State of Washington v. John Mark Crowder ( 2016 )


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  •                                                                   FILED
    DECEMBER 1, 2016
    In the Office of the Clerk of Court
    WA State Court of Appeals, Division Ill
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    STATE OF WASHINGTON,                              )      No. 32869-4-111
    )
    Respondent,                )
    )      OPINION PUBLISHED
    V.                                         )      IN PART
    )
    JOHN MARK CROWDER,                                )
    )
    Appellant.                 )
    PENNELL, J. -    John Crowder raped a 14-year-old girl at gunpoint after supplying
    her two friends with a substance purported to be marijuana. He was convicted after a jury
    trial. The State's evidence at trial, while strong, lacked an essential component: proof the
    substance distributed by Mr. Crowder was in fact marijuana. Based on this error, we
    reverse Mr. Crowder's two convictions for distribution of controlled substances. Mr.
    Crowder' s rape conviction is affirmed in full.
    FACTS1
    Two juvenile males, S.I. and Z.H., met Mr. Crowder while out walking on a July
    night. Mr. Crowder initially invited the two males to join him in setting off some
    1
    Because Mr. Crowder's challenge goes to the sufficiency of the evidence, we
    construe the facts in the light most favorable to the State. State v. Salinas, 
    119 Wash. 2d 192
    , 201, 
    892 P.2d 1068
    (1992).
    No. 32869-4-III
    State v. Crowder
    fireworks. They then attended a nearby bonfire. While at the bonfire, Mr. Crowder asked
    S.I. and Z.H. if they wanted to smoke some marijuana. Both said yes.
    Mr. Crowder took S.I. and Z.H. to his house to obtain marijuana. All three went
    inside the garage. Once inside, Mr. Crowder retrieved a substance believed to be
    marijuana from prescription bottles located in a wooden cabinet. Mr. Crowder and the
    two young men then smoked the apparent marijuana. When they finished, all three got
    into Mr. Crowder's Jeep and headed back to the bonfire.
    After returning to the bonfire, Mr. Crowder and the two boys drank vodka shots.
    Z.H. then suggested inviting 14-year-old I.D. to join the group. After exchanging text
    messages, I.D. agreed to come out. She snuck out of her house through a window and
    Mr. Crowder picked her up in his Jeep. I.D. had never met Mr. Crowder before.
    Back at the bonfire, S.I. fell asleep and Z.H. passed out. I.D. was starting to get
    tired when Mr. Crowder came up behind her, pulled her head back, and tried to pour
    vodka down her throat. Angered, I.D. got up and started to head home. As she walked by
    the Jeep, Mr. Crowder grabbed I.D. and turned her around. I.D. told Mr. Crowder to let
    her go. He did not. Mr. Crowder removed a gun from his pocket and ordered 1.D. to
    undress and get into the back of his Jeep. He held the gun up against I.D.'s head and
    pulled back the trigger. At this point, I.D. complied with Mr. Crowder's demands.
    2
    No. 32869-4-III
    State v. Crowder
    Once inside the Jeep, Mr. Crowder raped I.D. The assault lasted approximately an
    hour. Eventually I.D. was able to get up, clothe herself, and run home. She snuck back in
    through the window and disclosed the rape several days later. At this point, the police
    began an investigation.
    Five days after the assault, law enforcement executed a search warrant at Mr.
    Crowder's house. During the search, police found several firearms, including a revolver.
    Police also recovered prescription bottles containing a leafy substance from Mr.
    Crowder's garage. One of the bottles was tested for its tetrahydrocannabinol (THC)
    content and determined to contain marijuana. An officer showed the revolver seized from
    Mr. Crowder's house to I.D. She identified it as the same gun used by Mr. Crowder. The
    gun was never test fired.
    Mr. Crowder was charged with rape in the first degree with a firearm enhancement
    and a special allegation that the victim was under the age of 15, or in the alternative, rape
    of a child in the third degree, as well as with two counts of distribution of a controlled
    substance to a person under the age of 18. The matter proceeded to trial. During voir
    dire, a prospective juror indicated he had been a child sex abuse victim. Defense counsel
    moved to strike the juror for cause. The State indicated it had no objection, but asked to
    3
    No. 32869-4-III
    State v. Crowder
    approach the bench. A bench conference occurred off the record. When the conference
    ended the court excused the juror.
    The jury convicted Mr. Crowder of the offenses against him as charged. He
    received a sentence of 360 months to life. Mr. Crowder appeals.
    ANALYSIS
    Mr. Crowder's appeal proposes three bases for reversal: First, he claims the trial
    court's off-the-record discussion during voir dire violated his public trial right. Second,
    he argues the State presented insufficient evidence the substance distributed to S.I. and
    Z.H. met the legal definition of marijuana. Finally, he contends insufficient evidence
    supports the State's claim that he used an actual firearm while raping I.D. Mr. Crowder's
    second claim is persuasive. We reject the other two.
    Public trial right
    The right to a public trial is guaranteed by article I, sections 10 and 22 of the state
    constitution. State v. Love, 
    183 Wash. 2d 598
    , 604-05, 
    354 P.3d 841
    (2015), cert. denied,
    
    136 S. Ct. 1524
    (2016). When reviewing a public trial claim, we follow a three-step
    analysis, asking: (1) whether the public trial right attaches to the proceeding at issue, (2)
    if so, whether the courtroom was closed, and (3) whether the closure was justified. 
    Id. at 605.
    "The appellant carries the burden on the first two steps; the proponent of the closure
    4
    j
    No. 32869-4-III
    I
    ,J
    l,j
    State v. Crowder
    '
    J
    carries the third." 
    Id. l Pi
                 Mr. Crowder claims the trial court violated his right to a public trial when it
    l
    J     engaged counsel in an off-the-record discussion during a juror challenge. While we agree
    II
    1     with Mr. Crowder that the public trial right attaches to this aspect of jury selection, see 
    id. I !
        at 605-06, we do not agree there was a closure. No part of the juror challenge took place
    Il
    l
    l     outside of direct public hearing and view. While in open court, the juror was questioned,
    II    Mr. Crowder's counsel made his motion for cause, and the State concurred. At this point,
    I!
    l,,   the challenge was complete. There was nothing further to make public. Although the
    j     parties engaged the judge in an unrecorded side bar prior to the court entering its formal
    Ii    ruling, this interruption does not change the fact that the substance of juror challenge
    t!    occurred entirely in open court.
    I            Mr. Crowder's public trial argument would only have traction ifhe could show
    ll    something substantive occurred during the off-the-record side bar. Our courts utilize the
    I
    "experience and logic" test to determine whether a particular court procedure implicates
    I
    II    the public trial right. 
    Id. at 605.
    Side bar conferences generally do not meet this test
    I     because they historically have been closed to the public and because public access would
    I
    I
    not positively enhance the proceedings. State v. Smith, 181 Wn.2d 508,511,334 P.3d
    J
    1
    I     1049 (2014). Mr. Crowder fails to meet his burden of establishing that the side bar in his
    j
    I
    j
    5
    No. 32869-4-111
    State v. Crowder
    case falls outside the general rule. The State proffers the side bar discussion simply
    addressed non-substantive procedural matters regarding the trial court's motions practice.
    Mr. Crowder does not contest this proffer and nothing in the record suggests it is
    inaccurate. While it would have been preferable for the court to have ensured the side bar
    was recorded, see 
    id. at 518,
    we are satisfied the present circumstances do not permit Mr.
    Crowder's public trial challenge.
    Insufficient evidence of marijuana
    Mr. Crowder argues the State failed to meet its burden of proof for the two counts
    of distributing a controlled substance to a person under the age of 18. Specifically, he
    maintains there is no evidence that the substance he provided to S.I. and Z.H. contained a
    THC content of 0.3 percent as required by statute. 2
    Evidence is sufficient to support a conviction where, after viewing the evidence in
    the light most favorable to the State, any rational trier of fact could have found the
    essential elements of the crime beyond a reasonable doubt. State v. Salinas, 
    119 Wash. 2d 192
    , 201, 829 P .2d 1068 ( 1992). When an appellant challenges the sufficiency of the
    evidence, he "admits the truth of the State's evidence and all inferences that reasonably
    2At the time of trial, the applicable statute was codified at RCW 69.50.lOl(t). The
    same statutory definition applies today, but is now found at subsection (v).
    6
    No. 32869-4-111
    State v. Crowder
    can be drawn therefrom." 
    Id. Appellate courts
    defer to the trier of fact on issues of
    conflicting testimony, witness credibility, and persuasiveness of the evidence. State v.
    Thomas, 
    150 Wash. 2d 821
    , 874-75, 
    83 P.3d 970
    (2004). Circumstantial evidence carries
    the same weight as direct evidence. State v. Goodman, 
    150 Wash. 2d 774
    , 781, 
    83 P.3d 410
    (2004).
    The parties do not dispute the elements the State was required to prove at trial.
    Under RCW 69.50.406(2), the State must prove the defendant was a person over the age
    of 18 and that he distributed a controlled substance, including marijuana, to a person
    under 18 who is at least three years his junior. For purposes of this crime, "' [ m]arijuana'
    ... means all parts of the plant Cannabis, whether growing or not, with a THC
    concentration greater than 0.3 percent on a dry weight basis .... " Former RCW
    69.50.lOl(t) (2014).
    While the parties agree the State must prove distribution of a controlled substance
    and that, in the case of marijuana, the State must prove a THC concentration of greater
    than 0.3 percent, the dissent does not accept this premise. Under the dissent's
    construction, the statute governing distribution of a controlled substance to a minor
    differs materially from the crime of distribution of a controlled substance in that the latter
    requires proof of the identity of the controlled substance, but the former does not. We
    7
    No. 32869-4-III
    State v. Crowder
    find no such distinction. The statute governing distribution to minors (RCW 69.50.406)
    incorporates the distribution statute (RCW 69.50.401) and simply adds elements
    regarding the age of the distributor and recipient. Compare RCW 69.50.401 with RCW
    69.50.406. Given the State must prove the presence of a controlled substance in a normal
    distribution case, the same is necessarily true in a case alleging distribution to a minor.
    The requirement that marijuana, to qualify as a controlled substance, must have a
    THC content of at least 0.3 percent is not something that can be dismissed as an
    unimportant definition. Again, the parties do not dispute this point. Nor should they.
    The difference between a definitional statutory requirement and an element is generally
    pertinent to issues such as the adequacy of an information or the court's "to convict"
    instructions. See State v. Porter, 
    186 Wash. 2d 85
    ,
    375 P.3d 664
    (2016) (allegation of
    charging error regarding definition of possession); State v. Johnson, 
    180 Wash. 2d 295
    , 
    325 P.3d 135
    (2014) (allegation of charging error regarding definition of"restrain"); State v.
    Allen, 
    176 Wash. 2d 611
    , 
    294 P.3d 679
    (2013) (allegation of charging error and omission of
    "true threat" definition from jury's "to convict" instruction); State v. Lorenz, 
    152 Wash. 2d 22
    , 93 P .3 d 13 3 (2004) (allegation of omission of "sexual gratification" definition from
    jury's "to convict" instruction). But the same is not true when it comes to a sufficiency
    challenge. The State is obliged to present sufficient evidence to establish that a
    8
    No. 32869-4-111
    State v. Crowder
    defendant's conduct falls within the scope of a criminal statute, regardless of whether the
    statute's requirements are elemental or definitional. See State v. Stevens, 
    158 Wash. 2d 304
    ,
    309-10, 
    143 P.3d 817
    (2006) (characterization of a statutory requirement as definitional
    does not relieve State of burden of proof). See also State v. Rich, 
    184 Wash. 2d 897
    , 
    365 P.3d 746
    (2016) (analyzing whether State presented sufficient evidence to meet statutory
    definition of recklessness); State v. McKague, 
    172 Wash. 2d 802
    , 805, 
    262 P.3d 1225
    (2011)
    (analyzing whether State presented sufficient evidence to meet statutory definition of
    "substantial bodily harm"). In sum, no matter which label applies, the State was obliged
    to present sufficient evidence of 0.3 percent THC in order to sustain Mr. Crowder's
    conviction.
    Although the parties agree about the State's evidentiary burden, there was little
    discussion at trial about THC. On cross-examination, the State's toxicology expert
    testified that to classify a substance as marijuana, it must contain more than 0.3 percent
    THC. The expert also testified on direct examination that she had examined one of the
    containers seized from Mr. Crowder's home and determined it contained marijuana.
    Read in total, the expert's testimony was sufficient to establish the substance found inside
    the container met the legal definition of marijuana. But the testimony did not establish
    the marijuana tested by the toxicologist had the same THC content as the substance
    9
    No. 32869-4-111
    State v. Crowder
    provided to S.I. and Z.H.
