### FILED NOVEMBER 16, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, V. CASSIE KAYROBERTSON, Appellant. ) ) ) ) ) ) ) ) ) No. 34411-8-111

UNPUBLISHED OPINION

FEARING, C.J.

- Cassie Robertson appeals from convictions for possession of marijuanawith intentto deliver andwith a school bus stop enhancement, possession of methamphetamine, and possession ofcocaine. On appeal, Robertson challenges the finding ofprobable causethat supported a search warrant andthe sufficiency ofthe evidence to convicther ofpossession ofmarijuana. We affirm the validity ofthe search warrant and thereby affirm Robertson's convictions for possession ofmethamphetamine and cocaine. Robertson contends that, because ofconflicting amendments during the 2013 legislature sessionto the statute defining the tetrahydrocannabinol (THC) level in cannabis, the State failed to prove a sufficient level ofmarijuanato convictherofNo. 34411-8-III State v. Robertson possession ofmarijuanabecause 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 ofmarijuana. We later introduce other issues raised on appeal by Robertson. FACTS In 2013 and 2014, the Washington State Legislature, as a result ofthe 2012 passage ofInitiative 502, adopted a series ofamendments to Washington's version ofthe Uniform Controlled Substances Act, chapter 69.50 RCW. The first and third amendments addressed the definition ofmarijuana, the level ofTHC needed to declare cannabis to be marijuana underthe law, and the manner in which experts assay the level ofTHC. The second amendment, not intendedto address the definition ofmarijuana, 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 ofCassie Robertson during the flux ofthe amendments. The State convicted Cassie Robertson based on evidence ofcontrolled substances gathered from herhome during the execution ofa search warrant. Since Robertson argues that the warrant lacked probable cause, we now relate facts found in a telephonic affidavit in support ofthe warrant. Using a confidential informant, the Ephrata Police Department, in late January 2014, conducted a controlled buy from Cassie Robertson at herhome on Sunset Street in 2No. 34411-8-III State v. Robertson Ephrata. Officers searched the informantbefore thepurchaseploy and found no contraband or money. The officers then gave the informant a ten-dollarbill withthe serial numberrecorded and followed the informant to Robertson's residence. The informant entered the residence, exited the residence minutes later, and handed Ephrata OfficerRyan Harvey the purchased substance. Another search ofthe informantproduced

no money or contraband. The confidential informant reported to EphrataPolice Department officers that Cassie Robertson welcomedthe informant into herbedroom, where he viewed five plastic bags containing green leaves. Robertson directed the informantto seiect a "flavor." Clerk's Papers (CP) at 69. Afterthe informant chose a flavor, Robertson weighed a small amount ofthe green leaves on a scale and placed the leaves into a smallerplastic bag. The informant handed Robertsonthe recorded bill. EphrataPolice Officer JeffWentworth later measuredthe green leaves as weighing 0.5 grams. Wentworth performed a field test on the green leaves and the greenery testedpositive for manJuana. The confidential informant also apprised Ephratapolice officers that, inside Cassie Robertson's abode, he viewed white powderin small plasticbags, inside largerplastic bags. According to the informant, Robertson identifiedthe white powder as cocaine and statedthat the cocaine cost $180 perball, an eighth ofan ounce or 3.5 grams. OnJanuary 23, 2014, at 2:45 a.m., Ephrata Police OfficerRyan Harvey 3 - ------y,No. 34411-8-III State v. Robertson telephonically requested a warrant to search Cassie Robertson's Ephrataresidence. During the recorded call, OfficerHarvey explained, under oath, thatthe Ephrata Police Department had investigated Robertson for six weeks. The confidential informanthad recently entered Cassie Robertson's home and observed marijuana and cocaine. In his telephonic affidavit, OfficerRyan 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 beenconvicted of violations ofthe controlled substances act. The informant previously engaged in controlled buys for the EphrataPolice Department, from which law enforcement discovered controlled substances. In his affidavit, OfficerRyan Harvey also listed some ofhis owntraining and experience. Harvey received training for narcotics investigations and investigated other narcotics crimes. A superior courtjudge authorized the search warrantto enter Cassie Robertson's home. The warrant authorized the seizure ofmarijuana, other controlled substances, drug paraphernalia, written records ofdrug sales, and control buy money. We now forward to evidence presented at trial. OnJanuary 23, 2014, at4 a.m., the Ephrata Police Department executed the warrant andrecovered sixbags ofgreen leaves, the ten-dollar bill used in the control buy, white powder, and white crystals. After being readMiranda warnings, Robertson admittedto officers that she sold marijuanato 4No. 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 ofthe 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 ifthe State's testing machine could test solely for delta-9 tetrahydrocannabinol. Ephrata Police Officer Ryan Harvey investigatedthe proximity ofa school bus stop to Cassie Robertson's residence. OfficerHarvey obtained, from the Ephrata School District, a list oflocations ofschool bus stops within the district. Harvey identifiedtwo bus stops within a halfblock ofRobertson's home. He drove to the locations and measured, with an EphrataPolice Department roller tape, the distance from each location to Robertson's residence. OfficerHarvey never calibratedthe roller tape or measured its 

