FILED MARCH 7, 2019 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. 35184-0-III Respondent, ) ) v. ) ) BOGAR RIVERA-ZAMORA, ) OPINION PUBLISHED IN PART ) Appellant. )
KORSMO, J. — Bogar Rivera-Zamora appeals his convictions for delivery of a
controlled substance (methamphetamine) and possession of a controlled substance with
intent to deliver, arguing that the “to convict” instruction was deficient, and the trial court
erred in refusing an entrapment instruction. We affirm.
FACTS
On December 18, 2015, an undercover detective, posing as a prospective drug
buyer, attempted to make contact with a suspected dealer in a downtown Chelan
apartment building. After knocking on the door of the apartment, a nearby apartment
door opened and Mr. Rivera-Zamora exited, asking the detective what he was doing. The
detective spoke to Mr. Rivera-Zamora briefly and explained that he was looking to buy No. 35184-0-III State v. Rivera-Zamora
cocaine. Mr. Rivera-Zamora responded that he did not have cocaine but could help him
get some “crystal.” The detective agreed and the two made arrangements for the
purchase of methamphetamine. As arranged, Mr. Rivera-Zamora took the detective’s
money and returned with a small bag, set it down and motioned for the detective to come
and take it. The bag later tested positive for methamphetamine.
The detective returned February 2, 2016, and again was able to purchase
methamphetamine from Mr. Rivera-Zamora. Nine days later, after an unsuccessful
attempt to buy more methamphetamine, officers executed a search warrant for Mr.
Rivera-Zamora’s apartment. During the search, deputies found a total of $1,765 in Mr.
Rivera-Zamora’s pockets, and two digital scales in the apartment. He told officers where
to find a bag of methamphetamine inside a plastic glove in a cereal box. The plastic
glove weighed 11.7 grams and tested positive for methamphetamine.
Mr. Rivera-Zamora was arrested and spoke with two detectives. He admitted that
he used methamphetamine and “sold to a few people” to sustain his personal use. Mr.
Rivera-Zamora was subsequently charged with two counts of delivery of a controlled
substance, possession of a controlled substance with intent to deliver, and maintaining a
drug property. Three of the charges included allegations that the offenses occurred
within 1,000 feet of school grounds and/or a school bus stop.
At trial, Mr. Rivera-Zamora requested an entrapment instruction on the first
delivery charge, arguing that his testimony detailing the detective’s badgering behavior
2 No. 35184-0-III State v. Rivera-Zamora
was sufficient to persuade a reasonable jury of the existence of the defense. In denying
the instruction, the trial court explained that the proposed instruction was an incorrect
statement of the law and inaccurate.1 The court also determined that the testimony was
insufficient under the case law to support the instruction.
The jury convicted as charged and found the enhancements had been established.
Mr. Rivera-Zamora received a prison-based drug offender sentencing alternative (32
months in prison followed by 32 months’ community custody).
Mr. Rivera-Zamora timely appealed to this court. A panel considered the appeal
without hearing argument.
ANALYSIS
This opinion addresses two issues. First, we consider Mr. Rivera-Zamora’s
challenge to the sentence on the charge of possession with intent to deliver. We then turn
to the claim that the trial court erred in denying his proposed entrapment instruction.
Possession with Intent Sentence
Mr. Rivera-Zamora first argues that the omission of the identity of the controlled
substance in the elements instruction for the charge of possession with intent to deliver
requires resentencing for the imposition of a lesser felony. We conclude that despite the
1 The proposed instruction varied from the pattern instruction by failing to set forth the proper burden of proof. Clerk’s Papers at 24.
3 No. 35184-0-III State v. Rivera-Zamora
omission of the word “methamphetamine” in the “to convict” instruction, he has not
established manifest constitutional error.
The omission of an element from a “to convict” instruction is an error of
constitutional magnitude that may be raised for the first time on appeal. State v. Mills,
154 Wn.2d 1, 6, 109 P.3d 415 (2005). We review alleged instructional error de novo.
State v. Brooks, 142 Wn. App. 842, 848, 176 P.3d 549 (2008).
A “to convict” instruction must contain all the elements of the crime “because it
serves as a ‘yardstick’ by which the jury measures the evidence to determine guilt or
innocence.” State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997). “[A] reviewing
court may not rely on other instructions to supply the element missing from the ‘to
convict’ instruction.” State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003).
