                                                                       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
No. 33944-1-111
State v. Menard


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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State v. Menard


       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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No. 33944-1-III
State v. Menard


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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State v. Menard


       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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State v. Menard


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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