State of Washington v. Kay L. Delesdernier ( 2020 )

FILED
DECEMBER 22, 2020
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. 37203-1-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
KATIE L. DELESDERNIER, )
)
Appellant. )
LAWRENCE-BERREY, J. — Katie Delesdernier appeals her conviction for
possession of a controlled substance with intent to deliver. She argues she received
ineffective assistance of counsel when trial counsel failed to object to the lack of an
elements instruction. She also argues there was insufficient evidence to sustain this
conviction. We disagree and affirm.
FACTS
In June 2016, Spokane police officers set up a series of controlled buys, using a
confidential informant to purchase methamphetamine from Ms. Delesdernier. Following
the successful controlled buys, police arrested her for three sales of methamphetamine.
They searched her purse incident to the arrest and discovered $1,200 in cash and a small
No. 37203-1-III
State v. Delesdernier
quantity of methamphetamine. Ms. Delesdernier admitted to selling methamphetamine,
originally by the ounce and later in smaller quantities.
After the arrest, police obtained and executed a search warrant for Ms.
Delesdernier’s house. Police found one-eighth of an ounce of methamphetamine in a
plastic “baggie.” Police also found $1,500 in cash, various drug paraphernalia, and a
large scale that, in the detective’s experience, was usually used for drug trafficking.
Police also found drug packaging materials with methamphetamine residue.
The State charged Ms. Delesdernier with a number of drug-related crimes. Those
charges included possession of a controlled substance (count IV) and possession of a
controlled substance with intent to deliver (count V).
At the jury instruction conference, the State proposed and the trial court gave
pattern instructions for the charged offenses, including instructions for simple possession
(count IV) and possession with intent to deliver (count V). Defense counsel requested,
and the trial court gave, two additional instructions. One discussed a defendant’s right
not to testify at trial. The other, “Verdict Form F,” permitted the jury to consider a lesser
included offense for count V. That instruction provided in relevant part:
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We, the jury, having found the defendant, KATIE L.
DELESDERNIER, not guilty of the crime of Possession of a Controlled
Substance with Intent to Deliver, as charged in Count V, or being unable to
unanimously agree as to that charge, find the defendant, KATIE L.
DELESDERNIER, [write in “not guilty” or “guilty”] of the lesser included
crime of Possession of a Controlled Substance.
Clerk’s Papers at 155.
At the conclusion of the case, the jury returned a verdict of guilty on all counts as
charged and therefore did not fill in and sign Verdict Form F. Ms. Delesdernier timely
appealed.
ANALYSIS
INEFFECTIVE ASSISTANCE OF COUNSEL
Ms. Delesdernier contends her trial counsel was ineffective. She argues counsel
should have proposed a to-convict instruction for the lesser included offense, instead of
simply proposing Verdict Form F. We disagree.
When reviewing a challenge to the effective assistance of counsel, this court
conducts a two-prong analysis, reviewing first whether the performance of counsel was
deficient and, second, if counsel’s performance was deficient, whether that deficiency
prejudiced the defendant. State v. Lopez, 190 Wash. 2d 104, 116, 410 P.3d 1117 (2018).
This court examines a claim of ineffective assistance of counsel de novo. Id. at 117.
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A defendant is entitled to an instruction on the elements of a lesser included
offense when a lesser included offense instruction is given. State v. Aumick, 126 Wash. 2d
422, 426, 894 P.2d 1325 (1995). But jury instructions are sufficient when they permit the
parties to argue their theories of the case, do not mislead the jury, and properly inform the
jury of the applicable law. State v. Pirtle, 127 Wash. 2d 628, 656-57, 904 P.2d 245 (1995).
And jury instructions are read as a whole to determine whether they meet those
requirements. State v. Hardy, 44 Wash. App. 477, 480, 722 P.2d 872 (1986).
Ms. Delesdernier’s argument would have us ignore the instructions that were
given. The to-convict elements for possession of a controlled substance were given
with respect to count IV. Although a separate to-convict instruction for the lesser
included offense could have been offered, it would have differed from the other
possession instruction only with respect to the date of the offense. The date for the lesser
offense already was included in the instructions by virtue of the to-convict instruction for
count V. Read as a whole, the jury instructions were sufficient for Ms. Delesdernier to
argue in favor of the lesser included offense. She made her argument, but the jury instead
found her guilty of the greater offense. We conclude that Ms. Delesdernier’s counsel was
not deficient by not proposing a nearly duplicative to-convict instruction.
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SUFFICIENCY OF THE EVIDENCE
Ms. Delesdernier contends there was insufficient evidence to prove possession
with the intent to deliver. She argues the amount of drugs recovered was not substantial
and, even with the evidence of paraphernalia found in the house, this was not sufficient to
show an intent to deliver the methamphetamine. We disagree.
When reviewing a challenge to sufficiency of the evidence, this court reviews
whether the evidence, in the light most favorable to the State, would allow a rational trier
of fact to find the defendant guilty of the crime charged beyond a reasonable doubt. State
v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992). All reasonable inferences from
the evidence are drawn in favor of the State and interpreted against the defendant most
heavily. Id. Circumstantial evidence is equally as reliable as direct evidence. State v.
Delmarter, 94 Wash. 2d 634, 638, 618 P.2d 99 (1980).
In order to prove unlawful possession of a controlled substance with intent to
deliver, the State must show, beyond a reasonable doubt, the defendant (1) unlawfully
possessed, (2) a controlled substance, (3) with the intent to deliver the controlled
substance. RCW 69.50.401(1). “Mere possession of a controlled substance, including
quantities greater than needed for personal use, is not sufficient to support an inference of
intent to deliver.” State v. O’Connor, 155 Wash. App. 282, 290, 229 P.3d 880 (2010).
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Ms. Delesdernier argues that only where a large quantity of drugs is found in
addition to another factor, such as paraphernalia, can it be shown there was an intent to
deliver. She cites State v. Hotchkiss, 1 Wash. App. 2d 275, 280, 404 P.3d 629 (2017) in
support of this. However, while in Hotchkiss the defendant was in possession of a large
quantity of methamphetamine and an additional factor, a large amount of cash, the court
in Hotchkiss did not hold that the large quantity of drugs was a threshold matter that had
to be overcome to show intent to deliver.
This court has previously held that a large quantity of drugs is not a threshold issue
in finding intent to deliver. State v. Zunker, 112 Wash. App. 130, 138, 48 P.3d 344 (2002).
In Zunker, we held that a small amount of drugs can be sufficient to support a jury
finding when it is combined with other corroborating evidence. Id. This can include
large quantities of cash and drug paraphernalia. Id. at 136.
Here, police found a baggie containing one-eighth of an ounce of
methamphetamine in Ms. Delesdernier’s house. Detective Jay Mehring testified that this
was an amount that some users of methamphetamine would purchase. Further, police
recovered baggies that are often used for packaging drugs, a scale such as one might use
to weigh drugs before selling them, and $1,500 in cash. Notably, Ms. Delesdernier even
admitted to police that she sold methamphetamine to others. The State presented
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overwhelming evidence that Ms. Delesdemier possessed methamphetamine with intent to
deliver, easily sufficient to sustain her conviction on that charge.
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.
Lawrence-Berrey, J.
j
WE CONCUR:
Fearing, J.
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