                                                                                           L.D
                                                                                 COURT OF APPEALS
                                                                                      DIVISION II

                                                                                 015 AUG 18 AM 9: 06

                                                                               STATE OF WASHINGTON
                                                                                BY
                                                                                       DANTQY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II

In the Matter of the                                                          No. 46496 -9 -II
Personal Restraint Petition of


NATHEN R. WRIGHT,


                                  Petitioner.


                                                                     UNPUBLISHED OPINION




       JOHANSON, C. J. —          Nathen R. Wright seeks relief from personal restraint imposed


following his 2012 convictions for vehicular homicide, unlawful possession of a controlled

substance, and unlawful use of     drug   paraphernalia.       Wright argues that his restraint is unlawful


because   sufficient evidence   does   not support   his   convictions on each count.    He also argues that

his counsel was ineffective for failing to object to the admission of evidence of a blood draw and

for failing to move to sever his drug-related charges from the vehicular homicide charge.

        We grant the petition in part because there is not sufficient evidence in the record to support


the driving while under the influence of intoxicating drugs alternative of Wright' s vehicular

homicide conviction. However, we affirm the sufficiency of the evidence regarding the vehicular

homicide conviction' s reckless driving and driving with disregard for the safety of others

alternatives.   We further hold that Wright' s trial       counsel was not   ineffective because   an objection
No. 46496 -9 -II



to the admission of blood draw evidence would not have been sustained and a motion to sever the


drug   charges   from the   vehicular   homicide       charge would not    likely   have been   granted.   Finally,

Wright' s additional sufficiency challenges fail because he previously raised a sufficiency

challenge to the possession element of his possession of a controlled substance and use of drug

paraphernalia convictions in his direct appeal and sufficient evidence supports the use element of


Wright' s use of drug paraphernalia conviction. Accordingly, we grant Wright' s petition in part,

deny it in part, and remand for resentencing.

                                                        FACTS


         In October 2010, Steven Cole was driving and noticed the vehicle Wright was driving

swerving from lane to lane behind him. The vehicle came up from behind Cole quickly, continued

to   swerve, and almost     forced Cole   off   the   road.   Cole then saw the vehicle drive directly into the

back of a school bus that was preparing to make a left-hand turn. Kahil Marshall was the owner

of and a passenger in Wright' s vehicle and died as a result of the crash. Wright was transported

to the hospital.


         After the collision, police found a couple syringes and a lighter on one of the floorboards


and a spoon with a small piece of wet, brownish cotton in it in the center console area. At trial,


Franklin Boshears, a forensic toxicologist with the Washington State Patrol, testified that he tested


the cotton and confirmed that it had absorbed heroin. Boshears also testified that when preparing

heroin for injection, users often heat the heroin in water to dissolve it and filter it with a syringe.

through a piece of cotton.


         When Wright arrived at the hospital, the police took a blood sample and confirmed that he


had 0. 05 milligrams of methamphetamine per liter in his blood. At trial, Wright did not object to



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No. 46496 -9 -II



the admission of the results of the blood test. While at the hospital, Wright also spoke to Detective


Stacy   Moate,      admitted    that he had   used methamphetamine—              but claimed it was several days


prior— and admitted         that he knew there      were    drugs in the   vehicle.     Wright also told Detective


Moate that Wright did not see the bus until just before the impact and that he never applied the

brakes.          Another    forensic   toxicologist,       Justin   Knoy,        testified   about   the   effects   of




methamphetamine. Knoy testified that the amount ofmethamphetamine in Wright' s system " may"

or " may not" affect a person' s driving; that methamphetamine can make divided attention tasks

more difficult but may, in some circumstances, improve focus; and that, in general, the amount in

Wright' s      system was not    inconsistent     with a   therapeutic   dose.    2 Report of Proceedings ( RP) at


249.


             The State charged Wright with vehicular homicide, unlawful possession of a controlled

substance, and unlawful use of drug paraphernalia. Wright did not move to sever the drug charges

from the vehicular homicide charge.


             The State argued in closing that Wright was guilty of vehicular homicide because he ( 1)

was under       the influence   of methamphetamine, (        2) was driving recklessly, or ( 3) was driving with

disregard for the safety of others. The State argued,

              T] he State' s not alleging here that the defendant was under the influence of
             intoxicating liquor. There' s no evidence of that at all, other than a whiff that a state
             trooper   got at some point,   for   whatever reason.       The defendant' s not under the.
             influence of intoxicating liquor.
                     What we do know is that at the time of his blood test in the hospital shortly
             thereafter, he had . 05 milligrams per liter of methamphetamine in his blood. And
             we know that was consumed recently.

