State v. Becker , 132 Wash. 2d 54 ( 1997 )

Sanders, J.

The criminal sentences of defendants Donald Becker and Nelson Gantt were enhanced for delivering cocaine to an undercover police officer within 1,000 feet of school grounds. Defendants contend (1) the State failed to prove the "Youth Education Program” (YEP) in the Alaska Building was a school, (2) the trial court improperly refused their proposed jury instruction, (3) the application of the school zone enhancement statute in this case violates due process, and (4) the trial court’s language in its special verdict form was an improper comment on the evidence. The statute at issue provides:

RCW 69.50.435. Violations committed in or on certain public places or facilities—Additional penalty—Defenses—Construction— Definitions, (a) Any person who violates RCW 69.50.401(a) by manufacturing, selling, delivering, or possessing with the intent to manufacture, sell, or deliver a controlled substance . . .

(4) Within one thousand feet of the perimeter of the school grounds;

may be punished by a fine of up to twice the fine otherwise authorized by this chapter, but not including twice the fine authorized by RCW 69.50.406, or by imprisonment of up to twice the imprisonment otherwise authorized by this chapter

RCW 69.50.435.

The Court of Appeals affirmed the conviction and enhancement. State v. Becker, 80 Wn. App. 364, 908 P.2d 903, review granted, 129 Wn.2d 1013, 917 P.2d 576 (1996). We reverse the enhancement.

FACTS

Defendants were arrested in downtown Seattle on the corner of Second Avenue and Yesler Way after selling two rocks of cocaine to an undercover police officer in violation of RCW 69.50.401(a)(l)(i), a section under the Uniform Controlled Substance Act (UCSA). The information alleged that the crime occurred "within 1000 feet of the perimeter of school grounds, to-wit: Youth Employment Education Program school [szc] under the authority of RCW 69.50.435(a).” Becker Clerk’s Papers (CP) at 1.

This street corner is within 1,000 feet of the Alaska Building, a commercial office building at the corner of Second and Cherry Streets. On a portion of the third floor of the Alaska Building is the Youth Education Program. YEP is a general equivalency degree (GED) program for students who are not able to complete a traditional high school curriculum. YEP has six classrooms, five certified teachers, two or three classified staff, and serves about 80 students. There is no sign identifying the program on the outside of the building. There is, however, a bright purple banner at the third floor reception desk that reads "Seattle Public Schools Youth Education Program” (not school). Becker Report of Proceedings (BRP) at 104-05, 112. The lobby directory also lists YEP as a tenant without identifying it as a school.

YEP is administered by the Seattle School District, and its curriculum is governed by the Office of the Superintendent of Public Instruction (OSPI). It is funded with state money. The curriculum at YEP includes language arts, mathematics, social studies and science, as well as drug and alcohol education, teen parenting, conflict resolution, and health awareness classes concerning AIDS and sexuality. Some of these classes are taught by employees of the Youth Services Bureau, certified drug and alcohol facilitators, and nurses. YEP serves grades 9 through 12, providing services for students up to 21 years of age. While credit for YEP courses will transfer to a traditional high school, students cannot earn a high school diploma at YEP!

Defendants presented considerable evidence at trial that YEP does not have many of the attributes of a traditional school otherwise required by law. YEP does not have a United States flag displayed anywhere on premises, nor does it require students to recite the pledge of allegiance. The program manager for the Interagency School, which is operated by the Seattle Public School District as an umbrella agency for seven alternative programs including YEP, testified that she did not know whether YEP offered any instruction concerning United States or Washington history or the United States or Washington Constitutions. BRP at 116-17. YEP has no sports teams, library, or lunchroom.

OSPI does not identify YEP on its list of school buildings, nor has YEP ever been listed with OSPI as a public school. However, OSPI does list the headquarters of the Interagency School, located approximately two miles from the Alaska Building.

Defendants Becker and Gantt were tried together. The trial court instructed the jury that in order to find defendants guilty of the school zone violation the jury had to find "beyond a reasonable doubt that the defendant[s] delivered a controlled substance within one thousand feet of the perimeter of the school grounds.” Becker CP at 23. The court also instructed the jury that

Public School means "common school” and those schools and institutions of learning having a curriculum below the college or university level as established by law and maintained at public expense.

Common school means any school maintained at public expense in each school district and carrying on a program from kindergarten through the twelfth grade or any part thereof including vocational education courses otherwise permitted by law.

Becker CP at 26.

Defendants’ theory at trial was YEP was not a "school” within the meaning of the statute. However, the court refused an instruction proposed by the defense which listed various subjects common schools must offer including the statutory duty to offer instruction about the federal and state constitutions, the statutory duty to "teach about the life threatening dangers of AIDS,” a school’s duty to observe Temperance and Good Citizenship day, as well as to present educational activities suitable to the observance of Veterans’ Day, in addition to the statutory requirement that all schools display a United States flag and have the students recite the pledge of allegiance. Gantt CP at 22. The court did, however, instruct the jury that "[gjrounds means the land surrounding or attached to a house or other building.”¹ Becker CP at 28.

The jury convicted both men of selling controlled substances and found by special verdict both had committed the offense "within 1000 feet of the perimeter of school grounds, to-wit: Youth Employment Education Program School [sic].” Becker CP at 5, Gantt CP at 26. The trial court added two years to each defendant’s sentence range pursuant to the special verdict, and sentenced each within the enhanced range. Both defendants appealed. Their cases were consolidated in the Court of Appeals, which affirmed the trial court. We granted review. State v. Becker, 80 Wn. App. 364, 367, 908 P.2d 903, review granted, 129 Wn.2d 1013, 917 P.2d 576 (1996).

ANALYSIS

Defendants jointly raise three claims: (1) the State failed to produce sufficient evidence to show that YEP qualifies as a school; (2) the trial court erred in failing to give defendants’ proposed jury instruction setting forth the statutory requirements demanded of public schools by the Legislature; and (3) the State violated defendants’ due process rights because the special verdict was based upon their proximity to a "school” the presence of which could not be readily ascertained by any understandable or available means. Additionally, Becker alone claims the special verdict form impermissibly commented on the evidence by removing an element of the charge from the jury’s consideration, i.e., whether YEP is a "school.” Given our disposition of issue number three, we need not decide issues one and two. We do address the special verdict form claim because of its importance.

DUE PROCESS

Defendants contend their right to due process was violated because the special verdict was based on proximity to school grounds the location of which could not be determined by any readily understandable or ascertainable means.

The Fourteenth Amendment due process clause requires fair warning of proscribed conduct. City of Spokane v. Douglass, 115 Wn.2d 171, 176, 795 P.2d 693 (1990). A statute is unconstitutionally vague if (1) the statute does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct it forbids, or (2) the statute does not provide ascertainable standards of guilt to protect against arbitrary enforcement. Id. at 178.

State v. Coria, 120 Wn.2d 156, 164, 839 P.2d 890 (1992) rejected the contention that RCW 69.50.435 was unconstitutionally vague based upon defendants’ claim they did not subjectively know they were dealing drugs within 1,000 feet of a school bus stop. We held "[t]he statute does not forbid conduct in terms so vague that persons of common intelligence must guess at its meaning and differ as to its application. Nor does it create a risk of arbitrary enforcement by the use of inherently subjective terms or by inviting an inordinate amount of police discretion.” Co-ria, 120 Wn.2d at 164. We concluded RCW 69.50.435 was not unconstitutionally applied because due process does not mandate drug dealers subjectively know they are within a drug free zone for purposes of this statute to have their sentences enhanced. Id. at 166-67. We recently followed this reasoning in State v. Silva-Baltazar, 125 Wn.2d 472, 482, 886 P.2d 138 (1994), stating "RCW 69.50.435 is a strict liability statute.”

However, in Coria we also rejected the defendants’ contention that prior notice was lacking because the bus stop in question was not marked or signed and used only intermittently by school children. Coria, 120 Wn.2d at 167. This was the holding because, although the location of the school bus stop was not marked, information regarding the locations of bus stops was available through such objective means as observing the gathering of school children waiting for their school buses or by contacting local schools or the director of transportation for the school district. Id. Over the dissent of three justices, which would have reversed the conviction on due process grounds in any event, a majority stated:

It may be unrealistic, of course, to expect drug dealers to take these steps, but that is irrelevant to the question whether the statute is unconstitutionally vague. The defendants’ failure to have been aware of the law and to have taken action to protect themselves against the enhanced penalty for their criminal conduct is no basis for declaring the statute unconstitutionally vague.

Id. We also noted that it was possible for defendants in that case to obtain a map of the locations from OSPI. Id. at 168. Likewise, the Court of Appeals, in considering the same question with regard to the sentence enhancement for such a crime in the vicinity of public parks, observed "[t]he location of parks is readily ascertainable and generally does not vary over time.” State v. Carter, 64 Wn. App. 90, 94, 823 P.2d 523 (1992).

Vagueness challenges to enactments which do not involve First Amendment rights are evaluated "in light of the particular facts of each case.” Douglass, 115 Wn.2d at 182. Here there are no readily available or ascertainable means by which defendants could have determined the existence of the YEP school grounds. Given the complete lack of information available regarding YEP’s status as a school, the reasonable person could not determine YEP is a school according to criteria listed in Coria.

YEP is located on the third floor of the Alaska Building in downtown Seattle. The building has no flag, surrounding sports fields, playgrounds, or other signs that would indicate to a person of reasonable intelligence that a school is housed therein.

The only signs that even reference YEP (the listing in the Alaska Building’s lobby directory and the banner on the third floor) do not identify YEP as a school. At most the signs reference the Seattle Public Schools’ Youth Education Program. Knowledge of a "program” located in an office building is not notice of a school.

