Opinion
Nos. 35357-1-II; 35369-5-II.
September 9, 2008.
Appeals from a judgment of the Superior Court for Pierce County, No. 05-1-04222-4, John R. Hickman, J., entered September 22, 2006.
In this consolidated case, Rachelle Birdsong appeals her convictions as an accomplice to unlawful manufacturing of methamphetamine while armed with a deadly weapon, as an accomplice to unlawful possession of methamphetamine, second degree unlawful possession of a firearm, and tampering with physical evidence. She challenges the sufficiency of the State's evidence and the trial court's admission of certain evidence. Rick Judge also appeals his convictions as an accomplice to unlawful manufacturing of methamphetamine while armed with a deadly weapon and as an accomplice to unlawful possession of methamphetamine. He asserts that the trial court erred in admitting statements he made in the police officers' presence, in admitting evidence from a search of his home, and in its CrR 3.5 and CrR 3.6 rulings. He also challenges the community custody provisions of his sentence and alleges that the prosecutor committed misconduct. We affirm Birdsong's convictions. We affirm Judge's convictions and sentences but remand to correct only Judge's community placement conditions by vacating the alcohol treatment and counseling provisions.
FACTS
On August 28, 2005, Puyallup police officers, Rochelle Brosseau and Douglas Kitts, went to Rick Judge's home because a neighbor complained about a suspicious odor coming from Judge's house. As Brosseau and Kitts approached the house, they noticed that the garage door was rolled open approximately six inches and a clear liquid was flowing out of the garage. Brosseau heard noises in the garage and knocked on the garage door, but no one responded. Then Brosseau and Kitts approached the front door and smelled a strong odor of ammonia. Although Brosseau and Kitts knocked on the front door and rang the doorbell, no one responded. Brosseau returned to the garage and peered through a crack between the panels of the door. She saw Judge, recognized him, and asked him to come outside to speak with her. Judge asked, "Why?" and went into the house. Report of Proceedings (RP) (Aug. 17, 2006) at 321. When she peered into the garage, Brosseau also saw two hand-held torches and two large, opened cans of paint thinner.
Judge eventually came to the front door and the officers explained that they were investigating a suspicious chemical odor. Judge told them that he was painting. Because the officers continued to smell ammonia, they were concerned about being overcome by fumes and asked Judge to step away from the door to speak with them. Judge complied but did not allow the officers to enter his home. In response to the officers' questions, Judge explained that his girlfriend, Birdsong, was asleep inside. The officers did not allow Judge to go into the house and asked him if they could enter to retrieve his girlfriend but Judge refused their request. Judge then called the house phone, leaving messages for Birdsong to alert her that she needed to come outside, that police were present, and that the police were going to obtain a search warrant. She did not come outside.
Brosseau walked through a neighbor's front yard and, down a path along the side of the house to a side yard. From there, she could see Judge's backyard over a shorter portion of the neighbor's fence that came to the height of her chest. She saw Birdsong throwing a red gas container into the blackberry brambles. She then ran around to the front of Judge's home, alerted the officers that Birdsong was throwing evidence into the bushes, and went to Judge's backyard. Kitts ran to the backyard gate and saw Birdsong throwing a gas container off the home's deck. Brosseau entered the backyard and saw a pile of ice on the ground. Officer Steven Pigman, a member of the Puyallup Police Department methamphetamine laboratory team, also entered Judge's backyard. He also observed the two gas containers. Brosseau again peered through the garage door crack and saw Birdsong sprinkling carpet freshener on the carpet in the house. Brosseau told Birdsong to come out but she refused and went back into the interior of the house. Brosseau, Pigman, and Kitts went to the front door, opened it, and pulled Birdsong out of the house.
After donning protective clothing, Pigman returned to the backyard and opened the gas can containers, finding wet, white fertilizer pellets that later were tested by the Washington State Crime Laboratory and found to contain ammonium sulfate. The officers then obtained a search warrant and found materials in the garage that could be used to manufacture methamphetamine. They also found surveillance equipment in the garage, methamphetamine in the kitchen, and loaded weapons in the living room.
The police officers testified that it was likely that Birdsong and Judge were producing methamphetamine using the Birch reduction method. This method of manufacturing methamphetamine involves three phases. In the first phase, a methamphetamine cook extracts pseudoephedrine or ephedrine usually from cold or allergy medication tablets containing these ingredients. The cook must grind up the tablets and dissolve them in a solvent, such as alcohol or paint thinner. A methamphetamine cook may use equipment to speed the extraction phase, such as a blender, coffee grinder, or hand-held torches. Then the cook filters the solution, typically through a coffee filter, and captures the pure pseudoephedrine.
In the second phase, the person reduces the pseudoephedrine to methamphetamine. In the Birch reduction method, this is done by using sodium or lithium metal and anhydrous ammonia. Methamphetamine cooks can obtain lithium metal by taking apart lithium batteries and harvesting the metal. Anhydrous ammonia is not readily available so methamphetamine cooks will attempt to make it themselves.
"Anhydrous means absence of water." 5 RP at 556.
So usually they distill ammonia out of ammonium sulfate, ammonia nitrate, sodium hydroxide, Red Devil lye, add a few drops of water in it. It will start creating ammonia gas, and they cool the ammonia gas with ice, dry ice, anything to cool that down to where it distills out the end of the tube and becomes distilled ammonia, and they are able to use that distilled ammonia to manufacture" or to reduce the pseudoephedrine and the lithium metal into methamphetamine.
