Opinion
No. 22063-0-III
Filed: May 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pend Oreille County. Docket No: 02-1-00041-2. Judgment or order under review. Date filed: 04/30/2003. Judge signing: Hon. Larry M Kristianson.
Counsel for Appellant(s), Robert R Cossey, Robert R Cossey Associates PS, 628 1/2 N Monroe St, Spokane, WA 99201-2161.
Counsel for Respondent(s), Michael Joseph Carbone, Pend Oreille Prosc Atty, PO Box 5070, Newport, WA 99156-5070.
Paul Carney was found guilty of three counts of manufacturing methamphetamine. On appeal, he contends (1) the record on review is not of sufficient completeness to allow for meaningful review; and (2) there was insufficient evidence to convict him of manufacturing methamphetamine. We affirm Mr. Carney's convictions.
FACTS
On March 20, 2002, the Pend Oreille County Dispatch Center received a call from Paul Carney claiming that armed intruders were breaking into his house. He described the intruders as forest people, dressed with twigs and moss. Deputy Eric Schutte responded to the call. He was joined by other Pend Oreille County deputies, Washington State troopers, and Department of Fish and Wildlife officers. They found no evidence of any armed intruders. Mr. Carney appeared delusional. For his own safety, he was taken into protective custody.
After Mr. Carney was released, he voluntarily returned to the sheriff's office and asked to speak with a deputy. He met with Deputy Schutte, who later testified that Mr. Carney appeared coherent. Specifically, he stated that Mr. Carney was not hallucinating and was thinking clearly and logically. At that time, Mr. Carney informed Deputy Schutte that there was a methamphetamine laboratory in the back of his van. Deputy Schutte asked Mr. Carney to sign a permission-to-search form. After Mr. Carney signed the form, the van was searched. The van contained items associated with manufacturing methamphetamine.
Thereafter, Mr. Carney spoke with Sergeant Thad Schultz about the items discovered in his van. Again, he appeared calm, coherent, and rational. Mr. Carney stated that the methamphetamine laboratory belonged to his former girlfriend, Shawna Belcher. He stated that he knew she had manufactured methamphetamine in his home on three occasions. He stated that she had been assisted in the manufacturing process by a man who he could not identify.
In his statements to Sergeant Schultz, Mr. Carney made a number of incriminating statements. He conceded that he had received some of the methamphetamine for his personal use. He further admitted that he had purchased acetone, acid, and cold tablets prior to each time the methamphetamine was manufactured. He also stated that prior to bringing the van to the sheriff's office, he had cleaned out some items and dumped some chemicals. Finally, Mr. Carney stated that he knew methamphetamine was being manufactured in his house. According to Sergeant Schultz, Mr. Carney appeared very knowledgeable about this method of manufacturing methamphetamine.
Mr. Carney gave the sheriff's department written permission to conduct a search of his home. During that search, the officers discovered several items associated with manufacturing methamphetamine.
On April 3, 2002, Mr. Carney's daughter, Loki Carney, arrived at Mr. Carney's home and found him unconscious. She contacted 911 for medical assistance. Steve Groom, an ambulance driver, responded to the call. When he arrived, Mr. Groom detected a strong odor, which he associated with the manufacture of methamphetamine. In his examination of Mr. Carney, he noticed that Mr. Carney had a red blistering across the chest. Mr. Groom formed a suspicion that the burn was a methamphetamine laboratory injury. According to Mr. Groom, Ms. Carney 'mentioned finding things in the house, bagging them up and moving them out of sight prior to anybody arriving.' Report of Proceedings at 260.
Deputy Schutte also responded to the call. When he arrived, he detected a smell he associated with the manufacture of methamphetamine. A search warrant was issued. Deputy Schutte and Sergeant Schultz conducted the search on April 4. They found items associated with manufacturing which were not present on their previous search.
Mr. Carney was charged by amended information with four counts of manufacturing methamphetamine. Due to a recording error during trial, part of the final day of trial was not recorded. The missing portion consisted of approximately one and one-half hours of Mr. Carney's testimony in his own defense. The clerk's minutes include a detailed narrative account of the missing testimony. Deputy Prosecuting Attorney Michael J. Carbone also provided a written declaration of the missing testimony based upon his independent recollection, his handwritten notes, and the clerk's minutes. The court clerk, Timmy Pittman, also provided a written affidavit. Neither Mr. Carney nor his trial attorney provided an affidavit. Mr. Carney's trial attorney is his attorney on appeal.
