State v. Naillieux

158 Wash. App. 630, 2010 WL 4643842
CourtCourt of Appeals of Washington
DecidedNovember 18, 2010
DocketNo. 28310-1-III
StatusPublished
Cited by26 cases

This text of 158 Wash. App. 630 (State v. Naillieux) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Naillieux, 158 Wash. App. 630, 2010 WL 4643842 (Wash. Ct. App. 2010).

Opinion

Sweeney, J.

¶1 We will review manifest constitutional error even if the appellant did not object or except in the trial court. However, the appellant must show error that is manifest in the record and constitutional in magnitude. Here, the appellant assigns error to the trial court’s failure to give a unanimity instruction and to the admission of opinions on whether a tank was approved by the Department of Transportation (DOT). We conclude that there was no manifest constitutional error; indeed, there was no error at all. We conclude that the State failed to properly allege the elements of eluding a police vehicle, and we reverse that conviction. Finally, the State agrees with the appellant’s objection to the court’s conditions of community custody related to alcohol (possession of alcohol and treatment). We accept that agreement. We, then, reverse in part and remand for resentencing.

FACTS

¶2 Michael Naillieux drove erratically on a rural road in Walla Walla County, Washington. April Garoutte was a passenger in the car. Deputy Sheriff Ian Edwards tried to stop him. Mr. Naillieux sped away to evade the deputy. The deputy gave chase. Ultimately, Mr. Naillieux jumped from the car and ran, and the car overturned with Ms. Garoutte still in it. The deputy drove to the scene of the rollover and saw Ms. Garoutte sitting by the driver’s window. She told the deputy that Mr. Naillieux had been driving but had fled on foot. She said there might be a methamphetamine laboratory in the trunk.

¶3 The deputy called for help. Detective Sergeant Gary Bolster responded. He has specialized training in clandestine laboratories. He searched the car’s trunk. And he found a meth lab. It included muriatic acid, Coleman fuel, lithium battery strips, crushed pseudoephedrine tablets, and an air tank of anhydrous ammonia — in short, all the ingredients necessary to make methamphetamine.

¶4 The sergeant later found and arrested Mr. Naillieux. The State charged him with eluding a pursuing police ve[636]*636hide, manufacturing methamphetamine, possessing methamphetamine paraphernalia, possessing pseudoephedrine with the intent to manufacture methamphetamine, and unlawfully storing anhydrous ammonia.

¶5 The case proceeded to jury trial. The State showed that:

• Mr. Naillieux bought muriatic acid from a landscape supply store in Walla Walla, Washington, on October 16 or 17. Report of Proceedings (RP) at 73-81.
• Around 3:30 p.m. on October 17, Mr. Naillieux picked up Ms. Garoutte at a convenience store in Walla Walla so they could “get high.” RP at 118-21.
• They drove to a friend’s house, then to a Walgreens drug store in Walla Walla where Mr. Naillieux bought lithium batteries. RP at 121-22.
• Around 5:00 p.m., the couple stopped at Pikes Peak, which is apparently in Oregon. RP at 123-24.
• Mr. Naillieux got out of the car and opened the trunk. RP at 123. Thirty minutes later, he asked Ms. Garoutte to wipe out some Mason jars. RP at 124-25.
• He took the jars to the open trunk after she had wiped them out. RP at 125.
• Mr. Naillieux set some methamphetamine on the car’s center console, and Ms. Garoutte snorted it. RP at 125-26.
• Mr. Naillieux then drove around for a long time looking for big tanks in fields. RP at 126-27, 129. He eventually parked the car on a gravel road and got high. RP at 129.
• Ms. Garoutte spotted Deputy Edwards’s police vehicle. RP at 130.
• Mr. Naillieux started the car and sped off. RP at 131.
• Shortly thereafter, Sergeant Bolster found the meth lab, including the air tank. He testified the tank was not “a DOT approved container for anhydrous ammonia.” RP at 168. No one objected to the testimony.

[637]*637¶6 The jury was instructed that it had to find Mr. Naillieux unlawfully manufactured methamphetamine in Walla Walla County to find him guilty of manufacturing methamphetamine. Mr. Naillieux did not request a unanimity instruction on the manufacturing charge. The jury was instructed that, to find Mr. Naillieux guilty of unlawful storage of anhydrous ammonia, it had to find Mr. Naillieux’s air tank either was not DOT-approved or did not meet certain health and safety standards for anhydrous ammonia. The jury found Mr. Naillieux guilty of all charges.

