State of Washington v. Brian Jeffrey Anderson (Majority, Concurrence and Concurrence/Dissent)

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FILED JUNE 4, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, v. BRIAN JEFFREY ANDERSON, Appellant. ) ) ) ) ) ) ) ) ) No. 36330-9-III UNPUBLISHED OPINION KORSMO, J. — Brian Anderson raises multiple challenges to his four convictions for delivery of a controlled substance. We affirm the convictions and sentence, but remand to strike certain financial aspects of the judgment. FACTS Mr. Anderson was charged in the Kittitas County Superior Court with the four noted offenses. The third amended information alleged that each count was subject to the aggravating factor that the offense was part of three or more separate drug transactions. That document also alleged that count one was subject to the aggravating factor that the offense occurred within 1,000 feet of a school bus route stop. Clerk’s Papers (CP) at 31. The specific language of the charging document concerning the bus stop provided: the defendant did violate RCW 69.50.401 by manufacturing, selling, delivering, or possessing with the intent to manufacture, sell, or deliver a No. 36330-9-III State v. Anderson controlled substance listed under that subsection by selling for profit any controlled substance or counterfeit substance classified in schedule I, RCW 69.50.204, except leaves and flowering tops of marihuana, to a person within one thousand feet of a school bus route stop designated by the school district in violation of 69.50.435. CP at 31.1 The charges were based on drug purchases made by police informants from Mr. Anderson in 2015 and 2016. Charles Briet was identified as a defense witness. A member of the venire, former Kittitas Chief of Police Lail, stated during voir dire that he had previously arrested Briet and would not give any credibility to the man. Report of Proceedings (RP) at 46-47. The juror was excused. Defense counsel consulted with his client and decided to not request a mistrial, but did indicate he would seek a curative instruction and also indicated he would address the problem when questioning Briet. RP at 150. He subsequently deferred the curative instruction until the defense case. RP at 153. The State presented trial testimony from a school district official that five school bus stops within 1,000 feet of the 2015 drug sale were actively used by summer school students at that time. The testimony did not discuss schools or school buses. 1 This language tracks the introductory paragraph of RCW 69.50.435(1), combined with the specific allegation of 69.50.435(1)(c) that the offense was near a school bus route stop. 2 No. 36330-9-III State v. Anderson When the State had rested, defense counsel moved to dismiss the school bus stop aggravating factor due to lack of proof that methamphetamine was a schedule I drug. The State responded by seeking permission to amend the information to delete much of the previously quoted language from that allegation. Defense counsel objected, noting that his argument was a highly technical one and that an amendment was untimely. The court allowed the amendment on the basis of State v. Tvedt, 153 Wn.2d 705, 107 P.3d 728 (2005). Defense counsel advised the court that he knew what allegation the State had originally charged and that it would be “ridiculous” to claim prejudice from the amendment. RP at 490. A fourth amended information was filed. During the defense case, counsel did not propose or request any curative instruction. On direct examination, counsel asked Briet about his most recent criminal conviction and sentence. Briet explained that he served a 25 month drug offender sentencing alternative (DOSA) sentence for possessing firearms while a felon. Upon completing treatment, he had been drug free and “clean” for two years. He was quite knowledgeable about the Ellensburg drug world and testified about the behavior of one of the police informants, James Pearson, during the August 2015 drug buy. Both Briet and Ashley Hone testified that Pearson brought his own drugs and Anderson did not sell the drugs to Pearson. On cross-examination, the prosecutor briefly asked Briet about the prison sentence and got him to confirm that it also included charges of harassment and aiming a firearm. 