                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                            March 26, 2019
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 50292-5-II

                        Respondent,

         v.

 DAVID LOREN WALDECK,                                           UNPUBLISHED OPINION

                        Appellant.



       SUTTON, J. — David Waldeck appeals his convictions and sentence for three counts of

unlawful delivery of a controlled substance (heroin). Waldeck argues that the trial court erred by

failing to identify the controlled substance as heroin in the to-convict instructions. He argues that

as a result, the trial court exceeded its authority when it imposed his sentence. Waldeck also argues

that the trial court failed to properly inquire into his ability to pay before imposing legal financial

obligations (LFOs). The State concedes that the to-convict instructions failed to identify the

controlled substance as heroin but argues that the error was harmless. The State also concedes that

the trial court failed to properly inquire into Waldeck’s ability to pay before imposing LFOs.

       We accept the State’s concession and hold that the trial court erred by failing to identify

the controlled substance in the to-convict instructions but that the error was harmless as to

Waldeck’s convictions. However, we further hold that the sentence resulting from the erroneous

delivery of a controlled substance (heroin) convictions is not subject to a harmless error analysis.

Consequently, we affirm Waldeck’s convictions but remand for resentencing based on convictions
No. 50292-5-II


for unlawful delivery of a controlled substance, not heroin. We remind the trial court of its

obligation at resentencing to fully consider Waldeck’s current and future ability to pay before

imposing LFOs.

         In a Statement of Additional Grounds (SAG), Waldeck argues that the trial court

improperly admitted audio from a wiretap. We hold that Waldeck failed to properly preserve this

issue for appeal.

                                                FACTS

         A detective in the street crime unit of the Longview Police Department worked with a

confidential informant to conduct three controlled buys of heroin with Waldeck on November 10,

2015, January 29, 2016, and February 3, 2016. During the third controlled buy, the informant

wore a wire to record the transaction.

         The State charged Waldeck with three counts of delivering a controlled substance (heroin).1

During pretrial hearings, Waldeck moved to represent himself. The trial court granted Waldeck’s

motion and allowed him to proceed pro se with standby counsel.

         At trial, the parties stipulated that the substances collected by detectives following each

controlled buy were tested and found to be heroin. The trial court admitted the audio recording

from the third controlled buy without any objection from Waldeck.

         The trial court issued the following to-convict instructions to the jury:

                To convict the defendant of the crime of Delivery of a Controlled Substance
         as charged in [Count I] [Count II] [Count III], each of the following elements of the
         crime must be proved beyond a reasonable doubt:




1
    RCW 69.50.401(1), (2)(a).


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No. 50292-5-II


               (1) That on or about [date of count charged], the defendant delivered a
       controlled substance,
              (2) That the defendant knew that the substance delivered was a controlled
       substance; and
                (3) That this act occurred in the State of Washington.
             If you find from the evidence that each of these elements has been proved
       beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
               On the other hand, if, after weighing all the evidence, you have a reasonable
       doubt as to any one of these elements, then it will be your duty to return a verdict
       of not guilty.

Clerk’s Papers (CP) at 59-61. A jury found Waldeck guilty of all three counts. The trial court

sentenced Waldeck to 112 months in confinement with 8 months community custody and imposed

various LFOs.

       Waldeck appeals.

                                           ANALYSIS

                                  I. TO-CONVICT INSTRUCTIONS

       Waldeck argues, and the State concedes, that the trial court erred by failing to identify the

controlled substance in the to-convict instructions. We accept the State’s concession.

       We review the adequacy of a challenged to-convict instruction de novo. State v. Gonzalez,

2 Wn. App. 2d 96, 105, 408 P.3d 743, review denied, 190 Wn.2d 1021 (2018). A to-convict

instruction must contain all essential elements of the charged crime. Gonzalez, 2 Wn. App. 2d at

105. When the identity of a controlled substance increases a defendant’s maximum sentence, it is

an essential element. Gonzalez, 2 Wn. App. 2d at 106.

       An error in omitting the essential element of the identity of the controlled substance is

subject to harmless error analysis as to the conviction. Gonzalez, 2 Wn. App. 2d at 111. “A jury

instruction that omits an essential element is harmless if it appears beyond a reasonable doubt the


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No. 50292-5-II


error did not contribute to the verdict.” State v. Clark-El, 196 Wn. App 614, 620, 384 P.3d 627

(2016). “The omitted element must be supported by ‘uncontroverted evidence,’” and we must be

able to conclude beyond a reasonable doubt that the jury verdict would have been the same absent

the error. Clark-El, 196 Wn. App. at 620 (quoting State v. Brown, 147 Wn.2d 330, 341, 58 P.3d

889 (2002)).

