Full Opinion

Filed Washington State Court of Appeals Division Two November 10, 2026 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 60461-2-II Respondent, v. AARON CHRISTOPHER WOLF, UNPUBLISHED OPINION Appellant. LEE, P.J. — Aaron C. Wolf appeals his conviction and sentence for two counts of possession of a controlled substance with intent to deliver. Wolf argues that: (1) the State presented insufficient evidence of intent to support his conviction, (2) he received ineffective assistance of counsel, (3) the State committed prosecutorial misconduct, (4) his conviction should be reversed due to cumulative error, and (5) the trial court erred in requiring a mental health evaluation as a community custody condition. We hold that sufficient evidence supported Wolf’s conviction, but Wolf received ineffective assistance of counsel when counsel failed to request a lesser included instruction based on an erroneous view of the law. Therefore, we reverse and remand.1 1 Because we reverse for ineffective assistance of counsel, we do not address Wolf’s remaining claims. No. 60461-2-II FACTS A. BACKGROUND On April 8, 2022, law enforcement contacted Wolf at his mother’s residence to arrest him for charges unrelated to the instant case. During the booking process at the jail, a black bag fell to the floor near Wolf’s feet. Law enforcement retrieved the bag and found what appeared to be heroin, fentanyl pills, methamphetamine, a digital scale, and a glass pipe. Wolf did not deny that the items belonged to him, but he informed law enforcement that he did not remember having them with him. The State charged Wolf with one count of possession with intent to deliver heroin and one count of possession with intent to deliver fentanyl.2 The case proceeded to a jury trial. B. TRIAL 1. Officer Matt Hartley’s Testimony In the early afternoon of April 8, 2022, Officer Hartley arrested Wolf at his mother’s residence. Wolf had been sleeping prior to his arrest. Wolf did not appear intoxicated, but “[i]t appeared as though he just woke up.” 30 Verbatim Rep. of Proc. (VRP) (Nov. 14, 2024) at 301. Officer Hartley transported Wolf to the county jail. Before entering the jail, Officer Hartley asked Wolf if he “had anything on him he wasn’t supposed to have.” 30 VRP (Nov. 14, 2024) at 269. Wolf said he did not. Officer Hartley explained that when an individual enters the jail, they complete an administrative booking process, which includes a search of the individual. During Wolf’s booking 2 The State also charged three counts of delivering a controlled substance; however, the trial court later dismissed those charges. 2 No. 60461-2-II process, an “item dropped from [Wolf’s] person.” 30 VRP (Nov. 14, 2024) at 272. The item was a black cloth bag that appeared to contain heroin, methamphetamine, fentanyl pills, a digital scale with residue, and a glass pipe. Wolf did not deny that he had the items; Wolf told Officer Hartley that he “didn’t remember he had that on him.” 30 VRP (Nov. 14, 2024) at 273. Officer Hartley seized the items and sent them to the laboratory for testing. The black bag contained 83 blue pills marked with “‘M30,’” which typically identifies oxycontin. 30 VRP (Nov. 14, 2024). The laboratory found that the blue pills contained fentanyl. Officer Hartley explained that in April 2022, one fentanyl pill cost between $5-15 per pill. He also testified that the amount of fentanyl a user would use on a daily basis varied based on the user’s tolerance and who made the pills. The laboratory also found that the other substance weighed approximately 45 grams and tested positive for heroin. Officer Hartley explained that one ounce is roughly 28.34 grams, and that at the time, heroin was approximately $1,200-1,400 per ounce. Thus, Officer Hartley estimated that the street value of the heroin found in the black bag was around $1,700-1,800. Officer Hartley explained that a common user amount of heroin would be around 1/16 of an ounce but noted that heavier heroin users may use multiple grams a day. Regarding the scale, Officer Hartley testified that scales may be used to weigh parts of a product for sale or distribution. He also acknowledged that scales could be used to purchase drugs. In addition, Officer Hartley explained that the fentanyl and heroin were separated into their own bags. He did not see any empty bags to separate those substances into smaller quantities nor were there any repackaging materials. However, Officer Hartley testified that “what often happens 3 No. 60461-2-II when these drugs are packaged, it’s just a tear-off piece of plastic[,] [a]nd sometimes that’s from the same bag that the original product’s being carried in.” 30 VRP (Nov. 14, 2024) at 297. Officer Hartley also testified regarding pay-owe sheets, which are written records of transactions. Officer Hartley did not find a pay-owe sheet but explained that there is not always a need for a pay-owe sheet. And Officer Hartley explained that glass smoking devices, like the glass pipe found in the black bag, are typically used to smoke narcotics, like methamphetamine. 2. Aaron Wolf’s Testimony Wolf testified that in April 2022, he had just moved back to his mother’s house. Wolf’s mother wanted him to move back because his stepfather had recently passed. Wolf also moved into his mother’s home because he was “falling apart physically[,] [a]nd she [was], too.” 30 VRP (Nov. 14, 2024) at 330. Wolf explained that he had degenerative disc disease, so he “walk[s] forward and smaller.” 30 VRP (Nov. 14, 2024) at 341. In 2022, he was beginning to “walk forward.” 30 VRP (Nov. 14, 2024) at 341. At the time, Wolf had recently undergone surgery for cellulitis but denied telling law enforcement about the surgery. Wolf explained that he was considered disabled at the time of trial, but in 2022, he did not receive a disability check. Wolf also testified that he did not work in 2022. Wolf also explained that he used heroin and fentanyl for pain management but that he used “[m]ore than [he] needed.” 30 VRP (Nov. 14, 2024) at 337. Wolf used drugs to “stand up and walk and . . . help [his] mom around the house.” 30 VRP (Nov. 14, 2024) at 336. In 2022, Wolf would either smoke heroin or inject it intravenously. When Wolf injected the heroin, he would use approximately .6 or .7 grams. If Wolf smoked the heroin, he would use “[p]robably a couple grams at least a day, probably three, four, five.” 30 VRP (Nov. 14, 2024) at 4 No. 60461-2-II 335. Wolf spent about $500 on the heroin, which would have lasted him about 1-1.5 weeks. He used a scale to make sure that he “do[es]n’t get ripped off” when purchasing drugs. 30 VRP (Nov. 14, 2024) at 339. Wolf began using fentanyl when it “started showing up everywhere” because he thought it would be safer than heroin. 30 VRP (Nov. 14, 2024) at 335. Wolf used the fentanyl pills in addition to the heroin and would “smoke six or seven foils a day” with “two or three [pills] on a foil.” 30 VRP (Nov. 14, 2024) at 336. Wolf spent about $3 for each fentanyl pill. Wolf hoped the 83 pills would last him about 1-1.5 weeks. Wolf fell asleep at his mother’s house and woke up to law enforcement outside his door. When Wolf was arrested, he did not know that he had anything on his person. Wolf usually locked his drugs in a lockbox. However, the lockbox was not in the room that day, so Wolf tied the bag to his gym shorts. In the police vehicle on the way to the jail, Wolf realized that he had the drugs with him. During the booking process, Wolf started “freaking out because [he] ha[d] drugs on [him]” and he “d[id]n’t want to get caught.” 30 VRP (Nov. 14, 2024) at 333. Wolf tossed the bag away from him and heard the glass pipe hit the floor. 3. Jury Instructions On the first day of trial, outside the presence of the jury, defense counsel informed the trial court that Wolf agreed to the State’s proposed jury instructions and had no additions. After the parties presented their evidence, the State provided the trial court with the jury instructions. The trial court asked whether defense counsel was “looking at . . . wanting or needing a lesser included on either of these” counts. 30 VRP (Nov. 14, 2024) at 349. Wolf’s counsel 5 No. 60461-2-II responded, “unfortunately, Your Honor, it’s not applicable given the timeframe. This is early . . . 2022.” 30 VRP (Nov. 14, 2024) at 349. 