State of Washington v. Rodney Clifford Menard , 197 Wash. App. 901 ( 2017 )

FILED
FEBRUARY 23, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33944-1-111
Appellant, )
)
V. )
)
RODNEY CLIFFORD MENARD, ) PUBLISHED OPINION
)
Respondent. )
FEARING, C.J. -In response to respondent Rodney Menard's pretrial Knapstad
motion, the trial court dismissed the charge of maintaining a drug dwelling. State v.
Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986). The State appeals. We reverse and
remand for further proceedings.
FACTS
We outline the facts in a radiance most favorable to the State. Respondent Rodney
Menard owns and lives at 810 N. 26th Avenue, in Yakima, a home where he has resided
since the age of five. Menard rented rooms to five individuals, occasionally received
methamphetamine from tenants as rent payment, consumed twenty dollars' worth of
methamphetamine per day, and possessed drug pipes. Menard knew his tenants imbibed
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methamphetamine, but denied knowledge of the use of his home for methamphetamine
sales.
The Drug Enforcement Agency (DEA) received numerous complaints regarding
recurrent drug traffic to and from 810 N. 26th Avenue. On July 15, 2015, a DEA
confidential informant purchased approximately a gram of methamphetamine at Rodney
Menard's home.
On July 23, 2015, at 6:45 a.m., the DEA Task Force conducted a narcotics search
of Yakima's 810 N. 26th A venue. The front door was unlocked. Rodney Menard and
thirteen other individuals were present when law enforcement officers entered the
residence. In a basement bedroom, a lady rested on a small couch with a bag of
methamphetamine next to her pillow.
Law enforcement officers spoke with Rodney Menard and other denizens of the
home. When asked if people who visit take drugs, Menard answered: "most people do."
Clerk's Papers (CP) at 24. Two renters informed the officers that ten to fifteen different
people came daily to the house to use drugs. Menard claimed he unsuccessfully tried to
end the heavy traffic at the house. Officers confiscated drug paraphernalia and 25.5
grams of drugs inside the home.
PROCEDURE
The State of Washington charged Rodney Menard with maintaining a drug
dwelling under RCW 69.50.402. Menard filed a Knapstad motion. Menard argued that
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any drug-related activity at his house was incidental to the primary purpose of the
i residence and the statute proscribed his conduct only if the drug activity constituted the
residence's major purpose. The State responded that Menard knew drug users employed
his house for the purpose of enjoying controlled substances. In tum, the State contended
that drug activity, for purposes of the crime, need only be a substantial purpose, not the
primary one. The trial court granted Menard's motion to dismiss.
LAW AND ANALYSIS
Under Washington law, a defendant may present a pretrial motion to dismiss a
charge and challenge the State's ability to prove all of the elements of the crime. State v.
Montano, 169 Wn.2d 872,876,239 P.3d 360 (2010). Judges and lawyers refer to such a
motion as a Knapstad motion from the leading decision of State v. Knapstad, 107 Wn.2d
346 (1986). The trial court has inherent power to dismiss a charge when the undisputed
facts are insufficient to support a finding of guilt. Knapstad, 107 Wn.2d at 3 51. The
court must decide whether the facts that the State relies on, as a matter of law, establish a
prima facie case of guilt. Knapstad, 107 Wn.2d at 356-57. We review de novo a trial
court's dismissal of a criminal charge under Knapstad. State v. Conte, 159 Wn.2d 797,
803, 154 P.3d 194 (2007).
The parties renew their respective arguments on appeal. Rodney Menard contends
that he may be found guilty of maintaining a drug dwelling only if he maintains the home
for the principal purpose of facilitating the use of controlled substances. We disagree.
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RCW 69.50.402(1), known colloquially as the drug house statute, declares:
It is unlawful for any person:
( f) Knowingly to keep or maintain any ... dwelling, building ... or
other structure or place, which is resorted to by persons using controlled
substances in violation of this chapter for the purpose of using these
substances, or which is used for keeping or selling them in violation of this
chapter.
(Emphasis added.) Note that the statute refers to the purpose under which the drug users
employ the residence, not the owner's purpose for the residence. The statute does not
insert the word "primary" or any other term similar in meaning.
