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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  41311-6-II

                             Respondent,

       v.

JAMES AFENIR,                                              UNPUBLISHED OPINION

                             Appellant.

       Quinn-Brintnall, J.   --   James Michael Afenir appeals his conviction for making a space 

under his control available for the purpose of selling methamphetamine.  RCW 69.53.010(1).  

Afenir asserts that the search of his apartment was unreasonable, he was unlawfully seized, he did 

not intelligently waive his Miranda1 rights, he received ineffective assistance of counsel, the trial 

court erred in denying his motions to dismiss, and RCW 69.53.010(1) is unconstitutional as 

applied to his case.  

       We do not reach the merits of Afenir's unreasonable search and seizure and Miranda 

rights waiver arguments because he has either waived those challenges or failed to preserve them 

for our review.  In addition, because Afenir does not present an argument on appeal as to why the 

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

No. 41311-6-II

trial court erred in denying his first motion to dismiss, and he has waived his challenge to the trial 

court's denial of his second motion to dismiss, we cannot address either assignment of error.  We 

hold that Afenir received effective assistance of counsel, that the trial court did not err in denying 

his Knapstad2 motion, and that RCW 69.53.010(1) is not unconstitutional as applied to Afenir.  

Accordingly, we affirm.  

                                            FACTS

       On June 28, 2009, Corporal Jesse Winfield of the Port Angeles Police Department 

knocked on the front door of Afenir's one-bedroom apartment in Port Angeles, Washington, in 

search of Robert Beck.3  Although Afenir was the only lessee of the apartment, he slept on the 

couch in the living room while Beck and Beck's girlfriend, Kim McCartney, slept in the bedroom.  

When Afenir answered the door, Winfield explained that he was looking for Beck.  Afenir invited 

Winfield inside and gave the officer permission to look inside the apartment's bedroom and 

bathroom.  

       Corporal Winfield found and arrested Beck inside the apartment bathroom, which could 

be entered only through the bedroom.  Beck admitted there was "a little . . . crystal 

[methamphetamine]" in the bedroom.  Report of Proceedings (RP) at 98.  Winfield applied for 

and received a telephonic warrant to search the apartment.  

       When police executed the search warrant, they found a police scanner, small plastic bags 

with methamphetamine residue, a plastic bag with a larger quantity of crystal methamphetamine, 

2 State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986); see also CrR 8.3(c).

3 Corporal Winfield had arrested a woman six days before arriving at Afenir's apartment.  
Winfield found Beck's backpack in the woman's car.  The backpack contained illegal drugs and 
prompted Winfield's search for Beck.  

                                               2 

No. 41311-6-II

electronic scales with methamphetamine residue, a spoon, a knife, syringes, a possible cutting 

agent, a drug pipe, Aprazolan pills, and a notepad marked as "pay and owe records" in the 

bedroom where Beck and McCartney slept.  Clerk's Papers (CP) at 26.  Next to the couch in the 

living room where Afenir slept, the police found a "drug kit" containing pipes, syringes, scales, a 

spoon with methamphetamine residue, and a syringe loaded with methamphetamine.  RP at 107.  

       Corporal Winfield asked Detective Clay Rife of the Port Angeles Police Department to 

interview Afenir.  Afenir agreed to follow Rife outside to conduct a recorded interview.  Afenir, 

who testified that he was not handcuffed, sat in the backseat of a patrol vehicle with the door 

open.  Rife stood next to the vehicle.  Rife read Afenir his Miranda rights and Afenir said he 

understood them.  Afenir told Rife that everything in the bedroom belonged to Beck, and that he 

only entered the bedroom to use the bathroom.  Afenir also told Rife he used methamphetamine 

for arthritic pain, "got some of the meth that he used from Mr. Beck," and that he knew that 

"Beck was selling methamphetamine out of the apartment."     RP at 126-27.  Last, Afenir said he 

did not accept any rental payments from either Beck or McCartney and that he did not pay for the 

methamphetamine he received from Beck.  Rife did not specifically question Afenir about the 

items found near the couch.  

