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                                                                                                                                         7

                                                                                                            2014 ALII



                                                                                                                        CFrp UTY..
                                                                                                                             \


         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                       DIVISION II

STATE OF WASHINGTON, '                                                                   No. 44175 -6 -II


                                         Respondent,


           v.




TIMOTHY ALLEN . ONOVER,
              C                                                               UNPUBLISHED OPINION


                                         Appellant.


            HUNT, . J. —       Timothy Allen Conover appeals his jury convictions and standard range

sentences       for three    counts of   delivering    heroin   within   1, 000 feet     of a school    bus       route
                                                                                                                          stop.   He


argues that the trial court ( 1) violated his right to a public trial by locking the courtroom door for

a    half hour      during jury   instructions; ( 2)   erred in overruling his objection to the reasonable doubt

instruction,        which   included " an abiding belief in the truth         of   the   charge,"   Br. of Appellant at 13;


    3)   erred in calculating his offender score when the State failed to present any evidence of

Conover'        s   prior   criminal   history,   which   error   the State    concedes;       and (   4)    erred in running

Conover' s bus route stop enhancements consecutively rather than concurrently under RCW

9. 94A.533.          For the first time on appeal, Conover also challenges the jury instruction on the
                                                                                     1
violation of         the Uniform Controlled Substances Act (VUCSA)                       as unconstitutionally vague and


asks us to strike the jury' s aggravating factors findings, even though the trial court did not

1
     Ch. 69. 50 RCW.
No. 44175 -6 -II


impose    an   exceptional       sentence.   We       affirm    Conover'      s   convictions.     Accepting the State' s

concession of error in failing to prove Conover' s prior convictions, we vacate the sentences and

remand for resentencing.

                                                         FACTS


                                               I. CONTROLLED BuYs


         On    May      13,    2011,   Cowlitz -
                                               Wahkiakum County Drug Task Force Detective Russell

Hanson and Detective Michael Meier organized a controlled buy using a confidential informant

 CI).    The CI called Timothy Conover to arrange to . purchase heroin and told Hanson that

Conover had                ounce of
                 a quarter -              heroin for     sale   for $ 400.        Hanson   and   Meier   gave   the CI $ 400


for the transaction. The CI met Conover in a motor home at Seventh and California Way, which

was located within 1, 000 feet from a school bus route stop for the Longview School District.

The CI gave the money to Conover, who gave the CI a clear plastic bag containing tar heroin.

The CI turned over the heroin to the detectives.


         On May 31, Meier again worked with the CI to arrange another controlled buy from

Conover, this time,           a quarter -
                                        ounce of   heroin for $ 350.              The CI went to Conover' s apartment,


chatted a   little,   and " completed    the deal."    Report       of   Proceedings ( RP) ( Oct. 12, 2012) at 22.


         On July 7, Meier organized a third controlled buy for the CI to purchase a quarter -ounce

of heroin from Conover for $350. This transaction was recorded with a wire and a video camera.

Again, the CI     went    into Conover' s home, talked,             and " made the     deal."    RP ( Oct. 12, 2012) at 23.


The State arrested Conover.




                                                                2
No. 44175 -6 -II



                                                                   II. PROCEDURE


              The State charged Conover with three counts of selling heroin within 1, 000 feet of a
                                    2
school    bus       route   stop.       The case proceeded to a jury trial.

                                                                       A. Trial


              Detectives Hanson                and    Meier testified to the facts previously         set   forth.   Hanson also


testified that,         based     on    his   experience with narcotics, (          1) individuals could pay as low as $ 20 for

a "   hit,"   a   tenth   of a gram, of         heroin; ( 2) heroin users did not tend to " stockpile" heroin, RP ( Oct.


11, 2012)         at   60; ( 3)   users would usually buy enough heroin for only a day' s use, spending about

10 to 20 dollars            at a    time; ( 4)        a quarter -ounce of heroin was more than anyone would use in a


day; ( 5) someone who bought a quarter -ounce would probably break it up and sell it, keeping " a

little bit     of   that for their       own usage."          RP ( Oct. 11, 2012) at 38.


