                                                                          FILED
                                                                        MAY 12, 2020
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals Division III




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

STATE OF WASHINGTON,                          )
                                              )        No. 36466-6-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )        UNPUBLISHED OPINION
DWIGHT ELDON BACKHERMS,                       )
                                              )
                     Appellant.               )

       FEARING, J. — After findings of guilt of Dwight Backherms by a jury on two

counts of delivery of controlled substances and two counts of possession of controlled

substances, the trial court dismissed the two charges of possession based on double

jeopardy. The court entered convictions for the higher charges of delivery. On appeal,

Backherms challenges all four convictions on the basis that law enforcement officers

unlawfully entered his home and seized the evidence of controlled substances.

Backherms also challenges his convictions for delivery because jury instructions required

the State to prove he knew the nature of the controlled substances and the State failed in

its proof. We agree to the dismissal of the charges for delivery of controlled substances

because of insufficiency of evidence. We reinstate the possession convictions because,

contrary to Backherms’ contention, law enforcement officers lawfully entered his home

and seized the controlled substances.
No. 36466-6-III
State v. Backherms


                                              FACTS

       We take the facts from the trial court’s unchallenged findings of fact following a

CrR 3.6 hearing and from testimony at the suppression hearing. On May 3, 2018,

Okanogan County Sheriff Deputy Robert Ray received an e-mail notification of a

Department of Corrections felony arrest warrant for Dwight Backherms. Deputy Ray

knew Backherms and the location of his residence from earlier arrests and knew of his

past drug use because of his cooperation with a drug task force. Later that day, Deputy

Ray and Deputy Gisberth Gonzalez traveled to Backherms’ residence along Highway 7,

in Oroville, to execute the arrest warrant.

       When Deputies Robert Ray and Gisberth Gonzalez arrived at Dwight Backherms’

property, the duo approached the front door of Backherms’ mobile home. The door was

ajar, but a metal screen door was closed. Deputy Ray saw two occupants as he peered

through the screen door. Ray identified a female, Mary Pebworth, who he knew resided

with Backherms. Ray heard a male voice, but could not see the voice’s physiognomy.

Deputy Ray lingered at the front door for ten minutes until the male rotated. Ray

recognized the man as Backherms.

       Deputy Robert Ray knocked on the door, advised Dwight Backherms of the

warrant for his arrest, and bid him to exit the mobile home. A disobedient Backherms

moved as if to walk down a hallway. Deputy Ray told Backherms that he would enter the

residence and detain him if Backherms did not comply with his instruction. Backherms

                                                2
No. 36466-6-III
State v. Backherms


turned his back to Ray. Ray espied Backherms reach into his left pocket, retrieve two

baggies, and hand them to Mary Pebworth, who sat at the kitchen table. Deputy Ray

concluded, based on his training and experience on the storage of controlled substances

and his knowledge of Backherms’ narcotics use, that the bags contained drugs. He

worried that Pebworth would destroy the substances inside the baggies. He concluded

that he lacked time to call a magistrate and obtain a warrant to enter the home because

Pebworth would either ingest the content of the bags or flush the bags down the toilet.

      Deputy Robert Ray entered Dwight Backherms’ residence. Deputy Ray asked

Mary Pebworth what Backherms gave her. Backherms retreated, but Deputy Ray

directed Deputy Gisberth Gonzalez to detain Backherms. Ray again asked Pebworth

what Backherms handed her, and Pebworth expressed confusion about the question. At

Deputy Ray’s direction, Pebworth stood. Two small plastic bags appeared on the seat

where Pebworth previously sat.

      Deputy Robert Ray examined the contents of the baggies. One bag contained

clear crystal shards, which Ray believed to be methamphetamine. The other bag

contained a black, tarry substance, which Ray deemed to be heroin. A forensic scientist

from the Washington State Patrol Crime Lab later tested the substances and confirmed

their respective identities as methamphetamine and heroin.




                                            3
No. 36466-6-III
State v. Backherms


                                      PROCEDURE

       The State of Washington charged Dwight Backherms with two counts of

possession of a controlled substance other than marijuana. The State later amended its

information to include the additional charges of delivery of a controlled substance,

methamphetamine, and delivery of another controlled substance, heroin.

       Dwight Backherms brought a motion to suppress. He argued exigent

circumstances did not justify entry into his residence such that the deputies needed a

search warrant. The State responded that the felony arrest warrant justified entry into the

home and exigent circumstances warranted the search and seizure of the controlled

substances.

       During the suppression hearing, the trial court inquired of Deputy Robert Ray:

              [THE COURT:] So, Dep. Ray, did you go in—because—Mr.
       Backherms turned away from you, after you said you had a warrant and he
       needed to come outside[?] I gather that he—he didn’t come outside;
       instead he went down a hall, away from you.
              So my question is, did you go in after him because he went away
       from you or because you saw something[?]
              [RAY:] Because when I saw him and—the—what I believed to be
       narcotics—Mary.
              [THE COURT:] So you didn’t go in based on having the arrest
       warrant.
              [RAY:] Not at that point, no, [Y]our Honor.

Report of Proceedings (RP) at 19. The trial court denied Dwight Backherms’ suppression

motion.



                                             4
No. 36466-6-III
State v. Backherms


       The prosecution proceeded to a jury trial. Deputy Robert Ray’s trial testimony

matched his CrR 3.6 motion testimony.

       Dwight Backherms called Mary Pebworth to testify. Pebworth testified that she

went to Backherms’ residence on May 3, 2018, to socialize and have dinner. She

explained the mobile home had no electricity and that a single battery-powered lantern on

the kitchen table lit the mobile home. Pebworth testified that she put baggies on the table

when she arrived and tucked them under her leg when Deputy Robert Ray entered. She

did not know the exact contents in the baggies, but she planned to “[g]et high” with them.

RP at 251. She insisted that she possessed the bags before she entered Backherms’

residence.

       According to Mary Pebworth, the baggies belonged to her, and no one else

possessed them. She denied that Dwight Backherms handed her the bags while the

deputy watched. On cross-examination, she denied previously telling Deputy Robert Ray

that the drugs belonged to Backherms.

       Jeffrey Herschlip also testified for the defense. He also lived at the Highway 7

address and was inside the residence that evening. Herschlip testified that no one handed

anything to Mary Pebworth when Deputy Robert Ray announced his presence. He

recalled no baggies being on the table.

       On rebuttal, Deputy Robert Ray testified that, from the front door, he enjoyed an

unobstructed view of the kitchen table and saw the faces of the residents. He averred that

                                             5
No. 36466-6-III
State v. Backherms


a clear line of sight enabled him to view Mary Pebworth before Dwight Backherms

turned and handed her the baggies. Deputy Ray reiterated that, when he told Pebworth

that she could be charged with possession of narcotics, she replied that she did not wish

any more trouble for Backherms. According to Deputy Ray, Ray released Pebworth from

restraints after she told Ray that the baggies belonged to Backherms. Pebworth never

claimed ownership of the drugs.

       The trial court’s to-convict instruction for count 3, delivery of a controlled

substance, included a knowledge element providing:

               To convict the defendant of the crime of delivery of a controlled
       substance, each of the following elements of the crime must be proved
       beyond a reasonable doubt:
               (1) That on or about May 3, 2018, the defendant [Dwight
       Backherms] delivered a controlled substance, to wit: Methamphetamine;
       and
               (2) That the defendant knew that the substance delivered was a
       controlled substance, to wit: Methamphetamine; and
               (3) That any of these acts occurred in the County of Okanogan, State
       of Washington.
               If you find from the evidence that each of these elements has been
       proved beyond a reasonable doubt, then it will be your duty to return a
       verdict of guilty.
               On the other hand, if, after weighing all of the evidence, you have a
       reasonable doubt as to any one of these elements, then it will be your duty
       to return a verdict of not guilty.

Clerk’s Papers (CP) at 52 (emphasis added). The court’s to-convict instruction for count

4, delivery of a controlled substance, read identically, except that the second element

required the State to prove “That the defendant knew that the substance was a controlled


                                              6
No. 36466-6-III
State v. Backherms


substance, to wit: Heroin.” CP at 53 (emphasis added). The State proposed the two

instructions.

       The jury returned guilty verdicts on all four counts. Dwight Backherms moved to

arrest judgment on counts 1 and 2, the possession counts, based on the doctrine of merger

and double jeopardy. According to Backherms, the possession counts merged into the

delivery convictions. The trial court granted the motion and dismissed counts 1 and 2

with prejudice.

                                 LAW AND ANALYSIS

       Dwight Backherms raises two principal errors on appeal. First, Okanogan County

sheriff deputies lacked lawful authority to enter his home and seize the methamphetamine

and heroin. Second, under the law of the case doctrine, the State needed to prove he

knew the baggies respectively enclosed heroin and methamphetamine because the jury

instructions so read. In turn, according to Backherms, the State failed to prove

knowledge of the identity of the controlled substances. If we agreed with Backherms’

first assignment of error, we presumably would reverse the two convictions for delivery

of controlled substance and affirm the dismissal of the two possession charges, although

the latter on grounds other than employed by the trial court.

                                    Motion to Suppress

       The trial court based its denial of Dwight Backherms’ motion to suppress on three

independent grounds. First, the officers could enter the residence to execute the

                                             7
No. 36466-6-III
State v. Backherms


Department of Corrections arrest warrant. Second, Deputy Robert Ray could enter the

home as a result of seeing the controlled substances while looking inside the mobile

home through the open front door. Third, exigent circumstances justified the entry and

seizure of the methamphetamine and heroin because Deputy Ray justifiably feared

destruction of evidence. In affirming the trial court, we rely solely on exigent

circumstances.

       Although we do not conclude that the sheriff deputies’ entry into Dwight

Backherms’ home was warrantless, we assume for argument’s sake that the officers

lacked a warrant. Generally, warrantless searches and seizures are per se unreasonable

under both the federal and state constitutions unless a recognized exception applies. State

v. Ruem, 179 Wn.2d 195, 200, 313 P.3d 1156 (2013). Washington courts recognize

exceptions for consent, exigent circumstances, searches incident to a valid arrest,

inventory searches, plain view, open view, and investigative stops. State v. Tibbles, 169

Wn.2d 364, 369, 236 P.3d 885 (2010). The State bears the burden to prove an exception

applies. State v. Tibbles, 169 Wn.2d at 369.

       The exigent circumstances exception to the warrant requirement applies when the

delay inherent in securing a warrant would compromise officer safety, facilitate escape,

or permit the destruction of evidence. State v. Smith, 165 Wn.2d 511, 517, 199 P.3d 386

(2009); State v. Audley, 77 Wn. App. 897, 907, 894 P.2d 1359 (1995). In order to show

exigent circumstances, the State must identify specific, articulable facts and the

                                               8
No. 36466-6-III
State v. Backherms


reasonable inferences therefrom which justify the intrusion. State v. Coyle, 95 Wn.2d 1,

9, 621 P.2d 1256 (1980). Mobility or destructibility of evidence looms important to

exigent circumstances. State v. Tibbles, 169 Wn.2d at 370. If law enforcement

reasonably fears the destruction of evidence, a court will uphold a warrantless entry into a

home. United States v. Martino, 664 F.2d 860, 869(2d Cir. 1981); State v. Counts, 99

Wn.2d 54, 62, 659 P.2d 1087 (1983).

       Dwight Backherms compares his appeal to State v. White, 76 Wn. App. 801, 888

P.2d 169 (1995), aff’d, 129 Wn.2d 105, 415 P.2d 1099 (1996). In White, Gregory White

argued for suppression of evidence because a law enforcement officer peered over the top

of a toilet stall to observe the presence of controlled substances. The officer testified that

he searched the bathroom stall in order to prevent destruction of evidence and to protect

officer safety. From his experience, people involved in drug transactions sometimes

disposed of drugs by flushing them down the toilet. The officer did not identify any

circumstances, however, to support a specified belief that White was destroying evidence

or that White even knew the police pursued him. This court found this testimony

insufficient to support an objective belief that White was likely to destroy evidence.

Accordingly, the court held that the search was not justified by the exigent circumstances

exception.

       Dwight Backherms contends that Deputy Robert Ray only speculated that Mary

Pebworth would destroy the drug evidence. We disagree. Unlike in State v. White,

                                              9
No. 36466-6-III
State v. Backherms


wherein the defendant did not know the police pursued him, Backherms and Pebworth

knew of Deputy Ray’s presence when Ray, from outside the residence, advised

Backherms of his arrest warrant. Backherms and Pebworth had reason to conceal any

contraband, and Backherms in fact handed the bags to Pebworth to hide. Deputy Ray

knew from Backherms’ history of narcotic use that Backherms transferred the stash to

Pebworth. Ray entered the residence to keep Pebworth from destroying the narcotics. If

Deputy Ray retreated to call for a search warrant, Pebworth or Backherms could have

destroyed the evidence. Deputy Ray did not base exigent circumstances on a belief of

what people in general do.

                                 Convictions for Delivery

       Dwight Backherms contends that the to-convict instructions for delivery of a

controlled substance required the State to prove he knew the specific identity of the

controlled substances he delivered and that sufficient evidence does not establish such

knowledge. The State bears the burden of proving all elements of an offense beyond a

reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368

(1970); U.S. CONST. amend. XIV; WASH. CONST. art. I, § 3. When reviewing a

challenge to the sufficiency of the evidence, this court must determine whether, after

viewing the evidence and all reasonable inferences in a light most favorable to the State,

a rational trier of fact could find the essential elements of the crime beyond a reasonable

doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (plurality opinion). A

                                             10
No. 36466-6-III
State v. Backherms


claim of insufficiency admits the truth of the State’s evidence and all inferences that

reasonably can be drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068

(1992). Retrial following reversal for insufficient evidence is prohibited and dismissal is

the remedy. State v. Hardesty, 129 Wn.2d 303, 309, 915 P.2d 1080 (1996).

       The State charged Dwight Backherms with two counts of delivery of a controlled

substance. The elements of delivery are (1) delivery and (2) guilty knowledge. State v.

Nunez-Martinez, 90 Wn. App. 250, 253, 951 P.2d 823 (1998); RCW 69.50.401(1). Proof

of “guilty knowledge” is an essential element of the crime of delivering a controlled

substance even though the statute does not contain a knowledge element. State v. Clark-

El, 196 Wn. App. 614, 625, 384 P.3d 627 (2016). Guilty knowledge is “knowledge that

the substance being delivered is a controlled substance.” State v. Nunez-Martinez, 90

Wn. App. at 254. But, the accused need not know the nature of the forbidden substance.

State v. Hudlow, 182 Wn. App. 266, 285, 331 P.3d 90 (2014).

       Contrary to the law, the trial court delivered jury instructions that read that the jury

must respectively find, for the two charges, that Dwight Backherms knew the substances

to be methamphetamine and heroin. Under the law of the case doctrine, jury instructions

not objected to are treated as the applicable law for purposes of appeal. State v. Johnson,

188 Wn.2d 742, 755, 399 P.3d 507 (2017). In criminal cases, the State assumes the

burden of proving otherwise unnecessary elements of the offense when such added

elements are included without objection in the “to convict” instruction. State v. Hickman,

                                              11
No. 36466-6-III
State v. Backherms


135 Wn.2d 97, 102, 954 P.2d 900 (1998). In turn, on appeal, a defendant may challenge

the sufficiency of evidence of an element in the “to convict” instruction, even if that

element is not part of the underlying statute. State v. Hickman, 135 Wn.2d at 102.

       State v. Ong, 88 Wn. App. 572, 945 P.2d 749 (1997), controls this appeal. In Ong,

the State accused Steven Ong of giving a morphine tablet to a child. Similar to here, the

law of the case doctrine operated to require the State to prove Ong knew the tablet to

contain morphine. The State presented evidence of (1) Ong’s five felony convictions, (2)

Ong’s drug paraphernalia of syringes, a straw, a smoking device, and cotton, (3) small

numbers marked on the tablets, (4) his testimony that he knew the pills were “pain

medication,” (5) his testimony that he stole the pills, and (6) his flight to Bremerton,

which showed consciousness of guilt. State v. Ong, 88 Wn. App. at 577. But nothing in

this evidence pointed to knowledge that the substance was specifically morphine rather

than any other controlled substance. Thus, even viewing the evidence in a light most

favorable to the State, the lack of the requisite knowledge element proved insufficient to

support Ong’s conviction for delivery of a controlled substance.

       Dwight Backherms argues that, when viewing the evidence in the light most

favorable to the State, the State presented even less evidence to suggest he knew the

specific identity of the controlled substances than the State presented in State v. Ong. We

agree. Unlike in Ong, the deputies saw no evidence of other drug paraphernalia. The

State presented no testimony regarding any prior or current drug use or convictions. At

                                             12
No. 36466-6-III
State v. Backherms


most, the handing of the baggies to Mary Pebworth showed consciousness of guilt. But,

like Ong, nothing in the evidence showed Backherms knew the substances were

methamphetamine and heroin compared to any other controlled substance.

      Because retrial following reversal for insufficient evidence is unequivocally

prohibited, dismissal is the remedy. State v. Hickman, 135 Wn.2d at 103 (1998).

Therefore, we reverse and dismiss the two convictions for delivery of controlled

substances.

      Since we dismiss the charges of delivery of controlled substances, we must

determine whether to reinstate Dwight Backherms’ convictions for possession of

methamphetamine and heroin. The jury instructions for possession did not require the

State to prove Dwight Backherms knew the nature of the controlled substance in order to

convict him. The trial court dismissed the possession charges with prejudice solely on

the ground that the convictions violated double jeopardy because of the other convictions

for delivery, which we now reverse.

      Under Washington law, a lesser conviction previously vacated on double jeopardy

grounds may be reinstated if the defendant’s conviction for the more serious offense

based on the same act is subsequently overturned on appeal. State v. Turner, 169 Wn.2d

448, 466, 238 P.3d 461 (2010). Therefore, we reinstate the two possession convictions.

                                      CONCLUSION

      We dismiss with prejudice charges against Dwight Backherms for delivery of

                                           13
No. 36466-6-III
State v. Backherms


methamphetamine and delivery of heroin. We reinstate Backherms’ two convictions for

possession of a controlled substance. We remand to the trial court for resentencing based

on convictions of lower charges.

      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.


                                            _________________________________
                                            Fearing, J.

WE CONCUR:



______________________________
Korsmo, A.C.J.



______________________________
Siddoway, J.




                                           14
                                      No. 36466-6-III

       KORSMO, J. (concurring) — I have signed the majority opinion, but feel compelled

to pen a few words over the ever-growing problems that have developed among the

progeny of the unholy marriage of Blakely and Hickman.1 Although Mr. Backherms

wins this round, his victory hands prosecutors a significant weapon that perhaps will

bring an end to the game-playing. Or maybe simply raise it to another level altogether.

       The Hickman doctrine is a two-way street. Both sides are bound by an

unchallenged instruction. State v. Owens, 180 Wn.2d 90, 101 n.6, 323 P.3d 1030 (2014)

(defendant’s failure to challenge instruction waived claim under Hickman). Accordingly,

in addition to requiring prosecutors to prove negligently added elements, Hickman also

allows a prosecutor to intentionally add elements and attempt to prove them. For

someone with a relevant past criminal history, the doors are open to the prosecution to

bring that past before the jury as an element it must prove.

       Drug cases present an easy example.2 In order to prove the defendant’s

knowledge of the identity of the controlled substances, prior convictions involving the



       1
         Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004);
State v. Hickman, 135 Wn.2d 97, 954 P.2d 900 (1998).
       2
         It is not hard to imagine other scenarios—pleading a continuing course of
conduct and then proving that conduct, etc.
No. 36466-6-III
State v. Beckherms—concurrence


same substance would be admissible as substantive evidence of the defendant’s

knowledge. Neither ER 609, nor ER 403 or ER 404 would stand in the way. The only

ways to defeat such action would be to stipulate to the identity of the substance or

propose proper instructions prior to trial. Either action takes away the Hickman problem.

They also take away the Hickman issue.

       The proper procedure is for element instructions to not contain extraneous

elements such as the identity of the controlled substance and for the jury to determine the

identity of the controlled substance in a special interrogatory or special verdict form. The

sooner both parties start presenting jury instructions in that manner, the sooner we can

put these issues to rest.

       I concur.


                                              _________________________________
                                                      Korsmo, J.




                                             2
