Opinion
No. 21786-8-III.
Filed: March 16, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Whitman County. Docket No. 02-1-00142-9. Judgment or order under review. Date filed: 01/31/2003. Judge signing: Hon. John David Frazier.
Counsel for Appellant(s), Steven P Martonick, Snyder Martonick Law Offices, 155 SE Kamiaken, Pullman, WA 99163-0368.
Counsel for Respondent(s), Ann Colburn Shannon, Attorney at Law, PO Box 30, Colfax, WA 99111-0030.
Ryan Dunlavy and a cohort tried to steal pressurized ammonia from a farm supply tank. The State charged him with a series of crimes. We affirm Mr. Dunlavy's convictions for possession of pressurized ammonia gas with intent to manufacture methamphetamines, theft of ammonia, possession of methamphetamine, and criminal trespass. But we reverse his conviction for unlawful storage of the ammonia in a propane tank. The statute criminalizing that conduct refers to state and federal industrial health and safety standards for holding ammonia. RCW 69.55.020. But the State failed to show any state or federal standard. Prosecution witnesses simply opined that the propane tank used here was inadequate. We have previously held that is not enough to support a criminal conviction. State v. Olmedo, 112 Wn. App. 525, 532, 49 P.3d 960 (2002), review denied sub nom. State v. Johnson, 148 Wn.2d 1019 (2003).
FACTS
Ryan Dunlavy drove Eric Benzo from Spokane to Rosalia, Washington, to steal anhydrous ammonia from the Western Farm Services plant. Mr. Dunlavy had been present in the past when Mr. Benzo `cooked' methamphetamine. Mr. Dunlavy picked up Mr. Benzo, who loaded a propane tank into the car. Mr. Benzo stopped at a convenience store to pick up some lithium batteries. Mr. Benzo testified at trial that a tank of anhydrous ammonia belonging to a person called `Flash' had gone missing. Mr. Benzo threatened Mr. Dunlavy that he would tell Flash that Mr. Dunlavy was the thief unless Mr. Dunlavy helped him get more ammonia. Mr. Benzo also told Mr. Dunlavy that Flash had a record of violence and would hurt him and anybody close to him. The prosecutor impeached Mr. Benzo with his prior inconsistent statements that Mr. Dunlavy had purchased the propane tank and it was already in the car when Mr. Dunlavy picked Mr. Benzo up.
According to Mr. Benzo, they parked the car near the road below the Western Farm Services plant. Mr. Dunlavy helped Mr. Benzo haul the propane tank up the hill to an anhydrous ammonia tank. Mr. Dunlavy then left Mr. Benzo and wandered around while Mr. Benzo connected the tanks and transferred the ammonia. Mr. Benzo put some of the ammonia into a small red gas can containing meth reagents, starting a small reaction. The plan was that Mr. Dunlavy would drive them away afterwards. But a passing sheriff's deputy noticed the car and stopped. Mr. Dunlavy returned to Mr. Benzo and told him about the lights down on the road. Mr. Benzo hid and Mr. Dunlavy left the scene.
The deputy arrested Mr. Benzo. Mr. Dunlavy was arrested later that morning walking along the highway toward Spokane. His car was impounded and searched. The car contained a comprehensive selection of meth manufacturing paraphernalia.
Appellant's Br. at 3. We found no reference to the circumstances of Mr. Dunlavy's arrest in the record. It is not material and is included for narrative purposes only.
The State charged Mr. Dunlavy with: possession of pressurized ammonia gas with intent to manufacture methamphetamine (count I); theft of ammonia (count II); unlawful storage of ammonia (count III); possession of methamphetamine (count IV); and criminal trespass (count V).
The State presented the testimony of a Western Farm Services employee, a man whose wife was a Western Farm Services employee, and a police officer. Each opined that a propane tank was not a lawful container for ammonia.
John Hartley is a 31-year employee of Western Farm Services. He testified to the fertilizer plant's practices with respect to ammonia tank equipment and maintenance. But he could not identify a regulation. He conceded on cross that he knew nothing about the regulations for propane tanks. Larry Trull is married to the Western Farm Services employee who was summoned to help secure the scene. He testified that `[i]t's not legal to use a propane container for anhydrous ammonia.' Report of Proceedings (RP) at 55. Mr. Trull testified that he had seen regulations specifying minimum standards for ammonia containers, but he could not specify any particular regulation or name the issuing department. Detective Scott Patrick testified that the governing regulation was WAC 296-307-40011. But he could not articulate any of its provisions and ultimately conceded that he was `not an expert in anhydrous tanks.' RP at 86.
