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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II

STATE OF WASHINGTON,                                                     No. 43823 -2 -II
                                                                         Consolidated Nos.
                                 Respondent,                             43826 - -II
                                                                               7
                                                                         43833 -0 -II
         v.                                                              43836 - -II
                                                                               4


STEPHANEY MALONE,                                                  UNPUBLISHED OPINION


                                 Appellant.


         BJORGEN, A.C. J. —    Stephaney Malone appeals her convictions for three counts of

delivery of a controlled substance, two of which the jury found she committed within 1, 000 feet

of a school bus stop; involving a minor in a drug transaction; possession of a controlled

substance with intent to distribute, also committed within 1, 000 feet of a school bus stop; and

leading organized crime. Malone contends that ( 1) insufficient evidence supported five of the

six charges and   the school   bus stop   sentence enhancements, (   2) the trial court erred in applying

the school bus stop enhancements because Malone could not receive these enhancements as an

accomplice, (   3) the trial court erred in imposing an exceptional sentence for a major violation of
                                                   1
the Uniform Controlled Substances Act (Act)            because the statute authorizing the exceptional




1
    Chapter 69. 50 RCW.
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sentence    is unconstitutionally    vague, (   4) the trial court erred in instructing the jury on the major

violation of the Act, and ( 5) her trial counsel rendered ineffective assistance at sentencing.

         We affirm Malone' s convictions and sentence enhancements except for the leading

organized crime conviction, which we reverse. We remand to the trial court to dismiss with


prejudice the charge of leading organized crime, to correct Malone' s offender score, and to

resentence if required by the corrected offender score.

                                                       FACTS


         A confidential informant ( CI) for the Longview Police Department gave officers


Malone' s name as a suspected drug dealer, and they began to investigate. The officers arranged
                         buys2
for three   controlled           using the CI during its investigation of Malone, the first of which

occurred on September 28, 2010. In a recorded call, the CI contacted Malone and told her he


wanted to purchase $ 100 of crack cocaine. Malone told the CI that he would need to contact her


son, Derrick Malone, and provided the CI with Derrick' s contact number. 3 The CI failed to

connect with Derrick despite several attempts, and the CI eventually called Malone back.

Malone assured him that she would contact her son and eventually called the CI back, telling him

once again to call Derrick. The CI then phoned Derrick and arranged to buy the crack near

Longview' s Wal - art Store. Officers brought the CI to the purchase location and observed him
                M




2 A controlled buy involves the purchase of narcotics arranged by police through the CI. Police
search the CI before the buy to ensure he or she has no drugs, give the CI traceable money for
the buy, send the CI out to make the purchase under surveillance, and then search the CI after the
buy to recover any drugs the CI acquires.
3
    For clarity' s sake we refer to the appellant as Malone, and we refer to her family members by
their first name. We intend no disrespect.

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                                               4 II)



get into a car. He emerged after " a fairly short period of time" and returned to his police handler

with 1. 6 grams of crack cocaine wrapped in a paper towel. CD Proceedings ( CDP) at 31.


       The second controlled buy involving Malone occurred on October 5, 2010. The CI

placed another call to Malone seeking to buy $ 100 in crack cocaine. Malone infoimed him " that

she was out and, about and   that she would     meet   him   over   by   the [ Dollar Tree, Inc.] in Longview."



CDP at 36. The officers, however, forgot to give the CI the money he needed for the buy. The

CI discovered this oversight after getting into the car containing Malone and her son, Carlos

Vargas, and had to dash off to where a patrol car was hidden to obtain the money. He then

returned to the car containing Carlos and Malone, completed the transaction, and once again

returned to his handler to give him the 1. 6 grams of crack cocaine he purchased.


       The final controlled buy in the investigation of Malone occurred on October 28, 2010.

Again, the CI   called   Malone   and asked   for $ 100 in crack cocaine. Malone told him that her son


would bring the drugs to him at a park near her house. Officers observing Malone' s house saw a

male leave her house on a bike; the male rode to the park, met with the CI, and exchanged cash


for a paper towel containing .39 grams of crack cocaine. Officers later identified the man on the

bike as Frank Arce.


       Based on the evidence obtained from the controlled buys, officers sought and obtained a


warrant to search Malone' s house. There, the officers found the car used to transport Malone to


the October 5, 2010 buy and the bike Arce used to ride to the site of the October 28, 2010 buy.

In the locked master bedroom police found a pile of documents linking Malone to the cell phone

number used to arrange the crack purchases and a stash of cocaine in a shoe in the closet.




