STATE v. BREWER (2009)

PART PUBLISHED OPINION

 ¶ 1 In this consolidated appeal, Alan Brewer and Melissa Danielson (“Defendants”) challenge their jury trial convictions for possession of a controlled substance (methamphetamine), manufacture of a controlled substance (methamphetamine) with enhancements, and possession of pseudoephedrine with intent to manufacture a controlled substance (methamphetamine) with enhancements.   The Defendants argue that the trial court erred in (1) denying their motion to exclude evidence seized during an allegedly improper search of their storage shed;  (2) allowing the State to amend the information, just before resting its case, by replacing a school zone sentencing enhancement with a school bus zone enhancement;  (3) ailing to merge their second and third counts for manufacture of methamphetamine and possession of a methamphetamine precursor with the intent to manufacture methamphetamine;  and (4) imposing an unconstitutionally vague community custody condition.   They also argue that the evidence is insufficient to support their convictions for constructive possession of methamphetamine.   Adopting Division One's State v. Gaworski ¹ double jeopardy analysis and application to merger principles, we affirm.

FACTS

I. Methamphetamine Possession and Manufacture

¶ 2 Acting on an informant's tip, Detective Tim Boardman, a deputy sheriff with the Clark County Skamania Drug Task Force, requested a warrant to search a Vancouver residence that was reportedly involved in the manufacture and sale of methamphetamine.   The informant told Detective Boardman that he/she had observed the following items inside the residence:  (1) methamphetamine;  (2) numerous people consuming methamphetamine;  (3) five or six drug transactions;  and (4) multiple scales, packaging material, and drug paraphernalia.   The informant had previously aided law enforcement with a controlled buy of illegal drugs.

¶ 3 After meeting with the informant, Detective Boardman went to a trailer park abutting the residence to gather additional information for the warrant affidavit.   Detective Boardman incorporated his observations into the affidavit, describing the geographic, structural, and aesthetic characteristics of the property, which included a mobile home unit, a storage shed, a carport awning, and a fenced-in yard.   From Detective Boardman's vantage point, the mobile home and storage shed appeared “like all one building.”

¶ 4 Defendants Alan Brewer and Melissa Danielson lived as co-tenants on this property, which they rented from neighbor Tantum Thorp;  the lease agreement listed Brewer as the tenant.   On June 13, 2006, the superior court issued a search warrant for the residence.   The search warrant provided the following description of the property to be searched:

A white mobile home with green trim and an adjacent shed with a gray tarp covering the roof and the front of the shed.   The mobile home is located down a gravel drive that runs east to west from 131st Ave. There is a mail box on the south side of the driveway entrance that reads 5910.   The home has a specific address of 5910 NE 131st Ave, Vancouver Clark County Washington.

Danielson's Clerk's Papers (CP) at 44.

¶ 5 While searching the mobile home, law enforcement found pseudoephedrine, coffee filters, hot plates, and plastic tubing, all of which appeared to be used for manufacturing methamphetamine.   The officers also found 2.4 grams of methamphetamine in crystalline form, instructional literature for manufacturing methamphetamine, and financial documents identifying both defendants by name.

¶ 6 Danielson then pointed out the window and told Detective Boardman to look in an adjacent storage shed.   The shed, a small, four-sided structure, stood adjacent to  the mobile home unit, mere inches away from the mobile home's outer wall;  wiring and nails connected the shed to the mobile home's wall.   Danielson led Officer Josanna Hopkins to the shed and gestured toward a red suitcase.   Inside the red suitcase, Officer Hopkins found “lab equipment,” including flasks, tubing, matchbooks, red phosphorous, and iodine.

II. Procedure

¶ 7 The State charged both Brewer and Danielson with unlawful possession of a controlled substance-methamphetamine (Count 1), unlawful manufacture of a controlled substance-methamphetamine (Count 2), and unlawful possession of pseudoephedrine (methamphetamine precursor) with intent to manufacture a controlled substance-methamphetamine (Count 3).   The State added sentencing enhancements to Counts 2 and 3 for committing the offenses in the presence of minors.   The State also added another sentencing enhancement to Count 2 for committing the offense within 1000 feet of a school zone.

