                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          June 28, 2016




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                             No. 46030-1-II

                                Respondent,

          v.

    GEORGE E. TAYLOR,                                         UNPUBLISHED OPINION

                                Appellant.

         LEE, J. — George E. Taylor appeals his convictions and sentence, arguing that (1) the trial

court erred by denying his motions to sever the charges of reckless endangerment and making a

false statement to a public servant (counts I and II) from the drug related charges (counts III, IV,

V, and VI);1 (2) the State failed to present sufficient evidence to prove that Taylor possessed

pseudoephedrine with intent to manufacture methamphetamine; and (3) the trial court erred by

failing to enter written findings of fact and conclusions of law following the CrR 3.5 hearing.2 In

a Statement of Additional Grounds (SAG),3 Taylor asserts, “The Judge that heard my case was at


1
  This opinion will refer to the reckless endangerment charge and the making a false or misleading
statement to a public servant as the “reckless endangerment charges” and all other charges as the
“drug-related charges.”
2
 Taylor raised numerous other arguments, but because we reverse on severance grounds, we do
not address his other arguments.
3
    RAP 10.10.
No. 46030-1-II


one time a lawyer me and my wife had used.” SAG at 1. We hold that the trial court abused its

discretion by denying Taylor’s motions to sever the reckless endangerment charges from the drug

related charges. Therefore, we reverse and remand for proceedings consistent with this opinion.

                                             FACTS

       Taylor lived next to Patricia Spencer. On March 7, 2012, Spencer was in her living room

and heard gunshots nearby. Later that day, Spencer’s granddaughter discovered a bullet on her

bedroom floor and reported it to law enforcement. Skamania County Sheriff’s Deputy Steve

Rassmussen came to Spencer’s home and investigated the stray bullet. Deputy Rassmussen and

other officers asked Spencer’s neighbors whether anyone had been shooting. Taylor told the

officers that he had not been shooting. The officers suspected that the bullet came from Taylor’s

property, and they prepared a search warrant for Taylor’s property.

       On March 14, officers executed the search warrant. As officers entered Taylor’s home,

Taylor came out of his bedroom and was arrested for reckless endangerment. Taylor then told

officers that he had been shooting his rifle on his “range.” Verbatim Report of Proceedings (VRP)

(Mar. 10, 2014) at 122. Taylor pointed into his bedroom to the rifle that he had been shooting,

which officers could see from the living room. Officers went into Taylor’s bedroom to retrieve

the rifle and saw glass pipes on the floor and bed, which officers recognized as generally used for

smoking cocaine or methamphetamines. Officers also discovered and seized numerous firearms

and ammunition in Taylor’s bedroom.

       Because officers had discovered “other evidence of another crime, methamphetamine,”

they sought “an addendum” to the original search warrant that “was written for a rifle because of

a Reckless Endangerment.” VRP (Mar. 10, 2014) at 129. At that point, officers “all backed out



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No. 46030-1-II


of the residence” to wait “for the search warrant to include narcotics.” VRP (Mar. 11, 2014) at 31.

After receiving the additional search warrant, officers “did the search warrant on the house again,

this time looking for the original stuff in the search warrant which was . . . firearms and then also

narcotics.” VRP (Mar. 11, 2014) at 31. Under Taylor’s bed, officers discovered, among other

things, a funnel, assorted glassware, coffee filters, containers of “bluish type of liquid,” gallon

containers of iodine, and acetone. VRP (Mar. 11, 2014) at 34. The also discovered five

pseudoephedrine tablets in Taylor’s bedroom.

          The State charged Taylor with reckless endangerment4 (count I), making a false or

misleading statement to a public servant5 (count II); possession of a controlled substance other

than marijuana6 (count III); use of drug paraphernalia7 (count IV); possession of pseudoephedrine

with intent to manufacture methamphetamine8 (count V); and manufacturing methamphetamine

on or between July 26, 2009 and March 14, 20129 (count VI).

          Taylor moved to suppress his statements to officers. At a CrR 3.5 hearing, the trial court

ruled that Taylor was advised of his Miranda10 rights, Taylor’s statements were made knowingly,




4
    RCW 9A.36.050(1).
5
    RCW 9A.76.175.
6
    RCW 69.50.4013(1).
7
    RCW 69.50.412(1).
8
    RCW 69.50.440(1).
9
    RCW 69.50.401(2)(b).
10
     Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


                                                  3
No. 46030-1-II


freely, intelligently, and voluntarily without a request for counsel, and Taylor’s statements were

admissible. The State was instructed to submit written findings of fact and conclusions of law to

the trial court for entry. The record does not show that the State complied with the trial court’s

direction. The trial court did not enter written findings of fact and conclusions of law.

       On January 30, 2014, the State amended the information to add a firearm enhancement to

counts V and VI. Taylor objected to the validity of the charges being joined and moved to sever

the reckless endangerment charges from the drug related charges. Taylor argued that the officers’

discovery of the drugs while executing the warrant for reckless endangerment was the only

connection between the reckless endangerment charges and the drug related charges. Taylor also

argued that the “drug paraphernalia and alleged equipment was found in the execution of the search

warrant related to the Reckless Endangerment, but there’s no proof that these are in anyway tied

in an event or tied in time together.” VRP (Jan. 30, 2014) at 3. The State did not dispute this

point. Nevertheless, the State argued that the charges were properly joined because the “search

warrant that was a result of the firearm allegation is directly what resulted in the discovery of drugs

that lead to the drug charges, so they are connected together.” VRP (Jan. 30, 2014) at 4. The trial

court denied Taylor’s motion to sever, finding, “I don’t think there’s substantial prejudice to the

defendant. The jury can sort out if there’s some differences in the proof and judicial efficiency

requires that I keep it together.” VRP (Jan. 30, 2014) at 5.

       On February 7, Taylor renewed his motion to sever the drug related charges, again arguing

that the facts leading to the reckless endangerment and false statements were not connected to the

drug charges. Taylor also argued that there was “a high likelihood that [the jury] would attach

some sort of level of dangerousness from the meth piece to the reckless endangerment piece.”



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No. 46030-1-II


VRP (Feb. 7, 2014) at 21. The State argued that the charges were properly joined because “90

percent of the case is what was found in the house and this was done jointly

. . . . [B]ecause the investigation is critical, that is what joins these and makes them part of the

series of acts connected together.”11 VRP (Feb. 7, 2014) at 23. The State also argued that “we

added a gun enhancement to counts V and VI, so that actually even makes it more connected up

because now we have a piece of evidence that’s actually shared between both series of charges.”

VRP (Feb. 7, 2014) at 24. The State further argued that severance was not necessary because the

issues were relatively simple12 and the trial would be short, so the jury could be reasonably

expected to compartmentalize the evidence. The trial court again denied Taylor’s motion to sever

the charges.

       The case proceeded to trial. Law enforcement officers testified to the above events. They

also testified that when they discovered the supplies, no chemical reaction was currently happening

and it had been “an inactive lab” for “six months to a year possibly.” VRP (Mar. 11, 2014) at 55,

92. The State also presented evidence that the items discovered in Taylor’s room were used to

manufacture methamphetamine.

       The jury found Taylor guilty as charged. Taylor appeals.

                                            ANALYSIS

A.     JOINDER AND SEVERANCE



11
   The State argued that the charges are “properly joined under CR 42A (2).” VRP (Feb. 7, 2014)
at 22. Civil Rule 42 is not applicable to this criminal proceeding; CrR 4.3 is the applicable joinder
rule.
12
  The State argued this despite the State’s and Taylor’s previous reminders to the court that the
case was complicated.


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No. 46030-1-II


       Taylor argues that the trial court erred in refusing to sever the charges of reckless

endangerment and making a false statement from the drug related charges.13 We agree.

       We review a trial court’s refusal to sever “otherwise properly joined” offenses for a

manifest abuse of discretion. State v. Harris, 36 Wn. App. 746, 749, 677 P.2d 202 (1984); State

v. Wilson, 71 Wn. App. 880, 884, 886, 863 P.2d 116 (1993), rev’d in part on other grounds by 125

Wn.2d 212, 883 P.2d 320 (1994). Washington cases have “blurred the distinction between joinder

and severance so carefully drawn in federal law.”14 Wilson, 71 Wn. App. at 886. Consequently,

the parties’ arguments convolute the two concepts.

