Opinion
Consol. Nos. 28940-7-II, 29030-8-II.
Filed: April 6, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 01-1-04425-9. Judgment or order under review. Date filed: 06/07/2002. Judge signing: Hon. Frederick Fleming.
Counsel for Appellant(s), Rebecca Wold Bouchey, Attorney at Law, PO Box 1401, Mercer Island, WA 98040-1401.
Pattie Mhoon, Attorney at Law, 949 Market St. Ste 488, Tacoma, WA 98402-3600.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Kristopher Lyn Otis and Trenton Tracy Wood were convicted of manufacturing methamphetamine (count I), delivering methamphetamine to a minor (count II), and third degree assault of a child (count III). The issues on appeal are whether the evidence is sufficient to support each count. We affirm count I and count II, but reverse and dismiss count III.
Wood is the son of Michael Wood (Michael). In August 2001, he was living with his grandfather, but he often spent the night at Michael's. The grandfather's home and Michael's home were on the same rural parcel of land
Wood and Otis were friends. Otis's girlfriend was Heather Knack, age 16. Knack had a child, Isaac, age 11 months. Knack used methamphetamine every day, much of which she obtained from Wood and Otis.
On or about August 17, 2001, Knack entered a shed behind Michael's house. Inside, she saw Otis, Wood, and Michael making meth. They told her to get out, which she did.
Later the same evening, Otis and Wood dried meth on a glass dish in the kitchen. They then scraped it off the dish and shared it with Knack.
Two days later, on the evening of August 19, 2001, Otis, Wood, Knack, Isaac, Michael, Michael's wife, and Michael's daughter, Corenna, were all at Michael's house. Otis and Wood removed ephedrine pills from their packaging, then took the pills to the shed in which Knack had observed them two days earlier. Corenna smelled chemicals coming from the shed, but she did not see anyone manufacturing meth. Knack fell asleep about 2:30 a.m., with Isaac on the floor next to her.
A few hours later, Michael and his wife found that the baby `had gotten into something' and `washed his face.' They returned the baby to Knack, who was still asleep on the living room floor. Wood had not left for work, so the time `must have been before 6 a.m.'
Report of Proceedings (RP) at 240.
Br. of Resp't at 26.
Knack awoke about 9 a.m. By then, Isaac's `eyes were swollen shut and his lips were blue.' When Knack told Otis, he `started panicking' and said, `I think I know what he got into.' They took Isaac to a friend's house, where they attempted to `do first-aid stuff on him, like baking soda and paste like, making it into paste so his face would stop burning.' While at the friend's house, Otis phoned Michael's house and asked the person who answered to wipe the fingerprints off everything.
RP at 242.
RP at 242.
RP at 243.
When Otis left the friend's house, Knack called her mother, who told her to take Isaac to their family doctor. The doctor called an ambulance, which took Isaac to Mary Bridge Hospital. Not `want[ing] to get [Otis] in trouble,' Knack told the hospital staff that Isaac had gotten into lye under the sink. She told a family friend, however, that Isaac had gotten into a mixture of lye and toluene that had been left in a bucket in the kitchen. The friend told the doctors, and Isaac was airlifted to Harborview Hospital in Seattle.
RP at 247.
Two Pierce County Sheriff's deputies, James Loeffelholz and Oliver Hickman, interviewed Knack at the hospital. She said that she had not used meth in over a year, that she did not know what chemicals were used in a meth lab, and that Michael's house was clean.
On August 22, 2001, deputies executed a search warrant on Michael's home. They found a meth lab in the shed.
A few days later, deputies again interviewed Knack. This time, she admitted that Isaac had gotten into a mixture of toluene and lye. She said she had been untruthful earlier because she was afraid of the baby `getting taken,' she `didn't want [Otis] to get in trouble,' and she was afraid of being labeled a `snitch.'
RP at 254, 286.
Before the end of August, the State filed informations which, as later amended, charged Otis with three counts and Wood with three counts. With respect to each defendant, count I alleged unlawful manufacture of a controlled substance; count II alleged unlawful delivery of a controlled substance to a person under 18 (Knack); and count III alleged third degree assault of a child (Isaac).
On May 23, 2002, the trial court convened a bench trial. Knack testified that Otis, Wood, and Michael had been manufacturing meth in the shed, and that Otis and Wood had routinely furnished her with meth. She also said that `there did not appear to be any manufacturing items in the house,' and that the only time she saw manufacturing items in the house was when the meth was dried on the stove. Officers testified that when they searched the premises, they found a meth lab in the shed. Michael testified that he had been extracting ephedrine on August 19, that he had left the bucket of lye and toluene by the back door, and that neither Wood nor Otis had been involved in manufacturing meth. He also testified that he had pleaded guilty to manufacturing meth and third degree assault of a child. His testimony directly contravened a pretrial statement in which he had told the police that `he was not personally involved in the manufacturing process' that night; that his son and Otis had been manufacturing meth in the shed that night; that they were supposed `to keep it outside;' and that he did not know they had brought anything into the house.
RP at 274-75.
RP at 153-54.
On May 30, 2002, the trial court found that Knack `was telling the truth, that these two people . . . were in the process and were making the effort, ineptly maybe, to manufacture methamphetamine.' The court also found that Michael was not credible. The court concluded that Otis and Wood were guilty on all three counts.
RP at 586-87.
On June 7, 2002, the trial court sentenced Otis to 120 months on count I, 120 months on count II, and 16 months on count III, all to run concurrently. At the same time, the court sentenced Wood to 222 months on count I, 198 months on count II, and 60 months on count III, all to run concurrently. Otis and Wood then filed this appeal.
With respect to count I and count II, Otis's standard range was 98-130 months, enhanced by 24 months. See RCW 9.94A.605 (former RCW 9.94A.128 (2000)) and RCW 9.94A.533(6). Thus, his presumptive sentence was actually 122-154 months. His statutory maximum term was only 120 months, see RCW 69.50.401(a)(1)(ii), and the trial court imposed a sentence of that length.
With respect to count I and count II, Wood's standard range was 149-198 months, enhanced by 24 months. See RCW 9.94A.605 (former RCW 9.94A.128 (2000)) and RCW 9.94A.533(6). Thus, his presumptive sentence was actually 173-222 months. Due to a prior drug offense, his statutory maximum term was 240 months, see RCW 69.50.408(a), and the trial court imposed 222 months.
I.
Otis argues pro se that the evidence is insufficient to support his conviction for manufacturing (count I). Evidence is sufficient to support a conviction if a rational trier of fact viewing it in the light most favorable to the State could find beyond a reasonable doubt each element of the crime charged. The elements of manufacturing are to manufacture a controlled substance with knowledge that it is a controlled substance. Here then, the evidence is sufficient to support count I if a rational trier of fact taking it in the light most favorable to the State could find that Otis manufactured methamphetamine with knowledge that it was methamphetamine.
State v. Joy, 121 Wn.2d 333, 338-39, 851 P.2d 654 (1993); Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
RCW 69.50.401(a); 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 50.10, at 649 (2d ed. 1994) (WPIC); State v. Boyer, 91 Wn.2d 342, 588 P.2d 1151 (1979). To `manufacture' a controlled substance means, in part, to produce `a controlled substance . . . by means of chemical synthesis, or by a combination of extraction and chemical synthesis.' RCW 69.50.101(p).
Knack testified that she saw Otis, Wood and Michael manufacturing meth on August 17. She also saw him take ephedrine pills out to the shed on August 19. She routinely obtained meth from Otis and Wood. The police found a meth lab in the shed. Cumulated and taken in the light most favorable to the State, this evidence is sufficient to support count I.
II.
Otis argues pro se that the evidence is insufficient to support his conviction for delivering meth to Knack, a person under 18 (count II). Once again, evidence is sufficient to support a conviction if a rational trier of fact viewing it in the light most favorable to the State could find beyond a reasonable doubt each element of the crime charged. The elements of delivery to a person under 18 are that the defendant delivered a controlled substance with knowledge that it is a controlled substance; that the defendant was 18 or older; and that the recipient was under 18. Here then, the evidence is sufficient to support count II if a rational trier of fact taking it in the light most favorable to the State could find that Otis, while 18 or older, delivered methamphetamine to Knack, a person under 18, with knowledge that it was methamphetamine.
Joy, 121 Wn.2d at 338-39; Jackson, 443 U.S. at 316.
RCW 69.50.401(a); RCW 69.50.406; Boyer, 91 Wn.2d 342; WPIC 50.06.
Knack testified that Otis routinely supplied her with methamphetamine. She also testified that she saw Otis, Wood, and Michael manufacturing meth on August 17, and that she saw Otis and Wood take ephedrine to the shed on August 19. The police found a meth lab in the shed. In August 2001, Otis was over 18 and Knack was under 18. Taken in the light most favorable to the State, this evidence is sufficient to support Otis's conviction on count II.
III.
