Opinion
No. 59412-5-I.
April 28, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-1-01041-4, James H. Allendoerfer, J., entered December 11, 2006.
Affirmed by unpublished per curiam opinion.
Shane Tremberth appeals his conviction on one count of manufacturing methamphetamine. Substantial evidence supported the verdict in this case. The trial court did not abuse its discretion either when it declined to give an instruction relating to accomplice liability or when it admitted evidence of a tattoo on Tremberth's body. Tremberth fails to show any failure of the State to preserve exculpatory or material evidence. On the cross-appeal, we conclude that the trial court properly concluded that Tremberth had automatic standing to challenge the search of the trailer property. We affirm.
On December 3, 2004, law enforcement officers in Snohomish County traveled by boat to an island near the town of Gold Bar to investigate a report that someone was manufacturing methamphetamine there. The owner had not given anyone permission to stay on the island. When the officers reached the island, they heard noises and followed the sound, which led them to a makeshift shelter. Nearby, they saw someone, later identified as Tremberth, hunched over by a tree. When officers alerted him to their presence, he ran and hid. Officers found evidence of a methamphetamine manufacturing operation all around the shelter and tree, including a propane tank that tested positive for ammonia, a baggie containing pseudoephedrine, coffee filters, plastic tubing, lye, a gas mask, and lithium batteries.
Less than one month later, a sheriff's deputy, Thomas Koziol, saw Tremberth fleeing another methamphetamine lab in Snohomish County. Deputy Koziol had a warrant to arrest Travis White. A citizen informed Deputy Koziol that White might be staying in a trailer located on property at 42430 May Road, but more than one trailer was located on the property. Deputy Koziol went to the property at approximately 10 at night and spoke with a renter, who said that White was not there. But she also told the detective that he could check the other trailers.
Deputy Koziol went to check another trailer near the back of the property. No one answered when he knocked, so he walked around to see if there were any lights or a television on. The trailer appeared empty, but as Deputy Koziol was walking around, he perceived smoke that smelled metallic, which he thought might be from a methamphetamine lab. He then noticed another trailer and saw propane cylinders, bottles, and hoses, and what appeared to be a chemical reaction occurring in one of the bottles. Just then, Deputy Koziol spotted Travis White and ordered him to put his hands up. While Deputy Koziol was arresting White, he saw Tremberth run from the trailer. Both Tremberth and White were wearing blue latex gloves.
The State charged Tremberth with two counts of manufacturing a controlled substance. Before trial, Tremberth moved to suppress the evidence found at the second manufacturing site. He claimed that Deputy Koziol unlawfully searched the property without a warrant. The court agreed with Tremberth that he had automatic standing to challenge the search and that the search was unlawful. Accordingly, the court granted Tremberth's motion to suppress the evidence found at the May Road property and dismissed the second charge against him.
Tremberth appeals, and the State cross-appeals the dismissal of the second count.
PROPOSED JURY INSTRUCTION
Tremberth first argues that the trial court abused its discretion when it refused to instruct the jury that his mere presence at the crime scene was not sufficient to find him guilty. We disagree.
Each party is entitled to instructions that allow it the opportunity to argue its theory of the case if there is evidence to support that theory, but it is error to give an instruction that is not supported by the evidence. State v. Benn, 120 Wn.2d 631, 845 P.2d 289 (1993). In particular, giving an accomplice instruction may be prejudicial error if there is no proof that anyone else committed the offense. State v. Taplin, 9 Wn. App. 545, 547, 513 P.2d 549 (1973); State v. Nikolich, 137 Wash. 62, 67, 241 P. 664 (1925).
Here, the proposed instruction stated as follows:
More than mere presence at the scene of a crime, or mere knowledge of the existence of criminal activity, must be shown to convict the defendant of the crime charged.
Clerk's Papers at 39. The proposed instruction was taken from WPIC 10.51, the pattern instruction for accomplice liability. The complete instruction reads:
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.
The word "aid" means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.
WPIC 10.51 (emphasis added).
There was no evidence in this case that anyone other than Tremberth was manufacturing methamphetamine on the island. He was the only person that the law enforcement officers encountered when they went to investigate the report of a methamphetamine lab. In short, there was no evidence to support the giving of Tremberth's proposed instruction.
Furthermore, the absence of the instruction did not prevent Tremberth from arguing his theory of the case. Defense counsel argued in closing that the State failed to prove that Tremberth manufactured methamphetamine; he was merely present near the scene of the manufacturing operation:
So I asked you at the beginning when I made my opening statement, listen for the evidence as to what Shane Tremberth did to manufacture methamphetamine on December 3, 2004, and there isn't anything. He's present on the island. That is the most damning thing against him. That alone can't convict him.
Report of Proceedings (Nov. 1, 2006) at 487.
Tremberth relies upon two cases in support of his argument. See State v. J.R. Distributors, Inc., 82 Wn.2d 584, 512 P.2d 1049 (1973); and State v. Broadnax, 98 Wn.2d 289, 654 P.2d 96 (1982). Neither supports Tremberth's argument.
In J.R., the issue was whether there was sufficient evidence that a defendant aided and abetted his codefendant in the sale of the obscene magazines. In Broadnax, the issue was whether evidence found on a defendant who was merely present in a house where police officers were executing a search warrant should have been suppressed. Neither case establishes that a jury should be instructed that "mere presence" is insufficient to convict the defendant when there is no evidence that anyone else committed the offense.
There was no abuse of discretion by the trial court in refusing to give this instruction.
SUFFICIENCY OF THE EVIDENCE
Tremberth next argues that there was insufficient evidence to find him guilty of manufacturing methamphetamine. We again disagree.
Evidence is sufficient if, when viewed in the light most favorable to the State, any reasonable trier of fact could find guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). When a criminal defendant challenges the sufficiency of the evidence, he admits the truth of the State's evidence, and all reasonable inferences therefrom are drawn in favor of the State. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). Circumstantial evidence and direct evidence carry equal weight. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004).
To convict Tremberth, the jury was instructed that the following elements must be proved beyond a reasonable doubt:
(1) That on or about the 3rd day of December 2004, the defendant manufactured a controlled substance: methamphetamine.
(2) That the defendant new that the substance manufactured was a controlled substance, methamphetamine; and
(3) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
Clerk's Papers at 30.
Tremberth argues there was insufficient evidence that he manufactured methamphetamine, or that he did so "on or about" December 3, 2004. As to manufacturing, it includes "the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly . . . as well as the packaging or repackaging of any controlled substance." RCW 69.50.101(p). A defendant may be found guilty of manufacturing methamphetamine if he possessed several items generally used only to make methamphetamine, even if he did not possess methamphetamine itself. State v. Keena, 121 Wn. App. 143, 148, 87 P.3d 1197 (2004). Considered in the light most favorable to the State, the evidence was sufficient for any reasonable trier of fact to find Tremberth guilty beyond a reasonable doubt.
Around the shelter and tree where officers found Tremberth, they also found many items that generally are used when manufacturing methamphetamine, including propane tanks, empty jars of lye, coffee filters, tubing, lithium batteries, and a gas mask. Officers also found a baggie filled with pseudoephedrine, which is considered an unlawful precursor for methamphetamine if it is not incorporated into a drug that can be sold lawfully. WAC 246-889-020(1)(x); Keena, 121 Wn. App. at 148. One of the propane tanks tested positive for ammonia, which also is used to process methamphetamine. A small quantity of actual methamphetamine was found on a coffee filter and on a glass tube, which likely was used to smoke methamphetamine.
Tremberth argues that key ingredients necessary for manufacturing methamphetamine were not found on the scene and, therefore, although the State may have proved that methamphetamine was manufactured on the island at some time, it failed to prove methamphetamine was manufactured "on or about" December 3, 2004. We disagree.
