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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,
                             Respondent,                         No.  41686-7-II

       v.                                                  UNPUBLISHED OPINION

JODY DWAYNE WISENBAUGH,
                             Appellant.

       Van Deren, J.  --  Jody Dwayne Wisenbaugh appeals his convictions of unlawful 

possession of a controlled substance with intent to deliver, unlawful use of drug paraphernalia, 

and unlawful possession of an imitation controlled substance with intent to distribute, arguing that 

the evidence was insufficient to convict him.  We affirm.1

       During the early hours of February 26, 2010, Pierce County Deputy Sheriffs Michael 

Cooke and Robert Shaw were on routine patrol.  They observed a car that made several turns 

without signaling.  The deputies signaled the driver to pull over and Wisenbaugh, who was 

driving, complied.  Cooke testified that when Wisenbaugh was asked for his driver's license, 

registration, and proof of insurance Wisenbaugh provided an Oregon identification card.  A 

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

No.  41686-7-II

records check revealed that Wisenbaugh's Washington license was suspended.  

       Cooke described Wisenbaugh's demeanor during the traffic stop as "extremely nervous, 

reluctant to make eye contact, . . . fidgety, [and] restless."  Report of Proceedings (RP) at 155.  

After the deputies discovered that Wisenbaugh's Washington license was suspended, Cooke 

asked him if he had anything illegal in his car.  When Wisenbaugh answered that he did not, the 

deputy asked for permission to search the vehicle, which Wisenbaugh granted.  Shaw noticed that 

the passenger side air bag appeared to have been removed.  In the area where the air bag would 

have been, Shaw discovered five glass pipes, a bag containing a "white powdery substance,"

which appeared to Cooke to be methamphetamine, two digital scales, and a "amber-colored pill 

bottle that contained pills." RP at 262, 159.  The center console also contained another 

prescription pill bottle containing pills.  

       Cooke then placed Wisenbaugh under arrest and advised him of his constitutional rights.  

When asked what was in the air bag compartment, Wisenbaugh responded, "It's not meth." RP at 

161.  Wisenbaugh told the deputies that the substance was in fact methylsulfonylmethane (MSM), 

and that he planned on selling it as fake methamphetamine because "the economy was bad and he 

needed cash." RP at 162.  Wisenbaugh told the deputies that he had purchased the bottle of 

methadone pills for $100 from a friend, believing the pills to be Percocet.  Wisenbaugh 

acknowledged ownership of the pipes and scales.  

       Cooke called a poison control number available to law enforcement officers.  After Shaw 

gave the operator a description of the pills, the operator identified the pills found in the air bag

compartment as methadone, and those found in the console as Tylenol with codeine.  The Tylenol 

with codeine bottle had a prescription label on it, indicating that it had been prescribed to Michelle 

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No.  41686-7-II

Wisenbaugh and filled November 28, 2007.  The portion of the label on the bottle of methadone 

pills which would have shown to whom the pills were prescribed had been scratched off.  The 

methadone bottle contained 221 pills.  

       The pipes located in the air bag compartment had burned residue and a white crystalline 

substance in the bulb ends, and white crystalline substance in the stem.  Cooke testified that it 

looked as though they had been used to smoke methamphetamine.  

       The State charged Wisenbaugh by second amended information with unlawful possession 

of a controlled substance with intent to deliver -- methadone -- (count 1), unlawful use of drug 

paraphernalia (count 2), third degree driving while in suspended or revoked status (count 3), 

unlawful possession of a controlled substance with intent to deliver -- Tylenol with 

codeine -- (count 4), and unlawful possession of an imitation controlled substance with intent to 

distribute (count 5).  Before trial, the court denied Wisenbaugh's motions to suppress the search 

of his vehicle and statements made to law enforcement.  

       At trial, a forensic scientist with the Washington State Patrol crime laboratory testified 

that the bag in the air bag compartment contained MSM, a dietary supplement.  Pierce County 

Deputy Sheriff Kristian Nordstrom testified as an expert in illegal drug transactions.  He said that 

MSM is often used to cut methamphetamine and that one difference between drug dealers and 

drug buyers is that a dealer will often carry a substance to cut the drug they are selling, whereas a 

buyer more often will not have a cutting substance in their possession.  Drug dealers tend to carry 

several kinds of drugs, while users will typically have only their drug of choice in their possession.  

