C
FILED
RB OF Ay} ff ,
DIVISION y
7
2014 ALII
CFrp UTY..
\
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, ' No. 44175 -6 -II
Respondent,
v.
TIMOTHY ALLEN . ONOVER,
C UNPUBLISHED OPINION
Appellant.
HUNT, . J. — Timothy Allen Conover appeals his jury convictions and standard range
sentences for three counts of delivering heroin within 1, 000 feet of a school bus route
stop. He
argues that the trial court ( 1) violated his right to a public trial by locking the courtroom door for
a half hour during jury instructions; ( 2) erred in overruling his objection to the reasonable doubt
instruction, which included " an abiding belief in the truth of the charge," Br. of Appellant at 13;
3) erred in calculating his offender score when the State failed to present any evidence of
Conover' s prior criminal history, which error the State concedes; and ( 4) erred in running
Conover' s bus route stop enhancements consecutively rather than concurrently under RCW
9. 94A.533. For the first time on appeal, Conover also challenges the jury instruction on the
1
violation of the Uniform Controlled Substances Act (VUCSA) as unconstitutionally vague and
asks us to strike the jury' s aggravating factors findings, even though the trial court did not
1
Ch. 69. 50 RCW.
No. 44175 -6 -II
impose an exceptional sentence. We affirm Conover' s convictions. Accepting the State' s
concession of error in failing to prove Conover' s prior convictions, we vacate the sentences and
remand for resentencing.
FACTS
I. CONTROLLED BuYs
On May 13, 2011, Cowlitz -
Wahkiakum County Drug Task Force Detective Russell
Hanson and Detective Michael Meier organized a controlled buy using a confidential informant
CI). The CI called Timothy Conover to arrange to . purchase heroin and told Hanson that
Conover had ounce of
a quarter - heroin for sale for $ 400. Hanson and Meier gave the CI $ 400
for the transaction. The CI met Conover in a motor home at Seventh and California Way, which
was located within 1, 000 feet from a school bus route stop for the Longview School District.
The CI gave the money to Conover, who gave the CI a clear plastic bag containing tar heroin.
The CI turned over the heroin to the detectives.
On May 31, Meier again worked with the CI to arrange another controlled buy from
Conover, this time, a quarter -
ounce of heroin for $ 350. The CI went to Conover' s apartment,
chatted a little, and " completed the deal." Report of Proceedings ( RP) ( Oct. 12, 2012) at 22.
On July 7, Meier organized a third controlled buy for the CI to purchase a quarter -ounce
of heroin from Conover for $350. This transaction was recorded with a wire and a video camera.
Again, the CI went into Conover' s home, talked, and " made the deal." RP ( Oct. 12, 2012) at 23.
The State arrested Conover.
2
No. 44175 -6 -II
II. PROCEDURE
The State charged Conover with three counts of selling heroin within 1, 000 feet of a
2
school bus route stop. The case proceeded to a jury trial.
A. Trial
Detectives Hanson and Meier testified to the facts previously set forth. Hanson also
testified that, based on his experience with narcotics, ( 1) individuals could pay as low as $ 20 for
a " hit," a tenth of a gram, of heroin; ( 2) heroin users did not tend to " stockpile" heroin, RP ( Oct.
11, 2012) at 60; ( 3) users would usually buy enough heroin for only a day' s use, spending about
10 to 20 dollars at a time; ( 4) a quarter -ounce of heroin was more than anyone would use in a
day; ( 5) someone who bought a quarter -ounce would probably break it up and sell it, keeping " a
little bit of that for their own usage." RP ( Oct. 11, 2012) at 38.
The CI testified about his three heroin purchases from. Conover. During the CI' s
testimony, the State played the audio recording of the July 7 transaction, which included
discussion of the $ 350 purchase price and to whom the CI would resell the drugs. Victoria Giles,
dispatcher, driver, and trainer for the Longview School District, testified that the May 13
controlled buy location was on a school bus route stop for the Longview School District.
Longview Police Corporal Timothy Watson, assigned to surveil all three transactions,
testified that the May 31 and July 7 transactions took place on Niblett Way, within 1, 000 feet
from a school bus route stop. He also testified that a typical dose of heroin for " maintenance"
users was about 0. 2 to a half - ram or less if they were not " getting high" but " just maintaining"
g
to " stay well." RP ( Oct. 12, 2012) at 75 -76. People who " abuse the drug" to get high typically
2 VUCSA, ch. 69. 50 RCW.
3
No. 44175 -6 -II
inject up to a gram or a gram and a half. RP ( Oct. 12, 2012) at 76. Watson explained that
informants would generally not be sent to buy large quantities, such as a pound, because "[ r] ed
flags would go up." RP ( Oct. 12, 2012) at 77. Watson also testified that ( 1) dealers who would
buy an ounce, half ounce,
- or quarter- ounce, would "[ break] it down further to sell to street
dealers," RP ( Oct.. 12, 2012) at 79; ( 2) dealers who purchased quarter- ounces would likely break
them down into " eighth amounts, cut this in half ... an eighth of an ounce," equivalent to three-
and- a-half grams, and then break them down even further to a sixteenth of an ounce, a " teener,"
about 1. 7 grams, closer to what an " end user might be using," RP ( Oct. 12, 2012) at 79 -80; and
3) a maintenance user would break down a " teener" into even smaller amounts, called a " point
one, point two and so on." RP ( Oct. 12, 2012) at 80. Watson opined that an " end user" would
not be expected to buy a quarter -ounce at a time and that it was not common for end users to
save their money to buy larger quantities at once. RP ( Oct. 12, 2012) at 80.
B. Jury Instructions
Outside the presence of the jury, the parties discussed the jury instructions with the trial
court. Conover had earlier objected to the State' s proposed reasonable doubt instruction on
grounds that the definition was sufficient without the " abiding- belief' language. RP ( Oct. 12,
2012) at 3.. He did not object to any of the other jury instructions. Overruling Conover' s
objection, the trial court gave the State' s reasonable doubt instruction that included the " abiding -
belief' language. RP ( Oct. 12, 2012) at 4.
The trial court also instructed the jury to consider that a separate crime was charged in
each count and that the State had to prove each count beyond a reasonable doubt. For the special
verdicts, the trial court instructed the jury to determine ( 1) whether Conover' s offenses took
No. 44175 -6 -II
place within a school bus route stop, and ( 2) whether the State had proved the aggravating
circumstances beyond a reasonable doubt ( whether the offense involved at least three separate
transactions in which controlled substances were sold, transferred, or possessed with intent to do
so and whether the offense involved an attempted or actual sale or transfer of controlled
substances in quantities substantially larger than for personal use).
C. Courtroom Locked Half Hour beyond Lunch Break
After the jury was instructed, Conover' s counsel informed the trial court that the main
entry door to the courtroom had been locked and a " Mr. Morgan" had tried to enter.3 RP ( Oct.
12, 2012) at 175 -76. The prosecutor responded that ( 1) the main entry door to the courtroom had
been locked over the lunch hour because ( a) there were valuable items left in the courtroom and
b) they closed the courtroom during the lunch hour as a safety precaution when there were no
courtroom proceedings; and ( 2) it " seemed to be like about 15 — maybe 15 minutes" that the door
was locked and that when Mr. Morgan had tried to enter the courtroom, he " was let in almost
immediately once [
they] discovered that it was locked." RP ( Oct. 12, 2012) at 176. The trial
court found no harm in the inadvertent locking of the courtroom door, especially when as soon as
it was known that Mr. Morgan was trying to enter, the door was immediately opened. Conover
neither objected nor moved for a mistrial based on this incident.
3 More specifically, Conover' s counsel explained:
We should probably just put on the record the issue with respect to —and I can' t
recall specific times, your Honor, but with respect to the main entry door that was
locked. I don' t know what your Honor recalls, but the jury was seated, your
Honor was reading jury instructions. If I recall correctly, the individual was
trying to open the door right about the time you had completed reading jury
instructions, I don' t recall specifics on that, but the door was locked.
RP ( Oct. 12, 2012) at 175.
