State v. Daub, No. 56621-1-I (Wash. App. 3/12/2007)

• Decision Date: 12 March 2007
• Docket Number: No. 56621-1-I,56621-1-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. JOSEPH ANTHONY DAUB, Appellant.

Page 1

Unpublished Opinion

STATE OF WASHINGTON, Respondent, v. JOSEPH ANTHONY DAUB, Appellant.

No. 56621-1-I

Court of Appeals of Washington, Division One.

Filed: March 11, 2007.

Filed: March 12, 2007.

Appeal from Skagit Superior Court. Docket No: 05-1-00202-5. Judgment or order under review. Date filed: 07/01/2005. Judge signing: Honorable Susan K Cook.

Counsel for Appellant(s), Nielsen Broman Koch PLLC, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

Jennifer M Winkler, Nielson, Broman & Koch, PLLC, 1908 E Madison St, Seattle, WA 98122-2842.

Joseph Anthony Daub — Info Only (Appearing Pro Se), 8166 83rd Ave Ne, Marysville, WA 98270.

Counsel for Respondent(s), Erik Pedersen, Attorney at Law, Skagit Co Prosc Atty Ofc, 605 S 3rd St, Mount Vernon, WA 98273-3867.

PER CURIAM.

Joseph Daub was convicted on five counts of drug related offenses. He appeals his sentence, and challenges the sufficiency of evidence relating to the charge of keeping or maintaining a drug house. We affirm because the evidence was sufficient, and the trial court properly calculated Daub's offender score.

I.

In February 2005, Sarah Farlow spent several weeks living with her friend, Sunshine Manderle. During that time, Farlow witnessed co-resident¹ Joseph Daub gathering, preparing, cooking and extracting methamphetamine on several occasions. Daub enlisted Farlow's help, asking her to buy the cold medicines needed for manufacture. Manderle's two-year old child was also living in the apartment during this period. Farlow called police and reported an "active meth lab" and mentioned the presence of a baby.² Farlow agreed to help the police, and organized a purchase of methamphetamine between Daub and an undercover police officer. Another officer surveilled the apartment and witnessed various people coming and going, many of whom appeared under the influence.

Daub and Manderle were arrested, and the baby was removed and placed with foster parents. The baby's urine tested positive for methamphetamine, amphetamine, and caffeine. An expert in clandestine laboratories who managed the scene after the arrests testified that many items used to manufacture methamphetamine were stored throughout the apartment.

Daub was charged with: manufacture of a controlled substance (with minor present and school zone enhancements); possession of ephedrine with intent to manufacture methamphetamine (with minor present and school zone enhancements); conspiracy to manufacture methamphetamine; maintaining a premises for drug trafficking; and endangerment with a controlled substance. He was convicted on all five counts and both of the school zone enhancements. The jury answered "no" to the minor on the premises enhancement with respect to the manufacturing charge, and "yes" to the minor on the premises enhancement with respect to the possession charge. Daub appeals his conviction on maintaining a premises for drug trafficking, and also raises several issues relating to his sentence.

II.

Daub challenges his offender score on several grounds, including merger, same course of criminal conduct, and the trial court's determination of his community placement status.³

Merger

The merger doctrine is a tool of statutory construction used to determine whether the legislature intended multiple punishments for a single act which violates more than one statutory provision. The doctrine applies only where the legislature has clearly indicated that in order to prove a particular degree of crime (e.g., first degree rape) the State must prove not only that a defendant committed that crime, but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes (e.g., assault or kidnapping).⁴

Daub argues that the enhancement for possession with intent to manufacture in the presence of a person under 18 years merges with the endangerment conviction. We disagree. Neither crime is defined as an element of the other. The enhancement for the presence of a minor prohibits possession of methamphetamine or ingredients with a minor in or upon the premises of manufacture:

In a criminal case where:

(1) The defendant has been convicted of (a) manufacture of a controlled substance under RCW 69.50.401 relating to manufacture of methamphetamine; or (b) possession of ephedrine or any of its salts or isomers or salts of isomers, pseudoephedrine or any of its salts or isomers or salts of isomers, pressurized ammonia gas, or pressurized ammonia gas solution with intent to manufacture methamphetamine, as defined in RCW 69.50.440; and

(2) There has been a special allegation pleaded and proven beyond a reasonable doubt that the defendant committed the crime when a person under the age of eighteen was present in or upon the premises of manufacture; the court shall make a finding of fact of the special allegation, or if a jury trial is had, the jury shall, if it finds the defendant guilty, also find a special verdict as to the special allegation.⁵ "Premises" is not defined in the statute, but Black's Law Dictionary defines it as "A house or building, along with its grounds."⁶ For a violation to occur, the child need not be in the same building, let alone the same room, where manufacture or possession takes place.

