Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       DIVISION ONE
                      Respondent,           )
                                            )       No. 66237-6-I
                      v.                    )
                                            )       UNPUBLISHED OPINION
NOEL B. McLANE,                             )
                                            )
                      Appellant.            )       FILED: March 12, 2012
________________________________)

       Dwyer, C.J.  --  Noel McLane was convicted of two counts of vehicular 

assault, one count of unlawful use of drug paraphernalia, and one count of 

possession of a controlled substance arising from an incident in which McLane 

drove his vehicle into an oncoming lane of traffic and caused a head-on 

collision.  Although McLane's blood tested positive for methamphetamine and a 

glass pipe containing residue and burn marks was found at the scene of the 

collision, McLane asserts that the evidence adduced at trial was insufficient for 

the jury to have convicted him of unlawful use of drug paraphernalia.  Finding 

McLane's contention to be without merit, we affirm.

                                            I

       On the morning of September 21, 2009, McLane was driving a Toyota 4-

Runner eastbound on State Route 522.  Debbie Moore was a passenger in the 

Toyota.  At approximately 6:00 a.m., McLane drove across the centerline,

causing a head-on collision with a Land Rover that was traveling in the opposite  

No. 66237-6-I/2

direction.  

       Officers of the Monroe Police Department responded to the collision

scene.  Deputy Chief Cherie Harris located a green jacket near the Toyota

amidst debris from the collision. In the pocket of the jacket, Deputy Chief Harris 

discovered a man's watch and a glass pipe.  The glass pipe had burn marks and 

white residue on it.  Another officer at the scene, Detective Spencer Robinson, 

recognized the glass pipe as an item commonly used to smoke 

methamphetamine or crack cocaine.  The glass pipe was photographed and

collected as evidence. 

       McLane, Moore, and the driver of the Land Rover were transported to 

Harborview Medical Center.  McLane's blood was drawn and tested for drug 

content by a forensic toxicologist. McLane's blood tested positive for 

methamphetamine, morphine, and valium.  

       In December 2009, McLane was questioned by Detective Robinson about 

the collision.  McLane denied that he had used methamphetamine.  When

confronted with the results of the drug test, McLane told Detective Robinson, "I

guess somebody must have drugged my pop." Report of Proceedings (Sept. 22, 

2010) at 28.

       McLane was thereafter charged with two counts of vehicular assault, one

count of unlawful use of drug paraphernalia, and one count of possession of a
controlled substance.1 At the jury trial that followed, a photo of the glass pipe 

       1 Prior to trial, McLane pleaded guilty to the count of possession of a controlled 

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No. 66237-6-I/3

was admitted into evidence.  The pipe was identified by a drug recognition 

expert as drug paraphernalia.  The State also introduced evidence of McLane's 

blood toxicology results.  Jeff Dickinson, a fire fighter who responded to the 

collision scene, testified that the fire department does not carry or administer 

methamphetamine.  Dr. Lisa Taitsman, the orthopedic surgeon who treated 

McLane at Harborview Medical Center, testified that methamphetamine is not 

used therapeutically in the emergency room.  Debbie Moore, McLane's 

passenger at the time of the collision, testified that she had not consumed 

methamphetamine on the day of the incident and did not recognize the green 

coat or the glass pipe. 

       The jury convicted McLane of two counts of vehicular assault and one

count of unlawful use of drug paraphernalia.  He appeals. 

                                           II

       McLane contends that the evidence adduced at trial is insufficient to

sustain his conviction for unlawful use of drug paraphernalia because there is no 

direct evidence that he utilized the glass pipe to introduce methamphetamine 

into his body.  We disagree.

       Evidence is sufficient to support a conviction where, "'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.'"  State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting 

substance involving his possession of a small quantity of marijuana.  

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No. 66237-6-I/4

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).  

"When the sufficiency of the evidence is challenged in a criminal case, all 

reasonable inferences from the evidence must be drawn in favor of the State and 

interpreted most strongly against the defendant."  State v. Salinas, 119 Wn.2d 

192, 201, 829 P.2d 1068 (1992).  Evidentiary inferences favoring the defendant

are not considered in a sufficiency of the evidence analysis.  State v. Jackson, 

62 Wn. App. 53, 58 n.2, 813 P.2d 156 (1991).  Nor do we review a jury's 

credibility determinations on appeal.  State v. Camarillo, 115 Wn.2d 60, 71, 794 

P.2d 850 (1990).

       Circumstantial evidence may be used to support a conviction. State v. 

Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004).  "In determining the 

sufficiency of the evidence, circumstantial evidence is not to be considered any 

less reliable than direct evidence." State v. Delmarter, 94 Wn.2d 634, 638, 618

P.2d 99 (1980).  "Circumstantial evidence can be used where the inferences 

drawn by the jury are reasonable and the evidence supporting the jury's verdict 

is substantial."  State v. Bingham, 105 Wn.2d 820, 824, 719 P.2d 109 (1986). 

Circumstantial evidence may be used to prove any element of a crime.  State v. 

Garcia, 20 Wn. App. 401, 405, 579 P.2d 1034 (1978).  

