FILED 


JULY 30, 2015 


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, ) 

) No. 32612-8-III 

Respondent, ) 

) 

v. ) 

) 

GERHARD R. WINTERMEIER, ) UNPUBLISHED OPINION 

) 

Appellant. ) 

FEARING, J. - A jury convicted Gerhard Wintermeier oftwo counts ofdelivery of 

a controlled substance and one count ofpossession of a controlled substance with intent 

to deliver. For each count, the jury also found that Wintermeier committed the offense 

within one thousand feet of a school bus stop. Thus, the trial court imposed a sentencing 

enhancement for each conviction. On appeal, Wintermeier contends insufficient 

evidence support the school bus stop findings. 

FACTS 

On June 5, 2013, Gerhard Wintermeier sold methamphetamine to a confidential 

informant in the parking lot of a Wenatchee Wal-Mart Stores, Inc. (Walmart). 
No. 32612-8-111 

State v. Wintermeier 

Wintermeier sat in the driver's seat of his van, when he handed the methamphetamine to 

the informant, who stood next to the van. Wintermeier retrieved the drug from a lock box 

under the van's passenger seat. 

Katie Harris, an employee of the Wenatchee School District transportation 

department, testified at trial to the presence of two bus stops near the Walmart parking 

lot. One stop lies at the intersection of Horse Lake Road and Honeysett Street and the 

other stop approaches the intersection of Harbell Street and Maiden Lane. Washington 

State Patrol Detective Grant Giacomazzi measured the distance between the site of the 

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 of Buckboard 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 of Gerhard Wintermeier's second sale. Detective Grant 

Giacomazzi, who observed the sale, measured the distance between the site of this sale 

and the school bus stop as being 528 feet. 

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No. 32612-8-111 

State v. Wintermeier 

Law enforcement tailed Gerhard Wintermeier as he drove his van from the June 

26 sale. Wintermeier turned onto Highway 2 and drove toward Leavenworth. Detective 

Jordan Orrell and Sergeant Chris Foreman stopped and arrested Wintermeier in front of 

Smallwood's Harvest, a large fruit stand. Wintermeier, with the hope of becoming an 

informant himself, admitted that his van contained more methamphetamine and that he 

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 lock box 

within the van. 

Transportation director Timothy Bentz testified at trial to the existence of a school 

bus stop "right at the entrance" of Smallwood's Harvest. Report ofProceedings (RP) at 

121. Detective Giacomazzi did not measure the distance between Smallwood's Harvest 

and the stop. 

PROCEDURE 

The State of Washington charged Gerhard Wintermeier with three crimes: (1) 

unlawful delivery of a controlled substance on June 5, 2013, (2) unlawful delivery of a 

controlled substance on June 26, 2013, and (3) unlawful possession of a controlled 

substance with intent to deliver on June 26, 2013. For all three counts, the State 

additionally alleged that Wintermeier committed the offense within one thousand feet of 

a school bus stop in violation ofRCW 69.50.435(1)(c) and RCW 9.94A.533(6). 

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No. 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 

CrR 4.7 (a)( 1), which requires the disclosure of intended witnesses no later than the 

omnibus hearing. The trial court denied the motion, but granted other relief to . 

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 of defense counsel, the distances between the respective sites of sale and the 

nearest school bus stop, or, in the alternative, granted Wintermeier the opportunity to hire 

an investigator to measure each distance at the expense of the State. Wintermeier failed 

to avail himself of any relief granted. 

At trial, as already noted, Timothy Bentz, Katie Harris, and Detective Grant 

Giacomazzi testified to the existence of various 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 

count three, 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 

van by 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. 

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No. 32612-8-111 

State v. Wintermeier 

But in addition to that, the clear evidence in this case is, when he 

was stopped by Smallwood's, the testimony by Mr. Bentz was that there 

was a school bus stop right there at that business. No need to even do a 

measurement. It's ground zero right there. And so there were two bus 

stops involved in that. And again, 1 would submit the State's proven 

beyond a reasonable doubt that that crime of possession with intent to 

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

RP at 272-73. 

The jury found Gerhard Wintermeier guilty as charged on all counts. The jury 

also found by special verdict that Wintermeier committed each of these offenses within 

1,000 feet of a school bus route. The trial 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 of a school bus route stop designated by the school district ... may be 

punished ... by imprisonment of up to twice the imprisonment otherwise 

authorized by this chapter. 

RCW 9.94A.533(6) reads: 

An additional twenty-four months shall be added to the standard 

sentence range for any ranked offense involving a violation of chapter 

69.50 RCW ifthe offense was also a violation ofRCW 69.50.435 ..., 

[which] shall run consecutively to all other sentencing provisions. 

On appeal, Gerhard Wintermeier contends the State failed to present sufficient 

evidence to support school bus stop sentence enhancements for all three of his 

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No. 32612-8-111 

State v. Wintermeier 

convictions. A sufficiency of the evidence challenge admits the truth of the 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 of fact could find each 

element of the 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: Unlawful Delivery at Walmart 

Gerhard Wintermeier does not directly challenge the sufficiency of evidence to 

convict him for delivery of methamphetamine at the ubiquitous Walmart. Instead, in his 

statement of additional 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, or hiring an independent investigator to measure the distance between the site 

of the June 5, 2013 sale and the school bus stop at Horse Lake Road and Honeysett 

Street. Wintermeier argues that, ifhis counsel accepted the offer, the jury could have 

found against the enhancement. 

A claim of ineffective assistance of counsel requires a showing that (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). Deficient performance 

occurs when counsel's performance falls below an objective standard of reasonableness. 

State v. Stenson, 132 Wn.2d 668,705,940 P.2d 1239 (1997), post conviction relief 

6 

No. 32612-8-111 

State v. Wintermeier 

granted on other grounds by In 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 ofPirtle, 136 Wn.2d 467,487,965 P.2d 593 (1998). If an 

appellant fails to show one prong of the test, this court need not address the remaining 

prong. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996), overruled on 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 ofDavis, 152 Wn.2d 647, 720, 

101 P.3d 1 (2004). Wintermeier does not claim that an interview or cross-examination of 

Katie Harris would have created doubt as to the presence of a 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 prejudice resulted from counsel's inaction, 

Wintermeier's ineffective assistance claim necessarily fails. 

Count 2: Unlawful Delivery at Buckboard Cafe 

Gerhard Wintermeier challenges the sufficiency of evidence for the school bus 

stop sentencing enhancement for count two by characterizing·such evidence as "highly 

suspect." Wintermeier underlines the lack of testimony as to the precise location of the 

bus stop near Buckboard Cafe. Wintermeier contends that the State failed to submit 

evidence as to the location of the school bus stop in relation to the relevant intersection 

7 

No. 32612-8-III 

State v. Wintermeier 

and the nature of any bus stop. Wintermeier asks, among other questions, why the State 

never submitted a map for review. 

Gerhard Wintermeier's criticisms of the evidence are better suited for crossexamination and closing arguments. Timothy Bentz testified to the location of a stop at 

Rollercoaster Road 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 of delivery. 

Count 3: Unlawful Possession at Smallwood's Harvest 

Gerhard Wintermeier's challenge to the sufficiency of evidence to convict him of 

unlawful possession with 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) 

of alcohol, and the officers escorted Eaton to the county jail. Jail staff searched Eaton's 

body and discovered a bag of methamphetamine taped to his sock. The State charged 

Eaton with DUI and possession of methamphetamine and sought a sentencing 

enhancement for possessing a controlled substance in a jail or prison. A jury convicted 

Eaton on both charges and found by special verdict that Eaton possessed 

methamphetamine while in jail. The trial court imposed an enhanced sentence, since 

8 

No. 32612-8-111 

State v. Wintermeier 

RCW 9.94A.S33(S) creates a sentence enhancement for possession of a controlled 

substance in ajail. The Supreme Court affirmed this court's reversal of the enhancement 

and held that RCW 9.94A.S33(S) requires that a defendant take some voluntary act to be 

placed within 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, in part: "It is not a defense to a 

prosecution for a violation ofthis section that the person was unaware that the prohibited 

conduct took place while in a school or school bus or within one thousand feet ofthe 

school or school bus route stop." RCW 9.94A.S33, the jail enhancement statute, contains 

no similar provision or defense. 

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 Harvest to convict for possession with 

intent to 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 of Winter meier at Smallwood's Harvest does not 

negate his culpability, since the school bus stop enhancement statute does not require an 

intent to deliver within a particular area, only an intent to deliver. State v. McGee, 122 

9 

No. 32612-8-III 

State v. Wintermeier 

Wn.2d 783, 788, 864 P.2d 912 (1993). We do not rest our decision on this 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 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. 

WE CONCUR: 

j-;rLLowl?fJ~ Cz1


Siddoway, C.J. 

Lawrence-Berrey, J. 

10