### FILED JULY 30, 2015 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 32612-8-III Respondent, ) ) v. ) ) GERHARDR. WINTERMEIER, ) UNPUBLISHED OPINION ) Appellant. ) FEARING, J. - Ajury convicted Gerhard Wintermeier oftwo counts ofdelivery of
a controlled substance and one count ofpossession ofa controlled substance with intent to deliver. Foreach count, thejury also found that Wintermeier committedthe offense withinonethousand feet ofa schoolbus stop. Thus, thetrial court imposed a sentencing enhancementfor each conviction. On appeal, Wintermeier contends insufficient evidence supportthe school bus stop findings. FACTS OnJune 5, 2013, Gerhard Wintermeier sold methamphetamineto a confidential informant intheparking lot ofa Wenatchee Wal-Mart Stores, Inc. (Walmart).No. 32612-8-111 State v. Wintermeier
Wintermeier sat in the driver's seat ofhis van, when he handed the methamphetamine to the informant, who stood next to the van. Wintermeierretrieved the drug from a lock box under the van's passenger seat. Katie Harris, an employee ofthe Wenatchee School Districttransportation department, testified at trial to the presence oftwo bus stops near the Walmartparking lot. One stop lies at the intersection ofHorse Lake Road and Honeysett Street and the other stop approaches the intersection ofHarbell Street and Maiden Lane. Washington State Patrol Detective Grant Giacomazzi measured the distance between the site ofthe Walmart store parking lot and the school bus stop at Horse Lake Road and Honeysett Street as being 370 feet. On June 26,2013, Gerhard Wintermeier sold more methamphetamine to the same confidential informant in front ofBuckboard Cafe, in pastoral Peshastin. Wintermeier drove his van to the cafe. Wintermeier handed methamphetamine to the informant through the van's driver's side window and received $200 in return. Timothy Bentz, transportation director for Cascade School District, testified at trial to the school bus stop at Rollercoaster Road and U.S. Highway 97 as being the closest stop to the location ofGerhard Wintermeier's second sale. Detective Grant Giacomazzi, who observed the sale, measured the distance between the site ofthis sale and the school bus stop as being 528 feet.

2No. 32612-8-111 State 

### v. Wintermeier
Law enforcement tailed Gerhard Wintermeier as he drove his van from the June 26 sale. Wintermeierturned onto Highway 2 and drove toward Leavenworth. Detective Jordan Orrell and Sergeant Chris Foreman stopped and arrested Wintermeier in front of Smallwood'sHarvest, a large fruit stand. Wintermeier, with the hope ofbecoming an informanthimself, admitted thathis van contained more methamphetamine and thathe intended to sell the controlled substance. On June 27, Detective Giacomazzi obtained and executed a search warrant for the van. He found methamphetamine inside a lockbox within the van. Transportation director Timothy Bentztestified attrial to the existence ofa school bus stop "right at the entrance" ofSmallwood'sHarvest. Report ofProceedings (RP) at 121. Detective Giacomazzi did notmeasure the distance between Smallwood'sHarvest and the stop. PROCEDURE The State ofWashington charged Gerhard Wintermeierwith three crimes: (1) unlawful delivery ofa controlled substance on June 5, 2013, (2) unlawful delivery ofa controlled substance on June 26, 2013, and (3) unlawful possession ofa controlled substance with intentto deliver onJune 26, 2013. For all three counts, the State additionally alleged that Wintermeiercommittedthe offensewithin one thousand feet of
a school bus stop in violation ofRCW 69.50.435(1)(c) andRCW 9.94A.533(6).

3No. 32612-8-III State 

### v. Wintermeier
On the day preceding trial, the State added Katie Harris to its witness list. Defense counsel for Gerhard Wintermeier moved to strike Harris' testimony as a violation of CrR4.7(a)(1), which requires the disclosure ofintended witnesses no later than the omnibus hearing. The trial court denied the motion, but granted otherreliefto . Wintermeier. The court delayed Harris' testimony until defense counsel interviewed her. The court also directed the State to supply a law enforcement officer to measure, in the presence ofdefense counsel, the distances between the respective sites ofsale and the nearest school bus stop, or, in the alternative, granted Wintermeierthe opportunity to hire
an investigator to measure each distance atthe expense ofthe State. Wintermeier failed to avail himselfofany reliefgranted. Attrial, as already noted, Timothy Bentz, Katie Harris, andDetective Grant Giacomazzi testified to the existence ofvarious bus stops and their respective proximity to where Gerhard Wintermeier delivered or possessed methamphetamine. Defense counsel declined to cross-examine Katie Harris. In closing arguments, the State argued for the bus stop sentence enhancement for countthree, possession at Smallwood's Harvest with intent to deliver, as follows: There's also a school bus stop allegation for this offense. And that's established in two ways. Number one, obviously, what was found in the vanby the police on the 27th, the day they searched it, the day after the 26th, they found methamphetamine in the van and obviously, he had it in the van when he was at the Buckboard Cafe when he made the delivery to Mr. Wooten, so the crime ofpossession with intent to deliver obviously happened within 528 feet ofthe school bus stop on Rollercoaster Road. 4No. 32612-8-111 State 

