State Of Washington v. Lendin Saiti ( 2017 )


Menu:
  •                                                                                                 Filed
    Washington State
    Court of Appeals
    Division Two
    November 14, 2017
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION II
    STATE OF WASHINGTON,                                                 No. 49178-8-II
    Respondent,
    v.
    LENDIN SAITI,                                                 UNPUBLISHED OPINION
    Appellant.
    MELNICK, J. — Lendin Saiti appeals his convictions and sentence for unlawful possession
    of a controlled substance (PCS), theft of a motor vehicle with two aggravating circumstances
    (position of trust and invasion of privacy), unlawful possession of a firearm in the first degree, and
    use of drug paraphernalia.
    We conclude that sufficient evidence supports each conviction, no right to confrontation
    violation occurred, and the trial court properly calculated the offender score and sentenced Saiti
    on all charges.    We do not consider whether sufficient evidence supports the aggravating
    circumstances. We affirm.
    FACTS
    Patty Lopez initially met Saiti through Facebook. At the time, Saiti lived in California.
    They began a romantic relationship in July 2015. Saiti moved to Washington and lived with Lopez
    “[o]ff and on.” Report of Proceedings (RP) (May 24, 2016) at 48. Saiti did not have his own car;
    Lopez often allowed him to use her car.
    49178-8-II
    During their relationship, Lopez purchased a firearm and showed it to Saiti. In Saiti’s
    presence, she put the gun in her purse. She kept it there at all times, but would move the gun from
    purse to purse when changing purses.
    Lopez lived above the restaurant where she worked. Saiti often came into the restaurant
    throughout the day.
    On December 20, as Lopez was getting ready for work, Saiti asked Lopez for money.
    Lopez refused to give him money because she did not want him to buy drugs. Previously, Lopez
    had given Saiti money for drugs.
    Lopez exited her apartment and went to work. Lopez took her purse and put it in the
    kitchen. The kitchen was restricted to employees only. Her purse contained her car keys, cash,
    and her gun, among other items.
    Amy Leback, Lopez’s coworker, knew Saiti was Lopez’s boyfriend. Leback saw Saiti
    come into the restaurant. Saiti went into the kitchen and again asked Lopez for money. She again
    refused. Saiti left, looking frustrated and mad.
    Leback left the kitchen and saw Saiti quickly leaving the restaurant out the back door. He
    had Lopez’s purse. Lopez walked down the hall and saw her car leaving the parking lot. Lopez
    ran back to the kitchen to check on her purse, but found it missing. Lopez yelled to Leback to call
    the police because Saiti drove off in her car with her purse.1 Leback called the police.
    1
    Lopez later testified that Saiti did not ask Lopez for permission to use the car, but if he had, she
    stated that she would have allowed him to borrow the car. However, she did not give him
    permission to take the car.
    2
    49178-8-II
    Pacific County Sheriff’s Deputy Samuel Schouten saw Lopez’s car at an RV park.
    Schouten saw Saiti walk away from the car and enter a trailer. The police went to the trailer and
    arrested Saiti after he exited it.
    Long Beach Police Officer Rodney Nawn searched Saiti and the vehicle after his arrest.
    Nawn discovered a rubber container containing heroin in Saiti’s pocket. The police found Lopez’s
    purse with the gun inside on the front seat of her car. The police did not recover the money.
    The State charged Saiti with possession of heroin with a deadly weapon, theft of a motor
    vehicle, theft of a firearm, unlawful possession of a firearm in the first degree, and possession/use
    of drug paraphernalia.2 The theft charges each had two aggravating factors charged: that Saiti used
    his position of trust, confidence, or fiduciary responsibility to facilitate the commission of the
    offense, and that the offense involved an invasion of Lopez’s privacy.3
    Before trial, the State filed a motion to depose Lopez who refused to return phone calls or
    make herself available for an interview. The trial court granted the motion. After Lopez failed to
    appear for her deposition, the State moved for a material witness warrant and the court issued one.