¶ 8 Defendants moved to suppress all evidence seized during the warrant execution.   The trial court denied this motion, ruling that the warrant had sufficiently identified the mobile home and adjacent storage shed as places to be searched and that the officers had acted within the scope of the warrant while conducting the search.

¶ 9 On the second day of the jury trial, one hour and a half before resting, the State sought to correct an error in the information by amending the “school zone” sentencing enhancement to a “school bus-stop” enhancement for Count 2. Thereafter, the State called two more witnesses before the trial court granted the motion.   The trial court ruled that the amendment did not prejudice Defendants because (1) the school zone and school bus stop enhancements were parallel, (2) the defense received advance notice that two of the State's last witnesses would testify about the proximity of the school bus stop, and (3) the defense had an opportunity to cross examine these witnesses.

 ¶ 10 The jury found both Defendants guilty on all counts.   The jury also answered three special verdict forms in the affirmative.   On Special Verdict A, for the school bus stop enhancement, the jury found that the defendants manufactured a controlled substance, Count 2, within 1000 feet of a school bus stop. On Special Verdict B, the jury found that the defendants manufactured a controlled substance in the presence of a person under 18-years-old, Count 2. On Special Verdict C, the jury found that the defendants possessed pseudoephedrine with the intent to manufacture methamphetamine in the presence of a person under 18-years-old, Count 3.

¶ 11 The trial court imposed standard-range sentences of 134 months minus 83 days for time served for both Defendants.   The trial court also imposed a nine to 12-month community custody condition, which prohibits Defendants from possessing or using drug paraphernalia, and other items not in issue here, following their release from confinement.²

¶ 12 Defendants did not argue at sentencing that their two convictions for manufacture of a controlled substance and possession of pseudoephedrine with intent to manufacture a controlled substance should merge.   Nor does it appear from the record that they raised merger at any time during the trial court proceedings.

¶ 13 Defendants appeal.

ANALYSIS

I. Merger;  Double Jeopardy

¶ 14 Defendants argue, for the first time on appeal, that the trial court placed them in double jeopardy by refusing to  merge their convictions for manufacturing methamphetamine and possession of pseudoephedrine with intent to manufacture methamphetamine.   They assert that these two offenses meet the Blockburger “same elements” test and, thus, the crimes cannot support separate convictions and separate penalties.  Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

¶ 15 The State counters that these offenses fail to meet the same elements test, emphasizing that Division One recently decided this very issue in Gaworski, 138 Wash.App. 141, 156 P.3d 288.   Agreeing with the State, we adopt and apply Gaworski.

A. Standard of Review

 ¶ 16 We will not consider an issue raised for the first time on appeal unless it involves a manifest error affecting a constitutional right.   State v. Kirkman, 159 Wash.2d 918, 926, 155 P.3d 125 (2007);  RAP 2.5(a).   To raise such as issue on appeal, the defendant must identify a constitutional error and show how the alleged error actually affected the defendant's rights at trial.  Kirkman, 159 Wash.2d at 926, 155 P.3d 125.   This showing of actual prejudice is what makes the error “manifest,” allowing appellate review.  Id. at 927, 155 P.3d 125.

 ¶ 17 Defendants' double jeopardy claim, based on failure to merge two charges, meets this manifest constitutional error test;  we must vacate convictions that violate double jeopardy.  State v. Womac, 160 Wash.2d 643, 658-60, 160 P.3d 40 (2007).   Interpreting and applying the double jeopardy clause is a question of law, which we review de novo.  State v. Knight, 162 Wash.2d 806, 810, 174 P.3d 1167 (2008).

B. Double Jeopardy

 ¶ 18 The Fifth Amendment to the United States Constitution prohibits the government from putting any person in jeopardy twice for the same offense.   See Const.  art.   I, § 9. We interpret the Washington Constitution's analogous double jeopardy clause in the same way that the United States Supreme Court interprets the Fifth Amendment.  State v. Gocken, 127 Wash.2d 95, 107, 896 P.2d 1267(1995).

 ¶ 19 Courts may not enter multiple convictions for the same offense without offending double jeopardy.  State v. Freeman, 153 Wash.2d 765, 771, 108 P.3d 753 (2005).  “Where a defendant's act supports charges under two criminal statutes, a court weighing a double jeopardy challenge must determine whether, in light of legislative intent, the charged crimes constitute the same offense.”  In re Pers. Restraint of Orange, 152 Wash.2d 795, 815, 100 P.3d 291 (2004).

 ¶ 20 The merger doctrine applies when the Legislature clearly indicates that, to prove a particular degree of a crime, the State must prove, not only that the defendant committed the crime, but also that the crime was accompanied by an act that is defined as a crime elsewhere in the criminal statutes.  State v. Deryke, 110 Wash.App. 815, 823, 41 P.3d 1225 (2002) (citing State v. Vladovic, 99 Wash.2d 413, 421, 662 P.2d 853 (1983)).   But when the legislative intent is unclear, we apply the Blockburger “same elements” test.   In undertaking this analysis, we determine whether each crime contains an element that the other does not.   State v. Cox, 109 Wash.App. 779, 784, 37 P.3d 1240 (2002) (citing Blockburger, 284 U.S. at 304, 52 S.Ct. 180).   If each crime contains an element not contained in the other, the offenses are not the same for double jeopardy purposes.  Cox, 109 Wash.App. at 784, 37 P.3d 1240;  see State v. Calle, 125 Wash.2d 769, 777-78, 888 P.2d 155 (1995).

C. Gaworski:  “Same Elements” Test

 ¶ 21 Gaworski argued that his conviction for unlawful possession of drugs with intent to manufacture should merge with his conviction for unlawful manufacture of drugs because “manufacture” necessarily involves the possession of precursors with the intent to manufacture.  Gaworski, 138 Wash.App. at 146, 156 P.3d 288.   Division One of our court rejected this argument.   Holding that possession of a precursor ingredient is not a required element of manufacturing a controlled substance, Division One concluded that Gaworski's convictions did not meet the Blockburger “same elements test”:

Possession of precursor ingredients is not a required element of manufacturing.   A person who knowingly plays even a limited role in any of these processes manufactures methamphetamine, and a person can knowingly commit the crime of manufacturing a controlled substance without ever constructively possessing it.   For example, fingerprints on four items in a box lab [[3] used only to manufacture methamphetamine were sufficient evidence to sustain a conviction of manufacturing.   Conversely, a person may possess precursor ingredients with intent to manufacture methamphetamine without ever beginning the actual manufacturing process.   The two crimes do not require proof of the same facts, and we presume the legislature intended separate punishments.

Gaworski, 138 Wash.App. at 147, 156 P.3d 288 (internal citations omitted).

¶ 22 Like Gaworski, Brewer and Danielson argue that their convictions for manufacturing a controlled substance and possessing a precursor ingredient with the intent to manufacture a controlled substance are identical in both fact and law.   As in Gaworski, these arguments fail.  RCW 69.50.440(1) defines the crime of possession with intent to manufacture as follows:

It is unlawful for any person to possess 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, including its salts, isomers, and salts of isomers.

 In contrast, RCW 69.50.401(1) makes it “unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.”  RCW 69.50.101(p) defines “manufacturing” as follows:

“Manufacture” means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container.

Under this statutory definition, simply possessing a precursor ingredient with “the intent to manufacture” can establish the crime of possession with intent to manufacture.

¶ 23 Adopting Division One's Gaworski analysis, we hold that Defendants' two methamphetamine offenses do not meet the “same elements” test, they do not merge, and the convictions do not violate the constitutional prohibitions against double jeopardy.

¶ 24 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

II. Search Warrant

¶ 25 Defendants next argue that the trial court should have suppressed evidence found in the storage shed on their property.   They contend that because the search warrant authorizing search of the mobile home omitted the term “outbuilding” or similar terminology, the officers lacked authority to enter and to search the shed adjacent to the mobile home.   This argument fails.

A. Standard of Review

¶ 26 In reviewing a suppression motion, we independently evaluate the evidence to determine whether substantial evidence supports the trial court's findings and whether the findings support the conclusions.  State v. Hill, 123 Wash.2d 641, 644-45, 870 P.2d 313 (1994).   Evidence is substantial when it is sufficient to persuade a fair-minded, rational person of the truth of the finding.  State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994).   We review de novo the trial court's conclusions of law, evaluating search warrants in a “common-sense, practical manner,” rather than applying a hyper-technical standard.  State v. Stenson, 132 Wash.2d 668, 692, 940 P.2d 1239 (1997);  see State v. Mendez, 137 Wash.2d 208, 214, 970 P.2d 722 (1999).

¶ 27 We review the issuance of a search warrant under the abuse of discretion standard.  State v. Olson, 73 Wash.App. 348, 354, 869 P.2d 110, review denied, 124 Wash.2d 1029, 883 P.2d 327 (1994).   In so doing, we accord great deference to the issuing magistrate's determination of probable cause and resolve any doubts in favor of the warrant's validity.  Id. (citing State v. Kalakosky, 121 Wash.2d 525, 531, 852 P.2d 1064 (1993)).

¶ 28 The Fourth Amendment to the United States Constitution requires that a search warrant describe “with particularity” the place to be searched and the person or things to be seized.  State v. Olson, 32 Wash.App. 555, 557, 648 P.2d 476 (1982).   Generally, “[a] warrant is sufficiently particular if it identifies the place to be searched adequately enough so that the officer executing the warrant can, with reasonable care, identify the place intended.”  State v. Cockrell, 102 Wash.2d 561, 569-70, 689 P.2d 32 (1984) (citing State v. Fisher, 96 Wash.2d 962, 639 P.2d 743, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1355 (1982)).   A perfect description is not required.  State v. Smith, 39 Wash.App. 642, 648-49, 694 P.2d 660 (1984), review denied, 103 Wash.2d 1034 (1985).

B. Warrant Described Adjacent Shed with Sufficient Particularity

¶ 29 The search warrant here described Defendants' mobile home, the storage shed, and other home areas with sufficient particularity to justify the scope of the search.   The warrant included a description of the storage shed as part of Defendants' property, describing the property to be searched as a “white mobile home with green trim and an adjacent shed with a gray tarp covering the roof and the front of the shed.”   Additionally, both Detective Boardman and the property's owner, Tantum Thorp, Defendants' landlord, described the shed as a part of Defendants' mobile home unit.

¶ 30 The adjacent shed appeared to be part of Defendants' mobile home residence both (1) when Detective Boardman procured and the superior court issued the search warrant and (2) at the time of the pretrial suppression hearing when the trial court considered the legality of the warrant and the search.   The issue of whether the adjacent shed was actually attached to the mobile home, or technically separated by mere inches, did not arise until later at trial when the State introduced Exhibit 36, a photograph that showed a slight space between the mobile home's outerwall and the adjacent shed.   Thus, when the officers executed the search warrant, they understood the adjacent shed to be part of the mobile home described in the warrant, as did the mobile home's owner.

¶ 31 Thus, we hold that the search warrant described the shed with sufficient particularity.

C. Search Warrant Affidavit Provided Probable Cause

¶ 32 Defendants also contend that the warrant affidavit failed to establish probable cause to search the shed.   This argument also fails.

¶ 33 Probable cause exists if the affidavit in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that the defendant is involved in criminal activity and that the evidence of the crime can be found in the place to be searched.  State v. Thein, 138 Wash.2d 133, 140, 977 P.2d 582 (1999).  “Probable cause requires a nexus between criminal activity and the item to be seized, and also a nexus between the item to be seized and the place to be searched.”  Thein, 138 Wash.2d at 140, 977 P.2d 582.