Where the identity of a controlled substance increases the statutory maximum sentence,
the identity of the substance is an essential element. State v. Goodman, 150 Wn.2d 774,
785, 83 P.3d 410 (2004). Omission of an essential element is subject to harmless error
analysis. State v. Brown, 147 Wn.2d 330, 332, 58 P.3d 889 (2002). A jury instruction
that omits an essential element is harmless if it appears beyond a reasonable doubt the
error did not contribute to the verdict. Id. at 341. The omitted element must be supported
by “uncontroverted evidence,” and the reviewing court must be able to “‘conclude
beyond a reasonable doubt that the jury verdict would have been the same absent the
4 No. 35184-0-III State v. Rivera-Zamora
error.’” Id. (quoting Neder v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L. Ed.
2d 35 (1999)).
In Clark-El, the defendant was tried on a charge of delivery of methamphetamine,
a class B felony. State v. Clark-El, 196 Wn. App. 614, 618, 384 P.3d 627 (2016). The
“to convict” instruction did not identify the controlled substance and the jury found
Clark-El guilty of the crime of delivery of a controlled substance. Id. at 618-19. The trial
court sentenced him for delivery of methamphetamine. Id. at 618.
On appeal, Division One of this court held that it was error not to identify the
substance in the elements instruction, but the error was harmless as to Clark-El’s
conviction. Id. at 620. However, the error was not harmless as to the sentence because
the verdict did not authorize the sentence imposed. Id. at 624. “The sentencing judge
imposed a sentence as if the jury had found Clark-El delivered methamphetamine, a class
B felony, when the only finding stated in the verdict was that Clark-El was guilty of the
crime of delivery of ‘a controlled substance.’” Id. Because delivery of an unspecified
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FILED MARCH 7, 2019 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. 35184-0-III Respondent, ) ) v. ) ) BOGAR RIVERA-ZAMORA, ) OPINION PUBLISHED IN PART ) Appellant. )
KORSMO, J. — Bogar Rivera-Zamora appeals his convictions for delivery of a
controlled substance (methamphetamine) and possession of a controlled substance with
intent to deliver, arguing that the “to convict” instruction was deficient, and the trial court
erred in refusing an entrapment instruction. We affirm.
FACTS
On December 18, 2015, an undercover detective, posing as a prospective drug
buyer, attempted to make contact with a suspected dealer in a downtown Chelan
apartment building. After knocking on the door of the apartment, a nearby apartment
door opened and Mr. Rivera-Zamora exited, asking the detective what he was doing. The
detective spoke to Mr. Rivera-Zamora briefly and explained that he was looking to buy No. 35184-0-III State v. Rivera-Zamora
cocaine. Mr. Rivera-Zamora responded that he did not have cocaine but could help him
get some “crystal.” The detective agreed and the two made arrangements for the
purchase of methamphetamine. As arranged, Mr. Rivera-Zamora took the detective’s
money and returned with a small bag, set it down and motioned for the detective to come
and take it. The bag later tested positive for methamphetamine.
The detective returned February 2, 2016, and again was able to purchase
methamphetamine from Mr. Rivera-Zamora. Nine days later, after an unsuccessful
attempt to buy more methamphetamine, officers executed a search warrant for Mr.
Rivera-Zamora’s apartment. During the search, deputies found a total of $1,765 in Mr.
Rivera-Zamora’s pockets, and two digital scales in the apartment. He told officers where
to find a bag of methamphetamine inside a plastic glove in a cereal box. The plastic
glove weighed 11.7 grams and tested positive for methamphetamine.
Mr. Rivera-Zamora was arrested and spoke with two detectives. He admitted that
he used methamphetamine and “sold to a few people” to sustain his personal use. Mr.
Rivera-Zamora was subsequently charged with two counts of delivery of a controlled
substance, possession of a controlled substance with intent to deliver, and maintaining a
drug property. Three of the charges included allegations that the offenses occurred
within 1,000 feet of school grounds and/or a school bus stop.
At trial, Mr. Rivera-Zamora requested an entrapment instruction on the first
delivery charge, arguing that his testimony detailing the detective’s badgering behavior
2 No. 35184-0-III State v. Rivera-Zamora
was sufficient to persuade a reasonable jury of the existence of the defense. In denying
the instruction, the trial court explained that the proposed instruction was an incorrect
statement of the law and inaccurate.1 The court also determined that the testimony was
insufficient under the case law to support the instruction.
The jury convicted as charged and found the enhancements had been established.
Mr. Rivera-Zamora received a prison-based drug offender sentencing alternative (32
months in prison followed by 32 months’ community custody).
Mr. Rivera-Zamora timely appealed to this court. A panel considered the appeal
without hearing argument.
ANALYSIS
This opinion addresses two issues. First, we consider Mr. Rivera-Zamora’s
challenge to the sentence on the charge of possession with intent to deliver. We then turn
to the claim that the trial court erred in denying his proposed entrapment instruction.
Possession with Intent Sentence
Mr. Rivera-Zamora first argues that the omission of the identity of the controlled
substance in the elements instruction for the charge of possession with intent to deliver
requires resentencing for the imposition of a lesser felony. We conclude that despite the
1 The proposed instruction varied from the pattern instruction by failing to set forth the proper burden of proof. Clerk’s Papers at 24.
3 No. 35184-0-III State v. Rivera-Zamora
omission of the word “methamphetamine” in the “to convict” instruction, he has not
established manifest constitutional error.
The omission of an element from a “to convict” instruction is an error of
constitutional magnitude that may be raised for the first time on appeal. State v. Mills,
154 Wn.2d 1, 6, 109 P.3d 415 (2005). We review alleged instructional error de novo.
State v. Brooks, 142 Wn. App. 842, 848, 176 P.3d 549 (2008).
A “to convict” instruction must contain all the elements of the crime “because it
serves as a ‘yardstick’ by which the jury measures the evidence to determine guilt or
innocence.” State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997). “[A] reviewing
court may not rely on other instructions to supply the element missing from the ‘to
convict’ instruction.” State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003).
Where the identity of a controlled substance increases the statutory maximum sentence,
the identity of the substance is an essential element. State v. Goodman, 150 Wn.2d 774,
785, 83 P.3d 410 (2004). Omission of an essential element is subject to harmless error
analysis. State v. Brown, 147 Wn.2d 330, 332, 58 P.3d 889 (2002). A jury instruction
that omits an essential element is harmless if it appears beyond a reasonable doubt the
error did not contribute to the verdict. Id. at 341. The omitted element must be supported
by “uncontroverted evidence,” and the reviewing court must be able to “‘conclude
beyond a reasonable doubt that the jury verdict would have been the same absent the
4 No. 35184-0-III State v. Rivera-Zamora
error.’” Id. (quoting Neder v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L. Ed.
2d 35 (1999)).
In Clark-El, the defendant was tried on a charge of delivery of methamphetamine,
a class B felony. State v. Clark-El, 196 Wn. App. 614, 618, 384 P.3d 627 (2016). The
“to convict” instruction did not identify the controlled substance and the jury found
Clark-El guilty of the crime of delivery of a controlled substance. Id. at 618-19. The trial
court sentenced him for delivery of methamphetamine. Id. at 618.
On appeal, Division One of this court held that it was error not to identify the
substance in the elements instruction, but the error was harmless as to Clark-El’s
conviction. Id. at 620. However, the error was not harmless as to the sentence because
the verdict did not authorize the sentence imposed. Id. at 624. “The sentencing judge
imposed a sentence as if the jury had found Clark-El delivered methamphetamine, a class
B felony, when the only finding stated in the verdict was that Clark-El was guilty of the
crime of delivery of ‘a controlled substance.’” Id. Because delivery of an unspecified
controlled substance is a class C felony, the court held that the sentencing court erred in
imposing a sentence for a class B felony. Id.
This case is distinguishable from Clark-El. Here, the jury’s verdict included the
identity of the controlled substance, even if the elements instruction omitted it. Thus, the
error was harmless as to Mr. Rivera-Zamora’s conviction. Mr. Rivera-Zamora told
5 No. 35184-0-III State v. Rivera-Zamora
officers where to locate the substance after his arrest and there was no conflicting
testimony challenging the identity of the substance found in his apartment.
As to the sentence, the charging document stated the identity of the substance Mr.