Otis and Wood argue through counsel that the evidence is insufficient to support their convictions for third degree assault of a child (count III). Evidence is sufficient to support a conviction if a rational trier of fact, viewing it in the light most favorable to the State, could find beyond a reasonable doubt each element of the crime charged. The elements of third degree assault of a child are that the defendant, being 18 or older, with criminal negligence, caused bodily harm to a person then under 13, accompanied by substantial pain that extended for a period sufficient to cause considerable suffering. A person is criminally negligent if he or she `fails to be aware of a substantial risk that a wrongful act may occur and his [or her] failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable [person] would exercise in the same situation.' The elements in issue here are criminal negligence and causation.
Joy, 121 Wn.2d at 338-39; Jackson, 443 U.S. at 316.
We begin by asking whether the evidence shows a substantial risk to Isaac. Concluding that it does, we then ask whether Wood or Otis is liable because he was an accomplice of the other; because he created the substantial risk to Isaac; because he actually knew of the risk in sufficient time to eliminate it, yet failed to do so; or because he should have known of the risk in sufficient time to eliminate it, yet failed to do so.
We begin by asking whether the evidence shows a substantial risk to Isaac and, if so, what that risk was. There is no evidence that Isaac was ever in or around the shed. Nor is there any evidence that chemical fumes from the shed wafted into the house with enough intensity to create a substantial risk of harm to Isaac. There is evidence, however, that early on August 20, someone brought a bucket of chemicals into the kitchen and left it there. Isaac and his mother were then sleeping on the floor, so he had access to the kitchen. Although the evidence does not show that meth-making activity in the shed created a substantial risk of harm to Isaac, it does show that the chemicals in the kitchen created a substantial risk of harm to Isaac.
We next ask whether Wood or Otis is criminally liable for the chemicals in the kitchen because he was an accomplice of the other. RCW 9A.08.020 is Washington's complicity statute. It requires that an accomplice `have the purpose to promote or facilitate the particular conduct that forms the basis for the charge.' It does not make the accomplice `liable for conduct that does not fall within this purpose,' or allow his conviction `for any criminal result that occur[s].' Although the evidence shows that Wood and Otis were aiding and abetting each other, it also shows that their purpose was to promote or facilitate the manufacture of meth, not to promote or facilitate an assault on Isaac. Thus, each was an accomplice to manufacturing meth, but neither was an accomplice to assault.
State v. Roberts, 142 Wn.2d 471, 510, 14 P.3d 717 (2000) (quoting Model Penal Code sec. 2.06 cmt. 6(b) (1985)) (emphasis omitted); see also State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000).
Roberts, 142 Wn.2d at 510-11 (quoting Model Penal Code sec. 2.06 cmt. 6(b)) (emphasis omitted); see also Cronin, 142 Wn.2d at 578-79.
Roberts, 142 Wn.2d at 511; see also Cronin, 142 Wn.2d at 578-79.
We next ask whether Wood or Otis is criminally liable because he himself put the bucket of chemicals in the kitchen. There is no credible evidence showing who put the bucket in the kitchen it might have been Wood, Otis, or Michael and thus we answer in the negative.
Michael testified that he had placed the bucket, but the trial court disbelieved him.
We next ask whether Wood or Otis is criminally liable for the chemicals in the kitchen because, even if he did not put it there, he knew they were there long enough before Isaac's injuries that he could and should have removed them. There is no evidence whatever that Wood knew the bucket was in the kitchen until well after Isaac's injury. There is evidence that Otis knew about the bucket at 9 a.m., for he told Knack, `I think I know what [Isaac] got into.' There is no evidence, however, that Otis acquired his knowledge long enough before Isaac's injuries which must have occurred before 6 a.m. to have removed the bucket or otherwise have eliminated the risk it created. Thus, the evidence is insufficient to prove that Wood or Otis is criminally liable because he knew the chemicals were in the kitchen but failed to remove them in time to avoid Isaac's injuries.
RP at 242.
Br. of Resp't at 26.
Finally, we ask whether Wood or Otis is criminally liable for the chemicals in the kitchen because, even if he did not put them there, and even if he did not actually know they were there, he should have known that someone else had put them in the kitchen, long enough before Isaac's injuries that he could and should have removed them. Although the evidence shows that the chemicals were placed in the kitchen by an unknown person sometime in the early morning hours of August 20, it does not show that either Wood or Otis was in or around the kitchen between that time and when Isaac was injured. Nor does it show that either Wood or Otis routinely left chemicals in the kitchen, as opposed to the shed, or that either knew the other was doing that. Thus, neither Wood nor Otis is criminally liable because he should have known the chemicals were in the kitchen but failed to remove them in time to avoid Isaac's injuries.
Based on the foregoing, we conclude that the evidence is sufficient to support counts I and II, but insufficient to support count III. Counts I and II are affirmed, but count III is reversed and dismissed.
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.
HUNT, J. and QUINN-BRINTNALL, C.J., concur.