IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, ) ) No. 73191-2-1 Respondent, ) ) DIVISION ONE v. ) ) JAMES MASTER OCAIN, ) UNPUBLISHED OPINION ) Appellant. ) FILED: April 18,2016 ) o a coo

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Becker, J. — James O'Cain1 was convicted of six counts ofpossession ofa controlled substance with intent to deliver. Two ofthe convictions were for cocaine, two for methamphetamine, and two for heroin. Doublejeopardywas not violated when O'Cain's convictions were for possessing three different drugs with the intent to deliver because the convictions were different in law and in fact. 

### Doublejeopardywas violated when O'Cain was convicted twice forpossessing 

### the same drugs with the intent to deliver. Such convictions constitute one unit of prosecution where there were not two distinct intents to deliver. We remand.

1 In the amended information, the name ofthe defendant James Master 

### O'Cain was misspelled as James Master Ocain. The proper spelling of his name 

### will be used in the opinion with the exception of the caption, which has notbeen changed.No. 73191-2-1/2
FACTS On October7, 2013, the King County Sheriff's Office obtained a warrantto search appellant James O'Cain's person, apartment, and two cars. One week later, on October 14, 2013, a team of detectives and a supervising sergeant went to O'Cain's apartment to execute the search warrant. The detectives searched O'Cain's person. In his jacket pocket, they 

### found, among other items, a plastic sandwich bag containing small rocks ofcrack cocaine, three small dime bags ofmethamphetamine imprinted withgolden skulls on a black background, 0.3 grams each, and a baggie containing about 16 individually-packaged portions of heroin, 0.14 grams each. The detectives also searched O'Cain's apartment. Inthe master bedroom closet, detectives found a locked file cabinet. Inside the file cabinetwas a locked safe. Inside the locked safe, detectives found, among other items, a 66.3-gram 

### brick ofpowdercocaine, a pill containerholding a single baggie of 28 grams of methamphetamine, and a 27-gram lump of heroin. The safe also contained two 

### small digitalscales and more golden-skull-imprinted baggies. O'Cain was charged byamended information with six counts of 

### possession of a controlledsubstance with intent to deliver. Two ofthese counts charged cocaine, twocharged methamphetamine, and twocharged heroin, corresponding to the drugs found inO'Cain'sjacketpocket and in the locked safe. A jury found O'Cain guilty as charged. O'Cain appeals.No. 73191-2-1/3
CHALLENGE TO SEARCH WARRANT Inthe detective's affidavit supporting probable cause for the warrant, the 

### detective reported that O'Cain sold drugs to a confidential informant on four separate occasions. Before trial, O'Cain soughtto challenge the search warrant. The detective refused to reveal the identity ofthe confidential informant or any 

### further details regarding O'Cain's alleged drug sales to the informant. O'Cain moved the trial court for an incamera hearing to determine whetherthere was 

### probablecauseto search his person and apartment, pursuant to State v. Casal, 103 Wn.2d 812, 818, 699 P.2d 1234 (1985). The trial court denied his request, 

### stating that the basis for his request was speculative and that he had not demonstrated any inconsistency or the requiredmateriality. O'Cain assigns error to the trial court's refusal to conduct an in camera hearing. 

### There is a presumption ofvaliditywith respect to the affidavit supporting a search warrant. Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 57 L. 

### Ed. 2d 667 (1978). Beforethe defendantwill beallowed a hearing tochallenge the warrant, he must make a substantial preliminary showing that the affiant 

### knowingly andintentionally, orwith reckless disregard forthetruth, included a false statement inthe warrant affidavit. Franks, 438 U.S. at 155-56. When a 

### defendant isfaced with a confidential informant, however, he "lacks access to the 

### very information thatFranks requires for athreshold showing offalsity." Casal, 103Wn.2dat818. 

### Anin camera hearing under Casal can solve this problem. Atrial court should exercise its discretion to conduct an incamera examination of the affiantNo. 73191-2-1/4 

### or confidential informant where a defendant presents information which (1) casts
a reasonable doubt on the veracity of material representations made by a search warrant affiant and (2) the challenged statements are the sole basis for probable

cause to issue the search warrant. Casal, 103 Wn.2d at 813. As to the first prong, O'Cain argues that he has metthe Casal threshold 