Nordstrom testified that having a bottle full of pills or having the pills prepackaged suggested an 

intent to deliver.  Painkillers, such as codeine and methadone, and antipsychotic medications are 

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No.  41686-7-II

the prescription medications carried most often by dealers.  Drug dealers also will carry as many 

drugs as they think they can sell, whereas users will carry only the drugs they can afford to buy.  

Drug dealers can also be expected to carry packaging materials.  Nordstrom testified that he had

seen drugs hidden in the void created when air bags have been removed from a car.  

       A family friend testified that the methadone pills were his.  He said that he had accidentally 

left them at Wisenbaugh's father's house and Wisenbaugh told him he would return them.  The 

friend testified that the bottle was not in the same condition as he had left it because his name had 

been scratched off the pill bottle.

       Wisenbaugh's sister-in-law testified that the Tylenol with codeine prescription, dated 

November 28, 2007, was hers and the prescription had been filled four days after she gave birth 

by Caesarean section.  She opined that the bottle may have fallen out of her purse on an occasion 

when Wisenbaugh took her to a medical appointment.  

       Wisenbaugh testified that he did not tell law enforcement that he intended to sell the MSM 

as fake methamphetamine.  He denied knowing that the Tylenol with codeine was in the car's 

center console.  He testified that a friend had given him the MSM and that he had sought out 

MSM because he thought it would provide some relief for his sick father.  He acknowledged that 

he used the pipes to smoke methamphetamine.  

       The jury found Wisenbaugh guilty of unlawful possession of a controlled substance with 

intent to deliver (methadone), unlawful use of drug paraphernalia, third degree driving while 

license suspended, and unlawful possession of an imitation controlled substance with intent to 

distribute.  It found Wisenbaugh not guilty of possession with intent to deliver (Tylenol with 

codeine).  

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No.  41686-7-II

                                          ANALYSIS

I.     Corpus Delicti

       Wisenbaugh argues that the State presented no evidence, aside from his statement that he 

was planning to sell the MSM as fake methamphetamine, to prove that he possessed an imitation 

controlled substance with intent to distribute.  Thus, under the corpus delicti rule, he contends 

that the State did not present sufficient evidence of his possession with intent to deliver.  The 

corpus delicti rule is a judicially created rule of evidence that sets forth the standard for laying a 

proper foundation before admitting a defendant's confession into evidence.  State v. C.D.W., 76 

Wn. App. 761, 763, 887 P.2d 911 (1995).  The underlying premise is that standing alone, an 

accused's statements are insufficient to support an inference that the crime was committed.  State 

v. Aten, 130 Wn.2d 640, 655, 927 P.2d 210 (1996); State v. Ray, 130 Wn.2d 673, 679, 926 P.2d 

904 (1996).  Because the corpus delicti rule is a rule of evidence, and not a sufficiency of the 

evidence requirement, the failure to comply with this rule is nonconstitutional error.  C.D.W., 76 

Wn. App. at 763-64.  Thus, there must be a proper objection below to preserve the issue for 

review.  C.D.W., 76 Wn. App. at 764.  Here, Wisenbaugh did not object to the admission of his 

statements based on the corpus delicti rule.  Thus, he waived any claim that admission of his 

statements violated the corpus delicti rule and we, therefore, review his claim as one of 

insufficiency of the evidence.

II.    Sufficiency of the Evidence

       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).  "A claim of 

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No.  41686-7-II

insufficiency admits the truth of the State's evidence and all inferences that reasonably can be 

drawn therefrom."  Salinas, 119 Wn.2d at 201.  Circumstantial evidence and direct evidence are

equally reliable.  State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).  We defer to the 

trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of 

the evidence.  State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).

       A.  Possession with Intent To Deliver an Imitation Controlled Substance

       Under RCW 69.52.030(1), the elements of unlawful possession of an imitation controlled 

substance with intent to deliver are: (1) unlawful possession (2) with intent to deliver (3) an 

imitation controlled substance. Intent to distribute cannot be gleaned from possession alone; 

rather, possession must be accompanied by an additional factor suggesting intent to distribute.  

