Filed Washington State Court of Appeals Division Two
October 22, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 51573-3-II
Respondent, UNPUBLISHED OPINION
v.
GLORIA N. INIGUEZ GONZALEZ,
Appellant.
GLASGOW, J. — Gloria Iniguez Gonzalez was a passenger in a van where the police found
methamphetamine. Iniguez Gonzalez appeals from her conviction for possession of
methamphetamine with intent to deliver. She argues that the trial court erred in denying her motion
for a mistrial based on an improper statement that a testifying police officer made during testimony.
She contends her conviction was supported by insufficient evidence. She also argues that the trial
court should have given an instruction on the affirmative defense of unwitting possession in light
of a lesser included possession of methamphetamine charge. She challenges the imposition of a
criminal filing fee because she is indigent. Iniguez Gonzalez has also filed a statement of
additional grounds. No. 51573-3-II
We hold that the trial court did not abuse its discretion in denying Iniguez Gonzalez’s
motion for a mistrial because the court twice instructed the jury to ignore the improper comment
and she was not prejudiced. We hold that her conviction was supported by sufficient evidence
because the van where the drugs were found was registered in her name and the drugs were found
where she had been sitting. We hold that Iniguez Gonzalez failed to show unwitting possession
by a preponderance of the evidence, and so the trial court did not err in denying her request for an
instruction. We accept the State’s concession that the criminal filing fee should be stricken because
Iniguez Gonzalez is indigent. Finally, we conclude that none of the arguments made in the
statement of additional grounds warrants reversal.
We affirm Iniguez Gonzalez’s conviction and remand for the trial court to strike the
criminal filing fee from her judgment and sentence.
FACTS
The informant was arrested for possession of drugs and stolen property. In exchange for a
reduced sentence, he agreed to become an informant. In this capacity, the informant called
Eduardo Morales Martinez to set up a meeting that night at the informant’s house so he could
purchase methamphetamine from Morales Martinez. The informant told the police that Morales
Martinez would arrive in a white Honda Odyssey van.
That night, detectives Chad Withrow and Robin Holt set up surveillance and observed a
white Honda Odyssey heading in the direction of the informant’s house. The driver matched the
informant’s description of Morales Martinez. A woman, later identified as Iniguez Gonzalez, was
in the passenger seat. Withrow and Holt followed the van to a McDonald’s and then pulled it over
for a defective headlight.
2 No. 51573-3-II
As Withrow and Holt approached the van they noticed that Iniguez Gonzalez had moved
from the front passenger seat to the back passenger seat and that there was a baby in the back seat.
They asked Iniguez Gonzalez where she and Morales Martinez had been going, and she said they
were stopping at McDonald’s to get food. When Holt confronted her about the fact that there was
already McDonald’s food in the car, Iniguez Gonzalez said that they were going to buy shoes for
the baby. She also told the detectives that she and Morales Martinez were visiting a friend but she
could not remember their name or where they lived. Withrow testified that although English was
not Iniguez Gonzalez’s first language, they were able to converse without issue and it was not until
they asked to search the vehicle that she claimed she could not understand English.
While still at the scene, the detectives obtained a warrant to search the van. On the floor
below the backseat of the van where Iniguez Gonzalez had been sitting with her baby, the
detectives found three bags of methamphetamine. They then arrested Iniguez Gonzalez. The
detectives later learned that the van was registered in Iniguez Gonzalez’s name.
Iniguez Gonzalez was charged with possession of methamphetamine with intent to deliver,
with an enhancement based on the offense being committed within 1,000 feet of a school bus stop.
At trial, Withrow testified, based on his training and experience, about the typical hierarchy
of drug trafficking networks, including different levels of drug dealers. At one point Withrow said
that the majority of methamphetamine and heroin in Washington comes from Mexico. Iniguez
Gonzalez objected and immediately moved for a mistrial on the grounds that the testimony was
3 No. 51573-3-II
highly prejudicial given Iniguez Gonzalez’s heritage. After argument outside the presence of the
jury, the court declined to grant a mistrial, but sustained the objection and immediately instructed
the jury to disregard the statement.
The court instructed the jury to consider the lesser included offense of simple possession
should it find Iniguez Gonzalez not guilty of possession with intent to deliver. Because it is an
affirmative defense to the lesser included charge of possession, Iniguez Gonzalez requested that
the jury be instructed on the defense of unwitting possession, but the court denied her request. The
court also instructed the jury again “not to consider statements regarding ethnic origin of persons
or property.” Clerk’s Papers (CP) at 80.
The jury found Iniguez Gonzalez guilty of possession with intent to deliver and that the
offense occurred within 1,000 feet of a school bus stop. The court sentenced her to a total of 36
months and one day in prison. The court also imposed a criminal filing fee on Iniguez Gonzalez,
who is indigent.
Iniguez Gonzalez appeals her conviction and the imposition of the criminal filing fee as
part of her sentence.
ANALYSIS
I. DETECTIVE WITHROW’S TESTIMONY
Iniguez Gonzalez argues the trial court abused its discretion in denying her motion for a
mistrial. We disagree.
We review a trial court’s denial of a mistrial for abuse of discretion. State v. Whitaker, 6
Wn. App. 2d 1, 25, 429 P.3d 512 (2018), review granted in part, 193 Wn.2d 1012 (2019). We
will find abuse of discretion only when no reasonable judge would have reached the same
4 No. 51573-3-II
conclusion. Id. In addition, we will only overturn a trial court’s denial of a motion for mistrial
when there is a substantial likelihood that the error prompting the request for a mistrial affected
the jury’s verdict. Id.
In State v. Elkins, we held that the trial court did not abuse its discretion in denying a motion
for a mistrial in part because the trial court directed the jury to disregard the offending statement,
and we presume the jury followed the trial court’s instructions. 188 Wn. App. 386, 408, 353 P.3d
648 (2015). In less recent cases, we have also examined three factors when determining whether
an irregularity warrants a mistrial: (1) seriousness, (2) whether the irregularity involved
cumulative evidence, and (3) whether the trial court properly instructed the jury to disregard it.
State v. Garcia, 177 Wn. App. 769, 776, 313 P.3d 422 (2013). We consider these factors with
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Filed Washington State Court of Appeals Division Two
October 22, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 51573-3-II
Respondent, UNPUBLISHED OPINION
v.
GLORIA N. INIGUEZ GONZALEZ,
Appellant.
GLASGOW, J. — Gloria Iniguez Gonzalez was a passenger in a van where the police found
methamphetamine. Iniguez Gonzalez appeals from her conviction for possession of
methamphetamine with intent to deliver. She argues that the trial court erred in denying her motion
for a mistrial based on an improper statement that a testifying police officer made during testimony.
She contends her conviction was supported by insufficient evidence. She also argues that the trial
court should have given an instruction on the affirmative defense of unwitting possession in light
of a lesser included possession of methamphetamine charge. She challenges the imposition of a
criminal filing fee because she is indigent. Iniguez Gonzalez has also filed a statement of
additional grounds. No. 51573-3-II
We hold that the trial court did not abuse its discretion in denying Iniguez Gonzalez’s
motion for a mistrial because the court twice instructed the jury to ignore the improper comment
and she was not prejudiced. We hold that her conviction was supported by sufficient evidence
because the van where the drugs were found was registered in her name and the drugs were found
where she had been sitting. We hold that Iniguez Gonzalez failed to show unwitting possession
by a preponderance of the evidence, and so the trial court did not err in denying her request for an
instruction. We accept the State’s concession that the criminal filing fee should be stricken because
Iniguez Gonzalez is indigent. Finally, we conclude that none of the arguments made in the
statement of additional grounds warrants reversal.
We affirm Iniguez Gonzalez’s conviction and remand for the trial court to strike the
criminal filing fee from her judgment and sentence.
FACTS
The informant was arrested for possession of drugs and stolen property. In exchange for a
reduced sentence, he agreed to become an informant. In this capacity, the informant called
Eduardo Morales Martinez to set up a meeting that night at the informant’s house so he could
purchase methamphetamine from Morales Martinez. The informant told the police that Morales
Martinez would arrive in a white Honda Odyssey van.
That night, detectives Chad Withrow and Robin Holt set up surveillance and observed a
white Honda Odyssey heading in the direction of the informant’s house. The driver matched the
informant’s description of Morales Martinez. A woman, later identified as Iniguez Gonzalez, was
in the passenger seat. Withrow and Holt followed the van to a McDonald’s and then pulled it over
for a defective headlight.
2 No. 51573-3-II
As Withrow and Holt approached the van they noticed that Iniguez Gonzalez had moved
from the front passenger seat to the back passenger seat and that there was a baby in the back seat.
They asked Iniguez Gonzalez where she and Morales Martinez had been going, and she said they
were stopping at McDonald’s to get food. When Holt confronted her about the fact that there was
already McDonald’s food in the car, Iniguez Gonzalez said that they were going to buy shoes for
the baby. She also told the detectives that she and Morales Martinez were visiting a friend but she
could not remember their name or where they lived. Withrow testified that although English was
not Iniguez Gonzalez’s first language, they were able to converse without issue and it was not until
they asked to search the vehicle that she claimed she could not understand English.
While still at the scene, the detectives obtained a warrant to search the van. On the floor
below the backseat of the van where Iniguez Gonzalez had been sitting with her baby, the
detectives found three bags of methamphetamine. They then arrested Iniguez Gonzalez. The
detectives later learned that the van was registered in Iniguez Gonzalez’s name.
Iniguez Gonzalez was charged with possession of methamphetamine with intent to deliver,
with an enhancement based on the offense being committed within 1,000 feet of a school bus stop.
At trial, Withrow testified, based on his training and experience, about the typical hierarchy
of drug trafficking networks, including different levels of drug dealers. At one point Withrow said
that the majority of methamphetamine and heroin in Washington comes from Mexico. Iniguez
Gonzalez objected and immediately moved for a mistrial on the grounds that the testimony was
3 No. 51573-3-II
highly prejudicial given Iniguez Gonzalez’s heritage. After argument outside the presence of the
jury, the court declined to grant a mistrial, but sustained the objection and immediately instructed
the jury to disregard the statement.
The court instructed the jury to consider the lesser included offense of simple possession
should it find Iniguez Gonzalez not guilty of possession with intent to deliver. Because it is an
affirmative defense to the lesser included charge of possession, Iniguez Gonzalez requested that
the jury be instructed on the defense of unwitting possession, but the court denied her request. The
court also instructed the jury again “not to consider statements regarding ethnic origin of persons
or property.” Clerk’s Papers (CP) at 80.
The jury found Iniguez Gonzalez guilty of possession with intent to deliver and that the
offense occurred within 1,000 feet of a school bus stop. The court sentenced her to a total of 36
months and one day in prison. The court also imposed a criminal filing fee on Iniguez Gonzalez,
who is indigent.
Iniguez Gonzalez appeals her conviction and the imposition of the criminal filing fee as
part of her sentence.
ANALYSIS
I. DETECTIVE WITHROW’S TESTIMONY
Iniguez Gonzalez argues the trial court abused its discretion in denying her motion for a
mistrial. We disagree.
We review a trial court’s denial of a mistrial for abuse of discretion. State v. Whitaker, 6
Wn. App. 2d 1, 25, 429 P.3d 512 (2018), review granted in part, 193 Wn.2d 1012 (2019). We
will find abuse of discretion only when no reasonable judge would have reached the same
4 No. 51573-3-II
conclusion. Id. In addition, we will only overturn a trial court’s denial of a motion for mistrial
when there is a substantial likelihood that the error prompting the request for a mistrial affected
the jury’s verdict. Id.
In State v. Elkins, we held that the trial court did not abuse its discretion in denying a motion
for a mistrial in part because the trial court directed the jury to disregard the offending statement,
and we presume the jury followed the trial court’s instructions. 188 Wn. App. 386, 408, 353 P.3d
648 (2015). In less recent cases, we have also examined three factors when determining whether
an irregularity warrants a mistrial: (1) seriousness, (2) whether the irregularity involved
cumulative evidence, and (3) whether the trial court properly instructed the jury to disregard it.
State v. Garcia, 177 Wn. App. 769, 776, 313 P.3d 422 (2013). We consider these factors with
deference to the trial court because the trial court is in the best position to discern prejudice. Id. at
776-77.
Here, Iniguez Gonzalez argues that Withrow’s statement that the majority of the
methamphetamine and heroin in Washington comes from Mexico prejudicially suggested to the
jury that she must be guilty on account of her name and the fact that she used an interpreter
throughout trial. Iniguez Gonzalez objected before this line of testimony could proceed any
further. The trial court correctly ruled that the comment was improper and accordingly instructed
the jury to disregard the statement. Neither Withrow nor the prosecutor suggested a connection to
the defendant’s guilt or innocence, nor was there any evidence presented to suggest that Iniguez
Gonzalez is of Mexican heritage or involved with Mexican drug traffickers.
5 No. 51573-3-II
Applying the Garcia factors, although Withrow’s comment was improper, it was not so
serious as to affect the jury’s verdict. The comment was isolated. And just before closing
arguments and deliberation, the court again instructed the jury “not [to] consider statements
regarding ethnic origin of persons or property.” CP at 80. We presume the jury followed those
instructions. Elkins, 188 Wn. App. at 408. Considering all three factors for evaluating a denial of
mistrial, the trial court did not abuse its discretion.
Iniguez Gonzalez claims the jury instruction given just after the motion for mistrial was
ambiguous because it told the jury to disregard “the last statement made by the detective,” after
the parties and the court had proceeded outside the presence of the jury for some time to discuss
the motion. Verbatim Report of Proceedings (VRP) (Feb. 14, 2018) at 161. It is clear in context
which statement the court was referring to and any lingering confusion on the part of the jury
would have been ameliorated by the court’s later jury instruction on statements regarding national
origin. The trial court was in the best position to determine prejudice, and it concluded that these
instructions were sufficient to address the improper comment. Garcia, 177 Wn. App. at 776-77.
We hold that Iniguez Gonzalez has not shown a substantial likelihood that Withrow’s
statement affected the jury’s verdict. The trial court did not abuse its discretion in denying her
motion for a mistrial.1
1 Iniguez Gonzalez also seems to argue that the court erred in admitting other testimony from Withrow about the typical hierarchy of drug sale operations, on the basis that it was not relevant and was unfairly prejudicial. Because this claim was not included in her assignments of error we decline to consider it. RAP 10.3(a)(4); see also Ang v. Martin, 154 Wn.2d 477, 486-87, 114 P.3d 637 (2005).
6 No. 51573-3-II
II. SUFFICIENCY OF THE EVIDENCE
Iniguez Gonzalez argues that there was insufficient evidence to support her conviction for
possession of methamphetamine with intent to deliver. We disagree.
Evidence is sufficient to support a conviction if, viewing the evidence in the light most
favorable to the State, any rational trier of fact could find the essential elements of the crime
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. Id. We draw all reasonable inferences in
favor of the State and interpret them most strongly against the defendant. Id. We defer to the trier
of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the
evidence. State v. Pinkney, 2 Wn. App. 2d 574, 580, 411 P.3d 406 (2018).
To prove possession of methamphetamine with intent to deliver, the State had to show
Iniguez Gonzalez possessed methamphetamine with the intent to deliver it. RCW 69.50.401(1),
(2)(b).2 The trial court instructed the jury consistent with this definition and also instructed the
jury on accomplice liability. A person is an accomplice in the commission of a crime if, with
knowledge that it will promote or facilitate the commission of the crime, they aid or agree to aid
another person in planning or committing the crime. RCW 9A.08.020(3)(a)(ii); 11 WASH.
PRACTICE: WASH. PATTERN JURY INSTRS.: CRIMINAL 10.51 (2016).
Iniguez Gonzalez argues that the State’s evidence at best showed only that she was present
2 The legislature amended RCW 69.50.401 in 2019. Because the relevant language has not changed, we cite to the current version of this statute.
7 No. 51573-3-II
and aware that there were drugs in the van that Morales Martinez planned to sell to the informant,
but there was no evidence to suggest that she acted as an accomplice. But the van was registered
in her name and the drugs were found on the floor where she had been sitting. It was reasonable
for the jury to infer from these facts that Iniguez Gonzalez provided her van to Morales Martinez
to deliver the drugs to the informant and that she was aiding him in that endeavor. She also
provided inconsistent explanations to the police at the scene about why she and Morales Martinez
were in the area and what they were doing, so it was reasonable for the jury to draw inferences
about her guilt. We defer to the jury’s determination regarding Iniguez Gonzalez’s credibility and
the persuasiveness of the State’s evidence. Pinkney, 2 Wn. App. 2d at 580.
Drawing all reasonable inferences in favor of the State, the evidence supported a
conclusion that Iniguez Gonzalez provided her van and was aiding in the delivery of drugs, and
therefore acted as an accomplice. For the reasons stated above, we hold that Iniguez Gonzalez’s
conviction for possession with intent to deliver was supported by sufficient evidence.
III. UNWITTING POSSESSION INSTRUCTION
Iniguez Gonzalez contends the trial court erred when it denied her request to have the jury
instructed on the defense of unwitting possession with respect to her lesser included charge of
simple possession of methamphetamine. We disagree.
Unlawful possession of a controlled substance is a strict liability crime that requires the
State to prove the nature of the substance and the fact of possession. State v. Bradshaw, 152 Wn.2d
528, 538, 98 P.3d 1190 (2004). To ameliorate the harshness of strict liability, the defendant may
raise the affirmative defense that possession was unwitting. Id.
8 No. 51573-3-II
A defendant in a criminal case is entitled to have the trial court instruct the jury on their
theory of the case if there is evidence to support the theory. State v. George, 146 Wn. App. 906,
915, 193 P.3d 693 (2008). A trial court errs by not instructing the jury on the requested defense
when evidence supporting the defense is adduced at trial. Id. The requested defense must be
considered in light of all the evidence presented at trial, regardless of which party presented it. Id.
Iniguez Gonzalez argues that, although the evidence supported a conclusion that she was
aware of the drugs in the van, it also equally supported the conclusion that she did not know about
the drugs. She reasons that the informant set up the drug deal with Morales Martinez, not her, and
that the informant did not claim that she ever participated in previous drug deals or was aware of
what was happening.
Iniguez Gonzalez was the registered owner of the vehicle where the drugs were found and
the drugs were in plain view on the floor under her seat when the police opened the door. Withrow
testified: “I didn’t have to search for it at all. I mean, it was just right there.” VRP (Feb. 14, 2018)
at 202. There was no evidence that she reacted with surprise when police found the
methamphetamine. Even interpreting the evidence in her favor, Iniguez Gonzalez has failed to
show evidence of unwitting possession in this record. Therefore, we conclude that she was not
entitled to the instruction and the trial court did not err when it denied her request for the
instruction.
IV. LEGAL FINANCIAL OBLIGATIONS
Iniguez Gonzalez challenges the imposition of the criminal filing fee. The State concedes
error. We accept the State’s concession and remand to strike the criminal filing fee.
9 No. 51573-3-II
In 2018, the legislature amended former RCW 36.18.020(h) to prohibit the imposition of
the criminal filing fee if a defendant is indigent as defined in RCW 10.101.010(3) (a) through (c).
LAWS OF 2018, ch. 269, § 17. Our Supreme Court has held that the 2018 amendments to the legal
financial obligation statutes apply to cases pending on direct review and not final when the
amendments were enacted. State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018).
The 2018 amendments apply here because this case was not final when the amendments
took effect. Id. The State concedes that Iniguez Gonzalez is indigent under RCW 10.101.010(3)
(a) through (c). The criminal filing fee should therefore be stricken from her judgment and
sentence.
V. STATEMENT OF ADDITIONAL GROUNDS
Iniguez Gonzalez raises several issues in her statement of additional grounds. First, she
argues that a number of jurors should have been excused because of their strong feelings on drugs
and drug dealing. However, she has not shown that the jurors who were actually selected were the
same people about whom she has concerns. We reject this argument.
She also seems to argue that the school bus stop enhancement was improperly imposed
because it was measured from where she and Morales Martinez were stopped, rather than from the
informant’s home. We reject this argument because the jury found there was a school bus stop
within 1,000 feet from where the crime was occurring when it was discovered by the police. Thus,
the enhancement was not improper.
Iniguez Gonzalez also seems to suggest other errors related to jury selection and the
prosecutor’s conduct. Although RAP 10.10 does not require her to refer to the record or cite
authority, it does require her inform us of the “nature and occurrence of the alleged errors.” These
10 No. 51573-3-II
assertions of error are too vague to allow us to identify the issues and seem to reference facts not
in the record. We therefore do not reach her remaining claims.
CONCLUSION
We affirm Iniguez Gonzalez’s conviction and remand for the trial court to strike the
criminal filing fee.
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.
Glasgow, J. We concur:
Maxa, C.J.
Melnick, J.