IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, ) No. 82067-2-I ) Respondent, ) ) v. ) ) SEAN WESLEY CROCKER, ) UNPUBLISHED OPINION ) Appellant. ) )
VERELLEN, J. — A jury convicted Sean Crocker of six counts of distribution
of marijuana to a minor, in addition to other marijuana-related charges. Crocker
argues that, relying only upon tests of limited samples later found at his residence,
the State failed to prove beyond a reasonable doubt that the substances he
distributed were marijuana. We affirm.
FACTS
Kingston High School staff became aware of a video posted on social
media that appeared to show a student receiving a “dab,” or THC1 concentrate,
from Sean Crocker in exchange for payment. School officials spoke to the student
who posted the video, who admitted that he and the student depicted in the video
1 THC, or tetrahydrocannabinol acid, is the principal psychoactive ingredient in cannabis. According to the testimony at trial, a “dab” is concentrated THC, an oily or waxy product derived from cannabis. Report of Proceedings (RP) (Aug. 14, 2019) at 506. No. 82067-2-I/2
left school and went to Crocker’s nearby house to “get high.”2 School staff
referred the matter to law enforcement.
About two weeks after the video was posted, police officers executed a
search warrant at Crocker’s home. During the search, police officers found drug
paraphernalia and plant material believed to be marijuana in various forms
throughout the residence. Police officers also found items associated with the
packaging and sale of drugs including scales, baggies, and a notebook with
names and amounts, and a document that appeared to be a drug ledger.
While the officers were searching Crocker’s residence, a male teenager
approached the house, entered the backyard, and knocked on Crocker’s bedroom
window. Over the course of several hours, while the officers processed the
evidence, several more teenagers arrived at Crocker’s home sporadically. Law
enforcement arranged for laboratory testing of samples of apparent leaf marijuana,
including one labeled “Durango” and one sample of THC concentrate, all
recovered from Crocker’s bedroom. Based on interviews with the minors who
arrived on the date of search and the physical evidence, the State charged
Crocker with seven counts of distribution of marijuana to a minor, two counts of
manufacture of marijuana, and one count of possession of a controlled substance.
Each count of distribution pertained to a different minor.
At the conclusion of Crocker’s first trial, the jury found him guilty of one
count of manufacturing marijuana, acquitted him of a second count of
2 RP (Aug. 15, 2019) at 691.
2 No. 82067-2-I/3
manufacturing marijuana, and was unable to reach a verdict on the remaining
counts. Crocker sought discretionary review of the trial court’s ruling denying his
motion to dismiss the distribution counts after the State rested, arguing that the
trial court committed obvious error when it denied his motion because the State’s
evidence failed to establish that the substance distributed to minors met the
statutory definition of marijuana.3 An appellate court commissioner denied the
motion.
Following a second trial, the jury convicted Crocker of six counts of
distribution to a minor and one count of possession with intent to deliver
marijuana.4 He appeals.
ANALYSIS
Crocker challenges the sufficiency of the evidence supporting his
convictions of distribution of marijuana to a minor. He argues that, as was the
case in State v. Crowder, the State’s evidence lacked an “essential component,”
namely, proof that the substance allegedly distributed to minors was, in fact,
marijuana.5
Evidence is sufficient to support a conviction where, after viewing the
evidence in the light most favorable to the State, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. 6
3 See RAP 2.3(b)(1). 4 The State declined to retry one of the distribution counts. 5 196 Wn. App. 861, 864, 385 P.3d 275 (2016). 6 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
3 No. 82067-2-I/4
When an appellant challenges the sufficiency of the evidence, he “admits the truth
of the State’s evidence and all inferences that reasonably can be drawn
therefrom.”7 Appellate courts defer to the trier of fact on issues of conflicting
testimony, witness credibility, and persuasiveness of the evidence.8
Circumstantial evidence carries the same weight as direct evidence.9
In order to convict Crocker, the State had to prove beyond a reasonable
doubt that the substance he distributed was marijuana, which the relevant statute
defines as
all parts of the plant Cannabis, whether growing or not, with a THC concentration greater than 0.3 percent on a dry weight basis; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.[10]
In Crowder, the defendant met two juveniles and invited them to his home
to smoke marijuana.11 Crowder brought them into his garage, where he retrieved
apparent marijuana from a prescription bottle located in a wooden cabinet.12 Five
days later, when law enforcement executed a warrant at Crowder’s residence,
they recovered four prescription bottles containing a leafy substance that
7 Id. 8 State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). 9 State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). 10 Former RCW 69.50.101(x) (2018) (emphasis added). Although this statutory provision has been amended several times since the relevant conduct occurred in this case, this language defining marijuana has remained unchanged. 11 Crowder, 196 Wn. App. at 864. 12 Id. at 864-65.