### by submitting repair shop invoices showing thatthe carthe detective said O'Cain
was driving was inthe repair shop during some ofthe time period at issue. But 

### the type ofcardriven by O'Cain was immaterial to the issue ofprobable cause to search O'Cain's person and apartment, where all the drugs in question were 

### found. No drugs were found inO'Cain's cars. Even ifthe type ofcarwere 

### material, the repair shop invoices presented by O'Cain do not cast a reasonable doubt on the veracity ofthe detective's representations regarding these cars. The detective wrote in his affidavit that "within the last week" he saw O'Cain 

### driving his Cadillac at a drug sale to a confidential informant and also sawthis
same Cadillac parked behind O'Cain's apartment building. The detective's affidavit was dated October 7, 2013, so "within the last week" would be 

### approximately September 30 to October 6, 2013. The repair shop invoices submitted by O'Cain show that this Cadillacwas in the shop on the morning of October 1, 2013, and from October4 through 11, 2013. This leaves several 

### days, including September 30, part of October 1, and October 2 and 3, that the detective could have seen the Cadillac as he alleges. The detective's affidavit, 

### on itsface, is not inconsistentwiththe repair shop invoices submitted by O'Cain.No. 73191-2-1/5 

### O'Cain has notcast a reasonable doubt on the veracity of the detective's representations regarding these cars. O'Cain also argues that he met the Casal threshold by submitting internal investigation documents from the King County Sheriff's Office. The documents showed thatthe affiant detective had been disciplined inthe pastfor giving a false report regarding his personal vehicle being stolen from his house, and that he had once been reprimanded for referring to a juvenile as "'monkey butt'" or "'monkey boy.'" O'Cain argues that the affiant detective should have disclosed this past disciplinary history in his affidavit. He cites no authority requiring such disclosure. Both ofthese incidents occurred over 15 years ago. They are unrelated to the information in the search warrant. O'Cain has not specified how the detective's past discipline casts a reasonable doubt on any specific material representation that the detective made inthe affidavit. As to the second prong ofthe Casal test, the statements challenged by O'Cain are not the sole basis for probable cause to issue the search warrant. The detective's affidavit details how he and other detectives observed O'Cain 

### selling drugs to a confidential informant on four separate occasions. These drug sales, ratherthan the type ofcardriven by O'Cain, were the basis for probable

cause to issue the search warrant. DOUBLE JEOPARDY 

### On appeal, O'Cain makes two doublejeopardy arguments. He first 

### argues that all six of his convictions forpossession of a controlled substance with intentto deliver constitute a single "unit ofprosecution" based on the to-convictNo. 73191-2-1/6 

### jury instructions. Alternatively, he argues it is a doublejeopardy violation to convict him twice for possessing the same drug at the same time and place. Whether a criminal defendant is placed in doublejeopardy in a particular circumstance is a question oflaw that we review de novo. State v. Womac, 160 Wn.2d 643, 649, 160 P.3d 40 (2007). The doublejeopardy clause ofthe Fifth Amendment and article I, section 9 ofthe Washington Constitution protect defendants against multiple punishments for the same offense. To determine if a defendant has been punished multiple times for the same offense, the Washington Supreme Court has traditionally 

### applied the "same evidence" test. State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995). The same evidence test mirrors the federal "same elements" standard adopted in Blockburqerv. United States. 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). Underthe same evidence test, doublejeopardy is violated if a defendant is convicted ofoffenses which are the same in law and in fact. Calle, 125 Wn.2d at 777-78. Ifeach offense, as charged, includes elements not included inthe other, or requires proofof a fact thatthe other does not, the offenses are different and multiple convictions can stand. State v. Adel, 

### 136 Wn.2d 629, 633, 965 P.2d 1072 (1998). The same evidence test applies only to a situation where a defendant has multiple convictions for violating distinct or 

### separate statutory provisions. Adel, 136 Wn.2d at 633. In contrast, where the defendant is convicted of violating one statute 

### multiple times, the "unitof prosecution" test applies. Adel, 136Wn.2d at 633.No. 73191-2-1/7 The proper inquiry is what unit ofprosecution the legislature has intended as the punishable act under the specific criminal statute. Adel, 136 Wn.2d at 634. To determine ifdoublejeopardy was violated when O'Cain was convicted of possession with intent to deliver differentdrugs, we apply the same evidence test. See, e^, State v. O'Neal, 126 Wn. App. 395, 415-17, 109 P.3d 429 (2005) (holding same evidence test applies where defendant was charged with manufacturing two different drugs), affd, 159 Wn.2d 500, 150 P.3d 1121 (2007). O'Cain was charged with, and convicted of, unlawful possession with intentto deliverthree different drugs: cocaine, heroin, and methamphetamine. O'Cain's convictions for possessing with intentto deliverthe three different drugs were 

### different in fact because each required proof ofthe specific type of drug. The
same convictions were also different in law because he was charged with 

### separate violations of the criminal drug statutes. Hewas charged with possession with intent to deliver methamphetamine in violation of RCW 69.50.401 (2)(b). Hewas charged withpossession with intent to deliver cocaine and heroin in violation of RCW 69.50.401 (2)(a), which covers controlled substances classified in Schedules Iand II. Heroin is defined as a controlled substance in Schedule I, RCW 69.50.204(b)(11). Cocaine is defined as a controlled substance in Schedule II, RCW 69.50.206(b)(4). Thus, the convictions
were different in law. Because O'Cain's convictions for possession with intent to 

### deliver cocaine, methamphetamine, and heroin were different in fact and law, 

### doublejeopardywas not violated when his convictions were for different drugs.No. 73191-2-1/8 To determine ifdoublejeopardy was violated when O'Cain was convicted of two counts each ofpossession with intentto deliverthe same three drugs, we apply the "unit of prosecution" test. See, e.g., Adel, 136 Wn.2d at 634. InAdel, the Washington Supreme Court illustrated the unit ofprosecution test by discussing two cases where defendants were charged with two counts of possession with intentto deliverthe same drug: State v. McFadden, 63 Wn. App. 441, 820 P.2d 53 (1991), review denied, 119 Wn.2d 1002 (1992), and State v. Lopez, 79 Wn. App. 755, 904 P.2d 1179 (1995). In McFadden, the defendant went to an apartment to sell cocaine to an informant. Adel, 136 Wn.2d at 637-38. Police raided the apartment and caught McFadden with 5.5 grams ofcocaine. Adel, 136Wn.2d at 638. Police then searched the van McFadden had driven to the apartment and discovered another 

### 83.9 grams ofcocaine. Adel, 136 Wn.2d at 638. He was charged and convicted of two counts ofpossession with intentto deliver. Adel, 136 Wn.2d at 638. The 

### Washington Supreme Court said that two units ofprosecution were satisfied. The first unit ofprosecution was satisfied by McFadden's possession ofdrugs in the apartment, which he intended to sell to the people in the apartment. Adel, 136 Wn.2d at 638. The second unit ofprosecution was satisfied by McFadden's 

### possession ofthe drugs inthe van withthe "obvious intent to deliver them to unknown buyers inthe future." Adel, 136 Wn.2d at 638. "The two crimes were 

### premised on the showing that McFadden had two separate anddistinctintents to deliverdrugs in his possession—one intent to sell in the presentto the occupants

8No. 73191-2-1/9 

### ofthe apartment and one intentto sell drugs inthe future." Adel, 136 Wn.2d at 638. Adel then contrasted the facts ofLopez. Lopez was arrested in a car during a controlled drug buy with an informant. Adel, 136 Wn.2d at 638. Officers found the cocaine Lopez hadjust purchased from the informant on the floorboard ofthe car. They also found cocaine, unrelated to the present deal, on Lopez's person. Adel, 136Wn.2d at 638-39. "The cocaine on his person was packaged in 14 bindles and appeared to be intended for distribution." Adel, 136 Wn.2d at 639. Lopez was charged with two counts of possession with intent to deliver,
one count based on the cocaine he hadjust purchased from the informant and the other count based on the separate cocaine found on his person. Adel, 136 Wn.2d at 639. Adel held that there wasjust one unit of prosecution. "Lopez may have had two distinct quantities ofcocaine under his dominion and control, and evidence showed the two quantities came from separate sources, but none of that evidence was relevantto the unit of prosecution with intentto deliver. The evidence failed to establish more than one intentto deliverthe drugs inthe future—there were not two distinct intents to deliver, as there were in McFadden." Adel, 136 Wn.2d at 639. 

### Implicit inAdel's discussion ofLopez and McFadden is the recognition that conduct demonstrating a "separate and distinct" intentto deliverforms the unit of 

### prosecution forthe possession with intentto deliver statute. See also Inre Pers. Restraint of Davis, 142 Wn.2d 165, 175, 12 P.3d 603 (2000) (analyzing a charge 

### ofpossession with intent to manufacture underthe same statute and concludingNo. 73191-2-1/10 that a "separate and distinct" intentto manufacture drugs forms the unit of prosecution). The issue is thus whether O'Cain had a "separate and distinct" intent to deliverthe same drugs when they were found on his person versus in the locked safe. The State argues thatthe evidence in O'Cain's case is quite similarto McFadden and was sufficientfor thejury to conclude that O'Cain had separate and distincttemporal intents to deliver—present and future—for the drugs found on his person versus inthe safe. We disagree. In contrast to McFadden, O'Cain
was not inthe middle of a drug delivery when he was searched and arrested. He
was at home. There is no evidence that he was delivering drugs atthe time. Nor


### was there any evidence ofwhen O'Cain planned to deliver any ofthe drugs. The facts that some ofthe drugs were in hisjacket pocket and packaged in smaller,
more individually-sized packets is not evidence of when O'Cain intended to deliver them. The evidence does not show that O'Cain had an intent to deliver 

### the cocaine on his person thatwas separate and distinctfrom his intent to deliver the cocaine in the locked safe. The same is true ofthe methamphetamine and heroin. The evidence failed to establish more than one intentto deliver drugs in the future, as in Lopez. His convictions for possession with intentto deliverthe


### same drugs therefore punish a single unit ofprosecution. Hissecond convictions for cocaine, heroin, and methamphetamine violate doublejeopardy and must be stricken.

10No. 73191-2-1/11
EFFECT OF TO-CONVICT INSTRUCTIONS For each ofthe six counts, the court instructed thejury that to convict O'Cain itmust be proved that he "possessed a controlled substance, separate and distinct from conduct in" all the other counts with the intent to deliver each substance. O'Cain makes two arguments regarding the effect ofthese to-convict
instructions. 

### O'Cain argues that all six of his convictions constitute a single unit of prosecution "underthe law of the case" because none ofthe six to-convict jury instructions name the controlled substance at issue. He has not cited authority 

### indicating thatthe unit ofprosecution analysis depends on howthe offenses are defined inthe to-convict instructions. UnderAdel, the question is what unit of 

### prosecution the legislature intended as the punishable act under the specific
criminal statute. 

### O'Cain also raises a sufficiency ofthe evidence challenge based on the 

### jury instructions. Evidence is sufficient to support a conviction when, viewedin 

### the lightmost favorable to the State, a rational trier of fact could have foundguilt beyond a reasonable doubt. State v. Salinas, 119Wn.2d 192, 201, 829 P.2d 1068 (1992). O'Cain argues that there was insufficientevidence to prove that he 

### engaged in"separate and distinct" conduct forall six counts, as the jury instructions required. He cites State v. Hickman, 135Wn.2d 97, 954 P.2d 900 

### (1998). In criminal cases, the State assumes the burden ofproving otherwise unnecessary elements of the offense when such added elements are included 

### withoutobjection in the "toconvict" instruction. Hickman, 135Wn.2d at 102.

11No. 73191-2-1/12 O'Cain argues that a rational trier offact could not have found that his conduct as 

### to any one countwas separate and distinctfrom his conduct as to any other. He contends the evidence was sufficient to support only one count ofpossessing a controlled substance with intent to deliver. 

### After our doublejeopardy analysis above, only three ofO'Cain's convictions remain at issue, one for each distincttype ofdrug. The evidence was sufficientto prove that O'Cain engaged in separate and distinct conductforthese three convictions because the evidence showed that he possessed different drugs. In short, O'Cain fails to demonstrate that any of his convictions fail because ofthe use ofsix identical to-convict instructions that do not name the controlled substance. 

### O'Cain's requestfor a new trial is denied. Thejudgment is reversed and remanded to strike the three convictions that violate doublejeopardy.

WE CONCUR:



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