       In order to address severance, we must “first address the joinder issue, keeping in mind

that whether [the] counts were properly joined under CrR 4.3 is a question of law subject to full




13
  The State asserts that Taylor waived his challenge to the trial court’s refusal to sever the charges
because he did not “restate the objection at time for trial.” Br. of Resp’t at 8. CrR 4.4 provides:
“If a defendant’s pretrial motion for severance was overruled he may renew the motion on the
same ground before or at the close of all the evidence. Severance is waived by failure to renew
the motion.” Here, Taylor moved to sever on January 30, 2014, and renewed his motion on
February 7, 2014. Thus, Taylor renewed his motion before the close of all evidence. We do not
deem Taylor’s challenge waived.
14
   “‘The question of the propriety of joinder under [Federal] Rule 8 and of refusal to grant relief
from prejudicial joinder under [Federal] Rule 14’”—that is, the refusal to sever

       are quite different in nature, although some decisions tend to obscure this. The
       former is a question of law, subject to full appellate review; if the joinder was not
       permitted by Rule 8, a conviction must be reversed unless the error was harmless.
       In contrast, the grant of relief under Rule 14 lies within the discretion of the trial
       judge and refusal to sever counts or defendants properly joined under Rule 8 will
       be reversed only if discretion was abused.

Wilson, 71 Wn. App. at 885 (quoting United States v. Werner, 620 F.2d 922, 926 (2d Cir. 1980));
FED. R. CRIM. P. 8.



                                                  6
No. 46030-1-II


appellate review.” Id. at 884. We review whether the charges were properly joined de novo. Id.;

United States v. Jawara, 474 F.3d 565, 572 (9th Cir. 2007).

       Joinder is concerned with the propriety of joining offenses in the charging document. The

joinder rule should “be construed expansively to promote the public policy of conserving judicial

and prosecutorial resources.” State v. Bryant, 89 Wn. App. 857, 864, 950 P.2d 1004 (1998), review

denied, 137 Wn.2d 1017 (1999). We determine the validity of the joinder based solely on the

allegations in the charging information. Jawara, 474 F.3d at 573. “If joinder was not proper but

offenses were consolidated in one trial, the convictions must be reversed unless the error is

harmless.” Bryant, 89 Wn. App. at 864.

       Washington’s joinder rule, CrR 4.3(a)15 provides:

       Two or more offenses may be joined in one charging document, with each offense
       stated in a separate count, when the offenses, whether felonies or misdemeanors or
       both:

               (1) Are of the same or similar character, even if not part of a single scheme
       or plan; or

              (2) Are based on the same conduct or on a series of acts connected together
       or constituting parts of a single scheme or plan.




15
   CrR 4.3(a) is analogous to Federal Rule of Criminal Procedure 8(a). See Wilson, 71 Wn. App.
at 884; Bryant, 89 Wn. App. at 866; accord State v. Weddel, 29 Wn. App. 461, 467, 629 P.2d 912
(1981). Rule 8(a) provides:

       Joinder of Offenses. The indictment or information may charge a defendant in
       separate counts with 2 or more offenses if the offenses charged—whether felonies
       or misdemeanors or both—are of the same or similar character, or are based on the
       same act or transaction, or are connected with or constitute parts of a common
       scheme or plan.


                                                7
No. 46030-1-II


        Courts have long struggled with determining whether offenses are the “same or similar

character” for purposes of joinder. Jawara, 474 F.3d at 575, 578. And “[n]umerous courts and

commentators have questioned the logic and fairness of such a rule.” Id. at 575. However,

        the bottom line is that the similar character of the joined offenses should be
        ascertainable—either readily apparent or reasonably inferred—from the face of the
        indictment. Courts should not have to engage in inferential gymnastics or resort to
        implausible levels of abstraction to divine similarity. Thus, where the government
        seeks joinder of counts on the basis of “same or similar character,” it crafts a
        barebones indictment at its own risk.

Id. at 578.

        Offenses constitute a single scheme or plan justifying joinder when the joined counts are

logically related or where the counts stem from related transactions. Id. at 574. This standard is

satisfied in cases with a “concrete connection between the offenses that goes beyond mere thematic

similarity.” Id.

        Here, the charging information does not demonstrate that the reckless endangerment and

false statements charges were “of the same or similar character” or stem from the same conduct

that constitute “parts of a single scheme or plan” as the drug related charges. FED. R. CRIM. P.

8(a); CrR 4.3(a)(2). Beyond Taylor’s name and the allegation that the offenses occurred in March,

the information contains no other details about the offenses from which to draw a connection or

similarity. Rather, the only connection or similarity between the offenses is that the State charged

Taylor with committing both offenses and discovered evidence of the drug related charges on

Taylor’s property in the course of investigating the reckless endangerment. Thus, because the

information contains no allegation or other information demonstrating that the drug related charges

were of the same or similar character, or the same conduct that is part of a single scheme or plan




                                                 8
No. 46030-1-II


as the charges of reckless endangerment and making a false statement, the offenses were

improperly joined.

       The State argued to the trial court that the charges were properly joined because the “search

warrant that was a result of the firearm allegation is directly what resulted in the discovery of drugs

that lead to the drug charges, so they are connected together.” VRP (Jan. 30, 2014) at 4. The State

also argued that “the investigation is critical, that is what joins these and makes them part of the

series of acts connected together.” VRP (Feb. 7, 2014) at 23. However, the standard for whether

offenses are properly joined is not whether the State discovered the separate evidence for the

separate offenses at the same time. The standard for whether offenses are properly joined is

whether the offenses are either (1) of the same or similar character, regardless of whether they

were part of a common plan, or (2) the same or similar conduct that is part of a common plan. CrR

4.3(a); see FED. R. CRIM. P. 8. The State did not allege or argue that, beyond the officer’s

accidental discovery of the drug evidence, that the offenses meet the standard set out in CrR

4.3(a).16 And because there is no indication that the drug related offenses were of the same or

similar character, or based on the same conduct that constitute a single scheme or plan as the

reckless endangerment and making a false statement charges, the offenses were improperly joined.




16
  Before the trial court and on appeal, the State asserts that the charges “represent the Res Gestae
of the investigation.” Br. of Resp’t at 8. Res gestae is a doctrine concerning the admissibility of
evidence at trial. See State v. Grier, 168 Wn. App. 635, 644, 278 P.3d 225 (2012), cert. denied,
135 S. Ct. 153 (2014). The State has offered no argument or authority to support its contention
that res gestae prevents the trial court from severing improperly joined offenses. And “[w]here no
authorities are cited in support of a proposition, the court is not required to search out authorities,
but may assume that counsel, after diligent search, has found none.” DeHeer v. Seattle Post-
Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962).


                                                  9
No. 46030-1-II


       Improperly joined offenses that are consolidated in one trial require reversal unless the

error was harmless. Bryant, 89 Wn. App. at 864; see Jawara, 474 F.3d at 580. Here, we cannot

conclude that the error was harmless. Officers testified that the firearms were seized pursuant to

the original warrant related to reckless endangerment. In arguing against severance, the State

argued that the offenses were properly joined because it added a firearm enhancement to counts V

and VI based on the firearms discovered related to counts I and II. VRP (Feb. 7, 2014) at 24

(“[W]e added a gun enhancement to counts five and six, so that actually even makes it more

connected up because now we have a piece of evidence that’s actually shared between both series

of charges.”) Joinder allowed the jury to consider the evidence of the weapons related to count I,

the reckless endangerment charge, in determining whether Taylor was armed during commission

of counts V and VI, the drug related charges. Similarly, the joinder allowed the jury to consider

the drug evidence in determining the reckless endangerment charge. In other words, the jury was

improperly permitted to cumulate evidence to find Taylor’s guilt or infer criminal disposition. See

State v. Russell, 125 Wn.2d 24, 62-63, 882 P.2d 747 (1994). Accordingly, erroneously allowing

improperly joined offenses to be consolidated in one trial was not harmless. Because the trial court

erred by allowing the improperly joined offenses to go to trial together, we reverse.

B.     SUFFICIENCY OF THE EVIDENCE

       Taylor argues that the State presented insufficient evidence that he possessed

pseudoephedrine with intent to manufacture methamphetamine (count V). We disagree.

       We review sufficiency of the evidence claims for whether, when viewing the evidence in

the light most favorable to the State, any rational trier of fact could have found the essential

elements of the charged crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201,



                                                10
No. 46030-1-II


829 P.2d 1068 (1992). A sufficiency challenge admits the truth of the State’s evidence and all

reasonable inferences drawn from it. Id. We defer to the fact finder on issues of conflicting

testimony, witness credibility, and persuasiveness of the evidence. State v. Ague-Masters, 138

Wn. App. 86, 102, 156 P.3d 265 (2007).

       To establish that Taylor possessed pseudoephedrine with intent to manufacture

methamphetamine, the State had to prove that he (1) possessed pseudoephedrine and (2) intended

to use the pseudoephedrine to manufacture methamphetamine. RCW 69.50.440; State v. Moles,

130 Wn. App. 461, 465, 123 P.3d 132 (2005), review denied, 157 Wn.2d 1019 (2006). Only the

second element is at issue here. “Manufacture” means “the production, preparation, propagation,

compounding, conversion, or processing of a controlled substance, either directly or indirectly.”

Former RCW 69.50.101(p) (LAWS OF 2010, ch. 177, § 1); State v. Davis, 117 Wn. App. 702, 708,

72 P.3d 1134 (2003), review denied, 151 Wn.2d 1007 (2004). A person acts with intent when he

acts with the objective or purpose to accomplish a result that constitutes a crime.          RCW

9A.08.010(1)(a).

       Washington courts have consistently held that mere possession of pseudoephedrine is not

enough to support a conviction for intent to manufacture; at least one additional factor suggestive

of the required intent must be present. Moles, 130 Wn. App. at 466. Evidence that the defendant

possessed an additional component of the manufacturing process is sufficient to establish an intent

to manufacture methamphetamine. See State v. Missieur, 140 Wn. App. 181, 187-88, 165 P.3d

381 (2007) (finding sufficient evidence of intent where the defendant possessed pseudoephedrine

and lithium batteries, both components of the manufacturing process); Moles, 130 Wn. App. at




                                                11
No. 46030-1-II


466 (finding sufficient evidence where the defendant possessed pseudoephedrine pills in addition

to a coffee filter with methamphetamine residue).

       Here, sufficient evidence supports the jury’s finding of possession with intent to

manufacture. In addition to evidence that Taylor possessed pseudoephedrine, the State presented

evidence that officers recovered substantial quantities of iodine and a funnel with traces of red

phosphorus on Taylor’s property. The State also presented evidence that both iodine and red

phosphorus are used in the manufacture of methamphetamine. This evidence of additional

components of the methamphetamine manufacturing process is sufficient to support the element

of intent. Accordingly, the State presented sufficient evidence and Taylor’s argument fails.

C.     CrR 3.5

       Taylor contends, and the State concedes, that the trial court failed to enter written findings

of fact and conclusions of law pursuant to CrR 3.5. Taylor does not otherwise challenge the

admissibility of his statements or the validity of the trial court’s oral ruling. While the trial court

did fail to enter written findings of fact and conclusions of law, we hold that this error was

harmless.

       Under CrR 3.5, the trial court must conduct an admissibility hearing before admitting a

defendant’s statement into evidence. CrR 3.5(c) requires the trial court to enter written findings

of fact and conclusions of law after a CrR 3.5 hearing. Failure to enter written findings and

conclusions after a CrR 3.5 hearing is error. State v. Elkins, 188 Wn. App. 386, 396, 353 P.3d 648,

review denied, 184 Wn.2d 1025 (2015). However, the failure to enter written findings and

conclusions following a CrR 3.5 hearing is harmless error if the trial court’s oral findings are

sufficient to enable appellate review. Id.



                                                  12
No. 46030-1-II


       In its oral ruling admitting Taylor’s statements, the trial court expressly found that (1)

Taylor was advised of his Miranda rights, (2) the officer’s testimony was credible, and (3) Taylor’s

statements were made knowingly, intelligently, freely and voluntarily given without a request for

counsel. These oral findings are sufficient to enable appellate review. Therefore, because the trial

court’s oral findings are sufficient to enable appellate review, the trial court’s failure to enter

written findings of fact and conclusions of law was harmless.17

D.     SAG

       Taylor asserts, “The Judge that heard my case was at one time a lawyer me and my wife

had used.” SAG at 1. It is unclear what the alleged error is, as required by RAP 10.10. However,

to the extent Taylor suggests that the trial court was prejudiced against him or had a conflict of

interest, that issue was never raised below and we will not address it for the first time on appeal.

RAP 2.5; Cowiche Canyon v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

       In conclusion, we hold that sufficient evidence supports the jury’s finding of possession

with intent to manufacture and the trial court’s failure to enter written findings and conclusions

after the CrR 3.5 hearing was harmless error. We also hold that the trial court abused its discretion

by denying Taylor’s motions to sever the reckless endangerment charges from the drug related

charges because the counts were improperly joined. Therefore, we reverse and remand for

proceedings consistent with this opinion.




17
  Because Taylor did not assign error to the trial court’s admission of his statements, we do not
address whether the trial court erred by admitting his statements.


                                                 13
No. 46030-1-II


       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 in accordance with RCW

2.06.040, it is so ordered.



                                                                       Lee, J.
 We concur:



                  Johanson, P.J.




                    Sutton, J.




                                               14
