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

### STATE OFWASHINGTON, N ~° Appellant,

v. RANDY EUGENE SIMMS, Respondent. No. 71863-1-1 DIVISION ONE

UNPUBLISHED OPINION FILED: September 14, 2015 4T- §::
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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 juryinstruction 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 ofthe 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 May2011, Simms spent considerable time withteenagers 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 timewith 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 ofProceedings (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 overthirty" 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. Inthe summer of2011, P.I. moved to her mother's home in Reno while 

### Simms and N.B. continued spending time together. Atone point they went fishing 

### on the Olympic Peninsula for several weeks and smoked meth oftenduring that 

### trip. Afterthetrip, N.B. enteredinpatient drug treatment andtold a counselor about Simms providing him with methamphetamine. The counselor then told theNo. 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 itas "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 putone's mouth to inhale, and where to light the pipe. VRP (Feb. 4, 2014) at 104. She described inhaling the smoke, and how itcaused 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. Shethoughtthat she had smoked methamphetamine with Simms "[m]aybe a dozen" times. \_± at 110. Shetestified 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 

### textmessages asking aboutmethamphetamine and ecstasy and then Simms 

### brought itwith him on one oftheirtrips to thewoods. He testified thatSimms told him that it was "nothing like weed" and that the "high [was] a lot different." VRP 

### (Feb. 4, 2014) at99. N.B. described in detail thepipe and the process ofsmoking the drug, its crystal form and theway it melted and thenrecrystallized. He described the feeling as "uppy" and thatit "[g]ave [him] a bunch ofenergy." \± atNo. 71863-1-1/4 101. 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 offeeling. . . . 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, ifN.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 ofmethamphetamine. She described methamphetamine as a "central nervous stimulant" that "increases your energy,...causes a lot of 

### euphoria or goodfeelings,... can cause you to have ... a heightenedsense of... yourown strength orwell-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 morefatigue, 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 testimonyfrom forensic scientist Martin McDermott. McDermotttestified about his familiarity with methamphetamine through his work 

### with the Washington State Patrol Crime Laboratoryin the chemical analysis section. He testified about most often seeing in methamphetamine cases "a glassNo. 71863-1-1/5 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 ithas 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. Duringthe 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 thejury read: To convict the defendant ofthe crime ofViolation ofthe Uniform Controlled Substances Act—Delivery of a Controlled Substance to a Person Under Age Eighteen, as charged in Count 1, each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: (1) That during a period oftime 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 ofage; (3) That P.I. was under 18 years ofage; 

### (4) That the defendant knew the substance delivered was a controlled substance; andNo. 71863-1-1/6 (5) That the acts occurred inthe State ofWashington. Clerk's Papers (CP) at 59. Additionally, Instruction No. 9 stated that 

### "[m]ethamphetamine is a controlled substance." CP 57. Noother drugs or chemicals were defined in the instructions as controlled substances. Simms did not object to any ofthejury instructions. 

### The juryfound Simms guilty of bothVUCSA 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 insufficientto identify the substance as methamphetamine, because there was no chemistreport, nodrug 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 ofthe State and interpreted most strongly against the defendant." State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977) 

### (quoting Statev. Woods, 5Wn. App. 399, 487 P.2d 624 (1971)). The trier offactNo. 71863-1-1/7 judges the credibility ofwitnesses, 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 withthe 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 offactors: 

### (1) testimony by witnesses who have a significant amount of experience withthe drug inquestion, so thattheir 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 ofthe 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 ofthe particular controlled substance; and (6) sensory identification ofthe 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 fieldtests, no paraphernalia found, no confession, no visual comparison byNo. 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 inthe lightmost 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 

### subsequentexperiences they had had with methamphetamine as similarto the times they used it with Simms. 

### Second, P.I. and N.B.'s descriptions are supported bytestimony from the 

### expertwitnesses aboutthecharacteristics ofmethamphetamine, its effects on the user, and the type ofpipe associatedwith it. Third, the record contains evidence of Simms and others referring to the substance as methamphetamine. 

### Finally, thetestimony from P.I. and N.B. included descriptions ofthedrug's appearance and the pipe used that, combined with the experttestimony, 

### suggested thatmethamphetamine was sufficiently unique andcould be distinguished from otherdrugs based on thewitnesses' descriptions.

