Opinion
No. 29869-4-II, (consolidated with 29988-7-II)
Filed: December 28, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 02-1-03592-4. Judgment or order under review. Date filed: 01/14/2003. Judge signing: Hon. Rosanne Nowak Buckner.
Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St Ste 488, Tacoma, WA 98402-3600.
Brian Patrick McLean, Law Office of Brian P McLean, 25 Central Way Ste 430, Kirkland, WA 98033-6179.
Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
James Coon, Jr. and Dude Nichols were each convicted of two drug-related convictions after Nichols's uncle found a methamphetamine lab on the property where Nichols was staying with his grandmother. A jury found both appellants guilty of unlawful manufacture of a controlled substance methamphetamine and unlawful possession of pseudoephedrine with intent to manufacture methamphetamine. Appellants challenge the sufficiency of the evidence to convict and allege error by the trial court's failure to merge their manufacturing and possession with intent to manufacture convictions.
Manufacturing methamphetamine and possession of pseudoephedrine with intent to manufacture methamphetamine have different mental and temporal elements. Because the evidence here supports the jury's finding that the appellants possessed 14.2 grams of pseudoephedrine for use in a future manufacturing process different from that just completed, we affirm each of the convictions. But because the State failed to provide proper documentation of the elements of Coon's alleged Montana conviction, we remand to the trial court to resentence Coon without considering that conviction.
FACTS The Methamphetamine Lab
In the summer or fall of 2001, Nichols moved to 32613 58th Avenue East in Eatonville, Pierce County, Washington, to live with his grandmother.
Curtis Krones, Nichols's uncle, visited his mother about once a week. While visiting his mother on July 26, 2002, Krones looked inside a woodshed on his mother's property and noticed tanks, jars containing brown fluid, and plastic hoses. The woodshed was usually shut with a padlock and there was also a lock on Nichols's bedroom door. Krones's mother did not have a key to these locks. Krones returned to his mother's house the following day, but when he looked in the woodshed again he found that most of the items he had seen the day before were gone.
On August 1, Krones's mother called to tell him that the power to her house was out. Krones went to the home to help, saw a fan blowing out of the window in the shed, two lamps, and a garden hose running from the house into the woodshed. He looked inside the woodshed. Krones turned off the electrical equipment and went to the fire station where he had them call the sheriff. Krones met the police at his mother's house to show them inside the house.
As the group approached the house, Coon emerged from the area of the woodshed. The police detained him, handcuffed him, and placed him in one of the police cars. The detectives then entered the unlocked woodshed and found the lights and fans on.
Pierce County Sheriff's Deputy Mark Fry, a methamphetamine investigator, was the team leader responsible for any lab response. Deputy Fry secured the property while Pierce County Sheriff's Deputy Steven Brand applied for a search warrant based on the information Krones reported. As Deputy Fry secured the woodshed, he noticed evidence of methamphetamine manufacturing inside the shed. He noted ventilation, a propane tank, many chemicals, clear glass jars with funnels in the mouths, coffee filters, and a microwave. The woodshed's fan and the light were on and the door was not locked.
Krones allowed Deputy Fry to look inside his mother's house for Nichols. Nichols's bedroom door was locked and deadbolted, and he did not answer. Deputy Fry noticed a glass jar with residue on a cabinet shelf next to Nichols's bedroom door. Nichols did not return to the house on August 1.
Deputy Fry went outside and informed Coon that he was under arrest for manufacturing methamphetamine. Deputy Fry read Coon his Miranda rights and placed him into a patrol car where he was transported to the jail.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
While executing the search warrant, the officers took photographs of the scene and the lab team processed the items in the woodshed. Deputy Grant arrived during the search, and he and Deputy Fry searched the upstairs rooms. Buckley Police Officer Tom Chess pried open Nichols's bedroom door and the officers searched the room.
Inside the bedroom, the officers found: a rubber glove, a blue Niosh dust mask, a roll of aluminum foil, a glass drug pipe, a loaded syringe, a bottle label for a mini-liquid that contained ephedra extract (an unprocessed form of ephedrine), a spoon with white residue, a zip-lock baggie containing used filters with crystalline residue, assorted plastic baggies with residue, a one-foot glass tube, several used syringes, a metal spoon, some filters, assorted straws, another baggie, a mirror with white residue, another coffee filter with white powder, a baby monitor, the box for the 20-inch box fan that was in the woodshed, and a bottle of caffeine. Deputy Brand recorded the items, noted where the police found the items, and assisted in packaging the items as evidence.
Deputy Fry also found several documents addressed to Nichols and Nichols's passport in the bedroom. He also saw three surveillance cameras set up outside two pointing at the driveway and another pointed at the woodshed. The cameras could be monitored from a television in Nichols's bedroom.
Officer Chess was the officer in charge of the search of the woodshed. Outside the shed he located a propane valve with green corrosion. Corrosion indicates that anhydrous ammonia had come into contact with the valve. Officer Chess noted several items in the shed used to produce methamphetamine. The items included: a two and one-half gallon propane tank with blue corrosion, lithium battery packs, a gram scale with traces of white residue, a one-pint glass jar with white powder residue, a half-pint glass jar with an amber colored liquid, a 20-inch Lasco fan, an unbleached coffee filter with white powder residue, a one-quart mason jar about half full of clear liquid with a blue funnel and an unbleached coffee filter, a 70-pound propane cylinder with blue corrosion on the valve, a syringe containing white powder residue, Red Devil Lye, a Coleman fuel can, the bottom of an electrical coffee grinder with white powder residue, an organic chemistry book, and a one-gallon container of muriatic acid that was one-third full.
Pierce County Sheriff's Detective Warren Dogeagle, a member of the clandestine laboratory team, also responded to the scene. He took samples of the liquids and tried to lift fingerprints from 11 items. He found fingerprints on a Pyrex type, two-quart mixing bowl and two glass jars.
The Trial
On August 6, the State initially charged Nichols and Coon separately with one count each of: (1) unlawful manufacturing of a controlled substance, (2) unlawful possession of pseudoephedrine with intent to manufacture methamphetamine, and (3) unlawful possession of anhydrous ammonia with intent to manufacture methamphetamine. On December 2, the State filed an amended information, charging the same offenses but naming both Coon and Nichols. The first information listed each man separately.
Nichols arrived two hours late for a pretrial hearing on November 25, 2002. The State requested that Nichols be taken back into custody for the duration of the trial. The trial court declined to jail Nichols but warned him that if he were late another time to court, he would remain in custody for the remainder of the trial.
At trial, Deputy Fry explained the `Nazi' recipe for manufacturing methamphetamine. 3 Report of Proceedings (RP) at 74. He discussed the different phases of the process. The first phase involves extracting pseudoephedrine or ephedrine from common cold or allergy medicine. The deputy explained how various chemicals are used in the manufacturing process, including anhydrous ammonia, lithium, muriatic acid, and salt. Deputy Fry explained how cold or allergy tablets are used to obtain pseudoephedrine or ephedrine. He also discussed how glassware is used to mix chemicals and how coffee filters are used to strain mixed chemicals. Finally, he explained that many of the chemicals and items found in the woodshed and in Nichols's bedroom are used in the manufacturing process.
Forensic investigator, Steve Wilkins of the Pierce County Sheriff's Department, also testified. Wilkins, a fingerprint analysis specialist, examined the fingerprints found on a two-quart measuring bowl, a quart jar, and a glass jar. The three latent prints matched Coon's fingerprints.
Jane Boysen, a forensic scientist with the Washington State Patrol Crime Lab, testified about the samples removed from the scene. She confirmed that the spoon contained methamphetamine residue. A coffee filter also tested positive for methamphetamine as did a plastic scale recovered from the scene. One of the plastic zip-lock baggies taken in the search also contained methamphetamine. Another plastic baggie contained 14.2 grams of a mixture of pseudoephedrine and triprolidine, an antihistamine.
Nichols failed to appear in court on December 5, the third day of the trial. Neither defense counsel nor the judicial assistant had heard from Nichols and the court issued a bench warrant for his arrest. When Nichols did not appear after lunch, the court signed the bench warrant and continued with the trial.
After the State rested, it moved to dismiss the third counts, unlawful possession of anhydrous ammonia with intent to manufacture methamphetamine, against Coon and Nichols for lack of evidence. The court granted the motion. Coon then moved to dismiss Count II, unlawful possession of pseudoephedrine with intent to manufacture methamphetamine, for lack of evidence. The court denied this request.
Coon did not object to the jury instructions but he excepted to the court's failure to give his proposed instruction numbers 4 and 5 and 7 through 13. The jury found both Coon and Nichols guilty of the remaining counts.
