Appeal from Cowlitz Superior Court. Docket No: 12-1-00719-2. Judge signing: Honorable Marilyn K Haan. Judgment or order under review. Date filed: 02/28/2013.
Jodi R. Backlund (of Backlund & Mistry ), for appellant.
Ryan P. Jurvakainen, Prosecuting Attorney, and David Phelan, Deputy, for respondent.
Authored by Lisa Worswick. Concurring: Linda CJ Lee, Lisa Sutton.
[185 Wn.App. 507] Lisa Worswick,
[¶1] 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 [185 Wn.App. 508] of possession of methamphetamine. 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 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.
[¶2] 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
[¶3] On the first day of trial and prior to voir dire, the trial court gave Fehr the following admonishment:
[Trial Court]: All right. Witnesses will be excluded then until they are called. So, 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.
[Trial Court]: And then make sure you don't show any disagreement, agreement or any responses to the testimony. All right. [185 Wn.App. 509] 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 to--to let you know that as well. Okay. All right.
1 Verbatim Report of Proceedings (VRP) at 6-7 (emphasis added).
B. Trial Testimony
[¶4] 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 ...