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State v. Elmore

The Court of Appeals of Washington, Division Two
Mar 27, 2007
137 Wn. App. 1052 (Wash. Ct. App. 2007)

Opinion

No. 34336-3-II.

March 27, 2007.

Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-01844-7, John A. McCarthy, J., entered January 20, 2006.

Counsel for Appellant(s), Lise Ellner, Attorney at Law, WA, 98569-0817, Lise Ellner, Attorney at Law, Vashon, WA.

Counsel for Respondent(s), Michelle Hyer, Pierce County Prosecutor, Tacoma, WA.


Affirmed by unpublished opinion per Armstrong, J., concurred in by Bridgewater and Quinn-Brintnall, JJ.


Michael Elmore appeals his conviction for possessing pseudoephedrine with intent to manufacture methamphetamine, arguing that the State failed to establish the corpus delicti before introducing his statements and failed to prove the charge beyond a reasonable doubt. He also contends that the trial court deprived him of a unanimous verdict by instructing on alternative means without sufficient evidence of one of the means. Finding no error, we affirm.

Facts

On April 15, 2005, Pierce County Sheriff's deputies began following Michael Elmore's truck after watching Elmore and his passenger, Lana Martin, each purchase two packages of pseudoephedrine pills at a Target store.

The deputies first saw Martin buy the pills and return to the truck Elmore was driving. They then checked security recordings and saw a white male also buying two packages. They suspected and later confirmed Elmore was that male.

Elmore parked at a burger restaurant, went inside, and after ordering, watched traffic on the street. Elmore and Martin ate in the truck, and before they left, Martin threw away a brown plastic grocery bag. The bag contained 10 empty boxes of pseudoephedrine pills from at least 4 different stores and 16 empty blister packs from which the pseudoephedrine pills had been removed. The bag also contained two receipts dated April 15, 2005: one from Target for two boxes of pseudoephedrine purchased during the deputies' surveillance and one from Safeway for a container of lye and a box of pseudoephedrine pills purchased before the deputies began surveillance.

When they later searched the truck, deputies did not find the pills that had been removed from the blister packs.

Elmore next drove to a Walgreens store where he bought a box of pseudoephedrine pills and a bottle of isopropyl alcohol. He then drove to a Fred Meyer store, where he bought two containers of lye and a box of pseudoephedrine pills. Meanwhile, Martin separately purchased two boxes of pseudoephedrine. The deputies arrested Elmore and Martin when they returned to the truck.

Elmore told the officers he had been to Safeway before shopping at Fred Meyer, without mentioning his stops at Target or Walgreens. The deputies told Elmore they had been observing his purchases and asked him if he was obtaining pseudoephedrine to deliver to a methamphetamine manufacturer. Elmore responded: "I am already going down for this." Report of Proceedings (RP) (Nov. 22, 2005) at 69. He denied manufacturing methamphetamine but admitted he knew how the pills would be used. He explained that a year-and-a-half earlier, he had been addicted to methamphetamine. When the officers asked him where the blister packs were, Elmore said they were gone.

Martin told the deputies she had helped Elmore pop pseudoephedrine pills out of blister packs inside the truck, but she did not know where he put the pills. She admitted buying pseudoephedrine pills at Safeway, K-Mart, Target, and Fred Meyer. She also said that Martin paid her to buy the pills and that they were planning to deliver the pills to someone who would use them to make methamphetamine.

In a later search of the truck, the deputies found six boxes of pseudoephedrine pills: the boxes Elmore bought at Fred Meyer and Walgreens, the two boxes Martin bought at Fred Meyer, and two boxes concealed inside a newspaper. They also found three containers of lye (the two Elmore bought at Fred Meyer and one additional container), the bottle of isopropyl alcohol Elmore bought at Walgreens, an unopened package of 500 coffee filters, and an opened box of ziplock sandwich bags. The deputies found receipts for at least three additional boxes of pseudoephedrine pills purchased at different stores before surveillance began. Although the deputies did not find the four boxes of pseudoephedrine purchased at Target, the trash Martin threw away included empty Target-brand boxes.

Methamphetamine manufacturers use isopropyl alcohol, lye, ziplock bags, and coffee filters to convert pseudoephedrine to methamphetamine. One could make a useable amount of methamphetamine from just six boxes of pseudoephedrine pills.

The State charged Elmore with possession of "pseudoephedrine and/or ephedrine" with intent to manufacture methamphetamine and with manufacturing methamphetamine. Clerk's Papers (CP) at 4. The trial court dismissed the manufacturing charge. Elmore made no corpus delicti objection to admission of his statements during trial. Martin testified as a State witness, and Elmore cross-examined her about her statements to the deputies.

She denied saying that she and Elmore were going to deliver the pseudoephedrine to a methamphetamine manufacturer.

In the elements instruction, the trial court told the jury the first element was knowing possession of "ephedrine and/or pseudoephedrine." Elmore did not object to the reference to both ephedrine and pseudoephedrine. The jury convicted Elmore.

Elmore moved for judgment notwithstanding the verdict, arguing that the State had not established a sufficient corpus delicti before introducing his statements, citing State v. Whalen, 131 Wn. App. 58, 126 P.3d 55 (2005). The trial court denied the motion and imposed a standard range sentence.

Analysis of Corpus Delicti Issue

The State argues that Elmore waived any corpus delicti error by not objecting during trial. See State v. Dodgen, 81 Wn. App. 487, 492, 915 P.2d 531 (1996) (because the corpus delicti rule is not a constitutional requirement, error is waived without objection). But Elmore raised the issue in his motion for a judgment notwithstanding the verdict. Accordingly, we address the issue.

The State may use a defendant's confession to prove guilt only if it independently establishes the corpus delicti: direct or circumstantial evidence corroborating the confession. Whalen, 131 Wn. App. at 62; accord State v. Brockob, No. 78571-6, 2006 Wash. LEXIS 981, at *19-20 (Dec. 28, 2006). The corpus delicti is simply evidence, other than the defendant's confession, that someone committed the charged crime. State v. Cobelli, 56 Wn. App. 921, 924, 788 P.2d 1081 (1989); accord Brockob, No. 78571-6, 2006 Wash. LEXIS 981, at *21-22. As we summarized in Whalen:

To be sufficient, independent corroborative evidence need not establish the corpus delicti, or "body of the crime," beyond a reasonable doubt, or even by a preponderance of the evidence. Rather, independent corroborative evidence is sufficient if it prima facie establishes the corpus delicti. Prima facie in this context means evidence of sufficient circumstances supporting a logical and reasonable inference of criminal activity. In determining whether the State has produced sufficient prima facie evidence, we must assume the truth of the State's evidence and all reasonable inferences drawn therefrom. But the independent evidence must support a logical and reasonable inference of criminal activity only. If the independent evidence also supports logical and reasonable inferences of noncriminal activity, it is insufficient to establish the corpus delicti.

Whalen, 131 Wn. App. at 62-63 (citations omitted); accord Brockob, No. 78571-6, 2006 Wash.

LEXIS 981, at *20-21.

As in Whalen, the dispositive question "is whether the State produced sufficient independent corroborative evidence suggesting [Elmore's] intent to manufacture methamphetamine." Whalen, 131 Wn. App. at 63. The State presented evidence that Elmore acquired multiple boxes of pseudoephedrine from multiple stores within a short period of time. Elmore had also removed the pseudoephedrine pills from the blister packs. At the same time he possessed the pills, Elmore also possessed other items needed to manufacture methamphetamine from pseudoephedrine pills: isopropyl alcohol, coffee filters, lye, and ziplock bags. And, Martin told the deputies that she and Elmore intended to deliver the pills to someone who would convert them to methamphetamine. Her statement, like the physical evidence, is evidence independent of Elmore's statements.

Nonetheless, Elmore points out that pseudoephedrine, isopropyl alcohol, coffee filters, lye, and ziplock bags all also have innocent uses. But Elmore's possession of all the items at one time, his purchase of boxes of pseudoephedrine at multiple stores within a short period of time, and his removal of the pills from 16 blister packs, coupled with Martin's statement that they intended to deliver the supplies to a methamphetamine maker establishes the corpus delicti of possessing pseudoephedrine with the intent to manufacture methamphetamine.

Our conclusion finds support in the Washington State Supreme Court's recent corpus delicti decision, State v. Brockob, No. 78571-6, 2006 Wash. LEXIS 981 (Dec. 28, 2006). In that consolidated case, one of the defendants, Gonzales, was charged with attempted manufacture of methamphetamine. Brockob, No. 78571-6, 2006 Wash. LEXIS 981, at *8-9. The Supreme Court held the independent evidence sufficient to establish the corpus delicti for that crime based on less corroborating evidence than is present in Elmore's case. Brockob, No. 78571-6, 2006 Wash. LEXIS 981, at *7-8, 29.

Analysis of Sufficiency of the Evidence

Elmore next contends that the evidence was insufficient to convict him. Evidence is sufficient when a rational trier of fact, viewing the evidence in the light most favorable to the State, could find the State had proved the elements beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). When a defendant claims insufficient evidence, we "must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v. Fiser, 99 Wn. App. 714, 719, 995 P.2d 107 (2000).

Specifically, Elmore contends that the State failed to prove that he possessed the pseudoephedrine with the intent to manufacture methamphetamine. He points to the relatively small quantities of materials and their innocent uses. But the combination of those items in one place, together with Elmore's methods of acquiring them, Martin's statements, Elmore's own statements, and the expert testimony provide sufficient evidence to allow a reasonable jury to find beyond a reasonable doubt that Elmore intended to manufacture methamphetamine with the pseudoephedrine he possessed.

Analysis of Alternate Means Issue

Elmore next contends that by instructing the jury that the first element required proof of knowing possession of either pseudoephedrine or ephedrine, the court instructed on alternate means without also providing a unanimity instruction. He reasons that since there was no evidence he possessed ephedrine, there was insufficient evidence of one of the means, requiring reversal. We disagree.

Possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine is not an alternative means crime. Ephedrine and pseudoephedrine are defined together in RCW 69.50.440(1) as among those materials it is unlawful to possess with the intent to manufacture methamphetamine. Definitional "statutes do not create additional alternative means of committing" a crime. State v. Linehan, 147 Wn.2d 638, 646, 56 P.3d 542 (2002). The court did not err in instructing the jury.

Pro Se Issues

In his statement of additional grounds, RAP 10.10, Elmore asserts that the trial court should not have admitted his statements to the deputies because only one officer heard them. He also contends that the trial court erred in admitting the evidence retrieved from the garbage because the State offered no evidence connecting him to it. He faults his attorney for not moving to suppress the statements and physical evidence.

The trial court held a CrR 3.5 hearing and found Elmore's statements admissible.

But a witness testified that Elmore made the statements; other witnesses testified that the bag in evidence was the same one Martin placed into the garbage can at Elmore's direction. Elmore merely identifies potential weaknesses that could affect the weight the jury might give the evidence, not the admissibility of the evidence. State v. Peele, 75 Wn.2d 28, 31-32, 448 P.2d 923 (1968); see State v. Gosby, 85 Wn.2d 758, 760-61, 539 P.2d 680 (1975). To the extent Elmore is arguing that his lawyer ineffectively assisted him, he fails to demonstrate prejudice because he fails to demonstrate the probable success of a motion to suppress. See State v. Crawford, 159 Wn.2d 86, 97, 147 P.3d 1288 (2006).

Affirmed.

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.

We concur:

Bridgewater, P.J.

Quinn-Brintnall, J.


Summaries of

State v. Elmore

The Court of Appeals of Washington, Division Two
Mar 27, 2007
137 Wn. App. 1052 (Wash. Ct. App. 2007)
Case details for

State v. Elmore

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. MICHAEL DUANE ELMORE, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Mar 27, 2007

Citations

137 Wn. App. 1052 (Wash. Ct. App. 2007)
137 Wash. App. 1052