When the officers first saw Tremberth on December 3, 2004, some of them saw a mist or vapor coming from the equipment near him, suggesting that Tremberth was actively involved in the process of manufacturing methamphetamine. Tremberth might not have been able to complete the manufacturing process on that day. But the presence of many of the materials needed to make methamphetamine, combined with evidence that a chemical reaction was occurring when the officers arrived, were sufficient to prove beyond a reasonable doubt that Tremberth manufactured methamphetamine "on or about" that date.
TATTOO EVIDENCE
Tremberth next argues that the trial court abused its discretion when it admitted a picture of, and testimony about, the tattoo on the back of his neck. We disagree.
To be admissible, evidence must be relevant. ER 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence." ER 401. Even if evidence is relevant, however, it "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. . . ." ER 403. The decision whether to admit evidence is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion, which occurs when no reasonable person would take the view adopted by the trial court. State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001).
The tattoo is of the letters "N" and "H", followed by the number "3." The two letters and the number constitute the chemical symbol for ammonia, one of the chemicals used to manufacture methamphetamine. Tremberth argues that the evidence was not relevant and was unduly prejudicial.
Tremberth's tattoo was relevant because it tended to show that Tremberth was involved in the methamphetamine operation. As the trial court indicated, the tattoo was "circumstantial evidence of [Tremberth's] knowledge of the process of manufacturing methamphetamine. . . ." Report of Proceedings (Oct. 30, 2006) at 13. Moreover, the evidence of Tremberth's tattoo was not unduly prejudicial. The danger of unfair prejudice exists when the evidence is likely to stimulate an emotional response, rather than a rational one. Rice, 48 Wn. App. at 13; State v. Powell, 126 Wn.2d 244, 264, 893 P.2d 615 (1995). The evidence of Tremberth's tattoo was not likely to stimulate such a response, and its probative value was not outweighed by the danger of unfair prejudice.
There was no abuse of discretion in admitting this evidence.
DESTRUCTION OF POTENTIALLY USEFUL EVIDENCE
Tremberth next contends that he was denied due process because the State failed to preserve "potentially useful" evidence. Specifically, he argues that the State destroyed much of the evidence found on the island without testing it for fingerprints or other evidence that could have established that someone other than he was manufacturing methamphetamine. This argument has no merit.
The state due process clause affords a criminal defendant the same protection regarding the right to discover potentially exculpatory evidence as does the federal constitution. State v. Wittenbarger, 124 Wn.2d 467, 474, 880 P.2d 517 (1994). The prosecution has a duty to disclose and preserve material exculpatory evidence. Wittenbarger, 124 Wn.2d at 475. The government violates a defendant's due process right by failing to preserve evidence if the exculpatory value of the evidence was apparent before it was destroyed and the evidence was of a sort that the defendant would be unable to obtain comparable evidence by any other reasonably available means. Wittenbarger, 124 Wn.2d at 475. If evidence is potentially useful, but its exculpatory value is not necessarily apparent, the failure to preserve it constitutes a denial of due process only if the defendant can show that the State acted in bad faith. Wittenbarger, 124 Wn.2d at 477.
Tremberth argues that the State failed to preserve potentially useful evidence when it destroyed many of the items found on the island without first testing them for fingerprints or DNA. He contends that by destroying the items without dusting them for fingerprints, the State failed to comply with a statute related to the destruction of evidence found at illegal drug manufacturing sites, which shows that the State acted in bad faith.
Tremberth moved to exclude evidence that was destroyed before the defense could examine it, but he initially did not designate as part of the record on appeal the evidence considered by the trial court in deciding whether to grant the motion. He moved to supplement the record with six documents, which the State opposed as to the first three documents because they were not considered by the trial court. Because it appears that the State is correct, we have not considered items 1-3 in resolving this issue on appeal.
Tremberth contends that the State failed to comply with RCW 69.50.511, which provides:
Law enforcement agencies who during the official investigation or enforcement of any illegal drug manufacturing facility come in contact with or are aware of any substances suspected of being hazardous as defined in RCW 70.105D.020, shall notify the department of ecology for the purpose of securing a contractor to identify, cleanup, store, and dispose of suspected hazardous substances, except for those random and representative samples obtained for evidentiary purposes. Whenever possible, a destruct order covering hazardous substances which may be described in general terms shall be obtained concurrently with a search warrant. Materials thathave been photographed, fingerprinted, and subsampled by police shall be destroyed as soon as practical. The department of ecology shall make every effort to recover costs from the parties responsible for the suspected hazardous substance. All recoveries shall be deposited in the account or fund from which contractor payments are made.
The department of ecology may adopt rules to carry out its responsibilities under this section. The department of ecology shall consult with law enforcement agencies prior to adopting any rule or policy relating to this section.
(Emphasis added.) The statute does not establish an affirmative duty to fingerprint everything taken as evidence from a methamphetamine manufacturing operation. Rather, the statute merely indicates that hazardous evidence should be destroyed as soon as that is practical.
Along with the statute, Tremberth contends that the State's bad faith is shown by the affidavit a detective submitted along with his request for an order allowing the State to destroy the evidence. The affidavit indicated that materials would be fingerprinted before they were destroyed when, in fact, most of the items were not fingerprinted. But the detective explained that he attempted to fingerprint items that looked as if they might hold latent prints. He did not find any fingerprints on any of the items he tested. Additionally, he testified that the items had been exposed to the weather, which makes the recovery of any fingerprints difficult.
RCW 69.50.511 did not create an affirmative duty to test all of the evidence for fingerprints, and the detective's testimony shows that he attempted to recover fingerprints from items that were likely to retain prints, but he was unsuccessful.
Moreover, there is nothing else to suggest that exculpatory or material evidence was either destroyed or not properly preserved by the State. There was no due process violation.
AUTOMATIC STANDING
The State argues in its cross-appeal that the trial court erred when it granted Tremberth automatic standing to challenge the legality of the search. We disagree.
Generally, a defendant may challenge a search or seizure only if he had a personal Fourth Amendment privacy interest in the area searched or the property seized. State v. Simpson, 95 Wn.2d 170, 174, 622 P.2d 1199 (1980). But the United States Supreme Court created an exception to that rule in Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). The court carved out the "automatic standing" exception for situations where the defendant was charged with a crime that could be proved solely by evidence that the defendant possessed the property seized. See Jones, 362 U.S. at 261-62. The exception ensured that (1) a defendant's claim of possession in a suppression hearing could not be used against him to establish possession at trial and (2) the State would not assume contradictory positions by arguing at the suppression hearing that the defendant had no Fourth Amendment privacy interest in the property because he did not possess it, then arguing at trial that he was guilty because he did possess it. Simpson, 95 Wn.2d at 175; Jones, 362 U.S. at 261-63.
The United States Supreme Court abandoned the doctrine of automatic standing, in part because a defendant's testimony at a suppression hearing in federal court may not be used against him at trial. State v. Goucher, 124 Wn.2d 778, 788 n. 1, 881 P.2d 210 (1994). But a plurality of this state's supreme court subsequently determined that the automatic standing rule still applies under our state constitution. Goucher, 124 Wn.2d at 788 n. 1. The court has adhered to that position despite the controversy over whether it should be abandoned by this state. State v. Jones, 146 Wn.2d 328, 331-32 n. 1, 45 P.3d 1062 (2002). It applies if "the offense with which he is charged involves possession as an `essential' element of the offense; and (2) the defendant was in possession of the contraband at the time of the contested search or seizure." Simpson, 95 Wn.2d at 181.
No Washington case specifically addresses when possession may be considered an "essential element" of the offense. Division Two of this court stated in dicta in a footnote that manufacturing methamphetamine is "not a crime of possession, so automatic standing" did not apply in that case. State v. Ague-Masters, 138 Wn. App. 86, 99, 156 P.3d 265 (2007). We decline to follow that reasoning in this case.
First, that court was not presented with facts similar to those here. In fact, it did not even cite the portions of either the Jones case or the Goucher case stating the elements of automatic standing. Thus, we think it unlikely that the court fully considered those elements in its brief discussion in which it summarily reached the conclusion that automatic standing did not apply.