RP (Aug. 22, 2006) at 556. Because fertilizer contains ammonium sulfate, methamphetamine cooks may use fertilizer in place of pure ammonium sulfate. After the second phase, the methamphetamine is in a liquid form and the methamphetamine cook must convert it to a powder or crystal form.
In the third phase, the most common way of converting the methamphetamine liquid to a powder or crystal is by use of a hydrochloric acid gas generator. The cook dissolves the methamphetamine liquid in a solvent such as acetone, toluene, or xylene and then generally places the liquid methamphetamine and solvent in a container with rock salt and sulfuric or muriatic acid, which forms a gas and the methamphetamine then begins to fall out of solution. The cook then filters the solution and saves the powder or crystal form of methamphetamine.
In Judge's garage trash can, officers found empty blister package containers sufficient to hold at least 96 tablets of pseudoephedrine cold medicine. Those 96 tablets would have contained in total 300 milligrams of pseudophedrine. Officers also found coffee filters with a starch binder residue on them, clean coffee filters, funnels, an empty package of lithium batteries, fertilizer pellets in gas cans, ice, an empty Red Devil lye bottle, tubing attached to a mason jar lid that could have been part of a hydrochloride acid generator, xylene, a gas mask, latex gloves, and digital scales. And Puyallup police officer, Lieutenant Dalan Brokaw, testified that his "assessment of the evidence was there was all the evidence required to manufacture . . . methamphetamine" at Judge's home. RP (Aug. 22, 2006) at 586.
The State charged both Birdsong and Judge as accomplices to unlawfully manufacturing methamphetamine while armed with a deadly weapon (count I), unlawful possession of pseudoephedrine and/or ephedrine with the intent to manufacture methamphetamine (count II), and unlawful possession of methamphetamine (count III). The State also charged Birdsong with second degree unlawful possession of a firearm (count IV), and tampering with physical evidence (count V). At CrR 3.5 and CrR 3.6 hearings, the trial court ruled that Judge's statements to the police were admissible and that no evidence would be suppressed. Judge's and Birdsong's first trial resulted in a mistrial. At the second trial, Judge stipulated that the statements they made to police were admissible and they did not challenge the trial court's original CrR 3.6 ruling. The jury found Birdsong and Judge guilty as accomplices on counts I and III. It returned guilty verdicts on counts IV and V against Birdsong. The jury also found that both Birdsong and Judge were armed with a firearm at the time of the commission of the crime charged in count I.
At the State's request, the trial court dismissed count II against both Birdsong and Judge. Although the State requested the dismissal without prejudice, the trial court dismissed both counts with prejudice. The State does not cross appeal dismissal of count II.
The trial court sentenced Birdsong to concurrent sentences of 78 months on count I, 18 months on count III, and 16 months on count IV, and it added an additional 36 consecutive months to her sentence based on the jury's special firearm verdict, for a total of 114 months' confinement. The trial court sentenced Judge to concurrent sentences of 51 months on count I and 6 months on count III, and it added an additional 36 consecutive months to his sentence based on the jury's special firearm verdict, for a total of 87 months' confinement. The trial court also ordered Judge to complete alcohol and drug treatment as part of his community custody conditions.
The trial court also sentenced Birdsong to 365 days in the Pierce County jail for her conviction on count V, a gross misdemeanor. RCW 9A.72.150(3) ("Tampering with physical evidence is a gross misdemeanor.").
Birdsong and Judge appeal.
ANALYSIS
I. Admission of Evidence
Birdsong argues that the trial court abused its discretion in admitting the evidence of an advertisement addressed to Birdsong at Judge's home because it was hearsay. The State argues that the mail addressed to Birdsong at Judge's residence is not hearsay because the address was not a written assertion.
We agree with the State. We review the trial court's admission of evidence for an abuse of discretion. State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001). "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER 801(c). And "[a] 'statement' is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion." ER 801(a).
The rule itself does not differentiate between express and implied assertions. However, the advisory committee's notes to Fed.R.Evid. 801 expressly exclude implied assertions from the hearsay rule. "[V]erbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted [is] excluded from the definition of hearsay". Fed.R.Evid. 801 advisory committee's note to subdivision (a); United States v. Zenni, 492 F. Supp. 464, 469 (E.D. Ky. 1980). "The key to the definition is that nothing is an assertion unless intended to be one." Fed.R.Evid. 801 advisory committee's notes to subdivision (a). A person does not normally intend to assert an implied belief.
State v. Collins, 76 Wn. App. 496, 499, 886 P.2d 243 (1995) (alteration in original). Furthermore, if statements are "simply 'verbal acts[,]' their significance lay[s][sic] not in the truth of any matter asserted therein but in the fact that they were made." State v. Gillespie, 18 Wn. App. 313, 315, 569 P.2d 1174 (1977).
Here, the trial court admitted evidence of a Similac Welcome Addition Club mailer addressed to Birdsong at Judge's home address. The company did not address its mailer for the assertion that Birdsong lived at the residence. Rather, at best, the envelope expressed the company's implied belief that Birdsong resided at the residence. See Collins, 76 Wn. App. at 499. Therefore, we hold that the trial court did not abuse its discretion in admitting this piece of mail that the police found in the trash in the garage.
"Similac" is the brand name for numerous types of baby formula manufactured by Abbott Laboratories. See Abbott Nutrition, http://abbottnutrition.com/products/index.aspx (last visited July 25, 2008).
II. Sufficient Evidence
Birdsong argues that the evidence is insufficient to find her guilty of the charged crimes. We disagree.
A. Standard of Review
Evidence is sufficient to support the defendant's conviction if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the light most favorable to the State. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). "When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). And "[c]riminal liability applies equally to a principal and an accomplice because they share equal responsibility for the substantive offense." State v. Trout, 125 Wn. App. 403, 409, 105 P.3d 69 (2005). We view both circumstantial and direct evidence as equally reliable and do not review credibility determinations on appeal because we "defer to the trier of fact on issues of conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence." Thomas, 150 Wn.2d at 874-75.
B. Accomplice to Manufacture of Methamphetamine
Birdsong argues that the State produced insufficient evidence to convict her as an accomplice to manufacturing methamphetamine because (1) the State did not prove methamphetamine was being manufactured in Judge's home because the officers did not find evidence that the first, second, or third phase of the Birch reduction method of methamphetamine production was ongoing; and (2) even if the State proved methamphetamine was being manufactured there, it did not produce sufficient evidence that Birdsong associated herself with the manufacture of methamphetamine and, therefore, she cannot be an accomplice to its manufacture.
First, we address the proof that methamphetamine was being produced in Judge's residence. The law enforcement officers testified that it was likely that Birdsong and Judge were producing methamphetamine using the Birch reduction method. And the officers found numerous items associated with all three phases of the reduction method of methamphetamine manufacturing in Judge's garage, including: empty blister package containers for pseudoephedrine cold medicine, coffee filters with a starch binder residue on them, clean coffee filters, funnels, an empty package of lithium batteries, fertilizer pellets in gas cans, ice, an empty Red Devil lye bottle, tubing attached to a mason jar lid that could have been part of a hydrochloride acid generator, xylene, a gas mask, latex gloves, and digital scales. All these items are commonly found in a methamphetamine laboratory. Viewing the evidence in the light most favorable to the State, we hold that the State produced sufficient evidence to prove that methamphetamine manufacture was occurring in Judge's residence. See Thomas, 150 Wn.2d at 874-75.
Next, Birdsong argues that even if we find that the State produced sufficient evidence to prove that methamphetamine was being manufactured in Judge's residence, it did not produce sufficient evidence that she was an accomplice to the methamphetamine manufacture.
A person is an accomplice of another person in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the commission of the crime, he
(i) solicits, commands, encourages, or requests such other person to commit it; or
(ii) aids or agrees to aid such other person in planning or committing it; or
(b) His conduct is expressly declared by law to establish his complicity.
RCW 9A.08.020(3). "To be found guilty as an accomplice, the State had to show that [Birdsong] aided [another] in his manufacturing endeavors." State v. Gallagher, 112 Wn. App. 601, 613, 51 P.3d 100 (2002).
Here, there was both direct and circumstantial evidence of Birdsong's complicity. She was present when the police arrived, slept in the home, and received some mail there. In addition, the home had an overwhelming smell of ammonia that caused a neighbor to complain and the officers to retreat from its front door. And there was no evidence that Birdsong did not have access to all rooms in the home. Furthermore, Brosseau saw Birdsong attempting to conceal critical evidence of the manufacturing "gas cans containing the fertilizer pellets" and attempting to cover up the chemical smells with carpet freshener. And she did not respond to officers' commands to exit the house and they had to forcibly remove her. This evidence supports the jury's conclusion that Birdsong was involved in the process of manufacturing methamphetamine, either personally or by knowingly giving aid or assistance to another. Again viewing the evidence in the light most favorable to the State, we hold that there was sufficient evidence supporting the jury's verdict finding Birdsong guilty as an accomplice.
C. Possession of Methamphetamine
Birdsong also argues that the State failed to produce sufficient evidence to establish that she possessed methamphetamine because (1) the State did not show that she ever had possession of the methamphetamine found in the kitchen, and (2) the State did not prove she had constructive possession of the methamphetamine because she did not have dominion or control over the premises where the methamphetamine was found.
Possession of property may be either actual or constructive. Actual possession means that the goods are in the personal custody of the person charged with possession; whereas, constructive possession means that the goods are not in actual, physical possession, but that the person charged with possession has dominion and control over the goods.
State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). Here, the State did not prove that Birdsong had actual possession of the methamphetamine the officers found in the kitchen; therefore, we review whether there was sufficient evidence that she had constructive possession of it.
"[T]he State must show dominion and control over the [controlled] substance for a proper conviction under constructive possession." State v. Shumaker, 142 Wn. App. 330, 334, 174 P.3d 1214 (2007). "Exclusive control is not necessary to establish constructive possession, but mere proximity to the contraband is insufficient." State v. Cote, 123 Wn. App. 546, 549, 96 P.3d 410 (2004); see also State v. Ibarra-Raya, ___ Wn. App. ___, 187 P.3d 301, 306 (2008). Here, mere proximity to the controlled substance was not the only evidence of Birdsong's constructive possession. See Cote, 123 Wn. App. at 549.
"Various factors determine dominion and control, and the cumulative effect of a number of factors is a strong indication of constructive possession." Ibarra-Raya, 187 P.3d at 306 (citing State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977)). Furthermore, we look at all the evidence to determine whether the trier of fact could reasonably infer, under the totality of the circumstances, that the defendant had dominion and control over the controlled substance. Partin, 88 Wn.2d at 906; Cote, 123 Wn. App. at 549.
One circumstance from which the jury may infer constructive possession is that the defendant had dominion and control over the premises where the police found the drug. Shumaker, 142 Wn. App. at 334. The following evidence shows that Birdsong shared dominion and control over the premises: First, she received mail addressed to her at Judge's residence. Second, she demonstrated dominion and control when she threw gas containers off the back deck and into the bushes in the backyard and later sprinkler freshener on the carpet inside the house. In addition, there was no evidence that Birdsong did not have access to all the rooms in the home.
See State v. Vant, ___ Wn. App. ___, 186 P.3d 1149, 1153 (2008) (keeping personal belongings and receiving mail at a residence was sufficient evidence for a reasonable jury to find that the residence was a "dwelling," to which the defendant intended to return).
[But w]hen the sufficiency of the evidence is challenged on the basis that the State has shown dominion and control only over premises, and not over drugs, courts correctly say that the evidence is sufficient because dominion and control over premises raises a rebuttable inference of dominion and control over the drugs.
State v. Cantabrana, 83 Wn. App. 204, 208, 921 P.2d 572 (1996); see also State v. Turner, 103 Wn. App. 515, 522, 13 P.3d 234 (2000).
Police found and seized drugs from Judge's residence, over which Birdsong exercised dominion and control. While executing the search warrant, Puyallup Police Sergeant Scott Engle found a plate inside a kitchen cupboard with a white substance and two small bags of white substance on it. Franklin Boshears, a forensic scientist for the Washington State Patrol Crime Laboratory, testified that the first bag contained a tan powder, weighing 0.2 grams, and the second bag contained a white powder, weighing 0.1 grams. Boshears tested the materials and found that the tan powder contained methamphetamine and a reaction byproduct and the white powder contained methamphetamine. Boshears also testified that the byproduct he found in the tan powder was consistent with a byproduct that is often made in the "ammonia alkaloid metal method" of manufacturing methamphetamine, the method officers suspected Birdsong and Judge were using. RP (Aug. 24, 2006) at 772.
Engle also found three electronic weight scales in Judge's bedroom.
The State also proved that Birdsong was an accomplice to the manufacture of methamphetamine through a process using ammonia. And the methamphetamine found in the kitchen contained a byproduct from the ammonia method.
Because the State has shown that Birdsong had dominion and control over the premises, this evidence raises a rebuttable inference of dominion and control over the drugs inside the premises. See Cantabrana, 83 Wn. App. at 208. But Birdsong failed to rebut this presumption. Furthermore, circumstantial evidence supports that, under the totality of the circumstances, Birdsong had constructive possession of the drugs on the premises. See Partin, 88 Wn.2d at 906. Therefore, we hold that State produced sufficient evidence to prove that Birdsong constructively possessed the methamphetamine.
D. Armed with a Firearm
Birdsong further argues that the evidence is insufficient to prove that she was armed with a firearm while being an accomplice to the manufacture of methamphetamine because she did not have dominion and control over the firearms.
A firearm is a deadly weapon. RCW 9.94A.602. A person is armed with a deadly weapon "'if a weapon is easily accessible and readily available for use, either for offensive or defensive purposes.'" State v. Schelin, 147 Wn.2d 562, 567, 55 P.3d 632 (2002) (quoting State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993)). The offensive or defensive purposes include "to facilitate the commission of the crime, escape from the scene of the crime, protect contraband or the like, or prevent investigation, discovery, or apprehension by the police." State v. Gurske, 155 Wn.2d 134, 139, 118 P.3d 333 (2005). "There must be a nexus between the defendant, the crime, and the weapon." "[M]ere proximity or mere constructive possession is insufficient to establish that a defendant was armed at the time the crime was committed." "[W]here the weapon is not actually used in the commission of the crime, it must be there to be used." Gurske, 155 Wn.2d at 138; see also State v. Neff, 163 Wn.2d 453, 462, 181 P.3d 819 (2008) (plurality opinion). "The accessibility and availability requirement also means that the weapon must be easy to get to for use against another person, whether a victim, a drug dealer (for example), or the police." Gurske, 155 Wn.2d at 139 (alteration in original). "In every case, whether a defendant is armed is a fact specific decision" and reviewing the facts and holdings of prior cases is helpful. Neff, 163 Wn.2d at 462.
Justice James Johnson wrote the opinion and Justices Alexander, C.
Johnson, and Chambers concurred. Justices Bridge, Owens, Fairhurst, and Madsen agreed with the plurality's result, but believed that Neff waived his right to appeal. Neff, 163 Wn.2d at 466, 471.
In Neff, while officers were responding to an unrelated call, they smelled a strong ammonia smell and a neighbor directed them to Neff's home as the likely source of the smell. 163 Wn.2d at 453. Neff agreed to assist the officers in locating the smell but, when they observed items used to manufacture methamphetamine, Neff tried to walk away. As an officer sat him in a squad car, Neff tossed a set of keys under another car. The officers opened the garage door with Neff's keys to investigate the ammonia smell and saw what appeared to be a methamphetamine manufacturing laboratory and a marijuana growing operation. The officers then obtained a search warrant and found two loaded handguns in a locked safe under a desk in the garage, a loaded gun in a tool belt hanging from a garage rafter, and two surveillance cameras covering the yard and driveway. Neff, 163 Wn.2d at 456-57. The plurality of the Court concluded that the "facts, together with all inferences favoring the State, [were] enough for a rational person to find beyond a reasonable doubt that Neff was armed." Neff, 163 Wn.2d at 464.