3 No. 36330-9-III State v. Anderson He also admitted to having a 2006 conviction for second degree theft, but told the prosecutor that a later third degree theft count had been dismissed. The jury was instructed on the elements of the four charges, along with the school bus stop enhancement and the major drug transaction aggravating factor. Included with the enhancement instruction were definitions of “school” and “school bus.” In closing, counsel argued that the police investigation was incomplete and “sloppy,” and that the defense witnesses established that the informant, not Mr. Anderson, brought the drugs involved in count 1. With respect to the prosecutor’s credibility arguments concerning the drug-using witnesses, defense counsel argued: [Pearson] had the drugs when he walked in the house, okay. They’re no cleaner than the State’s witnesses, but Ms. Hammond cannot tell you they’re not trustworthy, and at the same time say but my scummy drug addicts are. I’m sorry, it doesn’t work that way. RP at 584. The jury found Mr. Anderson guilty as charged. It also determined that count I occurred within 1,000 feet of a school bus route stop and that all four drug sales were part of a series of transactions. As a result, Mr. Anderson faced a standard range of 20 to 60 months in prison on each charge, with count I carrying a 24 month enhancement due to the bus stop finding. The defense sought a prison-based DOSA sentence. The court rejected the request, stating that Mr. Anderson had not taken responsibility for his actions. The court was particularly concerned that count I had involved Mr. Anderson 4 No. 36330-9-III State v. Anderson driving to Yakima to obtain the drugs that he brought into Ellensburg. The court imposed a 54 month sentence on count I due to the bus stop enhancement, and concurrent 30 month sentences on the other charges. Mr. Anderson timely appealed to this court. A panel considered his appeal without hearing argument. ANALYSIS This appeal presents five arguments. In order, we consider contentions that: (1) counsel failed to provide effective assistance, (2) the court erred in amending the information, (3) no evidence supported the school bus instruction, (4) the evidence did not support the multiple transactions aggravating factor, and (5) error in imposing the legal financial obligations (LFOs). The latter two issues are discussed together. Ineffective Assistance Argument The first contention2 is an argument that defense counsel rendered ineffective assistance by asking Briet a question that permitted the prosecutor to further inquire about Briet’s prior convictions. This was clearly a reasonable tactic for counsel to pursue. 2 Mr. Anderson filed a statement of additional grounds (SAG) that is related to this argument. He claims that trial counsel rendered ineffective assistance concerning the statement made by Mr. Lail in voir dire. Our discussion of the ineffective assistance claim adequately answers the SAG since the decision to address Lail’s statement by establishing Briet’s rehabilitation was clearly a tactical choice by counsel. 5 No. 36330-9-III State v. Anderson Appellate courts review ineffective assistance of counsel claims in accordance with well-settled standards of review. An attorney’s failure to perform according to the standards of the profession will require a new trial when the client has been prejudiced by counsel’s failure. State v. McFarland, 127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to counsel’s decisions and there is a strong presumption that counsel was effective. A strategic or tactical decision is not a basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, courts evaluate counsel’s performance using a two-prong test that requires courts to determine whether or not (1) counsel’s performance failed to meet a standard of reasonableness, and (2) actual prejudice resulted from counsel’s failures. Id. at 690-692. When a claim can be disposed of on one ground, a reviewing court need not consider both Strickland prongs. Id. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007). Defense counsel asked about the nature of the convictions that sent Briet to prison and the ensuing DOSA sentence that freed Briet from his drug problems. Briet’s answer focused on the gun charges, leaving the prosecutor to ask about the harassment and drug charges that accompanied the gun offenses. The prosecutor also asked about the prior theft conviction, an offense that was admissible per ER 609. Mr. Anderson argues that the prosecutor’s questions were prejudicial, making trial counsel’s performance in raising the topic deficient. He is wrong on both counts. 6 No. 36330-9-III State v. Anderson This was a case based in large part on the testimony of two police informants who were members of Ellensburg’s drug culture. The defense attacked the credibility of the informants by presenting its own members of that culture. The topic of drug use was unavoidable. Accordingly, defense counsel reasonably attempted to defend by presenting “better” drug user witnesses on behalf of the defense than the State was able to offer. The fact that Briet had served a significant, rehabilitative sentence and was now living a clean life allowed the defense to present a former member of the drug culture as a credible defense witness.3 The discussion also explained why Mr. Lail’s voir dire commentary was not of concern—the person that Lail knew was not the person Briet now was. The question about the DOSA sentence for gun possession was a very reasonable tactic for counsel to use. Under Strickland, there was no error. Moreover, Mr. Anderson was not prejudiced by Briet’s admission that he had a prior drug conviction. Mr. Briet’s bona fides as a member of the Ellensburg drug culture were essential to his testimony; the fact that he had a prior conviction was not harmful under these facts, and certainly was not harmful to Mr. Anderson. The theft conviction was per se admissible under ER 609, so defense counsel’s questioning had nothing to do with the admission of that answer. It, too, did not prejudice the defense. 