Sentencing
At the January 14, 2003 sentencing hearing, Coon objected to including his prior convictions in his offender score. The State argued that Coon had an offender score of eight based on five prior convictions, one of which was a sexual offense from Montana. The State also asserted that the current charge of unlawful possession of pseudoephedrine with intent to manufacture acted as a tripler, adding three points to Coon's offender score of five. Coon argued that the State did not have sufficient basis to claim that his Montana conviction was a sex conviction for purposes of the Sentencing Reform Act. He also asserted that his offender score was five because the two current convictions merged. The State responded that Coon's conviction for failure to register as a sex offender in Pierce County was sufficient to support including the Montana conviction in his offender score. There was no documentation to support the State's claims regarding the Montana conviction. The court found the two current convictions did not merge and that sufficient evidence existed to include the sexual offense from Montana in Coon's offender score. The court then sentenced Coon using an offender score of eight.
Nichols appeared for his sentencing after missing the entire trial except for the first two days. Before sentencing Nichols, the trial court allowed him to explain his absence. Nichols told the court that when he failed to appear, it was because he was not feeling well the morning of trial. Instead of contacting his attorney, he went to the `drug man's house and got high' and afterward felt that he could not return to the trial. 8 RP at 602. The trial court sentenced Nichols for his convictions of unlawful manufacturing of a controlled substance, methamphetamine, unlawful possession of pseudoephedrine with intent to manufacture, and bail jumping. Both Coon and Nichols appeal.
We address several issues including: (1) Was the evidence sufficient to support the convictions? (2) Do the appellants' convictions of unlawful manufacturing of a controlled substance, methamphetamine, and unlawful possession of pseudoephedrine with intent to manufacture methamphetamine merge or constitute the same course of conduct? (3) Did the trial court err in including Coon's Montana conviction in his offender score? (4) Did the trial court err by continuing Nichols's trial in his absence?
ANALYSIS Sufficiency of the Evidence
Both Coon and Nichols challenge the sufficiency of the evidence supporting their unlawful manufacturing of a controlled substance, methamphetamine, and unlawful possession of pseudoephedrine with intent to manufacture methamphetamine. We review a challenge to the sufficiency of the evidence taking the evidence in the light most favorable to the State to determine whether a rational trier of fact could have found the elements of the crimes charged beyond a reasonable doubt. State v. Bencivenga, 137 Wn.2d 703, 706, 974 P.2d 832 (1999). When a defendant claims insufficiency of evidence, he admits the truth of the State's evidence and all reasonable inferences from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We draw all reasonable inferences from the evidence in the favor of the State and most strongly against the defendant. Salinas, 119 Wn.2d at 201. And we regard circumstantial and direct evidence as equally reliable. Bencivenga, 137 Wn.2d at 711.
Unlawful Manufacture of Methamphetamine
Coon argues that the evidence failed to prove beyond a reasonable doubt that he, as opposed to Nichols, unlawfully manufactured a controlled substance. His argument is meritless.
In order to convict Coon of unlawful manufacture of a controlled substance, the jury had to find three things: (1) the appellant manufactured a controlled substance on or about August 1, 2002, (2) the appellant knew the substance manufactured was a controlled substance, and (3) the acts occurred in Washington.
The State offered substantial evidence to show Coon's involvement in the manufacture of methamphetamine. Krones testified he had seen Coon at his mother's house before the incident. On August 1, 2002, Krones and other police officers saw Coon walking from around the corner of the woodshed. Earlier that day, Krones went to the woodshed and viewed evidence of manufacturing, a fan and two lamps that were on. Krones turned them off and then went to the fire station where he reported the lab to the police. When Krones returned with the police they saw Coon coming from the woodshed area and the fans had been turned on again. The only other person on the property was Krones's elderly mother inside the house. Although she did not have a key to the padlock that was usually on the woodshed door, there was no evidence that she turned on the fans.
Further, Coon's fingerprints were found on three items used in manufacturing methamphetamine that were seized in the search. Deputy Fry testified that the glassware with Coon's prints was of the type used in manufacturing methamphetamine. All this evidence supports the inference that Coon was involved in the manufacturing process. Taken in the light most favorable to the State, the evidence was sufficient to support Coon's conviction of manufacturing methamphetamine.
