Supreme Court of the State of Washington                                                                                          
                            Opinion Information Sheet                                                                                                 
Docket Number:       65565-1                                                                                                                          
Title of Case:       State of Washington                                                                                                              
                     Hussain Adel                                                                                                                     
File Date:           10/15/98                                                                                                                         
Oral Argument Date:  09/09/98                                                                                                                         
                                SOURCE OF APPEAL                                                                                                      
Appeal from Superior Court,                                                                                                                           
            Clark County;                                                                                                                             
            Honorable James D. Ladley, Judge.                                                                                                         
Authored by James M. Dolliver                                                                                                                         
Concurring: Barbara Durham                                                                                                                            
            Charles Z. Smith                                                                                                                          
            Richard P. Guy                                                                                                                            
            Charles W. Johnson                                                                                                                        
            Barbara A. Madsen                                                                                                                         
            Gerry L. Alexander                                                                                                                        
            Philip A. Talmadge                                                                                                                        
            Richard B. Sanders                                                                                                                        
                                COUNSEL OF RECORD                                                                                                     
Counsel for Petitioner(s)                                                                                                                             
            Mark W. Muenster                                                                                                                          
            Attorney At Law                                                                                                                           
            1010 Esther St                                                                                                                            
            Vancouver, WA  98660                                                                                                                      
            John S. Hutson                                                                                                                            
            Attorney At Law                                                                                                                           
            107 W 38th St                                                                                                                             
            Vancouver, WA  98660-1949                                                                                                                 
Counsel for Respondent(s)                                                                                                                             
            Kathleen A. Rukliss                                                                                                                       
            Clark Co. Deputy Pros. Atty.                                                                                                              
            Clark Co Pros Office                                                                                                                      
            PO Box 5000                                                                                                                               
            Vancouver, WA  98668                                                                                                                      
IN THE SUPREME COURT OF THE STATE OF WASHINGTON                                                                                                       
THE STATE OF WASHINGTON,                         )                                                                                                    
                    Respondent,                  )                                                                                                    
               v.                                ) 65565-1                                                                                            
HUSSAIN ADEL,                                    ) En Banc                                                                                            
                    Petitioner.                  ) Filed October 15, 1998                                                                             
     DOLLIVER, J.--Hussain Adel claims his two convictions for simple                                                                                 
possession of marijuana violate double jeopardy.  We agree, and we reverse                                                                            
one conviction.

     Hussain Adel was the owner and operator of a convenience store in                                                                                
Clark County.  Officers from the Clark-Skamania Drug Task Force contacted                                                                             
Adel in his store for an investigative stop.  The officers obtained Adel's                                                                            
consent to search both the store and Adel's car which was parked outside. 

     In the car's ash tray the officers found three cigarette butts.  The                                                                             
butts tested positive for marijuana and weighed 0.1 gram.  In the store the                                                                           
officers found marijuana around the cash register counter.  The evidence                                                                              
from the store weighed less than 0.2 gram.  In total, the marijuana                                                                                   
discovered both in the car and in the store amounted to less than 0.3 gram-                                                                           
-approximately the weight of three large paper clips.

     Adel was charged with two counts of simple possession of marijuana.                                                                              
One charge was based upon the marijuana fragments found in Adel's car, and                                                                            
the other charge was based upon the minuscule amount of marijuana found in                                                                            
the store.  The district court found Adel guilty on both charges. 

     The superior court affirmed Adel's two convictions in a one-page                                                                                 
ruling.  Adel sought discretionary review by the Court of Appeals, but a                                                                              
court commissioner denied review in a detailed ruling.  The Court of                                                                                  
Appeals declined to modify the commissioner's ruling.  We accepted the case                                                                           
for review to consider the double jeopardy issue.

     Adel did not raise the double jeopardy argument at trial, but the                                                                                
constitutional challenge may be raised for the first time on appeal.  State                                                                           
v. O'Connor, 87 Wn. App. 119, 123, 940 P.2d 675 (1997) (citing State v.                                                                               
Lopez, 79 Wn. App. 755, 761 n.2, 904 P.2d 1179 (1995)).

     The double jeopardy clause of the Fifth Amendment offers three                                                                                   
separate constitutional protections.  State v. Gocken, 127 Wn.2d 95, 100,                                                                             
896 P.2d 1267 (1995).  The state constitutional rule against double                                                                                   
jeopardy, Const. art. I, sec. 9, offers the same scope of protection as its                                                                           
federal counterpart.  Gocken, 127 Wn.2d at 107.  One aspect of double                                                                                 
jeopardy protects a defendant from being punished multiple times for the                                                                              
same offense.  Gocken, 127 Wn.2d at 100; State v. Calle, 125 Wn.2d 769,                                                                               
772, 888 P.2d 155 (1995). 

     If Adel's possession of marijuana in two places constitutes just one                                                                             
criminal act, or one "unit of prosecution," then Adel's two convictions                                                                               
violate double jeopardy by punishing him twice for the same offense.                                                                                  
Double jeopardy is implicated whether or not Adel's sentences are served                                                                              
concurrently or consecutively.  Ball v. United States, 470 U.S. 856, 865,                                                                             
105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985); Calle, 125 Wn.2d at 774-75.  A                                                                              
defendant's having two convictions creates other adverse consequences                                                                                 
besides jail time.  Adel's is a unique situation where the adverse                                                                                    
consequences of having two convictions are far greater than had there been                                                                            
one conviction.  As a legal alien, Adel is subject to deportation if                                                                                  
convicted of two drug charges.  See 8 U.S.C. sec. 1227(a)(2)(B)(i) (Supp.                                                                             
II 1996). 

     To determine if a defendant has been punished multiple times for the                                                                             
same offense, this court has traditionally applied the "'same evidence'"                                                                              
test.  Calle, 125 Wn.2d at 777.  Under the same evidence test, double                                                                                 
jeopardy is violated if a defendant is convicted of offenses which are the                                                                            
same in law and in fact.  Calle, 125 Wn.2d at 777-78.  The same evidence                                                                              
test mirrors the federal "same elements" standard adopted in Blockburger v.                                                                           
United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 2d 306 (1932).                                                                             
Gocken, 127 Wn.2d at 107. 

     A Court of Appeals commissioner dismissed Adel's double jeopardy                                                                                 
argument by relying upon the same evidence test and State v. McFadden, 63                                                                             
Wn. App. 441, 820 P.2d 53 (1991).  The commissioner found the two marijuana                                                                           
convictions were not the same in fact, each being based upon separate                                                                                 
evidence, so the commissioner held the two convictions withstood the double                                                                           
jeopardy attack.  The commissioner's reliance upon the same evidence test                                                                             
in this case is misplaced. 

     Both the same evidence test and Blockburger's same elements test are                                                                             
inapplicable to Adel's situation because both tests apply only to a                                                                                   
situation where a defendant has multiple convictions for violating several                                                                            
statutory provisions.  Blockburger, 284 U.S. at 304 ("The applicable rule                                                                             
is that where the same act or transaction constitutes a violation of two                                                                              
distinct statutory provisions, the test to be applied to determine whether                                                                            
there are two offenses or only one, is whether each provision requires                                                                                
proof of a fact which the other does not.") (emphasis added).  See also                                                                               
Rashad v. Burt, 108 F.3d 677, 679-80 (6th Cir. 1997) ("{T}he Blockburger                                                                              
test is insufficient where . . . the concern is not multiple charges under                                                                            
separate statutes, but rather successive prosecutions for conduct that may                                                                            
constitute the same act or transaction."), cert. denied,    U.S.   , 118 S.                                                                           
Ct. 850, 139 L. Ed. 2d 751 (1998); United States v. Woods, 568 F.2d 509,                                                                              
513 n.1 (6th Cir. 1978).  See generally George C. Thomas III, A Unified                                                                               
Theory of Multiple Punishment, 47 U. Pitt. L. Rev. 1, 23-25 & n.115 (1985)                                                                            
(analyzing and criticizing cases which erroneously applied Blockburger to                                                                             
the unit of prosecution context).

