Filed Washington State Court of Appeals Division Two
February 19, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 58461-1-II
Respondent,
v.
DAVID LE, UNPUBLISHED OPINION
Appellant.
GLASGOW, J.—After a search of four properties unveiled an extensive marijuana growing
and processing operation, the State charged multiple defendants, including David Le, with
unlawful manufacture of marijuana within 1,000 feet of a school bus route stop and unlawful
possession of marijuana with the intent to deliver. The State’s evidence included hundreds of
marijuana plants in various stages of growth, as well as processed marijuana in packages and tubs.
Le now appeals his convictions and argues that his convictions for both manufacture of marijuana
and possession with intent to deliver marijuana violated double jeopardy. We disagree and affirm.
FACTS
In November 2017, a community member notified the Thurston County Narcotics
Taskforce about a possible marijuana grow operation. In conducting surveillance, the taskforce
identified additional properties of concern. The electric company accounts for one property were
in David Le’s name. The taskforce discovered this property had exorbitant energy consumption,
far exceeding average residential costs. No. 58461-1-II
All of the properties the taskforce surveilled had a single-family residence and at least one
large outbuilding located on the grounds. While installing surveillance cameras near one of the
residences, a taskforce member could smell marijuana. The taskforce member also heard a
humming noise, which typically emanates from exhaust fans or lamps used for marijuana grow
operations.
When the taskforce searched the properties, it found hundreds of marijuana plants in
various stages of growth. The taskforce also found additional expensive equipment commonly
used for growing marijuana such as filters, lights, and ballasts. It also located evidence of
marijuana processing, which included tubs of drying marijuana buds, as well as multiple packages
of prepared marijuana.
The State charged Le with unlawful manufacture of a controlled substance—marijuana,
within 1,000 feet of a school bus route stop and unlawful possession of a controlled substance—
marijuana, with the intent to deliver. After the jury found Le guilty on both counts, he was
sentenced to 90 days in jail on each count, plus 6 months of community custody.
Le now appeals and argues his convictions under RCW 69.50.401 for manufacture of
marijuana and possession with intent to deliver marijuana violate double jeopardy.
ANALYSIS
I. DOUBLE JEOPARDY
Double jeopardy protects a defendant from receiving multiple punishments for the “‘same
offense.’” State v. Fuller, 185 Wn.2d 30, 34, 367 P.3d 1057 (2016) (quoting State v. Linton, 156
Wn.2d 777, 783, 132 P.3d 127 (2006) (plurality opinion). Even if the defendant did not raise the
2 No. 58461-1-II
issue of double jeopardy at sentencing, they may raise the issue for the first time on appeal. State
v. O'Connor, 87 Wn. App. 119, 123, 940 P.2d 675 (1997).
Double jeopardy involves a multipart analysis. State v. Villanueva-Gonzalez, 180 Wn.2d
975, 980, 329 P.3d 78 (2014). First, we look for clear legislative intent via express language in the
statute that permits multiple punishments. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155
(1995). Second, if we cannot find this clear legislative intent, we apply one of two tests, depending
on the nature of the convictions. In re Pers. Restraint of Davis, 142 Wn.2d 165, 172, 12 P.3d 603
(2000). If there are multiple convictions for violating “‘several statutory provisions,’” we apply
the same evidence test. Id. (quoting State v. Adel, 136 Wn.2d 629, 633, 965 P.2d 1072 (1998)). If
the defendant is convicted multiple times for violating a single statutory provision, we apply the
unit of prosecution test. Id. Finally, the results of the same evidence test can be overcome but only
by “clear evidence of [a] contrary [legislative] intent.” Calle, 125 Wn.2d at 780.
A. The Same Evidence Test is Appropriate Here
RCW 69.50.401(1) provides that except as authorized by law, “it is unlawful for any person
to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.”
Le contends that because the prohibitions against manufacturing a controlled substance and
possessing a controlled substance with the intent to deliver both appear in the same statutory
subsection, we should apply the unit of prosecution test and conclude that convictions for both of
these crimes violate double jeopardy where Le engaged in only a single course of conduct. But the
Washington Supreme Court has instead applied the same evidence test to this pair of crimes.
In State v. Maxfield, 125 Wn.2d 378, 401, 886 P.2d 123 (1994), the Washington Supreme
Court was faced with the same issue presented here: whether Maxfield’s two convictions under
3 No. 58461-1-II
RCW 69.50.401 for manufacture of a controlled substance (marijuana) and possession with intent
to deliver a controlled substance (marijuana) violated double jeopardy. A Clallam County Public
Utility District employee suspected and reported the grow operation in Maxfield because of the
residence’s high energy consumption. Id. at 382. At the residence, a private investigator who was
asked to assist the investigation alongside the Clallam County Drug Task Force smelled marijuana
and observed mildew, an air filtration device, and potting soil. Id. at 383. When the task force
searched the property, it located 5,200 grams of growing marijuana, as well as packaged marijuana.
Id. at 399.
The Maxfield court applied the same evidence test, not the unit of prosecution test, to the
exact crimes at issue in this case. Id. at 400. In its analysis, the court considered that the
manufacturing required proof of “planting, cultivation, growing, or harvesting,” while possession
with intent to deliver required proof of the intent to deliver. Id. at 401. The court found each of
these offenses included an element not included by the other, so the offenses were different in law.
Id.
Le argues that these two crimes are actually alternative means of violating the same statute,
RCW 69.50.401, and thus, we should apply the unit of prosecution test. But the Washington
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Filed Washington State Court of Appeals Division Two
February 19, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 58461-1-II
Respondent,
v.
DAVID LE, UNPUBLISHED OPINION
Appellant.
GLASGOW, J.—After a search of four properties unveiled an extensive marijuana growing
and processing operation, the State charged multiple defendants, including David Le, with
unlawful manufacture of marijuana within 1,000 feet of a school bus route stop and unlawful
possession of marijuana with the intent to deliver. The State’s evidence included hundreds of
marijuana plants in various stages of growth, as well as processed marijuana in packages and tubs.
Le now appeals his convictions and argues that his convictions for both manufacture of marijuana
and possession with intent to deliver marijuana violated double jeopardy. We disagree and affirm.
FACTS
In November 2017, a community member notified the Thurston County Narcotics
Taskforce about a possible marijuana grow operation. In conducting surveillance, the taskforce
identified additional properties of concern. The electric company accounts for one property were
in David Le’s name. The taskforce discovered this property had exorbitant energy consumption,
far exceeding average residential costs. No. 58461-1-II
All of the properties the taskforce surveilled had a single-family residence and at least one
large outbuilding located on the grounds. While installing surveillance cameras near one of the
residences, a taskforce member could smell marijuana. The taskforce member also heard a
humming noise, which typically emanates from exhaust fans or lamps used for marijuana grow
operations.
When the taskforce searched the properties, it found hundreds of marijuana plants in
various stages of growth. The taskforce also found additional expensive equipment commonly
used for growing marijuana such as filters, lights, and ballasts. It also located evidence of
marijuana processing, which included tubs of drying marijuana buds, as well as multiple packages
of prepared marijuana.
The State charged Le with unlawful manufacture of a controlled substance—marijuana,
within 1,000 feet of a school bus route stop and unlawful possession of a controlled substance—
marijuana, with the intent to deliver. After the jury found Le guilty on both counts, he was
sentenced to 90 days in jail on each count, plus 6 months of community custody.
Le now appeals and argues his convictions under RCW 69.50.401 for manufacture of
marijuana and possession with intent to deliver marijuana violate double jeopardy.
ANALYSIS
I. DOUBLE JEOPARDY
Double jeopardy protects a defendant from receiving multiple punishments for the “‘same
offense.’” State v. Fuller, 185 Wn.2d 30, 34, 367 P.3d 1057 (2016) (quoting State v. Linton, 156
Wn.2d 777, 783, 132 P.3d 127 (2006) (plurality opinion). Even if the defendant did not raise the
2 No. 58461-1-II
issue of double jeopardy at sentencing, they may raise the issue for the first time on appeal. State
v. O'Connor, 87 Wn. App. 119, 123, 940 P.2d 675 (1997).
Double jeopardy involves a multipart analysis. State v. Villanueva-Gonzalez, 180 Wn.2d
975, 980, 329 P.3d 78 (2014). First, we look for clear legislative intent via express language in the
statute that permits multiple punishments. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155
(1995). Second, if we cannot find this clear legislative intent, we apply one of two tests, depending
on the nature of the convictions. In re Pers. Restraint of Davis, 142 Wn.2d 165, 172, 12 P.3d 603
(2000). If there are multiple convictions for violating “‘several statutory provisions,’” we apply
the same evidence test. Id. (quoting State v. Adel, 136 Wn.2d 629, 633, 965 P.2d 1072 (1998)). If
the defendant is convicted multiple times for violating a single statutory provision, we apply the
unit of prosecution test. Id. Finally, the results of the same evidence test can be overcome but only
by “clear evidence of [a] contrary [legislative] intent.” Calle, 125 Wn.2d at 780.
A. The Same Evidence Test is Appropriate Here
RCW 69.50.401(1) provides that except as authorized by law, “it is unlawful for any person
to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.”
Le contends that because the prohibitions against manufacturing a controlled substance and
possessing a controlled substance with the intent to deliver both appear in the same statutory
subsection, we should apply the unit of prosecution test and conclude that convictions for both of
these crimes violate double jeopardy where Le engaged in only a single course of conduct. But the
Washington Supreme Court has instead applied the same evidence test to this pair of crimes.
In State v. Maxfield, 125 Wn.2d 378, 401, 886 P.2d 123 (1994), the Washington Supreme
Court was faced with the same issue presented here: whether Maxfield’s two convictions under
3 No. 58461-1-II
RCW 69.50.401 for manufacture of a controlled substance (marijuana) and possession with intent
to deliver a controlled substance (marijuana) violated double jeopardy. A Clallam County Public
Utility District employee suspected and reported the grow operation in Maxfield because of the
residence’s high energy consumption. Id. at 382. At the residence, a private investigator who was
asked to assist the investigation alongside the Clallam County Drug Task Force smelled marijuana
and observed mildew, an air filtration device, and potting soil. Id. at 383. When the task force
searched the property, it located 5,200 grams of growing marijuana, as well as packaged marijuana.
Id. at 399.
The Maxfield court applied the same evidence test, not the unit of prosecution test, to the
exact crimes at issue in this case. Id. at 400. In its analysis, the court considered that the
manufacturing required proof of “planting, cultivation, growing, or harvesting,” while possession
with intent to deliver required proof of the intent to deliver. Id. at 401. The court found each of
these offenses included an element not included by the other, so the offenses were different in law.
Id.
Le argues that these two crimes are actually alternative means of violating the same statute,
RCW 69.50.401, and thus, we should apply the unit of prosecution test. But the Washington
Supreme Court did not do so in Maxfield, even though the crimes were part of the same statutory
section, and we are bound by that decision.
Further, under Maxfield’s application of the same evidence test, convictions for
manufacture of marijuana and possession of marijuana with the intent to deliver do not violate
double jeopardy. Possession of a controlled substance with intent to deliver requires proof of intent
to deliver while manufacture of a controlled substance requires proof of “the production,
4 No. 58461-1-II
preparation, propagation, compounding, conversion, or processing of a controlled substance.”
RCW 69.50.101(32)1. Each of these offenses has an element not included by the other, making
them different in law. Maxfield, 125 Wn.2d at 401. Further, like in Maxfield, the presence of plants,
operation equipment, and energy bills supported the manufacture count in this case, but this
evidence of a grow operation does not necessarily prove an intent to deliver. Id. at 400. Instead,
the processed and packaged marijuana was evidence of intent to deliver. Id. at 403. The offenses
are different in both law and fact, so Le’s convictions for each are not barred by double jeopardy
under the same evidence test.
Le does not contend any other elements of the double jeopardy analysis render Le’s
convictions invalid on double jeopardy grounds. Therefore, we conclude that Le’s convictions do
not violate double jeopardy.
CONCLUSION
We affirm.
1 We cite the current version of the statute as the relevant language has not changed.
5 No. 58461-1-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.
GLASGOW, J. We concur:
LEE, J.
CRUSER, C.J.