    Lopez appeared at trial. After some questions, the State informed the court that Lopez was
    not testifying as she had during her interview the previous day. The trial court had a colloquy with
    Lopez and discussed the meaning of perjury with her.
    The State asked to treat Lopez as a hostile witness. The State stated that “the statements
    she’s saying today are sworn under penalty of perjury. If there were untruthful statements, that
    2
    RCW 69.50.4013; RCW 9A.56.065; RCW 9A.56.020(1)(a); RCW 9A.56.300; RCW
    9.41.040(1)(a); RCW 69.50.412(1).
    3
    RCW 9.94A.535(3)(n) & (p).
    3
    49178-8-II
    would be grounds for perjury. To prove whether or not it’s perjury, we have several statements.”
    RP (May 24, 2016) at 55.
    Saiti responded that Lopez’s failure to remember did not amount to hostility. Saiti said
    that Lopez has “just been told that if you don’t start responding the way you did yesterday, then,
    you know, we’re going to charge you with [perjury].” RP (May 24, 2016) at 58. The trial court
    denied the motion and reiterated that Lopez needed to testify truthfully.
    Saiti sought to elicit testimony about Lopez’s material witness warrant. He argued that the
    evidence was relevant to bias, prejudice, and credibility. The trial court denied the motion.
    The jury found Saiti guilty of all charges except theft of a firearm.4 By special verdict, the
    jury found both aggravating factors on the theft of a motor vehicle charge.
    The trial court sentenced Saiti to a total of 67 months of confinement and 12 months of
    community custody. In calculating Saiti’s offender score, the trial court included one point for an
    attempted grand theft conviction from California.5 After reviewing documentation the State
    provided, the court found that the conviction was comparable to a Washington felony, to-wit
    attempted theft in the first degree. Saiti appeals.
    ANALYSIS
    I.        SUFFICIENT EVIDENCE
    Saiti argues insufficient evidence supports his convictions for unlawful possession, theft of
    a motor vehicle, and the two aggravating circumstances. He argues that the State failed to prove
    4
    On the possession of heroin charge, the jury did not find that Saiti was armed with a deadly
    weapon.
    5
    Cal. Penal Code §§ 487(c) & 664.
    4
    49178-8-II
    that he knew Lopez’s purse contained her gun. Saiti also argues insufficient evidence showed that
    he intended to deprive Lopez of her car.
    We conclude that sufficient evidence supports Saiti’s convictions. We do not consider
    whether sufficient evidence supports the two aggravating circumstances.
    A.       STANDARD OF REVIEW
    To determine whether sufficient evidence supports a conviction, we view the evidence in
    the light most favorable to the State and determine whether any rational fact finder could have
    found the elements of the crime beyond a reasonable doubt. State v. Engel, 
    166 Wash. 2d 572
    , 576,
    
    210 P.3d 1007
    (2009). “‘Substantial evidence’ is evidence sufficient to persuade a fair-minded
    person of the truth of the asserted premise.” State v. Homan, 
    181 Wash. 2d 102
    , 106, 
    330 P.3d 182
    (2014). Circumstantial evidence is equally as reliable as direct evidence. State v. Kintz, 
    169 Wash. 2d 537
    , 551, 
    238 P.3d 470
    (2010).
    In claiming insufficient evidence, “the defendant necessarily admits the truth of the State’s
    evidence and all reasonable inferences that can be drawn from it.” State v. Drum, 
    168 Wash. 2d 23
    ,
    35, 
    225 P.3d 237
    (2010). Any inferences “‘must be drawn in favor of the State and interpreted
    most strongly against the defendant.’” 
    Homan, 181 Wash. 2d at 106
    (quoting State v. Salinas, 
    119 Wash. 2d 192
    , 201, 
    829 P.2d 1068
    (1992)). In addition, we “must defer to the trier of fact for purposes
    of resolving conflicting testimony and evaluating the persuasiveness of the evidence.” 
    Homan, 181 Wash. 2d at 106
    .
    B.       UNLAWFUL POSSESSION OF A FIREARM
    A person “is guilty of the crime of unlawful possession of a firearm in the first degree, if
    the person owns, has in his or her possession, or has in his or her control any firearm after having
    previously been convicted . . . of any serious offense as defined in this chapter.”           RCW
    5
    49178-8-II
    9.41.040(1)(a).   The State must prove that the defendant knowingly owned, possessed, or
    controlled the firearm. State v. Williams, 
    158 Wash. 2d 904
    , 909, 
    148 P.3d 993
    (2006).
    Saiti stipulated at trial that he had previously been convicted of a serious offense. He
    argues that insufficient evidence exists to show he knowingly possessed or controlled a firearm.
    Actual possession occurs when a defendant has physical custody of the item, and
    constructive possession occurs if the defendant has dominion and control over the item. State v.
    Jones, 
    146 Wash. 2d 328
    , 333, 
    45 P.3d 1062
    (2002). Constructive possession is established when
    “the defendant was in dominion and control of either the drugs or the premises on which the drugs
    were found.” State v. Callahan, 
    77 Wash. 2d 27
    , 30-31, 
    459 P.2d 400
    (1969). To determine whether
    a defendant had constructive possession of a firearm, we examine the totality of the circumstances
    touching on dominion and control. State v. Jeffrey, 
    77 Wash. App. 222
    , 227, 
    889 P.2d 956
    (1995).
    “A person knows or acts knowingly or with knowledge when: (i) he or she is aware of a
    fact, facts, or circumstances or result described by a statute defining an offense.”           RCW
    9A.08.010(1)(b)(i). As the jury instructions in this case explain, “[i]f a person has information
    that would lead a reasonable person in the same situation to believe that a fact exists, the jury is
    permitted but not required to find that he or she acted with knowledge of that fact.” CP at 99 (Instr.
    27).
    The evidence shows that Lopez showed Saiti her gun when she purchased it. She placed
    the gun in her purse in Saiti’s presence. Lopez always kept the gun in her purse. She moved the
    gun into different purses when changing them. Saiti took the same purse he had originally seen
    Lopez place the gun into. He placed the purse on the front seat and drove away in her car. The
    gun was easily accessible. A reasonable juror could find beyond a reasonable doubt that Saiti had
    knowledge of the gun’s presence and that he knowingly possessed it.
    6
    49178-8-II
    Saiti analogizes his case to State v. Davis, 
    176 Wash. App. 849
    , 
    315 P.3d 1105
    (2013) rev’d
    on other grounds by 
    182 Wash. 2d 222
    , 
    340 P.3d 820
    (2014). However, the issue in Davis involved
    whether the defendant had dominion and control over the car in which the gun was 
    present. 176 Wash. App. at 868
    . The defendant did not argue he lacked knowledge about the gun’s presence.
    Therefore, we conclude that sufficient evidence supports Saiti’s conviction of unlawful
    possession of a firearm.
    C.      THEFT OF A MOTOR VEHICLE
    Saiti argues that the State failed to present evidence that he intended to deprive Lopez of
    her car. In addition, Saiti argues that the State failed to prove that he exerted unauthorized control
    over the vehicle.
    The State had to prove that Saiti wrongfully obtained or exerted unauthorized control over
    another’s motor vehicle, and that he intended to deprive that person of the motor vehicle. RCW
    9A.56.020(1)(a); RCW 9A.56.065(1). The jury instructions explained that “[t]heft means to
    wrongfully obtain or exert unauthorized control over the property or services of another, or the
    value thereof, with intent to deprive that person of such property or services.” CP at 85 (Instr. 13)
    and that “[a] person acts with intent or intentionally when acting with the objective or purpose to
    accomplish a result that constitutes a crime.” CP at 110 (Instr. 35).
