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, 

Respondent, 

V. 

JOHN MARK CROWDER, 

Appellant. 

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No. 32869-4-111 

OPINION PUBLISHED 

IN PART 

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. 

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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 

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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 

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No. 32869-4-III 

State v. Crowder 

carries the third." Id. 

Mr. Crowder claims the trial court violated his right to a public trial when it 

engaged counsel in an off-the-record discussion during a juror challenge. While we agree 

with Mr. Crowder that the public trial right attaches to this aspect of jury selection, see id. 

at 605-06, we do not agree there was a closure. No part of the juror challenge took place 

outside of direct public hearing and view. While in open court, the juror was questioned, 

Mr. Crowder's counsel made his motion for cause, and the State concurred. At this point, 

the challenge was complete. There was nothing further to make public. Although the 

parties engaged the judge in an unrecorded side bar prior to the court entering its formal 

ruling, this interruption does not change the fact that the substance of juror challenge 

occurred entirely in open court. 

Mr. Crowder's public trial argument would only have traction ifhe could show 

something substantive occurred during the off-the-record side bar. Our courts utilize the 

"experience and logic" test to determine whether a particular court procedure implicates 

the public trial right. Id. at 605. Side bar conferences generally do not meet this test 

because they historically have been closed to the public and because public access would 

not positively enhance the proceedings. State v. Smith, 181 Wn.2d 508,511,334 P.3d 

1049 (2014). Mr. Crowder fails to meet his burden of establishing that the side bar in his 

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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 

2 At 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). 

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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 

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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 

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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 

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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 bottles4 were located inside Mr. Crowder's garage. Two bottles were ambercolored 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. 

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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 

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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. 

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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 

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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. 

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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 

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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). 

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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 THC1 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). 
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No. 32869-4-III 

State v. Crowder 

required the State to prove the identity of the controlled substance. 3 Accordingly, the State 

never undertook to prove the identity of the controlled substance. State v. Hickman, 135 

Wn.2d 97, 102, 954 P.2d 900 (1998). 

The majority's error is one that is recurring oflate, largely because appellants 

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. 

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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 

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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. 

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No. 32869-4-III 

State v. Crowder 

Indeed, the fact that the boys had smoked marijuana previously4 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. 

4 Z.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