Opinion
No. 35107-2-II.
January 29, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 05-1-00794-8, Craddock D. Verser, Anna M. Laurie, and Jay B. Roof, JJ., entered July 12, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Hunt and Quinn-Brintnall, JJ.
Timothy Robert De LaCruz appeals from his conviction of possession of a controlled substance (methamphetamine). We affirm.
FACTS
On May 26, 2005, four plain clothed Bremerton Police Department detectives went to Timothy R. De LaCruz's house, located at 203 Naval Avenue in Bremerton, Washington. The detectives intended to conduct a knock and talk after an informant provided information that De LaCruz had drug paraphernalia in the house.
As De LaCruz opened the door, Detective Randy Plumb observed a female inside the house, fumbling with what appeared to be a methamphetamine pipe. Meanwhile, Detective Aaron Elton identified himself and asked De LaCruz to step outside, who cooperated. Detective Elton then explained that he had been informed that De LaCruz had drug paraphernalia in his home. De LaCruz confirmed there was drug paraphernalia in his house and indicated he had a glass methamphetamine pipe and a bottle that had been fashioned into a pipe.
As Detective Elton spoke with De LaCruz, he noticed that De LaCruz appeared nervous, sweaty, and "wide-eyed." RP (Jan. 17, 2006) at 10. Detective Elton suspected that De LaCruz was high on methamphetamine. When Detective Elton inquired, De LaCruz admitted he had used methamphetamine earlier that day at his residence. Nevertheless, Detective Elton also observed that De LaCruz "easily followed the conversation, was able to answer questions in a focused and relevant manner and did not have difficultly in expressing himself." CP at 15.
Detective Elton advised De LaCruz of his Miranda and Ferrier rights. Again, Detective Elton observed that De LaCruz followed the discussion of his rights and did not have any difficulty understanding them. De LaCruz remained cooperative and gave his consent for the detectives to search his house.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).
Once inside the living room, the detectives found both the glass pipe and bottle that De LaCruz had previously described. Later, test results confirmed the pipes contained methamphetamine residue. In addition to the pipes, the detectives found a makeup bag containing some pills and some "scraper baggies." RP (Jan. 17, 2006) at 21.
On May 27, 2005, the State charged De LaCruz by information filed in Kitsap County, with one count of possession of a controlled substance (methamphetamine) in violation of RCW 69.50.4013 and 69.50.206(d)(2). On October 17, 2005, the day of the trial, De LaCruz filed a notice of withdrawal and substitution of counsel. The trial court continued trial until December 5, with a status hearing set for November 7.
But De LaCruz failed to appear at the November 7 status hearing. De LaCruz's attorney, Greg Memovich, was able to reach his client via telephone on that day; nonetheless, De LaCruz was unable to make it to the court before the end of the court's calendar. Therefore, the court issued a bench warrant and struck the December 5 trial date. While Memovich and the deputy prosecutor, Kevin Anderson, waited for De LaCruz to appear on November 7, they discussed the possibility of the State charging De LaCruz with a bail jumping charge under RCW 9A.76.170.
RCW 9A.76.170(1) states in pertinent part:
Any person having been released by court order or admitted to bail with knowledge of the requirement of a subsequent personal appearance before any court of this state, or of the requirement to report to a correctional facility for service of sentence, and who fails to appear or who fails to surrender for service of sentence as required is guilty of bail jumping.
On November 9, De LaCruz appeared with Memovich to quash the warrant, but the State successfully made a bail argument and subsequently took De LaCruz into custody. The trial court set trial for February 6, 2006. De LaCruz posted bail.
On January 17, 2006, the trial court presided over a CrR 3.5/3.6 hearing on De LaCruz's motion to suppress evidence found during the search of his house. Detective Elton was the only witness called at the hearing. The trial court denied suppression, finding that De LaCruz voluntarily waived his Miranda and Ferrier rights. The court further ruled that the two pipes found in De LaCruz's house would be admissible at trial.
On February 6, 2006, De LaCruz failed to appear for trial. Consequently, the trial court rescheduled trial for February 8, 2006. At the start of trial on February 8, the State attempted to file an amended information, including a bail jumping charge under RCW 9A.76.170, stemming from De LaCruz's failure to appear on November 7, 2005. Memovich objected, arguing that he had a conflict of interest because he was a potential witness for De LaCruz on the bail jumping charge. The trial court denied the State's motion to amend the information and the parties planned to go to trial on the possession of controlled substance charge after lunch.