Second, from our review of the rationale behind the rule of automatic standing, it appears the doctrine should apply here. The Second Circuit Court of Appeals decision in United States v. Oates, 560 F.2d 45 (2nd Cir. 1977), is instructive.
The defendant in Oates was convicted of possession of heroin with intent to distribute and of conspiracy to commit that offense. Oates and a companion were arrested while waiting to board an aircraft. The companion was carrying heroin, but law enforcement officers had reason to believe that Oates was a major narcotics dealer, while his companion was mainly a user. Oates moved to suppress the evidence seized from his companion, but the government argued he did not have automatic standing to challenge the search because he was charged only with aiding and abetting the commission of a possessory crime.
The court resolved the issue by concluding that the crimes charged were possession with intent to distribute and conspiracy to commit such possession. Therefore, the court had no difficulty in concluding that possession was an essential element of the crimes. Oates, 560 F.2d at 55-56. The court explained in a lengthy footnote that automatic standing applies when possession is sufficient , rather than necessary , to prove the crime:
We think it important to add that we would probably reach the same conclusion even if we were to assume arguendo, and contrary to what we believe to be clear governing standards, that the "crime charged" was really "aiding and abetting" possession rather than the possession itself. . . .
As previously mentioned, the automatic standing rule applies when possession is an "essential" element of the crime charged. While one would normally take "essential" to be synonymous with "necessary," the cases, at least in this circuit, apparently consider the requirement that possession be an essential element satisfied when possession is merely sufficient to prove the crime charged. More particularly, in United States v. Galante, supra at 738, we relied upon and recognized the continuing authority of United States v. Sacco, 436 F.2d 780 (2d Cir.), cert. denied, 404 U.S. 834, 92 S. Ct. 116, 30 L. Ed. 2d 64 (1971). In Sacco, where the indictment charged conspiracy to transport stolen goods in interstate commerce, we ruled that automatic standing did not exist, apparently because "(p)roof of possession would have been insufficient to support the charge of conspiracy to transport stolen goods in interstate commerce; in fact, possession would not appear even to be a prerequisite to conviction on such a charge." 436 F.2d at 784 (emphasis supplied). The import of this language seems clear. If proof of possession is either sufficient or necessary to support the charge, then automatic standing exists. This reading of Sacco is seemingly acknowledged by United States v. Mapp, 476 F.2d 67, 73 (2d Cir. 1973), and is entirely consistent with Jones v. United States, supra, where at least one of the charges, a charge which was held sufficient to confer automatic standing, could "be established through proof solely of possession of narcotics." 362 U.S. at 261, 80 S. Ct. at 731 (emphasis supplied); see id. at 258-59, 80 S. Ct. 725. As explained above, proof of possession would be sufficient, although not necessary, to prove "aiding and abetting" possession. Thus, as in Jones, the so-called charge of "aiding and abetting" possession "can be established through proof solely of possession of narcotics." We therefore take it that possession can be considered an "essential" element where the indictment relies upon the aiding and abetting portion of 18 U.S.C. s 2. On the other hand, if the indictment charges, as does Count One (see note 1 supra) in this case, conspiracy to possess, it is clear that possession is not an essential element because it is neither a necessary, see United States v. Galante, supra at 737-38, nor a sufficient, see United States v. Sacco, supra at 784, element of the crime charged. Thus, even assuming "aiding and abetting" to be a crime separate and distinct from the substantive offense itself, it would seem that appellant would still have automatic standing because possession would be an "essential" element of the crime charged.
Oates, 560 F.2d at 56 n. 6.
Proof that Tremberth possessed the precursor material found at the trailer is sufficient to find him guilty of manufacturing methamphetamine. To deny him the right to challenge the search would force him to choose between asserting his article 1, section 7 rights and denying possession at trial. Under these circumstances, we conclude that Tremberth had automatic standing to challenge the search of the property. The trial court properly so held in granting his motion to suppress.
We affirm the judgment and sentence.