Opinion
No. 35979-1-II.
June 17, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 06-1-01571-1, Robert L. Harris, J., entered February 20, 2007.
Affirmed by unpublished opinion per Van Deren, C.J., concurred in by Bridgewater and Armstrong, JJ.
Rodney Cecil appeals his conviction for one count of first degree trafficking in stolen property with aggravating factors, four counts of second degree identity theft, and three counts of forgery. He contends that (1) the trial court erred in denying his motion to suppress the evidence against him, (2) the trial court made an impermissible comment on the evidence, and (3) there was insufficient evidence that he trafficked in stolen property. In his statement of additional grounds for review (SAG), Cecil contends that the trial court erred in denying his motions (1) to suppress, (2) for a Franks hearing, and (3) to join or consolidate his preexisting drug conviction with the State's unfiled charges in this case. Finding no error, we affirm.
RAP 10.10.
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
FACTS
On April 12, 2005, Officer Spencer Harris submitted an affidavit for a search warrant, listing Timothy Allen Hyde, Vicky Marie Carstensen, and Dawn Renee Jentet as having outstanding felony warrants for their arrest, and further stating that Hyde, Carstensen, and Jentet were at a two-story residence in Clark County. He sought a warrant to search that residence and "all rooms, and all other parts therein" for these three persons. Clerk's Papers (CP) at 15.
Harris's basis for probable cause was information that Carstensen was living at the address with a man named Tim. Harris visited the residence and saw a person matching Carstensen's description enter the residence but, when he knocked on the door and called on the telephone, no one responded and he was unable to verify that the person was Carstensen. Harris then checked electronic records and found that Rodney Cecil and Jentet had given the same Clark County residence as their home address. Harris contacted the assessor's office and learned that Ronald Russell was the listed owner of the residence. Harris's affidavit stated:
I contacted Ronald Russell . . . and he stated that he was renting [the Clark County residence] to Rodney Cecil and a male named "Tim" since December. Ronald also stated that Rodney's girlfriend, "Dawn", lived at the residence. . . . I asked Ronald if he knew Tim's last name and he stated, "Timothy Hittle". A check through [the National Crime Information Center] showed Hittle as an [alias] for Timothy A. Hyde. I showed Ronald a booking photo of Hyde and he stated that was the person who was renting the basement of his house since December 2004 and also confirmed he was the person he knew as Timothy Hittle.
CP at 16. The search issued warrant allowed a search "of all rooms, and all other parts . . . and surrounding grounds" for Hyde, Carstensen, and Jentet. CP at 19.
About two weeks before the search warrant was issued, Officer Michael Chylack conducted a drug court compliance check on Cecil at the house. He did not observe any of the wanted persons during his visit but he only entered one of the three levels of the house. Chylack knew that Cecil was not allowed to live with felons as a condition of his community custody and he volunteered to assist in Harris's search. On the evening of April 19, 2005, thirteen police officers executed the search warrant at the house. During the ten minute search, the police did not locate Jentet or Carstensen, but they arrested Hyde. During execution of the warrant, the officers cleared each room of the residence and Chylack entered Cecil's room within two minutes of their initial search.
Chylack noted at the suppression hearing that a drug court compliance check is a consent search that a drug offender agrees to as part of their contract with the drug court.
Chylack noticed, in plain view, a check made out to Gloria Elliot on a printer/scanner connected to a laptop computer. A supply of blank check stock paper was next to the printer/scanner. Chylack knew that Cecil had a history of forgery so, after the search for the wanted persons was complete, he and forgery detective Jeff Nichols seized the items possibly associated with check forgery from Cecil's room. The police obtained a second search warrant to allow an examination of the computer for evidence of forgery. The State ultimately charged Cecil with one count of first degree trafficking in stolen property, four counts of second degree identity theft, and three counts of forgery.
RCW 9A.82.050(1) states that "[a] person who knowingly initiates, organizes, plans, finances, directs, manages, or supervises the theft of property for sale to others, or who knowingly traffics in stolen property, is guilty of trafficking in stolen property in the first degree."
RCW 9.35.020(1) states that "[n]o person may knowingly obtain, possess, use, or transfer a means of identification or financial information of another person, living or dead, with the intent to commit, or to aid or abet, any crime."