    As pointed out by the dissent, a toxicologist can sometimes provide random
    sampling testimony, indicating a tested substance was most likely similar to an untested
    substance. See State v. Caldera, 
    66 Wash. App. 548
    , 
    832 P.2d 139
    (1992). However, such
    testimony must be based on the foundation that the tested and untested materials appeared
    similar. 
    Id. No such
    foundation was established in this case. Because the State's
    toxicologist was not in a position to compare the substance tested in the lab to that
    consumed by S.I. and Z.H., random sampling did not provide the State an avenue of
    proof. 3
    The testimony of S.I. and Z.H. also failed to establish a link between the tested
    substance and the substance that was consumed. At the time of the police search, at least
    four pill bottles 4 were located inside Mr. Crowder's garage. Two bottles were amber-
    colored and located in the wooden cabinet described by S.I. and Z.H. Two more were
    3
    While the foundation for random sampling testimony was not met in this case,
    such testimony would be unlikely by itself to establish THC content. When the fact to be
    established is not merely the identity of a drug, but the purity or toxicity level, visual
    similarity would not appear to be sufficient to permit extrapolation. Instead, further
    testimony, explaining why similar toxicity can be assumed from similar appearance would
    need to be presented.
    4
    In his testimony, S.I. described seeing "bottles" of marijuana. 2 Verbatim Report
    of Proceedings (VRP) (Sept. 17, 2014) at 223. The State never clarified the number of
    bottles observed by S.I.
    10
    No. 32869-4-111
    State v. Crowder
    taken from a satchel. These bottles appeared to be clear in color and bore marijuana
    labels. All four bottles were potential sources of the substance distributed by Mr.
    Crowder. Yet only one was tested. During trial, neither S.I. nor Z.H. described the color
    of the bottle utilized by Mr. Crowder. Nor did they specify whether the bottle had a label.
    The boys were never shown a bottle to confirm whether it appeared similar to the one
    used by Mr. Crowder. Given the multiple possible sources of the substance distributed by
    Mr. Crowder, the State's theory that it tested a representative sample is too speculative to
    meet the substantial evidence requirement.
    The testimony from S.I. and Z.H. also did not establish the potency of the
    substance provided to them by Mr. Crowder. The two juveniles testified they were
    familiar with marijuana and that the substance provided to them by Mr. Crowder made
    them "feel high." But because the boys did not test the substance provided to them, their
    use of the term "marijuana" does not carry the same technical meaning as the term
    utilized by the toxicologist. Nor were the boys' experiences with marijuana sufficient to
    establish potency. There was no testimony about the meaning of the 0.3 percent THC
    cut-off level or whether a substance with less than 0.3 percent THC would be capable of
    producing the psychological effects recounted by the two young men. There was not
    11
    No. 32869-4-111
    State v. Crowder
    even any testimony about whether 0.3 percent is a high, low, or average amount ofTHC. 5
    Given this lack of context, testimony from the juveniles that they received a good "high"
    from the substance provided to them by Mr. Crowder does not help the State satisfy its
    burden.
    Proof of THC content would not have been difficult, let alone impossible. Apart
    from establishing a link between the bottle tested for THC and the one observed by S.I.
    and Z.H., 6 the State could have introduced expert testimony regarding the nature of THC.
    Information about the typical THC content of marijuana and the type of potency required
    to produce sensations associated with being "high" could have provided the jury
    sufficient evidence to conclude that the substance distributed by Mr. Crowder must have
    had a THC content of at least 0.3 percent. But this was not done. The State did not give
    the jury any information about the significance of a 0.3 percent THC level. Based on this
    lack of information, the State failed to meet its burden. Mr. Crowder's marijuana delivery
    5  These are not matters amenable to judicial notice. See State v. Barringer, 32 Wn.
    App. 882, 888, 
    650 P.2d 1129
    (1982) (court erred in taking judicial notice, throughjury
    instruction, that valium is also known as diazepam when only diazepam was listed in the
    statutory schedule of controlled substances), overruled on other grounds by State v.
    Monson, 
    113 Wash. 2d 833
    , 849-50, 
    784 P.2d 485
    (1989).
    6 Had the State produced such testimony, the evidence may still have been
    insufficient. Given the marijuana had been consumed, the State's best evidence regarding
    THC content would appear to have been expert testimony from a toxicologist or law
    enforcement officer.
    12
    No. 32869-4-III
    State v. Crowder
    convictions must be reversed with prejudice.
