Opinion
No. 21980-1-III
Filed: November 9, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Klickitat County. Docket No: 01-1-00035-9. Judgment or order under review. Date filed: 03/17/2003. Judge signing: Hon. E Thompson Reynolds.
Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206-6827.
Counsel for Respondent(s), Shawn N Anderson, Klickitat County Pros OFC, M/S-Ch-18, 205 S Columbus Ave, Goldendale, WA 98620-9289.
David Brian Trefry, Attorney at Law, 211 W Augusta Ste a, Spokane, WA 99205.
Frederick Webb was convicted of one count of manufacturing methamphetamine and one count of conspiracy to manufacture methamphetamine. On appeal, Mr. Webb argues that the judgment should be reversed for three reasons: (1) the State wrongly shifted the burden of persuasion to Mr. Webb by stating that the State's witness was not on trial during cross-examination of Mr. Webb and closing arguments; (2) the trial court erred in not instructing the jury on accomplice liability; and (3) the trial court erred in determining Mr. Webb's offender score was five points. We affirm Mr. Webb's conviction and his sentence.
FACTS
Frederick Webb manufactured methamphetamine at a location in Yakima County. When he received a tip that his manufacturing site might be searched by police, he moved his operation to the residence of a customer in Klickitat County. The customer was William Brownlee, who resided with his wife Donita Brownlee. Mr. Webb became a frequent visitor at the Brownlee home. He often stayed overnight.
To facilitate the manufacture of methamphetamine, Mr. Webb and Mr. Brownlee built a room adjoining the Brownlee garage. Mr. Webb masterminded the development of the room. Neither Mr. Webb nor Mr. Brownlee obtained any permits.
After the room was constructed, Mr. Webb spent the majority of his time there. The room frequently smelled like ammonia. Initially, the door to the room was always locked; but, after a dispute arose between the Brownlees regarding the locked door, Mr. Brownlee occasionally left the room unlocked.
Eventually, Ms. Brownlee entered the room when it was unlocked and discovered white powder and equipment that she associated with the manufacture of methamphetamine. She took the white powder to the police and authorized a search of her residence. The police searched the house and discovered white powder and equipment. The police arrested Mr. Brownlee. Laboratory results positively established the presence of methamphetamine.
Mr. Brownlee pleaded guilty to possession of methamphetamine. Additionally, he agreed to testify against Mr. Webb.
Mr. Webb was charged with one count of manufacturing methamphetamine. The charges were amended to include accomplice liability and conspiracy to manufacture methamphetamine.
Both the State and Mr. Webb proposed jury instructions. The State's proposed jury instructions did not include a definition of accomplice liability. Mr. Webb's first set of proposed jury instructions included a definition of accomplice liability; however, his second set of proposed jury instructions did not include such a definition. The final set of jury instructions, adopted by the court, did not include a definition of accomplice liability. Mr. Webb did not object.
During Mr. Webb's cross-examination, the State asked: 'It's not Bill Brownlee that's on trial today, it's you; isn't that correct?' Report of Proceedings (RP) at 350. Mr. Webb responded: 'That's correct.' RP at 350. Mr. Webb's counsel objected to the question on the ground that it was 'argumentative.' RP at 350. The objection was sustained and the response was stricken. Mr. Webb did not move for a mistrial or ask for a curative instruction.
During closing arguments, the State reminded the jury that Mr. Brownlee was not on trial. Mr. Webb did not object to the reference to Mr. Brownlee, nor did he move for a mistrial or ask for a curative instruction.
During Mr. Webb's closing arguments, his counsel also reminded the jury that Mr. Brownlee was not on trial. He stated that Mr. Brownlee was not on trial because he was a 'rat' who was trying to save his own skin. RP at 365.
During rebuttal, the State referenced Mr. Brownlee's agreement with the State, stating: 'Do you reward that person that was forthright from the very beginning?' RP at 371. Mr. Webb did not object, move for a mistrial, or ask for a curative instruction.
At Mr. Webb's sentencing, the State argued that his offender score was six. The State noted that Mr. Webb had been convicted of two offenses on August 23, 2000, and that he was on community supervision for those offenses when the current crime occurred. The State argued that his offender score should include three points for maintaining a drug dwelling, one point for convictions for conspiracy and manufacturing, one point for possession of a controlled substance, and one point for being on supervision during the current offense. Mr. Webb disagreed with the State's analysis. He argued that his offender score should be four, unless the conspiracy merged: one point for maintaining a drug dwelling; one point for possession of a controlled substance; one point for being on supervision during the current offense; and one point for conspiracy. The sentencing court found Mr. Webb's offender score to be five: three points for maintaining a drug dwelling, one point for possession, and one point for being on supervision. The court found that the offenses did merge, for a total of five points.
ANALYSIS Prosecutorial Misconduct.
Standard of Review. Mr. Webb argues that the prosecuting attorney committed misconduct during cross-examination and closing argument by emphasizing that Mr. Webb, and not the State's key witness, was on trial. Where prosecutorial misconduct is claimed, the defense bears the burden of establishing the impropriety of the prosecuting attorney's comments, as well as the prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Absent a proper objection, a request for a curative instruction, or a motion for mistrial, the issue of misconduct is waived unless the misconduct was so flagrant or ill-intentioned that the prejudice could not have been cured by an instruction, unless a constitutional right is affected. State v. Echevarria, 71 Wn. App. 595, 597, 860 P.2d 420 (1993). Similarly, if a constitutional right is affected, the issue of misconduct is waived unless the error constitutes a 'manifest error affecting a constitutional right.' State v. Klok, 99 Wn. App. 81, 83, 992 P.2d 1039 (2000).
A prosecuting attorney's allegedly improper remark should be reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). A failure to object when the prosecutor made the comment strongly suggests the conduct complained of did not appear critically prejudicial to the defendant in the context of the trial. State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).
Here, the prosecuting attorney rhetorically asked Mr. Webb whether he understood that he, and not Mr. Brownlee, was on trial. Mr. Webb's counsel objected to the question and the trial court properly sustained the objection and ordered that Mr. Webb's response be stricken from the record. Later, during the closing argument, the prosecuting attorney informed the jury that Mr. Webb, not Mr. Brownlee, was on trial. At that time, Mr. Webb did not object. At no time did Mr. Webb ask for a mistrial or a curative instruction.
Even if we assume for the purpose of our analysis, that the prosecuting attorney's conduct somehow constituted prosecutorial misconduct, the conduct was not 'so flagrant and ill-intentioned as to create prejudice incurable by instruction.' Klok, 99 Wn. App. at 84. Moreover, there is no 'manifest error affecting a constitutional right.' Id. at 83. From this record, there is no reason to believe that the jury verdict would be any different absent the alleged misconduct. Rather, ample evidence supports the jury verdict. We hold that there is no error.
Accomplice Liability. Mr. Webb contends the court erred by failing to instruct the jury on accomplice liability. Mr. Webb notes the jury was informed in the to convict instruction that he could be convicted as an accomplice. The error, Mr. Webb asserts, is that the jury was not instructed on the meaning of 'accomplice' and, therefore, the jury could have supplied its own definition for that term.
As a general rule, appellate issues not raised in the trial court may not be raised for the first time on appeal. State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988) (citing RAP 2.5(a)). Constitutional errors are an exception to the general rule and may be raised for the first time on appeal. RAP 2.5(a)(3); State v. Roberts, 142 Wn.2d 471, 500-01, 14 P.3d 713 (2000). Mr. Webb's asserted error does not satisfy this constitutional standard. The constitutional requirement is only that the jury be instructed as to each element of the offense charged. State v. Johnson, 100 Wn.2d 607, 623, 674 P.2d 145 (1983), overruled on other grounds by, State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000 (1985). In this case, the jury was so instructed.
Here, the claimed error is the failure of the court to define a term referenced in the to convict or elements instruction. Failure of the court to define a term used in one of the elements is not within the scope of the constitutional rule. "[F]ailure to give a definitional instruction is not failure to instruct on an essential element[.]" Scott, 110 Wn.2d at 690 (quoting State v. Tarango, 734 P.2d 1275, 1282 (1987), overruled on other grounds by, Zurla v. State, 109 N.M. 640, 789 P.2d 588 (1990)). Moreover, Mr. Webb's own proposed instructions did not include a definition of accomplice liability. If the defendant fails to propose a defining instruction at trial, the absence of such an instruction may not be raised for the first time on appeal. Scott, 110 Wn.2d at 691. The failure to include a definition of accomplice liability was not error.
Offender Score. Mr. Webb contends the trial court erred in determining that his offender score was five points. Mr. Webb concedes that he had two prior convictions and that he was on supervision when the current offense occurred. He argues that he should have received a single point for each of those offenses and an additional point for having committed the current offense while on community placement. Mr. Webb's position is that his offender score is three points. Furthermore, he argues that even this offender score might have been reduced, if the court had conducted a hearing to determine whether his two prior offenses constituted the 'same criminal conduct,' resulting in one point rather than two points for those offenses.
In determining a defendant's offender's score, the court views the defendant's previous crimes according to the law that was in effect when the current crime was committed. State v. Varga, 151 Wn.2d 179, 191, 86 P.3d 139 (2004). Calculation of the offender's score is reviewed de novo. State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003).
During the applicable period, 'maintaining a dwelling or place for controlled substances' counted as three points, while 'possession' counted as one point. Supervision during the current offense added another point. This results in a total of five points. See former RCW 9.94A.360 (2000). In this case, the court's analysis of Mr. Webb's offender score was correct.
Recodified as RCW 9.94A.525.
Mr. Webb also argues that his two prior offenses encompass the same criminal conduct and they should be counted as a single offense. If a defendant's criminal history includes multiple prior offenses that involve the same criminal conduct and were sentenced concurrently, then in determining a defendant's appropriate offender score, the two prior offenses 'shall be counted as one offense.' Former RCW 9.94A.360(5)(a)(i); See former RCW 9.94A.400(1)(a) (2000).
Recodified as RCW 9.94A.589.
Mr. Webb's two prior offenses are maintaining a drug dwelling and possession of a controlled substance. The issue before us is whether these two offenses constitute the same criminal conduct. The same criminal conduct means two or more offenses that:
(1) require the same criminal intent; (2) are committed at the same time and place; and (3) involve the same victim. Former RCW 9.94A.400(1)(a). A person is guilty of maintaining a drug dwelling if he knowingly kept or maintained a dwelling for persons using controlled substances either (1) for the purpose of using the substances, or (2) for the purpose of keeping or selling them. Former RCW 69.50.402(a)(6) (1994). Under a totality of the evidence, the State must establish: (1) some evidence that the drug activity was of a continuing and recurring character; and (2) that a substantial purpose of maintaining the premises was for the illegal drug activity. State v. Ceglowski, 103 Wn. App. 346, 352-53, 12 P.3d 160 (2000) (citing Barnes v. State, 255 Ga. 396, 339 S.E.2d 229, 234 (1986)).
A person is guilty of possession of a controlled substance if he manufactures, delivers, or possesses with intent to manufacture or deliver a controlled substance.
RCW 69.50.401. The State must establish: (1) unlawful possession of (2) a controlled substance with (3) intent to deliver. State v. Goodman, 150 Wn.2d 774, 782, 83 P.3d 410 (2004).
In this case, the crimes do not involve the same criminal conduct. First, they do not involve the same criminal intent. Maintaining a drug dwelling requires the intent to (1) use, (2) keep, or (3) sell the controlled substances while possession requires intent to deliver the controlled substances. Second, they are not committed in the same place and time. Maintaining a drug dwelling requires conduct committed over a lengthy period of time at one particular place, while possession requires conduct committed at one particular time that could be committed at any place. Third, they do not involve the same victim. Maintaining a drug dwelling requires conduct that is of a continuing and recurring character, while possession requires the intent to deliver a controlled substance to one particular victim. As such, the crimes do not involve the same criminal conduct. In conclusion, because the crimes do not involve the same criminal conduct, the court correctly counted the two offenses separately in determining Mr. Webb's offender score.
We affirm Mr. Webb's conviction and his sentence.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, A.C.J. and SCHULTHEIS, J., Concur.