¶ 34 Here, the warrant affidavit established adequate probable cause.   The affidavit explained that the informant was credible and reliable, because the informant had previously aided law enforcement with a controlled buy of illegal drugs.   After meeting with the informant, Detective Boardman had gone to a trailer park next to Defendants' residence to gather additional information for the warrant affidavit.   From Boardman's vantage point, the mobile home and shed appeared “like all one building.”   The affidavit described the geographic, structural, and aesthetic characteristics of the property, which included a mobile home unit, a carport, and a carport awning.

¶ 35 Taken as a whole, this information in the search warrant affidavit described the places and things to be searched in sufficient detail and provided law enforcement with adequate probable cause to believe that they would find methamphetamine and related drug paraphernalia on Defendants' property.   Accordingly, we hold that the warrant affidavit established adequate probable cause to issue a search warrant, which included the shed as part of the residence to be searched.

D. Consent to Search Unnecessary

¶ 36 Defendants further argue that the trial court improperly denied their motions to suppress because law enforcement failed to obtain consent before they searched the shed.   Having held that the warrant authorized the search of the storage shed, consent was unnecessary.   Thus, we do not further address this issue.

III. Information Properly Amended

¶ 37 Defendants next argue that the trial court erred by allowing the State to amend the information during the second day of trial, changing one of the sentencing enhancements from possession in a “school zone” to possession in a “school bus stop.”   Defendants claim that this amendment deprived them of the opportunity to prepare a defense.   This argument also fails.

A. Standard of Review

¶ 38 Under the criminal court rules, a trial court may allow the State to amend the information at any time before the verdict, as long as the “substantial rights of the defendant are not prejudiced.”  CrR 2.1(d);  see State v. Pelkey, 109 Wash.2d 484, 487-90, 745 P.2d 854 (1987).   We review a trial court's decision to allow amendments for abuse of discretion.  State v. Haner, 95 Wash.2d 858, 864, 631 P.2d 381 (1981).   Where the trial court's decision or order is a matter of discretion, we will not disturb it on review except on a clear showing of abuse of discretion.  State v. Wade, 138 Wash.2d 460, 463-64, 979 P.2d 850 (1999) (citing State ex rel. Carroll v. Junker, 79 Wash.2d 12, 482 P.2d 775 (1971)).   An abuse of discretion occurs when the trial court acts in a way that is manifestly unreasonable or exercises its discretion on untenable grounds or for untenable reasons.  Wade, 138 Wash.2d at 464, 979 P.2d 850.   We find no abuse of discretion here.

B. Amendment Before State Rested

¶ 39 Defendants rely on Pelkey for the proposition that amending the information during the later stages of trial is per se unconstitutional.   Pelkey, 109 Wash.2d at 491, 745 P.2d 854.   But Pelkey does not apply here.   In Pelkey, the Washington State Supreme Court addressed the propriety of an amendment after the State had rested, not an amendment during the case-in-chief, before the State rested, as was the case here.  Id. (emphasis added).   Moreover, several years later, the Supreme Court specifically declined to extend the reach of Pelkey's per se rule to embrace amendments made during the State's case-in-chief.  State v. Vangerpen, 125 Wash.2d 782, 790, 888 P.2d 1177(1995).

¶ 40 The record clearly shows that here, the State moved to amend the information before resting its case.   The State then called two more witnesses, whom defense cross-examined, before the trial court ruled on the State's amendment motion.   Significantly, the State's amendment did not add a new charge;  nor did it actually change any element of proof.   On the contrary, the State simply corrected the text of the school “zone” enhancement to read as a school “bus stop” enhancement to conform to the evidence;  and this amended language used the same witnesses and same foundational information, as did the original language, to describe the area involved.

¶ 41 Furthermore, as the State correctly notes, this amendment did not deprive Defendants of the opportunity to assert a defense because it merely changed minor language in a sentencing “enhancement” as opposed to a substantive criminal charge.   The amended sentencing enhancement was “parallel” to the original enhancement because it was based on the same facts, and it imposed no greater or different penalty.   Additionally, the defense cross-examined the State's witnesses and declined to call its own witnesses to refute the testimony about the school bus zone.   And if Defendants had any concerns about prejudice, they could have requested a continuance for additional time to prepare;  but they did not.   Thus, the sentencing enhancement amendment caused no demonstrable prejudice to Defendants.

¶ 42 We hold that the trial court did not abuse its discretion in granting the State's motion to amend the sentencing enhancement language of the information before the State rested its case.

IV. Substantial Evidence of Constructive Possession

¶ 43 Defendants argue that the trial court failed to base their convictions on substantial evidence of constructive possession. They further contend that they did not constructively possess methamphetamine and related paraphernalia because they did not exercise dominion and control over these items.   We disagree.

A. Standard of Review

¶ 44 We review sufficiency of the evidence by determining whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.  State v. Hernandez, 85 Wash.App. 672, 675, 935 P.2d 623 (1997) (citing State v. Chapin, 118 Wash.2d 681, 692, 826 P.2d 194 (1992)).   When the sufficiency of evidence is challenged in a criminal case, we draw all reasonable inferences from the evidence in favor of the State.  State v. Partin, 88 Wash.2d 899, 906-07, 567 P.2d 1136 (1977).

B. Constructive Possession:  Dominion and Control

¶ 45 Brewer argues that only his co-defendant, Danielson, possessed the contraband, contending that Danielson's admission to law enforcement about where to locate the evidence demonstrated her culpability.   Based on Division One's holding in State v. Spruell, Danielson argues that mere proximity is not enough to establish dominion and control over a controlled substance.   State v. Spruell, 57 Wash.App. 383, 788 P.2d 21 (1990).   Both arguments fail.

¶ 46 Possession of narcotics may be either actual or constructive.   State v. Sanders, 7 Wash.App. 891, 892, 503 P.2d 467 (1972).   A person has constructive possession if he or she exercises dominion and control over the goods, regardless of whether there is actual possession.  State v. Callahan, 77 Wash.2d 27, 29, 459 P.2d 400 (1969).   It is possible to prove constructive possession through substantial circumstantial evidence.  Sanders, 7 Wash.App. at 892, 503 P.2d 467.

¶ 47 Here, Danielson and Brewer both lived at the residence and paid rent to the property owner.   Additionally, the lease agreement named Brewer as the property's tenant.   Despite Danielson's assertion that she was in the process of moving out, she was still living at the residence with her children at the time of the search, and the residence still housed her belongings and other items identifying her by name.   These facts provide sufficient evidence that Defendants exercised dominion and control over the areas where law enforcement searched under the warrant and found the evidence.4

¶ 48 Accordingly, the record supports the jury's determination that Defendants constructively possessed the illegal items.

V. Community Custody Condition

¶ 49 Finally, Defendants argue that the community custody paraphernalia condition of their sentences is unconstitutionally vague.   We do not address this issue because it is not ripe for review.5

¶ 50 Our Supreme Court recently addressed pre-enforcement challenges to a community custody condition.   In State v. Bahl, 164 Wash.2d 739, 193 P.3d 678 (2008), the court held that such challenges are ripe for review when they deal with primarily legal issues that courts can resolve on the record before it without the need for additional facts.  Bahl, 164 Wash.2d at 751, 193 P.3d 678.   Such is not the case here, however.

¶ 51 Bahl suggests the following test for appellate courts to use in determining whether a community custody condition challenge is sufficiently ripe for review:  when (1) the issues raised are primarily legal, (2) determination of these issues requires no further factual inquiry, and (3) the challenged action is final.  164 Wash.2d at 751, 193 P.3d 678.   Additionally, the reviewing court must consider “the hardship to the parties of withholding court consideration.”  164 Wash.2d at 751, 193 P.3d 678 (quoting First United Methodist Church v. Hearing Exam'r, 129 Wash.2d 238, 255, 916 P.2d 374 (1996)).

