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State v. Burghard

The Court of Appeals of Washington, Division Three
Mar 3, 2005
126 Wn. App. 1010 (Wash. Ct. App. 2005)

Opinion

No. 21753-1-III

Filed: March 3, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of Grant County. Docket No: 01-1-00638-2. Judgment or order under review. Date filed: 01/14/2003. Judge signing: Hon. John Michael Antosz.

Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.

Counsel for Respondent(s), Teresa Jeanne Chen, Grant County Prosecutors Office, PO Box 37, Ephrata, WA 98823-0037.

Stephen Phillip Scott, Attorney at Law, Grant Pros Attorney, PO Box 37, Ephrata, WA 98823-0037.


Russell Burghard was convicted of unlawful possession of a firearm, possession of an unlawful firearm, possession of methamphetamine, and manufacturing methamphetamine. On appeal, Mr. Burghard argues: (1) the deputies did not have probable cause to arrest him; (2) he did not abandon the property he threw from his truck into a field; (3) items seized from his vehicle were not admissible under any exception to the warrant requirement; (4) the State failed to show the chain of custody for the methamphetamine found in his truck; (5) the State failed to show he knowingly possessed an unlawful firearm; (6) possession of an unlawful firearm and unlawful possession of a firearm constitute the same criminal conduct under a double jeopardy analysis; (7) there was insufficient evidence to find him guilty of manufacturing methamphetamine; and (8) the prosecutor abused his discretion when he charged Mr. Burghard for manufacturing methamphetamine instead of possession of used drug paraphernalia. We affirm Mr. Burghard's convictions.

FACTS

On October 6, 2001, Deputies Dan Couture and Gregg Hutchison of the Grant County Sheriff's Office were dispatched to the residence of Joshua Lindstrom to investigate a burglary. Mr. Lindstrom told Deputy Couture that someone had entered his truck, which had been parked inside a metal shed behind his residence, and stole some of his property. Mr. Lindstrom showed the officers a set of footprints that he associated with the burglary. Deputy Couture noted the absence of vehicle tracks leading away from the metal shed. The deputy saw the same footprints outside the metal shed, leading toward the property of Mr. Lindstrom's neighbor, Russell Burghard.

The two deputies went to Mr. Burghard's residence, where they came upon Janelle Craig in the front yard. Ms. Craig took the officers to a shed at the south side of the property.

Deputy Couture saw footprints near the shed that were similar to the footprints on Mr. Lindstrom's property. He could see one set of footprints headed in the direction of the Lindstrom property and another set of footprints returning from the direction of the Lindstrom property. The shed was padlocked. There was no sign of forced entry. The deputies decided to apply for a search warrant. While Deputy Couture applied for a search warrant, Deputy Hutchison returned to his vehicle and positioned the vehicle so that he could watch the shed.

After approximately one hour, Deputy Hutchison saw a white pickup, traveling at a high rate of speed, which turned into Mr. Burghard's driveway. The pickup backed up to the shed. Mr. Burghard exited the pickup and quickly removed several items from the shed. He loaded the items into the pickup bed. He reentered the pickup and drove away from the shed.

Instead of driving the pickup back to the road, Mr. Burghard drove the pickup into an open field. The open field is full of cheat grass and weeds. Mr. Burghard does not own the field. There, he stopped the pickup and began throwing the items from the pickup bed into the weeds. Deputy Hutchison arrived at the scene. From his patrol vehicle, he activated his public address system and directed Mr. Burghard to stop throwing property from the pickup. Mr. Burghard did not comply with this order. Then, Deputy Hutchison exited his vehicle and walked toward Mr. Burghard. He ordered Mr. Burghard to put his hands up and come toward him. Again, Mr. Burghard did not comply. At that point, Deputy Hutchison drew his weapon. He arrested Mr. Burghard and took him into custody. Deputy Hutchison walked toward the pickup. In the pickup bed, he discovered two rifle cases containing a 12-gauge shotgun and a .22 rifle. The shotgun had a barrel less than 18 inches in length. Additionally, he discovered a number of items that he associated with the manufacture of methamphetamine. These items included a propane tank, a white five-gallon plastic bucket containing glassware and coffee filters, and a jar with rubber tubing affixed to it and containing rock salt.

In the weeds near the pickup, Deputy Hutchison located a soft-sided green bag, a plastic container, and a cardboard box. The soft-sided green bag contained a two-burner hot plate. The plastic container contained chemicals and a glass jar containing a white powder. The cardboard box contained a propane tank. Other items found at the scene included containers of Heet, a container of muriatic acid, Morton rock salt, and a thermometer. One of the glass jars had a latent fingerprint. Forensic examiner Robert Johnson identified the fingerprint as belonging to Mr. Burghard. In Deputy Hutchison's experience, all of the items that he discovered in the weeds were associated with the manufacture of methamphetamine.

Deputy Hutchison searched the pickup's interior. He saw a clear plastic baggie containing a white powder in the cover to the fuse box. He placed the white powder in an evidence bag and sealed it. The white powder field tested positive for methamphetamine.

Mr. Burghard was charged with two counts of unlawful possession of a firearm on October 8, 2001. The information was amended to include possession of methamphetamine and manufacturing methamphetamine. The information was subsequently amended again to include possession of a unlawful firearm. Mr. Burghard's motion to suppress the evidence was denied.

At a bench trial in August 2002, Deputy Hutchison identified the evidence bag containing the white powder. During his testimony, Matthew Jorgenson, a forensic scientist, identified the evidence bag containing the white powder. Mr. Burghard was found guilty.

ANALYSIS

Standard of Review — Suppression Hearing. In reviewing a suppression hearing, an appellate court determines whether substantial evidence supports the court's findings of fact. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Findings of fact that are not assigned error are viewed as verities on appeal. RAP 10.3(g); State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Findings are also viewed as verities if `there is substantial evidence to support the findings.' Hill, 123 Wn.2d at 644 (citing State v. Halstien, 122 Wn.2d 109, 128, 857 P.2d 270 (1993)). `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 (citing Halstien, 122 Wn.2d at 129). Conclusions of law are reviewed de novo. Mendez, 137 Wn.2d at 214.

Probable Cause to Arrest. Mr. Burghard contends Deputy Hutchison did not have probable cause to arrest him because his conduct did not create a reasonable suspicion of criminal activity. He notes that the unlawful arrest led to the seizure of evidence that was used against him. Warrantless searches and seizures are generally unreasonable. State v. O'Cain, 108 Wn. App. 542, 548, 31 P.3d 733 (2001) (quoting State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984)). However, an officer may arrest a suspect without a warrant when he has probable cause to "believe that a person has committed, or is about to commit a felony." State v. McClung, 66 Wn.2d 654, 659, 404 P.2d 460 (1965) (quoting State v. Darst, 65 Wn.2d 808, 811, 399 P.2d 618 (1965)). Probable cause is based upon facts within the knowledge of the arresting officer, that are persuasive enough to convince a judge that a cautious but disinterested man would also believe the arrested person guilty. McClung, 66 Wn.2d at 659 (quoting Darst, 65 Wn.2d at 811). It does not require sufficient evidence `to establish guilt beyond a reasonable doubt.' State v. Neeley, 113 Wn. App. 100, 107, 52 P.3d 539 (2002) (citing State v. Bellows, 72 Wn.2d 264, 266, 432 P.2d 654 (1967)). It is `grounded on a practical, nontechnical review of the total facts of the case under consideration.' Id. (citing State v. Gillenwater, 96 Wn. App. 667, 671, 980 P.2d 318 (1999)).

In this case, Deputy Hutchison had probable cause to arrest Mr. Burghard for burglary. Circumstantial evidence connected Mr. Burghard to the burglary of the pickup located in the Lindstroms' metal shed. This evidence included the footprints that traveled between the two sheds. From the fact that Mr. Burghard's shed was locked and secured, the deputy could reasonably infer that only Mr. Burghard, and not some unknown person, had access to the shed. Most importantly, Mr. Burghard's actions prior to his arrest were highly suspicious and strongly indicative of criminal conduct. In reviewing the facts of the case, Deputy Hutchison had probable cause to believe that Mr. Burghard had committed a burglary.