4 No. 82067-2-I/5
appeared to be marijuana in the garage and arranged for the material in one of the
containers to be tested for its THC content.13 The result of that testing indicated
that the substance was marijuana.14
Nevertheless, Division Three of this court concluded that the State failed to
produce evidence that tied the substance tested to the substance Crowder
provided to the two juveniles days earlier.15 While “random sampling” testing may
in some cases suffice to identify a substance, the court noted that the toxicologist
“was not in a position to compare” the substance tested in the lab with the
substances Crowder provided to the juveniles.16 And the testimony of the two
juveniles did not establish the required nexus between the bottle that contained
confirmed marijuana and the one from which Crowder distributed apparent
marijuana because the juveniles did not describe the pill bottle and the police
found both colored and clear bottles.17 And finally, the court explained that,
without “context” or sufficient experience with marijuana, the juveniles’ testimony
that they felt “high” did not establish the required potency where
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, ) No. 82067-2-I ) Respondent, ) ) v. ) ) SEAN WESLEY CROCKER, ) UNPUBLISHED OPINION ) Appellant. ) )
VERELLEN, J. — A jury convicted Sean Crocker of six counts of distribution
of marijuana to a minor, in addition to other marijuana-related charges. Crocker
argues that, relying only upon tests of limited samples later found at his residence,
the State failed to prove beyond a reasonable doubt that the substances he
distributed were marijuana. We affirm.
FACTS
Kingston High School staff became aware of a video posted on social
media that appeared to show a student receiving a “dab,” or THC1 concentrate,
from Sean Crocker in exchange for payment. School officials spoke to the student
who posted the video, who admitted that he and the student depicted in the video
1 THC, or tetrahydrocannabinol acid, is the principal psychoactive ingredient in cannabis. According to the testimony at trial, a “dab” is concentrated THC, an oily or waxy product derived from cannabis. Report of Proceedings (RP) (Aug. 14, 2019) at 506. No. 82067-2-I/2
left school and went to Crocker’s nearby house to “get high.”2 School staff
referred the matter to law enforcement.
About two weeks after the video was posted, police officers executed a
search warrant at Crocker’s home. During the search, police officers found drug
paraphernalia and plant material believed to be marijuana in various forms
throughout the residence. Police officers also found items associated with the
packaging and sale of drugs including scales, baggies, and a notebook with
names and amounts, and a document that appeared to be a drug ledger.
While the officers were searching Crocker’s residence, a male teenager
approached the house, entered the backyard, and knocked on Crocker’s bedroom
window. Over the course of several hours, while the officers processed the
evidence, several more teenagers arrived at Crocker’s home sporadically. Law
enforcement arranged for laboratory testing of samples of apparent leaf marijuana,
including one labeled “Durango” and one sample of THC concentrate, all
recovered from Crocker’s bedroom. Based on interviews with the minors who
arrived on the date of search and the physical evidence, the State charged
Crocker with seven counts of distribution of marijuana to a minor, two counts of
manufacture of marijuana, and one count of possession of a controlled substance.
Each count of distribution pertained to a different minor.
At the conclusion of Crocker’s first trial, the jury found him guilty of one
count of manufacturing marijuana, acquitted him of a second count of
2 RP (Aug. 15, 2019) at 691.
2 No. 82067-2-I/3
manufacturing marijuana, and was unable to reach a verdict on the remaining
counts. Crocker sought discretionary review of the trial court’s ruling denying his
motion to dismiss the distribution counts after the State rested, arguing that the
trial court committed obvious error when it denied his motion because the State’s
evidence failed to establish that the substance distributed to minors met the
statutory definition of marijuana.3 An appellate court commissioner denied the
motion.
Following a second trial, the jury convicted Crocker of six counts of
distribution to a minor and one count of possession with intent to deliver
marijuana.4 He appeals.
ANALYSIS
Crocker challenges the sufficiency of the evidence supporting his
convictions of distribution of marijuana to a minor. He argues that, as was the
case in State v. Crowder, the State’s evidence lacked an “essential component,”
namely, proof that the substance allegedly distributed to minors was, in fact,
marijuana.5
Evidence is sufficient to support a conviction where, after viewing the
evidence in the light most favorable to the State, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. 6
3 See RAP 2.3(b)(1). 4 The State declined to retry one of the distribution counts. 5 196 Wn. App. 861, 864, 385 P.3d 275 (2016). 6 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
3 No. 82067-2-I/4
When an appellant challenges the sufficiency of the evidence, he “admits the truth
of the State’s evidence and all inferences that reasonably can be drawn
therefrom.”7 Appellate courts defer to the trier of fact on issues of conflicting
testimony, witness credibility, and persuasiveness of the evidence.8
Circumstantial evidence carries the same weight as direct evidence.9
In order to convict Crocker, the State had to prove beyond a reasonable
doubt that the substance he distributed was marijuana, which the relevant statute
defines as
all parts of the plant Cannabis, whether growing or not, with a THC concentration greater than 0.3 percent on a dry weight basis; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.[10]
In Crowder, the defendant met two juveniles and invited them to his home
to smoke marijuana.11 Crowder brought them into his garage, where he retrieved
apparent marijuana from a prescription bottle located in a wooden cabinet.12 Five
days later, when law enforcement executed a warrant at Crowder’s residence,
they recovered four prescription bottles containing a leafy substance that
7 Id. 8 State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). 9 State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). 10 Former RCW 69.50.101(x) (2018) (emphasis added). Although this statutory provision has been amended several times since the relevant conduct occurred in this case, this language defining marijuana has remained unchanged. 11 Crowder, 196 Wn. App. at 864. 12 Id. at 864-65.
4 No. 82067-2-I/5
appeared to be marijuana in the garage and arranged for the material in one of the
containers to be tested for its THC content.13 The result of that testing indicated
that the substance was marijuana.14
Nevertheless, Division Three of this court concluded that the State failed to
produce evidence that tied the substance tested to the substance Crowder
provided to the two juveniles days earlier.15 While “random sampling” testing may
in some cases suffice to identify a substance, the court noted that the toxicologist
“was not in a position to compare” the substance tested in the lab with the
substances Crowder provided to the juveniles.16 And the testimony of the two
juveniles did not establish the required nexus between the bottle that contained
confirmed marijuana and the one from which Crowder distributed apparent
marijuana because the juveniles did not describe the pill bottle and the police
found both colored and clear bottles.17 And finally, the court explained that,
without “context” or sufficient experience with marijuana, the juveniles’ testimony
that they felt “high” did not establish the required potency where
[t]here was no testimony about the meaning of the 0.3 percent THC cut-off level or whether a substance of less than 0.3 percent THC would be capable of producing the psychological effects recounted
13 Id. at 865, 871. 14 Id. at 865. 15 Id. at 870. 16 Id.; see also State v. Caldera, 66 Wn. App. 548, 550, 832 P.2d 139 (1992) (“scientific testing of a random portion of a substance that is consistent in appearance and packaging is reliable and supports a finding that the entire quantity is consistent with the test results of the randomly selected portion”). 17 Crowder, 196 Wn. App. at 871.
5 No. 82067-2-I/6
by the young men. There was not even any testimony about whether 0.3 percent is a high, low, or average amount of THC.[18]
The court explained that, even in the absence of a direct connection between the
tested and distributed substances, the State could have met its burden by
introducing
expert testimony regarding the nature of THC. Information about the typical THC content of marijuana and the type of potency required to produce sensations associated with being “high” could have provided the jury sufficient evidence to conclude that the substance distributed by Mr. Crowder must have had a THC content of at least 0.3 percent.[19]
Having failed to elicit such testimony, the court reversed Crowder’s conviction
because the State failed to meet its burden to prove that he distributed marijuana.
This case is like Crowder to the extent that, given the timing of the alleged
distributions relative to the search, the random sample testing of some apparent
marijuana found in Croker’s bedroom could not, without more, establish that
Crocker distributed marijuana. But, in contrast to the evidence presented in
Crowder, the evidence in this case established that the level of THC is what
differentiates marijuana from hemp, and that it is because of this difference in
potency that the two types of cannabis are not used interchangeably.
The testimony of Detective Bowman and the toxicologist established that
hemp and marijuana are both cannabis and both contain THC. Both witnesses
explained that cannabis containing a THC concentration of greater than 0.3
18 Id. at 871-72. 19 Id. at 872.
6 No. 82067-2-I/7
percent is classified as marijuana, whereas cannabis with a THC concentration of
less than that amount is classified as hemp. The evidence established that only
marijuana is smoked or otherwise ingested for its intoxicating effects. Hemp, on
the other hand, is an “industrial product” used in the production of fiber products
and hemp seed oil.20
According to the evidence, cannabis cultivated and sold for the purpose of
human consumption generally has a THC concentration of between 4 to 8 percent,
or slightly higher.21 A THC concentration level of below 0.3 percent is “low”
relative to cannabis that is ingested, and accordingly, is not sold for that purpose.22
Relative to marijuana, THC concentrate, or “dabs” generally have a much higher
THC concentration level of around 50 percent or as high as 80 to 90 percent.23
In addition to the testimony about THC as it correlates with different types of
cannabis, this case is also distinct from Crowder because that case involved an
alleged distribution to minors in the context of a social interaction on a single
occasion. Here, there was substantial evidence to indicate that Crocker was
operating a business that involved selling marijuana and THC concentrate for
recreational use to repeat customers. Seven current and former high school
students testified that they had obtained marijuana and/or THC concentrate from
Crocker, and all but one testified that they obtained marijuana from him on multiple
20 RP (Aug. 14, 2019) at 589. 21 Id. at 589-90. 22 Id. at 589, 660. 23 Id. at 590.
7 No. 82067-2-I/8
occasions. The witnesses consistently testified that Crocker sold small amounts of
marijuana or dabs from his bedroom window at the back of the house.
The police found numerous pieces of evidence in proximity to the window
where Crocker conducted transactions, including the samples that were tested and
determined to have the requisite THC concentration. In this vicinity, they also
found digital scales with residue that appeared to be THC concentrate, the
notebook listing names and amounts, the apparent ledger, and marijuana in
multiple cabinet drawers, including some labeled with well-known commercial
strains of marijuana, such as “Gorilla Glue.” There was also a sign on Crocker’s
bedroom window, visible from the outside, which said “You owe,” next to an image
of Crocker.24 In various locations in and around the home, the police found 15
marijuana plants and marijuana in different stages of harvesting. The police found
baggies with written numbers that appeared to refer to common weights.
The clear inference from the circumstantial evidence is that Crocker’s
business was based on the distribution of marijuana, not hemp, to repeat
customers. And with regard to the distribution count that was based specifically on
the distribution of THC concentrate, even assuming the dry weight percentage
basis applies, the only testimony in the record regarding the typical high
concentration levels of cannabis in that form leaves no basis to conclude the THC
level was less than 0.3 percent.
24 Id. at 620.
8 No. 82067-2-I/9
As in Crowder, witnesses who purchased marijuana from Crocker testified
that they experienced psychological and physiological effects when they
consumed the substances he provided. But in this case, the evidence provided
context for those descriptions. Several individuals testified to significant, or in
some cases, extensive, experience with marijuana. And there was testimony to
indicate that the substances obtained from Crocker produced effects consistent
with marijuana obtained from other sources.
In sum, the State introduced substantial evidence, in addition to the
laboratory test results of THC content, to support the allegation that Crocker
distributed marijuana. That evidence included testimony about THC and typical
levels of potency, testimony about the effects of the substances from repeat
buyers, and evidence indicative of a recreational marijuana business. Taken as a
whole and construed in the light most favorable to the State, the evidence was
sufficient to support Crocker’s convictions.
Affirmed.
WE CONCUR: