Appeal from the District Court of Natrona County The Honorable David B. Park, Judge.
The opinion of the court was delivered by: Hill, Justice
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] A jury convicted David Dale Baker of one count of possessing controlled substance precursors with intent to engage in a clandestine laboratory operation associated with that crime, three counts of conspiracy, and two counts of child endangerment. He was sentenced to concurrent terms of six to eight years on the first four counts, and concurrent terms of eighteen to twenty-four months on the child endangerment charges. The two terms, however, were to be served consecutively. On appeal, Baker advances arguments regarding whether the search of his home was proper, whether the trial court erred in denying his Motion for Judgment of Acquittal, whether the trial court erred in its instructions to the jury, whether he was denied effective assistance of counsel, and whether merger of offenses, both with respect to charging and sentencing, applies in his case. We affirm in part, and, for sentencing purposes, remand in part.
[¶2] Baker states the issues as follows:
1. Evidence seized during the warrantless search of Mr. Baker‟s home and garage should have been suppressed.
2. The Trial Court should have granted Mr. Baker‟s Motion for Acquittal on Counts V and VI.
3. The trial court‟s instruction to the jury on the elements of W.S. § 6-4-405(a)(ii) failed to clarify that the presence of the child must be contemporaneous with the manufacturing activity.
4. The trial court applied the wrong conspiracy statute and failed to instruct the jury on the proper elements of conspiracy.
5. Mr. Baker was not provided effective assistance of counsel.
6. Counts II, III, and IV should merge for both charging and sentencing.
The State rephrases the issues this way:
1. The district court did not err when it denied [Baker‟s] motion to suppress evidence.
2. The district court did not err when it denied [Baker‟s] Motion for Judgment of Acquittal.
3. The district court did not fail to adequately instruct the jury regarding the elements of Wyo. Stat. Ann. § 6-4-405(a)(ii).
4. [Baker] was not prejudiced by a jury instruction that required the jury to deliberate regarding the conspiracy counts III and IV pursuant to Wyo. Stat. Ann. § 35-7-1042.
5. [Baker] did not receive ineffective assistance of counsel at trial.
6. Counts II, III, and IV of the information should not have merged for the purposes of charging but should have, and ultimately did merge for the purposes of sentencing.
[¶3] On December 20, 2006, Crystal Merck reported to the Casper Police Department that she had been assaulted by her live-in boyfriend, David Baker. According to Merck, she and Baker argued and he repeatedly hit her in the head and caused a cut to her right upper lip. Merck agreed to accompany Officers Douglas and Dabney to her home so they could investigate the incident and interview Baker -- Merck accompanied the officers to the residence because she assumed that Baker would not open the door for the officers, and she was going to attempt to convince Baker to speak with them and allow them inside the home.
[¶4] Upon arriving at the residence, Officer Douglas noted that Baker‟s pickup was running. Inside the pickup, the officer noticed a large dog, several firearms, and a knife on the front seat of the vehicle. Additional officers were requested, and after they arrived, Merck unlocked the back door of the house with her own key. However, the door being chained from the inside, it only opened a few inches. Merck yelled into the house, asking that Baker come outside. When he did not, Merck gave the officers permission to break the door in, which they did. The officers conducted a protective sweep of the residence and began looking for Baker. In doing so, they noticed drug paraphernalia -- specifically, methamphetamine paraphernalia.
[¶5] The Wyoming Department of Criminal Investigation (DCI) was contacted and arrived at the residence within the hour. After speaking with Merck and learning that she and her two children lived at the residence with Baker, Agent Wetzel of the DCI explained to her that he had reason to believe that methamphetamine was being manufactured in the home, and requested her permission to enter the house, garage, and trailer. Merck agreed and, in addition, provided the agent with a key to the trailer.
[¶6] After an extensive search of the premises, DCI agents found several items consistent with the manufacture of methamphetamine including, but not limited to: a propane bottle with a torch; hoses that had been sliced and connected to valves; acetone containers; hydrogen peroxide; laboratory glassware containing a white powdery residue (that eventually tested positive for methamphetamine); a filter for an air purifying respirator; a turkey baster (that eventually tested positive for methamphetamine); and an electric hot plate burner (that eventually tested positive for methamphetamine, pseudoephedrine, and amphetamine).
