Opinion
No. 27817-1-II c/w 27982-7-II; 29218-1-II
Filed: March 4, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County Docket No: 00-1-05560-1 Judgment or order under review Date filed: 08/17/2001
Counsel for Appellant(s), Sheri Lynn Arnold (Appearing Pro Se), Attorney at Law, P.O. Box 7718, Tacoma, WA 98406-0718.
Jon R. Donahue (Appearing Pro Se), Coyote Ridge Correction Center, Doc No. 826931, 1301 N. Ephrata Ave., Cornell, WA 99326.
Counsel for Petitioner(s), Jon R. Donahue (Appearing Pro Se), Coyote Ridge Correction Center, Doc No. 826931, 1301 N. Ephrata Ave., Cornell, WA 99326.
Counsel for Respondent(s), Alicia Marie Burton, Pierce County Prosecutors Office, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Michelle Luna-Green, Pierce Co Pros Attorney, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Jon Donahue appeals his drug convictions, challenging the validity of the search warrant the police used to seize the contraband.
In a personal restraint petition, he also argues that the State did not establish his dominion and control over the garage-manufacturing site and, thus, claims the evidence was insufficient to convict him. In a second personal restraint petition, he argues that the two crimes arose out of the same criminal conduct and that the trial judge should have counted them as one point in his offender score. We find no error and, accordingly, affirm his conviction and deny his petitions.
FACTS
An anonymous informant told the police that Jon Donahue was manufacturing methamphetamine at 3610 So. Asotin in Tacoma. Police confirmed that Donahue had a car parked at that address and rented the garage from the resident, Holly Smith. After smelling a strong chemical odor coming from a hole on top of the garage, learning that Donahue had a felony warrant for unlawful possession of a controlled substance, and discovering that Smith's boyfriend, Justin McCorkle, had seen `anhydrous ammonia, toluene, acids, coffee filters, methamphetamine and glassware in the garage,' police obtained a search warrant. Clerk's Papers (CP) at 184.
The magistrate issued the search warrant based on Officer Walkinshaw's affidavit, which recited the above facts. The affidavit also stated that (1) Smith told Walkinshaw she knew Donahue made methamphetamine and had seen materials used in the manufacturing process, and (2) McCorkle told Walkinshaw that he knew Donahue manufactured methamphetamine. But at the motion to suppress, Smith and McCorkle denied making these statements to Walkinshaw so the court redacted them. Donahue then asked the court to hold a Franks hearing, contending that probable cause did not support the warrant once the statements were removed. The court ruled, however, that the warrant was valid even without the redacted portions and denied Donahue's request for a Franks hearing. Donahue appeals this ruling, arguing both that the warrant was not supported by probable cause because the informant's tip was not reliable, and that the court should have held a Franks hearing. Donahue also challenges the court's failure to redact more of McCorkle's statements from the affidavit.
Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
The trial evidence showed that the garage consisted of a northern and southern part, separated by a wall. The only door between the two sides was nailed shut. Donahue admitted he rented the southern part. And Holly Smith told an officer that Donahue lived in the garage. From the south side, police recovered six bags of rock salt, several coffee filters with methamphetamine residue, and documents with Donahue's name on them. From the north side, they recovered pseudoephedrine, methamphetamine residue, and numerous materials and equipment used to manufacture methamphetamine. Also on the north side they found a box containing papers in Donahue's name, including a vehicle registration and other automobile-related documents, prescription information, legal documents (including child support papers, employment security papers, and judgment payment receipts), and documents from his son's school.
ANALYSIS I. Search Warrant A. Confidential Informant
Donahue contends that the affidavit supporting the search warrant did not establish probable cause to issue a search warrant. Because the police knew nothing about the reliability or basis of information of the anonymous informant or about McCorkle, Donahue claims that the information supplied by these people did not support the warrant. And, continues Donahue, the corroborating information — where Donahue lived, the chemical odor coming from his residence, and an outstanding warrant against him for possessing drugs — was insufficient to support the warrant.
An affidavit supporting a search warrant must describe facts sufficient for a reasonable person to conclude that the suspect is likely involved in criminal activity. State v. Kalakosky, 121 Wn.2d 525, 531, 852 P.2d 1064 (1993). We defer to the issuing magistrate and resolve any doubts in favor of the warrant's validity. Kalakosky, 121 Wn.2d at 531. If officers rely on an informant's tip in asking for a search warrant, Washington's constitution requires courts to apply the Aguilar-Spinelli test. State v. Jackson, 102 Wn.2d 432, 433, 688 P.2d 136 (1984). Under this test, the officer's supporting affidavit must (1) state the `underlying circumstances from which the informant drew his conclusion' and (2) describe why the officer has concluded that the informant is credible or that his information is reliable. Jackson, 102 Wn.2d at 435. To satisfy the first prong (`basis of knowledge'), the informant must explain how he has personal knowledge of the information. Jackson, 102 Wn.2d at 437-38. To satisfy the second prong (`veracity'), the officer must show that the informant has provided accurate information to police in the past, or for other reasons the informant is reliable. Jackson, 102 Wn.2d at 437. But even `if the informant's tip fails under either or both of the two prongs of Aguilar-Spinelli,' the State can support the informant's information if the police investigate and corroborate the informant's tip. Jackson, 102 Wn.2d at 438. The corroboration must cover more than `public or innocuous facts.' Jackson, 102 Wn.2d at 438.
Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
Here, Walkinshaw's affidavit said nothing about the informant's reliability or basis of knowledge. Therefore, the affidavit established probable cause only if the police investigation sufficiently corroborated the tip. Jackson, 102 Wn.2d at 438.
After receiving the tip, Walkinshaw confirmed that a car parked at the reported address was registered to Jon R. Donahue. And Holly Smith told Walkinshaw that she rented the garage to Donahue. Walkinshaw also learned that Donahue had a felony arrest warrant for possession of a controlled substance. And Smith's boyfriend told police that he had seen anhydrous ammonia, toluene, acids, coffee filters, methamphetamine, and glassware in the garage. Walkinshaw, who is a member of the Clandestine Laboratory Team, stated that people use anhydrous ammonia to manufacture methamphetamine. Finally, the officers detected a strong chemical smell coming from a `venting hole' on top of the garage. CP at 184.
Many of the statements in the officer's affidavit were redacted by the court in the CrR 3.6 hearing. Here, we use only those statements that the court did not redact from the affidavit.
In State v. Sterling, 43 Wn. App. 846, 719 P.2d 1357 (1986), the police received an anonymous tip giving the name and address of a person the informant claimed was growing marijuana. Police confirmed the tip by verifying the name and address, observing modifications to the house consistent with a marijuana growing operation, and learning that the suspect had past involvement with narcotics. Sterling, 43 Wn. App. at 848-49. Resolving all doubts in favor of the search warrant's validity, the appellate court upheld the trial court's finding that probable cause supported the warrant. Sterling, 43 Wn. App. at 852. As in Sterling, the officer here confirmed that Donahue was connected with the address the informant supplied. He interviewed someone familiar with the house who had seen many of the materials typically used in manufacturing methamphetamine. He and another officer smelled a strong chemical odor coming from the garage. And he learned that Donahue had apparently possessed drugs before. . .
We conclude that the issuing magistrate was justified in finding that the police investigation sufficiently corroborated the informant's tip. The trial court properly denied Donahue's motion to suppress.
B. Failure to Redact McCorkle's Statements
Donahue argues that the trial court should have redacted from Justin McCorkle's affidavit the statement that he saw materials used to manufacture methamphetamine in the garage. Walkinshaw attested that both McCorkle and Smith said they knew that Donahue made methamphetamine and that each reported seeing many of the manufacturing materials in the garage. The trial court redacted portions of statements that Walkinshaw's affidavit attributed to McCorkle and Smith based on affidavits the two filed. Donahue contends that their affidavits are so similar that the trial court should have redacted the same information from both statements. The trial court redacted Smith's statement that she knew Donahue was manufacturing methamphetamine and her statement that she saw products commonly used in the manufacturing process. But from McCorkle's statement, it redacted only the statement that he knew Donahue was manufacturing methamphetamine.
But the differences between the two affidavits are important. Smith stated, `I have read the report written by the police officers of our conversation. I never told them anything that they wrote. The information in their report is totally false.' CP at 167. In contrast, McCorkle stated, `I personally never told the police that I knew Jon Donahue to be involved in manufacturing methamphetamine. They asked me that question and I said that I had no idea. . . . I told them all I knew is that he sometimes worked on his car at Holly's house.' CP at 164. Unlike Smith, McCorkle did not deny all his statements to the officers; nor did he deny that he told them he saw manufacturing materials. The trial court properly redacted only the portion of McCorkle's statement that he specifically denied making.
C. Evidentiary Hearing Following Redaction
Donahue argues that the trial court should have conducted a Franks hearing after it redacted parts of the warrant affidavit. In Franks, the Supreme Court held that the trial court must hold a hearing when a defendant `makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause[.]' Franks, 438 U.S. at 155-56. Washington courts have clarified that this holding has two parts: (1) the defendant must first allege that the affidavit contains a deliberate falsehood or reckless disregard for the truth, and (2) the false representation must be necessary to finding probable cause. State v. Garrison, 118 Wn.2d 870, 872-73, 827 P.2d 1388 (1992). The court must hold a hearing only if both parts are met. But '[i]f the affidavit with the matter deleted . . . remains sufficient to support a finding of probable cause, the suppression motion fails and no hearing is required.' Garrison, 118 Wn.2d at 873. Here, the trial court redacted information contained in Walkinshaw's affidavit that Smith and McCorkle contested in their affidavits. It found that probable cause supported the search warrant even with these redactions. As we have discussed, Walkinshaw's redacted affidavit was sufficient to show probable cause; the trial court did not err in denying a Franks hearing.
