNPUBLISHED OPINION
KEITH THOMAS BLAIR,

                     Respondent.                   FILED: February 25, 2013


       Dwyer, J. — Keith Blair was convicted of conspiracy to commit violation of

the Uniform Controlled Substances Act-possession with intent to deliver

marijuana. The trial court thereafter granted Blair's motion for arrest of judgment,

ruling that there was insufficient evidence of a conspiratorial agreement. It

entered an order vacating the jury verdict and dismissing the case with prejudice.

In that same order, it also granted, in the alternative, Blair's motion for new trial.

       The State appeals, contending that the trial court erred by dismissing the

conspiracy conviction. The State further asserts that the trial court's written order

granting a new trial was erroneous because the trial court did not address the

new trial motion in its oral ruling. We conclude that the State provided sufficient

evidence to prove a conspiratorial agreement and that, as Blair concedes, the

inclusion of the new trial ruling in the court's written order was the result of a

ministerial error. Accordingly, we reverse the order arresting judgment and
No. 67874-4-1/2



remand the cause to the trial court with directions to strike the portion of its order

granting Blair's motion for new trial and to otherwise further proceed in

accordance with this decision.

                                                  I


        On February 19, 2011, King County Sheriffs Detective Cary Coblantz

listened to a recording of a telephone call made by Keith Blair, an inmate at the

King County jail. The telephone conversation was recorded by the jail and was
stipulated by the parties to have been between Keith Blair and his wife, Rachel
Dunham. Pertinent excerpts from the telephone conversation are as follows:1
        BLAIR: Somebody is getting released tomorrow.
        DUNHAM: Yeah.
        BLAIR: (unintelligible) I need you to come down here at 5:30 p.m.
        and get that quart... of
        DUNHAM: Of?
        BLAIR: Green.
        DUNHAM: Green?
        BLAIR: Yeah.
        DUNHAM: I'm sorry.
        BLAIR: Okay. Can you do that?
        DUNHAM: Yeah.
        BLAIR: I'll give him (unintelligible) number to get a hold of you.
        DUNHAM: He's gonna be released at 5:30?
        BLAIR: Yeah, p.m.
        DUNHAM: Why 5:30?
        BLAIR: I don't know. That's when they release people. So I need
        you to be here okay?
        DUNHAM: Okay. But. . . okay.
        BLAIR: Okay. Thank you.




        1The jail telephone recording was played to the jury and a redacted transcript ofthe
recording was admitted for illustrative purposes. Detective Coblantz testified that the transcript
created by thejail is not entirely accurate and includes typographical errors and omitted
statements. As a result, many statements in the transcript were marked as "unintelligible." At
oral argument, the State urged this court to refer to Blair's briefing for an accurate account of Blair
and Dunham's telephone conversation. Accordingly, the excerpts contained herein are quoted
directly from Blair's briefing.


                                                 -2-
No. 67874-4-1/3



         BLAIR: (unintelligible) phone call. I'm going to give dude your
         phone number right now, so make sure you're here at 5:30.
         DUNHAM: What's his name.
         BLAIR: I don't know. He'll call you.
         DUNHAM: You don't know?
         BLAIR: (unintelligible)
         DUNHAM: Dude, it's a set up Keith. Serious. Hello? I can't hear
         you.
         BLAIR: Hold on. (unintelligible) But uh (unintelligible)
         DUNHAM: It's a set up.
         BLAIR: No it's not.
         DUNHAM: Yeah, it is.
         BLAIR: It's not.
         DUNHAM: You don't even know his name.
         BLAIR: Alright, I'll find out right now. Just trust me okay?
         DUNHAM: Okay.

Br. of Resp't at 2-3.