              The CI testified                about    his   three heroin        purchases   from. Conover.    During the CI' s

testimony, the State played the audio recording of the July 7 transaction, which included
discussion of the $ 350 purchase price and to whom the CI would resell the drugs. Victoria Giles,

dispatcher, driver, and trainer for the Longview School District, testified that the May 13

controlled buy location was on a school bus route stop for the Longview School District.

              Longview Police Corporal Timothy Watson, assigned to surveil all three transactions,

testified that the May 31 and July 7 transactions took place on Niblett Way, within 1, 000 feet

from     a school         bus     route   stop.       He also testified that a typical dose of heroin for " maintenance"


users was about 0. 2 to a half - ram or less if they were not " getting high" but " just maintaining"
                               g

to " stay      well."       RP ( Oct. 12,        2012)       at   75 -76.   People who " abuse the drug" to get high typically



2 VUCSA, ch. 69. 50 RCW.


                                                                             3
No. 44175 -6 -II



inject up to             a gram or    a gram and a               half. RP ( Oct. 12, 2012)                at   76.    Watson explained that


informants          would     generally         not    be   sent   to    buy     large   quantities,    such as a pound,      because "[     r] ed



flags   would go           up."    RP ( Oct. 12, 2012)              at   77. Watson also testified that ( 1) dealers who would


buy     an    ounce,       half ounce,
                                -               or    quarter- ounce,           would "[      break] it down further to sell to street


dealers,"         RP ( Oct.. 12, 2012)           at   79; ( 2)   dealers who purchased quarter- ounces would likely break

them down into "             eighth amounts, cut              this in half ...           an eighth of an ounce,"          equivalent to three-


and- a-half grams, and then break them down even further to a sixteenth of an ounce, a " teener,"


about    1. 7      grams, closer          to   what an " end user might                  be using," RP ( Oct. 12, 2012) at 79 -80; and


 3)   a maintenance user would                       break down          a "   teener"    into   even smaller amounts,         called a " point



one, point          two    and so on."          RP ( Oct. 12, 2012)               at   80.   Watson opined that an " end user" would


not be expected to buy a quarter -ounce at a time and that it was not common for end users to

save their money to buy larger quantities at once. RP ( Oct. 12, 2012) at 80.

                                                                 B. Jury Instructions

             Outside the presence of the jury, the parties discussed the jury instructions with the trial

court.        Conover had earlier objected to the State' s proposed reasonable doubt instruction on


grounds           that the definition           was sufficient without                 the " abiding- belief' language.           RP ( Oct. 12,


2012)        at    3..    He did     not       object   to any      of     the     other     jury   instructions.      Overruling Conover' s

objection, the trial court gave the State' s reasonable doubt instruction that included the " abiding -

belief' language. RP ( Oct. 12, 2012) at 4.


             The trial court also instructed the jury to consider that a separate crime was charged in

each count and that the State had to prove each count beyond a reasonable doubt. For the special

verdicts,         the trial       court    instructed the          jury        to determine ( 1)      whether        Conover' s   offenses   took
No. 44175 -6 -II



place within a school bus route stop, and ( 2) whether the State had proved the aggravating

circumstances beyond a reasonable doubt ( whether the offense involved at least three separate

transactions in which controlled substances were sold, transferred, or possessed with intent to do


so and whether the offense involved an attempted or actual sale or transfer of controlled


substances in quantities substantially larger than for personal use).

