                                                                         FILED 

                                                                     OCTOBER 14, 2014 

                                                                  In the Office of the Clerk of Court 

                                                                W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 31543-6-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
HERBERT ELMER ELLSWORTH,                      )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       FEARING, J.     Police discovered a marijuana grow operation and a plethora of

controlled substances in the home of Herbert Ellsworth after police entered the home

upon Ellsworth's girl friend calling 911. Ellsworth challenges his many convictions by

asserting his trial counsel failed to provide effective assistance of counsel when failing to

move to suppress the evidence of controlled substances. Ellsworth also challenges his

sentence on numerous other grounds. We affirm Herbert Ellsworth's convictions and

sentence.

                                          FACTS

       Herbert Ellsworth cohabitated with his girl friend Monica Cooper beginning in

February 2011. On February 4,2012, Ellsworth pushed Cooper twice following an

argument about "the dishes or the hot water heater or something like that." Report of

Proceedings (RP) at 104-05. Ellsworth pushed Cooper in the kitchen, from behind,
No. 31543-6-III
State v. Ellsworth


toward rolling chairs. Ellsworth exited their home, threatening to retrieve his family

from next door. Cooper called emergency services, but hung up. Emergency services

called Cooper back. Monica Cooper "told them not to come." RP at 159.

       Monica Cooper testified at trial:

              Q. What did you do after the defendant told you that he was going
       to go get his family?
              A. I called the stupid cops.
              Q. Okay. And why did you do that?
              A. Because I don't want anybody to tell me what I'm going to do
       and not do in my home. I paid my rent and it was my place and if I don't
       want somebody to be around me, I should have that right. And I'm
       stubborn and I think I should-I should have just let it go.
              Q. SO you're upset that you called the cops after you were 

       assaulted? 

              A. Yes. I lost everything.

RP at 109.

       Emergency dispatch reported to law enforcement "a physical domestic in

progress." RP at 334. Within 60 to 90 seconds, Moses Lake Police Officer Kevin Hake

arrived at the home. Jackie Cooper, Monica Cooper's mother, arrived at the home about

the same time and proceeded into the home.

       Monica Cooper further testified at trial:

               Q.    Okay. When-did the police arrive?
               A.    When did they arrive?
               Q.    No. Did they arrive?
               A.    Yeah, they did.
               Q.    Okay.
               A.    They walked right in my house.



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No. 31543-6-111
State v. Ellsworth


              Q. Okay. Did you-when the police arrived, did you know exactly
       where the defendant was?
              A. Yes. I told them that he was not-they asked me ifhe was there
       and I said no, he took off, and I went like that.
              Q. You need to describe what-for the record, you went like what?
       We need to describe that.
              A. Like this. He took off. Because the front door was right there
       and I was standing outside my bedroom and you just go around the comer
       and you can see the door and I said he took off that way.
              Q. So-

              THE COURT: For the record, the witness is pointing out. 


RP at 109-10.

       Officer Hake later testified:

             I had yelled for Jackie [Monica Cooper's mother] to stop. She didn't
       and went through the screen door. So as I got to the door, I announced,
       Moses Lake Police Department, Monica, can I talk to you, and she was
       screaming that somebody had beat her up.

              After I had asked her to come, she turned towards the bedroom, I
       again announced, Moses Lake Police Department, Monica, I need to speak
       with you. And she headed to the bedroom with Jackie between herself and
       the front door where I was. And that's when I again repeated it and went
       in.

              She had originally made a statement when I was outside that he had
       beat her up, and then when I went inside-

              After I entered the home, and she was back by the bedroom, I was
       talking to her quickly trying to get information, Monica, is he still in here?
       What happened? She used the word Herbie or the name Herbie, she said
       Herbie beat her up and she's not sure where he was at.

              [Monica] was still crying, moving around quickly, speaking very
       quickly. She was kind of evasive where she wanted to-appeared to get
       away, like she was scared.



                                              3

No. 31543-6-111
State v. Ellsworth


                Monica had made statements that she wasn't sure if-if Herbie was
       still in the residence. So my concern was locating any unknown threats,
       any persons hiding.

RP at 335-39.

