FILED 

NOVEMBER 16, 2017 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

STATE OF WASHINGTON, 

Respondent, 

V. 

CASSIE KAY ROBERTSON, 

Appellant. 

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No. 34411-8-111 

UNPUBLISHED OPINION 

FEARING, C.J. - Cassie Robertson appeals from convictions for possession of 

marijuana with intent to deliver and with a school bus stop enhancement, possession of 

methamphetamine, and possession of cocaine. On appeal, Robertson challenges the 

finding of probable cause that supported a search warrant and the sufficiency of the 

evidence to convict her of possession of marijuana. We affirm the validity of the search 

warrant and thereby affirm Robertson's convictions for possession ofmethamphetamine 

and cocaine. Robertson contends that, because of conflicting amendments during the 

2013 legislature session to the statute defining the tetrahydrocannabinol (THC) level in 

cannabis, the State failed to prove a sufficient level of marijuana to convict her of 
No. 34411-8-III 

State v. Robertson 

possession of marijuana because the State did not assay the green leaves seized without 

excluding THC acid. Based on RCW 1.12.025, we disagree and affirm Robertson's 

conviction for possession of marijuana. We later introduce other issues raised on appeal 

by Robertson. 

FACTS 

In 2013 and 2014, the Washington State Legislature, as a result of the 2012 

passage of Initiative 502, adopted a series of amendments to Washington's version of the 

Uniform Controlled Substances Act, chapter 69.50 RCW. The first and third 

amendments addressed the definition of marijuana, the level of THC needed to declare 

cannabis to be marijuana under the law, and the manner in which experts assay the level 

of THC. The second amendment, not intended to address the definition of marijuana, 

omitted the amending language from the first amendment. We will discuss the 

amendments in our legal analysis below. For now, we note that the State found 

marijuana in the possession of Cassie Robertson during the flux of the amendments. 

The State convicted Cassie Robertson based on evidence of controlled substances 

gathered from her home during the execution of a search warrant. Since Robertson 

argues that the warrant lacked probable cause, we now relate facts found in a telephonic 

affidavit in support of the warrant. 

Using a confidential informant, the Ephrata Police Department, in late January 

2014, conducted a controlled buy from Cassie Robertson at her home on Sunset Street in 

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No. 34411-8-III 

State v. Robertson 

Ephrata. Officers searched the informant before the purchase ploy and found no 

contraband or money. The officers then gave the informant a ten-dollar bill with the 

serial number recorded and followed the informant to Robertson's residence. The 

informant entered the residence, exited the residence minutes later, and handed Ephrata 

Officer Ryan Harvey the purchased substance. Another search of the informant produced 

no money or contraband. 

The confidential informant reported to Ephrata Police Department officers that 

Cassie Robertson welcomed the informant into her bedroom, where he viewed five 

plastic bags containing green leaves. Robertson directed the informant to seiect a 

"flavor." Clerk's Papers (CP) at 69. After the informant chose a flavor, Robertson 

weighed a small amount of the green leaves on a scale and placed the leaves into a 

smaller plastic bag. The informant handed Robertson the recorded bill. Ephrata Police 

Officer Jeff Wentworth later measured the green leaves as weighing 0.5 grams. 

Wentworth performed a field test on the green leaves and the greenery tested positive for 

manJuana. 

The confidential informant also apprised Ephrata police officers that, inside Cassie 

Robertson's abode, he viewed white powder in small plastic bags, inside larger plastic 

bags. According to the informant, Robertson identified the white powder as cocaine and 

stated that the cocaine cost $180 per ball, an eighth of an ounce or 3. 5 grams. 

On January 23, 2014, at 2:45 a.m., Ephrata Police Officer Ryan Harvey 

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No. 34411-8-III 

State v. Robertson 

telephonically requested a warrant to search Cassie Robertson's Ephrata residence. 

During the recorded call, Officer Harvey explained, under oath, that the Ephrata Police 

Department had investigated Robertson for six weeks. The confidential informant had 

recently entered Cassie Robertson's home and observed marijuana and cocaine. 

In his telephonic affidavit, Officer Ryan Harvey identified reasons why the 

confidential informant should be considered knowledgeable and reliable. The informant 

had purchased, sold, and used other controlled substances and had been convicted of 

violations of the controlled substances act. The informant previously engaged in 

controlled buys for the Ephrata Police Department, from which law enforcement 

discovered controlled substances. 

In his affidavit, Officer Ryan Harvey also listed some of his own training and 

experience. Harvey received training for narcotics investigations and investigated other 

narcotics crimes. 

A superior court judge authorized the search warrant to enter Cassie Robertson's 

home. The warrant authorized the seizure of marijuana, other controlled substances, drug 

paraphernalia, written records of drug sales, and control buy money. 

We now forward to evidence presented at trial. On January 23, 2014, at 4 a.m., 

the Ephrata Police Department executed the warrant and recovered six bags of green 

leaves, the ten-dollar bill used in the control buy, white powder, and white crystals. After 

being read Miranda warnings, Robertson admitted to officers that she sold marijuana to 

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No. 34411-8-III 

State v. Robertson 

fund her drug habit for methamphetamine and cocaine. 

Law enforcement forwarded the green leaves, the white powder, and the white 

crystals to the Washington State Patrol Crime Laboratory for testing. Sheri Jenkins, a 

forensic technician with the Washington State Patrol Crime Laboratory Division in 

Cheney, analyzed the leaves. Jenkins tested three samples of the green vegetable. 

Sample A contained 19.53 percent THC. Sample B contained 18.23 percent THC. 

Sample C contained 19.93 percent THC. The testing identified the white crystals as 

cocaine and the white powder as methamphetamine. 

The crime laboratory's test did not distinguish between delta-9 THC and THC acid 

found in the samples. Delta-9 THC is the primary psychoactive ingredient in marijuana. 

THC acid is nonpsychoactive and must be converted to delta-9 THC to influence the 

user. When someone smokes cannabis, the acid transmogrifies into delta-9 THC through 

a chemical process called decarboxylation. We do not know if the State's testing 

machine could test solely for delta-9 tetrahydrocannabinol. 

Ephrata Police Officer Ryan Harvey investigated the proximity of a school bus 

stop to Cassie Robertson's residence. Officer Harvey obtained, from the Ephrata School 

District, a list of locations of school bus stops within the district. Harvey identified two 

bus stops within a half block of Robertson's home. He drove to the locations and 

measured, with an Ephrata Police Department roller tape, the distance from each location 

to Robertson's residence. Officer Harvey never calibrated the roller tape or measured its 

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No. 34411-8-III 

State v. Robertson 

accuracy. At trial, Harvey explained how one uses the roller tape, and he demonstrated 

the roller's accuracy with a one-foot-long ruler. Officer Harvey confirmed the ruler's 

accuracy by comparing it to a standard, eleven and one-half inch long, yellow notepad. 

Harvey then testified that, using the roller tape, he measured the distance from each bus 

stop to the edge of Cassie Robertson's property. One distance reached 280 feet. Harvey 

noted that Robertson's property comprised a quarter of an acre. 

PROCEDURE 

The State of Washington charged Cassie Robertson with one count of possession 

of marijuana with the intent to deliver, one count of possession of methamphetamine, and 

one count of possession of cocaine. The State alleged the crimes occurred on January 23, 

2014, the date that Ephrata Police Department officers searched Robertson's home. The 

State later amended the information to add a school bus stop enhancement to the first 

charge. The State alleged that possession of the marijuana with intent to manufacture or 

deliver occurred within 1,000 feet of a school bus stop. 

Before trial, Cassie Robertson sought an order quashing the search warrant for her 

home and suppressing evidence found during the search of her residence. The trial court 

denied the motion. Cassie Robertson waived a jury trial. 

Forensic technician Sheri Jenkins testified at trial regarding her tests of the green 

leaves seized from Cassie Robertson's home. She admitted that her test did not 

distinguish between delta-9 tetrahydrocannabinol and THC acid. 

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State v. Robertson 

The trial court convicted Cassie Robertson on all three charged counts and the 

school bus stop enhancement for the marijuana charge. Our trial record lacks any formal 

findings of fact. Nevertheless, the trial court wrote an extensive verdict after trial, which 

mentions findings resulting from the trial. Since we do not know if the trial court entered 

findings of fact not forwarded to us and since neither party complains about the lack of 

any findings of fact, we treat the verdict as containing the trial court's findings of fact and 

conclusions of law. The trial court found that Cassie Robertson admitted to officers that 

she sold marijuana in order to gamer money to purchase cocaine and methamphetamine. 

The trial court noted the various levels of THC found in the three samples of marijuana 

tested by Sheri Jenkins. The court noted and impliedly found that the evidence failed to 

establish the THC content of delta-9 tetrahydrocannabinol alone. The trial court ruled, 

however, that the State did not need to establish the THC level by excluding THC acid 

and by delta-9 tetrahydrocannabinol alone. 

The trial court sentenced Robertson to serve twelve months of community custody 

on a parenting sentencing alternative. A condition of community custody prohibited 

possession or consumption of controlled substances, including marijuana, without a 

prescription. 

LAW AND ANALYSIS 

Probable Cause for Search Warrant 

Cassie Robertson asks that we vacate all three of her convictions on the basis that 

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State v. Robertson 

the Ephrata Police Department lacked probable cause for issuance of the search warrant 

for her home. She also contends that insufficient evidence supported her conviction for 

possession of marijuana with intent to deliver and insufficient evidence supported the 

school bus stop enhancement. Finally, Robertson challenges the community custody 

condition of abstaining from marijuana. We address the assignments of error in such 

order. 

Cassie Robertson contends the trial court should have suppressed the controlled 

substances seized pursuant to the search warrant because probable cause did not support 

the warrant. Remember that the warrant application relied on a law enforcement officer's 

THC field test of green leaves purchased from Robertson by a confidential informant. 

She claims the field test could not measure concentration of THC such that law 

enforcement lacked probable cause for identifying the leaves as marijuana. Robertson 

notes that the legislature added THC concentration to the definition of marijuana in order 

to distinguish marijuana from hemp. The State responds that the trial court properly 

denied Robertson's motion to suppress because the field test in addition to other evidence 

supported a finding of probable cause. 

We review the issuance of a search warrant for abuse of discretion. State v. 

Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004). Trial courts accord great deference 

to a magistrate's determination of probable cause. State v. Maddox, 152 Wn.2d at 509; 

State v. Clark, 143 Wn.2d 731, 748, 24 P.3d 1006 (2001). We resolve any doubts in 

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No. 34411-8-III 

State v. Robertson 

favor of the validity of the warrant. State v. Perez, 92 Wn. App. 1, 4, 963 P.2d 881 

(1998). 

An affidavit suffices for the issuance of a search warrant if, on reading the 

affidavit, an ordinary person would understand that a criminal violation occurred and 

continued at the time of the application. State v. Casto, 39 Wn. App. 229, 232, 692 P.2d 

890 (1984). Probable cause requires a nexus between criminal activity and the item to be 

seized and also a nexus between the item to be seized and the place to be searched. State 

v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). Cassie Robertson's suspected 

criminal activity entailed the sale of marijuana and the possession of other controlled 

substances. 

Cassie Robertson argues the marijuana field test performed on the green leaf 

substance obtained by the informant was legally inadequate because it could not measure 

THC concentration. In so arguing, Robertson omits reference to evidence that the 

confidential informant saw other controlled substances in Robertson's residence. We 

conclude that regardless of the presence of other controlled substances and regardless of 

whether anyone tested the marijuana, probable cause supported the search warrant. The 

probable criminal activity occurred within the area authorized to be searched. 

Law enforcement often conducts controlled buys to establish probable cause 

before applying for a search warrant. State v. Casto, 39 Wn. App. at 232; State v. Maffeo, 

31 Wn. App. 198,199,642 P.2d 404 (1982). Ifthe informant enters a building empty 

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No. 34411-8-III 

State v. Robertson 

and returns with a controlled substance, law enforcement proves the informant's assertion 

that drugs were present and confirms the informant's reliability. State v. Casto, 39 Wn. 

App. at 234. When properly executed, a controlled buy provides the facts and 

circumstances necessary to satisfy probable cause. State v. Steenerson, 3 8 Wn. App. 722, 

726, 688 P.2d 544 (1984). 

State v. Casto parallels the instant case and permits the discovery of marijuana to 

support proximate cause regardless of any testing of the vegetable. In State v. Casto, this 

court addressed whether a warrant application supported the trial court's finding of 

probable cause when based on the report of a confidential informant. We discerned no 

merit in the defendant's contention that a deputy sheriff trained in marijuana 

identification must be able to testify to the nature and proportions of his testing 

chemicals. Chemical proof is not legally required. 

Reliable information in Officer Ryan Harvey's telephonic search warrant affidavit 

established that Cassie Robertson handled marijuana, not hemp. Her instruction for the 

informant to pick a flavor corroborates that she intended the green leaves for 

consumption. The training and experience of Officer Ryan Harvey in narcotics 

investigations bolstered his identification of the green leaf substance as marijuana. The 

positive marijuana field test provided additional verifying, but unnecessary, evidence that 

confirmed the illegality of the marijuana sold by Robertson. 

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No. 34411-8-111 

State v. Robertson 

Cassie Robertson raises no other challenges to the validity of her convictions for 

possession of methamphetamine and cocaine. Therefore, we affirm her convictions on 

both charges. 

Sufficient Evidence of Unlawful Marijuana 

Cassie Robertson next contends that insufficient evidence supports her conviction 

for possession of marijuana with intent to deliver. She argues that the State failed to 

prove the green leaf substance to be marijuana. She maintains that we must apply a 

statutory definition of marijuana as cannabis with a THC concentration above 0.3 percent 

excluding THC acid. The State's test for THC concentration of Robertson's marijuana 

included the presence of THC acid. Robertson, therefore, claims the forensic testing by 

Sheri Jenkins failed to prove the substance met the statutory definition of marijuana. The 

State responds that Robertson's argument relies on a misinterpretation of the legislative 

history of the definition of marijuana and that we should apply a statutory definition that 

allows testing to include THC acid to arrive at a concentration exceeding 0.3 percent. 

We agree with the State and affirm Robertson's conviction. 

Our resolution of this intriguing issue requires the court to review the recent 

legislative history of the definition of marijuana found in RCW 69.50.101. The 

legislature has occasionally altered the definition as to whether the marijuana must 

contain a certain concentration of THC, and, if so, the constituents of marijuana that 

forensic testers may weigh to measure the concentration. RCW 69.50.101 defines terms 

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No. 34411-8-III 

State v. Robertson 

that apply to the entire chapter 69.50 RCW, including RCW 69.50.401, the statute 

prohibiting possession of marijuana with intent to deliver and under which the trial court 

convicted Cassie Robertson. 

RCW 69.50.101 currently declares, in relevant part: 

(w) "Marijuana" or "marihuana" 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; the seeds thereof; the resin extracted 

from any part of the plant; and every compound, manufacture, salt, 

derivative, mixture, or preparation of the plant, its seeds or resin. The term 

does not include: 

(1) The mature stalks of the plant, fiber produced from the stalks, oil 

or cake made from the seeds of the plant, any other compound, 

manufacture, salt, derivative, mixture, or preparation of the mature stalks 

(except the resin extracted therefrom), fiber, oil, or cake, or the sterilized 

seed of the plant which is incapable of germination; or 

(2) Industrial hemp as defined in RCW 15.120.010. 

(ss) "THC concentration" means percent of delta-9 

tetrahydrocannabinol content per dry weight of any part of the plant 

Cannabis, or per volume or weight of marijuana product, or the combined 

percent of delta-9 tetrahydrocannabinol and tetrahydrocannabinolic acid in 

any part of the plant Cannabis regardless of moisture content. 

Under the current code, the State presented sufficient evidence to convict Cassie 

Robertson of possession of marijuana with intent to deliver. The definition of THC 

concentration has undergone recent changes, however. 

Before December 6, 2012, RCW 69.50.101 read, in part: 

( q) "Marijuana" or "marihuana" means all parts of the plant 

Cannabis, whether growing or not; the seeds thereof; the resin extracted 

from any part of the plant; and every compound, manufacture, salt, 

derivative, mixture, or preparation of the plant, its seeds or resin. The term 

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No. 34411-8-111 

State v. Robertson 

does not include the mature stalks of the plant, fiber produced from the 

stalks, oil or cake made from the seeds of the plant, any other compound, 

manufacture, salt, derivative, mixture, or preparation of the mature stalks 

( except the resin extracted therefrom), fiber, oil, or cake, or the sterilized 

seed of the plant which is incapable of germination. 

The statute made no reference to THC concentration. 2012's Initiative Measure 502 

significantly decriminalized, under Washington law, the possession of marijuana in small 

amounts. The initiative, effective December 6, 2012, amended RCW 69.50.101 to 

include, within the definition ofRCW 69.50.101, a minimum THC concentration. After 

the initiative, the statute read: 

(s) "Marijuana" or "marihuana" 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; the seeds thereof; the resin extracted 

from any part of the plant; and every compound, manufacture, salt, 

derivative, mixture, or preparation of the plant, its seeds or resin. The term 

does not include the mature stalks of the plant, fiber produced from the 

stalks, oil or cake made from the seeds of the plant, any other compound, 

manufacture, salt, derivative, mixture, or preparation of the mature stalks 

( except the resin extracted therefrom), fiber, oil, or cake, or the sterilized 

seed of the plant which is incapable of germination. 

(ii) "THC concentration" means percent of delta-9 

tetrahydrocannabinol content per dry weight of any part of the plant 

Cannabis, or per volume or weight of marijuana product, or the combined 

percent of delta-9 tetrahydrocannabinol and tetrahydrocannabinolic acid 

in any part of the plant Cannabis regardless of moisture content. 

(Emphasis added). 

The Washington Legislature added amendments to Initiative 502. On May 1, 

2013, through Engrossed House Bill 2056 (EHB 2056), effective May 1, 2013, the 

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State v. Robertson 

legislature amended the definition of THC concentration. The bill reads, in pertinent 

part: 

Chapter 116 

H.B. No. 2056 

DRUGS AND MEDICINE-MARIJUANA-THC CONCENTRATION 

AN ACT Relating to correcting the definition of THC concentration 

as adopted by Initiative Measure No. 502 to avoid an implication that 

conversion, by combustion, of tetrahydrocannabinol acid into delta-9 

tetrahydrocannabinol is not part of the THC content that differentiates 

marijuana from hemp; amending RCW 69 .50.101; and declaring an 

emergency. 

BE IT ENACTED BY THE LEGISLATURE OF THE ST A TE OF 

WASHINGTON: 

Sec. 1. RCW 69.50.101 and 2013 c 12 s 2 are each amended to read 

as follows: 

(ii) "THC concentration'' means percent of delta-9 

tetrahydrocannabinol content per dry weight of any part of the plant 

Cannabis, or per volume or weight of marijuana product, or the combined 

percent of delta-9 tetrahydrocannabinol and tetrahydrocannabinolic acid 

in any part of the plant Cannabis regardless of moisture content. 

(Second emphasis added.) EHB 2056 allowed forensic testers to include THC acid when 

analyzing THC content. The state governor signed EHB 2056 on May 1, 2013. Note that 

the stated purpose ofEHB 2056 was correction of the definition of "THC concentration" 

to include conversion of THC acid. 

On May 16, 2013, the legislature adopted a competing bill, Substitute Senate Bill 

5416 (SSB 5416), effective July 28, 2013, that failed to recognize EHB 2056's inclusion 

of the final clause to the definition of THC. The Washington Governor signed the bill on 

May 16, 2013. Notably, however, when the legislature adopted SSB 5416, it did not 

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No. 34411-8-111 

State v. Robertson 

include and place a strike through "or the combined percent of delta-9 

tetrahydrocannabinol and tetrahydrocannabinolic acid in any part of the plant Cannabis 

regardless of moisture content," language previously added in EHB 2056. A strike 

through language is the method employed by the legislature when it intends to remove 

language from a statute. SSB 5416 reads, in relevant part: 

CHAPTER276 

S.S.B. No. 5416 

PRESCRIPTIONS-CONTROLLED SUBSTANCES-ELECTRONIC 

FILING 

AN ACT Relating to prescription information; amending RCW 

69.41.010, 69.50.308, and 69.50.312; and reenacting and amending RCW 

69.50.101. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF 

WASHINGTON: 

Sec. 1. RCW 69.41.010 and 2012 c 10 s 44 are each amended to 

read as follows: 

As used in this chapter, the following terms have the meanings 

indicated unless the context clearly requires otherwise: 

(s) "Marijuana" or "marihuana'' 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; the seeds thereof; the resin extracted 

from any part of the plant; and every compound, manufacture, salt, 

derivative, mixture, or preparation of the plant, its seeds or resin. The term 

does not include the mature stalks of the plant, fiber produced from the 

stalks, oil or cake made from the seeds of the plant, any other compound, 

manufacture, salt, derivative, mixture, or preparation of the mature stalks 

( except the resin extracted therefrom), fiber, oil, or cake, or the sterilized . 

seed of the plant which is incapable of germination. 

(ii) "THC concentration" means percent of delta-9 

tetrahydrocannabinol content per dry weight of any part of the plant 

Cannabis, or per volume or weight of marijuana product. 

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No. 34411-8-III 

State v. Robertson 

Note that the legislature intended SSB 5416 to address electronic filing of prescriptions 

for controlled substances. The legislature did not design the bill to sculpt the definition 

of marijuana or THC concentration. 

Finally, on April 2, 2014, the Washington Legislature adopted Engrossed 

Substitute House Bill 2304 (ESHB 2304), effective June 12, 2014. The bill returns the 

phrase "or the combined percent of delta-9 tetrahydrocannabinol and 

tetrahydrocannabinolic acid in any part of the plant Cannabis regardless of moisture 

content" to the definition of "THC" in RCW 69.50.101 and renumbers the subparagraph 

to "(kk)." The bill declares, in part: 

CHAPTER192 

Engrossed Substitute House Bill No. 2304 

MARIJUANA-PROCESSING-RETAIL LICENSES 

AN ACT Relating to marijuana processing and retail licenses; 

amending RCW 69.50.325, 69.50.354, 69.50.357, 69.50.360, 42.56.270, 

and 69.50.535; and reenacting and amending RCW 69.50.101. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF 

WASHINGTON: 

Sec. 1. RCW 69.50.101 and 2013 c 276 s 2 and 2013 c 116 s 1 are 

each reenacted and amended to read as follows: 

Unless the context clearly requires otherwise, definitions of terms 

shall be as indicated where used in this chapter: 

(t) "Marijuana" or "marihuana" 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; the seeds thereof; the resin extracted 

from any part of the plant; and every compound, manufacture, salt, 

derivative, mixture, or preparation of the plant, its seeds or resin. The term 

does not include the mature stalks of the plant, fiber produced from the 

stalks, oil or cake made from the seeds of the plant, any other compound, 

manufacture, salt, derivative, mixture, or preparation of the mature stalks 

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No. 34411-8-111 

State v. Robertson 

( except the resin extracted therefrom), fiber, oil, or cake, or the sterilized 

seed of the plant which is incapable of germination. 

(((ii))) (kk) "THC concentration" means percent of delta-9 

tetrahydrocannabinol content per dry weight of any part of the plant 

Cannabis, or per volume or weight of marijuana product, or the combined 

percent of delta-9 tetrahydrocannabinol and tetrahydrocannabinolic acid in 

any part of the plant Cannabis regardless of moisture content. 

(Alterations in original.) Note that the bill suggests that the phrase "or the combined 

percent of delta-9 tetrahydrocannabinol and tetrahydrocannabinolic acid in any part of the 

plant Cannabis regardless of moisture content" did not change prior law. The legislature 

did not highlight the phrase in order to recognize the phrase as being added to RCW 

69.50.101 by this third amendment. 

Cassie Robertson committed her alleged crime of possession of marijuana on 

January 23 and 24, 2014. Robertson therefore astutely argues that the definition of THC 

concentration found in SSB 5416 controls her prosecution since the definition comes 

from the most recent enactment adopted by the legislature before January 2014. 

According to Robertson, SSB 5416 carried an effective date later than EHB 2056 and so 

SSB 5416 impliedly amended the definition of THC to no longer allow the addition of 

combustible THC acid to reach the 0.3 required weight. This interpretation would 

undermine the results of the THC concentration test performed by Sheri Jenkins because 

the THC test did not distinguish between THC acid and delta-9 THC. To address 

Robertson's marijuana conviction, we must resolve the anomaly created by the 2013 

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No. 34411-8-111 

State v. Robertson 

legislature's amendments to RCW 69.50.101 or what the trial court aptly labeled as 

"dueling legislation." 

Cassie Robertson, in part, and the State ask us to implement principles of statutory 

interpretation in order to divine the intent of the legislature. We find these principles 

unhelpful in this setting. Our task is not to discern the meaning behind words employed 

by the legislature. None of the bills' language creates an ambiguity. EHB 2056 lucidly 

does not allow the combination of THC acid when measuring THC content. SSB 5416 

patently permits the scientist to gauge THC content by including THC acid. We must 

determine which definition of THC concentration controls Robertson's prosecution. 

The principle role of courts, under the doctrine of separation of powers, is to 

discern and apply legislative intent. Five Corners Family Farmers v. State, 173 Wn.2d 

296, 305, 268 P.3d 892 (2011). We conclude that the state legislature intended that, in 

January 2014, when Robertson possessed marijuana, the State be able to prove unlawful 

THC concentration by inclusion of THC acid in the measurement. The Washington 

Legislature passed EHB 2056, effective May 1, 2013, for the express purpose of 

amending the definition of THC concentration to permit inclusion of acid. The 

legislature declared its purpose as "correcting the definition of THC concentration as 

adopted by Initiative Measure No. 502 to avoid an implication that conversion, by 

combustion, oftetrahydrocannabinol acid into delta-9 tetrahydrocannabinol is not part of 

18 

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No. 34411-8-III 

State v. Robertson 

the THC content that differentiates marijuana from hemp." The legislature considered 

the amendment critical such that it declared the legislation an emergency. 

SSB 5416, adopted fifteen days later, omitted the correcting definition of THC 

concentration, but the legislature intended SSB 5416 to only address electronic 

prescription of drugs. SSB 5416 failed to note the amendment to the definition of THC 

caused by EHB 2056, because the later bill did not include the language of the earlier bill 

and place a strike through "or the combined percent of delta-9 tetrahydrocannabinol and 

tetrahydrocannabinolic acid in any part of the plant Cannabis regardless of moisture 

content," the method employed by the legislature when it intends to remove language 

from a statute. In the frequent rush of legislative business, the legislature erred. 

Our discernment of the legislature's intent does not finish our analysis. The issue 

on appeal is not merely one of legislative intent. Instead a distinct statute aids us in 

resolving the dueling 2013 bills. 

RCW 1.12.025(1) declares, in relevant part: 

( 1) If at any session of the legislature there are enacted two or more 

acts amending the same section of the session laws or of the official code, 

each amendment without reference to the others, each act shall be given 

effect to the extent that the amendments do not conflict in purpose, 

otherwise the act last filed in the office of the secretary of state in point of 

time, shall control: PROVIDED, That if one or more special sessions of the 

same legislature shall follow any regular session, this rule of construction 

shall apply to the laws enacted at either, both, any, or all of such sessions. 

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State v. Robertson 

We previously distinguished between the purposes of 2013's EHB 2056 and SSB 

5416. On the one hand, the legislature intended the former statute merely to alter the 

definition of THC concentration to permit inclusion of acid. On the other hand, the state 

legislature wished the latter statute only to address electronic filing of prescriptions for 

controlled substances. The legislature did not design SSB 5416 to sculpt the definition of 

marijuana or THC concentration. Therefore, RCW 1.12.025 compels us to hold that the 

language ofEHB 2056 controls the prosecution of Cassie Robertson. Thus, the State 

carried no burden to prove the THC level of the confiscated cannabis without the 

inclusion of acid. 

School Bus Stop Enhancement 

Cassie Robertson contends the trial court erred when imposing a school bus stop 

sentence enhancement because the State failed to prove every element of the 

enhancement. The enhancement statute requires proof that Robertson sold drugs within 

one thousand feet of the bus stop, and the State supplied insufficient proof of the distance 

to support her enhancement. According to Robertson, the State's measurement suffered 

because the measuring device may have been inaccurate and the officer only measured to 

the edge of Robertson's property instead of to the room where the sale occurred. The 

State responds that its evidence sufficed because it showed the accuracy of the measuring 

instrument and the entirety of Robertson's property fell within the one thousand feet 

requirement. We agree with the State. 

