State Of Washington v. Randy Eugene Simms ( 2015 )


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  •       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON^                                   >;%
    STATE OF WASHINGTON,                           N                                       ~°
    No. 71863-1-1
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    Appellant,                                                     T3»   t/)fT
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    DIVISION ONE                          V—; '.'
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    v.
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    RANDY EUGENE SIMMS,                                    UNPUBLISHED OPINION
    Respondent.                    FILED: September 14, 2015
    Spearman, C.J. — Randy Eugene Simms was convicted of two counts of
    delivering the controlled substance methamphetamine to a minor.1 He argues
    that the evidence is insufficient to support his conviction for many reasons,
    including the fact that there was no test confirming that the substance was
    methamphetamine. Simms also argues that he did not receive fair notice of the
    charges because the jury instruction contained an alternative means of
    conviction. We reject each of his arguments and affirm. However, because
    Simms was improperly ordered to undergo the human immunodeficiency virus
    (HIV) testing, we remand for correction of the error.
    1Although Simms was also convicted of sexual exploitation of a minor, we do not recite
    the underlying facts of that charge because on appeal Simms does not challenge the conviction,
    only a condition of his sentence.
    No. 71863-1-1/2
    FACTS
    In May 2011, Simms spent considerable time with teenagers P.I. and her
    boyfriend N. B., when they were fifteen and sixteen years old, respectively. N.B.'s
    father had asked Simms to speak to his son about the dangers of drug use after
    N.B. had been hospitalized after consuming a controlled substance. Simms
    began spending time with N.B. and P.I. on a regular basis, purportedly teaching
    N.B. about car mechanics. The trio would often drive around and spend time in
    the woods near Issaquah or Ravensdale.
    P.I. and N.B. asked Simms if he could get them methamphetamine
    because they wanted to try it. Simms brought a substance he referred to as
    "meth" on one of their trips to the woods. Verbatim Report of Proceedings (VRP)
    (Feb. 3, 2014) at 103. Simms brought a clear glass pipe and showed N.B. and
    P.I. how to smoke it. P.I. estimated that she smoked this substance with Simms
    approximately a dozen times and N.B. thought he and Simms had smoked it
    together "well over thirty" times. VRP (Feb. 4. 2014) at 102. Each time Simms
    supplied the substance, N.B. gave Simms money that N.B. had received from his
    father. In addition, Simms would occasionally smoke marijuana with N.B. and
    P.I., when N.B. had the drug.
    In the summer of 2011, P.I. moved to her mother's home in Reno while
    Simms and N.B. continued spending time together. At one point they went fishing
    on the Olympic Peninsula for several weeks and smoked meth often during that
    trip. After the trip, N.B. entered inpatient drug treatment and told a counselor
    about Simms providing him with methamphetamine. The counselor then told the
    No. 71863-1-1/3
    police. Simms was arrested and charged with two counts of violating the Uniform
    Controlled Substance Act (VUCSA) by delivering methamphetamine to a minor
    and one count of sexual exploitation of a minor.
    At trial, P.I. testified that she first smoked methamphetamine with Simms
    and N.B., in Simms' car. She testified that Simms referred to the drug as "meth"
    and not anything else, but that she and N.B. would refer to it as "bree." Id, at
    (Feb. 4, 2014) at 23. P.I. also described the pipe as "clear," a "ball with a stem,"
    and drew a picture, indicating where one would put the drug, where to put one's
    mouth to inhale, and where to light the pipe. VRP (Feb. 4, 2014) at 104. She
    described inhaling the smoke, and how it caused her to feel "a rush, an
    endorphin rush." \± at 107. P.I. also described the drug's appearance as
    "crystals," that were "see-through." id at 106. She thought that she had smoked
    methamphetamine with Simms "[m]aybe a dozen" times. \_± at 110. She testified
    that she had used methamphetamine on other occasions, and its effect on her
    was the same.
    N.B. testified that he first tried methamphetamine with Simms, but could
    not remember exactly how it came up. He thought that P.I. had sent Simms some
    text messages asking about methamphetamine and ecstasy and then Simms
    brought it with him on one oftheir trips to the woods. He testified that Simms told
    him that it was "nothing like weed" and that the "high [was] a lot different." VRP
    (Feb. 4, 2014) at 99. N.B. described in detail the pipe and the process ofsmoking
    the drug, its crystal form and the way it melted and then recrystallized. He
    described the feeling as "uppy" and that it "[g]ave [him] a bunch of energy." \± at
    No. 71863-1-1/4
    101. He compared it to the high he would get from weed, stating that weed gave
    him a "kind of relaxed, downy feeling," but with methamphetamine, "it's a really
    energetic type of feeling. . . . You feel like you want to get a lot of things done."
    
    Id. at 105.
    According to him, the energetic feeling would last for about four or five
    hours and then he would feel tired and "[u]sually felt the need to go to sleep or
    something." IdL Occasionally he would smoke weed with Simms, if N.B. "had it...
    but usually no." jd. at 117: N.B. had also used methamphetamine at least one
    subsequent occasion, without Simms, and that it had felt "close to the same." jd.
    at 122.
    Toxicologist Brianna Peterson testified about her training and expertise in
    the specific effects of methamphetamine. She described methamphetamine as a
    "central nervous stimulant" that "increases your energy,...causes a lot of
    euphoria or good feelings,... can cause you to have ... a heightened sense of...
    your own strength or well-being." VRP (Feb. 5, 2014) at 12. According to
    Peterson, the effect can last "four to eight hours after that initial use." Id, at 12.
    She also described the potential after effect of taking methamphetamine as
    "hav[ing] maybe more fatigue, because you don't have that energy," and
    "agitation or restlessness." 
    Id. at 13.
    She also testified that other drugs may
    produce a similar effect, such as amphetamines and ecstasy.
    The jury also heard testimony from forensic scientist Martin McDermott.
    McDermott testified about his familiarity with methamphetamine through his work
    with the Washington State Patrol Crime Laboratory in the chemical analysis
    section. He testified about most often seeing in methamphetamine cases "a glass
    No. 71863-1-1/5
    tube pipe" that is "typically a clear glass tube a few inches long, ... with sort of a
    glass ball on one end of it." 
    Id. (Feb. 5,
    2014) at 122. He indicated that when he
    has encountered such a pipe, "the vast majority of the time it has been [used for]
    methamphetamine." VRP (Feb. 5, 2014) at 124. He indicated that "the typical
    cocaine pipe ... looks distinctly different from this, as well as does the typical
    marijuana pipe that I see. And it has been my experience that it's pretty reliable
    that a person would use one type or another for a certain drug." \j± at 124.
    McDermott testified that he did not do any testing of substances or receive any
    pipes related to the instances in this case.
    Both parties submitted proposed jury instructions to the court. During the
    discussion about the "to convict" instruction, the parties and the court agreed to
    change the word "distribution" to "delivery." VRP (Feb. 11, 2014) at 12-14.The
    State suggested that the instruction "just includes delivering a controlled
    substance" without reference to RCW 69.50.401. IdL at 13. The court and the
    parties agreed to delete the statutory reference because providing that kind of
    information to a jury invites them to go and do research.
    The instruction given to the jury read:
    To convict the defendant of the crime of Violation of the
    Uniform Controlled Substances Act—Delivery of a Controlled
    Substance to a Person Under Age Eighteen, as charged in Count
    1, each of the following elements of the crime must be proved
    beyond a reasonable doubt:
    (1) That during a period of time intervening between
    April 1, 2011 and July 30, 2011, the defendant delivered a
    controlled substance to P. I.;
    (2) That the defendant was over 18 years of age;
    (3) That P.I. was under 18 years of age;
    (4) That the defendant knew the substance delivered
    was a controlled substance; and
    No. 71863-1-1/6
    (5) That the acts occurred in the State of Washington.