       Jackie Cooper escorted her daughter Monica outside to the home's front porch.

Officer Kevin Hake remained inside to perform "a protective sweep of the immediate

known area." RP at 339.

       Moses Lake Police Officer Kevin Hake "cleared" the kitchen and living room,

searching for Herbert Ellsworth. RP at 339. Hake continued down a hallway. Officer

Hake smelled marijuana. In the first bedroom, Hake found large lamps and marijuana

plants. At trial, witnesses referred to this room as the "purple room," referring to the

color of its walls. The next room down the hallway was Ellsworth's bedroom; it was

locked. Officer Hake "was still concerned about unknown threat behind the door. I

advised over the radio that I had a locked door, I was waiting for another unit, and asked

for the third unit to go to the back of the residence." RP at 342. Corporal Thomas Tufte

soon arrived. Hake and Tufte opened the locked door to enter Ellsworth's bedroom.

They found no one.

       The Moses Lake police officers obtained and executed a telephonic warrant to

search the home. In the purple room, police found lights for growing plants indoors,

"Monster Grow" fertilizer, a box containing Herbert Ellsworth's tax documents, and 30

marijuana plants. In Ellsworth's bedroom, police confiscated a scale, multiple sandwich


                                             4

No. 31543-6-III
State v. Ellsworth


bags containing 3 to 4 grams of marijuana each, a sift, a pipe, ajar with 20 grams of

marijuana, and a metal tin containing burnt marijuana. Police also discovered in

Ellsworth's room: 6 small jeweler baggies, some of which tested positive for

methamphetamine; a cigar box, which contained an expired concealed pistol license and

debit card bearing Herbert Ellsworth's name; a pistol and ammunition; and a whiteboard

with two columns, one titled "5" and the other "20," under the larger heading of

"Bills!!!" Corporal Thomas Tufte testified at trial:

              Q. Based on your training, education and experience, do the figures
       on that white board have any significance in relation to--to your
       knowledge of drug activity?
              A. Yes.
              Q. And what is that significance?
              A. In marijuana, in particular, and most drugs that are sold, they are
       weighed and measured into quantities and normally those quantities are
       based on a dollar amount of value that they tend to get for the drugs when
       they sell them. Basically, common amounts are fives, tens, 20s, they don't
       want to have to break bills when they're doing transactions, so they'll give
       a $5 amount in a bag, they'll do a $20 amount in a bag, a $10 amount in a
       bag, and thaCs your nonnal quantities.

RP at 570.

                                      PROCEDURE

       The State of Washington charged Herbert Ellsworth with: (1) manufacturing

marijuana in violation ofRCW 69.50.401(1), 69.50.401 (2)(c), and 69.50.204(c)(l4); (2)

possession of marijuana with the intent to manufacture or deliver in violation of RCW

69.50.401(1), 69.50.401(2)(c), and 69.50.204(c)(l4); (3) possession of methamphetamine



                                             5

No. 31543-6-III
State v. Ellsworth


in violation ofRCW 69.50.4013 and 69.50.206(d)(2); (4) assault in the fourth degree in

violation of RCW 9A.36.041 with a sentence enhancement for domestic violence in

violation ofRCW 10.99.020; and (5) use of drug paraphernalia in violation ofRCW

69.50.412(1). The trial lasted four days.

       During its closing statement, the State of Washington distinguished count I from

count II. To support its charge of count I of manufacturing marijuana, the State pointed

only to evidence found in the purple room. To support its charge of possession of

marijuana with the intent to manufacture or deliver, the State pointed only to evidence

found in Herbert Ellsworth's room. The State summarized, "The defendant in this matter

is charged with manufacture of marijuana, the purple grow room, possession with intent

to deliver marijuana, that marijuana and those pieces of accoutrement, paraphernalia, if

you will, that were on his dresser in his closet." RP at 685.

       The trial court instructed the jury concerning count I-manufacturing of

marijuana:

              To convict the defendant of the crime of manufacture ofa controlled
       substance as charged in count one, each of the following elements of the
       crime must be proved beyond a reasonable doubt:
              (1) That on or about February 4,2012, the defendant manufactured a
       controlled substance;
              (2) That the defendant knew that the substance manufactured was
       marijuana; and
              (3) That the acts occurred in the State of Washington.
              If you find from the evidence that each of these elements has been
       proved beyond a reasonable doubt, then it will be your duty to return a
       verdict of guilty.

