State of Washington v. Teresa Jean Alatorre ( 2019 )

FILED
MARCH 19, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 35619-1-III
Respondent, )
)
v. )
)
TERESA JEAN ALATORRE, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. — Teresa Alatorre appeals from a conviction for possession of
methamphetamine with intent to deliver, primarily presenting challenges that she never
raised in the trial court. We affirm.
FACTS
The employees of a YMCA women’s shelter in Walla Walla alerted police to the
presence of a car parked in the alley behind the shelter. They were concerned because
men are not supposed to be at the shelter and the male driver was recognized as someone
who had been around the facility before. Ms. Alatorre left the shelter when the car
arrived and approached the passenger side of the vehicle.
No. 35619-1-III
State v. Alatorre
When officers arrived, they observed a man sitting in the driver’s seat and a
woman in the rear on the passenger side. While one officer was talking to the driver,
Raymond Tyrell, another officer arrived with his canine. Tyrell was discovered to have a
suspended license and was arrested for that offense.
The canine alerted to the presence of drugs in the car. Tyrell then consented to a
search of the vehicle. Alatorre got out of the car to facilitate the vehicle search and
departed the scene after receiving permission from the officers to leave. On the floor in
front of the seat Alatorre had been occupying officers found a lunch bag. Inside were 13
small plastic bags containing methamphetamine. Also in the bag were an EBT card and
social security paperwork belong to Ms. Alatorre.
She returned while police were photographing the car after the search and was
arrested. During an interview at the police station, she told the detective that she had a
backpack and lunch bag with her in the car, and she described her lunch bag for the
officer. When shown a picture of the lunch bag, she remembered it but told the detective
she had not seen it in a while and did not know why it was in Tyrell’s car.
There was no motion to suppress the evidence. The case proceeded to jury trial in
the Walla Walla Superior Court. At trial, detective Steve Harris was allowed to testify
over defense objections that the evidence should be excluded under ER 403. At defense
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insistence, he was qualified as an expert witness. The defense did not object to the
court’s determination that Harris was an expert. In the course of his testimony, the
detective discussed the significance of the individually wrapped packages, why they
frequently would be transported in bags, and the absence of drug paraphernalia. Ms.
Alatorre testified in her own behalf. She told jurors that the bag was hers, but that it had
been missing for two days. The methamphetamine was not hers and she did not know it
was in the lunch bag.
The defense argued to the jury on a theory of unwitting possession and insufficient
proof. Clerk’s Papers at 40. The jury, however, convicted Ms. Alatorre as charged. The
court imposed a standard range sentence and legal financial obligations (LFOs) totaling
$800.
She timely appealed to this court. A panel considered her case without conducting
argument.
ANALYSIS
Although she raises numerous arguments on appeal through her appellate counsel
and a personal statement of additional grounds (SAG), we need only address a few of
them. We first identify the issues she has waived, followed by a discussion of the
sufficiency of the evidence, the SAG, and the LFOs.
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Waived Issues
Through counsel, Ms. Alatorre argues that both the search and the seizure were
invalid for three different reasons. She also argues that the detective improperly was
allowed to express an opinion. We decline to consider these arguments because she
cannot establish that there was any manifest constitutional error.1
The general rule is that an appellate court will not consider an issue on appeal
which was not initially presented to the trial court. RAP 2.5(a); State v. Scott, 110 Wash. 2d
682, 685, 757 P.2d 492 (1988). Even when the issue presented involves a question of
manifest constitutional error, one of the limited exceptions to the general rule, the issue
cannot be considered unless the record adequately presents the issue. State v.
McFarland, 127 Wash. 2d 322, 333-334, 899 P.2d 1251 (1995). A manifest constitutional
error in the search and seizure context exists when the record establishes that the trial
court would have granted a motion to suppress. Id. at 333-334.
The question of whether a seizure has occurred is one that presents a mixed
question of law and fact. State v. Armenta, 134 Wash. 2d 1, 9, 948 P.2d 1280 (1997). After
hearing a motion to suppress, the trial court must enter findings of fact and conclusions of
1
We also do not reach the questions of whether Ms. Alatorre had standing to raise
all of these challenges or whether she abandoned the lunch bag in the car.
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law. CrR 3.6. This court reviews those findings of fact for substantial evidence. State v.
Hill, 123 Wash. 2d 641, 644, 870 P.2d 313 (1994). The appellate court then reviews de
novo the conclusions derived from the factual findings. Armenta, 134 Wash. 2d at 9.
Here, as noted, there is no record concerning the seizure because no challenge was
raised in the trial court. Thus, we do not know if the driver was seized prior to his arrest.
We do not know anything about the adequacy of his consent to search. We do not know
if Ms. Alatorre even could assert a challenge to Tyrell’s consent. We have no particular
information about the ability of the dog to search for controlled substances, whether that
search was even an intrusion into a protected area, etc. In short, we have no way of
knowing what the actual facts of this encounter are because there was no need for the trial
court to make any determination about those facts Ms. Alatorre now thinks are important.
In short, her search and seizure issues are not manifest.2 RAP 2.5(a)(3); McFarland, 127
Wash. 2d at 333.
For a related reason, we do not consider the claim that Detective Harris offered
improper opinion testimony. The sole challenge raised to the detective’s testimony at
trial concerned the necessity for the evidence. The defense argued that it was cumulative
2
In the federal courts, this argument would not be entertained due to Stone v.
Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976) (federal court will not
consider state habeas case raising suppression issue that could have been, but was not,
raised in the trial court).
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and a waste of time. In short, her arguments relied upon ER 403. Appellate courts will
not entertain evidentiary arguments on appeal except on grounds asserted in the trial
court. State v. Guloy, 104 Wash. 2d 412, 422, 705 P.2d 1182 (1985). To avoid this
limitation, Ms. Alatorre recasts the argument as one of improper opinion testimony. A
witness cannot express the opinion that the defendant is guilty. State v. Montgomery, 163
Wash. 2d 577, 591, 594, 183 P.3d 267 (2008).
Although Ms. Alatorre claims that Harris’s testimony amounted to an opinion on
guilt, it did not. Explaining the significance of the number of individual bags of
marijuana, the absence of drug paraphernalia, and similar evidence provided a basis from
which the jury could infer Ms. Alatorre’s intent in possessing the drugs. The evidence
was useful, but it was not an opinion that she was guilty. Thus, this claim, too, is not
manifest constitutional error.
The search and seizure arguments, and the belated challenge to the detective’s
testimony, do not constitute manifest constitutional error that can be considered by this
court. RAP 2.5(a)(3).
Sufficiency of the Evidence
Ms. Alatorre argues that the evidence was insufficient to support the jury’s
determination that she intended to deliver the methamphetamine. The jury was allowed
to draw the conclusion that it did.
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Sufficiency of the evidence challenges are reviewed under very well settled
standards. Appellate courts look to see if there was evidence from which the trier of fact
could find each element of the offense proved beyond a reasonable doubt. State v. Green,
94 Wash. 2d 216, 221-222, 616 P.2d 628 (1980) (citing Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The reviewing court will consider the
evidence in a light most favorable to the prosecution. Id. This court also must defer to
the finder of fact in resolving conflicting evidence and credibility determinations. State
v. Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850 (1990).
In order to prove the charge, the State was required to establish both that Ms.
Alatorre possessed the methamphetamine and that she intended to transfer it to another
person. RCW 69.50.401(1). Merely possessing drugs is insufficient to allow an
inference of intent to deliver. State v. Reichert, 158 Wash. App. 374, 391, 242 P.3d 44
(2010). Instead, there must be “at least one additional factor, suggesting a sale and not
mere possession, to corroborate the defendant’s intent to deliver.” Id.
Ms. Alatorre likens these cases to a pair of decisions in which this court found
evidence of small quantities of marijuana packaged in individual bags to be insufficient
to support the intent to deliver; the evidence was consistent with personal use. State v.
Davis, 79 Wash. App. 591, 596, 904 P.2d 306 (1995); State v. Kovac, 50 Wash. App. 117,
121, 747 P.2d 484 (1987). Those cases are distinguishable, in part because the number of
bags here was equal to the total in those two cases combined. One significant factor not
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No. 35619-1-III
State v. Alatorre
present here, but present in Davis, was the absence of drug paraphernalia. A person who
is using controlled substances likely would have their means of ingesting the substance at
hand.3 That information also is supported by the act of Ms. Alatorre entering Tyrell’s car
in the back seat (suggesting a possible commercial transaction) of a car that remained
parked in a back alley instead of driving off.4 That the drugs were packaged for sale was
also supported by the testimony of the detective that the 13 individual bags were worth
$20 each, but that the total quantity found in the bags was only worth $60. In other
words, no user would purchase that many separate bags when she could have obtained
the same amount for much less.
Viewing the testimony in the light most favorable to the State, the evidence did
allow the jury to conclude that Ms. Alatorre possessed it with the intent to sell. It was
sufficient.
Statement of Additional Grounds
Ms. Alatorre filed a SAG raising two issues—a claim that the evidence was
tampered with and a claim that the officers unlawfully searched her purse. No argument
along either of these grounds was presented in the trial court.
3
The absence of evidence sometimes can constitute evidence. See SIR ARTHUR
CONAN DOYLE, The Adventure of Silver Blaze, in THE MEMOIRS OF SHERLOCK HOLMES
(1894) (silence of guard dog allowed inference that thief was known to the dog).
4
She testified that she was staying at the shelter and Tyrell had stopped by to give
her a ride to a casino.
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The defense did not object to the admission of the methamphetamine during trial.
Accordingly, she has waived her first SAG argument. The second claim fails for the
same reason that we rejected the search arguments raised by her counsel—the relevant
factual circumstances have not been determined because of the failure to raise the claim
in the trial court. We are in no better position to consider this argument than we were to
consider the claims raised by counsel.
The SAG arguments cannot be considered.
Financial Matters
Lastly, counsel argues that the court erred in imposing the criminal filing fee and
that costs should not be assessed on appeal.
A decision released after the sentencing in this case determined that statutory
changes to LFO assessment and collection applied retroactively to cases on appeal. State
v. Ramirez, 191 Wash. 2d 732, 735, 426 P.3d 714 (2018). As a result, indigent offenders
need not pay the criminal filing fee. Since Ms. Alatorre is indigent, we direct that the
trial court strike the filing fee.
She also asks that we disallow costs on appeal due to her indigency. By the terms
of RAP 14.2 and our general order of February 19, 2019, we leave that issue to our
commissioner in the event that the State seeks costs in this court.
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No. 35619-1-III
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Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
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Lawrence-Berrey, .J. c.. �.
Siddoway, J.
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