Rivera-Zamora allegedly possessed with intent to deliver. Additionally, although the
elements instruction omitted the word “methamphetamine,” the verdict form stated
unequivocally that it found Mr. Rivera-Zamora guilty of unlawful possession of a
controlled substance with intent to deliver—methamphetamine. Because the jury
expressly found that Mr. Rivera-Zamora possessed methamphetamine with intent to
deliver, the sentence was authorized. The court did not err in sentencing him for that
offense.
The error in the elements instruction was harmless.
Affirmed.
A majority of the panel having determined that only the forgoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder
having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it
is so ordered.
Entrapment Instruction
Mr. Rivera-Zamora next argues that the trial court erred in failing to provide the
jury with an entrapment instruction for one of the charges of delivery of a controlled
substance. The trial court did not abuse its discretion.
6 No. 35184-0-III State v. Rivera-Zamora
Trial courts have an obligation to provide instructions that correctly state the law,
are not misleading, and allow the parties to argue their respective theories of the case. State
v. Dana, 73 Wn.2d 533, 536-37, 439 P.2d 403 (1968). A court should give an instruction
only if it is supported by substantial evidence. State v. Hughes, 106 Wn.2d 176, 191, 721
P.2d 902 (1986). The trial court also is granted broad discretion in determining the wording
and number of jury instructions. Petersen v. State, 100 Wn.2d 421, 440, 671 P.2d 230
(1983). Discretion is abused when it is exercised on untenable grounds or for untenable
reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The defense of entrapment is statutory:
(1) In any prosecution for a crime, it is a defense that: (a) The criminal design originated in the mind of law enforcement officials, or any person acting under their direction, and (b) The actor was lured or induced to commit a crime which the actor had not otherwise intended to commit. (2) The defense of entrapment is not established by a showing only that law enforcement officials merely afforded the actor an opportunity to commit a crime.
RCW 9A.16.070.
“With respect to the quantum of proof necessary to entitle a defendant to an
entrapment instruction . . . a defendant must present evidence which would be sufficient
to permit a reasonable juror to conclude that the defendant has established the defense of
entrapment by a preponderance of the evidence.” State v. Trujillo, 75 Wn. App. 913,
917, 883 P.2d 329 (1994). The entrapment defense focuses “‘on the intent or
7 No. 35184-0-III State v. Rivera-Zamora
predisposition of the defendant to commit the crime.’” Hampton v. United States, 425
U.S. 484, 488, 96 S. Ct. 1646, 1649, 48 L. Ed. 2d 113 (1976) (quoting United States v.
Russell, 411 U.S. 423, 429, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973)). Entrapment occurs
only when the criminal design originated in the mind of the police officer or informer,
and the accused is lured or induced into committing a crime he had no intention of
committing. RCW 9A.16.070; State v. Waggoner, 80 Wn.2d 7, 10, 490 P.2d 1308
(1971). An undercover officer or police informant’s use of a “normal amount of
persuasion to overcome the defendant’s expected resistance to sell drugs is not
entrapment; nor is the use of deception, trickery, or artifice by the police.” Trujillo, 75
Wn. App. at 918. In order to show entrapment, a defendant must show more than mere
reluctance on his or her part to violate the law. State v. Enriquez, 45 Wn. App. 580, 585,
725 P.2d 1384 (1986). A scintilla of evidence is not sufficient to justify an entrapment
instruction. State v. Gray, 69 Wn.2d 432, 434-35, 418 P.2d 725 (1966).
Taking the evidence in the light most favorable to Mr. Rivera-Zamora, the
detective asked Mr. Rivera-Zamora three or four times to help him purchase some
cocaine. Mr. Rivera-Zamora did not present any evidence showing more than a mere
reluctance to acquiesce to the requests. The trial court’s remarks on the issue further
confirm this conclusion. The trial court pointed out that although the detective made
three or four requests, Mr. Rivera-Zamora believed he was helping another fellow drug
addict. Mr. Rivera-Zamora did not present sufficient evidence to persuade a reasonable
8 No. 35184-0-III State v. Rivera-Zamora
jury that he had established the defense by a preponderance of the evidence. The trial
court did not err by refusing to instruct the jury on the defense of entrapment.
WE CONCUR:
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