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No. 31543-6-111
State v. Ellsworth


               On the other hand, if, after weighing all the evidence, you have a
       reasonable doubt as to anyone of these elements, then it will be your duty
       to return a verdict of not gUilty.

               The defendant is charged in count one with manufacture of
       marijuana. If, after full and careful deliberation on this charge, you are not
       satisfied beyond a reasonable doubt that the defendant is guilty, then you
       will consider whether the defendant is guilty of the lesser crime of
       possession of marijuana, more than 40 grams.

Clerk's Papers (CP) at 215,218.

       The trial court instructed the jury concerning count II-possession of marijuana

with intent to deliver or manufacture:

               To convict the defendant of the crime of possession with intent to
       deliver marijuana as charged in count two, each of the following elements
       of the crime must be proved beyond a reasonable doubt:
               (1) That on or about February 4,2012, the defendant possessed
       marIJuana;
               (2) That the defendant possessed the substance with the intent to
       deliver marijuana; and
               (3) That the acts occurred in the State of Washington.
               If you find from the evidence that each of these elements has been
       proved beyond a reasonable doubt, then it will be your duty to return a
       verdict of gUilty.
               On the other hand, if, after weighing all the evidence, you have a
       reasonable doubt as to anyone of these elements, then it will be your duty
       to return a verdict of not guilty.

              The defendant is charged in count two with possession with intent to
       deliver marijuana. If, after full and careful deliberation on this charge, you
       are not satisfied beyond a reasonable doubt that the defendant is guilty, then
       you will consider whether the defendant is gUilty of the lesser crime of
       possession of marijuana, less than 40 grams.

CP at 221, 223. The jury found Herbert Ellsworth guilty on all counts.



                                             7

No. 31543-6-111
State v. Ellsworth


       In a victim impact statement for purposes of sentencing, Monica Cooper wrote,

"I'm asking for ... Restitution for suffering ... [and] Restitution for things he Stole &

destroyed in the fight." CP at 251. During the sentencing hearing, the trial court

imposed a total of$I,450 in legal financial obligations (LFOs), but lined out $2,094.09

restitution to Monica Cooper. The court indicated, "[x] The above total does not include

all restitution or other legal financial obligations, which may be set by later order of the

court. An agreed restitution order may be entered. RCW 9.94A.753. A restitution

hearing [x] shall be set by the prosecutor." CP at 259. At the sentencing hearing, the

State agreed to set a later hearing to determine restitution. The appellate record contains

no record of a restitution hearing or restitution order. The trial court's judgment and

sentence shows restitution of $2,094.09 for Monica Cooper but the figure is lined out as

"$2,094.09."

       The trial court calculated Herbert Ellsworth's offender score as two for counts I

through III. The trial court ordered four months' confinement for counts I through III to

run concurrently to each other, but consecutively to count IV. The court said, "I'll follow

the State's recommendation-four months on Counts I, II and III. Those run by

operation oflaw concurrently." RP (Mar. 26, 2013) at 52.

       The trial court ordered 300 days' confinement for count IV, with 270 of those days

conditionally suspended for two years. The trial court ordered zero days' confinement




                                              8

No. 31543-6-III
State v. Ellsworth


for count V, accepting the State's concession that count V is double jeopardy to counts I

through III.

                                  LAW AND ANALYSIS

       On appeal, Herbert Ellsworth contends that he did not receive the effective

assistance of counsel because defense counsel (1) failed to request a erR 3.6 hearing to

suppress the State's evidence, (2) failed to challenge restitution, (3) failed to argue double

jeopardy, and (4) failed to argue same criminal conduct. Ellsworth additionally raises his

restitution, double jeopardy, and same criminal conduct claims independent of counsel's

effectiveness. We agree to directly address his restitution, double jeopardy, and same

criminal conduct arguments. We will review his suppression of evidence assignment of

error only through the filter of his claim of ineffective assistance of counsel.

