FILED AUGUST 8, 2023 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STATE OF WASHINGTON, ) ) No. 39080-2-III Respondent, ) ) v. ) UNPUBLISHED OPINION ) MICHAEL TODD FOREST, ) ) Appellant. )
FEARING, C.J. — Michael Forest appeals his conviction for attempting to obtain a
controlled substance by a forged prescription. He contends his trial attorney performed
ineffectively when failing to request a jury instruction defining the word “attempt” and a
voluntary intoxication instruction. We conclude Forest was not entitled to either
instruction and thus his counsel did not perform ineffectively. We affirm his conviction.
FACTS
Michael Forest entered a Cle Elum pharmacy and handed a prescription for
codeine-promethazine to pharmacy technician Damian Fudcaz. Codeine-promethazine is No. 39080-2-III State v. Forest
a controlled substance. Forest told Fudcaz that the individual named on the prescription,
Brooke Forest, was his brother.
Damian Fudcaz noticed irregularities in the prescription. The amount of the
requested medication was more than double the amount usually prescribed. A clinic far
from the pharmacy wrote the prescription. Brooke Forest had not purchased drugs at the
pharmacy before. Fudcaz shared his concerns with Seyom (Sam) Woldegerbriel, the
pharmacist in the drug store. Fudcaz unsuccessfully called the prescribing clinic to
confirm the issuance of the prescription. Woldegerbriel reported the suspicious
prescription to the police.
Cle Elum Police Officers Brad Helgeson and Nick Burson responded to the call.
They spoke with Sam Woldegerbriel, who described Michael Forest as an older black
male wearing a green shirt, a stocking hat, and glasses.
Officer Brad Helgeson scrutinized the parking lot and located a man matching the
description given by Sam Woldegerbriel. Helgeson approached the man, Michael Forest,
and questioned him about the prescription. Forest first explained he took a Greyhound
bus from Seattle and wanted to fill the prescription for his sister. Helgeson informed
Forest that Greyhound busses do not stop in Cle Elum and asked Forest for his sister’s
address. Forest could not provide an address. Forest next expounded that a female in
Seattle, from whom he had previously bought cocaine, offered to give him either cash or
2 No. 39080-2-III State v. Forest
more cocaine if he filled the prescription. Forest added that a man gave him a ride to Cle
Elum.
Officer Brad Helgeson arrested Michael Forest. When searching Forest incident
to the arrest, Helgeson seized a gray vial from Forest’s pocket. Forest volunteered that
the vial contained two rocks of cocaine and that he had used cocaine within the last hour.
Forest also informed Helgeson that he had not slept for five days.
During trial, Officer Brad Helgeson testified:
Q And in the report, you indicated what you—how Mr. Forest appeared to you. How did he appear to you? A As far as a description or as far as his behavior? Q Behavior. A So, he appeared to be under the influence. Q Okay. And in fact, he advised that he used cocaine within the last hour and not slept for five days, right? A Correct. Q Okay. So, when he was talking to you, he had not slept for five days. A That’s his statement. Q Yes. And that could lend to some, you know, issues with, I mean you’re a trained officer, right? A Correct. Q So, you know that being under the influence can lead to memory issues? A Sure. Q Or recollection? A Sure.
Report of Proceedings at 63.
3 No. 39080-2-III State v. Forest
PROCEDURE
The State of Washington charged Michael Forest with one count of obtaining a
controlled substance by fraud or forged prescription. The controlling statute prohibits
one from knowingly or intentionally obtaining or attempting to obtain a controlled
substance by fraud, deceit, misrepresentation, subterfuge, forgery, or use of a false name.
RCW 69.50.403(1)(c).
Jury instruction 8 instructed the jury:
To convict the defendant of the crime of Obtaining a Controlled Substance by Fraud or Forged Prescription, each of the following elements must be proved beyond a reasonable doubt (1) That on or about June 13, 2020, the Defendant acted knowingly and intentionally, and (2) That the defendant attempted to obtain a controlled substance either by (a) Fraud, deceit, misrepresentation, or subterfuge, (b) By forgery or alteration of a prescription, OR (3) That the defendant did make or utter any false or forged prescription, and (4) That any of these acts occurred in the State of Washington.
Clerk’s Papers at 28 (emphasis added). The trial court separately defined the words:
“knowingly,” “intentionally,” “deceit,” “forgery,” and “utter.” Michael Forest did not
request and the trial court delivered no jury instruction that defined the word “attempt”
found in jury instruction 8 and in RCW 69.50.403(1)(c). Forest sought no voluntary
intoxication jury instruction.
The jury found Michael Forest guilty of the one charge.
