State Of Washington v. Stephaney L. Malone ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 43823 -2 -II
Consolidated Nos.
Respondent, 43826 - -II
7
43833 -0 -II
v. 43836 - -II
4
STEPHANEY MALONE, UNPUBLISHED OPINION
Appellant.
BJORGEN, A.C. J. — Stephaney Malone appeals her convictions for three counts of
delivery of a controlled substance, two of which the jury found she committed within 1, 000 feet
of a school bus stop; involving a minor in a drug transaction; possession of a controlled
substance with intent to distribute, also committed within 1, 000 feet of a school bus stop; and
leading organized crime. Malone contends that ( 1) insufficient evidence supported five of the
six charges and the school bus stop sentence enhancements, ( 2) the trial court erred in applying
the school bus stop enhancements because Malone could not receive these enhancements as an
accomplice, ( 3) the trial court erred in imposing an exceptional sentence for a major violation of
1
the Uniform Controlled Substances Act (Act) because the statute authorizing the exceptional
1
Chapter 69. 50 RCW.
No. 43823 -2 -II
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sentence is unconstitutionally vague, ( 4) the trial court erred in instructing the jury on the major
violation of the Act, and ( 5) her trial counsel rendered ineffective assistance at sentencing.
We affirm Malone' s convictions and sentence enhancements except for the leading
organized crime conviction, which we reverse. We remand to the trial court to dismiss with
prejudice the charge of leading organized crime, to correct Malone' s offender score, and to
resentence if required by the corrected offender score.
FACTS
A confidential informant ( CI) for the Longview Police Department gave officers
Malone' s name as a suspected drug dealer, and they began to investigate. The officers arranged
buys2
for three controlled using the CI during its investigation of Malone, the first of which
occurred on September 28, 2010. In a recorded call, the CI contacted Malone and told her he
wanted to purchase $ 100 of crack cocaine. Malone told the CI that he would need to contact her
son, Derrick Malone, and provided the CI with Derrick' s contact number. 3 The CI failed to
connect with Derrick despite several attempts, and the CI eventually called Malone back.
Malone assured him that she would contact her son and eventually called the CI back, telling him
once again to call Derrick. The CI then phoned Derrick and arranged to buy the crack near
Longview' s Wal - art Store. Officers brought the CI to the purchase location and observed him
M
2 A controlled buy involves the purchase of narcotics arranged by police through the CI. Police
search the CI before the buy to ensure he or she has no drugs, give the CI traceable money for
the buy, send the CI out to make the purchase under surveillance, and then search the CI after the
buy to recover any drugs the CI acquires.
3
For clarity' s sake we refer to the appellant as Malone, and we refer to her family members by
their first name. We intend no disrespect.
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4 II)
get into a car. He emerged after " a fairly short period of time" and returned to his police handler
with 1. 6 grams of crack cocaine wrapped in a paper towel. CD Proceedings ( CDP) at 31.
The second controlled buy involving Malone occurred on October 5, 2010. The CI
placed another call to Malone seeking to buy $ 100 in crack cocaine. Malone infoimed him " that
she was out and, about and that she would meet him over by the [ Dollar Tree, Inc.] in Longview."
CDP at 36. The officers, however, forgot to give the CI the money he needed for the buy. The
CI discovered this oversight after getting into the car containing Malone and her son, Carlos
Vargas, and had to dash off to where a patrol car was hidden to obtain the money. He then
returned to the car containing Carlos and Malone, completed the transaction, and once again
returned to his handler to give him the 1. 6 grams of crack cocaine he purchased.
The final controlled buy in the investigation of Malone occurred on October 28, 2010.
Again, the CI called Malone and asked for $ 100 in crack cocaine. Malone told him that her son
would bring the drugs to him at a park near her house. Officers observing Malone' s house saw a
male leave her house on a bike; the male rode to the park, met with the CI, and exchanged cash
for a paper towel containing .39 grams of crack cocaine. Officers later identified the man on the
bike as Frank Arce.
Based on the evidence obtained from the controlled buys, officers sought and obtained a
warrant to search Malone' s house. There, the officers found the car used to transport Malone to
the October 5, 2010 buy and the bike Arce used to ride to the site of the October 28, 2010 buy.
In the locked master bedroom police found a pile of documents linking Malone to the cell phone
number used to arrange the crack purchases and a stash of cocaine in a shoe in the closet.