       On July 1, the State charged Afenir with violating RCW 69.53.010,4 which prohibits a 

4 RCW 69.53.010(1) provides,
       It is unlawful for any person who has under his or her management or control any 
       building, room, space, or enclosure, either as an owner, lessee, agent, employee, or 
       mortgagee, to knowingly rent, lease, or make available for use, with or without 
       compensation, the building, room, space, or enclosure for the purpose of 
       unlawfully manufacturing, delivering, selling, storing, or giving away any 
       controlled substance under chapter 69.50 RCW, legend drug under chapter 69.41 
       RCW, or imitation controlled substance under chapter 69.52 RCW.

                                               3 

No. 41311-6-II

person from making available the use of a space for unlawful drug-related purposes.  Afenir 

moved to dismiss, arguing that the evidence was insufficient to prove beyond a reasonable doubt 

that Afenir rented the room to Beck for the sole purpose of conducting illegal drug activity.  The 

trial court denied the motion. 

       On January 27, 2010, the trial court heard Afenir's  Knapstad  motion on the issue of 

"whether [Afenir] knowingly allowed use of his apartment for the purpose of 'delivering, selling . 

. . or giving away any controlled substance.'"   CP at 25.  The trial court denied the motion, 

distinguishing the "drug house" statute, RCW 69.50.402,5 from RCW 69.53.010, because RCW 

69.53.010 had no element of "maintaining" conduct.  The trial court found that the evidence was 

sufficient to prove a prima facie case that Beck was dealing methamphetamine, and that, because 

the apartment was small and Afenir admitted he entered the bedroom to use the bathroom, Afenir 

knew that Beck was dealing drugs from the apartment.  Thus, the trial court concluded that there 

was sufficient evidence to establish a prima facie case that Afenir was guilty of the crime charged.  

       The trial court held a CrR 3.5 hearing on the admissibility of Afenir's statements made to 

the police on Fifth Amendment voluntariness grounds.  Detective Rife testified that he stood next 

to Afenir during the interview, did not have his weapon drawn, but could not remember whether 

Afenir was handcuffed at the time.  Rife also could not recall whether he had told Afenir that he 

was not interested in Afenir for any criminal activity.  Afenir testified that Rife assured him that 

5 RCW 69.50.402(f) provides that it is unlawful for any person 
       [k]nowingly to keep or maintain any store, shop, warehouse, dwelling, building, 
       vehicle, boat, aircraft, or other structure or place, which is resorted to by persons 
       using controlled substances in violation of this chapter for the purpose of using 
       these substances, or which is used for keeping or selling them in violation of this 
       chapter.

                                               4 

No. 41311-6-II

the police were at the apartment to arrest only  Beck and that they would appreciate any 

information he could give them.  The trial court found Afenir's statements admissible as 

voluntarily given because there was no evidence of coercion and Afenir had understood his 

Miranda rights.  

       Afenir waived his right to a jury trial.  At a  bench trial held on August 25, Afenir 

confirmed that he did not accept rental or utility payments from Beck or McCartney.  Afenir 

testified that he did not give either person a key to the apartment and that if he left the apartment 

for any reason, they also had to leave.  Afenir also testified that the bedroom door was never 

locked because he did not want to be blocked from the bathroom.  Afenir testified that on the 

occasions when he entered the bedroom to use the bathroom, he noticed the couple kept the 

bedroom very neat and that Beck had a police scanner.  

       Afenir testified that at some point, Beck and McCartney stacked some of their belongings 

from the bedroom in the living room next to the couch because they were moving items into 

storage.  Afenir did not know about the "drug kit" found next to the couch.  Afenir further 

testified that he paid Beck in cash for the methamphetamine and that Beck would leave the 

apartment before returning with the drug.  Last, Afenir testified that he did not know that Beck 

was dealing drugs from the bedroom and that he would not have asked Beck about it because the 

couple had been planning to move out of the apartment in two weeks.  

