State v. DeVries

Madsen, J.

(concurring/dissenting) — I agree with the majority that the trial court incorrectly admitted Ms. Dieadera Mannen’s laboratory report because the State failed to lay a proper foundation for the report. I also agree that evidence of a prior bad act was improperly admitted under ER 404(b). However, the majority fails to correctly apply the appropriate standard of review in evaluating the defendant’s challenge that the remaining evidence, properly admitted, was not sufficient to support a conviction. In a sufficiency challenge the reviewing court must view the evidence in the light most favorable to the State. Instead, the majority offers alternative interpretations and explanations of the evidence that are viewed most favorably to the defense, thereby improperly substituting its judgment under an improper standard of review. I respectfully dissent.

Discussion

Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, it allows any rational trier of fact to find all of the elements of the crime charged beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). It is not the place of the reviewing court to offer possible explanations or theories on the evidence presented; “when the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.” State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State’s evidence and all inferences that can reasonably be drawn from it. State v. Green, 94 Wn.2d 216, 222, 616 P.2d 628 (1980). When applying this standard of *855review to the evidence at hand, a straightforward chain of events unfolds from which a rational trier of fact could find beyond a reasonable doubt that DeVries knowingly delivered a controlled substance to Mannen, thus satisfying the elements of the crime charged.

The first element of the crime of delivery of a controlled substance is delivery. RCW 69.50.401(a)(l)(ii); State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997). The testimony of a person who receives delivery, corroborated by a witness to the transaction, is sufficient to establish that a delivery occurred. State v. Eddie A., 40 Wn. App. 717, 720, 700 P.2d 751 (1985). Ms. Dieadera Mannen testified that DeVries gave her a pill, and Megan Hoover, an eyewitness, corroborated that testimony.

The next element that the State must prove is that the substance delivered was a controlled substance. Lay testimony and circumstantial evidence may be sufficient to establish the identity of the substance involved in an alleged drug transaction, In re Personal Restraint of Reismiller, 101 Wn.2d 291, 294, 678 P.2d 323 (1984), and such circumstantial proof may include evidence that the substance produced the effects attributable to the controlled substance in question. See Reismiller, 101 Wn.2d at 294-95. The controlled substance allegedly delivered in this case was amphetamines. The State here presented evidence that common symptoms of amphetamine use are restlessness, elevated heart rate, elevated blood pressure, running or racing mind, shaking and diminished concentration. Report of Proceedings (RP) at 99. Mannen testified that within 15 minutes of taking the pill “things started to get hazy and blurry and I started to get dizzy. I started to feel like my body was going numb. I couldn’t feel anything.” RP at 10. Her classmates testified that she “seemed really excited, and she was shaking.” RP at 43. Mannen’s symptoms grew as the day progressed and when paramedics arrived her heart rate was “sky rocketing,” she was “breathing really hard” and shaking. RP at 14.

*856In addition to lay testimony, a witness who demonstrates an expertise acquired either by education or experience in this area may give an opinion as to the identity of a substance. Hernandez, 85 Wn. App. at 676. The State offered the testimony of Dr. Davis for identification of the substance that Mannen ingested. Dr. Davis has extensive experience in treating patients who have ingested amphetamines. RP at 97-98. As Mannen’s treating physician, Dr. Davis testified about his diagnosis and treatment of Mannen. “[T]he thing I remember about her most was she was kind of out of sorts, anxious, restless and somewhat irrational, thrashing about a bit. And she had a little high pulse and elevated blood pressure.” RP at 86. Based on his initial observations, Dr. Davis believed that Mannen had ingested drugs and in particular, amphetamines, confirming his diagnosis. RP at 87-88. He ordered a urine drug screen and the results were positive for amphetamine.

Although the urine drug screen report was improperly admitted into evidence, the treating physician was not precluded from testifying as to its contents. As the trial judge correctly stated,

a physician is able to testify on whatever source. It often comes from other sources, blood tests, et cetera and we don’t have to have the original documents in. The purpose is that he is trying to explain why he did what he did, and there was some sort of a drug screen and I’m going to allow him to testify to it.

RP at 88-89. The trial judge’s ruling is supported by the Federal Rules of Evidence Advisory Committee’s Note to Fed. R. Evid. 703 (Washington’s ER 703 is identical):

[A] physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X-rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His *857validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes.

Fed. R. Evid. 703 Advisory Committee Note; Paul D. Rheingold, The Basis of Medical Testimony, 15 Vand. L. Rev. 473, 531 (1962). The trial judge made clear that Dr. Davis was testifying as to his diagnosis and treatment of Mannen, and based on that understanding instructed the doctor to testify to the results of the drug screen. The majority may contend that because the doctor was never specifically asked for his expert opinion, the testimony was improper. Majority at 848. However, when “[i]t is clear from the context that [the witness] was expressing [his] opinion!,] the precise form of the testimony is unimportant.” State v. Worland, 20 Wn. App. 559, 565, 582 P.2d 539 (1978). Dr. Davis’s testimony and the questions asked by both parties clearly show that he was there testifying as an expert witness. RP at 85-102. Defense counsel made this evident by presenting Dr. Davis with a hypothetical situation and asking him his opinion as to what could be expected to occur. RP at 95.

The testimony offered by the State provides sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that there was a delivery of a controlled substance.

Finally, for conviction, the State must prove knowledge that the substance delivered was a controlled substance. RCW 69.50.401(a)(l)(ii); Hernandez, 85 Wn. App. at 675. Guilty knowledge is intrinsic to the definition of the crime itself and must be shown. State v. Boyer, 91 Wn.2d 342, 344, 588 P.2d 1151 (1979). However, the guilty knowledge required by Boyer is not knowledge of the substance’s exact chemical or street name, it is simply knowledge that the substance is some type of controlled substance. State v. Nunez-Martinez, 90 Wn. App. 250, 951 P.2d 823 (1998). The jury is permitted to find knowledge if there is sufficient information which would lead a reasonable person to believe that a fact exists. State v. Johnson, 119 Wn.2d 167, 174, 829 P.2d 1082 (1992). “Circumstantial evidence is no *858less reliable than direct evidence; specific criminal intent may be inferred from circumstances as a matter of logical probability.” State v. Zamora, 63 Wn. App. 220, 223, 817 P.2d 880 (1991).

Deputy Humphreys testified that “to the best of my knowledge, each time it (the pill) was brought up by Collette, when I was speaking with her, it was called Ecstasy.” RP at 77. Ecstasy is listed as a Schedule I hallucinogen, making it a controlled substance in Washington. RCW 69.50.204(c)(7). The trial judge found that while the deputy’s testimony was weak, and standing alone would probably not have been sufficient to establish knowledge, it was still a factor in his deliberation. RP at 159. The majority dismisses this testimony as “equivocal.” Majority at 852 n.9. However, when reasonable inferences are drawn in favor of the State, a rational trier of fact could find that DeVries knew or believed the substance was ecstasy, a controlled substance.

Knowledge of the substance or its effects, method of procuring the substance, and actions suggesting consciousness of guilt are also factors to be considered in making a determination of guilty knowledge. See State v. Ong, 88 Wn. App. 572, 577, 945 P.2d 749 (1997).

Testimony offered by the State illustrated that DeVries had knowledge of the pills and their effects. Mannen testified that DeVries called the pills “energy pills” and said that when she felt tired she takes them and they give her lots of energy. RP at 11. When Mannen asked DeVries why she was feeling the way she was, DeVries responded that it was normal and that it would wear off. RP at 11. Megan Hoover testified that she overheard DeVries tell Mannen that “it could mess you up, you know, you shouldn’t take it,” and also that “something bad could happen to her if she reacted to it in a different way.” RP at 42. This testimony offers evidence that DeVries was familiar with the pills, was aware that they were dangerous, and knew what they could do to Mannen.

*859Deputy Humphreys testified that DeVries told him that she had received four pills from a man named Paul in Spokane and that she would not or could not give any more information as to who this Paul person was. RP at 75. The manner of procuring the pills and DeVries’ refusal to give more information about “Paul” also supported an inference that DeVries knew the pills were “controlled.”

DeVries’ guilty knowledge is additionally suggested by the manner in which she changed her story when interviewed by Deputy Humphreys. First, DeVries indicated she had no knowledge of any narcotics. After further questioning by Humphreys she admitted that she had one pill, and later admitted to having received four pills from “Paul.” RP at 75. It is reasonable to infer guilty knowledge from false statements given to a police officer.

Conclusion

Reviewing courts must give deference to the trier of fact who resolves conflicting testimony, evaluates the credibility of witnesses, and generally weighs the persuasiveness of evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992). This required deference is illustrated by the standard of review to be applied in cases questioning the sufficiency of the evidence: evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, it allows any rational trier of fact to find all of the elements of the crime charged beyond a reasonable doubt. When the facts of the present case are considered in accordance with the correct standard, they show the following: (1) DeVries delivered a pill to Mannen; (2) within minutes of taking the pill Mannen developed symptoms consistent with amphetamine use; (3) Dr. Davis preliminarily diagnosed Mannen’s symptoms as drug induced; (4) in his expert capacity, he relied upon and testified that the urine test confirmed the presence of amphetamine; (5) DeVries was familiar with the pills and had knowledge of their effects; and (6) DeVries acted and spoke in a manner *860indicating her knowledge that the pills were a “controlled substance.” Based on this evidence a rational trier of fact could find all elements of the charged crime were proved beyond a reasonable doubt.

I respectfully dissent.