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The State charged Malone by information with seven felonies: delivery of a controlled
substance, involving a minor in a drug transaction, two counts of delivery of a controlled
substance with school bus stop enhancements, possession of a controlled substance with intent to
deliver with a school bus stop enhancement, possession of a controlled substance, and leading
4
organized crime. The State also noted its intent to seek an exceptional sentence for a major
violation of the Act because Malone' s offense " involved at least three separate transactions in
which controlled substances were sold, transferred or possessed with intent to do so." Clerk' s
Papers ( CP) at 14.
At trial, the State presented recordings of the CI' s September 28, 2010 and October 5,
2010 calls to Malone and recordings of all three buys. 5 The CI testified about each of the
transactions while officers testified about their surveillance during the buys and the search of
Malone' s house. The State also offered testimony from the Longview School District' s
transportation manager identifying bus stops near the sites of the October 5, 2010 and October
28, 2010 deliveries and Malone' s house. In addition, Longview' s geographic information
systems ( GIS) coordinator prepared maps admitted into evidence that showed that the delivery
sites and Malone' s home were well within the 1, 000 foot buffer zones surrounding the bus stops.
4
The State moved to dismiss the simple possession charge with prejudice during trial due to
insufficient evidence. The trial court granted this motion.
5 The recording of the October 28, 2010 call failed for unknown reasons, and the jury did not
hear it.
4
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Malone called a single witness in her defense, Arce. Arce testified that he had delivered
the crack to the CI in the park on October 28, 2010 at the behest of a girl friend whose last name
and address he could not remember, not on orders from Malone.
The jury returned guilty verdicts on all counts. The jury returned special verdicts finding
that Malone had committed the two delivery offenses and the possession with intent to deliver
offense within 1, 000 feet of a school bus stop. The jury also returned a special verdict finding
that Malone had committed a major violation of the Act because her offense involved at least
three separate transactions in which controlled substances were sold, transferred, or possessed.
The trial court sentenced Malone to 85 months' incarceration on each of the delivery and
the possession with intent to deliver charges, 60 months' incarceration on the involving a minor
in a drug transaction charge, and 156 months' incarceration for the leading organized crime
charge, with all these sentences running concurrently. At the same sentencing proceeding, the
trial court also sentenced Malone under three other cause numbers in each of which she had pled
guilty to a single count of delivery of crack cocaine. The trial court sentenced Malone to 60
months for each delivery offense Malone pled guilty to, with those sentences running
concurrently with each other and consecutively to the sentences imposed for the jury trial
convictions.
Malone timely appealed.
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ANALYSIS
I. SUFFICIENCY OF THE EVIDENCE
Malone challenges the sufficiency of the evidence underlying two of her three
convictions for delivery of a controlled substance, the conviction for involving a minor in a drug
transaction, the possession of a controlled substance with intent to deliver conviction, the leading
organized crime conviction, and the school bus stop sentence enhancements to the convictions
for delivery of a controlled substance and possession of a controlled substance with intent to
deliver. We hold that sufficient evidence supports each conviction and enhancement, except the
conviction for leading organized crime.
We review the sufficiency of the evidence sustaining a criminal conviction by asking
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. "'
State v. Vasquez, 178 Wn.2d 1, 6, 309 P.3d 318 ( 2013) ( quoting State v. Bencivenga, 137 Wn.2d
703, 706, 974 P. 2d 832 ( 1999)). By challenging the sufficiency of the evidence, Malone
admits the truth of the State' s evidence and all inferences that reasonably can be drawn
therefrom. "' State v. Kintz, 169 Wn. 2d 537, 551, 238 P. 3d 470 ( 2010) ( quoting State v. Salinas,
119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992)). We accord the same weight to direct and
circumstantial evidence during our review.of the sufficiency of the State' s evidence and either
type of evidence may sustain a conviction. Kintz, 169 Wn.2d at 551.
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A. Count I: Delivery of a Controlled Substance on September 28, 2010
Malone first challenges the sufficiency of the evidence related to her conviction for
delivering crack cocaine on September 28, 2010. Specifically, Malone contends that the State
failed to show the elements of constructive delivery. We hold that it did.
A conviction for delivery of a controlled substance requires the State to prove that the
defendant "( 1) delivered a controlled substance and ( 2) knew that the delivered substance was
controlled." State v. Martinez, 123 Wn. App. 841, 844, 846,. 99 P.3d 418 ( 2004). Because
Malone did not personally deliver the crack cocaine, the State needed to prove that she did so
constructively, which required the State to prove that she delivered it "through an intermediary."