See State v. Harris, 14 Wn. App. 414, 418, 542 P.2d 122 (1975).

       Evidence, beyond mere possession, points to the fact that Wisenbaugh intended to 

distribute the MSM as fake methamphetamine.  First, Cooke testified that Wisenbaugh told him 

he "planned on selling [the MSM] as . . . fake methamphetamine, in order to make some money 

because the economy was bad and he needed cash." RP at 162.  Second, the deputies found the 

MSM in the same car as methadone pills and a bottle of Tylenol with codeine, and drug dealers 

tend to carry several types of drugs. Third, the MSM was hidden in the void where the car's air 

bag would have been, a tactic used by drug dealers to conceal their products.  Sufficient evidence 

supported Wisenbaugh's conviction of an imitation controlled substance with intent to distribute.

       B.  Possession with Intent To Deliver a Controlled Substance (Methadone)

       Under RCW 69.50.401(1), the statutory elements of possession of a controlled substance 

with intent to deliver are:  (1) unlawful possession (2) with intent to deliver (3) a controlled 

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No.  41686-7-II

substance.  Possession alone does not support a conviction for possession with intent to deliver.  

See State v. Brown, 68 Wn. App. 480, 485, 843 P.2d 1098 (1993).  An additional factor 

indicating intent to deliver must be present.  Harris, 14 Wn. App. at 418.

       Evidence other than Wisenbaugh's possession of the methadone supports the conviction.  

First, the methadone was found in a compartment that Nordstrom testified was designed to 

conceal narcotics.  Second, it was found in close proximity to scales, which are often carried by 

dealers.  Third, Nordstrom also testified that dealers often carry several types of drugs, and the 

methadone was found in Wisenbaugh's car along with the imitation methamphetamine and 

Tylenol with codeine.  Fourth, there was a large quantity of pills in the bottle.  The conviction for 

possession of methadone with intent to deliver is supported by sufficient evidence.

       C.  Possession of Drug Paraphernalia

       Under RCW 69.50.412(1), the statutory elements of possession of drug paraphernalia 

relevant here are: (1) use of "drug paraphernalia" (2) to "store, contain, conceal, inject, ingest, 

inhale, or otherwise introduce into the human body [(3)] a controlled substance."  State v. 

O'Meara, 143 Wn. App. 638, 642-43, 180 P.3d 196 (2008).  RCW 69.50.102(b) lists 14 factors 

to be considered in determining whether a given object is to be considered drug paraphernalia.  

Relevant here, three factors are: "[t]he proximity of the object, in time and space, to a direct 

violation of this chapter;" "[t]he proximity of the object to controlled substances;" and "[t]he 

existence of any residue of controlled substances on the object." RCW 69.50.102(b)(3), (4), (5).

       Here, pipes were found hidden in the air bag compartment, along with a bottle containing

over two hundred methadone pills.  Cooke, Shaw, and Nordstrom all testified that the pipes 

contained burn marks and white residue.  As to whether residue is from a controlled substance, a

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No.  41686-7-II

witness with knowledge may identify a substance, whether the knowledge was acquired through 

education or experience.  State v. Eddie A., 40 Wn. App. 717, 721, 700 P.2d 751 (1985) (witness 

"familiar with the illicit drug" may testify).  "The introduction of a chemical analysis of a 

suspected controlled substance is not essential to conviction even in a criminal trial proceeding; 

lay testimony and circumstantial evidence may be sufficient to establish the identity of the 

substance."  In re Reismiller, 101 Wn.2d 291, 294, 678 P.2d 323 (1984).  Finally, on cross-

examination, Wisenbaugh testified that he used the pipes to smoke methamphetamine.  The State 

presented sufficient evidence that Wisenbaugh possessed drug paraphernalia which had been used 

to ingest a controlled substance.

       Wisenbaugh's convictions are supported by sufficient evidence.  We affirm.

       A majorityofthe 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.

                                                 Van Deren, J.
We concur:

Armstrong, J.

Johanson, J.

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