IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON^ >;%

STATE OF WASHINGTON, N ~°

Appellant,

v.

RANDY EUGENE SIMMS,

Respondent.

No. 71863-1-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: September 14, 2015

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Spearman, C.J. — Randy Eugene Simms was convicted of two counts of

delivering the controlled substance methamphetamine to a minor.1 He argues

that the evidence is insufficient to support his conviction for many reasons,

including the fact that there was no test confirming that the substance was

methamphetamine. Simms also argues that he did not receive fair notice of the

charges because the jury instruction contained an alternative means of

conviction. We reject each of his arguments and affirm. However, because

Simms was improperly ordered to undergo the human immunodeficiency virus

(HIV) testing, we remand for correction of the error.

1Although Simms was also convicted of sexual exploitation of a minor, we do not recite

the underlying facts of that charge because on appeal Simms does not challenge the conviction,

only a condition of his sentence.
No. 71863-1-1/2

FACTS

In May 2011, Simms spent considerable time with teenagers P.I. and her

boyfriend N. B., when they were fifteen and sixteen years old, respectively. N.B.'s

father had asked Simms to speak to his son about the dangers of drug use after

N.B. had been hospitalized after consuming a controlled substance. Simms

began spending time with N.B. and P.I. on a regular basis, purportedly teaching

N.B. about car mechanics. The trio would often drive around and spend time in

the woods near Issaquah or Ravensdale.

P.I. and N.B. asked Simms if he could get them methamphetamine

because they wanted to try it. Simms brought a substance he referred to as

"meth" on one of their trips to the woods. Verbatim Report of Proceedings (VRP)

(Feb. 3, 2014) at 103. Simms brought a clear glass pipe and showed N.B. and

P.I. how to smoke it. P.I. estimated that she smoked this substance with Simms

approximately a dozen times and N.B. thought he and Simms had smoked it

together "well over thirty" times. VRP (Feb. 4. 2014) at 102. Each time Simms

supplied the substance, N.B. gave Simms money that N.B. had received from his

father. In addition, Simms would occasionally smoke marijuana with N.B. and

P.I., when N.B. had the drug.

In the summer of 2011, P.I. moved to her mother's home in Reno while

Simms and N.B. continued spending time together. At one point they went fishing

on the Olympic Peninsula for several weeks and smoked meth often during that

trip. After the trip, N.B. entered inpatient drug treatment and told a counselor

about Simms providing him with methamphetamine. The counselor then told the
No. 71863-1-1/3

police. Simms was arrested and charged with two counts of violating the Uniform

Controlled Substance Act (VUCSA) by delivering methamphetamine to a minor

and one count of sexual exploitation of a minor.

At trial, P.I. testified that she first smoked methamphetamine with Simms

and N.B., in Simms' car. She testified that Simms referred to the drug as "meth"

and not anything else, but that she and N.B. would refer to it as "bree." Id, at

(Feb. 4, 2014) at 23. P.I. also described the pipe as "clear," a "ball with a stem,"

and drew a picture, indicating where one would put the drug, where to put one's

mouth to inhale, and where to light the pipe. VRP (Feb. 4, 2014) at 104. She

described inhaling the smoke, and how it caused her to feel "a rush, an

endorphin rush." \± at 107. P.I. also described the drug's appearance as

"crystals," that were "see-through." id at 106. She thought that she had smoked

methamphetamine with Simms "[m]aybe a dozen" times. \_± at 110. She testified

that she had used methamphetamine on other occasions, and its effect on her

was the same.

N.B. testified that he first tried methamphetamine with Simms, but could

not remember exactly how itcame up. He thought that P.I. had sent Simms some

text messages asking about methamphetamine and ecstasy and then Simms

brought it with him on one oftheir trips to the woods. He testified that Simms told

him that it was "nothing like weed" and that the "high [was] a lot different." VRP

(Feb. 4, 2014) at 99. N.B. described in detail the pipe and the process ofsmoking

the drug, its crystal form and the way it melted and then recrystallized. He

described the feeling as "uppy" and that it "[g]ave [him] a bunch of energy." \± at
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101. He compared it to the high he would get from weed, stating that weed gave

him a "kind of relaxed, downy feeling," but with methamphetamine, "it's a really

energetic type of feeling. . . . You feel like you want to get a lot of things done."

Id. at 105. According to him, the energetic feeling would last for about four or five

hours and then he would feel tired and "[u]sually felt the need to go to sleep or

something." IdL Occasionally he would smoke weed with Simms, if N.B. "had it...

but usually no." jd. at 117: N.B. had also used methamphetamine at least one

subsequent occasion, without Simms, and that it had felt "close to the same." jd.

at 122.

Toxicologist Brianna Peterson testified about her training and expertise in

the specific effects of methamphetamine. She described methamphetamine as a

"central nervous stimulant" that "increases your energy,...causes a lot of

euphoria or good feelings,... can cause you to have ... a heightened sense of...

your own strength or well-being." VRP (Feb. 5, 2014) at 12. According to

Peterson, the effect can last "four to eight hours after that initial use." Id, at 12.

She also described the potential after effect of taking methamphetamine as

"hav[ing] maybe more fatigue, because you don't have that energy," and

"agitation or restlessness." Id. at 13. She also testified that other drugs may

produce a similar effect, such as amphetamines and ecstasy.

The jury also heard testimony from forensic scientist Martin McDermott.

McDermotttestified about his familiarity with methamphetamine through his work

with the Washington State Patrol Crime Laboratory in the chemical analysis

section. He testified about most often seeing in methamphetamine cases "a glass
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tube pipe" that is "typically a clear glass tube a few inches long, ... with sort of a

glass ball on one end of it." Id. (Feb. 5, 2014) at 122. He indicated that when he

has encountered such a pipe, "the vast majority of the time it has been [used for]

methamphetamine." VRP (Feb. 5, 2014) at 124. He indicated that "the typical

cocaine pipe ... looks distinctly different from this, as well as does the typical

marijuana pipe that Isee. And it has been my experience that it's pretty reliable

that a person would use one type or another for a certain drug." \j± at 124.

McDermott testified that he did not do any testing of substances or receive any

pipes related to the instances in this case.

Both parties submitted proposed jury instructions to the court. During the

discussion about the "to convict" instruction, the parties and the court agreed to

change the word "distribution" to "delivery." VRP (Feb. 11, 2014) at 12-14.The

State suggested that the instruction "just includes delivering a controlled

substance" without reference to RCW 69.50.401. IdL at 13. The court and the

parties agreed to delete the statutory reference because providing that kind of

information to a jury invites them to go and do research.

The instruction given to the jury read:

To convict the defendant of the crime of Violation of the

Uniform Controlled Substances Act—Delivery of a Controlled

Substance to a Person Under Age Eighteen, as charged in Count

1, each of the following elements of the crime must be proved

beyond a reasonable doubt:

(1) That during a period of time intervening between

April 1, 2011 and July 30, 2011, the defendant delivered a

controlled substance to P. I.;

(2) That the defendant was over 18 years of age;

(3) That P.I. was under 18 years of age;

(4) That the defendant knew the substance delivered

was a controlled substance; and
No. 71863-1-1/6

(5) That the acts occurred in the State of Washington.

Clerk's Papers (CP) at 59. Additionally, Instruction No. 9 stated that

"[m]ethamphetamine is a controlled substance." CP 57. No other drugs or

chemicals were defined in the instructions as controlled substances. Simms did

not object to any of the jury instructions.

The juryfound Simms guilty of both VUCSA counts and the charge of

sexual exploitation of a minor. He was sentenced to sixty months of

incarceration. Simms was also ordered to undergo an HIV test under RCW

70.24.340. Simms appeals.

DISCUSSION

The first issue is whether sufficient evidence supports Simms' conviction

for delivery of a controlled substance, methamphetamine, as charged in counts

one and two. Simms argues that the evidence was insufficient to identify the

substance as methamphetamine, because there was no chemist report, no drug

tests or paraphernalia and no independent observations. We disagree.

Evidence is sufficient to support a conviction if, when viewed 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. Green, 94

Wn.2d 216, 221, 616 P.2d 628 (1980). "[W]hen 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)

(quoting State v. Woods, 5 Wn. App. 399, 487 P.2d 624 (1971)). The trier offact
No. 71863-1-1/7

judges the credibility of witnesses, and issues of credibility cannot be reviewed

on appeal. State v. Camarillo. 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

Generally, "a chemical analysis is not vital to uphold a conviction for

possession of a controlled substance." State v. Colquitt. 133 Wn. App. 789, 796,

137 P.3d 892 (2006). Circumstantial evidence and lay testimony may be

sufficient to establish the identity of a drug in a criminal case. State v.

Hernandez. 85 Wn. App. 672-75, 935 P.2d 623 (1997). Lay witnesses may testify

ifthey are familiar with the substance through prior use, trading, or law

enforcement, jd. at 676. Circumstantial evidence may include the substance's

packaging as well as its physical characteristics, jd. at 677.

