Opinion
No. 37130-8-II.
April 21, 2009.
Appeal from a judgment of the Superior Court for Thurston County, No. 06-1-01926-5, Anne Hirsch, J., entered November 27, 2007.
Reversed by unpublished opinion per Bridgewater, J., concurred in by Penoyar, A.C.J., and Armstrong, J.
UNPUBLISHED OPINION
Tammy Babbette Ricker appeals her jury conviction on one count of unlawful delivery of methamphetamine. We reverse and dismiss, finding the evidence insufficient to support her conviction.
Facts
On August 17, 2006, a FedEx employee in Lacey, Susan Hare, became suspicious of a package that Ricker was sending to a person in Hawaii, and opened it. Inside multiple layers of wrapping, she found three to four small packages. She opened one and found a bag of white crystals that she believed to be a controlled substance. The police were called and the package of suspected drugs was turned over to them. The substance was later tested in the state patrol's crime lab and determined to contain methamphetamine.
On November 1, 2007, the State filed a first amended information charging Ricker with one count of unlawful delivery of a controlled substance — methamphetamine within 1,000 feet of a school bus stop, occurring on August 17, 2006. The State dismissed the school bus stop enhancement on the first day of trial.
The information charged a second identical count occurring on October 12, 2006. The two charges were bifurcated and only the count referencing August 17 (count I) was tried in the present action.
At trial, Hare testified about her suspicions that prompted her to open the package. She explained that the FedEx office closes at 6:00 pm, which is a very busy time, and that overnight packages destined for Hawaii are picked up by a shuttle at about 6:10 pm. For about a year, Ricker had come to the FedEx office one to three times a week, always just moments before 6:00 pm, always sending a package to Hawaii, and always paying the $60 fee in cash, even though she could have saved $5 per shipment by using a FedEx account that she had once opened, but stopped using. This pattern continued even after FedEx employees asked her to come in early so they wouldn't be so rushed to get her package out on the shuttle. Ricker often seemed nervous, and always placed her pre-packaged items inside another package before handing it over to FedEx employees. On one occasion Ricker was accompanied by her son. Ricker had told Hare that her son was going to Hawaii for the summer, but when Hare asked about his trip to Hawaii, he appeared to be unaware of any such trip. These circumstances raised Hare's suspicions.
A forensic scientist from the state patrol's crime lab also testified that the white substance found in Ricker's package contained methamphetamine. The jury found Ricker guilty as charged. Following sentencing, Ricker timely appealed.
Discussion
Ricker contends that her conviction for unlawful delivery of a controlled substance — methamphetamine, is not supported by sufficient evidence. We agree.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Aten, 130 Wn.2d 640, 666-67, 927 P.2d 210 (1996). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. State v. Lubers, 81 Wn. App. 614, 618-19, 915 P.2d 1157, review denied, 130 Wn.2d 1008 (1996). Circumstantial and direct evidence are equally reliable. Lubers, 81 Wn. App. at 619. And we defer to the trier of fact on the credibility of witnesses and the persuasiveness of evidence. Lubers, 81 Wn. App. at 619.
The State charged Ricker with unlawful delivery of a controlled substance — methamphetamine, in violation of RCW 69.50.401(2)(b), alleging that she "did knowingly deliver Methamphetamine." CP at 2. The trial court's "to convict" instruction set forth the following element: "That the defendant knew that the substance delivered was a controlled substance, to wit methamphetamine." CP at 47. The State did not except. Because the State did not except to the "to convict" instruction, the instruction became the law of the case. State v. Hickman, 135 Wn.2d 97, 101-02, 954 P.2d 900 (1998) (jury instructions to which the State failed to object are the law of the case, and assignment of error may include a challenge to the sufficiency of evidence of an element added in the instruction); State v. Ong, 88 Wn. App. 572, 577-78, 945 P.2d 749 (1997) (same). See also State v. Barringer, 32 Wn. App. 882, 887-88, 650 P.2d 1129 (1982) (State assumed burden of proving unnecessary element in its proposed instructions), overruled in part on other grounds by State v. Monson, 113 Wn.2d 833, 849-50, 784 P.2d 485 (1989).
Here as in Ong, the State concedes on appeal that it assumed the burden of proving that Ricker knew the substance she delivered was methamphetamine. The State contends it did so, but the evidence it points to does not establish Ricker's knowledge of a specific drug. At most a jury could infer from Ricker's conduct that she knew she was shipping a controlled substance or some other contraband (i.e., she always paid cash, she always wrapped her package in multiple layers, and she always submitted the package for processing at the last minute). The State points to the lab report, which indicated the white powder at issue tested positive for methamphetamine. The State argues there "was no evidence of any other substance being present and no evidence that she did not know, or that she had any reason to lack the knowledge, that it was methamphetamine." Br. of Resp't at 5. But the State assumed the additional burden of proving beyond a reasonable doubt that Ricker knew she was delivering methamphetamine. As in Ong, "nothing in this evidence points to knowledge that the substance was [methamphetamine] rather than any other controlled substance. Thus, even viewed in the light most favorable to the State, the evidence shows only that [Ricker] knew the [contraband was] a controlled substance, not that [it] contained [methamphetamine]." Ong, 88 Wn. App. at 577-78 (footnote omitted). As in Ong, because the evidence is not sufficient to support Ricker's conviction, we must reverse it. Ong, 88 Wn. App. at 578. See also Hickman, 135 Wn.2d at 103 (reversal is required where reviewing court finds insufficient evidence to prove element of the crime added by law of the case); State v. Worland, 20 Wn. App. 559, 568-69, 582 P.2d 539 (1978) (reversing drug conviction of codefendant because State failed to prove element it had proposed).
Moreover, our finding of insufficiency dictates the appropriate remedy. Because "[r]etrial following reversal for insufficient evidence is `unequivocally prohibited[,]' . . . dismissal is the remedy." Hickman, 135 Wn.2d at 103 (quoting State v. Hardesty, 129 Wn.2d 303, 309, 915 P.2d 1080 (1996)). Accordingly, we reverse and dismiss.
Because we reverse and dismiss on Ricker's claim of insufficiency, we do not reach her other claims of ineffective assistance and instructional error.
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 pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and PENOYAR, A.C.J., concur.