Opinion
No. 59124-0-I.
May 19, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-12729-1, Jay V. White, J., entered November 6, 2006.
Affirmed by unpublished opinion per Becker, J., concurred in by Grosse and Ellington, JJ.
When police stopped David Potts for a traffic infraction, they saw what they believed to be an active methamphetamine lab in the back of his truck. Police arrested Potts. The State accused him of manufacturing methamphetamine and a jury found him guilty as charged. We affirm the conviction. The evidence was sufficient; unwitting possession was not an available defense; and the statute defining the offense is not concurrent with the statute regulating the management of hazardous waste.
The arrest occurred on March 9, 2005. On that evening, King County Sheriff's Deputy George Alvarez stopped Potts for driving with expired tabs and Page 2 a burnt out light. Deputy Alvarez testified at trial that when he approached the truck, he noticed a strong chemical smell emanating from the back of the truck, a smell that he associated with methamphetamine production:
I noticed items that can be used in the manufacture of methamphetamine and which kind of drew my attention to it. And then I caught the smell of strong acidic chemical odor and actually saw vapors rising from one of the generators.
Report of Proceedings at 95.
The items were stacked together in a couple of crates; liquids were positioned in a way so that they would not spill. Deputy Alvarez arrested Potts. He then called members of the drug enforcement team to come and collect the evidence.
At trial, Deputy Alvarez read into the record a statement that Potts gave on the night of his arrest:
[POTTS]: I found some garbage in some woods by a friend's house. As I was walking up to it, a couple of guys took off running away from it. I believe the garbage was possibly related to illegal activity. So I picked it up and put it in the back of my truck. I drove it to the fire station to drop it off, because I thought it might be hazardous. I was stopped by the police in route to the fire station. My two passengers did not know about the stuff in the back.
Report of Proceedings at 101.
SUFFICIENCY OF THE EVIDENCE
Potts challenges the sufficiency of the evidence to prove manufacture of methamphetamine.
Deputy Christine Ison, a member of the drug enforcement team called to Page 3 the scene, testified that she found tubing, glassware filled with liquids, several coolers filled with ice, jars with corrosion on the tops, muriatic acid, and two generators in the bed of the truck. It appeared that dry ice had been used to keep the generators cool. Several of the items collected were cold to the touch. Deputy Ison stated that the items found were typical of those used in a methamphetamine lab.
Report of Proceedings 108-10.
Report of Proceedings at 109.
Jason Trigg, a forensic scientist from the Washington State Patrol Crime Laboratory, testified that the items found in the truck could be used during various stages of producing methamphetamine. Trigg testified that the six samples of liquid submitted to the lab contained different combinations of ethanol, acetone, oxazoladine, pseudoephedrine, ammonia, lithium, xylene, diolene, and loratadine. He explained that some of the chemicals are active ingredients and others are byproducts of the manufacturing process. Trigg also found traces of the final methamphetamine product in some of the samples.
Report of Proceedings at 139, 141, 144, and 156.
Report of Proceedings at 141.
An insufficiency claim admits the truth of the State's evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In reviewing a sufficiency challenge, we draw all reasonable inferences from the evidence in favor of the State and interpret the evidence against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Evidence is sufficient to support a conviction if, after viewing 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, 220-22, 616 P.2d 628 (1980).
A person is guilty of manufacturing methamphetamine if he aids either directly or indirectly in the production, preparation, or processing of the substance. RCW 69.50.101(p). Courts have found evidence sufficient to support convictions for manufacturing methamphetamine where the defendants possessed lab equipment and partially processed methamphetamine even though the final product was not present. State v. Davis, 117 Wn. App. 702, 72 P.3d 1134 (2003); State v. Forrester, 135 Wn. App. 195, 143 P.3d 880 (2006); State v. Keena, 121 Wn. App. 143, 87 P.3d 1197 (2004).
To argue insufficiency of the evidence, Potts relies on cases where courts overturned convictions for unlawful possession of pseudoephedrine with intent to manufacture methamphetamine. In these cases, the only evidence was that the defendants had stolen pseudoephedrine cold tablets from a store. See State v. Brockob, 159 Wn.2d 311, 332, 150 P.3d 59 (2006); State v. Whalen, 131 Wn. App. 58, 60, 126 P.3d 55 (2005). "Bare possession of a controlled substance is not enough to support an intent to manufacture conviction; at least one additional factor, suggestive of intent, must be present." State v. Moles, 130 Wn. App. 461, 466, 123 P.3d 132 (2005). Here, the State charged Potts with actually manufacturing methamphetamine and the evidence showed much more than mere possession of an ingredient. Potts was transporting a wide variety of chemicals and materials used in the methamphetamine production process and two generators giving off a chemical smell. In addition, police found trace amounts of the final methamphetamine product in samples tested. The record contains sufficient evidence to support the jury's verdict.
