Opinion
No. 31253-1-II
Filed: April 26, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No: 03-1-00153-8. Judgment or order under review. Date filed: 12/04/2003. Judge signing: Hon. James B II Sawyer.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.
Ronald J. Radford appeals his conviction for possession of pseudoephedrine with intent to manufacture methamphetamine. Radford contends that (1) the search warrant violated the particularity requirements of the Fourth Amendment; (2) the evidence was insufficient to support Radford's conviction; (3) the trial court erred in calculating Radford's offender score; and (4) he was prejudiced by his counsel's stipulation to his offender score. Finding no violation of the Fourth Amendment and sufficient evidence to convict Radford, we affirm his convictions, but remand for resentencing due to the miscalculation of his offender score.
FACTS
Through a confidential informant, Detective Borcherding learned that a number of persons had been frequenting and staying at 131 E. Spencer Ridge Place, Shelton, Washington. The confidential informant identified Radford as one of the individuals. On April 1, 2003, the police began an investigation into suspected narcotics activity at the location. As part of the investigation, Detective Borcherding conducted surveillance and observed Radford on the property. Mary Kealy resided on the property, which belonged to her brother.
On April 24, 2003, the police executed a search warrant at the Spencer Ridge property. Detective Borcherding assisted with the execution of the warrant. During the course of the search, Detective Borcherding found a small tan and white motor home with a pop-up camper attachment contained within a garage, behind closed doors, and not visible from the road. When the warrant was executed, the mobile home was not registered, but it had previously been registered to a Melanie Michaels.
The night before the search warrant was executed, Detective Borcherding had noted that the same motor home was parked in front of and slightly to the east of the garage.
Detective Borcherding found a workbench and a number of containers with reagent materials along the wall of the garage where the motor home was parked. He also found several backpacks and duffel bags holding other items used to manufacture methamphetamine: namely, Red Devil lye, lithium batteries, and coffee filters. And Detective Borcherding found a shirt with the name `Ron' embroidered on it. The shirt was covering pans that contained residuals, powders, and chemical liquids.
Inside the motor home, Detective Borcherding found photographs, time sheets, and court papers belonging to Radford, as well as laboratory glassware and several pans containing ephedrine and pseudoephedrine. Detective Borcherding also noted a strong odor of chemical solvent.
Radford was subsequently charged with possession of pseudoephedrine with intent to manufacture methamphetamine, prohibited by RCW 69.50.440. Before trial, Radford brought a motion to suppress evidence seized in the motor home on the grounds that the search warrant violated the particularity requirements of the Fourth Amendment. The motion to suppress was denied and a jury trial followed.
At trial, Kealy testified that Radford moved the motor home onto the property four days before the execution of the search warrant and that he had been staying inside the motor home. She also testified that she saw Radford with `a bottle of cleaned Ephedrine' and that he was `gassing this chemical' while on her property. Report of Proceedings (RP) at 408. Franklin Boshears, a forensic scientist with the Washington State Patrol Crime Laboratory, testified that items seized from the motor home showed the presence of pseudoephedrine and triprolidine, substances consistent with the extraction process during the manufacture of methamphetamine. Detective Borcherding testified about his surveillance of the property and that during the search the motor home was determined to be within an exclusionary zone, i.e., within an area where the police had reason to believe there had been methamphetamine manufactured.
This reference is to a different camper trailer.
The jury returned a verdict of guilty as charged. Radford stipulated to his offender score and received a sentence within the standard range. Timely notice of appeal followed.
ANALYSIS I. Search Warrant
Radford asserts that the complaint in support of the search warrant and the search warrant itself violated the particularity requirements of the Fourth Amendment because the search warrant failed to specifically identify the motor home as a vehicle to be searched.
The Fourth Amendment requires a magistrate or judge to determine that probable cause exists for the search and that the warrant particularly describe the `place to be searched and the persons or things to be seized.' Marron v. United States, 275 U.S. 192, 195, 48 S. Ct. 74, 72 L. Ed. 231 (1927); State v. Worth, 37 Wn. App. 889, 683 P.2d 622 (1984).
The Fourth Amendment's requirements of probable cause and particularity are inextricably interwoven. State v. Perrone, 119 Wn.2d 538, 545, 834 P.2d 611 (1992).
By intertwining the requirement of probable cause and particularity in describing the place to be searched and items to be seized the clear mandate is that there must be probable cause that the described items to be seized are connected with criminal activity and that they are located in the place to be searched.
State v. Rivera, 76 Wn. App. 519, 523, 888 P.2d 740 (1995).
A warrant is sufficiently particular if it identifies the place to be searched adequately enough so that the officer executing the warrant can, with reasonable care, identify the place intended. State v. Cockrell, 102 Wn.2d 561, 569-70, 689 P.2d 32 (1984).
Here, the warrant allowed the police to search the following: [T]he property, curtilage, residence, outbuildings, travel trailer and any vehicles that are found to be on the subject property, located at 131 E Spencer Ridge Place, Shelton, Mason County, State of Washington, further described as a white two story residence with red trim and an attached red in color garage with a white in color garage door. The white with brown stripe travel trailer[3] is on the East side of the property and is partially covered with blue tarps.
Clerk's Papers at 164.
Although neither the complaint for the search warrant nor the search warrant identified the motor home specifically, the warrant explicitly authorized the search of any vehicles found on the property.