[¶7] In January of 2007, Baker was charged with six counts: one count of possessing a controlled substance precursor with intent to engage in a clandestine laboratory operation, in violation of Wyo. Stat. Ann. § 35-7-1059(a)(i) (LexisNexis 2009), one count of conspiracy to engage in a clandestine laboratory operation, in violation of Wyo. Stat. Ann. § 35-7-1059(a)(iv) (LexisNexis 2009), one count of conspiracy to possess a controlled substance precursor with the intent to engage in a clandestine laboratory operation, in violation of Wyo. Stat. Ann. §§ 35-7-1059(a)(i) and 35-7-1042 (LexisNexis 2009), one count of conspiracy to possess laboratory equipment or supplies with the intent to engage in a clandestine laboratory operation, in violation of Wyo. Stat. Ann. §§ 35-7-1059(a)(ii) and 35-7-1042 (LexisNexis 2009), and two counts of child endangerment, in violation of Wyo. Stat. Ann. § 6-4-405(a)(ii) (LexisNexis 2009). A jury trial was held on August 20, 2007, and on August 28, 2007, the jury found Baker guilty of all six counts. The court denied Baker‟s motions for judgment of acquittal and for new trial after jury verdict. He was sentenced to a term of imprisonment of not less than six years nor more than eight years on each of the possession and conspiracy counts, with each term to be served concurrently. On each count of child endangerment, Baker was sentenced to a term of not less than eighteen months nor more than twenty-four months, those counts to be served concurrently with each other, but consecutive to the possession and conspiracy sentences. Baker filed a timely notice of appeal.
Denial of Motion to Suppress -- Consent
[¶8]Baker‟s first issue on appeal is that the warrantless entry into his home was in violation of the Fourth Amendment to the United States Constitution, and art. 1, § 4 of the Wyoming Constitution, because he did not consent to the search. The State disagrees and argues that this instance qualifies as an exception to the warrant requirement.
[¶9] In reviewing a trial court‟s ruling on a motion to suppress evidence, we do not interfere with the trial court‟s findings of fact unless the findings are clearly erroneous. We view the evidence in the light most favorable to the trial court‟s determination because the trial court has an opportunity at the evidentiary hearing to assess the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions. The constitutionality of a particular search is a question of law that we review de novo. Shaw v. State, 2009 WY 18, ¶ 19, 201 P.3d 1108, 1112 (Wyo. 2009).
[¶10] Indeed, under both the United States and Wyoming constitutions, searches and seizures conducted without a warrant are per se unreasonable unless they are justified by probable cause or recognized exceptions.Pena v. State, 2004 WY 115, ¶ 29, 98 P.3d 857, 870 (Wyo. 2004). Exceptions to the warrant requirement include:
1) search of an arrested suspect and the area within his control; 2) a search conducted while in hot pursuit of a fleeing suspect; 3) a search and/or seizure to prevent the imminent destruction of evidence; 4) a search and/or seizure of an automobile upon probable cause; 5) a search which results when an object is inadvertently in the plain view of police officers while they are where they have a right to be; 6) a search and/or seizure conducted pursuant to consent; and 7) a search which results from an entry into a dwelling in order to prevent loss of life or property.
Andrews v. State, 2002 WY 28, ¶ 18, 40 P.3d 708, 712 (Wyo. 2002) (internal citations omitted). In this case, the exception to the warrant requirement that ostensibly applies is consent. The officers had the consent of a resident of the home, Baker‟s live-in girlfriend Crystal Merck.
[¶11] Baker advances a lengthy and citation-filled argument as to why Merck did not have the authority to consent in this instance. Relying upon cases from a variety of jurisdictions, Baker argues, generally, that because Merck was locked out of her house from the inside, she lost all authority to enter the house. Moreover, Baker insists that neither actual nor apparent authority existed. Instead, he states that Merck "had no access at all" to the premises in question, and even though she possessed a key to open the door from the outside, Baker argues that because someone else had chained the door shut from the inside, "further inquiry" was needed as to whether or not Merck had the authority to consent to a search.
[¶12] However, as the State points out, it is well settled that consent to a warrantless search is not confined to consent by a defendant. It may also be given by a "third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988 (1974).