3 RP    at   462.
No. 46496 -9 -II



          The State also argued in rebuttal that Wright might have been driving recklessly or with

disregard for the safety of others either because he was weaving from lane to lane or because he

was preparing the heroin for injection as he was driving.

          Wright argued that he was not guilty of either of the drug charges because there was no

evidence establishing how long the syringes, the spoon, or the heroin had been in the car or to

prove whether      he    even      knew they    were    there.         Wright also argued that he was entitled to an


unwitting    possession       defense.      Relevant to the vehicular homicide charge, Wright' s position at


trial was that the State failed to prove that the methamphetamine in his system had an adverse


effect on his driving or that his driving was anything more than mere ordinary negligence.

          The trial court instructed the jury on all three alternative means of committing vehicular

homicide     and   the   jury     convicted    him     on each.'         In his direct appeal, Wright challenged the


sufficiency of the evidence supporting his convictions for possession of heroin and for use of drug

paraphernalia, arguing that the State did not prove the possession element, and we affirmed both
               2
convictions.       State     v.   Wright,   noted at   179 Wn.         App.     1008 ( 2014).   He now seeks relief from


personal restraint.




  A defendant commits vehicular homicide when he drives ( 1) while under the influence of drugs
or alcohol, ( 2)   "[ i] n   a reckless manner," or (      3) "[       w] ith   disregard for the safety   of others."   RCW
46. 61. 520( 1)( b) -(c).


2 Wright did not make a sufficiency challenge to his conviction for vehicular homicide in his direct
appeal.




                                                                   M
No. 46496 -9 -II


                                                               ANALYSIS


                                                    I. STANDARD OF REVIEW


         We consider the arguments raised in a personal restraint petition ( PRP) under one of two


standards,      depending          on whether    the error alleged      is   constitutional or nonconstitutional.   In re


Pers. Restraint of Davis, 152 Wn.2d 647, 671- 72, 101 P. 3d 1 ( 2004).                             A petitioner raising

constitutional error must show that the error caused actual and substantial prejudice. In re Pers.


Restraint of Elmore, 162 Wn. 2d 236, 251, 172 P. 3d 335 ( 2007). We determine actual prejudice in


light   of   the   totality   of   the   circumstances.        In re Pers. Restraint ofBrockie, 178 Wn.2d 532, 539,

309 P. 3d 498 ( 2013).               The ultimate question in determining whether the petitioner has been

actually      prejudiced      is   whether    the   error "    so infected petitioner' s entire trial that the resulting

conviction violates           due    process."      In   re   Music, 104 Wn.2d 189, 191, 704 P. 2d 144 ( 1985).        In


contrast, to receive relief following a nonconstitutional error, the petitioner must show a

fundamental defect resulting in a complete miscarriage of justice. In re Pers. Restraint of Cross,

180 Wn.2d 664, 676, 327 P. 3d 660 ( 2014).


                                          II. INEFFECTIVE ASSISTANCE OF COUNSEL


             Wright argues his trial counsel was ineffective for failing to object to the admission of

blood draw evidence and for failing to move to sever the drug-related charges from the vehicular

homicide charge. We disagree.


             In a PRP, when the petitioner establishes that he received ineffective assistance of counsel,


 he has necessarily met his burden" to show that a constitutional violation occurred and that the

violation caused actual and substantial prejudice. In re Pers. Restraint of Crace, 174 Wn.2d 835,

846- 47, 280 P. 3d 1102 ( 2012).



                                                                    5
1•      1. STST.'SM



              A defendant claiming ineffective assistance of counsel has the burden to show that

               1)    defense    counsel' s representation was      deficient, i.e., it fell below an objective
              standard of reasonableness based on consideration of all the circumstances; and ( 2)
              defense counsel' s deficient representation prejudiced the defendant, i.e., there is a
              reasonable probability that, except for counsel' s unprofessional errors, the result of
              the proceeding would have been different.

State    v.   McFarland, 127 Wn.2d 322, 334- 35, 899 P. 2d 1251 ( 1995).                  We need not consider both


prongs of this test            if the defendant fails to     prove either one.   Strickland v. Washington, 466 U.S.