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                                               4



           The State    charged   Malone   by information   with seven   felonies:   delivery of a controlled

substance, involving a minor in a drug transaction, two counts of delivery of a controlled

substance with school bus stop enhancements, possession of a controlled substance with intent to

deliver with a school bus stop enhancement, possession of a controlled substance, and leading
                    4
organized crime.         The State also noted its intent to seek an exceptional sentence for a major


violation of the Act because Malone' s offense " involved at least three separate transactions in

which controlled substances were sold,         transferred   or possessed with   intent to do   so."   Clerk' s


Papers ( CP) at 14.


           At trial, the State presented recordings of the CI' s September 28, 2010 and October 5,


2010 calls to Malone and recordings of all three buys. 5 The CI testified about each of the

transactions while officers testified about their surveillance during the buys and the search of

Malone' s house. The State also offered testimony from the Longview School District' s

transportation manager identifying bus stops near the sites of the October 5, 2010 and October

28, 2010 deliveries and Malone' s house. In addition, Longview' s geographic information


systems ( GIS) coordinator prepared maps admitted into evidence that showed that the delivery

sites and Malone' s home were well within the 1, 000 foot buffer zones surrounding the bus stops.




4
    The State moved to dismiss the simple possession charge with prejudice during trial due to
insufficient evidence. The trial court granted this motion.


5 The recording of the October 28, 2010 call failed for unknown reasons, and the jury did not
hear it.


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                                                4



       Malone called a single witness in her defense, Arce. Arce testified that he had delivered


the crack to the CI in the park on October 28, 2010 at the behest of a girl friend whose last name

and address he could not remember, not on orders from Malone.


       The jury returned guilty verdicts on all counts. The jury returned special verdicts finding

that Malone had committed the two delivery offenses and the possession with intent to deliver

offense within 1, 000 feet of a school bus stop. The jury also returned a special verdict finding

that Malone had committed a major violation of the Act because her offense involved at least


three separate transactions in which controlled substances were sold, transferred, or possessed.


       The trial court sentenced Malone to 85 months' incarceration on each of the delivery and

the possession with intent to deliver charges, 60 months' incarceration on the involving a minor

in a drug transaction charge, and 156 months' incarceration for the leading organized crime

charge, with all these sentences running concurrently. At the same sentencing proceeding, the

trial court also sentenced Malone under three other cause numbers in each of which she had pled


guilty to a single count of delivery of crack cocaine. The trial court sentenced Malone to 60

months for each delivery offense Malone pled guilty to, with those sentences running

concurrently with each other and consecutively to the sentences imposed for the jury trial

convictions.




       Malone timely appealed.




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                                               4



                                                     ANALYSIS


                                          I. SUFFICIENCY OF THE EVIDENCE


             Malone challenges the sufficiency of the evidence underlying two of her three

convictions for delivery of a controlled substance, the conviction for involving a minor in a drug

transaction, the possession of a controlled substance with intent to deliver conviction, the leading

organized crime conviction, and the school bus stop sentence enhancements to the convictions

for delivery of a controlled substance and possession of a controlled substance with intent to

deliver. We hold that sufficient evidence supports each conviction and enhancement, except the


conviction for leading organized crime.

             We review the sufficiency of the evidence sustaining a criminal conviction by asking

whether, after "'     viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt. "'


State   v.   Vasquez, 178 Wn.2d 1, 6, 309 P.3d 318 ( 2013) ( quoting State v. Bencivenga, 137 Wn.2d

703, 706, 974 P. 2d 832 ( 1999)).           By challenging the sufficiency of the evidence, Malone

  admits the truth of the State' s evidence and all inferences that reasonably can be drawn
therefrom. "'      State   v.   Kintz, 169 Wn. 2d 537, 551, 238 P. 3d 470 ( 2010) ( quoting State v. Salinas,

119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992)). We accord the same weight to direct and


circumstantial evidence during our review.of the sufficiency of the State' s evidence and either

type of evidence may sustain a conviction. Kintz, 169 Wn.2d at 551.




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A.                 Count I: Delivery of a Controlled Substance on September 28, 2010

                   Malone first challenges the sufficiency of the evidence related to her conviction for

delivering crack cocaine on September 28, 2010. Specifically, Malone contends that the State

failed to show the elements of constructive delivery. We hold that it did.

                   A conviction for delivery of a controlled substance requires the State to prove that the

defendant "( 1) delivered a controlled substance and ( 2) knew that the delivered substance was


controlled."            State   v.   Martinez, 123 Wn. App. 841, 844, 846,. 99 P.3d 418 ( 2004). Because


Malone did not personally deliver the crack cocaine, the State needed to prove that she did so

constructively, which required the State to prove that she delivered it "through an intermediary."

