State v. Bertrand
| Decision Date | 08 December 2011 |
| Docket Number | No. 40403–6–II.,40403–6–II. |
| Citation | 165 Wash.App. 393,267 P.3d 511 |
| Parties | STATE of Washington, Respondent, v. Shawny L. BERTRAND, Appellant. |
| Court | Washington Court of Appeals |
OPINION TEXT STARTS HERE
Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA, for Appellant.
Sara I. Beigh, Lewis County Prosecutors Office, Chehalis, WA, for Respondent.
[165 Wash.App. 395] ¶ 1 Shawny L. Bertrand appeals the trial court's imposition of legal financial obligations (LFOs) and an enhanced sentence following her jury conviction for delivering a controlled substance (oxycodone). RCW 69.50.401(2)(a). For the first time on appeal, she argues that (1) the unanimity language in the special verdict jury instruction, asking whether she delivered a controlled substance within 1,000 feet of a designated school-bus-stop (RCW 69.50.435), was error, citing Bashaw;1 and (2) the record is insufficient to support the trial court's imposition of LFOs, especially its finding that she had the present or future ability to pay. We affirm Bertrand's enhanced sentence because she did not preserve the special verdict unanimity instruction challenge below and she does not raise a manifest error implicating a specifically identified constitutional right that she may raise for the first time on appeal under RAP 2.5(a)(3). We also affirm the trial court's imposition of LFOs, but we reverse and remand to the trial court to vacate its unsupported finding that Bertrand has the current or future ability to pay these LFOs.
¶ 2 In late March 2009, an informant working for the Centralia Police Department made a “controlled buy” 2 of prescription oxycodone pills from Shawny Lee Bertrand. Verbatim Report of Proceedings (VRP) (Jan. 13, 2010) at 28. The informant wore a court-approved wire device and tape recorded the drug purchase. The informant drove to Bertrand's home and knocked on the front door; Bertrand's mother let him inside. Finding Bertrand asleep, the informant woke her and explained that he had $300 for 15 oxycodone pills. Bertrand retrieved her prescription pill bottle, counted out 15 pills, and exchanged the pills for the informant's $300. The informant left Bertrand's home, returned to the police station, and turned the purchased drugs over to the police, who then completed standard “controlled buy” procedures.3 VRP (Jan. 13, 2010) at 38.
¶ 3 The State charged Bertrand with unlawfully delivering a controlled substance (oxycodone) on or about March 23, 2009, and alleged that the sale had occurred within 1,000 feet of a designated school bus stop as the basis for an enhanced sentence under RCW 69.50.435. At Bertrand's January 2010 trial, the Centralia School District's assistant transportation director, Dale Dunham, testified that in March 2009, a designated, actively used, school bus stop existed at the corner of “Ives and Lamar.” VRP (Jan. 13, 2010) at 76. A City of Centralia engineer technician testified that this bus stop was 883.71 feet from Bertrand's home. This evidence was uncontroverted.
¶ 4 Bertrand and her family members testified that the drug sale allegation was false and that the informant usually stopped by Bertrand's residence to see her daughter's boyfriend. Bertrand acknowledged that she had a prescription for oxycodone in March 2009. But she contended that, during an earlier visit, the informant had planted the oxycodone pills at issue here to fulfill his police informant obligations and to better his position in his own legal proceedings. The State countered that none of the defense witnesses' testimonies could explain the informant's tape-recorded purchase of the oxycodone from Bertrand.
¶ 5 Apparently the State, Bertrand, and the trial court proposed jury instructions. Bertrand did not object to any of the trial court's jury instructions. Jury instruction 13 explained the jury's duties for considering the school-bus-stop special verdict:
If you find the defendant guilty of Delivery of a Controlled Substance as charged in Count I, it will then be your duty to determine whether or not the defendant delivered the controlled substance to a person within one thousand feet of a school bus route stop designated by a school district. You will be furnished with a special verdict form for this purpose.
If you find the defendant not guilty of Delivery of a Controlled Substance, do not use the special verdict form. If you find the defendant guilty, you will complete the special verdict. Since this is a criminal case, all twelve of you must agree on the answer to the special verdict.
If you find from the evidence that the state has proved beyond a reasonable doubt that the defendant delivered the controlled substance to a person within one thousand feet of a school bus route stop designated by a school district, it will be your duty to answer the special verdict “yes”.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt that the defendant delivered the controlled substance to a person within one thousand feet of a school bus route stop designated by a school district, it will be your duty to answer the special verdict “no”.