The court instructed the jury that in order to find Mr. Dunlavy guilty of possession of pressurized ammonia gas with intent to manufacture methamphetamine, it must find that he knowingly possessed it. To find him guilty of unlawful storage, the court instructed the jury that it must find that Mr. Dunlavy or an accomplice possessed the gas in a container that was not approved by the U.S. Department of Transportation and was not constructed to meet state and federal industrial health and safety standards. But the court rejected Mr. Dunlavy's argument that the State was required to prove that he had knowledge that the propane tank was an unlawful container for ammonia. RP at 123.
The jury found Mr. Dunlavy guilty on all counts.
DISCUSSION Unlawful Storage
Mr. Dunlavy challenges the sufficiency of the evidence to support his conviction for unlawful storage. He argues that to prove unlawful storage the State must show that the container did not meet the standards of the U.S. Department of Transportation and state safety standards. And, he contends, the State presented absolutely no evidence establishing any regulatory standards, U.S. Department of Transportation or otherwise.
We review a challenge to the sufficiency of evidence de novo. State v. Schelin, 104 Wn. App. 48, 51, 14 P.3d 893 (2000), aff'd, 147 Wn.2d 562, 55 P.3d 632 (2002). The test is whether a rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
None of the three witnesses who testified that the propane tank did not meet state and federal requirements for storing pressurized ammonia was qualified as an expert. Mr. Hartley and Mr. Trull frankly admitted total ignorance of the legal standards for pressurized gas containers. Detective Patrick recited expert credentials on methamphetamine manufacture, reagents, and paraphernalia. But he, too, admitted to knowing next to nothing about propane tanks and was shaky on the regulations for ammonia tanks.
The defense did not challenge the expert qualifications of these witnesses or the relevance of their opinions as evidence. The sole question before us, therefore, is whether their evidence was sufficient to prove that the propane tank did not conform to the legal standard. `A person is guilty of the crime of unlawful storage of ammonia if the person possesses . . . pressurized ammonia gas . . . in a container that (1) is not approved by the United States department of transportation to hold ammonia, or (2) was not constructed to meet state and federal industrial health and safety standards for holding ammonia.' RCW 69.55.020.
Opinion testimony, even that of experts, is insufficient to prove that a container does not meet the regulatory standards. Olmedo, 112 Wn. App. at 532. This is because witnesses may testify as to matters of law but may not give legal conclusions. ER 704; Olmedo, 112 Wn. App. at 532. Improper legal conclusions include testimony that a particular law applies to the case or that the defendant's conduct constituted a violation. Id. The correct procedure is for the witness first to state what the standards require and then to describe the witness's own direct observations. It is then exclusively for the jury to determine whether the regulatory standard was met. Id.
Here, as in Olmedo, the State fell short of showing a comprehensible legal standard against which a jury could compare Mr. Dunlavy's propane tank. The opinions of lay witnesses that the tank did not appear to them to conform to unspecified state and federal regulations is not sufficient to sustain a guilty verdict.
We need not reach Mr. Dunlavy's contention that the State was required to prove that he had knowledge of the federal and state regulations governing pressurized gas containers and knew that the container was not in compliance. The failure to establish a coherent and comprehensible legal standard against which the jury could compare the alleged unlawful container nevertheless constitutes a failure of proof requiring reversal of the conviction.
Sufficiency of the Information
Mr. Dunlavy contends the information did not put him on notice that the conduct for which he was being prosecuted was aiding and abetting Mr. Benzo in the commission of the crimes of theft and possession of the ammonia. Every person charged with a crime must receive (1) notice of the elements of the crime charged and (2) a factual statement of the alleged acts constituting the crime. Wash. Const. art. I, sec. 22; State v. Kjorsvik, 117 Wn.2d 93, 98, 812 P.2d 86 (1991); State v. Kitchen, 61 Wn. App. 915, 916, 812 P.2d 888 (1991). This constitutional guarantee of notice is reflected in the Washington superior court rules which require the charging document to contain `a plain, concise and definite written statement of the essential facts constituting the offense charged.' CrR 2.1(a)(1). Our review is de novo. State v. Campbell, 125 Wn.2d 797, 800-01, 888 P.2d 1185 (1995).
When the sufficiency of an information is challenged for the first time on appeal, it is liberally construed in favor of its validity. We will uphold the information if the necessary elements appear or by fair construction can be found in any form, unless the defendant can show actual prejudice. State v. Tunney, 77 Wn. App. 929, 932, 895 P.2d 13 (1995), aff'd, 129 Wn.2d 336, 917 P.2d 95 (1996). If the facts do not appear in any form, prejudice is presumed. State v. Ibsen, 98 Wn. App. 214, 216, 989 P.2d 1184 (1999). An information must inform the accused of the conduct with which he is being charged, so as to enable him to prepare an adequate defense. Kjorsvik, 117 Wn.2d at 110; State v. Mora, 110 Wn. App. 850, 859, 43 P.3d 38, review denied, 147 Wn.2d 1021 (2002). The information must clearly set forth the acts or omissions allegedly constituting the crime in such a way that an ordinary person would understand it. RCW 10.37.050(6); Kjorsvik, 117 Wn.2d at 110.