To convict under RCW 69.50.402(f), the totality of the evidence must demonstrate
more than a single isolated incident of illegal drug activity in order to prove that the
defendant "maintains" the premises for keeping or selling a controlled substance. State v.
Ceglowski, 103 Wn. App. 346, 350, 12 P.3d 160 (2000). Sporadic or isolated incidents of
drug use do not suffice to prove criminal conduct under the drug house statute. State v.
Ceglowski, 103 Wn. App. at 351. The requirement that the defendant "maintain" the
premises necessarily connotes a course of continuing conduct. State v. Ceglowski, 103
Wn. App. at 350. Since "maintain" is not specifically defined in the statute, we employ
the plain and ordinary meaning of the word as found in a dictionary. State v. Ceglowski,
103 Wn. App. at 350. Black's Law Dictionary defines "maintain" as '"hold or preserve
in any particular state or condition;'" and "sustain" or "uphold." State v. Ceglowski, 103
Wn. App. at 350 (quoting BLACK'S LAW DICTIONARY 953 (7th ed. 1999)). The ordinary
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meaning of "maintain" encompasses this concept of continuing conduct: "' to keep or
keep up; continue in or with; carry on."' State v. Ceglowski, 103 Wn. App. at 350
(quoting WEBSTER'S NEW WORLD DICTIONARY 854 (2d College ed. 1976)).
"Knowingly maintaining" a place under the federal crack house statute, former 21
U.S.C. § 856(a)(l) (1986), includes acts evidencing control, duration, and continuity.
United States v. Morgan, 117 F .3d 849, 857 (5th Cir. 1997); United States v. Clavis, 956
F.2d 1079, 1090-91, amended on reh 'g, 977 F.2d 538 (11th Cir. 1992). Still, a small
quantity of drugs or evidence found on only a single occasion can be sufficient to show a
crime of a continuing nature. State v. Ceglowski, 103 Wn. App. at 353. Federal courts
have held that this element requires proof that a substantial purpose for maintaining the
premises was to conduct the drug activity. United States v. Verners, 53 F.3d 291, 296
(10th Cir. 1995); United States v. Clavis, 956 F.2d at 1093-94. State v. Ceglowski
followed the test of"substantial purpose." 103 Wn. App. at 350-52.
In State v. Ceglowski, 103 Wn. App. 346 (2000), the State charged Michael
Ceglowski with utilizing a tackle and bait shop for using and selling drugs. Officers
found .9 grams of methamphetamine in Ceglowski's desk drawer. Still, the State
presented evidence of only a single drug sale being conducted in the shop. The State also
produced "pay and owe" sheets, which may or may not have been drug related.
Nevertheless, nothing tied the records to sales on the premises. This court reversed
Ceglowski' s conviction.
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In State v. Fernandez, 89 Wn. App. 292, 948 P.2d 872 (1997), the State
prosecuted three defendants for operating a drug house. During trial, officers testified
about five controlled buys at the defendants' residence, and three neighbors testified to a
dramatic increase in pedestrian and vehicular traffic on their street after the defendants
occupied the home. Visitors stayed inside the house for two to ten minutes. One
neighbor estimated as many as fifteen cars an hour coming and going from the house.
The defendants leaned into cars that stopped on the street. The police executed a search
warrant and discovered twenty-four grams of cocaine, a scale, sandwich bags, and
weapons. The Fernandez court found sufficient evidence to prove the defendants
maintained the house to sell or store drugs, but no evidence to support a finding that drug
users resorted to the house for the purpose of using cocaine. The record contained
insufficient evidence that anyone other than those maintaining the house used drugs on
the premises.
The case on review includes substantial evidence that people other than Rodney
Menard used drugs in the house. The evidence supports ongoing drug use and the use of
controlled substances being a substantial purpose for the home. Two witnesses testified
that ten to fifteen people each day entered the home to imbibe drugs. When police
executed the search warrant, fourteen people, some of whom admitted to use of
methamphetamine, occupied the premises. One resident rested methamphetamine near
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her pillow. Officers found drug devices scattered throughout the home. When asked if
people who visit take drugs, Menard answered: "most people do." CP at 24.
CONCLUSION
We reverse the dismissal of charges against Rodney Menard for maintaining a
drug dwelling. We remand for further proceedings.
Fearing, C.J
WE CONCUR:
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