[No. 36194-9-II. Division Two. March 25, 2008.]
[1] Criminal Law Dismissal of Charge Pretrial Determination Review Test. A reviewing court will not uphold a trial court's pretrial dismissal of a criminal charge on a Knapstad motion (State v. Knapstad, 107 Wn.2d 346 (1986)) unless no rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt. [2] Appeal Conclusions of Law Review Standard of Review. A trial court's conclusions of law are reviewed de novo. [3] Criminal Law Dismissal of Charge Pretrial Determination Review Standard of Review. A trial court's pretrial dismissal of a criminal charge on a Knapstad motion (State v. Knapstad, 107 Wn.2d 346 (1986)) is reviewed by an appellate court de novo, viewing the facts and all reasonable inferences in the light most favorable to the State. [4] Criminal Law Dismissal of Charge Pretrial Determination Test. A defendant seeking the dismissal of a charge before trial on a Knapstad motion (State v. Knapstad, 107 Wn.2d 346 (1986)) must establish that no material facts are in dispute and that the undisputed facts are insufficient as a matter of law to establish a prima facie case of guilt. [5] Criminal Law Dismissal of Charge Pretrial Determination Disputed Material Facts. A criminal charge may not be dismissed before trial on a Knapstad motion (State v. Knapstad, 107 Wn.2d 346 (1986)) if the State, by affidavit, specifically denies the material facts alleged in the defendant's affidavit. If material factual allegations in the defendant's motion are denied or disputed by the State, the motion must be denied. [6] Criminal Law Dismissal of Charge Pretrial Determination Refiling Charge. The dismissal of a charge under the procedure established by State v. Knapstad, 107 Wn.2d 346 (1986), is without prejudice to the State, which may refile the charge based on additional evidence. [7] Controlled Substances Possession Drug Paraphernalia Statutory Provisions Elements. The elements of a charge of unlawful use of drug paraphernalia under RCW 69.50.412(1) are (1) use of drug paraphernalia (as defined in RCW 69.50.102(a)) (2) to "store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body" (3) a controlled substance. [8] Criminal Law Trial Taking Case From Jury Sufficiency of Evidence Circumstantial Evidence. In considering the sufficiency of the evidence to support a criminal conviction, circumstantial evidence can be equally as reliable as direct evidence. [9] Controlled Substances Possession Drug Paraphernalia Proof Sufficiency. In light of the RCW 69.50.102 definition of "drug paraphernalia," the possession of a baggie of marijuana together with the possession of a playing card tin and a pipe containing marijuana residue will support a prosecution for unlawful use of drug paraphernalia under RCW 69.50.412(1). Nature of Action: Prosecution of a juvenile for unlawful possession of marijuana and unlawful use of drug paraphernalia. Superior Court: After dismissing the drug paraphernalia charge with prejudice for lack of sufficient evidence, the Superior Court for Jefferson County, No. 07-8-00016-1, Craddock D. Verser, J., on April 12, 2007, entered a judgment on a plea of guilty to the unlawful possession of marijuana charge. Court of Appeals: Holding that evidence of the juvenile's possession of a container and pipe containing marijuana residue was sufficient to support the charge of unlawful use of drug paraphernalia, the court reverses the dismissal order and remands the case for further proceedings. Juelie B. Dalzell-, Prosecuting Attorney, for appellant. Thomas E. Weaver, Jr.-, for respondent. Ά1 VAN DEREN, A.C.J. The State of Washington appeals the trial court's dismissal with prejudice of its charge against Thomas Chad O'Meara for unlawful use of drug paraphernalia. The State contends that it had asserted a prima facie case; therefore, granting the juvenile defendant's pretrial motion for dismissal was error. Holding that the trial court's dismissal with prejudice was error, we reverse the trial court's order and remand for further proceedings. FACTS Ά2 On March 1, 2007, the police arrested O'Meara on outstanding warrants unrelated to this appeal. While searching O'Meara incident to his arrest, the police discovered a plastic baggie containing marijuana, a playing card tin allegedly containing marijuana residue, and a smoking pipe allegedly containing marijuana residue. The State charged O'Meara with one count of possession of marijuana in violation of RCW 69.50.4014 and one count of use of drug paraphernalia in violation of RCW 69.50.4121. Ά3 At the hearing on the Knapstad motion, the trial court questioned the construction of RCW 69.50.412 and interpreted prior cases to hold that, in order to infer use from possession of drug paraphernalia, the State must offer some evidence that the possessor was under the influence of the drug when found with the paraphernalia. The trial court noted that O'Meara had been found with a playing card tin and pipeboth allegedly containing marijuana residueand acknowledged that it was unlawful to use drug paraphernalia to either store or inhale a controlled substance. But the trial court ruled that: I was very tempted to go in the direction that [the State suggested by] saying, well, having the marijuana in the [playing card tin] itself is using drug paraphernalia to store a controlled substance. But none of these other cases went that direction . . . . I don't know that you can do that. . . . . . . . [T]here wasn't anything in [O'Meara's] behavior to indicate that he had used [the pipe]. There's no doubt in my mind that [he] had used it, but, under the facts of the case, the facts as presented, there's no indication - [t]here's no bizarre behavior or the fact that [he was] under the influence or anything like that in the report. And so I can't find that he had used the pipe. Report of Proceedings (RP) (Apr. 12, 2007) at 7-8. Ά4 The trial court sentenced O'Meara to 12 months of community supervision with conditions and 5 days of community restitution work for unlawful possession of marijuana. It granted O'Meara's Knapstad motion and dismissed the charge of unlawful use of drug paraphernalia with prejudice. Ά5 The State appeals. ANALYSIS As used in this chapter, "drug paraphernalia" means all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance. Ά10 Here, the plastic baggie containing marijuana, the playing card tin, and the pipe were all found together in O'Meara's backpack. Both the playing card tin and the pipe appeared to contain marijuana residue. And "[c]ircumstantial evidence provides as reliable a basis for findings as direct evidence." State v. Bright, 129 Wn.2d 257, 270, 916 P.2d 922 (1996). Therefore, a rational trier of fact could conclude beyond a reasonable doubt that O'Meara used the playing card tin for storage of marijuana and used the pipe to inhale marijuana, both of which are violations of RCW 69.50.412. See State v. Neeley, 113 Wn. App. 100, 108, 52 P.3d 539 (2002) (noting that the circumstantial factors can establish an inference that paraphernalia was used); Williams, 62 Wn. App. at 752-53 (noting that the existence of residue of controlled substances on an object will support an inference that the object is drug paraphernalia). Ά11 O'Meara relies on In re Dowling, 98 Wn.2d 542, 656 P.2d 497 (1983), overruled on other grounds by State v. Collins, 112 Wn.2d 303, 771 P.2d 350 (1989), to also argue that even if we reverse the dismissal of the unlawful use of drug paraphernalia charge and remand for further proceedings, trial on this charge would amount to double jeopardy. But this argument was not raised below and did not form the basis of the trial court's decision to dismiss the use of drug paraphernalia charge, and it is not fully briefed or argued on appeal. Thus, we do not further discuss it. Ά12 We conclude that it was error for the trial court to dismiss the charge of unlawful use of drug paraphernalia against O'Meara with prejudice before trial. Ά13 We reverse the trial court's dismissal of the charge of use of drug paraphernalia with prejudice and remand for further proceedings. QUINN-BRINTNALL and PENOYAR, JJ., concur.