5
No. 44175 -6 -II
D. Verdict and Sentencing
The jury found Conover guilty of three counts of delivery of a controlled substance. It
also returned special verdicts finding that ( 1) Conover had delivered the controlled substances
within 1, 000 feet of a school bus route stop designated by a school district and ( 2) Conover' s
crime was a major violation of the VUSCA, involving the attempted or actual sale or transfer of
controlled substances in quantities substantially larger than for personal use.
At sentencing, other than Conover' s mentioning that he might have three or four prior
convictions, there was no further discussion about Conover' s offender score or criminal history.
The State told the trial court that ( 1) Conover' s initial standard sentencing range was 20 to 60
months of confinement for each delivery count; ( 2) the three school bus route stop enhancements
would add 24 months to the standard range sentence for each count, running consecutively for a
total of 72 additional months; and ( 3) because the jury had found four different aggravating
factors ( three of which were that Conover had delivered substantially more controlled substances
than an amount for personal use), the State recommended that the trial court also impose
exceptional 10 -year sentences for each count to run consecutively.
The trial court sentenced Conover to a total of 120 months of confinement: 48 months
for each of his three delivery convictions, to run concurrently with each other; and an additional
24 months ( school bus route stop enhancement) on each count, to run consecutively to each 48-
6
No. 44175 -6 -II
month sentence for the underlying convictions. 4 The trial court, however, did not impose an
exceptional sentence based on the VUCSA aggravating factors under RCW 9. 94A.535 as the
State had recommended. Although the State introduced no documentation and Conover did not
stipulate to his prior convictions, Conover' s judgment and sentence included a list of his prior
criminal history. Conover did not object.
Conover appeals.
ANALYSIS
I. COURTROOM DOORS LOCKED DURING AND HALF HOUR BEYOND LUNCH BREAK
For the first time on appeal, Conover argues that the trial court violated his First and
Sixth Amendment rights to a public trial, asserting that the trial court locked the courtroom doors
for half an hour " while the court instructed the jury" without first evaluating the Bone -Clubs
factors. Br. of Appellant at 8 -9. Neither the law nor the record supports this argument.
Whether a defendant' s right to a public trial has been violated is a question of law, which
we review de novo. State v. Brightman, 155 Wn.2d 506, 514, 122 P. 3d 150 ( 2005). A trial court
violates a defendant' s right to a public trial if it closes the courtroom during a public proceeding
4
RCW 9. 94A.533( 6) provides:
An additional twenty -
four months shall be added to the standard sentence range
for any ranked offense involving a violation of chapter 69. 50 RCW if the offense
was also a violation of RCW 69. 50. 435 or 9. 94A. 827. All enhancements under
this subsection shall run consecutively to all other sentencing provisions, for all
offenses sentenced under this chapter.
Emphasis added.)
5
State v. Bone -Club, 128 Wn.2d 254, 906 P. 2d 325 ( 1995).
7
No. 44175 -6 -II
without first determining if such closure is warranted under Bone- Club. 6 Bone -Club, 128 Wn.2d
at 258 -59. The closure of a courtroom " occurs when the courtroom is completely and
purposefully closed to spectators so that no one may enter and no one may leave." State v.
Lormor, 172 Wn.2d 85, 93, 257 P. 3d 624 ( 2011) ( emphasis added). These rules come into play
when the public is fully excluded from proceedings within a courtroom. State v. Easterling, 157
Wn.2d 167, 172, 137 P. 3d 825 ( 2006) ( all spectators, including defendant and his counsel,
excluded from the courtroom while codefendant plea- bargained); Brightman, 155 Wn.2d at 511
entire voir dire closed to all spectators); In re Pers. Restraint of Orange, 152 Wn.2d 795, 808,
100 P. 3d 291 ( 2004) ( entire voir dire closed to all spectators); Bone -Club, 128 Wn.2d at 257, ( no
spectators allowed in courtroom during a suppression hearing).
Such a closure occurs only when the courtroom is " completely and purposefully closed to
spectators so that no one may enter and no one may leave "; thus, the inadvertent exclusion of
only one person from a courtroom does not constitute a " closure" for Bone -Club purposes.
Lormor, 172 Wn.2d at 93 ( exclusion of defendant' s terminally ill daughter for fear of distraction
6 Before a trial court closes a proceeding to the public, it must consider the following factors and
enter specific findings on the record:
1. The proponent of closure or sealing must make some showing [ of a compelling
interest], and where that need is based on a right other than an accused' s right to a
fair trial, the proponent must show a " serious and imminent threat" to that right.
2. Anyone present when the closure motion is made must be given an opportunity
to object to the closure.
3. The proposed method for curtailing open access must be the least restrictive
means available for protecting the threatened interests.
4. The court must weigh the competing interests of the proponent of closure and
the public.
5. The order must be no broader in its application or duration than necessary to
serve its purpose.
Bone -Club, 128 Wn.2d at 258 -59.
8
No. 44175 -6 -II
was not courtroom closure). See also State v. Berg, 177 Wn. App. 119, 126 -27, 310 P. 3d 866
2013) ( exclusion of defendants' friend from courtroom observation did not constitute courtroom
closure), review denied, 179 Wn.2d 1028 ( 20.14).
Here, the courtroom was not " completely and purposefully" closed to the public. Lormor,
172 Wn.2d at 93 ( emphasis added). The trial court never " purposefully" locked the courtroom
doors or excluded anyone from court proceedings. Rather, the courtroom was locked over the
lunch hour for security purposes, when there were no proceedings; and it remained locked
inadvertently for about 30 minutes after the lunch break. Moreover, once the trial court realized
that the courtroom was locked, it immediately opened the doors, thereby remedying the problem.
We hold that no courtroom closure occurred and, thus, the trial court did not violate Conover' s
right to a public trial.
II. REASONABLE DOUBT JURY INSTRUCTION
Conover next argues that the trial court erred in overruling his objection to the reasonable
doubt instruction. He contends that the reasonable doubt instruction confused the jury because
it stated that the jurors had to have an " abiding belief in the truth of the charge." Br. of
7
Jury Instruction 3 on reasonable doubt read:
The defendant has entered a plea of not guilty... The State is the plaintiff
and has the burden of proving each element of each crime beyond a reasonable
doubt. The defendant has no burden of proving that a reasonable doubt exists.
A defendant is presumed innocent. This presumption continues
throughout the entire trial unless during your deliberations you find it has been
overcome by the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise from
the evidence or lack of evidence. It is such a doubt as would exist in the mind of
a reasonable person after fully, fairly and carefully considering all of the evidence
or lack of evidence. If, after such consideration, you have an abiding belief in the
truth of the charge, you are satisfied beyond a reasonable doubt.
CP at29.
9
No. 44175 -6 -II
Appellant at 13. Our Supreme Court has already reviewed and upheld this instruction in State v.
Bennett, 161 Wn.2d 303, 318, 165 P. 3d 1241 ( 2007), which controls here. Thus, Conover' s
challenge fails.
The trial court' s reasonable doubt instruction mirrored 11 Washington Practice: Pattern
Jury Instructions: Criminal 4. 01, at 85 ( 3d ed. 2008) ( WPIC 4. 01), which contains the " abiding
belief' language that Conover challenges. Our Supreme Court expressly approved the use of
WPIC 4. 01 in Bennett, 161 Wn.2d at 318. See also State v. Pirtle, 127 Wn.2d 628, 658, 904
P. 2d 245 ( 1995) ( holding that the " abiding belief' language did not diminish the pattern
instruction defining " reasonable doubt "), cert. denied, 518 U. S. 1026 ( 1996). Moreover, in a
recent Division One opinion, the defendant raised the same challenge that Conover raises here to
the " abiding belief" language; and, like Conover, he argued that the language was similar to the
impermissible " speak the truth" remarks in State v. Emery, 174 Wn.2d 741, 760, 278 P. 3d 653
2012). State v. Fedorov, Wn. App. , 324 P. 3d 784, 790 ( 2014). Relying on Bennett
and Pirtle, Division One distinguished Emery, asserting that Emery' s " speak the truth" language
was improper because it expressly misstated the jury' s role, whereas the " abiding belief'
language accurately informed the jury that its job is to determine whether the State proved the
charged offenses beyond a reasonable doubt. Fedorov, 324 P. 3d at 790. We find the Fedorov
rationale persuasive and adopt it here.
We hold that the trial court did not err in giving the reasonable doubt instruction
containing the " abiding belief' language.
