j
l!
,
I
i
l                                                                    FILED
l

ll                                                              SEPTEMBER 20, 2016
                                                              In the Office of the Clerk of Court
                                                            WA State Court of Appeals, Division Ill


 I
1l
                IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                   DIVISION THREE

'l
.!

     STATE OF WASHINGTON,                         )
                                                  )
                                                            No. 33424-4-111



I
t
1          V.
                           Respondent,            )
                                                  )
                                                  )         UNPUBLISHED OPINION
 j                                                )
 !


 I   SARAH ELIZABETH HEIDT,                       )
                                                  )

iI         PENNELL, J. -
                           Appellant.             )

                            Sarah Heidt appeals her conviction for distributing an imitation

     controlled substance. She challenges the sufficiency of the evidence, arguing the

     substance distributed was not by definition an "imitation controlled substance" and the

     evidence did not show she knowingly distributed the substance. Because Ms. Heidt used

     limonene as an imitation controlled. substance and used it to dilute liquid Oxycodone

     which she knew was administered to a patient every two hours, we affirm the jury's

     verdict and subsequent felony judgment and sentence in the trial court.


I                                             FACTS

il         Glen Isom hired Ms. Heidt to work as a nursing assistant at his residential assisted

J    living facility. Margaret Thorson was a resident of Mr. Isom's facility who had recently

     been moved into hospice care. On her first day of work, Ms. Heidt shadowed Mr. Isom,

     who showed her the locked medicine cabinet and explained what medications were kept
No. 33424-4-111
State v. Heidt


inside. One of the medications prescribed for Ms. Thorson and kept in the locked cabinet

was Oxycodone. Ms. Thorson's pain management plan required that she take Oxycodone

every two hours. This Oxycodone was in the form of a bottled yellow liquid. Ms. Heidt

helped Mr. Isom care for Ms. Thorson.

       The next morning, Ms. Heidt arrived for her shift. Mr. Isom administered

Oxycodone to Ms. Thorson at 7:30 a.m. and 9:30 a.m. At 10:30 a.m., Mr. Isom helped a

nurse insert a catheter in Ms. Thorson. Fifteen minutes into the procedure, Ms. Heidt

knocked on the door and asked to go home because she was not feeling well. At Mr.

Isom's request, Ms. Heidt stayed until after they inserted the catheter. Mr. Isom then

spoke with Ms. Heidt, who "was very fidgety" and reiterated she was not feeling well. 1

Report of Proceedings (Feb. 24, 2015) (RP) at 96. Mr. Isom let Ms. Heidt leave but asked

that she call him later to let him know if she would be in the next day.

       Throughout that same day, Mr. Isom continued to give Ms. Thorson Oxycodone.

While administering a mid-afternoon dose, he noticed the Oxycodone looked "murky"

and "cloudy." Id. at 97. The Oxycodone smelled like soda or Kool Aid. Trying to

identify the smell, Mr. Isom searched the kitchen and noticed two Popsicle sticks on top

of the garbage. The Popsicles had been consumed that morning. Mr. Isom melted a

yellow Popsicle from the freezer and found it smelled like the Oxycodone in Ms.


                                             2
No. 33424-4-III
State v. Heidt


Thorson's prescription. When Ms. Heidt failed to call or return to work, Mr. Isom

contacted the police.

       Officers talked to Ms. Heidt, who admitted to taking some of the Oxycodone and

putting a melted Popsicle in the bottle. Officers sent the tampered bottle of Oxycodone, a

bottle of a melted yellow Popsicle, a bottle of a melted orange Popsicle, and a control

bottle of Ms. Thorson's prescription Oxycodone to be tested by the Washington State

Crime Lab. The tampered bottle contained Oxycodone and a trace amount of limonene, a

compound found in Popsicles; in this context, "trace" meant there was more Oxycodone

than limonene. 2 RP (Feb. 25, 2015) at 235, 241-42. The concentration of Oxycodone in

the control bottle was 60 times stronger than that in the tampered bottle.

       The court instructed the jury on what it is to manufacture, distribute, or possess

with intent to distribute an imitation controlled substance. At defense counsel's request,

the court also instructed on an alleged lesser included offense of adulteration of a drug. A

jury found Ms. Heidt guilty of manufacturing, distributing, or possessing with intent to

distribute an imitation controlled substance. By special verdict form, the jury

unanimously found Ms. Heidt knowingly distributed an imitation controlled substance.

Ms. Heidt appeals.




                                             3
i!
l
1    No. 33424-4-111
i
l    State v. Heidt
i
*I
                                              ANALYSIS
l
I
ll          Under RCW 69.52.030(1), "[i]t is unlawful for any person to manufacture,

I    distribute, or possess with intent to distribute, an imitation controlled substance." To



l    convict Ms. Heidt, the court instructed the jury it had to find she knowingly distributed an

     imitation controlled substance. Ms. Heidt challenges the sufficiency of the evidence for
1
I    two elements: "imitation controlled substance" and "knowingly distributed." Clerk's
l

l    Papers at 40.


I           Evidence is sufficient to support a conviction if, when viewed in the light most

1    favorable to the State, it permits any rational trier of fact to find the essential elements of
~

I    the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192,201, 829 P.2d

l
!
     1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all
I
I    inferences that reasonably can be drawn therefrom." Id. Direct and circumstantial
l    evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99
I    (1980). This court defers to the trier of fact on issues of conflicting testimony, witness
 i
II   credibility, and persuasiveness of the evidence. State v. Emery, 161 Wn. App. 172, 199,

     253 PJd 413 (2011).
i
I    Imitation Controlled Substance
1
I           Ms. Heidt claims the State did not prove she distributed an imitation controlled
1j
i
i                                                   4

'
No. 33424-4-III
State v. Heidt


substance because the prescription bottle still contained Oxycodone, a controlled

substance. We disagree. The statute defines an imitation controlled substance not by

purity or dilution but by the reasonable expectations of the substance's recipient. RCW

69.52.020(3). In some contexts, a recipient will reasonably anticipate that a drug will be

diluted with unknown ingredients. This is common in the street drug context, where

illicit substances are commonly cut with inert ingredients. But the situation here was

much different. Ms. Thorson was prescribed pure Oxycodone. The expectation was that

the vials administered to her would contain Oxycodone and nothing else. When Ms.

Heidt removed some of the Oxycodone from Ms. Thorson's prescription bottle and

replaced it with limonene, she created the false impression that the limonene was

Oxycodone. The limonene was thus an imitation controlled substance, as defined by the

statute.

Knowingly Distributed

       Ms. Heidt next argues she did not knowingly distribute an imitation controlled

substance because she had no intent to distribute the diluted Oxycodone; rather, she

merely wanted to cover up the theft. We believe the facts were sufficient for the State to

meet its burden.

       Viewing the evidence in the light most favorable to the State, Ms. Heidt knew Ms.


                                             5
No. 33424-4-111
State v. Heidt


Thorson was scheduled to receive a dose of Oxycodone every two hours. She knew the

liquid Oxycodone in the medicine cabinet belonged to Ms. Thorson. The knowledge

element was thus satisfied because Ms. Heidt had information that would lead a

reasonable person in her situation to believe the diluted Oxycodone would be distributed

to Ms. Thorson. Ms. Heidt took some of the Oxycodone and replaced it with a melted

Popsicle. Mr. Isom then administered the diluted Oxycodone to Ms. Thorson. This act

satisfied the definition of constructive distribution. RCW 69.52.020(2).

                                         CONCLUSION

         Based on the foregoing, we find there was sufficient evidence to support the jury's

verdict. As such, we affirm the verdict and the felony judgment and sentence of the trial

court.

         A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                            Pennell, J.
WE CONCUR:




Lawrence-Berrey, A.C.J.
                                     j
                                               6