¶ 52 Applying this test here, we hold that Defendants' challenge is not ripe for review.   In Bahl, the community custody condition, prohibiting the possession of pornographic materials, implicated a First Amendment right.   But here, Defendants base their vagueness challenge on a due process argument, which does not implicate the First Amendment.   When a vagueness challenge does not involve a First Amendment right, we evaluate it in light of the facts of each particular case.  City of Spokane v. Douglass, 115 Wash.2d 171, 182, 795 P.2d 693 (1990).   Therefore, an inquiry into whether the community custody paraphernalia condition is unconstitutionally vague, as applied to Defendants, is premature unless and until they can show that the condition actually caused them harm.   Because they have not yet been released from confinement and placed on community custody, they cannot show that this condition causes them harm.

¶ 53 Additionally, the community custody condition at issue in Bahl barred possession of pornography;  whereas, the community custody condition at issue here prohibits possession of drug paraphernalia.   Our determination of whether Defendants received sufficient warning about what items constitute “paraphernalia” that the condition prohibits, necessarily rests on a factual record describing the type of items used and the manner in which they were used.   Again, Defendants have not yet been in a position to use such items on community custody.   Moreover, they assert no specific facts inviting our review of whether these facts meet the statutory definition of “drug paraphernalia” under RCW 69.50.102(a); 6  in this specific factual context, we cannot review their challenge to this condition at this time.

¶ 54 Finally, because the community custody prohibition of possessing drug paraphernalia requires proof of Defendants' intent to use ordinary household objects to ingest or to facilitate the sale or transfer of illegal drugs, withholding review at this stage does not cause Defendants significant hardship.7  Accordingly, we hold that Defendants' challenge to the paraphernalia community custody condition is not ripe for review under Bahl. Therefore, we do not further consider it.

¶ 55 We affirm.

¶ 25 I concur with the result affirming the convictions of Alan Gene Brewer and Melissa Rene Danielson, but respectfully dissent on the issue of whether a convicted person must show actual harm before their challenge to community custody conditions for unconstitutional vagueness ripens.

¶ 26 State v. Bahl, 164 Wash.2d 739, 750-51, 193 P.3d 678 (2008), states four requirements:  (1) a primarily legal issue;  (2) no necessary further factual development;  (3) final  action;  and (4) a consideration of hardship to the parties if the court does not review the condition imposed.   The majority adds a fifth requirement, evidence of harm before review is granted.   The majority merely repeats Motter's requirement to show harm before review will be granted, State v. Motter, 139 Wash.App. 797, 803-04, 162 P.3d 1190 (2007), essentially transforming the need for further factual development under Bahl to ripeness dependent on harm shown.

¶ 27 Harm will arise in the context of a hearing on violation of the community custody conditions, with sanctions imposed, i.e., revocation of community custody or additional time to be served.   The majority suggests that following a finding of violation of the condition, a defendant may file a personal restraint petition for relief from unreasonable application or interpretation of the community custody conditions.

¶ 28 The majority ignores the hardship arising from arrest, hearing, confinement, and the delay inherent in personal restraint petitions and creates a necessity for further factual development via imposition of sanctions for violating community custody conditions that may, indeed, be unwarranted or unconstitutionally vague.   This result shifts all of the hardship to the defendant, when addressing the imposition of particular community custody conditions on direct appeal imposes virtually no hardship on the State.

¶ 29 The better result is to deal with challenges to community custody conditions on direct appeal rather than assuming that they are warranted and pass constitutional muster until a defendant may later be sanctioned inappropriately for using a cell phone or other innocuous device without evidence of associated criminal activity.   I would suggest that RCW 69.50.102 provides a definition of “drug paraphernalia” that would help alleviate the vagueness issue, as it not only lists items considered such paraphernalia, but also addresses how to consider whether an item is properly considered to be drug paraphernalia given a factual context. Because the statute is presumed constitutional, if the trial court were to refer to this statute as its definition of the items prohibited while on community custody, defendants' vagueness challenge may well not be ripe or warranted.