         After Blair and Dunham discussed other matters, Blair said, "His name is

Chris." Dunham replied, "Huh?" Blair responded, "Chris." Blair and Dunham

continued to talk about other topics, after which the following exchange took

place:


         BLAIR: Urn, shred that up and put it in a rubber.
         DUNHAM: Huh?
         BLAIR: Shred that up and put it in a rubber.
         DUNHAM: Shred what?
         BLAIR: When you come here at 5:30. Tear it up, put it in a rubber.
         DUNHAM: Tear what up?
         BLAIR: What are you coming here for tomorrow?
         DUNHAM: What do I tear up? I don't get it.
         BLAIR: Forty.
         DUNHAM: Yeah, I understand.
         BLAIR: Okay. Got it?
         DUNHAM: Kinda.
         BLAIR: (unintelligible)
         DUNHAM: Can you call me?
         BLAIR: Can I call you?
         DUNHAM: Yeah, like the morning.
         BLAIR: (unintelligible) maybe.
         DUNHAM: Before you go to work.
No. 67874-4-1/4



       BLAIR: I'll try to, why?
       DUNHAM: Just so I can be ... I dunno.
       BLAIR: You know like when we go to . ..
       DUNHAM: Yeah.
       BLAIR: Yeah.
       DUNHAM: That's what you want?
       BLAIR: Yeah. Okay?
       DUNHAM: Okay. Does (unintelligible) monetary.
       BLAIR: (unintelligible) yeah, 40 dollars worth.
       [...]
       BLAIR: Just get it ready and give it to him, yeah. Okay?
       DUNHAM: Okay.

Br. of Resp't at 3-4.

       Detective Coblantz testified that based on his experience, the term "green"

often refers to marijuana and the term "40" typically signifies the dollar amount of

a controlled substance that a person seeks to procure. After listening to the

recording of the telephone call, Detective Coblantz contacted Sergeant Catey

Hicks, a member of the jail's special investigations unit. Sergeant Hicks

determined that an individual named Christopher Yates was the only inmate with

the first name of "Chris" or "Christopher" who was scheduled for a temporary

release from the jail the following day, February 20, 2011. Yates was to be

released from 10:00 a.m. to 6:00 p.m. that day. At the time, Yates and Blair were

housed together in the same dorm in the jail.

       On February 20, 2011 at 5:15 p.m., Sergeant Hicks and Detective

Coblantz set up surveillance outside the jail, where they suspected a meeting

would take place between Dunham and Yates. At approximately 5:50 p.m.,

Detective Coblantz observed a black Acura park across the street from the jail's

intake doors. Soon after, he noticed Christopher Yates and a woman exit the

car. Yates smoked a cigarette and looked around for a few minutes. At around


                                          4-
No. 67874-4-1/5



6:00 p.m., the time at which Yates was required to return from his release, Yates

and the woman ran across the street and entered the jail.2 Dunham drove up
shortly thereafter, parking her car next to the intake doors. At this point, the

woman who accompanied Yates into the jail walked out of the jail, passing

Dunham's car, and drove off in the Acura. There was no contact between

Dunham and this woman.

          Dunham continued to sit alone in her car for approximately 10 to 15

minutes. Detective Coblantz then walked to the car, seized it, and had it

impounded. A few days later, Detective Coblantz searched the car pursuant to a

search warrant and found a package of cigarettes in a compartment therein. A

condom containing a bag of 2.5 grams of marijuana was wrapped tightly inside

the package.

          Blair was charged with conspiracy to commit violation of the Uniform

Controlled Substances Act-possession with intent to deliver marijuana and with

attempted introducing contraband in the second degree. The jury found Blair

guilty on the conspiracy charge and acquitted him on the attempted introduction

of contraband charge.

          After the verdict, Blair moved for a new trial or for arrest of judgment.3 In
its oral ruling, the trial court granted the motion for arrest ofjudgment based upon
the lack of sufficient evidence of a conspiratorial agreement. The trial court did


          2 No contraband was found when the jail staff conducted a search of Yates upon his
return.
          3 Blair moved for a new trial based on the following grounds: "(1) Error of law occurring at
the trial and objected to at the time by the defendant, CrR 7.5(a)(6); (2) Thatthe verdict or
decision is contrary to law and the evidence, CrR7.5(a)(7); and (3) That substantial justice has
not been done, CrR 7.5(a)(8)."


                                                 -5-
No. 67874-4-1/6



not orally rule on Blair's alternative motion for new trial. Its written order,

however, granted Blair's motion for arrest of judgment, and, in the alternative,

granted his motion for new trial. No findings of fact or conclusions of law were

entered.

       The State appeals from the trial court's order granting Blair's motion for

arrest of judgment or, in the alternative, for a new trial.

