Opinion
No. 29120-7-II Consolidated with Nos. 29235-1-II, 29132-1-II
Filed: September 28, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-1-00972-9. Judgment or order under review. Date filed: 06/21/2002. Judge signing: Hon. Kathryn J Nelson.
Counsel for Appellant(s), Suzanne Lee Elliott, Attorney at Law, Ste 1300 Hoge Bldg, 705 2nd Ave, Seattle, WA 98104-1741.
Alton B II McFadden, Olsen Olsen, 216 Ericksen Ave NE, Bainbridge Island, WA 98110-2820.
Pattie Mhoon, Attorney at Law, 949 Market St Ste 488, Tacoma, WA 98402-3600.
Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
David Bertrand, Joanna Kelso, and John King appeal various drug convictions. One or more of them argues illegal search; failure to comply with Miranda; exclusion of evidence of diminished capacity; variance between charge and jury instructions; denial of severance and mistrial; insufficient evidence; and `same criminal conduct.' We affirm.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In 2001 and 2002, Pierce County's Department of Planning and Land Services employed Mark Luppino as a code enforcement officer. He had authority to investigate zoning complaints and remedy violations by issuing citations, levying fines, and recommending criminal charges. When he received a complaint, he generally contacted the property owner in person, provided information on the applicable regulations, and, if necessary, asked for compliance.
In February 2002, Luppino received `a whole bunch of complaints' about three consolidated parcels of property located at 10802, 10808, and 10812 Park Avenue South (hereafter `the property'). He learned that the property was occupied by Fred Leffler, a person whom he had contacted earlier about zoning problems at a different location. He requested that sheriff's deputies escort him to the property, even though he had not heard of drug activity there, because he was `concerned that if I run into Mr. Leffler he would be rather upset with me that I am investigating his activities again.'
3 Report of Proceedings (RP) at 91.
Clerk's Papers (CP) (Kelso) at 158.
On February 26, 2002, Luppino, another zoning officer, a health inspector, and six uniformed sheriff's deputies (Papen, Fries, Hunsinger, Butler, Halsey, and Estes) went to the property. They did not see a fence or `no trespassing signs,' although they did see signs saying, `Fred Leffler, 24-7 Auto' and a sign saying `Entrance.' Inside the property, they observed many junk vehicles, several trailers and tents, and two mobile homes located about 15 feet apart.
CP (Kelso) at 163; 4 RP at 276, 305; 6 RP at 486; 8 RP at 681.
As Papen and Luppino walked toward the southern part of the property, they encountered David Bertrand Papen noted that Bertrand's hands and forearms looked as if they had been severely burned. After introducing himself, Papen asked who Bertrand was, where he lived, and how he had burned his hands. Bertrand gave his name, said he lived in a trailer on the property, and explained that he had burned himself while cooking. When Papen asked if anyone else was in the trailer, Bertrand said that King and Kelso were.
As Papen approached the trailer's door, King came out through that door. He had in his right hand a `three to five inch [razor] blade . . . coated with a white powder' that he attempted to discard as soon as he saw Papen. Looking into the trailer through its still-open door, Papen saw a red funnel, a hot plate, a kitchen plate with white powder on it, a gram scale, and coffee filters. He recognized `these items as being related to meth labs,' and he smelled a `chemical or solvent odor' that he associated with the manufacture of methamphetamine.
8 RP at 687.
CP (Kelso) at 165 (Findings of Fact No. 50).
8 RP at 691.
King waited with another deputy as Papen yelled twice for Kelso to come out of the trailer. Receiving no response, he and Deputy Fries entered the trailer and found Kelso asleep in a bedroom. She was `surrounded by numerous meth lab related items,' including `a coffee grinder . . . lined . . . with a white powder substance [and] coffee filters'; `a bundle of clear plastic bags'; a mirror with a `small pile of white powder substance' on it; `a propane tank and a five-gallon blue chemical container'; a jug of muriatic acid; and `several blister packets of Contact Flu Cold medication' containing pseudoephedrine. Also present were `[a] five-gallon propane tank with a modified valve [and] blue corrosion on the valve'; several jars containing coffee filters and liquids and/or `white sludge' that later tested positive for methamphetamine; and a bag of `tan and white powder' containing 17.4 grams of `essentially pure pseudoephedrine.' Also found were jugs of acetone, starter fluid, Coleman fuel, paint thinner, a gram scale with white residue on it, and identification and documents in Kelso's name. Papen and Fries removed Kelso from the trailer, and a narcotics deputy obtained a search warrant.
