Opinion
No. 22693-0-III
Filed: April 5, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 03-1-00284-5. Judgment or order under review. Date filed: 01/06/2004. Judge signing: Hon. Tari S Eitzen.
Counsel for Appellant(s), David N. Gasch, Gasch Law Office, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Frank Alan Grigaliunas, Spokane County Prose Atty Ofc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Gary Lee Hutchinson makes two essential assignments of error to his conviction for manufacturing methamphetamine. First, the evidence is not sufficient to support a conviction for manufacturing at the time set out in the State's information. He is mistaken. The evidence readily shows the manufacture of methamphetamine `on or about' the time set out in the State's information. Next, he assigns error to the trial judge's refusal to instruct the jury on the elements of attempt to manufacture as a lesser included offense. But the facts here (even if we look at them in a light most favorable to Mr. Hutchinson) do not support an attempt. They support only manufacture. We therefore affirm his conviction.
FACTS
Detective Jeff Barrington went to Gary Hutchinson's home to arrest him. He found several containers filled with various solutions. Detective Barrington also detected a strong solvent odor and noticed purple and white stained coffee filters on the counter. He field tested the material and it tested positive for methamphetamine.
The State charged Mr. Hutchinson with one count of manufacture of a controlled substance — methamphetamine. Mr. Hutchinson requested a jury instruction on the lesser included offense of attempt to manufacture. The court denied his request. A jury found Mr. Hutchinson guilty. Mr. Hutchinson moved for a new trial. He also appealed the conviction. The trial court then denied his motion.
DISCUSSION Sufficiency of Evidence
Mr. Hutchinson first argues that there is simply no evidence that methamphetamine was manufactured on November 21, 2000, the date set out in the information. Several of the precursors to manufacturing were not found and the electricity had been turned off since October. In addition, the State's witnesses testified that the evidence found could have been months old.
Mr. Hutchinson challenges the sufficiency of the evidence. So we review the evidence in a light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The question is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.
`[I]t is unlawful for any person to manufacture, . . . or possess with intent to manufacture . . ., a controlled substance.' Former RCW 69.50.401(a) (1998). ``Manufacture' means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly.' RCW 69.50.101(p) (emphasis added). Even a limited role in the process of manufacturing a controlled substance is enough to implicate Mr. Hutchinson. State v. Keena, 121 Wn. App. 143, 148, 87 P.3d 1197 (2004); RCW 69.50.101(p). And this is so even if the final product is never finished or cannot be found. Keena, 121 Wn. App. at 148. Also, where time is not a material element, the `on or about' language is sufficient to accommodate proof of the necessary acts within the statute of limitation. State v. Hayes, 81 Wn. App. 425, 432, 914 P.2d 788 (1996); State v. Oberg, 187 Wash. 429, 432, 60 P.2d 66 (1936). With this brief survey of the applicable principles, we turn to the particular facts of Mr. Hutchinson's case.
Detective Barrington testified he found several containers inside the residence filled with various bi-layer solutions. He smelled a strong solvent odor. He found several chemicals and stained items all known to be used in the process of manufacturing methamphetamine. Residue inside a glass jar field tested positive for methamphetamine. Mr. Hutchinson told Detective Barrington that a man named Dave was cooking the methamphetamine, but that Mr. Hutchinson had helped Dave cook methamphetamine on a few occasions.
Matthew Jorgenson is a forensic chemist for the Washington State Patrol crime laboratory. He testified that the various bi-layer liquids and residues found were representative of multiple stages in the manufacturing process. He analyzed a glass vial removed from the residence. It contained methamphetamine, most likely in its finished stage.
Greta Wood is Mr. Hutchinson's neighbor. She saw Mr. Hutchinson and another man heat liquid in a glass plate using propane. Mr. Hutchinson also borrowed her car and left iodine and other `stuff' in it. Report of Proceedings at 98.
There is more than ample evidence, then, that Mr. Hutchinson manufactured methamphetamine within the time period set out by the statute of limitations. Keena, 121 Wn. App. at 147-48; Hayes, 81 Wn. App. at 432; RCW 9A.04.080(1)(h); former RCW 69.50.401(a)(1)(ii).
We are accepting without holding that the statute of limitations for the crime is three years. The statute of limitations is undisputed by the parties.
Jury Instructions — Attempt to Manufacture
Mr. Hutchinson next argues that he was entitled to an attempt instruction as a lesser included offense to manufacturing. He argues that the evidence shows the manufacturing process in various stages. But, and this is his point, it does not show finished methamphetamine. Several precursors to the process and a heat source were missing as well.