       After the State rested, Afenir moved again to dismiss for failure to make a prima facie 

case.  Afenir argued that even if the State had proved Afenir had made available a space under his 

control from which Beck sold methamphetamine, the State could not prove either that Beck was a 

lessee or renter or that Afenir made the space available for the purpose of selling 

                                               5 

No. 41311-6-II

methamphetamine.  The State argued that the statute did not require the State to prove that 

Afenir made the space available for the specific purpose of delivering drugs.  The trial court, 

relying on State v. Sigman, 118 Wn.2d 442, 826 P.2d 144 (1992), found that "knowingly make 

available" meant the same as "knowingly allow," and denied the motion.  The trial court found 

that Afenir knew and allowed Beck to sell methamphetamine from the bedroom and found him 

guilty has charged.  Afenir timely appeals.

                                         DISCUSSION

       Afenir assigns error to the trial court's findings that the search and seizure of his home 

was reasonable and that his statements to Detective Rife were admissible.  Afenir also assigns 

error to the trial court's denial of his dismissal and Knapstad motions.  Last, Afenir asserts that 

Detective Rife unlawfully seized him, he received ineffective assistance of counsel, and that RCW 

69.53.010(1) is unconstitutional as applied to his case.  We affirm.  

Physical Evidence

       For the first time on appeal, Afenir asserts that the initial police entry into his apartment 

violated constitutional protections against unreasonable searches and seizures.  U.S. Const.

amend. IV; Wash. Const. art. I, § 7.  Specifically, Afenir argues that although the police 

conducted the search pursuant to a search warrant, because their initial entry was without warrant 

and no exigent circumstances existed, all the State's physical evidence seized was "fruit of the 

poisonous tree" and the trial court erred in admitting it.  The State argues that because Afenir did 

not request a CrR 3.6 hearing to suppress the evidence and did not object to the admission of the 

physical evidence on these grounds at trial, he has waived the challenge for appeal.  We agree 

with the State.  

                                               6 

No. 41311-6-II

       Generally, Afenir may not raise an issue for the first time on appeal unless it is a "manifest 

error affecting a constitutional right." RAP 2.5(a)(3). A defendant waives the right to challenge 

the admission of evidence gained in an illegal search or seizure by failing to move to suppress the 

evidence at trial.  See State v. Mierz, 127 Wn.2d 460, 468, 901 P.2d 286 (1995).  When a 

defendant fails to move to suppress the evidence, the trial court is not required to rule on the 

admissibility of such evidence and the record on appeal contains no decision, correct or otherwise, 

for our review.  See State v. Tarica, 59 Wn. App. 368, 372-73, 798 P.2d 296 (1990), overruled 

on other grounds by State v. McFarland, 127 Wn.2d 322, 337, 899 P.2d 1251 (1995). 

       Here, Afenir did not request a CrR 3.6 hearing to suppress the physical evidence.  Neither 

did Afenir object to the trial court admitting into evidence photographs of his apartment, the 

police scanner, the "drug kit" found next to the couch, a box filled with used syringes found 

outside the bedroom door, or the crime lab reports showing that a baggie in the bedroom and the 

syringe near the couch contained methamphetamine.  Afenir objected to the relevance of a spoon 

and a glass pipe, both found under the couch with methamphetamine residue, and a set of 

electronic scales found on a nightstand near the apartment front entry door.  Afenir also objected 

to a document listing items to be tested at the crime lab as lacking in foundation to business 

records.  The trial court overruled these objections.  

       As to the physical evidence Afenir did not move to suppress at trial, we hold that he has 

not preserved those admissibility challenges for appeal.  ER 103(a)(1); Mierz, 127 Wn.2d at 468; 

McFarland, 127 Wn.2d at 333.  As to the physical evidence admitted over Afenir's relevancy and 

foundational objections, because his objections were not based on warrantless search and seizure 

grounds, the objections are insufficient to preserve those challenges.  ER 103; State v. Guloy, 104 

                                               7 

No. 41311-6-II

Wn.2d 412, 422, 705 P.2d 1182 (1985) ("A party may only assign error in the appellate court on 

the specific ground of the evidentiary objection made at trial."), cert. denied, 475 U.S. 1020 

(1986).  