CP (Kelso) at 165 (Findings of Fact No. 58).
14 RP at 1264-65.
15 RP at 1501.
15 RP at 1504.
18 RP at 1966.
On February 27, 2002, the State filed an information that as later amended charged each defendant with manufacturing methamphetamine (Count I), possession of anhydrous ammonia with intent to manufacture methamphetamine (Count II), and simple possession of methamphetamine (Count III). In Count I, the State alleged that each defendant had `knowingly manufacture[d] a controlled substance.'
CP (Kelso) at 13.
Before trial, all three defendants filed motions to suppress the evidence seized from the trailer. After a hearing, the trial court found that Luppino had asked for the deputies to accompany him because his previous contacts with Leffler had caused him concern for his own safety. Neither he nor any other governmental agent knew of drug activity on the property before going there. The deputies entered areas `that were impliedly open to the public,' and their entry was neither a `search' nor `a pretext for searching for drug-related activity or a meth lab.' The deputies had not seized Bertrand during their initial conversation with him, Papen had lawfully looked through the trailer's door, and Papen and Fries had lawfully entered the trailer to aid Kelso. The trial court denied the motions to suppress.
CP (Kelso) at 167 (Conclusions of Law No. 15).
CP (Kelso) at 167 (Conclusions of Law Nos. 17 and 14).
Bertrand also filed a motion to suppress the statements he had made to the deputies. After a hearing, the trial court denied that motion.
On April 29, 2002, Kelso filed a notice of intent to claim diminished capacity. On May 29, the trial court granted the State's motion to exclude evidence relevant to that subject.
Jury selection began on May 28, 2002, and the trial continued intermittently through June 17, 2002. On June 10, 2002, as trial was ongoing, the trial court revised the order by which it had precluded Kelso from proving or arguing diminished capacity. The court now ruled that Kelso could prove and argue diminished capacity on Count II, but not on Count I or Count III. Dr. David Moore subsequently testified that Kelso's mental problems diminished her capacity to form the intent to manufacture methamphetamine, one of the elements of Count II.
After the trial court revised its order on diminished capacity, Bertrand moved for severance and a mistrial. He claimed that the new ruling deprived him of a reasonable opportunity to prepare for trial. The trial court denied his motion.
Kelso testified in her own defense. Describing Bertrand as her `last and final boyfriend,' she characterized the bedroom in which she had been found as `our room because sometimes I keep my things there . . . I basically didn't have a place of living.' Later, she also characterized the bedroom as `my room.'
17 RP at 1796, 1807. When asked, Kelso acknowledged that the `our' referred to her and Bertrand 17 RP at 1796.
17 RP at 1810.
Although Count I had alleged that each defendant `knowingly manufacture[d] a controlled substance,' the trial court instructed that the jury could convict each defendant by finding beyond a reasonable doubt that he or she had `manufactured a controlled substance' and `knew that the substance manufactured was a controlled substance.' The trial court also instructed that the jury could consider evidence of intoxication or mental illness when deciding Count II, but not, by implication, when deciding Count I or Count III.
CP (Kelso) at 13.
CP (Kelso) at 70 (Instruction No. 10). The instruction was patterned after WPIC 50.11.
On June 17, 2002, the jury convicted Bertrand and Kelso as charged. The jury convicted King of Count III, possessing methamphetamine, but it acquitted him on Counts I and II.
On June 19, 2002, the trial court held a sentencing hearing at which Kelso and Bertrand argued that their convictions arose from the same criminal conduct. The trial court disagreed, stating that it saw `the intents as objectively different.' Kelso and Bertrand received DOSA sentences that included periods of total confinement equal to one half the midpoint of the standard range. King received a standard range sentence.
22 RP at 2273.
All three defendants now appeal. Each contends that governmental agents illegally searched the property and the trailer. Bertrand contends that the same agents illegally obtained statements from him. Kelso contends that the trial court erred by excluding evidence of diminished capacity on Counts I and III, and by instructing on Count I in a way that varied from the language of the information. Bertrand contends that his motions for severance and mistrial were erroneously denied. Kelso contends that the evidence is insufficient to support her convictions and that her convictions involved the `same criminal conduct' for purposes of sentencing.
I.
The defendants claim that the officers searched in violation of the Fourth Amendment and Washington Constitution Article I, section 7. We analyze (A) whether the officers entered the property illegally; (B) whether the officers seized Bertrand illegally; (C) whether Papen acted illegally when he looked through the trailer's door while standing outside the trailer; and (D) whether Papen and Fries entered the trailer illegally. If the answer to each question is no, the narcotics deputy obtained the search warrant legally.
A.
All three defendants contend that the officers entered the property illegally. They claim that the officers' entry was a warrantless search that was unjustified or, if superficially justified, pretextual.
A search does not occur merely because an officer observes `that which is there to be seen.' Rather, a search occurs only when an officer intrudes on a reasonable expectation of privacy. The defendant bears the burden of showing that a search occurred.
State v. Seagull, 95 Wn.2d 898, 901, 632 P.2d 44 (1981).
Katz v. United States, 389 U.S. 347, 352-53, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. Manly, 85 Wn.2d 120, 124, 530 P.2d 306, cert. denied, 423 U.S. 855 (1975).
State v. Jackson, 82 Wn. App. 594, 601-02, 918 P.2d 945 (1996), review denied, 131 Wn.2d 1006 (1997).
When a search occurs, it must be justified by objective manifestations. But even when such justification otherwise exists, it may not be used as a pretext (i.e., to mask a true, subjective reason that is improper). The State has the burden of showing justification and, we will assume for purposes of this case only, the absence of pretext.
State v. Ladson, 138 Wn.2d 343, 353, 979 P.2d 833 (1999).
Ladson, 138 Wn.2d at 350; State v. Johnson, 128 Wn.2d 431, 447, 909 P.2d 293 (1996).
But see State v. Rakosky, 79 Wn. App. 229, 237, 901 P.2d 364 (1995) (pre-Ladson case; defendant bears burden of proving search was a pretext).
In this case, according to the trial court, Luppino requested that the deputies accompany him because his previous contacts with Leffler led him to be concerned for his personal safety. Neither he nor any other governmental agent knew of drug activity on the property before going there. He and the others entered areas `that were impliedly open to the public,' and their entry, still according to the trial court, was neither a `search' nor `a pretext for searching for drug-related activity or a meth lab.'
CP (Kelso) at 167 (Conclusions of Law No. 15).
CP (Kelso) at 167 (Conclusions of Law Nos. 17 and 14).
We review the trial court's findings of fact for substantial evidence, and the State's witnesses provided substantial evidence. Although we might not have viewed the evidence the same way if we were the trier of fact, we are constrained to hold that each finding is supported by substantial evidence; that each conclusion is supported by the findings; and that the initial entry was lawful.
State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). But see Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996), a federal supervisory case.
B.
Bertrand contends that Papen illegally stopped him to ask who he was, where he lived, and how he had burned his hands. As a result, Bertrand concludes, the trial court was required to suppress the evidence found in the trailer.
For convenience, we only assess whether the initial contact was lawful. Holding that it was, we need not reach how, if it all, its alleged unlawfulness might have affected the search of the trailer.
`Not every encounter between an officer and an individual amounts to a seizure.' An officer may `engage persons in conversation and ask for identification even in the absence of an articulable suspicion of wrongdoing,' so long as he or she does not effect a detention or seizure. The trial court found that Papen and Bertrand `met' and `conversed,' but that `Bertrand was not seized' during the conversation. We review the trial court's findings for substantial evidence, and the State's witnesses provided such evidence. Hence, the trial court did not err.
State v. Thomas, 91 Wn. App. 195, 200, 955 P.2d 420, review denied, 136 Wn.2d 1030 (1998).
State v. Young, 135 Wn.2d 498, 511, 957 P.2d 681 (1998); State v. Crespo Aranguren, 42 Wn. App. 452, 455, 711 P.2d 1096 (1985).
CP (Bertrand) at 92-93 (Findings of Fact Nos. 36, 39).
CP (Bertrand) at 97 (Conclusions of Law No. 24).
See Hill, 123 Wn.2d at 647.
C.
All three defendants argue that Papen illegally looked into the trailer through its open door. A search does not occur merely because an officer `is able to detect something by utilization of one or more of his senses while lawfully present at the vantage point where those senses are used.' Under the reasoning in Section I-A, Papen was lawfully present at the vantage point from which he looked into the trailer. Having held that Papen lawfully entered the property, we also hold that he lawfully looked through the trailer's open door.
Seagull, 95 Wn.2d at 901 (quoting 1 Wayne R. LaFave, Search and Seizure sec. 2.2 at 240 (1978)); State v. Myers, 117 Wn.2d 332, 345, 815 P.2d 761 (1991); State v. Vonhof, 51 Wn. App. 33, 38-39, 751 P.2d 1221, review denied, 111 Wn.2d 1010 (1988), and cert. denied, 488 U.S. 1008 (1989).
D.
All three defendants argue that Papen and Fries illegally entered the trailer to look for Kelso. The State may justify a warrantless search by invoking the `emergency exception.' The exception applies if (1) the officer subjectively believed someone needed assistance for health or safety reasons; (2) a reasonable person in the same situation would have believed there was a need to assist; and (3) the need for assistance was reasonably associated with the place searched.
State v. Kinzy, 141 Wn.2d 373, 386-87, 5 P.3d 668 (2000), cert. denied, 531 U.S. 1104 (2001); State v. Downey, 53 Wn. App. 543, 544-45, 768 P.2d 502 (1989).
Kinzy, 141 Wn.2d at 386-87.
In this case, the trial court found that Papen saw drug-related items while still outside the trailer; that both he and Fries smelled a chemical odor while still outside the trailer; that both deputies associated the smell with meth labs; that a residential meth lab `pose[s] a danger to persons inside'; that the deputies reasonably believed Kelso was inside; that the deputies twice called for Kelso without receiving a response; and that the deputies then entered to insure her safety. Once inside, they were entitled to observe items in plain view. Although the defendants claim to the contrary, substantial evidence supports the court's findings, and the court's findings support its conclusions. Accordingly, we conclude that the trial court did not err by denying motions to suppress.
CP (Kelso) at 165 (Findings of Fact No. 54).
State v. O'Neill, 148 Wn.2d 564, 583, 62 P.3d 489 (2003); State v. Hoggatt, 108 Wn. App. 257, 270, 30 P.3d 488 (2001); State v. Johnson, 104 Wn. App. 489, 501, 17 P.3d 3 (2001).
II.
Bertrand argues that the deputies unlawfully obtained statements from him. The statements he refers to are (1) that his burned hands were the result of a cooking-grease accident and (2) that he lived on the property as Leffler's roommate. He made both statements during his initial contact with Papen.
Bertrand's first argument is that his statements were obtained unlawfully because, when he made them, he was being detained without reasonable suspicion or probable cause. We disagree for the reasons discussed in Section I-B.
Bertrand's second argument is that his statements were obtained unlawfully because, before he made them, he was not given his Miranda warnings. Miranda warnings, however, are not required until temporary detention ripens into custodial interrogation. That had not yet occurred when Bertrand made the statements contested here, and thus the trial court did not err.
State v. Templeton, 148 Wn.2d 193, 208, 59 P.3d 632 (2002) (Miranda rights `attach when `custodial interrogation' begins'); State v. France, 121 Wn. App. 394, 399, 88 P.3d 1003 (2004) (`Miranda warnings attach only when a custodial interrogation begins'); State v. King, 89 Wn. App. 612, 624-25, 949 P.2d 856 (1998) (`Because a Terry stop is not a custodial interrogation, an officer making a Terry stop need not give the Miranda warnings before asking the detainee to identify himself.'); State v. D.R., 84 Wn. App. 832, 836, 930 P.2d 350 (`Miranda safeguards apply `as soon as a suspect's freedom of action is curtailed to a degree associated with formal arrest.'') (quoting Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983)), review denied, 132 Wn.2d 1015 (1997).
III.
Kelso argues that the trial court erroneously excluded evidence of diminished capacity on Counts I and III. The State does not attempt to defend the exclusion. It responds, however, that the trial court's decision `to limit the diminished capacity defense to [Count II] did not prejudice defendant Kelso.' We address Count I before Count III.
Br. of Resp't at 51.
A.
On Count I, the trial court instructed as follows:
To convict the defendant of the crime of unlawful manufacture of a controlled substance, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 26th day of February, 2002, the defendant manufactured a controlled substance; and
(2) That the defendant knew that the substance manufactured was a controlled substance;
(3) That the acts occurred in the State of Washington.
CP (Kelso) at 70 (Instruction No. 10); see also WPIC 50.11.
As can be seen, the second element of this instruction imposed on the State the burden of proving that Kelso `knew that the substance manufactured was a controlled substance.' When the State has the burden of proving knowledge, the defendant may present evidence of diminished capacity that logically tends to rebut such knowledge. Here then, Kelso was entitled to rebut the State's proof with diminished capacity evidence tending to show that she lacked capacity to know the substance manufactured was methamphetamine, and the trial court erred when it excluded such evidence.
State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998); State v. Lee, 128 Wn.2d 157, 159, 904 P.2d 1143 (1995); State v. Teal, 117 Wn. App. 831, 837, 73 P.3d 402 (2003), aff'd, No. 74569-2 (Wash. Sept. 2, 2004); State v. Guzman, 98 Wn. App. 638, 643, 990 P.2d 464 (1999), review denied, 140 Wn.2d 1023 (2000); State v. Potts, 93 Wn. App. 82, 86, 969 P.2d 494 (1998).
State v. Poulsen, 45 Wn. App. 706, 708-09, 726 P.2d 1036 (1986); see also State v. Simmons, 30 Wn. App. 432, 435, 635 P.2d 745 (1981), review denied, 97 Wn.2d 1007 (1982); State v. Edmon, 28 Wn. App. 98, 104, 621 P.2d 1310, review denied, 95 Wn.2d 1019 (1981).
Although the trial court erred, the State correctly argues that the error was harmless. Kelso called Dr. David Moore, a psychologist, to testify on diminished capacity with respect to Count II. Moore based his testimony on the American Law Institute's `hierarchy' of mental states: intent or purpose, knowledge, recklessness, and criminal negligence. The jury rejected his testimony that Kelso could not have possessed anhydrous ammonia with intent to manufacture methamphetamine because she lacked the capacity to form such intent. Necessarily then, the jury would also have rejected his proposed but excluded testimony that Kelso could not have manufactured methamphetamine because she lacked the capacity to know that the substance being manufactured was methamphetamine. Although erroneous, the trial court's order of exclusion did not affect the outcome of the case.
16 RP at 1730,1733.
See also RCW 9A.08.010.
B.
We turn to Count III, which charged simple possession of a controlled substance. To argue diminished capacity, a defendant must produce evidence that a mental disorder impaired his or her ability to form a mental state that the State was required to prove in order to convict. Simple possession of a controlled substance, unlike possession with intent to manufacture or deliver, is a strict liability offense (i.e., an offense the State may prove without showing a mental state). Accordingly, the trial court did not err by excluding evidence of diminished capacity on Count
State v. Atsbeha, 142 Wn.2d 904, 914, 16 P.3d 626 (2001).
In re Pers. Restraint Pet. of Davis, 142 Wn.2d 165, 176, 12 P.3d 603 (2000).
III. IV.
Kelso argues that the trial court erred because its `to convict' instruction on Count I did not require the jury to find that she had `knowingly manufactured' a controlled substance. She reasons that the information alleged she had `knowingly manufacture[d] a controlled substance,' and that even though the instruction was required to mirror the information, it only required a finding that she `knew that the substance manufactured was a controlled substance.' The trial court patterned its instruction after WPIC 50.11.
Kelso made the same argument before the trial court, contrary to the State's assertions here. Compare 18 RP at 2042-45 with Br. of Resp't at 53.
CP (Kelso) at 13.
CP (Kelso) at 70 (Instruction No. 10).
In State v. Boyer, the defendant was convicted of unlawful delivery of a controlled substance. The trial court instructed that `guilty knowledge' was an element of the crime, but the Court of Appeals said the State did not have to prove any mental state. The resulting issue, according to the Supreme Court, was `whether guilty knowledge, an understanding of the identity of the product being delivered, is a part of the crime.' Using `guilty knowledge' in that sense, the Supreme Court held that `guilty knowledge is intrinsic to the definition of the crime' and `must be proven beyond a reasonable doubt.'
91 Wn.2d 342, 588 P.2d 1151 (1979).
Boyer, 91 Wn.2d at 344 (emphasis added).
WPIC 50.11 was derived by extending Boyer from unlawful delivery to unlawful manufacturing. But instead of requiring that the accused be subjectively or consciously aware of the manufacturing process, Boyer requires only that the accused have `an understanding of the identity of the product being [manufactured].' Thus, the instruction given here correctly stated the law.
11 Washington Pattern Jury Instructions: Criminal 50.11, comment at 651 (2d ed. 1994).
Kelso argues that even if the instruction correctly stated the law, it was required to mirror the information; that it did not do that; and thus that the trial court erred. When reasonably read, however, the information used `knowingly' in the same sense Boyer had, and the instruction mirrored that use. We conclude that the trial court did not err.
V.
Bertrand contends that the trial court erred by denying his June 10th motions for severance and mistrial. Severance was required, he says, because his and Kelso's defenses were mutually antagonistic.
Although the law does not favor separate trials, a trial court should grant severance when `appropriate to promote a fair determination of the guilt or innocence of a defendant.' This standard vests wide discretion in the trial court, and we review only for abuse of that discretion. To show such abuse as a matter of law, so that severance is required rather than merely permitted, a defendant must show `specific prejudice' such as `antagonistic defenses' that conflict `to the point of being irreconcilable and mutually exclusive.'
State v. Dent, 123 Wn.2d 467, 484, 869 P.2d 392 (1994).
CrR 4.4(c)(2)(i).
State v. Bythrow, 114 Wn.2d 713, 717, 790 P.2d 154 (1990).
State v. Kinsey, 20 Wn. App. 299, 304, 579 P.2d 1347, review denied, 91 Wn.2d 1002 (1978).
State v. Medina, 112 Wn. App. 40, 52-53, 48 P.3d 1005, (quoting State v. Canedo-Astorga, 79 Wn. App. 518, 528, 903 P.2d 500 (1995), review denied, 128 Wn.2d 1025 (1996)), review denied, 147 Wn.2d 1025 (2002); State v. Grisby, 97 Wn.2d 493, 508, 647 P.2d 6 (1982), cert. denied, 459 U.S. 1211 (1983).
Kelso testified that she and Bertrand, her boyfriend, often stayed together in a bedroom at Leffler's; that on the night before her arrest, she arrived home late and under the influence of both drugs and alcohol; that she went straight to bed without noticing, through diminished capacity or inattention to detail, a number of meth-related items in her bedroom; and that she slept until wakened by police. Bertrand or others testified that he had been staying in a bedroom at Leffler's; that Kelso, his girlfriend, spent the night `[e]very once in awhile'; and, at least implicitly, that he knew nothing about any methamphetamine. These defenses were not necessarily antagonistic, and the trial court did not abuse its discretion.
11 RP 1049.
VI.
Kelso argues that the evidence is insufficient to support her convictions on Count I and Count II. She does not argue that the evidence is insufficient to support her conviction on Count III. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find each element of the crime beyond a reasonable doubt.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
A.
With respect to Count I, Kelso argues that `[t]he State presented no direct evidence that [she] was guilty of . . . knowingly manufacturing methamphetamine.' Evidence is sufficient to support Count I if, when viewed in the light most favorable to the State, it permits a rational trier of fact to find that Kelso was preparing or processing (and thus `manufacturing') a controlled substance. Evidence is sufficient to show preparation or processing of a controlled substance `if the defendant had a combination of items that generally ha[ve] no purpose other than the manufacture of methamphetamine.'
Br. of Appellant (Kelso) at 24.
RCW 69.50.101(p); RCW 69.50.401(a); State v. Todd, 101 Wn. App. 945, 952-53, 6 P.3d 86 (2000), overruled on other grounds, State v. Rangel-Reyes, 119 Wn. App. 494 (2003).
