FILED
DECEMBER 1, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 32869-4-111
)
Respondent, )
) OPINION PUBLISHED
V. ) IN PART
)
JOHN MARK CROWDER, )
)
Appellant. )
PENNELL, J. - John Crowder raped a 14-year-old girl at gunpoint after supplying
her two friends with a substance purported to be marijuana. He was convicted after a jury
trial. The State's evidence at trial, while strong, lacked an essential component: proof the
substance distributed by Mr. Crowder was in fact marijuana. Based on this error, we
reverse Mr. Crowder's two convictions for distribution of controlled substances. Mr.
Crowder' s rape conviction is affirmed in full.
FACTS1
Two juvenile males, S.I. and Z.H., met Mr. Crowder while out walking on a July
night. Mr. Crowder initially invited the two males to join him in setting off some
1
Because Mr. Crowder's challenge goes to the sufficiency of the evidence, we
construe the facts in the light most favorable to the State. State v. Salinas, 119 Wn.2d
192, 201, 892 P.2d 1068 (1992).
No. 32869-4-III
State v. Crowder
fireworks. They then attended a nearby bonfire. While at the bonfire, Mr. Crowder asked
S.I. and Z.H. if they wanted to smoke some marijuana. Both said yes.
Mr. Crowder took S.I. and Z.H. to his house to obtain marijuana. All three went
inside the garage. Once inside, Mr. Crowder retrieved a substance believed to be
marijuana from prescription bottles located in a wooden cabinet. Mr. Crowder and the
two young men then smoked the apparent marijuana. When they finished, all three got
into Mr. Crowder's Jeep and headed back to the bonfire.
After returning to the bonfire, Mr. Crowder and the two boys drank vodka shots.
Z.H. then suggested inviting 14-year-old I.D. to join the group. After exchanging text
messages, I.D. agreed to come out. She snuck out of her house through a window and
Mr. Crowder picked her up in his Jeep. I.D. had never met Mr. Crowder before.
Back at the bonfire, S.I. fell asleep and Z.H. passed out. I.D. was starting to get
tired when Mr. Crowder came up behind her, pulled her head back, and tried to pour
vodka down her throat. Angered, I.D. got up and started to head home. As she walked by
the Jeep, Mr. Crowder grabbed I.D. and turned her around. I.D. told Mr. Crowder to let
her go. He did not. Mr. Crowder removed a gun from his pocket and ordered 1.D. to
undress and get into the back of his Jeep. He held the gun up against I.D.'s head and
pulled back the trigger. At this point, I.D. complied with Mr. Crowder's demands.
2
No. 32869-4-III
State v. Crowder
Once inside the Jeep, Mr. Crowder raped I.D. The assault lasted approximately an
hour. Eventually I.D. was able to get up, clothe herself, and run home. She snuck back in
through the window and disclosed the rape several days later. At this point, the police
began an investigation.
Five days after the assault, law enforcement executed a search warrant at Mr.
Crowder's house. During the search, police found several firearms, including a revolver.
Police also recovered prescription bottles containing a leafy substance from Mr.
Crowder's garage. One of the bottles was tested for its tetrahydrocannabinol (THC)
content and determined to contain marijuana. An officer showed the revolver seized from
Mr. Crowder's house to I.D. She identified it as the same gun used by Mr. Crowder. The
gun was never test fired.
Mr. Crowder was charged with rape in the first degree with a firearm enhancement
and a special allegation that the victim was under the age of 15, or in the alternative, rape
of a child in the third degree, as well as with two counts of distribution of a controlled
substance to a person under the age of 18. The matter proceeded to trial. During voir
dire, a prospective juror indicated he had been a child sex abuse victim. Defense counsel
moved to strike the juror for cause. The State indicated it had no objection, but asked to
3
No. 32869-4-III
State v. Crowder
approach the bench. A bench conference occurred off the record. When the conference
ended the court excused the juror.
The jury convicted Mr. Crowder of the offenses against him as charged. He
received a sentence of 360 months to life. Mr. Crowder appeals.