                           C. Courtroom Locked Half Hour beyond Lunch Break


           After the jury was instructed, Conover' s counsel informed the trial court that the main

entry door to the courtroom had been locked and a " Mr. Morgan" had tried to enter.3 RP ( Oct.
12, 2012) at 175 -76. The prosecutor responded that ( 1) the main entry door to the courtroom had

been locked over the lunch hour because ( a) there were valuable items left in the courtroom and


 b) they closed the courtroom during the lunch hour as a safety precaution when there were no

courtroom proceedings; and ( 2)       it " seemed to be like        about   15 — maybe 15 minutes" that the door


was locked and that when Mr. Morgan had tried to enter the courtroom, he " was let in almost


immediately      once [
                          they] discovered   that   it   was   locked."     RP ( Oct. 12, 2012)    at   176.   The trial


court found no harm in the inadvertent locking of the courtroom door, especially when as soon as

it   was   known that Mr. Morgan      was    trying   to enter, the door      was   immediately    opened.     Conover


neither objected nor moved for a mistrial based on this incident.




3 More specifically, Conover' s counsel explained:
           We   should    probably just   put on   the   record    the issue with   respect   to —and I can' t

           recall specific times, your Honor, but with respect to the main entry door that was
           locked. I don' t know what your Honor recalls, but the jury was seated, your
           Honor was reading jury instructions. If I recall correctly, the individual was
           trying to open the door right about the time you had completed reading jury
           instructions, I don' t recall specifics on that, but the door was locked.
RP ( Oct. 12, 2012) at 175.




                                                               5
No. 44175 -6 -II



                                           D. Verdict and Sentencing

       The   jury   found Conover guilty         of   three      counts of    delivery   of a controlled substance.   It


also returned special verdicts        finding   that ( 1)       Conover had delivered the controlled substances


within 1, 000 feet of a school bus route stop designated by a school district and ( 2) Conover' s

crime was a major violation of the VUSCA, involving the attempted or actual sale or transfer of

controlled substances in quantities substantially larger than for personal use.

       At sentencing, other than Conover' s mentioning that he might have three or four prior

convictions, there was no further discussion about Conover' s offender score or criminal history.

The State told the trial    court   that ( 1)   Conover' s initial standard sentencing range was 20 to 60

months of confinement       for   each   delivery   count; (     2) the three school bus route stop enhancements

would add 24 months to the standard range sentence for each count, running consecutively for a

total of 72 additional months; and ( 3) because the jury had found four different aggravating

factors ( three of which were that Conover had delivered substantially more controlled substances

than an   amount     for   personal    use),    the State recommended that the trial court also impose


exceptional 10 -year sentences for each count to run consecutively.

        The trial   court sentenced       Conover to        a   total   of   120   months of confinement:   48 months


for each of his three delivery convictions, to run concurrently with each other; and an additional

24 months ( school bus route stop enhancement) on each count, to run consecutively to each 48-




                                                                 6
No. 44175 -6 -II


month    sentence      for the underlying         convictions.   4 The trial court, however, did not impose an

exceptional sentence based on the VUCSA aggravating factors under RCW 9. 94A.535 as the

State had   recommended.             Although the State introduced no documentation and Conover did not


stipulate to his prior convictions, Conover' s judgment and sentence included a list of his prior


criminal history. Conover did not object.

         Conover appeals.


                                                        ANALYSIS


         I. COURTROOM DOORS LOCKED DURING AND HALF HOUR BEYOND LUNCH BREAK

         For the first time on appeal, Conover argues that the trial court violated his First and


Sixth Amendment rights to a public trial, asserting that the trial court locked the courtroom doors

for half   an   hour "   while   the      court   instructed the     jury" without first evaluating the Bone -Clubs

factors. Br. of Appellant at 8 -9. Neither the law nor the record supports this argument.

         Whether a defendant' s right to a public trial has been violated is a question of law, which


we review       de   novo.   State   v.   Brightman, 155 Wn.2d 506, 514, 122 P. 3d 150 ( 2005).           A trial court


violates a defendant' s right to a public trial if it closes the courtroom during a public proceeding




4
    RCW 9. 94A.533( 6) provides:
         An additional twenty -
                              four months shall be added to the standard sentence range
          for any ranked offense involving a violation of chapter 69. 50 RCW if the offense
          was also a violation of            RCW 69. 50. 435         or   9. 94A. 827.   All enhancements under

          this subsection shall run consecutively to all other sentencing provisions, for all
           offenses sentenced under this chapter.
    Emphasis added.)

5
    State v. Bone -Club, 128 Wn.2d 254, 906 P. 2d 325 ( 1995).




                                                                 7
No. 44175 -6 -II



without   first   determining         if   such closure       is   warranted under      Bone- Club. 6       Bone -Club, 128 Wn.2d

at   258 -59.      The     closure         of   a   courtroom "          occurs when the courtroom is completely and

purposefully       closed   to    spectators         so    that no   one      may   enter and no      one    may leave."    State v.


Lormor, 172 Wn.2d 85, 93, 257 P. 3d                        624 ( 2011) (      emphasis added).     These rules come into play

when the public is fully excluded from proceedings within a courtroom. State v. Easterling, 157

Wn.2d 167,         172, 137 P. 3d 825 ( 2006) (                    all spectators, including defendant and his counsel,

excluded     from the      courtroom while codefendant plea- bargained);                       Brightman, 155 Wn.2d at 511


 entire voir      dire   closed   to   all spectators);        In re Pers. Restraint of Orange, 152 Wn.2d 795, 808,

100 P. 3d 291 ( 2004) ( entire             voir     dire   closed   to   all spectators);   Bone -Club, 128 Wn.2d      at   257, ( no


spectators allowed in courtroom during a suppression hearing).

          Such a closure occurs only when the courtroom is " completely and purposefully closed to

spectators so       that no one may enter and no                     one      may leave "; thus, the inadvertent exclusion of


only   one   person       from    a    courtroom           does    not    constitute   a " closure"    for Bone -Club purposes.


Lormor, 172 Wn.2d at 93 ( exclusion of defendant' s terminally ill daughter for fear of distraction



6 Before a trial court closes a proceeding to the public, it must consider the following factors and
enter specific findings on the record:
        1. The proponent of closure or sealing must make some showing [ of a compelling
          interest], and where that need is based on a right other than an accused' s right to a
          fair trial, the proponent must show a " serious and imminent threat" to that right.
          2. Anyone present when the closure motion is made must be given an opportunity
          to object to the closure.

          3. The proposed method for curtailing open access must be the least restrictive
          means available for protecting the threatened interests.
          4. The court must weigh the competing interests of the proponent of closure and
          the public.

          5. The order must be no broader in its application or duration than necessary to
          serve its purpose.
Bone -Club, 128 Wn.2d at 258 -59.




                                                                          8
No. 44175 -6 -II



was not courtroom closure).               See also State v. Berg, 177 Wn. App. 119, 126 -27, 310 P. 3d 866

 2013) ( exclusion of defendants' friend from courtroom observation did not constitute courtroom


closure),      review denied, 179 Wn.2d 1028 ( 20.14).


          Here, the courtroom was not " completely and purposefully" closed to the public. Lormor,

172 Wn.2d        at   93 (   emphasis added).       The trial   court never "    purposefully" locked the courtroom


doors    or excluded anyone         from        court proceedings.   Rather, the courtroom was locked over the


lunch hour for security purposes, when there were no proceedings; and it remained locked

inadvertently for about 30 minutes after the lunch break. Moreover, once the trial court realized

that the courtroom was locked, it immediately opened the doors, thereby remedying the problem.

We hold that no courtroom closure occurred and, thus, the trial court did not violate Conover' s

right to a public trial.


                                    II. REASONABLE DOUBT JURY INSTRUCTION

           Conover next argues that the trial court erred in overruling his objection to the reasonable

doubt instruction.            He contends that the reasonable doubt instruction confused the jury because

it    stated   that the jurors had to have            an "   abiding belief in the truth      of   the   charge."    Br. of




7
     Jury Instruction 3 on reasonable doubt read:
                      The defendant has          entered a plea of not     guilty...   The State is the plaintiff
           and has the burden of proving each element of each crime beyond a reasonable
           doubt. The defendant has no burden of proving that a reasonable doubt exists.
                      A      defendant     is    presumed      innocent.       This    presumption       continues


           throughout the entire trial unless during your deliberations you find it has been
           overcome by the evidence beyond a reasonable doubt.
                  A reasonable doubt is one for which a reason exists and may arise from
           the   evidence or     lack    of evidence.    It is such a doubt as would exist in the mind of
           a reasonable person after fully, fairly and carefully considering all of the evidence
           or lack of evidence. If, after such consideration, you have an abiding belief in the

           truth of the charge, you are satisfied beyond a reasonable doubt.
CP at29.



                                                                 9
No. 44175 -6 -II



Appellant   at   13.     Our Supreme Court has already reviewed and upheld this instruction in State v.

Bennett, 161 Wn.2d 303, 318, 165 P. 3d 1241 ( 2007),                        which controls       here.    Thus, Conover' s


challenge fails.


          The trial court' s reasonable doubt instruction mirrored 11 Washington Practice: Pattern


Jury   Instructions: Criminal 4. 01,      at   85 ( 3d     ed.   2008) ( WPIC 4. 01),      which contains the " abiding

belief' language that Conover           challenges.        Our Supreme Court expressly approved the use of

WPIC 4. 01 in Bennett, 161 Wn.2d               at   318.    See also State v. Pirtle, 127 Wn.2d 628, 658, 904


P. 2d 245 ( 1995) (        holding   that the "     abiding belief' language did not diminish the pattern

instruction   defining "     reasonable   doubt "),     cert.    denied, 518 U. S. 1026 ( 1996).              Moreover, in a


recent Division One opinion, the defendant raised the same challenge that Conover raises here to


the " abiding belief" language; and, like Conover, he argued that the language was similar to the

impermissible "         speak the truth" remarks in State v. Emery, 174 Wn.2d 741, 760, 278 P. 3d 653

 2012).    State   v.   Fedorov,       Wn.     App. ,              324 P. 3d 784, 790 ( 2014).         Relying on Bennett

and Pirtle, Division One distinguished Emery, asserting that Emery' s " speak the truth" language

was    improper because it expressly                misstated     the   jury' s   role,   whereas     the "   abiding belief'

language accurately informed the jury that its job is to determine whether the State proved the

charged offenses         beyond    a reasonable      doubt.      Fedorov, 324 P. 3d       at   790.   We find the Fedorov


rationale persuasive and adopt it here.


          We hold that the trial court did not err in giving the reasonable doubt instruction

containing the " abiding belief' language.




                                                                 10
No. 44175 -6 -II



                                                III. SENTENCING


                           A. Offender Score —No        Proof of Criminal History

         For the first time on appeal, Conover challenges the trial court' s calculation of his

offender   score.   He contends that the trial court erred by calculating his offender score based on

the State' s   statement   of criminal   history   submitted with     no   supporting    evidence.   The State


concedes this error and agrees that we should remand the case to the trial court for resentencing,

at which the State will have the opportunity to prove Conover' s prior convictions under State v.

Hunley,    175 Wn.2d 901, 287 P. 3d 584 ( 2012).          We accept the State' s concession and proposal


for remand.


   B. Running School Bus Route Stop Enhancements Consecutively to Underlying Sentences

         Conover next argues that the trial court erred in running his school bus route stop

enhancements consecutively to his sentences for his underlying crimes, rather than concurrently

under   RCW 9. 94A.533. This challenge also fails.


          Conover' s challenge requires us to look at the statute' s plain language to give effect to

legislative intent. State    v.   Jacobs, 154 Wn.2d 596, 600, 115 P. 3d 281 ( 2005).          We determine a


statute' s plain meaning from the ordinary meaning of its language, as well as from the statute' s

general context, related provisions, and         the statutory   scheme as a whole.      Jacobs, 154 Wn.2d at


600.    We also interpret statutes to give effect to all language in the statute, to render no portion

meaningless or superfluous, and         to   avoid absurd results.   State   v.    P., 149 Wn.2d 444, 450, 69
                                                                                  J.