### 5No. 34411-8-III State v. Robertson

accuracy. Attrial, Harvey explained how one uses the roller tape, and he demonstrated the roller's accuracy with a one-foot-long ruler. OfficerHarvey confirmedthe ruler's accuracy by comparing it to a standard, eleven and one-halfinch long, yellow notepad. Harvey then testified that, using the rollertape, he measuredthe distance from each bus stop to the edge ofCassie Robertson's property. One distance reached 280 feet. Harvey noted that Robertson's property comprised a quarter ofan acre. PROCEDURE The State ofWashington charged Cassie Robertson with one count ofpossession ofmarijuana withthe intentto deliver, one count ofpossession ofmethamphetamine, and

one count ofpossession ofcocaine. The State alleged the crimes occurred onJanuary 23, 2014, the date that Ephrata Police Department officers searched Robertson's home. The State later amendedthe information to add a school bus stop enhancementto the first charge. The State alleged that possession ofthe marijuana with intentto manufacture or deliver occurred within 1,000 feet ofa school bus stop. Before trial, Cassie Robertson sought an order quashing the search warrant for her home and suppressing evidence found during the search ofherresidence. The trial court denied the motion. Cassie Robertson waived ajurytrial. Forensic technician Sheri Jenkins testified at trial regarding hertests ofthe green leaves seized from Cassie Robertson's home. She admittedthathertest did not distinguish between delta-9 tetrahydrocannabinol and THC acid. 6No. 34411-8-III State v. Robertson

The trial court convicted Cassie Robertson on all three charged counts and the school bus stop enhancement for the marijuana charge. Ourtrial record lacks any formal findings offact. Nevertheless, the trial court wrote an extensive verdict after trial, which mentions findings resulting from the trial. Since we do notknow ifthe trial court entered findings offact not forwarded to us and since neither party complains about the lack of any findings offact, we treat the verdict as containing the trial court's findings offact and conclusions oflaw. Thetrial court found that Cassie Robertson admitted to officers that she sold marijuana in orderto gamermoney to purchase cocaine and methamphetamine. The trial court noted the various levels ofTHC found in the three samples ofmarijuana tested by Sheri Jenkins. The court noted and impliedly found that the evidence failed to establish the THC content ofdelta-9 tetrahydrocannabinol alone. The trial courtruled, however, that the State did not need to establishthe THC level by excluding THC acid and by delta-9 tetrahydrocannabinol alone. The trial court sentenced Robertson to serve twelve months ofcommunity custody

on a parenting sentencing alternative. A condition ofcommunity custody prohibited possession or consumption ofcontrolled substances, including marijuana, without a prescription. LAWAND ANALYSIS Probable Cause for Search Warrant Cassie Robertson asks that we vacate all three ofher convictions on the basis that 7No. 34411-8-III State v. Robertson

the Ephrata Police Department lackedprobable cause for issuance ofthe search warrant for her home. She also contends that insufficient evidence supported her conviction for possession ofmarijuanawith intent to deliver and insufficient evidence supportedthe school bus stop enhancement. Finally, Robertson challenges the community custody condition ofabstaining from marijuana. We address the assignments oferror in such order. Cassie Robertson contends the trial court should have suppressedthe controlled substances seized pursuantto the search warrantbecause probable cause did not support the warrant. Rememberthat the warrant application relied on a law enforcement officer's THC field test ofgreen leaves purchased from Robertson by a confidential informant. She claims the field test could not measure concentration ofTHC suchthat law enforcement lacked probable cause for identifying the leaves as marijuana. Robertson notes that the legislature added THC concentrationto the definition ofmarijuana in order to distinguish marijuana from hemp. The State responds that the trial courtproperly denied Robertson's motion to suppress because the field test in addition to other evidence supported a finding ofprobable cause. We review the issuance ofa search warrant for abuse ofdiscretion. State v. Maddox, 152 Wn.2d 499, 509, 98 P.3d 1199 (2004). Trial courts accord great deference to a magistrate's determination ofprobable 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 8No. 34411-8-III State v. Robertson

favor ofthe validity ofthe warrant. State v. Perez, 92 Wn. App. 1, 4, 963 P.2d 881 (1998). An affidavit suffices for the issuance ofa search warrant if, onreading the affidavit, an ordinary person would understand that a criminal violation occurred and continued at the time ofthe application. State v. Casto, 39 Wn. App. 229, 232, 692 P.2d 890 (1984). Probable cause requires a nexus between criminal activity andthe itemto be seized and also a nexus between the itemto be seized andtheplace to be searched. State

v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). Cassie Robertson's suspected criminal activity entailedthe sale ofmarijuana and the possession ofother controlled substances. Cassie Robertson argues the marijuana field testperformed onthe green leaf substance obtained by the informant was legally inadequate because it could notmeasure THC concentration. In so arguing, Robertson omits reference to evidence thatthe confidential informant saw other controlled substances in Robertson's residence. We conclude thatregardless ofthe presence ofother controlled substances and regardless of whether anyone tested the marijuana, probable cause supported the searchwarrant. The probable criminal activity occurred within the area authorizedto be searched. Law enforcement often conducts controlledbuys to establish probable cause before applying for a searchwarrant. 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 9No. 34411-8-III State v. Robertson

and returns with a controlled substance, law enforcementproves 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 ofmarijuanato supportproximate cause regardless ofany testing ofthe vegetable. In State v. Casto, this court addressed whether a warrant application supportedthe trial court's finding of probable cause whenbased on the report ofa confidential informant. We discerned no merit in the defendant's contentionthat a deputy sherifftrained in marijuana identification must be able to testify to the nature and proportions ofhis testing chemicals. Chemical proofis not legally required. Reliable information in Officer Ryan Harvey's telephonic searchwarrant affidavit established that Cassie Robertson handled marijuana, not hemp. Her instruction for the informanttopick a flavor corroborates that she intendedthe green leaves for consumption. The training and experience ofOfficerRyan Harvey innarcotics investigations bolstered his identification ofthe green leafsubstance as marijuana. The positive marijuana field testprovided additional verifying, butunnecessary, evidence that confirmedthe illegality ofthe marijuana sold by Robertson.

10No. 34411-8-111 State v. Robertson

Cassie Robertson raises no other challenges to the validity ofher convictions for possession ofmethamphetamine and cocaine. Therefore, we affirm her convictions on both charges. SufficientEvidence ofUnlawful Marijuana Cassie Robertson next contends that insufficient evidence supports her conviction for possession ofmarijuana with intentto deliver. She argues thatthe State failed to prove the green leafsubstance to be marijuana. She maintains that we must apply a statutory definition ofmarijuana as cannabis with a THC concentration above 0.3 percent excluding THC acid. The State's test for THC concentration ofRobertson's marijuana included the presence ofTHC acid. Robertson, therefore, claims the forensic testing by Sheri Jenkins failed to prove the substance metthe statutory definition ofmarijuana. The State responds that Robertson's argument relies on a misinterpretation ofthe legislative history ofthe definition ofmarijuana 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 withthe State and affirm Robertson's conviction. Ourresolution ofthis intriguing issue requires the courtto review the recent legislative history ofthe definition ofmarijuana found in RCW 69.50.101. The legislature has occasionally altered the definition as to whetherthe marijuana must contain a certain concentration ofTHC, and, ifso, the constituents ofmarijuanathat forensic testers may weigh to measure the concentration. RCW 69.50.101 defines terms 11No. 34411-8-III State v. Robertson

that apply to the entire chapter 69.50 RCW, including RCW 69.50.401, the statute prohibitingpossession ofmarijuana 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 ofthe plant Cannabis, whether growing or not, with a THC concentration greaterthan 0.3 percent on a dry weight basis; the seeds thereof; the resin extracted from any part ofthe plant; and every compound, manufacture, salt, derivative, mixture, or preparation ofthe plant, its seeds orresin. The term does not include: (1) The mature stalks ofthe plant, fiber produced from the stalks, oil or cake made from the seeds ofthe plant, any other compound, manufacture, salt, derivative, mixture, orpreparation ofthe mature stalks (exceptthe resin extractedtherefrom), fiber, oil, or cake, or the sterilized seed ofthe plant which is incapable ofgermination; or (2) Industrial hemp as defined in RCW 15.120.010. (ss) "THC concentration" means percent ofdelta-9 tetrahydrocannabinol contentper dry weight ofany part ofthe plant Cannabis, or pervolume or weight ofmarijuanaproduct, orthe combined percent ofdelta-9 tetrahydrocannabinol and tetrahydrocannabinolic acid in any part ofthe plant Cannabis regardless ofmoisture content. Underthe current code, the State presented sufficient evidence to convict Cassie Robertson ofpossession ofmarijuana with intent to deliver. The definition ofTHC concentration has undergone recent changes, however. Before December 6, 2012, RCW 69.50.101 read, in part: (q) "Marijuana" or "marihuana" means all parts ofthe plant Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part ofthe plant; and every compound, manufacture, salt, derivative, mixture, or preparation ofthe plant, its seeds or resin. The term 12No. 34411-8-111 State v. Robertson

does not include the mature stalks ofthe plant, fiber produced from the stalks, oil or cake made from the seeds ofthe plant, any other compound, manufacture, salt, derivative, mixture, orpreparation ofthe mature stalks (except the resin extractedtherefrom), fiber, oil, or cake, orthe sterilized seed ofthe plant which is incapable ofgermination. The statute made no reference to THC concentration. 2012's Initiative Measure 502 significantly decriminalized, under Washington law, the possession ofmarijuana 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 ofthe plant Cannabis, whether growing or not, with a THC concentration greater than 0.3percenton a dry weight basis; the seeds thereof; the resin extracted from any part ofthe plant; and every compound, manufacture, salt, derivative, mixture, or preparation ofthe plant, its seeds orresin. The term does not include the mature stalks ofthe plant, fiber produced from the stalks, oil or cake made from the seeds ofthe plant, any other compound, manufacture, salt, derivative, mixture, or preparation ofthe mature stalks (except the resin extractedtherefrom), fiber, oil, or cake, orthe sterilized seed ofthe plantwhich is incapable ofgermination. (ii) "THC concentration" meanspercent of delta-9 tetrahydrocannabinol contentperdry weight of anypartof theplant Cannabis, orpervolume or weight of marijuanaproduct, or the combined percent of delta-9 tetrahydrocannabinol andtetrahydrocannabinolic acid in anypart of theplant 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

13No. 34411-8-III State v. Robertson legislature amended the definition ofTHC concentration. The bill reads, in pertinent part: Chapter 116 H.B. No. 2056 DRUGS AND MEDICINE-MARIJUANA-THC CONCENTRATION AN ACT Relating to correctingthe definition ofTHC 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 ofthe THC contentthat differentiates marijuana from hemp; amending RCW 69.50.101; and declaring an emergency. BE IT ENACTED BY THE LEGISLATURE OF THE STATE 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 ofdelta-9 tetrahydrocannabinol contentper dry weight ofany part ofthe plant Cannabis, or pervolume or weight ofmarijuanaproduct, or the combined percentof delta-9 tetrahydrocannabinol andtetrahydrocannabinolic acid in anypart of theplant 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 statedpurpose ofEHB 2056 was correction ofthe definition of"THC concentration" to include conversion ofTHC 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 ofthe final clause to the definition ofTHC. The Washington Governor signedthe bill on May 16, 2013. Notably, however, when the legislature adopted SSB 5416, it did not 14No. 34411-8-111 State v. Robertson

include and place a strike through "orthe combined percent ofdelta-9 tetrahydrocannabinol and tetrahydrocannabinolic acid in any part ofthe plant Cannabis regardless ofmoisture 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 ofthe plant Cannabis, whether growing or not, with a THC concentration greater than 0.3 percent on a dry weightbasis; the seeds thereof; the resin extracted from any part ofthe plant; and every compound, manufacture, salt, derivative, mixture, or preparation ofthe plant, its seeds or resin. The term does not include the mature stalks ofthe plant, fiber produced from the stalks, oil or cake made from the seeds ofthe plant, any other compound, manufacture, salt, derivative, mixture, or preparation ofthe mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized

. seed ofthe plant which is incapable ofgermination. (ii) "THC concentration" means percent ofdelta-9 tetrahydrocannabinol contentper dry weight ofany part ofthe plant Cannabis, or pervolume or weight ofmarijuanaproduct.

15No. 34411-8-III State v. Robertson

Note that the legislature intended SSB 5416 to address electronic filing ofprescriptions for controlled substances. The legislature did not design the bill to sculptthe definition ofmarijuana 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 "orthe combined percent ofdelta-9 tetrahydrocannabinol and tetrahydrocannabinolic acid in any part ofthe plant Cannabis regardless ofmoisture 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-RETAILLICENSES AN ACT Relating to marijuanaprocessing 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 ofterms shall be as indicated where used in this chapter: (t) "Marijuana" or "marihuana" means all parts ofthe plant Cannabis, whether growing or not, with a THC concentration greaterthan 0.3 percent on a dry weightbasis; the seeds thereof; the resin extracted from any part ofthe plant; and every compound, manufacture, salt, derivative, mixture, or preparation ofthe plant, its seeds or resin. The term does not include the mature stalks ofthe plant, fiber produced from the stalks, oil or cake made from the seeds ofthe plant, any other compound, manufacture, salt, derivative, mixture, orpreparation ofthe mature stalks 16No. 34411-8-111 State v. Robertson (except the resin extractedtherefrom), fiber, oil, or cake, orthe sterilized seed ofthe plantwhich is incapable ofgermination. (((ii))) (kk) "THC concentration" means percent ofdelta-9 tetrahydrocannabinol contentper dry weight ofany part ofthe plant Cannabis, orpervolume or weight ofmarijuanaproduct, orthe combined percent ofdelta-9 tetrahydrocannabinol and tetrahydrocannabinolic acid in any part ofthe plant Cannabis regardless ofmoisture content. (Alterations in original.) Note that the bill suggests that the phrase "orthe combined percent ofdelta-9 tetrahydrocannabinol and tetrahydrocannabinolic acid in any part ofthe plant Cannabis regardless ofmoisture content" did not change prior law. The legislature did nothighlight 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 ofpossession ofmarijuana on January 23 and 24, 2014. Robertson therefore astutely argues that the definition ofTHC concentration found in SSB 5416 controls herprosecution since the definition comes from the mostrecent enactment adopted bythe legislature before January 2014. According to Robertson, SSB 5416 carried an effective date laterthan EHB 2056 and so SSB 5416 impliedly amended the definition ofTHC to no longer allowthe addition of combustible THC acid to reach the 0.3 required weight. This interpretationwould undermine the results ofthe THC concentration testperformedby Sheri Jenkins because the THC test did not distinguish between THC acid and delta-9 THC. To address Robertson's marijuana conviction, we mustresolve the anomaly createdby the 2013

