State v. Campos

Schultheis, J.

(dissenting) — On this record, I find insufficient evidence of intent to deliver and would reverse.

Generally, a jury may infer specific criminal intent when it is logically probable that a defendant’s conduct clearly indicates the requisite intent. State v. Stearns, 61 Wn. App. 224, 228, 810 P.2d 41 (1991). Evidence of the intent to deliver must be compelling. State v. Davis, 79 Wn. App. 591, 594, 904 P.2d 306 (1995). Fossession of a controlled substance — even large amounts of a controlled substance — is insufficient alone to establish an inference of intent to deliver. State v. Lopez, 79 Wn. App. 755, 768, 904 P.2d 1179 (1995). Recognizing that the Legislature treats the crimes differently, we must be careful not to turn every possession of a controlled substance into possession with intent to deliver without substantial evidence as to the possessor’s intent, above and beyond the possession itself. State v. Hutchins, 73 Wn. App. 211, 217, 868 P.2d 196 (1994) (citing State v. Brown, 68 Wn. App. 480, 485, 843 P.2d 1098 (1993)).

Both cases cited by the majority — Lopez and State v. Hagler, 74 Wn. App. 232, 872 P.2d 85 (1994) — are distinguishable from these facts. The defendant in Lopez possessed 2 ounces of cocaine plus 4.7 grams of cocaine contained in 14 separately packaged bindles. He was also carrying over $800. The large amount of cocaine along with the separately packaged bindles and large amount of money suggested Mr. Lopez did not intend to retain the substance for his own use. Lopez, 79 Wn. App. at 769. In contrast, Mr. Campos constructively possessed about one ounce of cocaine and the substance was not packaged for multiple sales. Further, the amount of money he carried was consistent with the evidence that he was recently paid his salary and did not have a bank account. These last facts also distinguish Mr. Campos from the defendant in Hagler. There the court found intent to deliver from the facts that the defendant possessed 24 individual rocks of cocaine along with $342 in cash. Hagler, 74 Wn. App. at 236. In particular, the court found that so much cash in the possession of a juvenile was *226unusual enough to provide circumstantial evidence of intent to deliver. Id.

Besides possessing one ounce of cocaine and $1,750 in cash, Mr. Campos had a cell phone, a cell phone charger and a pager. Many people — most of whom do not deal drugs — carry such equipment in their vehicles, and the mere possession of these items should not support intent to deliver, absent additional evidence that they were used to arrange deliveries of cocaine. Further, the officer’s speculation that the list of numbers might be a ledger for drug transactions does not constitute compelling evidence.

Because convictions for possession with intent to deliver are highly fact specific, they require substantial corroborating evidence in addition to the fact of possession. Brown, 68 Wn. App. at 485. The evidence here is neither substantial nor sufficiently corroborative, and I would reverse the conviction.

Review denied at 142 Wn.2d 1006 (2000).