Clerk's Papers (CP) at 33 (Jury Instruction 13) (emphasis added). Bertrand neither objected nor proposed changes to this instruction.4
¶ 6 The jury found Bertrand guilty of delivering a controlled substance and answered, “Yes,” on the special verdict form, finding that Bertrand had made this delivery within 1,000 feet of a designated school bus stop, in violation of RCW 69.50.435. CP at 35. Both the State and Bertrand declined the trial court's offer to poll the jury about its unanimous verdicts.
¶ 7 On February 9, 2010, the trial court sentenced Bertrand to 36 months and 1 day of confinement, which included 24 months for the school-bus-stop sentencing enhancement and 12 months of community custody. The trial court also (1) found that Bertrand had the ability, or likely would have the ability in the future, to pay LFOs; (2) imposed a total of $4,304 in LFOs; (3) set Bertrand's minimum monthly payment at $25; and (4) scheduled payment obligations to begin 60 days from the date of the judgment and sentence. Bertrand did not object to the imposition of LFOs at sentencing; nor did she assert that, as a disabled person, she lacked the financial ability to pay.
¶ 8 Bertrand appeals the imposition of LFOs and the jury's special verdict finding that the drug delivery occurred within 1,000 feet of a school bus stop. 5
¶ 9 For the first time on appeal, Bertrand challenges the trial court's special verdict jury unanimity instruction. Citing Bashaw and State v. Goldberg, 149 Wash.2d 888, 72 P.3d 1083 (2003), Bertrand argues that the trial court misstated the law by instructing the jury that it had to be unanimous to enter a “no” finding on the special verdict form asking whether she delivered the controlled substance within 1000 feet of a school bus stop. Br. of Appellant at 4. The State responds that (1) Bertrand did not preserve this error for review,6 (2) the instructional error implicates no constitutional right, and (3) Bertrand cannot identify a “manifest” practical and identifiable consequence resulting from this instructional error. Br. of Resp. at 5.
¶ 10 Agreeing with the State, we hold that Bertrand cannot raise her jury instruction challenge for the first time on appeal because the alleged error is neither constitutional nor “manifest.” In the alternative, because Bertrand never disputed the location of the delivery, and the uncontroverted evidence in the record indicates that the delivery occurred within 1,000 feet of a school bus stop, we further hold that any error in the school-bus-stop enhancement special verdict jury instruction was harmless beyond a reasonable doubt.
¶ 11 At the outset, we note that Bertrand did not comply with CrR 6.15(c) when she failed to object to the trial court's special verdict unanimity jury instruction. CrR 6.15(c) requires timely and well-stated objections to jury instructions “ ‘in order that the trial court may have the opportunity to correct any error.’ ” State v. Scott, 110 Wash.2d 682, 685–86, 757 P.2d 492 (1988) (quoting City of Seattle v. Rainwater, 86 Wash.2d 567, 571, 546 P.2d 450 (1976)). In failing to object below, Bertrand did not give the trial court an opportunity to correct this instructional error; thus, she has not preserved this error for appeal.
¶ 12 Notwithstanding Bertrand's failure to preserve this issue below, she contends that she can challenge this instructional error for the first time on appeal. We disagree. Bertrand does not show that the instructional error falls within the following RAP 2.5(a)(3) exception to the general error-preservation rule for appeals:
The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court ... manifest error affecting a constitutional right.
As we recently held in State v. Grimes,7 for this RAP 2.5(a)(3) exception to apply, an appellant must show both that (1) the error implicates a specifically identified constitutional right, and (2) the error is “manifest” in that it had “practical and identifiable consequences” in the trial below. 8 See Grimes, 165 Wash.App. at 186, 267 P.3d 454 (citing State v. O'Hara, 167 Wash.2d 91, 98, 217 P.3d 756 (2009)).
[165 Wash.App. 401] ¶ 13 If an appellant successfully shows that the error is both constitutional in magnitude and “manifest,” in that it had practical and identifiable consequences below, the burden then shifts to the State “to prove that the error was harmless ... under the Chapman standard” 9 beyond a reasonable doubt. Grimes, 165 Wash.App. at 186, 267 P.3d 454 (citing State v. Gordon, ...
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