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# I I I I 

# I No. 34411-8-111 State v. Robertson legislature's amendments to RCW 69.50.101 orwhat the trial court aptly labeled as "dueling legislation." Cassie Robertson, in part, and the State ask us to implementprinciples ofstatutory interpretation in orderto divine the intent ofthe legislature. We find these principles unhelpful in this setting. Our task is not to discern the meaning behind words employed by the legislature. None ofthe bills' language creates an ambiguity. EHB 2056 lucidly does not allow the combination ofTHC acid when measuring THC content. SSB 5416 patently permits the scientistto gauge THC contentby including THC acid. We must determine which definition ofTHC concentration controls Robertson's prosecution. The principle role ofcourts, under the doctrine ofseparation ofpowers, 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 ofTHC acid in the measurement. The Washington Legislature passed EHB 2056, effective May 1, 2013, for the express purpose of amending the definition ofTHC concentrationto permit inclusion ofacid. The legislature declared its purpose as "correcting the definition ofTHC concentration as adopted by Initiative Measure No. 502 to avoid an implicationthat conversion, by combustion, oftetrahydrocannabinol acid into delta-9 tetrahydrocannabinol is notpart of

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# INo. 34411-8-III State v. Robertson

the THC contentthat 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 ofTHC concentration, butthe legislature intended SSB 5416 to only address electronic prescription ofdrugs. SSB 5416 failed to note the amendment to the definition ofTHC caused by EHB 2056, because the laterbill did not include the language ofthe earlierbill and place a strike through "orthe combinedpercent ofdelta-9 tetrahydrocannabinol and tetrahydrocannabinolic acid in any part ofthe plant Cannabis regardless ofmoisture content," the method employed by the legislature when it intends to remove language from a statute. In the frequent rush oflegislative business, the legislature erred. Our discernment ofthe legislature's intent does not finish our analysis. The issue

on appeal is not merely one oflegislative intent. Instead a distinct statute aids us in resolving the dueling 2013 bills. RCW 1.12.025(1) declares, in relevant part: (1) Ifat any session ofthe legislature there are enactedtwo or more acts amending the same section ofthe session laws or ofthe official code, each amendment withoutreference 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 ofthe secretary ofstate in point of time, shall control: PROVIDED, That ifone or more special sessions ofthe same legislature shall follow any regular session, this rule ofconstruction shall apply to the laws enacted at either, both, any, or all ofsuch sessions.

19No. 34411-8-III State v. Robertson

We previously distinguished between the purposes of2013's EHB 2056 and SSB 5416. On the one hand, the legislature intended the former statute merely to alter the definition ofTHC concentration to permit inclusion ofacid. Onthe otherhand, the state legislature wished the latter statute only to address electronic filing ofprescriptions for controlled substances. The legislature did not design SSB 5416 to sculptthe definition of marijuana or THC concentration. Therefore, RCW 1.12.025 compels us to hold that the language ofEHB 2056 controls the prosecution ofCassie Robertson. Thus, the State carried no burden to prove the THC level ofthe confiscated cannabis without the inclusion ofacid. 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 ofthe enhancement. The enhancement statute requires proofthat Robertson sold drugs within

one thousand feet ofthe bus stop, and the State supplied insufficientproofofthe 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 ofRobertson's property instead ofto the room where the sale occurred. The State responds that its evidence sufficed because it showedthe accuracy ofthe measuring instrument and the entirety ofRobertson's property fell within the one thousand feet requirement. We agree with the State. 20No. 34411-8-III State v. Robertson

RCW 69.50.435 provides for an enhancement ofthe penalty imposed for a drug offense ifthe offense occurs within one thousand feet ofa 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 mustprove each element ofthe enhancement beyond a reasonable doubt. State v. Hennessey, 80 Wn. App. 190,194,907P.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 aprima facie showing that the device functioned properly and produced accurate results. State v. Bashaw, 169 Wn.2d 133, 142, 234 P.3d 195 (2010), overruledon other grounds byState v. Nunez, 174 Wn.2d 707,285 P.3d 21 (2012). Robertson relies on Bashaw. In Bashaw, the Statepresented no evidence the roller tape used was accurate. "No comparison ofresults generated by the device to a known distance was made nor

was there any evidence that it had everbeen inspected or calibrated." State v. Bashaw, 169 Wn.2d at 143. In this appeal. the State tested the accuracy ofthe roller tape using a one-foot-long ruler and compared the rulerto a standardyellow pad. We conclude the comparison establishes the accuracy ofthe roller tape. 21No. 34411-8-III State v. Robertson