                      Ineffective Assistance and Motion to Suppress

       Herbert Ellsworth contends that he did not receive the effective assistance of

counsel because his defense counsel did not move to suppress the drug-related evidence

as the fruit of an unconstitutional search. A claim of ineffective assistance of counsel

requires a showing that (1) counsel's performance was deficient and (2) the deficient

performance prejudiced the defendant. State v. Thomas, 109 Wn.2d 222, 225-26, 743

P .2d 816 (1987). Deficient performance occurs when counsel's performance falls below

an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d

1239 (1997). This court presumes that counsel was effective. Strickland v. Washington,

                                              9

No. 31543-6-III
State v. Ellsworth


466 U.S. 668, 689-90, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127

Wn.2d 322, 335, 899 P.2d 1251 (1995). To rebut the strong presumption that counsel's

performance was effective, the defendant bears the burden of establishing the absence of

any conceivable legitimate tactic explaining counsel's performance. State v. Hamilton,

179 Wn. App. 870, 879-80, 320 P.3d 142 (2014).

       We decline to address whether Herbert Ellsworth's trial counsel violated the

standard of care, because we can decide the appeal based upon the failure to show

prejudice. If one prong of the test fails, we need not address the remaining prong. State

v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Prejudice occurs when, but for

the deficient performance, the outcome would have differed. In re Pers. Restraint of

Pirtle, 136 Wn.2d 467,487,965 P.2d 593 (1998); McFarland, 127 Wn.2d at 337. In

order to establish actual prejudice, Ellsworth must show that the trial court likely would

have granted a motion to suppress the seized evidence based on an unlawful warrantless

search of the home. Hamilton, 179 Wn. App. at 882. We believe otherwise.

       Article I, section 7 of the Washington State Constitution provides, "No person

shall be disturbed in his private affairs, or his home invaded, without authority of law."

Under the Washington State Constitution, the home receives heightened constitutional

protection. State v. Kull, 155 Wn.2d 80,84, 118 P.3d 307 (2005). For this reason, the

closer officers come to intrusion into a dwelling, the greater the constitutional protection.

State v. Ferrier, 136 Wn.2d 103, 112,960 P.2d 927 (1998). The heightened protection


                                             10 

No. 31543-6-III
State v. Ellsworth


afforded state citizens against unlawful intrusion into private dwellings places an onerous

burden upon the government to show a compelling need to act outside of our warrant

requirement. State v.    Chrisman~   100 Wn.2d   814~   822,676 P.2d 419 (1984).

       Moses Lake Officers Thomas Tufte and Kevin Hake obtained a search warrant,

but both entered the house and discovered evidence of a crime before obtaining the

warrant. Thus, we analyze the appeal based upon information gained by the officers

before issuance of the warrant.

       As a general rule, warrantless searches and seizures are per se unreasonable, in

violation of the Fourth Amendment and article I, section 7 of the Washington State

Constitution. State v.   Duncan~   146 Wn.2d 166, 171,43 P.3d 513 (2002). Washington

allows a few jealously and carefully drawn exceptions to the warrant      requirement~   which

include exigent circumstances, searches incident to a valid arrest, inventory searches,

plain view searches, and Terry investigative stops. Terry v. Ohio, 392 U.S. 1, 88 S. Ct.

1868, 20 L. Ed. 2d 889 (1968); State v. Garvin, 166 Wn.2d 242, 249, 207 P.3 d 1266

(2009). The State bears the burden of demonstrating that a warrantless seizure falls into a

narrow exception to the rule. State v. Doughty, 170 Wn.2d 57, 61, 239 P.3d 573 (2010).

On appeal, the State relies on the emergency aid exception, as a form of exigent

circumstances. State v. Schultz, 170 Wn.2d 746, 754-55, 248 P.3d 484 (2011).

