IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 57656-2-II

Respondent,

v.

GUILLERMO OTHON III, UNPUBLISHED OPINION

Appellant.

GLASGOW, J.— Guillermo Othon III was driving a car with his wife as a passenger when 

law enforcement pulled them over. A purse in the front passenger area contained large amounts of 

methamphetamine and heroin, scales, packaging materials, and cash. The State charged Othon 

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

convicted him of both counts. At sentencing, the trial court imposed a crime victim penalty 

assessment.

Othon appeals, arguing that the evidence was insufficient to support his convictions. He

also argues, and the State concedes, that we should remand to strike the crime victim penalty 

assessment.

We affirm Othon’s convictions. We accept the State’s concession regarding the crime 

victim penalty assessment and remand solely to strike that assessment from the judgment and 

sentence.

Filed

Washington State

Court of Appeals

Division Two

April 9, 2024
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FACTS

While surveilling Othon’s wife, police watched Othon place a backpack in a minivan

registered to his father-in-law. His wife then put a purple purse in the front passenger seat area. 

She sat in the front passenger seat while Othon drove. Police followed the van and eventually

conducted a traffic stop. 

At the traffic stop, officers saw the purse on the floorboard of the front passenger seat 

through the vehicle’s window. Because the purse zipper was open, the officers were able to

“clearly see” from outside the vehicle a plastic bag with what they suspected was 

methamphetamine inside. Verbatim Rep. of Proc. (VRP) at 283. They also noticed a glass smoking 

pipe protruding from the purse. 

The officers obtained a warrant to search the car and the purse. Inside the purse, law 

enforcement discovered roughly 200 grams of methamphetamine in multiple bags, 350 grams of 

heroin, three electronic scales, a bag of smaller plastic baggies, and $195 in cash. They also found 

two cell phones mounted on the driver’s side of the vehicle, and Othon’s wife was carrying a third 

phone. 

The State charged Othon and his wife with one count of possession of heroin with intent 

to deliver and one count of possession of methamphetamine with intent to deliver. The State 

alleged that Othon acted either as a principal or an accomplice. 

Othon’s wife pleaded guilty, and Othon went to trial. At Othon’s trial, one detective 

testified that methamphetamine and heroin were typically sold by the gram to individual users. 

The approximately 200 grams of methamphetamine and 350 grams of heroin found in the vehicle 
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were worth about $15,000. The detective also stated that the bag of small plastic baggies found in 

Othon’s vehicle was “fairly consistent with somebody who deals in narcotics.” VRP at 248.

Other detectives testified about how drug transactions usually worked. They stated that 

drug transactions often occurred in a vehicle in a public parking lot. Individuals involved in 

narcotics trafficking often used vehicles belonging to others to conduct transactions, including

vehicles registered to other family members. They also often had someone else drive them. It was

also common for individuals involved in the drug trade to have multiple cell phones. 

The jury instructions explained that a person is an accomplice if they encourage, request, 

aide, or agree to aid someone else in committing the relevant offense. 

The jury found Othon guilty of both charges. The trial court imposed a sentence of 15 

months of confinement, near the middle of the standard sentencing range, and a $500 crime victim 

penalty assessment. 

Othon appeals his convictions and the crime victim penalty assessment. 

ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE

Othon argues that the evidence was insufficient to support his possession with intent to 

deliver convictions. He contends the State failed to establish that he intended to deliver the 

controlled substances or that he acted as an accomplice to his wife’s crimes. We disagree. 

A. Standard of Review 

We review challenges to the sufficiency of the evidence by considering whether any 

rational trier of fact, viewing the evidence in the light most favorable to the State, could find the 

essential elements of the crime beyond a reasonable doubt. State v. Rich, 184 Wn.2d 897, 903, 365 
No. 57656-2-II

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P.3d 746 (2016). A challenge to the sufficiency of the evidence admits the truth of the State’s 

evidence and all reasonable inferences that can be drawn from that evidence. State v. Salinas, 119 

Wn.2d 192, 201, 829 P.2d 1068 (1992). Direct and circumstantial evidence are equally reliable. 