                                            II


       The State contends that sufficient evidence supports Blair's conspiracy

conviction, and, therefore, that the trial court erred by dismissing the case for lack

of sufficient evidence proving that Blair entered into an agreement with another to

possess marijuana with intent to deliver. We agree.

       Criminal Rule (CrR) 7.4(a)(3) allows a defendant to move to arrest

judgment for "insufficiency ofthe proof ofa material element ofthe crime." In
ruling on a motion for arrest ofjudgment, the trial court may not weigh the
evidence; instead, it may only test or examine the sufficiency thereof. State v.

Randecker, 79 Wn.2d 512, 517, 487 P.2d 1295 (1971); State v. Coleman, 54

Wn. App. 742, 746-47, 775 P.2d 986 (1989). The evidence presented in a
criminal trial is legally sufficient to convict if any rational trier offact, viewing the
evidence in the light most favorable to the State, could have found the essential
elements of the charged crime beyond a reasonable doubt. State v. Longshore,

141 Wn.2d 414, 420-21, 5 P.3d 1256 (2000).

        Review of a trial court decision on a motion for arrest of judgment requires

the appellate court to engage in the same sufficiency inquiry as does the trial
No. 67874-4-1/7



court. Longshore, 141 Wn.2d at 420. "A claim for insufficiency admits the truth

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

therefrom." State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Such

inferences must be drawn in favor of the State and interpreted most strongly

against the defendant. Salinas, 119 Wn.2d at 201. The appellate court defers to

the fact finder to resolve issues of conflicting testimony, credibility of witnesses,

and the persuasiveness of the evidence. State v. Gerber, 28 Wn. App. 214, 216,

622 P.2d 888 (1981) (citing Jackson v. Virginia. 443 U.S. 307, 319, 99 S. Ct.

2781,61 L.Ed. 2d 560 (1979)).

       The State must prove all elements of a crime beyond a reasonable doubt.

State v. McCullum, 98 Wn.2d 484, 494, 656 P.2d 1064 (1983). Here, the

information charges Blairwith conspiracy to commit violation of the Uniform

Controlled Substances Act in violation of RCW 69.50.401,4 RCW 69.50.407,5 and

RCW 9A.28.040. Pursuant to RCW 9A.28.040(1), "[a] person is guilty of criminal

conspiracy when, with intent that conduct constituting a crime be performed, he

or she agrees with one or more persons to engage in or cause the performance

of such conduct, and any one of them takes a substantial step in pursuance of

such agreement."

        For purposes of the conspiracy statutes, RCW 9A.28.040 and RCW

69.50.407, the State must prove that the co-conspirators entered into an actual

       4 RCW 69.50.401(1) provides: "Except as authorized by this chapter, it is unlawful for
any person to manufacture, deliver, or possess with intentto manufacture or deliver, a controlled
substance."
        5 RCW 69.50.407 provides: "Any person who attempts or conspiresto commit any
offense defined in this chapter is punishable by imprisonment or fine or both which may not
exceed the maximum punishment prescribed for the offense, the commission of which was the
object of the attempt or conspiracy."
No. 67874-4-1/8



agreement that was genuine or bilateral; it is not enough for one conspirator to

unilaterally believe that another agreed to commit a criminal act. State v.

Pacheco. 125 Wn.2d 150, 159, 882 P.2d 183 (1994); see also State v. Butler.

165 Wn. App. 820, 834, 269 P.3d 315 (2012); State v. Stark. 158 Wn. App. 952,

962-63, 244 P.3d 433 (2010), review denied. 171 Wn.2d 1017 (2011). However,

it is unnecessary to prove that the agreement was formally expressed. State v.

Barnes. 85 Wn. App. 638, 664, 932 P.2d 669 (1997); State v. Smith, 65 Wn. App.

468, 471, 828 P.2d 654 (1992). Moreover, it need not be shown that the co

conspirators came together in agreement or were acquainted with one another.

State v. Stewart. 32 Wash. 103, 109, 72 P. 1026 (1903).

