State v. Crowder

• Citation: 385 P.3d 275,196 Wash.App. 861
• Decision Date: 01 December 2016
• Docket Number: No. 32869-4-III,32869-4-III
• Parties: STATE of Washington, Respondent, v. John Mark CROWDER, Appellant.
• Court: Court of Appeals of Washington

196 Wash.App. 861

385 P.3d 275

STATE of Washington, Respondent,

v.John Mark CROWDER, Appellant.

No. 32869-4-III

Court of Appeals of Washington, Division 3.

December 1, 2016

Andrea Burkhart, Burkhart & Burkhart PLLC, 6 1/2 N. 2nd Ave., Ste. 200, Walla Walla, WA, 99362-1855, for Appellant.

Andrew Kelvin Miller, Anita Isabelle Petra, Benton County Prosecutor's Office, 7122 W. Okanogan Pl., Bldg A, Kennewick, WA, 99336-2359, for Respondent.

OPINION PUBLISHED IN PART

Pennell, J.¶1 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

¶2 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 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.

¶3 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.

¶4 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.

¶5 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 I.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.

¶6 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.

¶7 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.

¶8 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 approach the bench. A bench conference occurred off the record. When the conference ended the court excused the juror.

¶9 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

¶10 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

¶11 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 , ––– U.S. ––––, 136 S.Ct. 1524, 194 L.Ed.2d 604 (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, 354 P.3d 841. "The appellant carries the burden on the first two steps; the proponent of the closure carries the third." Id.¶12 Mr. Crowder claims the trial court violated his right to a public trial when it engaged counsel in an off-the-record discussion during a juror challenge. While we agree with Mr. Crowder that the public trial right attaches to this aspect of jury selection, see id. at 605–06, 354 P.3d 841, we do not agree there was a closure. No part of the juror challenge took place outside of direct public hearing and view. While in open court, the juror was questioned, Mr. Crowder's counsel made his motion for cause, and the State concurred. At this point, the challenge was complete. There was nothing further to make public. Although the parties engaged the judge in an unrecorded side bar prior to the court entering its formal ruling, this interruption does not change the fact that the substance of juror challenge occurred entirely in open court.

¶13 Mr. Crowder's public trial argument would only have traction if he could show something substantive occurred during the off-the-record side bar. Our courts utilize the "experience and logic" test to determine whether a particular court procedure implicates the public trial right. Id. at 605, 354 P.3d 841. Side bar conferences generally do not meet this test because they historically have been closed to the public and because public access would not positively enhance the proceedings. State v. Smith, 181 Wash.2d 508, 511, 334 P.3d 1049 (2014). Mr. Crowder fails to meet his burden of establishing that the side bar in his 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, 334 P.3d 1049, we are satisfied the present circumstances do not permit Mr. Crowder's public trial challenge.

Insufficient evidence of marijuana

¶14 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

¶15 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 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).

¶16 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 69.50.101(t) (2014).

¶17 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 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 69.50.401with 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.

¶18 The requirement that marijuana, to qualify as a controlled...