Opinion
No. 24482-2-III.
April 24, 2007.
Appeal from a judgment of the Superior Court for Whitman County, No. 05-1-00068-1, David Frazier, J., entered July 29, 2005.
Affirmed by unpublished opinion per Kulik, J., concurred in by Schultheis, A.C.J., and Kato, J. Pro Tem.
Clinton Aldrich appeals his convictions for possession of methamphetamine, possession of pseudoephedrine with intent to manufacture, and manufacture of methamphetamine. He contends: (1) the court erred by allowing the State to amend the information on the day of trial to add the charges of possession of pseudoephedrine with intent to manufacture and possession of methamphetamine; (2) the evidence was insufficient to support his conviction on possession of pseudoephedrine; and (3) the court erred by convicting Mr. Aldrich of manufacturing methamphetamine when there was no proof as to when the manufacturing took place.
We hold that the court did not abuse its discretion by allowing the State to amend the information on the day of trial because Mr. Aldrich cannot show that he was prejudiced. We also hold there was sufficient evidence to support the convictions for possession of pseudoephedrine and manufacturing methamphetamine. We affirm the convictions.
FACTS
On March 11, 2005, detectives from the Quad Cities Drug Task Force obtained a search warrant for the residence of Clinton Aldrich. While the search warrant was being obtained, the detective watching the residence saw Mr. Aldrich leave. Detectives executed the warrant while Mr. Aldrich was away. Mr. Aldrich returned during the search.
Detectives detained Mr. Aldrich and informed him of his constitutional rights. Mr. Aldrich told them that he understood his rights and he voluntarily waived them. Then, Mr. Aldrich admitted to the detectives that he had a small, red phosphorous methamphetamine lab in his bathroom. He told the detectives that there were pills, cookware, and a methamphetamine lab inside the residence. Mr. Aldrich also told the detectives that the lab was small and that he made methamphetamine only for himself.
Inside the residence, detectives found numerous items consistent with the manufacture of methamphetamine, including matchbooks with missing striker plates, boxes of unopened matchbooks, six boxes of pseudoephedrine and empty blister packs, coffee filters, some with residue of methamphetamine and amphetamine containing a form of iodine, two hotplates, bleach, Red Devil Lye, two sets of scales, three Heet containers, and red phosphorus which appeared to have already been used in the process of manufacturing methamphetamine. Glassware was found containing solutions made with pseudoephedrine, iodine, red phosphorus, methamphetamine, organic solvents, and byproducts of methamphetamine production.
Detective William Hickman, who was trained to identify methamphetamine labs, concluded that this lab was used in the manufacture of methamphetamine using the red phosphorus method. Detective Hickman testified that the only way he could estimate when the manufacturing occurred was by examining the condition of the fluids inside the beakers. He explained that over time some of the elements sink out of the fluids, but the elements he observed in this case had not yet separated. According to Detective Hickman, the production of methamphetamine occurred "within a reasonable amount of time" of the search. Report of Proceedings at 93. He acknowledged that the manufacturing could have occurred at the end of February.
After the search, Mr. Aldrich was arrested and transported to jail. Three days later, detectives contacted Mr. Aldrich in jail and again informed him of his rights. Mr. Aldrich once again elected to waive his rights and he told the detectives that the lab in his home was small and for his personal use. Mr. Aldrich admitted that the red phosphorus method was the only one he knew and that the fluid in one of the jars was red phosphorus suspended in a solvent. Mr. Aldrich also admitted that the glassware found by the detectives constituted his lab.
Mr. Aldrich was initially charged with manufacturing methamphetamine. On the day of trial, the State moved to amend the charges to include possession of methamphetamine and possession of pseudoephedrine with intent to manufacture methamphetamine. Mr. Aldrich argued that he was surprised by the possession of pseudoephedrine charge. The court granted the motion to amend, concluding that given the allegations, the amendment should not result in any surprise.
Mr. Aldrich was convicted of all three charges. He appeals.
ANALYSIS
Amendment of the Information
Generally, a court may allow an amendment to an information at any time prior to the verdict or finding as long as there is no prejudice to substantial rights of the defendant. CrR 2.1(d). This court reviews a decision allowing an amendment for an abuse of discretion. State v. Schaffer, 120 Wn.2d 616, 621-22, 845 P.2d 281 (1993).
Before a court will dismiss charges under CrR 8.3(b), a defendant must show (1) arbitrary action or governmental misconduct, and (2) prejudice to his right to a speedy trial, which includes his right to be represented by counsel who has had a sufficient opportunity to prepare the defense. State v. Michielli, 132 Wn.2d 229, 239-40, 937 P.2d 587 (1997).
Mr. Aldrich contends that simple governmental mismanagement is enough to satisfy the governmental misconduct element. He also contends the timing of the amendments was intended to harass him and to force him to enter a guilty plea. Mr. Aldrich maintains that both of these claims are supported by Michielli.