    Clerk's Papers (CP) at 59. Additionally, Instruction No. 9 stated that
    "[m]ethamphetamine is a controlled substance." CP 57. No other drugs or
    chemicals were defined in the instructions as controlled substances. Simms did
    not object to any of the jury instructions.
    The jury found Simms guilty of both VUCSA counts and the charge of
    sexual exploitation of a minor. He was sentenced to sixty months of
    incarceration. Simms was also ordered to undergo an HIV test under RCW
    70.24.340. Simms appeals.
    DISCUSSION
    The first issue is whether sufficient evidence supports Simms' conviction
    for delivery of a controlled substance, methamphetamine, as charged in counts
    one and two. Simms argues that the evidence was insufficient to identify the
    substance as methamphetamine, because there was no chemist report, no drug
    tests or paraphernalia and no independent observations. We disagree.
    Evidence is sufficient to support a conviction if, when viewed 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. State v. Green, 
    94 Wash. 2d 216
    , 221, 
    616 P.2d 628
    (1980). "[W]hen 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." State v. Partin, 
    88 Wash. 2d 899
    , 906-07, 
    567 P.2d 1136
    (1977)
    (quoting State v. Woods, 
    5 Wash. App. 399
    , 
    487 P.2d 624
    (1971)). The trier offact
    No. 71863-1-1/7
    judges the credibility of witnesses, and issues of credibility cannot be reviewed
    on appeal. State v. Camarillo. 
    115 Wash. 2d 60
    , 71, 
    794 P.2d 850
    (1990).
    Generally, "a chemical analysis is not vital to uphold a conviction for
    possession of a controlled substance." State v. Colquitt. 
    133 Wash. App. 789
    , 796,
    
    137 P.3d 892
    (2006). Circumstantial evidence and lay testimony may be
    sufficient to establish the identity of a drug in a criminal case. State v.
    Hernandez. 
    85 Wash. App. 672-75
    , 
    935 P.2d 623
    (1997). Lay witnesses may testify
    if they are familiar with the substance through prior use, trading, or law
    enforcement, jd. at 676. Circumstantial evidence may include the substance's
    packaging as well as its physical characteristics, jd. at 677.
    When determining whether circumstantial evidence proves the identity of
    the substance beyond a reasonable doubt, courts have considered the following
    non-exhaustive list of factors:
    (1) testimony 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.
    
    Colquitt, 133 Wash. App. at 801
    (citing State v. Watson. 
    231 Neb. 507
    , 514-17, 
    437 N.W.2d 142
    (1989)).
    Simms argues that the evidence was insufficient because there were no
    field tests, no paraphernalia found, no confession, no visual comparison by
    No. 71863-1-1/8
    experts, and no text messages referring to methamphetamine. Simms relies on
    Colquitt, where the court reversed Colquitt's conviction, even with a field test,
    because the only evidence the State submitted was the arresting officer's
    statement that the substance "appeared to be 'rock cocaine.'" Without more, the
    court was unable to "draw a conclusion based on more than the officer's bald
    statement, which by itself is insufficient." jd. at 802.
    Here, the combined evidence, when viewed in the light most favorable to
    the State, is sufficient to convince a trier of fact that Simms delivered
    methamphetamine to a minor beyond a reasonable doubt. First, the record
    contains testimony from both P.I. and N.B. about the drug's appearance and
    method of use, the number of times they had used it with Simms, and its effect
    on them compared to other drugs they have used. They also described
    subsequent experiences they had had with methamphetamine as similar to the
    times they used it with Simms.
    Second, P.I. and N.B.'s descriptions are supported by testimony from the
    expert witnesses about the characteristics of methamphetamine, its effects on
    the user, and the type of pipe associated with it. Third, the record contains
    evidence of Simms and others referring to the substance as methamphetamine.
    Finally, the testimony from P.I. and N.B. included descriptions of the drug's
    appearance and the pipe used that, combined with the expert testimony,
    suggested that methamphetamine was sufficiently unique and could be
    distinguished from other drugs based on the witnesses' descriptions.
    8
    No. 71863-1-1/9
    In sum, we find that a jury could reasonably infer from this evidence that
    the substance Simms gave to P.I. and N. B was methamphetamine. Simms
    argues that the witness testimony and opinions were "inexpert" and "nonspecific,
    generic" and "ambiguous." Reply Br. at 4-5. These are issues of credibility that
    cannot be reviewed upon appeal. See 
    Camarillo. 115 Wash. 2d at 571
    .
    Jury Instruction/Uncharged Alternative Means
    Simms argues that he did not receive fair notice of the charged offense,
    because in the information he was specifically charged with delivery of
    methamphetamine, but at trial he was accused and convicted of delivering any
    "controlled substance." Brief of Appellant at 16. The "to convict" instruction did
    not "clearly and specifically limit[_] the jury's verdict to delivery of the charged
    substance, methamphetamine." \± According to him, jurors may "have been
    convinced that [he] gave them some kind ofdrug but not the charged drug
    methamphetamine," and they "may not have unanimously agreed on the type of
    controlled substance delivered." Br. of Appellant at 17. Simms contends that the
    prosecution's arguments and court's instructions undermined Simms' right to a
    fair trial and unanimous jury verdict on identity of controlled substance. We
    review de novo whether a jury instruction accurately states the law without
    misleading the jury. State v. Chino. 
    117 Wash. App. 531
    , 538, 
    72 P.3d 256
    (2003).
    The State contends Simms did not properly preserve this issue for review
    because below he failed to take exception to the instruction of which he now
    No. 71863-1-1/10
    complains.2 Thus, according to the State, review of this issue is precluded under
    RAP 2.5(a) which provides that the appellate court may refuse to review any
    claim of error which was not raised in the trial court.
    Simms does not dispute that he did not object to the instruction below, but
    argues that he falls within the exception provided in RAP 2.5(a)(3) which permits
    a claim of error to be raised for the first time on appeal where it is a "manifest
    error affecting a constitutional right." To fall within the exception, an appellant
    must demonstrate (1) that the error is manifest, and (2) the error is truly of
    constitutional dimension. State v. Kirkman. 
    159 Wash. 2d 918
    , 926, 
    155 P.3d 125
    (2007).
    Simms argues that the error implicates his constitutional rights because
    "the constitution prohibits the court from instructing the jury on an uncharged
    alternative means of conviction. . .." Br. of Appellant at 15. We agree. In
    analyzing the asserted constitutional interest, we look to the allegation of a
    constitutional violation, and the facts alleged, to determine whether, iftrue, the
    defendant's constitutional rights were violated. 
    O'Hara. 167 Wash. 2d at 98-99
    . It is
    2The State also argues that any issue with the jury instructions arose as a result of
    invited error, because Simms proposed the to convict instruction that did not contain the definition
    of "controlled substance." The doctrine of invited error precludes a party from requesting an
    instruction at trial and then later on, seeking reversal on the basis of a claimed error in the
    instruction given at the defendant's request. State v. Henderson. 
    114 Wash. 2d 867
    , 869, 
    792 P.2d 514
    (1990). But the State concedes that the record does not contain a copy of the defense's
    proposed instructions and points only to the report of proceedings which reflects that Simms
    participated in discussions that resulted in the final draft of the instruction and that he did nottake
    exception to the instruction. Because the record does not show that Simms proposed the
    instruction, we decline to apply the invited error doctrine. See State v. LeFaber, 
    128 Wash. 2d 896
    ,
    904, 
    913 P.2d 369
    , n.1 (1996) (unable to preclude review based on invited error where the record
    was unclear as to whether defendant proposed instruction with similar language), abrogated on
    other grounds by State v. O'Hara. 167Wn.2d91, 101-02, 
    217 P.3d 756
    (2009).