In State v. Eckenrode, 159 Wn.2d 488, 491, 150 P.3d 1116 (2007), the defendant called the police because he had an intruder in his home and he told the dispatcher that he was armed and ready to shoot the intruder. When the police arrived, Eckenrode was sitting unarmed in a lawn chair in his front yard. When the police investigated, they did not find any intruders, but saw weapons and what appeared to be methamphetamine and dried marijuana. They then obtained a search warrant and seized growing marijuana, methamphetamine, and two firearms from the house. The jury convicted Eckenrode of drug charges and found that he was armed. Eckenrode, 159 Wn.2d at 491-92. The Washington Supreme Court held that the State proved by sufficient evidence that he was armed because he told the dispatcher he was armed and the police found two weapons, one of which was loaded, a police scanner, and a drug manufacturing operation in the house. Thus, the Court concluded that the jury could infer that Eckenrode was armed to protect his criminal enterprise. Eckenrode, 159 Wn.2d at 494.
In Schelin, when officers entered the defendant's home to execute a search warrant, the defendant was in the basement. The basement contained two rooms and a laundry room; in one of the rooms, the officers found growing marijuana plants and in the other, the defendant's bedroom, they found harvested marijuana. Police found a holstered, loaded handgun hanging from a nail about six to ten feet from where the defendant had been standing when the police entered the home. Schelin, 147 Wn.2d at 564.
The Washington Supreme Court held that the weapon was easily accessible and readily available for use and that Schelin was "armed." Schelin, 147 Wn.2d at 575-76.
In State v. Taylor, Division One of this court held that a drug defendant was "armed" when police found narcotics evidence, other materials indicating that Taylor intended to deliver the narcotics, and an unloaded gun in a bag lying on top of a table next to where he was sitting when they arrested him. 74 Wn. App. 111, 125, 872 P.2d 53 (1994). Division One reasoned that, even though Taylor had not tried to use his weapon, the close proximity between Taylor and the weapon allowed the jury "to conclude that it was readily available and accessible to his use." Taylor, 74 Wn. App. at 126.
Here, Engle found two loaded firearms on top of an approximately three-foot tall piece of furniture in the living room of the home. The firearms were located approximately 20 feet from the front door through which the officers forcibly removed Birdsong. In addition, the police found a police radio scanner tuned to the Puyallup police scanner station. Furthermore, the police found a surveillance camera mounted to
the front of the home focusing on the front garage. And the camera transmitted to a television in the garage. We hold that the weapons were available for use by those inside the home, Birdsong and Judge, to protect the criminal enterprise of manufacturing methamphetamine. Therefore, here, substantial evidence supported Birdsong's finding that she was armed as an accomplice to the manufacture of methamphetamine because she had constructive possession of the firearms.
E. Second Degree Possession of a Firearm
In addition to arguing that she did not have dominion and control over the firearms, Birdsong also argues that she did not knowingly possess the firearms and, therefore, there was insufficient evidence to prove that she committed second degree possession of a firearm.
The second degree possession of a firearm statute, RCW 9.41.040(2)(a)(1), is not a strict liability criminal statute. See State v. Williams, 158 Wn.2d 904, 908-09, 148 P.3d 993 (2006) (plurality opinion); State v. Anderson, 141 Wn.2d 357, 366-67, 5 P.3d 1247 (2000). The State must prove that Birdsong knowingly possessed the firearm. Anderson, 141 Wn.2d at 359, 366.
RCW 9.41.040(2)(a)(1) provides:
A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the second degree, if . . . the person owns, has in his or her possession, or has in his or her control any firearm:
(i) After having previously been convicted . . . in this state or elsewhere of any felony not specifically listed as prohibiting firearm possession under subsection (1) of this section, or any of the following crimes when committed by one family or household member against another, committed on or after July 1, 1993: Assault in the fourth degree, coercion, stalking, reckless endangerment, criminal trespass in the first degree, or violation of the provisions of a protection order or no-contact order restraining the person or excluding the person from a residence (RCW 26.50.060, 26.50.070, 26.50.130, or 10.99.040).
A person knows or acts knowingly or with knowledge when:
(i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or
(ii) he has information which would lead a reasonable man in the same situation to believe that facts exist which facts are described by a statute defining an offense.
We hold that the State proved by substantial evidence that Birdsong knowingly possessed the firearms. The officers saw two firearms in plain sight in the common area of the home. These firearms were close to the front door, the door through which officers removed Birdsong. There were only two people home at the time, there was sufficient evidence that Judge and Birdsong were manufacturing methamphetamine in the home, and the surveillance equipment was enabled when the police arrived. A fair-minded rational person could conclude that Birdsong knowingly possessed the firearms by having them within her constructive control. Therefore, we affirm Birdsong's conviction for second degree possession of a firearm.
III. Comments on Judge's Refusal to Consent to a Search of His Home
Judge argues that his constitutional due process right to a fair trial was violated when the State introduced evidence that he refused to allow the police to enter and search his home without a warrant and when the prosecutor referred to his refusal during her opening statement and closing argument. Judge admits that his trial counsel did not object to the State's introduction of that evidence or the prosecutor's arguments, but he contends that the error was constitutional and warrants reversal of his conviction.
Birdsong does not contend that her due process right to a fair trial was violated by the State's references to Judge's silence.
A. Standard of Review
Generally, we will not consider issues the appellant raises for the first time on appeal, but we will review an alleged "manifest error affecting a constitutional right." RAP 2.5(a)(3); State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). "RAP 2.5(a)(3) does not permit all asserted constitutional claims to be raised for the first time on appeal"; the rule only permits us to review manifest constitutional errors. Kirkman, 159 Wn.2d at 934 (2007) (emphasis in original). Thus, "[t]he defendant must identify a constitutional error and show how the alleged error actually affected the defendant's rights at trial. It is this showing of actual prejudice that makes the error 'manifest,' allowing appellate review." Kirkman, 159 Wn.2d at 926-27.
