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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED
                                                                          APRIL 12, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  29708-0-III
                                                )
                             Respondent,        )
                                                )         Division Three 
         v.                                     )
                                                )
CHRISTOPHER WAYNE TAYLOR,                       )
                                                )         UNPUBLISHED OPINION
                             Appellant.         )
                                                )

       Sweeney, J.  --  The State must rely on only a single act to convict, where there is 

evidence of multiple acts to support a crime, or the court must instruct the jury to 

unanimously agree on a single act.  But multiple acts that amount to a continuing course 

of conduct do not require an election by the State or a unanimity instruction by the court.  

And that is what we have here.  Police seized and searched the defendant and found 

heroin, in various stages of production, together with drug paraphernalia.  The State was 

then not required to elect what drugs it relied on for the charge of possession and the 

court did not have to give a unanimity instruction.  We affirm the conviction for 

possession of heroin and possession of drug paraphernalia.   

No. 29708-0-III
State v. Taylor

                                            FACTS

       Police stopped a car for a defective headlight.  Four people were in the car.  The 

officer arrested the driver and placed him in the back of a patrol car. Another officer 

noticed Christopher Taylor, the passenger in the front seat, digging under his seat.  He

ordered Mr. Taylor to stop and show his hands but Mr. Taylor continued digging. The 

officer threatened to use a stun gun on him.  Mr. Taylor promptly raised his hands.  He 

held hypodermic needles.  Mr. Taylor then discharged the liquid in the syringes onto his 

shorts and threw the syringes out of the car.  The officer removed Mr. Taylor from the 

car, handcuffed him, and placed him in the back of a patrol car.  

       Police ordered the two remaining passengers out of the car and searched them and 

the car.  An officer found a spoon covered in a brown sticky residue on the front right 

corner where Mr. Taylor sat.  The sticky substance looked and smelled like black tar 

heroin.  The officer also found two pill bottles with Mr. Taylor's name on them on the 

floor behind the passenger seat.  The bottles contained pills, plastic bags with a black tar 

substance inside, and a baggy with a green vegetable substance inside.  The syringes Mr. 

Taylor discarded also contained heroin.  

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No. 29708-0-III
State v. Taylor

       The State charged Mr. Taylor with one count of possession of heroin and one 

count of unlawful use of drug paraphernalia.  Mr. Taylor moved to suppress the physical 

evidence.  The trial court denied his motion but without entering written findings of fact 

or conclusion of law  

       The case proceeded to a jury trial.  The arresting officer testified.  He testified

generally on the use of, form of, and preparation of heroin.  And the officer testified that 

material and paraphernalia he found near Mr. Taylor's seat were all related to heroin use.  

The jury found Mr. Taylor guilty of both charges.  

                                        DISCUSSION

Unanimous Verdict

       Mr. Taylor contends that he was denied his constitutional right to a unanimous 

verdict because the evidence showed multiple acts, any of which could have satisfied the 

elements of the crimes with which he was charged.  He claims he was entitled to a 

unanimity instruction.  He did not ask the court to so instruct but argues for it now

because of the constitutional implications when the State fails to rely on a single act.  

Const. art. I, § 21; RAP 2.5(a)(3); State v. Fiallo-Lopez, 78 Wn. App. 717, 725, 899 P.2d 

1294 (1995).  We review his assignment of error de novo.  State v. Bradshaw, 152 Wn.2d 

528, 531, 98 P.3d 1190 (2004).  

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No. 29708-0-III
State v. Taylor

       Mr. Taylor is correct.  The State must elect to rely on a single act or the court must 

instruct the jury to agree unanimously on a single act when multiple acts could support a 

single charged crime.  State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984), 

overruled in part by State v. Kitchen, 110 Wn.2d 403, 405-06, 756 P.2d 105 (1988).  But 

no election or unanimity instruction is needed if the defendant's acts were part of a 

continuing course of conduct.  State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989).  

The conclusion -- continuing course of conduct -- follows when the acts promoted one 

objective and occurred at the same time and place.  Petrich, 101 Wn.2d at 571; State v. 

Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996).  

       Division One of this court considered the concept of continuing course of conduct 
in a drug possession case in State v. King.1 Police stopped a car.  Mr. King was a 

passenger in the car.  King, 75 Wn. App. at 901.  Police searched and found cocaine 

between the seats and in Mr. King's fanny pack.  Id.  The State charged Mr. King with a 

single count of possession and the matter proceeded to trial before a jury.  Mr. King 

argued that police planted the cocaine in the fanny pack.  Id. at 901-02.  The jury found 

him guilty.  He appealed and assigned error to the court's failure to give a unanimity 

instruction.  Division One reversed.  The court concluded that, rather than a continuing 

       1 State v. King, 75 Wn. App. 899, 878 P.2d 466 (1994).

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No. 29708-0-III
State v. Taylor

course of conduct, the evidence showed "two distinct instances of cocaine possession 

occurring at different times, in different places, and involving two different containers."  

Id. at 903.  And the evidence varied on both drug possessions; one instance was 

constructive, the other was actual.  Id. 

       Division One also addressed the question of continuing course of conduct in Love.  

There police found five rocks of cocaine in Mr. Love's pocket but no paraphernalia 

needed to use the cocaine.  Love, 80 Wn. App. at 359.  They also found 40 rocks of 

cocaine in Mr. Love's home, along with drug paraphernalia and a large amount of money.  