State v. Keena, 121 Wn. App. 143, 148, 87 P.3d 1197 (2004); State v. Zunker, 112 Wn. App. 130, 138-39, 48 P.3d 344 (2002), review denied, 148 Wn.2d 1012 (2003); State v. McPherson, 111 Wn. App. 747, 758-59, 46 P.3d 284 (2002).
In this case, the evidence shows that Kelso and Bertrand often spent the night in the trailer where she was sleeping on February 26. She was sleeping in the midst of numerous meth-related items. Her identification and belongings were in the room. Elsewhere in the trailer were completed meth and many other meth-related items. Taken in the light most favorable to the State, this evidence is sufficient to support a finding that Kelso was preparing and processing (and thus manufacturing) methamphetamine.
See Keena, 121 Wn. App. at 148; Zunker, 112 Wn. App. at 138-39; McPherson, 111 Wn. App. at 758; Todd, 101 Wn. App. at 952.
B.
With respect to Count II, Kelso urges that the evidence does not show that the ammonia in the trailer was anhydrous ammonia rather than aqueous ammonia, household ammonia, or some other form of ammonia. The evidence is sufficient to support Count II if, when taken in the light most favorable to the State, it permits a rational trier of fact to find beyond a reasonable doubt that the defendant possessed anhydrous ammonia with intent to manufacture methamphetamine.
The evidence here showed that a five-gallon tank found in the kitchen of the trailer contained ammonia. The evidence further showed that the tank had a `modified valve' with `blue corrosion' on it, and that `blue corrosion' is caused when anhydrous ammonia `eats on the valve's brass fittings.' Taken in the light most favorable to the State, this evidence is sufficient to support a finding that the ammonia was anhydrous rather than aqueous or some other form.
14 RP at 1303; 15 RP at 1501-02. Deputies also found a propane tank in the freezer in the trailer's kitchen. Testimony showed that it, too, had a modified valve and blue corrosion around the valve and that it also tested positive for ammonia using the dragger tube method. See 14 RP at 1315-17; 15 RP at 1517, 1536.
VII.
Lastly, Kelso argues that the trial court erred by refusing at sentencing to score her three crimes as the `same criminal conduct.' The State responds with respect to Counts I and II that the trial court had discretion to find `distinct present and future intents.'
Br. of Resp't at 68.
Two crimes are the `same criminal conduct' if they involve the same criminal intent or objective, are committed at the same time and place, and are committed against the same victim. When the evidence supports either of two competing inferences, a trial court has discretion to choose between them, and we review its exercise of discretion only for abuse.
RCW 9.94A.589(1)(a). The statute does not include the word `objective,' but we add it based on the authority of State v. Maxfield, 125 Wn.2d 378, 403, 886 P.2d. 123 (1994) reversed on other grounds, 133 Wn.2d 332 (1997) (equating `objective intent' with `objective' of the crime).
State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000); State v. Elliott, 114 Wn.2d at 17; State v. Rodriguez, 61 Wn. App. at 818.
We turn to whether Counts I and II involved the same criminal conduct. In State v. Burns and State v. Maxfield, the Supreme Court characterized, as different criminal intents or objectives, `an intent to deliver at the present versus an intent to deliver in the future.' Possession of ammonia is criminal when accompanied by a future intent to manufacture methamphetamine. Manufacture of methamphetamine is criminal regardless of future intent; it requires only that manufacturing take place at present or in the past. The trial court had discretion to score Counts I and II as different criminal conduct.
114 Wn.2d 314, 318, 788 P.2d 531 (1990).
Maxfield, 125 Wn.2d at 403; Burns, 114 Wn.2d at 318.
We turn to whether the Counts I and III involved the same criminal conduct. Conceivably they would if the record showed that Kelso had manufactured the methamphetamine that she was convicted of possessing. But the record does not show that, in part because she herself testified that she often obtained meth from others. The trial court had discretion to score Count I, manufacturing, and Count III, possession, as different criminal conduct.
E.g., 17 RP 1798-99, 1809, 1822.
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.
BRIDGEWATER, J., and VAN DEREN, J., Concur.