Opinion
No. 26517-6-II c/w 26523-1-II.
Filed: December 31, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Jefferson County Docket No: 00-1-00041-9 Judgment or order under review Date filed: 10/05/2000
Counsel for Appellant(s), Roger A. Hunko, Attorney at Law, Attorney At Law, 569 Division St. Ste E, Port Orchard, WA 98366-4600.
Thomas E. Jr Weaver, Attorney at Law, 569 Division St. Ste E, Port Orchard, WA 98366-4600.
Sherryl A. Jones, Attorney at Law, P.O. Box 1869, Port Townsend, WA 98368-0058.
Counsel for Respondent(s), Carmon Danny Clem, Attorney at Law, 2427 S Redwood Pl, Broken Arrow, OK 74012-9467.
A jury convicted Rodney Clark and Shelly Brown of possession and manufacture of methamphetamine and two counts of taking a motor vehicle without permission of owner. They now appeal, claiming numerous errors, including insufficient probable cause to issue the warrant and error in the accomplice liability jury instruction. Because both admitted possessing and using methamphetamine and the record contains eyewitness testimony of their manufacturing the drug, in addition to possession of the equipment and supplies used to manufacture methamphetamine, we affirm. Because the evidence is insufficient to support a finding that the methamphetamine made in the trailer was sold for profit, the school zone enhancement is vacated and the matter remanded for resentencing.
FACTS
On February 23, 2000, at about 1:00 p.m., the Jefferson County Sheriff's Office executed a search warrant on a trailer located at 1361 E. Marrowstone Road in Nordland, Washington, near Port Townsend. The police awoke the two occupants, Rodney David Clark, Jr. and Shelly Brown.
The police had been investigating Clark and Brown for several months. The following is a summary of the investigation largely taken from the trial court's Memorandum Opinion on Motion to Suppress (Clerk's Papers (CP) at 41-50).
A court's findings may be considered verities if supported by substantial evidence and the defendant does not assign error to such findings. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
On September 9, 1999, Detective David Miller heard second-hand that Clark was dealing heroin and crank. Between September and December 1999, an informant told Miller that two brothers, Sean and David, were bragging about being new suppliers of methamphetamine in the Irondale area of Jefferson County. Miller knew that Clark often uses the name "David" and that he has a brother named Sean. Miller had received prior accurate information from this informant.
On December 7, 1999, Miller met with an anonymous source who provided information on methamphetamine dealers in the area, including Sean and David. "The source . . . also told him that Sean and David were bragging that they were `the new suppliers' in Irondale and that they were `going to shut everyone else down.'" CP at 46.
On January 21, 2000, an inmate in the Jefferson County Jail gave Miller additional information in exchange for leniency, though no formal agreement was ever made. The inmate gave the names of people from whom he would be willing to make controlled purchases of drugs. He said Brown was "one of the largest dealers of methamphetamine in the area." CP at 46. He gave Miller the location of Brown's trailer behind a house on Marrowstone Island.
On January 30, 2000, police arrested Scott Batey in Port Townsend. He also agreed to make controlled buys of methamphetamine in exchange for leniency. Again, there was no formal agreement entered. Batey named Clark and Brown as prospective sellers, and he gave the location of Brown's trailer. He also told Miller there was a Mazda RX7 in the driveway that "he believed was stolen" and recently repainted. CP at 47. "This information was later confirmed by law enforcement." CP at 47.
On February 4, 2000, a sheriff's deputy saw a nervous man in the parking lot of the QFC walking away from a Chevy Blazer with 1994 license tabs. He then observed the man and Brown walking together. The man was subsequently arrested on an outstanding warrant. "The Port Townsend Police Department recovered the 1984 Blazer which had been stolen and found that it contained components of a methamphetamine lab. It also contained the dental records of Shelly Brown." CP at 47.
On February 15, 2000, Miller met with a woman who told him that Brown had been living on her property for over a year and that Clark was now living there as well. The woman also told Miller about the Mazda in the driveway, that both Clark and Brown drove it, and that the color had recently been changed. Two detectives confirmed the Mazda had been stolen in Bremerton.
