STATE v. STOCKMYER (2006)

PUBLISHED IN PART OPINION

 ¶ 1 Donald Earl Stockmyer appeals his jury convictions for assault with a deadly weapon, drug manufacture, and seven counts of unlawful gun possession.   He argues that (1) he did not receive a speedy trial;  (2) a late amended information prejudiced him;  (3) the evidence was insufficient to convict him on four of his possession convictions;  and (4) the trial court incorrectly calculated his offender score because it should have considered his seven  gun-possession crimes as two sets of the same criminal conduct under RCW 9.94A.525(8).

¶ 2 We accept the State's concession that counts VI-IX encompassed the same criminal conduct and that, therefore, Stockmyer should be resentenced.   Holding that guns found in different rooms in the same house are found in different “places” for purposes of the same-criminal-conduct test under RCW 9.94A.589(1)(a), we affirm Stockmyer's convictions and remand for resentencing.

FACTS

I. Search Warrant Execution

¶ 3 On January 14, 2005, SWAT ¹ officers announced their presence, knocked on the front door, and executed a warrant to search Stockmyer's Olympia home for drug ² and to arrest his person for a probation violation.   As the officers entered the front door, Stockmyer ³ shot at them.   The bullet passed so close to the officers' faces that they could feel its concussion.   The officers took Stockmyer into custody.

¶ 4 Smelling marijuana, the officers then completed the search warrant.   They found 208 marijuana plants and three firearms:  a .30/06 rifle, in the closet near the front door entryway;  a .44 Desert Eagle handgun, on top of the refrigerator in the kitchen;  and the .380 semi-automatic pistol that Stockmyer had shot at them, on a kitchen counter.   Stockmyer had been sleeping with the .380 in the front room and usually kept it in his bedroom.

 ¶ 5 On February 10, police executed a second search warrant for Stockmyer's safe, which he kept in a friend's Puyallup garage.⁴  Only Stockmyer had the combination for this safe.   Police found four additional firearms inside this safe:  two .22's, a model Winchester .44, and a Smith & Wesson, model 29, .44.   Stockmyer admitted that these were his firearms and explained that he stored them in the safe “in case [he] was ever arrested.”   During this time, Stockmyer remained in custody.

II. Procedure

¶ 6 The State charged Stockmyer with:  attempted first degree murder, with a firearm enhancement (Count I);  unlawful manufacture of a controlled substance (marijuana), with a firearm enhancement (Count II);  and seven counts of first degree unlawful possession of a firearm (Counts III-IX), one for each of the guns found during the search.   In Count I, the State charged Stockmyer with attempted first degree murder by the following alternative methods, both while “armed with a firearm, a deadly weapon”:  (1) causing the death of another with “premeditated intent,” or (2) with “extreme indifference to human life,” engaging in conduct creating “grave risk of death.”

A. Continuances

¶ 7 On January 26, 2005, the court set Stockmyer's trial for March 21, 54 days later.   The State moved for a two-week continuance to accommodate previously planned travel.   Although Stockmyer objected to any continuance, Stockmyer's counsel moved to continue the trial date an additional one or two weeks, if the trial court granted the State's motion, because he had a conflict with the proposed new trial date.

 ¶ 8 After ruling that there was good cause for both continuances, the trial court reset trial for April 11.   Stockmyer did not request an earlier trial date.

¶ 9 Before the April 11 trial date, the court granted the State another continuance because an important state witness was scheduled be out of the country at that time.   The court granted the motion and reset the trial for April 25.

¶ 10 On April 25, Stockmyer moved for another continuance to allow time to prepare to represent himself pro se.   The court granted Stockmyer's motion and reset the trial for May 9, 103 days after Stockmyer's arraignment.   The trial court appointed standby counsel to assist Stockmyer during his pro se representation.

B. Trial

¶ 11 Trial began on May 10.   For purposes of the unlawful firearm possession charges, Stockmyer stipulated that he had a prior conviction for a serious offense.⁵  He also testified in his own behalf, admitting, among other things, that he owned and possessed the firearms, knew it was illegal for him to possess them, and that he was growing and selling marijuana.

¶ 12 On May 16, the State filed a third amended information changing the language of Count I as follows:  It replaced the “extreme indifference” alternative method of committing murder with first degree assault with a firearm, deadly weapon.   Stockmyer did not object to this amendment.   On the contrary, when specifically asked by the trial court, he stated that he had no objection.

¶ 13 The jury found Stockmyer guilty of first degree assault with a firearm enhancement (Count I), unlawful manufacture of a controlled substance (marijuana) with a firearm enhancement (Count II), and seven counts of first degree unlawful possession of a firearm (Counts III-IX).

 C. Sentencing

¶ 14 The trial court calculated Stockmyer's offender score by treating each count as separate criminal conduct.⁶  This calculation resulted in offender scores of 13 for count I and 10 for counts II-IX. The trial court sentenced Stockmyer to (1) 318 months confinement, with an additional 60 months confinement for the firearm enhancement, on count I;  (2) 24 months plus 18 months of firearm enhancement, on count II;  and (3) 116 months each on counts III-IX.   The trial court ran these sentences concurrently except for the firearm enhancements, which it ran consecutively.⁷

D. Appeal

¶ 15 Stockmyer appealed all his convictions and offender score calculations.   The parties' opening briefs lacked support for their respective positions on whether guns found in different rooms in Stockmyer's home should be considered to have been found in the “same place” for purposes of the same-criminal-conduct statutory test.⁸  We ordered, and received, supplemental briefs on this issue.

ANALYSIS

I. Separate or Same Criminal Conduct

¶ 16 Stockmyer argues that (1) his convictions for possession of the three guns in his home, counts III-V, constituted the same criminal conduct;  (2) similarly, his convictions for  possession of the four guns in the safe at his friend's home, counts VI-IX, constituted the same criminal conduct;  and (3) therefore, these crimes should count as only two, rather than seven, for purposes of calculating his offender score under RCW 9.94A.589(1)(a).

 ¶ 17 The State concedes that Counts VI-IX encompassed the same criminal conduct in that the firearms Stockmyer possessed in the Puyallup safe were in the same place.   Accepting this concession, we turn to Counts III-V, the three firearms Stockmyer kept in his home.   The State argues that the guns found in different rooms of Stockmyer's home (counts III-V) were not the same criminal conduct because they were found in different places.⁹  This is an issue of first impression.

A. Standard of Review

 ¶ 18 Our Legislature has provided that (1) each firearm a defendant possesses is a separate offense, RCW 9.41.040(7);  but (2) when separate offenses encompass the “same criminal conduct,” they count as one crime for offender-score calculation purposes, RCW 9.94A.589(1)(a).   We generally construe this statute narrowly so that most crimes are not considered to be the same criminal conduct.  State v. Porter, 133 Wash.2d 177, 181, 942 P.2d 974 (1997).

 ¶ 19 Multiple crimes encompass the “same criminal conduct” if they result from the same criminal intent, involve the same victim, and occur at the same time and place.  RCW 9.94A.589(1)(a).   We give deference to the trial court's same-criminal-conduct determination such that we “will not reverse a sentence unless [we] find[ ] a clear abuse of discretion or misapplication of the law.”  State v. Elliott, 114 Wash.2d 6, 17, 785 P.2d 440, cert. denied, 498 U.S. 838, 111 S.Ct. 110, 112 L.Ed.2d 80 (1990).

 B. Different Rooms, Different Places

¶ 20 We have previously held that multiple, unlawful firearm possession convictions constitute the same criminal conduct if the possessions occurred at the same time and place.  State v. Simonson, 91 Wash.App. 874, 885-86, 960 P.2d 955 (1998), review denied, 137 Wash.2d 1016, 978 P.2d 1098 (1999).   But Simonson does not control here.   Simonson was in custody for unrelated charges when emergency personnel entered his trailer following an explosion and seized firearms from his bedroom.   In holding that the purpose of so many loaded guns was to protect the trailer from attack, we assessed whether the guns were “readily available for use.”  Simonson, 91 Wash.App. at 882-83, 960 P.2d 955.   We held that Simonson's constructive possession of these firearms was the same criminal conduct because he possessed all the firearms in one bedroom and all the firearms were within his ready access from his bed.

