### I

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Appellant,

v. KEITH THOMAS BLAIR, Respondent. DIVISION ONE No. 67874-4-1 ORDER AMENDING OPINION AND DENYING MOTION FOR RECONSIDERATION 

### The respondent, Keith Thomas Blair, filed a motion for reconsideration of this court's decision filed February 25, 2013. Amajority of the panel hearing the
case has considered the motion, decided to amend the opinion, and has determined that the motion should be denied. Now, therefore, it is hereby ORDERED that: 

### 1. The firstsentence at the top ofpage 12 of the slip opinion shall be 

### replaced with the following sentence: "Thus, theState argued, at aminimum, the intent to deliver element of the underlying crime was satisfied through evidence 

### evincing Dunham's planned delivery ofmarijuana toYates outside ofthejail." 2. The second sentence of the firstfull paragraph on page 12 of the slip 

### opinion shall bereplaced with thefollowing sentence: "We disagree with Blair's contention that the State was required to establish that an agreement existed 

### between Blair and Yates to possess with intent to deliver marijuana to individuals other than Yates or Blair."67874-4-1/2

3. The motion for reconsideration is denied. Dated this on for reconsideration is denied, 

# iirdayof Ap" ^ • 2013. 

# ^ecl"^PtCS

o r-» 'J~>0 e» •~l.CZ uJ —•-—!
-o TO

.— >^: CD 7?-cr;
-o •ZCT"

•"**

• * —=•0 cjni 2Z J£" -J— xo
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON & ^ "2 STATE OF WASHINGTON, Appellant,

v. KEITH THOMAS BLAIR, Respondent. en ^^ 

# DIVISION ONE ^ §£>

03 oNo. 67874-4-1 £S --::. UNPUBLISHED OPINION
FILED: February 25, 2013 Dwyer, J. — Keith Blairwas convicted ofconspiracy to commit violation of the Uniform Controlled Substances Act-possession with intent to deliver 

### marijuana. The trial court thereafter granted Blair's motion for arrest ofjudgment, ruling that there was insufficient evidence of a conspiratorial agreement. It entered an ordervacating the jury verdict and dismissing the case with prejudice. In that same order, it also granted, in the alternative, Blair's motion for new trial. 

### The State appeals, contending that the trial court erred by dismissing the 

### conspiracyconviction. The State further asserts that the trial court's written order granting a newtrial was erroneous because the trial courtdid not address the
new trial motion in its oral ruling. We conclude that the State provided sufficient 

### evidence to prove a conspiratorial agreement and that, as Blair concedes, the inclusion of the new trial ruling inthe court's written order was the result of a 

### ministerial error. Accordingly, we reverse the order arresting judgment andNo. 67874-4-1/2 remand the cause to the trial court with directions to strike the portion of its order 

### granting Blair's motion for newtrial and to otherwise further proceed in accordance with this decision. I 

### On February 19, 2011, King County Sheriffs Detective Cary Coblantz 

### listened to a recording of a telephone call made byKeith Blair, an inmate at the 

### King Countyjail. The telephoneconversation was recorded by thejail and was stipulated bythe parties to have been betweenKeith Blair and hiswife, Rachel 

## Dunham. Pertinentexcerpts from the telephone conversation are asfollows:1 BLAIR: Somebody is getting released tomorrow. DUNHAM: Yeah. 

### BLAIR: (unintelligible) Ineed you to come down here at 5:30p.m. and get that quart... of DUNHAM: Of? BLAIR: Green. DUNHAM: Green? BLAIR: Yeah. DUNHAM: I'm sorry. BLAIR: Okay. Can you do that? DUNHAM: Yeah. 

### BLAIR: I'll give him (unintelligible) number to get a hold ofyou. DUNHAM: He's gonna be released at 5:30? BLAIR: Yeah, p.m. DUNHAM: Why 5:30? 

### BLAIR: Idon't know. That's when they release people. So Ineed you to be here okay? DUNHAM: Okay. But.
. . okay. BLAIR: Okay. Thank you.