On February 18, 2000, Miller talked to someone with a prior methamphetamine possession charge about Brown. Unprompted, this informant said that he purchased methamphetamine from Brown "over 25 times in the past six months." CP at 48. He also told Miller that "Dave" was now frequenting the trailer and that he "delivered meth to `them' at Shelly's trailer about one week previously." CP at 48.
On the evening of February 15, 2000, someone had told the Port Townsend Police Department that Brown was dealing methamphetamine from the trailer on Marrowstone Island. That source also mentioned the stolen Mazda. The source was willing to meet with Miller to talk about Clark and Brown.
The meeting took place on February 26, 2000, after the warrant and search of Brown's trailer. This informant told Miller "that `they' had bought meth from Shelly Brown at least 20 times during the month of January." CP at 49. He then identified Clark and Brown from a photo montage.
Based on this evidence, a magistrate issued the search warrant that was executed on February 23, 2000. Miller testified that he saw several items in the trailer that alerted him that it was a methamphetamine laboratory. He described the scene as follows, The first thing I saw was a one gallon can of Zylol [sic] which is a solvent, and I know that it's used in Meth Labs. Another thing I saw was a crate that contained some glass jars. One — one gallon glass jar had a multi-layered — colored layers of liquid in it, and other jars that had unknown liquids in `em. . . . I saw coffee filters. I saw rubber tubing. I saw a plastic ladle that had a white residue in it. I saw in a closet — I opened the door and saw a gallon — I believe it was about a gallon glass jar of matches and all the striker plates were pulled off of the matches. . . . I opened one drawer and found a — a little plastic bag of some off-white powder. I collected that. And, I collected a glass pipe that I was — I was familiar with as a — as a Meth pipe.
Report of Proceedings (RP) at 167. Police sealed the trailer until the Statewide Incident Response Team (SIRT) could decontaminate it. The SIRT cleaned the trailer on February 25, 2000.
The State presented testimony at trial regarding the two vehicles in question, the Chevy Blazer and the Mazda RX7. First, Port Townsend Police Officer Darryl Elmore testified that he processed the Blazer for evidence. In addition to finding items used to manufacture methamphetamine, he testified that he found a wallet in the Blazer with Clark's California identification card. He also found Clark's address book. Elmore testified that one page in the address book included a to-do list that contained the following notation, "And print — and paint Blazer. Change plates ASAP." RP at 633. In addition, the console under the Blazer's glove compartment contained Brown's dental bill and her dental chart.
Second, the neighbors testified to seeing Clark and Brown in the Mazda RX7. Third, Miller testified that on February 15, 2000, he and another police officer drove by the trailer with a digital camera and took an image of the license plates. By enlarging the image, they were able to read the license plates and match the car to one reported stolen from Bremerton. The next day the police impounded the Mazda after it was involved in a collision. A neighbor overheard Clark on the telephone telling someone that he "got rid of another one," and "it would probably be in the papers." The police found a bag on the Mazda's seat containing a receipt and some items purchased from a local hardware store less than 20 minutes before the accident. One of the items purchased was 17 feet of plastic tubing. The cashier at the hardware store identified Clark as the purchaser. Fourth, Rosemary Leggett testified that Clark and Brown brought the Blazer to her shop where they repainted it. She was offered methamphetamine that Clark and Brown were then "cooking" in return for her assistance. Leggett went to the Brown/Clark trailer to recover some of her belongings shortly after the couple finished painting the Blazer.
A. . . Shelly was in the back bedroom. She was looking for her shoe, and at that time he had given me some Methamphetamine . . .
Q. Who did? A Dave [Clark].
Q. How do you know it was Meth?
A. Because I used it . . .
Q. Okay.
A. . . at that time. . . .
Q. And did he say anything?
A. Well, um, yes, he said that when the soup was done he was going to pay me what he owed me for the paint job on the vehicle, which they were — he was going to give me a hoist and some Methamphetamine for the job, and my paint, and all the equipment they used. My paint brushes, and . . .
Q. Did he say how long it would take for the "soup" to be done?
A. Yes, he said the soup would be done in two hours. Approximately, a couple hours.
Q. Now, did it smell like chicken soup?
A. No.
Q. What was it?
A. I really didn't notice an odor. I was — I had tunnel vision and I was there for Shelly, and I wasn't really paying much attention to Dave or whoever else was around in the room. I was more concerned about getting my belongings back that they stole while they were painting this vehicle.