State v. Campbell, 59 Wn. App. 61, 63 n. 1, 795 P. 2d 750 ( 1990). This required the State to
prove ( 1) a third person ( 2) transferred crack cocaine belonging to Malone or under her control
3) at her "` instance or direction. "' Campbell, 59 Wn. App. at 63 ( quoting Davila v. State, 664
S. W. 2d 722, 724 (Tex. Crim. App. 1984)).
Sufficient evidence in the record allowed the jury to find beyond a reasonable doubt that
6
Malone constructively delivered the crack cocaine to the CI on September 28, 2010. While
6
The State argues that sufficient evidence supports Malone' s conviction on this count because
the trial court instructed the jury on accomplice liability and the prosecutor availed himself of
that instruction during closing argument. If the jury could have convicted Malone as an
accomplice, more than sufficient evidence would have supported the conviction given even
Malone' s characterization of her phone calls with the CI. However, while the trial court
provided the definitional instruction on accomplice liability, the trial court did not instruct the
jury that it could convict Malone as an accomplice for Derrick' s criminal act. We distinguish
between a trial court' s instruction on the definition of an accomplice and its instruction that the
jury may convict an accomplice for the offense. State v. Spencer, 111 Wn. App. 40.1, 411 -12, 45
P. 3d 209 ( 2002). Without an instruction on the jury' s ability to convict an accomplice or a
criminal charge filed on that basis, Malone' s conviction on accomplice liability grounds would
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Malone contends that no evidence in the record suggested that the cocaine Derrick delivered
belonged to her or was otherwise under her control, or that Derrick acted under her instance and
direction, the jury heard the recordings of the CI' s calls with Malone that day. During the first,
the CI asked Malone if she had " a hundred," meaning $ 100 in crack cocaine. CDP at 182.
Malone responded in the affirmative. The CI then attempted to buy the crack cocaine, and
Malone told him to call Derrick. The jury could reasonably conclude or infer from that
interaction that the CI was arranging to buy Malone' s crack cocaine, although delivered by
Derrick rather than Malone. Further, in a later call with Malone, after the CI failed to connect
with Derrick, Malone told the CI that she would tell Derrick to " answer [ his] call" to set up the
buy. Ex. 9. This evidence allowed the jury to reasonably conclude that Derrick acted under his
mother' s instance or direction when he answered the call and then brought the crack cocaine to
the buy site.
B. Count II: Involving a Minor in a Drug Transaction
Malone also contends that insufficient evidence supported her conviction for involving a
minor in a drug transaction. We disagree.
have been constitutionally infirm and no amount of evidence could be sufficient to support it.
Spencer, 111 Wn. App. at 411 -12 ( citing State v. Davenport, 100 Wn.2d 757, 764 -65, 675 P. 2d
1213 ( 1984)).
However, because we presume that the jury follows the trial court' s instruction,
we must presume the jury did not convict on accomplice liability grounds since it was not told it
could do so. See State v. Swan, 114 Wn. 2d 613, 661 -62, 790 P.2d 610 ( 1990). Malone did not,
in any event, assign error to the decision to give the superfluous instruction on the definition of
an accomplice or the prosecutor' s closing argument, which asked the jury to convict for the
September 28, 2010 delivery based on accomplice liability.
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To convict Malone of involving a minor in a drug transaction, the State needed to prove
that she ( 1) " compensate[ d], threaten[ ed], solicit[ ed], or in any other manner involve[ d]" ( 2) " a
person under the age of eighteen" ( 3) " in a transaction unlawfully to manufacture, sell, or deliver
a controlled substance." RCW 69. 50.4015( 1).
Malone contests only the State' s proof that Derrick was under the age of 18. For support,
Malone cites our opinion in State v. Duran- Davila, 77 Wn. App. 701, 892 P.2d 1125 ( 1995),
where we reversed a similar conviction for insufficient evidence that the transaction involved a
minor. The only admissible testimony in Duran- Davila concerning the age of the alleged minor
was a detective' s testimony that he had seen the girl at a juvenile court proceeding. Duran -
Davila, 77 Wn. App. at 703 -04. We held that testimony about seeing the alleged minor " at a
remand hearing" in juvenile court " was insufficient to prove beyond a reasonable doubt that" the
girl was under 18 at the time of the offense. Duran-Davila, 77 Wn. App. at 706.
The testimony the State presented against Malone was qualitatively different than that
presented in Duran-Davila. As in Duran -
Davila, the arresting officer here testified to seeing
Derrick interact with the juvenile justice system by stating that he brought Derrick to the juvenile
detention facility for intake. However, the arresting officer testified further that, had Derrick
been over the age of 18, the juvenile detention facility would have refused intake and instead
sent him to the county jail. This testimony reasonably ruled out the possibility that Derrick was
over the age of 18. A rational trier of fact could have found the State proved that Derrick was
younger than 18 beyond a reasonable doubt based on this testimony.
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C. Count IV: Delivery of a Controlled Substance on October 28, 2010
Malone next challenges the sufficiency of the evidence sustaining her conviction for
delivering a controlled substance on October 28, 2010. As with her challenge to her conviction
for count I, Malone contends that no evidence allowed the jury to conclude beyond a reasonable
doubt that she constructively delivered the crack through Arce, citing to his testimony that he did
not deliver the crack cocaine for her. Again, we disagree.
Both the CI and his handler testified that the CI initiated the October 28, 2010 buy with a
call to Malone asking to purchase $ 100 in crack cocaine. The CI testified that Malone told him
that her son would meet him in a nearby park to consummate the transaction. Officers watching
Malone' s residence watched Arce leave on a bike, and other officers watched him ride to the
park and meet with the CI to exchange cash for drugs. The CI testified about meeting Arce in
the park. While Arce testified that Malone played no role in the transaction, Malone accepts the
truth of the State' s testimony and the reasonable inferences drawn from it for purposes of her
sufficiency challenge. Given that reality, Arce' s testimony was irrelevant. The jury could
reasonably conclude from the CI' s call to Malone that the CI had arranged to purchase Malone' s
drugs and that she directed Arce to deliver them to him for her.7
7 Malone also argues that the " grossly disproportionate amount" of crack cocaine Arce delivered
suggests that the cocaine was not under her control. Br. of Appellant at 10. Arce may have
indeed had control over the drug and helped himself to some of it when he delivered it. That
does not, however, make the cocaine any less Malone' s property. She owned the drug until Arce
handed it to the CI, and the State may show constructive delivery when a third person delivers
the drugs owned by a seller to a buyer. Campbell, 59 Wn. App. at 63.
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D. Count V: Possession of a Controlled Substance With Intent to Deliver
Malone also challenges the sufficiency of the evidence supporting her conviction for
possession of a controlled substance with intent to deliver. She contends that, while the State
showed possession, it did not offer any evidence of intent to distribute. We hold that the State
presented sufficient evidence.
While a jury may permissibly infer that someone in possession of a controlled substance
intended to traffic it, the jury could also permissibly infer that the person possessed the substance
for his or her own personal use. State v. Harris, 14 Wn. App. 414, 418, 542 P.2d 122 ( 1975).
The State must therefore present some other evidence, aside from mere possession of a small
quantity of a controlled substance, in order to prove that a defendant possessed with intent to
deliver. State v. Brown, 6$ Wn. App. 480, 483, 843 P. 2d 1098 ( 1993). Courts commonly find
this additional factor where the defendant possessed quantities of a controlled substance beyond
those expected for personal use, or where she possessed tools of the illicit drug. trade. Brown, 68
Wn. App. at 484. Testimony about controlled buys can also provide the additional evidence
necessary to allow the inference of intent to deliver beyond a reasonable doubt. Brown, 68 Wn.
App. at 484; see State v. Thomas, 68 Wn. App. 268, 273, 843 P. 2d 540 ( 1992) ( police testimony
about prior sales can provide evidence of the defendant' s intent to distribute controlled
substances seized).
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The State presented no evidence that the volume of crack seized at Malone' s house itself
indicated an intent to distribute.8 This, however, was not a case where " the officers observed no
actions suggesting sales or delivery." Brown, 68 Wn. App. at 484. The officers, through their
CI, arranged three controlled buys with Malone. The evidence of these transactions allowed the
jury to infer that Malone possessed the cocaine in order to carry on her illicit trade. Brown, 68
Wn. App. at 484; Thomas, 68 Wn. App. at 273.
E. Count VI: Leading Organized Crime
Malone also challenges the sufficiency of the evidence supporting her leading organized
crime conviction. She contends that the State failed to show Arce and Carlos acted under her
control or that she committed each act for financial gain. We agree that the State failed to
introduce sufficient evidence that Malone " led" Carlos and do not reach Malone' s other
contentions related to this charge.
To convict Malone of leading organized crime, the State needed to prove that she. (1)
intentionally organiz[ ed], manag[ ed], direct[ ed], supervis[ ed], or finance[ d]" ( 2) " three or more
persons" ( 3) " with the intent to engage in a pattern of criminal profiteering activity." RCW
9A. 82. 060( 1)( a). Under former RCW 9A.82.010( 4)( Q) ( 2008), 9 the delivery of a controlled
substance constitutes criminal profiteering if committed for " financial gain."