    “[T]he specific criminal intent of the accused may be inferred from the conduct where it is
    plainly indicated as a matter of logical probability.” State v. Delmarter, 
    94 Wash. 2d 634
    , 638, 
    618 P.2d 99
    (1980). Moreover, when analyzing intent in a theft case, intent to permanently deprive is
    not required. State v. Crittenden, 
    146 Wash. App. 361
    , 369-70, 
    189 P.3d 849
    (2008). A person who
    exceeds the permissive authority to use a vehicle wrongfully obtains that vehicle and may be
    convicted of theft. State v. Clark, 
    96 Wash. 2d 686
    , 691, 
    638 P.2d 572
    (1982).
    7
    49178-8-II
    Here, Saiti took Lopez’s purse and car keys, and drove off in her vehicle. There is no
    evidence that he had permission to use the vehicle on the date in question, regardless of the fact
    that he regularly used Lopez’s vehicle without asking permission. Lopez called law enforcement
    because she wanted her car back. This evidence, along with Lopez telling Leback to call the police,
    demonstrated that even if Saiti had permission to use her vehicle on some occasions, a rational
    jury could conclude that he exceeded the scope of that permission when he took her vehicle after
    Lopez refused to give him money. Thus, sufficient evidence supports Saiti’s conviction for theft
    of a motor vehicle.
    D.      AGGRAVATING CIRCUMSTANCES
    This issue is moot because the trial court did not impose an exceptional sentence based on
    the aggravating factors. Accordingly, we do not consider the issue further.
    “As a general rule, we do not consider questions that are moot.” State v. Hunley, 
    175 Wash. 2d 901
    , 907, 
    287 P.3d 584
    (2012). “A case is technically moot if the court can no longer
    provide effective relief.” 
    Hunley, 175 Wash. 2d at 907
    . However, we will review an appeal if the
    sentence has collateral effects. State v. Rinaldo, 
    98 Wash. 2d 419
    , 422, 
    655 P.2d 1141
    (1982).
    Because the trial court did not impose an exceptional sentence, the jury’s special verdict
    on the aggravating circumstances is moot.
    II.    CONFRONTATION CLAUSE VIOLATION
    Saiti argues that the trial court violated his confrontation clause right when it denied Saiti’s
    motion to introduce evidence of Lopez’s material witness warrant because it was relevant for the
    jury’s credibility assessment of Lopez. Because the court did not err in excluding the evidence,
    we disagree.
    8
    49178-8-II
    A.      LEGAL PRINCIPLES
    The United States Constitution and the Washington State Constitution guarantee criminal
    defendants the right to confront and cross-examine witnesses. U.S. CONST. amend. VI; WASH.
    CONST. art. 1, § 22. “The purpose is to test the perception, memory, and credibility of witnesses.”
    State v. Darden, 
    145 Wash. 2d 612
    , 620, 
    41 P.3d 1189
    (2002). Accordingly, the right to confrontation
    must be zealously guarded. 
    Darden, 145 Wash. 2d at 620
    .
    Yet, the right is not absolute. 
    Darden, 145 Wash. 2d at 621
    . “Courts may, within their sound
    discretion, deny cross-examination if the evidence sought is vague, argumentative, or speculative.”
    
    Darden, 145 Wash. 2d at 620
    -21. “The confrontation right and associated cross-examination are
    limited by general considerations of relevance.” 
    Darden, 145 Wash. 2d at 621
    .
    We review a trial court’s ruling limiting cross-examination for a manifest abuse of
    discretion. State v. Lile, 
    188 Wash. 2d 766
    , 782, 
    398 P.3d 1052
    (2017); 
    Darden, 145 Wash. 2d at 619
    .
    A trial court has broad discretion regarding the admission or exclusion of evidence, and the trial
    court's decision will not be reversed absent a manifest abuse of discretion. State v. Swan, 
    114 Wash. 2d 613
    , 658, 
    790 P.2d 610
    (1990). A manifest abuse of discretion arises when “the trial court’s
    exercise of discretion is ‘manifestly unreasonable or based upon untenable grounds or reasons.’”