       To convict a person of unlawful use of drug paraphernalia, the State must 

prove beyond a reasonable doubt that the person has used "drug paraphernalia 

to . . . inject, ingest, inhale, or otherwise introduce into the human body a 

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controlled substance."  RCW 69.50.412(1); State v. LaPlant, 157 Wn. App. 685, 

687, 239 P.3d 366 (2010); State v. Williams, 62 Wn. App. 748, 752-53, 815 P.2d

825 (1991).  Here, the trial court properly instructed the jury that:

              To convict the defendant of the crime of use of drug 
       paraphernalia, each of the following elements of the crime must be 
       proved beyond a reasonable doubt:
              (1) That on or about the 21st day of September, 2009, the 
       defendant used drug paraphernalia to inject, ingest, inhale, or 
       otherwise introduce into the human body a controlled substance
       Methamphetamine; and
              (2) That this act occurred in the State of Washington.

Clerk's Papers at 70 (Instruction 14).  McLane does not contest that the act

occurred in the State of Washington or that the act took place on or about 

September 21, 2009. Accordingly, we must determine whether there was 

sufficient evidence -- either direct or circumstantial -- for any reasonable jury to 

determine that the State had proved (1) that the glass pipe was drug 
paraphernalia,2 (2) that methamphetamine was introduced into McLane's body, 

and (3) that the glass pipe had been used by McLane for this purpose. We have 

no difficulty concluding that sufficient evidence was adduced for the jury to so 

find.

       As an initial matter, the evidence was clearly sufficient to demonstrate 

that the glass pipe found at the accident scene was drug paraphernalia. 

       2 Drug paraphernalia is defined by statute to mean "all equipment, products, and 
materials of any kind which are used, intended for use, or designed for use in planting, 
propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, 
producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, 
concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a 
controlled substance."  RCW 69.50.102(a).

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No. 66237-6-I/6

Although McLane asserts that the State's failure to test the white residue on the 

pipe precludes a finding that the pipe had been used to ingest a controlled 

substance, expert testimony concerning the use of an object may be considered 

in determining whether an object meets the definition of drug paraphernalia. 

RCW 69.50.102(b)(14). Here, Detective Robinson -- a drug recognition expert 

with the Washington State Patrol -- identified the glass pipe as equipment 

commonly used to smoke methamphetamine or crack cocaine.  He further 

testified that the presence of white and black residue on the surface of the pipe 

indicated that it had been used for this purpose.  This testimony was clearly 

sufficient to support a finding that the pipe was drug paraphernalia.  Similarly, it 

is also clear that the evidence was sufficient to support the jury's determination 

that a controlled substance had been introduced into McLane's body.  Indeed, 

the undisputed evidence indicating the presence of methamphetamine in 

McLane's blood left no room for the jury to rationally reach any other conclusion.

       Nevertheless, McLane asserts that because the State failed to lift latent 

fingerprints from the glass pipe, no jury could reasonably have determined that 

McLane had used the pipe to ingest or inhale a controlled substance on the day 

of the incident.  However, there was ample circumstantial evidence for the jury to 

find that the pipe had been used by McLane for this purpose.  Given the location 

and circumstances of the pipe's discovery, the jury could reasonably infer that 

the pipe was in McLane's possession prior to the collision.  The glass pipe was 

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No. 66237-6-I/7

found in a jacket amidst the debris from the vehicle that McLane was driving.  

From this evidence, the jury could reasonably have inferred that the pipe had 

been in the possession of a person in the Toyota.  Furthermore, the green jacket

contained a man's watch, from which the jury could have inferred that the 

jacket -- and the pipe within it -- belonged to a man and not to a woman.  When 

coupled with Moore's testimony that the pipe and jacket did not, in fact, belong to 

her, and her testimony that she had not ingested methamphetamine on the day 

in question, the jury could reasonably have determined that the pipe belonged to 
McLane and not to Moore.3  

       When the jury considered this circumstantial evidence of McLane's 

possession of the pipe in combination with the direct evidence of the pipe's prior 

use and the presence of methamphetamine in McLane's blood, the jury could 

reasonably have determined that McLane had used the glass pipe to introduce 
methamphetamine into his body prior to the collision.4  See State v. 

O'Meara, 143 Wn. App. 638, 643, 180 P.3d 196 (2008) (possession of pipe that 

appeared to contain marijuana residue sufficient to support defendant's 

conviction for use of drug paraphernalia). Accordingly, the evidence adduced at 

McLane's trial is sufficient to support his conviction of unlawful use of drug 

       3 McLane's own testimony that the green coat and the glass pipe did not belong to him 
does not, of course, affect our analysis.  The jury was entitled to believe or disbelieve McLane's 
testimony.  State v. Koss, 158 Wn. App. 8, 16, 241 P.3d 415 (2010). We do not review such 
determinations on appeal. Camarillo, 115 Wn.2d at 71.
       4 The evidence also indicates that the methamphetamine was not introduced through 
some other mechanism.  This substance was not administered at the scene of the collision.  Nor 
was the methamphetamine administered to McLane at Harborview Medical Center. 

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No. 66237-6-I/8

paraphernalia. 

       Affirmed.

We concur:

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