       The emergency aid exception emerges from the police's community caretaking

function and allows for the limited invasion of constitutionally protected privacy rights


                                             11 

No. 31543-6-111
State v. Ellsworth


when it is necessary for police officers to render aid or assistance. State v. Thompson,

151 Wn.2d 793,802,92 P.3d 228 (2004); State v. Kinzy, 141 Wn.2d 373, 386,5 P.3d 668

(2000). Our Supreme Court adopted a six factor test for the emergency aid exception in

State v. Schultz:

               Under this court's cases, to justify intrusion under the emergency aid
       exception, the government must show that (1) the officer subjectively
       believed that someone likely needed assistance for health or safety
       concerns; (2) a reasonable person in the same situation would similarly
       believe that there was need for assistance; ... (3) there was a reasonable
       basis to associate the need for assistance with the place being searched. (4)
       there is an imminent threat of substantial injury to persons or property, (5)
       state agents must believe a specific person or persons or property is in need
       of immediate help for health or safety reasons, and (6) the claimed
       emergency is not a mere pretext for an evidentiary search.

170 Wn.2d at 746 (citation omitted) (internal quotation marks omitted) (quoting Kinzy,

141 Wn.2d at 386-87).

       Officers Hake and Tufte entered the quintessential volatile situation of domestic

violence. Domestic violence holds distinct problems because a battered woman often

recants complaints of violence in order to protect a boyfriend or husband, only to return

to more violence. For this and other reasons, a Washington statute compels a law

enforcement officer to arrest anyone engaged in domestic violence. RCW 10.31.100(2)

provides:

               A police officer shall arrest and take into custody, pending release
       on bail, personal recognizance, or court order, a person without a warrant
       when the officer has probable cause to believe that:



                                             12
No. 31543-6-III
State v. Ellsworth


               (c) The person is sixteen years or older and within the preceding four
       hours has assaulted a family or household member as defined in RCW
       10.99.020 and the officer believes: (i) A felonious assault has occurred; (ii)
       an assault has occurred which has resulted in bodily injury to the victim,
       whether the injury is observable by the responding officer or not; or (iii)
       that any physical action has occurred which was intended to cause another
       person reasonably to fear imminent serious bodily injury or death. Bodily
       injury means physical pain, illness, or an impairment of physical condition.
       When the officer has probable cause to believe that family or household
       members have assaulted each other, the officer is not required to arrest both
       persons. The officer shall arrest the person whom the officer believes to be
       the primary physical aggressor. In making this determination, the officer
       shall make every reasonable effort to consider: (i) The intent to protect
       victims of domestic violence under RCW 10.99.010; (ii) the comparative
       extent of injuries inflicted or serious threats creating fear of physical injury;
       and (iii) the history of domestic violence of each person involved, including
       whether the conduct was part of an ongoing pattern of abuse.

(Emphasis added.)

       State v. Schultz also entailed domestic violence. Our high court further held:

              [T]he fact that police are responding to a situation that likely
       involves domestic violence may be an important factor in evaluating both
       the subjective belief of the officer that someone likely needs assistance and
       in assessing the reasonableness of the officer's belief that there is an
       imminent threat of injury.

170 Wn.2d at 756. The Schultz court further wrote:

              Domestic violence presents unique challenges for law enforcement.
       Domestic violence situations can be volatile and quickly escalate into
       significant injury. Domestic violence often, ifnot usually, occurs within
       the privacy of a home. Our legislature has recognized that the risk of
       repeated and escalating acts of violence is greater in the domestic context.
       RCW 1O.99.040(2)(a). The legislature has sought to provide "maximum
       protection" to victims of domestic violence through a policy of early
       intervention. RCW 10.99.010. The Court of Appeals has recognized that
       "[p]olice officers responding to a domestic violence report have a duty to

                                              13 

No. 31543-6-III
State v. Ellsworth


       ensure the present and continued safety and well-being of the occupants."
       [State v.] Raines, 55 Wn. App. [459,] 465[, 778 P.2d 538 (1989)].

Schultz, 170 Wn.2d at 755.

       Officer Kevin Hake subjectively and reasonably believed that someone in the

home might be in need of immediate assistance. As Hake arrived, Jackie Cooper ran into

the home, Monica Cooper cried, and Monica appeared frightened. Dispatch had reported

"a physical domestic in progress." RP at 334. As noted in Schultz, "[ d]omestic violence

situations can be volatile and quickly escalate into significant injury." 170 Wn.2d at 755.

Under the circumstances, Officer Hake was justified in entering the home to assist

Monica Cooper.

       Concluding that Moses Lake Officer Hake had the right to enter the home doe,s not

end our inquiry. We must further ask whether Hake could remain in the home and search

for Herbert Ellsworth, thereby coming upon the evidence of marijuana.

       The testimony of Monica Cooper conflicted with that of Officer Kevin Hake as to

whether Herbert Ellsworth could be found in the home. Monica Cooper testified that

when Officer Hake arrived in the house, she told the officer that Ellsworth fled the home.

Officer Kevin Hake testified that Cooper was crying, scared, and evasive and stated that

"Herbie" beat her up and she did not know "where he was." RP at 338.

       If Herbert Ellsworth had brought a motion to suppress the evidence found in the

home, the trial court would need to decide whose version of what Monica Cooper told



                                            14 

No. 31543-6-111
State v. Ellsworth


Officer Hake, in the home, was true. We are unable to determine which version the trial

court would adopt, so we must conclude that, at the least, the trial court was as likely to

accept Kevin Hake's testimony as true as accepting Monica Cooper's testimony as true.

The trial court could have even found that Monica Cooper told Officer Hake that Herbert

Ellsworth was not in the house, but that Hake could have reasonably disbelieved Cooper

because of her emotional condition and the nature of domestic violence. Under either

Kevin Hake's testimony or Monica Cooper's testimony, the trial court could have

determined that an emergency situation existed that justified Officer Hake's search of the

home. Herbert Ellsworth holds the burden of showing that the motion to suppress

evidence likely would have been granted. Based upon our analysis, Ellsworth does not

meet his burden of probabilities. He has not shown the outcome of the prosecution would

have been different.

                                         Restitution

       Herbert Ellsworth assigns error to the trial court ordering restitution without

sufficient evidence to support its order. We find no indication in the record that the trial

court ordered restitution.

       In his reply brief, Herbert Ellsworth writes that the original judgment and sentence

ordered restitution, and thus infers that the court amended its judgment and sentence off

the record. Ellsworth notes that the trial court has the authority to correct clerical

mistakes under either CrR 7.8(a) or RAP 7.2(e), but writes, "Whatever procedure was


                                              15 

No. 31543-6-III
State v. Ellsworth


used, it does not appear that any record was made of when the change occurred." Reply

Br. of Appellant at 3. Ellsworth asks this court to condemn the amendment and correct

any error. In its present form, Herbert Ellsworth's judgment and sentence does not order

restitution, if it ever did. There is thus no error for this court to address. Given the

limited record, we find no cause to reprimand the trial court.

                                      Double Jeopardy

       Herbert Ellsworth contends that his convictions for count I, manufacturing

marijuana, and count II, possessing marijuana with the intent to distribute, violate

constitutional prohibitions against double jeopardy. In other words, the jury convicted

him twice of the same conduct. RCW 69.50.401 controls both crimes and reads, in

relevant part:

              Except as authorized by this chapter, it is unlawful for any person to
       manufacture, deliver, or possess with intent to manufacture or deliver, a
       controlled substance.

               Any other controlled substance [not listed in (2)(b) or (2)(c)]
       classified in Schedule I, II, or III, is guilty of a class C felony punishable
       according to chapter 9A.20 RCW.

(Emphasis added.) RCW 69.50.101 defines "deliver" and "manufacture":

             (f) "Deliver" or "delivery," means the actual or constructive transfer
       from one person to another of a substance, whether or not there is an
       agency relationship.

              (q) "Manufacture" means the production, preparation, propagation,
       compounding, conversion, or processing of a controlled substance, either
       directly or indirectly or by extraction from substances of natural origin, or

                                              16 

No. 31543-6-III
State v. Ellsworth


       independently by means of chemical synthesis, or by a combination of
       extraction and chemical synthesis, and includes any packaging or
       repackaging of the substance or labeling or relabeling of its container.

       Both the federal and state constitutions prohibit a person from being punished

twice for the same offense, although within constitutional constraints the legislature is

free to define crimes and punishments as it sees fit. State v. Smith, 177 Wn.2d 533, 545,

303 P.3d 1047 (2013); State v. Calle, 125 Wn.2d 769,776,888 P.2d 155 (1995).

Washington's double jeopardy clause offers the same protection as the federal

constitution. State v. Womac, 160 Wn.2d 643, 650, 160 P.3d 40 (2007).

       To analyze a double jeopardy claim, we first examine the statutory language to see

if the applicable statutes expressly permit punishment for the same act or transaction.

State v. Hughes, 166 Wn.2d 675,681,212 P.3d 558 (2009). When the relevant statutes

do not expressly disclose legislative intent to treat the charged crimes as the same

offense, we determine whether the charged crimes are the same in law and fact, termed

the same evidence test. State v. Marchi, 158 Wn. App. 823, 829,243 P.3d 556 (2010);

State v. Adel, 136 Wn.2d 629,632,965 P.2d 1072 (1998). The same evidence test

mirrors the federal "same elements" standard adopted in Blockburger v. United States,

284 U.S. 299, 304,52 S. Ct. 180,76 L. Ed. 306 (1932). Adel, 136 Wn.2d at 632. The

Blockburger test is a rule of statutory construction used to discern legislative purpose.

Marchi, 158 Wn. App. at 829. The applicable rule is that, where the same act or

transaction constitutes a violation of two distinct statutory provisions, the test to be


                                              17 

No. 31543-6-II1
State v. Ellsworth


applied to determine whether there are two offenses or only one is whether each

provision requires proof of an additional fact which the other does not. Blockburger, 284

U.S. at 304; In re Pers. Restraint o/Orange, 152 Wn.2d 795,820, 100 P.3d 291 (2004).

       This appeal resembles the circumstances underlying State v. Maxfield, 125 Wn.2d

378, 886 P.2d 123 (1994). In Maxfield, our state high court addressed whether double

jeopardy protections precluded convictions for both manufacturing marijuana and

possessing marijuana with intent to distribute. Law enforcement officers seized 5,200

grams of marijuana found growing in a garage near a house rented by Mark Maxfield. In

addition to the marijuana found growing under artificial lights in the garage, officers also

found in the house triple beam scales and a quantity of packaged marijuana contained in

ziplock bags. The trial court concluded that the growing marijuana in the garage proved

that the defendant manufactured marijuana and that the marijuana bundled up in packages

in the house proved that the defendant was possessing marijuana with the intent to

deliver. The trial court found Mark Maxfield guilty of both manufacturing marijuana and

possessing marijuana with the intent to deliver it.

       Our Supreme Court responded to and rejected Mark Maxfield's double jeopardy

argument as follows:

              The applicable rule is that where the same act or transaction
       constitutes a violation of two distinct statutory provisions, the test to be
       applied to determine whether there are two offenses or only one, is whether
       each provision requires proof of a fact which the other does not. This test
       focuses primarily on whether or not each offense contains an additional


                                             18
No. 31543-6-III
State v. Ellsworth


        element not included in the other. Count 1 (manufacture) includes the
        element that the controlled substance be manufactured which includes
        planting, cultivation, growing, or harvesting. Count 2 includes the element
        that the defendant possessed the substance with the intent to deliver.
        Therefore, in this case, each offense contained an element not contained in
        the other; hence, they are not the "same offence" and double jeopardy is not
        violated.

Maxfield, 125 Wn.2d at 401 (citations omitted). RCW 69.50.401 thus defines four

separate crimes: manufacturing a controlled substance, delivering a controlled substance,

possessing a controlled substance with the intent to manufacture it, and possessing a

controlled substance with the intent to deliver it. The facts of this case demonstrate the

distinctness of two of these crimes.

        Herbert Ellsworth manufactured marijuana in the purple room. To secure that

conviction, the State pointed only to evidence found in the purple room. Ellsworth could

have manufactured marijuana for his own use, without committing the separate crime of

possessing with an intent to deliver. But Ellsworth went further. In his own bedroom,

the scales, the firearm, the whiteboard, and the packaged marijuana displayed Ellsworth's

intent to also deliver the marijuana he manufactured. To secure the conviction for

possession of marijuana with the intent to deliver it, the State pointed only to evidence

found in Herbert Ellsworth's room. These two convictions are both legally and factually

distinct.