 668, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).                     We apply a strong presumption that trial

 counsel was not            deficient   and we      do   not consider matters outside   the   record.   McFarland, 127


Wn.2d         at    335.   Where a defendant' s claim for ineffective assistance of counsel is based on the

 failure to object to the admission of evidence at trial, he must prove that ( 1) the failure to object

was not a           legitimate trial tactic, ( 2)   an objection to the evidence would likely have been sustained,

 and ( 3) the defendant was prejudiced. State v. Hendrickson, 129 Wn.2d 61, 79- 80, 917 P..2d 563

     1996).


       A. TRIAL COUNSEL NOT INEFFECTIVE FOR FAILING TO OBJECT TO BLOOD DRAW EVIDENCE


              Wright argues that his trial counsel was ineffective for failing to object to evidence of a

 blood draw because the State laid insufficient foundation under WAC 448- 14- 020( 3)( b) to

 establish          the blood   sample' s   reliability.    Specifically, he argues that there was no testimony that

 an enzyme poison was added to the blood sample. We hold that Wright cannot demonstrate that

 an objection based on foundation for the blood sample would have been sustained because WAC


 448- 14- 020' s requirements apply to blood samples tested for only alcohol content and where, as

 here, the blood sample is tested for drugs, the same evidentiary foundation need not be laid.




                                                                  2
No. 46496 -9 -II



           WAC 448- 14- 020'      s   title is "[ o] perational   discipline   of   blood   samples   for   alcohol.".   When


testing a blood sample for alcohol, the samples " must be preserved with an anticoagulant and an

enzyme poison sufficient in amount to prevent clotting and stabilize the alcohol concentration."

WAC 448- 14- 020( 3)( b).         The State must lay the proper foundation, by eliciting testimony, that

both     an anticoagulant and an enzyme poison were added                  to the     sample.   State v. Hultenschmidt,


125 Wn. App. 259, 265- 66, 102 P. 3d 192 ( 2004).

           Although Wright is correct that there was no testimony about the enzyme poison, WAC

448- 14- 020   applies—     by its plain languageto testing blood samples for only alcohol and not for

drugs. And as demonstrated by its closing argument, the State introduced the blood draw evidence

to establish the presence of methamphetamine in Wright' s blood, not alcohol.


           Thus, because WAC 448- 14- 020 applies to testing blood for only alcohol content, Wright

cannot demonstrate that the trial court would have sustained an objection. Accordingly, this claim

fails.


             B. TRIAL COUNSEL NOT INEFFECTIVE FOR FAILING TO MOVE FOR SEVERANCE


           Wright next argues that his trial counsel was ineffective for failing to move to sever his

drug-related charges from the vehicular homicide charge. We hold that Wright' s trial counsel was

not ineffective because the trial court likely would not have granted a motion to sever because all

of the evidence supporting each of the charges arose from the same incident and the evidence

supporting each charge is interrelated.

           The trial court " shall grant a severance of offenses whenever before trial or during trial

with      consent   of    the   defendant, the court determines that severance                     will promote a fair

determination       of   the defendant'    s guilt or   innocence     of each offense."         CrR 4. 4( b).     In order to



                                                              7
No. 46496 -9 -II



demonstrate that his trial counsel was ineffective for failing to move for severance, Wright must

demonstrate that ( 1) a severance motion " would likely have been granted" and ( 2) had the motion

been   granted, "     there is a reasonable probability that the jury would not have found him guilty."

State v. Sutherby, 165 Wn.2d 870, 884, 204 P. 3d 916 (2009).

          When deciding whether to sever charges to avoid prejudice to the defendant, the trial court

must consider "(       1) the strength of the State' s evidence on each count; (2) the clarity of defenses as

to   each count; (    3) court instructions to the jury to consider each count separately; and ( 4) the

admissibility    of evidence of       the   other charges even   if   not   joined for trial."   State v. Russell, 125


Wn.2d 24, 63, 882 P. 2d 747 ( 1994). Separate trials are not favored in Washington. State v. Dent,


123 Wn.2d 467, 484, 869 P. 2d 392 ( 1994). "                The fact that separate counts would not be cross


admissible in separate proceedings does not necessarily represent a sufficient ground to sever as a

matter of     law."   State v. Kalakosky, 121 Wn.2d 525, 538, 852 P. 2d 1064 ( 1993).

