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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       DIVISION ONE
                      Respondent,           )
                                            )       No. 66772-6-I
                   v.                       )
                                            )
JEROMY KEITH LADWIG,                        )       UNPUBLISHED OPINION
                                            )
                      Appellant.            )       FILED:  April 16, 2012
________________________________)

       Dwyer, J. -- To ensure jury unanimity in a case where multiple acts could 

constitute a charged crime, the State must tell the jury which act it has elected to 

rely on for conviction or the court must instruct the jury to unanimously agree on 

a specific act. No election or instruction is required, however, if multiple acts 

form a continuing course of criminal conduct.  In this appeal from convictions for 
possession of methamphetamine and use of drug paraphernalia,1 Jeromy

Ladwig contends his paraphernalia conviction must be reversed because there 

was no jury instruction or election by the prosecutor ensuring jury unanimity, and 

the court failed to properly respond to a jury inquiry during deliberations.  

Because no instruction or election was required in this case, and because the 

prosecutor made a clear election in any event and Ladwig's challenges to that 

       1 Ladwig does not challenge his conviction for possession of methamphetamine.  

No. 66772-6-I/2

election and the handling of the jury inquiry are fatally flawed, we affirm.

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No. 66772-6-I/3

                                            I

       On July 12, 2010, Oak Harbor Police executed a search warrant at a 

residence leased by Ladwig's father.  The warrant authorized a search of the

residence and the person of Jeromy Ladwig.  While on the property, officers 

noticed movement inside a small travel trailer behind the residence.  They 

knocked on the trailer door but received no response.  Officers then phoned

Ladwig's father, who arrived at the property and opened the trailer.  

       The police found Ladwig in bed, apparently sleeping.   After reading him 
Miranda2 warnings, police asked if there was any methamphetamine in the 

trailer.  Ladwig said he had used some the night before and whatever was left 

"would be in a baggie in the ashtray by the T.V." Report of Proceedings (RP) at

146.  He also said "that he snorts it" and still had "the drip in the back of his 

throat." RP at 146-147.  

       Ladwig and his father subsequently consented to a search of the trailer.  

Police found two small plastic baggies containing a white substance in an 

ashtray next to the bed.  They also found two glass smoking pipes and a blue 

tube or straw near the bed.  A detective testified that, based on his experience, 

the pipes "appeared to be connected with methamphetamine."  RP at 89. The 

substance in one of the baggies later tested positive for methamphetamine.  The

other baggie, the pipes, and the blue tube were not tested.  

       2 Miranda v Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d  694 (1966).

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No. 66772-6-I/4

       The State charged Ladwig with possession of methamphetamine and use 

of drug paraphernalia.  At trial, the prosecutor told the jury in his opening 

statement that Ladwig was charged with "use of drug paraphernalia for the 

pipes" found in the trailer.  RP at 41.  

       At the close of the State's case, the defense moved to dismiss the use of 

drug paraphernalia charge.  Defense counsel noted that the pipes had not been 

tested and that there was no evidence they contained any residue or controlled 

substance.  The court denied the motion and the defense rested its case.

       The court instructed the jury that to convict Ladwig of using drug 

paraphernalia, they had to find, among other things

       [t]hat on or about the 12th day of July, 2010,  the defendant used  
       drug  paraphernalia  to plant, propagate, cultivate, grow, harvest, 
       manufacture, compound, convert, produce, process, prepare, test,
       analyze, pack, repack, store, contain, . . . ingest, inhale, or  
       otherwise introduce into the human body a controlled substance.

Clerk's Papers (CP) at 29 (emphasis added).  The instructions also defined

"drug  paraphernalia" in part as "all equipment, products, and materials of any 

kind that are used, intended for use, or designed for use in . . . storing, 

containing, . . . ingesting, inhaling, or otherwise introducing into the human body

a controlled substance."  CP at 30.  Paraphernalia includes "glass, stone, 

plastic, or ceramic pipes."  CP at 30. The instructions did not require the jury to 

agree on a particular use of paraphernalia.  