### v. Wintermeier
Butin addition to that, the clear evidence in this case is, when he was stoppedby Smallwood's, the testimony by Mr. Bentzwasthatthere was a school bus stop right there at that business. No needto even do a measurement. It's ground zero right there. And so there were two bus stops involved in that. And again, 1would submit the State'sproven beyond a reasonable doubtthat that crime ofpossession with intent to deliver happenedwithin 1,000 feet ofa school bus stop. RP at 272-73. Thejuryfound Gerhard Wintermeier guilty as charged on all counts. Thejury also found by special verdict that Wintermeier committed each ofthese offenses within 1,000 feet ofa school bus route. Thetrial court's sentence reflected school bus stop sentencing enhancements. LAW AND ANALYSIS All issues on appeal surround a school bus stop sentencing enhancement. RCW 69.50.435(1) provides: Any person who violates RCW 69.50.401
... [w]ithin one thousand feet ofa school bus route stop designated by the school district
... may be punished
...by imprisonment ofup to twice the imprisonment otherwise authorized by this chapter. RCW9.94A.533(6) reads: An additional twenty-four months shall be added to the standard sentence range for any ranked offense involving a violation ofchapter 69.50 RCW ifthe offense was also a violation ofRCW 69.50.435
..., [which] shall run consecutivelyto all other sentencingprovisions. On appeal, Gerhard Wintermeier contends the State failed to present sufficient evidence to support school bus stop sentence enhancements for all three ofhis 5

### No. 32612-8-111 State 

### v. Wintermeier


### convictions. A sufficiency ofthe evidence challenge admits the truth ofthe State's evidence while allowing all reasonable inferences to be drawn in the State's favor. State


### v. Vars, 

### 157 Wn. App. 482, 496, 237 P.3d 378 (2010). Evidence is sufficient if, after viewing it in the light most favorable to the State, a rational trier offact could find each element ofthe crime beyond a reasonable doubt. State 

### v. Green, 

### 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). We address the enhancements as they pertain to each count. Count 

### 1: UnlawfulDeliveryat Walmart 

### Gerhard Wintermeier does not directly challenge the sufficiency ofevidence to convict him for delivery ofmethamphetamine at the ubiquitous Walmart. Instead, in his statement ofadditional grounds (SAG), Wintermeier contends his trial counsel was ineffective for not accepting the trial court's offer to interview Katie Harris prior to her testifying, orhiring an independent investigator to measure the distance between the site ofthe June 5, 2013 sale andthe school bus stop at Horse Lake Road and Honeysett Street. Wintermeier argues that, ifhis counsel accepted the offer, thejury could have found against the enhancement. A claim ofineffective assistance ofcounsel requires a showingthat (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defendant. State 

### v. Thomas, 

### 109 Wn.2d 222,225-26, 743 P.2d 816 (1987). Deficientperformance
occurs when counsel's performance falls below an objective standard ofreasonableness. State 

### v. Stenson, 

### 132 Wn.2d 668,705,940 P.2d 1239 (1997),postconviction relief 

### 6

### No. 32612-8-111 State v. Wintermeier grantedon othergrounds byIn re Stenson, 

### 174 Wn.2d 474,276 P.3d 286 (2012). Prejudice occurs when, but for the deficient performance, the outcome would have differed. In re Pers. Restraint of Pirtle, 

### 136 Wn.2d 467,487,965 P.2d 593 (1998). Ifan appellant fails to show one prong ofthe test, this court need not address the remaining prong. State v. Hendrickson, 

### 129 Wn.2d 61, 78, 917 P.2d 563 (1996), overruledon other grounds by Carey v. Musladin, 

### 549 U.S. 70, 127 S. Ct. 649, 166 L. 

### Ed. 2d 482 (2006). Gerhard Wintermeier cannot show prejudice. To establish that prejudice resulted from trial counsel's inaction, Wintermeier must show that action by counsel could have
overcome the evidence against him. In re Pers. Restraint of Davis, 