ANALYSIS
Mr. Crowder's appeal proposes three bases for reversal: First, he claims the trial
court's off-the-record discussion during voir dire violated his public trial right. Second,
he argues the State presented insufficient evidence the substance distributed to S.I. and
Z.H. met the legal definition of marijuana. Finally, he contends insufficient evidence
supports the State's claim that he used an actual firearm while raping I.D. Mr. Crowder's
second claim is persuasive. We reject the other two.
Public trial right
The right to a public trial is guaranteed by article I, sections 10 and 22 of the state
constitution. State v. Love, 183 Wn.2d 598, 604-05, 354 P.3d 841 (2015), cert. denied,
136 S. Ct. 1524 (2016). When reviewing a public trial claim, we follow a three-step
analysis, asking: (1) whether the public trial right attaches to the proceeding at issue, (2)
if so, whether the courtroom was closed, and (3) whether the closure was justified. Id. at
605. "The appellant carries the burden on the first two steps; the proponent of the closure
4
j
No. 32869-4-III
I
,J
l,j
State v. Crowder
'
J
carries the third." Id.
l
Pi
Mr. Crowder claims the trial court violated his right to a public trial when it
l
J engaged counsel in an off-the-record discussion during a juror challenge. While we agree
II
1 with Mr. Crowder that the public trial right attaches to this aspect of jury selection, see id.
I
! at 605-06, we do not agree there was a closure. No part of the juror challenge took place
Il
l
l outside of direct public hearing and view. While in open court, the juror was questioned,
II Mr. Crowder's counsel made his motion for cause, and the State concurred. At this point,
I!
l,, the challenge was complete. There was nothing further to make public. Although the
j parties engaged the judge in an unrecorded side bar prior to the court entering its formal
Ii ruling, this interruption does not change the fact that the substance of juror challenge
t! occurred entirely in open court.
I Mr. Crowder's public trial argument would only have traction ifhe could show
ll something substantive occurred during the off-the-record side bar. Our courts utilize the
I
"experience and logic" test to determine whether a particular court procedure implicates
I
II the public trial right. Id. at 605. Side bar conferences generally do not meet this test
I because they historically have been closed to the public and because public access would
I
I
not positively enhance the proceedings. State v. Smith, 181 Wn.2d 508,511,334 P.3d
J
1
I 1049 (2014). Mr. Crowder fails to meet his burden of establishing that the side bar in his
j
I
j
5
No. 32869-4-111
State v. Crowder
case falls outside the general rule. The State proffers the side bar discussion simply
addressed non-substantive procedural matters regarding the trial court's motions practice.
Mr. Crowder does not contest this proffer and nothing in the record suggests it is
inaccurate. While it would have been preferable for the court to have ensured the side bar
was recorded, see id. at 518, we are satisfied the present circumstances do not permit Mr.
Crowder's public trial challenge.
Insufficient evidence of marijuana
Mr. Crowder argues the State failed to meet its burden of proof for the two counts
of distributing a controlled substance to a person under the age of 18. Specifically, he
maintains there is no evidence that the substance he provided to S.I. and Z.H. contained a
THC content of 0.3 percent as required by statute. 2
Evidence is sufficient to support a conviction where, 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 crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d
192, 201, 829 P .2d 1068 ( 1992). When an appellant challenges the sufficiency of the
evidence, he "admits the truth of the State's evidence and all inferences that reasonably
2At the time of trial, the applicable statute was codified at RCW 69.50.lOl(t). The
same statutory definition applies today, but is now found at subsection (v).
6
No. 32869-4-111
State v. Crowder
can be drawn therefrom." Id. Appellate courts defer to the trier of fact on issues of
conflicting testimony, witness credibility, and persuasiveness of the evidence. State v.
Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). Circumstantial evidence carries
the same weight as direct evidence. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410
(2004).
The parties do not dispute the elements the State was required to prove at trial.