RCW 9A.60.020(1)(a) and (b) state that "[a] person is guilty of forgery if, with intent to injure or defraud[, h]e falsely makes, completes, or alters a written instrument or[h]e possesses, utters, offers, disposes of, or puts off as true a written instrument which he knows to be forged."
Cecil moved to suppress all evidence obtained as a result of the searches. In relevant part, he moved to suppress based on a lack of probable cause to issue the initial search warrant. The trial court ruled that there was a lack of probable cause to search for Carstensen and Jentet but that probable cause supported the search for Hyde. The trial court entered the following pertinent finding of fact:
4. As it relates to Timothy Hyde, Officer Harris indicates in the affidavit that he spoke with the owner of the target residence, Ronald Russell, who confirmed that he rents the residence to [Cecil] and to Timothy Hyde. Mr Russell also identified Timothy Hyde from a photo that was shown to him by Officer Harris.
CP at 206. The trial court entered the following pertinent conclusion of law:
7. This court finds the testimony of [Chylack] credible and persuasive. He entered [Cecil's] bedroom under lawful authority of a valid search warrant. He was looking for people in a room and in areas where people might be found. He was in the process of looking in [Cecil's] room when he observed, in plain view, a check to Gloria Elliot, face up, on a printer that was attached to a laptop computer. Gloria Elliot was not associated with the residence nor was she associated with [Cecil]. There was no reason why that check needed to be there. In addition, [Chylack] observed blank check stock in plain view next to the computer. Based upon [Chylack's] observations along with his knowledge of [Cecil's] criminal history, he had reason to believe, and did believe, that he was observing evidence of a crime. [Chylack] lawfully seized the check and blank check stock paper which were in plain view.
CP at 208-09. The trial court denied the motion to suppress, ruling that probable cause existed to search for Hyde throughout the residence and concluding that the evidence at issue was in plain view and was seized based on a reasonable belief that it was evidence of a crime.
On February 6, 2007, the jury returned guilty verdicts on all counts and found, by special verdict, aggravating factors relating to the trafficking in stolen property charge that (1) Cecil knew or should have known that it involved multiple victims or multiple incidents per victim and (2) the offense involved a high degree of sophistication or planning or occurred over a lengthy period of time.
Cecil appeals.
ANALYSIS
I. Suppression Motion
Cecil contends that the trial court erred when it denied his motion to suppress the evidence the police seized in their search of the Clark County residence. He argues that (1) the affidavit Harris offered did not establish probable cause and substantial evidence does not support the trial court's finding of fact 4 and (2) the plain view doctrine does not apply because the items seized were not immediately recognizable as evidence of a crime and substantial evidence does not support the trial court's factual findings in conclusion of law 7.
A. Standard of Review
When reviewing the denial of a motion to suppress, we determine whether substantial evidence supports the findings of fact and then whether the findings of fact support the conclusions of law. State v. Hill, 123 Wn.2d 641, 645-47, 870 P.2d 313 (1994). We review only those findings of fact from a suppression hearing to which error is assigned. We treat unchallenged findings of fact as verities on appeal. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003). When substantial evidence supports challenged findings, they are binding on appeal. Hill, 123 Wn.2d at 647. "Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding." Hill, 123 Wn.2d at 644.
We review de novo conclusions of law denying a motion to suppress. Acrey, 148 Wn.2d at 745. The Fourth Amendment requires that an affidavit supporting a warrant must establish probable cause. State v. Nordlund, 113 Wn. App. 171, 179, 53 P.3d 520 (2002). "`A search warrant . . . is issued upon a showing of probable cause to believe that the legitimate object of a search is located in a particular place.'" State v. Hatchie, 161 Wn.2d 390, 398 n. 4, 166 P.3d 698 (2007) (quoting Steagald v. United States, 451 U.S. 204, 213, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981)). We give great deference to the issuing magistrate's probable cause determination. State v. Cord, 103 Wn.2d 361, 366, 693 P.2d 81 (1985).
B. Probable Cause
Cecil contends that Harris's affidavit did not establish probable cause to search the entire house because Hyde rented only the basement and substantial evidence does not support the trial court's finding of fact 4. Cecil argues that Harris's affidavit stated that the "owner of the house told him that [Hyde] only rents the basement of [the] home from him, not the main floor or the second floor." Br. of Appellant at 16. But Cecil isolates one portion of the affidavit and ignores the remainder of Harris's conversation with Russell as recited within the four corners of the affidavit.
