Opinion
No. 52199-3-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 01-1-01836-6. Judgment or order under review. Date filed: 04/07/2003. Judge signing: Hon. Richard J Thorpe.
Counsel for Appellant/Cross-Respondent, Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric Broman, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent/Cross-Appellant, Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave, Everett, WA 98201-4061.
Kristi LaPlant appeals the computation of her offender score arguing that her convictions for possession of methamphetamine and unlawful use of a building for drug purposes were the same criminal conduct. But it was within the discretion of the sentencing court to conclude that, objectively viewed, LaPlant's criminal purpose in knowingly allowing others access to a residence to conduct a methamphetamine operation varied from her criminal purpose in simply possessing methamphetamine within the residence. Because the trial court did not abuse its discretion in concluding that the two crimes were not the same criminal conduct, the judgment and sentence is affirmed.
FACTS
Kristi LaPlant met with a rental agent and applied to rent a residence in Lake Stevens. Both Kristi and her husband, Anthony LaPlant, signed the lease, but only Kristi viewed the home and participated in the meetings with the rental agent. On numerous occasions Kristi LaPlant paid the rent in person with cash.
After making controlled buys of methamphetamine at the residence, police executed a search warrant and found Kristi LaPlant inside the residence holding a pot of noodles and controlling some dogs. Police found methamphetamine, items used to manufacture methamphetamine and drug paraphernalia in a computer room constructed in the garage. Two totes in the bathroom located in the garage contained items associated with manufacturing methamphetamine, including chemicals and a respirator. In one bedroom, police found a box with a large amount of empty packaging that had contained ephedrine based products used in the manufacture of methamphetamine. In the living room, police found other packaging materials.
In the master bedroom, police found paraphernalia used for smoking crack cocaine or methamphetamine. In a closet, police found an electronic scale with residue on it, baggies with white powder suspected to be methamphetamine and a glass jar filled with approximately one-quarter pound of methamphetamine. A briefcase in the closet contained pills, residue, mail addressed to Kristi and Anthony LaPlant and $1,800.00. A day planner bearing Kristi LaPlant's name was located next to the bed. There was also other paperwork in the bedroom with Kristi LaPlant's name. Some of the mail was addressed to the Lake Stevens home and some to another address. The closet in the bedroom contained only men's clothing and police did not report any women's clothing in the house.
Anthony LaPlant pleaded guilty to possession of methamphetamine with intent to manufacture or deliver. Kristi LaPlant was charged with simple possession of methamphetamine and with knowingly making a building available to others for drug purposes. At trial, her defenses included her contention that she and her daughter resided at a different location and she did not have control of the Lake Stevens residence. In the alternative, she argued that any possession was unwitting. The jury found her guilty of both crimes.
RCW 69.53.010(1) provides:
"It is unlawful for any person who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, to knowingly rent, lease, or make available for use, with or without compensation, the building, room, space, or enclosure for the purpose of unlawfully manufacturing, delivering, selling, storing, or giving away any controlled substance. . . ."
At sentencing, Kristi LaPlant argued that her current convictions for simple possession and for unlawful use of a building for drug purposes were "same criminal conduct" and that her offender score should only be one. The prosecutor argued that the two crimes did not include the same intent and that the two crimes had different victims. The court ruled that the two crimes were not same criminal conduct and imposed the standard range sentence, scoring one point for each offense.
DECISION
In calculating a defendant's offender score, each concurrent offense is counted separately, unless the sentencing court finds that they `encompass the same criminal conduct.' Offenses encompass the same criminal conduct when they are committed against the same victim, at the same time and place, and require the same objective criminal intent. We review a trial court's determination regarding same criminal conduct for abuse of discretion or misapplication of law.
former RCW 9.94A.400(1)(a).
former RCW 9.94A.400(1)(a).
State v. Maxfield, 125 Wn.2d 378, 402, 886 P.2d 123 (1994).
Regarding criminal intent, LaPlant argues that her unwitting possession affirmative defense put her knowledge of the presence of the methamphetamine in the house at issue. Use of a building for drug purposes requires "knowingly" making a building available to others for drug purposes. Therefore, LaPlant contends the same "knowing" mental state was at issue for both convictions. But even assuming that the intent "elements" for both crimes were congruent, the sentencing court also objectively views whether the offender committed the crimes for different purposes. Where the facts can support different purposes for each crime, then the sentencing court has the discretion to conclude that the defendant did not have the same intent.
State v. Sigman, 118 Wn.2d 442, 448, 826 P.2d 144 (1992).
State v. Haddock, 141 Wn.2d 103, 112-13, 3 P.3d 733 (2000) ("the intent inquiry also focuses on the extent to which the offender's `criminal intent, as objectively viewed, changed from one crime to the next.' State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237, 749 P.2d 160 (1987). Thus, counts with identical mental elements, if committed for different purposes, would not be considered the `same criminal conduct.'").
State v. Rodriguez, 61 Wn. App. 812, 816, 812 P.2d 868 (1991) (where facts are sufficient to support either finding the same criminal conduct or finding separate offenses, then the matter lies within the trial court's discretion and an appellate court will defer to the trial court's determination).
It was within the discretion of the sentencing court to conclude that, objectively viewed, LaPlant's criminal purpose for knowingly making the residence available for others to conduct a methamphetamine operation varied significantly from her purpose for simple possession of the methamphetamine in the residence, where paraphernalia for smoking methamphetamine was also located. Therefore, it was not an abuse of discretion to conclude that the two crimes were not the same criminal conduct for lack of same criminal intent.
State v. Hernandez, 95 Wn. App. 480, 484, 976 P.2d 165 (1999) ("Objectively viewed, the criminal purpose of simple possession is to have the narcotics available and under the control of the possessor to use as he or she sees fit." citation omitted); Cf. Maxfield, 125 Wn.2d at 402-03 (manufacturing marijuana and possessing marijuana with intent to deliver do not constitute the same criminal conduct, because one objective intent to produce the marijuana, while the other objective intent is to deliver it to third persons).
We decline to address the argument whether the two crimes had different victims.
Finally, in her statement of additional authorities, LaPlant points to portions of the transcript and exhibits consistent with her theory that she did not live at the Lake Stevens residence and that she did not know of the methamphetamine operation. But the sufficiency of the evidence to support her convictions requires that the entire record be viewed in a light most favorable to the State with all favorable inferences. Sufficient evidence beyond a reasonable doubt supports her constructive possession of the methamphetamine found in the master bedroom and that she knowingly made space available to others to conduct the methamphetamine operation. LaPlant also notes she is currently caring for her disabled son, but such current developments are beyond the scope of this appeal.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980).
The judgment and sentence is affirmed.
Affirm.
APPELWICK and BECKER., JJ., concur.