## 2013SEP-3 fell CM9

IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON STATE OFWASHINGTON, Respondent,

v. GARY ALAN CROW, Appellant. NO. 68348-9-1 DIVISION ONE

UNPUBLISHED OPINION
FILED: September3, 2013 Leach, C.J.

— Gary Crow appeals his conviction for unlawful use of a building for drug purposes under RCW 69.53.010. He claims that the trial court 

### erred by rejecting his proposed jury instructions defining a "meretricious relationship" and informing thejurors that ifthey found Crow and Rebecca Brice


### were in a meretricious relationship, the law presumed thattheyjointlyowned any property acquired during the course of that relationship. Because Crow fails to 

### demonstrate that the proposed instructions would not mislead thejury and that they stated the applicable law accurately, we affirm. FACTS On January 12, 2011, police officers served a search warrant on Crow's home in Arlington, Washington. During their search, the officers found a detached garage converted into three rooms for growing marijuana. They seized 90 marijuana plants from the garage and 28 starter plants from a bedroom intheNO. 68348-9-1 / 2 home. The State charged Crowwith unlawful use of a building for drug purposes under RCW 69.53.010. At trial, Crow testified that he and Brice began living together in 2003. 

### Although he proposed and gave Brice a ring, they never married. In 2006, Crow purchased the house in Arlington and moved there with Brice. In 2009, Brice told Crow that she wanted to become a medical marijuana 

### provider and grow marijuana in the house. Because Crow opposed this, they had a discussion. Crow described the result as, "Well, she won. She won the 

### argument basically." To allow Brice to grow the plants, Crow builtthe walls in a 

### detached garage and setup an electrical systemfor the grow lights. He also set 

### up lights in the house to enable Brice to grow starters. Crow did not tend or harvestthe plants. At the conclusion of the trial, Crow proposed two supplemental jury instructions. The first instruction stated, 

### If you find that Mr. Crow and Ms. Brice had a meretricious 

### relationship as defined in Instruction, the law presumes that 

### propertypurchased during the course of that relationship isjointly owned, and youare bound by that presumption unless youfind that ithas been overcome byclearand convincing evidence. His second proposed instruction stated, 

### A meretricious relationship is a stable, marital-like 

### relationship where both parties cohabitwith knowledge that a lawful 

### marriage between them does not exist. To determine whether a meretricious relationship existed between Mr. Crow and Ms. Brice 

### you may consider the following factors: (1) the continuity of -2-NO. 68348-9-1/3 cohabitation, (2) the duration ofthe relationship, (3) the purpose of the relationship, (4) the pooling of resources and services for joint projects, and (5) the intentofthe parties. The court rejected the proposed instructions, reasoning that the 

### instructions did notapply andwould confuse thejury.1 Thecourtexplained, "[l]t

seems to me thatto the extentthatthe defendant and Ms. Brice were co-owners, that would not mean that somehow he is immune from this statute if it is, in fact, proved that he is a co-owner." Thejury found Crow guilty as charged. The court sentenced him to one day ofconfinement, with creditfor time served. Crow appeals. STANDARD OF REVIEW We review a trial court's refusal to give a proposed jury instruction for an 

### abuse ofdiscretion.2 Atrialcourtabuses its discretionifits decision ismanifestly 

### unreasonable or based onuntenable grounds.3 "'Jury instructions are sufficient

1The court noted that "the more current term for meretricious relationship is committed and intimate relationship. Ifthe Court were to give an instruction, ! 

### would probably use that term." See Olver v. Fowler, 161 Wn.2d 655, 657 n.1, 168 P.3d 348 (2007) ("While this court has previously referred to such relationships as 'meretricious,' we . . . recognize the term's negative connotation. 

### Accordingly, we . . . substitute the term 'committed intimate relationship,' which accurately describes the status of the parties and is less derogatory." (citing Olver v. Fowler, 131 Wn. App. 135, 140 n.9, 126 P.3d 69 (2006))). The courtdid not rejectthe instructions on this basis. 

### 2Inre Pet, ofPouncv. 168 Wn.2d 382, 390, 229 P.3d 678 (2010). 

### 3State v. Emery. 161 Wn.App. 172, 190, 253 P.3d 413 (2011) (quoting State v. Allen. 159Wn.2d 1, 10, 147 P.3d 581 (2006)), affd, 174Wn.2d 741, 278 P.3d 653 (2012). -3-NO. 68348-9-1/4 when they allow counsel to argue their theory of the case, are not misleading, 

### andwhen read as awholeproperlyinformthetrieroffact oftheapplicablelaw."'4
ANALYSIS Crow claims that the trial court prevented him from arguing his theory of the case by rejecting his proposedjury instructions. Underhis theory, "Crow and Brice were co-owners, residing together on the property on which Brice was 

### growing marijuana and as a co-owner, the statutewas inapplicableto Crow." RCW 69.53.010(1) states, 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 orwithout compensation, the building, room, space, or enclosure for the purpose of unlawfully manufacturing, delivering, selling, storing, or giving away any controlled substance underchapter69.50 RCW. The court instructed thejury on the elements ofthe crime: 

### (1) That on or about January 12, 2011, the defendant knowingly made available for use a building, room, space, or enclosure, for the purpose of unlawfully manufacturing, or unlawfully storing, a controlled substance; 

### (2) That the building, room, space, or enclosure was under the defendant's managementand control as an owner; and (3) Thatthe acts occurred inthe State ofWashington.



### 4State v. Davis, 174 Wn. App. 623, 635, 300 P.3d 465 (2013) (internal quotation marks omitted) (quoting State v.Aquirre, 168 Wn.2d 350, 363-64, 229 P.3d 669 (2010)), petition for reviewfiled, No. 88878-7 (Wash. May 30, 2013). -4-NO. 68348-9-1 / 5 The court further instructed the jury, "The State must prove that the defendant knowingly allowed use of his property knowing the purpose was the unlawful manufacturing or unlawful storing ofmarijuana." 

### Crow attempts todistinguish this case from State v. Coria,5 in which the court held that community property the defendant and his wife co-owned and copossessed was "property of another" for purposes of the crime of malicious mischiefunder RCW 9A.48.080(1)(a). Crow argues, Ifthe gravamen of the "maintaining a building" charge is to "knowing make available" a space for the unlawful manufacturing and/or storing of a controlled substance one mustconclude thatthe State needs to establish that the person who is actually manufacturing and/or storing the controlled substance needs the permission and/or acquiescence ofthe ownerto do so. . . . IfMs. Brice was a co-owner, . . . she had a right equal to that of Mr. Crow to use the property. Neither his permission nor acquiescence was needed for her to grow marijuana.
. . .This statute is inapplicable to co-owners of property who have an equal right to occupy and use the property. Crow concedes that "the amount of marijuana found on the property exceeded that allowed for a medical marijuana user." He does not allege that the court's instructions misstated the law. We need not reach whether Brice co-owned the property or the status of Crow and Brice's relationship. Even ifCrow and Brice co-owned the property, 

### Crow fails to cite any authority supporting his claim that Brice's ownership would diminish or affect his liability under RCW 69.53.010. Regardless of Brice's 

### 5146 Wn.2d631, 640, 48 P.3d 980 (2002). -5-NO. 68348-9-1 / 6 

### ownership status, the law does not permit Crow to knowingly make the property available for her unlawful use. Crow does not dispute that he assisted with setting up the growing operation orthat he was an ownerofthe property. 

### Additionally, even if Brice co-owned the property, she had no right to interfere with Crow's coequal rights to use, possess, and benefitfrom the whole 

### property.6 By growing marijuana on theproperty illegally, Brice subjected the property to potential forfeiture.7 Because Crowfails to show thathis proposed instructions would not mislead thejury orthat they properly stated the applicable law, we reject his claim.
CONCLUSION Because Crow fails to establish that the trial court's jury instructions misstated the applicable law or that his proposed instructions would not mislead thejury and statedthe applicable law accurately, we affirm.

WE CONCUR: 

# )f)<^/r^o-J0,
6Butlerv. CraftEnq Constr. Co.. 67Wn. App. 684, 694, 843 P.2d1071 (1992) (citing De La Pole v. Lindlev. 131 Wash. 354, 358, 230 P. 144 (1924)). 

### 7RCW69.50.505(1)(h). -6-