                                                                         i   IS-L.U
                                                                COURT GFAPPEA' S
                                                                 STATE OF WASHINGTON

                                                                 Z0IUANI3 AH 10: 05

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                 No. 69642-4-1


                     Respondent,                     DIVISION ONE


            v.



KYLE ALLYN HEWSON,                                   UNPUBLISHED


                    Appellant.                       FILED: January 13, 2014




       Cox, J. - Kyle Allyn Hewson challenges his judgment and sentence,

claiming the evidence is insufficient to support his conviction for possessing

methadone with intent to deliver. We disagree and affirm.

      The State charged Hewson with violation of the Uniform Controlled

Substances Act, possession with intent to manufacture or deliver methadone.

       Hewson entered into an agreement to participate in drug diversion court.

In order to participate, Hewson waived many of his constitutional rights. The

agreement stated:

               With respect to this/these charge(s), I understand that I have
       a right to contest and object to evidence that the State may present
       against me and to present evidence on my own behalf. With
       respect to this/these charge(s), I give up the right to contest and
       object to any evidence presented against me and to present
       evidence on my own behalf as to my guilt or innocence. I
       understand and agree that if I do not comply with the conditions of
       this agreement, a hearing will be held at which the State will
       present evidence related to this/these charge(s) including but not
       limited to the police report and the results of any law enforcement
       field test. I stipulate that the field test used in this case was
No. 69642-4-1/2



       accurate and reliable, and is admissible. This stipulation is not an
       admission of guilt, and is not sufficient, by itself, to warrant a finding
       of guilt. I understand that the judge will review the evidence
       presented by the State and will decide if I am guilty or not guilty of
      this charge based solely on that evidence . . . .[1]

       The agreement also stated that upon successful completion of the

program, Hewson's charge would be dismissed.

       Hewson voluntarily left the program after more than a year of participation.

Accordingly, the court reviewed the evidence presented by the State, including

police reports and the charging document.

      At the stipulated trial, Hewson argued that the evidence was insufficient to

show beyond a reasonable doubt the identity of the pills as methadone. The

court found that there was sufficient evidence, beyond a reasonable doubt,

"given all the materials." The court imposed the agreed recommended sentence

of 12 months plus one day, which Hewson had already completed.

       Hewson appeals.

                        SUFFICIENCY OF THE EVIDENCE

       Hewson argues that the evidence is insufficient to support his conviction

for possessing methadone with intent to deliver. Specifically, he argues that the

evidence is insufficient to prove that the substance found in his girlfriend's purse

was methadone because there was no field test, no lab test, and no confession

by Hewson. We disagree.




       1Clerk's Papers at 7.
No. 69642-4-1/3



       Due process requires the State to prove beyond a reasonable doubt all

the necessary facts of the crime charged.2 A defendant in drug court who agrees
to have his guilt determined based on documentary evidence does not waive his

right to have that determination established beyond a reasonable doubt.3

       A sufficiency of the evidence analysis, "by its terms, is fact sensitive."4

"The test for determining the sufficiency of the evidence is whether, after viewing

the evidence in the light most favorable to the State, any rational trier of fact

could have found guilt beyond a reasonable doubt."5 "When the sufficiency of

the evidence is challenged in a criminal case, all reasonable inferences from the

evidence must be drawn in favor of the State and interpreted most strongly

against the defendant."6
       A chemical test "is not vital to uphold a conviction for possession of a

controlled substance."7 "Circumstantial evidence and lay testimony may be

sufficient to establish the identity ofa drug in a criminal case."8 Circumstantial




       2 State v. Colquitt, 133 Wn. App. 789, 796, 137 P.3d 892 (2006).

       3See id, at 795-96.
       4 State v. Hernandez, 85 Wn. App. 672, 678, 935 P.2d 623 (1997).

       5 State v. Salinas, 119Wn.2d 192, 201, 829 P.2d 1068(1992).

       *\±

       7 Colquitt, 133 Wn. App. at 796.

       8 Hernandez, 85 Wn. App. at 675.
No. 69642-4-1/4



evidence is as equally reliable as direct evidence.9

       In determining whether circumstantial evidence proves the identity of the

substance beyond a reasonable doubt, courts have looked to the following, non-

exhaustive, list of factors:

       (1) [Tjestimony by witnesses who have a significant amount of
       experience with the drug in question, so that their identification of
       the drug as the same as the drug in their past experience is highly
       credible; (2) corroborating testimony by officers or other experts as
       to the identification of the substance; (3) references made to the
       drug by the defendant and others, either by the drug's name or a
       slang term commonly used to connote the drug; (4) prior
       involvement by the defendant in drug trafficking; (5) behavior
       characteristic of use or possession of the particular controlled
       substance; and (6) sensory identification of the substance if the
       substance is sufficiently unique.[10]
       Here, the circumstantial evidence is sufficient to prove that the substance

was methadone.


       First, there is testimony by an expert as to the identification of the

substance. Deputy Mullinax testified that he is a drug recognition expert who has

received training on narcotic investigations. Further, during his training as a drug

recognition expert, he was "trained in the identification of prescription drugs—

especially those which are commonly abused."

       Deputy Mullinax further testified that 10 pills that he recovered were

methadone. Deputy Mullinax identified the pills in a drug bible and there are

photographs to show the physical comparison.




       9 State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

       10 Colquitt, 133 Wn. App. at 801.
No. 69642-4-1/5



      Second, Hewson and others made references to methadone. Hewson

concedes that text messages were sent from his girlfriend's phone that referred

to methadone using its slang term. Hewson admitted that he and his girlfriend

both used the cell phone. Moreover, a cooperating witness stated that Hewson

texted him asking if he wanted some "dones." He indicated that "dones" is a

slang term for methadone.

      Third, there is evidence that Hewson had prior involvement in drug

dealing. The cooperating witness stated that Hewson is a drug user and dealer.

He said Hewson had been dealing for at least one or two months.

      Further evidence is the statement from the cooperating witness that

Hewson negotiated the sale of methadone for the transaction resulting in this

arrest. The witness stated that Hewson negotiated the sale of ten methadone

pills for $60. The witness said that the negotiated price was an average amount

for methadone. It is also noteworthy that this was the same number of

methadone pills recovered by Deputy Mullinax.

      Finally, the text messages on the cell phone used by Hewson provide

additional evidence as to the substance's identity. The phone log revealed a

significant number of messages related to selling drugs. Many of these outgoing

text messages were sent on the on the same date as this incident and

specifically discussed methadone. Among them, include the following: "you still

need some dones? ...i finally got ahold ofsome."11 Overall, there appear to be


      11 Clerk's Papers at 71. See also id, at 70 ("you want some
methadones?"); id ("you want some dones?"); id at 71 ("i got some reg. dones");
id at 72 ("i got some reg dones you want them").
No. 69642-4-1/6



messages sent to about 14 people regarding the sale of "dones" on the same

date as this incident.

       In sum, when viewing the circumstantial evidence in a light most favorable

to the State, there was sufficient evidence for any rational trier of fact to find that

substance was methadone.

       Hewson primarily relies on State v. Colquitt to argue that the evidence is

insufficient.12 In that case, Division Two held that an officer's statement that the

substance "appeared" to be cocaine, along with a positive field test for cocaine,

was insufficient to support the conviction.13 But there, the court stated that the
problem was "the paucity of information supporting the officer's identification" and

that the evidence only demonstrated "that the officer's visual identification of the

items was based on his conjecture, at best."14 The court also stated that the
record was "devoid of evidence of the officer's experience and training that would

allow him to properly identify the items as cocaine."15
       Here, unlike Colquitt, there is evidence in the record of Deputy Mullinax's

experience and training. As discussed above, Deputy Mullinax is a drug

recognition expert with experience working in narcotics investigations.

Additionally, there is evidence about how Deputy Mullinax made his



       12 Brief of Appellant 7-11 (citing Colquitt, 133 Wn. App. 789, 137 P.3d 892
(2006)).

       13 Colquitt, 133 Wn. App. at 794.

       14 Id at 800.

        15 Id. at 801.
No. 69642-4-1/7



identification—use of the 2010 drug bible. Accordingly, Deputy Mullinax's

testimony was based on more than conjecture.

       Hewson also argues that the State "failed to present evidence concerning

most of the factors" set forth in Colquitt. But the factors in Colquitt are neither

exhaustive nor dispositive. Further, Hewson concedes that the State presented

evidence related to some of the factors. And, as we have discussed, several of

the factors are present, including testimony from an expert as to the identification

of the substance, references made to the drug by the defendant and others, and

prior involvement of the defendant in drug dealing. Additionally, there is

evidence beyond the factors, including Hewson's conversation with the

cooperating witness and the outgoing text messages discussing the sale of

methadone. Hewson's argument is not persuasive.

       We affirm the judgment and sentence.
                                                             &D%} J~
WE CONCUR:




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