Q. Okay. Could you — could you see how large the beaker was that he was stirring?
A. It was just a small one. It was about, this, tall. It was about, maybe, a half full — or a third full of some kind of liquid. It was about, probably six inches in diameter. It as [sic] one of the smaller beakers.
Q We.re there other beakers about?
A. That was the only one I noticed. I — like I said, I was just focused. . . .
Q. Were there other people in there?
A. Yes, there was.
Q. Who?
A. Um, Ted-someone, and this Jennifer that was up there at the time this vehicle was painted, and Dave, and Shelly, and I. . . .
Q. . . [C]an you estimate how much was in the beaker?
A. Oh, probably, a cup and a half. Maybe, two cups.
RP at 605-607.
Clark and Brown were charged with unlawful possession and manufacture of methamphetamine on March 2, 2000, and by amended information with charges related to the stolen vehicles. The appellants were tried together before a jury and were found guilty of the manufacture of methamphetamine (as principals or accomplices), possession of methamphetamine (as principals), and two counts of taking a motor vehicle without permission (as principals or accomplices). Clark was found not guilty of possession of a firearm found in the car. Both sentences for manufacturing included a school zone enhancement.
ANALYSIS
The Search Warrant
The appellants challenge the sufficiency of the affidavit supporting the warrant.
A search warrant may be issued only upon a determination of probable cause, based on facts from which an ordinary, prudent person could conclude that a crime has occurred and that there is evidence of the crime at the location to be searched. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995); State v. Smith, 93 Wn.2d 329, 352, 610 P.2d 869, cert. denied, 449 U.S. 873 (1980). "Accordingly, `probable cause requires a nexus between criminal activity and the item to be seized, and also a nexus between the item to be seized and the place to be searched.'" State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999) (citations omitted). The affidavit supporting a search warrant meets the probable cause requirement if it sets forth facts sufficient for a reasonable person to conclude that the defendant probably is involved in criminal activity. State v. Young, 123 Wn.2d 173, 195, 867 P.2d 593 (1994). Facts that alone would be insufficient to support probable cause can do so when viewed together with other facts. State v. Garcia, 63 Wn. App. 868, 875, 824 P.2d 1220 (1992).
We review a magistrate's determination to issue a search warrant for abuse of discretion. Cole, 128 Wn.2d at 286. We review an application for a search warrant with common sense resolving any doubts in favor of the warrant. Young, 123 Wn.2d at 195.
Washington uses the two-prong Aguilar-Spinelli inquiry when the warrant's supporting affidavit contains information from a confidential informant. State v. Jackson, 102 Wn.2d 432, 433, 688 P.2d 136 (1984) (citing Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)). The two prongs require the affidavit to establish: (1) the informant's "basis of knowledge, or how the informant obtained the information," and (2) the "reliability or credibility of the informant." State v. Olson, 73 Wn. App. 348, 355, 869 P.2d 110, review denied, 124 Wn.2d 1029 (1994). A statement against penal interest is a factor to be considered when determining an informant's credibility. State v. Estorga, 60 Wn. App. 298, 304, 803 P.2d 813, review denied, 116 Wn.2d 1027 (1991). A post-arrest admission is more reliable because of the risk of disfavor with the prosecutor if the informant lies. Estorga, 60 Wn. App. at 305.
Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
Clark and Brown argue there was insufficient evidence to support the probable cause finding in the warrant. We disagree. The police impounded the stolen Chevy Blazer in early February 2000 as part of an independent investigation. In the van, the officers found Clark's address book and identification card, Brown's dental records, and parts of a methamphetamine laboratory. They also found Clark's note, which stated, "[P]aint Blazer. Change plates ASAP." RP at 633. This was substantial independent evidence linking Clark and Brown to the stolen vehicle containing a methamphetamine lab.
