IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

TIMOTHY W. TORREZ,

Appellant.

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No. 38999-5-III

UNPUBLISHED OPINION

STAAB, J. — Timothy Torrez appeals from his convictions of possession of a 

controlled substance with intent to deliver and conspiracy to possess a controlled 

substance with intent to deliver. On appeal, Torrez raises four issues: (1) the trial court 

abused its discretion in denying his motion to suppress evidence obtained pursuant to the 

amended search warrant, (2) the trial court abused its discretion in denying his motion to 

suppress statements made to law enforcement, (3) the trial court abused its discretion in 

denying his motion to sever his trial from that of his co-defendant, Roberta Jones, and (4) 

there was insufficient evidence to convict Torrez of possession of a controlled substance 

FILED

AUGUST 15, 2023

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 38999-5-III

State v. Torrez

2

with intent to deliver and conspiracy to possess a controlled substance with intent to 

deliver. We disagree and affirm his convictions.

BACKGROUND

Following a tip from a confidential informant that Roberta Jones was selling 

methamphetamine, law enforcement initiated an investigation into Jones that involved 

two controlled buys. Law enforcement subsequently obtained a search warrant for Jones’ 

residence. The warrant was later amended to include Jones’ vehicle, which was driven 

away from Jones’ residence by Timothy Torrez just prior to the execution of the warrant 

on the residence.

Law enforcement found methamphetamine during the searches of the residence 

and the vehicle, along with other drug paraphernalia in the residence. The State charged 

both Jones and Torrez with possession of a controlled substance with intent to deliver and 

conspiracy to possess a controlled substance with intent to deliver.

1. SEARCH WARRANT

In his search warrant affidavit, Detective Bryson Aase stated that Jones and Torrez 

were in a romantic relationship and were both known for trafficking large amounts of 

methamphetamine. Detective Aase also noted that both subjects had been involved in 

past narcotics cases.

The affidavit also explained that a confidential informant (CI) had been speaking 

with law enforcement about purchasing methamphetamine from Jones and informed law 
No. 38999-5-III

State v. Torrez

3

enforcement that they had recently learned that Jones and Torrez were traveling to the 

Pasco area twice a week to pick up over a pound of methamphetamine to distribute in 

Clarkston and Lewiston.1 The CI told law enforcement they had purchased 

methamphetamine from Jones on multiple previous occasions. They further said that 

Jones kept two to four ounces of methamphetamine at her residence but kept larger 

amounts at Torrez’s parents’ property. The CI had assisted law enforcement in several 

cases over the past year, each time providing reliable and credible information and 

keeping in contact with law enforcement as directed.

The affidavit then detailed how the CI had participated in two separate controlled 

buys during which the CI had successfully purchased methamphetamine from Jones. The 

CI met Jones at a predetermined location during the first controlled buy. Jones arrived in 

a black SUV2that did not have permanent license plates. The second controlled buy 

occurred in Jones’ residence. There is no evidence that Torrez was present during either 

of the controlled buys.

About 21 days after the first controlled buy, police learned from the CI that Jones 

had run out of methamphetamine and was traveling out of town to get more. The CI said 

 

1 Although it appears from the affidavit that two CIs provided information to law 

enforcement, during pretrial proceedings Detective Aase testified, and the trial court 

found that there was in fact only one CI. Detective Aase explained that he used two 

different numbers to refer to the same CI to protect the CI’s identity.

2 Sport utility vehicle.
No. 38999-5-III

State v. Torrez

4

they had been in contact with Jones and Jones had said she “was almost back in town and 

would have methamphetamine to sell.” Clerk’s Papers (CP) at 34.

That same day, Detective Aase drove to Jones’ residence and observed her black 

SUV, the same vehicle used during the first controlled buy, in a carport with wet tire 

tracks leading into the carport. Based on this information and the information received 

from the CI, Detective Aase believed that Jones had just returned from acquiring 

methamphetamine. Law enforcement surveilled her residence while Detective Aase 

requested a search warrant for the residence and Jones’ person, supporting his request 

with an affidavit that contained all the above information. Detective Aase did not request 

a warrant for the black SUV parked in the carport at this time.

The magistrate granted the request for a warrant to search Jones’ residence.

2. SEARCH OF SUV AND TORREZ

Prior to officers commencing the search of Jones’ residence, Torrez left the 

residence driving the black SUV.

Detective Aase then called the magistrate and requested to amend the search 

warrant to include the black SUV and Torrez’s person. Detective Aase relayed to the 

magistrate that the vehicle had left the apartment with Torrez as the sole occupant and 

expressed concern that Torrez may have removed evidence from the residence that was 

either now on his person or in the vehicle. The magistrate authorized the amendment, 

expanding the scope of the warrant to search the black SUV and Torrez’s person.
No. 38999-5-III

State v. Torrez

5

While waiting for the magistrate to authorize the amendment, law enforcement 

stopped the vehicle and detained Torrez. Torrez was informed that the reason for the stop 

was possible narcotics related activity and was asked to step out of the vehicle. An 

officer then attempted to conduct a pat down search of Torrez, but Torrez immediately

started taking things out of his own pockets. When Detective Aase arrived at the scene, 

Torrez was sitting in the back of a patrol car with the door ajar but was not handcuffed.

After arriving, Detective Aase spoke with Detective Cody Bloomsburg, and 

Detective Bloomsburg said he had read Torrez his Miranda3rights. Detective Aase then 

went over to Torrez, identified himself as a law enforcement officer, and asked Torrez if 

he remembered and understood his Miranda rights being read. Torrez stated that he did. 

Detective Aase informed Torrez that they had a warrant for the vehicle, his person, and 

the residence, and that they had located a quarter pound of methamphetamine at the 

residence. Detective Aase then asked Torrez if there was any methamphetamine in the 

SUV. Torrez responded there was some for personal use in the backseat. The entire 

conversation between Detective Aase and Torrez lasted about three minutes. Detective

Aase was wearing plain clothes when he spoke with Torrez, and his gun was not visible.

Detective Aase subsequently located about a quarter pound of methamphetamine 

in the back seat of the SUV. Police then placed Torrez under arrest and searched his 

person, finding about $5,000 in cash.
No. 38999-5-III

State v. Torrez

6

3. PRETRIAL MOTIONS TO SUPPRESS

Prior to trial, defense counsel moved to suppress all evidence obtained pursuant to 

the search warrant, maintaining that the amendment was not supported by facts sufficient 

to show probable cause. Defense counsel argued that Detective Aase failed to explain 

why there was probable cause to search the SUV and that there was nothing that 

established a reason to search Torrez. He argued that Detective Aase merely expressed 

his personal opinion without supporting it with direct observation or factual basis and 

provided no facts connecting Torrez to any crime.

Although he did not bring up the issue in the initial motion or during argument, in 

his reply brief, defense counsel also argued that there was no basis of knowledge for the 

CI’s statement that “Jones and/or Torrez [had been] traveling” to pick up 

methamphetamine twice a week and distributing it.

The trial court denied the motion to suppress, finding sufficient facts to show a 

nexus between the vehicle and the alleged criminal activity. Because of the nexus, the 

trial court determined that probable cause existed for the magistrate to amend the search 

warrant to include the vehicle and the driver of the vehicle, Torrez. Although it 

recounted the CI’s statements to law enforcement in its decision, the trial court made no 

findings related to the search of Torrez’s person or the CI’s basis of knowledge.

 

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 38999-5-III

State v. Torrez

7

Defense counsel also moved to suppress statements Torrez had made to Detective

Aase regarding the personal methamphetamine in the SUV. Defense counsel argued that 

Torrez was subject to custodial arrest when he made the statements and that Detective 

Aase failed to give Torrez his Miranda warnings. 

At the hearing on the motion to suppress, Detective Aase testified that Torrez was 

not free to leave at the time he had been questioned and multiple law enforcement 

officers were on the scene where Torrez was detained, some in marked police vehicles 

and wearing uniforms. All of the law enforcement officers present were carrying 

firearms.

Detective Bloomsburg testified that Torrez had been sitting in the backseat of the 

patrol car because it was cold outside. Detective Bloomsburg said that he did not 

specifically remember advising Torrez of his Miranda rights but that he would not have 

said he had done so unless he had. Detective Bloomsburg also said he routinely advised 

individuals of their rights in felony narcotics investigations, regardless of whether he 

intended to question them.

The trial court found that the environment was not coercive, and therefore, Torrez 

was not in custody. Further, the trial court determined that even if Torrez was in custody, 

he had been advised of his Miranda rights. Accordingly, the trial court denied Torrez’s 

motion to suppress statements made to Detective Aase.
No. 38999-5-III

State v. Torrez

8

4. MOTIONS FOR JOINDER AND SEVERANCE

The parties initially stipulated to severance of Jones and Torrez’s cases because 

Jones had agreed to cooperate with the State. Accordingly, the trial court ordered 

severance. However, Jones subsequently decided not to cooperate, and the State moved 

to reconsolidate the cases. Torrez opposed consolidation, and his defense counsel argued 

that joinder was improper because much of the investigation centered around Jones:

The entire focus of the investigation was on Ms. Jones. They were 

developing facts on Ms. Jones. [Torrez] got drawn into it because he was 

driving the vehicle that was stopped and he is—he is linked to the—the 

drugs that were found in that vehicle. But there is no other evidence in the 

police report indicating that he had anything to do with what was in the 

house.

Rep. of Proc. (RP) at 56. The trial court granted the motion to consolidate, determining 

that consolidation did not prejudice either side and judicial economy supported 

consolidation because it resulted in one trial rather than two.

During the State’s opening statement, defense counsel learned that the State 

intended to present evidence of the controlled buys at trial as circumstantial evidence of 

intent to deliver.4 Based on this comment, defense counsel renewed its motion to sever 

the trials of Jones and Torrez. The State opposed the motion, arguing that even if Jones 

was the one who had “handed [ ] over” the methamphetamine, there was reason to 

 

4 Although opening statements were not transcribed, this fact can generally be 

inferred from defense counsel’s statements.
No. 38999-5-III

State v. Torrez

9

believe that Torrez was either involved or assented to the transactions. Moreover, the 

State argued that the evidence was probative with regard to both Jones and Torrez 

because Torrez was stopped after he left the apartment with a quarter pound of 

methamphetamine. In a brief decision, the trial court denied the motion to sever “[d]ue to 

the nature of the conspiracy charge.” RP at 371. 

5. TESTIMONY AT TRIAL

More than three years after the search of the residence and the SUV, the case 

proceeded to a jury trial. The State presented testimony regarding three controlled buys, 

two of which were referred to in the search warrant affidavit, during which a confidential 

informant purchased methamphetamine from Jones. The third controlled buy also

occurred at the residence. From the record, it does not appear that Torrez had been 

present during any of the controlled buys.

Detective Aase testified that Torrez admitted that he had personal amounts of 

methamphetamine in the SUV. Detective Aase also testified that after finding the 

methamphetamine in the SUV, Torrez was then placed under arrest and searched incident 

to arrest. During the search incident to arrest, law enforcement found cash in Torrez’s 

pocket that was bundled in one hundred dollar increments, which Detective Aase testified 

was a common way of bundling money for those who sell narcotics. About $2,600 was 

also located in Torrez’s wallet.
No. 38999-5-III

State v. Torrez

10

Testimony at trial showed that when law enforcement searched the residence, they 

found about another quarter pound of methamphetamine in plain view behind a recliner 

in the living room. They also located three scales and a significant number of small 

“baggies” in the kitchen.

Torrez and Jones were in a long-term romantic relationship, and evidence 

discovered during the search indicated that Torrez, as well as Jones, had been living at 

the residence. Two sets of luggage, appearing to be “[h]is and hers,” were found in the 

kitchen. Mail to Torrez, addressed to the residence, was also located. The residence 

contained two bedrooms. One contained two scales—one with residual meth, several 

men’s clothing items hanging in the closet, a package of men’s underwear, a men’s 

cowboy hat, and two bowling balls under the bed. The other bedroom contained purses, 

jewelry, female clothing, and female shoes.

6. JURY INSTRUCTIONS, CLOSING ARGUMENT, AND VERDICT

The trial court instructed the jury regarding what constituted “possession:”

Possession means having a substance in one’s custody or control. It 

may be either actual or constructive. Actual possession occurs when the 

item is in the actual physical custody of the person charged with 

possession. Constructive possession occurs when there is no actual 

physical possession but there is dominion and control over the substance. 

Proximity alone without proof of dominion and control is 

insufficient to establish constructive possession. Dominion and control 

need not be exclusive to support a finding of constructive possession. 

In deciding whether the Defendant had dominion and control over a 

substance, you are to consider all the relevant circumstances in the case. 
No. 38999-5-III

State v. Torrez

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Factors that you may consider, among others, include whether the 

Defendant had the immediate ability to take actual possession of the 

substance, whether the Defendant had the capacity to exclude others from 

possession of the substance, and whether the Defendant had dominion and 

control over the premises where the substance was located. No single one 

of these factors necessarily controls your decision.

CP at 189. The trial court also instructed the jury that, to convict Torrez of conspiracy to 

commit possession of a controlled substance with intent to deliver, it had to find, among 

other elements, that “the Defendant agreed with one or more persons to engage in or 

cause the performance of conduct constituting the crime of Possession with Intent to 

Deliver a Controlled Substance” and that “any one of the persons involved in the 

agreement took a substantial step in pursuance of the agreement.” CP at 194. “A 

substantial step is conduct of the defendant that strongly indicates a criminal purpose.” 

CP at 195.

Neither Jones nor Torrez provided any jury instructions for affirmative defenses. 

And in both parties’ closing arguments, their defense counsel attacked the State’s 

evidence generally, asserting that it was insufficient to convict and that there were flaws 

in law enforcement’s procedures.

The jury found Torrez guilty of possession of a controlled substance with intent to 

deliver and conspiracy to commit possession of a controlled substance with intent to 

deliver.

Torrez appeals.
No. 38999-5-III

State v. Torrez

12

ANALYSIS

1. WHETHER THE AMENDED WARRANT ESTABLISHED PROBABLE CAUSE TO 

SEARCH TORREZ AND THE SUV.

Detective Aase obtained an amended search warrant for both the black SUV and 

the driver, Torrez. At the suppression motion, the parties focused on whether there was 

probable cause to search the vehicle. At trial, Detective Aase testified that Torrez was 

searched incident to arrest, not pursuant to the warrant. On appeal, Torrez’s argument 

focuses on whether the initial and amended search warrant application provided probable 

cause to search his person. 

We hold that the magistrate did not abuse its discretion in finding probable cause 

to search the SUV. In addition, regardless of whether the warrant application provided 

probable cause to search Torrez, the search of his person incident to arrest provides an 

independent basis for the search of his person. 

Under the Fourth Amendment to the United States Constitution and article I, 

section 7 of the Washington Constitution, the issuance of a search warrant requires a 

showing of probable cause. Fry, 168 Wn.2d at 5. Probable cause is a fact-specific 

determination that requires considerations of the competing interest of enforcement of the 

law and protection of an individual’s privacy rights. Id. at 6. “‘Probable cause exists 

where there are facts and circumstances sufficient to establish a reasonable inference that 

the defendant is involved in criminal activity and that evidence of the criminal activity 
No. 38999-5-III

State v. Torrez

13

can be found at the place to be searched.’” Id. (quoting State v. Maddox, 152 Wn.2d 

499, 505, 98 P.3d 1199 (2004)). “Probable cause requires a probability of criminal 

activity, not a prima facie showing of criminal activity.” Maddox, 152 Wn.2d at 510. 

The affidavit supporting a search warrant must provide facts that establish a “nexus” 

between the criminal activity, the place to be searched, and the evidence being sought. 

State v. Denham, 197 Wn.2d 759, 767, 489 P.3d 1138 (2021).

Probable cause to believe that evidence of a crime can be found in a vehicle is 

separate from probable cause to search the vehicle’s occupants. “A premises warrant 

does not confer authority upon an officer to search the individuals found at the premises.” 

State v. Hill, 123 Wn.2d 641, 643-44, 870 P.2d 313 (1994). Circumstances can exist 

where police have probable cause to search property that is owned or possessed by a 

person even when they do not have probable cause that the possessor is involved in a 

crime. See State v. Campbell, 166 Wn. App. 464, 474, 272 P.3d 859 (2011). To search 

both the vehicle and its occupants, the warrant application must provide probable cause to 

believe that evidence of a crime will be found in the vehicle and on the person. In this 

case, the warrant authorized police to search Torrez as well as the vehicle.

A trial court’s conclusions of law are reviewed de novo. State v. Fry, 168 Wn.2d 

1, 5, 228 P.3d 1 (2010). Unchallenged findings of fact are considered verities on appeal. 

