State Of Washington v. Michelle Martinez ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) DIVISION ONE
Respondent, )
) No. 80500-2-I
v. )
) UNPUBLISHED OPINION
MICHELLE C. MARTINEZ, )
)
Appellant. )
_______________________________ )
DWYER, J. — Michelle Martinez appeals from the trial court’s order denying
her motion to withdraw her guilty plea to controlled substances homicide.
Martinez contends that her plea was not voluntary because there was an
insufficient factual basis to support her guilt. We conclude to the contrary.
Accordingly, we affirm.
I
On May 11, 2018, the Swinomish Police Department responded to a
reported drug overdose and found Ida Sylvester unconscious on her bedroom
floor. While en route to the hospital, Sylvester died.
The day before her death, Sylvester drove three individuals (identified in
the probable cause affidavit as Witness 1, Witness 2, and Witness 3) to
Martinez’s house to purchase Percocet.1 Text messages between Martinez and
1
The facts contained herein are based on the probable cause affidavit because it
provided the factual basis for the trial court’s decision to accept Martinez’s guilty plea. Because
the probable cause affidavit does not state the witnesses’ names, we refer to them as Witness 1,
Witness 2, and Witness 3.
No. 80500-2-I/2
Witness 3 suggest that Sylvester, Witness 1, Witness 2, and Witness 3 went to
Martinez’s house to purchase pills several times that day. While the probable
cause affidavit does not directly quote the text messages between Martinez and
Witness 3, the affidavit suggests that both Martinez and Witness 3 used the
pronoun “they” as if acknowledging that more than one buyer was involved in the
transactions. (“[Witness 3] can then be seen texting MARTINEZ that they need
two [pills]”; “[Witness 3] text[s] MARTINEZ stating that they are there”;
“MARTINEZ responds by telling [Witness 3] to let her know when they arrive”;
“[Witness 3] texts MARTINEZ letting her know that they have arrived.”
(emphases added)).
Throughout the day, Martinez sold Witness 3 up to nine 30mg Percocet
pills. On at least one occasion, Sylvester waited in the car as Witness 3
purchased two pills from Martinez. Witness 1 stated that Sylvester waited in the
car because Martinez did not like Sylvester. Furthermore, Witness 3 told police
that Witness 3 would normally purchase drugs for the entire group (Sylvester,
Witness 1, Witness 2, and Witness 3).
Calvin Edwards—the individual who reported Sylvester’s overdose to the
police—stated that he had been purchasing Percocet from Martinez for the last
two years. On prior occasions, Edwards had purchased pills from Martinez for
Sylvester. According to Edwards, Martinez was aware that, on these occasions,
he was purchasing pills for both himself and Sylvester. Martinez did not want
Sylvester to come into her house, so Sylvester would stay in the car during the
transactions. Although Martinez did not want Sylvester in her house, Sylvester’s
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No. 80500-2-I/3
cell phone contained text messages between Sylvester and Martinez regarding
drug transactions on previous occasions.
Hours after Edwards reported Sylvester’s overdose, he telephoned
Martinez. The probable cause affidavit does not describe the content of this
conversation. However, shortly after speaking with Edwards, Martinez texted
another individual, stating that a woman had died from drugs sold by Martinez
and that the pills were causing people to throw up blood. Martinez warned this
individual that “he is going to lose a lot of clients from the store because of [a]
change [in pills that he] made.” The following day, Martinez texted another
individual, warning, “Don’t take the dark blue one,” and “Just bring it back.”
Prior to Sylvester’s overdose, the police had received information about
drug activity conducted at Martinez’s address by a female who was referenced
by the nickname “Mika.” Three individuals—an anonymous caller, Witness 1,
and Witness 2—all told the police that Martinez goes by the nickname “Mika.” In
addition, a search of Martinez’s cell phone revealed that “just about everyone
[including] MARTINEZ herself identifies her as Mika.”
At the time of her arrest, Martinez stated that she does not go by “Mika”
and that nobody called her that. She also told officers that she knew nothing
about pills being sold at her house. According to Martinez, she had only met
Sylvester and Witness 3 on one occasion when they stopped by the house for
“spiritual readings and baths.”
The State charged Martinez with seven controlled substances offenses.
Martinez pled guilty to three counts: controlled substances homicide, possession
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with intent to manufacture or deliver a controlled substance, and conspiracy to
deliver a controlled substance. In entering her plea, rather than making a
statement detailing her guilt in her own words, Martinez “agree[d] that the court
may review the police reports and/or a statement of probable cause supplied by
the prosecution to establish a factual basis for the plea.” The trial court accepted
Martinez’s guilty plea to all three counts.
Prior to sentencing, however, Martinez moved to withdraw her guilty plea
to the controlled substances homicide charge, asserting that there was an
insufficient factual basis for her plea. The trial court denied Martinez’s motion,
reasoning that the probable cause affidavit contained sufficient facts to support
her guilt of controlled substances homicide. Martinez appeals.
II
Martinez contends that her guilty plea to controlled substances homicide
was not voluntary because there was an insufficient factual basis to support the
plea. Specifically, Martinez asserts that the probable cause affidavit did not
recite facts sufficient to establish that she delivered drugs to Sylvester. We
disagree.
A
We review the denial of a motion to withdraw a guilty plea for abuse of
discretion. State v. Marshall, 144 Wash. 2d 266, 280, 27 P.3d 192 (2001). A guilty
plea may be withdrawn when necessary to correct a manifest injustice. CrR
4.2(f). A manifest injustice exists when the plea was not voluntary. Marshall,
144 Wash. 2d at 281. To ensure that a plea is voluntary, “[t]he court shall not enter
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No. 80500-2-I/5
a judgment upon a plea of guilty unless it is satisfied that there is a factual basis
for the plea.” CrR 4.2(d). In its determination of “whether a factual basis exists
for a plea, the trial court need not be convinced beyond a reasonable doubt that
the defendant is in fact guilty.” State v. Saas, 118 Wash. 2d 37, 43, 820 P.2d 505
(1991). Instead, “a factual basis exists if there is sufficient evidence for a jury to
conclude that the defendant is guilty.” Saas, 118 Wash. 2d at 43.
We employ the same test for reviewing the factual basis of a plea as we
do for reviewing the sufficiency of the evidence to support a verdict. When
reviewing the sufficiency of the evidence for a conviction, we view the evidence
in the light most favorable to the State, draw all reasonable inferences from the
evidence in the State’s favor, and interpret the evidence most strongly against
the defendant. State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992). A
claim of insufficiency admits the truth both of the State’s evidence and of all
reasonable inferences from the evidence. Salinas, 119 Wash. 2d at 201. We then
determine whether “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).2
B
Under the Uniform Controlled Substances Act, chapter 69.50 RCW:
A person who unlawfully delivers a controlled substance in violation
of RCW 69.50.401(2) (a), (b), or (c) which controlled substance is
subsequently used by the person to whom it was delivered,
2
This is an objective standard. Accordingly, the parties’ quibbling over the sufficiency of
the trial court’s findings of fact is of no moment. If any rational trier of fact could have found the
facts sufficient, the standard is met—regardless of what a particular fact finder might have found
or not found.
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No. 80500-2-I/6
resulting in the death of the user, is guilty of controlled substances
homicide.
RCW 69.50.415(1). Further, “‘[d]eliver’ or ‘delivery’ means the actual or
constructive transfer from one person to another of a substance, whether or not
there is an agency relationship.” RCW 69.50.101(i).
In State v. Campbell, we cited a dictionary for the common understanding
of “transfer,” interpreting it to mean “‘to carry or take from one person or place to
another’” or, more broadly, “‘to cause to pass from one person or thing to
another.’” 59 Wash. App. 61, 64, 795 P.2d 750 (1990) (quoting W EBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY 2426-27 (1971)). Similarly, in State v. Morris, we
cited a legal dictionary’s definition of “transfer,” which stated: “‘To convey or
remove from one place, person, etc., to another; pass or hand over from one to
another; . . . sell or give.’” 77 Wash. App. 948, 951, 896 P.2d 81 (1995) (quoting
BLACK’S LAW DICTIONARY (4th ed. rev. (1968)). We have also noted that “the
ordinary meaning of the word transfer includes constructive transfers.”
Campbell, 59 Wash. App. at 64.
In addition, we have in the past considered other states’ interpretations of
the term “constructive transfer” when those courts were construing their own
versions of the Uniform Controlled Substances Act. Notably, we approved of a
Texas appellate court’s recitation of one mode of constructive transfer: “‘[T]he
transfer of a controlled substance either belonging to the defendant or under his
direct or indirect control, by some other person or manner at the instance or
direction of the defendant.’” Campbell, 59 Wash. App. at 63 (quoting Davila v.
State, 664 S.W.2d 722, 724 (Tex.Crim.App. 1984)).
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In State v. Ramirez, 62 Wash. App. 301, 308, 814 P.2d 227 (1991), we
explained that, “[b]y its use of the term ‘deliver,’ the Uniform [Controlled
Substances] Act . . . criminalize[s] participation in the transfer of unlawful drugs,
regardless of whether the participation benefited the buyer or the seller.”
Ramirez, 62 Wash. App. at 308. Therefore, “when the Legislature defined a
delivery as a ‘transfer’, it necessarily included as ‘deliverers’ any persons who
intentionally participated in bringing about the drug transaction.” Ramirez, 62
Wash. App. at 309.
When an intermediary is involved in the sale of drugs, the intermediary
does not need to serve as an agent for the transferor to be criminally liable. See
RCW 69.50.101(i) (“‘Deliver’ or ‘delivery’ means the actual or constructive
transfer from one person to another of a substance, whether or not there is an
agency relationship.” (emphasis added)). In other words, the transferor does not
have to direct or control the intermediary, as agency would require. See Durias
v. Boswell, 58 Wash. App. 100, 104, 791 P.2d 282 (1990) (“An agency relationship
exists when one agrees to act for another under the latter’s direction and
control.”).
As we did in Campbell, we again look to how other states have interpreted
“constructive transfer” in construing their versions of the Uniform Controlled
Substances Act. In Daniels v. State, 754 S.W.2d 214, 221 (Tex.Crim.App.1988),
the Texas Court of Criminal Appeals clarified the requirements for a constructive
transfer, stating that a “constructive transfer requires the transferor at least be
aware of the existence of the ultimate transferee before delivery.” To clarify:
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No. 80500-2-I/8
This does not mean that the transferor need know the identity of or
be acquainted with the ultimate recipient. It only requires that when
the State alleges constructive transfer to an alleged ultimate
recipient that the accused must have contemplated that his initial
transfer would not be the final transaction in the chain of
distribution.
Daniels, 754 S.W.2d at 221.
This formulation is consistent with our own case law. Indeed, in Campbell,
we held that Campbell was properly convicted of delivering a controlled
substance by virtue of having sold cocaine to an undercover police officer
through an intermediary. Campbell, 59 Wash. App. at 62. We held that “[t]he
evidence shows that Campbell directed a constructive transfer of cocaine.”
Campbell, 59 Wash. App. at 63. Stated differently, the State proved that Campbell
necessarily knew that the intermediary was to deliver the cocaine to some other
person. It did not matter that Campbell was unaware of the ultimate purchaser’s
true name or employment as a police officer. Campbell, 59 Wash. App. at 63-64.
Thus, a person can transfer a substance by “‘caus[ing it] to pass from one
person or thing to another.’” Campbell, 59 Wash. App. at 64 (quoting W EBSTER’S,
supra, at 2426-27). This transfer may be facilitated by an intermediary, even
when the intermediary is not acting as an agent. RCW 69.50.101(i). What is
required is that the existence—but not the identity—of an ultimate recipient or
recipients be known. Daniels, 754 S.W.2d at 221; see, e.g., Campbell, 59 Wn.
App. at 62.
C
The probable cause affidavit states sufficient facts to support Martinez’s
plea of guilty to controlled substances homicide because a reasonable trier of
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No. 80500-2-I/9
fact could infer that Martinez caused pills to transfer to Sylvester by way of an
intermediary. The text messages between Martinez and Witness 3 alone
suggest that Martinez knew that Witness 3 was not the only transferee in the
drug transactions on May 10, 2018, but, rather, was acting, at least in part, as an
intermediary. In particular, the probable cause affidavit’s description of the text
messages uses the pronoun “they” as if both Martinez and Witness 3 were
stating that more than one transferee was involved in the transactions.
