State v. HeptonState v. Hepton
- Reporters:
- ,
- Before:
- Schultheis, Brown, Kato
Evidence discovered in and around a garbage can next to an abandoned house was used to obtain a warrant to search the house next door for evidence of methamphetamine manufacture. Subsequently, Craig Hepton was charged with one count of manufacturing a controlled substance while minors were present, one count оf first degree reckless burning, and five counts of second degree criminal mistreatment.
A jury found Mr. Hepton guilty of the manufacturing and reckless burning charges. On appeal, he contends all evidence obtained after the warrantless search of the garbage can area should have been excluded. Further, he contends the evidence is insufficient to support the charges, the trial court erred in failing to give a unanimity instruction, his statements to police were involuntary, and the trial court improperly admitted statements regarding prior criminаl acts. The State cross-appeals the trial court‘s refusal to submit five child endangerment enhancement special verdict forms to the jury.
We find that Mr. Hepton had no
FACTS
Mandi Ratliff lived with her five children, ages 3 months to 10 years, in a rental house at 912 E. Desmet in Spokane. Her friend, Carey Stuhlmiller, lived in the basement with Mr. Hepton. The house next door, at 908 E. Desmet, was abandoned and boarded up due to a previous fire.
Early in the morning of October 10, 2000, Ms. Ratliff‘s basement caught on fire. Ms. Ratliff was not present at the time, and Ms. Stuhlmiller and Mr. Hepton helped the four older children escape. The three-month-old baby remained in the house and
After the fire was extinguished, fire investigators found a two-burner hotplate in the basement next to a glass beaker containing a red residue. They also found drug paraphernalia near the hotplate, including syringes. One investigator noticed a can of starter fluid near the outdoor basement entrance. He returned a few days later—without a warrant—to see if the starter fluid was evidence of methamphetamine manufacture. Because the starter fluid was no longer outside the basement, the investigator decided to check a garbage can he found next to the abandoned house at 908 E. Desmet. Plastic garbage bags werе lying on the ground near the garbage can. Inside the garbage can, the investigator found a can of starter fluid with holes punched in the bottom. He found over 20 boxes of pseudoephedrine in the garbage bags. A letter in the garbage can was addressed to Ms. Ratliff.
Pseudoephedrine tablets and ether drained from the bottom of starter fluid cans are
Mr. Hepton was charged with one count of the manufacture of a controlled substance while minors were present (
Trial was before a jury. After the State rested its case, Mr. Hepton unsuccessfully moved to dismiss for lack of evidence. The jury found Mr. Hepton not guilty of the criminal mistreatment charges, but guilty of the manufacturing and reckless burning charges. The State‘s attempt to add a 24-month child endangerment sentencing enhancement for each of Ms. Ratliff‘s five children was rejected by the court and is challenged on cross-appeal.
WARRANTLESS SEARCH OF GARBAGE LEFT AT AN ABANDONED HOUSE
Mr. Hepton first contends the warrantless search of the garbage can and bags found at the abandoned house next door to his residence was unconstitutional. He argues that he and the other occupants of his household used the garbage receptacles and consequently had a privacy interest in them. Because he does not assign error to the trial court‘s
Under the Fourth Amendment to the United States Constitution, a person has no reasonable expectation of рrivacy in garbage that has been moved outside the curtilage of his or her home. California v. Greenwood, 486 U.S. 35, 37, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). Because he recognizes that the federal constitution provides no protection for privacy rights in garbage found next door to his residence, Mr. Hepton confines his argument to state constitutional law.
Article I, section 7 of the Washington Constitution provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Thus, violation of this provision turns on whether the State has unreasonably intruded into a person‘s private affairs. State v. Goucher, 124 Wash.2d 778, 782, 881 P.2d 210 (1994). In State v. Boland, 115 Wash.2d 571, 577, 800 P.2d 1112 (1990), the Washington Supreme Court examined the six criteria of State v. Gunwall, 106 Wash.2d 54, 58, 720 P.2d 808 (1986), and held that Washington Constitution article I, section 7 provides greater protection of a defendant‘s privacy interest in his or her garbage than its federal counterpart. The garbage in Boland was held in a closed garbage container that had been placed on the curb outside the defendant‘s curtilage for pickup. Noting that a Seattle ordinance makes it unlawful for anyone other than the owner of the garbage can to remove its contents except for collection, the court held that this preexisting ordinancе governed the privacy interests of garbage placed in a location for pickup by the city collector. Boland, 115 Wash.2d at 576, 800 P.2d 1112.