State v. Brockob, 159 Wn.2d 311, 343, 150 P.3d 59 (2006). A trial court’s findings of 

fact to which an appellant assigns error is reviewed for substantial evidence. Id. 
No. 38999-5-III

State v. Torrez

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“Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of 

the finding’s truth.” State v. Pratt, 11 Wn. App. 2d 450, 457, 454 P.3d 875 (2019). 

The magistrate’s determination of probable cause is given great deference. State 

v. Kennedy, 72 Wn. App. 244, 248, 864 P.2d 410 (1993) (internal citations omitted). 

This court’s review of a probable cause determination is limited to the four corners of the 

document supporting probable cause. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 

(2008). Affidavits in support of search warrants should be evaluated in a commonsense 

manner. State v. Lyons, 174 Wn.2d 354, 360, 275 P.3d 314 (2012).

A. Search of SUV

Although his argument is not well developed, Torrez appears to argue that the 

amended warrant did not establish probable cause to search the SUV because nothing in 

the original application or the amendment would lead a reasonable person to believe that 

Torrez was involved in the methamphetamine operation. But the request for an amended 

warrant, when viewed in conjunction with the affidavit supporting the original request, 

provides a sufficient basis for probable cause.

The original and supplemental search warrant affidavits provided probable cause 

to believe that the SUV was being used in the commission of a crime and contained 

evidence of a crime. The original affidavit explained that during one of the controlled 

buys, Jones drove to the location in a black SUV that did not have permanent plates. 

Twenty-one days after this controlled buy, the CI informed law enforcement that Jones 
No. 38999-5-III

State v. Torrez

15

had said she had left to get more methamphetamine and “was almost back to town.” CP 

at 34. Detective Aase then drove to Jones’ residence and observed the same black SUV 

parked in the carport with wet tire tracks leading into the carport. Shortly thereafter, 

Torrez drove the black SUV away from the residence. The probable cause to search the 

SUV applied regardless of who was driving the vehicle. Thus, the trial court did not 

abuse its discretion in denying Torrez’s motion to suppress evidence obtained pursuant to 

the amended search warrant.

B. Search of Torrez’s Person

Following the search of the SUV, law enforcement arrested and searched Torrez’s 

person and found about $5,000 in cash, half of which was arranged in a manner typical 

for individuals who sell narcotics. On appeal, Torrez argues that the warrant affidavit 

failed to establish probable cause to search his person and any reliance on the CI is 

misplaced because the warrant affidavit failed to establish the CI’s basis of knowledge. 

Arguably, this argument has not been preserved. In his motion before the superior 

court, Torrez focused on the evidence to support the search of the SUV rather than his 

person. In addition, he did not challenge the basis of the CI’s knowledge until his reply 

brief. Neither party addressed the CI’s basis of knowledge at oral argument before the 

trial court, the trial court did not enter any findings of fact regarding the CI’s basis of 

knowledge, and Torrez did not object to the trial court’s decision not to address the CI’s 

basis of knowledge.
No. 38999-5-III

State v. Torrez

16

Regardless, according to testimony at trial, Torrez was searched incident to arrest 

and not pursuant to the amended search warrant. A search incident to arrest is an 

exception to the warrant requirement, meaning it does not require a valid warrant. See

State v. Salinas, 169 Wn. App. 210, 216, 279 P.3d 917 (2012). The trial court did not 

decide whether the search of Torrez’s person was supported by the amended search 

warrant application. On appeal, Torrez does not claim that the search of his person 

incident to arrest was improper. Regardless of whether the amended search warrant

application provided probable cause to search Torrez, the search of his person incident to 

arrest provides an independent basis for the search. 

2. TORREZ’S STATEMENTS TO LAW ENFORCEMENT

Torrez argues that the trial court erred in admitting his statements to Detective

Aase because he was subject to custodial interrogation and not advised of his Miranda

rights. We disagree.

Torrez maintains that Detective Aase’s questioning constituted custodial 

interrogation. However, even if Torrez was in custody at the time of the questioning, the 

trial court found that Detective Bloomsburg advised Torrez of his Miranda rights before 

Detective Aase questioned him.5 This finding is supported by substantial evidence. 

 

5 Torrez does not assign error to this finding. See RAP 10.3(g). However, since 

his briefing adequately raises the issue, we exercise our discretion to address whether the 

finding is supported by substantial evidence. Bircumshaw v. Wash. State Health Care 

Auth., 194 Wn. App. 176, 380 P.3d 524 (2016).
No. 38999-5-III

State v. Torrez

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Detective Aase testified that Detective Bloomsburg informed him he had given the 

warnings, and when asked, Torrez confirmed that he remembered and understood the 

warnings. Although, more than three years after the incident, Detective Bloomsburg 

could not specifically remember giving the warnings, he testified that it was his practice 

to do so in situations such as this and he would not have told Detective Aase he had given 

the warnings unless he had. 

The trial court did not abuse its discretion in denying Torrez’s motion to suppress 

his statements to law enforcement after finding that Torrez had been advised of his 

Miranda rights. 

3. MOTION TO SEVER TRIALS

Torrez argues that the trial court abused its discretion in denying his motion for 

severance. We disagree.

“The law does not favor separate trials.” State v. Huynh, 175 Wn. App. 896, 908, 

307 P.3d 788 (2013). However, upon motion of a defendant, the trial court shall grant 

severance if the trial court “determines that severance will promote a fair determination 

of the defendant’s guilt or innocence of each offense.” CrR 4.4(b). The defendant bears 

the burden of showing severance is necessary. State v. Emery, 174 Wn.2d 741, 752, 278 

P.3d 653 (2012).

A trial court’s denial of a motion to sever is reviewed for an abuse of discretion. 

State v. Bryant, 89 Wn. App. 857, 864, 950 P.2d 1004 (1998). Where a trial court abuses 
No. 38999-5-III

State v. Torrez

18

its discretion in denying a motion to sever, this court will reverse only if the defendant 

can show that he or she was prejudiced by the decision. Emery, 174 Wn.2d at 754-56.

A trial court must consider the following factors to determine whether the 

potential for prejudice necessitates severance:

“(1) the strength of the State’s evidence on each count; (2) the clarity of 

defenses as to each count; (3) court instructions to the jury to consider each 

count separately; and (4) the admissibility of evidence of the other charges 

even if not joined for trial.”

State v. Slater, 197 Wn.2d 660, 677, 486 P.3d 873 (2021) (quoting State v. Russell, 125 

Wn.2d 24, 63, 882 P.2d 747 (1994)). The trial court must also weigh prejudice to the 

defendant against the need for judicial economy. Id.

In deciding a motion to sever, a trial court must conduct an analysis of each of the 

four factors, in addition to the need for judicial economy, on the record. State v. 

McCabe, __ Wn. App. 2d __, 526 P.3d 891, 897 (2013). Even if the trial court abuses its 

discretion by failing to conduct a proper analysis, the defendant must still show prejudice 

to be entitled to relief on appeal. Id. This court considers the relevant factors to 

determine whether the denial of the motion to sever resulted in prejudice. Id.

Torrez argues that the trial court abused its discretion in denying his motion to 

sever. The trial court failed to analyze the four factors above. Accordingly, we analyze 

the factors from the perspective of the trial court to determine whether Torrez can 

demonstrate prejudice. See Id.
No. 38999-5-III

State v. Torrez

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Regarding the first prong, Torrez maintains that the evidence for the conspiracy 

charge against him was considerably weaker than the evidence against Jones. 

Specifically, Torrez argues that the evidence of the controlled buys only pertained to the 

conspiracy charge against Jones and did not support a finding of guilt for him. As 

explained below, the evidence of the controlled buys would arguably have been 

admissible in both Jones and Torrez’s trials. But because Jones was the only individual 

present during the controlled buys, the State’s case against her was stronger than it was 

against Torrez. Thus, there may have been potential for prejudice under this factor. 

However, the State’s case against Torrez was still strong as the evidence showed that he 

was living at the residence and the sole occupant of the SUV, which he admitted 

contained methamphetamine.

Second, Torrez contends that he used a different defense than Jones because he 

maintained he was not a part of the drug operation. But Torrez’s defense was not known 

to the trial court at the time of his motion to sever. Torrez did not proffer his anticipated 

defense, and there is no indication that Torrez’s defense was known to the trial court at 

the time of the motion to sever. The trial court cannot abuse its discretion based on facts 

that are not provided. State v. Bluford, 188 Wn.2d 298, 310, 393 P.3d 1219 (2017). 

