IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. ALEXANDER SCOTT NICHELIN, Appellant. No. 70304-8-1 DIVISION ONE UNPUBLISHED OPINION

FILED: June 9, 2014 O'J C->
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v£> Trickey, J. —Alexander Nichelin appeals his convictions for identity theft 

### and possession of stolen property, arguing that the trial court considered undisclosed information at his drug court termination hearing violating his right to 

### due process. Because thisclaim is based onspeculation raisedforthefirsttime on appeal, and because the record demonstrates that the trial courtrelied on evidence presented at the hearing, we affirm.
FACTS 

### In July 2011, the Statecharged Alexander Nichelin with three counts of 

### second degree identity theft and one count of second degree possession of stolen property. On February 29, 2012, Nichelin and the State entered into an 

### Adult Drug Treatment Court (ADTC) agreement. Nichelin agreed to submit the 

### charges to thetrial court on a stipulated record for a determination ofguilt ifhe failed to complete the drug courtprogram. Theagreementalso states: 

### Iagree that anyfailure in my treatmentprogram, including, but not limited to: positive urinalysis tests, missed tests or out-of-range urine samples, missed treatment, missed court appearances, any 

### failure to abide by the terms of this agreement, orcommission of a new crime, may result in modification of the treatment program, 

### revocation ofmy pre-trial release, ortermination from theADTC.No. 70304-8-1 / 2 I must follow the treatment plan as developed by the ADTC Treatment Provider.

Iagree to abstain from any use or possession of alcohol, drugs, or drug paraphernalia. Ifany drugs are prescribed for me by a doctor, I will immediately inform my treatment provider and provide the required documentation.111 Nichelin also signed a statement of ADTC program expectations. He initialed the following paragraphs: I am aware that I will be expected to abstain from all use of alcohol and other drugs, except medications prescribed by dentist or doctor. Dentists and doctors must be informed of my drug use history and my participation in Drug Treatment Court. Use of all mind and mood altering medication requires completion of the ADTC Medication Form prior to use. I am aware that all mind and mood altering substances, poppy seeds, medications 

### (such as Nyquil) which contains alcohol and products containing 

### ephedrine (found in sinus and coldallergy meds &an ingredient in amphetamine and methamphetamine) are not to be consumed while in the program. I am aware that I must show any and all prescribed and over-the-counter medications to have approvalfrom the ADTC Team before taking them.

I am aware that I must contact the Drug Court Coordinator or my treatment counselor immediately ifIhave relapsed. My success in 

### Drug Treatment Court requires me to be honest about any continued use or relapse.[2] 

### ADTC coordinators also provide program participants with a handbook 

### directing them to "bevery careful nottoingest," among otherthings, "'[njatural' or herbal remedies or supplements," "[o]ver the counter or prescription medicines 

### withoutpriorapproval by[a] treatmentprovider," and "[a]ny mind ormood altering substances."3 The handbook continues:

1Clerk's Papers (CP) at 71-72. 2Exhibit (Ex.) 8. 3 Ex. 6 at 11.No. 70304-8-1 / 3 If you receive a positive UA [(urinalysis)] result because you ingested one ofthe above substances without prior approval, itwill be treated as a positive UAand you will be sanctioned. Read labels and ask questions before you put a substance in your body. Claiming that you did not know what was in something will not be accepted as an excuse. If you receive a positive UA because you used one of the above and failed to follow the directions of your treatment counselor or the ADTC team, you will receive a sanction or be terminated from the program. Be aware ofwhatyou are putting into your body. Ifyou have questions, 

### askyourtreatmentcounselorFIRST![4] In November 2012, a urinalysis test indicated that Nichelin had used Kratom. The ADTC team decided to terminate Nichelin from the program for (1) 

### using the substance Kratom, and (2) being dishonestwith the team about his use of Kratom. Nichelin requested an evidentiary hearing before a judge who was 

### not a member of his ADTC team, according to the provisions of the ADTC agreement. 

### At a hearing in March 2013, ADTC coordinator Karla Rasmussen testified that she learns of new drugs and substances through professional conferences and her contacts with other drug court coordinators and urinalysis specialists. She testified that "Kratom" is an "addictive" "[m]ind and mood-altering substance" of which the ADTC team had been aware for two years.5 Rasmussen 

### acknowledged that Kratom "is currently legal" but claimed "it's on the way to 

### becoming illegal."6 Upon hearing rumors from other program participants that

4 Ex. 6 at 11. 5Verbatim Report of Proceedings (VRP) 3/12/13at 27-28. 6 VRP 3/12/13 at 55.No. 70304-8-1/4 Nichelin "was involved with Kratom," Rasmussen asked the urinalysis departmentto test him for it.7 According to Rasmussen, when confronted with the positive test, Nichelin initially said that he had used Kratom six months earlier. After she told him that the test only detects use within three to five days, Nichelin admitted recent use and explained that "someone in his doctor's office had recommended Kratom to him as a sleep aid and that he had been having problems sleeping so he took it for that."8 Rasmussen also identified letters Nichelin had written to each ADTC team member apologizing for his dishonesty regarding his use of Kratom. Rasmussen testified that honesty "is a critical part ofthe treatment plan," 

### and dishonesty "might be the number one reason" participants are terminated.9 She explains to all program participants that there are increasingly serious levels ofdishonesty about continued use or relapse that lead to more serious sanctions. For example, Rasmussen noted the differing levels of dishonesty between participants who (1) call the drug coordinator and admit use immediately; (2) admit use to the technician when providing a sample; (3) admit use after being confronted with positive test; and (4) deny use after being confronted with a 

### positivetest.10 Rasmussen also testified that in herview, lying about use ofmind

or mood-altering substances that "fly underneath drug court's radar" because 

### testing isnew, rare, or expensive, is"reallyegregious"dishonesty.11

7VRP 3/12/13 at 28. 8VRP 3/12/13 at 30. 9VRP 3/12/13 at 34-36. 10VRP 3/12/13 at 34-35. 11 VRP 3/12/13 at 40-41.No. 70304-8-1 / 5 

### Nichelin presented two witnesses who testified about his progress in therapy and counseling. Nichelin did not present any evidence or testimony to contradict Rasmussen's testimony. 

### During closing argument, defense counsel suggested that "no one really knows at this point" what Kratomis.12 The following exchange occurred: THE COURT: Would Ihave the ability to takejudicial notice ofwhat I know of Kratom? [DEFENSE COUNSEL]: You certainly can. And Idon't know how much Mr. Nichelin knew at that time. So, Your Honor, I am asking the Court

-- THE COURT: Well, do Ihave the ability to speculate? 

### [DEFENSE COUNSEL]: I'd ask the Court not to speculate. And I don't know how much the Court actually does know of Kratom, so 

### I'dask if the Court does take judicial notice that it only be facts of Kratom itselfbased on some reliable source.113' 

### At a hearing two days later, the trial court gave its oral ruling. Without 

### mentioning the concept ofjudicial notice oridentifying any source ofinformation outside the record, the trial court found that (1) Kratom is a mood-altering 

### substance; (2) Nichelin tested positivefor use ofKratom; (3) Nichelin knew ofthe policies, procedures, and expectations of theADTC team; (4) Nichelin's honesty level regarding his use ofKratom was the lowest; and (5) Nichelin should have considered Kratom a mood-altering substance and requested permission before 

### using it specifically because it was recommended at his doctor's office for the express purpose of altering his mood.

12VRP 3/12/13 at 77. 13VRP 3/12/13 at 77-78.No. 70304-8-1 / 6 The trial court entered a written orderterminating Nichelin from drug court 

### for the following reasons: "(1) Consuming Kratom on or about 11/1/2012, [and] 

### (2) [d]ishonesty to the court regarding use ofKratom."14 After finding Nichelin guilty of the original charges based on the stipulated record, the trial court imposed a standard range sentence. Nichelin appeals. ANALYSIS 

### When seeking toterminate an individual's participation in drug court, the 

### State must prove non-compliance with thedrug court diversion agreement by a 

## preponderance ofthe evidence. State v. Varnell. 137 Wn. App. 925, 929, 155 P.3d 971 (2007) (quoting State v. Marino, 100 Wn.2d 719, 725, 674 P.2d 171 (1984)). In drug court termination proceedings, drug court participants are entitledto the sameminimal due processrights required in proceedings involving 

## alleged probation, parole, orconditions ofsentence violations. Statev. CassillSkilton. 122 Wn. App. 652, 656-58, 94 P.3d 407 (2004). Revocation of a 

## suspended sentence or deferred disposition rests within the discretion ofthe court. Statev. Badger, 64Wn. App. 904, 908, 827 P.2d 318 (1992); Statev. J.A., 

## 105 Wn. App. 879, 887, 20 P.3d 487 (2001) (juvenile offender deferred disposition). Adecision to terminate participation in a drug diversion court requires a similar exercise of discretion. We therefore review Nichelin's terminationfrom drug courtunderan abuse ofdiscretion standard. In Cassill-Skilton, the court held that the State could notterminate drug 

## courtparticipation without (1) giving the defendantan opportunityto contestthe

14CP at 55.No. 70304-8-1 / 7 basis ofthe termination and (2) creating a record of the evidence relied on to terminate participation. 122 Wn. App. at 658. Nichelindoes not dispute that he received notice ofthe alleged violations and had an opportunity to be heard in a recorded proceeding. Nichelin first contends that the State failed to present any evidence that Kratom is a mind or mood-altering substance other than Rasmussen's "unsubstantiated opinion."15 But after Nichelin's initial objection regarding the foundation of Rasmussen's knowledge of Kratom, she identified her sources of information and her experience attempting to detect and prevent its use by 

### program participants. Rasmussen then repeated heropinion ofKratom. Nichelin did not object or present any evidence to contradict hertestimony. And Nichelin did not dispute Rasmussen's report that Nichelin himself admitted that he took Kratom based on advice from his doctor's office to use it as a sleep aid. The 

### court haddiscretion toacceptor rejectRasmussen's opinion ofKratom, and itdid not abuse its discretion by ruling as it did. We do not review the trial court's determinations as to persuasiveness, credibility, and weight of the evidence. See State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). 

### Next, for the first time on appeal, Nichelin contends that the trial court 

### erred by takingjudicial notice offacts reasonably subjecttodispute, specifically, that Kratom is a mind or mood-altering substance. Nichelin claims thatthe court 

### "appeared torely onwhat it knew about Kratom andits own 'cursory search' on 

### the[l]nternet."16 Buttherecord doesnotestablishthatthetrial courtactuallytook

15 Brief ofAppellant (Br. of App.) at 19. 16 Br. of App. at 20.No. 70304-8-1 / 8 judicial notice of any fact or consulted any outside resource, on the Internet or otherwise. Nichelin relies on statements inthe oral ruling that could refer merely to the evidence presented at the hearing and reasonable inferences from that evidence. Because Nichelin did not object, request clarification, or dispute the 

### factual basis for the findings regarding Kratom below, the trial court had no 

### opportunity to address this concern. We therefore decline to speculate whether the trial court consulted information outside the record and will not consider the 

### issue for the first time on appeal. See State v. Scott. 110 Wn.2d 682, 685, 757 P.2d 492 (1988); RAP2.5(a).17 

### Moreover, we reject Nichelin's related argument that the trial courtfailed 

### to clearly state the evidence upon which it relied todetermine that Kratom is a mind-altering substance. The trial court's findings are consistent with Rasmussen's uncontroverted testimony, the only evidence presented at the 

### hearing regarding Kratom. And the court explicitly relied on thefact that "the doctor's office made the recommendation for the express purpose of changing 

### his mood, i.e., to dealwith his anxiety," to find that Nichelin should have known 

### Kratomwas amood-altering substance and requested approval before using it.18 Because the record demonstrates that the trial court had ample basis to find that 

### Kratom is a mood-altering substance by a preponderance of the evidence 

### presented at the hearing, and because the trial court explicitly relied on that 17We also deny Nichelin's motion for this court toconsider materials downloaded from the Internetto demonstrate that a "cursory search"would reveal that thepurported mind

### altering effects of Kratom are reasonably subject to dispute. Because the record demonstrates that the trial court considered and relied upon the evidence presented at 

### the hearing, we need not resolve the question ofwhether outside sources dispute the effects of Kratom. 18VRP 3/14/13 at 5.

8No. 70304-8-1 / 9 evidence, Nichelin fails to establish a violation of his right to due process. See 

### Marino. 100 Wn.2d at 726-27 (where factual disputes are resolved and trial court's decision is based on the evidence, due process is satisfied). 

### In his statement of additional grounds for review, Nichelin claims that he 

### was treated differently by drug court officials after he reported being sexually 

### assaultedby alaboratoryemployeewhile producing a samplefor aurinalysis test. He suggests thattheir knowledge ofhis potential lawsuit against the laboratory contributed to the ADTCteam's initial decision to terminate him from the program. Because Nichelin relies on matters outside the record, a personal restraint 

### petition is the appropriate means to raise such issues. State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995).
Affirmed.

WE CONCUR: