STATE v. MALONE, 27410-8-II (Wash.App. 11-8-2002)

STATE OF WASHINGTON, Respondent, v. JO ANN MALONE, a/k/a JO ANN LYONS, Appellant.

No. 27410-8-IIThe Court of Appeals of Washington, Division Two.
Filed: November 8, 2002 UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of Grays Harbor County, No. 001004292, Hon. F. M. McCauley, April 19, 2001, Judgment or order under review.

Counsel for Appellant(s), Peter B. Tiller, Tiller Wheeler Tiller, Rock Pine, P.O. Box 58, Centralia, WA 98531-9013.

Counsel for Respondent(s), Gerald R. Fuller, Grays Harbor Co Deputy Pros Atty, Rm 102, 102 W Broadway, Montesano, WA 98563.

MORGAN, J.

Jo Ann Malone[1] was convicted of two counts of delivery of methamphetamine to a minor and one count of maintaining a drug house. We affirm.

In September 2000, S.S., age 15, and K.C., age 17, were friends of A.M., Jo Ann Malone’s teenage daughter. About 1 p.m. on September 27, 2000, S.S. and K.C., accompanied by their mothers, went to the Montesano Police Department. Each girl went alone to a separate room, and each gave a written statement that she swore to under penalty of perjury. In those statements, each girl indicated that on several occasions over the summer, in Malone’s home with Malone present, she had smoked marijuana, snorted methamphetamine, and been injected by Malone with methamphetamine. Officer Robert Wilson, the lead investigator, observed that each girl had track marks on her arms. Based on his training, he thought that some of the marks were less than 72 hours old, while some were older. He asked each girl to take a urinalysis test at the local hospital, and each girl agreed. The tests came back positive for amphetamine, methamphetamine, and marijuana. Wilson also checked local law enforcement records on each girl. He found that neither had any convictions. K.C. had been referred to the juvenile court prosecutor for taking a motor vehicle without permission and being a minor in possession of alcohol, all on August 17, 2000. S.S. had been arrested on January 4, 2000 for trespass in the second degree and being a minor in possession of tobacco. Neither had provided information to the police before. That evening, Wilson prepared an affidavit for a search warrant for Malone’s home. Rather than revealing the identities of S.S. and K.C., he referred to them as CI-00-002 and CI-00-003, respectively. He related the foregoing facts, and at 10:35 p.m., a magistrate issued the requested warrant.

At about midnight the same night, Wilson and three other officers served the warrant. They found and seized marijuana, methamphetamine, syringes, and other drug paraphernalia. Malone was home, and they arrested her at the end of the search. The State ultimately charged Malone with possession of methamphetamine (Count I), delivery of methamphetamine to S.S, a minor under 18 (Count II), delivery of methamphetamine to K.C., a minor under 18 (Count III), and maintaining a drug house (Count IV).[2] On December 22, 2000, Malone moved to suppress the evidence seized during the search of her house. She argued that the warrant was not supported by probable cause and that the warrant was not properly executed. On January 12, 2001, the trial court denied the motion. Trial began on January 30, 2001 and concluded on February 2, 2001. On February 2, 2001, the jury found Malone not guilty of Count I, but guilty of Counts II-IV. The jury also found that Counts II and III had been committed within 1,000 feet of an elementary school.[3] On April 19, 2001, the trial court imposed a drug offender sentencing alternative (DOSA) sentence using concurrent standard ranges of 69 months on Count II, 69 months on Count III, and 12-plus months on Count IV. Malone now appeals. She argues that the search was not supported by probable cause, that the prosecutor engaged in misconduct during closing argument, and that the trial court imposed an unlawful sentence.

I.
The first issue is whether the warrant was supported by probable cause. Malone argues in several different ways that the affidavit for the warrant did not contain facts sufficient for the magistrate to find that the girls were truthful; that the girls had personal knowledge; or that the police independently corroborated the girls’ personal knowledge. The State responds that the informants were “citizen informants”; that their statements corroborate each other; that much of what they said ran contrary to their penal interests; and that they were relating facts they had personally observed. “A search warrant may issue only upon a determination of probable cause.”[4] An application for a warrant must state the underlying facts and circumstances on which it is based in order to facilitate a detached and independent evaluation of the evidence by the issuing magistrate.[5] Probable cause exists if the affidavit in support of the warrant sets forth facts and circumstances sufficient to show that the defendant is probably involved in criminal activity and that evidence of the crime can be found at the place to be searched.[6]
When probable cause is based on hearsay from an informant, the so-called Aguilar-Spinelli[7] test comes into play. It has a “veracity” prong and a “basis of knowledge” prong, each of which the affidavit for the warrant must satisfy. The veracity prong may be satisfied by the informant’s “track record,” if any;[8] by showing that the informant was acting against his or her penal interest;[9] or in proper circumstances by independent police corroboration.[10] The basis of knowledge prong may be satisfied by the informant’s statement “that he personally has seen the facts asserted and is passing on firsthand information.”[11] The basis of knowledge prong is easily met here. Each girl asserted that she had seen the events described in her statement, and nothing more is required for that prong.

The veracity prong is also easily met here. Each girl was speaking about her own unlawful drug activity, and thus against her own penal interest.[12] The hospital tested each girl and found that she had recently used drugs of the kind she was describing. The police saw track marks on each girl’s arms. Each girl was a teenager accompanied by her mother and not known to be involved in the criminal subculture (except for the present events and minor matters that were fully disclosed to the magistrate). Finding the remainder of Malone’s suppression arguments to be meritless,[13] we conclude that the magistrate lawfully found that each girl had personal knowledge and that each girl was being truthful. Accordingly, we also conclude that the magistrate lawfully found probable cause to search Malone’s house.

II.
Malone alleges two instances of prosecutorial misconduct during closing arguments. She says that the State improperly shifted the burden of proof by arguing that A.M.’s participation in a drug rehabilitation program had not been documented. She also says that the State “improperly implied guilty knowledge by [Malone] on the basis of her whispered, unheard communications to her counsel during the trial.”[14] In neither instance did she object. Assuming without finding misconduct, neither instance was serious enough to warrant reversal.

III.
Malone raises two sentencing claims. The first is that Counts II and III, each of which charged delivery, were based on the same criminal conduct.

The second is “whether the school enhancement is counted in a standard range sentence before initial calculation of the midpoint of the sentence, or whether the enhancement is applied only in the event that the offender is found to have wilfully violated the conditions of her or his DOSA convictions.”[15] The first claim fails. To constitute the same criminal conduct, two or more crimes must require the same intent, be committed at the same time and place, and involve the same victim.[16]
The “to-convict” instruction on Count II required the jury to find that Malone had delivered methamphetamine to S.S.[17] The “to-convict” instruction on Count III required the jury to find that Malone had delivered methamphetamine to K.C.[18] Each count involved a different victims, and neither was based on the same criminal conduct as the other.

The second claim also fails. Under the DOSA statute, formerly RCW 9.94A.120(6), presently RCW 9.94A.660, a trial court may sometimes “waive imposition of a sentence within the standard range and impose a sentence that must include a period of total confinement in a state facility for one-half of the midpoint of the standard range.” Under the school zone enhancement statute, former RCW 9.94A.310(6), presently RCW 9.94A.510(6), “an additional twenty-four months shall be added to the presumptive sentence for any ranked offense involving a violation of chapter 69.50 RCW if the offense was also a violation of RCW 69.50.435.” [19] Until July 1, 2001, the term “presumptive sentence” meant the standard range as computed according to the grid in RCW 9.94A.310.[20]
Considering each of these statutes according to its plain language, and in pari materia with the others, we conclude that a trial court must add an otherwise applicable school zone enhancement to the standard range before calculating the midpoint of that range, and thus that the trial court here did not err.

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

HOUGHTON and HUNT, JJ., concur.

[1] Having been recently divorced, Malone now uses the name Jo Ann Lyons.
[2] Clerk’s Papers (CP) at 7-9
[3] Malone’s house was next door to the school.
[4] State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999); State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995).
[5] Thein, 138 Wn.2d at 140; State v. Smith, 93 Wn.2d 329, 352, 610 P.2d 869, cert. denied, 449 U.S. 873 (1980); State v. Helmka, 86 Wn.2d 91, 92-93, 542 P.2d 115 (1975).
[6] Thein, 138 Wn.2d at 140; Cole, 128 Wn.2d at 286; State v. Dalton, 73 Wn. App. 132, 136, 868 P.2d 873 (1994).
[7] Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637
(1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723
(1964).
[8] State v. Jackson, 102 Wn.2d 432, 437, 688 P.2d 136 (1984).
[9] United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723
(1971) (methods of showing credibility of first time informer); Jackson, 102 Wn.2d at 437.
[10] U.S. v. Weaver, 99 F.3d 1372, 1377 (6th Cir. 1996) (citing United States v. Sonagere, 30 F.3d 51, 53 (6th Cir.), cert. denied, 513 U.S. 1009, 115 S.Ct. 531, 130 L.Ed.2d 434 (1994) (citing Illinois v. Gates, 462 U.S. 213, 234, 244, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983))).
[11] Jackson, 102 Wn.2d at 437.
[12] Harris, 403 U.S. at 583 (“admissions of crime . . . carry their own indicia of credibility — sufficient at least to support a finding of probable cause to search”); see also Jackson, 102 Wn.2d at 437.
[13] Finding no difference between “sincere” and “credible,” we reject Malone’s argument that the officer improperly said he found the girls to be “sincere.” Finding that the girls’ prior contacts with the police were factors to be considered by the magistrate, but not factors that precluded the magistrate from making a determination of probable cause, we reject Malone’s argument that the girls had a “number of possible motivations for providing false information to the police.” Br. of Appellant at 29.

Finally, we reject Malone’s argument that the trial court erred by not entering findings of fact on a written affidavit and search warrant. CrR 3.6(b) provides: “If an evidentiary hearing is conducted, at its conclusion the court shall enter written findings of fact and conclusions of law.” (Emphasis added.) Thus, the court must enter findings when it takes evidence (e.g., when the court hears witnesses to a warrantless search or the knock-and-announce portion of any search), but not when it merely determines the legal sufficiency of a written affidavit and search warrant. Cf. State v. Estorga, 60 Wn. App. 298, 304 n. 3, 803 P.2d 813
(1991).

[14] Br. of Appellant at 40.
[15] Br. of Appellant at 48.
[16] RCW 9.94A.400(1)(a); State v. Channon, 105 Wn. App. 869, 876-77, 20 P.3d 476, review denied, 144 Wn.2d 1017 (2001).
[17] CP at 13.
[18] CP at 14.
[19] RCW 69.50.435 prescribes additional punishment for a drug offense committed within 1000 feet of a school ground. At trial in the case, Malone herself testified that her house was about 79 feet from a school ground. Report of Proceedings (RP) at 486.
[20] See RCW 9.94A.310(1), (6) (“numbers in the second and third rows” of grid, commonly referred to as the standard range, “represent presumptive sentencing ranges.”). Effective July 1, 2001, the legislature substituted “standard sentencing range” for “presumptive sentence range.” See current RCW 9.94A.510(1), (6). See also former RCW 9.94A.030(35), currently RCW 9.94A.030(40) (a standard sentence range is “the sentencing court’s discretionary range in imposing a non-appealable sentence”).