State v. Becker
| Citation | 935 P.2d 1321,132 Wn.2d 54 |
| Decision Date | 01 May 1997 |
| Docket Number | No. 63874-8,63874-8 |
| Court | United States State Supreme Court of Washington |
| Parties | The STATE of Washington, Respondent, v. Donald F. BECKER, Petitioner. The STATE of Washington, Respondent, v. Nelson GANTT, Petitioner. |
Norm Maleng, King County Prosecutor, Rod Scarr, Steven Fogg, Theresa Fricke, and Cynthia Gannett, Deputy Prosecutors, Seattle, for Respondent.
The criminal sentences of defendants Donald Becker and Nelson Gantt were enhanced for delivering cocaine to an undercover police officer within 1,000 feet of school grounds. Defendants contend (1) the State failed to prove the "Youth Education Program" (YEP) in the Alaska Building was a school, (2) the trial court improperly refused their proposed jury instruction, (3) the application of the school zone enhancement statute RCW 69.50.435. Violations committed in or on certain public places or facilities--Additional penalty--Defenses--Construction--Definitions
in this case violates due process, and (4) the trial court's language in its special verdict form was an improper comment on the evidence. The statute at issue provides:
(a) Any person who violates RCW 69.50.401(a) by manufacturing, selling, delivering, or possessing with the intent to manufacture, sell, or deliver a controlled substance ...
...
(4) Within one thousand feet of the perimeter of the school grounds;
...
... may be punished by a fine of up to twice the fine otherwise authorized by this chapter, but not including twice the fine authorized by RCW 69.50.406, or by imprisonment of up to twice the imprisonment otherwise authorized by this chapter....
RCW 69.50.435.
The Court of Appeals affirmed the conviction and enhancement. State v. Becker, 80 Wash.App. 364, 908 P.2d 903, review granted, 129 Wash.2d 1013, 917 P.2d 576 (1996). We reverse the enhancement.
Defendants were arrested in downtown Seattle on the corner of Second Avenue and Yesler Way after selling two rocks of cocaine to an undercover police officer in violation of RCW 69.50.401(a)(1)(i), a section under the Uniform Controlled Substance Act (UCSA). The information alleged that the crime occurred "within 1000 feet of the perimeter of school grounds, to-wit: Youth Employment Education Program school [sic ] under the authority of RCW 69.50.435(a)." Becker Clerk's Papers (CP) at 1.
This street corner is within 1,000 feet of the Alaska Building, a commercial office building at the corner of Second and Cherry Streets. On a portion of the third floor of the Alaska Building is the Youth Education Program. YEP is a general equivalency degree (GED) program for students who are not able to complete a traditional high school curriculum. YEP has six classrooms, five certified teachers, two or three classified staff, and serves about 80 students. There is no sign identifying the program on the outside of the building. There is, however, a bright purple banner at the third floor reception desk that reads "Seattle Public Schools Youth Education Program" (not school). Becker Report of Proceedings (BRP) at 104-05, 112. The lobby directory also lists YEP as a tenant without identifying it as a school.
YEP is administered by the Seattle School District, and its curriculum is governed by the Office of the Superintendent of Public Instruction (OSPI). It is funded with state money. The curriculum at YEP includes language arts, mathematics, social studies and science, as well as drug and alcohol education, teen parenting, conflict resolution, and health awareness classes concerning AIDS and sexuality. Some of these classes are taught by employees of the Youth Services Bureau, certified drug and alcohol facilitators, and nurses. YEP serves grades 9 through 12, providing services for students up to 21 years of age. While credit for YEP courses will transfer to a traditional high school, students cannot earn a high school diploma at YEP.
Defendants presented considerable evidence at trial that YEP does not have many of the attributes of a traditional school otherwise required by law. YEP does not have a United States flag displayed anywhere on premises, nor does it require students to recite the pledge of allegiance. The program manager for the Interagency School, which is operated by the Seattle Public School District as an umbrella agency for seven alternative programs including YEP, testified that she did not know whether YEP offered any instruction concerning United States or Washington OSPI does not identify YEP on its list of school buildings, nor has YEP ever been listed with OSPI as a public school. However, OSPI does list the headquarters of the Interagency School, located approximately two miles from the Alaska Building.
history or the United States or Washington Constitutions. BRP at 116-17. YEP has no sports teams, library, or lunchroom.