¶7 The sentencing court did not conclude that any of Mr. Naillieux’s current offenses encompassed the same criminal conduct. It calculated an offender score of 9+ for each current offense (except for the misdemeanor possession of drug paraphernalia). The court then ordered that Mr. Naillieux serve a concurrent sentence of 120 months for all offenses except for the eluding offense. For that offense, the court imposed a 29-month sentence that ran consecutively to the 120-month sentence after finding that a standard range sentence was too lenient. The court, thus, ordered an exceptional sentence of 149 months total. The judgment and sentence says Mr. Naillieux stipulated to the sentence. He did not. RP at 300-01. The court also imposed a term of community custody for the manufacture and possession with intent offenses. Conditions of community custody included a ban on alcohol and participation in “alcohol/ drug” treatment. Clerk’s Papers (CP) at 56.

DISCUSSION

Assignments op Error with Constitutional Implications

¶8 Mr. Naillieux makes a number of assignments of error here on appeal. They all have one thing in common. None of them was raised in the trial court by objection or exception. That means the trial judge had no opportunity to correct an error, assuming error. Nor did the State have an opportunity to address an objection, by either proposing instructions, asking witnesses additional questions, or any other [638]*638means capable lawyers use to address objections and exceptions in the trial court. And yet we are asked to reverse this jury verdict and send the case back for another trial.

¶9 Mr. Naillieux argues that we should review his assignments of error in the first instance because these errors are manifest constitutional errors. Appellant’s Br. at 12, 23. He, thus, essentially invites us to review his case de novo. See State v. Walters, 146 Wn. App. 138, 144, 188 P.3d 540 (2008) (“We review de novo claims of manifest constitutional error.”). The problems this argument presents are spelled out clearly by Judge Marshall Forrest in his thoughtful opinion in State v. Lynn, 67 Wn. App. 339, 342-46, 835 P.2d 251 (1992). And given the increasing frequency with which these assignments of error show up in this court, the problems bear repeating.

¶10 We sit as a court of review, which, of course, means that we do not preside over trial proceedings de novo. Our function is to review the validity of claimed errors by a trial judge who presided over a trial. That function assumes that counsel preserve the error by objecting to something the trial judge did or did not do. We do not, and should not, be in the business of retrying these cases. It is a wasteful use of judicial resources. Id. at 344; State v. Bashaw,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State Of Washington, V. Karl E. Redmond
Court of Appeals of Washington, 2025
State of Washington v. Ryan R. Bronowski
Court of Appeals of Washington, 2024
State Of Washington, V Jason D. Walker
Court of Appeals of Washington, 2023
State Of Washington v. Antoine Mills
Court of Appeals of Washington, 2021
State Of Washington, V James R. Vines
Court of Appeals of Washington, 2018
State Of Washington, V Wallace James Greenwood
Court of Appeals of Washington, 2018
State Of Washington v. Diana Joline Merritt
Court of Appeals of Washington, 2017
State Of Washington v. Israel Espinoza-reyes
Court of Appeals of Washington, 2017
State Of Washington v. Samuel Neguse Rezene
Court of Appeals of Washington, 2017
State of Washington v. Eric Allen Haggin
Court of Appeals of Washington, 2016
State of Washington v. Christian Kwaku Gyamfi
Court of Appeals of Washington, 2016
State Of Washington v. Jason Paul Joseph Hernandez
Court of Appeals of Washington, 2016
State Of Washington v. Adrian Munoz Rivera
361 P.3d 182 (Court of Appeals of Washington, 2015)
State of Washington v. Erik R. Carrasco
Court of Appeals of Washington, 2015
State v. Pittman
341 P.3d 1024 (Court of Appeals of Washington, 2015)
State Of Washington, V Leldon Roy Pittman
Court of Appeals of Washington, 2015
State of Washington v. Christopher Albert Stoker
Court of Appeals of Washington, 2014
State of Washington v. Adrian Bentura Ozuna
Court of Appeals of Washington, 2014
State Of Washington, V Timothy A. Hockley
Court of Appeals of Washington, 2014

Cite This Page — Counsel Stack

Bluebook (online)
158 Wash. App. 630, 2010 WL 4643842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-naillieux-washctapp-2010.