Opinion
No. 21727-2-III.
Filed: March 25, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-1-00056-9. Judgment or order under review. Date filed: 01/10/2003. Judge signing: Hon. Robert D Austin.
Counsel for Appellant(s), Donald G. Miller, Attorney at Law, 422 W Riverside Ave Ste 518, Spokane, WA 99201-0302.
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.
Cindi Jo Heihn, incorrectly contends her Spokane conviction for manufacturing methamphetamine within 1,000 feet of a school ground lacks sufficient supportive evidence and the search warrant issued for her residence lacks the same. Ms. Heihn's additionally stated grounds for review are inadequate. Therefore, we affirm.
FACTS
On September 20, 2001, Spokane Police Detective Alan Quist successfully prepared and submitted a search warrant affidavit to a district court judge. According to Detective Quist, the Spokane Fire Department (SFD) had responded to a house fire at Ms. Heihn's residence. The fire fighters put out the fire in Ms. Heihn's residence, and removed several items, including 'a backpack, a metal box with several glass mason jars and a gallon jug of muriatic acid.' Clerk's Papers (CP) at 30. A fire investigator saw a hot plate in the 'on' position on the bedroom floor, three bottles of 'Heet,' two mason jars with fluid, a Pyrex dish and a drain cleaner. CP at 30.
Detective Quist averred a woman identifying herself as 'Cindy Jo Heihn' purchased a quantity of seven percent iodine at a Spokane livestock feed store in March 2001. CP at 31. Ms. Heihn, 'had a chemical odor about her.' CP at 30. Waiving her constitutional rights, Ms. Heihn told the officer 'that she was cleaning out a metal toolbox that was left in a travel trailer' parked in the driveway of her residence. CP at 30. Ms. Heihn claimed the travel trailer was used by a former resident. 'Heihn took the toolbox to her bedroom and removed several glass mason jars, a gallon jug of Muriatic acid and an orange bag with two plastic juice bottles. One of the mason jars had a yellow/brown liquid inside which she placed next to her hot plate, which she keeps on to heat water to help her breathing.' CP at 30. Ms. Heihn claimed the fire started while she was in the kitchen preparing to put the mason jars in the dishwasher.
Ms. Heihn denied manufacturing methamphetamine, or using the drug, and further denied purchasing or possessing iodine. Ms. Heihn admitted ownership of a propane bottle in a backpack and claimed she used it for a camp stove located in her van parked in front of the residence. She also 'denied possessing any ephedrine or cold tablets that contain ephedrine/pseudoephedrine.' CP at 31.
On January 7, 2002, the State charged Ms. Heihn with one count of manufacture of a controlled substance, methamphetamine, within 1,000 feet of a school ground, allegedly occurring on or about September 20, 2001. Prior to trial, Ms. Heihn unsuccessfully moved to suppress her statements and the physical evidence seized during the September 20, 2001 search, which she argued lacked probable cause.
At the December 2002 trial, fire fighter Bradley Cassell testified his unit responded from a fire station located two blocks from Ms. Heihn's residence. Arriving about three minutes after dispatch, Mr. Cassell went into Ms. Heihn's bedroom to put out the fire, observed chemicals and mason jars, and then reported to his supervisor, 'that we, you know, possibly had a, you know, the makings of a meth lab.' Report of Proceedings (RP) at 17.
Fire fighter Alexander Mickschel testified about what he saw at the fire site:
What I saw in particular that alarmed me, or set my warning flag up was that there were several unidentified containers. In a metal box. There was some — there was some powders and residues that were not — what I would consider not consistent with — with the location of the fire, and what it had done. As well as some containers of Coleman fuel. And gasoline, Heet, it's called Heet, H-E-E-T, located in the room, as well. And these items are not — these items are items that if we find in a house, we're ordered to immediately tell the commanding officers that these items have been found. Because they're commonly used in meth labs.
RP at 24-25.