Possession with Intent to Manufacture
Coon also asserts that neither actual nor constructive possession of pseudoephedrine separate from that already manufactured into methamphetamine was proved beyond a reasonable doubt. This argument also fails.
To convict Coon of possession of pseudoephedrine with intent to manufacture methamphetamine, the jury had to find that Coon (1) possessed pseudoephedrine and/or ephedrine or any of their salts or isomers, and (2) had the intent to manufacture methamphetamine. One of the baggies retrieved from the property contained 14.2 grams of a mixture of pseudoephedrine, ephedrine, and triprolidine, but not methamphetamine. And the woodshed contained other equipment and materials necessary to make another batch of methamphetamine. All this evidence supports the inference that Coon intended to manufacture more methamphetamine in the future and was legally sufficient to support the jury's verdict on Count II.
No Evidence of Actual Possession
Nichols argues that the evidence was insufficient to convict him because he was not on the property when the warrant was served and therefore there was no evidence that he actually manufactured or possessed pseudoephedrine.
To return a verdict of guilty, the jury had to find beyond a reasonable doubt that Nichols unlawfully manufactured methamphetamine. RCW 69.50.101(p) defines `manufacturing' as:
`Manufacture' means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly, . . . and includes any packaging or repackaging of the substance.
To manufacture methamphetamine, a defendant need not complete the manufacturing process nor must he participate in all phases of manufacturing the controlled substance.
Moreover, the evidence here supports the jury's verdict that Nichols manufactured methamphetamine. Inside the padlocked bedroom, police found mail addressed to Nichols and his passport. They also found a rubber glove, a dust mask, a roll of aluminum foil, a glass drug pipe, a loaded syringe, a spoon with white residue, a baggie containing a white powder, another baggie containing used filters with crystalline residue, and assorted plastic baggies with residue. Boysen tested some of the items and confirmed the presence of methamphetamine. The residue on the spoon contained methamphetamine and caffeine. The white powder found in the zip-lock baggie was methamphetamine. A coffee filter found in Nichols's bedroom contained methamphetamine.
Nichols relies on State v. Davis, 16 Wn. App. 657, 558 P.2d 263 (1977), to support his argument that the evidence is insufficient to support the jury's verdict. But this reliance is misplaced. In Davis, the defendant spent the night at a house where marijuana was found. 16 Wn. App. at 658. The State charged Davis with felony possession of a controlled substance. Davis, 16 Wn. App. at 657. Division Three of this court overturned the conviction, finding that although Davis kept a sleeping bag and some clothes at the house, there was no evidence showing that he had actual possession of the marijuana found at the house. Davis, 16 Wn. App. at 659.
Here, there was ample evidence showing that Nichols had possession and dominion and control over the locked bedroom and the methamphetamine found inside. Reviewing the evidence in the light most favorable to the State, a reasonable inference can be made that Nichols was unlawfully manufacturing methamphetamine.
Unanimity Instruction
Coon next contends that the trial court erred by failing to require a unanimous verdict for unlawful possession of pseudoephedrine with intent to manufacture methamphetamine. He asserts that because the baggie contained 14.2 grams of a mixed precursor substance, the jury had to find which substance was to be used in the manufacturing process. The State responds that the jury does not have to be unanimous as to the substance used to commit the crime but only as to guilt for each crime charged. We agree.
Our Supreme Court has set out a test for determining when unanimity is required on the underlying means of committing a crime. State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994). The threshold test is whether sufficient evidence existed to support each alternative means presented to the jury. Ortega-Martinez, 124 Wn.2d at 707. Where sufficient evidence exists to support each alternative means submitted to the jury, it is unnecessary to have a `particularized expression of unanimity' for the means by which the defendant committed the crime in order to affirm a conviction. Ortega-Martinez, 124 Wn.2d at 707-08. We will not affirm a conviction if evidence is insufficient to present a jury question as to whether the defendant committed the crime by any one of the means submitted to the jury. Ortega-Martinez, 124 Wn.2d at 708 (citing State v. Green, 94 Wn.2d 216, 233, 616 P.2d 628 (1980)).
The State charged Coon in Count II with unlawful possession of pseudoephedrine with intent to manufacture methamphetamine. Jury Instruction No. 13 stated that in order to convict Coon, one of the elements that had to be proven beyond a reasonable doubt was that Coon possessed pseudoephedrine or ephedrine. The identity of the precursor substance is not an alternate means of committing the crime charged and substantial evidence supported this instruction.
A plastic baggie contained pseudoephedrine. A brown-white paper filter contained pseudoephedrine residue. Another baggie containing 14.2 grams of white powder also contained pseudoephedrine.
The Merger Doctrine
Coon and Nichols contend that the crime of unlawful possession of pseudoephedrine with intent to manufacture merges with the greater crime of unlawful manufacturing of methamphetamine. The State responds that the two crimes do not merge because the statutory language differs and, on the record presented here, proof of one crime does not necessarily prove the other.
The Washington and United States Constitutions' double jeopardy clauses prohibit multiple prosecutions and multiple punishments for the same criminal offense. State v. McJimpson, 79 Wn. App. 164, 167, 901 P.2d 354 (1995), review denied, 129 Wn.2d 1013 (1996). A defendant is subject to double jeopardy if convicted of two or more offenses that are identical in law and in fact. State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995). Where an element in one offense is not included in the other, and proof of one offense would not necessarily prove the other, the double jeopardy clause does not bar convictions for both offenses. Calle, 125 Wn.2d at 777 (citing State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983)).
The `merger doctrine' is one means used to determine whether the legislature has authorized multiple punishments. Vladovic, 99 Wn.2d at 419 n. 2. The doctrine applies only where the legislature has clearly indicated that in order to prove a particular degree of crime, the State must prove not only that a defendant committed that crime but also that the crime was accompanied by an act defined as a crime elsewhere in the criminal statutes. Vladovic, 99 Wn.2d at 420-21. In looking at the legislature's intent, we review where the offenses are located within the statutory scheme, the injuries the offenses prohibit, and the presence of language clearly requiring that the State, to prove one crime, prove `not only that the defendant committed that crime . . . but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes.' State v. Frohs, 83 Wn. App. 803, 806, 924 P.2d 384 (1996).
In applying these factors, it does not appear that the legislature intended for unlawful possession of pseudoephedrine with the intent to manufacture and unlawful manufacturing of methamphetamine to merge, as the two offenses criminalize different conduct. In former RCW 69.50.401(a)(1)(ii) (1998), it is unlawful for anyone to `knowingly' manufacture a controlled substance, including methamphetamine. Former RCW 69.50.440 (2002) makes it a crime for a person to `knowingly' possess pseudoephedrine and/or ephedrine or their salts or isomers with the intent to manufacture methamphetamine. Further, neither statute contains language indicating that the legislature `clearly' intended one crime to be an element of the other. State v. Taylor, 90 Wn. App. 312, 320, 950 P.2d 526 (1998). Nothing suggests that the legislature intended the two offenses to merge and, as a matter of law, the trial court did not err by not merging these convictions.
Same Criminal Conduct
Coon asserts that the trial court not only misapplied the law to his convictions but it erred by failing to find as a matter of fact that his two convictions were not the same criminal conduct. We disagree.
Where concurrent offenses contain the same criminal conduct, the crimes are treated as one crime for sentencing purposes. RCW 9.94A.589; State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824 (1994). Separate offenses Sencompass the same criminal conduct' when they involved the (1) same criminal intent, (2) same time and place, and (3) same victim. State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997). All three elements must be present to support a finding of same criminal conduct. Vike, 125 Wn.2d at 410. We reverse a sentencing court's decision on same criminal conduct only if there is clear abuse of discretion or misapplication of the law. See State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440, cert. denied, 498 U.S. 838 (1990).
Determining a defendant's intent involves a two-step process. State v. Rodriguez, 61 Wn. App. 812, 816, 812 P.2d 868, review denied, 118 Wn.2d 1006 (1991). First, we objectively view each underlying statute and determine if the required intents are the same for each count. Rodriguez, 61 Wn. App. at 816. Where the intents are the same, we objectively view the facts to determine whether a defendant's intent was the same with respect to each count. Rodriguez, 61 Wn. App. at 816.
The mens rea in former RCW 69.50.401(a)(1)(ii), unlawful manufacturing of a controlled substance, requires that a defendant `knowingly' engage in manufacturing. The mens rea in unlawful possession of pseudoephedrine with intent to manufacture methamphetamine, former RCW 69.50.440, is two-fold. It requires that the defendant `knowingly' possesses ephedrine and/or pseudoephedrine, and that the defendant intends the future conduct of manufacturing methamphetamine. Former RCW 69.50.440. The two statutes clearly do not have the same intent and therefore cannot be the same criminal conduct as a matter of law. Further, our Supreme Court has held that where a defendant has the potential to commit distinct drug crimes in the present and the future with the substances he was found to have possessed, the defendant possesses a different criminal intent for each charge. Porter, 133 Wn.2d at 184.
Objectively viewing the two statutes leads to the conclusion that the same intent does not exist in both statutes. In addition, the evidence proved that the appellants had already manufactured methamphetamine and had at least 14.2 grams of precursor chemicals including pseudoephedrine, ready to use in the next cook. The trial court did not err in sentencing Coon for the two separate crimes.
Out-of-State Convictions
Coon argues that the trial court incorrectly included a Montana conviction in calculating his offender score. We agree.
In order to be included in a defendant's offender score, RCW 9.94A.525(3) requires that prior out-of-state convictions be classified according `to the comparable offense definitions and sentences provided by Washington law.' The State must prove by a preponderance of the evidence the existence of the prior conviction. State v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999). A defendant may challenge the classification of a prior out-of-state conviction used to calculate the offender score for the first time on appeal. Ford, 137 Wn.2d at 485.
Where, as here, the defendant makes a specific objection, and the appellate court reviewing the record cannot determine how the out-of-state conviction would be classified in Washington, we must reverse and remand for resentencing without the inclusion of the disputed out-of-state conviction. State v. McCorkle, 88 Wn. App. 485, 500, 945 P.2d 736 (1997), aff'd, 137 Wn.2d 490 (1999).
At sentencing, the State argued that Coon had five prior convictions: including what it asserted was a sexual assault conviction from Montana. The prior convictions in addition to his new charge of unlawful possession of pseudophedrine with intent to manufacture gave him an offender score of five. The charge of unlawful possession with intent to manufacture acted as a tripler and added three points to his score.
Coon objected at sentencing to consideration of his Montana conviction absent adequate documentation. He asserted that the State failed to meet its burden of proof. In response, the State did not request a continuance to obtain the necessary documentation. Instead of obtaining the necessary documentation, it argued that Coon's Pierce County conviction for failing to register as a sex offender was sufficient. But the State presented no evidence to show the link between failing to register in Washington and the sexual assault conviction from Montana, and the Pierce County conviction was insufficient to enable the sentencing judge to compare the elements of the Montana offense with conduct prohibited under Washington law.
Coon admitted to the number of times he had been convicted but did not stipulate to an offender score.
The best evidence the State can provide is a certified copy of the judgment regarding the out-of-state conviction. State v. Cabrera, 73 Wn. App. 165, 168, 868 P.2d 179 (1994). Other acceptable documents include other comparable documents of the record or transcripts of prior proceedings to establish criminal history. Cabrera, 73 Wn. App. at 168.
The State failed to present evidence to substantiate its claim that the Montana conviction was comparable to a Washington felony sex offense. See, e.g., State v. Cabrera, 73 Wn. App. 165, 168, 868 P.2d 179 (1994) (certified copy of judgment and sentence, record or transcript of proceeding). Thus, the trial court incorrectly included Coon's Montana conviction in his offender score. Because Coon timely objected, he is entitled to recalculation of his offender score excluding the Montana conviction. Ford, 137 Wn.2d at 485.
Absence from Trial
Nichols next objects that the trial court should have stopped his trial when he failed to appear and he argues that the trial court erred by failing to sufficiently inquire into why he was not present during parts of his trial. Nichols's argument is meritless; after trial commenced, he failed to appear and did not contact his attorney or the court. It was not the trial court's responsibility to search him out. CrR 3.4(b); State v. Thomson, 123 Wn.2d 877, 880-01, 872 P.2d 1097 (1994) (after trial commences in the defendant's presence, a subsequent voluntary absence operates as an implied waiver, and the trial may continue without the defendant).
We affirm Nichols's convictions for manufacturing methamphetamine, Count I, and possession of pseudoephedrine with intent to manufacture, Count II, and the sentence of 96 months on Count I and 54 months on Count II. We affirm Coon's convictions for manufacturing methamphetamine, Count I, and possession of pseudoephedrine with intent to deliver, Count II, but we remand for resentencing without consideration of Coon's Montana conviction.
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.
MORGAN, J. and VAN DEREN, J., concur.