State         v.   Campbell, 59 Wn. App. 61, 63              n. 1,   795 P. 2d 750 ( 1990). This required the State to


prove ( 1) a third person ( 2) transferred crack cocaine belonging to Malone or under her control

    3)   at   her "` instance        or   direction. "'   Campbell, 59 Wn. App. at 63 ( quoting Davila v. State, 664

S. W. 2d 722, 724 (Tex. Crim. App. 1984)).

                   Sufficient evidence in the record allowed the jury to find beyond a reasonable doubt that
                                                                                                                    6
Malone constructively delivered the                       crack cocaine      to the CI   on   September 28, 2010.       While




6
    The State argues that sufficient evidence supports Malone' s conviction on this count because
the trial court instructed the jury on accomplice liability and the prosecutor availed himself of
that instruction during closing argument. If the jury could have convicted Malone as an
accomplice, more than sufficient evidence would have supported the conviction given even
Malone' s characterization of her phone calls with the CI. However, while the trial court
provided the definitional instruction on accomplice liability, the trial court did not instruct the
jury that it could convict Malone as an accomplice for Derrick' s criminal act. We distinguish
between a trial court' s instruction on the definition of an accomplice and its instruction that the
jury may convict an accomplice for the offense. State v. Spencer, 111 Wn. App. 40.1, 411 -12, 45
P. 3d 209 ( 2002). Without an instruction on the jury' s ability to convict an accomplice or a

criminal charge filed on that basis, Malone' s conviction on accomplice liability grounds would
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Malone contends that no evidence in the record suggested that the cocaine Derrick delivered


belonged to her or was otherwise under her control, or that Derrick acted under her instance and


direction, the jury heard the recordings of the CI' s calls with Malone that day. During the first,

the CI   asked      Malone if   she   had "   a   hundred," meaning $ 100 in crack cocaine. CDP at 182.


Malone responded in the affirmative. The CI then attempted to buy the crack cocaine, and

Malone told him to call Derrick. The jury could reasonably conclude or infer from that

interaction that the CI was arranging to buy Malone' s crack cocaine, although delivered by

Derrick rather than Malone. Further, in a later call with Malone, after the CI failed to connect


with Derrick, Malone told the CI that she would tell Derrick to " answer [ his] call" to set up the

buy. Ex. 9. This evidence allowed the jury to reasonably conclude that Derrick acted under his

mother' s instance or direction when he answered the call and then brought the crack cocaine to


the buy site.

B.       Count II: Involving a Minor in a Drug Transaction

         Malone also contends that insufficient evidence supported her conviction for involving a

minor in a drug transaction. We disagree.




have been constitutionally infirm and no amount of evidence could be sufficient to support it.
Spencer, 111 Wn. App. at 411 -12 ( citing State v. Davenport, 100 Wn.2d 757, 764 -65, 675 P. 2d
1213 ( 1984)).
             However, because we presume that the jury follows the trial court' s instruction,
we must presume the jury did not convict on accomplice liability grounds since it was not told it
could    do   so.   See State   v.   Swan, 114 Wn. 2d 613, 661 -62, 790 P.2d 610 ( 1990). Malone did not,
in any event, assign error to the decision to give the superfluous instruction on the definition of
an accomplice or the prosecutor' s closing argument, which asked the jury to convict for the
September 28, 2010 delivery based on accomplice liability.


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         To convict Malone of involving a minor in a drug transaction, the State needed to prove

that she ( 1) "   compensate[   d], threaten[ ed],   solicit[ ed], or   in any   other manner   involve[ d]" ( 2) "   a



person under      the age of eighteen" (   3) "   in a transaction unlawfully to manufacture, sell, or deliver

a controlled substance."        RCW 69. 50.4015( 1).


         Malone contests only the State' s proof that Derrick was under the age of 18. For support,

Malone cites our opinion in State v. Duran- Davila, 77 Wn. App. 701, 892 P.2d 1125 ( 1995),

where we reversed a similar conviction for insufficient evidence that the transaction involved a


minor. The only admissible testimony in Duran- Davila concerning the age of the alleged minor

was a detective' s testimony that he had seen the girl at a juvenile court proceeding. Duran -

Davila, 77 Wn. App. at 703 -04. We held that testimony about seeing the alleged minor " at a

remand hearing" in juvenile court " was insufficient to prove beyond a reasonable doubt that" the

girl was under 18 at the time of the offense. Duran-Davila, 77 Wn. App. at 706.