De LaCruz was at the courthouse, but appeared in the wrong courtroom.
After the first hearing on February 8, Memovich and Anderson discussed the repercussions of trying the two charges separately. Specifically, they discussed the possibilities of consecutive versus concurrent time served. On all accounts, Anderson was angry during this conversation because the trial court just denied his motion to amend the information. Anderson stated that he was under no obligation to try to schedule a bail jump trial on an expedited basis just for the convenience of De LaCruz.
After this conversation with Anderson, Memovich discussed his options with De LaCruz and they decided to go to trial on the drug charge and the bail jumping charge. But over the lunch hour, Memovich had second thoughts and advised his client to seek another attorney who could handle both charges.
When the court reconvened at 1:30 on February 8, Memovich expressed his concerns and moved for withdrawal from representing De LaCruz. The trial court gave De LaCruz the option of proceeding to trial only on the drug charge. But Memovich felt it was in the best interests of De LaCruz to continue the trial so that both the bail jumping and possession charges could be tried together. Ultimately, De LaCruz agreed and trial was continued.
Honorable Anna M. Laurie presided over the afternoon hearing on February 8, 2006.
Thomas Weaver filed a notice of appearance on behalf of De LaCruz on February 15, 2006. He then filed a motion to dismiss on March 3, 2006, and the trial court heard argument on May 19, 2006. The motion to dismiss concerned the events surrounding the State's attempt to amend the information to include the bail jumping charge on February 8, 2006. Memovich and Anderson both testified at the hearing. The trial court denied De LaCruz's motion to dismiss.
The State filed a second amended information on June 12, 2006, charging De LaCruz with one count of possession of a controlled substance (methamphetamine) and one count of bail jumping. The parties proceeded to trial. A jury found De LaCruz guilty of possession of a controlled substance and not guilty on bail jumping. De LaCruz timely appeals.
ANALYSIS I. Suppression Motion
De LaCruz first contends that the trial court erred in denying his motion to suppress because he did not voluntarily give consent to search his home. He argues that his consent was not voluntary because he was high on methamphetamine at the time. But intoxication does not render consent involuntary per se and in this case De LaCruz's argument is unpersuasive.
We review a CrR 3.6 suppression order by independently evaluating the evidence to determine whether substantial evidence supports the findings of fact and the findings of fact support the conclusions of law. State v. Hill, 123 Wn.2d 641, 644-45, 870 P.2d 313 (1994). We review conclusions of law de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).
De LaCruz assigns error to the trial court's conclusion of law (CL) 3: "That while the defendant may have ingested methamphetamine recently[,] he understood who was speaking with him and what was being discussed, and voluntarily waived his rights under Miranda [sic] and Ferrier [sic]." CP at 16. He maintains that the State violated his rights enumerated in the Washington State Constitution, article I, section 7.
Under article I, section 7 of the Washington State Constitution, warrantless searches are per se unreasonable. State v. Khounvichai, 149 Wn.2d 557, 562, 69 P.3d 862 (2003). But there are exceptions to the warrant requirement and the State bears the burden of proving that the warrantless search falls within one of the exceptions. Khounvichai, 149 Wn.2d at 562. Consent to search is one such exception. State v. Holmes, 108 Wn. App. 511, 516, 31 P.3d 716 (2001). The State must show that the consent was freely and voluntarily given. State v. O'Neill, 148 Wn.2d 564, 588, 62 P.3d 489 (2003).
De LaCruz primarily relies on State v. Sondergaard , arguing that the State failed to show that he voluntarily gave consent because he was impaired due to his ingestion of methamphetamine at the time. But Sondergaard is distinguishable from this case.
State v. Sondergaard, 86 Wn. App. 656, 664, 938 P.2d 351 (1997), review denied, 133 Wn.2d 1030(1998).
In Sondergaard, police responded to a complaint that Sondergaard was acting irrationally in a hotel room. Sondergaard, 86 Wn. App. at 657. The officers arrived to find her sitting in a dark room, fidgeting, rocking back and forth and sporadically pointing at nothing in particular. Sondergaard, 86 Wn. App. at 658. At one point during her initial three-minute conversation with the officer, Sondergaard "nonsensically mentioned that a soda can was moving." Sondergaard, 86 Wn. App. at 658. Nevertheless, the officers obtained Sondergaard's consent to search her purse and found drugs. Sondergaard, 86 Wn. App. at 658. The trial court in Sondergaard found that the defendant was in a hallucinatory state when she gave her consent, based on the officer's unrebutted description of her behavior. Sondergaard, 86 Wn. App. at 664. Division One affirmed, holding that there was substantial evidence supporting the trial court's finding. Sondergaard, 86 Wn. App. at 664-65.
Here, there is substantial evidence supporting the trial court's finding that De LaCruz voluntarily waived his rights under Miranda and Ferrier, thereby giving his voluntary consent for the officers to enter and search his house. The mere fact that De LaCruz ingested methamphetamine that day before the officers engaged in the knock and talk procedure does not render his consent involuntary per se. See Sondergaard, 86 Wn. App. at 664 n. 23 (citing United States v. Rambo, 789 F.2d 1289 (8th Cir. 1986); 3 Wayne LaFave Search and Seizure §§ 8.2(e), at 668, 670 (3d. ed. 1996)).
Detective Elton's unrebutted testimony establishes that De LaCruz's responses were coherent during his interactions with the officers. In fact, De LaCruz concedes this point in his appellate brief. Although Officer Elton stated that De LaCruz appeared wide-eyed, sweaty, and nervous, Officer Elton also stated this was a normal reaction during a knock and talk procedure. See RP (Jan. 17, 2006) at 10. In short, there is no evidence on the record suggesting that De LaCruz's consent was involuntary. Thus, there is substantial evidence supporting the trial court's finding that De LaCruz's consent was voluntary.
Notably, De LaCruz does not assign error to the trial court's finding of fact (FF) 4 which states, "[t]hat Detective Elton observed the defendant to be sweating and also wide eyed. Detective Elton suspected that the defendant had used some sort of drug, possibly methamphetamine. Detective Elton also observed that the defendant easily followed the conversation, was able to answer questions in a focused and relevant manner and did not have any difficulty in expressing himself." CP at 15. Therefore, this finding of fact is a verity on appeal. State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).
II. CrR 8.3(b) Motion to Dismiss
De LaCruz next contends that the trial court abused its discretion in denying his CrR 8.3(b) motion to dismiss. He argues that the trial court forced him to choose between his right to a speedy trial and effective assistance of counsel. The State responds that the trial court did not force De LaCruz to choose between these rights and therefore it did not abuse its discretion when it denied De LaCruz's motion on such grounds under CrR 8.3. The State is correct.
CrR 8.3(b) states:
The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial. The court shall set forth its reasons in a written order.
We review the trial court's action for manifest abuse of discretion. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). A trial court abuses its discretion if its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons. Rohrich, 149 Wn.2d at 654.
To obtain a dismissal under CrR 8.3(b), the defendant must show by a preponderance of the evidence (1) arbitrary action or governmental misconduct, and (2) actual prejudice affecting his right to a fair trial. Rohrich, 149 Wn.2d at 654, 658. Because dismissal of charges is an extraordinary remedy saved for egregious cases, the defendant must establish actual rather than merely speculative prejudice. Rohrich, 149 Wn.2d at 657-58.
The crux of De LaCruz's argument is that the State engaged in arbitrary action and governmental misconduct when it informed his attorney that by not joining the bail jumping charge to the possession of controlled substance, De LaCruz could face consecutive sentences rather than concurrent sentences. He contends that because the State knew his defense attorney had a conflict of interest and could not proceed in a joined trial that day and as a result, De LaCruz had to choose between his right to speedy trial and right to effective assistance of counsel. But De LaCruz's contention is misguided for several reasons.
To begin with, De LaCruz has not shown that the State engaged in misconduct or arbitrary governmental action. He relies on State v. Martinez and State v. Burri to support his assertion of misconduct, but both of these cases are inapposite.
State v. Martinez, 121 Wn. App. 21, 86 P.3d 1210 (2004).
