                                                                             FILED 

                                                                          April 10,2014 

                                                                 In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, [)ivision III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                          )         No. 31132-5-111
                                              )
                     Appellant,               )
                                              )
              v.                              )
                                              )
RICHARD L. PEARSON,                           )         PUBLISHED OPINION
                                              )
                     Respondent.              )

       BROWN, J. - The State appeals the trial court's decision to vacate the jury's

special finding that Richard L. Pearson delivered a controlled substance-hydrocodone

within 1,000 feet of a school bus stop. The court reasoned a school official was

required to validate the bus stops. Because the admission of a map overlay showing

the bus stops violated confrontation principles, we agree with the trial court and affirm.

                                          FACTS

       On September 22, 2011, a confidential informant purchased hydrocodone (a

prescription medication) from Mr. Pearson at his trailer located at 1309 North First

Street in Yakima. The State charged Mr. Pearson with delivery of a controlled

substance, hydrocodone. The State included a special allegation that the delivery

occurred within 1,000 feet of a school bus stop.
No. 31132-5-111
State v. Pearson


       Michael Martian, Yakima County's director of Geographic Information Systems

(GIS) testified for the State. GIS maintains a digital legal map library for the county and

all its departments. Mr. Martian testified that designated areas can be digitally imposed

over an aerial photography map for the public record. One map maintained by GIS

shows school bus stops and .school properties created annually from information that is

provided yearly from each county school district. During trial, the State inquired,

U[G]etting back to the school bus stops, how are those maps created?" Mr. Martian

answered, "The bus stop locations come from each school district. They're required to

submit to the State before the school year where the bus stop locations are and they do

that to the ESD Department, the Educational School District and they provide a latitude

and longitude like a GPS coordinate for each bus stop and that's submitted to the State

and we get that information from the State and we plot those points on the map."

Report o'f Proceedings (RP) (May 24,2012) at 219.

       For Mr. Pearson's case, Mr. Martian created a map from its digital information

using 1309 North First Street as the center point and depicting a 1,000 foot radius

around that center point. The map was admitted at trial without objection.

       When the time came for objections to jury instructions, defense counsel objected

to the use of a special verdict form for the school bus stop enhancement on the basis

that while Mr. Martian had laid a foundation for the map as a business record, he had

never testified that any markings on the map within the 1,000 foot radius were bus

stops. He told the court, "I thought that was really odd," but that "I was listening for it



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State v. Pearson


and I double checked my notes and stuff but I don't remember him testifying to that

effect." RP at 247. When the trial court commented that the objection it had been

anticipating was to the fact that no one from the school district had testified, defense

counsel stated, "I will raise that objection for what it's worth now, your honor." RP at

248.

       Questioning the State further about the lack of a school district official to testify to

the bus stop locations and the use of the bus stops on the alleged crime date, the court

inquired, "You know it's so far reaching now that we're in the age of Crawford and right

to confrontation, you know, they have really -- if it's being offered -- if a business record

is being offered to establish essentially a fact, which it clearly is. I mean, ... you gotta

really look at that." RP (May 24,2012) at 252. Nevertheless, the court gave a special

verdict instruction.

       The jury found Mr. Pearson guilty as charged, and found on the special verdict

that he had delivered a controlled substance within 1,000 feet of a school bus stop. The

court vacated the jury's special verdict, stating, "I'm not satisfied that the State has met

their legal foundation on a lot of levels, quite bluntly. . .. [T]he State simply professes

that they can put a map in that has school bus stops marked on it . . .. I think the State

has to take the additional step [of having a school official testify about bus stop locations

and use]." RP (July 27,2012) at 3,4. The court imposed a standard-range sentence.

The State appealed.




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No. 31132-5-111
State v. Pearson




                                         ANALYSIS

       The issue is whether the trial court erred in vacating the jury's special verdict

finding that Mr. Pearson's offense occurred within 1,000 feet of a school bus stop.

       When reviewing a trial court's ruling to vacate a special verdict based on lack of

sufficient evidence, we review the court's order for an abuse of discretion. State v.

Park, 88 Wn. App. 910, 914, 946 P.2d 1231 (1997). Discretion is abused when it is

exercised on untenable grounds or for untenable reasons. State ex rei. Carroll v.

Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971). The State must prove each element of

the enhancement beyond a reasonable doubt. State v. Hennessey, 80 Wn. App. 190,

194,907 P.2d 331 (1995). We review to see whether a rational trier offact could have

found the facts needed for the enhancement beyond a reasonable doubt, viewing the

evidence in the light most favorable to the State. Id.

       RCW 69.50.435(1)(c) provides a sentence enhancement for anyone who delivers

a controlled substance U[w]ithin one thousand feet of a school bus route stop designated

by the school district." To establish whether the offense occurred within 1,000 feet of a

school bus stop, the State must provide "a map produced or reproduced by any

municipality, school district, [or] county, ... for the purpose of depicting the location and

boundaries of the area ... within one thousand feet of any property used for a ...

school bus route stop." RCW 69.50.435(5). This map "shall under proper

authentication, be admissible and shall constitute prima facie evidence of the location



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No. 31132-5-111
State v. Pearson


and boundaries of those areas" if the "municipality [or] school district ... has adopted a

resolution or ordinance approving the map." Id. There is no complying resolution or

ordinance adopted by Yakima County; nevertheless, RCW 69.50.435(5), "shall not be

construed as precluding the use or admissibility of any map or diagram other than the

one which has been approved by the governing body of a municipality [or] school district

... if the map or diagram is otherwise admissible under court rule." Id. (emphasis

added).

       Problematic here is that the map is not otherwise admissible. As the trial court

correctly pOints out, the Confrontation Clause is implicated.

       The United States Constitution's Sixth Amendment Confrontation Clause

guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right. .. to be

confronted with the witnesses against him." U.S. Const. amend. VI. This right "applies

to 'witnesses' against the accused ... , those who 'bear testimony.' 'Testimony,' in turn,

is typically '[a] solemn declaration or affirmation made for the purpose of establishing or

proving some fact.'" State v. Jasper, 174 Wn.2d 96, 109,271 P.3d 876 (2012) (quoting




                                                                                              I
Crawfordv. Washington, 541 U.S. 36,51,124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004».

"Testimonial" hearsay statements may not be introduced against a defendant at trial

unless the proponent of the evidence shows (1) the declarant witness is unavailable and
                                                                                              f·
(2) the defendant had a prior opportunity to cross-examine the declarant witness.

Crawford, 541 U.S. at 68; State v. Lee, 159 Wn. App. 795, 815, 247 P.3d 470 (2011),

review denied, 177 Wn.2d 2012 (2013). If the hearsay statements are not "testimonial,"        I
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No. 31132-5-111
State v. Pearson


however, they do not implicate the Confrontation Clause and no such showing is

required. Lee, 159 Wn. App. at 815.

       In Crawford, the United States Supreme Court did not give a comprehensive

definition of "testimonial" but observed that the core class of "testimonial" statements

include those "pretrial statements that declarants would reasonably expect to be used

prosecutorily." 541 U.S. at 51. In other words, "statements that were made under

circumstances which would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial" are testimonial. Id. at 52. More

recent United States Supreme Court cases have also held that documents specifically

prepared for use in a criminal proceeding fall within this core class of testimonial

statements. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-11,324, 129 S.

Ct. 2527, 174 L. Ed, 2d 314 (2009) (holding three forensic "certificates of analysis"

stating that a substance tested positive as cocaine were testimonial).

       Here, Mr. Martian provided a digital map generated by the county with

information supplied by a school district official. One of the purposes of the information

is to ascertain whether RCW 69.50.435(1 )(c) has been implicated. Thus, the county

map is prepared for potential use in a criminal proceeding. This falls within the core

class of testimonial statements. Therefore, Mr. Pearson had a right to confront the

school district official. Since there is no showing the declarant witness was unavailable

or Mr. Pearson had a prior opportunity to cross-examine the declarant witness, the map

generated by information from a school district official was inadmissible. Without more,



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State v. Pearson


sufficient evidence did not exist to support the jury's special verdict. The trial court did

not abuse its discretion in vacating the jury's special verdict.

       Sentencing affirmed.




                                                   Brown, J.
WE CONCUR:




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                                                   Fearing,~           )




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