In contrast, the garbage here had not been placed in a receptacle owned by Mr. Hepton or by any other occupants of Ms. Ratliff‘s house. A Spokane Municipal Code (SMC) provision prohibits any person from placing materials in or around a garbage receptacle other than “the owner or occupant of the premises for who the service arrangements have been made.” SMC 13.02.0218. Mr. Hepton contends the occupants of Ms. Ratliff‘s house used the garbage can next door but paid for the service to their premises,
In determining whether a privacy interest exists under article I, section 7, we must ask not only what a person‘s subjective expectation of privacy is, but also whether that expectation is one that a citizen of this state is entitled to hold. In re Pers. Restraint of Maxfield, 133 Wash.2d 332, 339, 945 P.2d 196 (1997). A private affairs interest is an object or a matter personal to an individual such that any intrusion on it would offend a reasonable person. Goucher, 124 Wash.2d at 784, 881 P.2d 210. As far as the occupants of Ms. Ratliff‘s house knew, they were getting free garbage service by leaving their garbage in the next door neighbor‘s garbage can. On both a subjective and an objective level, Mr. Hepton neither had nor could reasonably expect to have the right to use the garbage can located next door.1 Consequently, he had no privacy interest in the next door neighbor‘s garbage can.
The second component of the inquiry into possible article I, section 7 violations is whеther the State unreasonably intruded. Boland, 115 Wash.2d at 577, 800 P.2d 1112. Even if the occupants of Ms. Ratliff‘s house exclusively used the next door neighbor‘s garbage can and paid for garbage service, no investigator could be reasonably expected to know that information. Garbage discovered on unoccupied premises could have been left there by anyone. Such garbage is in effect abandoned. Consequently, a police investigation into materials apparently dumped on unoccupied property is not an unreasonable intrusion. Because the investigator here did not unreasonably intrude by examining the garbage found at the next door neighbor‘s house, and because Mr. Hepton had no privacy interest in the neighbor‘s garbage can, the investigation did not constitute a search that violated article I, section 7. Goucher, 124 Wash.2d at 783-84, 881 P.2d 210. The evidence discovered in the garbage was properly considered by the court as a basis for issuing the search warrant.
SUFFICIENCY OF THE EVIDENCE
Mr. Hepton next challenges the sufficiency of the evidence to support his convictions for manufacturing methamphetamine and for reckless burning. He contends he did not complete manufacture of the methamphetamine and therefore should have been charged with attempt. Additionally, he contends the State failed to prove that he knowingly caused the fire. We view the evidence in the light most favorable to the State and ask whether any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Todd, 101 Wash.App. 945, 950, 6 P.3d 86 (2000).
I. Manufacture of Methamphetamine. Mr. Hepton was charged with the manufacture of a controlled substance, in this case, methamphetamine.
At trial, the State presented an expert‘s testimоny describing the red phosphorus method of manufacturing methamphetamine.
Criminal attempt is an act that is a substantial step toward the commission of an intended crime.
II. Reckless Burning. Relevant to the charge here, a person is guilty of first degree reckless burning if he or she recklessly damages a building by knowingly causing a fire.
UNANIMITY INSTRUCTION
During the State‘s case in chief, Ms. Ratliff was allowed to testify that she discovered Mr. Hepton cooking methamphetamine in the basement two or three days before the
Evidence has been introduced in this case that the defendant may have manufactured a controlled substance prior to the date of the crime charged. This evidence has been introduced solely for the questions of whether the defendant had knowledge of the manufacturing process and the potential dangers associated with the process. You must not consider this evidence for any other purpose.
Clerk‘s Papers (CP) at 121 (jury instruction 24). For the first time on appeal, Mr. Hepton contends the State presented evidence of more than one act of manufacture, and asserts the trial court erred in failing to instruct the jury that it had to unanimously agree on a particular act to convict.
If the State presents evidence of more than one act that could form the basis of one count charged, either the State must tell the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific act. State v. Kitchen, 110 Wash.2d 403, 409, 756 P.2d 105 (1988) (citing State v. Petrich, 101 Wash.2d 566, 570, 683 P.2d 173 (1984)). Failure to follow one of these options is constitutional error that is not harmless if a rational juror could have a reasonable doubt as to any one of the alleged acts. Id. at 409, 411, 756 P.2d 105. Because of its constitutional implications, this issue may be raised for the first time on appeal.
As the State notes in response, the trial court instructed the jury that it was to consider only Mr. Hepton‘s acts on October 10, the day of the fire. Further, the trial court included the limiting instruction proposed by Mr. Hepton informing the jury that the evidence of prior manufacture of methamphetamine could only be considered in determining Mr. Hepton‘s knowledge of the process and dangers associated with manufacture. Jurors are presumed to follow instructions. State v. Stein, 144 Wash.2d 236, 247, 27 P.3d 184 (2001). In light of the State‘s clear direction to the jury to rely only on the acts that took place on October 10, a unanimity instruction was not necessary in this case. Kitchen, 110 Wash.2d at 409, 756 P.2d 105.
