IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 50075-2-II

Respondent, UNPUBLISHED OPINION

v.

TAMMY RUSH,

Appellant.

BJORGEN, J. — A jury returned verdicts finding Tammy Rush guilty of two counts of 

unlawful possession of a controlled substance with intent to deliver, one count of unlawful 

possession of a controlled substance, and one count of bail jumping. Rush appeals from her 

conviction of unlawful possession of a controlled substance and from one of her two convictions 

of unlawful possession of a controlled substance with intent to deliver, asserting that the trial 

court’s exclusion of certain testimony from her husband, Keith Rush,1violated her due process 

right to raise the defense of entrapment by estoppel. In her statement of additional grounds for 

review (SAG), Rush contends that (1) the trial court violated her due process and confrontation 

 

1 We refer to Keith Rush by his first name for clarity. We intend no disrespect.

Filed

Washington State

Court of Appeals

Division Two

October 9, 2018
No. 50075-2-II

2

rights by prohibiting Keith from testifying at trial, and (2) the State failed to present sufficient 

evidence in support of her convictions of unlawful possession of a controlled substance and 

unlawful possession of a controlled substance with intent to deliver. We affirm.

FACTS

On January 30, 2015, Clark County Sheriff’s officers went to the Rushes’ residence in 

Vancouver to execute a search warrant. Officers saw the Rushes in a vehicle near the residence 

and conducted a stop of the vehicle. Officers found a barrel key in Rush’s purse, which officers 

used to unlock a storage container in the Rushes’ garage. Inside the container, officers found 

cocaine, a digital scale, and packaging material. Officers also found a box in the rafters of the 

Rushes’ garage that contained 995.9 grams of methamphetamine. Officers seized the evidence 

described above but did not arrest either of the Rushes on that date.

On March 30, 2016, officers again executed a search warrant at the Rushes’ residence. 

Officers stopped Rush while she was driving a vehicle near the residence. After being advised of 

her Miranda2rights, Rush agreed to speak with Detective Kenny Lutz. Rush told Lutz that she 

had approximately one pound of methamphetamine in a backpack in her vehicle. Rush 

consented to a search of her vehicle, and officers found methamphetamine and cash in the 

backpack. Rush also told Lutz that she purchases a kilogram of methamphetamine from her 

suppliers every other day for $9,000 and that multiple people owed her debts for 

methamphetamine that she had supplied to them. During a search of the Rushes’ residence, 

officers found a digital scale, mail addressed to Rush, approximately $13,000 contained inside a 

paper towel dispenser, and a money counter.

 

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 50075-2-II

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On April 1, 2016, the State charged Rush with unlawful possession of a controlled 

substance with intent to deliver (methamphetamine) and unlawful possession of a controlled 

substance (cocaine) based on the January 30, 2015 search of her person and residence. The State 

also charged Rush with a second count of unlawful possession of a controlled substance with 

intent to deliver (methamphetamine) based on the March 30, 2016 search of her vehicle and 

residence. On September 6, the State filed an amended information adding one count of bail 

jumping.

At an October 11 motion hearing, Rush testified during an offer of proof that she had told 

Keith that it was “weird” that they were not arrested after the January 30, 2015 search of their 

residence. Report of Proceedings (RP) at 542-43. Rush stated that Keith had told her that they 

were not arrested because he was working with police in Oregon. 

At trial, witnesses testified consistently with the facts as stated above. After the State 

rested its case in chief, the defense stated its intent to call Keith to testify and presented an offer 

of proof as to Keith’s expected testimony. In the offer of proof, Keith described his cooperation 

agreement with Multnomah County to reduce his sentence for drug-related charges in Oregon in 

exchange for his assistance to Oregon law enforcement officers in setting up suspected drug 

traffickers. Keith stated that the cooperation agreement did not mention Rush or activities 

occurring in Clark County, Washington. Keith stated that Clark County Sheriff’s Detective 

Chris Luque decided not to arrest him and Rush after learning about the cooperation agreement. 