    10
    No. 71863-1-1/11
    reversible error to try a defendant under an uncharged statutory alternative
    because it violates the defendant's right to notice of the crime charged. State v.
    Dooqan. 
    82 Wash. App. 185
    , 188, 
    917 P.2d 155
    (1996).
    However, after determining the error is of constitutional magnitude, we
    must still determine whether the error was manifest. Manifest error under RAP
    2.5(a)(3) requires a showing of actual prejudice. In order to show actual
    prejudice, there must be a "'plausible showing by the [appellant] that the asserted
    error had practical and identifiable consequences in the trial of the case.'"
    
    O'Hara, 167 Wash. 2d at 99
    (quoting Kirkman, at 935).
    Simms argues that the lack ofdefinition in the to convict instruction could
    have resulted in some jurors basing his conviction on a finding that he delivered
    marijuana to a minor. But he identifies little, other than speculation, to support
    this claim. Simms points to testimony that he smoked marijuana on a number of
    occasions with P.I. and N.B. But the record shows the likelihood that the jury
    considered marijuana as a basis for the charge was remote. At the beginning of
    the trial, the court advised the jury of the allegation against Simms that he
    "unlawfully and feloniously did deliver and distribute methamphetamine, a
    controlled substance to ... [N.B. and P.I.], a person who was under 18 years of
    age      "VRP (Jan. 27, 2014) at 21-22. The only controlled substance
    mentioned in the court's instructions to the jury was methamphetamine.
    ("Methamphetamine is a controlled substance."). CP at 57.
    Furthermore, during closing arguments the State and Simms made it
    abundantly clear that the charge for the jury to consider involved only
    11
    No. 71863-1-1/12
    methamphetamine and not some other drug. The State referred to Instruction No.
    12 (the to convict instruction) and the "elements that the State has to prove."
    VRP (Feb. 11, 2014) at 28. She noted that "Count 1 is delivery of
    methamphetamine to a minor, a controlled substance to a minor." ]d_. Simms'
    attorney also drove the point home, stating that Simms "[was] not charged with
    supplying them with pot, that's not really relevant to the charges against him."
    VRP (Feb. 11, 2014) at 42. Because the record does not support a finding of
    manifest error affecting a constitutional right, we decline to review this claim of
    error raised for the first time on appeal.
    Simms submits a statement of additional grounds in which he raises
    challenges to the sufficiency of the evidence and witness credibility. Adefendant
    may submit a pro se statement of additional grounds for review pursuant to RAP
    10.10. Such statement must "'inform the court of the nature and occurrence of
    [the] alleged errors.'" State v. Meneses, 
    149 Wash. App. 707
    , 715-16, 
    205 P.3d 916
    (2009). Simms argues that there was no evidence that he took the pictures,
    because they were not from any one of his phones. He also claims that P.I. and
    N.B. were not credible witnesses, because they lied about other events and had
    a motive to retaliate against him. Again, we defer to the jury's determinations
    regarding the persuasiveness of the evidence and the credibility of witnesses; we
    will not reweigh the evidence and substitute our judgment for that of the jury.
    Finally, Simms argues that he was improperly ordered to submit to HIV
    testing under RCW 70.24.340(1). The statute imposes HIV testing and
    counseling of all persons:
    12
    No. 71863-1-1/13
    (a) Convicted of a sexual offense under chapter 9A.44 RCW;
    (b) Convicted of prostitution or offenses relating to prostitution
    under chapter 9A.88.RCW; or
    (c) Convicted of drug offenses under chapter 69.50 RCW if the
    court determines at the time of conviction that the related
    drug offense is one associated with the use of hypodermic
    needles.
    The State agrees that this condition was a scrivenor's error; Simms was not
    convicted of a sexual offense under Chapter 9A.44 RCW, nor was the drug
    offense related to his conviction associated with the use of hypodermic needles.
    We therefore remand for revision of the judgment and sentence accordingly.
    Affirm, but remand to strike the HIV testing requirement.
    WE CONCUR:
    ^Q^M2g,CV
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