No. 55316-0-IThe Court of Appeals of Washington, Division One.
Filed: September 26, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-2-32731-1. Judgment or order under review. Date filed: 11/05/2004. Judge signing: Hon. Charles W Mertel.
Counsel for Appellant(s), Lonnie G. Davis, Wa Coalition of Citizens w Disabilities, 4649 Sunnyside Ave N Ste 100, Seattle, WA 98103-6952.
Counsel for Respondent(s), West Harrison Campbell, Hoffman Hart Wagner, PO Box 1641, Yakima, WA 98907-1641.
Janet M Schroer, Hoffman Hart Wagner, 1000 SW Broadway, 20th Flr., Portland, OR 97205.
Cecil A. Reniche-Smith, Hoffman, Hart Wagner, 1000 SW Broadway, Ste 2000, Portland, OR 97205-3072.
Amicus Curiae on behalf of Washington Protection Advocacy System, Julie Lynn Wilchins, Washington Protection Advocacy System, 315 5th Ave S Ste 850, Seattle, WA 98104-2691.
PER CURIAM.
David Turnpaugh challenges the judgment and sentence entered following his conviction for residential burglary and possession of precursor substances with the intent to manufacture methamphetamine. We conclude that manufacturing methamphetamine is a `crime against a person or property’ and may therefore serve as a predicate offense for burglary. We also conclude that the evidence was sufficient to support Turnpaugh’s burglary conviction. But we agree that the sentencing court erred in calculating the offender score for the burglary conviction. Accordingly, we affirm Turnpaugh’s convictions and remand for resentencing on the burglary charge.
FACTS
David Turnpaugh was charged with one count of residential burglary and one count of possession of precursor substances with the intent to manufacture methamphetamine. RCW 9A.52.025(1); 69.50.440(1). At trial, David Anton testified that he had lived for several years in a trailer his father owned near Oak Harbor. In early November 2003, Anton moved to Coupeville and began removing his belongings and cleaning up the trailer. One day while Anton was packing, two men named Jim and Bob stopped by to ask about some of Anton’s belongings. Anton had apparently seen the men before, but did not know their last names and described them as `a little shady.’
On November 12, 2003, Anton stopped by the trailer to finish cleaning up. As he entered, he was stuck in the hand by the hypodermic needle of a syringe in a garbage bag hanging near the door. The garbage bag did not belong to Anton. Anton noticed other items in the trailer that he had not left there, including tubes, propane bottles, and a torch. There were also several burn marks on the floor that had not been there earlier. Anton then called the police.
After a brief inspection, investigating officers from the Island County Sheriff’s Office suspected that the trailer was being used for manufacturing methamphetamine. Because of the presence of potentially hazardous materials, the officers called in a SWAT team from the Washington State Patrol Crime Laboratory to continue the investigation. The WSP team removed a variety of materials from the trailer associated with the manufacture of methamphetamine, including glass containers, propane tanks with modified valves, glass jars, toluene, a portable coffee grinder, and denatured alcohol. A briefcase found in the trailer contained a variety of documents belonging to Turnpaugh. Anton testified that he did not know Turnpaugh and had not given him permission to be in the trailer.
In a separate incident, also on November 12, 2003, Oak Harbor Police Officer Mel Lolmaugh stopped a 1977 Subaru for a title transfer violation. Turnpaugh, who was driving, gave the officer a false name. After learning Turnpaugh’s identity, Officer Lolmaugh arrested him on outstanding warrants. In a search of the car incident to the arrest, officers found a backpack behind the driver’s seat that contained toluene, a portable coffee grinder identical to the coffee grinder found in the trailer, coffee filters, plastic funnels, an acetone `Kleen’ strip, and plastic soda bottles containing a liquid methamphetamine mixture. Additional items used for manufacturing methamphetamine, including blister packs of pseudoephedrine and glass pie dishes, were recovered from the Subaru. Dr. David Northrup, a WSP chemist, testified that the materials found in the trailer and the Subaru were all consistent with the `metallic lithium ammonia method’ of manufacturing methamphetamine.
Turnpaugh testified that he first met Anton in about July 2003, when Anton, Jim Fronk, and `New York’ Bob visited Turnpaugh’s girlfriend, Rochelle. Anton and Fronk wanted to borrow Rochelle’s microwave to start a methamphetamine manufacturing operation at Anton’s trailer. Turnpaugh declined an invitation to join the operation, but spent a few hours smoking methamphetamine with Anton, while Rochelle and Jim Fronk injected methamphetamine. At some point, Turnpaugh began exchanging information on `criminal backgrounds’ with Fronk and showed Fronk some of his `paperwork,’ including court documents, photographs, and documents related to Turnpaugh’s recent automobile accident.
Later that same day, Turnpaugh borrowed Fronk’s pickup truck to run some errands. Before starting the errands, Turnpaugh dropped Fronk off at Anton’s trailer and watched as he carried suitcases and duffle bags inside. Turnpaugh later gave Fronk’s truck to a third person to return. Turnpaugh then ran some errands with another friend. When Turnpaugh drove by the trailer later that same day, he did not see the truck and stopped to talk to Fronk. While standing at the door, Turnpaugh saw Fronk pull something off the stove that erupted into flames. Fronk then left with Turnpaugh and another acquaintance.
Turnpaugh maintained that the backpack found in the Subaru belonged to the passenger, Steven Valdez, and that the other items in the car belonged to Steven Stancil. He explained that he had arranged to deliver Stancil’s personal belongings to Stancil and that Valdez was providing him with a ride. But because Valdez could not drive the stick shift that was in the borrowed Subaru, Turnpaugh had agreed to drive. Turnpaugh denied ever entering Anton’s trailer or participating in a manufacturing operation. The jury found Turnpaugh guilty as charged. The sentencing court found that Turnpaugh had committed the current offenses while on community placement and added one point to his offender score, for a total of four on each charge. See RCW 9.94A.525(17). The court then imposed concurrent standard-range terms of 100 months for the drug charge and 20 months for the residential burglary charge.
DECISION
Turnpaugh first contends that his residential burglary conviction must be dismissed because the State failed to establish that he intended to commit `a crime against a person or property’ inside Anton’s trailer. In order to convict Turnpaugh of residential burglary, the State was required to prove that he entered or remained unlawfully in a dwelling with the intent to commit a crime `against a person or property therein.’ RCW 9A.52.025(1). Under Washington law, the specific crime intended is not an element of burglary; rather, the State need prove only `the intent to commit any crime against a person or property inside the burglarized premises.’ State v. Bergeron, 105 Wn.2d 1, 4, 711 P.2d 1000 (1985) (emphasis added).
The crux of Turnpaugh’s argument is that possession of precursor substances with the intent to manufacture methamphetamine cannot serve as the predicate crime for residential burglary. He maintains that because the offense is more properly viewed as `a crime against society,’ it does not constitute a crime against `a person or property’ for purposes of residential burglary. But Turnpaugh has cited no relevant authority to support this proposition.
Contrary to Turnpaugh’s suggestion, the State did not allege or argue that his intent in entering Anton’s trailer was limited to possession of precursor substances with the intent to manufacture methamphetamine. The activities in Anton’s trailer involved not only the possession of precursor substances, but also the manufacture of methamphetamine. During closing argument, the deputy prosecutor pointed to the contamination and damage in the trailer resulting from the manufacture of methamphetamine as evidence of `a crime against person or property’ for purposes of residential burglary. Report of Proceedings, at 341.
What constitutes a crime against `a person or property therein’ for purposes of burglary is not statutorily defined. Courts have applied a `common sense’ analysis, broadly construing the requirement in light of the purposes underlying the burglary statutes. See State v. Snedden, 149 Wn.2d 914, 919, 73 P.3d 995
(indecent exposure constitutes `crime against a person’ for purposes of second degree burglary); State v. Stinton, 121 Wn. App. 569, 576, 89 P.3d 717 (2004) (violation of a provision of a protection order can serve as predicate crime for residential burglary). The `person or property’ element reflects the purpose of the burglary statutes `to prohibit and punish conduct creating a risk of or actual harm to persons and property within a building.’ State v. Wentz, 149 Wn.2d 342, 356, 68 P.3d 282 (2003) (Madsen, J., concurring).
In this case, the evidence established that the manufacture of methamphetamine is inherently dangerous, involving a variety of toxic chemicals and hazardous processes that can easily render the premises uninhabitable. Several of the State’s witnesses testified to the elaborate and specialized procedures that were required to remove the materials from the trailer and to decontaminate the premises. Although he denied entering the trailer, Turnpaugh testified that he watched Jim Fronk start a fire inside. Viewed in a common-sense fashion, the manufacture of methamphetamine creates a significant risk of harm to both persons and property and may therefore constitute the predicate crime for burglary. Because manufacturing methamphetamine is a crime against persons or property, we do not address Turnpaugh’s claim that possession of precursor substances with the intent to manufacture methamphetamine cannot constitute the predicate crime for burglary.
Turnpaugh next contends the evidence was insufficient to prove that he committed a burglary. He argues that there were no fingerprints or other direct evidence that he had even entered Anton’s trailer and that the personal documents found inside in a briefcase were insufficient to establish an entry because the briefcase also contained documents belonging to two other individuals. But Turnpaugh’s arguments ignore several significant pieces of evidence supporting his conviction.
