Opinion
No. 24321-4-III.
November 16, 2006.
Appeal from a judgment of the Superior Court for Benton County, No. 01-1-00505-1, Cameron Mitchell, J., entered July 6, 2005.
Counsel for Appellant(s), David N. Gasch, Gasch Law Office, Spokane, WA.
Counsel for Respondent(s), Heather Dawn Czebotar, Attorney at Law, Kennewick, WA.
Affirmed by unpublished opinion per Schultheis, A.C.J., concurred in by Brown and Kato, JJ.
Benton County police officers found evidence of methamphetamine manufacture in and around a woman's house. The woman implicated her ex-boyfriend, Charles West, who was convicted in a jury trial of manufacturing methamphetamine. On appeal, Mr. West contends the evidence is insufficient to show that he had anything to do with the manufacturing that was taking place at his ex-girlfriend's house. He also assigns error to the trial court's jury instruction on accomplice liability. We conclude that the evidence supports the verdict and that the accomplice instruction is accurate as a matter of law. Accordingly, we affirm.
Facts
On May 24, 2001, several police officers executed a search warrant at a Kennewick house that belonged to Darcy Lee. No one was at home during the search. The officers found a strong stench and numerous items related to the manufacture of methamphetamine, including propane tanks, muriatic acid, boxes of pseudoephedrine, and jars with separated layers of liquids. In an old white car that was covered by a tarp and sitting on blocks in the yard, officers found acetone, tubing, a funnel, and glass jars. Ms. Lee was arrested later that day. The officers also suspected that her ex-boyfriend — Mr. West — and five other persons may have been involved in the production of methamphetamine at Ms. Lee's house.
Mr. West was arrested and charged with one count of manufacturing a controlled substance: methamphetamine, former RCW 69.50.401(a)(1) (1998). At his jury trial, Ms. Lee testified for the State. According to Ms. Lee, Mr. West had moved in with her as her boyfriend in around 1989, but she "kicked him out" several years later. Report of Proceedings (RP) at 282. She testified that they continued to be friends, he left many of his possessions in her house, and he came and went at will. In effect, she stated, he used her house for storage, and stored his old white car in her yard. She also claimed he had several friends who left items at her house. She expressed surprise that methamphetamine was being manufactured at her house and claimed she did not know whether Mr. West or his friends had been involved in production of the narcotic. However, she also admitted she had pleaded guilty to conspiracy to manufacture methamphetamine, explaining that the plea bargain offered by the State was too good to pass up.
After the State rested its case, defense counsel moved to dismiss for insufficient evidence. The motion was denied. Defense witnesses included Mr. West's current girlfriend — Tonya Firsted — and Pam Ornduff, Ms. Firsted's best friend, in whose house Mr. West was currently living. According to these women, Mr. West spent his days in May 2001 baby-sitting for the children of Ms. Firsted and Ms. Ornduff while the women worked full time. Ms. Firsted testified that Ms. Lee was very angry with Mr. West for fathering Ms. Firsted's child, and that Mr. West had maintained no relationship with Ms. Lee after he moved out in 1999. Ms. Ornduff claimed that she helped Mr. West move "totally" out of Ms. Lee's house in 1999, and said a new boyfriend moved in with Ms. Lee after that. RP at 437. Defense counsel presented the registration for the old white car, which was not in Mr. West's name.
At the conclusion of the evidence, the trial court granted the State's request to include a jury instruction on accomplice liability. Mr. West objected to the instruction on the ground that there was no evidence he participated as an accomplice. The jury reached a verdict of guilty and Mr. West timely appealed.
Sufficiency of the Evidence
Mr. West first challenges the sufficiency of the evidence to support his conviction. He contends the State presented no evidence he lived at Ms. Lee's house or that he had been observed manufacturing methamphetamine. Pro se, he notes that the police surveillance of Ms. Lee's house never indicated he was seen there, and the State did not present fingerprint evidence tying him to the seized items.
We will find that evidence was sufficient to support a criminal conviction if, viewed in the light most favorable to the State, it permitted any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). Circumstantial and direct evidence are considered equally reliable, and this court defers to the trier of fact on issues of the credibility of the witnesses and the persuasiveness of the evidence. Id. at 874-75.
Mr. West was charged with the manufacture of methamphetamine. Former RCW 69.50.401(a). "Manufacture" is defined in relevant part as the production, preparation, or processing of a controlled substance by means of a chemical synthesis or by a combination of extraction and chemical synthesis. RCW 69.50.101(p). Along with charging him with manufacture as a principal, the State also instructed the jury on accomplice liability. Generally, an accomplice is one who aids or agrees to aid another person in committing a crime by participating in the crime as something he or she desires to accomplish. State v. McPherson, 111 Wn. App. 747, 757, 46 P.3d 284 (2002).
Although the State presented no direct evidence here that Mr. West was observed manufacturing methamphetamine, there is sufficient circumstantial evidence — viewed in the light most favorable to the State — to support his conviction. Ms. Lee testified that Mr. West still frequented her house and stored items there, including the old white car that contained evidence of methamphetamine production. She admitted that she and Mr. West had used methamphetamine in the past. Police officers testified that they found papers addressed to Mr. West in the house. These papers were dated 1999, however, which diminished their utility in proving his recent occupation of the residence. Even so, assuming the jury found Ms. Lee's testimony credible, the evidence is sufficient to raise the reasonable inference that Mr. West stored the items used in manufacturing methamphetamine in Ms. Lee's house and participated in that manufacture.
Mr. West's pro se arguments — that the police did not see him at the house during surveillance and did not find his fingerprints on the seized items — refer to evidence that was not presented to the jury. Even if this evidence had been elicited, it is not particularly exculpatory. Although observing Mr. West at the scene or finding his fingerprints on the items seized would have shown he had been present, the absence of this evidence would not have proven he was absent. See State v. Romero, 113 Wn. App. 779, 796-97, 54 P.3d 1255 (2002) (absence of fingerprints does not mean absence of the defendant).
Mr. West does not challenge the evidence showing methamphetamine production in Ms. Lee's home, and it is clear that the presence of anhydrous ammonia, muriatic acid, coffee filters coated with pseudoephedrine powder, and traces of methamphetamine in jars of layered liquids is compelling evidence of manufacture. See McPherson, 111 Wn. App. at 757-59. From this evidence, a rational juror could find beyond a reasonable doubt that Mr. West participated as a principal or as an accomplice in the manufacture of methamphetamine.
Instruction on Accomplice Liability
Mr. West also contends the jury instruction on accomplice liability is erroneous. He argues that an identical instruction was rejected in State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000).
Although Mr. West did not object to the accomplice instruction on this basis at trial, his argument raises issues of his constitutional right to a fair trial. Consequently, this court may address the issue for the first time on appeal. See State v. Moran, 119 Wn. App. 197, 210-11, 81 P.3d 122 (2003) (similar erroneous accomplice instruction).
Instruction 10 states in relevant 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 the 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 the crime. Clerk's Papers (CP) at 44. Contrary to Mr. West's assertion, this instruction is not the same as the one disapproved by the Washington Supreme Court in Cronin, 142 Wn.2d at 576-79.
Cronin addressed an accomplice instruction that stated, "`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 solicits another to commit the crime or aids "`another person in committing a crime.'" Cronin, 142 Wn.2d at 576-77 (emphasis added). Washington's complicity statute, RCW 9A.08.020, provides that an accomplice must have acted with knowledge that his or her conduct would promote the crime for which he or she was eventually charged. Cronin, 142 Wn.2d at 578-79. That an alleged accomplice knows the principal intends to commit a crime does not necessarily mean "accomplice liability attaches for any and all offenses ultimately committed by the principal." Id. at 579. The jury instruction in Cronin allowed the jury to find accomplice liability if it found that the defendant knew he was promoting a crime other than the specific crime charged. Consequently, the instruction was deficient. Id. at 578-79; State v. O'Neal, 126 Wn. App. 395, 419, 109 P.3d 429, review granted in part on other grounds, 155 Wn.2d 1024, 126 P.3d 820 (2005).
Here, however, the accomplice instruction limits culpability to the defendant's knowledge that his or her conduct would promote or facilitate commission of "the" crime for which he or she was charged. CP at 44 (emphasis added). The same accomplice instruction was approved in O'Neal, 126 Wn. App. at 418-19, and the relevant language has been adopted in 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 10.51 (Supp. 2005). Because the jury could only find that Mr. West acted with knowledge of the specific crime that was eventually charged, the accomplice instruction was a correct statement of the law. Cronin, 142 Wn.2d at 579; O'Neal, 126 Wn. App. at 418-19; see also State v. Moran, 119 Wn. App. 197, 209-10, 81 P.3d 122 (2003) (approving the same accomplice instruction).
Affirmed.
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.
BROWN and KATO, JJ., concur.