       We note that even if Afenir had preserved his warrantless search and seizure challenge, he 

consented to Corporal Winfield's initial entry of his apartment.  A warrantless consensual search 

is valid if the consent is given voluntarily by a person with the authority to give such consent and 

the police limit the search to the scope of the consent given, here, a search for Beck.  State v. 

Cotten, 75 Wn. App. 669, 678-80, 879 P.2d 971 (1994) (quoting Illinois v. Rodriguez, 497 U.S. 

177, 181, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990)), review denied, 126 Wn.2d 1004 (1995).  

Here, Afenir exercised his authority to invite Winfield into his living room and gave the officer 

permission to look for Beck inside the bedroom and bathroom.  Nothing in the record indicates 

that Afenir attempted to limit or revoke his consent.  Winfield's invited entry falls under the 

consent exception to the warrant requirement and Afenir waived any challenge that the initial 

warrantless entry was unlawful.  See State v. Raines, 55 Wn. App. 459, 462-63, 778 P.2d 538 

(1989) (a person voluntarily consents to police entry and impliedly waives his right to exclude the 

police where he does not expressly object to an officers' entry "to look around" and steps aside as 

if allowing them to enter), review denied, 113 Wn.2d 1036 (1990).  

Seizure

       Also for the first time on appeal, Afenir asserts that because the police did not have 

probable cause to seize him, Detective Rife unlawfully detained him inside the patrol vehicle in 

violation of his Fourth and Fourteenth Amendment rights.  See State v. Allen, 138 Wn. App. 463, 

469, 157 P.3d 893 (2007) ("'When an unconstitutional search or seizure occurs, all subsequently 

                                               8 

No. 41311-6-II

uncovered evidence becomes fruit of the poisonous tree and must be suppressed.'" (quoting State 

v. Ladson, 138 Wn.2d 343, 359, 979 P.2d 833 (1999))).  The State argues that because Afenir 

consented to the interview, there was no seizure and no constitutional protections were 

implicated.  We hold that the consensual interview was lawful.  Afenir has not shown a "manifest 

error affecting a constitutional right" occurred and, thus, may not raise this issue for the first time 

on appeal.  RAP 2.5(a)(3).  

       Afenir bears the burden to prove a seizure occurred in violation of his constitutional rights. 

State v. Harrington, 167 Wn.2d 656, 664, 222 P.3d 92 (2009).  A person is seized if, when in an 

objective view of all the circumstances, a reasonable person would not have felt free to leave, 

decline to answer questions, or terminate the encounter with police.  United States v. Mendenhall,

446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980); State v. O'Neill, 148 Wn.2d 564, 

594, 62 P.3d 489 (2003); State v. Young, 135 Wn.2d 498, 510-11, 957 P.2d 681 (1998).  There is 

no seizure when police ask questions of an individual as long as the officers do not convey a 

message that compliance with their requests is required.  Florida v. Bostick, 501 U.S. 429, 434, 

111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991) (quoting California v. Hodari D., 499 U.S. 621, 628, 

111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991)).  In such a case, the encounter is consensual and no 

reasonable suspicion is required.  Bostick, 501 U.S. at 434.

       An encounter may lose its consensual nature and become a seizure for Fourth Amendment 

or article I, section 7 purposes if  "'the officer, by means of physical force or show of authority, 

has in some way restrained the liberty of a citizen.'"  Bostick, 501 U.S. at 434 (quoting Terry v. 

Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).         Examples of police 

showing authority include "'the threatening presence of several officers, the display of a weapon 

                                               9 

No. 41311-6-II

by an officer, some physical touching of the person of the citizen, or the use of language or tone 

of voice indicating that compliance with the officer's request might be compelled.'"  Harrington, 

167 Wn.2d at 664 (internal quotation marks omitted) (quoting Young, 135 Wn.2d at 512).

       Here, the record shows that the interview was consensual.  O'Neill, 148 Wn.2d at 571

(unchallenged written findings are verities). Afenir expressly consented to be interviewed by 

Detective Rife and agreed to record the interview.  Rife held a recorder in his hand during the 

                                               10 

No. 41311-6-II

interview, stood next to but apart from Afenir, did not have a weapon drawn, and maintained a 

nonthreatening tone of voice.  Harrington, 167 Wn.2d at 664; O'Neill, 148 Wn.2d at 594.  Thus, 

nothing in the record supports a finding that Rife's demeanor or actions caused the consensual 

interview to become a "seizure" in violation of Afenir's constitutional rights.  Bostick, 501 U.S. at 

434.  

       Afenir argues that because both the State and the trial court acknowledged that he might 

have been in custody or at least "being held" in the back of the patrol vehicle at the time he was 

interviewed, he was "seized" for Fourth Amendment and article I, section 7 purposes.  But on 

review we engage in an objective determination of whether Detective Rife's actions amounted to 

a seizure; we do not consider the State's or trial court's speculative opinions as to whether he was 

seized.  Bostick, 501 U.S. at 434; O'Neill, 148 Wn.2d at 594.  Accordingly, we hold that because 

the evidence of record shows that the interview was consensual and not a seizure, Afenir has not 

shown a "manifest error" and may not raise this issue for the first time on appeal.  RAP 2.5(a)(3).  

We do not address his related arguments regarding statement suppression on "fruit of the 

poisonous tree" and Fourth Amendment grounds.  

Self-Incriminating Statements

       Afenir avers the trial court erred in admitting his statements to Detective Rife in violation 

of his Washington Constitution article I, section 9, and federal  Fifth Amendment protections 

against self-incrimination.  Specifically, Afenir argues that although he waived his Miranda rights 

voluntarily, Rife materially misrepresented the purpose of the interview and, thus. he could not 

have intelligently waived his rights.  The sole issue heard by the trial court during Afenir's CrR 

3.5 hearing was whether the trial court should suppress his statements on Fifth Amendment 

                                               11 

No. 41311-6-II

voluntariness grounds.  Thus, Afenir's claim that his waiver was unknowing and unintelligent is 

raised for the first time on appeal.  RAP 2.5.  But to preserve a Miranda waiver advisement issue 

for appeal, Afenir must have raised the issue at his CrR 3.5 hearing.  State v. Campos-Cerna, 154 

Wn. App. 702, 710, 226 P.3d 185, review denied, 169 Wn.2d 1021 (2010).  Accordingly, as with 

Afenir's unreasonable search and seizure claims, Afenir has not preserved this challenge for appeal 

and we do not address it further.  RAP 2.5. 

Ineffective Assistance of Counsel

       Next, Afenir asserts that his trial counsel's failure to object to the admissibility of physical 

evidence amounts to ineffective assistance of counsel.  To establish ineffective assistance of 

counsel, Afenir must show that (1) his counsel's performance was deficient and (2) the deficient 

performance prejudiced him.  Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 

L. Ed. 2d 674 (1984); McFarland, 127 Wn.2d at 334-35.  Counsel's performance is deficient 

when it falls below an objective standard of reasonableness.  State v. Stenson, 132 Wn.2d 668, 

705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).  Prejudice would occur here if, 

but for his counsel's deficient performance, there is a reasonable probability that Afenir's sentence 

would have differed.  McFarland, 127 Wn.2d at 335 (citing State v. Thomas, 109 Wn.2d 222, 

225-26, 743 P.2d 816 (1987)). "'A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.'"  Thomas, 109 Wn.2d at 226 (emphasis omitted) (quoting Strickland, 

466 U.S. at 694).  

       We presume trial counsel performed adequately  and give "exceptional deference" to 

"strategic decisions."  State v. Goldberg, 123 Wn. App. 848, 852, 99 P.3d 924 (2004) (citing 

State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002)).  "'If trial counsel's conduct can be 

                                               12 

No. 41311-6-II

characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the 

defendant received ineffective assistance of counsel.'"  Golberg, 123 Wn. App. at 852 (quoting 

McNeal, 145 Wn.2d at 362).

       Here, as noted above, Afenir's trial counsel did not request a CrR 3.6 hearing to suppress 

physical evidence and did not object to the admission of several items of physical evidence.  

Counsel's argument at trial was that the State could not prove Afenir made the bedroom available 

for the purpose of Beck's selling or distributing drugs.  RCW 69.53.010.  Counsel relied on 

evidence showing that the bedroom was neatly kept, Afenir did not accept rental payments from 

either Beck or McCartney, Afenir did not give either person a key, neither Beck nor McCartney 

could remain in the apartment without Afenir present, and Beck would leave the apartment before 

returning with Afenir's methamphetamine to support this defense.  Counsel presumably presented 

these facts to distinguish the present case from Sigman, where the defendant rented a house to a 

friend for eight months, visited a number of times, gave the friend a key, and the odor of growing 

marijuana was overwhelming inside the house.  118 Wn.2d at 445.

       Counsel's trial strategy was consistent with his arguments for his motions to dismiss:  that 

the fact finder must find that Afenir's purpose in allowing Beck to use the bedroom was to deliver 

a controlled substance in order to enter a guilty verdict.  Thus, counsel's decision not to object to 

evidence supporting a finding that Beck was delivering drugs from the bedroom was tactical and 

strategic.  Given the "exceptional deference" we afford counsel's strategic decisions, we hold that 

Afenir's trial counsel's choice of argument was legitimate and not deficient.  Golberg, 123 Wn. 

App. at 852.  In addition, in light of evidence that Afenir consented to the initial police entry into 

his apartment and that the police obtained a warrant before conducting a successful search of 

                                               13 

No. 41311-6-II

Afenir's apartment, we hold that counsel's reasonable tactic cannot serve as a basis for Afenir's 

ineffective assistance of counsel claim.  Golberg, 123 Wn. App. at 852 (quoting McNeal, 145 

Wn.2d at 362).  Afenir's claim fails.

Knapstad Motion

       Next, Afenir argues that the trial court misinterpreted RCW 69.53.010(1), and if correctly 

interpreted, the evidence before the trial court was insufficient to make a prima facie case.  State 

v. Knapstad, 107 Wn.2d 346, 352, 729 P.2d 48 (1986).  Generally, we review issues of statutory 

interpretation and alleged errors of law de novo.  State v. Bunker, 169 Wn.2d 571, 577-78, 238 

P.3d 487 (2010) (citing City of Spokane v. County of Spokane, 158 Wn.2d 661, 672-73, 146 P.3d 

893 (2006)); State v. Lamb, 163 Wn. App. 614, 625 n.7, 262 P.3d 89 (2011), review granted, 

No. 86603-1 (Wash. Mar. 6, 2012).  We interpret statutes to give effect to the legislature's intent.  

Bunker, 169 Wn.2d at 577-78 (citing Spokane, 158 Wn.2d at 672-73).  We begin by examining 

the plain language of the statute.  Bunker, 169 Wn.2d at 578 (citing In re Forfeiture of One 1970 

Chevrolet Chevelle, 166 Wn.2d 834, 838-39, 215 P.3d 166 (2009)).       "'The plain meaning of a 

statute may be discerned from all that the Legislature has said in the statute and related statutes 

which disclose legislative intent about the provision in question.'"   Bunker, 169 Wn.2d 578 

(internal quotation marks omitted) (quoting Chadwick Farms Owners Ass'n v. FHC LLC, 166 

Wn.2d 178, 186, 207 P.3d 1251 (2009)).  Further, "'[a]n act must be construed as a whole, 

considering all provisions in relation to one another and harmonizing all rather than rendering any 

superfluous.'"  Bunker, 169 Wn.2d 578 (alteration in original) (quoting State v. George, 160 

Wn.2d 727, 738, 158 P.3d 1169 (2007)).  