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State v. Robertson 

RCW 69.50.435 provides for an enhancement of the penalty imposed for a drug 

offense if the offense occurs within one thousand feet of a school bus zone. State v. 

Johnson, 116 Wn. App. 851,861, 68 P.3d 290 (2003). RCW 9.94A.5I0(6) adds a 

mandatory twenty-four months sentence to the presumptive sentence for violation of 

RCW 69.50.435. State v. Johnson, 116 Wn. App. at 861. The State must prove each 

element of the enhancement beyond a reasonable doubt. State v. Hennessey, 80 Wn. 

App. 190,194,907 P.2d 331 (1995). 

Cassie Robertson maintains that the State failed to make a prima facie case that the 

roller tape the officer used accurately measured distances. Results from a mechanical 

device lack relevancy and are therefore inadmissible unless the party offering the results 

makes a prima facie showing that the device functioned properly and produced accurate 

results. State v. Bashaw, 169 Wn.2d 133, 142, 234 P.3d 195 (2010), overruled on other 

grounds by State v. Nunez, 174 Wn.2d 707,285 P.3d 21 (2012). Robertson relies on 

Bashaw. In Bashaw, the State presented no evidence the roller tape used was accurate. 

"No comparison of results generated by the device to a known distance was made nor 

was there any evidence that it had ever been inspected or calibrated." State v. Bashaw, 

169 Wn.2d at 143. 

In this appeal. the State tested the accuracy of the roller tape using a one-foot-long 

ruler and compared the ruler to a standard yellow pad. We conclude the comparison 

establishes the accuracy of the roller tape. 

21 
No. 34411-8-III 

State v. Robertson 

In addition to arguing the State failed to prove accuracy of the roller tape, Cassie 

Robertson argues the State failed to prove the distance element because Officer Ryan 

Harvey only measured to the edge of her property, when the actual drug sale occurred in 

her bedroom. The State responds that the trial court could have found the actual location 

of the offense to be within one thousand feet of the bus stop based on Officer Harvey's 

measurement of 280 feet to the lot, based on the officer's testimony that each lot is about 

a quarter acre, and based on a map of the block found in trial exhibit 25. 

We hold that the trial court had sufficient evidence to find beyond a reasonable 

doubt that the drug offense occurred within one thousand feet of a school bus stop. First, 

Officer Ryan Harvey measured the distance from the stop to Cassie Robertson's lot. The 

distance was two hundred and eighty feet. Thus, Robertson's bedroom in her house 

would need to be located over seven hundred feet from edge of her property. Officer 

Harvey also testified that the lot was about a quarter acre in size. Using this information, 

the State shows how absurdly shaped Robertson's lot would need to be in order to 

accommodate a seven hundred feet distance on a quarter acre lot. The lot would need to 

be dramatically disproportionate. Finally, Officer Harvey testified the school bus stop 

was within half a block of Robertson's home. A trial court applying common sense and 

experience could find beyond a reasonable doubt that Robertson's home lay within the 

one thousand feet radius of the school bus stop. 

22 
No. 34411-8-III 

State v. Robertson 

Community Custody Condition 

Cassie Robertson finally contends that the trial court violated her constitutional 

right to equal protection under the Washington Constitution when it barred her from 

using marijuana as a community custody condition. The State responds that Robertson's 

equal protection argument fails because the State has legitimate interests it protects 

through the imposition of a community custody condition. We decline to review 

Robertson's unpreserved constitutional argument because it was not manifest. 

RAP 2.5(a) formalizes a fundamental principle of appellate review. The first 

sentence of the rule reads: 

Errors Raised for First Time on Review. The appellate court may 

refuse to review any claim of error which was not raised in the trial court. 

No procedural principle is more familiar than that a constitutional right, or a right of any 

other sort, may be forfeited by the failure to make timely assertion of the right before a 

tribunal havingjurisdiction to determine it. United States v. Olano, 507 U.S. 725, 731, 

113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993). 

Good sense lies behind the requirement that arguments be first asserted at trial. 

The prerequisite affords the trial court an opportunity to rule correctly on a matter before 

it can be presented on appeal. State v. Strine, 176 Wn.2d 742, 749, 293 P.3d 1177 

(2013). There is great potential for abuse when a party does not raise an issue below 

because a party so situated could simply lie back, not allowing the trial court to avoid the 

23 
No. 34411-8-III 

State v. Robertson 

potential prejudice, gamble on the verdict, and then seek a new trial on appeal. State v. 

Weber, 159 Wn.2d 252, 271-72, 149 P.3d 646 (2006). The theory of preservation by 

timely objection also addresses several other concerns. The rule serves the goal of 

judicial economy by enabling trial courts to correct mistakes and thereby obviate the 

needless expense of appellate review and further trials. Also, it facilitates appellate 

review by ensuring that a complete record of the issues will be available, and prevents 

adversarial unfairness by ensuring that the prevailing party is not deprived of victory by 

claimed errors that he had no opportunity to address. State v. Strine, 176 Wn.2d at 749-

50. 

Countervailing policies support allowing an argument to be raised for the first time 

on appeal. For this reason, RAP 2.5(a) contains a number of exceptions. RAP 2.5(a)(3) 

allows an appellant to raise for the first time "manifest error affecting a constitutional 

right." Constitutional errors are treated specially under RAP 2.5(a) because they often 

result in serious injustice and may adversely affect public perceptions of the fairness and 

integrity of judicial proceedings. State v. Scott, 110 Wn.2d 682, 686-87, 7 57 P .2d 492 

(1998). However, "permitting every possible constitutional error to be raised for the first 

time on appeal undermines the trial process, generates unnecessary appeals, creates 

undesirable retrials and is wasteful." State v. Lynn, 67 Wn. App. 339, 344, 835 P.2d 251 

(1992). 

24 
No. 34411-8-III 

State v. Robertson 

Cassie Robertson's equal protection argument implicates a constitutional right. 

This court must decide if the argument addresses "manifest error." Washington courts 

and even decisions internally have announced differing formulations for "manifest error." 

First, a manifest error is one "truly of constitutional magnitude." State v. Scott, 110 

Wn.2d at 688. Second, perhaps perverting the term manifest, some decisions emphasize 

prejudice, not obviousness. The appellant must identify a constitutional error and show 

how, in the context of the trial, the alleged error actually affected the appellant's rights. 

It is this showing of actual prejudice that makes the error manifest, allowing appellate 

review. State v. O'Hara, 167 Wn.2d 91, 99,217 P.3d 756 (2009). A third formulation is 

the facts necessary to adjudicate the claimed error must be in the record on appeal. State 

v. McFarland, 127 Wn.2d 322,333, 899 P.2d 1251 (1995). To determine whether 

Robertson has shown actual error resulting in prejudice, we look to the substance of her 

claim. 

"Washington Constitution article I, section 12, and the Fourteenth Amendment to 

the United States Constitution guarantee that persons similarly situated with respect to the 

legitimate purpose of the law must receive like treatment." State v. Manussier, 129 

Wn.2d 652, 672, 921 P .2d 4 73 (1996). Washington courts have "consistently construed 

the federal and state equal protection clauses identically and considered claims arising 

under their scope as one issue." State v. Manussier, 129 Wn.2d at 672. "Strict scrutiny 

applies when a classification affects a suspect class or threatens a fundamental right." 

25 
No. 34411-8-III 

State v. Robertson 

State v. Manussier, 129 Wn.2d at 672-73. "An as-applied challenge to the constitutional 

validity of a statute is characterized by the 'allegation that application of the statute in the 

specific context' is unconstitutional." State v. Shelton, 194 Wn. App. 660, 666, 378 P.3d 

230 (2016), review denied, 187 Wn.2d 1002, 386 P.3d 1088 (2017) (quoting City of 

Redmondv. Moore, 151 Wn.2d 664, 668-69, 91 P.3d 875 (2004). "Ifthe state action 

does not threaten a fundamental or 'important' right, or if the individual is not a member 

of a suspect or semisuspect class, we apply a rational relationship or rational basis test." 

State v. Osman, 157 Wn.2d 474, 484, 139 P.3d 334 (2006). 

In order to pursue an equal protection claim, the complaining person must 

establish that he or she is similarly situated with other persons. State v. Handley, 115 

Wn.2d 275, 289-90, 796 P.2d 1266 (1990). Equal protection does not require that all 

persons be dealt with identically, but it does require that a distinction made have some 

relevance to the purpose for which the classification is made. In re the Det. of Dydasco, 

135 Wn.2d 943, 951, 959 P.2d 1111 (1998). "Whether a defendant is similarly situated is 

an inquiry that is determined by and relative to the purpose of the challenged law." State 

v. Pedro, 148 Wn. App. 932,946,201 P.3d 398 (2009) (citing State v. Manussier, 129 

Wn.2d at 673). 

Cassie Robertson fails to show that she is receiving different treatment than other 

persons convicted of possession of marijuana with the intent to deliver. Instead, she 

compares herself to the general public arguing citizens have the freedom to consume 

26 
No. 34411-8-111 

State v. Robertson 

marijuana openly and publicly. Nevertheless, the State does not infringe equal protection 

when treating a convicted criminal differently than members of the public. Otherwise the 

constitution would not allow any incarceration or punishment. Robertson has failed to 

show an obvious error by the trial court or one of true constitutional magnitude. 

CONCLUSION 

We affirm Cassie Robertson's convictions for possession of methamphetamine 

and cocaine and possession of marijuana with intent to deliver. We also affirm her 

sentence enhancement and community custody conditions. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

Fearing, C.J. r 

WE CONCUR: 

Pennell, J. 

27