The test for our decision here comes in two steps. State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000); RCW 10.61.006. `First, each . . . element of the lesser offense must be a necessary element of the offense charged. Second, the evidence in the case must support an inference that the lesser crime was committed.' State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978) (citations omitted), quoted in Fernandez-Medina, 141 Wn.2d at 454. There is, then, a legal and a factual prong. State v. Berlin, 133 Wn.2d 541, 546, 947 P.2d 700 (1997). We review the legal prong de novo. State v. Tamalini, 134 Wn.2d 725, 729, 953 P.2d 450 (1998). Review of the factual prong requires us to review the evidence in a light most favorable to the party that requested the instruction. Fernandez-Medina, 141 Wn.2d at 455-56. The factual prong requires a showing that the defendant committed only the lesser included offense. Id. at 455, 462.
Mr. Hutchinson is guilty of an attempt to commit a crime if he `does any act which is a substantial step toward the commission of that crime.' RCW 9A.28.020(1).
The evidence here does not support an inference that Mr. Hutchinson acted in a manner that was merely a substantial step toward manufacturing. Keena, 121 Wn. App. at 149-50. Manufacturing includes limited and indirect involvement. Id. at 148; RCW 69.50.101(p). Mr. Hutchinson prepared or processed methamphetamine. Keena, 121 Wn. App. at 148-50. Mr. Hutchinson has not then met the required factual prong of the test for the lesser included offense instruction. Id. at 150.
ADDITIONAL GROUNDS FOR REVIEW
Mr. Hutchinson argues the trial court erred when it denied his motion for a new trial and vacation of the judgment. We review the trial court's decision to grant or deny a motion under CrR 7.5 (new trial) or CrR 7.8 (vacation of judgment) for an abuse of discretion. State v. Bourgeois, 133 Wn.2d 389, 406, 945 P.2d 1120 (1997); Kirby v. City of Tacoma, 124 Wn. App. 454, 474, 98 P.3d 827 (2004).
Mr. Hutchinson's CrR 7.5 motion was not timely filed; he failed to present the court with sufficient evidence to establish the relief requested; and he had already filed an appeal. CrR 7.5(a)(8), (b); CrR 7.8(c)(1), (2). He raises four issues in his statement of additional grounds that he contends were before the trial court.
New Witness. Before a new trial will be granted based upon new evidence, `the moving party [must] demonstrate that the evidence (1) will probably change the result of the trial.' State v. Williams, 96 Wn.2d 215, 222-23, 634 P.2d 868 (1981). Mr. Hutchinson did not present the trial court with any evidence or affidavits on this issue.
Even if we assume the affidavit Mr. Hutchinson attached to his statement for additional grounds was properly before the court and made part of the record, it does not show he was not involved in manufacturing methamphetamine during the entire period set out by the statute of limitations. Id. at 223.
Juror Misconduct. The court is only required to grant a new trial where there is objective proof of juror misconduct and where there is doubt as to whether the misconduct may have influenced the verdict. Chiappetta v. Bahr, 111 Wn. App. 536, 540-41, 46 P.3d 797 (2002). Mr. Hutchinson challenges the jury verdict based on the fact that the alternate juror was his former neighbor. This is not evidence of juror misconduct.
Ineffective Assistance of Counsel. For a claim of ineffective assistance of counsel, the appellant must show that `defense counsel's performance fell below the objective standard of reasonableness' and that he was prejudiced by the deficiency. State v. Shaver, 116 Wn. App. 375, 382, 65 P.3d 688 (2003); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Mr. Hutchinson argued his counsel failed to subpoena a witness and failed to contact him after the trial. But Mr. Hutchinson has not overcome the strong presumption that he received effective assistance of counsel. Shaver, 116 Wn. App. at 382; McFarland, 127 Wn.2d at 335-36. On appeal, Mr. Hutchinson also makes additional arguments in his statement of additional grounds that were not before the trial court. Similarly, even if these arguments had been before the trial court, they do not overcome the presumption that he received effective assistance of counsel. McFarland, 127 Wn.2d at 335-36.
Refusal to Appoint New Counsel. A criminal defendant does not have a constitutional right to choose his court appointed defense counsel. State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004).
It does not appear that Mr. Hutchinson raised this argument before the trial court as grounds for a new trial. Instead, this argument was related to the court's refusal to appoint new counsel for his posttrial motion. Mr. Hutchinson's reasons are not sufficient for the appointment of new counsel. State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997). Mr. Hutchinson had already been appointed appellate counsel at the time of the posttrial hearing and the issues were appropriate for appellate review. We affirm the conviction.
A majority of the panel has determined that 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.
KURTZ, J. and BROWN, J., Concur.