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State v. Stone

February 24, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
TYRELL L. STONE, APPELLANT.



Appeal from Superior Court of Snohomish County. Docket No: 94-1-00443-8. Date filed: 01/26/95. Judge signing: Hon. Joseph Thibodeau.

Authored by Walter E. Webster. Concurring: Ann L. Ellington, Ronald E. Cox.

The opinion of the court was delivered by: Webster

WEBSTER, J. -- The State charged Stone with possession of testosterone enanthate, a steroid, with intent to deliver. He was convicted of possession of methandrostenolone, a different steroid. Although it was error to convict Stone of a crime for which he was not charged, he invited the error by agreeing to a bench trial on that crime on stipulated facts. Stone contends that evidence was inadmissible because the pills were not immediately recognizable as evidence and because he did not voluntarily give his consent to search. We disagree with both contentions. We also hold that the court did not err in refusing evidence of the officer's reckless disregard for the truth in an unrelated proceeding and that there is no error relating to the findings and Conclusions. Accordingly, we affirm.

FACTS

The police were called to investigate a domestic disturbance between Stone and his girlfriend. After interviewing the girlfriend, Officer Post determined that there was probable cause to arrest Stone for assault. Post also asked her if Stone was "still dealing steroids" and she said he was. Accompanied by several other officers, Post went to Stone's apartment to arrest him for the assault. Stone asked the officers to bring him his keys from the kitchen. Stone claims he told them they were clipped to the outside of his gym bag; the officers testified that he said they were inside the bag. While looking in the gym bag, Officer Rider saw white pills in punch-out packaging with Russian writing. The pills and packaging looked similar to steroids that Rider's high school powerlifting teammates had shown him. Believing the pills to be contraband, he took one pack with him to identify.

At the jail, Stone was advised of and waived his Miranda *fn1 rights. He denied that he sold steroids, but admitted that he had a small bottle of liquid steroids in his gym bag. He denied knowledge of the pills. Officer Rider asked for Stone's consent to search the apartment and told him that he would get a search warrant if he did not. Stone signed a written consent to search. The police returned to the apartment and seized the remainder of the steroids in the gym bag as well as paperwork describing drug transactions. They also cut open a lock on a toolbox that contained more steroids.

At the Conclusion of the 3.5 and 3.6 hearings, Judge Hulbert concluded that the initial seizure of the pills was appropriate under the plain view exception to the warrant requirement. He also determined that the search warrant threat did not invalidate the confession and consent to search. The court did find that the steroids in the toolbox were not admissible because the locked container was beyond the scope of the consent search.

Prior to impaneling a jury, the parties asked for an advisory opinion as to whether there was sufficient evidence to go to a jury on possession with intent to deliver. The dilemma was that all the State's evidence showing intent to deliver related to the steroid testosterone enanthate, the inadmissible drug found in the locked toolbox. Judge Thibodeau determined that the evidence showing intent was not relevant to methandrostenolone, the admissible pills found in the gym bag. The parties then agreed to proceed with a bench trial on stipulated facts on possession of methandrostenolone. But the State never amended the original information that charged possession of testosterone enanthate with intent to deliver. Based on the stipulated facts, the court found Stone guilty of the "lesser included" charge of possession of methandrostenolone.

Discussion

Conviction for Uncharged Offense

Stone contends that we must reverse his conviction because he was convicted of a crime for which he was not charged. Article 1, section 22

of the Washington State Constitution requires that "the accused shall have the right . . . to demand the nature and cause of the accusation against him . . . ." Accordingly, the State must inform the defendant of the charge and cannot try the defendant for an uncharged offense. State v. Pelkey, 109 Wash. 2d 484, 487, 745 P.2d 854 (1987). Lesser included offenses of the crime charged are an exception to this rule, however. Id. at 488.

A crime constitutes a lesser included offense of another crime when (1) each of the elements of the lesser offense is a necessary element of the offense charged, and (2) the evidence supports an inference that the lesser crime was committed. State v. Workman, 90 Wash. 2d 443, 447-48, 584 P.2d 382 (1978). Possession of one controlled substance is not an element of possession of a different drug with the intent to deliver. Thus, possession of methandrostenolone was not a lesser included offense of possession of testosterone enanthate with intent to deliver. It was error to convict Stone of an offense for which he was not charged.

Stone invited this error, however. Although the right to be convicted only of the crime charged is of constitutional magnitude, it can be waived by invited error. See State v. Miller, 168 Wash. 687, 689, 13 P.2d 52 (1932). A defendant waives the right to appeal an error when he materially ...


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