State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010). We defer to the trier of fact on issues of 

conflicting testimony, witness credibility, and the persuasiveness of evidence. State v. AgueMasters, 138 Wn. App. 86, 102, 156 P.3d 265 (2007).

B. Possession of a Controlled Substance with Intent to Deliver

To establish possession of a controlled substance with intent to deliver, the State must 

prove that the defendant possessed a controlled substance and they had the intent to deliver the 

substance to another. Former RCW 69.50.401(1) (2019). While Othon acknowledges that “the 

evidence might support a finding that Othon constructively possessed the narcotics in [his wife’s]

purse,” he asserts that “mere possession does not support an inference of intent to deliver.” Br. of 

Appellant at 10. Specifically, Othon contends there is no evidence that he had knowledge of the 

quantity of drugs and the existence of the scales and packaging materials in the purse.

1. Constructive possession of items in the vehicle

A defendant has constructive possession if they have “dominion and control over the item.”

State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002). “Dominion and control means that the 

object may be reduced to actual possession immediately.” Id. We may consider whether the 

defendant had control over the broader premises in which the item was located, and this control 

does not have to be exclusive. State v. Listoe, 15 Wn. App. 2d 308, 327, 475 P.3d 534 (2020). For 

example, the fact that a defendant was driving a car with narcotics in the back seat supported a

finding that the defendant had dominion and control over the vehicle and its contents. Id. at 328.
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Here, a rational jury could infer that Othon had dominion and control over the vehicle, the 

broader premises where the purse was located. Othon was driving the car and was close to the 

open purse. Considering the evidence in the light most favorable to the State, the evidence was 

sufficient for a rational trier of fact to find beyond a reasonable doubt that Othon had constructive 

possession over the items found in the purse.

2. Intent to deliver

When the charge is possession with intent to deliver, evidence of intent is typically 

circumstantial. State v. Davis, 79 Wn. App. 591, 594, 904 P.2d 306 (1995). Circumstantial 

evidence is as reliable as direct evidence. Kintz, 169 Wn.2d at 551. However, “[e]vidence that a 

defendant had the intent to deliver must be ‘sufficiently compelling’ that the intent ‘is plainly 

indicated as a matter of logical probability.’” State v. Sprague, 16 Wn. App. 2d 213, 233, 480 P.3d 

471 (2021) (internal quotation marks omitted) (quoting Davis, 79 Wn. App. at 594).

Generally, mere possession of a controlled substance, including quantities greater than 

needed for personal use, is not sufficient to support an inference of intent to deliver. State v. 

O’Connor, 155 Wn. App. 282, 290, 229 P.3d 880 (2010). But “a finder of fact can infer intent to 

deliver from possession of a significant amount of a controlled substance plus at least one 

additional factor.” State v. Hotchkiss, 1 Wn. App. 2d 275, 280, 404 P.3d 629 (2017). The presence 

of sale paraphernalia, such as scales, cell phones, cash, and packing materials, can be the additional 

factor that support an intent to deliver. State v. Slighte, 157 Wn. App. 618, 627 n.13, 238 P.3d 83 

(2010), rev’d on other grounds, 172 Wn.2d 1003, 257 P.3d 1112 (2011). A defendant may possess 

a cell phone and a scale for personal use; however, a cell phone and a scale are “usually considered 
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in conjunction with other circumstantial evidence that is similarly suggestive of such intent.” See 

Sprague, 16 Wn. App. 2d at 234.

Here, Othon constructively possessed about 200 grams of methamphetamine in multiple 

bags and 350 grams of heroin, quantities well beyond that normally kept for personal use, three 

electronic scales, multiple small plastic baggies, and three cell phones for two adults in the car. A 

detective testified that users tend to buy individual grams, and the presence of the baggies was 

“fairly consistent with somebody who deals in narcotics.” VRP at 248. Detectives also testified 

that people involved in drug trade often have multiple cell phones. Thus, the State presented 

evidence that Othon possessed a large quantity of controlled substances, plus several additional 

factors suggestive of intent. Hotchkiss, 1 Wn. App. 2d at 280.