8No. 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. at4-5. These are issues ofcredibility that cannot be reviewed upon appeal. See Camarillo. 115 Wn.2d at 571. Jury Instruction/Uncharged Alternative Means 

### Simms argues that he did not receivefair notice of the charged offense, because in the information he was specificallycharged with delivery of 

### methamphetamine, butattrial he was accused andconvicted ofdelivering any "controlled substance." Briefof Appellant at 16. The "toconvict" instruction did 

### not "clearly and specifically limit[_] thejury's verdicttodelivery ofthecharged substance, methamphetamine." \± According to him, jurors may "have been 

### convinced that[he] gavethem somekind ofdrug butnotthecharged drug 

### methamphetamine," and they "may nothave 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' rightto a fair trial andunanimousjury verdict onidentity ofcontrolled substance. We review de novo whether ajury instruction accuratelystates the law without 

### misleading thejury. State v. Chino. 117Wn. App. 531, 538, 72 P.3d 256 (2003). The State contends Simms did not properlypreserve this issue forreview because below he failed to take exception to the instruction of which he nowNo. 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 withinthe 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 

### "theconstitution prohibits the courtfrom instructing the juryon an uncharged alternative means of conviction.

. .." Br. ofAppellant 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 thejury 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). Butthe State concedes that the record does notcontain a copyofthe defense's proposed instructions andpoints only to the report ofproceedings which reflects thatSimms participated in discussions thatresulted in thefinal draft of the instruction and that hedid nottake exception to the instruction. Because the record does not show that Simmsproposed the instruction, we decline to apply the invited errordoctrine. See State v. LeFaber, 128Wn.2d 896, 904, 913 P.2d 369, n.1 (1996) (unable to precludereview 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).

10No. 71863-1-1/11 

### reversible error to try a defendant under an uncharged statutory alternative because itviolates the defendant's right to notice ofthe 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] thattheasserted error hadpractical and identifiable consequences in thetrial ofthe case.'" O'Hara, 167 Wn.2d at 99 (quoting Kirkman, at 935). 

### Simms argues thatthelack ofdefinition in the toconvict instruction could haveresulted in somejurors basing his conviction on afinding that hedelivered 

### marijuana to a minor. But heidentifies little, otherthan speculation, tosupport this claim. Simms points totestimony that hesmoked marijuana on a number of occasions with P.I. and N.B. But the record shows the likelihood that the jury 

### considered marijuana as abasis for thecharge was remote. Atthe beginning of the trial, the court advised thejury ofthe allegation againstSimms that he 

### "unlawfully and feloniously did deliver and distribute methamphetamine, a controlled substance to ... [N.B. andP.I.], a person who was under 18 years of 

### age "VRP (Jan. 27, 2014) at21-22. The only controlled substance mentioned in the court's instructions to thejurywas methamphetamine. 

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

### Furthermore, during closing arguments the State andSimms madeit 

### abundantly clearthatthecharge for thejurytoconsider involved only

11No. 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 thatSimms "[was] not chargedwith 

### supplying them with pot, that's not really relevantto the charges against him." VRP (Feb. 11, 2014) at 42. Because the record does notsupport afinding of manifest erroraffecting a constitutional right, wedecline to review thisclaim of

error raised for the first time on appeal. 

### Simms submits a statement of additional grounds in which he raises 

### challenges to the sufficiency ofthe evidence and witness credibility. Adefendant 

## may submit apro sestatementofadditional grounds for review pursuantto 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 thatthere was no evidence that he tookthe pictures, 

### because theywere notfrom any one ofhis phones. He also claims that P.I. and N.B. were notcredible witnesses, because theylied about other events and had


### a motive toretaliate againsthim. Again, wedeferto thejury's determinations 

### regarding the persuasiveness ofthe evidence and the credibility ofwitnesses; we will not reweigh theevidence and substitute ourjudgmentfor that ofthejury. 

### Finally, Simms argues thathe was improperly ordered to submitto HIV testing under RCW 70.24.340(1). The statute imposes HIVtesting and counseling of all persons:

12No. 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 ofthejudgment and sentence accordingly. Affirm, but remand to strike the HIVtesting requirement.

WE CONCUR: 

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