103 Wash. App. 346 | Wash. Ct. App. | 2000
Michael Ray Ceglowski appeals his criminal conviction for knowingly maintaining or keeping a “drug house” for purposes of selling or storing drugs. We hold that the “keeping” and “maintaining” elements of the
FACTS
A group of police officers, including members of various city and county drug task forces, executed a search warrant on a bait and tackle shop. Ceglowski was in the back office. The police found a rolled up bill of U.S. currency, a small tray with traces of brown powder, and a small baggie with brown powder in the office desk drawer. The police also found a marijuana pipe, about $600 in currency, and an additional baggie containing brown powder in the desk. The police later identified the powder as 0.9 grams of methamphetamine between both baggies, with a street value totaling between $70-$150. The drug-detecting police dog alerted for narcotic odor on the currency found in the desk and in the store’s cash register.
The police also found a small scale in the back office. The office safe contained about ten pages of “[p]ay and owe sheets,” consistent with the type kept to record drug transactions. The business license and fish and wildlife license named Ceglowski as the license holder and owner of the store. Ceglowski had money in his pockets later identified by the police as the same money used for a controlled buy minutes before they executed the warrant.
The State charged Ceglowski with four counts of violations of the Uniform Controlled Substances Act, chapter 69.50 RCW. Count I charged unlawful possession of methamphetamine with intent to deliver. Counts II and III charged Ceglowski with possession of two other controlled substances. The State did not charge Ceglowski with the delivery of a controlled substance it claimed occurred that produced the “buy” money found in his pockets.
Count IV alleged that Ceglowski “did knowingly keep
Ceglowski moved for an arrest of judgment, arguing that an incorrect title of the crime in the verdict form meant the jury convicted him of maintaining a store used for “selling” controlled substances when there was not substantial evidence. The trial court denied the motion.
ANALYSIS
Ceglowski assigns error to the trial court’s denial of his motion for arrest of judgment under CrR 7.4(a)(3). Criminal Rule 7.4 provides that a defendant may bring a motion for arrest of judgment for “insufficiency of the proof of a material element of the crime.” CrR 7.4(a)(3). Review of a trial court decision denying a motion for arrest of judgment requires the appellate court to engage in the same inquiry as the trial court. State v. Longshore, 141 Wn.2d 414, 5 P.3d 1256 (2000). “The evidence presented in a criminal trial is legally sufficient to support a guilty verdict if any rational trier of fact, viewing the evidence in a light most favorable to the state, could find the essential elements of the charged crime beyond a reasonable doubt.” Longshore, 141 Wn.2d at 420-21 (citing State v. Bourne, 90 Wn. App. 963, 967-68, 954 P.2d 366 (1998)). See also State v. Delmarter, 94 Wn.2d 634, 637, 618 P.2d 99 (1980). “A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
The jury convicted Ceglowski on Count IV of knowingly
knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place, which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.
Ceglowski now challenges the sufficiency of the evidence. Ceglowski argues that, as a matter of law, possession of a small amount of a controlled substance is not enough to convict under the statute. The correct inquiry, however, is whether the totality of the evidence is sufficient to prove all the required elements. See State v. Fernandez, 89 Wn. App. 292, 300, 948 P.2d 872 (1997). We hold that the totality of the evidence must demonstrate more than a single isolated incident of illegal drug activity in order to prove that the defendant “maintains” the premises for keeping or selling a controlled substance in violation of the drug house statute.
Washington cases have not yet examined the issue of whether a single instance of sale or possession is sufficient to convict under our drug house statute. The requirement that the defendant “maintain” the premises, however, necessarily connotes a course of continuing conduct. Although “maintain” is not specifically defined under the drug house statute, “ ‘[i]n the absence of a statutory definition of a word, we employ the plain and ordinary meaning of the word as found in a dictionary.’ ” State v. Batten, 95 Wn. App. 127, 129, 974 P.2d 879 (1999), aff’d, 140 Wn.2d 362 (2000) (citation omitted). Black’s Law Dictionary defines “maintain” as “hold or preserve in any particular state or condition;” and “sustain” or “uphold.” Black’s Law Dictionary 953 (6th ed. 1990). And the ordinary meaning of “maintain” encompasses this concept of continuing conduct: “to keep or keep up; continue in or with; carry on.” Webster’s New World Dictionary 854 (2d College ed. 1976). Furthermore,
Additionally, Ceglowski cites two cases from other jurisdictions to support his proposition that sporadic or isolated incidents of drug use are not enough to prove criminal conduct under the drug house statute. In People v. Fiedler, the New York court held that evidence that parents allowed their children to smoke marijuana in their home was insufficient to support the parents’ conviction under a
RCW 69.50.402 derives from the Uniform Controlled Substances Act. 9 U.L.A. § 402 (1970). In other states that have adopted drug house statutes modeled after the Uniform Act, the courts have held that more than a single isolated instance of drug activity is required to support a conviction. See, e.g., Barnes v. State, 255 Ga. 396, 339 S.E.2d 229, 234 (1986); Howard v. State, 1991 OK CR 76, 815 P.2d 679, 683 (1991); Hunt v. State, 20 Md. App. 164, 314 A.2d 743, 745 (1974) (holding drug activity must be of “continuing and recurring” character); People v. Holland, 158 Cal. App. 2d 583, 322 P.2d 983, 986 (1958) (holding there must be “some purpose of continuity in the use of the place for the proscribed illegal conduct”).
These out of state authorities persuasively support the conclusion that the keeping or maintaining element of our drug house statute contemplates a continuing pattern of criminal behavior, beyond an isolated incident of possession or sale at a defendant’s business. The statute was clearly designed to do more than punish mere possession. Therefore, we hold that to constitute the crime of maintaining a premises for the purpose of unlawfully keeping or selling controlled substances there must be: (1) some evidence that
Here, taking the evidence in the light most favorable to the State, the evidence does not support the reasonable inference that keeping or selling drugs was a recurring activity at the business. Although the discovery of the informant’s cash in Ceglowski’s pocket supports the reasonable inference that a single drug sale was conducted in the shop, the drugs allegedly purchased at the buy were not introduced at trial. And there was no evidence that any other drug sale had occurred at the business. The only evidence of possible continuing sale activity was the handwritten “pay and owe” sheets, which may or may not have been drug related. These records, although consistent with the sale of drugs, do not support a reasonable inference that other sales continually took place on the premises.
Neither does the evidence support the reasonable inference that selling drugs was a substantial purpose for maintaining the bait and tackle shop. There was evidence Ceglowski possessed methamphetamine on the premises, because of the 0.9 grams found in his office desk. But we do not find evidence that Ceglowski maintained the business for the purpose of keeping drugs or for selling them. First, Ceglowski was not convicted of possession with intent to deliver; he was acquitted. Second, neither does the existence of baggies and a small scale at a bait and tackle shop lead to a reasonable inference that drugs were kept or sold there. Mere possession of 0.9 grams of methamphetamine, with little else to demonstrate a continuing course of conduct, is not enough evidence by which a rational trier of
We reverse Ceglowski’s conviction for insufficient evidence with instructions to the trial court to dismiss the charge with prejudice. State v. Hickman, 135 Wn.2d 97, 103, 954 P.2d 900 (1998).
Reversed.
Morgan, J., and Penoyar, J. Pro Tern., concur.
21 U.S.C. § 856(a)(1) makes it unlawful to “knowingly open or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance [.]”