          The testimony the State presented against Malone was qualitatively different than that

presented in Duran-Davila. As in Duran -
                                       Davila, the arresting officer here testified to seeing

Derrick interact with the juvenile justice system by stating that he brought Derrick to the juvenile

detention facility for intake. However, the arresting officer testified further that, had Derrick

been over the age of 18, the juvenile detention facility would have refused intake and instead

sent him to the county jail. This testimony reasonably ruled out the possibility that Derrick was

over the age of 18. A rational trier of fact could have found the State proved that Derrick was


younger than 18 beyond a reasonable doubt based on this testimony.




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                   7



C.     Count IV: Delivery of a Controlled Substance on October 28, 2010

       Malone next challenges the sufficiency of the evidence sustaining her conviction for

delivering a controlled substance on October 28, 2010. As with her challenge to her conviction

for count I, Malone contends that no evidence allowed the jury to conclude beyond a reasonable

doubt that she constructively delivered the crack through Arce, citing to his testimony that he did

not deliver the crack cocaine for her. Again, we disagree.


       Both the CI and his handler testified that the CI initiated the October 28, 2010 buy with a

call to Malone asking to purchase $ 100 in crack cocaine. The CI testified that Malone told him

that her son would meet him in a nearby park to consummate the transaction. Officers watching

Malone' s residence watched Arce leave on a bike, and other officers watched him ride to the

park and meet with the CI to exchange cash for drugs. The CI testified about meeting Arce in

the park. While Arce testified that Malone played no role in the transaction, Malone accepts the


truth of the State' s testimony and the reasonable inferences drawn from it for purposes of her

sufficiency challenge. Given that reality, Arce' s testimony was irrelevant. The jury could

reasonably conclude from the CI' s call to Malone that the CI had arranged to purchase Malone' s

drugs and that she directed Arce to deliver them to him for her.7




7 Malone also argues that the " grossly disproportionate amount" of crack cocaine Arce delivered
suggests that the cocaine was not under her control. Br. of Appellant at 10. Arce may have
indeed had control over the drug and helped himself to some of it when he delivered it. That
does not, however, make the cocaine any less Malone' s property. She owned the drug until Arce
handed it to the CI, and the State may show constructive delivery when a third person delivers
the drugs owned by a seller to a buyer. Campbell, 59 Wn. App. at 63.
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D.          Count V: Possession of a Controlled Substance With Intent to Deliver


            Malone also challenges the sufficiency of the evidence supporting her conviction for

possession of a controlled substance with intent to deliver. She contends that, while the State


showed possession, it did not offer any evidence of intent to distribute. We hold that the State

presented sufficient evidence.




            While a jury may permissibly infer that someone in possession of a controlled substance

intended to traffic it, the jury could also permissibly infer that the person possessed the substance

for his or her own personal use. State v. Harris, 14 Wn. App. 414, 418, 542 P.2d 122 ( 1975).

The State must therefore present some other evidence, aside from mere possession of a small


quantity of a controlled substance, in order to prove that a defendant possessed with intent to

deliver. State      v.   Brown, 6$ Wn.      App. 480, 483, 843     P. 2d 1098 ( 1993).   Courts commonly find

this additional factor where the defendant possessed quantities of a controlled substance beyond


those expected for personal use, or where she possessed tools of the illicit drug. trade. Brown, 68

Wn. App. at 484. Testimony about controlled buys can also provide the additional evidence

necessary to allow the inference of intent to deliver beyond a reasonable doubt. Brown, 68 Wn.

App.   at   484;   see   State   v.   Thomas, 68 Wn.   App.   268, 273, 843 P. 2d 540 ( 1992) ( police testimony


about prior sales can provide evidence of the defendant' s intent to distribute controlled


substances seized).




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                                                4



          The State presented no evidence that the volume of crack seized at Malone' s house itself


indicated an intent to distribute.8 This, however, was not a case where " the officers observed no

actions   suggesting       sales or   delivery." Brown, 68 Wn. App. at 484. The officers, through their

CI, arranged three controlled buys with Malone. The evidence of these transactions allowed the


jury to infer that Malone possessed the cocaine in order to carry on her illicit trade. Brown, 68

Wn. App. at 484; Thomas, 68 Wn. App. at 273.

E.        Count VI: Leading Organized Crime

          Malone also challenges the sufficiency of the evidence supporting her leading organized

crime conviction. She contends that the State failed to show Arce and Carlos acted under her


control or that she committed each act for financial gain. We agree that the State failed to

introduce sufficient evidence that Malone " led" Carlos and do not reach Malone' s other


contentions related to this charge.



          To convict Malone of leading organized crime, the State needed to prove that she. (1)

    intentionally   organiz[ ed],     manag[ ed], direct[ ed],   supervis[ ed], or   finance[ d]" ( 2) " three or more


persons" (   3) "   with   the intent to engage in a    pattern of criminal    profiteering activity." RCW


9A. 82. 060( 1)(    a).   Under former RCW 9A.82.010( 4)( Q)           ( 2008), 9   the delivery of a controlled

substance constitutes criminal profiteering if committed for " financial gain."