ADMISSION OF THE CONFESSION
Pro se, Mr. Hepton first contends his statements to police should not have been admitted because they were not made voluntarily. He claims that several actions by police officers psychologically pressured him to confess: police officers (1) frightened him by playing an audio tape of Ms. Ratliff stating that he had cooked methamphetamine in the basement on a prior occasion; (2) threatened to arrest Ms. Ratliff and take away her children; and (3) promised to speak to the prosecutor on his behalf if he cooperated.
A trial court‘s determination that a defendant‘s statements were made voluntarily will not be disturbed on appeal if there is substantial evidence in the record to support the court‘s decision. State v. Cushing, 68 Wash.App. 388, 393, 842 P.2d 1035 (1993). Any statement that is the product of physical or psychological coercion is involuntary and inadmissible. Id. at 392, 842 P.2d 1035. A statement is coerced if the court finds that the defendant‘s will was overborne. State v. Broadaway, 133 Wash.2d 118, 132, 942 P.2d 363 (1997).
Following a
For his part, Mr. Hepton testified that he had been under the influence of methamphetamine during his first interview. He also told the court that officers threatened to charge his girlfriend if he did not confess. Further, he claimed that the detectives offered the DOSA3 trеatment option as an incentive for his confession. These assertions were disputed by the detectives, who testified that he appeared lucid during his interviews. One detective remembered Mr. Hepton asking about DOSA and remembered telling Mr. Hepton that DOSA was not usually offered to a manufacturer of methamphetamine. The credibility of these witnesses and the weight assigned to their testimony were the province of the trial court. State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990). Accepting the trial court‘s determination that the detectives gave the more credible rendition of the intеrviews, we find substantial evidence to support the trial court‘s determination that Mr. Hepton‘s will was not overborne. Accordingly, his statements were voluntary and admissible.
ER 404(b) ADMISSION OF PRIOR BAD ACTS
Mr. Hepton‘s final pro se contention is that the trial court erred in allowing Ms. Ratliff to testify that she discovered him cooking methamphetamine in the basement a few days before the fire. He contends the trial court did not weigh the probative value of this evidence against its highly prejudicial effect.
Under
In this case, the trial court ruled that the incident described by Ms. Ratliff was proved by a preponderance of the evidence. Although Mr. Hepton contends Ms. Ratliff‘s credibility was undermined by her history of crimes of dishonesty and her desire to arrange a plea agreement with the State, the trial court‘s determination of credibility is unassailable on appeal. Camarillo, 115 Wash.2d at 71, 794 P.2d 850. The trial court further ruled that evidence of this earlier attempt to manufacture methamphetamine was relevant to show Mr. Hepton‘s control of the basement area, his knowledge of the manufacturing process, and his plan or preparation of the scheme to manufacture. Mr. Hepton does not challenge these reasons for admission and they generally comply with the nonexclusive reasons found in
What the trial court failed to do was to balance on the record probative value
CROSS-APPEAL ON MULTIPLE SENTENCE ENHANCEMENTS FOR CHILD VICTIMS OF METHAMPHETAMINE MANUFACTURE
On cross-appeal, the Statе challenges the trial court‘s refusal to submit special interrogatory verdict forms for each of the five children who were in Ms. Ratliff‘s home at the time of the fire. The forms asked:
Was [name of child] present or upon 912 East Desmet, the premises of manufacture during commission of the crime in Count I and was [name of child] under the age of eighteen years during the commission of the crime under Count I?
CP at 225-29. In proposing the special interrogatory verdicts, the State was attempting to establish a basis for multiple sentence enhancements for endаngerment of a child.
When a defendant has been convicted of manufacturing methamphetamine and the State has specially alleged and proven beyond reasonable doubt that the crime was committed when a person under the age of 18 was present on the premises of manufacture, the sentencing court is required to add 24 months to the standard range sentence for the offense.
Our goal in statutory interpretation is to identify and give effect to the Legislature‘s intent. State v. Spandel, 107 Wash.App. 352, 358, 27 P.3d 613 (citing State v. Bright, 129 Wash.2d 257, 265, 916 P.2d 922 (1996)), review denied, 145 Wn.2d 1013 (2001). If, however, the language of a statute is unambiguous, the statute is not subject to judicial interpretation. Id. Any ambiguity is interpreted to favor the defendant (the rule of lenity). Id.
In this case, the clear language of
Spandel, cited by the State to support its argument that multiple violations support multiple enhancements, is inapposite. In Spandel, the appellate court addressed whеther the deadly weapon enhancement statute, former
Affirmed.
WE CONCUR: BROWN, C.J., and KATO, J.