State v. Burri, 87 Wn.2d 175, 550 P.2d 507 (1976).
State v. Martinez, a case decided by Division Three of this court, involved exculpatory evidence held by the State. Martinez, 121 Wn. App. at 25-26. The Martinez court found substantial evidence that supported the fact that the State withheld exculpatory evidence from the defense until the middle of trial. Martinez, 121 Wn. App. at 30-31. The Martinez court also concluded that the defendant was so prejudiced in his right to counsel because the late discovery compromised defense counsel's ability to adequately prepare for trial, as well as the defendant's right to effective assistance of counsel. Martinez, 121 Wn. App. at 34-35.
Likewise, in State v. Burri, the prosecutor held an illegal special inquiry proceeding to examine the defendant's alibi witnesses and then directed them not to discuss this testimony with the defendant. Burri, 87 Wn.2d at 176. The Supreme Court held that dismissal under CrR 8.3(b) was appropriate because the unauthorized interference with the defendant's witnesses violated his right to fair trial, which includes the right to interview witnesses in preparation for trial. Burri, 87 Wn.2d at 181, 183. In particular, the court noted that it was a fatal error to preclude the defendant the privilege of conferring with his own witnesses in preparation for trial. Burri, 87 Wn.2d at 180.
Here, the State did not preclude De LaCruz from interviewing witnesses, nor did it prevent De LaCruz from accessing evidence. Rather, the State merely informed De LaCruz that if the charges were not tried together, there was a possibility that De LaCruz may face consecutive time rather than concurrent time if convicted. This is consistent with RCW 9.94A.589(3), which grants a sentencing court "total discretion" to impose a sentence consecutive to one imposed for a different felony when the defendant was not serving a sentence when he committed the current crime and a court imposed the sentence for a different felony after the defendant committed the current crime. State v. Champion, 134 Wn. App. 483, 487-88, 140 P.3d 633 (2006), review denied, 160 Wn.2d 1006 and cert. denied, S. Ct., 2007 WL 2591242 (Oct. 29, 2007); RCW 9.94A.589(3).
But even if the State did engage in misconduct, De LaCruz cannot show actual prejudice from such misconduct. A right to a fair trial may be impermissibly prejudiced when he must choose between his right to a speedy trial and his right to be represented by counsel who has had sufficient opportunity to adequately prepare a material part of his defense. State v. Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980). But a defendant must establish "by a preponderance of the evidence that interjection of new facts into the case when the State has not acted with due diligence [compelled] him to choose between prejudicing either of these rights." Price, 94 Wn.2d at 814. Here, neither the State nor the trial court forced De LaCruz to choose between his right to speedy trial and his right to effective representation.
First, the trial court denied the State's request to join the bail jumping charge to the possession charge. On the morning of February 8, 2006, the trial court stated, "it appears to me, based on the record presented to the Court, that Mr. Memovich may well be a witness in the bail jump, and the bail jump is, therefore, not appropriately joined with the trial with the present cause, which is the possession of methamphetamine." RP (Feb. 8, 2006) at 7. Furthermore, on that same afternoon, the trial court provided De LaCruz the option to go forward with trial on the possession charge. But instead, De LaCruz requested and the trial court granted him a continuance. As such, the trial court did not in fact require him to choose between the two fundamental constitutional rights.
Second, the record in this case does not establish that De LaCruz's right to speedy trial was about to expire. CrR 3.3 governs the time for trial in criminal cases. Under CrR 3.3(b)(2), a criminal defendant must be brought to trial within 90 days if not incarcerated. The 90-day period commences on the arraignment date, but the commencement date may be reset for various reasons under the rule. For example, the commencement date is reset when counsel is disqualified from representation. CrR 3.3(c)(2)(vii). In such case, the 90-day period begins on the disqualification date. CrR 3.3(c)(2)(vii). Moreover, under the Rules of Professional Conduct, a lawyer generally shall not act as an advocate at a trial in which he is likely to be a necessary witness. RPC 3.7(a).
There is no mention of the speedy trial time on the record, except for in De LaCruz's motion to dismiss, which states his speedy trial right expired on February 21, 2006.
CrR 3.3(c)(2)(vii) states:
Disqualification of Counsel. The disqualification of the defense attorney or prosecuting attorney. The new commencement date shall be the date of disqualification.
