Opinion
No. 36946-0-II.
April 21, 2009.
Appeal from a judgment of the Superior Court for Kitsap County, No. 07-1-00082-6, Theodore F. Spearman, J., entered July 6, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Houghton and Armstrong, JJ.
UNPUBLISHED OPINION
A jury convicted David Caldwell Osterhoudt as an accomplice to possession of methamphetamine with intent to manufacture or deliver within 1,000 feet of a school bus stop (count I). The jury also convicted him on charges of unlawful use of a building for drug purposes (count II), and for possession of methamphetamine (count III). We affirm his convictions.
Facts
After his arrest for possession of methamphetamine in late 2006, Chastin Hoffman began working as a confidential informant for the Bremerton Police Department. Hoffman was acquainted with Osterhoudt and with Dawn Day, who lived at Osterhoudt's Bremerton residence.
Day and her four children moved into Osterhoudt's residence in the spring of 2006. Day lived in a bedroom on the second floor. Osterhoudt lived in another bedroom on the second floor.
In the fall of 2006, Hoffman visited Osterhoudt's residence and smoked methamphetamine with Osterhoudt, Day, and Emily Briones, in the living room and in Day's bedroom. Afterwards, between December 5, 2006, and January 12, 2007, Hoffman made four controlled buys of methamphetamine from Day at Osterhoudt's house.
On the date of the last controlled buy, police executed a search warrant at Osterhoudt's house. Police found Osterhoudt, Day, and several other people inside. Police also found drugs and drug related items in Day's room, including, a digital scale, 50 empty small plastic baggies, "pay and owe" sheets, and a baggie with a substantial amount of methamphetamine (7.3 grams). IV RP at 253. Officers also found the marked money used in the last controlled buy in Day's purse.
Officers found drugs and paraphernalia in other parts of the house also. In an upstairs bathroom, officers found a bag belonging to Day's friend and frequent visitor Briones. The bag contained 55 grams of methamphetamine, packaging materials, and a digital scale. In Osterhoudt's bedroom, officers found paraphernalia including a mirror with a white powder residue on it and multiple small baggies with a powdery residue, a sampling of which tested positive for methamphetamine. Officers also found a baggie of marijuana and several marijuana pipes.
At the scene, Osterhoudt admitted to police that he had recently smoked marijuana and used methamphetamine. He stated that he purchased his methamphetamine from Day.
The State charged Osterhoudt by amended information with being an accomplice to possession of methamphetamine with intent to manufacture or deliver (count I), and that such crime occurred within 1,000 feet of a school bus stop; unlawful use of building for drug purposes (count II), and possession of methamphetamine (count III).
Day testified at trial that she started using and selling methamphetamine in October 2006. By December, she had a $200 a day habit. She admitted that she sold drugs to Hoffman in December and January and that she intended to sell the drugs that police discovered in her room during the search. Day admitted that she sometimes sold drugs when Osterhoudt was home and that her customers would often come and go only staying for a few minutes. She admitted that she sold drugs almost every day at Osterhoudt's house, usually to two to four people each day, but some weeks were busier.
Osterhoudt testified at trial that he owned the residence and that Day was paying rent, but only sporadically. He said that he had know Day for more than three years and realized that she had a drug problem soon after he met her. He admitted that he suspected Day and her visitors were using methamphetamine because he found drug paraphernalia around his house. He also admitted that he told officers on the day of the search that he had purchased methamphetamine from Day on multiple occasions.
Osterhoudt stipulated to the admission of evidence gathered during the execution of the search warrant, to the admission of reports of drug tests on that evidence, and to the admission of statements that he made to police at the scene. He also stipulated that he had "management and control" of his residence, and that his residence was within 1,000 feet of a school bus stop. CP at 56.
A jury found Osterhoudt guilty of the three charged offenses, and the trial court imposed a standard range sentence. This appeal followed.
Discussion Sufficiency of the Evidence
Osterhoudt contends that the State presented insufficient evidence to convict him of possession of methamphetamine (count III), or of possession of methamphetamine with intent to manufacture or deliver as an accomplice (count I). We disagree.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). In determining whether the necessary quantum of proof exists, the reviewing court need not be convinced of the defendant's guilt beyond a reasonable doubt but only that substantial evidence supports the State's case. State v. Fiser, 99 Wn. App. 714, 718, 995 P.2d 107, review denied, 141 Wn.2d 1023 (2000). Substantial evidence is evidence that would convince an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed. State v. Hutton, 7 Wn. App. 726, 728, 502 P.2d 1037 (1972).
Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992). The trier of fact is free to reject even uncontested testimony as not credible as long as it does not do so arbitrarily. State v. Tocki, 32 Wn. App. 457, 462, 648 P.2d 99, review denied, 98 Wn.2d 1004 (1982).
Possession may be actual or constructive. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). A person has actual possession when he or she has physical custody of the item. Callahan, 77 Wn.2d at 29. A person has constructive possession when he or she has dominion and control over the item. Callahan, 77 Wn.2d at 29. This dominion and control need not be exclusive. State v. Tadeo-Mares, 86 Wn. App. 813, 816, 939 P.2d 220 (1997). Courts determine whether a person has dominion and control over an item by considering the totality of the circumstances. State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977). When a person has dominion and control over a premises, it creates a rebuttable presumption that the person has dominion and control over items in the premises. State v. Summers, 107 Wn. App. 373, 389, 28 P.3d 780 (2001), review granted and cause remanded on other grounds, 145 Wn.2d 1015 (2002); State v. Cantabrana, 83 Wn. App. 204, 208, 921 P.2d 572 (1996); Tadeo-Mares, 86 Wn. App. at 816; see also Partin, 88 Wn.2d at 906-07; Callahan, 77 Wn.2d at 30-31. Merely that a defendant is not present when contraband is discovered will not make the evidence insufficient. See State v. Simonson, 91 Wn. App. 874, 877, 881, 960 P.2d 955 (1998), review denied, 137 Wn.2d 1016 (1999). Nor will the fact that someone else owns the item make the evidence insufficient. State v. Jeffrey, 77 Wn. App. 222, 223, 227, 889 P.2d 956 (1995).
Osterhoudt relies on State v. Bencivenga, 137 Wn.2d 703, 974 P.2d 832 (1999), for the proposition that essential proof of guilt cannot be supplied solely by a pyramiding of inferences.
Bencivenga, 137 Wn.2d at 711 (citing State v. Weaver, 60 Wn.2d 87, 89, 371 P.2d 1006 (1962)). See also Br. of Appellant at 14. But Osterhoudt misconstrues that case. In Bencivenga, our Supreme Court rejected the noted proposition explaining that:
Weaver was predicated on our application of the former rule which required that if a conviction rests solely on circumstantial evidence, the circumstances proved must be unequivocal and inconsistent with innocence. We have since rejected this rule in favor of the rule that whether the evidence be direct, circumstantial, or a combination of the two, the jury need be instructed that it need only be convinced of the defendant's guilt beyond a reasonable doubt.
Bencivenga, 137 Wn.2d at 711 (citation omitted). The court clarified that if the inferences and underlying evidence are strong enough to permit a rational fact finder to find guilt beyond a reasonable doubt, "a conviction may be properly based on pyramiding inferences." Bencivenga, 137 Wn.2d at 711 (internal quotation marks omitted) (citation omitted). Accordingly, "it is the province of the finder of fact to determine what conclusions reasonably follow from the particular evidence in a case." Bencivenga, 137 Wn.2d at 711.
Here, Osterhoudt admitted that he owned and resided at the house, which meant he had dominion and control over the premises. This fact alone would allow the jury to infer that he had constructive possession of the drugs found inside during the search and defeat his claim of insufficient evidence as to count III. See Summers, 107 Wn. App. at 389. "When 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." Cantabrana, 83 Wn. App. at 208 (distinguishing between claims of insufficient evidence and instructional error). Moreover, aside from any other methamphetamine found in the house that was allegedly attributable to Day or her friends, police found baggies containing methamphetamine residue, along with drug paraphernalia, in Osterhoudt's bedroom. He also told police that he used methamphetamine and had done so recently. The evidence was sufficient as to count III.
As to count I, Osterhoudt contends that the evidence was insufficient to show that he had any knowledge of Day's sales of methamphetamine to the confidential informant during the controlled drug buys. But the State correctly points out that Osterhoudt was not charged with specific drug sales to the informant only, rather he was charged with being an accomplice to possession with intent to manufacture or deliver methamphetamine from December 5, 2006 to January 12, 2007.
Under RCW 69.50.401, it is a crime to possess with intent to manufacture or deliver a controlled substance, including methamphetamine. Under RCW 9A.08.020(3)(a)(ii) a person is an accomplice if, with "knowledge" that it will promote or facilitate the commission of the crime, he or she "aids" such other person in committing the crime.
