State v. Ceglowski

12 P.3d 160
Court of Appeals of Washington·Decided November 9, 2000·No. 24936-7-II·Published·Cited by 21 cases

Opinion

12 P.3d 160 (2000)
103 Wash.App. 346

STATE of Washington, Respondent,
v.
Michael Ray CEGLOWSKI, Appellant.

No. 24936-7-II.

Court of Appeals of Washington, Division 2.

November 9, 2000.

*161 James Kieran Morgan, Longview, for Appellant.

Edwin Nick Norton, Cowlitz Co. Dep. Pros. Atty., Kelso, for Respondent.

BRIDGEWATER, J.

Michael Ray Ceglowski appeals his criminal conviction for knowingly maintaining or keeping a "drug house" for purposes of selling or storing drugs. We hold that the "keeping" and "maintaining" elements of the drug house statute contemplate a continuing pattern of criminal behavior beyond an isolated incident of possession or sale at the house or business. Therefore, we reverse and dismiss the conviction with prejudice because there was insufficient evidence to support his conviction.

FACTS

A group of police officers, including members of various city and county drug task forces, executed a search warrant on a bait and tackle shop. Ceglowski was in the back office. The police found a rolled up bill of U.S. currency, a small tray with traces of brown powder, and a small baggie with brown powder in the office desk drawer. The police also found a marijuana pipe, about $600 in currency, and an additional baggie containing brown powder in the desk. The police later identified the powder as 0.9 grams of methamphetamine between both baggies, with a street value totaling between $70-$150. The drug-detecting police dog alerted for narcotic odor on the currency found in the desk and in the store's cash register.

The police also found a small scale in the back office. The office safe contained about ten pages of "[p]ay and owe sheets," consistent with the type kept to record drug transactions. The business license and fish and wildlife license named Ceglowski as the license holder and owner of the store. Ceglowski had money in his pockets later identified by the police as the same money used for a controlled buy minutes before they executed the warrant.

The State charged Ceglowski with four counts of violations of the Uniform Controlled Substances Act, RCW Chapter 69.50. Counts I charged unlawful possession of methamphetamine with intent to deliver. Counts II and III charged Ceglowski with possession of two other controlled substances. The State did not charge Ceglowski with the delivery of a controlled substance it claimed occurred that produced the "buy" money found in his pockets.

Count IV alleged that Ceglowski "did knowingly keep and/or maintain a store... which was used for keeping and/or selling controlled substances," in violation of RCW 69.50.402(a)(6) ("drug house statute"). Clerk's Papers at 2. The jury found Ceglowski guilty only of violation of the drug house statute. The State dismissed Count II during the trial, after Ceglowski testified that *162 the drugs referred to in Count II had been prescribed to him following throat surgery. The jury acquitted Ceglowski of the two remaining counts of unlawful possession with intent to deliver and unlawful possession.

Ceglowski moved for an arrest of judgment, arguing that an incorrect title of the crime in the verdict form meant the jury convicted him of maintaining a store used for "selling" controlled substances when there was not substantial evidence. The trial court denied the motion.

ANALYSIS

Ceglowski assigns error to the trial court's denial of his motion for arrest of judgment under CrR 7.4(a)(3). Criminal Rule 7.4 provides that a defendant may bring a motion for arrest of judgment for "insufficiency of the proof of a material element of the crime." CrR 7.4(a)(3). Review of a trial court decision denying a motion for arrest of judgment requires the appellate court to engage in the same inquiry as the trial court. State v. Longshore, 141 Wash.2d 414, 5 P.3d 1256 (2000). "The evidence presented in a criminal trial is legally sufficient to support a guilty verdict if any rational trier of fact, viewing the evidence in a light most favorable to the state, could find the essential elements of the charged crime beyond a reasonable doubt." Longshore, 141 Wash.2d at 420-21, 5 P.3d 1256 (citing State v. Bourne, 90 Wash.App. 963, 967-68, 954 P.2d 366 (1998)). See also State v. Delmarter, 94 Wash.2d 634, 637, 618 P.2d 99 (1980). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).

The jury convicted Ceglowski on Count IV of knowingly keeping or maintaining a "drug house" in violation of RCW 69.50.402 ("drug house statute"). RCW 69.50.402(a)(6) provides that it is unlawful for a person:

knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, 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.

Ceglowski now challenges the sufficiency of the evidence. Ceglowski argues that, as a matter of law, possession of a small amount of a controlled substance is not enough to convict under the statute. The correct inquiry, however, is whether the totality of the evidence is sufficient to prove all the required elements. See State v. Fernandez, 89 Wash.App. 292, 300, 948 P.2d 872 (1997). We hold that 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 in violation of the drug house statute.

Washington cases have not yet examined the issue of whether a single instance of sale or possession is sufficient to convict under our drug house statute. The requirement that the defendant "maintain" the premises, however, necessarily connotes a course of continuing conduct. Although "maintain" is not specifically defined under the drug house statute, "`[i]n the absence of a statutory definition of a word, we employ the plain and ordinary meaning of the word as found in a dictionary.'" State v. Batten, 95 Wash.App. 127, 129, 974 P.2d 879 (1999), aff'd, 140 Wash.2d 362, 997 P.2d 350 (2000) (citation omitted). Black's Law Dictionary defines "maintain" as "hold or preserve in any particular state or condition;" and "sustain" or "uphold." BLACK'S LAW DICTIONARY 953 (7th ed.1999). And the ordinary meaning of "maintain" encompasses this concept of continuing conduct: "to keep or keep up; continue in or with; carry on." WEBSTER'S NEW WORLD DICTIONAR

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State v. Ceglowski, 12 P.3d 160 (Wash. Ct. App. 2000).

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