II. Sufficiency of the Evidence
Donahue contends that the State's evidence was insufficient to convict him on either the possession or the manufacturing count. Specifically, he argues that the State did not show that he had dominion and control over the northern half of the garage, where the manufacturing materials and the pseudoephedrine were found.
Evidence is sufficient to support a conviction if, taken in the light most favorable to the State, it allows any rational trier of fact to find the essential elements of the case beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The trier of fact determines credibility. State v. Casbeer, 48 Wn. App. 539, 542, 740 P.2d 335 (1987). Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
To prove that Donahue was guilty of unlawfully possessing pseudoephedrine with intent to manufacture methamphetamine, the State had to prove that he had actual or constructive possession of pseudoephedrine and intended to use it to make methamphetamine. RCW 69.50.440; State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). A person has constructive possession when he has dominion and control over the unlawful items. State v. Callahan, 77 Wn.2d 27, 29-30, 459 P.2d 400 (1969). Dominion and control over a premises creates a `rebuttable inference' of dominion and control over unlawful items found in the premises. State v. Cantabrana, 83 Wn. App. 204, 208, 921 P.2d 572 (1996). Dominion and control need not be exclusive. State v. Summers, 107 Wn. App. 373, 384, 28 P.3d 780 (2001), opinion modified on reconsideration by 43 P.3d 526 (2002). To prove that Donahue manufactured methamphetamine, the State had to show that he had the means to produce, prepare, propagate, compound, convert, or process a controlled substance. State v. Todd, 101 Wn. App. 945, 952, 6 P.3d 86 (2000). If the State produces evidence of methamphetamine lab components and can link those components to the defendant, the evidence is sufficient to convict. Todd, 101 Wn. App. at 952-53. And although some of the necessary materials may be absent, the evidence is sufficient if the police find many of the necessary materials in a form that suggests no purpose other than to manufacture methamphetamine. State v. McPherson, 111 Wn. App. 747, 758-59, 46 P.3d 284 (2002).
In the south side, police found six bags of rock salt and several coffee filters, one containing methamphetamine residue. Donahue admits that he rented and, therefore, had dominion and control over this side of the garage and its contents.
In the north side, police found many of the ingredients and tools used to make methamphetamine, as well as methamphetamine residue and pseudoephedrine. They also found a file box containing Donahue's personal documents; these included papers that one ordinarily keeps in a safe place, such as automobile documentation, prescription information, legal documents, and documents from his son's school. And although Smith told an officer that Donahue lived in the garage, Donahue said that he had no idea how the papers got to the north side of the garage. Nor, according to Donahue, did he know anything about the obvious manufacturing site and the strong methamphetamine odor.
The materials found in both sides of the garage are more than sufficient to establish the presence of pseudoephedrine and an ongoing methamphetamine lab. And the evidence linked Donahue to both sides of the garage. This, together with his implausible claim that he knew nothing of the operation, was sufficient for the jury to find Donahue guilty of both crimes beyond a reasonable doubt.
III. Sentencing
In a personal restraint petition, Donahue contends that the court should have considered the two crimes as one in his offender score because they involved the same criminal conduct.
The trial court counted possession of pseudoephedrine with intent to manufacture methamphetamine as one point and manufacturing methamphetamine as one point. We `generally defer to the discretion of the sentencing court, and will reverse a sentencing court's determination of `same criminal conduct' only on a `clear abuse of discretion or misapplication of the law." State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000) (quoting State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440 (1990)).
"Same criminal conduct' . . . means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.' RCW 9.94A.589(1)(a). Donahue committed the crimes at the same time and the crimes involved the same victim — the public. The question is whether the crimes involved the same criminal intent. In answering this, we focus on whether the defendant's objective criminal intent changed from one crime to the next. State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237 (1987).
Here, the objective intent of the two crimes is different. The possession count requires the intent to use the pseudoephedrine to make methamphetamine in the future. But manufacturing methamphetamine requires no future intent. The crime is committed in the present or recent past. See State v. Maxfield, 125 Wn.2d 378, 401-03, 886 P.2d 123 (1994) (manufacturing marijuana involved past and present intent, but possession of packaged marijuana involved future intent).
The trial court did not abuse its discretion by counting these two crimes separately in calculating the offender score.
We affirm the trial court and deny the petitions.
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 BRIDGEWATER, J., concur.