       Here, the identity of the substance that the State alleged Waldeck delivered, heroin, was an

essential element because it exposed him to greater punishment. See Gonzalez, 2 Wn. App. 2d at

106. Delivery of heroin is a class B felony with a maximum sentence of ten years, whereas delivery

of other controlled substances is a class C felony with a maximum sentence of five years. RCW

69.50.401(2)(b), (c). The to-convict instructions did not specify the identity of the controlled

substance Waldeck was charged with delivering. See CP 59-61. Because convictions for delivery

of heroin exposed Waldeck to a greater sentence than convictions for delivery of a different

controlled substance, omitting the essential element of the identity of the controlled substance was

error. Gonzalez, 2 Wn. App. 2d at 105-06.

       However, the error in this case was harmless. The State only presented evidence of heroin.

No evidence was admitted that would have allowed the jury to find that Waldeck delivered a

substance other than heroin. Waldeck stipulated that the substances collected by detectives after

the controlled buys was heroin. Further, the to-convict instructions also referred to counts I, II,

and III of the information, which clearly specified delivery of heroin.




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No. 50292-5-II


       Given these facts, we hold that the error in the to-convict instructions was harmless beyond

a reasonable doubt because the omitted element was supported by “uncontroverted evidence,” and

we are able to conclude beyond a reasonable doubt that the jury verdicts would have been the same

absent the error. Accordingly, we affirm the delivery of a controlled substance convictions.

                                           II. SENTENCE

       Waldeck argues that the trial court exceeded its authority by sentencing him for delivery

of heroin because it was not authorized by the jury’s findings that he was guilty of delivery of a

controlled substance. The State concedes. We accept the State’s concession.

       To be constitutional, a sentence must be authorized by a jury verdict. Gonzalez, 2 Wn.

App. 2d at113. “‘If a court imposes a sentence that is not authorized by the jury’s verdict, harmless

error analysis does not apply.’” Gonzalez, 2 Wn. App. 2d at 114 (quoting Clark-El, 196 Wn. App.

at 624-25). In Gonzalez, we held that because the jury’s verdict did not specify the controlled

substance Gonzalez unlawfully possessed, the only authorized sentence was “‘the lowest possible

sentence for possession of a controlled substance.’” 2 Wn. App. 2d at 113-14 (quoting Clark-El,

196 Wn. App. at 624).

       Likewise here, the jury found that Waldeck delivered only “a controlled substance;” the

jury’s verdicts did not include a finding regarding the identity of the controlled substance because

that element was omitted from the jury instructions. Without a finding regarding the identity of

the controlled substance, the jury’s verdicts did not authorize the trial court to impose a sentence

based on delivery of heroin. See Gonzalez, 2 Wn. App. 2d at 114. Thus, resentencing on the

delivery of a controlled substance convictions is required.




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No. 50292-5-II


       Waldeck also argues that the trial court erred by imposing discretionary and mandatory

LFOs without properly inquiring into his ability to pay. The State concedes that the trial court

failed to conduct the proper inquiry. Because we remand for resentencing due to the instructional

error, we do not address this issue other than to remind the trial court to fully consider Waldeck’s

current and future ability to pay at resentencing in accordance with State v. Ramirez, 191 Wn.2d

732, 426 P.3d 714 (2018) and State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015).

                      STATEMENT OF ADDITIONAL GROUNDS (SAG)

       In his SAG, Waldeck argues that the trial court erroneously admitted audio from the

wiretap of the third drug sale. Specifically, Waldeck argues that the authorization report for the

wiretap failed to comply with RCW 9.73.230 and that the audio was not properly authenticated.

We hold that Waldeck failed to preserve this issue for appeal.

       At trial, Waldeck listened to the audio from the wiretap. The trial court then asked Waldeck

if he had any motions related to the audio and he responded that he did not. The trial court admitted

the audio and Waldeck did not object. Arguments not raised in the trial court will not be considered

on appeal unless they concern a manifest error affecting a constitutional right. RAP 2.5(a); see

also State v. Sengxay, 80 Wn. App. 11, 15, 906 P.2d 368 (1995). Waldeck does not argue that the

admission of the audio at trial constituted a manifest error affecting a constitutional right.

Accordingly, this issue is not preserved for review.




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No. 50292-5-II


        Accordingly, we affirm Waldeck’s convictions but remand for resentencing based on

convictions for unlawful delivery of a controlled substance, not heroin.

        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.



                                                    SUTTON, J.
 We concur:



 LEE, A.C.J.




 RUMBAUGH, J.P.T




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