Even though the possession of a scale and a cell phone could be consistent with both an 

intent to deliver and personal use, the evidence must be viewed in a light most favorable to the 

State. Here, a rational trier of fact could find beyond a reasonable doubt that Othon’s possession 

of three scales, more than one cell phone per adult in the car, and packaging materials, together 

with his possession of a significant amount of methamphetamine and heroin showed intent to 

deliver. 

3. Accomplice liability

Othon also challenges the State’s accomplice liability theory, arguing that there was no 

evidence that he associated himself in any way with his wife’s crimes or that he knew of her intent. 

He further argues that the State improperly relied on the fact that Othon was married to establish 

Othon’s knowledge of the quantity of narcotics and the existence of the paraphernalia in his wife’s

possession. We disagree.
No. 57656-2-II

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A person is guilty as an accomplice if, with knowledge that it will promote or facilitate the

commission of the crime, they solicit, encourage, aid, or agree to aid another person in planning 

or committing the crime. RCW 9A.08.020(3)(a)(i)-(ii). The State must prove that the defendant 

actually knew that they were promoting or facilitating the principal in the commission of the crime. 

State v. Allen, 182 Wn.2d 364, 374, 341 P.3d 268 (2015). But the State can prove actual knowledge 

through circumstantial evidence. Id. A person has actual knowledge when they have “‘information 

which would lead a reasonable person in the same situation to believe’” that they are promoting or 

facilitating the crime. Id. (quoting RCW 9A.08.010(1)(b)(ii)). 

Viewing the evidence in the light most favorable to the State, Othon’s constructive 

possession of the cell phones and the marketable quantity of controlled substances, three scales, 

and small plastic baggies was sufficient to raise a reasonable inference that he knew about his 

wife’s intent to deliver. While their marital relationship could have bolstered such inference, it was 

not the only evidence that the State relied on to establish Othon’s knowledge that he was promoting 

or facilitating the crime of possession of a controlled substance with intent to deliver. 

Further, the detectives testified that it was typical for drug dealers to have someone else 

drive them. Based on this testimony, a rational jury could infer that Othon knowingly facilitated 

his wife’s commission of the crimes by driving her to a delivery. 

Othon analogizes his possession of a controlled substance with intent to deliver convictions

to one reversed by Division One in State v. Amezola, 49 Wn. App. 78, 741 P.2d 1024 (1987), 

overruled on other grounds by State v. MacDonald, 138 Wn.2d 680, 689, 981 P.2d 443 (1999). In

Amezola, a defendant appealed her conviction for possession of heroin with intent to deliver. Id.

at 79. The defendant lived with her alleged accomplices but was not involved in the drug dealing—
No. 57656-2-II

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she cooked meals for them and cleaned their shared residence. Id. at 83, 89. The State argued that 

the defendant’s cooking and cleaning enabled her housemates to engage in the delivery of heroin, 

making her an accomplice in their criminal enterprise. Id. at 89. Division One rejected the 

argument, holding that the defendant’s housework was legally insufficient to show that she had 

associated herself with her housemates’ illegal activities, thereby making her their accomplice. Id.

at 89-90. 

Othon’s analogy to Amezola fails. Unlike that case, a rational jury could infer that Othon 

was facilitating his wife’s drug dealing by driving her to deliver her narcotics, participation that 

was sufficient to make him an accomplice. Thus, viewing the evidence in the light most favorable 

to the State, a jury could find Othon guilty as an accomplice beyond a reasonable doubt. 

II. CRIME VICTIM PENALTY ASSESSMENT

Othon requests, and the State concedes, that the crime victim penalty assessment be 

stricken due to Othon’s indigency. Trial courts may no longer impose the crime victim penalty 

assessment on indigent defendants. Former RCW 7.68.035 (2018), amended by LAWS OF 2023, 

ch. 449, § 1(4). Although the trial court did not expressly find that Othon was indigent under RCW 

10.01.160(3), the State concedes that the crime victim penalty assessment should be stricken. We

accept the State’s concession and remand for the trial court to strike the crime victim penalty 

assessment from Othon’s judgment and sentence.

CONCLUSION

We affirm Othon’s convictions but remand for the trial court to strike the crime victim 

penalty assessment from Othon’s judgment and sentence.
No. 57656-2-II

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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:

Lee, J.

Cruser, C.J.