The manifest error exception "is a narrow one, and we have found constitutional error to be manifest only when the error caused actual prejudice or practical and identifiable consequences." State v. Montgomery, ___ Wn.2d ___, 183 P.3d 267, 276 (2008).
[Furthermore,] an alleged error is manifest only if it results in a concrete detriment to the claimant's constitutional rights, and the claimed error rests upon a plausible argument that is supported by the record. To determine whether a newly claimed constitutional error is supported by a plausible argument, the court must preview the merits of the claimed constitutional error to see if the argument has a likelihood of succeeding.
State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999) (emphasis in original).
B. Constitutional Error
First, we consider whether Judge raises a constitutional error. No Washington case has discussed whether the prosecution's references to a defendant's invocation of his or her Fourth Amendment right to refuse to consent to a warrantless entry violates the defendant's due process rights to a fair trial. But our Supreme Court "has held that the home receives heightened constitutional protection." State v. Kull, 155 Wn.2d 80, 84, 118 P.3d 307 (2005). And our constitution is more protective than the Fourth Amendment and "'clearly recognizes an individual's right to privacy with no express limitations.'" State v. Ferrier, 136 Wn.3d 103, 110, 960 P.2d 927 (1998) (internal quotations omitted) (quoting State v. Young, 123 Wn.2d 173, 180, 867 P.2d 593 (1994) (emphasis added).
The Fourth Amendment of the United States Constitution provides that people have the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." And article I, section 7 of the Washington State Constitution provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."
Other federal and state cases have held that the prosecution's references to the defendant's invocation of his or her Fourth Amendment right to refuse to consent to a warrantless entry violates the defendant's due process rights to a fair trial. See, e.g., United States v. Prescott, 581 F.2d 1343, 1351-52 (9th Cir. 1978); Padgett v. State, 590 P.2d 432, 434 (Alaska 1979); State v. Palenkas, 933 P.2d 1269, 1280 (Ariz.Ct.App. 1996), cert. denied, 521 U.S. 1120 (1997).
Because our state constitution more closely guards an individual's right to privacy in his or her home, we are persuaded by the Ninth Circuit's holding and analysis in Prescott that if the government could use a person's refusal to consent to a warrantless search as evidence of criminal wrongdoing, "an unfair and impermissible burden would be placed upon the assertion of a constitutional right and future consents would not be 'freely and voluntarily given.'" Prescott, 581 F.2d at 1351 (quoting Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L. Ed.2d 797 (1968)). "[U]se by the prosecutor of the refusal of entry, like use of the silence by the prosecutor, can have but one objective "to induce the jury to infer guilt." Prescott, 581 F.2d at 1352.
We agree and hold the prosecution violates a defendant's due process rights when it uses the defendant's refusal to allow warrantless police entry into his or her home as evidence of guilt. We thus review the merits of Judge's claimed error to determine if his argument that he was prejudiced by an unfair trial has a likelihood of succeeding. See WWJ Corp., 138 Wn.2d at 603.
C. No Prejudice Resulting from Violation of Judge's Due Process Rights
We find apt the Ninth Circuit's analogy of a defendant's refusal to allow warrantless entry to the defendant's home to the defendant's right to remain silent and apply it to our analysis of whether a constitutional error occurred here, prejudicing Judge. See Prescott, 581 F.2d at 1352.
[Our Supreme Court has] concluded that even when the defendant testifies at trial, use of prearrest silence is limited to impeachment and may not be used as substantive evidence of guilt. In circumstances where silence is protected, a mere reference to the defendant's silence by the government is not necessarily a violation of this principle; however, when the State invites the jury to infer guilt from the invocation of the right of silence, the [defendant's constitutional right to remain silent is] violated.
State v. Burke, 163 Wn.2d 204, 217, 181 P.3d 1 (2008) (citation omitted). Furthermore, "it is constitutional error for a police witness to testify that a defendant refused to speak to him or her[,] for the State to purposefully elicit testimony as to the defendant's silence[, and] for the State to inject the defendant's silence into its closing arguments." State v. Romero, 113 Wn. App. 779, 790, 54 P.3d 1255 (2002) (citations omitted). "A constitutional error is harmless only if the reviewing court is convinced beyond a reasonable doubt that any reasonable jury would reach the same result absent the error and where the untainted evidence is so overwhelming it necessarily leads to a finding of guilt." Burke, 163 Wn.2d at 222.
Here, the State referred to Judge's refusal to cooperate with law enforcement and his refusal to allow them access to his home during its opening statement and closing arguments. During trial, the State elicited testimony from Kitts that Judge would not allow him to enter his home. In addition, the State asked Brosseau on five different occasions about Judge's refusal to cooperate with Kitts and her, and his refusal to allow them entry into his home, even though they expressed safety concerns for Birdsong.
We agree with Judge that the combination of the State's opening statement, closing argument, and questioning of Brosseau and Kitts amounts to constitutional error, but we hold the error is harmless because we are convinced beyond a reasonable doubt that any reasonable jury would reach the same result because the untainted evidence here is so overwhelming that it necessarily leads to a finding of guilt. See Burke, 163 Wn.2d at 222.
Brosseau first saw only Judge in the garage where the manufacturing was taking place. Judge told officers that Birdsong was sleeping and that he had been in the garage painting. By Judge's own statements, he was working in the garage that morning. The police found substantial evidence that methamphetamine was being manufactured in Judge's garage. The evidence overwhelmingly established that Judge was manufacturing methamphetamine in his home. The constitutional error is harmless, did not prejudice Judge, and, therefore, is not manifest. Accordingly, we cannot review it for the first time on appeal. See Kirkman, 159 Wn.2d at 926-27.
Judge also contends that the prosecutor committed misconduct because she elicited improper evidence and made improper comments about his refusal to allow the officers into his home and that his counsel was ineffective for failing to object to this evidence and the prosecutor's comments. We held the prosecutor's comments and the State's evidence concerning Judge's refusal to allow the officers into his home were not prejudicial. Thus, there is not a substantial likelihood that the prosecutor's actions affected the jury verdict or that his counsel's failure to object prejudiced him. Judge's arguments fail.
IV. CrR 3.5 Hearing
Judge next argues that the trial court erred in failing to suppress the statements he made to Birdsong over the telephone because he was in police custody and the police had not given him Miranda warnings. Judge also argues that we should reverse his conviction because the trial court failed to enter written findings of fact and conclusions of law after the CrR 3.5 hearing.
Miranda v. Arizona, 384 U.S. 436, 469, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).
The State argues that Judge cannot now contend that his statements to the officers were inadmissible because he stipulated to their admissibility during trial. We agree. Judge's first trial resulted in a mistrial due to juror misconduct. The trial court informed the parties that they could reargue any pretrial motions. In particular, it told the parties:
If the parties want to argue some portion of the 3.5 hearing because they think they can get a different result out of this judge, I think you are free to do that, because I think we are starting this trial anew.
If, on the other hand, there's authority to say I'm bound by the pretrial rulings on a mistrial, I'm certainly open to that argument. But at this point in time I consider it a trial de novo, and we can reargue these issues.
RP (Aug. 14, 2006) at 18. At the beginning of the second trial, the parties agreed that Judge's statements made in the presence of police officers were admissible.
[THE STATE]: As far as the other statement which were the subject of the 3.5 hearing in front of Judge Nelson, I don't think either party has any grounds to contest Judge Nelson's ruling. Not that we feel this court is bound by it, but simply we don't have any reason to believe the outcome would be any different.
There were some statements made by Mr. Judge at the scene. Telephone calls made into the residence. That type of thing that were overheard by the officers, and I believe we are in agreement that those also would be admissible.
[JUDGE'S DEFENSE COUNSEL]: That's correct, Your honor.
. . . .
THE COURT:. . . . It would appear that from representations from both defense counsel and the State that we've got agreements or stipulations on all those issues.
RP (Aug. 15, 2006) at 38-39.
A suppression hearing, while mandatory under CrR 3.5, is not of constitutional magnitude and may be waived as long as it is done so knowingly and intentionally. State v. Williams, 137 Wn.2d 746, 756 n. 4, 975 P.2d 963 (1999); State v. Myers, 86 Wn.2d 419, 425-26, 545 P.2d 538 (1976); State v. Varnell, 137 Wn. App. 925, 932, 155 P.3d 971 (2007); State v. Fanger, 34 Wn. App. 635, 637, 663 P.2d 120 (1983). Defense counsel may waive a CrR 3.5 hearing on his or her client's behalf. See Varnell, 137 Wn. App. at 932; Fanger, 34 Wn. App. at 637. Here, Judge's counsel specifically waived his right to a hearing and agreed to the admissibility of Judge's statements. Therefore, we do not consider Judge's arguments on this issue because he waived his objection.
V. CrR 3.6 Suppression Rulings
Neither party raised any objection to the CrR 3.6 hearing after the mistrial and both parties relied on the original trial court's ruling.
Judge contends that the trial court should have suppressed the evidence officers found at his home because they lacked probable cause to search his residence. We apply a substantial evidence test in reviewing Judge's challenge to the trial court's findings. State v. Brockob, 159 Wn.2d 311, 343, 150 P.3d 59 (2006). "Substantial evidence is 'evidence sufficient to persuade a fair-minded, rational person of the truth of the finding.'" State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006) (quoting State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999)). We review de novo the trial court's challenged conclusions of law in its ruling on the motion to suppress. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003). Because we find these issues dispositive, we need not address Judge's remaining arguments and assignments of error concerning the CrR 3.6 hearing.
Birdsong also requests that we examine these issues in the context of her appeal.
A. Exigent Circumstances
Judge challenges the trial court's conclusion of law 10 that exigent circumstances existed "for the observations made of [his] backyard" from his neighbor's yard. Judge Clerk's Papers (JCP) at 86. Generally, the federal and state constitutions require police officers to obtain a warrant for nonconsensual entry and search of property. Michigan v. Clifford, 464 U.S. 287, 292-93, 104 S. Ct. 641, 78 L. Ed.2d 477 (1984); State v. Cardenas, 146 Wn.2d 400, 405, 47 P.3d 127, 57 P.3d 1156 (2002); State v. Leach, 113 Wn.2d 735, 738, 782 P.2d 1035 (1989). There are a few narrow exceptions to the rule that, when police search an area without a warrant, the search is invalid and unconstitutional. State v. Cardenas, 146 Wn.2d 400, 405, 47 P.3d 127 (2002). "Although ordinarily warrantless entries are presumptively unreasonable, warrant requirements must yield when exigent circumstances demand that police act immediately." Cardenas, 146 Wn.2d at 405.
This court uses six factors as a guide in determining whether exigent circumstances justify a warrantless entry and search: (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) whether there is reasonably trustworthy information that the suspect is guilty; (4) there is strong reason to believe that the suspect is on the premises; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the entry is made peaceably.
Cardenas, 146 Wn.2d at 406.
Here, the officers suspected that Judge and Birdsong were actively manufacturing methamphetamine because they saw a pool of liquid coming from under the garage door and smelled a strong odor of ammonia. They also heard Judge telephonically warning Birdsong that the police were at the house, were seeking a warrant, and wanted her to exit the home. And Birdsong did not immediately exit the house. Furthermore, Brosseau testified during the suppression motion hearing that these circumstances led her to believe that Birdsong could be destroying evidence, that Birdsong could escape, or that the officers were in danger.
Judge does not challenge these statements in the context of the CrR 3.6 hearing and waived any objection to their admission under CrR 3.5.
Brosseau's belief was not a simple generalized belief that Birdsong could destroy evidence; the police presence was announced and substantial time had passed before the officers attempted to contact or see Birdsong. Furthermore, once Brosseau saw Birdsong throwing a gas can into the bushes, she was justified in entering Judge's backyard to prevent further destruction of evidence. Therefore, the trial court did not err and there was substantial evidence to support the trial court's conclusions that "it was reasonable for [Brosseau] and the other officers to go into the backyard to prevent escape and to prevent the potential destruction of evidence" and that exigent circumstances existed "for the observations made of [Judge]'s backyard." JCP at 86. See State v. Coyle, 95 Wn.2d 1, 9-10, 621 P.2d 1256 (1980).
B. Probable Cause
In conclusion of law 9, the trial court found that "[a]fter eliminating all references to the observations of the interior of the garage, there is still sufficient evidence to establish probable cause for issuance of the search warrant." JCP at 86.
A trial court may issue a search warrant only on a determination of probable cause. State v. Atchley, 142 Wn. App. 147, 161, 173 P.3d 323 (2007). "Probable cause exists where there are facts and circumstances sufficient to establish a reasonable inference that the defendant is involved in criminal activity and that evidence of the criminal activity can be found at the place to be searched." Atchley, 142 Wn. App. at 161.
To establish probable cause, the affidavit for a search warrant "must set forth sufficient facts to lead a reasonable person to conclude there is a probability that the defendant is involved in criminal activity." State v. Cord, 103 Wn.2d 361, 365-66, 693 P.2d 81 (1985). Probable cause requires only a probability of criminal activity, not a prima facie showing. State v. Maddox, 152 Wn.2d 499, 505, 98 P.3d 1199 (2004). In determining probable cause, the trial court makes a practical, commonsense decision and may draw reasonable inferences from the facts and circumstances the officer sets forth in the affidavit. Maddox, 152 Wn.2d at 505.
We review a trial court's determination of probable cause for an abuse of discretion and we give great deference to the trial court's decision. Atchley, 142 Wn. App. at 161. We resolve any doubts in favor of the warrant's validity. State v. Kalakosky, 121 Wn.2d 525, 531, 852 P.2d 1064 (1993). Here, the trial court concluded as a matter of law, that there was probable cause for the judicial officer's issuance of the search warrant. We agree.
Focusing only on the evidence of an ammonia smell, liquid coming from the garage door, Judge's telephonic warnings to Birdsong, Birdsong's attempt to destroy evidence, and a gas can and ice in the backyard, there was sufficient evidence to establish probable cause to search. The facts and circumstances were sufficient to establish a reasonable inference that Judge and Birdsong were involved in criminal activity and that evidence of the criminal activity could be found at the place to be searched. See Atchley, 142 Wn. App. at 147.
Therefore, the trial court properly concluded that there was sufficient evidence to establish probable cause for the issuance of the search warrant and the trial court properly denied Judge's motion to suppress.
VI. Community Custody Provisions
Judge argues that the trial court erred in ordering him to submit to alcohol evaluation and treatment as a condition of his community placement.
Although the trial court also ordered Birdsong to submit to both drug and alcohol treatment counseling, she does not argue that the trial court erred in requiring her to submit to alcohol treatment and counseling as a provision of her community placement.
"We review a trial court's sentence for errors of law or abuses of discretion in deciding what sentence applies." State v. Castro, 141 Wn. App. 485, 494, 170 P.3d 78 (2007). Former RCW 9.94A.700(5)(c) (2003) permits the trial court to order a defendant to "participate in crime-related treatment or counseling services" as part of the defendant's terms of community placement. Here, the trial court ordered Judge to participate in "Drug/alcohol eval[uation] and follow through w[ith] treatment per [community corrections officer]." JCP at 70. But it also generally ordered him to undergo an evaluation and treatment for "substance abuse." JCP at 72.
If the substance abuse treatment reasonably relates to the offender's risk of re-offending and to the safety of the community, and the substance abuse contributed to the offense, it is a proper community placement provision. See Castro, 141 Wn. App. at 494; State v. Powell, 139 Wn. App. 808, 818-19, 162 P.3d 1180 (2007), rev. granted, 163 Wn.2d 1017 (2008).
The trial court ordered Judge to participate in both drug and alcohol treatment and counseling. There was no evidence that Judge's crimes related to alcohol abuse. Therefore, the trial court erred in mandating alcohol treatment and counseling. But the trial court did not err in mandating drug treatment and counseling because drug abuse was the root of his offense.
Judge also argues that cumulative error denied him a fair trial. Because we find that the trial court only erred in its imposition of alcohol testing and treatment as part of Judge's community placement provisions, his argument fails.
We affirm Birdsong's convictions. We affirm Judge's convictions and sentences and remand only to correct Judge's community placement conditions by vacating the alcohol treatment and counseling provisions. See State v. Broadaway, 133 Wn.2d 118, 136, 942 P.2d 363 (1997).
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 pursuant to RCW 2.06.040, it is so ordered.
Van Deren, C.J., Hunt, J. Penoyar, J.