P. 3d 318 ( 2003); State v. Neher, 112 Wn.2d 347, 351, 771 P. 2d 330 ( 1989).


          Our legislature has expressly and unequivocally provided mandatory enhanced sentences

for certain drug offenses:



                                                        11
No. 44175 -6 -II



           An additional twenty -four months shall be added to the standard sentence range
           for any ranked offense involving a violation of chapter 69. 50 RCW if the offense
           was also a violation of           RCW 69. 50. 435           or   9. 94A. 827.   All enhancements under
           this subsection shall run consecutively to all other sentencing provisions, for all
           offenses sentenced under this chapter.

RCW 9. 94A. 533( 6) (            emphasis      added).     Conover' s three counts of delivering drugs occurred

     w] ithin one   thousand feet       of a school      bus   route   stop designated     by [ a]   school   district,"   offenses




that    were      also    violations    of   RCW 69. 50. 435( 1)(            c),   which the above RCW 9. 94A.533( 6)


enhancement provision expressly includes.

           We reject Conover' s argument that only other types of "drug- crime" enhancements listed

in RCW 9. 94A.533 run consecutively with his base sentences for his underlying criminal

convictions, not enhancements such as his school bus route stop enhancements. Br. of Appellant

at   23.   The plain language of the statute unambiguously requires the sentencing court to add 24

months to a criminal defendant' s standard range sentence for any offense under chapter 69. 50

RCW if the        offense also violates         RCW 69. 50. 435. RCW 9. 94A.533( 6).                  The statute also plainly

states     that   all    enhancements        under   RCW 9. 94A.533( 6)              shall run consecutively to all other

sentencing        provisions.         RCW       9. 94A. 533( 6).            In addition to the plain meaning of this

enhancement statute, the legislature amended RCW 9. 94A.533( 6) in 2006 to require drug- related

sentencing        enhancements         to be   served    consecutively " to         all other   sentencing    provisions."     See


LAws of 2006,            ch.   339, § 301.


           Here, the jury found Conover guilty of three counts of delivery of a controlled substance,

heroin, under RCW 69. 50. 401, and that these three offenses took place within 1, 000 feet of a


school bus route stop designated by a school district, in violation of RCW 69. 50.435( 1)( c).

Thus, RCW 9. 94A.533( 6) required the trial court to run his school bus route stop enhancements



                                                                   12
No. 44175 -6 -II



 consecutively" to his base sentences and to each other. See CP at 65, RP ( Oct. 24, 2012) at 19.

We hold that the trial court did not err in running these sentencing enhancements consecutively.

                         C. VUCSA           Aggravating         Factor Findings, " Major Violations"

                                                                                                                               findings8
         Conover      next argues       that   we should strike              the   jury' s   aggravating VUCSA factor


from his record because his convictions were not " major violations of the Uniform Controlled

Substances Act."          Br.   of   Appellant       at   24.       He asserts that this aggravator does not apply to his

heroin   sales    because ( 1)        each   of     the three        convictions         was   a    separate "   offense"   that did not


involve three transactions, and ( 2) the State failed to prove that the quantities of heroin involved

were "   substantially larger than for            personal use."             Br.   of   Appellant     at   26. Conover acknowledges


that the trial court did not impose an exceptional sentence based on the jury' s finding of

aggravating factors.          Instead, he challenges these aggravator findings because " they are on his

record."   Br. of Appellant at 24. These challenges fail.


                                               1.    Three separate transactions


          Conover argues that the first challenged statutory aggravating factor does not apply under

a plain reading of RCW 9. 94A.535( 3)( e)( i) because ( 1) this statutory factor requires a " current

offense"   that " involved       at   least three     separate        transactions," and ( 2) the State chose to charge him


with   three     separate "     current     offenses"      rather than a single offense comprising three separate



8 RCW 9. 94A.535 lists aggravating circumstances that constitute substantial and compelling
reasons    for   an upward       departure from the                 standard range           sentencing     guidelines.     One of those
circumstances        is   when        the    defendant'         s    current       offense     is    a "   major   VUCSA."        RCW
9. 94A. 535( 3)(   e).    The presence of any of the six statutory factors may identify a current offense
as   a " major     VUCSA."            RCW 9. 94A. 535( 3)(             e)(   i) -(
                                                                                 vi).     Conover challenges two of these six

statutory factors that the jury considered in determining that his current offense was a " major
VUCSA": ( 1) that his current offense involved at least three separate transactions, and ( 2) that
the quantities involved were substantially larger than for personal use.



                                                                        13
No. 44175 -6 -II


transactions.        Br.    of   Appellant         at   25 ( citing RCW 9. 94A.535( 3)(           e)(   i)). Because Conover cites no


authority to support his " plain meaning" argument, we need not consider it. RAP 10. 3( a)( 6).

            Nevertheless, we note that a plain reading of the statute shows RCW 9.94A.535( 3)( e)( i)

applies when         there       are   three separate transactions              involving      a controlled substance.      See State v.

                                                                                     9
Reynolds, 80 Wn.             App.       851, 856, 912 P. 2d 494 ( 1996).                 Here, Conover was charged with and


the   jury    heard     evidence            of   three "   separate transactions in which controlled substances were

      10:
sold "       twice   in     May 2011          and once      in   July   2011.    Thus, the trial court did not err in instructing

the jury to consider whether Conover' s offense involved at least three separate transactions in

which controlled substances were sold, transferred, or possessed with intent to do so.


                                  2. Quantity " substantially larger than for personal use"

             Conover argues that the second challenged aggravator does not apply because the State

failed to prove that the quantities of heroin he sold were " substantially larger than for personal

use."   Br.    of   Appellant          at   26 ( quoting RCW 9. 94A. 535( 3)(            e)(   ii)). We disagree.


             In determining whether sufficient evidence supports a conviction, we consider " whether,

after   viewing the          evidence            in the light    most    favorable to the [ State],          any rational trier of fact

could have found the essential elements of the [ charged] crime beyond a reasonable doubt."


State   v.   Green, 94 Wn.2d 216, 221, 616 P. 2d 628 ( 1980) ( quoting Jackson                                   v.   Virginia, 443 U. S.



9 Melina Reynolds was charged with two counts of delivery of a controlled substance and one
count of      delivery       of a material          in lieu   of a controlled substance.                Reynolds, 80 Wn. App. at 853.
The issue was whether Reynolds' third transaction constituted an actual " sale" because it did not
involve       an    actual       controlled             Noting that the plain language of former RCW
                                                    substance.

9. 94A. 533( 3)(      e)(   i)   required at least three separate transactions involving actual controlled
substances,         we held that Reynolds' third transaction did                         not count.         Nevertheless, we affirmed

her exceptional sentence based on a different qualifying factor that established a major violation
of the controlled substances act. Reynolds, 80 Wn. App. at 856, 859.

10 RCW 9. 94A.535( 3)( e)( i).


                                                                          14
No. 44175 -6 -II



307, 339, 99 S. Ct. 2781, 61 L. Ed. 2d 560 ( 1979)).                          A claim of insufficient evidence 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).                           We must defer to the trier of fact on issues


of   conflicting testimony, credibility                of witnesses, and        the      persuasiveness of        the   evidence.   State


v.   Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970 ( 2004) (                               citing State v. Cord, 103 Wn.2d 361,

367, 693 P. 2d 81 ( 1985)).


         Here, the record shows that the State presented sufficient evidence that the quantities of


drugs he    sold were        substantially larger than for            personal use.           Detective Hanson testified that ( 1)


          ounce
a quarter -             of    heroin      was    more    than   anyone        would use         in    one   day; (   2) if an individual


purchases a quarter -ounce it is probably for resale purposes, keeping " a little bit of that for their

own usage,"       RP ( Oct. 11, 2012)             at   38;   and (   3) heroin       users    do     not   tend to " stockpile" heroin,



instead buying enough for one or a few days at a time, spending about 10 to 20 dollars at a time.

