State Of Washington v. Michelle Martinez

• Court: Court of Appeals of Washington
• Decided: September 28, 2020
• Docket: 80500-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) DIVISION ONE Respondent, ) ) No. 80500-2-I v. ) ) UNPUBLISHED OPINION MICHELLE C. MARTINEZ, ) ) Appellant. ) _______________________________ )

DWYER, J. — Michelle Martinez appeals from the trial court’s order denying

her motion to withdraw her guilty plea to controlled substances homicide.

Martinez contends that her plea was not voluntary because there was an

insufficient factual basis to support her guilt. We conclude to the contrary.

Accordingly, we affirm.

I

On May 11, 2018, the Swinomish Police Department responded to a

reported drug overdose and found Ida Sylvester unconscious on her bedroom

floor. While en route to the hospital, Sylvester died.

The day before her death, Sylvester drove three individuals (identified in

the probable cause affidavit as Witness 1, Witness 2, and Witness 3) to

Martinez’s house to purchase Percocet.1 Text messages between Martinez and

1 The facts contained herein are based on the probable cause affidavit because it provided the factual basis for the trial court’s decision to accept Martinez’s guilty plea. Because the probable cause affidavit does not state the witnesses’ names, we refer to them as Witness 1, Witness 2, and Witness 3. No. 80500-2-I/2

Witness 3 suggest that Sylvester, Witness 1, Witness 2, and Witness 3 went to

Martinez’s house to purchase pills several times that day. While the probable

cause affidavit does not directly quote the text messages between Martinez and

Witness 3, the affidavit suggests that both Martinez and Witness 3 used the

pronoun “they” as if acknowledging that more than one buyer was involved in the

transactions. (“[Witness 3] can then be seen texting MARTINEZ that they need

two [pills]”; “[Witness 3] text[s] MARTINEZ stating that they are there”;

“MARTINEZ responds by telling [Witness 3] to let her know when they arrive”;

“[Witness 3] texts MARTINEZ letting her know that they have arrived.”

(emphases added)).

Throughout the day, Martinez sold Witness 3 up to nine 30mg Percocet

pills. On at least one occasion, Sylvester waited in the car as Witness 3

purchased two pills from Martinez. Witness 1 stated that Sylvester waited in the

car because Martinez did not like Sylvester. Furthermore, Witness 3 told police

that Witness 3 would normally purchase drugs for the entire group (Sylvester,

Witness 1, Witness 2, and Witness 3).

Calvin Edwards—the individual who reported Sylvester’s overdose to the

police—stated that he had been purchasing Percocet from Martinez for the last

two years. On prior occasions, Edwards had purchased pills from Martinez for

Sylvester. According to Edwards, Martinez was aware that, on these occasions,

he was purchasing pills for both himself and Sylvester. Martinez did not want

Sylvester to come into her house, so Sylvester would stay in the car during the

transactions. Although Martinez did not want Sylvester in her house, Sylvester’s

2 No. 80500-2-I/3

cell phone contained text messages between Sylvester and Martinez regarding

drug transactions on previous occasions.

Hours after Edwards reported Sylvester’s overdose, he telephoned

Martinez. The probable cause affidavit does not describe the content of this

conversation. However, shortly after speaking with Edwards, Martinez texted

another individual, stating that a woman had died from drugs sold by Martinez

and that the pills were causing people to throw up blood. Martinez warned this

individual that “he is going to lose a lot of clients from the store because of [a]

change [in pills that he] made.” The following day, Martinez texted another

individual, warning, “Don’t take the dark blue one,” and “Just bring it back.”

Prior to Sylvester’s overdose, the police had received information about

drug activity conducted at Martinez’s address by a female who was referenced

by the nickname “Mika.” Three individuals—an anonymous caller, Witness 1,

and Witness 2—all told the police that Martinez goes by the nickname “Mika.” In

addition, a search of Martinez’s cell phone revealed that “just about everyone

[including] MARTINEZ herself identifies her as Mika.”

At the time of her arrest, Martinez stated that she does not go by “Mika”

and that nobody called her that. She also told officers that she knew nothing

about pills being sold at her house. According to Martinez, she had only met

Sylvester and Witness 3 on one occasion when they stopped by the house for

“spiritual readings and baths.”

The State charged Martinez with seven controlled substances offenses.

