Opinion
No. 59784-1-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-1-00407-4, J. Wesley Saint Clair, J., entered March 5, 2007.
Affirmed by unpublished opinion per Schindler, C.J., concurred in by Cox and Ellington, JJ.
The court terminated Lorenzo Bell from the drug diversion program for violating the drug court policies and procedures. Bell contends that his termination violated due process because there was no evidence that he violated the drug court policies and procedures. He also appeals his conviction for delivery of an uncontrolled substance in lieu of a controlled substance, arguing that the stipulated evidence was insufficient to support the conviction. Because the court clearly stated the reasons for the termination based on the evidence and the drug court policies set forth in the handbook, the record demonstrates that Bell received due process. And because the State submitted police reports establishing the essential elements of the crime charged, sufficient evidence supports the conviction. We affirm.
FACTS
On October 18, 2005, the State charged Lorenzo Bell with one count of delivery of cocaine. On January 18, 2006, the State charged Bell with one count of delivering an uncontrolled substance in lieu of a controlled substance, a VUCSA "burn." In February and May 2006, respectively, Bell agreed to the adjudication of the two charges in the Drug Diversion Court Program ("drug court"). Bell signed an agreement waiving his trial rights and agreeing to complete a treatment program as instructed by the court. The agreement provides that drug court participants must obtain a Participant Handbook, which describes requirements including review hearings at least every four weeks and verified attendance at treatment-approved sober support group meetings. Bell agreed that if he should fail to comply, the court would hold a hearing to determine whether he was guilty of the charged crimes based solely on a review of the evidence presented by the State.
At a review hearing on August 9, 2006, Bell submitted a document to the court as proof that he attended sober support group meetings. The court questioned Bell about whether the document was authentic, indicating that two of the three entries listed the same time and date. Bell explained that his duffel bag had been stolen and so he went back to have the meeting secretary "redo it. So if he put two dates — I hadn't even looked at it because [the] only thing I knew, I went to the meeting, 1504 building. I didn't even look at it, but I knew I went." After the court stated that the document was "troubling," Bell suggested that the court call the meeting secretary. The court agreed to call the secretary, warned Bell about the consequences of lying, and gave him a final opportunity to add anything "about the accuracy" of the written verification. Bell responded, "Your Honor, I'm telling the truth."
Later that day, after the court had finished the calendar, Bell asked to address the court and admitted that the document he submitted had not been signed by the meeting secretary. Bell stated:
I have to be candid with you. I did go to the meetings. Because like I say, my bag was taken. The slip was in the bag. I didn't feel like going back up there by virtue of the fact that I had already went to the meeting. So I got a friend to put the name in, but I did attend the meeting. You can check on that. I really did.
But this, on the slip is not Johnny's signature, but it was on the original. Like I said, it was in the bag. I know I went to the meeting, so I didn't think there would be any harm in getting somebody else to do it. But I have to be candid, I really did.
The court continued consideration of an appropriate sanction to the next hearing. At a hearing on August 23, the court set a termination hearing, stating: "Then you come in here and you attempt to perpetrate a fraud on the Court by presenting falsified documents. You're not working an honest program. I can't have you here. We're going to set this matter for termination." The State filed a motion for termination and defense counsel filed a written response.
The court held a termination hearing on March 1, 2007. The court considered the written materials submitted by both parties, argument by both the State and defense counsel, and Bell's statements. The court stated, "Our policies do in fact indicate that the falsification of sober support meetings is a basis for termination. Dishonesty is a basis for termination. I, in fact, do find that to be the case. . . ." The court terminated Bell from the program.
Following the terms of Bell's drug diversion court waiver and agreement, the court then reviewed the police reports related to the drug charges and found Bell guilty beyond a reasonable doubt on each of them. The court entered findings of fact and conclusions of law on the termination from drug court. Termination from Drug Court
Drug court participants are entitled to the same minimal due process rights as persons facing alleged probation, parole, SSOSA, or conditions of sentence violations. State v. Varnell, 137 Wn. App. 925, 929, 155 P.3d 971 (2007) (citing State v. Marino, 100 Wn.2d 719, 725, 674 P.2d 171 (1984)); State v. Cassill-Skilton, 122 Wn. App. 652, 656-68, 94 P.3d 407 (2004); State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999). A decision to terminate participation in drug diversion court requires an exercise of discretion similar to that involved in a decision to revoke a suspended or deferred sentence. We review Bell's termination from drug court for an abuse of discretion.
At a termination hearing, the minimal due process rights an offender possesses include the right to a statement by the court of the evidence relied upon and the reasons for its decision. See, e.g., State v. J.A., 105 Wn. App. 879, 887, 20 P.3d 487 (2001); State v. Badger, 64 Wn. App. 904, 908, 827 P.2d 318 (1992).
Bell contends the court denied him due process at the termination hearing by entering findings that were not supported by evidence in the record. In particular, he argues that the finding that Bell's presentation of the verification slip violated the drug court policy and procedure manual is not supported by the record because the manual was not admitted into evidence and does not appear in the record. A commissioner of this court granted the State's motion to supplement the record with a copy of the Participant's Handbook.
Bell signed two drug diversion court waiver and agreements stating: "I understand and agree that I am responsible for obtaining a Participant Handbook from the Court and for knowing all the rules and procedures contained in it[.]" [CP 7, 46] The record clearly indicates that the court referred to the handbook as the "policy and procedures manual" during the hearing and in the written findings of fact and conclusions of law and Bell did not object. The Participant's Handbook provides in pertinent part:
Examples of violations, which may result in termination: . . .
• Falsifying UA's, community service, or sober support group meeting lists.
• Dishonesty to the court. . . .
King County Drug Diversion Court Program Handbook at 17.
When first questioned about the verification document, Bell stated that the meeting secretary had signed it. Bell later admitted that he had a friend sign the secretary's name. The court found that Bell falsified his sober support group verification slip and lied to the court about it, in violation of drug court policies, and concluded that Bell should be terminated from drug court. In light of this record, Bell fails to establish any violation of due process or abuse of discretion in his termination from drug diversion court.
VUCSA "Burn" Conviction
Bell argues that the stipulated evidence presented was insufficient to support the conviction for delivery of an uncontrolled substance in lieu of a controlled substance, a VUCSA burn. Relying on State v. Hundley, 126 Wn.2d 418, 895 P.2d 403 (1995), Bell contends that the identification of "suspected crack cocaine" in the police reports and the "inconclusive" field tests were insufficient to support a conviction. In Hundley, the defendant was charged with possession of cocaine and heroin. Hundley, 126 Wn.2d at 419. The evidence presented at trial included a negative field test for heroin, a negative lab test for marijuana, a lab test indicating trace amounts of heroin and cocaine, and four additional negative lab tests for heroin and cocaine. Hundley, 126 Wn.2d at 420-21. Our Supreme Court reversed Hundley's conviction, stating, "[t]his welter of conflicting evidence does not amount to proof beyond a reasonable doubt." Hundley, 126 Wn.2d at 421.
To support a conviction for a VUCSA burn, the State must prove that a person offered, arranged or negotiated the sale of a controlled substance and then delivered an uncontrolled substance in lieu of a controlled substance in violation of RCW 69.50.4012. The State need not identify the actual substance delivered but must prove that it was not a controlled substance. State v. Anderson, 58 Wn. App. 135, 136-37, 791 P.2d 557 (1990); State v. Eddie A., 40 Wn. App. 717, 719, 700 P.2d 751 (1985). Evidence is sufficient, if when viewed 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. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980), abrogated on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006).
Bell was charged under the former statute, RCW 69.50.401(c), which has since been reorganized and renumbered. LAWS 2003, CH. 53 § 333 (eff. July 1, 2004).
At the hearing, the State presented police reports from several officers. Officer Espinoza reported on his statement form that in response to his request for cocaine, Bell gave him a white rock that appeared to be chalk in exchange for $20. According to Espinoza, when Bell was arrested, he admitted that "he had sold "bunk" because he was trying to discourage drug sales in the area. . . ." Espinoza's field test was inconclusive. Officer Etoh reported that he found another "large chunk of white powdery substance and some crumbs in Bell's right front jacket pocket." Etoh's field test on the substance was inconclusive. Before the State charged Bell, Detective Sather prepared a follow-up report (1) summarizing the facts and inconclusive field tests reported by Espinoza and Etoh; (2) indicating that a request for analysis had been submitted to the Washington State Patrol Crime Laboratory (WSCL) in March 2004; and (3) stating that he received lab results in May 2004 indicating that both items "were found to contain no controlled substances." The State also presented a copy of the WSCL report indicating that both items were analyzed and "no controlled substances were detected."
Bell argues that he did not stipulate to the lab report and the court could not properly consider it based on the following language in the drug diversion court waiver and agreement:
I understand and agree that if I do not comply with the conditions of this agreement, a hearing will be held at which the State will present evidence related to this/ these charge(s) included but limited to the police report and the results of any law enforcement field test.
But even assuming, without deciding, that the identified language prevents consideration of the actual WSCL report, there is no dispute that Detective Sather's follow-up police report that included the results of the WSCL report and was properly considered under the waiver and agreement.
Unlike the circumstances in Hundley, the police reports here did not present conflicting evidence. Although the officers suspected that the material obtained from Bell could be either cocaine or chalk, the State did not charge Bell with the VUCSA burn until the WSCL tests confirmed that the material did not contain controlled substances. When viewed in the light most favorable to the State, we conclude that the evidence presented in the police reports is sufficient to convince a trier of fact beyond a reasonable doubt that after arranging to deliver a controlled substance, Bell delivered an uncontrolled substance in lieu of a controlled substance.
Statement of Additional Grounds for Review
In his Statement of Additional Grounds for Review, Bell claims that the drug court judge violated his due process rights by failing to fulfill his promise to call the sober support group meeting secretary to verify Bell's attendance at the meetings. But the record reflects that the court agreed to call the secretary to verify Bell's claim that the document was authentic. After Bell admitted that the document was signed by a friend and not the secretary, no further investigation was necessary.
Bell also claims that hearing transcripts have been altered to prevent review of the prosecutor's admitted lies and evidence of the court's bias against him. If Bell wishes a reviewing court to consider matters outside the record, a personal restraint petition is the appropriate means to raise such issues. State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995). Bell fails to establish grounds for relief.
Affirmed.
WE CONCUR.