FILED
CRT OF APPEALS
DIVISION 11
Z0111 SEP - 3 MI 3> 14
STATE OF WikSHlWGTON
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 45002 -0 -II
Respondent,
v.
MARYLENA SHERMEIRA BLOCKMAN, UNPUBLISHED OPINION
Appellant.
LEE, J. — Marylena Shermeira Blockman appeals from the judgment and sentence
imposed following her convictions for unlawful delivery of a controlled substance, bail jumping
and obstructing a law enforcement officer. She argues that: ( 1) the trial court erred in allowing
testimony from her son' s probation officer and ( 2) the State failed to present sufficient evidence
that she obstructed a law enforcement officer. In her Statement of Additional Grounds ( SAG)
under RAP 10. 10, she asserts that she received ineffective assistance of counsel, that the jury
should have been instructed on a lesser included offense of conspiracy and that the evidence
against her on the unlawful delivery of cocaine conviction was insufficient. The State denies that
the trial court erred in admitting evidence but concedes that there was insufficient evidence of
obstructing a law enforcement officer. We affirm Blockman' s convictions for bail jumping and
No. 45002 -0 -II
unlawful delivery of a controlled substance, vacate Blockman' s conviction for obstructing a law
enforcement officer, and remand for resentencing on the remaining convictions.
FACTS
1
S. G. volunteered to participate in a $ 300 controlled buy of cocaine from Connie
Calloway. When the supervising detective drove her to the agreed -upon meeting place, S. G. met
with Calloway and another woman who was with Calloway, Blockman. After a dispute as to
whether the transaction was to occur inside or outside Calloway' s vehicle, Blockman said to S. G.
just give it to me" and took the $ 300 from S. G. 2 Report of Proceedings ( RP) ( June 3, 2013) at
145. An officer who walked by the car overheard Blockman' s statement. Blockman gave the
300 to Calloway, took a package from Calloway and gave it to S. G. S. G. then gave the package
to the. detective. The contents of the package later tested positive for cocaine.
Calloway and Blockman were stopped by police as they drove away. Blockman initially
2
gave her name as Bonitta Burnette. After she arrived at the jail for booking, Blockman provided
her true name.
The State charged Blockman with unlawful delivery of cocaine and with obstructing a
police officer. At her arraignment on August 24, 2012, the trial court entered an Order
Establishing Conditions of Release that ordered Blockman to not travel outside Pierce, King,
Thurston and Kitsap Counties. It also entered an Order Continuing Trial that ordered Blockman
to appear at an omnibus hearing on January 8, 2013. Blockman did not appear for that omnibus
hearing. The State then amended its information to add a charge of bail jumping.
1
We use initials to maintain confidentiality. We mean no disrespect.
2 Blockman testified that she told the police that her name was Banika Burnette. RP ( June 4,
2013) at 66.
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No. 45002 -0 -II
At trial, the State called Patrice Paschich, who was Blockman' s son' s probation officer,
to testify as to a conversation she had with Blockman in December 2012. Blockman objected on
grounds of relevance. The trial court allowed the testimony under ER 404( b) as being relevant to
Blockman' s state of mind as to the bail jumping. Paschich testified that Blockman told her that
she was in California and did not plan to return to Washington in the near future.
Blockman testified that she knew Calloway and was present during S. G.' s meeting with
Calloway, but denied listening to their conversation, being aware that a drug deal was occurring,
taking the money from S. G. or giving the money to Calloway. The jury found her guilty as
charged. Blockman appeals.
ANALYSIS
1. ER 404( b)
Blockman argues that the trial court erred in admitting the testimony from Paschich. We
review the admission of evidence under ER 404( b) for an abuse of discretion. State v. Tharp, 27
Wn. App. 198, 205 -06, 616 P. 2d 693 ( 1980), aff'd, 96 Wn.2d 591 ( 1981).
Blockman contends that the trial court abused its discretion because intent is not an
element of bail jumping, so her state of mind was irrelevant. And she contends that the
testimony was highly prejudicial in that it suggested that she was an irresponsible mother. ER
404( b) prohibits admission of the defendant' s other bad acts " to prove the character of a person
in order to show action in conformity therewith." Here, the evidence is not evidence of
Blockman' s other bad acts. Therefore, the evidence is not evidence that would be used to prove
Blockman' s character, and, therefore, cannot be used to prove she acted in conformity with that
character. Accordingly, the trial court did not abuse its discretion by admitting Paschich' s
testimony under ER 404( b).
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Furthermore, the trial court recognized the potential for prejudice and restricted the State
from soliciting any testimony about the circumstances surrounding the telephone conversation,
particularly about the status of Blockman' s son. Therefore, while the testimony was of limited
relevance, we cannot say that the trial court abused its discretion in admitting it while
ameliorating any unfair prejudice that unrestricted testimony may have created.
2. SUFFICIENCY OF THE EVIDENCE
Blockman argues that the State failed to present sufficient evidence of obstructing a law
enforcement officer because " some conduct in addition to making false statements" is required to
prove that charge beyond a reasonable doubt. State v. Williams, 171 Wn.2d 474, 486, 251 P. 3d
877 ( 2011). The State concedes that she is correct. We accept the State' s concession, and we
reverse and vacate Blockman' s conviction for obstructing a law enforcement officer.
3. SAG ISSUES
In her SAG, Blockman asserts that she received ineffective assistance of counsel because
her counsel said he had subpoenaed Calloway and would call her as a witness, but did neither.
To establish ineffective assistance of counsel, Blockman must demonstrate that her counsel' s
performance fell below an objective standard of reasonableness and that the result of her case
would have been different but for defense counsel' s deficient performance. State v. McFarland,
127 Wn.2d 322, 334 -37, 899 P. 2d 1251 ( 1995); Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). Blockman does not identify how testimony from
Calloway would probably have changed the result of the trial, especially given the fact that if
Calloway were to have exonerated Blockman, Calloway would have had to inculpate herself.
Blockman' s ineffective assistance of counsel claim fails.
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Blockman also asserts that the jury should have been instructed on a lesser included
offense of conspiracy. We disagree. Blockman fails to point to any evidence of a conspiracy,
and she denied knowing that a drug deal was occurring. Accordingly, Blockman' s assertion that
the jury should have been instructed on conspiracy as a lesser included offense fails.
Finally, Blockman asserts that the evidence was insufficient to support her unlawful
because the $ 300 in cash was not found after the arrest. " The test
delivery of cocaine conviction
for determining the sufficiency of the evidence is whether, after viewing the evidence in the light
most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable
doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). " A claim of insufficiency
admits the truth of the State' s evidence and all inferences that reasonably can be drawn
therefrom." Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally
reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980). " Credibility
determinations are for the trier of fact and cannot be reviewed on appeal." State v. Camarillo,
115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990). Taken in the light most favorable to the State, S. G.' s
testimony as to the taking of the money and the exchange of the cocaine is sufficient evidence to
support an unlawful delivery of cocaine conviction, particularly given the passing police
officer' s corroborating testimony. Thus, Blockman' s SAG claim lacks merit.
No. 45002 -0 -II
We affirm Blockman' s convictions for bail jumping and unlawful delivery of cocaine,
reverse and vacate Blockman' s conviction for obstructing a law enforcement officer, and remand
to the trial court for resentencing on the remaining convictions.
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 in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
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I.
Bjorgen, A.C. J.