       The State may prove by circumstantial evidence the existence of an

agreement. State v. King. 113 Wn. App. 243, 269, 54 P.3d 1218 (2002); State v.
Culver. 36 Wn. App. 524, 528, 675 P.2d 622 (1984). Such circumstantial

evidence may be in the form of declarations, acts, or conduct of the parties.

Barnes, 85 Wn. App. at 664; State v. Gallagher. 15 Wn. App. 267, 277-78, 549

P.2d 499 (1976). Evidence of "'concert of action, all the parties working together
understandingly, with a single design for the accomplishment of a common

purpose'" is sufficient to prove agreement. State v. Casarez-Gastelum, 48 Wn.
App. 112, 116, 738 P.2d 303 (1987) (internal quotation marks omitted) (quoting
Marino v. United States. 91 F.2d 691, 694 (9th Cir. 1937)).
No. 67874-4-1/9



       Here, the State asserts that the trial court erred in granting the motion for

arrest ofjudgment.6 Specifically, it contends that the State presented to the jury
sufficient evidence of an agreement between Blair and Yates. We agree.

Viewing the evidence in the light most favorable to the State, a rational trier of

fact could have found that a conspiratorial agreement existed between Blair and

Yates to possess marijuana with intent to deliver. The State proffered sufficient

circumstantial evidence of an agreement, as evinced by the parties' actions and

conduct, as well as the recorded telephone call between Dunham and Blair.

        First, Christopher Yates was the only inmate at King County jail with the

name "Chris" or "Christopher" who was to be released on February 20, 2011.

This fact coincides with Blair's conversation with Dunham, in which Blair informed

Dunham that a person named "Chris" would contact her. Further, although it is

unnecessary to show that conspirators come together or are acquainted with one
another, Stewart. 32 Wash, at 109, a rational fact finder could infer that Yates

and Blair did in fact come together because they were housed in the same dorm

at the jail. Such an inference would suggest that Yates and Blair had the

opportunity to engage in a conspiratorial agreement.

        Second, Yates's conduct prior to reentering the jail could lead a rational

fact finder to conclude that he was acting in conformity with a collaborated plan to

        6 The State also asserts that the trial court applied an improper legal standard when
contemplating what an "agreement" necessitates under the conspiracy statutes. This contention
mischaracterizes the trial court's examination of the evidence prior to ruling on the motion. The
record reveals that the trial judge understood that circumstantial evidence—not solely direct
evjdenCe—may be considered, and that the agreement need not be formal. There is no
indication that the trial judge required proof of a face-to-face, explicit agreement. Instead, the trial
court was aware that an "actual" agreementwas required and that a conspirator's mere belief that
such an agreement existed is not sufficient. Thetrial court therefore did not rely upon the
incorrect legal standard in its posttrial ruling on the motion for arrest ofjudgment.
No. 67874-4-1/10



which he had agreed. Yates appeared at the jail receiving area several minutes

prior to his scheduled return from temporary release. He was observed smoking

a cigarette and looking around, possibly waiting for Dunham to arrive. He finally

ran across the street to the jail entrance at 6:00 p.m., having lingered until the

last moment before he was due to return from his temporary release. This

evidence of Yates's conduct could lead a jury to infer that he had agreed with

Blair to meet Dunham outside the jail in order to obtain marijuana from her;

accordingly, the State proffered sufficient evidence from which a fact finder could

determine that Yates was involved in a concerted plan to possess with intent to

deliver, and that a bilateral agreement was entered into between Yates and Blair.

       Finally, evidence of Dunham's actions also suggests that an agreement

was in place between Blair and Yates because her conduct conformed closely to

Blair's instructions to her as to how to make contact with Yates. Dunham arrived

at the jail shortly after 6:00 p.m. and remained in her car for approximately 10 to

15 minutes without contacting another person. A jury could infer that she was

waiting to meet with Yates after having arrived behind schedule. Further,

marijuana was tightly packed inside a condom in a package in her car, a fact that

also correlates with the plan discussed the previous day in which Blair instructed

Dunham to bring "green" packed in a "rubber." In accordance with Casarez-

Gastelum. 48 Wn. App. at 116, these facts—which show evidence of "concert of

action" such that all parties appear to work together under a single design—are

sufficient to prove the existence of an agreement.




                                          10-
No. 67874-4-1/11



       Nevertheless, Blair argues that certain evidence should militate against a

"concert of action" inference. Blair directed Dunham to come to the jail at 5:30

p.m. However, Dunham arrived shortly after 6:00 p.m. Moreover, Blair told

Dunham on the telephone recording that Yates was to be released from jail the

following day at 5:30 p.m., but Yates was released at 10:00 a.m. and was

required to return at 6:00 p.m. Yates also did not appear outside of the jail until

5:50 p.m. It is for the jury to consider and weigh the evidence, however. The

evidence pointed to by Blair would not preclude a rational fact finder from

inferring that an agreement had been made, and the jury did just that.

       At oral argument, counsel for Blair raised an additional argument not

expressly addressed in its briefing on appeal. Specifically, counsel contended

that in order to satisfy each element of the underlying crime of conspiracy, the

State was required to prove that Yates intended to deliver the marijuana to others

after Dunham transferred it to him, and that Yates and Blair agreed that Yates

would deliver the marijuana once he was in receipt of it. Blair's counsel

maintained that because the State failed to proffer evidence establishing an

agreement whereby Yates would deliver the marijuana to others, the State

lacked sufficient evidence of an agreement.

       The State responded that it had presented sufficient evidence of

agreement to possess marijuana with intent to deliver. The State argued that
evidence demonstrating an agreement to deliver marijuana to individuals other

than Yates—whether inside the jail or elsewhere—is not legally required because

a delivery would have occurred once Dunham transferred the marijuana to Yates.


                                          11
No. 67874-4-1/12



Thus, the State argued, at a minimum, the delivery element of the underlying

crime was satisfied through evidence evincing Dunham's planned delivery of

marijuana to Yates outside of the jail.

       We exercise our discretion to address Blair's additional contention raised

for the first time at oral argument. We disagree with Blair's contention that the

State was required to establish that an agreement existed between Blair and

Yates to deliver marijuana to individuals other than Yates or Blair. The intent to

deliver element was satisfied by evidence of an agreement between Blair and

Yates whereby Dunham would deliver the marijuana she possessed to Yates

outside of the jail. Evidence that Yates and Blair agreed that the marijuana

would be delivered beyond Yates's possession once he received it was not

necessary. A rational finder of fact could have found that a delivery was intended

to occur upon Yates's receipt of the marijuana before reentering the jail.

       Based on the series of events that unfolded, a rational fact-finder could

reasonably drawthe inference that Blair and Yates agreed to possess marijuana
with the intent to deliver it. Viewing the facts and inferences from the facts in the

light most favorable to the State, we conclude that the State presented sufficient
evidence of an agreement, and, thus, of a conspiracy. Accordingly, we reverse

the order for arrest of judgment.

                                          Ill


       The State further contends that the trial court erred by entering a written

order that includes an alternative grant of a new trial, which the trial court




                                          12
No. 67874-4-1/13



"expressly rejected" in its oral ruling.7 Blair concedes that the trial court did not
actually rule on his motion for a new trial. He further concedes that the written

order should not have included language granting this motion. He classifies this

as a "ministerial error." The State does not address Blair's concession in its reply

brief.

         Upon review of the record, it appears that the trial court concluded that it

was unnecessary to rule on the motion for new trial in the alternative, focusing

instead on the grounds for the motion for arrest of judgment—sufficiency of the

evidence. The trial court did so, it seems, because it intended to grant the

remedy of dismissal—a greaterform of relief. However, the trial court thereafter
entered a written order that was not limited to the scope of the trial court's oral

ruling.8 We accept Blair's concession that this constituted a ministerial error.
         We reverse the order arresting judgment. We remand to strike the portion

ofthe order granting Blair's motion for newtrial and for all necessary further

proceedings.



We concur:




 ,y^y/vn<^ f\.Cjt

         1The State's contention mischaracterizes the trial court's oral ruling. The trial court did
not "reject" the argument that a new trial be based on the accomplice liability error; rather, the
court declined to rule on Blair's motion for new trial.
         8The written order states: "In the alternative, should the arrest of judgment be reversed,
vacated or set aside, the Court hereby GRANTS the defense motion for a new trial, for the
 reasons set forth in the defense memorandum."


                                                   13