In addition to arguing the State failed to prove accuracy ofthe roller tape, Cassie Robertson argues the State failed to prove the distance element because OfficerRyan Harvey only measured to the edge ofherproperty, whenthe actual drug sale occurred in herbedroom. The State responds that the trial court could have found the actual location ofthe offense to be within one thousand feet ofthe bus stop based on OfficerHarvey's measurement of280 feet to the lot, based on the officer's testimony that each lot is about

a quarter acre, and based on a map ofthe 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 ofa 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 ofherproperty. 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 orderto 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 halfa block ofRobertson'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 ofthe school bus stop.

22No. 34411-8-III State v. Robertson Community Custody Condition Cassie Robertson finally contends that the trial court violatedher 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 ofa community custody condition. We decline to review Robertson's unpreserved constitutional argumentbecause it was not manifest. RAP 2.5(a) formalizes a fundamental principle ofappellate review. The first sentence ofthe rule reads: Errors Raised for First Time on Review. The appellate court may refuse to review any claim oferror which was notraised in the trial court. No procedural principle is more familiar than that a constitutional right, or a right ofany other sort, may be forfeited by the failure to make timely assertion ofthe right before a tribunal havingjurisdiction to determine it. UnitedStates 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 matterbefore 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 aparty so situated could simply lie back, not allowing the trial courtto avoid the

23No. 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 ofpreservation 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 ofappellate review and further trials. Also, it facilitates appellate review by ensuring that a complete record ofthe issues will be available, and prevents adversarial unfairness by ensuring that the prevailingparty is not deprived ofvictory by claimed errors that he had no opportunity to address. State v. Strine, 176 Wn.2d at 749- 50. Countervailingpolicies support allowing an argument to be raised for the first time

on appeal. Forthis reason, RAP 2.5(a) contains a number ofexceptions. 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 ofthe fairness and integrity of judicial proceedings. State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1998). However, "permitting everypossible constitutional error to beraised 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).

24No. 34411-8-III State v. Robertson

Cassie Robertson's equal protection argument implicates a constitutional right. This court must decide ifthe argument addresses "manifest error." Washington courts and even decisions internally have announced differing formulations for "manifesterror." First, a manifest error is one "truly ofconstitutional 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 ofthe trial, the alleged error actually affected the appellant's rights. It is this showing ofactual 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 errorresulting in prejudice, we look to the substance ofher claim. "Washington Constitution article I, section 12, and the Fourteenth Amendmentto the United States Constitution guarantee that persons similarly situated with respect to the legitimate purpose ofthe law mustreceive like treatment." State 

### v. Manussier, 129 Wn.2d 652, 672, 921 P.2d 473 (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 orthreatens a fundamental right." 25No. 34411-8-III State v. Robertson

State v. Manussier, 129 Wn.2d at 672-73. "An as-applied challenge to the constitutional validity ofa statute is characterized by the 'allegation that application ofthe 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 ifthe individual is not a member ofa suspect or semisuspect class, we apply a rational relationship orrational basis test." State v. Osman, 157 Wn.2d 474, 484, 139 P.3d 334 (2006). In order to pursue an equal protection claim, the complainingperson 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 ofthe 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 treatmentthan other persons convicted ofpossession ofmarijuana with the intentto deliver. Instead, she compares herselfto the general public arguing citizens have the freedom to consume 26No. 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 ofthe public. Otherwise the constitution would not allow any incarceration orpunishment. Robertson has failed to show an obvious error by the trial court or one oftrue constitutional magnitude. CONCLUSION We affirm Cassie Robertson's convictions for possession ofmethamphetamine and cocaine and possession ofmarijuana with intentto deliver. We also affirm her sentence enhancement and community custody conditions. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

Fearing, C.J. 

# r WE CONCUR:

Pennell, J.

27