          A   person    is guilty   of vehicular   homicide "[   w]hen the death of any person ensues within

three years as a proximate result of injury proximately caused by the driving of any vehicle by any

person" and the driver was operating the vehicle

                   w]hile under the influence of intoxicating liquor or any drug, as defined
                      a) [

          by RCW 46. 61. 502; or
                      b) In a reckless manner; or
                      c) With disregard for the safety of others.

RCW 46. 61. 520( 1).


          A person is guilty of unlawful use of drug paraphernalia when he uses drug paraphernalia

 to   plant, propagate, cultivate....        compound, convert, produce, process, ...            inject, ingest, inhale,


or otherwise     introduce into the human          body   a controlled substance."      Former RCW 69. 50. 412( 1)


 2012).    And it is " unlawful for any person to possess a controlled substance unless the substance

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No. 46496 -9 -II



was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while

acting in the      course of      his       or   her   professional practice."       RCW 69. 50. 4013( 1).


1.   STRENGTH OF THE STATE' s EVIDENCE


         Wright argues that the strength of the State' s evidence factor weighs in favor of severance


because the State'            s evidence on each of               the charges was, "       standing alone, unsupported by the

evidence."         Br.   of   Pet' r   at   13.    We conclude that this factor does not support severance because


there is strong evidence supporting each of the charges.

          The evidence of vehicular homicide by reckless driving or with disregard for the safety of

others is strong based on Cole' s.testimony regarding Wright' s driving and Wright' s admissions to

Detective Moate.              Cole testified that he watched Wright swerving from lane to lane as Wright

approached Cole' s vehicle from behind. Cole then watched Wright continue swerving as he passed

Cole'   s vehicle until        Wright        ran   directly     into   a school   bus   without   braking.      Wright told Detective


Moate that he did not apply the brakes before running into the bus and he was looking down before

he even realized that the bus was in front of him. And, as the State argued, a reasonable jury could

infer from the presence of the still wet cotton, spoon, syringe, and heroin that Wright failed to


brake because he was preparing heroin for injection and was looking down at the time of the

collision.




             The   evidence       supporting the              possession of       heroin   charge   is   also   strong.   Constructive


possession is established where the defendant " has dominion and control" over the item or goods.


State   v.   Jones, 146 Wn.2d 328, 333, 45 P. 3d 1062 ( 2002).                             A person has dominion and control


when    the "   object    may be            reduced      to   actual possession     immediately." Jones, 146 Wn.2d at 333.

Courts have often concluded that the driver of a vehicle has constructive possession of its contents.



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No. 46496 -9 -II



See,   e.   g., State   v.   Bowen, 157 Wn.   App.   821, 828, 239 P. 3d 1114 ( 2010) ( fact that the defendant


was the owner, driver, and sole occupant of a vehicle in which a firearm was found in a nylon bag

beside the driver' s seat establishes constructive possession despite conflicting testimony about

whether       the defendant      owned   the firearm);    State v. Turner, 103 Wn. App. 515, 521- 22, 13 P.3d

234 ( 2000) ( defendant'         s admission that he was driving and.knew that a rifle was in the back seat,

coupled with evidence that the rifle was in close proximity, despite the fact that it was not the

defendant' s rifle, was sufficient to establish constructive possession of the rifle).


             Here, it is undisputed that Wright was driving the vehicle that contained the heroin and that

he   was at    least " generally    aware"   that there   was   heroin in the   vehicle.   Br.   of   Pet' r   at   28. Wright


himself told Detective Moate that there              were    drugs in the   vehicle.       The evidence at trial also


established that the police found the spoon and the cotton in the center console area next to the


driver' s seat, immediately accessible to Wright. And the cotton in the spoon tested positive for

heroin. Further, Wright' s admission that he was looking down at the time he hit the bus, combined

with the wet cotton that tested positive for heroin suggesting recent preparation for injection, is

additional evidence that Wright was in constructive or actual possession of the heroin.


             Finally, the evidence supporting the unlawful use of drug paraphernalia charge is also

strong based on Boshears' s testimony and Wright' s admissions.3 First, Boshears testified that he

tested the substance that had been absorbed by the cotton found in the spoon and confirmed that it

was    heroin.      He explained further that the cotton was brown and wet because when heroin is

prepared for injection, it is heated, dissolved into water, and filtered through apiece of cotton or a




3 Wright never explicitly admitted to knowing the spoon, the cotton, and the syringes were in the
vehicle.



                                                                10
No. 46496 -9 -II



cotton   ball. Boshears   surmised   that that   was   likely   what   had happened in this   case.   And, again,.


Wright told Detective Moate that he knew there were drugs in the vehicle and that he was looking

down just before he drove into the back of the school bus. This evidence, combined with Cole' s


testimony describing his erratic driving, is persuasive evidence that Wright was using the drug

paraphernalia at the time of the accident.


         We conclude that based on the evidence presented for each charge, the first factor weighs


against severing the drug charges from the vehicular homicide charge.

2. CLARITY OF WRIGHT' S DEFENSES


         Wright argues that the clarity of the defenses as to each charge factor supports severance

because his defense to the   vehicular   homicide      charge— a general     denial— differed from his defense


to the drug chargesthat he lacked dominion and control over the heroin or that his possession

was   unwitting— and because he        made      different defenses, the     jury   was   likely   confused.   We


conclude that Wright' s lack of possession and unwitting possession defenses to the drug charges

are separate and distinct from his general denial defense to the vehicular homicide charge and,


thus, the defenses as to each count are clear and not confusing to the jury. Accordingly, this factor

weighs against severing the charges.

         Wright' s defense to the possession of heroin charge was that the State did not prove how


long the heroin had been in the vehicle or where the heroin was in the vehicle prior to the accident.

He also argued that he was entitled to an unwitting possession defense and that regarding the use

of drug paraphernalia charge, the State presented insufficient evidence to establish that the spoon

was used, when the spoon was used, or who used the spoon to prepare heroin.




                                                         11
No. 46496 -9 -II



         In contrast, Wright' s defense to the vehicular homicide charge was that the State failed to

meet    its burden..      In closing, he        argued      that, although     the State proved that there was


methamphetamine in Wright' s system at the time of the accident, it did not prove " that it affected


his   driving."    3 RP   at   489.   He argued that he was not driving recklessly because the evidence

shows    that he   was    driving     only 60   or   65   m.p. h., not   excessively fast,   and   that, " for whatever


reason,"   he hit the bus. 3 RP at 490. Wright argued that he was not driving with disregard for the

safety of others because the State proved only ordinary negligence and their burden is higher than

that.


         Wright' s defenses do not create confusion because his lack of possession and unwitting

possession defenses are separate and distinct from his defense that the State failed to meet its


burden to establish that Wright drove while under the influence, recklessly, or with a disregard for

the safety of others. Accordingly, we conclude that this factor weighs against severance.

3. COURT' S INSTRUCTIONS WERE PROPER


          It is undisputed that the trial court gave an appropriate instruction to the jury to " decide

each count separately" and that the " verdict on one count should not control [ the] verdict on any

other count."      3 RP   at   439.   However, Wright argues that, like in Sutherby, the State' s argument

that he was attempting to inject the heroin while driving combines the crimes and might have

confused the jury when it applied the instructions to consider the charges separately. We disagree

and conclude that this factor weighs against severance.


          In Sutherby, the defendant was charged with both possession of child pornography and

child rape and molestation. 165 Wn.2d at 876. When considering the third factor in the severance

analysis, our Supreme Court held that this factor weighed in favor of severance because the State



                                                              12
 consistently" argued that the presence of child pornography on Sutherby' s computer showed his

motive,      providing   proof of   the   molestation.       Sutherby,    165 Wn.2d     at   885- 86.   But Sutherby is

distinguishable for two       reasons.     First, Sutherby involved a sex offense and our Supreme Court

recognized that " joinder of charges can be particularly prejudicial when the alleged crimes are

sexual in nature. In this context there is a recognized danger of prejudice to the defendant even if


the   jury   is properly instructed to      consider     the    crimes   separately."   165 Wn.2d at 884 ( citation


omitted).




          Second, in Sutherby, the factual bases of the crimes were completely unrelated, yet the

State used Sutherby' s alleged possession of child pornography as evidence of motive to commit

the child rape and. molestation. Here, the factual bases of each of the charges are intertwined. The


offenses all occurred at the same time and place and the State argued that the use of the drug

paraphernalia directly contributed to Wright driving into the back of a school bus without braking

and while looking down, killing his passenger. Thus, Sutherby is not persuasive.