In Michielli, the court found governmental misconduct where the prosecutor filed one theft charge against the defendant, but delayed three months before adding four other charges. Even though the prosecutor had all of the information needed to support the four charges when the initial charge was filed, the four charges were not added until just before trial. The court concluded that the defendant was prejudiced because he had to choose between giving up his right to a speedy trial or going to trial unprepared. Id. at 243-45.
Mr. Aldrich has proved governmental misconduct. Here, the State did not file the additional charges until the day of trial, July 18, 2005, even though the evidence to support the charges was obtained on March 11, 2005.
However, while Mr. Aldrich can establish misconduct, he cannot show prejudice. Mr. Aldrich claimed surprise when the additional charges were added, but he did not argue that he was unprepared for trial and he did not ask for a continuance. "Where the defendant fails to ask for a continuance, there is presumed to be a lack of surprise and prejudice." State v. Schaffer, 63 Wn. App. 761, 767, 822 P.2d 292 (1991), aff'd 120 Wn.2d 616, 845 P.2d 281 (1993) ( citing State v. Brown, 74 Wn.2d 799, 447 P.2d 82 (1968)).
The court did not abuse its discretion by allowing the amendment to the information.
Sufficiency of the Evidence
Evidence is deemed sufficient if, after viewing all of 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. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).
Mr. Aldrich contends the evidence is insufficient to support his conviction for possession of pseudoephedrine with the intent to manufacture because the amount in his possession was negligible and unlikely to be of sufficient quantity to produce methamphetamine. To support his arguments, he relies on State v. Whalen, 131 Wn. App. 58, 126 P.3d 55 (2005), and State v. Moles, 130 Wn. App. 461, 123 P.3d 132 (2005), review denied, 157 Wn.2d 1019 (2006). Both of these cases are distinguishable.
In Whalen, the court found insufficient evidence to support a conviction for unlawful possession of pseudoephedrine with intent to manufacture where the only evidence was Mr. Whalen's confession and his attempt to shoplift seven boxes of pseudoephedrine. Whalen, 131 Wn. App. at 66. However, in Moles, the court found sufficient evidence to support a conviction where the defendants shoplifted pseudoephedrine from two different stores, there were 440 pseudoephedrine pills in the defendant's stolen vehicle, and there was evidence of a coffee filter containing methamphetamine. Moles, 130 Wn. App. at 466-67.
Here, Mr. Aldrich had packages of pseudoephedrine, he admitted to the detectives that he manufactured methamphetamine in his home, and that his home contained a methamphetamine lab that had recently been used. And police found numerous items consistent with the manufacture of methamphetamine in his home. Based on this record, there was sufficient evidence to convict Mr. Aldrich of possession of pseudoephedrine with intent to manufacture.
Alibi Defense — Time Element
"[W]hen a precise time is fixed by the evidence, as is the usual case, and the defense is alibi, then the time element becomes a material one and the jury must be instructed that a verdict of guilt must be buttoned to the exact time as fixed by the evidence." State v. Pitts, 62 Wn.2d 294, 297, 382 P.2d 508 (1963). If time is not a material element of the crime charged, the "on or about" language is sufficient to allow proof of an act committed at any time within the statute of limitations, provided there is no defense of alibi. State v. Hayes, 81 Wn. App. 425, 432, 914 P.2d 788 (1996).
Here, both parties acknowledge that time is not an element of the crime charged. Instead, Mr. Aldrich contends that the "on or about language" of the charging document is insufficient to admit proof of the act committed because he had an alibi defense. At trial, Mr. Aldrich testified that his wife died on February 26, 2005, and that he took her remains to Sargent, Missouri, for interment in the family cemetery. Mr. Aldrich stated that he left for Missouri on March 1, and that he returned in the van the night of March 10. After spending the night with his mother, he went to his residence where he was arrested.
In an alibi defense, a defendant presents evidence indicating that he or she was at a different place at the time the crime was committed. State v. Johnson, 19 Wn. App. 200, 205, 574 P.2d 741 (1978). When using an alibi defense, the defendant casts doubt on the prosecution's assertion that the defendant was present at the scene of the crime on the date the crime was committed. Id. The question for the jury is whether the evidence as a whole establishes beyond a reasonable doubt that the defendant committed the crime charged. See id.
Mr. Aldrich is not asserting a complete alibi defense because the testimony that he was out of town covers only the period from March 1 until the night of March 10. Mr. Aldrich admitted that he was in town from the evening of March 10 until the time he was arrested on March 11. Of equal importance, proof of the precise time of the crime charged is not required to find a guilty verdict because time was not a material element.
The State need not fix a precise time for the commission of a crime if it is not possible to do so. Pitts, 62 Wn.2d at 299. Here, Mr. Aldrich failed to present a complete alibi defense and failed to show that the use of the "on or about" language deprived him of his constitutional right to present his defense to the jury. See id. at 300. Moreover, the evidence as a whole established beyond a reasonable doubt that Mr. Aldrich committed the crime of possession of pseudoephedrine with intent to manufacture within the statute of limitations.
We affirm.
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.
SCHULTHEIS, A.C.J. and KATO, J. Pro Tem., concur.