Osterhoudt points to Day's and his own testimony, which denied that he was involved in Day's sales of methamphetamine or that he had any knowledge of Day's drug dealing. But Osterhoudt testified that he admitted to police that he had purchased methamphetamine from Day. Moreover, the evidence showed that Day was running an active drug business from Osterhoudt's home, that Osterhoudt was aware of it, and that he aided Day by continuing to provide her with a place to live and conduct that business. Day testified that she started selling drugs in October 2006, that she sold drugs almost every day to 2 to 4 people per day and sometimes more. Osterhoudt testified that he purchased methamphetamine from Day on multiple occasions. As noted, Day had many visitors when Osterhoudt was home, the visitors often stayed only a few minutes, and Osterhoudt testified that he found drug paraphernalia around the house and he didn't believe Day's innocent explanations about it. He also said that he suspected Day and several of her friends were using methamphetamine, and that he was aware that some of Day's visitors had used drugs in the past or he suspected they were presently using drugs. Also, the informant testified that he smoked methamphetamine with Osterhoudt, Day, and Briones in the living room and upstairs in Day's bedroom.
Viewing the evidence in the light most favorable to the State, a jury could reasonably conclude that Osterhoudt was aware that Day was dealing drugs out of Osterhoudt's home in the waning months of 2006; and that by providing her with a home and place to conduct her drug business, he was knowingly aiding her in conducting that business. We hold that the evidence was sufficient to sustain Osterhoudt's convictions on counts I and III.
Ineffective Assistance
Osterhoudt contends that his counsel was ineffective for failing to challenge jury instruction number 10, which he alleges misstates the law. We disagree.
In order to show that he received ineffective assistance of counsel, Osterhoudt must show that (1) defense counsel's conduct was deficient, i.e., it fell below an objective standard of reasonableness; and (2) the deficient performance resulted in prejudice, i.e., there is a reasonable possibility that, but for the deficient conduct, the outcome of the proceeding would have differed. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). See also State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Because both prongs must be met, a failure to show prejudice will end the inquiry. State v. Fredrick, 45 Wn. App. 916, 923, 729 P.2d 56 (1986). We employ a strong presumption that defense counsel's conduct was not deficient. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Moreover, trial counsel's failure to object to an instruction that accurately states the law and is properly given does not amount to ineffective assistance. See State v. Davis, 119 Wn.2d 657, 665, 835 P.2d 1039 (1992); State v. McGinley, 18 Wn. App. 862, 865, 573 P.2d 30 (1977).
Instruction 10 states: "A person who has dominion and control over premises where drugs are found may be inferred to have dominion and control over the drugs themselves. This inference is not binding upon you and it is for you to determine what weight, if any, the inference is to be given." CP at 113. Osterhoudt contends that this instruction is misleading. He argues that in order to be an accurate statement of the law, the instruction should indicate that constructive possession of the drugs requires dominion and control "over the drugs themselves" and not just dominion and control over the premises. Br. of Appellant at 28. But the jury was not misinformed. Notably, instruction 9 defines "possession" and states in relevant part that "[c]onstructive possession occurs when there is no actual physical possession but there is dominion and control over the substance." CP at 112 (emphasis added).
Moreover, under Washington law, the fact that a person has dominion and control over a building does create a rebuttable presumption that the person has dominion and control over items in the premises. Summers, 107 Wn. App. at 389; Tadeo-Mares, 86 Wn. App. at 816; Cantabrana, 83 Wn. App. at 208. While it is improper to instruct a jury that it is required or compelled to find that the defendant was in possession of drugs inside a premises if it finds that the defendant had control over the premises, it is permissible for a court to instruct the jury that control over the premises creates a rebuttable presumption of control over the drugs found inside. Cantabrana, 83 Wn. App. at 207-09. The Cantabrana court specifically approved the language used in instruction 10. See Cantabrana, 83 Wn. App. at 209 n. 3. We hold that instruction 10 does not misstate the law. Accordingly, defense counsel was not ineffective for failing to object to that instruction.
Double Jeopardy
Osterhoudt contends that his conviction for unlawful use of a building for drug purposes (count II) and being an accomplice to possession of methamphetamine with intent to manufacture or deliver (count I) violated his right to be free from double jeopardy.
The double jeopardy clauses of the state and federal constitutions provide the same protection. See U.S. Const. amend. V ; Wash. Const. art. I, § 9; In re Pers. Restraint of Borrero, 161 Wn.2d 532, 536, 167 P.3d 1106 (2007), cert. denied, 128 S. Ct. 1098 (2008) (citing In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004)). Among other things, double jeopardy principles bar multiple punishments for the same offense. Orange, 152 Wn.2d at 815; State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). But, if the defendant's act supports charges under two statutes, the court must determine whether the legislature intended to authorize multiple punishments for the crimes in question. Orange, 152 Wn.2d at 815-16. If the legislature intended that cumulative punishments can be imposed for the crimes, double jeopardy is not offended. State v. Freeman, 153 Wn.2d 765, 771, 108 P.3d 753 (2005).
If the language of the criminal statutes under which the defendant has been punished does not expressly disclose legislative intent with respect to multiple punishments, the court then considers principles of statutory construction to determine whether multiple punishments are authorized. Borrero, 161 Wn.2d at 536. The "same evidence" or Blockburger test is the primary rule of statutory construction used. Borrero, 161 Wn.2d at 536-37. We first consider the statutory language.
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
RCW 69.50.401 (count I) provides in relevant part "it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance . . . [including] methamphetamine." RCW 69.50.401(1), (2)(b). Osterhoudt was convicted as a accomplice under RCW 9A.08.020(2)(c). This statute provides that "[a] person is legally accountable for the conduct of another person when . . . [h]e is an accomplice of such other person in the commission of the crime." RCW 9A.08.020(2)(c). "A person is an accomplice of another person in the commission of a crime if . . . [w]ith knowledge that it will promote or facilitate the commission of the crime, he . . . aids or agrees to aid such other person in planning or committing it." RCW 9A.08.020(3)(a)(ii). RCW 69.53.010 (count II) provides in relevant part:
It is unlawful for any person who has under his or her management or control any building, room, space, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, to knowingly rent, lease, or make available for use, with or without compensation, the building, room, space, or enclosure for the purpose of unlawfully manufacturing, delivering, selling, storing, or giving away any controlled substance.
RCW 69.53.010(1). Because these statutes contain no express legislative intent regarding multiple punishments, we apply the "same evidence" test. Borrero, 161 Wn.2d at 536-37.
Under the "same evidence" test, double jeopardy principles are violated if the defendant is convicted of offenses that are identical in fact and in law. Borrero, 161 Wn.2d at 537; State v. Louis, 155 Wn.2d 563, 569, 120 P.3d 936 (2005); Calle, 125 Wn.2d at 777. "If each offense contains an element not contained in the other, the offenses are not the same; if each offense requires proof of a fact that the other does not, the court presumes the offenses are not the same." Borrero, 161 Wn.2d at 537 (citing Orange, 152 Wn.2d at 816-18; Calle, 125 Wn.2d at 777-78).
Osterhoudt contends that his convictions for counts I and II offend double jeopardy because the same evidence — his continuing to permit Day to live in his home after he became aware of her drug dealing, thereby knowingly aiding and facilitating her drug dealing — proves both offenses. The State responds that there is no double jeopardy violation, relying on State v. Bryant, 78 Wn. App. 805, 901 P.2d 1046 (1995). At issue in Bryant were charges against the defendant for manufacturing marijuana in violation of former RCW 69.50.401(a)(1)(ii) (1989), and making a building available for the manufacture of marijuana in violation of RCW 69.53.010(1). Bryant, 78 Wn. App. at 807. The Bryant court held that the two charges were not the same offense for double jeopardy purposes because they did not satisfy the "same elements" test. Bryant, 78 Wn. App. at 810. The court explained that culpability in the making-a-building-available charge ran only to "persons with a defined relationship with the location" where the drug activity occurred; but as to the manufacturing charge, the "relationship of the manufacturer to the manufacturing location is not relevant." Bryant, 78 Wn. App. at 810-11.
The same is true here. As noted, the State charged Osterhoudt in count I with violating RCW 69.50.401, alleging that he "did possess, with intent to manufacture or deliver, a controlled substance, to wit: Methamphetamine." CP at 66. No aspect of the charge or its underlying statute requires a relationship between the alleged perpetrator and the location where the prohibited activity occurred. However, as Bryant holds, a defined relationship to a specific location is an element of a making-a-building-available charge. Bryant, 78 Wn. App. at 810-11. Accordingly, consistent with Bryant, we hold that the count I and count II charges do not satisfy the "same elements" test and thus are not the same offense for double jeopardy purposes.
In sum, we affirm Osterhoudt's convictions on counts I, II, and III.
Affirmed.
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.
HOUGHTON, P.J. and ARMSTRONG, J., concur.