State v. McGee

864 P.2d 912, 122 Wash. 2d 783, 1993 Wash. LEXIS 426
CourtWashington Supreme Court
DecidedDecember 9, 1993
Docket59910-6
StatusPublished
Cited by90 cases

This text of 864 P.2d 912 (State v. McGee) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McGee, 864 P.2d 912, 122 Wash. 2d 783, 1993 Wash. LEXIS 426 (Wash. 1993).

Opinions

[785]*785Dolliver, J.

Defendant McGee appeals the 24-month sentence enhancement imposed by the trial court pursuant to RCW 9.94A.310(5), which provides:

An additional twenty-four months shall be added to the presumptive sentence for any ranked offense involving a violation of chapter 69.50 RCW if the offense was also a violation of RCW 69.50.435.

At the time of the offense here at issue, RCW 69.50.435(a) provided:

Any person who violates RCW 69.50.401(a) by manufacturing, selling, delivering, or possessing with the intent to manufacture, sell, or deliver a controlled substance listed under that subsection to a person in a school... or within one thousand feet of the perimeter of the school grounds is punishable by a fine of up to twice the fine otherwise authorized... or by imprisonment of up to twice the imprisonment otherwise authorized ... or by both such fine and imprisonment.

Both the trial court and the Court of Appeals ruled RCW 69.50.435(a) does not require the State to prove the intended delivery site was within 1,000 feet of a school. We affirm.

In May 1990, police arrested McGee in a parking lot adjacent to the China Express Restaurant in Seattle. Just prior to the arrest, police observed three separate transactions in which McGee exchanged white objects for cash. During a search incident to the arrest, police discovered in McGee's possession a pill bottle containing 7.7 grams of rock cocaine and $91 in currency.

At trial, McGee testified he had purchased the cocaine 2 days before his arrest, using money he and three friends had pooled together. McGee denied selling any of the cocaine to other people, insisting he merely intended to give his friends their shares (presumably at a location outside the school zone). The jury found McGee guilty of possession with intent to deliver a controlled substance in violation of RCW 69.50-.401(a). In addition, the jury found McGee was within 1,000 feet of three different schools at the time of the offense.

The trial court assigned McGee an offender score of 1, and calculated the presumptive range, including the schoolyard [786]*786penalty, as 50 to 58 months. The trial court sentenced McGee to 40 months' total confinement, to run concurrently with a second sentence for possession of a controlled substance. The State did not challenge the trial court's imposition of an exceptionally low sentence.

McGee appealed his conviction, raising evidentiary issues and an ineffective assistance of counsel claim, and challenging the trial court's interpretation of RCW 69.50.435(a). In an unpublished decision, the Court of Appeals affirmed both the conviction and the sentence enhancement. In his petition for review, McGee presented only the issue related to the proper interpretation of RCW 69.50.435(a). We granted permission to the Washington Association of Criminal Defense Lawyers (WACDL) to file a brief as amicus curiae.

McGee contends the wording of RCW 69.50.435(a) is ambiguous. According to McGee, the statute does not clearly indicate which terms the phrase "within one thousand feét of the perimeter of the school grounds" modifies. Omitting those words not directly relevant to this case, former RCW 69.50.435(a) reads:

Any person who violates RCW 69.50.401(a) by. . . possessing with the intent to . . . deliver a controlled substance ... to a person . . . within one thousand feet of the perimeter of the school grounds is punishable [by twice the otherwise authorized fine or imprisonment or both],

(Italics ours.) McGee argues the phrase "within one thousand feet" modifies either the verb "deliver" or the term, "to a person". McGee bases this contention on the last antecedent rule, which states:

Where no contrary intention appears in a statute, relative and qualifying words and phrases . . . refer to the last antecedent.

Boeing Co. v. Department of Licensing, 103 Wn.2d 581, 587, 693 P.2d 104 (1985) (quoting Davis v. Gibbs, 39 Wn.2d 481, 483, 236 P.2d 545 (1951)).

The State, on the other hand, asserts the phrase "within one thousand feet" modifies the two initial words of the statute: "Any person". The State contends RCW 69.50.435(a) [787]*787targets certain behavior, and thus, the proper antecedent of the phrase "within one thousand feet" is the subject of the sentence, i.e., "any person", and not the object, i.e., "to a person".

With respect to the analogous federal statute, 21 U.S.C. § 860 (formerly section 845a(a)), which provides an enhanced penalty for:

Any person who violates section 841(a)(1) or section 856 of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a . . . school

(see 21 U.S.C.A. § 860 (Supp. 1993)) three federal circuit courts have determined the verb "possessing" serves as the antecedent for the phrase "within one thousand feet". United States v. McDonald, 991 F.2d 866 (D.C. Cir. 1993); United States v. Rodriguez, 961 F.2d 1089 (3d Cir. 1992); United States v. Wake, 948 F.2d 1422 (5th Cir. 1991), cert. denied, _U.S._, 119 L. Ed. 2d 569, 112 S. Ct. 2944 (1992).

McGee contends, because RCW 69.50.435(a) is subject to differing interpretations, the statute is ambiguous, and thus, the rale of lenity applies.

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Bluebook (online)
864 P.2d 912, 122 Wash. 2d 783, 1993 Wash. LEXIS 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcgee-wash-1993.