Opinion
No. 56621-1-I.
March 12, 2007.
Appeal from a judgment of the Superior Court for Skagit County, No. 05-1-00202-5, Susan K. Cook, J., entered July 1, 2005.
Counsel for Appellant(s), Nielsen Broman Koch PLLC, Attorney at Law, 1908 E Madison St, Seattle, WA, 98122.
Jennifer M Winkler, Nielson, Broman Koch, PLLC, 1908 E Madison St, Seattle, WA, 98122-2842.
Joseph Anthony Daub — Info Only (Appearing Pro Se), 8166 83rd Ave Ne, Marysville, WA, 98270.
Counsel for Respondent(s), Erik Pedersen, Attorney at Law, Skagit Co Prosc Atty Ofc, 605 S 3rd St, Mount Vernon, WA, 98273-3867.
Affirmed by unpublished per curiam opinion.
Joseph Daub was convicted on five counts of drug related offenses. He appeals his sentence, and challenges the sufficiency of evidence relating to the charge of keeping or maintaining a drug house. We affirm because the evidence was sufficient, and the trial court properly calculated Daub's offender score.
I.
In February 2005, Sarah Farlow spent several weeks living with her friend, Sunshine Manderle. During that time, Farlow witnessed co-resident Joseph Daub gathering, preparing, cooking and extracting methamphetamine on several occasions. Daub enlisted Farlow's help, asking her to buy the cold medicines needed for manufacture. Manderle's two-year old child was also living in the apartment during this period. Farlow called police and reported an "active meth lab" and mentioned the presence of a baby. Farlow agreed to help the police, and organized a purchase of methamphetamine between Daub and an undercover police officer. Another officer surveilled the apartment and witnessed various people coming and going, many of whom appeared under the influence.
Farlow and Manderle's mother both testified that Daub lived in the apartment from early February until his arrest on March 11.
Report of Proceedings (RP) (May 19, 2005) at 601.
Daub and Manderle were arrested, and the baby was removed and placed with foster parents. The baby's urine tested positive for methamphetamine, amphetamine, and caffeine. An expert in clandestine laboratories who managed the scene after the arrests testified that many items used to manufacture methamphetamine were stored throughout the apartment.
Daub was charged with: manufacture of a controlled substance (with minor present and school zone enhancements); possession of ephedrine with intent to manufacture methamphetamine (with minor present and school zone enhancements); conspiracy to manufacture methamphetamine; maintaining a premises for drug trafficking; and endangerment with a controlled substance. He was convicted on all five counts and both of the school zone enhancements. The jury answered "no" to the minor on the premises enhancement with respect to the manufacturing charge, and "yes" to the minor on the premises enhancement with respect to the possession charge. Daub appeals his conviction on maintaining a premises for drug trafficking, and also raises several issues relating to his sentence.
II.
Daub challenges his offender score on several grounds, including merger, same course of criminal conduct, and the trial court's determination of his community placement status.
Although the State anticipated a challenge to the court's decision to run the school zone and child endangerment offenses consecutively, Daub does not raise it.
Merger
The merger doctrine is a tool of statutory construction used to determine whether the legislature intended multiple punishments for a single act which violates more than one statutory provision. The doctrine applies only where the legislature has clearly indicated that in order to prove a particular degree of crime (e.g., first degree rape) the State must prove not only that a defendant committed that crime, but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes (e.g., assault or kidnapping).
State v. Louis, 155 Wn.2d 563, 570-571, 120 P.3d 936 (2005).
Daub argues that the enhancement for possession with intent to manufacture in the presence of a person under 18 years merges with the endangerment conviction. We disagree. Neither crime is defined as an element of the other. The enhancement for the presence of a minor prohibits possession of methamphetamine or ingredients with a minor in or upon the premises of manufacture:
In a criminal case where:
(1) The defendant has been convicted of (a) manufacture of a controlled substance under RCW 69.50.401 relating to manufacture of methamphetamine; or (b) possession of ephedrine or any of its salts or isomers or salts of isomers, pseudoephedrine or any of its salts or isomers or salts of isomers, pressurized ammonia gas, or pressurized ammonia gas solution with intent to manufacture methamphetamine, as defined in RCW 69.50.440; and
(2) There has been a special allegation pleaded and proven beyond a reasonable doubt that the defendant committed the crime when a person under the age of eighteen was present in or upon the premises of manufacture; the court shall make a finding of fact of the special allegation, or if a jury trial is had, the jury shall, if it finds the defendant guilty, also find a special verdict as to the special allegation.
RCW 9.94A.605.
"Premises" is not defined in the statute, but Black's Law Dictionary defines it as "A house or building, along with its grounds." For a violation to occur, the child need not be in the same building, let alone the same room, where manufacture or possession takes place.
Black's Law Dictionary 1219 (8th ed. 2004).
The endangerment statute prohibits any person from exposing a child to methamphetamine or its components:
A person is guilty of the crime of endangerment with a controlled substance if the person knowingly or intentionally permits a dependent child or dependent adult to be exposed to, ingest, inhale, or have contact with methamphetamine or ephedrine, pseudoephedrine, or anhydrous ammonia, including their salts, isomers, and salts of isomers, that are being used in the manufacture of methamphetamine, including its salts, isomers, and salts of isomers. Endangerment with a controlled substance is a class B felony.
"Exposed" is not defined in the statute, but means made "accessible to something that may prove detrimental."
Webster's third new int'l dictionary, 802 (1993). "Exposure" in Black's Law Dictionary refers to legal exposure, not physical exposure. Black's, supra, at 620.
The endangerment statute does not require that the person exposing the child to methamphetamine also be the possessor of the substance. Any person who exposes a child, whether or not he is the possessor, is culpable. Therefore, the legislature has not made possession of methamphetamine on the premises of manufacture while a child is present an element of the endangerment statute.
Conversely, exposure, ingestion, inhalation, or contact with methamphetamine by a child is not an element of the possession with a child present statute. If manufacture is taking place in a large building or compound, and the child is far away, the child might be on the premises without suffering exposure, ingestion, inhalation, or contact.
The legislature has not clearly indicated that the State must first prove possession with a minor on the premises as an element of endangerment with a controlled substance. The two statutes do not merge.
Whether, on the facts of this case, Daub could have violated one statute without also violating the other is irrelevant. That is the "same evidence" test, which applies only to double jeopardy challenges. Louis, 155 Wn.2d at 569.
Same Course of Criminal Conduct
Crimes encompass the same criminal conduct, and may not be punished separately, if they involve the same criminal intent, affect the same victim, and were committed at the same time and place. The trial court's determination on this issue is upheld unless the court abused its discretion or misapplied the law. Daub was convicted of manufacturing, possession with intent to manufacture, and conspiracy to manufacture methamphetamine. He argues that those three crimes encompass the same criminal conduct.
State v. Deharo, 136 Wn.2d 856, 858, 966 P.2d 1269 (1998).
State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000).
Although the State concedes that the crimes all affect the same victim, society at large, and the same criminal intent, manufacturing methamphetamine, it contends that Daub committed each crime at a different time. The State is correct. Although Daub's overall criminal scheme was to manufacture methamphetamine, there was ample evidence that Daub committed the charged crimes either with separate intent, at separate times, or both.
This may be an improper concession. The State seems to be conflating Daub's objective criminal intent in committing each crime with the overarching goal of the criminal enterprise. However, because the State is correct that each occurred at different times, the point is moot.
Two cases that illustrate the time distinction are State v. Deharo and State v. Burns, which both involve prosecutions for multiple drug charges. In Deharo, two defendants were arrested in the midst of a series of heroin sales. Based solely on their possession of six bindles of heroin at the time of arrest, they were convicted of conspiracy to deliver and possession with intent to deliver heroin. Deharo argued that the two counts encompassed the same criminal conduct, and our Supreme Court agreed. The court concluded that the "`objective' intent underlying the two charges is the same — to deliver the heroin" in their possession. The court also noted that the analysis might differ if there were a time distinction, that is, evidence that Deharo intended to deliver some heroin now and some later. But because there was unity of intent, time, place, and victim, the two charges were considered the same course of criminal conduct for sentencing purposes. In Burns, there was evidence of actual delivery of some cocaine in the present, and possession with intent to deliver different cocaine in the future. This time distinction was a sufficient basis for the trial court to find separate courses of criminal conduct.
136 Wn.2d 856, 966 P.2d 1269 (1998).
114 Wn.2d 314, 788 P.2d 531 (1990).
Deharo, 136 Wn.2d at 857.
Deharo, 136 Wn.2d at 857-59.
Deharo, 136 Wn.2d at 859.
Deharo, 136 Wn.2d at 859.
Deharo, 136 Wn.2d at 858-59.
Burns, 114 Wn.2d at 318-19.
Burns, 114 Wn.2d at 318-19.
Here, the trial court distinguished Daub's three acts based on time and intent. Between the manufacture of methamphetamine and possession of ephedrine, the court made a time-based distinction:
The manufacture of methamphetamine, Mr. Daub, is something that is an accomplished act. . . . It was a done deal. The possession of ephedrine with intent to manufacture is something that you plan to do in the future. It's different conduct.
RP (July 1, 2005) at 41.
This conclusion is supported by substantial evidence in the record and uses the same reasoning followed by the court in Burns. The conspiracy here was completed at a time separate from the possession and manufacture, unlike the consipracy in Deharo. It was not proven by mere possession of methamphetamine ingredients, but by evidence that Daub instructed other people to actively seek the ingredients. Although this proves a different objective criminal intent, it is also a time-based distinction. His instruction to conspirators to go out and seek the ingredients was complete before Daub actually possessed the ingredients or manufactured the amphetamine.
Daub's convictions were not based on an isolated incident, but on a series of different crimes that lasted many weeks. There is evidence in the record that all three crimes occurred at separate times. The trial court did not abuse its discretion or misapply the law when it concluded that the crimes encompassed separate courses of criminal conduct.
Community Placement
Daub argues that under Blakely v. Washington, the fact of his community placement status at the time of his offense should have been found by a jury, not by the trial court. When Daub's sentencing occurred, our ruling in State v. Jones was in effect. In that case, we held that Blakely applied, and that community placement status must be found beyond a reasonable doubt by a jury. However, other divisions of this court disagreed. Our Supreme Court has since reversed our ruling in Jones and held that community placement status falls under the prior convictions exception to Blakely. Daub's argument fails.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
126 Wn. App. 136, 107 P.3d 755 (2005).
Jones, 126 Wn. App. at 139.
State v. Hochalter, 131 Wn. App. 506, 524, 128 P.3d 104 (2006) (Div. Two follows Div. One's Jones); State v. Giles, 132 Wn. App. 738, 739, 132 P.3d 1151 (2006) (another panel of Div. Two declines to follow Jones, noting disagreement with Hochalter); State v. Brown, 128 Wn. App. 307, 314-15, 116 P.3d 400 (2005) (Div. Three declines to follow Jones).
State v. Jones, 159 Wn.2d 231, 240-41, 149 P.3d 636 (2006).
In the alternative, Daub contends that his counsel was ineffective for failing to raise this court's decision in Jones at sentencing. We are inclined to agree that failure to raise Jones and/or Blakely at Daub's sentencing was error amounting to ineffective assistance. Although the issue was controversial, it should have been argued. However, the error has become moot. Because this court's decision in Jones was reversed, and the reversal applies retroactively, the trial court would not be required to submit the community placement question to a jury on remand.
In re Pers. Restraint of VanDelft, 158 Wn.2d 731, 737, 147 P.3d 573 (2006) (new rule for conduct of criminal prosecutions applies retroactively to cases not yet final).
Sufficiency of Evidence
Finally, Daub argues that there was insufficient evidence to convict him of keeping or maintaining a drug premises under RCW 69.50.402(1)(f).
The statute makes it a crime:
Knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place, which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.
Daub concedes that the evidence supports a conclusion that sale, storage, and use by others all occurred at the Woodworth apartment. He argues, however, that there was no evidence he ever lived there, that at best he was "essentially a guest of the apartment."
Evidence is sufficient to support a conviction if, viewed in a light most favorable to the prosecution, it permits a rational factfinder to find the elements of the crime beyond a reasonable doubt. In State v. Fernandez, a jury was entitled to find that Fernandez kept or maintained premises, because witnesses testified that he lived there. This was true even though Fernandez's name did not appear on the lease, and he denied being a resident.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
State v. Fernandez, 89 Wn. App. 292, 295-300, 948 P.2d 872 (1997).
Fernandez, 89 Wn. App. at 295.
Here, Manderle's mother testified that Daub was living at the apartment from February to March, that she saw him there frequently and that he answered the phone more than half the time when she called. Farlow, who was living in the apartment at the time, corroborated this testimony. Farlow also witnessed ongoing manufacturing, storage, and use of methamphetamine over several weeks. Detective Fuller testified Daub referred to the apartment as his place, and that Daub admitted he "typically" used the residence for extracting. Daub's stay at the apartment was short-lived, but the jury was entitled to find that during his stay he kept and maintained it as a drug house.
AFFIRMED.
COLEMAN and APPELWICK, JJ., concur.