8
No testimony at trial disclosed the precise amount of crack cocaine police found in the shoe.
However, the prosecutor stated in closing it was 5. 6 grams, and Malone did not object that this
was an inaccurate misrepresentation.
9 Former RCW 9A.82.010 was revised in 2013, but this revision does not affect the subsection
cited.
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Malone contends that the State failed to prove beyond a reasonable doubt that she
organized, managed, directed, or supervised Carlos. The State disagrees, citing two pieces of
evidence it claims show that Malone did so. First, Carlos gave Malone a ride to the October 5,
2010 buy site. Second, at the buy the CI forgot the cash, ran to get it, found Carlos' s car still
there when he returned, and consummated the transaction with Carlos present. We hold this
evidence is insufficient to show the necessary organization, supervision, direction, or
management of Carlos by Malone.
The ride Carlos gave Malone cannot show that she managed, supervised, directed, or
organized him, because the evidence shows that Carlos had already committed to giving Malone
a ride to the Dollar Store before the CI called her. Malone told the CI this when he asked her to
drive to a site that police were already observing and instead told him to meet her where Carlos
was going. That Malone could not order Carlos to take her to the location proposed by the CI is
inconsistent with her supervision, direction, management, or organization of Carlos.
Nor did the fact that Carlos waited at the site of the purchase while the CI fetched the
traceable money indicate management, supervision, direction, or organization by Malone. The
recording played for the jury indicated that the CI asked Carlos to wait while he went to get the
cash. If Carlos waited as a favor to the CI, we cannot say that Malone organized, supervised, or
directed him.
While we review sufficiency challenges in the light most favorable to the State, the State
needed to introduce some evidence that Malone had some effect on Carlos' s actions. The
gravamen of a leading organized crime offense is leadership: the leader must influence the
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4
behavior of those he or she leads. E.g., State v. Strohm, 75 Wn. App. 301, 305 -07, 879 P.2d 9621994) ( finding management, supervision, direction, or organization where the leader of a stolen
car ring decided which vehicles his associates would steal, which thief would do the stealing, and
provided the thieves the necessary tools). We hold that under these circumstances the State
failed to provide sufficient evidence of Malone' s leadership of Carlos. Therefore, we reverse
Malone' s conviction for leading organized crime and remand to the superior court to dismiss this
conviction with prejudice. State v. DeVries, 149 Wn.2d 842, 853 -54, 72 P. 3d 748 ( 2003).
F. Aggravating Factors to Counts III, IV, and V: The School Bus Stop Enhancements
Malone also challenges the sufficiency of the evidence related to the school bus stop
sentence enhancements. She contends that the State failed to prove beyond a reasonable doubt
that she committed any offense within the 1, 000 -foot radius prescribed by RCW 69.50.435
because it did not identify the precise location of the bus stops, the transaction sites, and the
house where police seized the cocaine. We disagree.
As with a conviction, the State bears the burden of proving the elements of a sentencing
enhancement beyond a reasonable doubt. State v. Hennessey, 80 Wn. App. 190, 194, 907 P.2d
331 ( 1995). We review the evidence supporting a jury' s finding of a sentence enhancement in
the same manner we review the evidence sustaining a jury' s finding of guilty on a criminal
charge. We look to whether, viewed in the light most favorable to the State, a rational jury could
find the facts needed to support the sentence enhancement beyond a reasonable doubt.
Hennessey, 80 Wn. App. at 194. Where the State seeks to enhance a sentence for delivery of a
controlled substance within 1, 000 feet of a school bus stop under RCW 69. 50. 435( 1)( c), the State
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may not rely on a " guesstimat[ e]" of the distance between the transaction and the bus stop to
provide sufficient evidence for the jury to find the sentencing enhancement. Hennessey, 80 Wn.
App. at 195.
A rational jury could find beyond a reasonable doubt that Malone committed the two
delivery of a controlled substance offenses and the possession of a controlled substance with
intent to deliver offense within 1, 000 feet of a school bus stop. The State presented testimony
from the Longview School District' s transportation manager that identified designated bus stops
near the three transaction sites. The State also presented testimony from the City of Longview' s
GIS coordinator that she took the bus stop locations given to her by the school district' s
transportation manager and fed that data into the city' s geographic -related software to prepare a
map of the 1, 000 -foot circular radii surrounding the bus stops. The resulting maps were admitted
into evidence, and the GIS coordinator testified that these maps were accurate to within a few
inches. An officer identified the locations of the controlled buys and the search of Malone' s
house on the maps, which were marked with stars. The stars are all well within the 1, 000 foot
radii. Further, the officer testified that the entirety of the park where the October 28 buy took
place, the entirety of the block where the search of Malone' s house took place, and the entirety
of the parking lot where the October 5 buy took place were all within the identified radii.