Keith further stated that his Oregon contact person, Officer J.D. McGuire, told him that he spoke 

with Luque and that he and Rush would not be charged for the January 2015 incident.
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Following the offer of proof, the trial court ruled that Keith could not testify regarding his 

cooperation agreement with Multnomah County, reasoning:

[T]he unrebutted testimony is that [Rush] didn’t act with th[e] understanding [that 

her actions were immunized]. She didn’t act at all. Her testimony is—or at least 

Mr. Rush’s testimony is she didn’t know what was going on. She didn’t know the 

stuff was there. She didn’t know that he was acting as an informant until months 

later. She didn’t know that this guy was coming over to put the stuff in there in 

exchange for taking money out. She didn’t know any of that.

So even if this agreement exists and even if it was legal, it couldn’t possibly 

have anything to do with her actions because she wasn’t aware of it.

What she actually has, if she has any defense at all, is a defense based on, I 

guess, unwitting possession or the fact that she found an accomplice. That she 

might be in proximity to illegal activity and know the person who’s committing it, 

but, in fact, that she wasn’t an accomplice, as that term is used in the law.

So if she wants to present Mr. Rush’s testimony on that point, she’s 

permitted to do so. If you want to call him to testify that he did all this stuff himself, 

she didn’t know what was going on, she didn’t have anything to do with it, that 

testimony’s admissible.

But he is not permitted to testify that he was legally justified in doing it, 

because there isn’t any basis for that, and he can’t testify that someone subsequently 

immunized her conduct, because he’s not permitted to testify to that either. The 

evidence would have to come from people who have the authority to immunize her, 

not from him.

. . . .

If he wants to testify on January 30th when they drove off, there wasn’t any 

methamphetamine in the house, that he’d arranged for some guy to bring it in 

afterwards and put it in a lockbox and take some money and that she didn’t know 

any of that was going on, if that’s his testimony, then he can testify to it.

RP at 359-61. After the trial court ruled on the admissibility of certain portions of Keith’s 

proposed testimony, Keith exercised his Fifth Amendment right not to testify at Rush’s trial. 

The jury returned verdicts finding Rush guilty of two counts of unlawful possession of a 

controlled substance with intent to deliver, unlawful possession of a controlled substance, and 

bail jumping. The jury also returned special verdicts finding that she committed the two counts 

of unlawful possession of a controlled substance with intent to deliver within 1,000 feet of a 
No. 50075-2-II

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school bus stop. Rush appeals.

ANALYSIS

I. RIGHT TO PRESENT A DEFENSE

Rush contends that the trial court violated her right to present the defense of entrapment 

by estoppel by prohibiting Keith from testifying about his cooperation agreement with Oregon 

police.3 Because Keith’s proposed testimony was not relevant to establish the defense of 

entrapment by estoppel, we disagree.

When reviewing whether a trial court’s ruling excluding evidence violated a defendant’s 

right to present a defense, we first review the trial court’s relevancy determination for an abuse 

of discretion. State v. Horn, 3 Wn. App. 2d 302, 310-11, 415 P.3d 1225 (2018); see State v. 

Blair, 3 Wn. App. 2d 343, 350, 415 P.3d 1232 (2018). A criminal defendant does not have a due 

process right to present irrelevant evidence. State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 

(2010). “If the court excluded relevant defense evidence, we [then] determine as a matter of law 

whether the exclusion violated the constitutional right to present a defense.” State v. Clark, 187 

Wn.2d 641, 648-49, 389 P.3d 462 (2017).