 ¶ 21 In contrast, Stockmyer possessed three different firearms in three different rooms in his residence:  (1) in the closet near the entryway;  (2) on top of the refrigerator in the kitchen;  and (3) in his living room, or bedroom, depending on where he was sleeping.¹⁰  Stockmyer thus had ready access to loaded firearms in these three different locations.

¶ 22 Because we narrowly construe the “same place” requirement, we cannot say as a matter of law that Stockmyer's possession of multiple firearms in these three different locations constituted the same criminal conduct.   Moreover, multiple guns in different rooms in felons' homes increase the peril to both law enforcement and the general public in that they provide felons with easier and more ready access to guns in the home, thus increasing the possibility of harm to others.

¶ 23 Consistent with this possibility, Stockmyer testified that (1) he kept his loaded firearms in various locations around the house to protect himself from uninvited intruders, robbers, and police;  (2) he kept the pistol in his bedroom so it would be handy anytime he needed it;  and (3) on a sill outside his front door, he displayed empty cartridge cases from bullets he had fired, specifically to alert anyone standing on his porch that he was armed and dangerous.

 ¶ 24 We hold that guns found in different rooms in the same house are found in different “places” for purposes of the same criminal conduct test under RCW 9.94A.589(1)(a).   We further hold, therefore, that the trial court did not abuse its discretion or err in calculating his offender score on Counts III-V as separate criminal conduct.

¶ 25 Accordingly, we remand for resentencing on only Counts VI-IX, possession of the four firearms in the safe, which the State concedes were in the same place and met the other factors for establishing that their possession was the same criminal conduct for offender score calculation purposes.

¶ 26 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. Speedy Trial

¶ 27 Stockmyer also argues that he did not receive a speedy trial in conformance with CrR 3.3, because (1) the trial court improperly granted continuances, and (2) the length of time between his arraignment and the beginning of his trial exceeded 60 days.   This argument fails.

¶ 28 Generally, the rule is that a defendant detained in jail shall be brought to trial within 60 days.  CrR 3.3(b)(1)(i).   But continuances for good cause and unavoidable or unforeseen circumstances are excluded for the calculation of those 60 days.  CrR 3.3(e)(3), (e)(8).

¶ 29 Here, over Stockmyer's objection, the trial court first granted the State a continuance from the March 21 trial date to April 11 for good cause.   Later, the trial court granted the State a second continuance to April 25 because a primary witness would be unavailable for trial on April 11-an unforeseen circumstance.   Thus, neither of these time periods counted toward the 60-day time period of CrR 3.3.   See CrR 3.3(e)(3), (e)(8).11

¶ 30 Stockmyer himself requested, and was granted, the third and final trial continuance.   He sought this continuance so that he could prepare to represent himself at trial.   Thus, this continuance was also for good cause, and it did not count toward the 60-day period.  CrR 3.3(e)(3).

A grant or denial of a motion for a continuance is a decision that rests within the sound discretion of the trial court.  State v. Williams, 84 Wash.2d 853, 529 P.2d 1088 (1975).   The decision is discretionary because the court must consider various factors such as diligence, materiality, due process, a need for an orderly procedure and the possible impact on the result of the trial.  State v. Eller, 84 Wash.2d 90, 524 P.2d 242 (1974).

State v. Kelly, 32 Wash.App. 112, 114-15, 645 P.2d 1146, review denied, 97 Wash.2d 1037 (1982).

¶ 31 Accordingly, because all continuances are excluded under CrR 3.3, only the 54 days between Stockmyer's arraignment and the initial trial date counted towards the 60-day requirement of CrR 3.3.   We hold, therefore, that the trial court did not abuse its discretion in granting the continuances and that Stockmyer was timely brought to trial within the required CrR 3.3 period.

III. Amended Information

¶ 32 “The court may permit any information ․ to be amended at any time before the verdict or finding if substantial rights of the defendant are not prejudiced.”  CrR 2.1(d).  In his SAG, Stockmyer argues that the State's late filing of a third amended information during trial prejudiced him because it did not allow him time to prepare a defense to the assault alternative to attempted murder.   Beyond this bare assertion, however, he does not allege any actual prejudice, how the amendment would have required a change in his defense, or how this amendment caused his trial to be unfair.   Furthermore, Stockmyer did not timely object to the amendment.12  Therefore, we do not further consider this argument.