Sufficient evidence supports the jury' s findings. See Hennessey, 80 Wn. App. 195 n. l.
II. ACCOMPLICE LIABILITY AND THE SCHOOL Bus STOP ENHANCEMENTS
Malone also contends that the school bus stop enhancements were inapplicable to the
October 5 and 28, 2010 deliveries because such enhancements cannot apply to accomplices,
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citing Division One' s opinion in State v. Pineda -
Pineda, 154 Wn. App. 653, 226 P.3d 1642010). We disagree that Pineda- Pineda applies, and we affirm.
Pineda- Pineda, like this case, involved a CI who set up several controlled buys. 154 Wn.
App. at 657 -58. During the first buy, Pineda -Pineda himself exchanged cash for cocaine.
Pineda -Pineda, 154 Wn. App. at 658. During the second two buys, Pineda -Pineda was not
present, although the CI arranged the purchase with him. Pineda -Pineda, 154 Wn. App. at 658.
As in this case, evidence presented at trial indicated that these buys occurred within 1, 000 feet of
a school bus stop. Pineda- Pineda, 154 Wn. App. at 658 -59. A jury convicted Pineda -
Pineda of
several offenses, including two counts of delivery of a controlled substance within 1, 000 feet of a
school bus stop. Pineda -
Pineda, 154 Wn. App. at 659. Pineda -Pineda appealed, claiming
among other things, that the trial court erred in imposing an enhanced sentence for the second
delivery offense because no law authorized enhanced sentences where the conviction resulted
solely from accomplice liability. Pineda- Pineda, 154 Wn. App. at 660.
Division One noted that RCW 9A.08. 020, the general accomplice liability statute, does
not authorize sentence enhancements and that any authorization for an enhanced sentence based
on accomplice liability principles must come from the specific enhancement statute. Pineda -
Pineda, 154 Wn. App. at 661. Division One held that because the school zone enhancement
statute did not authorize its imposition through accomplice liability a person could not receive an
enhanced sentence for delivery of a controlled substance within 1, 000 feet of a school bus stop
solely for the acts of others imposed through accomplice liability. Pineda- Pineda, 154 Wn. App.
at 662 -65. Pineda -
Pineda, by its own terms, does not apply because the State did not charge
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4 II)
Malone as an accomplice in any crimes for which it sought school bus stop sentence
enhancements. 10 154 Wn. App. at 664.
As the State notes, Malone delivered crack cocaine to the CI during the October 5, 2010
buy. While Malone was not physically present at the October 28, 2010 buy site, the Act allows
enhanced sentences for those who constructively transfer controlled substances within 1, 000 feet
of a bus stop. RCW 69.50.401 ( proscribing delivery of a controlled substance within 1, 000 feet
of a bus stop); RCW 69. 50. 435( 1) ( delivery may be actual or constructive). As we have
explained, Malone constructively delivered the controlled substances through,her designated
others, and the legislature approved of liability under these circumstances through RCW
69. 50. 401 and RCW 69. 50. 435( 1). In each case, the State prosecuted Malone for her own
actions in delivering or in directing others to deliver drugs to the CI. We affirm the trial court' s
imposition of the sentence enhancements for delivery and possession with intent to deliver
within 1, 000 feet of a school bus stop.
III. VOID FOR VAGUENESS
Malone next argues that former RCW 9. 94A.535( 3)( e) ( 2010), 11 which allows enhanced
sentences for major violations of the Act, is unconstitutionally vague. Sentence enhancements,
however, are not subject to vagueness challenges.
to
Here, in contrast, the State discussed accomplice culpability for Malone only in the context of
the delivery charge for which it did not seek a school bus stop sentence enhancement.
Accomplice liability is simply not relevant to the enhancements at issue here.
11 Former RCW 9. 94A.535( 3)( e) has been revised, but the revision does not affect the subsection
cited.