Although ignorance of the law is not a valid defense to a criminal charge, “‘there exists a 

narrowly limited class of cases where misleading governmental activity constitutes a good 

defense to a criminal charge.’” State v. Locati, 111 Wn. App. 222, 227, 43 P.3d 1288 (2002) 

(quoting United States v. Lansing, 424 F.2d 225, 227 (9th Cir. 1970)). “Such a defense may rest 

on a diversity of theories, such as entrapment, or ‘on more general principles of due process and 

 

3 Rush raises this issue only with regard to her convictions of unlawful possession of a controlled 

substance and unlawful possession of a controlled substance with intent to deliver stemming 

from the January 30, 2015 incident. She does not appeal her bail jumping conviction or unlawful 

possession of a controlled substance with intent to deliver conviction stemming from the March 

30, 2016 incident.
No. 50075-2-II

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estoppel.’” Locati, 111 Wn. App. at 227 (quoting Lansing, 424 F.2d at 227). Entrapment by 

estoppel is an affirmative defense that “may only be raised where a governmental official or 

agent has actively assured the defendant that certain conduct is reasonable, and the defendant 

reasonably relies on that advice and continues or initiates the conduct.” State v. Krzeszowski, 

106 Wn. App. 638, 646, 24 P.3d 485 (2001) (citing United States v. Trevino-Martinez, 86 F.3d 

65, 69 (5th Cir. 1996)).

Keith stated during an offer of proof that his cooperation agreement did not mention Rush 

or explicitly authorize any criminal activities in Washington State. Rush stated during an offer 

of proof that she was unaware of the cooperation agreement between Keith and Oregon law 

enforcement officials prior to January 30, 2015. Because Rush was not aware of the cooperation 

agreement prior to engaging in criminal conduct on January 30, 2015, and because Keith’s 

testimony during the offer of proof did not otherwise tend to show that Rush engaged in such 

criminal conduct in reliance on any assurance from a governmental official, the trial court did not 

abuse its discretion in determining that Keith’s proffered testimony was not relevant to the 

defense of entrapment by estoppel.

Despite the uncontroverted testimony that Rush was not aware of Keith’s cooperation 

agreement and that she was not a party to the cooperation agreement, Rush argues that Detective 

Luque’s decision not to arrest her on January 30, 2015 ratified Officer J.D. McGuire’s 

assurances to Keith that Rush would not be prosecuted for her conduct on that date. Even 

assuming that Keith’s statements regarding McGuire’s assurance would be admissible at trial, it 

cannot support a defense of entrapment by estoppel because such purported assurance took place 

after Rush had already engaged in the criminal activity. Thus, Rush could not have acted upon 
No. 50075-2-II

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such assurance when committing her January 30, 2015 offenses. Accordingly, we affirm the trial 

court’s ruling excluding Keith’s proffered testimony about his cooperation agreement.

II. SAG

A. Right to Present a Defense/Confrontation Right

In her SAG, Rush first contends that the trial court violated her due process right to 

present a defense and her confrontation right by prohibiting Keith from testifying that she was 

unaware that he had arranged for someone to come to their home and leave the large quantity of 

methamphetamine later found by police on January 30, 2015. This argument fails because the 

trial court did not exclude this testimony. Rather, the trial court excluded only testimony 

regarding Keith’s cooperation agreement with Oregon law enforcement officials. In so ruling, 

the trial court explicitly stated that Keith would be permitted to testify about Rush’s lack of 

knowledge regarding the methamphetamine found at their home. Keith, however, elected to 

exercise his Fifth Amendment right to not testify at Rush’s trial. Accordingly, Rush’s contention 

on this issue lacks merit. 

B. Sufficiency of the Evidence

Finally, Rush contends that the State failed to present sufficient evidence in support of 

her unlawful possession of a controlled substance conviction and the first of her two convictions 

of unlawful possession of a controlled substance with intent to deliver. We disagree.

Evidence is sufficient to support a guilty verdict if any rational trier of fact, viewing the 

evidence in the light most favorable to the State, could find the elements of the charged crime 

beyond a reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420-21, 5 P.3d 1256 (2000). 

“In claiming insufficient evidence, the defendant necessarily admits the truth of the State’s 
No. 50075-2-II

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evidence and all reasonable inferences that can be drawn from it.” State v. Homan, 181 Wn.2d 

102, 106, 330 P.3d 182 (2014), on remand, 191 Wn. App. 759 (2015), as corrected February 11, 

2016. We defer to the jury on issues of conflicting testimony, credibility of witnesses, and the 

persuasiveness of the evidence. State v. Andy, 182 Wn.2d 294, 303, 340 P.3d 840 (2014).

To convict Rush of unlawful possession of a controlled substance, the State had to prove 

beyond a reasonable doubt that she (1) possessed (2) a controlled substance. Former RCW 

69.50.4013 (2015). To convict Rush of unlawful possession of a controlled substance with intent 

to deliver, the State had to prove beyond a reasonable doubt that she (1) possessed (2) a 

controlled substance (3) with intent to deliver the controlled substance. RCW 69.50.401. 

Possession of a controlled substance may be actual or constructive. State v. IbarraCisneros, 172 Wn.2d 880, 897, 263 P.3d 591 (2011). Actual possession occurs when a 

defendant has physical custody of the item, and constructive possession occurs if the defendant 

has dominion and control over the item. State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 

(2002). Dominion and control can be over “either the drugs or the premises on which the drugs 

were found.” State v. Callahan, 77 Wn.2d 27, 30-31, 459 P.2d 400 (1969). Mere possession of 

a controlled substance is insufficient to prove an intent to deliver. State v. Reichert, 158 Wn. 

App. 374, 391, 242 P.3d 44 (2010). Rather, the State must prove possession and at least one 

additional factor that indicates the defendant’s intent to deliver, which may include substantial 

amounts of cash, scales, cell phones, address books, baggies, or materials used to manufacture 

narcotics. State v. Goodman, 150 Wn.2d 774, 783, 83 P.3d 410 (2004).

Rush does not challenge the evidence in support of the jury finding that the substances 
No. 50075-2-II

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found in the garage were controlled substances, instead appearing to challenge only the evidence 

in support of the jury finding that she possessed the cocaine and methamphetamine on January 

30, 2015 with intent to deliver. Specifically, Rush argues that the State’s evidence was 

insufficient to support her convictions because Keith admitted in an offer of proof that she had 

no knowledge of the drugs found in their home. This argument, however, misapprehends the test 

for determining whether sufficient evidence supports a conviction. First, Keith’s testimony at 

the offer of proof was not presented to the jury and bears no relation to the evidence supporting 

Rush’s conviction. Second, even if Keith’s testimony were presented to the jury, it would 

concern only the persuasiveness of evidence and issues of witness credibility, which we do not 

evaluate on review.

Detective Lutz testified that Rush admitted to living in both the residence and the garage 

associated with the residence where officers found methamphetamine and cocaine. Additionally, 

during the January 30, 2015 stop of her vehicle, officers found a barrel key in Rush’s purse that 

opened a locked cabinet in the garage that contained the cocaine. This evidence, when viewed in 

a light most favorable to the State, was sufficient to prove that Rush had dominion and control 

over the premises where the cocaine and methamphetamine were found on January 30, 2015. 

Accordingly, the State presented sufficient evidence that Rush constructively possessed cocaine 

and methamphetamine on January 30, 2015. 

The evidence was also sufficient to prove that Rush possessed the methamphetamine

with intent to deliver. In addition to the large quantity of methamphetamine found by officers, 

officers found several items in the garage on January 30, 2015 associated with drug delivery, 

including a digital scale and packaging material. Moreover, Detective Lutz testified that 
No. 50075-2-II

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following Rush’s arrest in 2016, Rush told him that she purchases a kilogram of 

methamphetamine from her suppliers every other day for $9,000 and that multiple people owed 

her debts for methamphetamine that she had supplied to them. In light of the evidence described 

above, Rush’s challenge to the sufficiency of evidence supporting her convictions lacks merit. 

Accordingly, we affirm.

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.

Bjorgen, J.

We concur:

Lee, A.C.J.

Melnick, J.