8
 No testimony at trial disclosed the precise amount of crack cocaine police found in the shoe.
However, the prosecutor stated in closing it was 5. 6 grams, and Malone did not object that this
was an inaccurate misrepresentation.


9 Former RCW 9A.82.010 was revised in 2013, but this revision does not affect the subsection
cited.



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       Malone contends that the State failed to prove beyond a reasonable doubt that she


organized, managed, directed, or supervised Carlos. The State disagrees, citing two pieces of

evidence it claims show that Malone did so. First, Carlos gave Malone a ride to the October 5,


2010 buy site. Second, at the buy the CI forgot the cash, ran to get it, found Carlos' s car still

there when he returned, and consummated the transaction with Carlos present. We hold this


evidence is insufficient to show the necessary organization, supervision, direction, or

management of Carlos by Malone.

       The ride Carlos gave Malone cannot show that she managed, supervised, directed, or


organized him, because the evidence shows that Carlos had already committed to giving Malone

a ride to the Dollar Store before the CI called her. Malone told the CI this when he asked her to


drive to a site that police were already observing and instead told him to meet her where Carlos

was going. That Malone could not order Carlos to take her to the location proposed by the CI is

inconsistent with her supervision, direction, management, or organization of Carlos.


       Nor did the fact that Carlos waited at the site of the purchase while the CI fetched the


traceable money indicate management, supervision, direction, or organization by Malone. The

recording played for the jury indicated that the CI asked Carlos to wait while he went to get the

cash. If Carlos waited as a favor to the CI, we cannot say that Malone organized, supervised, or

directed him.


        While we review sufficiency challenges in the light most favorable to the State, the State

needed to introduce some evidence that Malone had some effect on Carlos' s actions. The


gravamen of a leading organized crime offense is leadership: the leader must influence the



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                                               4




behavior of those he or she leads. E.g., State v. Strohm, 75 Wn. App. 301, 305 -07, 879 P.2d 962

 1994) ( finding   management, supervision, direction, or organization where the leader of a stolen

car ring decided which vehicles his associates would steal, which thief would do the stealing, and

provided   the thieves the necessary tools).    We hold that under these circumstances the State


failed to provide sufficient evidence of Malone' s leadership of Carlos. Therefore, we reverse

Malone' s conviction for leading organized crime and remand to the superior court to dismiss this

conviction with prejudice. State v. DeVries, 149 Wn.2d 842, 853 -54, 72 P. 3d 748 ( 2003).


F.     Aggravating Factors to Counts III, IV, and V: The School Bus Stop Enhancements

       Malone also challenges the sufficiency of the evidence related to the school bus stop

sentence enhancements. She contends that the State failed to prove beyond a reasonable doubt


that she committed any offense within the 1, 000 -foot radius prescribed by RCW 69.50.435

because it did not identify the precise location of the bus stops, the transaction sites, and the

house where police seized the cocaine. We disagree.


        As with a conviction, the State bears the burden of proving the elements of a sentencing

enhancement beyond a reasonable doubt. State v. Hennessey, 80 Wn. App. 190, 194, 907 P.2d

331 ( 1995).   We review the evidence supporting a jury' s finding of a sentence enhancement in

the same manner we review the evidence sustaining a jury' s finding of guilty on a criminal

charge. We look to whether, viewed in the light most favorable to the State, a rational jury could

find the facts needed to support the sentence enhancement beyond a reasonable doubt.


Hennessey, 80 Wn. App. at 194. Where the State seeks to enhance a sentence for delivery of a

controlled substance within    1, 000 feet   of a school   bus stop   under   RCW 69. 50. 435( 1)(   c),   the State




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may   not   rely   on a " guesstimat[ e]"   of the distance between the transaction and the bus stop to

provide sufficient evidence for the jury to find the sentencing enhancement. Hennessey, 80 Wn.

App. at 195.

        A rational jury could find beyond a reasonable doubt that Malone committed the two

delivery of a controlled substance offenses and the possession of a controlled substance with

intent to deliver offense within 1, 000 feet of a school bus stop. The State presented testimony

from the Longview School District' s transportation manager that identified designated bus stops


near the three transaction sites. The State also presented testimony from the City of Longview' s

GIS coordinator that she took the bus stop locations given to her by the school district' s

transportation manager and fed that data into the city' s geographic -related software to prepare a

map of the 1, 000 -foot circular radii surrounding the bus stops. The resulting maps were admitted

into evidence, and the GIS coordinator testified that these maps were accurate to within a few


inches. An officer identified the locations of the controlled buys and the search of Malone' s


house on the maps, which were marked with stars. The stars are all well within the 1, 000 foot


radii. Further, the officer testified that the entirety of the park where the October 28 buy took

place, the entirety of the block where the search of Malone' s house took place, and the entirety

of the parking lot where the October 5 buy took place were all within the identified radii.

Sufficient evidence supports the jury' s findings. See Hennessey, 80 Wn. App. 195 n. l.

                   II. ACCOMPLICE LIABILITY AND THE SCHOOL Bus STOP ENHANCEMENTS


        Malone also contends that the school bus stop enhancements were inapplicable to the

October 5 and 28, 2010 deliveries because such enhancements cannot apply to accomplices,



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                    7                          4




citing Division One' s opinion in State v. Pineda -
                                                  Pineda, 154 Wn. App. 653, 226 P.3d 164

2010). We disagree that Pineda- Pineda applies, and we affirm.


          Pineda- Pineda, like this    case,   involved   a   CI   who set   up   several controlled   buys.   154 Wn.


App. at 657 -58. During the first buy, Pineda -Pineda himself exchanged cash for cocaine.

Pineda -Pineda, 154 Wn. App. at 658. During the second two buys, Pineda -Pineda was not

present, although the CI arranged the purchase with him. Pineda -Pineda, 154 Wn. App. at 658.

As in this case, evidence presented at trial indicated that these buys occurred within 1, 000 feet of


a school bus stop. Pineda- Pineda, 154 Wn. App. at 658 -59. A jury convicted Pineda -
                                                                                    Pineda of

several offenses, including two counts of delivery of a controlled substance within 1, 000 feet of a

school bus stop. Pineda -
                        Pineda, 154 Wn. App. at 659. Pineda -Pineda appealed, claiming

among other things, that the trial court erred in imposing an enhanced sentence for the second

delivery offense because no law authorized enhanced sentences where the conviction resulted

solely from accomplice liability. Pineda- Pineda, 154 Wn. App. at 660.

          Division One noted that RCW 9A.08. 020, the general accomplice liability statute, does

not authorize sentence enhancements and that any authorization for an enhanced sentence based

on accomplice liability principles must come from the specific enhancement statute. Pineda -

Pineda, 154 Wn.      App.   at   661. Division One held that because the school zone enhancement


statute did not authorize its imposition through accomplice liability a person could not receive an

enhanced sentence for delivery of a controlled substance within 1, 000 feet of a school bus stop

solely for the acts of others imposed through accomplice liability. Pineda- Pineda, 154 Wn. App.

at   662 -65.   Pineda -
                       Pineda, by its own terms, does not apply because the State did not charge



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Malone as an accomplice in any crimes for which it sought school bus stop sentence

enhancements.       10 154 Wn. App. at 664.

          As the State notes, Malone delivered crack cocaine to the CI during the October 5, 2010

buy. While Malone was not physically present at the October 28, 2010 buy site, the Act allows

enhanced sentences for those who constructively transfer controlled substances within 1, 000 feet

of a bus stop. RCW 69.50.401 ( proscribing delivery of a controlled substance within 1, 000 feet

of a   bus stop); RCW 69. 50. 435( 1) (    delivery   may be   actual or constructive).      As we have


explained, Malone constructively delivered the controlled substances through,her designated

others, and the legislature approved of liability under these circumstances through RCW

69. 50. 401   and   RCW 69. 50. 435( 1).   In each case, the State prosecuted Malone for her own


actions in delivering or in directing others to deliver drugs to the CI. We affirm the trial court' s

imposition of the sentence enhancements for delivery and possession with intent to deliver

within 1, 000 feet of a school bus stop.

                                           III. VOID FOR VAGUENESS


          Malone     next argues   that former   RCW 9. 94A.535( 3)(   e) (   2010), 11   which allows enhanced

sentences for major violations of the Act, is unconstitutionally vague. Sentence enhancements,

however, are not subject to vagueness challenges.




to
   Here, in contrast, the State discussed accomplice culpability for Malone only in the context of
the delivery charge for which it did not seek a school bus stop sentence enhancement.
Accomplice liability is simply not relevant to the enhancements at issue here.
11 Former RCW 9. 94A.535( 3)( e) has been revised, but the revision does not affect the subsection
cited.




