State Of Washington, Resp. vs. Alexander Nichelin, App.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
ALEXANDER SCOTT NICHELIN,
Appellant.
No. 70304-8-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	June 9, 2014
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Trickey, J. — Alexander Nichelin appeals his convictions for identity theft
and 	possession 	of stolen 	property, 	arguing 	that the 	trial 	court considered
undisclosed information at his drug court termination hearing violating his right to
due process. Because this claim is based on speculation raised for the first time
on appeal, and because the record demonstrates that the trial court relied on
evidence presented at the hearing, we affirm.
FACTS
In July 2011, the State charged Alexander Nichelin with three counts of
second degree identity theft and one count of second degree possession of
stolen property. 	On February 29, 2012, Nichelin and the State entered into an
Adult Drug Treatment Court (ADTC) agreement. 	Nichelin agreed to submit the
charges to the trial court on a stipulated record for a determination of guilt if he
failed to complete the drug court program. The agreement also states:
I agree that any failure in my treatment program, including, but not
limited to: positive 	urinalysis tests, 	missed tests or out-of-range
urine samples, missed treatment, missed court appearances, any
failure to abide by the terms of this agreement, or commission of a
new crime, may result in modification of the treatment program,
revocation of my pre-trial release, or termination from the ADTC.

No. 70304-8-1 / 2
I must 	follow the 	treatment 	plan 	as 	developed 	by 	the 	ADTC
Treatment Provider.
I agree to abstain from any use or possession of alcohol, drugs, or
drug paraphernalia. 	If any drugs are prescribed for me by a doctor,
I will immediately inform my treatment provider and 	provide the
required documentation.111
Nichelin also signed a statement of ADTC program expectations. 	He
initialed the following paragraphs:
I am 	aware that I will 	be 	expected to abstain from all 	use 	of
alcohol 	and 	other 	drugs, 	except 	medications 	prescribed 	by
dentist or doctor. 	Dentists and doctors must be informed of my
drug 	use history and 	my participation in Drug Treatment Court.
Use of all mind and mood altering medication requires completion
of the ADTC Medication Form prior to use. 	I am aware that all
mind and 	mood 	altering 	substances, 	poppy 	seeds, 	medications
(such as Nyquil) which contains alcohol and products containing
ephedrine (found in sinus and cold allergy meds & an ingredient in
amphetamine and 	methamphetamine) 	are 	not to be 	consumed
while in the program. 	I am aware that I must show any and all
prescribed and over-the-counter medications to have approval from
the ADTC Team before taking them.
I am aware that I must contact the Drug Court Coordinator or my
treatment counselor immediately if I have relapsed. 	My success in
Drug 	Treatment 	Court 	requires 	me 	to 	be 	honest 	about 	any
continued use or relapse.[2]
ADTC coordinators also provide program participants with a handbook
directing them to "be very careful not to ingest," among other things, "'[njatural' or
herbal remedies or supplements," "[o]ver the counter or prescription medicines
without prior approval by [a] treatment provider," and "[a]ny mind or mood altering
substances."3 The handbook continues:
1 Clerk's Papers (CP) at 71-72.
2 Exhibit (Ex.) 8.
3 Ex. 6 at 11.

No. 70304-8-1 / 3
If you 	receive 	a 	positive 	UA [(urinalysis)] 	result 	because 	you
ingested one of the above substances without prior approval, it will
be treated as a positive UA and you will be sanctioned.
Read labels and ask questions before you put a substance in your
body. 	Claiming that you did not know what was in something will
not be 	accepted 	as an 	excuse. 	If you 	receive 	a 	positive 	UA
because 	you 	used 	one 	of the 	above 	and 	failed 	to follow 	the
directions of your treatment counselor or the ADTC team, you will
receive a sanction or be terminated from the program. 	Be aware
of what you are putting into your body. 	If you have questions,
ask your treatment counselor FIRST![4]
In November 2012, 	a 	urinalysis test indicated that 	Nichelin 	had 	used
Kratom. 	The ADTC team decided to terminate Nichelin from the program for (1)
using the substance Kratom, and (2) being dishonest with the team about his use
of Kratom. 	Nichelin requested an evidentiary hearing before a judge who was
not a member of his ADTC team, according to the provisions of the ADTC
agreement.
At a hearing in March 2013, ADTC coordinator Karla Rasmussen testified
that she learns of new drugs and substances through professional conferences
and her contacts with other drug court coordinators and urinalysis specialists.
She testified that "Kratom" is an "addictive" "[m]ind and mood-altering substance"
of which the 	ADTC 	team 	had 	been 	aware 	for two 	years.5 	Rasmussen
acknowledged that Kratom "is currently legal" but claimed "it's on the way to
becoming illegal."6 	Upon hearing rumors from other program participants that
4 Ex. 6 at 11.
5Verbatim Report of Proceedings (VRP) 3/12/13 at 27-28.
6 VRP 3/12/13 at 55.

No. 70304-8-1/4
Nichelin 	"was 	involved 	with 	Kratom," 	Rasmussen 	asked 	the 	urinalysis
department to test him for it.7
According to Rasmussen, when confronted with the positive test, Nichelin
initially said that he had used Kratom six months earlier. 	After she told him that
the test only detects use within three to five days, Nichelin admitted recent use
and explained that "someone in his doctor's office had recommended Kratom to
him as a sleep aid and that he had been having problems sleeping so he took it
for that."8 	Rasmussen also identified letters Nichelin had written to each ADTC
team member apologizing for his dishonesty regarding his use of Kratom.
Rasmussen testified that honesty "is a critical part of the treatment plan,"
and dishonesty "might be the number one reason" participants are terminated.9
She explains to all program participants that there are increasingly serious levels
of dishonesty about continued use or relapse that lead to more serious sanctions.
For example, 	Rasmussen 	noted 	the 	differing levels 	of dishonesty 	between
participants who (1) call the drug coordinator and admit use immediately; (2)
admit use to the technician when providing a sample; (3) admit use after being
confronted with positive test; 	and (4) deny use after being 	confronted with a
positive test.10 	Rasmussen also testified that in her view, lying about use of mind
or mood-altering substances that "fly underneath drug court's radar" because
testing is new, rare, or expensive, is "really egregious" dishonesty.11
7 VRP 3/12/13 at 28.
8 VRP 3/12/13 at 30.
9 VRP 3/12/13 at 34-36.
10 VRP 3/12/13 at 34-35.
11 VRP 3/12/13 at 40-41.

No. 70304-8-1 / 5
Nichelin 	presented two witnesses who testified about his progress 	in
therapy and counseling. 	Nichelin did not present any evidence or testimony to
contradict Rasmussen's testimony.
During closing argument, defense counsel suggested that "no one really
knows at this point" what Kratom is.12 The following exchange occurred:
THE COURT: Would I have the ability to take judicial notice of what
I know of Kratom?
[DEFENSE COUNSEL]: You certainly can. 	And I don't know how
much Mr. Nichelin knew at that time. 	So, Your Honor, I am asking
the Court --
THE COURT: Well, do I have the ability to speculate?
[DEFENSE COUNSEL]: I'd ask the Court not to speculate. 	And I
don't know how much the Court actually does know of Kratom, so
I'd ask if the Court does take judicial notice that it only be facts of
Kratom itself based on some reliable source.113'
At a hearing two days later, the trial court gave its oral ruling. 	Without
mentioning the concept of judicial notice or identifying any source of information
outside 	the 	record, the 	trial 	court found that 	(1) Kratom 	is a 	mood-altering
substance; (2) Nichelin tested positive for use of Kratom; (3) Nichelin knew of the
policies, procedures, and expectations of the ADTC team; (4) Nichelin's honesty
level regarding his use of Kratom was the lowest; and (5) Nichelin should have
considered Kratom a mood-altering substance and requested permission before
using it specifically because it was recommended at his doctor's office for the
express purpose of altering his mood.
12 VRP 3/12/13 at 77.
13 VRP 3/12/13 at 77-78.

No. 70304-8-1 / 6
The trial court entered a written order terminating Nichelin from drug court
for the following reasons: "(1) Consuming Kratom on or about 11/1/2012, [and]
(2) [d]ishonesty to the court regarding use of Kratom."14 	After finding Nichelin
guilty of the original 	charges based on the stipulated 	record, 	the trial 	court
imposed a standard range sentence.
Nichelin appeals.
ANALYSIS
When seeking to terminate an individual's participation in drug court, the
State must prove non-compliance with the drug court diversion agreement by a
preponderance of the evidence. 	State v. Varnell. 137 Wn. App. 925, 929, 155
P.3d 971 (2007) (quoting State v. Marino, 100 Wn.2d 719, 725, 674 P.2d 171
(1984)). 	In 	drug 	court termination 	proceedings, 	drug 	court participants 	are
entitled to the same minimal due process rights required in proceedings involving
alleged probation, parole, or conditions of sentence violations. 	State v. Cassill-
Skilton. 	122 Wn. 	App. 	652, 	656-58, 	94 	P.3d 407 	(2004). 	Revocation 	of a
suspended sentence or deferred disposition 	rests within the discretion of the
court. 	State v. Badger, 64 Wn. App. 904, 908, 827 P.2d 318 (1992); State v. J .A.,
105 	Wn. 	App. 	879, 	887, 	20 	P.3d 	487 	(2001) 	(juvenile 	offender 	deferred
disposition). 	A decision to terminate 	participation 	in 	a drug 	diversion 	court
requires 	a 	similar 	exercise 	of 	discretion. 	We 	therefore 	review 	Nichelin's
termination from drug court under an abuse of discretion standard.
In Cassill-Skilton, the court held that the State could not terminate drug
court participation without (1) giving the defendant an opportunity to contest the
14 CP at 55.

No. 70304-8-1 / 7
basis of the termination and (2) creating a record of the evidence relied on to
terminate participation. 	122 Wn. App. at 658. 	Nichelin does not dispute that he
received notice of the alleged violations and had an opportunity to be heard in a
recorded proceeding.
Nichelin first contends that the State failed to present any evidence that
Kratom 	is 	a 	mind 	or 	mood-altering 	substance 	other 	than 	Rasmussen's
"unsubstantiated opinion."15 	But after Nichelin's initial objection regarding the
foundation of Rasmussen's knowledge of Kratom, she identified her sources of
information and 	her 	experience attempting 	to detect and 	prevent its use 	by
program participants. 	Rasmussen then repeated her opinion of Kratom. 	Nichelin
did not object or present any evidence to contradict her testimony. 	And Nichelin
did not dispute Rasmussen's report that Nichelin himself admitted that he took
Kratom based on advice from his doctor's office to use it as a sleep aid. 	The
court had discretion to accept or reject Rasmussen's opinion of Kratom, and it did
not abuse its discretion by ruling as it did. 	We do not review the trial court's
determinations as to persuasiveness, 	credibility, and weight of the evidence.
See State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Next, for the first time on appeal, Nichelin contends that the trial court
erred by taking judicial notice of facts reasonably subject to dispute, specifically,
that Kratom is a mind or mood-altering substance. 	Nichelin claims that the court
"appeared to rely on what it knew about Kratom and its own 'cursory search' on
the [l]nternet."16 	But the record does not establish that the trial court actually took
15 Brief of Appellant (Br. of App.) at 19.
16 Br. of App. at 20.

No. 70304-8-1 / 8
judicial notice of any fact or consulted any outside resource, on the Internet or
otherwise. 	Nichelin relies on statements in the oral ruling that could refer merely
to the evidence presented at the hearing and reasonable inferences from that
evidence. 	Because Nichelin did not object, request clarification, or dispute the
factual basis for the findings regarding Kratom below, the trial court had no
opportunity to address this concern. 	We therefore decline to speculate whether
the trial court consulted information outside the record and will not consider the
issue for the first time on appeal. 	See State v. Scott. 110 Wn.2d 682, 685, 757
P.2d 492 (1988); RAP 2.5(a).17
Moreover, we reject Nichelin's related argument that the trial court failed
to clearly state the evidence upon which it relied to determine that Kratom is a
mind-altering 	substance. 	The 	trial 	court's 	findings 	are 	consistent 	with
Rasmussen's 	uncontroverted testimony, 	the 	only evidence 	presented 	at the
hearing regarding Kratom. 	And the court explicitly relied on the fact that "the
doctor's office made the recommendation for the express purpose of changing
his mood, i.e., to deal with his anxiety," to find that Nichelin should have known
Kratom was a mood-altering substance and requested approval before using it.18
Because the record demonstrates that the trial court had ample basis to find that
Kratom 	is a 	mood-altering 	substance 	by 	a preponderance of the evidence
presented at the hearing, and because the trial court explicitly relied on that
17 We also deny Nichelin's motion for this court to consider materials downloaded from
the Internet to demonstrate that a "cursory search" would reveal that the purported mind-
altering effects of Kratom are reasonably subject to dispute. 	Because the record
demonstrates that the trial court considered and relied upon the evidence presented at
the hearing, we need not resolve the question of whether outside sources dispute the
effects of Kratom.
18 VRP 3/14/13 at 5.
8

No. 70304-8-1 / 9
evidence, Nichelin fails to establish a violation of his right to due process. 	See
Marino. 	100 Wn.2d at 726-27 (where factual disputes are resolved and trial
court's decision is based on the evidence, due process is satisfied).
In his statement of additional grounds for review, Nichelin claims that he
was treated differently by drug court officials after he reported being sexually
assaulted by a laboratory employee while producing a sample for a urinalysis test.
He suggests that their knowledge of his potential lawsuit against the laboratory
contributed to the ADTC team's initial decision to terminate him from the program.
Because 	Nichelin 	relies 	on 	matters 	outside the 	record, 	a 	personal 	restraint
petition is the appropriate means to raise such issues. 	State v. McFarland, 127
Wn.2d 322, 338, 899 P.2d 1251 (1995).
Affirmed.
WE CONCUR: