Opinion
No. 26741-5-III.
March 17, 2009.
Appeal from a judgment of the Superior Court for Benton County, No. 07-1-00587-4, Cameron Mitchell, J., entered December 7, 2007.
Affirmed by unpublished opinion per Brown, J., concurred in by Schultheis, C.J., and Kulik, J.
UNPUBLISHED OPINION
Maurice T. Brown appeals his 24-month sentence enhancement for delivering a controlled substance within 1,000 feet of a school bus stop. He contends (1) the jury was improperly instructed to unanimously answer "no" on the verdict form, and (2) insufficient evidence supports the school bus stop finding. We affirm.
FACTS
On April 26, 2007, a paid informant purchased methamphetamine from Mr. Brown in front of a Kennewick residence. The State charged Mr. Brown with delivery of a controlled substance, methamphetamine, within 1,000 feet of a school bus stop.
During the October 2007 trial, Ethan Schwebke, transportation manager for the Kennewick School District, testified for the State. The prosecutor handed Mr. Schwebke a map and had him pinpoint the location of the controlled buy. She then asked Mr. Schwebke, "By looking at that map and from your knowledge, can you tell whether that address is a thousand feet from a school bus stop?" Report of Proceedings (RP) at 151. Mr. Schwebke replied, "It would be, yes." Id. Defense counsel later asked, "[M]uch if not all of Kennewick is within a school zone; correct?" Id. at 153. Mr. Schwebke replied, "Well, other than the walk zones to the school, there are school bus drops throughout the city, that's correct." Id.
The court instructed the jury, "Since this is a criminal case, all twelve of you must agree on the answer to the special verdict." Clerk's Papers (CP) at 81. The jury found Mr. Brown guilty as charged and returned a unanimous special finding that he committed the crime within 1,000 feet of a school bus stop. His sentence included a 24-month enhancement based on the special finding. Mr. Brown appealed.
ANALYSIS A. Instruction
The issue is whether the court improperly instructed the jury regarding unanimity in the special verdict. Mr. Brown contends the jury was not required to be unanimous in answering "no" to the special verdict finding of whether he delivered a controlled substance within 1,000 feet of a school bus stop.
The court instructed, "Since this is a criminal case, all twelve of you must agree on the answer to the special verdict." CP at 81. The court next directed the jury that its "duty" was to answer "`yes'" if the jury found "beyond a reasonable doubt that [Mr. Brown] delivered a controlled substance to a person within 1000 feet of a school bus route stop designated by a school district[.]" Id. Next the jury was instructed, "[o]n the other hand," if after weighing the evidence a reasonable doubt remained, then the jury's "duty" was to answer the special verdict "`no'". Id.
Unanimity is not required in making a negative finding on a special verdict form. State v. Goldberg, 149 Wn.2d 888, 893, 72 P.3d 1083 (2003). In Goldberg, the jury was deadlocked on the special verdict instruction The trial court ordered continued deliberations toward unanimity. Our Supreme Court held, "special verdicts do not need to be unanimous in order to be final. When the jury answered `no' on the special verdict form, its duty to the court should have ended." Id. at 894.
Our facts are distinguishable from those found in Goldberg. Here, the record shows the jury was not deadlocked, did not initially answer "no" on the special verdict, and was not required to continue any deliberations. The jury unanimously answered the special verdict inquiries in the order presented without the necessity of reaching the next inquiry. The record does show any jury confusion. All 12 jurors were polled and unanimity was confirmed. In sum, Mr. Brown fails to show he has suffered any actual harm as a result of the special verdict instruction.
B. Evidence Sufficiency
The issue is whether sufficient evidence supports the jury's finding that Mr. Brown delivered methamphetamine within 1,000 feet of a school bus stop. He contends the State did not produce evidence showing a school bus stop within 1,000 feet of the controlled buy on the alleged delivery date.
When reviewing a challenge to sufficiency of the evidence, we view the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). Mr. Brown's insufficient evidence claim "admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
RCW 69.50.435(1)(c) provides that any person who delivers a controlled substance listed under RCW 69.50.401 "[w]ithin one thousand feet of a school bus route stop designated by the school district" shall be sentenced to an additional 24 months above the presumptive sentence. See also RCW 9.94A.510(6).
To support a school zone sentence enhancement, evidence must show the distance between the school bus stop and the site of the offense was no more than 1,000 feet. State v. Jones, 140 Wn. App. 431, 437-38, 166 P.3d 782 (2007). The location of bus stops can be ascertained through objective means, such as observing school children or contacting local schools or the director of transportation. State v. Coria, 120 Wn.2d 156, 167, 839 P.2d 890 (1992).
Here, Mr. Schwebke, the school district's transportation manager, reviewed a map at trial and pinpointed the location of the controlled buy. He then testified that the location was within 1,000 feet from a school bus stop. Defense counsel asked, "[M]uch if not all of Kennewick is within a school zone; correct?" RP at 153. Mr. Schwebke replied, "Well, other than the walk zones to the school, there are school bus drops throughout the city, that's correct." Id. While no express reference is made to whether the bus stop was located at its current location on April 26, 2007, it can be inferred from Mr. Schwebke's testimony that the area concerned was not within walking distance of a nearby school and that a nearby bus stop was within 1,000 feet of the delivery point.
A sufficiency of the evidence challenge admits all inferences that can reasonably be drawn from the State's evidence. Salinas, 119 Wn.2d at 201. Mr. Schwebke testified that much of Kennewick is within a school zone and there are bus stops located throughout the city except within walking distance of a school. In all, this evidence is sufficient to persuade a rational trier of fact that the methamphetamine delivery occurred within 1,000 feet of a school bus stop.
Affirmed.
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.
SCHULTHEIS, C.J. and KULIK, J., concur.