IV. Sufficient Evidence

¶ 33 Stockmyer also argues that the State presented insufficient evidence to prove beyond a reasonable doubt that he unlawfully possessed the four guns found in his safe.13  This argument fails.

A. Standard of Review

¶ 34 The test for sufficiency of evidence is whether, “after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found [the essential elements of a crime] beyond a reasonable doubt.”  State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).   In examining sufficiency of the evidence, we consider circumstantial evidence to be no less reliable than direct evidence.  State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980).   We also consider all inferences that can be reasonably drawn from the State's evidence.  Salinas, 119 Wash.2d at 201, 829 P.2d 1068.   Indeed, “whether the evidence [is] direct, circumstantial, or a combination of the two, the jury need be instructed that it need only be convinced of the defendant's guilt beyond a reasonable doubt.”  State v. Bencivenga, 137 Wash.2d 703, 711, 974 P.2d 832 (1999) (citing State v. Gosby, 85 Wash.2d 758, 767, 539 P.2d 680 (1975)).

B. Possession

¶ 35 The State charged Stockmyer with knowingly possessing or controlling seven firearms on January 14, 2005, after previously having been convicted of a serious felony.   Stockmyer argues that the evidence was insufficient to prove beyond a reasonable doubt that he was in possession of the four firearms found in his safe on January 14, as charged in Counts VI-IX.14 We disagree.

¶ 36 Possession may be actual or constructive.  State v. Echeverria, 85 Wash.App. 777, 783, 934 P.2d 1214 (1997).  “Actual possession means that the goods are in the personal custody[;] ․ whereas, constructive possession means that the goods are not in actual, physical possession, but that the person charged with possession has dominion and control over the goods.”  State v. Callahan, 77 Wash.2d 27, 29, 459 P.2d 400 (1969).

¶ 37 The concept of “dominion and control” has been heavily litigated in drug cases.   The court must look at the totality of the situation to determine if there is substantial evidence to establish that the defendant had dominion and control of the drugs in question.  State v. Paine, 69 Wash.App. 873, 878, 850 P.2d 1369, review denied, 122 Wash.2d 1024, 866 P.2d 39 (1993).   “Dominion and control over the premises in which the police discover drugs is but one factor in determining whether the defendant had dominion and control ․ of the drugs․ Whether [the defendant] possessed the [drugs] is a question of fact for the jury.”  State v. Roberts, 80 Wash.App. 342, 353-54, 908 P.2d 892 (1996).  “No single factor is dispositive.”  State v. Alvarez, 105 Wash.App. 215, 221, 19 P.3d 485 (2001).   We see no distinction between “dominion and control” in the context of drug possession and gun possession cases.   Therefore, we apply the drug possession cases here.

¶ 38 Because Stockmyer did not have the guns in his personal custody, the issue turns on whether he had dominion and control over them, or constructive possession, by virtue of his leaving them in a remote safe, the combination to which only he knew. It is uncontroverted that Stockmyer owned and retained exclusive control over the contents of the safe.   He admitted on the witness stand that (1) that he owned the firearms in the safe at the time, even though he intended to give one to his son;  (2) he knew it was illegal for him, a felon, to own or to possess firearms;  (3) he kept the firearms in the safe at a different location in case he was arrested;  (4) he had sole knowledge of the combination;  and (5) he did not tell anyone else the combination.

¶ 39 Because we look at the totality of the circumstances, it is not dispositive that Stockmyer did not have immediate access to the guns in the safe located in his friends' garage in Puyallup, access to which he had arranged with these friends.15  See Paine, 69 Wash.App. at 878, 850 P.2d 1369;  see also Roberts, 80 Wash.App. at 353-54, 908 P.2d 892.   Looking at the evidence in the light most favorable to the State, any rational trier of fact could find beyond a reasonable doubt that Stockmyer had dominion and control over the contents of the safe, including the four guns.   Accordingly, we hold that there was sufficient evidence for the jury to convict Stockmyer of unlawful possession of a firearm in counts VI-IX.

¶ 40 We affirm Stockmyer's convictions and remand to the trial court to correct Stockmyer's judgment and sentencing, treating Counts VI-IX as the “same criminal conduct” for purposes of calculating his offender score.

FOOTNOTES

1.   “SWAT” stands for Special Weapons and Tactics.   SWAT teams consist of “a police or military unit specially trained and equipped to handle unusually hazardous situations or missions.”   Webster's Third New International Dictionary 134a (2002).

2.   Stockmyer concedes that the warrant was based on valid probable cause and that the officers properly knocked and identified themselves before forcibly entering his home.

3.   Stockmyer was standing in the foyer against a wall by the kitchen next to the grow room.

4.   Stockmyer remained in police custody at the time of this search.

5.   Stockmyer was convicted of manslaughter in 1994.

6.   The trial court checked the box on the Judgment and Sentencing form indicating, “None of the current offenses constitute same criminal conduct.”   Clerk's Papers at 175.

7.   Thus, Stockmyer's total sentence was 396 months.

8.   Without further explanation, Stockmyer simply asserted it “cannot be disputed” that counts III-V “were committed at the same time and place.”   Br. Appellant at 13.   The State responded that Stockmyer “slept with the .380 pistol (in his bedroom), the 30-06 rifle was stationed nearby the front door, and the .44 magnum handgun was in the kitchen.   Thus, these offenses were not committed at the same time and place.”   Br. Respondent at 4-5.

9.   The State does not argue that Stockmyer's possession of the seven guns involved separate criminal intent or separate victims, or that he committed the crimes at separate times.   Br. Respondent 4-5.   We further note that the victim in a gun possession case is the public at large.   State v. Haddock, 141 Wash.2d 103, 110-11, 3 P.3d 733 (2000).

10.   After shooting at the police, Stockmyer deposited this gun on the kitchen counter, where the police seized it.

11.   Although Stockmyer properly objected within 10 days to the March 21 continuance, he failed to object to the April 11 continuance.   Thus, he waived his right to object to the April 11 continuance.A party loses the right to object that the trial commenced outside the 60-day time limit if within 10 days of setting the trial date he does not move the court to set a new trial date within the applicable time limits.CrR 3.3(d)(3).Moreover, an alleged violation of CrR 3.3 is not of constitutional magnitude, enabling Stockmyer to raise the issue for the first time on appeal.  State v. Campbell, 103 Wash.2d 1, 15, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985).

12.   On the fourth day of the five-day trial, the State moved to amend Count I of the information, to substitute first degree assault in place of acting with extreme indifference to human life, the previously alleged alternative to intentional attempted first degree murder.   Stockmyer did not object.   The trial court allowed the State's amendment, arraigned Stockmyer on the amended information, and, with Stockmyer's assent, entered a plea of not guilty on Stockmyer's behalf.   When Stockmyer later attempted to object to the amendment, the trial court told him he was too late because he had already been arraigned on the charge and he should have objected when the State requested to amend the information.   Stockmyer's case went to jury the following day.

13.   Stockmyer does not dispute the underlying fact, to which he stipulated at trial, that he had been previously convicted of a serious felony.

14.   The to-convict instructions included only possession, rather than possession or control.   The definition of “possession,” however, includes the concept of control.

15.   Stockmyer testified that (1) he could not get to the safe if his friends were at work;  (2) but if he called the friends, or if they were home, he could access the garage;  (3) he could also contact the friends, give them the combination, and they could remove from the safe any items he requested;  (4) to date, he had not given his friends the combination;  and (5) in response to a question about whether he could have made arrangements to get the key to the friends' garage, he admitted, “I could do a lot of things.”   Report of Proceedings at 551.As Division I of our court noted in State v. Howell, 119 Wash.App. 644, 650, 79 P.3d 451 (2003),RCW 9.41.040(1)(a) provides that [unlawful possession of firearms] is committed when “[a] person ․ owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted ․ of any serious offense as defined in this chapter.”   There is no requirement that the firearm be immediately accessible.This opinion further clarifies that the “immediately accessible” firearm requirement applies to deadly weapon enhancements, not to illegal firearm possession charges.  Id. at 649, 79 P.3d 451.

HUNT, J.