### 1Thejail telephone recording wasplayed to thejury and a redacted transcript ofthe 

### recording was admitted for illustrative purposes. Detective Coblantz testified thatthe transcript created by thejail isnotentirely accurate and includes typographical errors and omitted statements. Asa result, many statementsin thetranscriptweremarked as "unintelligible." At 

### oral argument, the State urged this courtto referto Blair's briefing for anaccurate account ofBlair and Dunham's telephone conversation. Accordingly, the excerpts contained herein arequoted directly from Blair's briefing.
-2-No. 67874-4-1/3 BLAIR: (unintelligible) phone call. I'm going to give dude your phone number right now, so make sure you're here at 5:30. DUNHAM: What's his name. BLAIR: I don't know. He'll call you. DUNHAM: You don't know? BLAIR: (unintelligible) DUNHAM: Dude, it's a set up Keith. Serious. Hello? Ican't hear you. BLAIR: Hold on. (unintelligible) But uh (unintelligible) DUNHAM: It's a set up. BLAIR: No it's not. DUNHAM: Yeah, it is. BLAIR: It's not. DUNHAM: You don't even know his name. BLAIR: Alright, I'll find out right now. Just trust me okay? DUNHAM: Okay. Br. of Resp't at 2-3. After Blair and Dunham discussed other matters, Blair said, "His name is 

### Chris." Dunham replied, "Huh?" Blairresponded, "Chris." Blair and Dunham 

### continued to talk about other topics, after which the following exchange took place:
BLAIR: Urn, shred that up and put it in a rubber. DUNHAM: Huh? BLAIR: Shred that up and put it in a rubber. DUNHAM: Shred what? 

### BLAIR: When you come here at 5:30. Tear it up, put itin a rubber. DUNHAM: Tear what up? BLAIR: What are you coming here for tomorrow? DUNHAM: What do Itear up? Idon't get it. BLAIR: Forty. DUNHAM: Yeah, I understand. BLAIR: Okay. Got it? DUNHAM: Kinda. BLAIR: (unintelligible) DUNHAM: Can you call me? BLAIR: Can I call you? DUNHAM: Yeah, like the morning. BLAIR: (unintelligible) maybe. DUNHAM: Before you go to work.No. 67874-4-1/4
BLAIR: I'll try to, why? DUNHAM: Just so I can be
... I dunno. BLAIR: You know like when we go to . .. DUNHAM: Yeah. BLAIR: Yeah. DUNHAM: That's what you want? BLAIR: Yeah. Okay? DUNHAM: Okay. Does (unintelligible) monetary. BLAIR: (unintelligible) yeah, 40 dollars worth. [...] BLAIR: Just get itready and give it to him, yeah. Okay? DUNHAM: Okay. Br. of Resp't at 3-4. Detective Coblantz testified that based on his experience, the term "green" 

### often refers to marijuana and the term "40" typicallysignifies the dollar amount of
a controlled substance that a person seeks to procure. After listening to the 

### recording of the telephone call, Detective Coblantz contacted Sergeant Catey Hicks, a member of the jail's special investigations unit. Sergeant Hicks determined that an individual named Christopher Yates was the only inmate with the first name of "Chris" or "Christopher" who was scheduled for a temporary 

### release from thejail the following day, February 20, 2011. Yates was to be 

### released from 10:00 a.m. to 6:00 p.m. that day. At the time, Yates and Blairwere housed together in the same dorm inthejail. 

### On February 20, 2011 at 5:15 p.m., Sergeant Hicks and Detective 

### Coblantz set up surveillance outside the jail, where they suspected a meeting wouldtake place between Dunham and Yates. At approximately 5:50 p.m., Detective Coblantz observed a black Acura park across the streetfrom the jail's intake doors. Soon after, he noticed Christopher Yates and a woman exit the


### car. Yates smoked a cigarette and looked around for a few minutes. At around

4-No. 67874-4-1/5 

### 6:00 p.m., the time at which Yates was required to return from his release, Yates 

### and thewoman ran across the street and entered thejail.2 Dunham drove up shortlythereafter, parking her car next to the intake doors. At this point, the
woman who accompanied Yates into thejailwalked out ofthejail, passing Dunham's car, and drove off in the Acura. There was no contact between Dunham and this woman. Dunham continued to sit alone in her car for approximately 10 to 15 minutes. Detective Coblantz then walked to the car, seized it, and had it 

### impounded. A few days later, Detective Coblantz searched the car pursuant to a search warrant and found a package ofcigarettes in a compartment therein. A 

### condom containing a bag of 2.5 grams of marijuana was wrapped tightly inside the package. 

### Blair was charged with conspiracy to commit violation of the Uniform Controlled Substances Act-possession with intent to deliver marijuana and with 

### attempted introducing contraband in the second degree. Thejury found Blair 

### guilty on the conspiracy charge andacquitted him on the attempted introduction of contraband charge. 

### Afterthe verdict, Blairmoved for anew trial orfor arrest ofjudgment.3 In its oral ruling, the trial courtgranted the motion for arrest of judgment based upon the lack of sufficientevidence of a conspiratorial agreement. The trial court did

2No contraband was found when the jail staff conducted a search of Yates upon his return. 3Blair moved for a new trialbased on the following grounds: "(1) Errorof lawoccurring at thetrial andobjected to at thetime by thedefendant, CrR 7.5(a)(6); (2) Thattheverdict or decision iscontrary tolaw and the evidence, CrR7.5(a)(7); and(3) Thatsubstantialjustice has not been done, CrR 7.5(a)(8)."
-5-No. 67874-4-1/6


### notorally rule on Blair's alternative motion for newtrial. Its written order, however, granted Blair's motion for arrest of judgment, and, in the alternative, 

### granted hismotion for newtrial. No findings of fact or conclusions oflaw were entered. 

### The State appeals from the trial court's ordergranting Blair's motion for arrest ofjudgment or, in the alternative, for a new trial.
II The State contends that sufficient evidence supports Blair's conspiracy 

### conviction, and, therefore, that the trial court erred by dismissing the case for lack 

### ofsufficient evidence proving that Blair entered into an agreementwith another to possess marijuana with intent to deliver. We agree. Criminal Rule (CrR) 7.4(a)(3) allows a defendant to move to arrest 

### judgmentfor "insufficiency ofthe proofofa material elementofthe crime." In ruling on a motion for arrest of judgment, thetrial court may not weigh the evidence; instead, itmayonly test or examine the sufficiency thereof. State v. Randecker, 79 Wn.2d 512, 517, 487 P.2d 1295 (1971); State v. Coleman, 54 

### Wn. App. 742, 746-47, 775 P.2d 986(1989). Theevidence presentedin a 

### criminal trial islegally sufficienttoconvict ifany rational trier offact, viewing the evidence in the light mostfavorable to the State, could havefound theessential elements of the charged crime beyond a reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420-21, 5 P.3d 1256 (2000). 

### Review of a trial court decision on a motion for arrest ofjudgment requires 

### theappellate courtto engage in the samesufficiency inquiry as does thetrialNo. 67874-4-1/7
court. Longshore, 141 Wn.2d at 420. "A claim for insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Such inferences must be drawn in favor ofthe State and interpreted most strongly against the defendant. Salinas, 119 Wn.2d at 201. The appellate court defers to the fact finder to resolve issues of conflicting testimony, credibility ofwitnesses, and the persuasiveness ofthe evidence. State v. Gerber, 28 Wn. App. 214, 216, 622 P.2d 888 (1981) (citing Jackson v. Virginia. 443 U.S. 307, 319, 99 S. Ct. 2781,61 L.Ed. 2d 560 (1979)). The State must prove all elements of a crime beyond a reasonable doubt. State v. McCullum, 98 Wn.2d 484, 494, 656 P.2d 1064 (1983). Here, the 

### information charges Blairwithconspiracy to commit violation of the Uniform 

### Controlled Substances Act in violation ofRCW 69.50.401,4 RCW 69.50.407,5 and RCW 9A.28.040. Pursuant to RCW 9A.28.040(1), "[a] person is guilty of criminal 

### conspiracy when, with intent that conduct constituting a crime be performed, he
or she agrees with one or more persons to engage in or cause the performance 

### of such conduct, and any one of them takes a substantial step inpursuance of such agreement." 

### For purposes of the conspiracy statutes, RCW 9A.28.040 and RCW 69.50.407, the State must prove that the co-conspirators entered into an actual
4RCW 69.50.401(1) provides: "Except as authorized bythis chapter, it is unlawful for any person to manufacture, deliver, orpossess with intentto manufacture ordeliver, a controlled substance." 5RCW 69.50.407 provides: "Any person whoattempts or conspiresto commit any offense defined in this chapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of whichwas the object of the attempt or conspiracy."No. 67874-4-1/8 

### agreement that was genuine or bilateral; it is not enough for one conspiratorto unilaterally believe that another agreed to commit a criminal act. State v. Pacheco. 125 Wn.2d 150, 159, 882 P.2d 183 (1994); see also State v. Butler. 165 Wn. App. 820, 834, 269 P.3d 315 (2012); State v. Stark. 158 Wn. App. 952, 962-63, 244 P.3d 433 (2010), review denied. 171 Wn.2d 1017 (2011). However, 

### it is unnecessary to prove that the agreement was formally expressed. State v. Barnes. 85 Wn. App. 638, 664, 932 P.2d 669 (1997); State v. Smith, 65 Wn. App. 468, 471, 828 P.2d 654 (1992). Moreover, itneed not be shown that the co 

### conspirators came together inagreement or were acquainted with one another. State v. Stewart. 32 Wash. 103, 109, 72 P. 1026 (1903). 

### The State may prove bycircumstantial evidence the existence of an 

### agreement. State v. King. 113Wn. App. 243, 269, 54 P.3d 1218 (2002); Statev. Culver. 36 Wn. App. 524, 528, 675 P.2d 622 (1984). Such circumstantial 

### evidence may be in the form of declarations, acts, or conduct of the parties. 

### Barnes, 85 Wn. App. at 664; State v. Gallagher. 15Wn. App. 267, 277-78, 549 

### P.2d 499 (1976). Evidence of"'concert ofaction, all the parties working together understandingly, with a single design for the accomplishment of a common 

### purpose'" issufficienttoprove agreement. Statev. Casarez-Gastelum, 48Wn. App. 112, 116, 738 P.2d 303 (1987) (internal quotation marks omitted) (quoting Marino v. United States. 91 F.2d 691, 694 (9th Cir. 1937)).No. 67874-4-1/9 Here, the State asserts that the trial court erred in granting the motion for 

### arrest of judgment.6 Specifically, it contends that the Statepresented to thejury sufficient evidence of an agreement between Blairand Yates. We agree. 

### Viewing the evidence in the light most favorable to the State, a rational trier of fact could have found that a conspiratorial agreement existed between Blairand 

### Yates to possess marijuanawith intent to deliver. The State profferedsufficient circumstantial evidence of an agreement, as evinced by the parties' actions and conduct, as well as the recorded telephone call between Dunham and Blair. 

### First, Christopher Yates was the only inmate at King County jailwith the


### name "Chris" or "Christopher" who was to be released on February 20, 2011. This fact coincides with Blair's conversation with Dunham, in which Blair informed 

### Dunham that a person named "Chris" would contact her. Further, although it is 

### unnecessary to showthatconspirators come togetheror are acquainted with one another, Stewart. 32Wash, at 109, a rational factfinder could inferthat Yates and Blair did in fact come together because they were housed in the same dorm 

### at thejail. Such an inference would suggest that Yates and Blair had the opportunity to engage in a conspiratorial agreement. 

### Second, Yates's conduct prior to reentering thejail could lead a rational fact finder to conclude that he was acting in conformity with a collaborated plan to
6The State also asserts that the trial court applied an improper legal standard when contemplating what an "agreement" necessitates undertheconspiracy statutes. This contention mischaracterizes the trialcourt's examination of the evidence priorto ruling on the motion. The record reveals thatthetrialjudgeunderstood thatcircumstantial evidence—not solely direct evjdenCe—may beconsidered, and that the agreementneed notbeformal. Thereis no indication that thetrialjudge required proofofaface-to-face, explicitagreement. Instead, thetrial courtwas aware that an "actual" agreementwas required and that a conspirator's mere beliefthat suchanagreementexisted isnot sufficient. Thetrial courttherefore did not rely upon the incorrect legal standardin its posttrial ruling on themotion for arrest of judgment.No. 67874-4-1/10 

### which he had agreed. Yates appeared at the jail receiving area several minutes prior to his scheduled return fromtemporary release. He was observed smoking
a cigarette and looking around, possibly waiting for Dunham to arrive. He finally
ran across the street to thejail entrance at 6:00 p.m., having lingered untilthe last moment before he was due to return from his temporary release. This evidence ofYates's conduct could lead a jury to infer that he had agreed with Blair to meet Dunham outside the jail in order to obtain marijuana from her; accordingly, the State proffered sufficient evidence from which a fact finder could determine that Yates was involved in a concerted plan to possess with intent to deliver, and that a bilateral agreement was entered into between Yates and Blair. Finally, evidence of Dunham's actions also suggests that an agreement
was in place between Blair and Yates because her conduct conformed closely to Blair's instructions to her as to how to make contact with Yates. Dunham arrived at thejail shortly after 6:00 p.m. and remained in her car for approximately 10 to 15 minutes without contacting another person. A jury could infer that she was waiting to meet with Yates after having arrived behind schedule. Further, marijuana was tightly packed inside a condom in a package in her car, a fact that also correlates withthe plan discussed the previous day in which Blairinstructed Dunham to bring "green" packed in a "rubber." Inaccordance with CasarezGastelum. 48 Wn. App. at 116, these facts—which show evidence of "concert of action" such that all parties appear to work together under a single design—are sufficient to prove the existence of an agreement.

