State v. Rangel-Reyes

81 P.3d 157, 119 Wash. App. 494, 2003 Wash. App. LEXIS 2923
CourtCourt of Appeals of Washington
DecidedDecember 16, 2003
DocketNo. 21006-5-III
StatusPublished
Cited by26 cases

This text of 81 P.3d 157 (State v. Rangel-Reyes) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Rangel-Reyes, 81 P.3d 157, 119 Wash. App. 494, 2003 Wash. App. LEXIS 2923 (Wash. Ct. App. 2003).

Opinion

Kato, A.C.J.

Jose Rangel-Reyes (Mr. Rangel) appeals his conviction for delivery of a controlled substance. He contends the court improperly admitted out-of-court statements of a witness who was not available at trial. He also contends the evidence was insufficient to prove he was more than merely present at the scene of the drug deal. We affirm.

This prosecution arose from a drug transaction between Rudolfo Gonzalez (a police informant) and Jose Garcia (a.k.a. “Joe Blow”) on July 20, 2001. Report of Proceedings (RP) at 5-6. Mr. Gonzalez telephoned Mr. Garcia, and Mr. Garcia stated that he could obtain up to a kilo or a pound of cocaine. The two men agreed to meet at a parking lot at a Wendy’s restaurant in Pasco. Mr. Gonzalez wore a body wire to transmit and record his conversations.

Mr. Gonzalez testified at trial that, while he was waiting at the parking lot, Mr. Garcia said “the person who was going to bring — who was going to do the hookup was on his way.” RP at 8. Mr. Gonzalez also testified he and Mr. Garcia discussed the price of the drugs while they waited. Mr. Gonzalez asked Mr. Garcia, “Who’s going to come[,] Tito?” Ex. 8 at 1. Mr. Garcia responded, “[N]o, my brother in law.” Id. Mr. Garcia also mentioned the man would be driving a car or a red extended-cab pickup.

Within a few minutes, Mr. Rangel arrived at the parking lot in a silver car, and Mr. Garcia got in. Mr. Gonzalez testified he could hear portions of the conversation through the car’s partially opened window: “[T]hey were talking about prices and how much you could get.” RP at 10.

Mr. Gonzalez testified that, after Mr. Garcia emerged from the car, Mr. Garcia told him he could deliver only four [497]*497ounces and the price was $625 per ounce. Mr. Garcia told Mr. Gonzalez to meet him at Garibaldi’s Restaurant, and he would bring the drugs. Mr. Garcia then left in Mr. Rangel’s car.

Police followed Mr. Rangel’s car to Centennial Park, where Mr. Garcia got out. Except for a period of about two minutes, an officer watched Mr. Garcia while he waited in the park without contacting any other person. Meanwhile, Mr. Rangel drove to his residence, which was about three-fourths of a block from the park. Police were unable to follow the car as Mr. Rangel left the residence, but several minutes later he picked up Mr. Garcia at the park. They drove back to Mr. Rangel’s residence, then to Garibaldi’s Restaurant.

At the restaurant, Mr. Garcia met again with Mr. Gonzalez and handed him 125 grams of cocaine. The two men then talked about an additional purchase of a kilo of cocaine later that day. Police then arrested Mr. Garcia. Mr. Rangel, who had left the scene after dropping Mr. Garcia at the restaurant, was arrested a few minutes later.

A maroon extended-cab pickup was at Mr. Rangel’s residence when police arrived to conduct a search. The registration for the truck, in Mr. Rangel’s name, was inside the residence. During the search, officers also found a wad of cash totaling $1,300 and a cell phone that showed Mr. Garcia had called earlier that day. The officers also found at least one uncashed paycheck.

Mr. Rangel was charged with delivery of a controlled substance in a drug-free zone. He waived his right to a jury trial.

Mr. Garcia did not testify at trial. Mr. Rangel testified Mr. Garcia was a friend of his brother-in-law, who had asked for a ride. The brother-in-law, who lived with Mr. Rangel, corroborated this testimony. Mr. Rangel testified he picked Mr. Garcia up as requested at the Wendy’s parking lot, dropped him off at the park, and picked him up a few minutes later before dropping him off again at Garibaldi’s [498]*498Restaurant. Mr. Rangel presented evidence that he had withdrawn $1,000 from his bank account on July 6 so he could buy a car, and this was part of the money police had found in the search of his residence.

The trial court found Mr. Rangel guilty as charged.

We first consider whether Mr. Gonzalez’s testimony, recounting out-of-court statements made by Mr. Garcia, violated Mr. Rangel’s right of confrontation. Mr. Rangel did not object at trial to the admission of Mr. Garcia’s statements. Failure to raise an issue at trial generally waives the issue on appeal. See RAP 2.5(a). Mr. Rangel apparently contends, however, that the statements were inadmissible hearsay that violated his constitutional right of confrontation. See RAP 2.5(a)(3) (appellant may raise “manifest error affecting a constitutional right” for first time on appeal).

“When out-of-court assertions are used for nonhearsay purposes, no confrontation clause concerns arise.” State v. Neslund, 50 Wn. App. 531, 556, 749 P.2d 725, review denied, 110 Wn.2d 1025 (1988). An out-of-court statement is hearsay only if it is “offered in evidence to prove the truth of the matter asserted.” ER 801(c). Here, Mr. Garcia’s statements were not offered to prove the truth of their contents; they were merely Mr. Garcia’s “verbal acts,” whose significance was simply that they were made. See State v. Gillespie, 18 Wn. App. 313, 315, 569 P.2d 1174 (1977), review denied, 89 Wn.2d 1019 (1978); see also 5B Karl B. Tegland, Washington Practice: Evidence Law and Practice § 801.10, at 297-300 (4th ed. 1999). Because the statements were not hearsay, their admission did not implicate Mr. Rangel’s right of confrontation.

Alternatively, a statement is not hearsay if it is offered against a party and is a statement of the party’s coconspirator during the course of and in furtherance of the conspiracy. ER 801(d)(2)(v). A statement that falls within this “firmly rooted” exception to the hearsay rule does not violate a defendant’s right of confrontation. Bourjaily v. United States, 483 U.S. 171, 182-84, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987). Mr. Garcia’s statements were offered [499]*499against Mr. Rangel and were made in furtherance of his conspiracy to sell cocaine.

Mr. Rangel relies on State v. Martinez, 105 Wn. App. 775, 783-85, 20 P.3d 1062 (2001), which addressed admissibility of hearsay testimony under the “present sense impression” exception to the hearsay rule. See ER 803(a)(1). In Martinez, the statements clearly were offered for their substantive truth and were not statements by a coconspirator. Because the hearsay exception did not apply, the court held the testimony violated the defendant’s right of confrontation. Here, by contrast, Mr. Garcia’s out-of-court statements were not hearsay, and they also were admissible as statements of a coconspirator. Martinez is distinguishable.

Admission of Mr. Garcia’s statements did not violate Mr. Rangel’s right of confrontation.

We also consider whether the evidence was sufficient to convict Mr. Rangel. On a challenge to the sufficiency of the evidence, we must view the evidence in a light most favorable to the prosecution, and we must determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980).

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Bluebook (online)
81 P.3d 157, 119 Wash. App. 494, 2003 Wash. App. LEXIS 2923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rangel-reyes-washctapp-2003.