Martinez pled guilty to three counts: controlled substances homicide, possession

3 No. 80500-2-I/4

with intent to manufacture or deliver a controlled substance, and conspiracy to

deliver a controlled substance. In entering her plea, rather than making a

statement detailing her guilt in her own words, Martinez “agree[d] that the court

may review the police reports and/or a statement of probable cause supplied by

the prosecution to establish a factual basis for the plea.” The trial court accepted

Martinez’s guilty plea to all three counts.

Prior to sentencing, however, Martinez moved to withdraw her guilty plea

to the controlled substances homicide charge, asserting that there was an

insufficient factual basis for her plea. The trial court denied Martinez’s motion,

reasoning that the probable cause affidavit contained sufficient facts to support

her guilt of controlled substances homicide. Martinez appeals.

II

Martinez contends that her guilty plea to controlled substances homicide

was not voluntary because there was an insufficient factual basis to support the

plea. Specifically, Martinez asserts that the probable cause affidavit did not

recite facts sufficient to establish that she delivered drugs to Sylvester. We

disagree.

A

We review the denial of a motion to withdraw a guilty plea for abuse of

discretion. State v. Marshall, 144 Wn.2d 266, 280, 27 P.3d 192 (2001). A guilty

plea may be withdrawn when necessary to correct a manifest injustice. CrR

4.2(f). A manifest injustice exists when the plea was not voluntary. Marshall,

144 Wn.2d at 281. To ensure that a plea is voluntary, “[t]he court shall not enter

4 No. 80500-2-I/5

a judgment upon a plea of guilty unless it is satisfied that there is a factual basis

for the plea.” CrR 4.2(d). In its determination of “whether a factual basis exists

for a plea, the trial court need not be convinced beyond a reasonable doubt that

the defendant is in fact guilty.” State v. Saas, 118 Wn.2d 37, 43, 820 P.2d 505

(1991). Instead, “a factual basis exists if there is sufficient evidence for a jury to

conclude that the defendant is guilty.” Saas, 118 Wn.2d at 43.

We employ the same test for reviewing the factual basis of a plea as we

do for reviewing the sufficiency of the evidence to support a verdict. When

reviewing the sufficiency of the evidence for a conviction, we view the evidence

in the light most favorable to the State, draw all reasonable inferences from the

evidence in the State’s favor, and interpret the evidence most strongly against

the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A

claim of insufficiency admits the truth both of the State’s evidence and of all

reasonable inferences from the evidence. Salinas, 119 Wn.2d at 201. We then

determine whether “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).2

B

Under the Uniform Controlled Substances Act, chapter 69.50 RCW:

A person who unlawfully delivers a controlled substance in violation of RCW 69.50.401(2) (a), (b), or (c) which controlled substance is subsequently used by the person to whom it was delivered,

2 This is an objective standard. Accordingly, the parties’ quibbling over the sufficiency of the trial court’s findings of fact is of no moment. If any rational trier of fact could have found the facts sufficient, the standard is met—regardless of what a particular fact finder might have found or not found.

5 No. 80500-2-I/6

resulting in the death of the user, is guilty of controlled substances homicide.

RCW 69.50.415(1). Further, “‘[d]eliver’ or ‘delivery’ means the actual or

constructive transfer from one person to another of a substance, whether or not

there is an agency relationship.” RCW 69.50.101(i).

In State v. Campbell, we cited a dictionary for the common understanding

of “transfer,” interpreting it to mean “‘to carry or take from one person or place to

another’” or, more broadly, “‘to cause to pass from one person or thing to

another.’” 59 Wn. App. 61, 64, 795 P.2d 750 (1990) (quoting W EBSTER’S THIRD

NEW INTERNATIONAL DICTIONARY 2426-27 (1971)). Similarly, in State v. Morris, we

cited a legal dictionary’s definition of “transfer,” which stated: “‘To convey or

remove from one place, person, etc., to another; pass or hand over from one to

another; . . . sell or give.’” 77 Wn. App. 948, 951, 896 P.2d 81 (1995) (quoting

BLACK’S LAW DICTIONARY (4th ed. rev. (1968)). We have also noted that “the

ordinary meaning of the word transfer includes constructive transfers.”

Campbell, 59 Wn. App. at 64.

In addition, we have in the past considered other states’ interpretations of

the term “constructive transfer” when those courts were construing their own

versions of the Uniform Controlled Substances Act. Notably, we approved of a

Texas appellate court’s recitation of one mode of constructive transfer: “‘[T]he

transfer of a controlled substance either belonging to the defendant or under his

direct or indirect control, by some other person or manner at the instance or

direction of the defendant.’” Campbell, 59 Wn. App. at 63 (quoting Davila v.

State, 664 S.W.2d 722, 724 (Tex.Crim.App. 1984)).

6 No. 80500-2-I/7

In State v. Ramirez, 62 Wn. App. 301, 308, 814 P.2d 227 (1991), we

explained that, “[b]y its use of the term ‘deliver,’ the Uniform [Controlled

Substances] Act . . . criminalize[s] participation in the transfer of unlawful drugs,

regardless of whether the participation benefited the buyer or the seller.”

Ramirez, 62 Wn. App. at 308. Therefore, “when the Legislature defined a

delivery as a ‘transfer’, it necessarily included as ‘deliverers’ any persons who

intentionally participated in bringing about the drug transaction.” Ramirez, 62

Wn. App. at 309.

When an intermediary is involved in the sale of drugs, the intermediary

does not need to serve as an agent for the transferor to be criminally liable. See

RCW 69.50.101(i) (“‘Deliver’ or ‘delivery’ means the actual or constructive

transfer from one person to another of a substance, whether or not there is an

agency relationship.” (emphasis added)). In other words, the transferor does not

have to direct or control the intermediary, as agency would require. See Durias

v. Boswell, 58 Wn. App. 100, 104, 791 P.2d 282 (1990) (“An agency relationship

exists when one agrees to act for another under the latter’s direction and

control.”).

As we did in Campbell, we again look to how other states have interpreted

“constructive transfer” in construing their versions of the Uniform Controlled

Substances Act. In Daniels v. State, 754 S.W.2d 214, 221 (Tex.Crim.App.1988),

the Texas Court of Criminal Appeals clarified the requirements for a constructive

transfer, stating that a “constructive transfer requires the transferor at least be

aware of the existence of the ultimate transferee before delivery.” To clarify:

7 No. 80500-2-I/8

This does not mean that the transferor need know the identity of or be acquainted with the ultimate recipient. It only requires that when the State alleges constructive transfer to an alleged ultimate recipient that the accused must have contemplated that his initial transfer would not be the final transaction in the chain of distribution.

Daniels, 754 S.W.2d at 221.

This formulation is consistent with our own case law. Indeed, in Campbell,

we held that Campbell was properly convicted of delivering a controlled

substance by virtue of having sold cocaine to an undercover police officer

through an intermediary. Campbell, 59 Wn. App. at 62. We held that “[t]he

evidence shows that Campbell directed a constructive transfer of cocaine.”

Campbell, 59 Wn. App. at 63. Stated differently, the State proved that Campbell

necessarily knew that the intermediary was to deliver the cocaine to some other

person. It did not matter that Campbell was unaware of the ultimate purchaser’s

true name or employment as a police officer. Campbell, 59 Wn. App. at 63-64.

Thus, a person can transfer a substance by “‘caus[ing it] to pass from one

person or thing to another.’” Campbell, 59 Wn. App. at 64 (quoting W EBSTER’S,

supra, at 2426-27). This transfer may be facilitated by an intermediary, even

when the intermediary is not acting as an agent. RCW 69.50.101(i). What is

required is that the existence—but not the identity—of an ultimate recipient or

recipients be known. Daniels, 754 S.W.2d at 221; see, e.g., Campbell, 59 Wn.

App. at 62.

C

The probable cause affidavit states sufficient facts to support Martinez’s

plea of guilty to controlled substances homicide because a reasonable trier of

8 No. 80500-2-I/9

fact could infer that Martinez caused pills to transfer to Sylvester by way of an

intermediary. The text messages between Martinez and Witness 3 alone

suggest that Martinez knew that Witness 3 was not the only transferee in the

drug transactions on May 10, 2018, but, rather, was acting, at least in part, as an

intermediary. In particular, the probable cause affidavit’s description of the text

messages uses the pronoun “they” as if both Martinez and Witness 3 were

stating that more than one transferee was involved in the transactions.