Radford relies on Rivera to argue that vehicles which are not specifically identified in the search warrant and do not belong to the owner of the premises cannot be searched. 76 Wn. App. at 525. We disagree that Rivera bars this search.
In reaching this conclusion we are aware that in Rivera we specifically overruled the holding in State v. Frye, 26 Wn. App. 276, 613 P.2d 152 (1980), that permitted a blanket authorization within a warrant to search all vehicles located on the subject property. We held: [T]o the extent that Frye suggests that the particularity requirements of the Fourth Amendment are satisfied where a warrant authorizes the search of unidentified vehicles located on certain premises, and such vehicles are unrelated to the occupant of the premises, its holding is overruled. Rivera, 76 Wn. App. at 526.
In Rivera, we determined that a warrant authorizing the search of `any vehicle on described premises' fails to satisfy the particularity requirements of the Fourth Amendment when the vehicle to be searched belongs to a visitor and neither the visitor nor the visitor's vehicle is identified in the search warrant. 76 Wn. App. at 521. But in Rivera, the police used the broad language within the search warrant to justify the search of a car that was driven onto and remained on the property for about two hours during the course of the warrant's execution. The owner of the searched vehicle was not a suspect and was not named in the affidavit of probable case. Rivera, 76 Wn. App. at 521. Therefore, the court concluded that individualized probable cause was lacking to justify the search of that particular vehicle. Rivera, 76 Wn. App. at 525.
Here, Radford's motor home was on the property before the execution of the search warrant and was completely contained within a garage that was rife with evidence of the manufacture of methamphetamine. Moreover, Radford was known to visit and stay on the Spencer Ridge property and was specifically named and discussed in the affidavit of probable cause. Unlike the circumstances in Rivera, the instant case presents a situation where there is a clear nexus between Radford, the drug manufacture, and the searched premises.
II. Sufficiency of the Evidence
Radford contends that his conviction for possession of pseudoephedrine with intent to manufacture methamphetamine lacks sufficient evidence.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003). 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). Circumstantial evidence is no less reliable than direct evidence, and criminal intent may be inferred from conduct where it is `plainly indicated as a matter of logical probability.' State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). 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.
To convict Radford of possession with intent to manufacture, the State must prove beyond a reasonable doubt that Radford possessed pseudoephedrine or any of its salts or isomers with the intent to manufacture methamphetamine. RCW 69.50.440.
Possession may be actual or constructive. State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d 1214 (1997). 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). Exclusive control by the defendant is not required. State v. Amezola, 49 Wn. App. 78, 86, 741 P.2d 1024 (1987).
No single factor is dispositive in establishing dominion and control over a person's premises. The totality of the circumstances must be considered. State v. Collins, 76 Wn. App. 496, 501, 886 P.2d 243 (1995). However, evidence of temporary residence, personal possessions on premises, or knowledge of presence of drugs, without more, is insufficient to show dominion and control. State v. Bradford, 60 Wn. App. 857, 862, 808 P.2d 174 (1991).
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.
State v. Cantabrana, 83 Wn. App. 204, 208, 921 P.2d 572 (1996).
Here, the record shows that police found photographs, time cards, and mail belonging to Radford inside the motor home. Without more, this evidence would be insufficient to establish dominion and control over the vehicle. But Kealy testified that Radford drove the motor home onto the property on April 20 and did not remove it when requested to do so because of a broken headlight. She further testified that Radford had been staying in the motor home from April 20 until April 24. Kealy's testimony, in combination with the evidence found the inside the vehicle, is sufficient to establish Radford's dominion and control over the motor home.
The record further shows that police found pseudoephedrine and items related to manufacturing inside the motor home. Once dominion and control over the premises is established, the State is entitled to a rebuttable inference that Radford had constructive possession of the items contained therein. Cantabrana, 83 Wn. App. at 208. Therefore, the evidence is sufficient to establish that Radford possessed pseudoephedrine and the related items.
Finally, the record before us includes evidence that Kealy saw Radford with `a bottle of cleaned Ephedrine' and that she saw him `gassing this chemical,' or cooking methamphetamine. 3 RP at 408. The totality of the evidence is sufficient to support a finding of intent to manufacture. Taking the evidence and all inferences in the light most favorable to the State, a reasonable juror could find that Radford possessed pseudoephedrine with the intent to manufacture methamphetamine, as prohibited by RCW 69.50.440.
III. Calculation of Offender Score
Radford was sentenced on December 4, 2003. Based on Radford's criminal history, the sentencing court determined that Radford's offender score was seven. His score included a conviction for second degree trafficking in stolen property committed on August 1, 1997. The State concedes that Radford's conviction for trafficking in stolen property should not have been included in his offender score because the statute for the offense, RCW 9A.82.050, was not in effect at the time the current crimes were committed. See State v. Thomas, 103 Wn. App. 800, 803, 14 P.3d 854 (2000). Therefore, the calculation of Radford's offender score was improper, and Radford's sentence is reversed and the matter is remanded for resentencing with the correct offender score.
Radford's claim of ineffective assistance of counsel is disposed of by our remand for resentencing since the claim related only to the offender score calculation.
Thus, we affirm Radford's convictions and remand for resentencing with the proper offender score.
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.
HUNT, J. and QUINN-BRINTNALL, C.J., Concur.