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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  41826-6-II

                             Respondent,                   UNPUBLISHED OPINION

       v.

CLAYTON CHAPIN,

                             Appellant.

       Armstrong, P.J.  --  Clayton Chapin appeals his conviction for unlawful use of a building 

for drug purposes, arguing that the State failed to present sufficient evidence to convict him.  The 

State concedes he is correct.  We reverse and remand to the trial court to dismiss that conviction.  

Chapin also appeals from the imposition of a $450 jury demand fee, arguing that the amount 

exceeded that permitted by statute.  We agree and remand for correction of the amount of jury 

demand fee.1

       Within an hour after police used a confidential informant to make a controlled buy of 

heroin from Chapin, they executed a search warrant at a one-bedroom apartment.  In the 

bedroom, they found methamphetamine, heroin, materials associated with delivery of heroin, and 

records indicating that Chapin resided in the apartment.

       The State charged Chapin with unlawful delivery of heroin within 1,000 feet of a school 

bus route stop (count I), unlawful possession of heroin with intent to deliver (count II), unlawful 

possession of methamphetamine (count III), and unlawful use of a building for drug purposes 

1 A commissioner of this court initially considered Chapin's appeal as a motion on the merits 
under RAP 18.14 and then transferred it to a panel of judges. 

No.  41826-6-II

(count IV).  A jury found him guilty as charged.  As part of his judgment and sentence, the trial 

court ordered Chapin to pay a jury demand fee of $450.

       Chapin does not appeal from his convictions on counts I, II or III.  He argues that 

substantial evidence does not support his conviction on count IV, for unlawful use of a building 

for drug purposes.  Evidence is sufficient to support a conviction if, when viewed in the light most 

favorable to the State, it permits any rational trier of fact to find the essential elements of the 

crime beyond a reasonable doubt.  State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

       To convict a defendant of unlawful use of a building for drug purposes, the State must 

prove beyond a reasonable doubt that "as an owner, lessee, agent, employee, or mortgagee" of a 

building, room, space, or enclosure, the defendant knowingly rented, leased, or made available for 

use the building, room, space, or enclosure for drug purposes.  RCW 69.53.010(1).  Chapin 

argues that because the State did not present evidence that he was an "owner, lessee, agent, 

employee, or mortgagee" of the apartment, it did not present sufficient evidence to find him guilty 

under RCW 69.53.010(1).  The State concedes that while it did present evidence that Chapin 

resided in the apartment, it did not present any evidence that he was an "owner, lessee, agent, 

employee, or mortgagee" of the apartment.  We accept the State's concession and reverse and 

remand to the trial court to dismiss Chapin's conviction for unlawful use of a building for drug 

purposes.

       Chapin also argues that the trial court erred in imposing a $450 jury demand fee because 

RCW 36.18.016(3)(b) limits that fee to $250 for a 12-person jury.  The State responds that 

Chapin should not be allowed to raise this issue for the first time on appeal, RAP 2.5(a), but 

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No.  41826-6-II

agrees that the jury demand fee should have been $250.  We elect to allow Chapin to raise this 

issue for the first time on appeal, in the interests of justice.  RAP 1.2(c); State v. Hathaway, 161 

Wn. App. 634, 651-52, 251 P.3d 253, review denied, 172 Wn.2d 1021 (2011).  We agree that the 

$450 jury demand fee exceeds the limit imposed by RCW 36.18.016(3)(b) and remand for 

correction of that fee.  Hathaway, 161 Wn. App. at 652-53.2

       We reverse and remand to the trial court to dismiss Chapin's conviction for unlawful use 

of a building for drug purposes.  We remand Chapin's judgment and sentence for correction of the 

jury demand fee.

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                 Armstrong, P.J.
We concur:

Quinn-Brintnall, J.

Johanson, J.

2 Because we remand for correction of the jury demand fee, we need not address Chapin's 
argument that his trial counsel's failure to object to the amount of that fee was ineffective 
assistance of counsel.

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