Abandonment of Property. Mr. Burghard asserts that the evidence located in the field adjoining his house were not abandoned. Rather, he maintains that he had actual or constructive possession of the property. A defendant does not have any Fourth Amendment rights with regard to abandoned property. Abel v. United States, 362 U.S. 217, 240-41, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960). If property is voluntarily abandoned, the police may retrieve it without violating the defendant's Fourth Amendment rights. State v. Reynolds, 144 Wn.2d 282, 287, 27 P.3d 200 (2001); State v. Nettles, 70 Wn. App. 706, 708, 855 P.2d 699 (1993); State v. Whitaker, 58 Wn. App. 851, 853, 795 P.2d 182 (1990).

Property discarded prior to an encounter with the police is always considered to be voluntarily abandoned. Abel, 362 U.S. at 240-41; Nettles, 70 Wn. App. at 708; see also United States v. Hoey, 983 F.2d 890, 892-93 (8th Cir. 1993). Property discarded during an encounter with the police is considered to be voluntarily abandoned unless there was unlawful police conduct. Whitaker, 58 Wn. App. at 856. This involves finding (1) unlawful police conduct, and (2) a causal nexus between the conduct and the abandonment. State v. Young, 86 Wn. App. 194, 200-01, 935 P.2d 1372 (1997) (citing Whitaker, 58 Wn. App. at 856), aff'd, 135 Wn.2d 498, 957 P.2d 681 (1998).

In this case, the items thrown into the field were voluntarily abandoned. Specifically, they were discarded prior to the arrival of the police. There is no error.

Exceptions to Warrant Requirement. Mr. Burghard contends that the seizure of items was illegal because (1) the items were not readily identifiable as contraband, (2) he was not arrested for a drug-related offense, and (3) the evidence of a drug-related crime was not disclosed until the containers were opened. As such, the next issue is whether the items seized from the pickup are admissible under any exception to the warrant requirement.

Under the Washington Constitution, article I, section 7, "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." State v. Goucher, 124 Wn.2d 778, 782, 881 P.2d 210 (1994). Under article I, section 7, `warrantless searches are per se unreasonable unless they fall under a specific exception to the warrant requirement.' State v. Turner, 114 Wn. App. 653, 657, 59 P.3d 711 (2002) (citing State v. Parker, 139 Wn.2d 486, 496, 987 P.2d 73 (1999)). The exceptions are "limited and narrowly drawn." Turner, 114 Wn. App. at 657 (quoting Parker, 139 Wn.2d at 496). The burden is on the State to establish `that a warrantless search falls within an exception.' Turner, 114 Wn. App. at 657.

Search Incident to Arrest Exception. An officer may make a warrantless search incident to a lawful custodial arrest. State v. Garcia, 35 Wn. App. 174, 175, 665 P.2d 1381 (1983) (quoting State v. Carner, 28 Wn. App. 439, 444, 624 P.2d 204 (1981)). The search "is permitted to protect the arresting officer from assault by accomplices or hidden weapons and to prevent the destruction of evidence." McClung, 66 Wn.2d at 659 (quoting Darst, 65 Wn.2d at 811). The officer can search the passenger compartment of a car, and all containers inside it. State v. Stroud, 106 Wn.2d 144, 147, 720 P.2d 436 (1986) (citing New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981)). If the suspect is standing adjacent to his pickup when he is arrested, the officers can also search the area of the open bed of his pickup within which the suspect might have obtained either a weapon or evidence. People v. Barrientos, 956 P.2d 634, 637 (Colo.Ct.App. 1997).

In this case, Deputy Hutchison made a lawful search of the passenger compartment of the pickup incident to Mr. Burghard's arrest. Simply stated, Mr. Burghard was standing near the pickup when he was lawfully arrested. Likewise, Deputy Hutchison made a lawful search of the pickup bed incident to Mr. Burghard's arrest. First, Mr. Burghard was standing adjacent to the pickup. Second, he was not responding to Deputy Hutchison's requests. Third, Deputy Hutchison could see what appeared to be a gun case. We conclude the search of the passenger compartment and the pickup bed incident to Mr. Burghard's arrest was lawful.

