                                                                                                  FILED
                                                                                         COURT OF A' PEALS
                                                                                                C1' 1fSlO

                                                                                        2015 JAN 21 ,       19: 04
                                                                                        STA

                                                                                         BY




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II

    STATE OF WASHINGTON                                                      No. 44643 -0 -II


                                        Respondent,


           v.




    SANDY LYNN FEHR                                                      PUBLISHED OPINION


                                            Appellant.




          WORSWICK, P. J. —          Sandy Fehr appeals her convictions and sentences for three counts of

delivery of methamphetamine, each with a sentencing enhancement for occurring within 1, 000
feet   of a school   bus   route   stop,'    and one count of possession of methamphetamine. 2 Fehr argues

that the trial court erred by ( 1) admonishing Fehr to not show responses to the testimony, (2)

deciding whether to replay an admitted recording to the jury without Fehr being present, and ( 3)

providing the jury with special verdict forms that misstated the law regarding the sentencing
enhancements.        We affirm Fehr' s four convictions. But because the trial court provided the jury




1
    Former RCW 69. 50. 401 ( 2005); RCW 9. 94A. 533( 6); RCW 69. 50. 435( 1)( c).

2
    RCW 69. 50. 4013( 1).
No. 44643 -0 -II



with special verdict forms that relieved the State of its burden to prove every element of the law

authorizing the school bus route stop sentencing enhancements, we reverse Fehr' s three school

bus stop sentencing enhancements and remand for further proceedings consistent with this

opinion.



                                                   FACTS


       After Sandy Fehr sold methamphetamine from one house on three separate occasions, the

State charged her with three counts of unlawful delivery of methamphetamine, each with a 24-

month sentencing enhancement for delivering the methamphetamine within 1, 000 feet of a

school bus route stop. The State also charged Fehr with one count of possession of

methamphetamine.




A.      Trial Court' s Admonishment to Fehr


        On the first day of trial and prior to voir dire, the trial court gave Fehr the following

admonishment:




                       All right. Witnesses will be excluded then until they are called. So,
           Trial Court]:
        Ms. Fehr, just want to make sure that, you know, because you' re in custody so it' s
        a little —you don' t have the same kinds of issues, just make sure not to have any

        contact with any of the jurors if they try to come over and talk to you or anything.
           Fehr] : Yeah.
           Trial Court]: And then make sure you don' t show any disagreement, agreement or
        any responses to the testimony. All right. The other thing just so you know, once
        we    do   get a   jury   in— impaneled,
                                            we' re very careful about making sure that once
        you exit here that you' re not crossing paths, so—
           Fehr] : Oh, yeah.
           Trial Court]:     So just toto let you know that as well. Okay. All right.

 1 Verbatim Report of Proceedings ( VRP) at 6 -7 ( emphasis added).




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No. 44643 -0 -II



B.           Trial Testimony

             At trial, police informant Connie Barnett testified. Barnett had engaged in three separate

 controlled      buys,"   where the detectives orchestrated Barnett' s purchase of methamphetamine

from Fehr at the house. 2 VRP at 180. During the second controlled buy, Barnett wore a wire

intercept device, which produced an unclear recording of the second controlled buy. This

recording was admitted as an exhibit and played for the jury during Fehr' s trial.

C.           Special Verdict Forms, Jury Deliberations, and Verdict

             After the parties rested, the jury received three special verdict forms; one for each

delivery count' s school bus route stop sentencing enhancement. Each special verdict form asked

the jury the following interrogatory:

             Did the defendant deliver a controlled substance to a person within one thousand
             feet of a school bus stop route designated by a school district?

Clerk'   s   Papers ( CP)   at   61 -63 (   emphasis added).   This interrogatory asked whether Fehr delivered

within 1, 000 feet of a school bus route, rather than a school bus stop.

             During the jury' s deliberations, the jury requested an opportunity to rehear the admitted

wire intercept recording from Barnett' s second controlled buy. In a proceeding attended by trial

counsel and the prosecutor, but not Fehr herself, the trial court ruled that the jury could rehear

the wire intercept recording. Neither trial counsel nor the State challenged this ruling. The trial

court offered to have Fehr participate in the proceeding. Trial counsel neither objected nor

affirmatively consented to continuing without Fehr' s presence.

             The jury found Fehr guilty as charged. The jury also answered " yes" on all three special

verdict forms, which allowed for a school bus route stop sentencing enhancement on each

delivery count.


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No. 44643 -0 -II



D.         Sentencing

           The trial   court calculated   Fehr'   s offender score   to be 13.   The trial court calculated the


standard sentence range, without enhancements, at 60 to 120 months for each delivery

conviction. The trial court then added the mandatory 24 -month school bus route stop sentencing

enhancement to each delivery conviction, resulting in a total standard range of 84 to 144 months'

imprisonment for each delivery conviction. The trial court calculated the standard range for the

possession conviction at 12 to 24 months.


           For each delivery count, the trial court imposed 144 months' imprisonment; composed of

a 120 -month base sentence and a 24 -month school bus route stop sentencing enhancement. For

the possession count, the trial court imposed 24 months' imprisonment. Each delivery count' s

120 -month base sentence, and the possession count' s 24 -month sentence, ran concurrently. But

each delivery count' s 24 -month school bus route stop sentencing enhancement ran consecutively

to each delivery count' s base sentence, the possession count' s sentence, and the other two school

bus route stop sentencing enhancements. This resulted in a total sentence of 192 months'

imprisonment. Fehr appeals.


                                                      ANALYSIS


                        I. ADMONISHMENT NOT To SHOW RESPONSES TO TESTIMONY


           Fehr argues for the first time on appeal that the trial court' s admonishment directing Fehr

to " make sure [ she did not] show any disagreement, agreement, or any responses to the

testimony,"     prevented her from communicating with trial counsel in violation of Fehr' s rights to

be present, to appear and defend in person, to due process, and to confront adverse witnesses.


Br.   of   Appellant   at   11.   The State argues that we should not consider these arguments because




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No. 44643 -0 -II


Fehr failed to show how the alleged error actually affected her rights at trial. We agree with the

State.


          Fehr did not object to the trial court' s admonishment at trial. Generally, we will not

review claims of error that were not presented to the trial court, but an exception exists where the

claim of error constitutes a " manifest error             affecting    a constitutional right."      RAP 2. 5(   a)(   3).   We


use a three -part analysis to determine whether an issue raised for the first time on appeal can

benefit from RAP 2. 5( a)( 3)' s manifest constitutional error exception. State v. Grimes, 165 Wn.

App. 172, 185, 267 P. 3d 454 ( 2011).

          First, the    appellant   bears the burden       of   showing that the       alleged error was "`   truly of

constitutional     dimension. '         165 Wn. App. at 186 ( quoting State v. O' Hara, 167 Wn.2d 91, 98,

217 P. 3d 756 ( 2009)).          Second, the   appellant must show            that the   alleged error was "` manifest. '




165 Wn.     App.   at   186 ( quoting O' Hara, 167 Wn.2d              at   98).   It is not sufficient for the appellant to


 simply assert that an error occurred at trial and label the error ` constitutional.

165 Wn.     App.   at   186. Instead, "'    the appellant must identify a constitutional error and show how

the   alleged error     actually   affected   the [   appellant]' s rights at     trial.'   State v. Gordon, 172 Wn.2d


671, 676, 260 P. 3d 884 ( 2011) (          alteration    in   original) ( internal quotation marks omitted) (            quoting


O' Hara, 167 Wn.2d          at   98).   Finally, once an appellant makes this requisite showing, the burden

shifts to the State to prove the error harmless beyond a reasonable doubt. Grimes, 165 Wn. App.

at 186.


          Fehr argues that the trial court' s admonishment prevented her from communicating with

trial counsel in violation of many constitutional provisions. But Fehr does not show, and neither

the statement itself nor the record reveals, how this admonishment actually prevented her from



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No. 44643 -0 -II



communicating with trial counsel. Because Fehr fails to show how the alleged error actually

affected her rights at trial, she fails to show a manifest constitutional error. Therefore, we do not

consider this argument on appeal.


                         II. CONSTITUTIONAL RIGHTS TO PRESENCE AT TRIAL


          Fehr argues that the trial court violated her state and federal constitutional right to be


present at trial because the trial court decided whether to replay the wire intercept recording for

the jury at a proceeding where trial counsel, but not Fehr herself, was present. We disagree.

          Whether the trial court' s actions have violated a defendant' s constitutional right to be


present is a question of law that we review de novo. State v. Irby, 170 Wn.2d 874, 880, 246 P. 3d

796 ( 2011).


A.        United States Constitution' s Right To Be Present at All Critical Stages of Trial

          The due process clause of the Fourteenth Amendment to the United States Constitution

grants a criminal defendant " a fundamental right to be present at all critical stages of a trial."


Irby, 170 Wn.2d at 880. Washington courts have " routinely analyzed alleged violations of the

right of a   defendant to be   present   by   applying federal due   process   jurisprudence."   170 Wn.2d at


880. Under this test, a defendant does not have a constitutional right to be present at proceedings


involving purely legal or ministerial matters unless those matters require the resolution of

disputed facts.    170 Wn.2d at 880 -81; State v. McCarthy, 178 Wn. App. 90, 98, 312 P. 3d 1027

 2013).


          Here, the proceeding in question involved a purely legal matter that did not require the

resolution of disputed facts: whether the law allowed the jury to rehear the wire intercept




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No. 44643 -0 -II



recording that had been previously admitted and heard by the jury. Thus, Fehr did not have a

right under the United States Constitution to be present at the proceeding in question.

B.       Washington State Constitution' s Right To Appear and Defend in Person


         Article I,     section      22    of   the Washington State Constitution              states   that "[ i]n criminal


prosecutions     the   accused shall            have the   right   to   appear and    defend in   person."      Washington


courts   have   recognized          that   a   defendant'   s right     to "'   appear and   defend ' in person under the


Washington State Constitution may be broader than the federal right to be present. Irby, 170

Wn.2d    at   885   n. 6;   State   v.   Jones, 175 Wn.       App.       87, 107, 303 P. 3d 1084 ( 2013).         The Washington


State Constitution' s right to appear and defend in person applies " at any time during trial that a

defendant'    s substantial rights             may be   affected."       Jones, 175 Wn. App. at 107.

         Here, the only issue discussed at the proceeding in question was whether the law allowed

the jury to rehear the wire intercept recording, which had previously been admitted and played

for the jury during trial in Fehr' s presence. Thus, Fehr had an opportunity to challenge the

recording' s admissibility and substance during the State' s presentation of the evidence. We hold

that where audio evidence was admitted at trial and played to the jury with the defendant present,

a subsequent proceeding to determine whether to replay that audio evidence during jury

deliberations is not a time during trial where the defendant' s substantial rights may be affected.

Thus, the Washington State Constitution' s right to appear and defend in person does not apply to

such a proceeding and this argument fails.

                                                   III. SPECIAL VERDICT FORMS


          Fehr further argues that the three special verdict forms erroneously asked whether Fehr

delivered methamphetamine within 1, 000 feet of a school bus route, rather than a school bus




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No. 44643 -0 -II



stop, and that the harmless error analysis does not apply because automatic reversal of the special

verdict is required. The State concedes that the special verdict forms were erroneous, but it

argues that harmless error review applies. We agree with Fehr.

A.         Standard ofReview

            We review a trial court' s decision regarding a special verdict form under the same

standard we apply to decisions regarding jury instructions. See State v. Barnes, 153 Wn.2d 378,

382, 103 P. 3d 1219 ( 2005).             We   review alleged errors of     law in jury instructions de      novo.    153


Wn.2d       at   382. "   Jury instructions are proper when they permit the parties to argue their theories

                   do                                     properly inform the   jury        the applicable law."    153
of   the   case,        not mislead the    jury,   and                                 of




Wn.2d at 382. We consider instructions as a whole and read the challenged portions in context.

State v: Hayward, 152 Wn. App. 632, 642, 217 P. 3d 354 ( 2009).

            Automatic reversal is required when an omission or misstatement in a jury instruction

 relieves        the State   of   its burden to   prove   every   element of a crime."      State v. Brown, 147 Wn.2d


330, 339, 58 P. 3d 889 ( 2002).             In this context, the term " every" means each and every; the error

in a jury instruction requires automatic reversal only when the trial court fails to instruct the jury
on all the essential elements of the offense. See State v. DeRyke, 149 Wn.2d 906, 912, 73 P. 3d

1000 ( 2003).           Likewise, error in a special verdict form requires automatic reversal only when the

trial court fails to instruct the jury on all the essential elements of the special verdict. See State v.

Mills, 154 Wn.2d 1, 9, 109 P. 3d 415 ( 2005) ( "[                 F] acts which are necessary to impose a greater

sentence are `       the functional      equivalent of an element of a greater offense.") (           internal quotation


marks omitted) (          quoting Ring v. Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 153 L. Ed. 2d 556




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No. 44643 -0 -II


 2002)).    If automatic reversal is not required, the claim of error is subject to harmless error

analysis. See State v. Coristine, 177 Wn.2d 370, 380, 300 P. 3d 400 ( 2013).

B.      Application


        Under RCW 69. 50. 206( d)( 2), "        methamphetamine"            is   a " controlled substance."   RCW


69. 50. 401( 1) states in part:


           I] t is unlawful for any person to manufacture, deliver, or possess with intent to
        manufacture or deliver, a controlled substance.


RCW 69. 50. 435( 1) states in part:


           Any person who violates RCW 69. 50.401 by manufacturing, selling, delivering, or
           possessing with the intent to manufacture, sell, or deliver a controlled substance
               to   a person ... (     w]ithin one thousand feet of a school bus route stop
                                      c) [

           designated  by the school district ... may be punished by ... imprisonment of up to
           twice the imprisonment otherwise authorized by this chapter.

 Emphasis added.)


RCW 9. 94A.533( 6) states in part:


           An additional twenty -four months shall be added to the standard sentence range for
           any ranked offense involving a violation of chapter 69. 50 RCW if the offense was
           also a violation of    RCW 69. 50. 435 ....            All enhancements under this subsection

           shall run consecutively to all other sentencing provisions, for all offenses sentenced
           under this chapter.


           Here, Fehr received three mandatory school bus route stop sentencing enhancements: one

for each of three special verdict forms. Each of these special verdict forms determined only one

question: whether       Fehr   violated   RCW 69. 50. 435( 1)(      c).   RCW 69. 50. 435( 1)( c) contains only one

element: whether Fehr' s delivery occurred within 1, 000 feet of a school bus route stop. But

instead of asking the jury whether Fehr' s delivery occurred within 1, 000 feet of a school bus
                                                          r


route stop, each special verdict form erroneously asked the jury whether Fehr' s delivery occurred

within 1, 000 feet of a school bus route. Thus, the three erroneous special verdict forms removed


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No. 44643 -0 -II



the State'   s   burden   of   proving the   one and   only   element of     RCW 69. 50. 435( 1)(   c):   whether Fehr' s


delivery occurred within 1, 000 feet of a school bus stop.

         Because the three erroneous special verdict forms removed the State' s burden of proving

the   one and     only   element of   RCW 69. 50. 435( 1)(      c),   they relieved the State of its burden to prove

each and     every   element of     RCW 69. 50. 435( 1)(      c).     Thus, harmless error does not apply, and

automatic reversal of the three special verdicts is required. Because the special verdicts required

the trial court to sentence Fehr to three mandatory 24 -month sentencing enhancements, Fehr' s

sentences must be reversed.


         We affirm Fehr' s four convictions but reverse her sentences on the three delivery

convictions, and remand for further proceedings consistent with this opinion.3




 We concur:




 Lee, J.




3 Fehr also argues that trial counsel provided ineffective assistance by failing to reference RCW
9. 94A.535( 1)( g) to request an exceptional sentence below the standard range' s minimum
 sentence. Because we reverse Fehr' s sentence on other grounds and because Fehr would be
 entitled to request an exceptional downward sentence at a future sentencing hearing, we do not
 consider this issue.




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