    Sufficiency of the firearm enhancement
    Mr. Crowder contends insufficient evidence supports his firearm sentencing
    enhancement because the State did not prove the firearm was operable as required by
    RCW 9.41.010(9). We disagree for the reasons we recently set forth in State v. Tasker,
    193 Wn. App. 575,373 P.3d 310, review denied, 
    186 Wash. 2d 1013
    (2016).
    As explained in Tasker, evidence that a device appears to be a real gun and is
    wielded during commission of a crime is sufficient circumstantial proof that the device is
    an actual firearm, as defined by RCW 9.41.010. 
    Tasker, 193 Wash. App. at 594
    . I.D.'s
    testimony provided sufficient circumstantial proof in this case. She testified Mr. Crowder
    threatened her with a gun and placed it to her head. She described the gun as having a
    "spinning barrel," 2 Verbatim Report of Proceedings (Sept. 17, 2014) at 143, and later
    identified the gun as a revolver seized from Mr. Crowder's house. The totality of these
    circumstances sufficiently established that Mr. Crowder was armed with a real gun as
    required by RCW 9.94A.533(3) and 9.41.010(9).
    CONCLUSION
    Mr. Crowder's conviction for first degree rape with a firearm enhancement is
    affirmed. His convictions for distribution of controlled substances are reversed with
    13
    No. 32869-4-111
    State v. Crowder
    prejudice. This matter is remanded to superior court. In the unpublished portion of this
    opinion, we reject the arguments set forth by Mr. Crowder in his statement of additional
    grounds for review.
    A majority of the panel having determined that only the foregoing portion of this
    opinion will be printed in the Washington Appellate Reports and that the remainder
    having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it
    is so ordered.
    14
    No. 32869-4-111
    State v. Crowder
    STATEMENT OF ADDITIONAL GROUNDS
    Mr. Crowder makes several additional arguments for reversal in his statement of
    additional grounds (SAG). The majority of his complaints pertain to facts outside the
    current record. They include: allegations that the State manipulated witness testimony,
    allegations that the State failed to investigate, allegations that defense counsel provided
    ineffective assistance, and arguments regarding jury selection. We will not address facts
    outside the record in the context of a direct appeal. Instead, the appropriate avenue for
    relief is a personal restraint petition. State v. McFarland, 
    127 Wash. 2d 322
    , 335, 
    899 P.2d 1251
    (1995).
    What follows is an examination of the claims of error that can be reviewed from
    the record. None are meritorious.
    Allegations of prosecutorial misconduct
    Mr. Crowder complains the State engaged in misconduct by: withholding witness
    interviews, making improper statements during closing argument, offering inflammatory
    photographs into evidence, excluding information from law enforcement reports, and
    improperly referring to his "rap sheet." SAG at 4.
    The record does not suggest any misconduct or gamesmanship with respect to the
    witness interviews. The prosecutor facilitated witness interviews without requiring court
    15
    No. 32869-4-111
    State v. Crowder
    order. Although the interviews did not take place until shortly before trial, this is not a
    basis for finding misconduct. State v. Wilson, 
    149 Wash. 2d 1
    , 
    65 P.3d 657
    (2003).
    None of Mr. Crowder's claims regarding closing argument warrant reversal. The
    vast majority of Mr. Crowder's complaints did not generate an objection. 7 In this context,
    appellate review is waived unless Mr. Crowder can establish the prosecutor's
    misstatements were so "flagrant and ill intentioned" that a curative instruction would not
    have cured the resultant prejudice. In re Pers. Restraint ofGlasmann, 
    175 Wash. 2d 696
    ,
    704, 
    286 P.3d 673
    (2012). This standard has not been met. Only two objections to the
    prosecutor's closing were preserved by defense objection. 8 In both cases, the defense
    objected that the prosecutor failed to accurately restate the record. We agree with the trial
    court that the prosecutor's statements were merely arguments regarding what could be
    inferred from the record. There was no misconduct.
    7
    These include: the prosecutor's statement that the victim "swore to tell the truth.
    And she did." 4 VRP (Sept. 19, 2014) at 547. Requesting jurors not "give in to that
    smoke screen." 
    Id. at 555.
    The prosecutor's statement, "This is what happened." 
    Id. at 557.
    The statement, "the man that did this to her." 
    Id. at 564.
    The statement, "It's time
    for justice to be served." 
    Id. And the
    prosecutor's statement "don't get fooled." 
    Id. at 595.
            8 These include the prosecutor's statements regarding the juveniles' response to
    Mr. Crowder's invitation to smoke marijuana and the prosecutor's statement that Mr.
    Crowder could not be ruled out as the contributor to a trace amount of DNA
    (deoxyribonucleic acid).
    16
    No. 32869-4-111
    State v. Crowder
    Mr. Crowder also contends the prosecutor committed misconduct by offering
    inflammatory photographs and physical evidence. Again, no objection was made and Mr.
    Crowder has not shown that a curative instruction would not have offset any alleged
    prejudice. 
    Id. Mr. Crowder
    claims the State withheld evidence based upon information allegedly
    excluded from law enforcement reports. To the degree Mr. Crowder claims error, he
    cannot show prejudice. The omitted fact that Detective Runge had attempted to contact
    child witnesses bore little relevance. The issue of whether Mr. Crowder expressed shock
    or excitement when confronted with the allegations against him were covered in
    cross-examination. The remainder of the excluded information was adequately remedied
    by the trial court's order, restricting testimony from the State's witnesses.
    Finally, Mr. Crowder complains the State's witness improperly referenced his "rap
    sheet" in testimony. Defense counsel successfully objected to this testimony, but refused
    a curative instruction. No further issue was made of this fact. Given this context, there
    was no prejudicial error.
    Sufficiency of evidence
    Apart from his misconduct allegations, Mr. Crowder claims the State failed to
    present sufficient evidence to justify his convictions. The published portion of our
    17
    No. 32869-4-111
    State v. Crowder
    opinion addresses Mr. Crowder's contentions with respect to the marijuana convictions
    and firearm enhancement. As to the rape conviction, the victim's testimony was
    sufficient to justify the jury's verdict. Corroboration was not required. RCW
    9A.44.020(1).
    Pennell, J.
    I CONCUR:
    Siddoway, J.
    18
    32869-4-111
    KORSMO, J. (dissenting) -    For several reasons, I respectfully dissent from the
    majority's ruling concerning the sufficiency of the evidence to support the two counts of
    delivery of marijuana to a child. First, the majority mistakenly adds an element to the
    delivery statute by incorporating a definition into the elements instruction. It then
    compounds the error by making the new element impossible to prove by ( 1) rejecting
    random sampling of any existing controlled substances, and (2) requiring proof of the
    quantity of THC 1 given a child in a case where the controlled substance in question has
    already been consumed. This approach conflicts with numerous cases from this court and
    the Washington Supreme Court.
    The elements of the crime are found in RCW 69.50.406(2), which makes it a class B
    felony for a person to deliver a controlled substance to a person under 18. Those elements
    were properly incorporated into jury instructions 20 and 21 that told the jury it had to
    decide whether Mr. Crowder knowingly delivered a controlled substance to each of the
    victims. 2 Clerk's Papers at 154, 155. Notably, neither the statute nor the jury instruction
    1
    Tetrahydrocannabinol.
    2
    In many respects, this situation is similar to charging felony murder. While the
    predicate felony needs to be alleged, the elements of that felony are not themselves elements
    of the murder charge. E.g., State v. Kosewicz, 174 Wn.2d 683,692,278 P.3d 184 (2012).
    No. 32869-4-III
    State v. Crowder
    required the State to prove the identity of the controlled substance. 3 Accordingly, the State
    l   never undertook to prove the identity of the controlled substance. State v. Hickman, 135
    l
    Wn.2d 97, 102, 
    954 P.2d 900
    (1998).
    The majority's error is one that is recurring oflate, largely because appellants
    t
    j   frequently argue that the definitional components of an element are themselves elements
    of the charged crime. Some courts have failed to make the distinction, but appellate
    courts have regularly rejected these arguments. E.g., State v. Porter, 
    186 Wash. 2d 85
    , 
    375 P.3d 664
    (2016) (definition not element of offense); State v. France, 
    180 Wash. 2d 809
    ,
    818-20, 
    329 P.3d 864
    (2014) (definitions do not create new elements or alternative means
    of committing offenses); State v. Lorenz, 
    152 Wash. 2d 22
    , 
    93 P.3d 133
    (2004) (definition
    not an element of charged offense). We should be doing the same.
    Due process simply requires evidence from which the jury could find each element
    of the crime was proven beyond a reasonable doubt. E.g., Jackson v. Virginia, 443 U.S.
    307,319, 
    99 S. Ct. 2781
    , 
    61 L. Ed. 2d 560
    (1979); State v. Green, 
    94 Wash. 2d 216
    , 221-22,
    616 P .2d 628 ( 1980). There was ample evidence that the defendant delivered a
    controlled substance to the two boys. First, they both told jurors that they had been given
    3
    In most instances, the identity of the controlled substance is proven at trial because
    the punishment will differ depending on the identity and classification of the substance.
    That is not a concern for RCW 69.50.406(2), which applies to any controlled substance.
    RCW 69.50.406(1) treats delivery of narcotic drugs, methamphetamine, and flunitrazepam,
    as a class A felony.
    2
    No. 32869-4-III
    State v. Crowder
    marijuana, a substance with which they had some prior limited experience, and which the
    instructions informed jurors was a controlled substance. Indeed, they had obtained a
    "five sack of weed" shortly before encountering Crowder. 2 Verbatim Report of
    Proceedings (Sept. 17, 2014) (VRP) at 277. The defendant himself told them the names
    of the varieties of "medical" marijuana he had in his collection, supplied the bong used,
    and prepared and shared the marijuana with the boys. The jury could reasonably take
    him at his own word. The boys described the effect of the marijuana on them, with at
    least one of the boys describing it as being more powerful than his previous experience.
    2VRP at 287. The boys knew what they were smoking and the jury was free to credit the
    evidence that they consumed potent marijuana. Whether this court finds that evidence
    persuasive is an irrelevancy.
    While that was sufficient for proving this charge, there was more evidence. The
    crime laboratory witness explained that one of the marijuana containers retrieved from
    the defendant's collection was tested and determined to constitute marijuana. The
    majority agrees the testimony satisfied its new potency requirement, but then discounts
    the information because of concerns that the sample utilized for testing was not shown to
    be similar to the one given the boys by the defendant. This argument was long ago
    rejected by this court:
    During an undercover operation, Caldera delivered several plastic
    bags containing a white powdery substance believed to be cocaine to
    undercover officers. A forensic expert visually inspected the substance in
    3
    No. 32869-4-111
    State v. Crowder
    each of the plastic bags and testified that the bags all appeared alike and
    each contained a similar amount of the white powdery substance. She
    randomly selected one bag for scientific testing. It tested positive as
    cocaine. . . . Caldera argues that random sampling is insufficient to identity
    the entire quantity as an illegal drug. We disagree and hold that the
    scientific testing of a random portion of a substance that is consistent in
    appearance and packaging is reliable and supports a finding that the entire
    quantity is consistent with the test results of the randomly selected portion.
    Other state and federal courts have held likewise.
    State v. Caldera, 
    66 Wash. App. 548
    , 550, 
    832 P.2d 139
    (1992) (extensive footnote listing
    supporting authority deleted). The sampling here easily satisfied this standard. The boys
    testified that the containers were similar to the one that the marijuana they smoked came
    from, and the forensic witness indicated that the containers were similar. The majority's
    complaint goes to the weight the jury would have given the testing, not its admissibility,
    if the argument had even been raised at trial. There being (understandably) no objection
    to the testimony at trial, this court does not get to discount the evidence. Even under the
    majority's revised test, the evidence was sufficient.
    Finally, the majority creates (and appears to admit that it has) an impossible
    standard to meet in delivery cases where the substance has been consumed. In a typical
    case, there is no remaining sample to be tested. Even if the victims had undergone
    urinalysis testing, it would not have provided any evidence of the drug's potency.
    4
    No. 32869-4-III
    State v. Crowder
    Indeed, the fact that the boys had smoked marijuana previously 4 would limit the ability of
    testing to confirm that they had used marijuana during their evening with Crowder.
    This is one of the strongest cases of this type one will ever see, with the victims
    able to testify about what had happened and additional samples of the same drug found at
    the place the victims told officers the sample they had consumed had originated. The
    majority is asking for an impossible standard of proof, even if one assumes that there are
    experts who can link the THC level of a drug to particular effects on the user, a fact not
    demonstrated in this record.
    The delivery to a minor convictions should be affirmed.
    4Z.H. consumed the "five sack" after he had consumed the marijuana supplied by
    the defendant, thus preventing any testing from linking the results specifically to
    Crowder. 2VRP at 321.
    5