The authority which justifies the third-party consent rests on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
Matlock, 415 U.S. 164, 171 at n.7. In fact, consent is valid so long as the officer obtaining the consent reasonably believed that the third party had the authority to consent (even if the belief is in error). Illinois v. Rodriguez,497 U.S. 177, 186, 110 S.Ct 2793, 2800 (1990).
As with other factual determinations bearing upon search and seizure, determination of consent to enter must "be judged against an objective standard: would the facts available to the officer at the moment . "warrant a man of reasonable caution in the belief‟ " that the consenting party had authority over the premises? If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.
Andrews,¶ 25, 40 P.3d at 714 (internal citations omitted).
[¶13] Here, the facts known to the officers at the time of the search support the conclusion that Merck had the authority to consent to a search of the residence. Merck reported a domestic disturbance from her home at the hands of her live-in boyfriend. She expected her boyfriend (Baker) to not answer the door, and told the officers that they could go inside the home, and she unlocked the back door with her own key from her personal keychain. And although a "no trespassing" sign was posted on the property, Merck‟s consent stands.*fn1
Denial of Motion for Judgment of Acquittal -- Child Endangerment
[¶14] Baker‟s next claim is that the district court erred when it denied his motion for judgment of acquittal with respect to the two counts of child endangerment, in violation of § 6-4-405(a)(ii), because the State failed to prove the children were present at the time of the manufacturing activities.
[¶15] When reviewing a district court‟s denial of a motion for judgment of acquittal, this Court "accept[s] as true the State‟s evidence, together with all reasonable inferences to be drawn therefrom, leaving out entirely any conflicting evidence." Mattern v. State, 2007 WY 24, ¶ 28, 151 P.3d 1116, 1128-29 (Wyo. 2007).
[¶16] At the end of the State‟s case-in-chief, Baker moved for a judgment of acquittal, claiming that the State failed to prove that any manufacturing was taking place in the home or that the children were ever in the home at the time methamphetamine was being manufactured. The district court, however, found that a prima facie case had been established as to this issue and, according to the State, there was ample evidence at trial to allow the district court to reach its judgment on Baker‟s motion. Through various witnesses the State established that for several months during 2006, Baker conspired with various individuals to operate a clandestine methamphetamine lab.
[¶17] First, Zachary Wolf testified that Baker was seeking a recipe to manufacture methamphetamine, and shortly thereafter, Wolf saw "several bottles" of anhydrous ammonia in Baker‟s garage. Wolf also testified that he saw Baker trying to obtain methamphetamine from a "white sludge" with hydrochloric acid. Wolf also testified that he and Baker tried to make methamphetamine two or three times and that Merck bought cold medicine and would break down those pills inside the house. And, most importantly to this issue, Wolf testified that he was aware that Merck‟s two young children were living in the home during this activity.
[¶18]Merck‟s testimony also supported that Baker conspired to operate a clandestine methamphetamine lab. Merck testified that when she moved in with Baker, so did her two children. What is more, she also testified that she would "cleanse" the methamphetamine in her home by pouring acetone over it and then letting it dry inside the home. Also, Merck explained that she would put the drugs in her freezer to accelerate the evaporation process and would often use a propane torch or burner to continue the cleansing process. Merck unequivocally admitted to the criminal activity taking place in her home over the course of basically a year:
[Mr. Marken]: Ms. Merck, would you agree that between February 1, 2006, and December 20, 2006, that you knowingly and intentionally conspired with or aided David Baker to engage in a clandestine laboratory operation?
Q: And you would agree that the site of that clandestine laboratory operation was [your home] in Casper, Wyoming?
[¶19] It is altogether reasonable to assume that from this evidence, the jury was able to infer that while this manufacturing of methamphetamine was taking place, the children were present.*fn2 Certainly, operating under the applicable standard of review, there was ample evidence presented that allowed the jury to convict Baker of two counts of endangering children. The district court did not err in denying Baker‟s motion for judgment of acquittal.
Jury Instructions --Child Endangerment
[¶20] Baker‟s third argument on appeal is that the district court failed to adequately instruct the jury regarding the elements of child endangerment. However, Baker did not object to this at trial and, accordingly, on review when an appellant does not object to a jury instruction, this ...