In the missing portion, Mr. Carney testified that he had not participated in manufacturing methamphetamine. Instead, he testified that the methamphetamine was manufactured by Ms. Belcher and another man. He testified that he had not purchased materials in order to manufacture methamphetamine. Instead, he testified he had purchased the materials in order to trade for methamphetamine. He testified that he was out of town several days after the first search of his home. He testified that when he returned he found several items associated with manufacturing methamphetamine that had not been in his home previously. He testified that the methamphetamine must have been manufactured in his home when he was out of town.
Mr. Carney was found guilty by a jury of three counts of manufacturing methamphetamine. Mr. Carney appeals.
ANALYSIS
Record on Appeal. Mr. Carney contends that the reconstructed record is not sufficient to allow meaningful review of the questions presented before the court. Essentially, Mr. Carney argues that a verbatim transcript is required in order to establish his actual testimony. According to Mr. Carney, the inclusion of his entire testimony is vital because his testimony provides the basis for reasonable doubt to counter the State's evidence. He believes the clerk's minutes are inadequate because they do not constitute a verbatim transcript; the narrative statements are insufficient because his appellate counsel is unable to test their completeness.
Due process requires a record of sufficient completeness to review the errors raised by a criminal defendant. State v. Putman, 65 Wn. App. 606, 610, 829 P.2d 787 (1992). "A 'record of sufficient completeness' does not translate automatically into a complete verbatim transcript." State v. Tilton, 149 Wn.2d 775, 781, 72 P.3d 735 (2003) (quoting Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S. Ct. 410, 30 L. Ed. 2d 372 (1971)). Instead, alternative methods of reporting proceedings are adequate 'if they permit effective review.' Tilton, 149 Wn.2d at 781. They 'must allow counsel to determine which issues to raise on appeal, and "'place before the appellate court an equivalent report of the events at trial from which appellant's contentions arise.'" Tilton, 149 Wn.2d at 781 (quoting State v. Jackson, 87 Wn.2d 562, 565, 554 P.2d 1347 (1976)). Three means of providing a report of proceedings are allowed under the Rules of Appellate Procedure: (1) verbatim (RAP 9.2); (2) narrative (RAP 9.3); or (3) agreed (RAP 9.4). State v. Martinez, 18 Wn. App. 85, 88-89, 566 P.2d 952 (1977).
A narrative statement is adequate if it is based upon (1) contemporary notes of the hearing, (2) the trial court's written findings of fact and conclusions of law, and (3) the verbatim report of the trial court's detailed oral ruling. Putman, 65 Wn. App. at 610. A narrative statement is likewise adequate if it is based upon (1) the trial judge's minutes taken during trial, or (2) the court reporter's untranscribed notes. Martinez, 18 Wn. App. at 90 (quoting State v. Atteberry, 87 Wn.2d 556, 558, 554 P.2d 1053 (1976)).
In this case, the clerk's minutes and the narrative statement constitute a record of sufficient completeness to permit effective review. The narrative statements are based upon independent recollection, handwritten notes, and the clerk's minutes. Both the clerk's minutes and the narrative statement provide a detailed account of Mr. Carney's testimony.
Mr. Carney argues that the record is inadequate because he is entitled to a verbatim transcript of the proceedings. But he is not entitled to a verbatim report of proceedings. See Martinez, 18 Wn. App. at 91-92. Instead, the Rules of Appellate Procedure specifically allow three means of providing a report of proceedings. In addition, Mr. Carney is essentially raising insufficiency of the evidence as his only claim on appeal. A verbatim transcript is generally not required to review the sufficiency of the evidence. Id. Rather, a verbatim transcript is only required in a sufficiency of the evidence analysis if there is not any 'better method of reporting the trial testimony.' Jackson, 87 Wn.2d at 567. Here, reproducing the verbatim transcript is impossible because the missing portion was not recorded. However, the clerk's minutes and narrative statements describe the missing testimony in detail.
Next, Mr. Carney asserts that the narrative statement is inadequate because he is not able to test its completeness. A narrative statement may be inadequate if new counsel represents the defendant on appeal because he may be unable to test the completeness of the missing testimony. State v. Larson, 62 Wn.2d 64, 67, 381 P.2d 120 (1963). Here, Mr. Carney's trial counsel is representing him on appeal. His recollection of the missing testimony should be as clear as that of the court clerk and prosecuting attorney. He could easily 'test the completeness' of the narrative statement. In addition, the only testimony that is missing is that of Mr. Carney. He has knowledge of his statements on the stand and could provide his own narrative statement, if necessary.
Finally, Mr. Carney asserts that the clerk's minutes are insufficient under State v. Henderson, 72 Wn. App. 544, 865 P.2d 33 (1994), which provides that clerk's minutes sometimes do not provide an adequate record on review. However, Henderson is distinguishable. In Henderson, the clerk of the court failed to provide a summary of each of the witnesses' testimony and the trial record consisted of nothing other than the 'bare outline of the clerk's minute entries.' Id. at 552. Here, the clerk's minutes provided a detailed account of the witnesses' testimony and the trial record is supplemented by the narrative statement of the prosecuting attorney and the court clerk. In conclusion, the reconstructed record is sufficient to permit meaningful review.
Sufficiency of the Evidence. Mr. Carney contends that there was insufficient evidence to convict him for the crime of manufacturing methamphetamine. He notes that the State relied upon accomplice liability to convict him and believes that there was insufficient evidence to convict him as an accomplice. These contentions are based upon Mr. Carney's testimony that the methamphetamine laboratory belonged to Ms. Belcher. He denies that he either condoned or participated in the manufacturing. To buttress the assertion that he did not participate in the manufacturing process, he emphasizes the absence of fingerprint evidence and the absence of evidence that he was in the house when the methamphetamine was manufactured.
Standard of Review. In reviewing a challenge to the sufficiency of the evidence, the court views the evidence in the light most favorable to the State and asks whether any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Hepton, 113 Wn. App. 673, 681, 54 P.3d 233 (2002). Circumstantial and direct evidence are equally reliable. State v. McNeal, 98 Wn. App. 585, 592, 991 P.2d 649 (1999), aff'd, 145 Wn.2d 352, 37 P.3d 280 (2002). All reasonable inferences must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "Credibility determinations are for the trier of fact and cannot be reviewed on appeal." State v. McPherson, 111 Wn. App. 747, 756, 46 P.3d 284 (2002) (quoting State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)).
Manufacturing Methamphetamine as a Principal. '[I]t is unlawful for any person to manufacture . . . a controlled substance.' RCW 69.50.401. Manufacturing includes the 'production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly . . . and includes any packaging or repackaging of the substance.' RCW 69.50.101(p); accord State v. Zunker, 112 Wn. App. 130, 139, 48 P.3d 344 (2002). A controlled substance is a "drug, substance, or immediate precursor." State v. Keena, 121 Wn. App. 143, 147, 87 P.3d 1197 (2004) (quoting RCW 69.50.101(d)). Possessing most of the objects and substances needed to prepare or process methamphetamine constitutes preparing or processing methamphetamine under the statute's broad definition of manufacturing. Id. at 148. In other words, playing merely a limited role in the manufacturing process constitutes manufacturing "even if someone else completes the process." Id. (quoting State v. Davis, 117 Wn. App. 702, 708, 72 P.3d 1134 (2003), review denied, 151 Wn.2d 1007 (2004)).
In this case, there is sufficient evidence to convict Mr. Carney of manufacturing methamphetamine as a principal. Substantial evidence connected Mr. Carney to the manufacturing process. First, items associated with manufacturing were located in Mr. Carney's van. Second, items associated with manufacturing were located in Mr. Carney's home during two separate searches. Third, despite Mr. Carney's insistence that Ms. Belcher was engaging in the manufacturing process without him, new items associated with manufacturing were located in Mr. Carney's home during the second search, even though Ms. Belcher had not been residing in the home for some time. In other words, because there were new items located during the second search, a jury could reasonably find that it was Mr. Carney who was manufacturing the methamphetamine. Fourth, Mr. Carney had knowledge of the methods of manufacturing. Fifth, evidence was presented that Mr. Carney had a burn mark that could have been associated with a methamphetamine laboratory injury. Based upon this evidence, a jury could reasonably determine that Mr. Carney was manufacturing methamphetamine as a principal.
Further, Mr. Carney argues that there was insufficient evidence because the items were owned by Ms. Belcher. In essence, he believes that there was insufficient evidence because he testified that the items were owned by others. The jury was free to disregard Mr. Carney's testimony. The items were located in his home and van. Mr. Carney had knowledge of the manufacturing process. The jury could reasonably determine that the items belonged to him, not to Ms. Belcher.
Next, Mr. Carney asserts that there was insufficient evidence because the new items were placed in his home when he was away on a business trip. Again, Mr. Carney is asserting insufficient evidence based upon his own testimony. Mr. Carney was the only individual who testified that he was away on a business trip. Mr. Carney testified that he was not away the entire time. The jury was free to disregard his testimony.
In addition, he argues that there was insufficient evidence because all of the elements necessary to manufacture methamphetamine were not located either in his home or van. A defendant can be charged with manufacturing methamphetamine when an element necessary to complete the manufacturing process was not present. McPherson, 111 Wn. App. at 758-59. Here, almost all of the elements necessary to manufacture methamphetamine were located in Mr. Carney's home and van.
Finally, he contends that there was insufficient evidence because he merely purchased the items to trade for completed methamphetamine, not to manufacture methamphetamine itself. However, even disregarding all of the other evidence connecting Mr. Carney to the crime, the act of purchasing all of the items necessary to manufacture methamphetamine can constitute preparing methamphetamine under the broad definition of manufacturing found in RCW 69.50.101(p). Keena, 121 Wn. App. at 147-48. Specifically, it involves possession of most of the objects and substances necessary to manufacture methamphetamine. It also involves providing a limited role in the manufacturing of methamphetamine itself. Methamphetamine cannot be manufactured without possession of the necessary objects and substances. In addition, evidence was presented that Mr. Carney purchased the items as a means to participate in the manufacturing process itself. It was only Mr. Carney's testimony which stated that he purchased the items as a means of trade. The jury was free to disregard the testimony. In conclusion, there was sufficient evidence to convict Mr. Carney of manufacturing methamphetamine as a principal.
Manufacturing Methamphetamine as an Accomplice. Under Washington law, "anyone who participates in the commission of a crime is guilty of the crime and should be charged as a principal." State v. McDonald, 138 Wn.2d 680, 688, 981 P.2d 443 (1999) (quoting State v. Carothers, 84 Wn.2d 256, 264, 525 P.2d 731 (1974)). The elements of the crime are the same for a principal and an accomplice. Id. "A person is an accomplice of another person in the commission of a crime if: (a) With knowledge that it will promote or facilitate the commission of the crime, he (i) solicits, commands, encourages, or requests such other person to commit it; or (ii) aids or agrees to aid such other person in planning or committing it.' State v. McPherson, 111 Wn. App. 747, 757, 46 P.3d 284 (2002) (quoting RCW 9A.08.020(3)).
To convict a defendant as an accomplice, the State must establish more than a defendant's physical presence at a crime scene. State v. Holt, 119 Wn. App. 712, 725, 82 P.3d 688 (2004). Instead, the State must establish a readiness and willingness to assist in the crime itself. Id. In manufacturing situations, accomplice liability can be established based upon minimal evidence of personal involvement when the defendant resides in a home where manufacturing is occurring. For instance, accomplice liability is established when an defendant (1) lives in a home where manufacturing is occurring,
(2) appears to be actively manufacturing methamphetamine, and (3) attempts to hide manufacturing items. Id. at 725-26. Similarly, accomplice liability is established when a defendant (1) lives in a home where manufacturing is occurring, and (2) testifies that the various chemicals were used for legal reasons. Id. at 726.
In this case, there was sufficient evidence to convict Mr. Carney as an accomplice. Mr. Carney's connection with manufacturing could be considered to be similar to the defendants in Holt. Id. at 725-26. First, Mr. Carney lived in a home where manufacturing was occurring. In fact, he owned the home and was apparently the only person living in the home prior to the second search. Second, Mr. Carney appeared to be actively manufacturing methamphetamine. He purchased items associated with manufacturing, was aware that manufacturing was occurring, knew about the process of making methamphetamine, and received his portion of the methamphetamine after it was manufactured. Third, Mr. Carney attempted to hide manufacturing items. He removed items and chemicals from his van prior to dropping the van off at the sheriff's office. His daughter removed items from his home prior to the arrival of emergency personnel. Fourth, he testified he bought the chemicals to trade for methamphetamine. In conclusion, there was sufficient evidence to convict Mr. Carney of manufacturing methamphetamine as an accomplice.
We affirm Mr. Carney's convictions.
The majority of the panel has determined 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.
SWEENEY, A.C.J., and BROWN, J., Concur.