convicted Sinrud of possession of a controlled substance and
possession of a controlled substance with intent to deliver.
Sinrud contends that the jury instructions amounted to a
comment on the evidence. Under the law of the case doctrine,
she contends that the evidence was insufficient to show
possession and possession with intent to deliver. We find
that the evidence is sufficient. But, we agree with Sinrud
that the jury instructions were a judicial comment on the
evidence. We reverse and remand for a new trial.
served a search warrant on Autumn Sinrud's residence on
March 5, 2014. Sinrud resided there with three roommates: her
mother and a couple that she knew through a mutual friend. As
they entered, the police heard footsteps upstairs and a
toilet flushing. They saw Sinrud walking away from the side
of the upper floor that contained the bathroom. The police
discovered a bag of heroin in the toilet. Next to the toilet,
they found a lockbox containing approximately 14 grams-a half
ounce-of methamphetamine. They found no drugs on Sinrud's
person. But, they found small plastic baggies and $3, 800 in
cash in her room. In other rooms, including rooms occupied by
her roommates, the police found other controlled substances.
was charged with possession of a controlled substance (heroin
and methamphetamine), and possession of a controlled
substance with intent to deliver (methamphetamine). A jury
found her guilty as charged. Sinrud appeals.
makes three arguments. First, she argues that under the law
of the case doctrine, the evidence was insufficient to
satisfy the elements as stated in the jury instructions.
Second, she argues that the trial court commented on the
evidence. Third, Sinrud argues, and the State concedes, that
the possession conviction violates double jeopardy. In a
statement of additional grounds for review (SAG), she argues
that the trial court should have excluded a witness from the
court room, a witness's testimony was unreliable, and the
State committed discovery violations.
Sufficiency of Evidence
first address whether the evidence was sufficient to support
Sinrud's convictions for possession and possession with
intent to deliver. For this argument, she relies on the law
of the case doctrine. 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). Accordingly, the State assumes the burden
of proving otherwise unnecessary elements of the offense when
such elements are included without objection. Id.
determining whether there is sufficient evidence to prove the
added element, the court asks whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Id.
the "to convict" instructions for both the
possession and possession with intent to deliver charges
stated that Ms. Sinrud must have "knowingly"
possessed methamphetamine or heroin. The State did not object
to the to convict instructions. Thus, the State was required
to prove that Sinrud knowingly possessed the controlled
substances. Sinrud's sufficiency challenge assigns error
to only the knowledge requirement that would apply under the
law of the case doctrine. That is, she does not challenge the
sufficiency of the evidence for the statutory elements of
possession, or possession with intent to deliver. Rather, she
challenges only the sufficiency of the evidence that she knew
the identity of the substances.
I, possession of a controlled substance, involved heroin or
methamphetamine. A reasonable juror could infer from the
evidence that Sinrud knew that the heroin and methamphetamine
were in fact heroin and methamphetamine.
roommate, Samantha Smith-Thomas, testified that she smoked
methamphetamine with Sinrud. When asked whether her roommates
ever gave her methamphetamine, Smith-Thomas stated that
"I believe everybody did." She also testified that
Sinrud would keep a "big scale" in her room.
police found 14 grams of methamphetamine in the lockbox in
the bathroom, which was where Sinrud was located when police
arrived. Everett Police Officer Jarrod Seth testified that
this was a half ounce, which is a "typical sale
amount." They found $3, 800 in cash in Sinrud's
room, and Clint Lucci, a member of the Snohomish County