Fire Captain Gerald Anderson, the incident commander, testified:
[E]ither under the window or to the left of the window there was a night stand with a hot plate on it. I believe in my notes I said it was plugged in. And then I noticed a bottle of — yellow bottle of Heet. H-E-E-T. Underneath a night stand, dresser, or I'm not sure, it was there. There was a bluish-green metal box, it had some canning jars in it and about it. There was a gallon can of Coleman fuel. Also on the dresser, or night stand, there appeared to be paraphernalia for smoking.
RP at 32.
Spokane Fire Department fire investigator Captain Robert Hanna testified he heard the fire involved a possible meth lab. Captain Hanna entered the bedroom:
And noticed several components consistent with making a methamphetamine. Specifically, bottles of Heet. Hot plate was in the room. There was glassware. I recognized dishes, you know, sauce pans. All these are real common. Coleman fuel. That type of stuff. So, at that point, after I take my examination focus, we pulled out, because — I made determinations that we probably had some — some meth lab here.
RP at 38.
Captain Hanna noticed an unattached garden hose leading to the bedroom. 'We — we seem to have seen them more often when it involves meth labs. People tend to try to put out the fire by themselves before they call the fire department, or they won't call the fire department at all.' RP at 41.
Spokane Fire Department paramedic Lieutenant James Schaffer testified Ms. Heihn was very anxious and agitated, and kept scratching her arms. According to Lieutenant Schaffer, Ms. Heihn kept changing stories as to how the fire started, and the source of the mason jars found in her bedroom. On redirect, Lieutenant Schaffer said Ms. Heihn's 'pinpoint' pupils and scratching were consistent with methamphetamine use. RP at 55.
Detective Quist testified Ms. Heihn told him she obtained the metal box with mason jars from the trailer parked in her driveway and previously vacated by a man she called 'Mike.' RP at 60. She said the fire started when she was in the kitchen preparing to clean the mason jars. She admitted keeping a hot plate in her bedroom for purposes of boiling water to use as a humidifier.
Detective Quist related he found a backpack in a neighbor's yard near Ms. Heihn's bedroom window. Ms. Heihn first denied ownership of the backpack but then admitted it was hers. She said small propane bottles in the backpack were for her camp stove. Ms. Heihn claimed she kept Coleman lantern fuel, Heet, and other chemicals in her bedroom to keep them away from children. Detective Quist described many exhibits recovered from the search that were opined consistent with methamphetamine production, such as glass and plastic jars with compounds in them, chemical containers, and cooking utensils. He also found pieces of tin foil with burn marks, consistent with a popular means of smoking methamphetamine.
Forensic Chemist Mitchell Nessan of the Washington State Patrol Crime Laboratory testified substances taken from containers found in Ms. Heihn's residence, including her bedroom, contained methamphetamine or precursors such as ephedrine or pseudoephedrine. 'I concluded that many of the items I did analyze were either used in, or made available for the use in the manufacturing of methamphetamine using the red phosphorous HI method.' RP at 140.
Ms. Heihn's mother testified she lived in the same house with her daughter. In cross-examination, she admitted her daughter might have told her not to call the fire department after the fire broke out '[b]ecause she was working on putting the fire out.' RP at 158. The mother admitted she did not call the fire department, even though the nearest fire station was two blocks away from the house.
Called in Ms. Heihn's defense, two police officers said they did not see evidence of methamphetamine production when visiting Ms. Heihn's residence on an unrelated matter a few days before the fire. But, one of the officers admitted his limited view of Ms. Heihn's bedroom did not preclude the possibility of drug manufacturing material being in the room. The other officer admitted he did not view the bedroom interior.
A methamphetamine lab cleanup contractor testifying on Ms. Heihn's behalf said he found no evidence of methamphetamine residue in the bedroom. But, the contractor admitted testing merely a small wall section and conceded residue could have been on the ceiling, or could have been flushed away by fire hoses.
Ms. Heihn testified she used to own janitorial service companies in California and brought many cleaning agents to Spokane and stored them in her bedroom to keep them away from children. Regarding the blue tool box found in her bedroom, Ms. Heihn claimed she brought it into the house hoping to make use of any tools inside of it. Ms. Heihn testified when opening the tool box she recognized the contents were related to methamphetamine. She said she panicked and did not call the police because she was afraid her mother, who volunteered at the police department, would get in trouble.
Concerned children might get into contact with the items, Ms. Heihn said she emptied the jars and loaded them into her dishwasher. 'And when I came back to my room, my — my curtain was on fire.' RP at 200. Ms. Heihn did not call the fire department. She tried putting the fire out with a fire extinguisher and then a garden hose. She speculated bad wiring might have caused the fire.
Ms. Heihn's primary physician testified she took several medications and had anxiety problems. The physician conceded methamphetamine use can cause pinpoint pupils, scratching, and anxiety.
After closing argument, the trial court noted that juror number one had difficulty staying awake. With the express approval of both counsel, the trial court exchanged that juror with the originally designated alternate juror.
The jury found Ms. Heihn guilty of controlled substance manufacturing, and included a finding this occurred within 1,000 feet of a school ground. A standard range sentencing followed in January 2002, including a 24-month school zone enhancement.
Ms. Heihn filed a timely appeal.
ANALYSIS A. Search Warrant Affidavit Sufficiency
The issue is whether there was insufficient probable cause to issue a warrant to search Ms. Heihn's residence.
A magistrate may issue a search warrant solely upon a determination of probable cause. State v. Jackson, 150 Wn.2d 251, 264, 76 P.3d 217 (2003); State v. Gore, 143 Wn.2d 288, 296, 21 P.3d 262 (2001). 'Probable cause exists where the affidavit in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime may be found at a certain location.' Jackson, 150 Wn.2d at 264 (citing State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002); State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999)). 'Probable cause thus requires (1) a nexus between criminal activity and the item to be seized, and (2) a nexus between the item to be seized and the place to be searched.' State v. Cowin, 116 Wn. App. 752, 758, 67 P.3d 1108 (2003) (citing Thein, 138 Wn.2d at 140; State v. McGovern, 111 Wn. App. 495, 499, 45 P.3d 624 (2002)).
'The affidavit must be based upon more than mere suspicion or personal belief that evidence of the crime will be found at the place to be searched.' Jackson, 150 Wn.2d at 265 (citing Vickers, 148 Wn.2d at 108). 'A judge's decision to issue a warrant is reviewed for abuse of discretion, and great deference is accorded that decision.' Jackson, 150 Wn.2d at 265 (citing Vickers, 148 Wn.2d at 108). 'The affidavit is evaluated in a commonsense manner, rather than hypertechnically, and any doubts are resolved in favor of the warrant.' Jackson, 150 Wn.2d at 265 (citing Vickers, 148 Wn.2d at 108; State v. Helmka, 86 Wn.2d 91, 93, 542 P.2d 115 (1975); State v. Partin, 88 Wn.2d 899, 904, 567 P.2d 1136 (1977)).
The trial court's findings of fact are unchallenged and thus verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). 'The appellate court conducts a de novo review of conclusions of law in an order pertaining to a suppression motion.' State v. Shaver, 116 Wn. App. 375, 380, 65 P.3d 688 (2003) (citing State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999)).
The unchallenged findings of fact show fire fighters removed various items from Ms. Heihn's bedroom, including 'a metal box containing several glass mason jars and a gallon jug of muriatic acid.' CP at 140. 'The arson investigator noticed a hot plate in the 'on' position on the bedroom floor. The investigator also noticed three bottles of 'Heet', a gas line antifreeze, two mason jars with fluid, a Pyrex dish and a drain cleaner.' CP at 140-41. Ms. Heihn 'had a chemical odor about her.' CP at 141. The trial court found the affiant described the relevant methamphetamine manufacturing process and stated the basis for the affiant's belief that Ms. Heihn was engaged in methamphetamine manufacturing at her residence. In its conclusion of law, the trial court reasoned that not every component of the manufacturing process need be present to establish probable cause to issue a search warrant. We agree.