### 152 Wn.2d 647, 720, 101 P.3d 1(2004). Wintermeier does not claimthat an interview orcross-examination of Katie Harris would have created doubt as to the presence ofa school bus stop at Horse Lake Road and Honeysett. Nor does Wintermeier assert that a second measurement would have differed from 370 feet. Since no prejudiceresulted from counsel's inaction, Wintermeier's ineffective assistance claim necessarily fails. Count 

### 2: UnlawfulDelivery atBuckboard Cafe 

### Gerhard Wintermeier challenges the sufficiency ofevidence for the school bus stop sentencing enhancement for count two by characterizing·such evidence as "highly suspect." Wintermeier underlines the lack oftestimony as to the precise location ofthe bus stop near Buckboard Cafe. Wintermeier contends that the State failed to submit evidence as to the location ofthe school bus stop in relation to the relevant intersection 7

### No. 32612-8-III State v. Wintermeier


### and the nature ofany bus stop. Wintermeier asks, among other questions, why the State
never submitted a map for review. Gerhard Wintermeier's criticisms ofthe evidence are better suited for crossexamination and closing arguments. Timothy Bentz testified to the location ofa stop at RollercoasterRoad and U.S. 97, and Detective Grant Giacomazzi testified to its distance to Buckboard Cafe. In a light most favorable to the State, this evidence supports the jury's special verdict finding for the second count ofdelivery. Count 

### 3: Unlawful Possession atSmallwood's Harvest 

### Gerhard Wintermeier's challenge to the sufficiency ofevidence to convicthim of unlawful possessionwith intent to deliver poses a legal question rather than an evidentiary question. Wintermeier contends he did not voluntarily go to Smallwood's Harvest. Wintermeier argues a voluntary act must support the sentencing enhancement. Gerhard Wintermeier principally relies on State 

### v. Eaton, 

### 168 Wn.2d 476,229 P.3d 704 (2010). Officers arrested Thomas Eaton for driving under the influence (DUI) ofalcohol, and the officers escorted Eaton to the countyjail. Jail staffsearched Eaton's body and discovered a bag ofmethamphetamine taped to his sock. The State charged Eatonwith DUI andpossession ofmethamphetamine and sought a sentencing enhancement for possessing a controlled substance in ajail orprison. Ajury convicted Eaton on both charges and found by special verdict that Eatonpossessed methamphetamine while injail. The trial court imposed an enhanced sentence, since 

### 8No. 32612-8-111 State v. Wintermeier
RCW 9.94A.S33(S) creates a sentence enhancement for possession ofa controlled substance in ajail. The Supreme Court affirmed this court's reversal ofthe enhancement and held that RCW 9.94A.S33(S) requires that a defendant take some voluntary act to be placedwithin the enhanced zone. Eaton is inapposite to this case for at least two reasons. First, the school bus stop sentence enhancement statute, RCW 69.S0.43S(2), reads, inpart: "Itis not a defense to a prosecution for a violation ofthis section that the personwas unaware thattheprohibited conduct tookplace while in a school or school bus orwithin one thousand feet ofthe school or school bus route stop." RCW 9.94A.S33, thejailenhancement statute, contains
no similarprovision ordefense. Second, Wintermeier, while intending to sell the drug, possessed this additional methamphetamine at Buckboard Cafe, another location near a school bus stop. The State did not need to rely on the stop at Smallwood's Harvestto convict for possessionwith intentto deliver. The State also argues'that, although Gerhard Wintermeier did not choose to stop at Smallwood's Harvest, he voluntarily drove the route along the fruit stand. According to the State, law enforcement's forced stop ofWintermeier at Smallwood'sHarvest does not negate his culpability, since the school bus stop enhancement statute does notrequire an intentto deliverwithin a particular area, only an intent to deliver. State v. McGee, 122



### 9No. 32612-8-III State 

### v. Wintermeier
Wn.2d 783, 788, 864 P.2d 912 (1993). We do not rest our decision onthis additional argument. CONCLUSION Sufficient evidence supports the school bus stop sentencing enhancement for all three crimes charged against Gerhard Wintermeier. We affirm his three convictions. A majority ofthe panel has determined this opinion will not beprinted in the Washington Appellate Reports, butit will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:



# j-;**rLLowl?fJ~** C 

# z1 Siddoway, C.J.
Lawrence-Berrey, 

### J.

10