Under RCW 69.50.406(2), the State must prove the defendant was a person over the age
of 18 and that he distributed a controlled substance, including marijuana, to a person
under 18 who is at least three years his junior. For purposes of this crime, "' [ m]arijuana'
... means all parts of the plant Cannabis, whether growing or not, with a THC
concentration greater than 0.3 percent on a dry weight basis .... " Former RCW
69.50.lOl(t) (2014).
While the parties agree the State must prove distribution of a controlled substance
and that, in the case of marijuana, the State must prove a THC concentration of greater
than 0.3 percent, the dissent does not accept this premise. Under the dissent's
construction, the statute governing distribution of a controlled substance to a minor
differs materially from the crime of distribution of a controlled substance in that the latter
requires proof of the identity of the controlled substance, but the former does not. We
7
No. 32869-4-III
State v. Crowder
find no such distinction. The statute governing distribution to minors (RCW 69.50.406)
incorporates the distribution statute (RCW 69.50.401) and simply adds elements
regarding the age of the distributor and recipient. Compare RCW 69.50.401 with RCW
69.50.406. Given the State must prove the presence of a controlled substance in a normal
distribution case, the same is necessarily true in a case alleging distribution to a minor.
The requirement that marijuana, to qualify as a controlled substance, must have a
THC content of at least 0.3 percent is not something that can be dismissed as an
unimportant definition. Again, the parties do not dispute this point. Nor should they.
The difference between a definitional statutory requirement and an element is generally
pertinent to issues such as the adequacy of an information or the court's "to convict"
instructions. See State v. Porter, 186 Wn.2d 85,375 P.3d 664 (2016) (allegation of
charging error regarding definition of possession); State v. Johnson, 180 Wn.2d 295, 325
P.3d 135 (2014) (allegation of charging error regarding definition of"restrain"); State v.
Allen, 176 Wn.2d 611, 294 P.3d 679 (2013) (allegation of charging error and omission of
"true threat" definition from jury's "to convict" instruction); State v. Lorenz, 152 Wn.2d
22, 93 P .3 d 13 3 (2004) (allegation of omission of "sexual gratification" definition from
jury's "to convict" instruction). But the same is not true when it comes to a sufficiency
challenge. The State is obliged to present sufficient evidence to establish that a
8
No. 32869-4-111
State v. Crowder
defendant's conduct falls within the scope of a criminal statute, regardless of whether the
statute's requirements are elemental or definitional. See State v. Stevens, 158 Wn.2d 304,
309-10, 143 P.3d 817 (2006) (characterization of a statutory requirement as definitional
does not relieve State of burden of proof). See also State v. Rich, 184 Wn.2d 897, 365
P.3d 746 (2016) (analyzing whether State presented sufficient evidence to meet statutory
definition of recklessness); State v. McKague, 172 Wn.2d 802, 805, 262 P.3d 1225 (2011)
(analyzing whether State presented sufficient evidence to meet statutory definition of
"substantial bodily harm"). In sum, no matter which label applies, the State was obliged
to present sufficient evidence of 0.3 percent THC in order to sustain Mr. Crowder's
conviction.
Although the parties agree about the State's evidentiary burden, there was little
discussion at trial about THC. On cross-examination, the State's toxicology expert
testified that to classify a substance as marijuana, it must contain more than 0.3 percent
THC. The expert also testified on direct examination that she had examined one of the
containers seized from Mr. Crowder's home and determined it contained marijuana.
Read in total, the expert's testimony was sufficient to establish the substance found inside
the container met the legal definition of marijuana. But the testimony did not establish
the marijuana tested by the toxicologist had the same THC content as the substance
9
No. 32869-4-111
State v. Crowder
provided to S.I. and Z.H.