Moreover, the State produced no evidence that a person calling the Seattle School District would be informed that a school is located in the Alaska Building. Instead, the custodian of records for OSPI testified that YEP is not listed as a school in OSPI records. A person who calls OSPI, which our state constitution art. Ill, § 22 places in charge of all public schools in this state, would not be told that a school existed at YEP’s location. This is the exact opposite of the situation in Coria, whosé defendants could have readily called OSPI and obtained the specific locations of bus stops because OSPI had such information on file.

While defendants’ actual lack of knowledge of the protected zone around YEP is irrelevant to culpability, Coria, 120 Wn.2d at 165, a readily available means by which they or others of ordinary intelligence could have determined the existence of the protected school zone is a constitutional necessity. Defendants were deprived liberty without that process which is due.

SPECIAL VERDICT FORM

Although the major issue at trial was whether YEP itself was a school within the meaning of the statute RCW 69.50.435, the trial court’s special verdict essentially withheld that determination from the jury:

We, the jury, return a special verdict by answering as follows:

[Were] defendants], [Donald Becker and Nelson Gantt], within 1000 feet of the perimeter of school grounds, to-wit: Youth Employment Education Program School at the time of the commission of the crime?

Answer: Yes

(Yes or No)

Becker CP at 5; Gantt CP at 26. .

Becker claims that this instruction unconstitutionally relieved the State of its burden to prove beyond a reasonable doubt every element of the penalty enhancement statute when it told the jury that YEP was, in fact, a school. This left the jury only to decide whether the offense occurred within 1,000 feet of YEP, not whether YEP is a school. Thus the special verdict amounted to an unconstitutional comment on the evidence.

As an initial matter, although neither party objected to the instruction at trial, an appellate court will consider a claimed error in an instruction if giving such an instruction invades a fundamental right of the accused. State v. Green, 94 Wn.2d 216, 231, 616 P.2d 628 (1980). This special verdict form violated art. IV, § 16 of the Washington State Constitution, which provides:

Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.

"Since a comment on the evidence violates a constitutional prohibition, [a] failure to object or move for a mistrial does not foreclose [him or] her from raising this issue on appeal.” State v. Lampshire, 74 Wn.2d 888, 893, 447 P.2d 727 (1968).

Art. IV, § 16 prohibits a judge from conveying to the jury his or her personal attitudes toward the merits of the case. State v. Foster, 91 Wn.2d 466, 481, 589 P.2d 789 (1979). In addition, a court cannot instruct the jury that matters of fact have been established as a matter of law. State v. Primrose, 32 Wn. App. 1, 3, 645 P.2d 714 (1982).

The State argued that YEP was a school, while the defendants disputed this contention. YEP’s former names included "Youth Employment Program,” and before that "Youth Employment Education Program.” YEP is not now nor has it ever been called the "Youth Employment Education Program School.” By so identifying YEP in the special verdict form the trial court literally instructed the jury that YEP was a school. This error amounted to an impermissible comment on the evidence in violation of art. IV, § 16.

By effectively removing a disputed issue of fact from the jury’s consideration, the special verdict form relieved the State of its burden to prove all elements of the sentence enhancement statute.

Whether the State produced sufficient evidence for a rational juror to find YEP was a school is irrelevant to whether the jury instruction was correctly drafted. See State v. Tongate, 93 Wn.2d 751, 755, 613 P.2d 121 (1980) (finding the evidence was sufficient for the underlying crime, but faulty jury instruction meant enhanced penalty could not be imposed). Nor did the other instructions cure the defect inherent in the special verdict form. The verdict form explicitly stated that YEP was a school. See State v. Painter, 27 Wn. App. 708, 713, 620 P.2d 1001 (1980), review denied, 95 Wn.2d 1008 (1981) (trial court’s incorrect self-defense instruction is still error even when the instructions are read as a whole).

The special verdict form was tantamount to a directed verdict and was error.

CONCLUSION

The trial court erred by giving a special verdict form that commented on the evidence in violation of Const. art. IV, § 16. Moreover, defendants were denied that process constitutionally due when their sentence was enhanced based upon proximity to school grounds the location of which could not be ascertained by any readily accessible means. The Court of Appeals is reversed and defendants’ enhanced sentences are vacated.

Durham, C.J., and Smith, Guy, and Madsen, JJ., concur.

1 Subsequent to trial, the Court of Appeals, Division I, published State v. Shannon, 77 Wn. App. 379, 382, 892 P.2d 757 (1995) where the court concluded that, under 69.50.435, the term "school grounds” was “broader than shrubbery or playgrounds; it includes both the physical plant and appurtenant property, if any.” The court concluded that the absence of any appurtenant property does not deprive a school of the drug-free school zone protection "because the school’s physical plant is part and parcel of 'school grounds.’ ” Id. The court also concluded that because this statutory language is susceptible to only one reasonable interpretation, the rule of lenity did not apply. Id. at 382 n.l (citing State v. McGee, 122 Wn.2d 783, 787, 864 P.2d 912 (1993)).