No. 28355-7-II.The Court of Appeals of Washington, Division Two.
Filed: December 20, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Cowlitz County Docket No: 95-1-00321-1 Judgment or order under review Date filed: 08/08/1995
Counsel for Appellant(s), Thomas A. Ladouceur, Attorney at Law, 100 E 13th St. Ste 113, Vancouver, WA 98660-3230.
Counsel for Respondent(s), Megan Ellavsky, Hall of Justice, 312 S.W. 1st Ave, Kelso, WA 98626-1739.
CHRISTINE JAN QUINN-BRINTNALL, A.C.J.
James Waddington, II, appeals his conviction and sentence of one count of unlawful possession of cocaine and one count of unlawful possession of methamphetamine.[1] Waddington contends that the trial court erred when it (1) failed to consider the two possession convictions as the same criminal conduct for sentencing purposes, and (2) denied his suppression motion. The State concedes sentencing error. Finding no other error, we affirm the conviction and remand to the trial court for correction of the judgment and sentence to reflect the proper offender score.
FACTS[2]
On June 6, 1995, several members of the Kelso-Wahkiakum Narcotics Task Force conducted a knock and talk at a Longview, Washington residence rented by Thomas Bonneau and his wife. When Bonneau opened the door, the officers informed him that they were investigating a drug tip and asked him whether he was the resident and whether they could come inside. Bonneau told the officers that he and his wife lived there, gave the officers permission to enter the residence, and subsequently signed a consent to search form. He also told the officers that although only he and his wife lived there and paid rent, other people were “in and out all the time.” Report of Proceedings (RP) (8/7/95) at 6.
While the officers began to search the residence, various people walked in and out of the room, some of them leaving the residence. At some point after the officers began to search, Waddington came down the stairs, walked through the living room, took a garbage can outside, and then returned upstairs.
A few minutes later, Waddington returned to the living room where Officer Kevin Tate of the Kelso Police Department identified himself, told Waddington that they were investigating possible drug activity, and asked him whether he lived in the residence and whether he had any identification. Waddington told Tate that he lived elsewhere but that he had been staying at the residence.
Waddington also told Tate that his identification was in his room, and the two went upstairs to look at it. Waddington gave Tate his social security card; Tate handed the card back to Waddington and wrote his name on a field interview card. Waddington later testified that he did not feel free to leave after he brought Tate upstairs.
Tate then asked Waddington if he could search him; Waddington refused.[3] When they returned downstairs, Tate ran a warrant check on Waddington, discovered that there was an outstanding warrant in his name, and arrested and searched him. During the search of Waddington’s person, Tate discovered what later proved to be methamphetamine and cocaine in his pockets.
The State charged Waddington with one count of possession of cocaine and one count of possession of methamphetamine. Prior to trial, Waddington moved to suppress the drug evidence. In his motion, he argued that (1) Tate lacked the authority to act as a police officer in Longview; (2) the task force officers’ failure to obtain the consent of all of the residents nullified Bonneau’s consent; and (3) Tate had no basis to ask Waddington for identification. The trial court denied the motion and, following a bench trial on stipulated facts, found Waddington guilty as charged. In computing Waddington’s offender score, the trial court scored each of the current convictions as a separate offense resulting in an offender score of two.[4] Waddington appeals both his conviction and his sentence.
ANALYSIS
I. Motion to Suppress
Relying on State v. Leach, 113 Wn.2d 735, 782 P.2d 1035 (1989), Waddington asserts that the trial court erred when it denied his motion to suppress. Specifically, he contends that “[t]he court erred in failing to find that the initial consent to search was invalid because the police failed to obtain [his] consent to search.”[5] Br. of Appellant at 9. He also appears to contend that the trial court’s conclusion that he did not share common authority over the premises was inconsistent with finding of fact 5 that states that he told Tate that his identification was in “his room,” Clerk’s Papers (CP) at 33, and inconsistent with his testimony indicating that he had been staying at the residence for approximately a month and a half.
First, the record supports the conclusion that Waddington did not share common authority over the premises with the Bonneaus. Bonneau told the officers that although others were in and out of the residence, he and his wife were the only ones who lived there and paid rent. Further, Waddington himself told the officers that, although he had been staying with the Bonneaus, he actually lived at a different address. At most, the record shows that Waddington was a long-term guest of the Bonneaus.
Second, because Waddington was only a guest, the officers were not required to obtain his consent before entering the common areas of the residence. State v. Thang, 145 Wn.2d 630, 638-39, 41 P.3d 1159 (2002) (“consent to search by a host is always effective against a guest within the common areas of the premises”). Further, although the Leach Court held that “the police must obtain the consent of a cohabitant who is present and able to object in order to effect a valid warrantless search[,]” Waddington’s reliance on Leach is misplaced because that case involved circumstances where the defendant had at least equal and perhaps even superior authority over the premises. 113 Wn.2d at 736.
Because the record supports the conclusion that Waddington did not share common authority with Bonneau and, thus, the officers did not have to obtain Waddington’s consent to enter the common areas of the residence, this assignment of error fails.
II. Offender Score
Waddington argues that the trial court improperly included his current offenses in his offender score. He contends that the two simultaneous acts of simple possession constituted same criminal conduct and should not have been counted as other prior offenses under former RCW 9.94A.400(1)(a) (1990).[6] The State concedes this error. We agree.
Under former RCW 9.94A.400(1)(a), the trial court was to determine the sentence range of each current offense by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score. But if the sentencing court determined that all or some of the current offenses constituted the same criminal conduct, then those crimes counted only as one crime for sentencing purposes. Former RCW 9.94A.400(1)(a). The Legislature defined same criminal conduct as two or more crimes that (1) require the same criminal intent, (2) are committed at the same time and place, and (3) involve the same victim. Former RCW 9.94A.400(1)(a).
In State v. Vike, 125 Wn.2d 407, 885 P.2d 824 (1994), our Supreme Court held that concurrent counts of simple possession of two or more controlled substances constitute the same criminal conduct for sentencing purposes. 125 Wn.2d at 409. As in Vike, it is undisputed that Waddington committed the two current offenses at the same time and place and that both offenses “involved the same victim (the public at large).”125 Wn.2d at 410. And the Vike Court determined that the intent involved in each offense was identical regardless of the different nature of each controlled substance because there is no intent requirement in a simple possession charge. 125 Wn.2d at 412. Thus, the two acts of simultaneous simple possession constitute same criminal conduct under former RCW 9.94A.400(1)(a).
Accordingly, we accept the State’s concession and remand for correction of the judgment and sentence to reflect the proper offender score.[7]
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.
WE CONCUR: MORGAN, J., SEINFELD, J.