       During closing argument, the prosecutor repeatedly told the jury that the

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paraphernalia charge was based on Ladwig's use of the pipes.  He told them 

that "the second [charge] is Use of Drug Paraphernalia for the pipes."  RP at

186. Later, when referring to the pipes, he said, "That's the paraphernalia that 

we're talking about."  RP at 189.  In summarizing the evidence on the 

paraphernalia charge, he said, "We have pipes plus admitted use plus 

methamphetamine."  RP at 190. He concluded both portions of his argument by 

stating that Ladwig's use of the pipes made him guilty on the paraphernalia 

count.  Defense counsel argued that the pipes were never tested and that there 

was no testimony explaining what the pipes were or how they were typically 

used. 

       During deliberations, the jury sent out the following question: "Does the 

definition of drug paraphernalia include the small baggies which contained the 

white substance?"  CP at 34.  After consulting counsel, the court responded: 

"The law is contained in my instructions to you.  You must consider the 

instructions as a whole."  CP at 34.    

       The jury convicted Ladwig as charged.  He appeals.

                                           II

       Criminal defendants have a right to a unanimous jury verdict. Wash. 

Const. art. I, § 21; State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 

(1994).  If the State presents evidence of multiple acts that could constitute the 

crime charged, it "must tell the jury which act to rely on in its deliberations or the 

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No. 66772-6-I/6

court must instruct the jury to agree on a specific criminal act."  State v. Kitchen, 

110 Wn.2d 403, 409, 756 P.2d 105 (1988); State v. Petrich, 101 Wn.2d 566, 

572, 683 P.2d 173 (1984).  Failure to do so is constitutional error because of 

"the possibility that some jurors may have relied on one act or incident and some 

another, resulting in a lack of unanimity on all of the elements necessary for a 

valid conviction."  Kitchen, 110 Wn.2d at 411.  A unanimity instruction is not 

required, however, if multiple acts form a continuing course of criminal conduct. 

State v. Crane, 116 Wn.2d 315, 330, 804 P.2d 10 (1991).    

       Ladwig contends an instruction or election was required in this case 

because several uses of paraphernalia could have supported his conviction.  

Unanimity was not ensured, he argues, because the court did not give a multiple 

acts, or "Petrich"instruction and the State did not make a proper election. The 

State contends no instruction or election was required because the evidence did 

not show multiple acts supporting conviction, and, in any event, the prosecutor 

made an election during opening and closing arguments.    

       We need not decide whether the evidence established multiple uses of 

paraphernalia because even assuming it did, no instruction or election was 

required because the uses were part of a continuing course of conduct.  To 

determine whether multiple acts form one continuing offense, courts must view 

the facts in a common sense manner.  Petrich, 101 Wn.2d at 571.  Evidence that 

multiple acts were intended to secure the same objective supports a finding that 

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No. 66772-6-I/7

the defendant's conduct was a continuing course of conduct.  State v. Handran, 

113 Wn.2d 11, 17, 775 P.2d 453 (1989).  Courts also consider whether the 

conduct occurred at different times and places or against different victims. 

Petrich, 101 Wn.2d at 571.

       Viewed in a common sense manner, the facts here demonstrate a

continuing course of conduct.  All of the items of paraphernalia -- the pipes, the 

straw, and the baggie -- were found in the same place.  The State relied on 

Ladwig's use of paraphernalia during a single time period, i.e., the evening 

before his arrest.  To the extent the pipes, straw, and baggie involved separate 

uses of paraphernalia, they shared a single ultimate objective:  Ladwig's use of 

methamphetamine.  The acts thus constituted a continuing course of conduct 

and no election or instruction was required.        

