State Of Washington, Resp. v. James Master Ocain, App.

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—103 Wash. 2d 812, 818, 699 P.2d 1234 (1985). The trial court denied his request,
stating that the basis for his request was speculative and that he had not
demonstrated any inconsistency or the required materiality. O'Cain assigns error
to the trial court's refusal to conduct an in camera hearing.
There is a presumption of validity with respect to the affidavit supporting a
search warrant. Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 57 L.
Ed. 2d 667 (1978). Before the defendant will be allowed a hearing to challenge
the warrant, he must make a substantial preliminary showing that the affiant
knowingly and intentionally, or with reckless disregard for the truth, included a
false statement in the warrant affidavit. Franks, 438 U.S. at 155-56. When a
defendant is faced with a confidential informant, however, he "lacks access to the
very information that Franks requires for a threshold showing offalsity." Casal,
103Wn.2dat818.
An in camera hearing under Casal can solve this problem. A trial court
should exercise its discretion to conduct an in camera examination of the affiant
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or confidential informant where a defendant presents information which (1) casts
a reasonable doubt on the veracity of material representations made by a search
warrant affiant and (2) the challenged statements are the sole basis for probable
cause to issue the search warrant. Casal, 103 Wash. 2d at 813.
As to the first prong, O'Cain argues that he has met the Casal threshold
by submitting repair shop invoices showing that the car the detective said O'Cain
was driving was in the repair shop during some of the time period at issue. But
the type of car driven by O'Cain was immaterial to the issue of probable cause to
search O'Cain's person and apartment, where all the drugs in question were
found. No drugs were found in O'Cain's cars. Even if the type of car were
material, the repair shop invoices presented by O'Cain do not cast a reasonable
doubt on the veracity of the detective's representations regarding these cars.
The detective wrote in his affidavit that "within the last week" he saw O'Cain
driving his Cadillac at a drug sale to a confidential informant and also saw this
same Cadillac parked behind O'Cain's apartment building. The detective's
affidavit was dated October 7, 2013, so "within the last week" would be
approximately September 30 to October 6, 2013. The repair shop invoices
submitted by O'Cain show that this Cadillac was in the shop on the morning of
October 1, 2013, and from October 4 through 11, 2013. This leaves several
days, including September 30, part of October 1, and October 2 and 3, that the
detective could have seen the Cadillac as he alleges. The detective's affidavit,
on its face, is not inconsistent with the repair shop invoices submitted by O'Cain.
No. 73191-2-1/5
O'Cain has not cast a reasonable doubt on the veracity of the detective's
representations regarding these cars.
O'Cain also argues that he met the Casal threshold by submitting internal
investigation documents from the King County Sheriff's Office. The documents
showed that the affiant detective had been disciplined in the past for giving a
false report regarding his personal vehicle being stolen from his house, and that
he had once been reprimanded for referring to a juvenile as "'monkey butt'" or
"'monkey boy.'" O'Cain argues that the affiant detective should have disclosed
this past disciplinary history in his affidavit. He cites no authority requiring such
disclosure. Both of these incidents occurred over 15 years ago. They are
unrelated to the information in the search warrant. O'Cain has not specified how
the detective's past discipline casts a reasonable doubt on any specific material
representation that the detective made in the affidavit.
As to the second prong of the Casal test, the statements challenged by
O'Cain are not the sole basis for probable cause to issue the search warrant.
The detective's affidavit details how he and other detectives observed O'Cain
selling drugs to a confidential informant on four separate occasions. These drug
sales, rather than the type of car driven by O'Cain, were the basis for probable
cause to issue the search warrant.
DOUBLE JEOPARDY
On appeal, O'Cain makes two double jeopardy arguments. He first
argues that all six of his convictions for possession of a controlled substance with
intent to deliver constitute a single "unit of prosecution" based on the to-convict
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jury instructions. Alternatively, he argues it is a double jeopardy violation to
convict him twice for possessing the same drug at the same time and place.
Whether a criminal defendant is placed in double jeopardy in a particular
circumstance is a question of law that we review de novo. State v. Womac, 160
Wash. 2d 643, 649, 160 P.3d 40 (2007).
The double jeopardy clause of the Fifth Amendment and article I, section 9
of the Washington Constitution protect defendants against multiple punishments
for the same offense. To determine if a defendant has been punished multiple
times for the same offense, the Washington Supreme Court has traditionally
applied the "same evidence" test. State v. Calle, 125 Wash. 2d 769, 777, 888 P.2d
155 (1995). The same evidence test mirrors the federal "same elements"
standard adopted in Blockburqer v. United States. 284 U.S. 299, 304, 52 S. Ct.
180, 76 L. Ed. 306 (1932). Under the same evidence test, double jeopardy is
violated if a defendant is convicted of offenses which are the same in law and in
fact. Calle, 125 Wash. 2d at 777-78. If each offense, as charged, includes
elements not included in the other, or requires proof of a fact that the other does
not, the offenses are different and multiple convictions can stand. State v. Adel,
136 Wash. 2d 629, 633, 965 P.2d 1072 (1998). The same evidence test applies only
to a situation where a defendant has multiple convictions for violating distinct or
separate statutory provisions. Adel, 136 Wash. 2d at 633.
In contrast, where the defendant is convicted of violating one statute
multiple times, the "unit of prosecution" test applies. Adel, 136 Wash. 2d at 633.
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The proper inquiry is what unit of prosecution the legislature has intended as the
punishable act under the specific criminal statute. Adel, 136 Wash. 2d at 634.
To determine if double jeopardy was violated when O'Cain was convicted
of possession with intent to deliver different drugs, we apply the same evidence
test. See, e^, State v. O'Neal, 126 Wash. App. 395, 415-17, 109 P.3d 429 (2005)
(holding same evidence test applies where defendant was charged with
manufacturing two different drugs), affd, 159 Wash. 2d 500, 150 P.3d 1121 (2007).
O'Cain was charged with, and convicted of, unlawful possession with intent to
deliver three different drugs: cocaine, heroin, and methamphetamine. O'Cain's
convictions for possessing with intent to deliver the three different drugs were
different in fact because each required proof of the specific type of drug. The
same convictions were also different in law because he was charged with
separate violations of the criminal drug statutes. He was charged with
possession with intent to deliver methamphetamine in violation of RCW
69.50.401 (2)(b). He was charged with possession with intent to deliver cocaine
and heroin in violation of RCW 69.50.401 (2)(a), which covers controlled
substances classified in Schedules I and II. Heroin is defined as a controlled
substance in Schedule I, RCW 69.50.204(b)(11). Cocaine is defined as a
controlled substance in Schedule II, RCW 69.50.206(b)(4). Thus, the convictions
were different in law. Because O'Cain's convictions for possession with intent to
deliver cocaine, methamphetamine, and heroin were different in fact and law,
double jeopardy was not violated when his convictions were for different drugs.
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To determine if double jeopardy was violated when O'Cain was convicted
of two counts each of possession with intent to deliver the same three drugs, we
apply the "unit of prosecution" test. See, e.g., Adel, 136 Wash. 2d at 634. In Adel,
the Washington Supreme Court illustrated the unit of prosecution test by
discussing two cases where defendants were charged with two counts of
possession with intent to deliver the same drug: State v. McFadden, 63 Wash. App.
441, 820 P.2d 53 (1991), review denied, 119 Wash. 2d 1002 (1992), and State v.
Lopez, 79 Wash. App. 755, 904 P.2d 1179 (1995).
In McFadden, the defendant went to an apartment to sell cocaine to an
informant. Adel, 136 Wash. 2d at 637-38. Police raided the apartment and caught
McFadden with 5.5 grams of cocaine. Adel, 136 Wash. 2d at 638. Police then
searched the van McFadden had driven to the apartment and discovered another
83.9 grams of cocaine. Adel, 136 Wash. 2d at 638. He was charged and convicted
of two counts of possession with intent to deliver. Adel, 136 Wash. 2d at 638. The
Washington Supreme Court said that two units of prosecution were satisfied.
The first unit of prosecution was satisfied by McFadden's possession of drugs in
the apartment, which he intended to sell to the people in the apartment. Adel,
136 Wash. 2d at 638. The second unit of prosecution was satisfied by McFadden's
possession of the drugs in the van with the "obvious intent to deliver them to
unknown buyers in the future." Adel, 136 Wash. 2d at 638. "The two crimes were
premised on the showing that McFadden had two separate and distinct intents to
deliver drugs in his possession—one intent to sell in the present to the occupants
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No. 73191-2-1/9
of the apartment and one intent to sell drugs in the future." Adel, 136 Wash. 2d at
638.