    
    Darden, 145 Wash. 2d at 619
    (quoting State v. Powell, 
    126 Wash. 2d 244
    , 258, 
    893 P.2d 615
    (1995)).
    B.      THE TRIAL COURT DID NOT ERR
    Saiti moved to introduce evidence of the material witness warrant because, he argues, it
    showed Lopez’s bias, prejudice, or credibility as a witness. It would demonstrate that pressure
    from the State caused her to testify as she did.
    Evidence is relevant if it has any tendency to make a disputed material fact more or less
    probable than it would be without the evidence. ER 401. Only minimal logical relevancy is
    9
    49178-8-II
    required. State v. Bebb, 
    44 Wash. App. 803
    , 814, 
    723 P.2d 512
    (1986), aff’d, 
    108 Wash. 2d 515
    , 
    740 P.2d 829
    (1987). The trial court may exclude relevant evidence if the danger of unfair prejudice
    substantially outweighs its probative value. ER 403. The trial court has considerable discretion
    to consider what evidence is relevant and to balance its possible prejudicial impact against its
    probative value. State v. Barry, 
    184 Wash. App. 790
    , 801, 
    339 P.3d 200
    (2014).
    Here, the evidence of Lopez’s material witness warrant was not relevant. As the trial court
    stated, Lopez did not testify that she felt pressured to testify in the way that she did. The court did
    not abuse its discretion by ruling that the necessity of a warrant to insure Lopez came to court was
    irrelevant to any disputed fact. Accordingly, we conclude that the trial court did not err by
    excluding the evidence of the material witness warrant and it did not violate Saiti’s confrontation
    right.
    III.     COMPARABILITY OF FOREIGN OFFENSE
    Saiti argues that the trial court erred by concluding his California conviction for attempted
    grand theft was comparable to the Washington crime of attempted theft in the first degree. He
    argues that it is more appropriately comparable to theft in the third degree because his sentence
    reflected that of a misdemeanor and the restitution fee imposed indicated that the value of the
    attempted theft did not exceed $700, as required by Washington’s theft in the third degree statute.
    Saiti also argues that, because his California conviction is not defined as a felony or a
    misdemeanor, and gross misdemeanors do not exist in California, the rule of lenity should apply.
    We disagree with Saiti.
    10
    49178-8-II
    A.      LEGAL PRINCIPLES
    We conduct de novo review of a sentencing court’s decision to count a prior conviction as
    criminal history. State v. Moeurn, 
    170 Wash. 2d 169
    , 172, 
    240 P.3d 1158
    (2010).
    There is a two-part test to determine the comparability of a foreign offense. State v.
    Thiefault, 
    160 Wash. 2d 409
    , 415, 
    158 P.3d 580
    (2007). We must first determine whether the foreign
    offense is legally comparable, or “whether the elements of the foreign offense are substantially
    similar to the elements of the Washington offense.” 
    Thiefault, 160 Wash. 2d at 415
    . “If the elements
    of the foreign offense are broader than the Washington counterpart, the sentencing court must then
    determine whether the offense is factually comparable—that is, whether the conduct underlying
    the foreign offense would have violated the comparable Washington statute.” 
    Thiefault, 160 Wash. 2d at 415
    . “In making its factual comparison, the sentencing court may rely on facts in the
    foreign record that are admitted, stipulated to, or proved beyond a reasonable doubt.” 
    Thiefault, 160 Wash. 2d at 415
    . If the court determines that the “prior, foreign conviction is neither legally nor
    factually comparable, it may not count the conviction.” 
    Thiefault, 160 Wash. 2d at 415
    .
    Statutory interpretation is a question of law that we review de novo. State v. Watson, 
    146 Wash. 2d 947
    , 954, 
    51 P.3d 66
    (2002). “In interpreting statutory provisions, the primary objective is
    to ascertain and give effect to the intent and purpose of the Legislature in creating the statute.”
    
    Watson, 146 Wash. 2d at 954
    . “The court discerns legislative intent from the plain language enacted
    by the legislature, considering the text of the provision in question, the context of the statute in
    which the provision is found, related provisions, amendments to the provision, and the statutory
    scheme as a whole.” Fast v. Kennewick Pub. Hosp. Dist., 
    187 Wash. 2d 27
    , 33, 
    384 P.3d 232
    (2016).
    11
    49178-8-II
    B.      THE TRIAL COURT CORRECTLY DETERMINED CRIMINAL HISTORY
    First, we must determine whether the statutes at issue are legally comparable. 
    Thiefault, 160 Wash. 2d at 415
    .
    Saiti’s conviction for attempted grand theft is based upon a violation of California Penal
    Code §§ 664 and §487(c). The former is California’s attempt statute. Cal. Penal Code § 664
    (2006). The latter provides, “[g]rand theft is theft committed in any of the following cases: . . .
    When the property is taken from the person of another.” Cal. Penal Code § 487(c) (2009).
    Washington’s statute for theft in the first degree states, “(1) [A] person is guilty of theft in
    the first degree if he or she commits theft of: . . . Property of any value, other than a firearm as
    defined in RCW 9.41.010 or a motor vehicle, taken from the person of another.”                  RCW
    9A.56.030(1)(b).
    Both statutes contain unambiguous language and criminalize theft of property from the
    person of another. Cal. Penal Code § 487(c) (2009); RCW 9A.56.030(1)(b). Although the lesser
    degrees of theft and other prongs of theft in the first degree in Washington have monetary
    requirements as elements, RCW 9A.56.030(1)(b) does not.               See RCW 9A.56.040; RCW
    9A.56.050. The plain language of grand theft and theft in the first degree are the same. Cal. Penal
    Code § 487(c) (2009); RCW 9A.56.030(1)(b). Accordingly, we conclude that the statutes are
    legally comparable.
    We next consider whether the crime committed in California is factually comparable to a
    felony crime in Washington. “Factual comparability requires the sentencing court to determine
    whether the defendant’s conduct, as evidenced by the indictment or information, or the records of
    the foreign conviction, would have violated the comparable Washington statute.”               State v.
    12
    49178-8-II
    Farnsworth, 
    133 Wash. App. 1
    , 18, 
    130 P.3d 389
    (2006) remanded, 
    159 Wash. 2d 1004
    , 
    151 P.3d 976
    (2007) (internal citations omitted).
    The record does not contain any clear facts to allow for a full factual comparability analysis.
    The record only contains the judgment and sentence. The record does not contain the charging
    document. The judgment includes a restitution amount of $200. Saiti argues that because the
    restitution amount in the judgment was $200, it must be a misdemeanor. However, the judgment
    is also clear that Saiti was charged under California Penal Code § 487(c) (2009), which involves
    the theft of property of any value from a person, similar to RCW 9A.56.030(1)(b).
    One prong of Washington’s theft in the first degree statute similarly does not have a
    monetary requirement. RCW 9A.56.030(1)(b). Therefore, if Saiti committed grand theft as
    proscribed by the California statute, the facts required by the statute (that he took property from
    another person) would have also violated Washington’s theft in the first degree statute.
    Therefore, the trial court did not err by including Saiti’s California conviction as criminal
    history.
    IV.    CONCURRENT STATUTES
    Saiti argues that his conviction of unlawful possession of heroin and unlawful use of drug
    paraphernalia are concurrent crimes and the trial court should have dismissed the possession of a
    controlled substance charge. He argues that because the object in question was a legal object and
    became drug paraphernalia only because of the presence of a controlled substance, the statutes are
    necessarily concurrent. We disagree with Saiti.
    A.      LEGAL PRINCIPLES
    We review the question of whether two statutes are concurrent de novo. State v. Wilson,
    
    158 Wash. App. 305
    , 314, 
    242 P.3d 19
    (2010).
    13
    49178-8-II
    “When a specific statute and a general statute punish the same conduct, the statutes are
    concurrent and the State can charge a defendant only under the specific statute.” Wilson, 158 Wn.
    App. at 313-14. “This rule gives effect to legislative intent and ensures charging decisions comport
    with that intent.” 
    Wilson, 158 Wash. App. at 314
    .
    However, if a person can violate the specific statute without violating the general statute,
    the statutes are not concurrent. State v. Heffner, 
    126 Wash. App. 803
    , 808, 
    110 P.3d 219
    (2005).
    “Statutes are concurrent only when every violation of the specific statute would result in a violation
    of the general statute.” 
    Wilson, 158 Wash. App. at 314
    .
    In determining whether two statutes are concurrent, we examine the elements of each of
    the statutes to ascertain whether a person can violate the specific statute without necessarily
    violating the general statute. 
    Heffner, 126 Wash. App. at 808
    . “Statutes are concurrent if all of the
    elements to convict under the general statute are also elements that must be proved for conviction
    under the specific statute.” 
    Wilson, 158 Wash. App. at 314
    . The facts of the particular case need
    not be examined, we examine only the elements of the statutes. 
    Wilson, 158 Wash. App. at 314
    .
    B.      THE STATUTES ARE NOT CONCURRENT
    Saiti claims that the rubber container became drug paraphernalia only because it contained
    heroin residue, and thus, the convictions are inseparable. However, we do not examine the facts
    of the particular case, we only examine the statutory elements. 
    Wilson, 158 Wash. App. at 314
    .
    RCW 69.50.412(1) states that:
    It is unlawful for any person to use drug paraphernalia to plant, propagate, cultivate,
    grow, harvest, manufacture, compound, convert, produce, process, prepare, test,
    analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise
    introduce into the human body a controlled substance other than marijuana. Any
    person who violates this subsection is guilty of a misdemeanor.
    14
    49178-8-II
    RCW 69.50.4013(1) provides that it is “unlawful for any person to possess a controlled
    substance unless the substance was obtained directly from, or pursuant to, a valid prescription or
    order of a practitioner while acting in the course of his or her professional practice, or except as
    otherwise authorized by this chapter.” A person that violates this statute is guilty of a class C
    felony. RCW 69.50.4013(2).
    In State v. Williams, 
    62 Wash. App. 748
    , 754, 
    815 P.2d 825
    (1991), the court held that the
    drug paraphernalia statute and the possession of controlled substances statute were not concurrent
    statutes. In its reasoning, the court described an example where the defendant could admit to
    recently attending a party where he used drug paraphernalia to inject controlled substances:
    Although no controlled substances or paraphernalia are found in the defendant’s
    possession, his behavior and appearance may be consistent with recent controlled
    substance use, tests of his blood could confirm the presence of controlled
    substances, and recent injection marks could be found on his arm. Among other
    offenses, the defendant could be prosecuted for using drug paraphernalia to inject
    controlled substances, although it could not be established that he was in possession
    of either drug paraphernalia or controlled substances.
    There are no doubt other situations where the evidence may establish that a
    defendant was under the influence of controlled substances at the time of his arrest,
    although no paraphernalia or controlled substances are found. Nevertheless, such
    evidence creates an inference that drug paraphernalia was used to ingest the
    controlled substances.
    
    Williams, 62 Wash. App. at 752-53
    (footnote omitted).
    Although the law has been recodified since Williams, the rationale remains the same.6
    Even though one statute may implicate the other because of the relation between the two, facts in
    a given case could support a charge for use of paraphernalia without evidence to support a charge
    of unlawful possession of a controlled substance. Because the elements of the statutes are not the
    6
    See LAWS OF 2017, ch. 317 § 15; LAWS OF 2013, ch. 3 § 22 (most recent amendments to the
    possession of controlled substance and paraphernalia statutes, respectively).
    15
    49178-8-II
    same and not every violation of one statute would be a violation of the other, we conclude that the
    statutes are not concurrent.
    We affirm.
    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.
    Melnick, J.
    We concur:
    Johanson, P.J.
    Lee, J.
    16