As pointed out by the dissent, a toxicologist can sometimes provide random
sampling testimony, indicating a tested substance was most likely similar to an untested
substance. See State v. Caldera, 66 Wn. App. 548, 832 P.2d 139 (1992). However, such
testimony must be based on the foundation that the tested and untested materials appeared
similar. Id. No such foundation was established in this case. Because the State's
toxicologist was not in a position to compare the substance tested in the lab to that
consumed by S.I. and Z.H., random sampling did not provide the State an avenue of
proof. 3
The testimony of S.I. and Z.H. also failed to establish a link between the tested
substance and the substance that was consumed. At the time of the police search, at least
four pill bottles 4 were located inside Mr. Crowder's garage. Two bottles were amber-
colored and located in the wooden cabinet described by S.I. and Z.H. Two more were
3
While the foundation for random sampling testimony was not met in this case,
such testimony would be unlikely by itself to establish THC content. When the fact to be
established is not merely the identity of a drug, but the purity or toxicity level, visual
similarity would not appear to be sufficient to permit extrapolation. Instead, further
testimony, explaining why similar toxicity can be assumed from similar appearance would
need to be presented.
4
In his testimony, S.I. described seeing "bottles" of marijuana. 2 Verbatim Report
of Proceedings (VRP) (Sept. 17, 2014) at 223. The State never clarified the number of
bottles observed by S.I.
10
No. 32869-4-111
State v. Crowder
taken from a satchel. These bottles appeared to be clear in color and bore marijuana
labels. All four bottles were potential sources of the substance distributed by Mr.
Crowder. Yet only one was tested. During trial, neither S.I. nor Z.H. described the color
of the bottle utilized by Mr. Crowder. Nor did they specify whether the bottle had a label.
The boys were never shown a bottle to confirm whether it appeared similar to the one
used by Mr. Crowder. Given the multiple possible sources of the substance distributed by
Mr. Crowder, the State's theory that it tested a representative sample is too speculative to
meet the substantial evidence requirement.
The testimony from S.I. and Z.H. also did not establish the potency of the
substance provided to them by Mr. Crowder. The two juveniles testified they were
familiar with marijuana and that the substance provided to them by Mr. Crowder made
them "feel high." But because the boys did not test the substance provided to them, their
use of the term "marijuana" does not carry the same technical meaning as the term
utilized by the toxicologist. Nor were the boys' experiences with marijuana sufficient to
establish potency. There was no testimony about the meaning of the 0.3 percent THC
cut-off level or whether a substance with less than 0.3 percent THC would be capable of
producing the psychological effects recounted by the two young men. There was not
11
No. 32869-4-111
State v. Crowder
even any testimony about whether 0.3 percent is a high, low, or average amount ofTHC. 5
Given this lack of context, testimony from the juveniles that they received a good "high"
from the substance provided to them by Mr. Crowder does not help the State satisfy its
burden.
Proof of THC content would not have been difficult, let alone impossible. Apart
from establishing a link between the bottle tested for THC and the one observed by S.I.
and Z.H., 6 the State could have introduced expert testimony regarding the nature of THC.
Information about the typical THC content of marijuana and the type of potency required
to produce sensations associated with being "high" could have provided the jury
sufficient evidence to conclude that the substance distributed by Mr. Crowder must have
had a THC content of at least 0.3 percent. But this was not done. The State did not give
the jury any information about the significance of a 0.3 percent THC level. Based on this
lack of information, the State failed to meet its burden. Mr. Crowder's marijuana delivery
5 These are not matters amenable to judicial notice. See State v. Barringer, 32 Wn.
App. 882, 888, 650 P.2d 1129 (1982) (court erred in taking judicial notice, throughjury
instruction, that valium is also known as diazepam when only diazepam was listed in the
statutory schedule of controlled substances), overruled on other grounds by State v.
Monson, 113 Wn.2d 833, 849-50, 784 P.2d 485 (1989).
6 Had the State produced such testimony, the evidence may still have been
insufficient. Given the marijuana had been consumed, the State's best evidence regarding
THC content would appear to have been expert testimony from a toxicologist or law
enforcement officer.
12
No. 32869-4-III
State v. Crowder
convictions must be reversed with prejudice.