UNWITTING POSSESSION
Potts claims that his trial counsel was ineffective for failing to request an unwitting possession instruction. We agree with the State, however, that unwitting possession is not a defense to a charge of manufacturing methamphetamine.
Unwitting possession is a defense that can be raised by defendants charged with drug possession. A defendant can prevail by showing that he did not know he was in possession of the controlled substance or that he did not know the nature of the substance he possessed. City of Kennewick v. Day, 142 Wn.2d 1, 11, 11 P.3d 304 (2000). The Supreme Court adopted the defense to ameliorate the harshness of the almost strict criminal liability our law imposes for unauthorized possession of a controlled substance. Day, 142 Wn.2d at 11.
Potts attempts to extend this doctrine to the charge of manufacturing methamphetamine. Based on his statement to the police that he was merely taking some dangerous-looking garbage to the fire station, he contends he had a right to argue that he did not know that the items in his truck were components used to manufacture methamphetamine.
The rationale for allowing the defense of unwitting possession does not apply to a crime where a mens rea is one of the elements. See State v. Sanders, 66 Wn. App. 380, 390, 832 P.2d 1326 (1992). In Sanders, the charge was possession of cocaine with the intent to deliver. The court held that unwitting possession was not a defense because intent is an element of the offense:
This [unwitting possession] instruction was appropriate on the lesser included offense of simple possession of a controlled substance because knowledge of the nature or presence of the substance is not an element of that crime. Therefore, "unwitting" or lawful possession is an affirmative defense to be proved by the defendant. State v. Sims, 119 Wn.2d 138, 142, 829 P.2d 1075 (1992). "Guilty knowledge" is not an element of the greater offense of possession with intent to deliver either, but for a different reason. Because "[i]t is impossible for a person to intend to manufacture or deliver a controlled substance without knowing what he or she is doing", the requisite knowledge is subsumed under the statutory requirement that the defendant intended to deliver a controlled substance. The "unwitting" possession instruction does not apply to possession with intent to deliver, because under the court's analysis in Sims, one must know it is a controlled substance in order to intend to deliver it.
Sanders, 66 Wn. App. at 389-90 (citations omitted).
Similarly, manufacturing methamphetamine is not a crime that can be proven simply by establishing that a person was in possession of materials often used to manufacture methamphetamine. To convict, the jury had to infer from all the evidence: "(1) That on or about March 9, 2005, the defendant manufactured a controlled substance; (2) That the defendant knew that the substance manufactured was Methamphetamine; and (3) That the acts occurred in the State of Washington." Under such an instruction, the State had to prove that Potts knew that he was manufacturing methamphetamine. Potts was free to argue, and did so in closing argument, that he did not understand the significance of the materials in his truck. If the jury believed Potts, they could rationally have concluded that he was not engaged in manufacturing methamphetamine because he did not know that the materials he had in the back of his truck amounted to a meth lab. He did not need to have an instruction on unwitting possession in order to make this argument.
Clerk's Papers at 84 (Jury Instruction 11).
Because unwitting possession was not an applicable defense, Potts's trial counsel had no basis for requesting it and the claim of ineffective assistance must fail.
HAZARDOUS MATERIALS
Potts contends the State erred by charging him under the general manufacturing methamphetamine statute rather than the special statute handling hazardous substances. When a special statute is concurrent with a general statute, the accused must be charged under the special statute. State v. Shriner, 101 Wn.2d 576, 581, 681 P.2d 237 (1984). "In order for statutes to be concurrent, each violation of the special statute must result in a violation of the general statute." State v. Heffner, 126 Wn. App. 803, 808, 110 P.3d 219 (2005). Presumably, prosecutors will always elect to charge the general offense that is easier to prove; thus the rule is necessary to ensure that a special statute is given effect.
In order to determine whether two statutes are concurrent, we "examine the elements of each statute to determine whether a person can violate the special statute without necessarily violating the general statute."Heffner, 126 Wn. App. at 808. Review is de novo. Heffner, 126 Wn. App. at 807.
Statutes are not concurrent unless the general statute is violated every time the special statute is violated. For example, in Shriner, the Supreme Court held the State had improperly charged the defendant with the general statute of first degree theft instead of a special statute, criminal possession of a rented motor vehicle. The statutes were concurrent because all of the elements needed to prove first degree theft "are also elements that must be proved for conviction of criminal possession of a rented motor vehicle." Shriner, 101 Wn.2d at 580.
The question here is whether the manufacturing methamphetamine statute — the general statute under which Potts was charged — is violated every time a person violates the hazardous waste statute. Manufacturing methamphetamine is statutorily defined as "the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis. . . ." RCW 69.50.101(p). A criminal charge of handling hazardous materials applies to:
Any person who knowingly transports, treats, stores, handles, disposes of, or exports a hazardous substance . . . if the person knows at the time that the conduct constituting the violation places another person in imminent danger of death or serious bodily injury; or . . . if the person knows that the conduct constituting the violation places any property of another person or any natural resources owned by the state of Washington or any of its local governments in imminent danger of harm.
A person could commit an offense involving handling hazardous substances without manufacturing methamphetamine. For example, industrial organic waste can be a dangerous waste under the Hazardous Waste Management Act even though it is not involved in the manufacture of methamphetamine. See Hickle v. Whitney Farms, Inc., 148 Wn.2d 911, 914, 64 P.3d 1244 (2003). Because the two statutes here are not concurrent, they are not considered specific or general of each other. Heffner, 126 Wn. App. at 808-09. Potts was properly charged.
LESSER INCLUDED OFFENSE
Potts claims that his trial counsel was ineffective for failing to request an instruction on what he perceives to be the lesser-included offense of improperly handling hazardous materials. However, he fails to establish the legal prong of the two-pronged Workman test used to determine whether a lesser offense is included within the charged offense: "First, each of the elements of the lesser offense must be a necessary element of the offense charged." State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). If the legal prong is not met, the court does not reach the factual prong. State v. Stevens, 158 Wn.2d 304, 313, 143 P.3d 817 (2006).
To be guilty of handling hazardous materials under RCW 70.105.085(1), a person must transport, treat, store, handle, dispose of, or export a hazardous substance. It is possible to manufacture methamphetamine, the offense charged against Potts, without in any way handling a hazardous substance. To convict, the State must prove the defendant aided either directly or indirectly in the production, preparation, or processing of the methamphetamine. RCW 69.50.101(p). For example, a person who added rock salt during the final steps of the methamphetamine process or who maintained the frigid temperature of the generators could be found to have directly aided in the production of the final product without ever handling hazardous substances.
This court has affirmed a conviction for manufacturing methamphetamine conviction where the defendant did not handle hazardous materials. State v. Zunker, 112 Wn. App. 130, 48 P.3d 344 (2002). In Zunker police found cold 1 pills, a small scale, notebooks with names, telephone numbers, and credit card numbers, a large empty tank with trace amounts of anhydrous ammonia, $220 in cash, and two grams of methamphetamine. "The meth, the scale, and the partially empty anhydrous ammonia tank raise a permissible inference that some manufacturing had already taken place. . . . Just about all that was needed to process a new batch of meth was more anhydrous ammonia, lithium, and a few other components." Zunker, 112 Wn. App. at 139.
Because proof of indirect involvement with the process can suffice to support a conviction for manufacturing methamphetamine, a lesser included offense instruction on handling a hazardous material is not a lesser-included offense of manufacturing methamphetamine. Defense counsel was not ineffective in failing to request an instruction.
PROSECUTORIAL MISCONDUCT
Potts claims the prosecutor committed misconduct by misstating the standard of proof in closing argument: "And, lastly, even if you believe the defendant's statement, he's essentially still guilty. He put items in the back of his truck that he knew were probably related to methamphetamine production." Potts contends that use of the word "probably" amounted to the prosecutor improperly arguing for a standard of proof below "beyond a reasonable doubt."
Report of Proceedings at 233.
Potts did not object to this comment at trial. Where there is no objection 2 below, appellate review is precluded unless the prosecutorial misconduct was so flagrant and ill intentioned that no curative instructions could have obviated the prejudice engendered by the misconduct. State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
Here, the jury instructions accurately stated that the State had "the burden of proving each element of the crime beyond a reasonable doubt." The prosecutor repeatedly emphasized during rebuttal argument that the State had proven its case beyond a reasonable doubt:
Clerk's Papers at 78 (Jury Instruction 5).
We don't have perfect evidence in every case. What we have though is evidence in this case beyond all reasonable doubt that the defendant is guilty.
. . . .
You don't have to know beyond all doubt. You never have or rarely have proof beyond all doubt. But you have proof beyond a reasonable doubt.
. . . .
And the evidence the State has proven from the entire methamphetamine lab to the holes in the defendant's story to the testing throughout the last several days, the testimony provided by Jason Trigg and the rest of the staff at the King County Sheriff's Office, proves beyond a reasonable doubt that the defendant was caught red handed.
Report of Proceedings at 254, 256, 261.
We cannot say that the prosecutor's isolated use of the word "probably" amounted to flagrant and incurable misconduct given the consistent message throughout the trial that the State had to prove the charges beyond a reasonable doubt. Potts has not preserved this claim for appellate review.
Affirmed.
WE CONCUR: