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State v. Hunter

The Court of Appeals of Washington, Division Two
Aug 7, 2007
140 Wn. App. 1001 (Wash. Ct. App. 2007)

Opinion

No. 34054-2-II.

August 7, 2007.

Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-01927-3, Ronald E. Culpepper, J., entered November 17, 2005.


Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton, C.J., and Penoyar, J.


A jury found Robert Lawrence Hunter guilty of unlawful possession of pseudoephedrine and/or ephedrine with intent to manufacture methamphetamine (Count III). On appeal, Hunter argues that the court's accomplice liability instruction was improper and that the evidence was insufficient to support the jury verdict. We affirm.

FACTS

In an attempt to stop the epidemic of methamphetamine manufacturing in Pierce County, the Pierce County Sheriff's Department works with pharmacies and grocery stores with pharmacies to conduct coordinated surveillance operations. Generally 6 to 15 officers follow customers who purchase pseudoephedrine products to see if they purchase or steal more pseudoephedrine or any other precursor component necessary for manufacturing methamphetamine. See RCW 69.43.110. During one such surveillance operation, Pierce County officers watched as Hunter and Lance Cornish drove to three separate stores in Pierce County.

At Walgreen's pharmacy, Cornish bought a box of pseudoephedrine. Then Hunter and Cornish went across the street to a Fred Meyer store where the two men entered the store separately and each purchased two boxes of pseudoephedrine. Hunter then drove around the store's building and discarded a bag containing receipts and empty pseudoephedrine boxes.

A short while later the men drove to a Safeway store. Again, the men entered the store separately and each purchased another three boxes of pseudoephedrine. Detectives detained Hunter and Cornish and impounded Hunter's car. After getting a warrant to search Hunter's car, detectives discovered various boxes of pseudoephedrine products; nine blister packs of pseudoephedrine pills hidden under the car's hood; and a Lowe's store receipt for the purchase of a gallon of xylene dated six days prior to Hunter's arrest.

Detective James Loeffelholz testified that xylene is one of many chemicals used in the manufacture of methamphetamine.

At trial, Cornish testified that he felt obligated to help Hunter purchase the pseudoephedrine pills because he had been living on Hunter's property rent-free; that Cornish and Hunter smoked methamphetamine together once or twice a week; and that methamphetamine was "routinely" available for their use. Cornish also testified that he was aware that the purchase of the pills was methamphetamine-related.

In his appeal, Hunter assigns error to the jury instruction defining accomplice liability and contends that the evidence is insufficient to support the jury's verdict finding him guilty of unlawful possession of pseudoephedrine and/or ephedrine with intent to manufacture methamphetamine.

DISCUSSION

Accomplice Liability Jury Instructions

For the first time on appeal, Hunter assigns error to the jury instruction defining accomplice liability. The court's Instruction No. 8 read, in part: A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.

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, commands, encourages, or requests another person to commit the crime; or

(2) aids or agrees to aid another person in planning or committing a crime.

Clerk's Papers (CP) at 12 (emphasis added).

Our Supreme Court declared this instruction to be an improper statement of the law of accomplice liability in State v. Cronin, 142 Wn.2d 568, 578-80, 14 P.3d 752 (2000).

Despite the fact that the instruction was held to be improper nearly five years before his trial, Hunter did not object to the instruction's "a crime" language instead of the proper "the crime" language. Instead, he objected to the giving of the instruction on the grounds that it allowed the jury to convict him by finding that he knew only of a potential that the pseudoephedrine might be used to make methamphetamine by an unnamed person.

Our Supreme Court further explained that this accomplice liability instruction is deficient because "it does not require that the defendant had knowledge he was facilitating the crime for which he was charged." State v. Thomas, 150 Wn.2d 821, 843, 83 P.3d 970 (2004) (citing State v. Roberts, 142 Wn.2d 471, 510-11, 14 P.3d 713 (2001); State v. Brown, 147 Wn.2d 330, 338, 58 P.3d 889 (2002)). The Thomas court also noted that the accomplice liability statute requires a mens rea of "knowledge" of " the crime," meaning, the charged offense. 150 Wn.2d at 844 (citing RCW 9A.08.020(3)(a); Roberts, 142 Wn.2d at 510).

On appeal, Hunter insists that the accomplice liability instruction was not warranted because there was no argument that Hunter acted as an accomplice. But Hunter misunderstands the issue.

An omission or misstatement of the law in a jury instruction that relieves the State of its burden to prove every element of the crime charged is erroneous. Brown, 147 Wn.2d at 339. However, not every omission or misstatement relieves the State of its burden so as to require reversal. State v. Berube, 150 Wn.2d 498, 505, 79 P.3d 1144 (2003) (quoting Brown, 147 Wn.2d at 339). An error in a jury instruction omitting an element of the charged offense or misstating the law is harmless if the record establishes beyond a reasonable doubt that the erroneous instruction did not contribute to the jury's verdict. Thomas, 150 Wn.2d at 844 (citing Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999); Brown, 147 Wn.2d at 339); see also Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

Here, Hunter was charged with only one crime: unlawful possession of pseudoephedrine and/or ephedrine with intent to manufacture methamphetamine (Count III). The State presented evidence that (1) Hunter drove his co-defendant, Cornish, to the various stores; (2) Hunter gave Cornish money with which to purchase pseudoephedrine; (3) Hunter and Cornish purchased pseudoephedrine separately but in concert with one another; (4) Hunter hid the pseudoephedrine under the hood of his car; (5) detectives found a Lowe's store receipt for a gallon of xylene purchased six days before Hunter's arrest in Hunter's car; and (6) Hunter and Cornish frequently consumed methamphetamine that Hunter provided.

Hunter testified that he knew his purchase of the five boxes of pseudoephedrine was illegal. He testified that he planned to sell or trade the pseudoephedrine pills to some men who came by his house regularly. Hunter also testified that he knew that, at some point, the pseudoephedrine pills he purchased would end up in a third party's hands for unlawful use. There was only one crime charged. The State did not present evidence of other crimes and did not argue that liability was based on a crime other than the one charged. State v. Moran, 119 Wn. App. 197, 215-16, 81 P.3d 122 (2003), review denied, 151 Wn.2d 1032 (2004).

Based on this overwhelming evidence, the jury found Hunter guilty of unlawful possession of pseudoephedrine and/or ephedrine with intent to manufacture methamphetamine. The erroneous accomplice liability instruction did not affect the jury's verdict and was harmless beyond a reasonable doubt. Sufficiency of the Evidence

Hunter asserts that the State's evidence that he possessed the pseudoephedrine with the intent to manufacture methamphetamine is insufficient to support the jury's verdict and argues that the evidence shows only that he intended to sell or exchange the pills. We disagree.

To find Hunter guilty of unlawful possession with intent to manufacture, the State was required to prove the following elements, beyond a reasonable doubt:

(1) That on or about the 21st day of April, 2005, Robert Hunter or an accomplice knowingly possessed ephedrine and/or pseudoephedrine or any of their salts or isomers or salts of isomers;

(2) That Robert Hunter or an accomplice possessed ephedrine and/or pseudoephedrine or any of their salts or isomers or salts of isomers with the intent to manufacture methamphetamine; and

(3) That the acts occurred in the State of Washington.

CP at 10. Manufacture means "the production, preparation, propagation, compounding, conversion, or processing, either directly or indirectly as well as the packaging or repackaging of any controlled substance." CP at 15.

A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385 (1980). 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); State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Circumstantial evidence is no less reliable than direct evidence. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997). We defer to the trier of fact 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, review denied, 141 Wn.2d 1023 (2000).

As set out above, the overwhelming evidence that rendered the faulty accomplice liability instruction harmless was also more than sufficient to prove that Hunter and Cornish bought the pseudoephedrine knowing that it would be used to manufacture methamphetamine by someone. Accordingly, we affirm.

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.

HOUGHTON, C.J., PENOYAR, J., concur.


Summaries of

State v. Hunter

The Court of Appeals of Washington, Division Two
Aug 7, 2007
140 Wn. App. 1001 (Wash. Ct. App. 2007)
Case details for

State v. Hunter

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. ROBERT LAWRENCE HUNTER, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Aug 7, 2007

Citations

140 Wn. App. 1001 (Wash. Ct. App. 2007)
140 Wash. App. 1001