        Herbert Ellsworth argues that this court should utilize the "unit of prosecution"

analysis set forth in State v. Adel, 136 Wn.2d at 632, because both count I and count II

                                             19 

No. 31543-6-II1
State v. Ellsworth


were in violation of the same statute. Washington courts have recognized, however, the

legislature's ability to define separate offenses with a single statute. See, e.g., State v.

Duffey, 97 Wn. App. 33, 37, 981 P.2d 1 (1999); see also State v. Leach, 113 Wn.2d 679,

684, 782 P.2d 552 (1989). That each count required the State prove distinct elements

with distinct facts further demonstrates the inappropriateness of applying the "unit of

prosecution" analysis in this case.

       We deem State v. Maxfield, 125 Wn.2d 378, controlling. Herbert Ellsworth's

convictions for manufacturing marijuana and possessing marijuana with the intent to

deliver do not violate constitutional prohibitions against double jeopardy.

                                   Same Criminal Conduct

       Herbert Ellsworth also contends that his convictions for count I, manufacturing

marijuana, and count II, possessing marijuana with the intent to distribute, constitute the

"same criminal conduct" for purposes of calculating his offender score under RCW

9.94A.589. A trial court's determination of what constitutes the same criminal conduct

for purposes of calculating an offender score will not be reversed absent an abuse of

discretion or misapplication of the law. State v. Tili, 139 Wn.2d 107, 122,985 P.2d 365

(1999). A trial court abuses its discretion when its decision is manifestly unreasonable or

based on untenable grounds or reasons. State v. Mehrabian, 175 Wn. App. 678, 710, 308

P.3d 660, review denied, 178 Wn.2d 1022 (2013).

       RCW 9.94A.589(1)(a) provides:

                                              20 

No. 31543-6-111
State v. Ellsworth


               Except as provided in (b) or (c) of this subsection, whenever a
       person is to be sentenced for two or more current offenses, the sentence
       range for each current offense shall be determined by using all other current
       and prior convictions as if they were prior convictions for the purpose of
       the offender score: PROVIDED, That if the court enters a finding that some
       or all of the current offenses encompass the same criminal conduct then
       those current offenses shall be counted as one crime. Sentences imposed
       under this subsection shall be served concurrently. Consecutive sentences
       may only be imposed under the exceptional sentence provisions of RCW
       9.94A.S3S. "Same criminal conduct," as used in this subsection, means
       two or more crimes that require the same criminal intent, are committed at
       the same time and place, and involve the same victim.

(Emphasis added.)

       Our Supreme Court's holding in Maxfield disposes of this additional assignment

of error. Addressing the same argument, the court held:

               Focusing on the extent to which the criminal intent, as objectively
       viewed, changed from the crime of manufacture of a controlled substance
       to the crime of possession with intent to deliver, we conclude that the trial
       court here did not abuse its discretion in concluding these crimes did not
       constitute the same criminal conduct. In this case, the objective criminal
       intent is not the same for the two crimes defendant committed; there was a
       change in the criminal objective. In manufacturing, the objective intent is
       to produce the drug and the crime is complete without any showing of an
       intent to deliver.
               In this case, there were different "objectives"; one was to grow the
       drug, the other was to deliver it to third persons. There was evidence in the
       stipulated findings of fact supporting each offense. The growing marijuana
       in the garage showed intent (in the past and present) to "manufacture" a
       controlled substance, whereas the marijuana found in the house in plastic
       baggies showed the defendant's intent to deliver the drugs in the future.
       Hence, the trial court did not abuse its discretion in refusing to treat the two
       crimes as the "same criminal conduct" for sentencing purposes.




                                              21 

No. 31543-6-III
State v. Ellsworth


Maxfield, 125 Wn.2d at 403 (citations omitted). Likewise, the sentencing court in this

case did not abuse its discretion.

                                     CONCLUSION

       We affirm Herbert Ellsworth's convictions and sentence.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 





       Brown, A . . .




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