     When a defendant is convicted for violating one statute multiple                                                                                 
times, the same evidence test will never be satisfied.  As previously                                                                                 
mentioned, the same evidence test asks whether the convicted offenses are                                                                             
the same in law and the same in fact.  Two convictions for violating the                                                                              
same statute will always be the same in law, but they will never be the                                                                               
same in fact.  In charging two violations of the same statute, the                                                                                    
prosecutor will always attempt to distinguish the two charges by dividing                                                                             
the evidence supporting each charge into distinct segments.  See Michelle                                                                             
A. Leslie, Note, State v. Grayson:  Clouding the Already Murky Waters of                                                                              
Unit of Prosecution Analysis in Wisconsin, 1993 Wis. L. Rev. 811, 824                                                                                 
(making this same point to illustrate that the "identical in law and in                                                                               
fact" analysis is not useful in the unit of prosecution context). 

     The proper inquiry in this case is what "unit of prosecution" has the                                                                            
Legislature intended as the punishable act under the specific criminal                                                                                
statute.  See Bell v. United States, 349 U.S. 81, 83, 75 S. Ct. 620, 99 L.                                                                            
Ed. 905 (1955); State v. Mason, 31 Wn. App. 680, 685-87, 644 P.2d 710                                                                                 
(1982).  The Legislature has the power, limited by the Eighth Amendment, to                                                                           
define criminal conduct and set out the appropriate punishment for that                                                                               
conduct.  Bell, 349 U.S. at 82.  The proper question for this case is what                                                                            
act or course of conduct has the Legislature defined as the punishable act                                                                            
for simple possession of a controlled substance?  When the Legislature                                                                                
defines the scope of a criminal act (the unit of prosecution), double                                                                                 
jeopardy protects a defendant from being convicted twice under the same                                                                               
statute for committing just one unit of the crime.  See Bell, 349 U.S. at                                                                             
83-84 (double jeopardy violated when defendant convicted on two counts of                                                                             
transporting women across state lines when two women were transported at                                                                              
the same time); In re Snow, 120 U.S. 274, 7 S. Ct. 556, 30 L. Ed. 658                                                                                 
(1887) (double jeopardy violated when defendant convicted on multiple                                                                                 
counts of plural cohabitation when the cohabitation was continuous and                                                                                
ongoing).  The unit of prosecution issue is unique in this aspect:  While                                                                             
the issue is one of constitutional magnitude on double jeopardy grounds,                                                                              
the issue ultimately revolves around a question of statutory interpretation                                                                           
and legislative intent.  See Peter Westen & Richard Drubel, Toward a                                                                                  
General Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 113; Note, Twice                                                                            
in Jeopardy, 75 Yale L.J. 262, 313 (1965).

     If the Legislature has failed to denote the unit of prosecution in a                                                                             
criminal statute, the United States Supreme Court has declared the                                                                                    
ambiguity should be construed in favor of lenity.  Bell, 349 U.S. at 84                                                                               
("{I}f Congress does not fix the punishment for a federal offense clearly                                                                             
and without ambiguity, doubt will be resolved against turning a single                                                                                
transaction into multiple offenses . . . ."); see also United States v.                                                                               
Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22, 73 S. Ct. 227, 97 L.                                                                             
Ed. 260 (1952).  The United States Supreme Court has been especially                                                                                  
vigilant of overzealous prosecutors seeking multiple convictions based upon                                                                           
spurious distinctions between the charges.  Brown v. Ohio, 432 U.S. 161,                                                                              
169, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977) ("The Double Jeopardy Clause                                                                             
is not such a fragile guarantee that prosecutors can avoid its limitations                                                                            
by the simple expedient of dividing a single crime into a series of                                                                                   
temporal or spatial units."); Snow, 120 U.S. at 282 (if prosecutors were                                                                              
allowed arbitrarily to divide up ongoing criminal conduct into separate                                                                               
time periods to support separate charges, such division could be done ad                                                                              
infinitum, resulting in hundreds of charges). 

     We now turn to the facts of this case.  The first step in the unit of                                                                            
prosecution inquiry is to analyze the criminal statute.  The relevant                                                                                 
portion of the possession statute states, "any person found guilty of                                                                                 
possession of forty grams or less of marihuana shall be guilty of a                                                                                   
misdemeanor."  RCW 69.50.401(e).  Possession has been defined as personal                                                                             
custody or dominion and control.  State v. Staley, 123 Wn.2d 794, 798, 872                                                                            
P.2d 502 (1994).  If the State establishes the nature of the substance and                                                                            
the defendant's possession of it, then the elements of unlawful possession                                                                            
have been met.  Id. 

     RCW 69.50.401(e) fails to indicate whether the Legislature intended to                                                                           
punish a person multiple times for simple possession based upon the drug                                                                              
being stashed in multiple places.  This lack of statutory clarity favors                                                                              
applying the rule of lenity and finding Adel guilty on only one count of                                                                              
simple possession.  See Bell, 349 U.S. at 84.  Further analysis supports                                                                              
this finding. 

     The Legislature's intent is obviously relevant when construing an                                                                                
ambiguous statute.  One way of construing legislative intent regarding the                                                                            
unit of prosecution for a simple possession crime is to refer to the 40                                                                               
gram cutoff between a misdemeanor and a felony.  See RCW 69.50.401(e).  The                                                                           
Legislature has indicated the desire to punish possession of over 40 grams                                                                            
of marijuana as a more serious crime.  In doing so, the Legislature focused                                                                           
solely on the quantity of the drug, and did not reference the spatial or                                                                              
temporal aspects of possession.  Indeed, if officers had found 21 grams in                                                                            
Adel's store, and 21 grams in his car, prosecutors most certainly would                                                                               
have attempted to aggregate the two stashes and charge Adel with felony                                                                               
possession.  Cf. Rashad, 108 F.3d at 682 (applying same reasoning in                                                                                  
finding just one count arose from defendant's possessing drugs in his house                                                                           
and more in his car); State v. Lopez, 79 Wn. App. 755, 762, 904 P.2d 1179                                                                             
(1995) ("If the source of the drug or the manner in which it was possessed                                                                            
was a determining factor, a careful defendant could avoid the heightened                                                                              
penalty simply by making sure he acquired them in or divided them into                                                                                
amounts of less than two kilograms."). 

     The State's argument that Adel violated the possession statute                                                                                   
multiple times simply because he constructively possessed the drug in two                                                                             
different places rests on a slippery slope of prosecutorial discretion to                                                                             
multiply charges.  How far apart do drugs have to be kept to constitute                                                                               
"separate" stashes?  Under the State's theory it seems a defendant could be                                                                           
convicted of three counts of possession if the drug was found in the                                                                                  
defendant's sock, pant pocket, and purse--each "location" being a                                                                                     
"separate" place.  A reasonable person would respond that all the drugs                                                                               
found were on the defendant's person, and the drugs could not be segregated                                                                           
by the different locations on the defendant's person to justify separate                                                                              
convictions.  The same reasonable response can be made in Adel's situation:                                                                           
All of the drugs found in this case were within Adel's dominion and control                                                                           
at the same time.  The possession statute does not authorize multiple                                                                                 
convictions based upon a drug being stashed in multiple places within a                                                                               
defendant's actual or constructive possession. 

     In State v. Mason, 31 Wn. App. 680, 644 P.2d 710 (1982), the                                                                                     
proprietor of a steam bath and massage parlor was convicted on three counts                                                                           
of promoting prostitution for her employment of three different women who                                                                             
committed acts of prostitution at the business.  The Court of Appeals                                                                                 
analyzed the statute criminalizing the promotion of prostitution and then                                                                             

     The apparent evils the legislature sought to attack were "advancing                                                                              
     prostitution" and "profiting from prostitution."  A person is equally                                                                            
     guilty of either of those evils whether he has only one prostitute                                                                               
     working for him or several. . . .  We find this case substantially                                                                               
     indistinguishable from the plural cohabitation in Snow and the                                                                                   
     interstate transportation of two women in Bell.                                                                                                
Mason, 31 Wn. App. at 687.  This analysis is particularly insightful as                                                                               
applied to Adel's situation.  The Legislature declared it a misdemeanor to                                                                            
possess 40 grams or less of marijuana.  A person is equally guilty of                                                                                 
possession whether that person has the drug stashed in one place, or hidden                                                                           
in several places under the person's dominion and control.  There is no                                                                               
statutory indication the Legislature intended to punish a person multiple                                                                             
times merely because the person separates and keeps small amounts of                                                                                  
marijuana in different locations.  We find the unit of prosecution in RCW                                                                             
69.50.401(e) is possessing 40 grams of marijuana or less, regardless of                                                                               
where or in how many locations the drug is kept.  Adel's conduct                                                                                      
constitutes only one violation of the statute, so we reverse one of his two                                                                           
convictions, and we remand for resentencing on the remaining conviction. 

     An apparent conflict between several Court of Appeals cases must be                                                                              
discussed in light of our unit of prosecution analysis.  The conflict                                                                                 
between State v. McFadden, 63 Wn. App. 441, 820 P.2d 53 (1991), State v.                                                                              
Lopez, 79 Wn. App. 755, 904 P.2d 1179 (1995), and State v. O'Connor, 87 Wn.                                                                           
App. 119, 940 P.2d 675 (1997) is a result of the double jeopardy same                                                                                 
evidence test inappropriately being discussed and applied to the unit of                                                                              
prosecution context.

     In McFadden, the defendant went to an apartment to sell cocaine to an                                                                            
informant.  Police raided the apartment and caught McFadden with 5.5 grams                                                                            
of cocaine.  Police then searched the van which McFadden had driven to the                                                                            
apartment, and they discovered another 83.9 grams of cocaine.  McFadden, 63                                                                           
Wn. App. at 443.  McFadden was charged with two counts of possession with                                                                             
intent to deliver.  He challenged the two convictions as violating double                                                                             
jeopardy.  The court disagreed:

     Here the two offenses are not the same factually.  They involve                                                                                  
     different quantities of cocaine and different locations.                                                                                         
McFadden, 63 Wn. App. at 452.  This analysis is deficient because it                                                                                  
ignores the unit of prosecution question.  The crime was possession of a                                                                              
controlled substance with the intent to deliver.  One unit of prosecution                                                                             
was satisfied by McFadden's possession of drugs in the apartment.  He                                                                                 
intended to sell the 5.5 grams to the occupants of the apartment,                                                                                     
satisfying the elements of the crime.  The drugs found in McFadden's van                                                                              
clearly formed a second unit of prosecution.  McFadden possessed the drugs                                                                            
in the van with an obvious intent to deliver them to unknown buyers in the                                                                            
future.  The two crimes charged in McFadden were not premised on the fact                                                                             
that the drug was found in two different locations.  The two crimes were                                                                              
premised on the showing that McFadden had two separate and distinct intents                                                                           
to deliver drugs in his possession --one intent to sell in the present to                                                                             
the occupants of the apartment and one intent to sell drugs in the future.                                                                            
Cf. State v. Porter, 133 Wn.2d 177, 184, 942 P.2d 974 (1997) (analyzing                                                                               
cases where two counts of drug crimes were premised on present intent and                                                                             
future intent to commit the same crime).  Even though the same evidence                                                                               
test should not have been applied to the facts of the case, the result in                                                                             
McFadden is nonetheless correct under the proper unit of prosecution                                                                                  

     In State v. Lopez, 79 Wn. App. 755, 904 P.2d 1179 (1995), Lopez was                                                                              
arrested in a car during a controlled drug buy with an informant.  The                                                                                
cocaine he had just purchased was found on the floorboard of the car, and                                                                             
additional cocaine, unrelated to the present deal, was found on Lopez's                                                                               
person.  The cocaine on his person was packaged in 14 bindles and appeared                                                                            
to be intended for distribution.  Lopez was charged with two counts of                                                                                
possession with intent to deliver, one count based on the cocaine he had                                                                              
just purchased, and the other count based on the separate cocaine found on                                                                            
his person.

     Lopez discussed the same evidence test, but ultimately decided the                                                                               
"separate" evidence of the two quantities of cocaine failed to support two                                                                            
charges.  The court observed, "{I}t is difficult to see how the source of                                                                             
contraband or how it is held should have an effect on the crime of                                                                                    
possession."  Lopez, 79 Wn. App. at 762.  Lopez came closer to recognizing                                                                            
the unit of prosecution issue than did McFadden, but it still discussed the                                                                           
same evidence test as being applicable.  Lopez may have had two distinct                                                                              
quantities of cocaine under his dominion and control, and evidence showed                                                                             
the two quantities came from separate sources, but none of that evidence                                                                              
was relevant to the unit of prosecution for possession with intent to                                                                                 
deliver.  The evidence failed to establish more than one intent to deliver the 
drugs in the future--there were not two distinct intents to deliver, as there 
were in McFadden. The results of Lopez and McFadden compliment each other when 
the proper unit of prosecution analysis is applied to both cases.

     State v. O'Connor, 87 Wn. App. 119, 940 P.2d 675 (1997), closely                                                                                 
follows Lopez, but the case does not actually present a unit of prosecution                                                                           
question.  O'Connor was found in a car with 71 grams of methamphetamine in                                                                            
his left sock, 1.1 grams of the same drug in his right front jacket pocket,                                                                           
and 1.4 grams of the same drug found in a blue metal box on the floor of                                                                              
the car.  O'Connor, 87 Wn. App. at 121-22.  The State charged O'Connor with                                                                           
one count of possession with intent to deliver and a separate count of                                                                                
simple possession.  The Court of Appeals appropriately applied the same in                                                                            
law and same in fact analysis, since the two charges were based upon                                                                                  
different statutory subsections.                                                                                                                      
     First, the court found the two charges were legally identical.                                                                                   
O'Connor, 87 Wn. App. at 123 (each offense did not contain an element not                                                                             
contained in the other, so the two offenses were identical).  The court                                                                               
then discussed McFadden and Lopez and determined O'Connor's possession of                                                                             
all of the methamphetamine constituted one transaction and could not be                                                                               
divided up to justify two separate convictions.  The simple possession                                                                                
conviction was vacated as being in violation of double jeopardy.  O'Connor,                                                                           
87 Wn. App. at 126.

     O'Connor properly applied the same evidence test to the case.  The                                                                               
court's reliance on Lopez when discussing whether the criminal conduct was                                                                            
one act or transaction simply recognized the similarity of the unit of                                                                                
prosecution inquiry and the same evidence analysis.  In both contexts, a                                                                              
court should guard against the State's attempting to segment a singular                                                                               
criminal act to form the basis for multiple convictions.

     In conclusion, McFadden and Lopez are disapproved insofar as both                                                                                
cases apply the traditional same evidence analysis when the proper question                                                                           
should have focused on the unit of prosecution.                                                                                                       
WE CONCUR:                                                                                                                                            
     TALMADGE, J. (concurring) -- I concur specially to emphasize the unit                                                                            
of prosecution approach to double jeopardy is necessarily one that must                                                                               
develop on a case-by-case basis.  There may be circumstances in future                                                                                
cases where the jurisdictional or temporal differences in the possession of                                                                           
illegal substances may be so great as to suggest completely distinct units                                                                            
of prosecution.  For example, if a person were arrested in Seattle for                                                                                
possessing 20 grams of marijuana, and Spokane police served a search                                                                                  
warrant on the person's Spokane residence and found 15 grams of marijuana                                                                             
on that same day, two distinct units of prosecution might exist.                                                                                      
Similarly, if a person were in possession of 20 grams of marijuana and used                                                                           
the substance in its entirety, and, thereafter, several days later acquired                                                                           
another 15 grams of marijuana for personal use, two distinct units of                                                                                 
prosecution are likely present under such circumstances. 

     The unit of prosecution approach to analyzing double jeopardy is                                                                                 
appropriate, but is not completely without difficulty in its application.                                                                             
Compare, Bell v. United States, 349 U.S. 81, 75 S. Ct. 620, 99 L. Ed. 905                                                                             
(1955), and Ebeling v. Morgan, 237 U.S. 625, 35 S. Ct. 710, 59 L. Ed. 1151                                                                            
(1915).  We must be sensitive to different factual patterns in utilizing                                                                              
the unit of prosecution approach to determine if there is multiple                                                                                    
punishment for purposes of the double jeopardy clause.