Defendants Becker and Gantt were tried together. The trial court instructed the jury that in order to find defendants guilty of the school zone violation the jury had to find "beyond a reasonable doubt that the defendant[s] delivered a controlled substance within one thousand feet of the perimeter of the school grounds." Becker CP at 23. The court also instructed the jury that
Public School means "common school" and those schools and institutions of learning having a curriculum below the college or university level as established by law and maintained at public expense.
Common school means any school maintained at public expense in each school district and carrying on a program from kindergarten through the twelfth grade or any part thereof including vocational education courses otherwise permitted by law.
Defendants' theory at trial was YEP was not a "school" within the meaning of the statute. However, the court refused an instruction proposed by the defense which listed various subjects common schools must offer including the statutory duty to offer instruction about the federal and state constitutions, the statutory duty to "teach about the life threatening dangers of AIDS," a school's duty to observe Temperance and Good Citizenship day, as well as to present educational activities suitable to the observance of Veterans' Day, in addition to the statutory requirement that all schools display a United States flag and have the students recite the pledge of allegiance. Gantt CP at 22.
The court did, however, instruct the jury that "[g]rounds means the land surrounding or attached to a house or other building." 1 Becker CP at 28.
The jury convicted both men of selling controlled substances and found by special verdict both had committed the offense "within 1000 feet of the perimeter of school grounds, to-wit: Youth Employment Education Program School [sic ]." Becker CP at 5, Gantt CP at 26. The trial court added two years to each defendant's sentence range pursuant to the special verdict, and sentenced each within the enhanced range. Both defendants appealed. Their cases were consolidated in the Court of Appeals, which affirmed the trial court. We granted review. State v. Becker, 80 Wash.App. 364, 367, 908 P.2d 903, review granted, 129 Wash.2d 1013, 917 P.2d 576 (1996).
Defendants jointly raise three claims: (1) the State failed to produce sufficient evidence to show that YEP qualifies as a school; (2) the trial court erred in failing to give defendants' proposed jury instruction setting forth the statutory requirements demanded of public schools by the Legislature; and (3) the State violated defendants' due process rights because the special verdict was based upon their proximity to a "school" the presence of which could not be readily ascertained by any understandable or available means. Additionally, Becker alone claims the special verdict form impermissibly commented on the evidence by removing an element of the charge from the jury's consideration, i.e., whether YEP is a "school." Given our
disposition of issue number three, we need not decide issues one and two. We do address the special verdict form claim because of its importance.
Defendants contend their right to due process was violated because the special verdict was based on proximity to school grounds the location of which could not be determined by any readily understandable or ascertainable means.
The Fourteenth Amendment due process clause requires fair warning of proscribed conduct. Spokane v. Douglass, 115 Wash.2d 171, 176, 795 P.2d 693 (1990). A statute is unconstitutionally vague if (1) the statute does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct it forbids, or (2) the statute does not provide ascertainable standards of guilt to protect against arbitrary enforcement. Id. at 178, 795 P.2d 693.
State v. Coria, 120 Wash.2d 156, 164, 839 P.2d 890 (1992) rejected the contention that RCW 69.50.435 was unconstitutionally vague based upon defendants' claim they did not subjectively know they were dealing drugs within 1,000 feet of a school bus stop. We held Coria, 120 Wash.2d at 164, 839 P.2d 890. We concluded RCW 69.50.435 was not unconstitutionally applied because due process does not mandate drug dealers subjectively know they are within a drug free zone for purposes of this statute to have their sentences enhanced. Id. at 166-67, 839 P.2d 890. We recently followed this reasoning in State v. Silva-Baltazar, 125 Wash.2d 472, 482, 886 P.2d 138 (1994), stating "RCW 69.50.435 is a strict liability statut...
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