Sufficiency of the firearm enhancement
Mr. Crowder contends insufficient evidence supports his firearm sentencing
enhancement because the State did not prove the firearm was operable as required by
RCW 9.41.010(9). We disagree for the reasons we recently set forth in State v. Tasker,
193 Wn. App. 575,373 P.3d 310, review denied, 186 Wn.2d 1013 (2016).
As explained in Tasker, evidence that a device appears to be a real gun and is
wielded during commission of a crime is sufficient circumstantial proof that the device is
an actual firearm, as defined by RCW 9.41.010. Tasker, 193 Wn. App. at 594. I.D.'s
testimony provided sufficient circumstantial proof in this case. She testified Mr. Crowder
threatened her with a gun and placed it to her head. She described the gun as having a
"spinning barrel," 2 Verbatim Report of Proceedings (Sept. 17, 2014) at 143, and later
identified the gun as a revolver seized from Mr. Crowder's house. The totality of these
circumstances sufficiently established that Mr. Crowder was armed with a real gun as
required by RCW 9.94A.533(3) and 9.41.010(9).
CONCLUSION
Mr. Crowder's conviction for first degree rape with a firearm enhancement is
affirmed. His convictions for distribution of controlled substances are reversed with
13
No. 32869-4-111
State v. Crowder
prejudice. This matter is remanded to superior court. In the unpublished portion of this
opinion, we reject the arguments set forth by Mr. Crowder in his statement of additional
grounds for review.
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder
having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it
is so ordered.
14
No. 32869-4-111
State v. Crowder
STATEMENT OF ADDITIONAL GROUNDS
Mr. Crowder makes several additional arguments for reversal in his statement of
additional grounds (SAG). The majority of his complaints pertain to facts outside the
current record. They include: allegations that the State manipulated witness testimony,
allegations that the State failed to investigate, allegations that defense counsel provided
ineffective assistance, and arguments regarding jury selection. We will not address facts
outside the record in the context of a direct appeal. Instead, the appropriate avenue for
relief is a personal restraint petition. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d
1251 (1995).
What follows is an examination of the claims of error that can be reviewed from
the record. None are meritorious.
Allegations of prosecutorial misconduct
Mr. Crowder complains the State engaged in misconduct by: withholding witness
interviews, making improper statements during closing argument, offering inflammatory
photographs into evidence, excluding information from law enforcement reports, and
improperly referring to his "rap sheet." SAG at 4.
The record does not suggest any misconduct or gamesmanship with respect to the
witness interviews. The prosecutor facilitated witness interviews without requiring court
15
No. 32869-4-111
State v. Crowder
order. Although the interviews did not take place until shortly before trial, this is not a
basis for finding misconduct. State v. Wilson, 149 Wn.2d 1, 65 P.3d 657 (2003).
None of Mr. Crowder's claims regarding closing argument warrant reversal. The
vast majority of Mr. Crowder's complaints did not generate an objection. 7 In this context,
appellate review is waived unless Mr. Crowder can establish the prosecutor's
misstatements were so "flagrant and ill intentioned" that a curative instruction would not
have cured the resultant prejudice. In re Pers. Restraint ofGlasmann, 175 Wn.2d 696,
704, 286 P.3d 673 (2012). This standard has not been met. Only two objections to the
prosecutor's closing were preserved by defense objection. 8 In both cases, the defense
objected that the prosecutor failed to accurately restate the record. We agree with the trial
court that the prosecutor's statements were merely arguments regarding what could be
inferred from the record. There was no misconduct.
7
These include: the prosecutor's statement that the victim "swore to tell the truth.
And she did." 4 VRP (Sept. 19, 2014) at 547. Requesting jurors not "give in to that
smoke screen." Id. at 555. The prosecutor's statement, "This is what happened." Id. at
557. The statement, "the man that did this to her." Id. at 564. The statement, "It's time
for justice to be served." Id. And the prosecutor's statement "don't get fooled." Id. at
595.
8 These include the prosecutor's statements regarding the juveniles' response to
Mr. Crowder's invitation to smoke marijuana and the prosecutor's statement that Mr.
Crowder could not be ruled out as the contributor to a trace amount of DNA
(deoxyribonucleic acid).
16
No. 32869-4-111
State v. Crowder
Mr. Crowder also contends the prosecutor committed misconduct by offering
inflammatory photographs and physical evidence. Again, no objection was made and Mr.
Crowder has not shown that a curative instruction would not have offset any alleged
prejudice. Id.
Mr. Crowder claims the State withheld evidence based upon information allegedly
excluded from law enforcement reports. To the degree Mr. Crowder claims error, he
cannot show prejudice. The omitted fact that Detective Runge had attempted to contact
child witnesses bore little relevance. The issue of whether Mr. Crowder expressed shock
or excitement when confronted with the allegations against him were covered in
cross-examination. The remainder of the excluded information was adequately remedied
by the trial court's order, restricting testimony from the State's witnesses.
Finally, Mr. Crowder complains the State's witness improperly referenced his "rap
sheet" in testimony. Defense counsel successfully objected to this testimony, but refused
a curative instruction. No further issue was made of this fact. Given this context, there
was no prejudicial error.
Sufficiency of evidence
Apart from his misconduct allegations, Mr. Crowder claims the State failed to
present sufficient evidence to justify his convictions. The published portion of our
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No. 32869-4-111
State v. Crowder
opinion addresses Mr. Crowder's contentions with respect to the marijuana convictions
and firearm enhancement. As to the rape conviction, the victim's testimony was
sufficient to justify the jury's verdict. Corroboration was not required. RCW
9A.44.020(1).
Pennell, J.
I CONCUR:
Siddoway, J.
18
32869-4-111
KORSMO, J. (dissenting) - For several reasons, I respectfully dissent from the
majority's ruling concerning the sufficiency of the evidence to support the two counts of
delivery of marijuana to a child. First, the majority mistakenly adds an element to the
delivery statute by incorporating a definition into the elements instruction. It then
compounds the error by making the new element impossible to prove by ( 1) rejecting
random sampling of any existing controlled substances, and (2) requiring proof of the
quantity of THC 1 given a child in a case where the controlled substance in question has
already been consumed. This approach conflicts with numerous cases from this court and
the Washington Supreme Court.
The elements of the crime are found in RCW 69.50.406(2), which makes it a class B
felony for a person to deliver a controlled substance to a person under 18. Those elements
were properly incorporated into jury instructions 20 and 21 that told the jury it had to
decide whether Mr. Crowder knowingly delivered a controlled substance to each of the
victims. 2 Clerk's Papers at 154, 155. Notably, neither the statute nor the jury instruction
1
Tetrahydrocannabinol.
2
In many respects, this situation is similar to charging felony murder. While the
predicate felony needs to be alleged, the elements of that felony are not themselves elements
of the murder charge. E.g., State v. Kosewicz, 174 Wn.2d 683,692,278 P.3d 184 (2012).
No. 32869-4-III
State v. Crowder
required the State to prove the identity of the controlled substance. 3 Accordingly, the State
l never undertook to prove the identity of the controlled substance. State v. Hickman, 135
l
Wn.2d 97, 102, 954 P.2d 900 (1998).
The majority's error is one that is recurring oflate, largely because appellants
t
j frequently argue that the definitional components of an element are themselves elements
of the charged crime. Some courts have failed to make the distinction, but appellate
courts have regularly rejected these arguments. E.g., State v. Porter, 186 Wn.2d 85, 375
P.3d 664 (2016) (definition not element of offense); State v. France, 180 Wn.2d 809,
818-20, 329 P.3d 864 (2014) (definitions do not create new elements or alternative means
of committing offenses); State v. Lorenz, 152 Wn.2d 22, 93 P.3d 133 (2004) (definition
not an element of charged offense). We should be doing the same.
Due process simply requires evidence from which the jury could find each element
of the crime was proven beyond a reasonable doubt. E.g., Jackson v. Virginia, 443 U.S.
307,319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216, 221-22,
616 P .2d 628 ( 1980). There was ample evidence that the defendant delivered a
controlled substance to the two boys. First, they both told jurors that they had been given
3
In most instances, the identity of the controlled substance is proven at trial because
the punishment will differ depending on the identity and classification of the substance.
That is not a concern for RCW 69.50.406(2), which applies to any controlled substance.
RCW 69.50.406(1) treats delivery of narcotic drugs, methamphetamine, and flunitrazepam,
as a class A felony.
2
No. 32869-4-III
State v. Crowder
marijuana, a substance with which they had some prior limited experience, and which the
instructions informed jurors was a controlled substance. Indeed, they had obtained a
"five sack of weed" shortly before encountering Crowder. 2 Verbatim Report of
Proceedings (Sept. 17, 2014) (VRP) at 277. The defendant himself told them the names
of the varieties of "medical" marijuana he had in his collection, supplied the bong used,
and prepared and shared the marijuana with the boys. The jury could reasonably take
him at his own word. The boys described the effect of the marijuana on them, with at
least one of the boys describing it as being more powerful than his previous experience.
2VRP at 287. The boys knew what they were smoking and the jury was free to credit the
evidence that they consumed potent marijuana. Whether this court finds that evidence
persuasive is an irrelevancy.
While that was sufficient for proving this charge, there was more evidence. The
crime laboratory witness explained that one of the marijuana containers retrieved from
the defendant's collection was tested and determined to constitute marijuana. The
majority agrees the testimony satisfied its new potency requirement, but then discounts
the information because of concerns that the sample utilized for testing was not shown to
be similar to the one given the boys by the defendant. This argument was long ago
rejected by this court:
During an undercover operation, Caldera delivered several plastic
bags containing a white powdery substance believed to be cocaine to
undercover officers. A forensic expert visually inspected the substance in
3
No. 32869-4-111
State v. Crowder
each of the plastic bags and testified that the bags all appeared alike and
each contained a similar amount of the white powdery substance. She
randomly selected one bag for scientific testing. It tested positive as
cocaine. . . . Caldera argues that random sampling is insufficient to identity
the entire quantity as an illegal drug. We disagree and hold that the
scientific testing of a random portion of a substance that is consistent in
appearance and packaging is reliable and supports a finding that the entire
quantity is consistent with the test results of the randomly selected portion.
Other state and federal courts have held likewise.
State v. Caldera, 66 Wn. App. 548, 550, 832 P.2d 139 (1992) (extensive footnote listing
supporting authority deleted). The sampling here easily satisfied this standard. The boys
testified that the containers were similar to the one that the marijuana they smoked came
from, and the forensic witness indicated that the containers were similar. The majority's
complaint goes to the weight the jury would have given the testing, not its admissibility,
if the argument had even been raised at trial. There being (understandably) no objection
to the testimony at trial, this court does not get to discount the evidence. Even under the
majority's revised test, the evidence was sufficient.
Finally, the majority creates (and appears to admit that it has) an impossible
standard to meet in delivery cases where the substance has been consumed. In a typical
case, there is no remaining sample to be tested. Even if the victims had undergone
urinalysis testing, it would not have provided any evidence of the drug's potency.
4
No. 32869-4-III
State v. Crowder
Indeed, the fact that the boys had smoked marijuana previously 4 would limit the ability of
testing to confirm that they had used marijuana during their evening with Crowder.
This is one of the strongest cases of this type one will ever see, with the victims
able to testify about what had happened and additional samples of the same drug found at
the place the victims told officers the sample they had consumed had originated. The
majority is asking for an impossible standard of proof, even if one assumes that there are
experts who can link the THC level of a drug to particular effects on the user, a fact not
demonstrated in this record.
The delivery to a minor convictions should be affirmed.
4Z.H. consumed the "five sack" after he had consumed the marijuana supplied by
the defendant, thus preventing any testing from linking the results specifically to
Crowder. 2VRP at 321.
5