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The due process vagueness doctrine requires that the legislature draft criminal statutes to
provide notice as to what conduct they proscribe and to provide " ascertainable standards of guilt
to protect against arbitrary arrest and prosecution." State v. Baldwin, 150 Wn.2d 448, 458, 78
P.3d 1005 ( 2003). This doctrine, though, applies " only to laws that ` attempt to proscribe or
prescribe conduct. "'
Baldwin, 150 Wn.2d 458 ( quoting State v. Jacobson, 92 Wn. App. 958,
966, 965 P. 2d 1140 ( 1998)). Applying the vagueness doctrine to sentence enhancements is thus
analytically unsound" because sentence enhancements only " provide directives for judges to
consider when imposing sentences" for conduct proscribed elsewhere. Jacobson, 92 Wn. App.
at 966. Our Supreme Court has approved of this analysis and held that exceptional sentences
imposed under what is now former RCW 9. 94A.535( 3) are not susceptible to vagueness
challenges, because the sentencing guidelines do not proscribe or prescribe behavior or render
12
the defendant vulnerable to arbitrary arrest or prosecution. Baldwin, 150 Wn.2d at 459.
Baldwin requires that we reject Malone' s vagueness challenge.
IV. JURY INSTRUCTIONS
Malone next claims that the trial court erred in giving instruction 31, which informed the
jury it should consider "[ w] hether the current case involved at least three separate transactions in
which controlled substances were sold, transferred, or possessed with intent to do so" to decide
whether Malone committed a major violation of the Act. CP at 53. The relevant statutory
provision uses " current offense" where the instruction used " current case," and Malone argues
12
Baldwin discussed former RCW 9. 94A. 390( 2)( d) ( 2001), which has since been recodified to
RCW 9. 94A.535( 3)( d) without substantive change to the types of conduct that justify an
exceptional sentence. Compare LAWS OF 2001, ch. 10, § 6.
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that the substitution rendered the instruction erroneous. Compare RCW 9. 94A.535( 3)( e)( i) with
CP at 53. We decline to address the merits of Malone' s claim because she did not object at trial.
We generally do not consider issues raised for the first time on appeal. State v. Strine,
176 Wn.2d 742, 749, 293 P. 3d 1177 ( 2013); RAP 2. 5( a). CrR 6. 15( c) reflects this policy; it
requires a party to preserve a claim of error concerning a jury instruction by making a " timely
and well stated objection[]" at trial. State v. Grimes, 165 Wn. App. 172, 179, 267 P.3d 4542011), review denied, 175 Wn.2d 1010 ( 2012). This serves the interests of judicial economy
and fairness in trials. Strine, 176 Wn.2d at 749 -50. We will, however, consider an issue for the
first time on appeal if it involves a manifest constitutional error. State v. O' Hara, 167 Wn.2d 91,
98 -100, 217 P. 3d 756 ( 2009); RAP 2. 5( a)( 3).
To determine if the defendant claims a manifest constitutional error, we "` preview ' the
merits of the defendant' s claim to see if it would succeed. State v. Kirwin, 165 Wn.2d 818, 823,
203 P. 3d 1044 ( 2009) ( quoting State v. Walsh, 143 Wn.2d 1, 8, 17 P. 3d 591 ( 2001)). The
defendant bears the burden of showing "( 1) the error is manifest, and ( 2) the error is truly of
constitutional dimension." O' Hara, 167 Wn.2d at 98. Malone' s claim involves no error, let
alone a constitutional one.
Malone' s claim that the substitution of the words " current case" for " current offense"
created an error is simply incorrect. In the context of the Sentencing Reform Act of 1981 ( SRA),
chapter 9. 94A RCW, " current offense" includes more than just the conduct at issue in a criminal
charge; it includes all conduct "` related to the crime with which the defendant is charged. '
State v. Sanchez, 69 Wn. App. 195, 204, 848 P.2d 735 ( quoting State v. Houf, 120 Wn.2d 327,
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1)
334, 841 P.2d 42 ( 1992)). By the plain terms of the SRA, the jury must look to other instances
of delivery or possession with intent to deliver to determine whether the defendant committed a
major violation of the Act. Former RCW 9. 94A.535( 3)( e)( i); RCW 9. 94A.530( 3); Sanchez, 69
Wn. App. at 202 -05; see State v. Reynolds, 80 Wn. App. 851, 853, 856 -59, 12 P. 2d 494 ( 1996).
For sentencing enhancements for major violations of the Act, the terms " case" and " offense" are
synonymous.
Further, even if we agreed that instruction 31was erroneous, it did not involve
constitutional error. Malone claims the instruction violated her right to due process of law by
lowering the State' s burden of proof, but the instruction did not have that effect. The trial court
properly instructed the jury on the appropriate burden for the aggravating factors, namely that the
State bore the burden of proving the factors beyond a reasonable doubt. We presume the jury
followed such instructions. See State v. Swan, 114 Wn.2d 613, 661 -62, 790 P. 2d 610 ( 1990).