Washington makes no distinction between principal and accomplice in crime. One who aids in the commission of a theft is as guilty as if he had actually physically stolen the goods himself. State v. Brummett, 116 Wn. 407, 408, 199 P. 726 (1921).
Accomplice Liability. A person is an accomplice if, with knowledge that it will promote or facilitate the commission of a crime, he `aids or agrees to aid' another person in planning or committing it. RCW 9A.08.020(3)(a)(ii); State v. Rodriguez, 78 Wn. App. 769, 772, 898 P.2d 871 (1995).
Any person who participates in the commission of a crime is guilty of the crime and may be charged as a principal. State v. Silva-Baltazar, 125 Wn.2d 472, 480, 886 P.2d 138 (1994). It is not necessary to differentiate between principal and accomplice in the information, because there is no distinction between criminal accessories and principals. Rodriguez, 78 Wn. App. at 773. Charging a defendant under one theory adequately apprises him of his potential liability for the other. State v. Allen, 116 Wn. App. 454, 460, 66 P.3d 653 (2003).
Notice of Guilty Conduct. When the State accuses a defendant as an accomplice, the factual statement of guilty conduct in the information must match the proof offered at trial. State v. Gifford, 19 Wn. 464, 466-67, 53 P. 709 (1898). In Gifford, the court reversed a statutory rape conviction because the information accused the defendant of sexual acts. But the proof at trial was that he acted as procurer. The court held that the information must be such that an innocent person who prepares a complete defense to the conduct charged in the information (in Gifford, for example, an alibi) will not be blind-sided by the State's evidence at trial. Id. at 467.
Mr. Dunlavy contends the information here was insufficient to enable him to prepare an adequate defense. Specifically, he contends that relying on the information, he prepared a general denial defense: that Mr. Benzo stole the ammonia after Mr. Dunlavy left the scene, and that Mr. Dunlavy never had either actual or constructive possession of the contraband.
But, in the context of accomplice liability, Gifford has long since been limited to its facts. State v. Cooper, 26 Wn.2d 405, 174 P.2d 545 (1946). It is now well settled that `a verdict may be sustained upon evidence that the defendant participated in the commission of the crime charged, as an aider or abettor, even though he was not expressly accused of aiding and abetting and even though he was the only person charged in the information.' State v. Carothers, 84 Wn.2d 256, 260, 525 P.2d 731 (1974); State v. Frazier, 76 Wn.2d 373, 375-77, 456 P.2d 352 (1969); State v. Thompson, 60 Wn. App. 662, 666, 806 P.2d 1251 (1991). Circumstances such as those of Gifford create an unusual exception. Cooper, 26 Wn.2d at 413. In Cooper, the court found no variance between the information charging aggravated murder and the State's evidence at trial that Mr. Cooper hired the killer and was present on the death ride when the murder was done. Id. at 412.
Cases abound in which convictions have been affirmed on facts similar to those here. In State v. Malsogoff, the court found no fatal variance between the information charging the defendant as a principal to bank robbery when the proof offered at trial was that he participated by covering for the robbers. State v. Malsogoff, 88 Wn. 419, 153 P. 379 (1915). The court discusses and distinguishes Gifford. Id. at 422-23. Likewise, on facts very like those before us here, the defendant in State v. Brummett was not present in the room when a robbery took place but transported the principals to the scene and remained nearby to aid them in their escape. Brummett, 116 Wash. at 408. The information against Mr. Dunlavy was sufficient.
Theft. As to the theft, this case is like Cooper, Malsogoff and Brummett, not Gifford. The State proved that Mr. Dunlavy was physically present at the scene of the crime. He drove Mr. Benzo to the scene. He helped drag the propane tank up the hill. He remained on hand as lookout and getaway driver for Mr. Benzo and the stolen goods. And he did all of this with knowledge that a crime was in progress. This was sufficient to convict Mr. Dunlavy as a principal. The charge in the information was, therefore, sufficient notice that the State intended to prosecute him as a principal based on the assistance he provided and was ready to provide to Mr. Benzo to unlawfully obtain anhydrous ammonia and to possess it with the intent to manufacture methamphetamine.
Mr. Dunlavy's reliance on Mora is misplaced. In that case, two defendants were charged and convicted as principals of various charges stemming from their depletion of their mother's bank accounts. This court held that the evidence was sufficient to convict each defendant as a principal, not an accomplice, regardless of whose signature appeared on the individual transactions. Mora, 110 Wn. App. at 859. This case does not help Mr. Dunlavy.