10
No. 44175 -6 -II
III. SENTENCING
A. Offender Score —No Proof of Criminal History
For the first time on appeal, Conover challenges the trial court' s calculation of his
offender score. He contends that the trial court erred by calculating his offender score based on
the State' s statement of criminal history submitted with no supporting evidence. The State
concedes this error and agrees that we should remand the case to the trial court for resentencing,
at which the State will have the opportunity to prove Conover' s prior convictions under State v.
Hunley, 175 Wn.2d 901, 287 P. 3d 584 ( 2012). We accept the State' s concession and proposal
for remand.
B. Running School Bus Route Stop Enhancements Consecutively to Underlying Sentences
Conover next argues that the trial court erred in running his school bus route stop
enhancements consecutively to his sentences for his underlying crimes, rather than concurrently
under RCW 9. 94A.533. This challenge also fails.
Conover' s challenge requires us to look at the statute' s plain language to give effect to
legislative intent. State v. Jacobs, 154 Wn.2d 596, 600, 115 P. 3d 281 ( 2005). We determine a
statute' s plain meaning from the ordinary meaning of its language, as well as from the statute' s
general context, related provisions, and the statutory scheme as a whole. Jacobs, 154 Wn.2d at
600. We also interpret statutes to give effect to all language in the statute, to render no portion
meaningless or superfluous, and to avoid absurd results. State v. P., 149 Wn.2d 444, 450, 69
J.
P. 3d 318 ( 2003); State v. Neher, 112 Wn.2d 347, 351, 771 P. 2d 330 ( 1989).
Our legislature has expressly and unequivocally provided mandatory enhanced sentences
for certain drug offenses:
11
No. 44175 -6 -II
An additional twenty -four months shall be added to the standard sentence range
for any ranked offense involving a violation of chapter 69. 50 RCW if the offense
was also a violation of RCW 69. 50. 435 or 9. 94A. 827. All enhancements under
this subsection shall run consecutively to all other sentencing provisions, for all
offenses sentenced under this chapter.
RCW 9. 94A. 533( 6) ( emphasis added). Conover' s three counts of delivering drugs occurred
w] ithin one thousand feet of a school bus route stop designated by [ a] school district," offenses
that were also violations of RCW 69. 50. 435( 1)( c), which the above RCW 9. 94A.533( 6)
enhancement provision expressly includes.
We reject Conover' s argument that only other types of "drug- crime" enhancements listed
in RCW 9. 94A.533 run consecutively with his base sentences for his underlying criminal
convictions, not enhancements such as his school bus route stop enhancements. Br. of Appellant
at 23. The plain language of the statute unambiguously requires the sentencing court to add 24
months to a criminal defendant' s standard range sentence for any offense under chapter 69. 50
RCW if the offense also violates RCW 69. 50. 435. RCW 9. 94A.533( 6). The statute also plainly
states that all enhancements under RCW 9. 94A.533( 6) shall run consecutively to all other
sentencing provisions. RCW 9. 94A. 533( 6). In addition to the plain meaning of this
enhancement statute, the legislature amended RCW 9. 94A.533( 6) in 2006 to require drug- related
sentencing enhancements to be served consecutively " to all other sentencing provisions." See
LAws of 2006, ch. 339, § 301.
Here, the jury found Conover guilty of three counts of delivery of a controlled substance,
heroin, under RCW 69. 50. 401, and that these three offenses took place within 1, 000 feet of a
school bus route stop designated by a school district, in violation of RCW 69. 50.435( 1)( c).
Thus, RCW 9. 94A.533( 6) required the trial court to run his school bus route stop enhancements
12
No. 44175 -6 -II
consecutively" to his base sentences and to each other. See CP at 65, RP ( Oct. 24, 2012) at 19.
We hold that the trial court did not err in running these sentencing enhancements consecutively.