Regardless, at trial, both Jones and Torrez asserted a general denial defense and attacked 

the State’s evidence as insufficient to convict.
No. 38999-5-III

State v. Torrez

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Third, although the trial court instructed the jury to consider each count separately, 

Torrez claims that the instruction could not ameliorate the damage done, essentially 

arguing that the jury did not follow the instruction. However, absent evidence to the 

contrary, this court should presume the jury followed the instruction. See State v. 

Kalebaugh, 183 Wn.2d 578, 586, 355 P.3d 253 (2015) (“Jurors are presumed to follow 

the court’s instructions.”).

Fourth, Torrez argues that if the charges had been severed, the evidence from the 

controlled buys would have been inadmissible under ER 404(b) at his trial. Torrez fails 

to adequately explain and support this argument on appeal. See RAP 10.3(a)(6); Regan v. 

McLachlan, 163 Wn. App. 171, 178, 257 P.3d 1122 (2011) (“We will not address issues 

raised without proper citation to legal authority.”); State v. Stubbs, 144 Wn. App. 644, 

652, 184 P.3d 660 (2008) (“Passing treatment of an issue or lack of reasoned argument is 

insufficient to allow for our meaningful review.”), rev’d on other grounds by 170 Wn.2d 

117, 240 P.3d 143 (2010).

The evidence of the controlled buys was relevant to both the possession of a 

controlled substance with intent to deliver and the conspiracy charges against Torrez as it 

tended to show the methamphetamine found at both the residence and in the SUV was 

possessed by Jones and Torrez with the intent to deliver. See State v. Thomas, 68 Wn. 

App. 268, 273, 843 P.2d 540 (1992) (trial court properly admitted officers’ testimony 

indicating that defendant had appeared to be selling drugs on three different occasions 
No. 38999-5-III

State v. Torrez

21

prior to his arrest because evidence logically related to material issue of whether 

defendant intended to sell cocaine in his possession when he was arrested). 

Finally, Torrez broadly asserts that no amount of judicial economy justified the 

prejudice caused to Torrez by denying his motion to sever. However, severance would 

have resulted in two trials instead of one. Because the controlled buys, the search of the 

residence, and the search of the SUV were all relevant to the charges against both Jones 

and Torrez, several, if not all, of the witnesses would have had to testify at both trials, 

and their testimony would have been largely duplicative. Accordingly, the need for 

judicial economy in this case outweighed any prejudice to Torrez. 

Although the trial court failed to conduct a proper analysis before denying 

Torrez’s motion to sever, Torrez fails to show prejudice from the denial. 

4. SUFFICIENCY OF EVIDENCE 

Torrez argues that there was insufficient evidence to support the jury’s finding of 

guilt for both the possession of a controlled substance with intent to deliver and the 

conspiracy to commit possession of a controlled substance with intent to deliver. We

disagree with both arguments.

Sufficiency of the evidence is reviewed de novo. State v. Rich, 184 Wn.2d 897, 

903, 365 P.3d 746 (2016). Washington follows the standard of review for a challenge to 
No. 38999-5-III

State v. Torrez

22

the sufficiency of the evidence as set out in Jackson v. Virginia.

6

 State v. Green, 94 

Wn.2d 216, 221, 616 P.2d 628 (1980). When reviewing a challenge to the sufficiency of 

the evidence to prove the elements of an offense, we must determine “whether, after 

viewing the evidence in the light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable doubt.” 

Jackson, 443 U.S. at 319. The purpose of this standard of review is to ensure that the 

fact-finder rationally applied the constitutional standard required by the due process 

clause of the Fourteenth Amendment to the United States Constitution, which allows for 

conviction of a criminal offense only upon proof beyond a reasonable doubt. Id. at 317-

18.

In claiming insufficient evidence, the defendant necessarily admits the truth of the 

State’s evidence and all reasonable inferences drawn from it. State v. Salinas, 119 Wn.2d 

192, 201, 829 P.2d 1068 (1992). These inferences “must be drawn in favor of the State 

and interpreted most strongly against the defendant.” Id. Further, we must defer to the 

trier of fact to resolve conflicting testimony and evaluate the persuasiveness of the 

evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990) (credibility 

determinations cannot be reviewed on appeal). Direct and circumstantial evidence are 

weighed equally. State v. Scanlan, 193 Wn.2d 753, 770, 445 P.3d 960 (2019). 

 

6 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
No. 38999-5-III

State v. Torrez

23

“[I]nferences based on circumstantial evidence must be reasonable and cannot be based 

on speculation.” State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d 318 (2013).

With regard to the possession of a controlled substance with intent to deliver 

conviction, Torrez maintains that the State failed to show that he possessed 

methamphetamine, and accordingly, there was insufficient evidence to support the jury’s 

verdict. 

As the jury was instructed, “Constructive possession occurs when there is no 

actual physical possession but there is dominion and control over the substance.” CP at 

189. Mere proximity is insufficient to establish possession. The jury must also find the 

defendant had dominion and control over the substance. The following factors are 

relevant in determining whether Torrez had dominion and control over the object:

[W]hether the Defendant had the immediate ability to take actual 

possession of the substance, whether the Defendant had the capacity to 

exclude others from possession of the substance, and whether the 

Defendant had dominion and control over the premises where the substance 

was located.

CP at 189. 

Testimony at trial established that Torrez was stopped while driving the SUV that 

had just left the residence. He was the sole occupant of the vehicle and admitted that 

there was a “personal amount” of methamphetamine in the backseat. Law enforcement 

searched and found about a quarter pound of methamphetamine where he said it would be 
No. 38999-5-III

State v. Torrez

24

located. Torrez was not only close in proximity to the methamphetamine, he also had 

dominion and control over it as he had the immediate ability to take actual possession of 

the methamphetamine, had the capacity to exclude others from possessing the 

methamphetamine, and had dominion and control over the SUV where the 

methamphetamine was located. Accordingly, there was sufficient evidence to show that 

Torrez possessed the methamphetamine in the SUV.

Additionally, evidence at trial suggested that Torrez was living at the residence 

where methamphetamine was found in plain view behind a recliner. Law enforcement 

found letters addressed to Torrez and male clothing items in a room that appeared to 

belong to Torrez. Thus, because there was evidence that Torrez was living at the 

residence, there was also sufficient evidence to show that Torrez had dominion and

control over the methamphetamine found therein. State v. Amezola, 49 Wn. App. 78, 87, 

741 P.2d 1024 (1987) (fact that defendant was residing at premises where substance was 

found combined with the fact that drugs were not kept out of defendant’s presence was 

sufficient to support finding of constructive possession), abrogated on other grounds by 

State v. McDonald, 138 Wn.2d 680, 981 P.2d 443 (1999).

Turning to the conspiracy charge, Torrez argues that the State failed to present

sufficient evidence to show an agreement between Jones and Torrez to possess and sell 
No. 38999-5-III

State v. Torrez

25

methamphetamine or a substantial step to carry out the agreement. The jury instructions 

explained that conspiracy to possess a controlled substance with intent to deliver required 

proof beyond a reasonable doubt that Torrez agreed “with one or more persons to engage 

in or cause the performance of conduct constituting the crime of” possession of a 

controlled substance with intent to deliver and that “any one of the persons involved in 

the agreement took a substantial step in pursuance of the agreement.” CP at 194. “A 

substantial step is conduct of the defendant that strongly indicates a criminal purpose.” 

CP at 195.

Although there was no direct evidence of a conspiracy, the circumstantial evidence 

showed that Jones and Torrez were acting in concert. They were both found with a 

quarter pound of methamphetamine, and scales, methamphetamine, and packing 

materials were found at the residence where they lived. Torrez was also found with about 

$5,000 in cash leaving in the same vehicle Jones had used to drive to a controlled buy. 

All of this evidence tended to show that Jones and Torrez conspired to sell 

methamphetamine. Additionally, the procurement of a large amount of 

methamphetamine, whether it was by Jones or Torrez, was a substantial step in carrying 

out the conspiracy to sell methamphetamine.
No. 38999-5-III

State v. Torrez

26

There was sufficient evidence to support the guilty verdicts for both the possession 

of a controlled substance with intent to deliver and the conspiracy to commit possession 

of a controlled substance with intent to deliver.

Affirmed.

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

_________________________________

Staab, J.

WE CONCUR:

_________________________________

Lawrence-Berrey, A.C.J.

_________________________________

Pennell, J.