In fact, finding of fact 4 repeats Harris's statement in the affidavit practically verbatim. Therefore, the evidence is sufficient to persuade a fair-minded, rational person that Russell confirmed he rented the residence to Cecil and Hyde. Thus, substantial evidence supports the trial court's finding of fact 4.
Cecil argues that:
A number of inferences can be logically drawn from [Russell's] statement to the police that [Hyde] rents the basement of the house. The first is that the house is divided into at least two, if not three separate residences. The first residence is in the basement that [Hyde] rents. The second is the main floor of the house, if not the second floor also, [sic] that [Cecil] rents. The third inference that can be logically drawn from this statement is that the basement has a separate access from the main floor, as do many basements which are rented separately from the remainder of a house.
Br. of Appellant at 21.
We disagree. "When evaluating probable cause we look to `the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Hatchie, 161 Wn.2d at 404 (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949)). The issuing magistrate is to function in a commonsense and realistic manner and is "entitled to draw commonsense and reasonable inferences from the facts and circumstances." In re Pers. Restraint of Yim, 139 Wn.2d 581, 596, 989 P.2d 512 (1999) (emphasis omitted) (quoting State v. Helmka, 86 Wn.2d 91, 93, 542 P.2d 115 (1975)).
First, the record does not support Cecil's inferences. Second, Harris's conversation with Russell, as related in his affidavit, reflects that Cecil and Hyde knew each other and rented the house together. Third, the affidavit included a photograph showing the residence as a typical two-story house. And "`the factual and practical considerations of everyday life,'" or common sense, suggests that all of the tenants had access to common areas, such as the kitchen, dining room, and bathroom. Hatchie, 161 Wn.2d at 404 (quoting Brinegar, 338 U.S. at 175); see State v. Alexander, 41 Wn. App. 152, 156-57, 704 P.2d 618 (1985) (where tenants share common living areas such as a kitchen, living room, and bathroom but have separate bedrooms, a single warrant describing the entire premises is valid and will justify searching the entire premises). Therefore, the affidavit provided substantial evidence supporting a finding of probable cause to search the entire premises for Hyde. Thus, the trial court properly denied Cecil's motion to suppress based on a lack of probable cause.
In fact, they found Hyde in the back yard.
C. Plain View
Cecil also contends that the trial court erred in denying his motion to suppress based on its ruling that the warrantless seizure of the check and check stock was justified under the plain view doctrine. He argues that "the police had no information as to who the named person on the check was. For all they knew it was [Cecil's] girlfriend, or a family member for whom he had agree[d] to print checks." Br. of Appellant at 24. Cecil, therefore, assigns error to "the trial court's factual finding" in that portion of conclusion of law 7 that states "Elliot was not associated with the residence nor was she associated with [Cecil]." Br. of Appellant at 16. We treat findings of fact, labeled as conclusions of law, as findings of fact when challenged on appeal. State v. Ross, 141 Wn.2d 304, 309, 4 P.3d 130 (2000). Thus, we review the record for substantial evidence supporting the challenged factual findings.
Cecil does not challenge the second warrant authorizing a search of the laptop's hard drive that was issued after seizure of the evidence at issue.
Cecil refers to "Conclusion of Law No. 4," but quotes conclusion of law 7. Br. of Appellant at 16.
Under article I, section 7 of the state constitution, warrantless searches are, absent an exception, per se unreasonable. State v. Kull, 155 Wn.2d 80, 85, 118 P.3d 307 (2005).
The plain view doctrine is one such exception and, under that doctrine, the State bears the burden of showing "(1) a prior justification for intrusion, (2) inadvertent discovery of incriminating evidence, and (3) immediate knowledge by the officer that he had evidence before him." Kull, 155 Wn.2d at 85.
Cecil admits that "if the police had prior justification for the intrusion, saw an item sitting in plain view, and then immediately recognized it as incriminating evidence," his constitutional rights were not offended. But Cecil focuses on the third prong, asserting that Chylack's seizure of the evidence was based on "merely a hunch." Br. of Appellant at 23-24.
Here, the unchallenged findings of fact establish that Chylack knew Cecil, that he knew Cecil had previously been convicted of identity theft and forgery, and that Chylack had been at the residence two weeks before the search to conduct a drug court compliance check. And finding of fact 9 specifically states that "Chylack was not aware of any connection between [Cecil] and the name of the person on the check, Gloria Elliot, and [s]uspect[ed] that [Cecil] was involved in fraud related activities." CP at 207. And we treat these unchallenged findings as verities on appeal. Acrey, 148 Wn.2d at 745.
Therefore, substantial evidence supports the trial court's factual findings in conclusion of law 7 and, considering the facts and circumstances, the police reasonably concluded that the laptop computer, the printer/scanner, the check with Gloria Elliot's name, and the supply of blank check stock paper were evidence of criminal activity. See State v. Lair, 95 Wn.2d 706, 716, 630 P.2d 427 (1981) ("Objects are immediately apparent for purposes of a plain view seizure when, considering the surrounding facts and circumstances, the police can reasonably conclude they have evidence before them."). Thus, Cecil's contention that the police improperly exceeded the scope of the valid search warrant is without merit.
II. Impermissible Comment on the Evidence
Cecil further contends that the trial court made an impermissible comment on the evidence in violation of the Washington Constitution, article IV, section 16 "when, over defense objection, the trial court allowed two officers to testify that they had seized[, and later searched, the evidence] pursuant to a judicially authorized search warrant." Br. of Appellant at 26. Under the state constitution, "[o]nce it has been demonstrated that a trial judge's conduct or remarks constitute a comment on the evidence, a reviewing court will presume the comments were prejudicial." State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995).
Before trial, Cecil argued that no mention of the second search warrant should be made. Cecil reasoned that when a jury is told that a search warrant is "authorized" it tells the jury that a judge approved the search. The trial court agreed that the fact that the search was "authorized" would be excluded, but Cecil argued that even mentioning the search warrant was prejudicial. Report of Proceedings (RP) at 93-94. The trial court noted the objection but ruled that the search warrant could be mentioned so long as there was no reference to it having been judicially authorized.
During trial, Harris testified:
[THE STATE:] What eventually happened with — with the — with the computer and all this — the — the items that were inside the [evidence] bag?
[HARRIS:] Based on what I saw, I applied for a search warrant for the — the computer and its contents.
[THE STATE:] And did you obtain one?
[HARRIS]: Yes, I did.
[CECIL:] Object to that characterization as I did with the search warrant.
RP at 112-13. Later, when the State questioned Nichols, the State mentioned the search warrant again: "[THE STATE:] And just a yes or no answer, officer. Did you execute a search warrant on this computer? [NICHOLS:] Yes, I did." RP at 129. Although Cecil directs our attention to the two portions of the record where the search warrant was mentioned, he fails to demonstrate how the trial court's silence constituted a comment on the evidence. Cecil suggests that the evidence that a search warrant was executed was not relevant, but he does not appeal the admission of that evidence based on relevance.
Moreover, on appeal, Cecil clearly misstates the facts when he repeatedly contends that the trial court allowed testimony about a "judicially authorized" search warrant. Br. of Appellant at 26. In fact, the trial court ruled that no reference to an "authorized" search warrant could be made to avoid any suggestion of judicial endorsement. RP at 93. And Cecil offers no authority to support his bare assertion that the trial judge's conduct or remarks somehow constituted a comment on the evidence. Therefore, we find no merit to this claim.
III. "Property" under Title 9A RCW
Cecil's final contention in his direct appeal is that the State failed to present "substantial evidence" of "first degree trafficking in stolen property." Br. of Appellant at 29. Cecil admits that "the state did present substantial evidence that [Cecil] had trafficked in `personal identification' and `financial identification,'" but he argues that "these two items are not `property'" because the "term `property' is not defined in RCW 9A.82." Br. of Appellant at 31-32. Cecil reasons that the common definition of the word "property" does not include such intangible items as personal and financial identification, therefore, trafficking in those items is not a crime under RCW 9A.82.050. We treat this as a claim of insufficient evidence and review the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found that Cecil was trafficking in stolen property beyond a reasonable doubt. See State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993).
The second amended information charged Cecil with one count first degree trafficking in stolen property as follows: "That he, [Cecil], in the County of Clark, State of Washington, between January 25, 2004 and May 31, 2005 did knowingly traffic in stolen property, to wit: personal identification and financial identification; contrary to [RCW] 9A.82.050." CP at 135. RCW 9A.82.010(16) defines stolen property as "property that has been obtained by theft, robbery, or extortion" and RCW 9A.04.110(22) defines property for purposes of Title 9A RCW as "anything of value, whether tangible or intangible, real or personal." Thus, Cecil's assertion that the RCW does not define "property" to include intangibles such as credit card numbers is without merit.
The State's evidence included numerous credit card, social security, account, and personal identification numbers it obtained from Cecil's computer. The owners of the numbers testified at trial that they did not give the numbers to Cecil nor did they authorize him to use them. Another of the State's witnesses testified that she conspired with Cecil to obtain numbers for the fraudulent purpose of obtaining money and making purchases.
Viewing this evidence in the light most favorable to the State, there is sufficient evidence in the record to persuade any rational trier of fact that Cecil was trafficking in stolen intangible property.
IV. SAG
In his SAG, Cecil contends that the trial court erred in (1) denying his motion to suppress, (2) denying his request for a Franks hearing, and (3) denying his motion to join his earlier drug charges with the as yet uncharged matters in this case.
A. Motion to Suppress
Cecil contends that "if the basis for the investigation is deemed invalid then all that follows should be deemed invalid." SAG at 4. Essentially Cecil asserts that because the trial court found that there was no probable cause to conduct a search at the Clark County residence for Carstensen or Jentet, the entire search warrant should have been deemed invalid and the motion to suppress granted. But it is well-settled that invalid portions of a search warrant do not invalidate that portion of the warrant probable cause supported. State v. Coates, 107 Wn.2d 882, 887-88, 735 P.2d 64 (1987). Thus, this contention is without support.
B. Franks Motion
Cecil also contends that because the police had recently visited the residence without noticing Hyde, "the [ Franks] motion should have been granted." SAG at 12. The trial court did not expressly deny Cecil's Franks motion, but addressed the issue in its conclusions of law denying the motion to suppress. We review conclusions of law de novo. Acrey, 148 Wn.2d at 745.
At a defendant's request, the trial court must hold a Franks hearing if the defendant makes a preliminary showing that the affiant recklessly, knowingly, or intentionally made material misstatements or omissions, and the false statement or omission was necessary to a finding of probable cause. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978); State v. Chenoweth, 160 Wn.2d 454, 469, 158 P.3d 595 (2007). The defendant must support the allegations with an offer of proof and mere "`[a]llegations of negligence or innocent mistake are insufficient.'" State v. Garrison, 118 Wn.2d 870, 872, 827 P.2d 1388 (1992) (quoting Franks, 438 U.S. at 171).
If these requirements are not met the inquiry ends. If these requirements are met, and the false representation or omitted material is relevant to establishment of probable cause, the affidavit must be examined. If relevant false representations are the basis of attack, they are set aside. If it is a matter of deliberate or reckless omission, those omitted matters are considered as part of the affidavit.
Garrison, 118 Wn.2d at 873. If the resulting affidavit remains sufficient to support a finding of probable cause, the suppression motion fails, but if the resulting affidavit fails to support probable cause, the search warrant is invalid and the evidence obtained under the warrant is excluded. Garrison, 118 Wn.2d at 873.
Cecil requested a Franks hearing "to determine whether the search warrant affidavit deliberately deceived the issuing Magistrate or acted in reckless disregard for the truth." CP at 49. In support, Cecil pointed to a police report indicating that the night before Harris submitted his affidavit, Officer Acee and other police officers who came to the house looking for two other wanted persons, were admitted to the residence where they located and arrested them. Cecil asserted that it would be typical for Harris to have run an electronic history check on the residence address and that such a check would have made him aware of Acee's police report, but he also admitted that there is no reference in Acee's police report to any of the individuals mentioned in the Harris affidavit. Cecil also acknowledged that Acee did not recall any other persons being present or if he advised Harris about the earlier search. Cecil also pointed to Harris's knowledge of Chylack's drug court compliance visit two weeks before the search warrant was issued. But here, Cecil admitted that Chylack also did not recall any persons mentioned in the Harris affidavit and that he only checked Cecil's room.
Cecil argued that, because Harris should have known about the Acee visit and did, in fact, know of Chylack's visit, his affidavit of probable cause should have included this information. He reasoned that "[i]f the issuing magistrate knows there is reliable information [that] the people being sought [were] not there [during] two previous searches it should [a]ffect whether there is probable cause to expect to find them to be there when the search warrant request was executed." CP at 51.
The State responded that (1) there was no showing that Harris acted in reckless disregard for the truth because the asserted omissions were not material to the issue of probable cause and, (2) even with the omitted information inserted, the affidavit still supported probable cause.
The trial court's conclusion of law 4 states:
In regard to any Franks v. Delaware issue, there is no evidence that [Harris] deliberately made any misrepresentations or omissions nor did he recklessly disregard the possibility that material information existed. There is no evidence that [Harris] would have found [Acee's] report nor is he expected to check for a report every minute up to the presentation of the affidavit. As far as the earlier drug court compliance check by [Chylack], it was made clear that [Chylack] was only in [Cecil's] bedroom and that he was not aware if anyone else was in the residence. His information would not negate probable cause. There is no basis on Franks v. Delaware to void the search.
CP at 208.
We agree with the trial court. Although it is unclear from the record whether Harris knew of Acee's earlier visit, neither Acee's nor Chylack's visit produced information material to Harris's affidavit in support of his request for a search warrant to attempt to locate Hyde at the house. Therefore, even with the omissions inserted, the affidavit supports the finding of probable cause. See Garrison, 118 Wn.2d at 873. Thus, Cecil's contention fails.
C. Motion to Join or Consolidate Cases
Finally, Cecil contends the sentencing court erred when it denied his motion to join his preexisting drug charge with the charges here. Cecil filed a pretrial motion to dismiss for failure to join under CrR 4.3.1(b)(2).
We gather from Cecil's SAG that he had opted into drug court in lieu of sentencing after his guilty plea to previous drug related offenses. After Harris's search, Cecil failed to appear in drug court. Based on his failure to appear, a warrant was issued and Cecil was arrested. The State then sought to terminate Cecil's drug court participation on July 8, 2005, and sentence him on those offenses. In his motion to the trial court, Cecil asserted that he, apparently in anticipation of his conviction in the current matter, informally requested that the drug case be joined with this one so he could be sentenced for the drug conviction and these charges concurrently. We assume that Cecil's earlier informal requests were denied because the trial court sentenced him on the drug charges on August 12, 2005. Meanwhile, police completed their investigation and the State charged Cecil in the current matter on August 21, 2005.
RCW 9.94A.517(2) authorizes the court to "utilize any other sanctions or alternatives as authorized by law, including but not limited to the special drug offender sentencing alternative under RCW 9.94A.660 or drug court under RCW 2.28.170."
We say "apparently" because neither the record nor Cecil's SAG makes it clear.
The State, in response to Cecil's pretrial motion to dismiss for failure to join, argued that: (1) there is no record of any motion, oral or written, made by Cecil, therefore, under CrR 4.3.1(b)(2) he waived any right to consolidation; (2) Cecil was not charged with new crimes when he claims he made his informal request to join, therefore, there were no charges to consolidate; and (3) even if Cecil had been charged when he made his informal request, the previous drug offenses were not related to the subsequent offenses, as provided in CrR 4.3.1. The trial court agreed and denied Cecil's motion because the current offense was not a related offense within the meaning of the rule. CrR 4.3.1 states, in relevant part, that:
(1) Two or more offenses are related offenses, for purposes of this rule, if they are within the jurisdiction and venue of the same court and are based on the same conduct.
(2) When a defendant has been charged with two or more related offenses, the timely motion to consolidate them for trial should be granted unless the court determines that because the prosecuting attorney does not have sufficient evidence to warrant trying some of the offenses at that time, or for some other reason, the ends of justice would be defeated if the motion were granted. A defendant's failure to so move constitutes a waiver of any right of consolidation as to related offenses with which the defendant knew he or she was charged.
(3) A defendant who has been tried for one offense may thereafter move to dismiss a charge for a related offense, unless a motion for consolidation of these offenses was previously denied or the right of consolidation was waived as provided in this rule. The motion to dismiss must be made prior to the second trial, and shall be granted unless the court determines that because the prosecuting attorney was unaware of the facts constituting the related offense or did not have sufficient evidence to warrant trying this offense at the time of the first trial, or for some other reason, the ends of justice would be defeated if the motion were granted.
CrR 4.3.1(b) (emphasis added).
The rule clearly requires that the related offenses involve the same conduct, which Cecil does not demonstrate. And Cecil waived any right by failing to formally move for consolidation. Moreover, Cecil had not been charged at the time he asserts that he made an informal request. His contention that the trial court abused its discretion in failing to consolidate his offenses is without merit.
We affirm.
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.
Bridgewater, J., Armstrong, J., concur.