The police also knew from the two February informants where Brown lived and that Brown and "David" were selling methamphetamine from the trailer. And the police had additional information gathered from the scene of the Mazda crash, including the various chemical and hardware supplies that Clark bought, which were items often used in a methamphetamine laboratory. Facts that would not support probable cause to issue a search warrant standing alone can do so when viewed together with other facts. State v. Wible, 113 Wn. App. 18, 23, 51 P.3d 830 (2002) (citing Cole, 128 Wn.2d at 286). Reviewing the entire collection of facts to determine whether probable cause existed and not just every individual fact in a vacuum, we hold that the probable cause requirement necessary for the search warrant was satisfied and the warrant properly issued.
Accomplice Liability Jury Instructions
The law has long recognized that an accomplice, having agreed to participate in a criminal act, runs the risk of having the primary actor exceed the scope of the preplanned illegality. State v. Davis, 101 Wn.2d 654, 658, 682 P.2d 883 (1984). Anyone who participates in the commission of a crime is guilty of the crime and should be charged as a principal, regardless of the degree of his participation. Davis, 101 Wn.2d at 658-59. But, accomplice liability does not necessarily attach to all crimes the principal committed. "[K]nowledge by the accomplice that the principal intends to commit `a crime' does not impose strict liability for any and all offenses that follow." State v. Roberts, 142 Wn.2d 471, 513, 14 P.3d 713 (2000). "[The] individual must have acted with knowledge that he or she was promoting or facilitating the crime for which that individual was eventually charged." State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000). See also State v. Stein, 144 Wn.2d 236, 246, 27 P.3d 184 (2001) (accomplice liability statute clearly requires knowledge of the specific crime, not merely any foreseeable crime committed as result of the complicity). Stated differently, a person is not an accomplice if, knowingly participating in the commission of one crime, he or she unwittingly aids in the commission of another.
The accomplice liability jury instruction in this case stated as follows:
A person is an accomplice in the commission of a crime, if, with knowledge that it will promote or facilitate the commission of a crime, he or she either:
1. Solicits, comments, encourages, or requests another person to commit the crime; or
2. Aids or agrees to aid another person in planning or committing a crime.
CP at 92, 169.
Clark argues that the jury instruction used in this case is flawed because the Washington Pattern Jury Instructions: Criminal (WPIC) language does not mirror the statutory definition. Specifically, the instructions incorrectly used "a" crime instead of "the" crime. Brown echoes this and argues that the accomplice liability instruction relieved the State of its burden "by allowing the jury to convict her if she was an accomplice in `the commission of a crime.'" Br. of Appellant (Brown) at 13.
Because the possession of methamphetamine count charged each as individuals, the accomplice liability jury instruction was not triggered and is not at issue here.
Clark and Brown are correct that the instruction's language is flawed because it does not follow the accomplice liability statute. We must then determine whether the flaw adversely affected the jury's deliberation in this case or was harmless. State v. Brown, 147 Wn.2d 330, 340-41, P.3d (2002) (citing Neder v. United States, 527 U.S. 1, 9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained)). If, on review of the record, we can determine that the jury considered accomplice liability only in terms of the crimes charged, an erroneous accomplice liability instruction may be harmless error. State v. Borrero, 147 Wn.2d 353, 365, 58 P.3d 245 (2002). An error which could not affect the outcome of the trial is harmless beyond a reasonable doubt. See State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985) ("constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error"), cert. denied, 475 U.S. 1020 (1986).
Here, the accomplice liability instruction applied to the manufacturing charge and the motor vehicle charges, but not the possession charge. The State clearly established that the methamphetamine lab at issue was the one in Brown's trailer, the one that Leggett saw Clark operating, and the one police seized on February 23 and 25, 2000. Because we are convinced that the accomplice jury instruction on the manufacture charge did not taint the outcome of the trial, we hold that the instruction here was harmless beyond a reasonable doubt.
The record before us contains eyewitness testimony proving that Clark and Brown were manufacturing methamphetamine. Evidence of their complicity in the manufacture of methamphetamine was direct and involved both as principals, the jury could not have been misled as to the crime charged — manufacturing methamphetamine — or each appellant's involvement with it.
I.e., their personal items were in the stolen Blazer with implements from a methamphetamine laboratory and a recipe for manufacturing methamphetamine, and Leggett testified that she saw Clark cooking the "soup" (making methamphetamine) in a beaker and the appellants offered to exchange the methamphetamine they were cooking for using her equipment to repaint the cars.