4 No. 39080-2-III State v. Forest
LAW AND ANALYSIS
On appeal, Michael Forest challenges the adequacy of his legal representation
because his counsel failed to request a jury instruction that defined the word “attempt”
and an instruction that presented to the jury the defense of voluntary intoxication. The
Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee the right to effective assistance of counsel. State v.
Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017).
Washington courts employ the two-part test adopted by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984) to analyze claims of ineffective assistance of counsel. State v. Estes, 188 Wn.2d
450, 457 (2017). Under Strickland, the defendant must show both (1) deficient
performance and (2) resulting prejudice to prevail on an ineffective assistance claim.
State v. Estes, 188 Wn.2d 450, 457-58 (2017). Deficient performance is performance
falling below an objective standard of reasonableness based on consideration of all the
circumstances. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009); State v.
McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
When claiming ineffective assistance of counsel based on defense counsel’s
failure to request a specific jury instruction, the defendant must show he was entitled to
the instruction, counsel’s performance was deficient in failing to request it, and the
failure to request the instruction caused prejudice. State v. Thompson, 169 Wn. App. 436,
5 No. 39080-2-III State v. Forest
495, 290 P.3d 996 (2012); State v. Classen, 4 Wn. App. 2d 520, 540, 422 P.3d 489
(2018). We analyze separately whether Michael Forest was entitled to either an
instruction defining “attempt” or a voluntary intoxication jury instruction. We conclude
the facts and the law supported neither instruction.
In addition to arguing that his counsel performed ineffectively by failing to seek a
jury instruction defining the word “attempt,” Michael Forest contends the trial court’s
failure to deliver such an instruction violated due process because, without the definition,
the instructions failed to inform the jury of all of the elements of the crime of fraudulently
attempting to procure a prescription drug. We analyze this distinct argument when
examining Forest’s entitlement to a jury instruction defining “attempt.”
Definition of Attempt
Michael Forest asserts that the trial court should have defined the word “attempt”
in a jury instruction. Forest acknowledges that, when it comes to securing a conviction
under the controlled substance statute, RCW 69.50.403(1)(c), the specific “attempt”
articulated in that statute controls as compared to the general “attempt” defined in
Washington’s general attempt statute, RCW 9A.28.020. Forest nevertheless maintains
that RCW 9A.28.020’s definition of general “attempt” is an essential element of
RCW 69.50.403(1)(c). Forest thereby contends that the trial court should have informed
the jury that the State must have proved the two essential elements to succeed on an
6 No. 39080-2-III State v. Forest
“attempt” to commit a crime under RCW 9A.28.020: (1) intent to commit a specific
crime and (2) any act constituting a substantial step toward the commission of that crime.
A jury instruction must correctly state the law, not mislead the jury, and permit
counsel to argue his or her theory of the case. State v. Mark, 94 Wn.2d 520, 526, 618
P.2d 73 (1980); State v. Brooks, 142 Wn. App. 842, 847, 176 P.3d 549 (2008). To
comply with the requirements of due process, the State must prove all facts necessary to
support the elements of the crime(s) charged. State v. Brooks, 142 Wn. App. 842, 847
(2008).
Michael Forest’s argument conflates two distinct statutes that contain the word
“attempt.” First, RCW 9A.28.020(1) operates as Washington’s general criminal attempt
statute. The statute reads:
A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime.
As the general, catch-all attempt statute, RCW 9A.28.020 permits punishment of
anticipatory offenses, thereby allowing the State to charge a defendant with an attempt to
commit any Washington crime. State v. Austin, 105 Wn.2d 511, 514, 716 P.2d 875
(1986); State v. Gjertson, 71 Wn.2d 757, 759, 430 P.2d 972 (1967) (citing predecessor
statute). The general attempt statute does not apply when a specific criminal statute
includes “attempt” within its own definition of a crime. State v. Austin, 105 Wn.2d 511,
7 No. 39080-2-III State v. Forest
514-15 (1986). Under such a specific statute, the attempt forms a completed, not an
anticipatory crime.
Second, RCW 69.50.403(1) declares:
It is unlawful for any person knowingly or intentionally: .... (c) To obtain or attempt to obtain a controlled substance, or procure or attempt to procure the administration of a controlled substance, (i) by fraud, deceit, misrepresentation, or subterfuge; or (ii) by forgery or alteration of a prescription or any written order; or (iii) by the concealment of material fact; or (iv) by the use of a false name or the giving of a false address.
(Emphasis added.) RCW 69.50.403(1)(c) is one such specific criminal attempt crime.
RCW 69.50.403(1)(c) earmarks an attempt to obtain a controlled substance as an
included and completed crime. Therefore, the general attempt statute, RCW 9A.28.020,
does not apply and the trial court was not required to inform the jury of its elements.
Michael Forest cites State v. Jackson, 62 Wn. App. 53, 813 P.2d 156 (1991),
wherein this court held that the failure to define “attempt” as intent to commit the crime
and a substantial step toward committing the crime violated the accused’s due process
rights because the jury instructions failed to inform the jury of all of the elements of the
crime. The State charged Jackson with attempt to rape and employed
RCW 9A.28.020, the general attempt statute, in addition to the second degree rape
statute, RCW 9A.44.050. The Supreme Court reasoned that the definition of “attempt”
under RCW 9A.28.020 differs from the common understanding of the word. Jurors of
8 No. 39080-2-III State v. Forest
ordinary intelligence would not have known that the general attempt statute imposes a
two-element test requiring findings that (1) a defendant intended to commit a specific
crime and (2) the defendant took a substantial step toward the commission of that crime.
State v. Jackson does not control this case because Michael Forest was not charged
under the general attempt statute, RCW 9A.28.020, but under RCW 69.50.403, which
designates an attempt to fraudulently obtain a prescription drug as a completed crime.
Neither RCW 69.50.403 nor another statute defines “attempt” for purposes of the crime.
Forest does not contend that, assuming the two-part test found in RCW 9A.28.020 does
not apply, the trial court needed to define “attempt.”
Whether the words used in an instruction require further definition is a matter of
judgment to be exercised by the trial court. State v. O’Donnell, 142 Wn. App. 314, 325,
174 P.3d 1205 (2007). Trial courts must define technical words and expressions used in
jury instructions, but need not define words and expressions that are of ordinary
understanding or self-explanatory. State v. Brown, 132 Wn.2d 529, 611-12, 940 P.2d 546
(1997); State v. Stacy, 181 Wn. App. 553, 572, 326 P.3d 136 (2014). The word “attempt”
in the specific criminal statute outlawing an “attempt to obtain a controlled substance”
assumed its ordinary meaning, which did not necessarily entail a substantial step. State v.
Shipp, 93 Wn.2d 510, 515-16, 610 P.2d 1322 (1980). The trial court did not err in
refusing to define the term.
9 No. 39080-2-III State v. Forest
State v. Austin, 105 Wn.2d 511 (1986) is illustrative. The State convicted Colleen
Austin of an earlier version of the crime charged Michael Forest. Former RCW
69.50.403(a)(3) (1993), recodified at RCW 69.50.403(1)(c). Austin argued to the
Washington Supreme Court that, because the State charged her with an attempted
violation of the controlled substance statute, she should have been sentenced for an
attempt offense under the general attempt statute, which would have afforded a lower
sentence. The Supreme Court disagreed. By the language of the statute, the legislature
intended to render an attempt to fraudulently obtain a prescription drug as serious as
completing the crime.
Voluntary Intoxication
We move to Michael Forest’s second desired jury instruction never requested at
trial. A Washington statute, RCW 9A.16.090, creates an intoxication defense. The
statute declares:
No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his or her condition, but whenever the actual existence of any particular mental state is a necessary element to constitute a particular species or degree of crime, the fact of his or her intoxication may be taken into consideration in determining such mental state.
RCW 9A.16.090 recognizes that, whenever a crime has a particular mental state,
the jury may consider voluntary intoxication when deciding whether the accused formed
that mental state. State v. Walters, 162 Wn. App. 74, 81, 255 P.3d 835 (2011). An
10 No. 39080-2-III State v. Forest
accused requesting a voluntary intoxication jury instruction must satisfy three elements:
(1) one of the elements of the crime charged possesses a particular mental state, (2)
substantial evidence supports a finding that the defendant ingested an intoxicant, and (3)
evidence supports a finding that ingestion of an intoxicant affected his ability to acquire
the required mental state for the crime. State v. Classen, 4 Wn. App. 2d 520, 536 (2018);
State v. Harris, 122 Wn. App. 547, 552, 90 P.3d 1133 (2004), aff’d, Nos. 32924-7-II,
32930-1-II (Wash. Ct. App. Oct. 31, 2006).
Michael Forest satisfied the first element. The statute of conviction,
RCW 69.50.403(1)(c) and (e), requires that the State prove he acted “knowingly or
intentionally” to secure a conviction.
Michael Forest argues that he satisfied the second element because substantial
evidence supports that he ingested cocaine in the relevant time preceding his attempting
to procure the prescription drug. We agree.
To satisfy the third element, Michael Forest relies heavily on testimony provided
by Officer Brad Helgeson to support the argument he was under the influence of cocaine.
Helgeson testified that Forest appeared to be under the influence. While this evidence
may suffice as substantial evidence of intoxication, insufficient evidence established that
Forest’s intoxication impacted his ability to form the intent required to commit the
offense at the time he chose to do so. Intoxication alone does not satisfy the third
element.
11 No. 39080-2-III State v. Forest
To satisfy the third element, the accused must present substantial evidence of the
effects of the intoxicants on his mind or body. State v. Gabryschak, 83 Wn. App. 249,
253, 921 P.2d 549 (1996). The evidence must reasonably and logically connect a
defendant’s intoxication with his inability to form the requisite mental state. State v.
Classen, 4 Wn. App. 2d 520, 536 (2018). A person can be intoxicated and still be able to
form the requisite mental state to commit certain crimes. State v. Classen, 4 Wn. App. 2d
520, 537 (2018).
The law distinguishes between intoxication resulting from alcohol and intoxication
stemming from a controlled substance. The accused need not present expert testimony to
support an involuntary intoxication defense based on alcohol intoxication. State v.
Classen, 4 Wn. App. 2d 520, 537 (2018); State v. Thomas, 123 Wn. App. 771, 782, 98
P.3d 1258 (2004). The law recognizes that the effects of alcohol are commonly known
and jurors can draw reasonable inferences from testimony about alcohol use. State v.
Classen, 4 Wn. App. 2d 520, 537 (2018). The case law does not read the same about
methamphetamine or heroin intoxication. State v. Classen, 4 Wn. App. 2d 520, 537
(2018). The accused must present competent evidence that methamphetamine or heroin
precluded his ability to form the requisite mental state required to convict. State v.
Classen, 4 Wn. App. 2d 520, 537 (2018).
Michael Forest cites State v. Walters, 162 Wn. App. 74 (2011) to support the
availability of a voluntary intoxication instruction. We deem Walters inapposite because
12 No. 39080-2-III State v. Forest
defendant James Walters sought a voluntary intoxication jury instruction based on
alcohol consumption.
We deem State v. Classen, 4 Wn. App. 2d 520 (2018) helpful. Darrell Classen,
who admitted to using methamphetamine and heroin daily, argued that he received
ineffective assistance of counsel due to defense counsel’s failure to request a voluntary
intoxication instruction. This court analyzed this issue under the required three prong
test. We concluded that, even assuming substantial evidence of intoxication existed,
insufficient evidence created a jury question of whether intoxication affected Classen’s
ability to form the required mental state to commit the crimes. A law enforcement officer
testified that Classen appeared to be under the influence, but the officer did not testify as
to what type of drug or intoxicant he suspected Classen ingested. The officer did not
testify as to whether methamphetamine or heroin affected a person’s ability to form the
requisite intent to commit the crimes of kidnapping or assault. Because it is not common
knowledge that methamphetamine or heroin affects a person’s ability to form the
requisite intent, Classen needed to provide competent evidence to show an inability to
form intent. Classen failed to introduce any such evidence.
Michael Forest’s arresting officer, Officer Brad Helgeson, testified that Forest
appeared to be under the influence at the time he was arrested. Helgeson testified that
Forest had told him that the former used cocaine and was sleep deprived. Nevertheless,
Helgeson provided no testimony on the effects of cocaine on its user. Helgeson averred
13 No. 39080-2-III State v. Forest
that cocaine can impact one’s memory, but he did not declare that Forest was under a
state of intoxication that would impede his memory. More importantly, Officer Helgeson
did not testify to observing any behavior of Forest that evidenced an inability to
intentionally or knowingly procure a prescription drug under false pretenses. The
common layperson does not know the impact of cocaine on one’s ability to knowingly or
intentionally perform criminal acts.
When arguing entitlement to a voluntary intoxication instruction, Michael Forest
emphasizes that he had not slept for five days. To the extent his lack of sleep relates to
his ingestion of cocaine, we agree the evidence helps Forest. But, Forest also contends
that lack of sleep deprivation impacts a person similarly to alcohol intoxication. Forest
cites a Centers for Disease Control and Protection article to support this theory. NIOSH
Training for Nurses on Shift Work and Long Work Hours, Centers for Disease Control
and Prevention (last edited March 31, 2020), https://www.cdc.gov/niosh/work-
hour training-for-nurses/longhours/mod3/08.html. We deem the argument harmful to
Forest, because, if sleep deprivation led to his criminal conduct, RCW 9A.16.090 creates
no defense for sleep deprivation.
CONCLUSION
We reject Michael Forest’s assignments of error and affirm his conviction for
attempting to gain a controlled substance through a fraudulent prescription.
14 No. 39080-2-III State v. Forest
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, C.J.
WE CONCUR:
______________________________ Siddoway, J.
______________________________ Staab, J.
Judge Laurel H. Siddoway was a member of the Court of Appeals at the time argument was held on this matter. She is now serving as a judge pro tempore of the court pursuant to RCW 2.06.150.