The endangerment statute prohibits any person from exposing a child to methamphetamine or its components:

A person is guilty of the crime of endangerment with a controlled substance if the person knowingly or intentionally permits a dependent child or dependent adult to be exposed to, ingest, inhale, or have contact with methamphetamine or ephedrine, pseudoephedrine, or anhydrous ammonia, including their salts, isomers, and salts of isomers, that are being used in the manufacture of methamphetamine, including its salts, isomers and salts of isomers. Endangerment with a controlled substance is a class B felony.⁷ "Exposed" is not defined in the statute, but means made "accessible to something that may prove detrimental."⁸

The endangerment statute does not require that the person exposing the child to methamphetamine also be the possessor of the substance. Any person who exposes a child, whether or not he is the possessor, is culpable. Therefore, the legislature has not made possession of methamphetamine on the premises of manufacture while a child is present an element of the endangerment statute.

Conversely, exposure, ingestion, inhalation, or contact with methamphetamine by a child is not an element of the possession with a child present statute. If manufacture is taking place in a large building or compound, and the child is far away, the child might be on the premises without suffering exposure, ingestion, inhalation, or contact.

The legislature has not clearly indicated that the State must first prove possession with a minor on the premises as an element of endangerment with a controlled substance. The two statutes do not merge.⁹ Same Course of Criminal Conduct

Crimes encompass the same criminal conduct, and may not be punished separately, if they involve the same criminal intent, affect the same victim, and were committed at the same time and place.¹⁰ The trial court's determination on this issue is upheld unless the court abused its discretion or misapplied the law.¹¹ Daub was convicted of manufacturing, possession with intent to manufacture, and conspiracy to manufacture methamphetamine. He argues that those three crimes encompass the same criminal conduct.

Although the State concedes that the crimes all affect the same victim, society at large, and the same criminal intent, manufacturing methamphetamine,¹² it contends that Daub committed each crime at a different time. The State is correct. Although Daub's overall criminal scheme was to manufacture methamphetamine, there was ample evidence that Daub committed the charged crimes either with separate intent, at separate times, or both. Two cases that illustrate the time distinction are State v. Deharo¹³ and State v. Burns,¹⁴ which both involve prosecutions for multiple drug charges. In Deharo, two defendants were arrested in the midst of a series of heroin sales.¹⁵ Based solely on their possession of six bindles of heroin at the time of arrest, they were convicted of conspiracy to deliver and possession with intent to deliver heroin. Deharo argued that the two counts encompassed the same criminal conduct, and our Supreme Court agreed.¹⁶ The court concluded that the "'objective intent' underlying the two charges is the same — to deliver the heroin" in their possession.¹⁷ The court also noted that the analysis might differ if there were a time distinction, that is, evidence that Deharo intended to deliver some heroin now and some later.¹⁸ But because there was unity of intent, time, place, and victim, the two charges were considered the same course of criminal conduct for sentencing purposes.¹⁹ In Burns, there was evidence of actual delivery of some cocaine in the present, and possession with intent to deliver different cocaine in the future.²⁰ This time distinction was a sufficient basis for the trial court to find separate courses of criminal conduct.²¹

Here, the trial court distinguished Daub's three acts based on time and intent. Between the manufacture of methamphetamine and possession of ephedrine, the court made a time-based distinction:

The manufacture of methamphetamine, Mr. Daub, is something that is an accomplished act . . . . It was a done deal. The possession of ephedrine with intent to manufacture is something that you plan to do in the future. It's different conduct.²² This conclusion is supported by substantial evidence in the record and uses the same reasoning followed by the court in Burns. The conspiracy here was completed at a time separate from the possession and manufacture, unlike the consipracy in Deharo. It was not proven by mere possession of methamphetamine ingredients, but by evidence that Daub instructed other people to actively seek the ingredients....