Clark: was seen stirring the methamphetamine on Brown's camp stove in Brown's trailer; Brown: gallon jars with matches with the striker pads removed were found in Brown's closet, precurser chemicals were found in her trailer under the sink, pseudoephedrine residue in Brown's kitchen ladle, she was present in her trailer when Clark was stirring the methamphetamine.
Here, methamphetamine was discovered in the utensils used to manufacture the methamphetamine. Therefore, the jury could not have reasonably believed that the "a crime" reference in the instruction was simple possession of methamphetamine separate from the manufacturing. Thus, on this record, we can say beyond a reasonable doubt that the challenged instruction is harmless.
Likewise, the instructions did not taint the two convictions of taking a motor vehicle without owner's permission (TMVWOP).
Mazda
Regarding the Mazda RX7, the jury heard that the car was stolen, that Brown and Clark rode in the vehicle on numerous occasions, and that Clark's receipt for the purchase of methamphetamine manufacturing equipment was in the car at the time of the collision. The jury also heard testimony that Brown admitted to Leggett that the Mazda had to be covered with a tarp because it was stolen. Neither Brown nor Clark have identified "a crime" other than the charged offense that the accomplice liability instruction could have confused the jury. Borrero, 147 Wn.2d at 364.
Blazer
As to the Blazer, Clark's address book and Brown's dental records were in the vehicle when it was impounded. The Blazer appeared at Brown's trailer at the same time that Clark began to stay there and it was usually parked outside. It too was repainted. Thus, any flaw in the jury accomplice liability instruction for the taking and/or riding in a vehicle knowing it to have been stolen was harmless error in light of the overwhelming evidence and the absence of an alternate crime with which the jury may have become confused. We affirm those convictions. Borrero, 147 Wn.2d at 365.
Prosecutorial Misconduct
To establish prosecutorial misconduct, the defendant must demonstrate the impropriety of the conduct as well as its prejudicial effect. State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995). The court considers the entire record and circumstances at trial in reviewing the alleged improper conduct. State v. Rivers, 96 Wn. App. 672, 675, 981 P.2d 16 (1999). We review the trial court's ruling under an abuse of discretion standard, giving it deference. State v. Borg, 145 Wn.2d 329, 335, 36 P.3d 546 (2001). Where the defendant objects to the prosecutor's improper remark, reversal is required if "there is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict." State v. Luvene, 127 Wn.2d 690, 701, 903 P.2d 960 (1995) (quoting State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 117 (1991)). Clark argues that Special Prosecutor Clem "repeatedly resorted to argumentative and improper questions designed to prejudice him in the eyes of the jury." Br. of Appellant (Clark) at 20. Specifically, he references instances where Clem referred to his sister's partner of 11 years as his "loose brother-in-law" (parroting language the man himself used). Br. of Appellant (Clark) at 21. He also refers to references that Clem made to a dead salmon left in the bed in the trailer, and whether that was a "Mafia message." Br. of Appellant (Clark) at 23. Clark also raises issues about Clem picking a fight with him on the witness stand. Although some of this conduct appears unprofessional, it does not rise to prosecutorial misconduct warranting reversal of appellants' convictions. Appellants must show actual and substantial prejudice from the actions complained of within the context of the entire record and demonstrate that nothing short of a mistrial can cure the prejudice. State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989); In re Personal Restraint of Pirtle, 136 Wn.2d 467, 485, 965 P.2d 593 (1998); State v. Copeland, 89 Wn. App. 492, 496, 949 P.2d 458 (1998); State v. Wall, 52 Wn. App. 665, 675, 763 P.2d 462, review denied, 112 Wn.2d 1008 (1988). Here, Clark has not shown how he was specifically prejudiced by allowing himself to get into an argument with the prosecutor in the courtroom. Moreover, in other sections of the transcript not cited, there are many exchanges where Clark states that he does not remember what happened or did not know the result of his actions. See RP at 764 (even though he was in the shop when the Blazer was repainted by the other individuals, it did not occur to him that it was stolen); RP at 773 (he supposedly thought the Mazda, which he noted had been repainted, was under a tarp near the trailer because the sunroof leaked); RP at 784 (he had seen a number of methamphetamine labs, knew what belonged there, but thought the 17 feet of polyester tubing that he bought was for a fish tank). Looking at the whole record, it appears the State's questioning was directed at pointing out the inconsistencies in the testimony and was not unduly argumentative.
Brown incorporates this argument into her brief in toto. No separate analysis is needed.
Regarding the other questions about Mead, Clark's loose brother-in-law, and the salmon, State v. Rivers, 96 Wn. App. 672, 981 P.2d 16 (1999), is instructive. In that case, the prosecutor referred to the defendant and others as "predators . . . nothing more than hyenas" and referred to the defendant's character witnesses who came from the jail as "the pajama crowd." Rivers, 96 Wn. App. at 673-74. Division One of this court ruled the error was not harmless and stated, "This court has a responsibility to insist upon and enforce minimum standards of professionalism in the conduct of our system of criminal justice. The highly inflammatory comments utilized by the prosecutor in this case fall well below the standards appropriate to the conduct of the State's case." Rivers, 96 Wn. App. at 675.
The statements complained of here are more tangential (what kind of salmon, what relationship is Mead to you) than the comments in Rivers. Here, while the prosecutor's comments initially appear taunting, in the context of the entire record, and in light of the overwhelming physical evidence, they are not so prejudicial as to require a mistrial. For these reasons, we hold there is no misconduct warranting reversal of appellants' convictions.
Clark also argued that the trial court erred by allowing the State to reject his offer to stipulate to his prior criminal history. But, he claims error only for Count V, the count for which he was found not guilty.
Therefore, we can only conclude this was harmless error.
Ineffective Assistance of Counsel
Competency of counsel is judged in review of the entire record. State v. White, 81 Wn.2d 223, 225, 500 P.2d 1242 (1972). To establish ineffective assistance of counsel, the claimant must show deficient performance and resulting prejudice. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Performance of counsel is deficient when it falls "below an objective standard of reasonableness" under prevailing professional norms. In re Personal Restraint of Rice, 118 Wn.2d 876, 888, 828 P.2d 1086 (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), cert. denied, 506 U.S. 958 (1992). The defendant must show the absence of legitimate strategic or tactical rationales for the challenged attorney conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). That this trial strategy or tactics failed is not a sufficient basis to find ineffective assistance of counsel. State v. Renfro, 96 Wn.2d 902, 909, 639 P.2d 737, cert. denied, 459 U.S. 842 (1982). We engage a strong presumption that counsel's representation was effective. State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996) (quoting State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987)).
Brown argues that she received ineffective assistance of counsel because her attorney failed to argue unwitting possession of the methamphetamine manufacturing materials. She also argues that her attorney was ineffective because he failed to argue an affirmative defense regarding the school zone enhancement for the manufacturing conviction.
There was evidence that Brown's methamphetamine enterprise was substantial. For example, Leggett testified that she consumed methamphetamine Clark provided in Brown's trailer in the presence of Brown and others, and that at that time Clark was cooking "soup" (making methamphetamine) in the living room of the trailer in a beaker on Brown's camp stove. When the police served the warrant on February 23, 2000, they discovered a packet of methamphetamine in her desk drawer, a methamphetamine lab (jars, tubing, etc.) in a grey plastic milk-type crate in her living room, chemicals required to make methamphetamine under Brown's kitchen sink, and matches without striker pads were in her closet. In addition, Brown's ladle contained pseudoephedrine and several other utensils contained methamphetamine. This record does not support a claim of unwitting possession of the methamphetamine lab. In addition, the trailer contained numerous items used to ingest methamphetamine: a glass tube-type methamphetamine pipe and syringes by the kitchen sink and in a "kit" on the couch. It is unlikely that an unwitting possession instruction, if given, would have altered the outcome of this case. Hence, Brown cannot say she was prejudiced by the court not giving the unwitting possession instruction.
School Zone Enhancement
But Brown correctly points out that the evidence of drug sales admitted at trial was in the Blazer, not in the trailer. Moreover, the State does not point to any additional evidence supporting a finding of sales or profits in the trailer. Thus, substantial evidence does not support the school zone enhancement. RCW 69.50.435(d). We vacate the enhancement and remand to the trial court for resentencing.
None of the informants who provided information of drug sales in the trailer referenced in the warrant affidavit testified at trial.
RCW 69.50.435(d) states:
It is an affirmative defense to a prosecution for a violation of this section that the prohibited conduct took place entirely within a private residence, that no person under eighteen years of age or younger was present in such private residence at any time during the commission of the offense, and that the prohibited conduct did not involve delivering, manufacturing, selling, or possessing with the intent to manufacture, sell, or deliver any controlled substance in RCW 69.50.401(a) for profit. The affirmative defense established in this section shall be proved by the defendant by a preponderance of the evidence. This section shall not be construed to establish an affirmative defense with respect to a prosecution for an offense defined in any other section of this chapter.
Insufficient Evidence for TMVWOP
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). In determining whether the necessary quantum of proof exists, the reviewing court need not be convinced of the defendant's guilt beyond a reasonable doubt, but only that substantial evidence supports the State's case. State v. Fiser, 99 Wn. App. 714, 718, 995 P.2d 107, review denied, 141 Wn.2d 1023 (2000). Substantial evidence is evidence that "would convince an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed." State v. Hutton, 7 Wn. App. 726, 728, 502 P.2d 1037 (1972). In finding substantial evidence, we cannot rely on guesswork, speculation, or conjecture. Hutton, 7 Wn. App. at 728.
Every person voluntarily riding in a motor vehicle with knowledge that it was unlawfully taken shall be equally guilty with the person taking or driving the motor vehicle and shall be deemed guilty of taking a motor vehicle without permission. Former RCW 9A.56.070(1) (1975). The State must prove either taking or riding even though the information alleges both in the conjunctive. State v. Ford, 33 Wn. App. 788, 790, 658 P.2d 36 (1983).
Brown argues that she was not a "culpable joy rider, as there was insufficient evidence Ms. Brown knew the vehicles were unlawfully taken." Br. of Appellant (Brown) at 26. We disagree.
Brown admitted to Leggett she knew the cars were stolen and she hid the Mazda with a tarp. She repainted both the Mazda and the Blazer, presumably to deter their return to the rightful owner. We also note that Brown's personal papers were in the Blazer. With all inferences drawn in the State's favor, this record contains sufficient evidence of guilty knowledge to demonstrate that Brown knew the cars were stolen. Thus, sufficient evidence supports Brown's TRMVOP convictions.
Drug Offender Sentencing Alternative
The drug offender sentencing alternative (DOSA) is a sentencing option available to persons convicted of a felony drug offense if certain criteria are met. Former RCW 9.94A.120(6) (1998). The purpose of the DOSA statute is to provide a treatment-oriented alternative for drug offenders. In re Sentence of Holt, 105 Wn. App. 619, 620-21, 20 P.3d 1033 (2001). We review the decision to sentence using the DOSA for abuse of discretion. State v. Conners, 90 Wn. App. 48, 53, 950 P.2d 519, review denied, 136 Wn.2d 1004 (1998).
Brown argues pro se that her attorney did not sufficiently represent her wishes regarding sentencing and she asks this court for a DOSA now. Because Brown did not ask for a DOSA at sentencing and the granting of a sentencing alternative is within the trial court's discretion, this court cannot review this request. But, Brown may request imposition of a DOSA when she is resentenced.
Double Jeopardy
In addition, Brown and Clark claim that the constitutional prohibition against double jeopardy requires that the possession charge merge into the manufacturing charge. The State concedes stating:
The parties have not provided us with the charging documents or instructions necessary to perform an independent review of this claim.
The State concedes that Double Jeopardy applies to the Manufacturing and Possessing convictions so argument on these issues is moot. The lesser convictions of Possession of Methamphetamine should be dismissed.
Br. of Respondent (replying to Brown) at 15.
Accordingly, on remand, the appellants may be sentenced on the manufacturing (without the school zone sentencing enhancement) and taking and riding charges only. And the possession charge will not be included in the offender score calculation.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER and SEINFELD, JJ., concur.