RPC 3.7(a) states: "A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. . . ."
Here, the trial court denied De LaCruz's motion to dismiss under CrR 3.3(c)(2)(vii). In doing so, it recognized that Memovich had a conflict of interest in defending De LaCruz against the bail jumping charge because he was a likely witness for De LaCruz's defense. But it also noted that as soon as the State filed the bail jumping charge against De LaCruz, Memovich would have to disqualify himself due to his conflict of interest and thus the 90-day period would begin anew. Therefore, because the 90-day period would begin anew as soon as Memovich disqualified himself, neither the State nor the trial court forced De LaCruz to choose between his right to a speedy trial and right to the effective assistance of counsel. And most notably, De LaCruz obtained different counsel before the trial court joined the two counts on June 12.
The commencement date is also reset for a defendant's failure to appear at any proceeding that requires the defendant's presence. CrR 3.3(c)(2)(H). The defendant's presence is required at "the arraignment, at every stage of the trial including the empanelling of the jury and the return of the verdict, and at the imposition of sentence." CrR 3.4(a). The defendant's presence is also required where the court orders him to appear. State v. Branstetter, 85 Wn. App. 123, 128-29, 935 P.2d 620, review denied, 132 Wn.2d 1011 (1997).
CrR 3.3(c)(2)(ii) states:
Failure to Appear. The failure of the defendant to appear for any proceeding at which the defendant's presence was required. The new commencement date shall be the date of the defendant's next appearance.
In this case, De LaCruz failed to appear for trial on February 6, 2006. See RP (May 19, 2006) at 14-15. Thus, under CrR 3.3(c)(2)(H), the 90-day time period was reset on that day. State v. Wachter, 71 Wn. App. 80, 83-84, 856 P.2d 732 (1993) (holding that the defendant's failure to appear at 9:00 a.m. when her case was called to appear, despite the fact that the defendant appeared two hours later), review denied, 123 Wn.2d 1014 (1994). Therefore, De LaCruz's speedy trial right was not about to expire on February 8, 2006.
Accordingly, neither the State nor the trial court forced De LaCruz to choose between his right to speedy trial and right to the effective assistance of counsel. Consequently, De LaCruz cannot show actual prejudice and the trial court did not abuse its discretion in denying De LaCruz's motion to dismiss under CrR 8.3(b).
III. Jury Instructions
De LaCruz challenges the trial court's refusal to give two of his proposed jury instructions, one instruction regarding unanimity of the jury verdict and another regarding dominion and control of the methamphetamine. We address each contested instruction in turn.
We review the adequacy of jury instructions de novo as a question of law. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). Jury instructions are sufficient if they are supported by substantial evidence; allow the parties to argue their theories of the case; and, when read as a whole, properly inform the jury of the applicable law. State v. Riley, 137 Wn.2d 904, 908 n.l, 909, 976 P.2d 624 (1999).
A. Petrich Instruction
De LaCruz argues that he is entitled to reversal of his conviction because the trial court failed to give a unanimity jury instruction (Petrich instruction). He argues that the State prosecuted him on three possible means of possession (ingestion, and pipes at two locations in the house) and because he had a different defense to each different means, he was entitled to a Petrich instruction. But De LaCruz's argument lacks merit.
A jury may not convict unless it unanimously decides the defendant committed the charged criminal act. State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984), overruled in part by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988). When the State presents evidence of two or more acts constituting a single charged count, the State must either identify which act it is relying on or the trial court must give a unanimity instruction. Petrich, 101 Wn.2d at 570, 572; see also Kitchen, 110 Wn.2d at 411. But when the evidence reveals a continuing course of conduct, no election or unanimity instruction is required. Petrich, 101 Wn.2d at 571-72; State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989). Failure to do either violates the constitutional jury right. State v. King, 75 Wn. App. 899, 903, 878 P.2d 466 (1994), review denied, 125 Wn.2d 1021 (1995). Here, not only did the State present sufficient evidence establishing a continuous course of conduct, but it also elected which act it relied on in seeking De LaCruz's conviction.
