Opinion
No. 22747-2-III
Filed: January 20, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 03-1-03499-2. Judgment or order under review. Date filed: 02/02/2004. Judge signing: Hon. Tari S. Eitzen.
Counsel for Appellant(s), David N. Gasch, Gasch Law Office, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Kelly Balles was convicted by a jury of the manufacture of methamphetamine. On appeal, he contends the evidence is insufficient to show that he was actually involved in the process of manufacture. We disagree and affirm.
Facts
On September 28, 2003, Spokane police officer Chris Crane stopped Mr. Balles for a traffic violation and eventually arrested him on an outstanding warrant. During a search of Mr. Balles's Ford Bronco, Officer Crane found items he identified from experience and training as constituting a portable laboratory for manufacturing methamphetamine. Officer Crane gave Mr. Balles the Miranda warnings and Mr. Balles agreed to talk. He explained that he had just picked up the items from someone and was planning to use them to make methamphetamine. He also stated he had no finished product, just pure ephedrine, and his fingerprints would be on the items found. Officers found the following items in the Bronco: two large bottles of iodine, peroxide, isopropyl alcohol, the gasoline additive `Heet,' packages of pseudoephedrine, coffee filters stained red, white powder in a paper towel, a plastic pocket scale, canning jars, balloons, and plastic bags.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Mr. Balles was charged by information with manufacture of a controlled substance — methamphetamine — on or about September 28, 2003. Former RCW 69.50.401(a) (1998). At trial in January 2004, the State presented expert testimony from police officers and a forensic scientist who described the red phosphorus method of manufacturing methamphetamine and opined that the items found in Mr. Balles's Bronco were used to manufacture by this process. During trial, defense counsel made a continuing objection to testimony that suggested the jury could find manufacture merely from preparations for manufacture. The defense rested without putting witnesses on the stand. The jury found Mr. Balles guilty as charged and he received the low end of the standard range sentence. His motion for new trial was denied and he timely appealed.
Sufficiency of the Evidence
Mr. Balles challenges the sufficiency of the evidence to support his conviction. We will find the evidence sufficient if a rational trier of fact, viewing the evidence in the light most favorable to the State, could find each element of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); State v. Rangel-Reyes, 119 Wn. App. 494, 499, 81 P.3d 157 (2003).
To support conviction for the manufacture of a controlled substance, the State must prove that the defendant produced, prepared, propagated, compounded, converted, or processed a controlled substance `either directly or indirectly.' RCW 69.50.101(p). A controlled substance is a `drug, substance, or immediate precursor' from schedules I through V of the statutory drug classifications. RCW 69.50.101(d). Immediate precursors include compounds designated as commonly used for or primarily for the use of drug manufacture, or the `immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance.' RCW 69.50.101(n)(2). Methamphetamine is a schedule II controlled substance. RCW 69.50.206(d)(2). Ephedrine is a precursor substance. RCW 69.43.010(1)(f); State v. Bernard, 78 Wn. App. 764, 766, 899 P.2d 21 (1995).
Mr. Balles contends the evidence does not support the conclusion that he manufactured methamphetamine `on or about September 28, 2003.' Clerk's Papers at 1. He argues that the evidence shows only that someone produced methamphetamine before he was stopped by the police, or that he intended to manufacture methamphetamine in the future. At most, he asserts, the evidence supports a charge of possession of ephedrine with intent to manufacture methamphetamine, RCW 69.50.440.
Generally, if the State produces evidence of methamphetamine lab components and connects those components with the defendant, the evidence is sufficient to raise an inference that the defendant is involved in the manufacture of methamphetamine. State v. Todd, 101 Wn. App. 945, 952-53, 6 P.3d 86 (2000), overruled on other grounds by Rangel-Reyes, 119 Wn. App. at 499 n. 1. This is especially true if the combination of items generally has no purpose other than to manufacture methamphetamine, even if not all the necessary components are present. State v. Keena, 121 Wn. App. 143, 148, 87 P.3d 1197 (2004). `[A] person who knowingly plays even a limited role in the manufacturing process is guilty, even if someone else completes the process.' State v. Davis, 117 Wn. App. 702, 708, 72 P.3d 1134 (2003), review denied, 151 Wn.2d 1007 (2004).
Here, expert witnesses testified that the items found in Mr. Balles's Bronco were all necessary to the production of methamphetamine by the red phosphorus method. Some of the substances found had been processed from their original form, including the red phosphorus (which is usually reused for the production of methamphetamine) and the ephedrine. One compound contained red phosphorus and by-products from the manufacture of methamphetamine, indicating the process had already taken place. Other substances showed intent to produce methamphetamine in the future. These included newly processed red phosphorus, blister packs of pseudoephedrine, the solvent `Heet,' and large bottles of iodine and hydrogen peroxide. The only significant substances missing were sodium hydroxide (lye) and hydrochloric acid. From the forensic scientist's description of the manufacturing process, the jury could infer that the coffee filters and canning jars found in Mr. Balles's Bronco were essential to the process.
Some filters contained moist red phosphorus residue. Witnesses identified separately as a drug investigator, a member of the `Spokane Police Meth Team,' and the forensic scientist all agreed that the items found in the vehicle were related to methamphetamine manufacture.
The evidence and inferences arising from the evidence, viewed in the light most favorable to the State, are more than sufficient to support the jury's verdict that Mr. Balles produced, prepared, propagated, compounded, converted, or processed methamphetamine. RCW 69.50.101(p), former RCW 69.50.401(a). It was not necessary for the State to show that he was caught in the act of actual production on the date stated in the information. His possession of numerous items and substances that are generally found together solely for the purpose of manufacturing methamphetamine — along with his admission that he intended to produce methamphetamine in the future — is sufficient for the jury to conclude beyond a reasonable doubt that he had some role in the manufacturing process. Keena, 121 Wn. App. at 143; State v. Zunker, 112 Wn. App. 130, 139, 48 P.3d 344 (2002).
As for the date of the crime, `where time is not a material element of the charged crime, the language `on or about' is sufficient to admit proof of the act at any time within the statute of limitations, so long as there is no defense of alibi.' State v. Hayes, 81 Wn. App. 425, 432, 914 P.2d 788 (1996). Time is not a material element of manufacturing methamphetamine, Mr. Balles presented no defense, and the presence of the methamphetamine lab supported a reasonable inference that the process had recently occurred or was imminent. The items taken from Mr. Balles's vehicle, along with the testimony at trial and Mr. Balles's statements to police, support a rational juror's conclusion beyond a reasonable doubt that Mr. Balles was involved in the manufacture of methamphetamine.
Affirmed.
A majority of the panel has determined that 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.
KATO, C.J. and BROWN, J., Concur.