When determining whether circumstantial evidence proves the identity of

the substance beyond a reasonable doubt, courts have considered the following

non-exhaustive list of factors:

(1) testimony by witnesses who have a significant amount of

experience with the drug in question, so that their identification of

the drug as the same as the drug in their past experience is highly

credible; (2) corroborating testimony by officers or other experts as

to the identification of the substance; (3) references made to the

drug by the defendant and others, either by the drug's name or a

slang term commonly used to connote the drug; (4) prior

involvement by the defendant in drug trafficking; (5) behavior

characteristic of use or possession of the particular controlled

substance; and (6) sensory identification of the substance ifthe

substance is sufficiently unique.

Colquitt, 133 Wn. App. at 801 (citing State v. Watson. 231 Neb. 507, 514-17, 437

N.W.2d 142 (1989)).

Simms argues that the evidence was insufficient because there were no

field tests, no paraphernalia found, no confession, no visual comparison by
No. 71863-1-1/8

experts, and no text messages referring to methamphetamine. Simms relies on

Colquitt, where the court reversed Colquitt's conviction, even with a field test,

because the only evidence the State submitted was the arresting officer's

statement that the substance "appeared to be 'rock cocaine.'" Without more, the

court was unable to "draw a conclusion based on more than the officer's bald

statement, which by itself is insufficient." jd. at 802.

Here, the combined evidence, when viewed in the light most favorable to

the State, is sufficient to convince a trier of fact that Simms delivered

methamphetamine to a minor beyond a reasonable doubt. First, the record

contains testimony from both P.I. and N.B. about the drug's appearance and

method of use, the number of times they had used itwith Simms, and its effect

on them compared to other drugs they have used. They also described

subsequent experiences they had had with methamphetamine as similar to the

times they used it with Simms.

Second, P.I. and N.B.'s descriptions are supported by testimony from the

expert witnesses about the characteristics ofmethamphetamine, its effects on

the user, and the type of pipe associated with it. Third, the record contains

evidence of Simms and others referring to the substance as methamphetamine.

Finally, the testimony from P.I. and N.B. included descriptions of the drug's

appearance and the pipe used that, combined with the expert testimony,

suggested that methamphetamine wassufficiently unique and could be

distinguished from other drugs based on the witnesses' descriptions.

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No. 71863-1-1/9

In sum, we find that a jury could reasonably infer from this evidence that

the substance Simms gave to P.I. and N. B was methamphetamine. Simms

argues that the witnesstestimony and opinions were "inexpert" and "nonspecific,

generic" and "ambiguous." Reply Br. at 4-5. These are issues of credibility that

cannot be reviewed upon appeal. See Camarillo. 115 Wn.2d at 571.

Jury Instruction/Uncharged Alternative Means

Simms argues that he did not receive fair notice of the charged offense,

because in the information he was specifically charged with delivery of

methamphetamine, butat trial he was accused and convicted ofdelivering any

"controlled substance." Brief of Appellant at 16. The "to convict" instruction did

not "clearly and specifically limit[_] the jury's verdict to delivery of the charged

substance, methamphetamine." \± According to him, jurors may "have been

convinced that [he] gave them some kind ofdrug but not the charged drug

methamphetamine," and they "may not have unanimously agreed on the type of

controlled substance delivered." Br. of Appellant at 17. Simms contends that the

prosecution's arguments and court's instructions undermined Simms' right to a

fair trial and unanimous jury verdict on identity of controlled substance. We

review de novo whether a jury instruction accurately states the law without

misleading the jury. State v. Chino. 117 Wn. App. 531, 538, 72 P.3d 256 (2003).

The State contends Simms did not properly preserve this issue for review

because below he failed to take exception to the instruction of which he now
No. 71863-1-1/10

complains.2 Thus, according to the State, review of this issue is precluded under

RAP 2.5(a) which provides that the appellate court may refuse to review any

claim of error which was not raised in the trial court.

Simms does not dispute that he did not object to the instruction below, but

argues that he falls within the exception provided in RAP 2.5(a)(3) which permits

a claim of error to be raised for the first time on appeal where it is a "manifest

error affecting a constitutional right." To fall within the exception, an appellant

must demonstrate (1) that the error is manifest, and (2) the error is truly of

constitutional dimension. State v. Kirkman. 159 Wn.2d 918, 926, 155 P.3d 125

(2007).

Simms argues that the error implicates his constitutional rights because

"the constitution prohibits the courtfrom instructing the juryon an uncharged

alternative means of conviction. . .." Br. of Appellant at 15. We agree. In

analyzing the asserted constitutional interest, we look to the allegation of a

constitutional violation, and the facts alleged, to determine whether, iftrue, the

defendant's constitutional rights were violated. O'Hara. 167 Wn.2d at 98-99. It is

2The State also argues that any issue with the jury instructions arose as a result of

invited error, because Simms proposed the to convict instruction that did not contain the definition

of "controlled substance." The doctrine of invited error precludes a party from requesting an

instruction at trial and then later on, seeking reversal on the basis of a claimed error in the

instruction given at the defendant's request. State v. Henderson. 114Wn.2d 867, 869, 792 P.2d

514 (1990). But the State concedes that the record does notcontain a copyofthe defense's

proposed instructions and points only to the report of proceedings which reflects thatSimms

participated in discussions that resulted in the final draft of the instruction and that he did nottake

exception to the instruction. Because the record does not show that Simmsproposed the

instruction, we decline to apply the invited error doctrine. See State v. LeFaber, 128 Wn.2d 896,

904, 913 P.2d 369, n.1 (1996) (unable to preclude review based on invited error where the record

was unclear as to whether defendant proposed instruction with similar language), abrogated on

other grounds by State v. O'Hara. 167Wn.2d91, 101-02, 217 P.3d 756 (2009).

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No. 71863-1-1/11

reversible error to try a defendant under an uncharged statutory alternative

because it violates the defendant's right to notice of the crime charged. State v.

Dooqan. 82 Wn. App. 185, 188, 917 P.2d 155 (1996).

However, after determining the error is of constitutional magnitude, we

must still determine whether the error was manifest. Manifest error under RAP

2.5(a)(3) requires a showing of actual prejudice. In order to show actual

prejudice, there must be a "'plausible showing by the [appellant] thatthe asserted

error had practical and identifiable consequences in the trial ofthe case.'"

O'Hara, 167 Wn.2d at 99 (quoting Kirkman, at 935).

Simms argues thatthe lack ofdefinition in the to convict instruction could

have resulted in some jurors basing his conviction on a finding that he delivered

marijuana to a minor. But he identifies little, other than speculation, to support

this claim. Simms points to testimony that he smoked marijuana on a number of

occasions with P.I. and N.B. But the record shows the likelihood that the jury

considered marijuana as a basis for the charge was remote. At the beginning of

the trial, the court advised the jury ofthe allegation against Simms that he

"unlawfully and feloniously did deliver and distribute methamphetamine, a

controlled substance to ... [N.B. and P.I.], a person who was under 18 years of

age "VRP (Jan. 27, 2014) at 21-22. The only controlled substance

mentioned in the court's instructions to the jury was methamphetamine.

("Methamphetamine is a controlled substance."). CP at 57.

Furthermore, during closing arguments the State and Simms made it

abundantly clear thatthe charge for the jury to consider involved only

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No. 71863-1-1/12

methamphetamine and not some other drug. The State referred to Instruction No.

12 (the to convict instruction) and the "elements that the State has to prove."

VRP (Feb. 11, 2014) at 28. She noted that "Count 1 is delivery of

methamphetamine to a minor, a controlled substance to a minor." ]d_. Simms'

attorney also drove the point home, stating that Simms "[was] not charged with

supplying them with pot, that's not really relevant to the charges against him."

VRP (Feb. 11, 2014) at 42. Because the record does notsupport a finding of

manifest error affecting a constitutional right, we decline to review this claim of

error raised for the first time on appeal.

Simms submits a statement of additional grounds in which he raises

challenges to the sufficiency of the evidence and witness credibility. Adefendant

may submit a pro se statement of additional grounds for review pursuant to RAP

10.10. Such statement must "'inform the court of the nature and occurrence of

[the] alleged errors.'" State v. Meneses, 149 Wn. App. 707, 715-16, 205 P.3d 916

(2009). Simms argues that there was no evidence that he took the pictures,

because they were not from any one of his phones. He also claims that P.I. and

N.B. were not credible witnesses, because they lied about other events and had

a motive to retaliate against him. Again, we defer to the jury's determinations

regarding the persuasiveness of the evidence and the credibility of witnesses; we

will not reweigh the evidence and substitute our judgment for that of thejury.

Finally, Simms argues that he was improperly ordered to submit to HIV

testing under RCW 70.24.340(1). The statute imposes HIV testing and

counseling of all persons:

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No. 71863-1-1/13

(a) Convicted of a sexual offense under chapter 9A.44 RCW;

(b) Convicted of prostitution or offenses relating to prostitution

under chapter 9A.88.RCW; or

(c) Convicted of drug offenses under chapter 69.50 RCW ifthe

court determines at the time of conviction that the related

drug offense is one associated with the use of hypodermic

needles.

The State agrees that this condition was a scrivenor's error; Simms was not

convicted of a sexual offense under Chapter 9A.44 RCW, nor was the drug

offense related to his conviction associated with the use of hypodermic needles.

We therefore remand for revision of the judgment and sentence accordingly.

Affirm, but remand to strike the HIV testing requirement.

WE CONCUR:

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