          Here, the State argued that Wright may have been preparing the heroin to inject while

driving:

          This heroin     was still wet.    It   was still --   it was basically in the condition to draw it
          out   in the   syringe.   The bottom        was    burnt.   You see a lighter in the car at Mr.
          Wright' s feet in that    picture where      the   syringes are.   There is ...    the spoon and the
          heroin is sitting on the center console. That would certainly explain .. .        or

          reasonable inference to make from the evidence, that the driving -- erratic driving

          was being done because one of them was attempting to light up this heroin.

3 RP at 503. This argument is unlike the one in Sutherby because the use of the drug paraphernalia

occurred at the same time and place as the vehicular homicide and the evidence underlying each

of the drug charges is directly linked with Wright' s driving recklessly or with disregard for the

safety of others. Therefore, we conclude that this factor weighs against severance because the jury.

                                                                13
No. 46496 -9 -II



was properly instructed to consider each of the charges separately and the State' s argument did not

undermine those instructions.


4. ADMISSIBILITY OF EVIDENCE OF OTHER CHARGES


          Wright argues that the evidence pertaining to the vehicular homicide would not be

admissible in a trial on the drug charges because that evidence is not relevant to proving possession

of heroin and use of drug paraphernalia. We disagree and conclude that this factor weighs against

severance.




          The direct evidence that is necessary to prove that Wright was in possession of heroin and

using   drug   paraphernalia was all   located inside the   vehicle.   This evidence includes the syringes


on the driver' s side floorboard and the spoon and piece of wet cotton that were found in the center

console area.      But the fact that he was driving erratically and that he hit a school bus without

braking and while looking down is circumstantial evidence that he was preparing to inject heroin

and that he was in fact using the drug paraphernalia and was in possession of heroin at the time of

the   collision.   The erratic driving evidence that supports the vehicular homicide charge was

therefore also admissible to prove the drug charges. The factual, evidentiary basis for each of the

offenses is intertwined and related.


          Likewise, the spoon, wet cotton, lighter, and heroin are relevant to the vehicular homicide


charge.     Cole testified that Wright was driving erratically and collided with the bus without

braking. Wright also admitted that he did not even attempt to brake before the crash and that he

was   looking down just before    the collision.   The wet cotton,. spoon, heroin, and lighter found in


the front of the vehicle in the center console area is circumstantial evidence that Wright was


distracted from his driving by the drug preparation.


                                                     14
No. 46496 -9 -II



          The State argued that it was reasonable for the jury to infer that Wright was preparing to

inject the heroin while he was driving because the heroin was in the vehicle, the cotton was still

wet when police arrived, and there were also syringes.in the vehicle. This set of facts clearly show

that the evidence to prove use of drug paraphernalia, possession of heroin, and the vehicular

homicide was cross admissible.


          Acknowledging that Washington courts do not favor separate trials, Dent, 123 Wn.2d at

484,   and after    analyzing ( 1) the    strength   of the State'   s evidence on each charge, (   2) the clarity of

Wright'   s   defenses, ( 3)   the trial court' s instructions, and (4) the cross admissibility of the evidence,

we conclude that the trial court would have denied any severance motion. Accordingly, we hold

that Wright' s trial counsel was not ineffective because Wright cannot establish that a motion to

sever " would      likely have    been   granted."   Sutherby, 165 Wn.2d at 884.

                                         II. SUFFICIENCY OF THE EVIDENCE


          Wright next argues that the evidence is insufficient to support each of his three convictions.


We decline to address Wright' s claims that insufficient evidence supports the possession element


of his convictions for unlawful possession of heroin and unlawful use of drug paraphernalia, and

we hold that sufficient evidence supports the use element of his conviction for use of drug

paraphernalia.        We further hold that regarding his conviction for vehicular homicide, there is

insufficient evidence to support the driving while under the influence of intoxicating drugs

alternative but that the evidence is sufficient to support the reckless driving and driving with

disregard for the safety of others alternatives.

          When determining whether sufficient evidence supports a defendant' s conviction, we ask

whether, when viewing the evidence in a light most favorable to the State, any rational trier of fact


                                                            15
IffewdPoloss"



could have found the essential elements of the crime charged beyond a reasonable doubt. State v.


Salinas, 119 Wn. 2d 192, 201, . 829 P. 2d 1068 ( 1992).                  A sufficiency challenge admits the truth of

the State' s evidence and all reasonable inferences that can be made from that evidence. Salinas,


1. 19 Wn.2d       at   201.     This court must defer to the trier of fact' s credibility determinations,

particularly on questions of conflicting testimony, witness credibility, and the weight of evidence.

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


                          A. UNLAWFUL POSSESSION OF A CONTROLLED SUBSTANCE


          Wright argues that his conviction for possession of heroin should be reversed because


proximity to the drugs and knowledge that they were in the vehicle is insufficient for a conviction.

We decline to reach this issue because Wright raised it in his direct appeal.


          A    personal restraint petitioner should not             raise issues that     were "`   finally resolved at trial

and   direct   review"'   but    should,   instead,   seek   to   raise new questions of "`fact       and law that were not


or could not      have been      raised   in the   principal action."'     Davis, 152 Wn.2d at 670- 71 ( quoting In

re   Pers. Restraint of        Gentry,    137 Wn.2d 378, 388- 89, 972 P. 2d 1250 ( 1999)).                   In particular, a


personal restraint petitioner is " prohibited from renewing an issue that was raised and rejected on

direct   appeal unless        the interests   of justice require relitigation of          that issue"   and a "`   new' issue"


does not exist where the petitioner merely supports a " previous ground for relief with different

factual   allegations or with       different legal    arguments."       Davis, 152 Wn.2d at 671.


          RCW 69. 50. 4013( 1) provides that it is " unlawful for any person to possess a controlled

substance unless the substance was obtained directly from, or pursuant to, a valid prescription or

order of a practitioner while             acting in the      course of   his   or   her   professional practice."      Wright


challenged the sufficiency of the evidence to support his conviction for unlawful possession of a


                                                                  16
No. 46496 -9 -II



controlled substance in his direct appeal. He argued specifically that the " evidence presented was

insufficient to prove that [he] constructively possessed the heroin" and that the facts demonstrated

that any " alleged possession of heroin         was   unwitting." Br.   of   Appellant   at   8 ( No. 43226 -9 -II). He


now argues that there is insufficient evidence because proof of dominion and control of the vehicle


and knowledge that drugs were in the car is not enough. This is merely an attempt, based on this

court' s   decision in the direct     appeal,   to   reargue a previous ground     for   relief—   sufficiency of the

evidence    based   on   the   possession element of the offense—    with different legal arguments. Because


Wright argued that insufficient evidence supports his conviction for unlawful possession of heroin


in his direct appeal and he makes no argument about whether and how the interests of justice


require relitigating the issue, we decline to address this argument.

                                  B. UNLAWFUL USE OF DRUG PARAPHERNALIA


           Wright further argues that insufficient evidence supports his conviction for use of drug

paraphernalia because ( 1) the State did not prove that he used the drug paraphernalia in a " drug-

related activity" and ( 2) based on Division One of this court' s decision in State v. George, 146

Wn.   App.     906, 193 P. 3d 693 ( 2008),           the State cannot establish that he possessed the drug

paraphernalia. We hold that sufficient evidence supports the use element of Wright' s conviction


for unlawful possession of drug paraphernalia and decline to address Wright' s sufficiency

challenge to the possession element because he raised it in his direct appeal.


1. USE ELEMENT


           Several officers testified that they noticed the spoon that was found in the vehicle and the

fact that the spoon was wet and had a brown piece of cotton inside it. Boshears tested the brown




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piece of cotton for drugs and confirmed that it contained heroin. He testified further about how


heroin is typically prepared for injection:

         As I understand it, the heroin is placed into a spoon with a small amount of water.
         And the spoon is heated to dissolve the heroin into the water. And there will be a
          small   bit   of cotton   in the   spoon --    spoon bowl as well. And the liquid is drawn up
         through the cotton to act as a kind of filter.


2 RP at 300- 01. In other words, the cotton in the vehicle that Boshears tested would not have been


brown unless the heroin had already been dissolved into the water and absorbed by the cotton.

From this      evidence, a rational    jury   could     find that Wright   used   drug paraphernalia— the   spoon and


the   cotton— to   .either convert or process the heroin for use because the heroin had been dissolved


into the      water.    This is sufficient evidence from which a rational jury could find each of the

essential elements of use of drug paraphernalia beyond a reasonable doubt.4
2. POSSESSION ELEMENT


         Next, Wright relies on Division One of this court' s decision in George to support his


argument that insufficient facts connect Wright to the drugs and drug paraphernalia in this case.

However, we decline toaddress this argument because Wright raised a sufficiency challenge to

the possession element in his direct appeal.


          Wright challenged his unlawful use of drug paraphernalia conviction on sufficiency.

grounds in his direct appeal, specifically arguing that the State could not prove possession because

there was " no evidence as to how long the spoon had been in the car, no evidence as to where the




4
     In his    statement    of   facts, Wright argues that this court' s opinion in his direct appeal
                   his conviction for unlawful use of drug paraphernalia as a conviction for
    mischaracterized"

unlawful " possession of
                         drug paraphernalia." Br. of Pet' r at 8. This was a scrivener' s error
because he was charged with unlawful use of drug paraphernalia and there is no such crime as
unlawful possession of drug paraphernalia.
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No. 46496 -9 -II



spoon was prior to impact, and no evidence that Wright was even aware of the spoon' s presence


in Marshall'    s vehicle."        Br.   of   Appellant   at   9 ( No. 43226 -9 -II). Wright now argues, based on


George, that there was insufficient evidence to establish that he had dominion and control over the


drugs    and   the   drug    paraphernalia.      This argument is merely an attempt to reargue a previously
                                                                                                                          11

raised   ground      for   relief—insufficient      evidence       of possession—       using a different legal theory.

Therefore, we decline to address it.


                                                 C. VEHICULAR HOMICIDE


         Finally, Wright argues that his conviction for vehicular homicide is not supported by

sufficient evidence because there was no evidence showing that he was under the influence of any

drug and there was no evidence suggesting that he was driving recklessly or with a disregard for

the safety of others. We agree that insufficient evidence supports the driving under the influence

of   drugs   alternative     to   vehicular    homicide.       However, we hold sufficient evidence supports the


reckless driving and driving with disregard for the safety of others alternatives to vehicular

homicide.


         In this case, the jury was instructed on each alternative means and convicted Wright based

on all three. To support alternative RCW 46. 61. 520( 1)( a), the State presented evidence that Wright


had 0. 05 milligrams per liter of methamphetamine in his system at the.hospital after the accident,


he was driving erratically when he hit the bus, and he did not see the bus or apply the brakes before

he collided with it.


          However, the State failed to submit any evidence that the methamphetamine in Wright' s

system was what caused his erratic driving. In fact, Knoy could only opine that 0. 05 milligrams

per   liter " may"    or "   may   not" affect a person' s       driving.   2 RP   at   249. He stated that whether the



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No. 46496 -9 -II



methamphetamine affected Wright was likely a matter of when he ingested it. But the State did

not    present   any   evidence—    apart   from    Wright' s   own    statement that he        had taken the


methamphetamine a      few days     earlier—   to establish that fact. Instead, the State argues that Wright' s


reckless and erratic   driving is   proof   that the   methamphetamine affected      his   driving. But what is

missing is evidence that the methamphetamine is causally related to Wright' s erratic driving.

Therefore, we conclude the State' s evidence is insufficient to support a finding that Wright was

operating a motor vehicle under the influence of an intoxicating drug.

         To   support alternatives   RCW 46. 61. 520( 1)( b)    and ( c),   the State presented evidence that


Cole   witnessed    Wright   driving   behind him erratically, swerving from lane to lane.              Wright


continued to swerve as he approached Cole' s vehicle from behind, which required Cole to move


onto the shoulder to avoid a collision. Wright continued to drive erratically until he drove directly

into the back of the school bus without braking.

         This evidence is sufficient for any rational jury to conclude that Wright was driving

recklessly or driving with disregard for the safety of others. Therefore, we conclude that Wright' s

conviction for vehicular homicide based on these alternatives is supported by sufficient evidence.

         Because under former RCW 9. 94A.515 ( 2012) and RCW 9. 94A. 510, the standard range


for a vehicular homicide conviction based on driving under the influence of intoxicating drugs is

higher than for reckless driving and driving with a disregard for the safety of others, we remand

for resentencing.




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No. 46496 -9 -II



        The petition is granted in part and denied in part. We 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.




                                                     TJHANSON, C. J.
 We concur:




 MELNICK, J.




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