       Even were we to conclude that the uses of paraphernalia were not a 

continuing course of conduct, we would reach the same result.  As the State 

correctly points out, the prosecutor clearly and repeatedly elected one specific 

use -- i.e., use of the pipes -- for the paraphernalia charge.  See State v. Bland, 

71 Wn. App. 345, 352, 860 P.2d 1046 (1993) (closing argument identifying a 

particular act for each count supported conclusion that the State made an 

election).  At no point did he argue that the jury could base its verdict on any 

other paraphernalia. 

       Ladwig argues in passing and without supporting authority that the 

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No. 66772-6-I/8

prosecutor's election was insufficient because he "never told jurors they could 

not base their verdict on other items found in the trailer."  Appellant's Br. at 8. 

We need not consider conclusory and unsupported claims.  State v. Thomas, 

150 Wn.2d 821, 868-69, 83 P.3d 970 (2004) (appellate courts do not review 

"issues for which inadequate argument has been briefed or only passing 

treatment has been made"); State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 

1082 (1992) (appellate court will not review issue unsupported by relevant 

authority or persuasive argument).  

       Similarly, we need not consider Ladwig's suggestion in a footnote that the 

election is undermined by State v. Kier, 164 Wn.2d 798, 194 P.3d 212 (2008),

and the trial court's jury instructions.  State v. Johnson, 69 Wn. App. 189, 194 

n.4, 847 P.2d 960 (1993) (arguments raised in footnotes need not be 

considered).  Furthermore, Ladwig's attempt to inject Kier's double jeopardy 

analysis into the unanimity issue in this case would conflict with the State 

Supreme Court's prior holdings in Petrich and Kitchen.  Nothing in Kier purports 

to overrule those cases, and we presume the Supreme Court does not overrule 

binding precedent subsilentio.  State v. Studd, 137 Wn.2d 533, 548, 973 P.2d 

1049 (1999).

       Ladwig also argues that even if the prosecutor made a valid election, 

unanimity was not ensured given the jury's inquiry and the court's response to 

the inquiry.  He contends the inquiry indicated that the prosecutor's election had 

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been ineffective, and it was incumbent on the court to either remind the jury of 

the prosecutor's election or give them a Petrich instruction.  We reject this 

contention for several reasons.  

       First, Ladwig nowhere explains why this claim can be raised for the first 

time on appeal.  State v. McDonald, 138 Wn.2d 680, 691, 981 P.2d 443 (1999)

(defendant has burden of demonstrating why argument can be raised for the first 

time on appeal).  Second, he fails to discuss well established law governing 

judicial responses to jury inquiries.  Finally, his contention lacks merit. 

       Trial courts have no obligation to answer a deliberating jury's inquiry and 

the content of a response is a matter within the court's discretion.  State v. 

Langdon, 42 Wn. App. 715, 718, 713 P.2d 120 (1986).  Our courts have 

repeatedly emphasized that jury inquiries are not final determinations, and that 

confusion at the time of an inquiry may clear up without assistance from the 

court.  State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988) (citing State v. 

Miller, 40 Wn. App. 483, 698 P.2d 1123 (1985)).  In this case, the jury 

commenced deliberations with proper instructions and, consistent with Petrich

and Kitchen, a clear election by the prosecutor.  When the court received the 

jury inquiry at issue, it immediately and appropriately asked counsel for their 

suggestions.  CrR 6.15(f).  The prosecutor preferred a response, which the court 

eventually gave, informing the jury that the law is contained in their instructions 

and that they must consider the instructions as a whole.  Defense counsel 

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No. 66772-6-I/10

expressly acquiesced in this response and expressed no concerns about jury 

unanimity.  

       Ladwig cites no authority requiring a court to sua sponte instruct a jury in 

response to an inquiry when the issue has not been raised by counsel, counsel 

have agreed to a different response, and counsel would not be afforded an 

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No. 66772-6-I/11

opportunity to address the already deliberating jury concerning the new 

instruction's impact, if any, on the case.  Accordingly, his contention fails.    

       Affirmed.

We concur:

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