Adel then contrasted the facts of Lopez. Lopez was arrested in a car
during a controlled drug buy with an informant. Adel, 136 Wash. 2d at 638. Officers
found the cocaine Lopez had just purchased from the informant on the floorboard
of the car. They also found cocaine, unrelated to the present deal, on Lopez's
person. Adel, 136 Wash. 2d at 638-39. "The cocaine on his person was packaged
in 14 bindles and appeared to be intended for distribution." Adel, 136 Wash. 2d at
639. Lopez was charged with two counts of possession with intent to deliver,
one count based on the cocaine he had just purchased from the informant and
the other count based on the separate cocaine found on his person. Adel, 136
Wash. 2d at 639. Adel held that there was just one unit of prosecution. "Lopez may
have had two distinct quantities of cocaine under his dominion and control, and
evidence showed the two quantities came from separate sources, but none of
that evidence was relevant to the unit of prosecution with intent to deliver. The
evidence failed to establish more than one intent to deliver the drugs in the
future—there were not two distinct intents to deliver, as there were in
McFadden." Adel, 136 Wash. 2d at 639.
Implicit in Adel's discussion of Lopez and McFadden is the recognition that
conduct demonstrating a "separate and distinct" intent to deliver forms the unit of
prosecution for the possession with intent to deliver statute. See also In re Pers.
Restraint of Davis, 142 Wash. 2d 165, 175, 12 P.3d 603 (2000) (analyzing a charge
of possession with intent to manufacture under the same statute and concluding
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that a "separate and distinct" intent to manufacture drugs forms the unit of
prosecution). The issue is thus whether O'Cain had a "separate and distinct"
intent to deliver the same drugs when they were found on his person versus in
the locked safe.
The State argues that the evidence in O'Cain's case is quite similar to
McFadden and was sufficient for the jury to conclude that O'Cain had separate
and distinct temporal intents to deliver—present and future—for the drugs found
on his person versus in the safe. We disagree. In contrast to McFadden, O'Cain
was not in the middle of a drug delivery when he was searched and arrested. He
was at home. There is no evidence that he was delivering drugs at the time. Nor
was there any evidence of when O'Cain planned to deliver any of the drugs. The
facts that some of the drugs were in his jacket pocket and packaged in smaller,
more individually-sized packets is not evidence of when O'Cain intended to
deliver them. The evidence does not show that O'Cain had an intent to deliver
the cocaine on his person that was separate and distinct from his intent to deliver
the cocaine in the locked safe. The same is true of the methamphetamine and
heroin. The evidence failed to establish more than one intent to deliver drugs in
the future, as in Lopez. His convictions for possession with intent to deliver the
same drugs therefore punish a single unit of prosecution. His second convictions
for cocaine, heroin, and methamphetamine violate double jeopardy and must be
stricken.
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No. 73191-2-1/11
EFFECT OF TO-CONVICT INSTRUCTIONS
For each of the six counts, the court instructed the jury that to convict
O'Cain it must be proved that he "possessed a controlled substance, separate
and distinct from conduct in" all the other counts with the intent to deliver each
substance. O'Cain makes two arguments regarding the effect of these to-convict
instructions.
O'Cain argues that all six of his convictions constitute a single unit of
prosecution "under the law of the case" because none of the six to-convict jury
instructions name the controlled substance at issue. He has not cited authority
indicating that the unit of prosecution analysis depends on how the offenses are
defined in the to-convict instructions. Under Adel, the question is what unit of
prosecution the legislature intended as the punishable act under the specific
criminal statute.
O'Cain also raises a sufficiency of the evidence challenge based on the
jury instructions. Evidence is sufficient to support a conviction when, viewed in
the light most favorable to the State, a rational trier of fact could have found guilt
beyond a reasonable doubt. State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d
1068 (1992). O'Cain argues that there was insufficient evidence to prove that he
engaged in "separate and distinct" conduct for all six counts, as the jury
instructions required. He cites State v. Hickman, 135 Wash. 2d 97, 954 P.2d 900
(1998). In criminal cases, the State assumes the burden of proving otherwise
unnecessary elements of the offense when such added elements are included
without objection in the "to convict" instruction. Hickman, 135 Wash. 2d at 102.
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No. 73191-2-1/12
O'Cain argues that a rational trier of fact could not have found that his conduct as
to any one count was separate and distinct from his conduct as to any other. He
contends the evidence was sufficient to support only one count of possessing a
controlled substance with intent to deliver.
After our double jeopardy analysis above, only three of O'Cain's
convictions remain at issue, one for each distinct type of drug. The evidence was
sufficient to prove that O'Cain engaged in separate and distinct conduct for these
three convictions because the evidence showed that he possessed different
drugs.
In short, O'Cain fails to demonstrate that any of his convictions fail
because of the use of six identical to-convict instructions that do not name the
controlled substance.
O'Cain's request for a new trial is denied. The judgment is reversed and
remanded to strike the three convictions that violate double jeopardy.
WE CONCUR:
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