C. VUCSA Aggravating Factor Findings, " Major Violations"
findings8
Conover next argues that we should strike the jury' s aggravating VUCSA factor
from his record because his convictions were not " major violations of the Uniform Controlled
Substances Act." Br. of Appellant at 24. He asserts that this aggravator does not apply to his
heroin sales because ( 1) each of the three convictions was a separate " offense" that did not
involve three transactions, and ( 2) the State failed to prove that the quantities of heroin involved
were " substantially larger than for personal use." Br. of Appellant at 26. Conover acknowledges
that the trial court did not impose an exceptional sentence based on the jury' s finding of
aggravating factors. Instead, he challenges these aggravator findings because " they are on his
record." Br. of Appellant at 24. These challenges fail.
1. Three separate transactions
Conover argues that the first challenged statutory aggravating factor does not apply under
a plain reading of RCW 9. 94A.535( 3)( e)( i) because ( 1) this statutory factor requires a " current
offense" that " involved at least three separate transactions," and ( 2) the State chose to charge him
with three separate " current offenses" rather than a single offense comprising three separate
8 RCW 9. 94A.535 lists aggravating circumstances that constitute substantial and compelling
reasons for an upward departure from the standard range sentencing guidelines. One of those
circumstances is when the defendant' s current offense is a " major VUCSA." RCW
9. 94A. 535( 3)( e). The presence of any of the six statutory factors may identify a current offense
as a " major VUCSA." RCW 9. 94A. 535( 3)( e)( i) -(
vi). Conover challenges two of these six
statutory factors that the jury considered in determining that his current offense was a " major
VUCSA": ( 1) that his current offense involved at least three separate transactions, and ( 2) that
the quantities involved were substantially larger than for personal use.
13
No. 44175 -6 -II
transactions. Br. of Appellant at 25 ( citing RCW 9. 94A.535( 3)( e)( i)). Because Conover cites no
authority to support his " plain meaning" argument, we need not consider it. RAP 10. 3( a)( 6).
Nevertheless, we note that a plain reading of the statute shows RCW 9.94A.535( 3)( e)( i)
applies when there are three separate transactions involving a controlled substance. See State v.
9
Reynolds, 80 Wn. App. 851, 856, 912 P. 2d 494 ( 1996). Here, Conover was charged with and
the jury heard evidence of three " separate transactions in which controlled substances were
10:
sold " twice in May 2011 and once in July 2011. Thus, the trial court did not err in instructing
the jury to consider whether Conover' s offense involved at least three separate transactions in
which controlled substances were sold, transferred, or possessed with intent to do so.
2. Quantity " substantially larger than for personal use"
Conover argues that the second challenged aggravator does not apply because the State
failed to prove that the quantities of heroin he sold were " substantially larger than for personal
use." Br. of Appellant at 26 ( quoting RCW 9. 94A. 535( 3)( e)( ii)). We disagree.
In determining whether sufficient evidence supports a conviction, we consider " whether,
after viewing the evidence in the light most favorable to the [ State], any rational trier of fact
could have found the essential elements of the [ charged] crime beyond a reasonable doubt."
State v. Green, 94 Wn.2d 216, 221, 616 P. 2d 628 ( 1980) ( quoting Jackson v. Virginia, 443 U. S.
9 Melina Reynolds was charged with two counts of delivery of a controlled substance and one
count of delivery of a material in lieu of a controlled substance. Reynolds, 80 Wn. App. at 853.
The issue was whether Reynolds' third transaction constituted an actual " sale" because it did not
involve an actual controlled Noting that the plain language of former RCW
substance.
9. 94A. 533( 3)( e)( i) required at least three separate transactions involving actual controlled
substances, we held that Reynolds' third transaction did not count. Nevertheless, we affirmed
her exceptional sentence based on a different qualifying factor that established a major violation
of the controlled substances act. Reynolds, 80 Wn. App. at 856, 859.
10 RCW 9. 94A.535( 3)( e)( i).
14
No. 44175 -6 -II
307, 339, 99 S. Ct. 2781, 61 L. Ed. 2d 560 ( 1979)). A claim of insufficient evidence admits the
truth of the State' s evidence and all inferences that reasonably can be drawn therefrom. State v.
Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). We must defer to the trier of fact on issues
of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State
v. Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970 ( 2004) ( citing State v. Cord, 103 Wn.2d 361,
367, 693 P. 2d 81 ( 1985)).
Here, the record shows that the State presented sufficient evidence that the quantities of
drugs he sold were substantially larger than for personal use. Detective Hanson testified that ( 1)
ounce
a quarter - of heroin was more than anyone would use in one day; ( 2) if an individual
purchases a quarter -ounce it is probably for resale purposes, keeping " a little bit of that for their
own usage," RP ( Oct. 11, 2012) at 38; and ( 3) heroin users do not tend to " stockpile" heroin,
instead buying enough for one or a few days at a time, spending about 10 to 20 dollars at a time.
RP ( Oct. 11, 2012) at 60. Corporal Watson testified that ( 1) a typical dose of heroin for
maintenance users was about 0. 2 to about 0. 5, or a half gram or less if "they' re just maintaining"
and up to a gram or gram and a half for people who chose to abuse the drug, RP ( Oct. 12, 2012)
at 76; ( 2) dealers who buy an ounce, half ounce, or ounce
quarter - usually "[ break] it down
further to sell to street dealers," RP ( Oct. 12, 2012) at 79; ( 3) dealers who purchase quarter -
ounces would likely break it down to an eighth of an ounce, about three- and -a -half grams, and
break that down even further to a sixteenth of an ounce, a " teener," RP ( Oct. 12, 2012) at 79,
about 1. 7 grams, closer to what an " end user might be using," RP ( Oct. 12, 2012) at 80; ( 4) a
maintenance user would break down a ` teener" into even smaller amounts called a " point one,
point two and so on," RP ( Oct. 12, 2012) at 80; and ( 5) an end user would not be expected to buy
15
No. 44175 -6 -II
a quarter -ounce at a time and it was not common for end users to save their money to buy larger
quantities at once. RP ( Oct. 12, 2012) at 80.
Conover' s three transactions involved quarter -
ounce sales, more than the amount
generally purchased for personal use: Conover was selling quarter- ounces of heroin, whereas an
end user would likely possess about a sixteenth of an ounce. The State thus presented sufficient
evidence to show that the quantities of heroin Conover sold were substantially larger than for
personal use, for purposes of proving the RCW 9. 94A.535( 3)( e)( ii) aggravator and, thus,
supporting the jury' s finding.
3. Jury Instruction on " Substantially Larger than for Personal Use"
Conover also argues for the first time on appeal that the " substantially larger than for
personal use" aggravating factor is unconstitutionally vague. Br. of Appellant at 27. Conover
contends that the absence of "legally fixed standards" accorded the jury " standardless discretion"
to decide this factor, violating due process. Br. of Appellant at 28. This argument fails; this
aggravating factor is not unconstitutionally vague as applied here.
We may refuse to review a claim of error that the defendant did not raise below unless
the error is manifest and affects a constitutional right. RAP 2. 5( a)( 3). The defendant must also
show that the alleged error was not harmless beyond a reasonable doubt. State v. Scott, 110
Wn.2d 682, 687, 757 P. 2d 492 ( 1998). Due process principles are usually satisfied if a trial court
instructs the jury on ( 1) each element of the charge, and ( 2) that the State must prove each
element beyond a reasonable doubt. Scott, 110 Wn.2d at 690.
The constitution does not require that the meanings of particular terms used in an
instruction be specifically defined. Scott, 110 Wn.2d at 691. Accordingly, jury instructions that
16
No. 44175 -6 -II
do not define particular terms are not " manifest" constitutional errors that can be raised for the
first time on appeal. Scott, 110 Wn.2d at 688; see also State v. O' Hara, 167 Wn.2d 91, 107, 217
P. 3d 756 ( 2009) ( failure to provide statutory definition of malice when jury was instructed on all
elements of the crime did not constitute manifest constitutional error).
Conover did not object to any jury instruction other than the reasonable doubt instruction.
Because the trial court instructed the jury about each element of the crime charged, including the
aggravating factors, its failure to provide a specific definition of " substantially larger than for
personal use" does not amount to constitutional error. Thus, Conover cannot raise this vagueness
issue for the first time on appeal. RAP 2. 5( a)( 3).
11
We affirm Conover' s convictions, vacate his sentence, and remand for resentencing.
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.
We concur:
11 At the resentencing hearing, the State may prove Conover' s criminal history for purposes of
establishing his correct offender score..
17