FOOTNOTES

1.   138 Wash.App. 141, 156 P.3d 288 (2007).

2.   The community custody provision, with conditions, stated:Defendant shall not possess or use any paraphernalia that can be used for the ingestion or processing of controlled substances or that can be used to facilitate the sale or transfer of controlled substances including scales, pagers, cellular phones, police scanners and hand held electronic scheduling or data storage devices.Danielson's CP at 131-32.

3.   Division One used the term “box lab” in Gaworski, but did not define it.   A “box lab” contains devices and chemicals used to manufacture methamphetamine, “but it is in a stored state and generally not in use.” http://​www.​co.​summit.​oh.​us/​sheriff/​Meth_​Sites/​Meth_​Sites.​asp, last visited on December 30, 2008.

FN4.  Furthermore, Spruell does not advance Danielson's position:  On the contrary, Spruell is distinguishable because in Spruell, law enforcement recovered drugs from the common area of a home where the defendant was staying as a visitor, rather than as a resident.  Spruell, 57 Wash.App. at 388-89, 788 P.2d 21..  FN4.  Furthermore, Spruell does not advance Danielson's position:  On the contrary, Spruell is distinguishable because in Spruell, law enforcement recovered drugs from the common area of a home where the defendant was staying as a visitor, rather than as a resident.  Spruell, 57 Wash.App. at 388-89, 788 P.2d 21.

FN5.  See e.g., State v. Valencia, 148 Wash.App. 302, 198 P.3d 1065 (applying Bahl test, pre-enforcement vagueness challenge to community custody paraphernalia condition not ripe for review)..  FN5.  See e.g., State v. Valencia, 148 Wash.App. 302, 198 P.3d 1065 (applying Bahl test, pre-enforcement vagueness challenge to community custody paraphernalia condition not ripe for review).

FN6.  Our dissenting colleague suggests that the statutory definition of “drug paraphernalia” “would help alleviate the vagueness issue, as it not only lists items considered such paraphernalia, but also addresses how to consider whether an item is properly considered to be drug paraphernalia given a factual context.”   Dissent at ----.  But the statutory list of prohibited items, which includes “all equipment, products, and materials of any kind” that one can use or intend to use or that are “designed for use” to ingest (among other actions) controlled substances, does not cure the problem of our inability to review the challenged community custody condition here, in the absence of Defendants' presenting specific factual scenarios that allegedly fall outside the statute's purview.  RCW 69.50.102(a)..  FN6.  Our dissenting colleague suggests that the statutory definition of “drug paraphernalia” “would help alleviate the vagueness issue, as it not only lists items considered such paraphernalia, but also addresses how to consider whether an item is properly considered to be drug paraphernalia given a factual context.”   Dissent at ----.  But the statutory list of prohibited items, which includes “all equipment, products, and materials of any kind” that one can use or intend to use or that are “designed for use” to ingest (among other actions) controlled substances, does not cure the problem of our inability to review the challenged community custody condition here, in the absence of Defendants' presenting specific factual scenarios that allegedly fall outside the statute's purview.  RCW 69.50.102(a).

FN7.  Because the trial court sentenced Defendants to 134 months confinement on June 19, 2007, we assume they are still incarcerated and not yet released on community custody at the time of filing this opinion.   But if Defendants can show actual harm once they are released on community custody, they would likely have standing to file a personal restraint petition raising this issue then.  RAP 16.4;  see, e.g., In re Pers. Restraint of Shepard, 127 Wash.2d 185, 191, 898 P.2d 828 (1995)..  FN7.  Because the trial court sentenced Defendants to 134 months confinement on June 19, 2007, we assume they are still incarcerated and not yet released on community custody at the time of filing this opinion.   But if Defendants can show actual harm once they are released on community custody, they would likely have standing to file a personal restraint petition raising this issue then.  RAP 16.4;  see, e.g., In re Pers. Restraint of Shepard, 127 Wash.2d 185, 191, 898 P.2d 828 (1995).

HUNT, J.