State v. Anderson
| Decision Date | 18 November 2021 |
| Docket Number | NO. 98973-7,98973-7 |
| Parties | STATE of Washington, Respondent, v. Brian Jeffrey ANDERSON, Petitioner. |
| Court | Washington Supreme Court |
Kevin Andrew March, Nielsen Koch PLLC, 1908 E. Madison St., Seattle, WA, for Petitioner.
Gregory Lee Zempel, Jodi Marie Hammond, Carole Louise Highlan, Kittitas County Pros. Attorney Office, 205 W 5th Ave. Ste. 213, Ellensburg, WA, 98926-2887, for Respondent.
¶1 Brian Jeffrey Anderson was convicted of four counts of delivery of a controlled substance, methamphetamine. The fourth amended information alleged that the first count was subject to RCW 69.50.435(1)(c) ’s "[a]dditional penalty" because the offense occurred "[w]ithin one thousand feet of a school bus route stop designated by the school district." The special verdict form asked the jury whether the defendant delivered a controlled substance to a person "within one thousand feet of a school bus route stop designated by a school district." The jury was not instructed on the definition of "school bus route stop." But unchallenged jury instructions proposed by the State defined "school bus" as a vehicle with a seating capacity of more than 10, among other specifications, and the State presented no evidence on the seating capacity of any buses or on the other listed definitional factors. The jury then answered yes to the special verdict form's question, and the court imposed RCW 69.50.435(1)(c) ’s "[a]dditional penalty" (or sentencing enhancement).
¶2 Anderson contends that under the law of the case doctrine, the unchallenged jury instruction defining "school bus" in such detail compelled the State to prove that a "school bus" meeting that detailed definition actually used the school bus stops at issue here. He further argues that the evidence was insufficient to meet that burden of proof. The State acknowledges that it presented no evidence on the "school bus" definitional details; it argues that neither the statute nor the law of the case doctrine required it to do so. We agree with the State and affirm.
¶3 Two confidential informants working with the Ellensburg police completed controlled buys of methamphetamine from Anderson on four separate occasions: once on August 20, 2015, and three times in 2016. Clerk's Papers (CP) at 33-34; 2 Jury Trial Proceedings (JTP) (July 31, 2018) at 189, 199; 3 JTP (Aug. 1, 2018) at 320. As a result, the State charged Anderson with four counts of delivery of a controlled substance. CP at 33-34. The fourth amended information alleged that the first count was subject to an enhanced sentence because the crime occurred within 1,000 feet of a "school bus route stop designated by the school district" in violation of RCW 69.50.435. Id. at 33.
¶4 To prove this sentence enhancement factor, the State called John Landon, the assistant director of transportation for the Ellensburg School District. 2 JTP (July 31, 2018) at 234.1 Landon described State's exhibit 6 to the jury; it was a map prepared by the previous director of transportation that showed five bus stops within 1,000 feet of the August 20, 2015 drug delivery charged in count 1. Id . at 234, 236. Landon further testified that his department used an "educational logistic software" to create the bus route maps by uploading maps from the county, marking school bus stops, and then using a database "to add or subtract and to remove bus stops, depending on ridership, depending if they're active students ...." Id. at 236. All five of the stops he identified were used regularly during the school district's summer school program in 2015, and that program ran until August 23—three days after the date of the charged drug transaction. Id. at 237-38. No other witness testified about buses or bus stops, and no testimony or evidence was presented on the specifications of the school buses that used these stops. See id. at 233-38.
¶5 The court used the State's proposed jury instructions. It instructed the jury on the elements of delivery of a controlled substance for all four counts. CP at 47-50. It instructed the jury that the State had the burden of proving each element of the crimes and sentence enhancements beyond a reasonable doubt. Id. at 47-50, 58. The court also provided the jury with a special verdict form for count 1, which read, "Did the defendant deliver a controlled substance to a person within one thousand feet of a school bus route stop designated by a school district ?" Id. at 75 (emphasis added).
¶6 The court did not instruct the jury on the definition of "school bus route stop."2 But it did instruct the jury on the definitions of "school" and "school bus." Id. at 56, 57. Both instructions followed the Washington Pattern Jury Instructions. Instruction 19 defined "school" as follows:
The term "school" means a school or institution of learning having a curriculum below the college or university level as established by law and maintained at public expense. The term ‘school’ also means a school maintained at public expense in a school district and carrying on a program from kindergarten through the twelfth grade, or any part thereof, including vocational education courses.
