                                                                           FILED 

                                                                        APRIL 30, 2015 

                                                                 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,                          )
                                              )         No. 31615-7-111
                      Respondent,             )
                                              )
       v.                                     )
                                              )
REUBEN J. PIEKOS,                             )         UNPUBLISHED OPINION
                                              )
                      Appellant.              )

       KORSMO, J. -    Reuben Piekos challenges his convictions for delivering a

controlled substance on the basis that the State undertook, but failed, to prove that he

delivered hydrocodone. We agree with his contention and reverse.

                                          FACTS

       An informant advised Walla Walla police that Mr. Piekos was selling prescription

hydrocodone pills. The police used the informant to make two purchases of hydrocodone

from Mr. Piekos on the same day. The transactions occurred at the Piekos home about 10

minutes apart. The first sale took place on the front porch, while the second took place

inside the Piekos home.

       Two counts of delivery of a controlled substance were filed and the matter

proceeded to jury trial. Mr. Piekos testified in his own defense and admitted selling the
No. 31615-7-111
State v. Piekos


pills, which his doctor had prescribed for his neck pain, to the informant. He did not

identify the prescription or otherwise name the pills.

       The jury was instructed that it must find, among other elements, that Mr. Piekos
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knew that he was delivering dihydrocodeinone. The jury found that Mr. Piekos had twice       I
delivered dihydrocodeinone and that both instances occurred within 1,000 feet of a           II
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school bus stop.                                                                             ~

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       The court ordered concurrent sentences of 12 months plus one day on each of the
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delivery counts, plus consecutive 24 month terms for each school bus zone enhancement

finding. Mr. Piekos timely appealed to this court.                                           I
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                                                                                             J
                                        ANALYSIS                                             f

       Mr. Piekos presents four arguments, but we only need to address the first of those.
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He argues that the evidence does not support the convictions on the specific ground that

the State failed to establish in accordance with the jury instructions that he knew he was

distributing dihydrocodeinone.

       Long settled standards generally govern the argument. We review such challenges       I
to see if there was evidence from which the trier of fact could find each element of the
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                                                                                             J
offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.

Ct. 2781,61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216,221-22,616 P.2d 628
                                                                                             It
(1980). The reviewing court will consider the evidence in a light most favorable to the
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prosecution. Id. If the State undertakes to prove a specific fact by way of the elements
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No. 31615-7-II1
State v. Piekos


instruction, the evidence must support that factual determination even if the fact is not an

element of the offense. State v. Hickman, 135 Wn.2d 97, 101-05, 954 P.2d 900 (1998).

       Mr. Piekos argues, and the State agrees, that the State undertook to prove that he

knew he was selling dihydrocodeinone. The parties disagree over whether the evidence

supported the jury's finding. We conclude that the evidence does not show that Mr.

Piekos knew the identity of the controlled substance he was selling.

       The laboratory technician identified the pills sold by Mr. Piekos as

dihydrocodeinone, a controlled substance. However, the question before us is whether

Mr. Piekos knew he was selling dihydrocodeinone. Mr. Piekos testified that he sold his

prescription pain pills to the informant because his wife told him they needed the money.

No evidence was produced concerning what medication his prescription was for.

       The informant testified that he had met Mrs. Piekos, an old high school classmate,

and Mr. Piekos at a party. They indicated that they had extra prescription pain pills

available for sale. The informant, who had worked for nearly 10 years purchasing drugs

for the police, contacted his handler, a detective. The detective testified that the

informant reported he could buy hydrocodone pills from Mr. Piekos. However, the

informant simply told the jury that Mr. Piekos was willing to sell his prescription pills.

There was no mention of the identity of the pills.

       The only other mention of hydrocodone with the informant came from the

prosecutor. The prosecutor asked, "[A]t some point in time did you tell somebody with

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No. 31615-7-III
State v. Piekos


the Walla Walla Police Drug Unit that you could purchase some hydrocodone pills from

a person by the name of ReubenT The informant answered "yes." This evidence, also,

simply proves that the informant believed he could purchase hydrocodone from Piekos,

but it does not show that Piekos knew the identity of the drug.

       When the informant called to make the purchases, he spoke with Mrs. Piekos. She

invited him to come over. The sale was then consummated with Mr. Piekos, who sold

the pills for $2 each. The detective testified that the price was appropriate for

hydrocodone pills in Walla Walla. There was no showing that Mr. Piekos was an

experienced drug dealer or otherwise was familiar with street prices for drugs.

       The evidence amply supported the conclusion that Mr. Piekos knowingly

delivered a controlled substance, hydrocodone. However, the jury unnecessarily was

instructed that the State needed to prove that Mr. Piekos knew that he was selling

hydrocodone. The State did not meet that burden. There was some evidence that the

informant, after meeting with both Mr. and Mrs. Piekos at the party, believed he could

purchase hydrocodone from them. If the informant had only dealt with Mr. Piekos, it

might be possible to infer that Mr. Piekos told the informant that he had hydrocodone for

sale. However, the evidence was that he spoke with both of them rather than just Mr.

Piekos. Similarly, he spoke on the telephone with his old classmate, Mrs. Piekos, when

he arranged the purchase of the "pills." The informant simply never identified that he

discussed hydrocodone-by any name-with Mr. Piekos.

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No. 31615-7-III
State v. Piekos


      Mr. Piekos sold hydrocodone. He also knowingly sold a controlled substance-

his own pain medication. However, there is not sufficient evidence that he knew he was

selling hydrocodone.

      Reversed.

      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.


                                                            ~rsmo,J . .

WE CONCUR:




      Brown, .



      Siddoway,    ..




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