The instruction simply informed the jury what evidence the jury should consider to determine if
the State had carried its burden of proof, and we fail to see how that instruction undermined the
State' s burden of proof.
Because Malone does not raise a manifest constitutional error, and because she failed to
object at trial; she waived any claim of error. We decline to consider her claim further.
13
Sanchez interpreted former RCW 9. 94A. 390( 2)( d)( i) (1990), which the code reviser has since
recodified as RCW 9. 94A.535( 3)( e)( i) without modification. LAws OF 1990, ch. 3, § 603.
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V. INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, Malone contends her trial counsel rendered ineffective assistance by failing to
object to the trial court' s failure to consider ( 1) the leading organized crime charge as the same
criminal conduct as the three delivery charges and ( 2) the September 28, 2010 delivery charge as
the same criminal conduct as that involving a minor in a drug transaction charge. Because we
reverse Malone' s leading organized crime conviction, her first argument is moot, and we do not
address it. See State v. Rainey, 107 Wn. App. 129, 134, 28 P. 3d 10 ( 2001). We reject Malone' s
second argument on its merits.
The Washington and federal constitutions guarantee criminal defendants the right to
effective representation by their counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 12602011). We review ineffective assistance claims by strongly presuming that the defendant' s
counsel performed ' reasonably. "' Grier, 171 Wn.2d at 33 ( quoting State v. Kyllo, 166 Wn.2d
856, 862, 215 P. 3d 177 ( 2009)). Overcoming this presumption requires the defendant to show
that her or his counsel performed deficiently and that this deficient performance prejudiced her
or him. Grier, 171 Wn.2d at 32 -33 ( citing State v. Thomas, 109 Wn.2d 222, 225 -26, 743 P.2d
816 ( 1987)). Failure to object at sentencing to the trial court' s counting convictions involving
the same criminal conduct as separate offenses could constitute deficient performance. See State
v. Allen, 150 Wn. App. 300, 316 -17, 207 P. 3d 483 ( 2009). Such, however, is not the case here.
14
Former RCW 9. 94A. 589( 1)( a) ( 2002) requires the trial court to count offenses
encompassing the same criminal conduct as one offense for purposes of sentencing. This
14
Former RCW 9. 94A.589 was revised in 2014, but the revision does not adversely affect the
subsection cited.
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provision is, however, "` construed narrowly to disallow most claims that multiple offenses
constitute the same criminal act, "' and Malone bears the burden of proving the offenses involved
the same criminal conduct. State v. Graciano, 176 Wn.2d 531, 540, 295 P.3d 219 ( 2013)
quoting State v. Porter, 133 Wn.2d 177, 181, 942 P. 2d 974 ( 1997)). To show that the offenses
of delivery and involving a minor in a drug transaction involved the same criminal conduct,
Malone must prove that they involved the same criminal intent and victim and were committed
at the same place and time. Former RCW 9. 94A. 589( 1)( a). Malone fails to make the requisite
showing on at least two of these elements.
First, the delivery and involving a minor in drug transaction offenses involved different
victims. Washington' s courts view the general public as the victim of a delivery of a controlled
substance offense. Porter, 133 Wn. 2d at 181. As the State argues, RCW 69.50. 4015, which
proscribes involving a minor in a drug transaction, views the minor involved as the victim.
Second, the two offenses involve different criminal intent. As noted above, a delivery
offense requires intent to deliver a controlled substance. State v. Williams, 135 Wn.2d 365, 368,
957 P. 2d 216 ( 1998). RCW 69. 50.4015 appears to require intent to involve the minor as well as
intent to deliver a controlled substance. See RCW 69. 50.4015 ( proscribing " compensat[ ing],
threaten[ ing], solicit[ ing], or in any other manner involv[ ing]" a minor in certain drug offenses).
Because the offenses of delivery and involving a minor in a drug transaction did not
encompass the same criminal conduct, Malone' s attorney had no basis for objecting and did not
perform deficiently by failing to do so.
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CONCLUSION
We affirm Malone' s convictions and sentence enhancements except for the leading
organized crime conviction, which we reverse. We remand to the trial court to dismiss the
charge of leading organized crime with prejudice, to correct Malone' s offender score, and to
resentence her if the corrected offender score so requires.
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.
1
A. C.I.
We concur:
23