Open Field Exception. Under the `open field' exception, items that are found by the police in an open field are admissible unless the property owner has posted `No Trespassing' signs surrounding the open field. State v. Johnson, 75 Wn. App. 692, 707, 879 P.2d 984 (1994). In this case, there is no evidence of any `No Trespassing' signs being posted. Indeed, there is no evidence that Mr. Burghard owns the property in question. The items Mr. Burghard discarded in the open field are admissible under the `open field' exception.

In summary, the evidence seized from the pickup and the open field are admissible under exceptions to the warrant requirements. First, the search incident to the arrest was valid. Second, there was no expectation of privacy when the items were abandoned by Mr. Burghard in an open field. Chain of Custody. Mr. Burghard asserts that the methamphetamine that was discovered in the fuse box should be suppressed because there was a missing link in the chain of custody. Specifically, he notes that Deputy Hutchison logged the item into evidence but was unable to identify the handwriting on the property log. He further notes the log stated that the item weighed 3.7 grams but that the admitted item weighed .2 grams. We will not address this issue because Mr. Burghard has failed to preserve the issue for review. He did not object to the admission of the evidence during trial. He cannot now complain about its admission on appeal because the claim was not preserved for review. RAP 2.5(a).

Remaining Issues. Bench Trial Standard of Review. Unchallenged findings of fact are viewed as verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994); see also State v. Alvarez, 105 Wn. App. 215, 220, 19 P.3d 485 (2001). In reviewing challenged findings of fact, the court determines whether substantial evidence supports the findings. State v. Mewes, 84 Wn. App. 620, 622, 929 P.2d 505 (1997). Substantial evidence is that which is sufficient to persuade a fair-minded rational person of the truth of the findings. Hill, 123 Wn.2d at 644. `Review is then limited to determining whether the findings support the conclusions of law.' Alvarez, 105 Wn. App. at 220. `The findings of fact must support the elements of the crime beyond a reasonable doubt.' Id. (citing State v. Tadeo-Mares, 86 Wn. App. 813, 815-16, 939 P.2d 220 (1997)). Conclusions of law are reviewed de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).

Knowledge Element. Mr. Burghard contends the State did not present any evidence that he knew there was a sawed-off shotgun in his pickup. He contends knowledge is an implied element of possession of an unlawful firearm.

Knowledge is an implied element of the crime of possession of an unlawful firearm. State v. Warfield, 119 Wn. App. 871, 883, 80 P.3d 625 (2003). To satisfy this knowledge requirement, the State must prove that the defendant knew `that he possesses or controls the firearm.' Id. The State need not prove that the defendant knew `that the firearm is illegal.' Id. In this case, Mr. Burghard's implied knowledge is satisfied. The initial location of the unlawful firearm satisfies the knowledge requirement. First, the unlawful firearm was located on Mr. Burghard's property. Second, the unlawful firearm was located in Mr. Burghard's shed. Third, Mr. Burghard's shed was padlocked and secured. As such, knowledge of the firearm can be implied. Further, Mr. Burghard's behavior also satisfies the knowledge requirement. Specifically, Mr. Burghard attempted to hide the unlawful firearm from the police officers. In conclusion, knowledge is an implied element of the crime of the possession of an unlawful firearm and it is satisfied here.

Mr. Burghard asserts that the State did not establish that he knew that the firearm was `sawed-off.' However, the State does not need to prove this factor. Warfield, 119 Wn. App. at 883.

Double Jeopardy. Mr. Burghard asserts that the unlawful possession of a firearm and the possession of an unlawful firearm constitute the same criminal offense under double jeopardy. Constitutional issues are reviewed de novo. Fusato v. Wash. Interscholastic Activities Ass'n, 93 Wn. App. 762, 767, 970 P.2d 774 (1999).

The double jeopardy clause of the Fifth Amendment `protects against multiple punishments for the same offense.' State v. Potter, 31 Wn. App. 883, 886, 645 P.2d 60 (1982) (citing North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969)). In determining whether double jeopardy is violated, the court determines whether the two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment. Potter, 31 Wn. App. at 886 (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)). Offenses committed during a single transaction are not necessarily the same offense.

State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983) (citing State v. Roybal, 82 Wn.2d 577, 512 P.2d 718 (1973)). Instead, to constitute the same offense, `the offenses must be the same in law and in fact.' Vladovic, 99 Wn.2d at 423. If there is an element in each offense which is not included in the other, and proof of one offense would not necessarily also prove the other, there is no double jeopardy violation. Id. However, even if there is an element in each offense which is not included in the other, double jeopardy may still be violated if there is clear evidence that the legislature intended to impose only a single punishment. State. v. Valentine, 108 Wn. App. 24, 28, 29 P.3d 42 (2001) (citing State v. Calle, 125 Wn.2d 769, 780, 888 P.2d 155 (1995)).

A person is guilty of the crime of possession of an unlawful firearm if the person owns, has in his possession, or under his control, an unlawful firearm, such as a short-barreled shotgun. RCW 9.41.190(1). A person is guilty of the crime of unlawful possession of a firearm if the person owns, has in his possession, or under his control any firearm if he has been convicted of a felony. Former RCW 9.41.040(1)(b)(i) (1997).

In this case, double jeopardy has not been violated. Both crimes have separate elements. The crime of possession of an unlawful firearm has the separate element that the person possesses an unlawful firearm. The crime of the unlawful possession of a firearm has the separate element that the person who possesses the firearm has been convicted of a felony. Mr. Burghard asserts that double jeopardy was violated because the purpose behind the two statutes is the same: to prevent the unlawful possession of a firearm. However, he has provided no legislative history or statutory authority to support this assertion. We conclude he has not provided `clear evidence' and, consequently, we hold there was no double jeopardy violation.

Sufficiency of the Evidence. Mr. Burghard asserts that there was insufficient evidence to find him guilty of manufacturing methamphetamine. First, he asserts he must be caught when the manufacturing process was actually in operation. Second, Mr. Burghard asserts that the only evidence connecting him to the manufacturing process was a fingerprint and there was no indication that the fingerprint was involved in the manufacturing process. As such, the next issue is whether there was sufficient evidence to find him guilty of manufacturing methamphetamine.

Standard of Review. In reviewing a challenge to the sufficiency of the evidence, the court views the evidence in the light most favorable to the State and asks whether any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Hepton, 113 Wn. App. 673, 681, 54 P.3d 233 (2002) (citing State v. Todd, 101 Wn. App. 945, 950, 6 P.3d 86 (2000)). Circumstantial and direct evidence are equally reliable. State v. McNeal, 98 Wn. App. 585, 592, 991 P.2d 649 (1999), aff'd, 145 Wn.2d 352, 37 P.3d 280 (2002). All reasonable inferences must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "Credibility determinations are for the trier of fact and cannot be reviewed on appeal." State v. McPherson, 111 Wn. App. 747, 756, 46 P.3d 284 (2002) (quoting State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)).

Manufacturing Methamphetamine. `[I]t is unlawful for any person to manufacture . . . a controlled substance.' Former RCW 69.50.401(a) (1998). Manufacturing is defined as the `production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly . . . and includes any packaging or repackaging of the substance. . . .' RCW 69.50.101(p); see also 11 Washington Pattern Jury Instructions: Criminal 50.12, at 653 (1994) (WPIC); State v. Zunker, 112 Wn. App. 130, 139, 48 P.3d 344 (2002). A defendant can be convicted of manufacturing methamphetamine when an element necessary to complete the manufacturing process was not present at the time of the arrest. McPherson, 111 Wn. App. at 758-59. Similarly, a defendant can be convicted of manufacturing methamphetamine when the manufacturing process had already been completed because the jury can infer that the defendant was preparing to make a new batch. Zunker, 112 Wn. App. at 139; McPherson, 111 Wn. App. at 758-59.

Fingerprint evidence by itself can support a conviction where the trier of fact could reasonably infer that the fingerprint could only have been impressed during the crime itself. Todd, 101 Wn. App. at 951 (quoting State v. Lucca, 56 Wn. App. 597, 599, 784 P.2d 572 (1990)). Where the fingerprint is found on a moveable object, the State must show that the fingerprint must have been impressed during the crime. Todd, 101 Wn. App. at 951 (quoting State v. Bridge, 91 Wn. App. 98, 100-01, 955 P.2d 418 (1998)).

In this case, there is sufficient evidence to find Mr. Burghard guilty of the crime of manufacturing methamphetamine. First, the fingerprint evidence is not the only evidence connecting Mr. Burghard to the crime. Instead, substantial evidence connects Mr. Burghard to the manufacturing charge. This includes evidence that: (1) the manufacturing equipment was located in Mr. Burghard's shed; (2) Mr. Burghard's shed was padlocked and secured; and (3) Mr. Burghard attempted to hide the manufacturing equipment from the police.

Second, in order to charge Mr. Burghard for the crime of manufacturing methamphetamine, the police need not catch him in the act of manufacturing methamphetamine. Here, he was caught with manufacturing equipment and methamphetamine itself. The court could infer that he was arrested while preparing to make a new batch. In conclusion, there was sufficient evidence to find Mr. Burghard guilty of manufacturing methamphetamine.

Prosecutorial Discretion. Mr. Burghard asserts that the prosecutor abused his discretion when he charged Mr. Burghard for manufacturing methamphetamine instead of possession of used drug paraphernalia. Prosecutors have broad discretion to make charging decisions. State v. Lidge, 111 Wn.2d 845, 850, 765 P.2d 1292 (1989); State v. Ward, 108 Wn. App. 621, 629, 32 P.3d 1007 (2001), aff'd, 148 Wn.2d 803, 64 P.3d 640 (2003). Prosecutorial discretion is `proper when it is based on a consideration of the elements that can be proved or the penalties on conviction.' Ward, 108 Wn. App. at 629 (citing City of Kennewick v. Fountain, 116 Wn.2d 189, 193, 802 P.2d 1371 (1991)).

If there is conduct which is punishable under both a special statute and a general statute, and the two statutes are concurrent, the defendant can only be charged under the special statute. State v. Williams, 62 Wn. App. 748, 750, 815 P.2d 825 (1991); State v. Haley, 39 Wn. App. 164, 169, 692 P.2d 858 (1984) (quoting State v. Danforth, 97 Wn.2d 255, 257-58, 643 P.2d 882 (1982)). The two statutes are concurrent when `each violation of the special statute results in a violation of the general statute.' Williams, 62 Wn. App. at 750. If each violation of the special statute does not result in a violation of the general statute, the two statutes are not concurrent. Williams, 62 Wn. App. at 753-54 (citing State v. Shriner, 101 Wn.2d 576, 681 P.2d 237 (1984)).

Manufacturing methamphetamine requires proving that the defendant engaged in the production, preparation, propagation, compounding, conversion, processing — directly or indirectly — or the packaging or repackaging of any controlled substance. WPIC 50.12; RCW 69.50.101(p); see also Zunker, 112 Wn. App. at 139. Use of drug paraphernalia requires proving that the defendant used drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance.

RCW 69.50.412; see also State v. Gocken, 127 Wn.2d 95, 107, 896 P.2d 1267 (1995).

In this case, the prosecutor did not abuse his discretion when he charged Mr. Burghard for manufacturing methamphetamine. First, the prosecutor considered the elements that had to be proven. Indeed, there is sufficient evidence to find Mr. Burghard guilty of manufacturing methamphetamine. Second, manufacturing methamphetamine would be considered the special statute and use of drug paraphernalia would be considered the general statute even if the prosecutorial discretion standard applied here. Simply stated, manufacturing methamphetamine involves using drug paraphernalia for the special purpose of manufacturing a controlled substance, while use of drug paraphernalia involves using drug paraphernalia for any drug-related purpose. As such, manufacturing methamphetamine is special to a manufacturing charge while use of drug paraphernalia is general to all drug charges. In conclusion, the prosecutor did not abuse his discretion when he charged Mr. Burghard for manufacturing methamphetamine instead of use of drug paraphernalia.

Affirmed.

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.

KATO, C.J. and SCHULTHEIS, J., Concur.


Summaries of

State v. Burghard

The Court of Appeals of Washington, Division Three
Mar 3, 2005
126 Wn. App. 1010 (Wash. Ct. App. 2005)
Case details for

State v. Burghard

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. RUSSELL LEE BURGHARD, Appellant

Court:The Court of Appeals of Washington, Division Three

Date published: Mar 3, 2005

Citations

126 Wn. App. 1010 (Wash. Ct. App. 2005)
126 Wash. App. 1010