10-No. 67874-4-1/11 Nevertheless, Blair argues that certain evidence should militate against a "concert of action" inference. Blair directed Dunham to come to thejail at 5:30 p.m. However, Dunham arrived shortly after 6:00 p.m. Moreover, Blair told Dunham on the telephone recording that Yates was to be released from jailthe following day at 5:30 p.m., but Yates was released at 10:00 a.m. and was 

### required to return at 6:00 p.m. Yates also did not appear outside of the jailuntil 5:50 p.m. It is forthejury to consider and weigh the evidence, however. The evidence pointed to by Blair would not preclude a rational fact finder from 

### inferring that an agreement had been made, and the jury did just that. At oral argument, counsel for Blairraised an additional argument not 

### expressly addressed in itsbriefing on appeal. Specifically, counsel contended that in order to satisfy each element of the underlying crime of conspiracy, the State was required to prove that Yates intended to deliver the marijuana to others after Dunham transferred it to him, and that Yates and Blair agreed that Yates 

### would deliver the marijuana once he was in receipt ofit. Blair's counsel maintained that because the State failed to proffer evidence establishing an 

### agreementwhereby Yates would deliverthe marijuana to others, the State lacked sufficient evidence of an agreement. 

### The State responded that it had presented sufficient evidence of 

### agreement to possess marijuana with intent todeliver. The State argued that evidence demonstrating an agreement to deliver marijuana to individuals other than Yates—whether inside the jail or elsewhere—is not legally required because 

### a delivery would haveoccurred once Dunham transferred the marijuana toYates.

11No. 67874-4-1/12 Thus, the State argued, at a minimum, the delivery element ofthe underlying crime was satisfied through evidence evincing Dunham's planned delivery of marijuana to Yates outside ofthe jail. We exercise our discretion to address Blair's additional contention raised for the first time at oral argument. We disagree with Blair's contention that the State was required to establish that an agreement existed between Blairand 

### Yates to deliver marijuana to individuals other than Yates or Blair. The intent to deliver element was satisfied by evidence of an agreement between Blairand 

### Yates whereby Dunham would deliver the marijuana she possessed to Yates outside of the jail. Evidence that Yates and Blair agreed that the marijuana would be delivered beyond Yates's possession once he received itwas not 

### necessary. Arational finder of fact could have found that a delivery was intended 

### to occur upon Yates's receipt of the marijuana beforereentering thejail. Based on the series of events that unfolded, a rational fact-finder could 

### reasonably drawthe inference thatBlair and Yates agreed to possess marijuana with the intent to deliver it. Viewing the facts and inferences from the facts in the 

### light mostfavorable to the State, weconclude that the Statepresented sufficient evidence of an agreement, and, thus, of a conspiracy. Accordingly, we reverse the order for arrest ofjudgment.
Ill The State further contends that the trial court erred by entering a written orderthat includes an alternative grant of a new trial, which the trial court

12No. 67874-4-1/13 

### "expressly rejected" in its oral ruling.7 Blairconcedes that thetrial court did not actually rule on his motion for a new trial. He further concedes that the written order should not have included language granting this motion. He classifies this
as a "ministerial error." The State does not address Blair's concession in its reply
brief. 

### Upon review of the record, itappears that the trial court concluded that it
was unnecessary to rule on the motion for new trial in the alternative, focusing 

### instead on the groundsfor the motion for arrest of judgment—sufficiency of the evidence. The trial court did so, itseems, because itintended to grant the 

### remedy ofdismissal—a greaterform ofrelief. However, thetrial courtthereafter entered a written order that was not limited to the scope ofthe trial court's oral 

### ruling.8 We accept Blair's concession thatthis constituted a ministerial error. We reverse the order arresting judgment. We remand to strike the portion 

### ofthe ordergranting Blair's motion for newtrial andfor all necessaryfurther proceedings.

We concur:



# ,y^y/vn<^ f\.Cjt

1The State's contention mischaracterizes the trial court's oral ruling. The trial court did 

### not "reject" the argumentthat a new trial bebased on the accomplice liability error; rather, the court declined to rule on Blair's motion for new trial. 8The written order states: "In the alternative, should the arrest ofjudgment be reversed, vacated or set aside, the Court herebyGRANTS the defense motion fora newtrial, for the reasons set forth in the defense memorandum."
13