                                                                        FILED
                                                                    JANUARY 12, 2017
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division Ill



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                          )        No. 33821-5-111
                                              )
                     Respondent,              )
                                              )
                V.                            )         UNPUBLISHED OPINION
                                              )
MICHAEL LOUIS VILLANUEVA,                     )
                                              )
                     Appellant.               )

       SIDDOWAY, J. -    Michael Louis Villanueva was convicted of one count of

delivering a controlled substance and one count of possession of a controlled substance.

He appeals a school bus stop enhancement relating to the delivery conviction, arguing

that the evidence was insufficient to prove that the delivery occurred within 1,000 feet

of a school bus route stop. We reverse the bus stop enhancement and remand for

resentencing.

                                      FACTS

       A confidential informant working with Toppenish police purchased

methamphetamine from Mr. Villanueva. During a subsequent search of Mr. Villanueva's

apartment, police found a small "baggie" of methamphetamine, two methamphetamine

pipes, and dominion and control paperwork. The State charged Mr. Villanueva with

unlawful delivery of a controlled substance and unlawful possession of a controlled
No. 33821-5-111
State v. Villanueva


substance. The State also charged a school bus route sentencing enhancement on the

delivery count.

       At trial, the transportation director for the Toppenish school district testified that

he designated the school bus route stops for the area in question and that the location of

the delivery was within 1,000 feet of a school bus stop. A jury convicted Mr. Villanueva

as charged. It also returned a special verdict finding that the delivery occurred within

1,000 feet of a school bus stop. At sentencing, the court imposed a standard range

sentence of 37 months, which included a 24-month sentence enhancement based on the

special verdict form.

                                         ANALYSIS

       Mr. Villanueva argues that insufficient evidence supported the school bus route

stop enhancement because the State failed to prove the seating capacity of the buses in

question. He argues the trial court's enhancement of his sentence based on the jury

findings must be reversed where the court's instructions defined a "school bus" as having

a seating capacity of at least 11 seats, yet the State failed to present any evidence of

seating capacity. The State responds that the definitional language in the instruction is

"surplusage," arguing that it was not required to prove that a "school bus" stopped at the

bus stop. Resp't's Brief at 3. This argument fails.



                                              2
No. 33821-5-III
State v. Villanueva


       Proof of drug sales within 1,000 feet ofa school bus stop may be relied on to

increase the terms of imprisonment otherwise provided for the crime. RCW

69.50.435(1)(c). RCW 69.50.435(6)(c) defines "school bus route stop" as any stop

designated by a school district.

       We review a jury's special finding under the sufficiency of the evidence standard.

State v. Stubbs, 170 Wn.2d 117, 123, 240 P.3d 143 (2010). Here, the special verdict form

asked the jury whether the defendant "delivered a controlled substance to a person within

one thousand feet of a school bus route stop designated by a school district?" Clerk's

Papers (CP) at 77. Instruction 19 defined a "school bus" in part as "a vehicle that ... has

the seating capacity of more than 10 persons including the driver." CP at 71.

       Under the law of the case doctrine, jury instructions not objected to become the

law of the case. State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). The law of

the case doctrine applies to both elements instructions and definitional instructions. State

v. Calvin, 176 Wn. App. 1, 21,316 P.3d 496 (2013), review granted in part, 183 Wn.2d

1013, 353 P.3d 640 (2015); Scoccolo Constr., Inc. v. City ofRenton, 158 Wn.2d 506, 522-

23, 145 P.3d 371 (2006).

       Instruction 19 was the only substantive instruction to guide the jury's determination

of whether the drug sale occurred within 1,000 feet of a "school bus" stop. Because the



                                             3
No. 33821-5-111
State v. Villanueva


State failed to object to the instruction, it became the law of the case. The State presented

no evidence as to the seating capacity of the school buses that used the stop within 1,000

feet of the delivery. Accordingly, reversal of the school bus enhancement is required.

                                        CONCLUSION

       We strike the bus route stop sentencing enhancement and remand for resentencing.

       Mr. Villanueva requests we exercise our discretion to waive costs on appeal should

the State substantially prevail. Because the State did not prevail in this appeal, it is not

entitled to costs. RAP 14.2.

       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.


                                                      ~dhw~ ,'J=
                                                       doway,J.

WE CONCUR:




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



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