(“[Witness 3] can then be seen texting MARTINEZ that they need two [pills]”;
“[Witness 3] text[s] MARTINEZ stating that they are there”; “MARTINEZ responds
by telling [Witness 3] to let her know when they arrive”; “[Witness 3] texts
MARTINEZ letting her know that they have arrived.” (emphases added)).
These statements suggest that Martinez knew that Witness 3 was
purchasing pills for not only personal use but, also, for the use of at least one
other person. As explained above, a constructive transfer requires the transferor
be aware of the existence of an ultimate transferee before delivery. Daniels, 754
S.W.2d at 221.
Additionally, the probable cause affidavit states that Martinez sold Witness
3 up to nine 30mg Percocet pills over the course of the day. A reasonable trier of
fact could infer that nine 30mg pills is more than any individual would consume in
one day and, therefore, Martinez knew that Witness 3 was acting as an
intermediary for another transferee or transferees.
Moreover, Martinez’s prior course of dealing with Sylvester suggests that
Martinez knew that the pills Witness 3 was purchasing were, at least in part, for
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No. 80500-2-I/10
Sylvester. Sylvester’s cell phone contained text messages she exchanged with
Martinez regarding pill transactions on previous occasions. Both Witness 1 and
Edwards stated that Martinez did not want Sylvester to come into her house
during such transactions, so Sylvester would wait in the car while someone else
physically purchased the pills. According to Edwards, when he had purchased
pills from Martinez, Martinez was aware that he was purchasing pills for both
himself and Sylvester. Additionally, the probable cause affidavit states that
Witness 3 would normally purchase drugs from Martinez for the entire group
(Sylvester, Witness 1, Witness 2, and Witness 3), suggesting that Witness 3 had
done so on prior occasions.
Given this prior course of dealing, a reasonable trier of fact could infer that
Martinez knew that Witness 3 was acting as an intermediary for Sylvester as to
some or all of the transactions on May 10, 2018. While a transferor does not
need to know the identity of a transferee for a constructive transfer to occur, such
an inference nonetheless strongly reinforces the conclusion that Martinez
delivered pills to Sylvester. See Daniels, 754 S.W.2d at 221 (stating that the
transferor to a constructive transfer does not need to know the identity of the
transferee).
Finally, Martinez’s actions upon learning of Sylvester’s overdose could
lead a reasonable trier of fact to infer that, at the time Martinez sold drugs to
Witness 3, she knew that Sylvester was a transferee. Hours after Edwards
reported Sylvester’s overdose, he called Martinez. The probable cause affidavit
does not describe the content of this conversation. But shortly after speaking to
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No. 80500-2-I/11
Edwards, Martinez texted another individual, stating that a woman had died from
drugs sold by Martinez and that the pills were causing people to throw up blood.
She warned this individual that “he is going to lose a lot of clients from the store
because of [a] change [in pills that he] made.” The following day, Martinez texted
another individual, warning, “Don’t take the dark blue one,” and “Just bring it
back.”
These messages demonstrate Martinez’s knowledge that Sylvester died
from drugs sold by Martinez. A rationale trier of fact could conclude that, after
speaking to Edwards, Martinez contacted her supplier to warn him that the new,
dark blue pills supplied by him make people sick or die. A rationale trier of fact
could also conclude that Martinez then warned a customer not to take a dark
blue pill.
Competing inferences could be drawn from the text messages sent by
Martinez. On the one hand, these messages could be perceived to show that
Martinez had just learned from Edwards that Sylvester was a transferee to the
May 10 transactions. On the other hand, these messages could be perceived to
indicate that Martinez was already aware that Sylvester had purchased pills from
her on May 10, and she had just learned that those pills killed Sylvester.
However, our charge is to credit the inference in favor of the State. Salinas, 119
Wash. 2d at 201. We do so here. Accordingly, a reasonable trier of fact could infer
that, at the time of the transactions on May 10, Martinez knew that Witness 3 was
purchasing pills on Sylvester’s behalf.
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From these facts, a reasonable trier of fact could infer that Martinez
delivered to Sylvester the drugs that ultimately lead to her demise. Hence, the
probable cause affidavit contained sufficient facts to support Martinez’s guilty
plea. Therefore, Martinez’s guilty plea was properly deemed to be voluntary.
The trial court did not abuse its discretion by denying Martinez’s motion to
withdraw her plea.
Affirmed.
We concur:
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