4. Conclusion of Trial During closing argument, the State argued that Wolf possessed heroin and fentanyl with the intent to deliver. The State asserted that Wolf intended to deliver controlled substances because Wolf possessed large amounts of fentanyl and heroin, carried a scale, and sold the drugs to earn a living. Wolf argued that although he possessed heroin and fentanyl, the State did not prove intent; Wolf testified that he was abusing opiates and used them for pain management. During the State’s rebuttal closing argument, the prosecutor commented: What we also know is that [Wolf] sat through each one of the State’s witnesses’ testimony to tailor his testimony to the facts I submit to you. 31 VRP (Nov. 15, 2024) at 396. The jury found Wolf guilty of two counts of possession of a controlled substance with intent to deliver. C. SENTENCING At sentencing, Wolf requested a mental health sentencing alternative. The trial court acknowledged that Wolf suffered from depression but concluded that a mental health sentencing alternative was not appropriate and denied Wolf’s request. The trial court sentenced Wolf to 60 months in custody. The trial court also imposed 12 months of community custody. As a condition of Wolf’s community custody, the trial court 6 No. 60461-2-II ordered that he undergo substance use disorder and mental health evaluations and fully comply with all recommended treatment. Wolf appeals. ANALYSIS Wolf argues that the State presented insufficient evidence of his intent to support his convictions. Wolf also contends that he received ineffective assistance of counsel based on his defense counsel’s failure to request a lesser included offense instruction. We conclude that sufficient evidence supported Wolf’s conviction, but we agree that Wolf received ineffective assistance of counsel.3 A. SUFFICIENCY OF THE EVIDENCE 1. Legal Principles “‘[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the accused] is charged.’” State v. Roberts, 5 Wn.3d 222, 230-31, 572 P.3d 1191 (2025) (second alteration in original) (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)); U.S. CONST. amend. XIV; WASH. CONST. art. I, § 3. When determining whether evidence is sufficient to support a criminal conviction, the inquiry is 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.’” Id. at 231 (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). “[J]udicial review 3 Because we reverse and remand based on ineffective assistance of counsel, we do not address Wolf’s remaining claims. 7 No. 60461-2-II includes ‘all of the evidence’ considered in a light most favorable to the prosecution.” Id. (emphasis in original) (quoting Jackson, 443 U.S. at 319). “‘A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.’” State v. Scanlan, 193 Wn.2d 753, 770, 445 P.3d 960 (2019) (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)), cert. denied, 589 U.S. 1148 (2020). “When the charge is possession with intent to deliver, evidence of intent is typically circumstantial.” State v. Sprague, 16 Wn. App. 2d 213, 233, 480 P.3d 471 (2021). In evaluating sufficiency of the evidence, circumstantial evidence and direct evidence are equally reliable. Roberts, 5 Wn.3d at 237. However, inferences drawn from circumstantial evidence must be reasonable and cannot be speculative. State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d 318 (2013). Under RCW 69.50.401(1),4 “it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.” Mere possession of a controlled substance in an amount greater than for personal use is insufficient to establish an intent to deliver. Sprague, 16 Wn. App. 2d at 233. Nor can an intent to deliver be solely drawn from an officer’s opinion regarding a normal quantity for personal use. Id. at 233-34. Thus, Washington courts have held that at least one additional factor must support the intent to deliver. State v. O’Connor, 155 Wn. App. 282, 290, 229 P.3d 880 (noting that “a large amount of cash or sale paraphernalia” suggests an intent to deliver), review denied, 169 Wn.2d 1018 (2010); State v. Brown, 68 Wn. App. 480, 484, 843 P.2d 1098 (1993) (insufficient evidence of intent in a “naked 4 Former RCW 69.50.401 (2022) was in effect at the time of the crime. Because no substantive changes have been made to the statute affecting our analysis, we cite to the current version of the statute. 8 No. 60461-2-II possession” case); State v. Lane, 56 Wn. App. 286, 298, 786 P.2d 277 (1989) (a scale and a large amount of cash constituted circumstantial evidence to infer that the defendant had an intent to deliver). 2. Sufficient Evidence of Intent Here, Wolf possessed around 45 grams of heroin and 83 pills containing fentanyl in separate plastic bags, as well as a digital scale. Officer Hartley testified that the amount of heroin Wolf possessed far exceeded an amount typically kept for personal use. Officer Hartley also testified that individuals often use a scale to sell or distribute drugs and that at times, pieces of a plastic bag are torn off the original bag to package drugs. Thus, the State presented evidence that Wolf possessed a large quantity of controlled substances, plus an additional factor to suggest an intent to distribute. Although the scale could be consistent with an intent to deliver or personal use, and although Wolf testified that he used both heroin and fentanyl in large quantities, we must, in a sufficiency of the evidence challenge, view the evidence and all reasonable inferences in a light most favorable to the State. Scanlan, 193 Wn.2d at 770. Here, viewing the evidence and all reasonable inferences from the evidence in a light most favorable to the State, a rational trier of fact could find beyond a reasonable doubt that Wolf had an intent to deliver based on the large quantity of heroin and fentanyl and the presence of the scale found with the drugs. B. INEFFECTIVE ASSISTANCE OF COUNSEL Wolf argues that counsel was ineffective for failing to apply the simple possession statute and in “foregoing [a] lesser offense instruction on the erroneous ground that it was inapplicable.” Br. of Appellant at 33. We agree. 9 No. 60461-2-II 1. Legal Principles The Sixth Amendment of the United States Constitution and article I, section 22 of the Washington State Constitution guarantee criminal defendants the right to effective assistance of counsel. State v. Bertrand, 3 Wn.3d 116, 128, 546 P.3d 1020 (2024). In a claim of ineffective assistance of counsel, a criminal defendant must show both “(1) ‘counsel’s representation fell below an objective standard of reasonableness’ and (2) ‘the deficient performance prejudiced the defense.’” Id. (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Deficient performance falls “‘below an objective standard of reasonableness based on consideration of all the circumstances.’” State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009) (quoting State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)). “‘[T]he defendant must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel.’” State v. Vazquez, 198 Wn.2d 239, 248, 494 P.3d 424 (2021) (quoting McFarland, 127 Wn.2d at 335). We strongly presume that defense counsel’s performance was reasonable. Kyllo, 166 Wn.2d at 862. To show prejudice, the defendant must prove that “there is a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceedings would have been different.” Id. This standard is lower than the preponderance standard; however, the defendant must show more than a “‘conceivable effect on the outcome.’” Bertrand, 3 Wn.3d at 129 (internal quotation marks omitted) (quoting State v. Crawford, 159 Wn.2d 86, 99, 147 P.3d 1288 (2006)). 10 No. 60461-2-II 2. Deficient Performance In Bertrand, our Supreme Court recognized that lesser included offense instructions “are important to ‘protect procedural fairness and substantial justice for the accused,’” but they “may also carry significant risks for the accused.” Id. at 131 (emphasis in original) (quoting State v. Coryell, 197 Wn.2d 397, 412, 483 P.3d 98 (2021)). Thus, the decision to request a lesser included offense falls within trial counsel’s wide latitude to make tactical decisions. Id. To prevail on a claim of ineffective assistance of counsel based on the failure to request an instruction, Wolf must show that he would have been “‘entitled to the instruction if it had been offered.’” Id. at 129 (quoting State v. Cienfuegos, 144 Wn.2d 222, 227, 25 P.3d 1011 (2001)). To determine whether lesser included offense instructions are available, courts apply the Workman5 test: “‘(1) each of the elements of the lesser offense is a necessary element of the offense charged (legal prong) and (2) evidence in the case supports an inference that the lesser crime was committed (factual prong).’” State v. Avington, 2 Wn.3d 245, 258, 536 P.3d 161 (2023) (quoting Coryell, 197 Wn.2d at 400). As to the first prong of the Workman test, possession of a controlled substance is generally a lesser included offense of possession with intent to deliver. State v. Harris, 14 Wn. App. 414, 418, 542 P.2d 122 (1975), review denied, 86 Wn.2d 1010 (1976). Under RCW 69.50.4013(1)(a),6 “it is unlawful for any person to . . . [k]nowingly possess a controlled substance.” And under RCW 5 90 Wn.2d 443, 584 P.2d 382 (1978). 6 Former RCW 69.50.4013 (2022) was in effect at the time of the crime. Because no substantive changes have been made to the statute affecting our analysis, we cite to the current version of the statute. 11 No. 60461-2-II 69.50.401(1), “it is unlawful for any person to . . . possess with intent to manufacture or deliver[] a controlled substance.” Thus, the elements of simple possession are necessary elements of possession with intent to deliver. As to the second prong, the State presented evidence that Wolf was in possession of heroin and fentanyl during the booking process at the jail. Wolf admitted he possessed the controlled substances, but asserted that he possessed the drugs solely for his own use, providing details about how much heroin and fentanyl he used in a typical week. Thus, the evidence in the record supports an inference that simple possession was committed. With both prongs of the Workman test met, Wolf was entitled to an instruction for the lesser included offense of simple possession. Moreover, “[i]t is well established that ‘[t]he duty to provide effective assistance includes the duty to research relevant statutes.’” Bertrand, 3 Wn.3d at 132 (second alteration in original) (quoting State v. Estes, 188 Wn.2d 450, 460, 395 P.3d 1045 (2017)). Thus, when defense counsel fails to research or apply relevant law without legitimate strategy or tactics, counsel’s performance is constitutionally deficient. Id. As Wolf correctly notes, in February 2021, our Supreme Court struck down the simple drug possession statute as unconstitutional in State v. Blake.7 In response, effective May 31, 2021, the legislature added knowledge as the applicable mental state to the simple drug possession statute. LAWS OF 2021, ch. 311, § 9. Although the State does not concede that defense counsel performed deficiently, the State recognizes in its briefing that “competent counsel should have been aware that the Legislature 7 197 Wn.2d 170, 481 P.3d 521 (2021). 12 No. 60461-2-II enacted emergency legislation recriminalizing simple possession effective May 2021.” Br. of Resp’t in 40. Here, the trial court explicitly inquired into whether defense counsel would be requesting a lesser included offense. Wolf’s counsel responded, “[U]nfortunately, Your Honor, it’s not applicable given the timeframe. This is early . . . 2022.” 30 VRP (Nov. 14, 2024) at 349. Wolf’s counsel was required to apply the relevant law, but the record shows that counsel believed there was no simple possession statute applicable at the time of the crime. There is nothing in the record to show that counsel made a strategic decision to pursue an “all or nothing” strategy; rather, the record shows that defense counsel simply did not request a lesser included instruction based on an erroneous view of the law. Accordingly, defense counsel was deficient. 3. Prejudice To establish prejudice, Wolf must show a reasonable probability that the outcome of the trial would have been different had his defense counsel known the law and requested a lesser included instruction for simple possession. See Bertrand, 3 Wn.3d at 144. Here, there was contradictory evidence regarding Wolf’s intent. The State argued that the presence of the scale and the large amounts of drugs supported Wolf’s intent to deliver. There is no other evidence of Wolf’s intent with regard to the drugs. Wolf, relying on his own testimony, argued that he used the drugs for pain management and the scale was used to weigh his purchases of drugs. The evidence of Wolf’s guilt was not overwhelming. Given this record, there is a reasonable probability that given the option of reaching a “‘compromise verdict,’” the jury could have convicted Wolf of simple possession. Id. at 131 (quoting State v. Grier, 171 Wn.2d 17, 39, 246 P.3d 1260 (2011), cert. denied, 574 U.S. 860 (2014)). Thus, Wolf was prejudiced by defense counsel’s deficient performance. 13 No. 60461-2-II CONCLUSION Because Wolf received ineffective assistance of counsel, we reverse his convictions and remand for a new trial. 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. Lee, P.J. We concur: Glasgow, J. Che, J. 14