       First, we determine whether the trial court erred in interpreting RCW 69.53.010(1).  As 

                                               14 

No. 41311-6-II

relevant to this case, RCW 69.53.010(1) provides that it is unlawful for any person who has 

management or control over any room as a lessee to knowingly "make available for use, with or 

without compensation," the room "for the purpose of unlawfully . . . delivering, selling, storing, or 

giving away any controlled substance."   Thus, the statute unambiguously requires the State to 

prove beyond a reasonable doubt that Afenir (1) had control (2) over a room (3) as a lessee, and 

that (4) he made the room available for use, with or without compensation, (5) for the purpose of 

unlawfully "delivering, selling, storing, or giving away" (6) any controlled substance.  The trial 

court, finding that "knowingly make available" meant "knowingly allow," framed the issue as 

whether Afenir knew of "Beck's activities of allegedly selling or giving away methamphetamine 

within his apartment and did he allow it to continue." CP at 25; Sigman, 118 Wn.2d at 446-47.  

       Afenir argues that the State failed to prove that his purpose in making the bedroom 

available to Beck was so that Beck could deliver drugs from the bedroom.  But a plain reading of 

the statute does not support his contention that the statute requires the State to prove any such 

element.  RCW 69.53.010(2) provides a statutory defense: 

       It shall be a defense for an owner, manager, or other person in control pursuant to 
       subsection (1) of this section to, in good faith, notify a law enforcement agency of 
       suspected drug activity pursuant to subsection (1) of this section, or to process an 
       unlawful detainer action for drug-related activity against the tenant or occupant.

Read as a whole, RCW 69.53.010 provides that when the person in control of a space makes the 

space available to another person who then uses the space for illegal drug-related activities, he or 

she will not be found in violation of RCW 69.53.010(1) if he or she reports the drug-related 

activity to a law enforcement agency.  Stated another way, the statute does not require that 

Afenir's purpose in making the bedroom available to Beck was so that Beck could distribute 

                                               15 

No. 41311-6-II

drugs; it requires only that once the space is made available, Afenir does not knowingly allow 

Beck to conduct illegal drug activity from the bedroom.  See Sigman, 118 Wn.2d at 446-47.  

                                               16 

No. 41311-6-II

       Second, we determine whether the trial court erred in denying Afenir's Knapstad motion.  

The trial court may dismiss a charge without prejudice when the State's pleadings fail to support a 

prima facie showing of all the elements of the crime charged.  State v. Snedden, 112 Wn. App. 

122, 127, 47 P.3d 184 (2002) (citing Knapstad, 107 Wn.2d at 352), aff'd, 149 Wn.2d 914, 73 

P.3d 995 (2003).  We review de novo a trial court's denial of a Knapstad motion and view the 

facts and all reasonable inferences in the light most favorable to the State.  State v. O'Meara, 143 

Wn. App. 638, 642, 180 P.3d 196 (2008) (citing State v. Missieur, 140 Wn. App. 181, 184, 165 

P.3d 381 (2007)).  We will affirm the trial court unless no rational fact finder could have found 

the essential elements of the crime beyond a reasonable doubt.  O'Meara, 143 Wn. App. at 641 

(citing State v. Wilhelm, 78 Wn. App. 188, 191, 896 P.2d 105 (1995)).