Id. at 56; see 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 50.62, at 1177 (4th ed. 2016) (WPIC). Instruction 20 defined "school bus" as follows:
"School bus" means a vehicle that meets the following requirements: (1) has a seating capacity of more than ten persons including the driver; (2) is regularly used to transport students to and from school or in connection with school activities; and (3) is owned and operated by any school district for the transportation of students. The term does not include buses operated by common carriers in the urban transportation of students such as transportation of students through a municipal transportation system.
CP at 57; see WPIC 50.63, at 1179.
¶7 The defense did not object to these instructions. 4 JTP (Aug. 2, 2018) at 530-34.
¶8 The jury returned guilty verdicts on all four counts of delivery and answered yes to the "school bus route stop" sentence enhancement.3 CP at 74-82. Anderson moved for an alternative, more rehabilitative, drug offender sentencing alternative sentence pursuant to RCW 9.94A.662. Id. at 83. The trial court denied the motion and sentenced Anderson to 54 months of confinement on count 1, including 24 months for the "school bus route stop" aggravating factor. Id. at 97-98. It also imposed concurrent sentences of 30 months each on counts 2, 3, and 4. Id.
¶9 On appeal, Anderson raised five assignments of error. Relevant here, he argued that the law of the case doctrine compelled the State to prove that the buses that actually used the identified bus stops met the seating capacity and other detailed specifications in instruction 20, and that the State failed to do so. Specifically, he argued that "[n]o evidence was presented as to any school bus's seating capacity, ownership, or operation," so the State provided "insufficient evidence to support that the route stops were actually school bus route stops." Br. of Appellant at 2 (Wash. Ct. App. No. 36330-9-III (2019)). He also argued that the trial court erred in imposing certain legal financial obligations (LFOs). Id. at 3.
¶10 A divided three-judge panel of Division Three of the Court of Appeals affirmed the convictions and sentence but remanded to strike the LFOs. In an unpublished opinion, each judge wrote separately on the sufficiency of evidence issue. State v. Anderson , No. 36330-9-III, 2020 WL 3121174 (Wash. Ct. App. June 4, 2020) (unpublished), http://www.courts.wa.gov/opinions/pdf/363309_unp.pdf. The lead opinion stated that the law of the case doctrine did not apply to the "school bus" definition at all and that sufficient evidence supported the "school bus route stop" special verdict. Anderson , slip op. at 10-13. The concurring opinion avoided discussion of the law of the case doctrine completely. Id. at 1-3 (Lawrence-Berrey, J., concurring). It focused solely on statutory interpretation, explained that "the legislature intended the State to prove only that a school district had designated the stop a school bus route stop," and concluded that the State had done so. Id. at 2. The concurring in part/dissenting in part opinion would have reversed the sentence enhancement because the State did not introduce evidence of the seating capacity of school buses using the stops, which it interpreted as a statutory requirement. Id. at 1 (Fearing, J., concurring in part/dissenting in part).
¶11 Anderson's motion for reconsideration was denied, and he petitioned for review in this court on three issues. Pet. for Review at 1-2. We granted review only on his challenge to the sufficiency of the evidence supporting the "school bus route stop" sentence enhancement. State v. Anderson , 196 Wash.2d 1024, 476 P.3d 581 (2020).
I. RCW 69.50.435(1)(c) requires the State to prove only that a school district designated a location as a "school bus route stop"—not that a "school bus" meeting the technical definition in RCW 69.50.435(6)(b) actually stopped there
¶12 Anderson frames his argument wholly in terms of the law of the case doctrine. This long-established doctrine, which applies in both civil and criminal cases, "is ‘multifaceted’ and ‘means different things in different circumstances.’ " State v. Johnson , 188 Wash.2d 742, 755, 399 P.3d 507 (2017) (quoting Roberson v. Perez , 156 Wash.2d 33, 41, 123 P.3d 844 (2005) ). In the context of jury instructions, the law of the case doctrine refers to the rule that " ‘the instructions given to the jury by the trial court, if not objected to, shall be treated as the properly applicable law.’ " Lutheran Day Care v. Snohomish County , 119 Wash.2d 91, 113, 829 P.2d 746 (1992) (quoting 15 LEWIS H. ORLAND & KARL B. TEGLAND, WASHINGTON PRACTICE: JUDGMENTS § 380, at 56 (4th ed. 1986)).4
¶13 Thus, in a criminal case, "the State assumes the burden of proving...
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