Id.  The State charged Mr. Love with a single count of possession with intent to deliver.  

At trial, Mr. Love contended that police planted all of the cocaine.  Id. at 359-60.  The 

jury found him guilty.  He appealed and assigned error to the court's failure to give a

unanimity instruction.  Id. at 360.  Division One concluded that the possessions amounted 

to a continuing course of conduct because the single objective was to sell cocaine.  Id. at 

362.  And so unlike King, there was no reason to distinguish between the cocaine found 

in Mr. Love's pocket and the cocaine found in his home, his theory of the case was that

the police planted all of it.  Id. at 363. 

       Here possession occurred at the same time (the traffic stop) and place (the car and 

near the seat he occupied) and promoted a single objective (use of heroin).  And Mr. 

                                               5 

No. 29708-0-III
State v. Taylor

Taylor did not claim that the police planted any of it.  The evidence taken together 

showed heroin in its different stages of production.  We conclude that these are not then 

separate discrete acts but rather amount to a continuous course of conduct.

Failure To Enter Findings and Conclusions 

       Mr. Taylor contends that his case must be remanded because the court failed to 

enter written findings of fact and conclusions of law after ruling on his motion to 

suppress.  See CrR 3.6(b); State v. Cunningham, 116 Wn. App. 219, 226, 65 P.3d 325 

(2003). He does not challenge the court's refusal to suppress the drug evidence.  

       The court was required to make written findings of fact and conclusions of law 

following an evidentiary hearing on a motion to suppress.  Cunningham, 116 Wn. App. at 

226.  It did not do so here.  And the failure to do so is a reoccurring and troublesome 

problem, at least here in eastern Washington.  We cannot divine what the court did (other 

than deny a motion to suppress) without conclusions of law.  And we cannot determine 

why the court did it without specific findings of fact.  And, while the court's oral opinion 

is sometimes sufficient, it is just as often incomplete, ambiguous or vague on what 

specifically the judge found and his or her legal reasons for refusing to suppress the 

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No. 29708-0-III
State v. Taylor

evidence. So whether written findings and conclusions are prepared by the State or 

dictated into the record by the judge, as part of her ruling, they are important and should 

be an automatic part of the process.  

       Here, we are able to glean the essential findings necessary to pass on the challenge 

from the court's ruling:

              But, first of all as to my findings of fact, I was quite impressed with 
       the prosecutor's recitation of the facts.  I had comprehensive notes, and I 
       think she had all the facts just right on point, and they were all as I heard 
       the testimony and as I would find.  So that would simply be my findings of 
       fact.[2]
              And then I think the attorneys then just focused in on the one big 
       issue that we have, or the one nub, if you will, in this case, and that is 
       whether or not the officer was permitted to search the vehicle without a 
       search warrant, and he found the spoon with the alleged heroin on it, and 
       the prescription bottles with  --  what he believed to be black tar heroin. 
              And he didn't have probable cause to search those vehicles [sic] for 
       evidence of a crime, I suppose  --  Well, he didn't.  And he didn't have a 
       search warrant.  So there has to be some other warrantless exception that 
       applies in order for that search to be upheld, in order for the evidence 
       seized from that search to be admitted.  If there's not a recognized 
       exception in law for the search warrant requirement then that evidence 
       found in the car, to wit, the spoon with the substance on it and the 
       prescription bottles, must be suppressed in this case. 
              . . . .
              And so we have that as a background, where we have a passenger, 
       the defendant, not complying with the officer's orders  --  He's not 
       threatening the officer directly but he's not complying with the orders of the 
       officer.  We have that as a background.  We have two passengers who have 
       decided to stay, and one has a double-bladed knife, and as testified by the 

       2 The prosecutor's recitation of the facts, as adopted by the court, can be found at 
Report of Proceedings (RP) (Oct. 21, 2010) at 233-37.

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No. 29708-0-III
State v. Taylor

       officer that creates even more danger than a single-bladed knife.  And we 
       have this in the evening, and the officer testified that he felt he'd be safer if 
       he had the two passengers placed back in the car; that way he had them in a 
        --  in a location where they were secured and he'd be safer, rather than just 
       walking around and maybe coming out of a secreted location, bushes, for 
       instance. 
              . . . I think that it was reasonable to search the car, then, for 
       weapons. 
              . . . .
              And so, the defendant's motion to suppress the evidence in this case 
       is denied.  The authority I cite, again, for searching the vehicle was  --  the 
       Kennedy case [107 Wn.2d 1, 726 P.2d 445 (1986)], and also parts of the 
       Glossbrener case, [146 Wn.2d 670, 49 P.3d 128 (2002)].
Report of Proceedings (Oct. 21, 2010) at 251-56.  

       The court's oral ruling, then, sufficiently outlined the facts and legal authority 

supporting its decision to deny the suppression motion.  It found that Officer Hintz had a 

reasonable belief that there were weapons in the area that Mr. Taylor had been reaching 

(under the seat).  Id. at 255. It also found that Officer Hintz was justified in looking in 

that area for weapons.  Id. 

       We affirm the convictions.

       A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

                                                           _________________________
                                                           Sweeney, J.

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No. 29708-0-III
State v. Taylor

WE CONCUR:

__________________________                                 ___________________________
Korsmo, C.J.                                               Brown, J.

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