On the day that Anton discovered the methamphetamine lab in the trailer, police officers arrested Turnpaugh in a car carrying a variety of materials used in the production of methamphetamine. Among the items recovered from the car was a portable coffee grinder with white residue that was identical to a coffee grinder found in the trailer. A WSP chemist testified that all of the materials found in the car and the materials found in the trailer were consistent with the same `lithium metal ammonia method’ of manufacturing methamphetamine. Turnpaugh also acknowledged that he had been to the trailer on several occasions and that he knew what was going on inside, even though he claimed he had never entered.
The documents found in the briefcase included personal letters, photographs, court documents, and documents related to an automobile accident, all documents that Turnpaugh described as very important. In his testimony, Turnpaugh implied that these documents might have been taken on the day that he was comparing `criminal backgrounds’ with Fronk, which occurred several months before his arrest. But this suggestion was undermined by the fact that the documents included mail that Turnpaugh had received less than a week before his arrest. Given the number and significance of the documents belonging to Turnpaugh, the presence of one court document belonging to Fronk and a refrigerator repair manual with the name Jacob Jungwirth written on it does not undermine the inference that Turnpaugh himself left the documents in the trailer. Viewed in the light most favorable to the State, the foregoing circumstances support an inference that Turnpaugh entered the trailer.
Turnpaugh next contends that his right to a unanimous jury verdict was violated because the State failed to prove both the `enters unlawfully’ and `remains unlawfully’ means of committing burglary and the jury was not given a unanimity instruction. See State v. Ortega-Martinez, 124 Wn.2d 702, 708, 881 P.2d 231
(1994). Turnpaugh’s argument rests on State v. Klimes, 117 Wn. App. 758, 73 P.3d 416 (2003), in which the court indicated that `enters unlawfully’ and `remains unlawfully’ are alternative means of committing burglary that are repugnant to one another and that the `remains unlawfully’ means applies only if the initial entry was lawful. See Klimes, 117 Wn. App. at 765-68
(citing State v. Collins, 110 Wn.2d 253, 751 P.2d 837 (1988), and State v. Thomson, 71 Wn. App. 634, 861 P.2d 492 (1993)). But we recently retreated from this part of the Klimes analysis and concluded that the `remains unlawfully’ means of committing burglary may apply even in situations where the initial entry is unlawful. State v. Allen, 127 Wn. App. 125, 133, 110 P.3d 849
(2005).
Anton testified that he did not know Turnpaugh and that he had not given Turnpaugh permission to enter the trailer. Based on the circumstances set forth above, the evidence was sufficient to establish that Turnpaugh entered and remained unlawfully in the trailer. Because the evidence was sufficient to support both alternative means, Turnpaugh’s right to a unanimous jury was not violated.
Finally, Turnpaugh contends that the sentencing court violated his Sixth Amendment and due process rights when it added one point to his offender scores because he committed the current offenses while on community placement. Based on the additional point, the court calculated Turnpaugh’s offender score as 4 for each offense. See RCW 9.94A.525(17). Relying on this court’s recent decision in State v. Jones, 126 Wn. App. 136, 107 P.3d 755
(2005), pet. for review filed, Turnpaugh argues that his sentence was based on improper judicial factfinding in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We agree in part.
In Jones, we held that whether the defendant was on community placement at the time of the current offense `is a factual determination subject to the Sixth Amendment requirement that a jury make the determination beyond a reasonable doubt.’ Jones, 126 Wn. App. at 144. Because the community placement determination increased not only the defendant’s offender score, but the standard range as well, the judicial finding had the effect of increasing the statutory maximum sentence, in violation of Blakely. Jones, 126 Wn. App. at 140.
In this case, unlike Jones, the sentencing judge’s community placement finding did not increase the standard range for Turnpaugh’s drug conviction. Under RCW 9.94A.517, a special sentencing grid for felony drug offenses, the standard range for possession of precursor substances with the intent to manufacture methamphetamine is identical for offender scores of 3, 4 and 5. Because Turnpaugh’s offender score — including the community placement point — was 4, the sentencing judge’s finding did not increase the standard range or the statutory maximum sentence. Consequently, Jones does not apply, and Turnpaugh’s sentence for the drug conviction did not violate Blakely.
The State concedes, however, that the addition of a community placement point to the offender score for Turnpaugh’s burglary conviction increased the statutory maximum sentence and was therefore improper under Jones and Blakely. But the State asserts that the additional point was `immaterial’ because the concurrent drug sentence was the longer of Turnpaugh’s sentences. The State cites no authority in support of this proposition, which is nothing more than a claim that the error was harmless. Under Washington law, a Blakely violation is not harmless, and Turnpaugh is entitled to be resentenced on the burglary charge. See State v. Hughes, 154 Wn.2d 118, 156, 110 P.3d 192 (2005). We decline the State’s invitation to reconsider the Jones decision.
Turnpaugh’s convictions are affirmed; we remand only for resentencing on the burglary charge.
COLEMAN, J., COX, C.J., and APPELWICK, A.C.J. concur.