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          The due process vagueness doctrine requires that the legislature draft criminal statutes to


provide notice as to what conduct they proscribe and to provide " ascertainable standards of guilt

to   protect against   arbitrary   arrest and prosecution."        State v. Baldwin, 150 Wn.2d 448, 458, 78

P.3d 1005 ( 2003).      This doctrine, though, applies " only to laws that ` attempt to proscribe or

prescribe conduct. "'
                          Baldwin, 150 Wn.2d 458 ( quoting State v. Jacobson, 92 Wn. App. 958,

966, 965 P. 2d 1140 ( 1998)).        Applying the vagueness doctrine to sentence enhancements is thus

 analytically unsound" because sentence enhancements only " provide directives for judges to

consider when imposing sentences" for conduct proscribed elsewhere. Jacobson, 92 Wn. App.

at 966. Our Supreme Court has approved of this analysis and held that exceptional sentences


imposed under what is now former RCW 9. 94A.535( 3) are not susceptible to vagueness


challenges, because the sentencing guidelines do not proscribe or prescribe behavior or render
                                                                          12
the defendant    vulnerable    to arbitrary   arrest   or prosecution.         Baldwin, 150 Wn.2d at 459.


Baldwin requires that we reject Malone' s vagueness challenge.


                                              IV. JURY INSTRUCTIONS


          Malone next claims that the trial court erred in giving instruction 31, which informed the

jury it   should consider "[   w] hether the current case involved at least three separate transactions in


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


whether Malone committed a major violation of the Act. CP at 53. The relevant statutory

provision uses "   current offense" where the instruction used " current case,"             and Malone argues




12
     Baldwin discussed former RCW 9. 94A. 390( 2)( d) ( 2001), which has since been recodified to

RCW 9. 94A.535( 3)( d) without substantive change to the types of conduct that justify an
exceptional sentence.       Compare LAWS        OF   2001,   ch.   10, § 6.


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that the substitution    rendered   the instruction erroneous.         Compare RCW 9. 94A.535( 3)( e)( i) with


CP at 53. We decline to address the merits of Malone' s claim because she did not object at trial.

         We generally do not consider issues raised for the first time on appeal. State v. Strine,

176 Wn.2d 742, 749, 293 P. 3d 1177 ( 2013); RAP 2. 5(            a).    CrR 6. 15( c) reflects this policy; it

requires a party to preserve a claim of error concerning a jury instruction by making a " timely

and well stated objection[]"     at trial. State v. Grimes, 165 Wn. App. 172, 179, 267 P.3d 454

2011),    review   denied, 175 Wn.2d 1010 ( 2012).         This serves the interests of judicial economy

and fairness in trials. Strine, 176 Wn.2d at 749 -50. We will, however, consider an issue for the

first time on appeal if it involves a manifest constitutional error. State v. O' Hara, 167 Wn.2d 91,

98 -100, 217 P. 3d 756 ( 2009); RAP 2. 5( a)( 3).


          To determine if the defendant       claims a manifest constitutional error, we "` preview '            the


merits of the defendant' s claim to see if it would succeed. State v. Kirwin, 165 Wn.2d 818, 823,


203 P. 3d 1044 ( 2009) ( quoting State       v.   Walsh, 143 Wn.2d 1, 8, 17 P. 3d 591 ( 2001)).        The


defendant bears the burden       of   showing "(   1) the error is manifest, and ( 2) the error is truly of

constitutional     dimension."   O' Hara, 167 Wn.2d at 98. Malone' s claim involves no error, let


alone a constitutional one.



          Malone' s claim that the substitution of the words " current case" for " current offense"


created an error is simply incorrect. In the context of the Sentencing Reform Act of 1981 ( SRA),

chapter   9. 94A RCW, " current offense" includes more than just the conduct at issue in a criminal


charge;   it includes   all conduct "`   related to the crime with which the defendant is charged. '


State v. Sanchez, 69 Wn. App. 195, 204, 848 P.2d 735 ( quoting State v. Houf, 120 Wn.2d 327,



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                             1)
334, 841 P.2d 42 ( 1992)).        By the plain terms of the SRA, the jury must look to other instances

of delivery or possession with intent to deliver to determine whether the defendant committed a

major violation of   the Act. Former RCW 9. 94A.535( 3)(          e)(   i); RCW 9. 94A.530( 3); Sanchez, 69


Wn. App. at 202 -05; see State v. Reynolds, 80 Wn. App. 851, 853, 856 -59, 12 P. 2d 494 ( 1996).

For sentencing enhancements for major violations of the Act, the terms " case" and " offense" are

synonymous.



         Further, even if we agreed that instruction 31was erroneous, it did not involve


constitutional error. Malone claims the instruction violated her right to due process of law by

lowering the State' s burden of proof, but the instruction did not have that effect. The trial court

properly instructed the jury on the appropriate burden for the aggravating factors, namely that the

State bore the burden of proving the factors beyond a reasonable doubt. We presume the jury

followed such instructions. See State v. Swan, 114 Wn.2d 613, 661 -62, 790 P. 2d 610 ( 1990).