The evidence, reviewed in a common sense manner, is sufficient to establish probable cause. A suspicious fire in a bedroom containing a hot plate, a Pyrex dish, chemicals commonly associated with methamphetamine production (Heet, Coleman lantern fuel, and drain cleaner) and mason jars, some of which contained fluids, indicates a reasonable probability that a methamphetamine operation went bad in that bedroom. Ms. Heihn smelled of chemicals.
The trial court did not specially note the iodine purchase evidence, which might be argued stale, but the information merely tended to support Ms. Heihn's dishonesty or evasiveness that was established by other evidence. Thus, even without the iodine allegation, the affidavit established sufficient probable cause to justify issuance of the warrant. Accordingly, we conclude the trial court did not abuse its discretion.
B. Manufacturing Evidence Sufficiency
The issue is whether sufficient evidence shows Ms. Heihn 'manufactured' methamphetamine.
'The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.' State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)).
'When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.' Salinas, 119 Wn.2d at 201 (citing State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977)). '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 (citing State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385, 622 P.2d 1240 (1980)).
We consider circumstantial evidence equally with direct evidence. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997); State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). 'Credibility determinations are for the trier of fact and cannot be reviewed on appeal.' State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
'Manufacture' means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container. RCW 69.50.101(p).
The evidence viewed most favorable to the State shows Ms. Heihn's bedroom contained a significant number of components and ingredients used in the manufacturing of methamphetamine. There was the hot plate, Pyrex sauce pan containing a brown liquid, Heet, drain cleaner, Coleman lantern fuel, a large number of glass and plastic containers filled with fluids or stained with residue, coffee filters stained with red residue, and an empty blister pack. Several of the containers and filters contained methamphetamine or precursor residue. There was a gallon can of Muriatic acid, which Ms. Heihn admitted to having in her bedroom. Inferably, the bedroom was a meth lab.
A suitcase seized at the residence contained other meth-related items, such as a 16-ounce iodine container and more coffee filters. More evidence of methamphetamine production was found in the basement, including glass beakers and various chemicals. The trailer parked adjacent to the house contained more meth-related material.
The fire was suspicious. Ms. Heihn did not call the fire department, but tried to extinguish the fire herself. She claimed she panicked. The jury might have agreed, but given the persuasive testimony of Captain Hanna, the jury likely and reasonably inferred the primary source of Ms. Heihn's panic was her justifiable fear that the fire department would stumble across a meth lab in her bedroom. Given the location of the hot plate and the various chemicals located nearby, the jury could have easily inferred the fire was the result of meth production flaring out of control. Glass containers and coffee filters seized from the bedroom contained methamphetamine or its precursors.
Given the totality of evidence, the jury reasonably inferred Ms. Heihn was the responsible person. And the jury apparently rejected Ms. Heihn's exculpatory evidence. We will not disturb such credibility determinations. Camarillo, 115 Wn.2d at 71.
C. Statement of Additional Grounds for Review
Ms. Heihn alleges juror misconduct occurred. A criminal defendant is constitutionally entitled to an impartial 12-person jury. State v. Cuzick, 85 Wn.2d 146, 149, 530 P.2d 288 (1975); State v. Johnson, 90 Wn. App. 54, 72, 950 P.2d 981 (1998).
Ms. Heihn alleges a juror read a book during the trial. But, the record is silent on this point. Ms. Heihn worries about a juror replaced by an alternate for no apparent reason. But, the record shows defense counsel agreed to exchange the juror with the alternate because of trial court concerns about the juror's attentiveness during trial. We review a trial court's decision to replace a juror with an alternate juror for abuse of discretion. Johnson, 90 Wn. App. at 73; State v. Ashcroft, 71 Wn. App. 444, 461, 859 P.2d 60 (1993). Counsel agreed to substitute the alternate with juror number one. The trial court properly acted within its discretion. See Johnson, 90 Wn. App. at 73.
Next, Ms. Heihn alleges one of her witnesses, Ms. Sollis, conversed with a juror acquaintance. But, nothing in the record supports the allegation. Matters of this type are properly reviewed in a personal restraint petition. RAP 16.4.
In sum, Ms. Heihn has shown no additional grounds for reversal.
Affirmed.
A 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, J. and KURTZ, J., Concur.