Mr. Dunlavy was present at the scene and actively participated in the theft. He was therefore subject to prosecution and conviction as a principal. The proof at trial established his liability as a principal. Possession of Anhydrous Ammonia. As to the possession charge, the State presented no evidence that Mr. Dunlavy was in physical possession of the ammonia or exercised dominion and control over it, during or after its leaving the possession of its rightful owner. The only witness was Mr. Benzo who testified that Mr. Dunlavy wandered off before Mr. Benzo took possession of the gas. Therefore, Mr. Dunlavy could only be convicted of possession as an accomplice to Mr. Benzo's possession.
It is not dispositive whether one or another of the accomplices had possession for accomplice liability to possession. State v. McPherson, 111 Wn. App. 747, 760, 46 P.3d 284 (2002). Mr. Dunlavy does not dispute that the evidence established that he aided and abetted Mr. Benzo in possessing the ammonia. The question is whether the information charging Mr. Dunlavy with possession, with no reference to the facts underlying the charge, falls under the Gifford exception. Arguably, based on the information, Mr. Dunlavy could expect that the State would be required to prove that at some point he was in actual or constructive possession of anhydrous ammonia. And he knew the State could not do this.
Mr. Dunlavy does not attempt to distinguish the theft from the possession with respect to the sufficiency of the information. And neither do we. Mr. Dunlavy's conduct made him liable as a principal to the theft. The same conduct inevitably put his accomplice in possession of the ammonia. Therefore, charging Mr. Dunlavy as a principal to both the theft and the possession adequately apprised him of his liability as an accomplice to both. Rodriguez, 78 Wn. App. at 773-74. The information did not, therefore, violate due process by omitting specific reference to accomplice liability. Id. at 771.
Mr. Dunlavy cites to no authority for his proposition that an information must contain facts that would be sufficient, standing alone, to support a plea of guilty.
Same Criminal Conduct
Finally, Mr. Dunlavy contends that each of his current offenses had the same purpose, same victim, and occurred at the same time and place and therefore are the same criminal conduct in calculating the offender score for sentencing purposes.
We review the calculation of an offender score de novo. State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003).
Multiple current offenses encompassing the same criminal conduct count as a single crime for the purposes of calculating the defendant's offender score. RCW 9.94A.589(1)(a); Tili, 139 Wn.2d at 118. Two or more crimes that `require the same criminal intent, are committed at the same time and place, and involve the same victim' are the `same criminal conduct' for sentencing. RCW 9.94A.589(1)(a). All of the elements — criminal intent, time, place, and victim — must be the same. State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997).
The trial court rejected the State's contention that, to determine whether two crimes had the same criminal intent, we compare the statutory mental state elements. We agree. We look instead at the defendant's acts that constituted each offense and at the defendant's purpose in carrying out those acts. The purpose prong of same criminal conduct is met if the defendant's criminal objective was the same in carrying out the acts constituting each offense. State v. Vike, 125 Wn.2d 407, 411, 885 P.2d 824 (1994). Even offenses with identical statutory mental elements are not deemed `same criminal conduct' unless they are committed for the same purpose. State v. Haddock, 141 Wn.2d 103, 113, 3 P.3d 733 (2000). `This, in turn, can be measured in part by whether one crime furthered the other.' Vike, 125 Wn.2d at 411.
Here, the unlawful storage was committed in furtherance of the theft. The theft was committed in furtherance of the possession or vice versa. Therefore, the same purpose prong of RCW 9.94A.589(1)(a) is satisfied.
The theft and unlawful possession do not, however, have the same victim. Unlawful possession of a controlled substance victimizes the general public. Haddock, 141 Wn.2d at 111. But the victim of theft is the owner of the stolen property. Id. at 112.
Mr. Dunlavy offers no authority in support of his contentions (1) that the crime of `theft of ammonia' is a special class of crime, the victim of which is the public not the owner; or (2) that the value of stolen goods has any bearing on the identity of the victim of the theft. The fact that the value of the gas was no more than a few dollars does not change the fact that Western Farm Services suffered the loss.
The sentencing judge correctly ruled that theft and unlawful possession are not the same criminal conduct.
Additional Grounds for Review
Mr. Dunlavy contends that based on Mr. Benzo's threats that he and his fiancé would be hurt or killed unless he helped steal the ammonia, his trial counsel had prepared a duress defense. He contends that the court would not allow his witnesses to testify.
We have no record of any proceedings or ruling by the court on the admissibility of these defense witnesses. We cannot, therefore, address this issue.
CONCLUSION
We affirm the convictions for theft of ammonia, possession of pressurized ammonia with intent to manufacture methamphetamine, possession of methamphetamine, and criminal trespass; reverse the unlawful storage conviction; and remand for resentencing.
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, C.J. and SCHULTHEIS, J., concur.