(“[Witness 3] can then be seen texting MARTINEZ that they need two [pills]”;

“[Witness 3] text[s] MARTINEZ stating that they are there”; “MARTINEZ responds

by telling [Witness 3] to let her know when they arrive”; “[Witness 3] texts

MARTINEZ letting her know that they have arrived.” (emphases added)).

These statements suggest that Martinez knew that Witness 3 was

purchasing pills for not only personal use but, also, for the use of at least one

other person. As explained above, a constructive transfer requires the transferor

be aware of the existence of an ultimate transferee before delivery. Daniels, 754

S.W.2d at 221.

Additionally, the probable cause affidavit states that Martinez sold Witness

3 up to nine 30mg Percocet pills over the course of the day. A reasonable trier of

fact could infer that nine 30mg pills is more than any individual would consume in

one day and, therefore, Martinez knew that Witness 3 was acting as an

intermediary for another transferee or transferees.

Moreover, Martinez’s prior course of dealing with Sylvester suggests that

Martinez knew that the pills Witness 3 was purchasing were, at least in part, for

9 No. 80500-2-I/10

Sylvester. Sylvester’s cell phone contained text messages she exchanged with

Martinez regarding pill transactions on previous occasions. Both Witness 1 and

Edwards stated that Martinez did not want Sylvester to come into her house

during such transactions, so Sylvester would wait in the car while someone else

physically purchased the pills. According to Edwards, when he had purchased

pills from Martinez, Martinez was aware that he was purchasing pills for both

himself and Sylvester. Additionally, the probable cause affidavit states that

Witness 3 would normally purchase drugs from Martinez for the entire group

(Sylvester, Witness 1, Witness 2, and Witness 3), suggesting that Witness 3 had

done so on prior occasions.

Given this prior course of dealing, a reasonable trier of fact could infer that

Martinez knew that Witness 3 was acting as an intermediary for Sylvester as to

some or all of the transactions on May 10, 2018. While a transferor does not

need to know the identity of a transferee for a constructive transfer to occur, such

an inference nonetheless strongly reinforces the conclusion that Martinez

delivered pills to Sylvester. See Daniels, 754 S.W.2d at 221 (stating that the

transferor to a constructive transfer does not need to know the identity of the

transferee).

Finally, Martinez’s actions upon learning of Sylvester’s overdose could

lead a reasonable trier of fact to infer that, at the time Martinez sold drugs to

Witness 3, she knew that Sylvester was a transferee. Hours after Edwards

reported Sylvester’s overdose, he called Martinez. The probable cause affidavit

does not describe the content of this conversation. But shortly after speaking to

10 No. 80500-2-I/11

Edwards, Martinez texted another individual, stating that a woman had died from

drugs sold by Martinez and that the pills were causing people to throw up blood.

She warned this individual that “he is going to lose a lot of clients from the store

because of [a] change [in pills that he] made.” The following day, Martinez texted

another individual, warning, “Don’t take the dark blue one,” and “Just bring it

back.”

These messages demonstrate Martinez’s knowledge that Sylvester died

from drugs sold by Martinez. A rationale trier of fact could conclude that, after

speaking to Edwards, Martinez contacted her supplier to warn him that the new,

dark blue pills supplied by him make people sick or die. A rationale trier of fact

could also conclude that Martinez then warned a customer not to take a dark

blue pill.

Competing inferences could be drawn from the text messages sent by

Martinez. On the one hand, these messages could be perceived to show that

Martinez had just learned from Edwards that Sylvester was a transferee to the

May 10 transactions. On the other hand, these messages could be perceived to

indicate that Martinez was already aware that Sylvester had purchased pills from

her on May 10, and she had just learned that those pills killed Sylvester.

However, our charge is to credit the inference in favor of the State. Salinas, 119

Wn.2d at 201. We do so here. Accordingly, a reasonable trier of fact could infer

that, at the time of the transactions on May 10, Martinez knew that Witness 3 was

purchasing pills on Sylvester’s behalf.

11 No. 80500-2-I/12

From these facts, a reasonable trier of fact could infer that Martinez

delivered to Sylvester the drugs that ultimately lead to her demise. Hence, the

probable cause affidavit contained sufficient facts to support Martinez’s guilty

plea. Therefore, Martinez’s guilty plea was properly deemed to be voluntary.

The trial court did not abuse its discretion by denying Martinez’s motion to

withdraw her plea.

Affirmed.

We concur: