STATE v. STEPHENS, 28050-7-II (Wash.App. 11-14-2002)

No. 28050-7-II.The Court of Appeals of Washington, Division Two.
Filed: November 14, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Mason County, No. 95-1-00365-6, Hon. James B. Sawyer II, October 11, 2001, Judgment or order under review.

Counsel for Appellant(s), Thomas E. Doyle, Attorney At Law, P.O. Box 510, Hansville, WA 98340-0510.

Counsel for Respondent(s), Carol L. Case, Mason Co. Deputy Pros. Atty., P.O. Box 639, Shelton, WA 98584.

J. ROBIN HUNT, C.J.

Terry Stephens appeals her conviction of one count of involving a minor in a drug transaction and one count of delivery of a controlled substance with an accompanying school zone enhancement. We dismiss the conviction for involving a minor in drug dealing as well as the school-zone sentence enhancement because of insufficient evidence, but we affirm the conviction for delivery of a controlled substance.

Facts
On or about October 12, 1995, Detective Kevin Jepson accompanied John Thurston, a confidential informant, to Stephens’ residence to buy drugs. Stephens’ residence is 824 feet from Mountain View Elementary School. After they drove up to her house in a truck, Thurston got out, met Louis Lucero, and handed him some `buy’ money. Lucero took the money to Stephens, who was sitting on her front porch. Stephens then handed something to Lucero, who walked over to the truck occupied by Thurston and Jepson and gave two baggies of cocaine to Thurston.

The State charged Stephens by amended information with one count of delivery of a controlled substance in violation of RCW 69.50.401(a) and (b), with the special allegation that the delivery took place within 1,000 feet of Mountain View Elementary School in violation of RCW 69.50.435. The State also charged Stephens with `delivery of a controlled substance to a minor’ in violation of RCW 69.50.401(f).[1] Clerk’s Papers (CP) at 44.

At trial, Jepson and Thurston testified to the facts cited above. Lucero testified that the cocaine that he gave Thurston had been in his pocket and that he did not get it from Stephens. Stephens’ son Jeffrey stated that he saw Lucero talk to his mother on the porch but that there was no physical transaction between the two. Stephens denied the allegations, stating that she never gave Lucero, her nephew, cocaine to deliver to someone else and that she knew nothing of any drug dealing on her property.

The jury found Stephens guilty of involving a minor in drug dealing and of delivering a controlled substance within 1,000 feet of a school. She appeals both convictions and the school zone enhancement.

Analysis I.
Stephens raises several claims of error regarding her conviction of involving a minor in a drug transaction; the State properly concedes error in each instance.[2] We find her challenge to the sufficiency of the evidence dispositive.

A conviction unsupported by sufficient evidence violates a defendant’s constitutional right to due process. Seattle v. Slack, 113 Wn.2d 850, 859, 784 P.2d 494 (1989). Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068
(1992). `A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.’ Salinas, 119 Wn.2d at 201. The existence of a fact cannot rest upon guess, speculation, or conjecture. State v. Hutton, 7 Wn. App. 726, 728, 502 P.2d 1037 (1972).

The trial court instructed the jury that in order to convict Stephens of the crime of involving a minor in drug dealing, it had to find that on or about October 12, 1995, she `compensated, threatened, solicited, or in any other manner, involved a minor in the sale or delivery of a controlled substance[.]’ RCW 60.50.401(f). The court defined a `minor’ as any person under the age of 18. Stephens contends that the State failed to prove that Lucero was under 18 at the time of the drug transaction at issue.

The only evidence concerning Lucero’s age came from two detectives who witnessed the transaction. One described Lucero as a `[r]oughly seventeen-year-old male[.]’ Report of Proceedings (RP) at 44. When the State asked the other about Lucero’s age, he replied, `At the time when this occurred he was a juvenile, so I believe seventeen years old.’ RP at 75. Lucero testified but never was asked his age or his birth date.

The State concedes that it did not prove beyond a reasonable doubt that Lucero was under 18 at the time of the delivery, and its concession is well taken. Unlike the term `minor,’ the term `juvenile’ was not defined for the jury to mean a person under the age of 18. Accordingly, the statement that Lucero was a juvenile was not sufficient to show that he was under 18, and the remaining testimony amounted to guesses by the detectives. See State v. Duran-Davila, 77 Wn. App. 701, 706, 892 P.2d 1125 (1995) (testimony that officer saw drug transaction participant appear in juvenile court was insufficient to prove he was under 18 at time of offense); State v. Hollis, 93 Wn. App. 804, 816, 970 P.2d 813 (age element in RCW 69.50.401(f) was established by one participant’s testimony that he was under 18 and by stipulation that another participant was under 18), review denied, 137 Wn.2d 1038 (1999). Accordingly, the State failed to prove an element of the charge of involving a person under the age of 18 in a drug transaction and Stephens’ conviction on that count must be dismissed.

II.
Stephens next argues that Instruction No. 13, accomplice liability,[3]
relieved the State of its burden of proving every element of the crime of delivery of a controlled substance because it did not specify that an accomplice has to have knowledge that his or her acts will promote the crime charged.

Under Washington’s accomplice liability statute, RCW 9A.08.020, Stephens was liable as an accomplice if she knew that her actions would promote or facilitate the charged crime. State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000). Here, Instruction No. 13 required the jury to find only that Stephens knew her actions would promote or facilitate `a crime,’ rather than `the crime’ charged.

The State recognizes that Instruction No. 13 contains the same language held defective by the Supreme Court in Cronin. It argues, however, that the defective instruction was harmless. The Washington Supreme Court recently explained that an erroneous accomplice liability instruction may constitute harmless error in State v. Brown, Nos. 69785-0, 69787-6, 2002 WL 31097766 (Sept. 19, 2002). Where evidence shows that a defendant facing multiple charges acted as a principal in any of the crimes charged, the difference between `a crime’ and `the crime’ in the accomplice instruction is harmless with respect to those charges. Where the evidence pertaining to one or more of the charges shows no direct participation by the defendant as a principal, however, the erroneous accomplice liability instruction is not harmless error. Brown, at 6.

Here, the evidence showed that Stephens handed drugs to her nephew as part of a delivery to a police informant. The evidence thus established that Stephens was a direct participant in both of the crimes charged and that the reference in the accomplice liability instruction to `a crime’ instead of `the crime’ was harmless error. This conclusion is reinforced by the fact that neither of the court’s `to convict’ instructions made any reference to an accomplice, thus requiring the jury to convict Stephens as a principal. CP at 31, 34. The giving of Instruction No. 13 was harmless error.

III.
Stephens next argues that because the State assumed the burden of proving that the school at issue was a public school, the evidence was insufficient to support the school zone enhancement.

The court instructed the jury that to impose the school zone enhancement, it had to find that Stephens delivered controlled substances within 1,000 feet of the perimeter of a school ground. CP at 42. At the State’s request, the court also gave Instruction No. 14:

Public school means `common school’ and those schools and institutions of learning having a curriculum below the college or university level as established by law and maintained at public expense.
Common school means any school maintained at public expense in each school district and carrying on a program from kindergarten through the twelfth grade or any part thereof including vocational education courses otherwise permitted by law.

CP at 40.

The State concedes that by asking the court to give this instruction, the State assumed the unnecessary burden of proving that the delivery took place within 1000 feet of a public school. See State v. Hickman, 135 Wn.2d 97, 105, 954 P.2d 900 (1998). But the State offered no evidence at trial to prove that Mountain View Elementary School is a public school. As the State failed to meet the additional burden that Instruction No. 14 presented, it was error to enhance Stephens’ sentence for having delivered drugs within 1,000 feet of the perimeter of a school ground.

We reverse Stephens’ conviction for involving a minor in a drug transaction, affirm the underlying conviction on the delivery count, and strike the school zone enhancement applicable to that count.

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.

WE CONCUR: BRIDGEWATER, J., QUINN-BRINTNALL, J.