To determine whether a continuing course of conduct constitutes a single charged count, an appellate court evaluates the facts in a commonsense manner, considering (1) the time elapsed between the criminal acts and (2) whether the different acts involved the same parties, the same location, and the same ultimate purpose. Handran, 113 Wn.2d at 17.
De LaCruz seems to rely on State v. Hanson to support his argument that a unanimity instruction was required in his case. But Hanson is not factually similar to this case and thus provides little instruction. See State v. Hanson, 59 Wn. App. 651, 661, 800 P.2d 1124 (1990) (regarding a cemetery's violation of state statutes regulating sale of prearrangement contracts).
A case that is more on point is State v. King. In King, the defendant was a passenger in a vehicle. When police stopped the vehicle, they found cocaine between the seats and also in King's fanny pack. At his trial for possession of a controlled substance, King maintained that the police planted the cocaine in the fanny pack; and he denied any knowledge of the drugs in the car. King, 75 Wn. App. at 901-02. Division One reversed the conviction, holding that rather than a continuing course of conduct, the evidence showed "two distinct instances of cocaine possession occurring at different times, in different places, and involving two different containers." King, 75 Wn. App. at 903. Moreover, there was conflicting evidence on both instances of possession, and one instance was constructive while the other instance was actual. King, 75 Wn. App. at 903-04.
To contrast, in State v. Love, police found five rocks of cocaine in Love's pocket. State v. Love, 80 Wn. App. 357, 359, 908 P.2d 395 (1996), review denied, 129 Wn.2d 1016 (1996). They also found 40 rocks of cocaine in his home, along with drug paraphernalia and a large sum of money. Love, 80 Wn. App. at 359. He possessed no paraphernalia for using cocaine. Love, 80 Wn. App. at 359. The State charged Love with unlawful possession with intent to deliver. Love, 80 Wn. App. at 360. At trial, Love argued that a unanimity instruction was required and that the two instances of possession were not part of a continuing course of conduct. Love, 80 Wn. App. at 360. Division One disagreed, finding that the cocaine and other evidence reflected a single objective of selling cocaine. Love, 80 Wn. App. at 362. It distinguished King because there was no basis in the evidence to distinguish between the cocaine found in Love's pocket and the cocaine found in his home — the police either planted all of it or none of it. Love, 80 Wn. App. at 363.
Similar to Love, this case is distinguishable from King because the possession was part of a continuing course of conduct. Here, the possession did not occur at two different places and times. Rather, De LaCruz admitted to the detectives that he had ingested methamphetamine earlier that day in his house. His admission was corroborated by the fact that the detectives suspected he was high on methamphetamine during their contact with him, that they found two pipes in his house during the search, and those pipes later tested positive for methamphetamine residue. Also contrary to King, this was not an instance of one alleged constructive possession and one alleged actual possession. Rather, the State in this case alleged that both pipes showed constructive possession of methamphetamine. Again, the State based the possession charge on the fact that De LaCruz admitted to ingesting methamphetamine in his house earlier that day.
Thus, De LaCruz's possession conviction was based on substantial evidence of a continuing course of conduct involving an ongoing enterprise with a single objective; namely, his possession of methamphetamine earlier in the day at the moment in time immediately prior to his ingestion of the drugs. See State v. Dalton, 72 Wn. App. 674, 675, 677, 865 P.2d 575 (1994) (holding that evidence of prior consumption, combined with other corroborating evidence may be sufficient to prove possession of a substance beyond a reasonable doubt).
Moreover the record establishes that the State elected the acts on which it relied to convict De LaCruz of possession of a controlled substance. Again, no Petrich instruction is required when the State makes an election of a particular act. Petrich, 101 Wn.2d at 572. Election of an act may be established if the State's closing argument, when considered with the jury instructions and the charging documents, makes it clear which act or acts the State is relying on for each charge and there is no possibility that the jury could have been confused as to which act related to which charge. State v. Bland, 71 Wn. App. 345, 352, 860 P.2d 1046 (1993), overruled in part on other grounds by State v. Smith, 159 Wn.2d 778, 154 P.3d 873 (2007).
Here, the State clearly elected that it was relying on De LaCruz's admission that he ingested methamphetamine earlier in the day to support a conviction. During trial, the State's consistent position was that the evidence established De LaCruz was guilty because (1) De LaCruz admitted he consumed methamphetamine in his house earlier that day; (2) the admission was credible; and (3) his admission was corroborated by the existence of the two pipes in his house. The State emphasized this position when presenting jury instructions to the court and in its closing argument. Accordingly, the trial court properly denied De LaCruz's request for a Petrich instruction.
B. Dominion and Control Instruction
De LaCruz's final argument is that the trial court erred when it failed to provide his proposed instruction limiting the definition of dominion and control. The State maintains that this argument lacks merit because De LaCruz's proposed instruction did not accurately reflect the law. Once again, the State is correct.
De LaCruz maintains that the State had the burden of establishing his possession was more than a "passing control." Br. of Appellant at 12 (quoting State v. Staley, 123 Wn.2d 794, 802, 872 P.2d 502 (1994)). In order to hold the State to this burden, he proposed the following instruction:
Once a controlled substance is within a person's system, the power of the person to control, possess, use, dispose of, or cause harm is at an end. The drug is assimilated by the body. The ability to control the drug is beyond human capabilities. The essential element of control is absent. Evidence of a controlled substance after it is assimilated in the person's blood does not establish possession or control of that substance.
CP at 91 (emphasis added). De LaCruz created this proposed jury instruction based on dicta from State v. Hornaday, 105 Wn.2d 120, 713 P.2d 71 (1986).
In Hornaday, police officers observed the minor defendant who appeared to be under the influence of alcohol. Hornaday, 105 Wn.2d at 122. While a minor in possession of alcohol is guilty of a misdemeanor, under the statute in effect at the time, a police officer could only arrest someone for a misdemeanor crime if the crime was committed in the presence of the officer. Hornaday, 105 Wn.2d at 122-23 (citing RCW 9A.76.040 and former 10.31.100 (1981)). Therefore, the issue in Hornaday was whether the minor was actually in possession of alcohol at the time he had contact with the officer. The Supreme Court held that the arrest was unlawful because the alcohol in the defendant's bloodstream did not constitute possession in the presence of the officer. Hornaday, 105 Wn.2d at 130-31. In other words, the Hornaday court did not decide the issue of whether alcohol in the defendant's bloodstream was evidence of an earlier possession.
Other courts have, however, addressed the issue of whether evidence of drugs in a defendant's system constitutes evidence of an earlier possession. For instance, in State v. Dalton, an officer observed the minor defendant who appeared to be intoxicated. Dalton, 72 Wn. App. at 675. But the officer did not observe the defendant consume any alcohol, nor did he observe alcohol in his possession. Dalton, 72 Wn. App. at 675. Division Three stated that the presence of alcohol in a defendant's system does not constitute possession per se because that person's power to control, possess, use, or dispose of the alcohol ends upon assimilation. Dalton, 72 Wn. App. at 676. But, the court then stated,
Evidence of assimilation is circumstantial evidence of prior possession. Although insufficient by itself to support a conviction, when combined with other corroborating evidence of sufficient probative value, evidence of assimilation can be sufficient to prove possession beyond a reasonable doubt.
Dalton, 72 Wn. App. at 676. The court ultimately held that the evidence was sufficient to support a conviction of minor in possession because the defendant appeared intoxicated, smelled of alcohol, and was in close proximity to a keg of beer and plastic beer cups. Dalton, 72 Wn. App. at 677.
Similar to the circumstances in Dalton, De LaCruz's admission that he had ingested methamphetamine on May 26, 2005, is circumstantial evidence of prior possession of methamphetamine. Additionally, the State presented corroborating evidence of sufficient probative value, including evidence that De LaCruz's admission was credible, the fact that De LaCruz described one of the pipes to the detectives before they entered his home, the detectives found two pipes during their search of De LaCruz's living room, and that those pipes later tested to contain methamphetamine. Thus, under Dalton, this evidence was sufficient to establish he possessed methamphetamine. See Dalton, 72 Wn. App. at 677.
Therefore, it follows that because De LaCruz's proposed instruction on dominion and control were based on Hornaday, it did not accurately reflect the controlling law under Dalton. Consequently, the trial court did not err when it rejected the proposed instructions. See Riley, 137 Wn.2d at 908n.1.
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.
HUNT, J. and QUINN-BRINTNALL, J., concur.