3 The witnesses also allowed Mr. Anderson to avoid testifying about the sales. 7 No. 36330-9-III State v. Anderson Mr. Anderson has not established either that his counsel erred or that he was prejudiced by the alleged error. Accordingly, he has not established that his counsel performed ineffectively. Amendment of the Information Mr. Anderson next argues that the trial court erred in allowing the fourth amended information. The court did not abuse its discretion by permitting the removal of surplus language from the charging document. CrR 2.1(d) allows an amendment of the information “any time before verdict or finding if substantial rights of the defendant are not prejudiced.” This court reviews the decision on a motion to amend for abuse of discretion. State v. Lamb, 175 Wn.2d 121, 130, 285 P.3d 27 (2012). Discretion is abused when it exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Although the rule would permit amendment prior to verdict, a substantive limit on that authority exists in our case law. “A criminal charge may not be amended after the State has rested its case-in-chief unless the amendment is to a lesser degree of the same charge or a lesser included offense.” State v. Pelkey, 109 Wn.2d 484, 491, 745 P.2d 854 (1987). This substantive limitation does not apply to amendments that do not change the crime in question. State v. Brooks, 195 Wn.2d 91, 98, 455 P.3d 1151 (2020) (permitting amendment that changed charging dates). As explained in Brooks, it is a change to the 8 No. 36330-9-III State v. Anderson essential elements of the charged crime that presents the possibility of prejudicial error. Id. at 97. Here, the parties agreed at trial that the challenged language from the third amended information was surplus language. It long has been the rule that “surplus language in a charging document may be disregarded.” Tvedt, 153 Wn.2d at 718. When surplus language “is included in an information, the surplus language is not an element of the crime that must be proved unless it is repeated in the jury instructions.” Id. The trial court cited to the Tvedt principle when it granted the motion to amend. While it was not necessary to amend the information in order that the surplus language be “disregarded,” Tvedt provided a tenable basis for granting the motion to amend. On appeal, Mr. Anderson now argues that the amendment violated the Pelkey line of authority by changing the sentencing enhancement at issue. Even assuming that Pelkey could apply to an enhancement, it did not apply in this case. RCW 69.50.435(1) authorizes a sentencing enhancement whenever one commits a violation of RCW 69.50.401 (generally prohibiting the production and distribution of drugs) or RCW 69.50.410 (selling schedule I drugs for profit) near specified public locations. Here, Mr. Anderson was charged with violating § 401 within 1,000 feet of a school bus route stop. RCW 69.50.435(1)(c). There was but a single enhancement for delivering methamphetamine in count one within 1,000 feet of a school bus route stop. While a person could commit a violation of 9 No. 36330-9-III State v. Anderson § 401 or § 410 in multiple different ways, there was only a single § 435 protected location alleged in the aggravating factor. How the drug transaction was accomplished was the subject of the charging language in count I; the enhancement did not charge an additional offense. It only alleged that the charged offense occurred within a particular protected area. Whether Pelkey applies when an amendment changes the protected zone is a question we need not answer because the only enhancement charged here involved the school bus route stop. RCW 69.50.435(1)(c). Eliminating one method of committing that single enhancement did not change the nature of the enhancement that was charged. Pelkey was inapplicable to this case. Mr. Anderson could still prevail if he could show that he was prejudiced by the amendment. He does not make that argument here—instead relying on the per se standard of Pelkey—and agreed below that it would be “ridiculous” to allege prejudice under the circumstances. There is no allegation of prejudice, let alone a showing of it. The trial court did not abuse its discretion by permitting the unnecessary amendment to the information. School Bus Definition Mr. Anderson next argues that the definition of “school bus” was not proved at trial, thus requiring the school bus stop enhancement to be struck. His argument attempts to expand the law of the case doctrine in a manner previously rejected by the case law. Here, instruction 20 defined the term “school bus” for the jury: 10 No. 36330-9-III State v. Anderson “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 57.4 As has been often noted, the “term ‘law of the case’ means different things in different circumstances.” Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 113, 829 P.2d 746 (1992). In particular, it can refer (1) to the effect of an appellate court ruling on subsequent proceedings in the trial court, (2) to the effect of unchallenged jury instructions in setting forth the applicable law, and (3) to an appellate court’s refusal to reconsider the determinations made in a prior appeal. Id. The jury instruction aspect of the law of the case is at issue here. That concept commonly has been explained: Under the law of the case doctrine jury instructions not objected to become the law of the case. State v. Hickman, 135 Wn.2d 97, 101-102, 954 P.2d 900 (1998). Thus, when the State adds an unnecessary element to a to- 4 The statutory definition is found in RCW 69.50.435(6)(b): “School bus” means a school bus as defined by the superintendent of public instruction by rule which is owned and operated by any school district and all school buses which are privately owned and operated under contract or otherwise with any school district in the state 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. 11 No. 36330-9-III State v. Anderson convict instruction and the jury convicts the defendant, the unnecessary element must be supported by sufficient evidence. Id. at 105. State v. Calvin, 176 Wn. App. 1, 21, 316 P.3d 496 (2013). The doctrine also can apply to definitional instructions. Id.; State v. France, 180 Wn.2d 809, 816, 329 P.3d 864 (2014). However, treatment of the two types of instructions varies significantly. As noted from the Hickman citation in Calvin, the addition of an unnecessary element to a to-convict instruction requires proof of the unnecessary element. Hickman, 135 Wn.2d at 105; State v. Johnson, 188 Wn.2d 742, 756, 399 P.3d 507 (2017). The failure to prove the unnecessary element will result in the reversal of a criminal conviction due to insufficient evidence. Hickman, 135 Wn.2d at 105-106. In contrast, the existence of a definitional instruction normally does not itself raise a Hickman-type evidentiary sufficiency problem. Definitional instructions do not create new elements. France, 180 Wn.2d 816-819. That proposition remains true even if the definition is included in the elements instruction. State v. Tyler, 191 Wn.2d 205, 213, 422 P.3d 436 (2018). A definition of an element simply does not create a new element or supplant the statutory element. Id. at 215. Mr. Anderson argues that the State presented no evidence that the Ellensburg school buses satisfied the definition of school bus found in Instruction 20 and that this “essential element” thus was unproved. There are a couple of answers to this argument. First, the special verdict form required the State to prove the existence of a bus stop 12 No. 36330-9-III State v. Anderson rather than a school bus. The school district’s witness testified that five school bus stops were within 1,000 feet of the crime scene. The evidence justified finding that a bus stop existed near the crime scene. Second, a “school bus” was not an “essential element” of the special verdict merely because a definitional instruction was provided to the jury. There are rare instances where a definitional instruction will become the subject of element-style proof because of statutory or constitutional concerns unrelated to the law of the case doctrine. France provides a discussion of some examples: France is correct that under some circumstances, the State may be required to prove facts not specifically contained in the to-convict instruction, not as elements but because those facts serve some other function that requires the State to prove them, such as a “true threat” or “sexual gratification.” 180 Wn.2d at 817. For instance, because the element of “sexual contact” in an indecent liberties prosecution was defined by statute to require proof of “sexual gratification,” the State was required to prove “sexual gratification” even though it was not an element of the indecent liberties statute. Id. at 817-818 (discussing State v. Stevens, 158 Wn.2d 304, 143 P.3d 817 (2006)). Similarly, the State needed to prove in a harassment prosecution the existence of a “true threat,” a concept that is not an element of the crime, because otherwise the harassment statute could impinge on First Amendment protected rights. Id. at 818-819 (discussing State v. Allen, 176 Wn.2d 611, 294 P.3d 679 (2013)). 13 No. 36330-9-III State v. Anderson At issue in each of these examples was a definitional instruction, not an element, and the instruction was needed in order that elements were properly defined for the jury—the “sub-element” of “sexual gratification” and the limiting definition of “true threat.” The law of the case doctrine did not require the State to provide evidence in support of the definitions—proof was required due to statutory and constitutional requirements. France used this understanding to reject the appellant’s argument that a definitional instruction created an element that the State needed to prove to the jury. 180 Wn.2d at 819. Calvin presented a slightly different twist on the law of the case doctrine. There the trial court had given an assault definition that included the topic of lawful use of force, a subject not raised at trial. 176 Wn. App. at 20. When the jury inquired about the instruction, the court realized its error and, over defense objection, substituted a different instruction that deleted the topic. Id. at 20-21. While recognizing that the law of the case doctrine applied to all jury instructions, Calvin concluded that the issue was “not whether the law of the case doctrine bound the State to the ‘unlawful force’ language,” but the true issue was whether the trial court abused its discretion in substituting the other instruction. Id. at 22. Although the law of the case doctrine prevents a party from challenging on appeal an instruction that was not challenged at trial, since the defense had objected to the amended instruction, the issue was properly before the court. Id. 14 No. 36330-9-III State v. Anderson Because Mr. Calvin did not show prejudice from the substitution, the court did not err. Id. at 22-24. France and Calvin demonstrate the meaning of the law of the case doctrine as it concerns definitional instructions. The doctrine prohibits a party from challenging an instruction for the first time on appeal. Id. at 22; accord RAP 2.5(a); State v. Scott, 110 Wn.2d 682, 757 P.2d 492 (1988). A defendant can claim that the unchallenged instruction imposes an obligation of proof on the State a la Hickman, but this argument typically will fail unless the definitional instruction falls within one of the exceptions noted by France, 180 Wn.2d at 817. France and Tyler control the outcome of this case. The school bus definition did not create a new element for the prosecutor to prove. Tyler, 191 Wn.2d at 213; France, 180 Wn.2d at 818. It is not one of the rare definitional instructions identified by France that needed to be the subject of proof. While probably an unnecessary instruction, it also was not one that impacted the outcome of this case. Mr. Anderson has not identified any error arising from the use of the school bus definition. His argument is without merit. Sentencing Issues The next assignment of error is an extended discussion of the “major violation” aggravating factor governing multiple drug sales. Because the trial court did not impose an exceptional sentence, this claim is moot. 15 No. 36330-9-III State v. Anderson An argument is moot when an appellate court cannot grant effective relief. In re Det. of LaBelle, 107 Wn.2d 196, 200, 728 P.2d 138 (1986). That is the situation here. The trial court imposed midrange sentences; it did not use the aggravating factor findings to direct an exceptional sentence. The sentence would not change even if we agree with Mr. Anderson’s position. This issue is moot. Mr. Anderson also argues, and the State agrees, that the trial court erred by imposing the criminal filing fee and directing that interest run on the legal financial obligations. We remand to strike both of those provisions. Affirmed and remanded. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. _________________________________ Korsmo, A.C.J. 16 No. 36330-9-III FEARING, J. (concurring in part/dissenting in part) — I join the majority in all rulings except the affirmation of the school bus stop sentencing enhancement. I would reverse the enhancement and remand for resentencing because of the lack of evidence as to the seating capacity of school buses that used the school bus stops near the scene of the one sale of controlled substances by Brian Anderson. RCW 69.50.435 declares: (1) Any person who violates RCW 69.50.401 by manufacturing, selling, delivering, or possessing with the intent to manufacture, sell, or deliver a controlled substance listed under RCW 69.50.401 or who violates RCW 69.50.410 by selling for profit any controlled substance or counterfeit substance classified in schedule I, RCW 69.50.204, . . . to a person: .... (c) Within one thousand feet of a school bus route stop designated by the school district; . . . .... may be punished by a fine of up to twice the fine otherwise authorized by this chapter . . . or by imprisonment of up to twice the imprisonment otherwise authorized by this chapter . . . or by both such fine and imprisonment. .... (6) As used in this section the following terms have the meanings indicated unless the context clearly requires otherwise: .... (b) “School bus” means a school bus as defined by the superintendent of public instruction by rule which is owned and operated by any school district and all school buses which are privately owned and No. 36330-9-III State v. Anderson (Concurrence/Dissent) operated under contract or otherwise with any school district in the state for the transportation of students. . . . (c) “School bus route stop” means a school bus stop as designated by a school district; In turn, the Washington State Superintendent of Public Instruction defines “school bus” as: “School bus” means every vehicle with a seating capacity of more than ten persons including the driver regularly used to transport students to and from school or in connection with school activities. WAC 392-143-010(1). Under Washington statute and regulation, to find Brian Anderson guilty of the sentencing enhancement, the State needed to prove beyond a reasonable doubt that Anderson sold a controlled substance near a “school bus stop.” The phrase “school bus stop” includes the term “school bus.” Since the same statute includes definitions for both “school bus stop” and “school bus,” logically the legislature expected a “school bus” as defined by the statute to stop at the stop. To prove that a “school bus” used a stop, the State needed to prove that a bus possessed the seating capacity of more than ten persons. If the jury instructions did not inform the jury of the need for the State to prove beyond a reasonable doubt that a bus had a minimum seating capacity, the instructions should have done so. The concurring opinion author writes that no school bus needed to stop at a location as long as the school district designated the location as a school bus stop. 2 No. 36330-9-III State v. Anderson (Concurrence/Dissent) Conceivably, under the concurrence’s reasoning, in order to find an accused guilty of the sentencing enhancement, a school district need not operate any school buses as long as the district designates stops. Such reasoning leads to absurd results, and this court avoids absurd results when interpreting statutes. State v. Schwartz, 194 Wn.2d 432, 443, 450 P.3d 141 (2019). In the alternative, under the concurrence, the jury could find the accused guilty of the sentencing enhancement if the school district only sends buses with seating capacities with less than eleven to the school bus stop. Such a result would conflict with the intent of the legislature. When the legislature created a sentencing enhancement for dealing drugs within one thousand feet of a school bus stop, the legislature assumed that a school bus, as defined by the superintendent of public instruction, would stop at the stop. Otherwise, placing the definition of a “school bus” in RCW 69.50.435 served no purpose. For that matter, having any definition of a “school bus” would serve no purpose. John Landon, Ellensburg School District Assistant Director of Transportation, testified to five school bus stops within one thousand feet of the location of one of the Brian Anderson’s sales. Landon did not describe any of the buses used by the school district. I do not know if I have ever seen a school bus, or any form of bus, that did not seat at least eleven people, but apparently such buses exist since the Superintendent of Public Instruction expressly requires that the bus seat more than ten in order to qualify under the law. I would be speculating to conclude that the State showed that all 3 No. 36330-9-III State v. Anderson (Concurrence/Dissent) Ellensburg School District buses accommodated at least eleven people by testimony that the school district operated buses. Presumably because the existence of a school bus stop was not an element of a crime, but rather an element of an aggravating circumstance, the trial court did not give a to-convict instruction for the school bus stop enhancement. Instead, in Verdict Form A1, the court asked the jury to answer a question: We, the jury, answer the question submitted by the court as follows: QUESTION: 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? ANSWER: ________ (write in “yes” or “no.”) Clerk’s Papers (CP) at 66. A jury instruction informed the jury that it should not answer the question “yes” unless the jurors were unanimous beyond a reasonable doubt that “yes” was the correct answer. The trial court also delivered a jury instruction that defined “school bus.” Jury instruction 20 declared: “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 (emphasis added). The concurring author ignores the presence of jury instruction 20. The court delivered the instruction to inform the jury that it must find that 4 No. 36330-9-III State v. Anderson (Concurrence/Dissent) buses with a seating capacity of more than ten persons used the school bus stop. Otherwise, jury instruction 20 served no purpose. To repeat, the State presented no evidence of a bus with a capacity of more than ten persons. Therefore, under the jury instructions delivered to the jury, in addition to the statute and administrative code, the State did not prove the school bus stop enhancement. I am not convinced that this reviewing court must address the law of the case doctrine as formulated in State v. Hickman, 135 Wn.2d 97, 954 P.2d 900 (1998). The jury instructions at issue in Brian Anderson’s trial merely restated the controlling law rather than adding any element to a crime. The doctrine applies when the jury instruction adds an element beyond the statutory elements. Assuming the law of the case doctrine applies, the doctrine bolsters the need to reverse the sentencing enhancement. The lead opinion relies on State v. Tyler, 191 Wn.2d 205, 422 P.3d 436 (2018) and State v. France, 180 Wn.2d 809, 329 P.3d 864 (2014). Neither case applies to this appeal. State v. Tyler is a unique case because the to-convict instruction omitted an important conjunction, and the jury could not be sure, based on the to-convict instruction, whether the conjunction should be an “or” or an “and.” A separate instruction used the word “or.” The decision focused on whether the crime of possessing a stolen motor vehicle was an alternate means crime and the ramifications of the missing conjunction. State v. France also focused on whether the charged crime was an alternate means crime. The case turned on whether an instruction containing one of many statutory 5 No. 36330-9-III State v. Anderson (Concurrence/Dissent) definitions of the term “threat,” at least one of which was contained in the to-convict instruction and that had a common meaning, created an additional fact the State was required to prove. Brian Anderson’s appeal does not entail an alternate means crime nor was he charged with a crime or sentencing enhancement with alternate definitions for one of its elements. Fearing, J. 6 No. 36330-9-III LAWRENCE-BERREY, J. (concurring) — I write separately to explain my reason for affirming the enhanced sentence. I construe the special verdict form as asking whether the school district designated the stop a school bus route stop. For this reason, the jury was not required to apply the definition of “school bus” as given in the separate instruction. The special verdict form asked the jury: “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?” Clerk’s Papers at 66 (emphasis added). This question comes directly from the statutory language of RCW 69.50.435 (1)(c), which imposes additional punishment for controlled substance violations that occur “[w]ithin one thousand feet of a school bus route stop designated by the school district.” Because the question in the special verdict form comes directly from the statute, we must discern what the legislature, by enacting RCW 69.50.435(1)(c), intended the State to prove. More specifically, did the legislature intend for the State to prove only that a school district designated the stop a school bus route stop or did the legislature No. 36330-9-III State v. Anderson intend the State to prove more—that a school bus actually stopped at the school bus route stop? When interpreting a statute, the court’s fundamental objective is to ascertain and give effect to the legislature’s intent. We begin with the plain meaning of the statute. In doing so, we consider the text of the provision in question, the context of the statute in which the provision is found, related provisions, amendments to the provision, and the statutory scheme as a whole. If the meaning of the statute is plain on its face, then we must give effect to that meaning as an expression of legislative intent. Lenander v. Dep’t of Retirement Sys., 186 Wn.2d 393, 405, 377 P.3d 199 (2016). Here, it is plain what the legislature intended the State to prove by enacting RCW 69.50.435(1)(c). The legislature defined “school bus route stop” as “a school bus stop as designated by a school district.” RCW 69.50.435(6)(c). Thus, the legislature intended the State to prove only that a school district had designated the stop a school bus route stop. The legislature did not intend the State to prove more—that a “school bus” actually stopped at the school bus route stop. For this reason, the special verdict question did not require the jury to apply the definition of “school bus” as given in the separate instruction. The concurring/dissenting opinion finds it absurd the statute might be construed as not requiring proof that a “school bus” stops at a designated school bus route stop. It is 2 No. 36330-9-III State v. Anderson not absurd, given that one might infer when a school district designates a school bus route stop, a school bus actually stops there. _________________________________ Lawrence-Berrey, J. 3

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