State Of Washington v. Kyle Allyn Hewson ( 2014 )

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COURT GFAPPEA' S
STATE OF WASHINGTON
Z0IUANI3 AH 10: 05
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 69642-4-1
Respondent, DIVISION ONE
v.
KYLE ALLYN HEWSON, UNPUBLISHED
Appellant. FILED: January 13, 2014
Cox, J. - Kyle Allyn Hewson challenges his judgment and sentence,
claiming the evidence is insufficient to support his conviction for possessing
methadone with intent to deliver. We disagree and affirm.
The State charged Hewson with violation of the Uniform Controlled
Substances Act, possession with intent to manufacture or deliver methadone.
Hewson entered into an agreement to participate in drug diversion court.
In order to participate, Hewson waived many of his constitutional rights. The
agreement stated:
With respect to this/these charge(s), I understand that I have
a right to contest and object to evidence that the State may present
against me and to present evidence on my own behalf. With
respect to this/these charge(s), I give up the right to contest and
object to any evidence presented against me and to present
evidence on my own behalf as to my guilt or innocence. I
understand and agree that if I do not comply with the conditions of
this agreement, a hearing will be held at which the State will
present evidence related to this/these charge(s) including but not
limited to the police report and the results of any law enforcement
field test. I stipulate that the field test used in this case was
No. 69642-4-1/2
accurate and reliable, and is admissible. This stipulation is not an
admission of guilt, and is not sufficient, by itself, to warrant a finding
of guilt. I understand that the judge will review the evidence
presented by the State and will decide if I am guilty or not guilty of
this charge based solely on that evidence . . . .[1]
The agreement also stated that upon successful completion of the
program, Hewson's charge would be dismissed.
Hewson voluntarily left the program after more than a year of participation.
Accordingly, the court reviewed the evidence presented by the State, including
police reports and the charging document.
At the stipulated trial, Hewson argued that the evidence was insufficient to
show beyond a reasonable doubt the identity of the pills as methadone. The
court found that there was sufficient evidence, beyond a reasonable doubt,
"given all the materials." The court imposed the agreed recommended sentence
of 12 months plus one day, which Hewson had already completed.
Hewson appeals.
SUFFICIENCY OF THE EVIDENCE
Hewson argues that the evidence is insufficient to support his conviction
for possessing methadone with intent to deliver. Specifically, he argues that the
evidence is insufficient to prove that the substance found in his girlfriend's purse
was methadone because there was no field test, no lab test, and no confession
by Hewson. We disagree.
1Clerk's Papers at 7.
No. 69642-4-1/3
Due process requires the State to prove beyond a reasonable doubt all
the necessary facts of the crime charged.2 A defendant in drug court who agrees
to have his guilt determined based on documentary evidence does not waive his
right to have that determination established beyond a reasonable doubt.3
A sufficiency of the evidence analysis, "by its terms, is fact sensitive."4
"The test for determining the sufficiency of the evidence is whether, after viewing
the evidence in the light most favorable to the State, any rational trier of fact
could have found guilt beyond a reasonable doubt."5 "When the sufficiency of
the evidence is challenged in a criminal case, all reasonable inferences from the
evidence must be drawn in favor of the State and interpreted most strongly
against the defendant."6
A chemical test "is not vital to uphold a conviction for possession of a
controlled substance."7 "Circumstantial evidence and lay testimony may be
sufficient to establish the identity ofa drug in a criminal case."8 Circumstantial
2 State v. Colquitt, 133 Wash. App. 789, 796, 137 P.3d 892 (2006).
3See id, at 795-96.
4 State v. Hernandez, 85 Wash. App. 672, 678, 935 P.2d 623 (1997).
5 State v. Salinas, 119Wn.2d 192, 201, 829 P.2d 1068(1992).
*\±
7 Colquitt, 133 Wash. App. at 796.
8 Hernandez, 85 Wash. App. at 675.
No. 69642-4-1/4
evidence is as equally reliable as direct evidence.9
In determining whether circumstantial evidence proves the identity of the
substance beyond a reasonable doubt, courts have looked to the following, non-
exhaustive, list of factors:
(1) [Tjestimony by witnesses who have a significant amount of
experience with the drug in question, so that their identification of
the drug as the same as the drug in their past experience is highly
credible; (2) corroborating testimony by officers or other experts as
to the identification of the substance; (3) references made to the
drug by the defendant and others, either by the drug's name or a
slang term commonly used to connote the drug; (4) prior
involvement by the defendant in drug trafficking; (5) behavior
characteristic of use or possession of the particular controlled
substance; and (6) sensory identification of the substance if the
substance is sufficiently unique.[10]
Here, the circumstantial evidence is sufficient to prove that the substance
was methadone.
First, there is testimony by an expert as to the identification of the
substance. Deputy Mullinax testified that he is a drug recognition expert who has
received training on narcotic investigations. Further, during his training as a drug
recognition expert, he was "trained in the identification of prescription drugs—
especially those which are commonly abused."
Deputy Mullinax further testified that 10 pills that he recovered were
methadone. Deputy Mullinax identified the pills in a drug bible and there are
photographs to show the physical comparison.
9 State v. Delmarter, 94 Wash. 2d 634, 638, 618 P.2d 99 (1980).
10 Colquitt, 133 Wash. App. at 801.
No. 69642-4-1/5
Second, Hewson and others made references to methadone. Hewson
concedes that text messages were sent from his girlfriend's phone that referred
to methadone using its slang term. Hewson admitted that he and his girlfriend
both used the cell phone. Moreover, a cooperating witness stated that Hewson
texted him asking if he wanted some "dones." He indicated that "dones" is a
slang term for methadone.
Third, there is evidence that Hewson had prior involvement in drug
dealing. The cooperating witness stated that Hewson is a drug user and dealer.
He said Hewson had been dealing for at least one or two months.
Further evidence is the statement from the cooperating witness that
Hewson negotiated the sale of methadone for the transaction resulting in this
arrest. The witness stated that Hewson negotiated the sale of ten methadone
pills for $60. The witness said that the negotiated price was an average amount
for methadone. It is also noteworthy that this was the same number of
methadone pills recovered by Deputy Mullinax.
Finally, the text messages on the cell phone used by Hewson provide
additional evidence as to the substance's identity. The phone log revealed a
significant number of messages related to selling drugs. Many of these outgoing
text messages were sent on the on the same date as this incident and
specifically discussed methadone. Among them, include the following: "you still
need some dones? ...i finally got ahold ofsome."11 Overall, there appear to be
11 Clerk's Papers at 71. See also id, at 70 ("you want some
methadones?"); id ("you want some dones?"); id at 71 ("i got some reg. dones");
id at 72 ("i got some reg dones you want them").
No. 69642-4-1/6
messages sent to about 14 people regarding the sale of "dones" on the same
date as this incident.
In sum, when viewing the circumstantial evidence in a light most favorable
to the State, there was sufficient evidence for any rational trier of fact to find that
substance was methadone.
Hewson primarily relies on State v. Colquitt to argue that the evidence is
insufficient.12 In that case, Division Two held that an officer's statement that the
substance "appeared" to be cocaine, along with a positive field test for cocaine,
was insufficient to support the conviction.13 But there, the court stated that the
problem was "the paucity of information supporting the officer's identification" and
that the evidence only demonstrated "that the officer's visual identification of the
items was based on his conjecture, at best."14 The court also stated that the
record was "devoid of evidence of the officer's experience and training that would
allow him to properly identify the items as cocaine."15
Here, unlike Colquitt, there is evidence in the record of Deputy Mullinax's
experience and training. As discussed above, Deputy Mullinax is a drug
recognition expert with experience working in narcotics investigations.
Additionally, there is evidence about how Deputy Mullinax made his
12 Brief of Appellant 7-11 (citing Colquitt, 133 Wash. App. 789, 137 P.3d 892
(2006)).
13 Colquitt, 133 Wash. App. at 794.
14 Id at 800.
15 Id. at 801.
No. 69642-4-1/7
identification—use of the 2010 drug bible. Accordingly, Deputy Mullinax's
testimony was based on more than conjecture.
Hewson also argues that the State "failed to present evidence concerning
most of the factors" set forth in Colquitt. But the factors in Colquitt are neither
exhaustive nor dispositive. Further, Hewson concedes that the State presented
evidence related to some of the factors. And, as we have discussed, several of
the factors are present, including testimony from an expert as to the identification
of the substance, references made to the drug by the defendant and others, and
prior involvement of the defendant in drug dealing. Additionally, there is
evidence beyond the factors, including Hewson's conversation with the
cooperating witness and the outgoing text messages discussing the sale of
methadone. Hewson's argument is not persuasive.
We affirm the judgment and sentence.
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WE CONCUR:
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