The instruction simply informed the jury what evidence the jury should consider to determine if

the State had carried its burden of proof, and we fail to see how that instruction undermined the

State' s burden of proof.


          Because Malone does not raise a manifest constitutional error, and because she failed to


object at trial; she waived any claim of error. We decline to consider her claim further.




13
     Sanchez interpreted former RCW 9. 94A. 390( 2)( d)( i) (1990), which the code reviser has since
recodified as   RCW 9. 94A.535( 3)(    e)(   i)   without modification.   LAws OF 1990,   ch.   3, § 603.



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                                  V. INEFFECTIVE ASSISTANCE OF COUNSEL


          Finally, Malone contends her trial counsel rendered ineffective assistance by failing to

object to the trial court' s failure to consider ( 1) the leading organized crime charge as the same

criminal conduct as the three delivery charges and ( 2) the September 28, 2010 delivery charge as

the same criminal conduct as that involving a minor in a drug transaction charge. Because we

reverse Malone' s leading organized crime conviction, her first argument is moot, and we do not

address   it. See State   v.   Rainey,   107 Wn.    App. 129,        134, 28 P. 3d 10 ( 2001).   We reject Malone' s


second argument on its merits.


          The Washington and federal constitutions guarantee criminal defendants the right to


effective representation by their counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260

 2011).    We review ineffective assistance claims by strongly presuming that the defendant' s

counsel performed '       reasonably. "'    Grier, 171 Wn.2d at 33 ( quoting State v. Kyllo, 166 Wn.2d

856, 862, 215 P. 3d 177 ( 2009)).         Overcoming this presumption requires the defendant to show

that her or his counsel performed deficiently and that this deficient performance prejudiced her

or him. Grier, 171 Wn.2d at 32 -33 ( citing State v. Thomas, 109 Wn.2d 222, 225 -26, 743 P.2d

816 ( 1987)).   Failure to object at sentencing to the trial court' s counting convictions involving

the same criminal conduct as separate offenses could constitute deficient performance. See State

v.   Allen, 150 Wn.   App.     300, 316 -17, 207 P. 3d 483 ( 2009). Such, however, is not the case here.

                                                           14
          Former RCW 9. 94A. 589( 1)(       a) (   2002)        requires the trial court to count offenses


encompassing the same criminal conduct as one offense for purposes of sentencing. This

14
     Former RCW 9. 94A.589 was revised in 2014, but the revision does not adversely affect the
subsection cited.


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provision     is, however, "`   construed narrowly to disallow most claims that multiple offenses

constitute     the same criminal act, "'   and Malone bears the burden of proving the offenses involved

the same criminal conduct. State v. Graciano, 176 Wn.2d 531, 540, 295 P.3d 219 ( 2013)


quoting State      v.   Porter, 133 Wn.2d 177, 181, 942 P. 2d 974 ( 1997)).          To show that the offenses


of delivery and involving a minor in a drug transaction involved the same criminal conduct,

Malone must prove that they involved the same criminal intent and victim and were committed

at   the   same place and time.    Former RCW 9. 94A. 589( 1)(       a).   Malone fails to make the requisite


showing on at least two of these elements.

            First, the delivery and involving a minor in drug transaction offenses involved different

victims. Washington' s courts view the general public as the victim of a delivery of a controlled

substance offense.        Porter, 133 Wn. 2d     at   181. As the State argues, RCW 69.50. 4015, which


proscribes involving a minor in a drug transaction, views the minor involved as the victim.

            Second, the two offenses involve different criminal intent. As noted above, a delivery

offense requires intent to deliver a controlled substance. State v. Williams, 135 Wn.2d 365, 368,


957 P. 2d 216 ( 1998). RCW 69. 50.4015 appears to require intent to involve the minor as well as


intent to deliver a controlled substance. See RCW 69. 50.4015 ( proscribing " compensat[ ing],

threaten[ ing], solicit[ ing],   or   in any   other manner   involv[ ing]"   a minor in certain drug offenses).

            Because the offenses of delivery and involving a minor in a drug transaction did not

encompass the same criminal conduct, Malone' s attorney had no basis for objecting and did not

perform deficiently by failing to do so.




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                                          CONCLUSION


        We affirm Malone' s convictions and sentence enhancements except for the leading

organized crime conviction, which we reverse. We remand to the trial court to dismiss the


charge of leading organized crime with prejudice, to correct Malone' s offender score, and to

resentence her if the corrected offender score so requires.


        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.




                                                                          1
                                                              A. C.I.
We concur:




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