Opinion
No. 40456-7-II.
January 11, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Lewis County, No. 09-1-00374-7, Nelson E. Hunt and Richard L. Brosey, JJ., entered March 10, 2010.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Penoyar, C.J., and Armstrong, J.
After Jose Pagan filed a written waiver of his right to a jury trial, the trial court found him guilty of unlawful possession of a controlled substance: dihydrocodeinone. In this appeal, Pagan argues that his waiver of his right to a jury trial was insufficient and the State failed to prove beyond a reasonable doubt that dihydrocodeinone is a controlled substance. Because neither claim has merit, we affirm.
A commissioner of this court initially considered Pagan's appeal as a motion on the merits under RAP 18.14 and then transferred it to a panel of judges.
Officer Cory Butcher of the Centralia Police Department arrested Pagan on an outstanding warrant. During a search incident to that arrest, Butcher found a white, oval pill in the right front coin pocket of Pagan's pants. A laboratory test determined that the pill contained "[a]cetaminophen and dihydrocodeinone." Report of Proceedings (RP) (Feb. 11, 2010) at 9. When asked what dihydrocodeinone was, the forensic scientist testified, "That's a synonym for hydrocodone." RP (Feb. 11, 2010) at 9.
The State charged Pagan with unlawful possession of a controlled substance, to-wit: dihydrocodeinone. Pagan submitted a written waiver of jury trial, stating that he understood he had a right to a jury trial, he had the right to waive that right, he had fully discussed the waiver with his attorney, and he wished to waive his right to a jury trial. The trial court conducted a colloquy with Pagan regarding his waiver of jury trial. Pagan confirmed that he understood he had "an absolute right to have the matter heard by the Court sitting with [a] 12 person jury." RP (Aug. 6, 2009) at 3. Pagan said he did not have any questions about the waiver and that it was his "request that the jury be waived and the matter be heard by a judge." RP (Aug. 6, 2009) at 4. The trial court accepted Pagan's waiver of jury trial. At his bench trial, the officers and the forensic scientist testified as described above. The trial court found him guilty of unlawful possession of dihydrocodeinone. Pagan appeals.
Pagan argues that his waiver of right to a jury trial should be examined under the Washington State Constitution rather than the United States Constitution because the state constitutional provisions for a jury trial are broader than those under the federal constitution. See State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). And under those broader state constitutional provisions, Pagan argues that his waiver of his right to a jury trial was inadequate because it did not refer to his rights to participate in selecting jurors, to be presumed innocent until proven guilty by proof beyond a reasonable doubt, and to a unanimous verdict.
But we rejected Pagan's arguments in State v. Pierce, 134 Wn. App. 763, 772-73, 142 P.3d 610 (2006). Pagan's written waiver of right to a jury trial, as required by CrR 6.1(a), is "strong evidence" that he validly waived his right to a jury trial. Pierce, 134 Wn. App. at 771. And while not required, the trial court conducted a colloquy with Pagan to determine that he understood the rights he was waiving. Pierce, 134 Wn. App. at 772. The only rights not specifically discussed during the colloquy were the rights to participate in juror selection and to a unanimous verdict. But, as in Pierce, Pagan does not cite any authority requiring the discussion of those rights as a precondition to a valid waiver of the right to a jury trial. 134 Wn. App. at 773. Thus, the trial court did not err in accepting Pagan's waiver of his right to a jury trial.
Contrary to Pagan's argument, he did not waive his right to be presumed innocent until proven guilty by proof beyond a reasonable doubt.
Next, Pagan argues that the State failed to present sufficient evidence that the dihydrocodeinone he possessed was a controlled substance under chapter 69.50 RCW. The evidence of a crime is sufficient when, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. Salinas, 119 Wn.2d at 201 (citing State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977)).
Pagan argues that the only references to dihydrocodeinone as a controlled substance are in the following definition within Schedule III:
Narcotic drugs. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs, or any salts thereof calculated as the free anhydrous base or alkaloid, in limited quantities as set forth in this subsection:
. . . .
(3) Not more than 300 milligrams of dihydrocodeinone per 100 milliliters or not more than 15 milligrams per dosage unit, with a fourfold or greater quantity of an isoquinoline alkaloid of opium;
(4) Not more than 300 milligrams of dihydrocodeinone per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.
Former RCW 69.50.208(e) (1993).
The forensic scientist determined that the pill found in Pagan's possession contained dihydrocodeinone but did not determine how much dihydrocodeinone it contained. Thus, Pagan contends that the State did not present sufficient evidence to prove that the amount of dihydrocodeinone he possessed contained the levels defined in former RCW 69.50.208(e)(3) or (4) as a Schedule III controlled substance.
But the forensic scientist testified that dihydrocodeinone is a synonym for hydrocodone. And hydrocodone is listed as a Schedule II controlled substance. Former RCW 69.50.206(b)(1)(x) (1993). Therefore, dihydrocodeinone is a controlled substance, whether under Schedule II or III. The State presented sufficient evidence that Pagan unlawfully possessed a controlled substance, towit: dihydrocodeinone.
Medical dictionaries confirm that dihydrocodeinone is a synonym for hydrocodone. See Steadman's Medical Dictionary 483 (26th ed., 1995); Dorland's Illustrated Medical Dictionary 444 (25th ed., 1974). See also the parenthetical synonymy in following definition of Schedule III narcotic drugs in the Uniform Controlled Substances Act, Title 21 U.S.C.A. ch. 13:
(iii) not more than 300 milligrams of dihydrocodeinone (hydrocodone) per 100 milliliters or not more than 15 milligrams per dosage unit, with a fourfold or greater quantity of an isoquinoline alkaloid of opium;
(iv) not more than 300 milligrams of dihydrocodeinone (hydrocodone) per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts. Uniform Controlled Substances Act § 208(4), 9 U.L.A. 77 (1994). For reasons unclear from the legislative history, the legislature omitted the parentheticals from the definitions when it adopted the Uniform Controlled Substances Act in 1971. Laws of 1971, ch. 308, § 69.50.208.
Concluding that Pagan's waiver of right to a jury trial was valid and that the State presented sufficient evidence, we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and PENOYAR, C.J., concur