RP ( Oct. 11, 2012)             at   60.     Corporal Watson testified that ( 1)                      a typical dose of heroin for


maintenance users was about 0. 2 to about 0. 5, or a half gram or less if "they' re just maintaining"

and up to a gram or gram and a half for people who chose to abuse the drug, RP ( Oct. 12, 2012)

at   76; ( 2) dealers        who     buy    an   ounce,      half    ounce,    or            ounce
                                                                                     quarter -              usually "[ break] it down


further to      sell   to   street   dealers," RP ( Oct. 12, 2012)                  at   79; ( 3)    dealers who purchase quarter -


ounces would likely break it down to an eighth of an ounce, about three- and -a -half grams, and

break that down             even   further to     a sixteenth of an ounce, a "                teener," RP ( Oct. 12, 2012) at 79,


about    1. 7   grams, closer        to    what an " end user         might be using," RP ( Oct. 12, 2012)                  at   80; ( 4) a


maintenance user would break down a ` teener" into even smaller amounts called a " point one,

point   two     and so on,"        RP ( Oct. 12, 2012) at 80; and ( 5) an end user would not be expected to buy



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a quarter -ounce at a time and it was not common for end users to save their money to buy larger

quantities at once. RP ( Oct. 12, 2012) at 80.


         Conover'          s    three      transactions     involved       quarter -
                                                                                   ounce         sales,       more than the amount


generally purchased for personal use: Conover was selling quarter- ounces of heroin, whereas an

end user would         likely      possess about a sixteenth of an ounce.                     The State thus presented sufficient


evidence to show that the quantities of heroin Conover sold were substantially larger than for

personal      use,    for       purposes       of   proving the RCW 9. 94A.535( 3)(                    e)(   ii) aggravator and, thus,


supporting the jury' s finding.

                      3.       Jury Instruction on " Substantially Larger than for Personal Use"

         Conover           also    argues     for the first time      on appeal          that the "    substantially larger than for

personal use"        aggravating factor is unconstitutionally                     vague.       Br.   of      Appellant   at   27.   Conover


contends that the absence of "legally fixed standards" accorded the jury " standardless discretion"

to decide this factor,             violating        due   process.   Br.    of   Appellant      at   28.      This argument fails; this


aggravating factor is not unconstitutionally vague as applied here.

         We may refuse to review a claim of error that the defendant did not raise below unless

the   error   is   manifest and affects a constitutional right.                    RAP 2. 5(     a)(   3).    The defendant must also


show    that the      alleged error           was    not   harmless beyond             a reasonable        doubt.   State v. Scott, 110


Wn.2d 682, 687, 757 P. 2d 492 ( 1998).                       Due process principles are usually satisfied if a trial court

instructs the        jury      on (   1)   each element of the charge, and ( 2) that the State must prove each


element beyond a reasonable doubt. Scott, 110 Wn.2d at 690.

          The constitution does not require that the meanings of particular terms used in an

instruction be specifically defined. Scott, 110 Wn.2d                             at   691.   Accordingly, jury instructions that



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No. 44175 -6 -II



do not define particular terms are not " manifest" constitutional errors that can be raised for the

first time on appeal. Scott, 110 Wn.2d at 688; see also State v. O' Hara, 167 Wn.2d 91, 107, 217

P. 3d 756 ( 2009) ( failure     to provide statutory definition of malice when jury was instructed on all

elements of the crime did not constitute manifest constitutional error).


        Conover did not object to any jury instruction other than the reasonable doubt instruction.

Because the trial court instructed the jury about each element of the crime charged, including the

aggravating factors, its failure to provide a specific definition of " substantially larger than for

personal use" does not amount to constitutional error. Thus, Conover cannot raise this vagueness


issue for the first time on appeal. RAP 2. 5( a)( 3).

                                                                                                           11
        We   affirm   Conover' s    convictions, vacate   his   sentence, and remand   for resentencing.


        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 in accordance with RCW


2. 06. 040, it is so ordered.




We concur:




11 At the resentencing hearing, the State may prove Conover' s criminal history for purposes of
establishing his correct offender score..


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