       Here, the unchallenged facts provide that Afenir rented the small one-bedroom apartment 

and that he allowed Beck and McCartney to stay in the bedroom while he slept on a couch in the 

living room.  The bathroom could be accessed only by walking through the bedroom.  The police 

found a police scanner, drug paraphernalia with methamphetamine residue, electronic scales, and 

papers with writing indicating money owed and paid inside the bedroom.  Afenir admitted that he 

took methamphetamine from Beck on a few occasions and that he knew Beck was "dealing 

methamphetamine."    CP at 26.  These facts clearly establish a prima facie case.  O'Meara, 143 

Wn. App. at 642 (citing Missieur, 140 Wn. App. at 184).  Accordingly, the State sufficiently 

countered Afenir's claim that it did not establish a prima facie claim.  O'Meara, 143 Wn. App. at 

641 (citing Wilhelm, 78 Wn. App. at 191).  

                                               17 

No. 41311-6-II

Motion to Dismiss

       Next, Afenir asserts that the trial court erred in denying his motion to dismiss made after 

the State rested its case.6 But we cannot review this assignment of error because Afenir "waived 

his challenge to the sufficiency of the [S]tate's case by putting on evidence in his own behalf after 

the court denied his motion to dismiss."  State v. Allan, 88 Wn.2d 394, 396, 562 P.2d 632 (1977) 

(citing Goodman v. Bethel Sch. Dist. No. 403, 84 Wn.2d 120, 123, 524 P.2d 918 (1974); State v. 

Mudge, 69 Wn.2d 861, 862, 420 P.2d 863 (1966); State v. Thach, 5 Wn. App. 194, 200, 486 

P.2d 1146, review denied, 79 Wn.2d 1012 (1971)).

RCW 69.53.010 Constitutionality, As Applied

       Last, Afenir asserts that RCW 69.53.010(1) is unconstitutional as applied to his case 

because it punishes his "state of mind" -- his "knowing" --  rather than any culpable act.  Afenir's 

argument lacks both factual and legal merit.

       We presume that statutes are constitutional and Afenir bears the burden of overcoming 

this presumption.  State v. Jarvis, 160 Wn. App. 111, 117, 246 P.3d 1280 (citing State v. Thorne, 

129 Wn.2d 736, 769-70, 921 P.2d 514 (1996)). review denied, 171 Wn.2d 1029 (2011).         Here, 

Afenir is correct that the State must prove, among other things, that he knew Beck conducted 

illegal drug-related activities in the bedroom.  However, Afenir incorrectly asserts that RCW

69.53.010(1) lacks a culpable act requirement.  

       In RCW 69.53.010(1), the legislature legitimately criminalizes a person's failure to act.  

6 Although Afenir also assigns error to the trial court denying his December 16, 2009 motion to 
dismiss, he does not offer any argument in support of his assignment of error in his appellate brief.  
We do not review assignments of error that are unsupported by pertinent authority, references to 
the record, or meaningful analysis.  RAP 10.3(6); Cowiche Canyon Conservancy v. Bosley, 118 
Wn.2d 801, 809, 828 P.2d 549 (1992).  Accordingly, we do not address whether the trial court 
erred in denying Afenir's December 16, 2009 motion to dismiss.
                                               18 

No. 41311-6-II

See, e.g., State v. Eaton, 168 Wn.2d 476, 482 n.2, 299 P.3d 704 (2010) (citing RCW 9A.76.030 

(criminalizing refusal to summon aid for a peace officer); RCW 9A.84.020 (criminalizing failure to 

disperse)); see also RCW 9.69.100 (crime for eyewitness to fail to report violent crime against a 

child).  Specifically, the statute criminalizes a person's failure to report to law enforcement a 

perpetrator conducting unlawful drug-related activities in a space the person controls and made 

available.  RCW 69.53.010(1).  That the failure to act is itself a culpable act is shown further by 

RCW 69.53.010(2), which provides a statutory defense to any person who reports such activity to 

a law enforcement agency.  Afenir has failed to meet his burden to overcome the presumption that 

RCW 69.53.010(1) is constitutional and his claim fails.

       Accordingly, we affirm Afenir's conviction for making a space under his control available 

for the purpose of selling methamphetamine.  RCW 69.53.010(1).  

       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.

                                                 QUINN-BRINTNALL, J.
I concur in result only:

ARMSTRONG, P.J.

I concur:

HUNT, J.

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