Opinion
No. 23743-5-III.
May 4, 2006.
Appeal from a judgment of the Superior Court for Spokane County, No. 03-1-03728-2, Salvatore F. Cozza, J., entered January 7, 2005.
Counsel for Appellant(s), Susan Marie Gasch, Gasch Law Office, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Affirmed by unpublished opinion per Thompson, J. Pro Tem., concurred in by Sweeney, C.J., and Schultheis, J.
David Lloyd Meckelson was convicted of both possession and manufacture of a controlled substance (methamphetamine). On appeal, he asserts that his `landlord' lacked either actual or apparent authority to consent to the search of the basement where Mr. Meckelson stored some personal items. He also claims that there was insufficient evidence to support either conviction in this case. In his statement of additional grounds for review, Mr. Meckelson alleges that his right to self-representation was violated and that there was insufficient evidence to support the determination that the manufacture occurred `on or about' September 28, 2003.
FACTS
On September 28, 2003, David Meckelson was storing some of his personal belongings in the basement owned by Bradley Blount pursuant to an agreement between them. While there was no formal payment arrangement between Mr. Blount and Mr. Meckelson, Mr. Blount agreed to store some of Mr. Meckelson's property in his basement in exchange for some tires and a few pieces of furniture from Mr. Meckelson.
Mr. Blount had not entered the basement for a couple of years because a physical disability made it too difficult to go up or down the stairs. Mr. Blount testified that Mr. Meckelson would occasionally stay in the basement whenever he and his girl friend would fight. Mr. Blount characterized the nature of Mr. Meckelson's infrequent residence in the basement as, `just letting a friend stay over.' Report of Proceedings (RP) (Nov. 29, 2004) at 30. Mr. Meckelson had stayed in the basement eight or nine times, but had access to the house on other occasions when Mr. Blount was not present. On September 28, 2003, Mr. Blount permitted a female acquaintance, Jill, to go down to the basement in order to store some of her things. Prior to Jill entering the basement, Mr. Meckelson was the only person who had gone into the basement. Jill informed Mr. Blount that there was `somethinbad going on down there' and that there were a bunch of jars and other suspicious materials in the basement. RP (Nov. 29, 2004) at 25. Mr. Blount stated that he never personally smelled any strange chemical odors coming from the basement or saw Mr. Meckelson abuse drugs.
In response to Jill's statements, Mr. Blount called Jim Chulos, a friend who worked for the State Department of Ecology as a hazardous materials specialist. Part of Mr. Chulos's job involved cleaning up methamphetamine labs. Mr. Chulos found several glass containers with `bilayered liquids,' red-stained coffee filters, scales, tubes, and various chemicals that are all commonly employed in the process of making methamphetamine. RP (Nov. 30, 2004) at 82-84. The combination of these items led Mr. Chulos to conclude that there was a meth lab in Mr. Blount's basement. Mr. Chulos recommended that Mr. Blount call the police.
Mr. Meckelson entered Mr. Blount's home at some point during the exchange between Mr. Blount and Mr. Chulos. When Mr. Chulos went to his vehicle to phone the police, Mr. Meckelson fled from Mr. Blount's home.
Law enforcement arrived and searched the basement. During the search Mr. Meckelson's fingerprints were lifted from a bottle that had materials inside of it. The substance inside the bottle was determined to be pseudoephedrine hydrochloride, along with other chemicals common to over-the-counter cold medications, in a solution of methanol. This solution is the starting point of the manufacture of methamphetamine.
State forensic chemist Matthew Jorgenson refers to the bottle only as `Item A-1.' RP (Nov. 30, 2004) at 122-124. A review of the record indicates that `Item A-1' was the bottle that had Mr. Meckelson's fingerprint on it. RP (Nov. 30, 2004) at 112-13.
In addition to finding all of the elements required for the manufacture of methamphetamine, law enforcement officers also located a white container in the basement that tested positive for methamphetamine. Based on the lack of dust and the presence of items for all stages of manufacture, Officer Michael Bahr testified that he believed that the lab could not have been inactive for very long. However, none of the testimony offered by any law enforcement officers could pinpoint an exact time frame for when the actual manufacturing process occurred.
Mr. Meckelson was charged with unlawful possession of a controlled substance, methamphetamine, and with manufacture of a controlled substance, methamphetamine. Mr. Meckelson moved the trial court to exclude any evidence taken from the basement based upon his assertion that Mr. Blount lacked the authority (real or apparent) to consent to the search. The trial court denied this motion via memorandum opinion.
In doing so, the court reasoned that the `barter exchange' agreement between Mr. Meckelson and Mr. Blount did not operate to exclude Mr. Blount from entering the basement, and that the relationship between Mr. Meckelson and Mr. Blount lacked the qualities of a formal landlord-tenant arrangement. Clerk's Papers (CP) at 70-72. Based on this conclusion, the court held that Mr. Blount had the actual authority to consent to the search of his basement and denied Mr. Meckelson's motion to suppress. On the day before the trial, Mr. Meckelson requested that he be allowed to proceed pro se. The State opposed this request as untimely. The trial court denied Mr. Meckelson's request based on untimeliness and the fact there were `considerable questions' as to whether Mr. Meckelson had given sufficient consideration to this request for it to constitute a knowing and intelligent waiver of the right to counsel. RP (Nov. 29, 2004) at 10. In its `to convict' instruction, the trial court instructed the jury that they were required to find that Mr. Meckelson, `knew that the substance manufactured was a controlled substance, methamphetamine,' in order to convict him of the charge of manufacture of a controlled substance. CP at 51.
The jury convicted Mr. Meckelson of both possession and manufacture of a controlled substance, methamphetamine. Mr. Meckelson was sentenced to 68 months and one day. This appeal timely followed.
I. Consent to Search
The Fourth Amendment provides for the right of privacy and protections against unreasonable searches and seizures. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). All evidence that is obtained by an unlawful search is inadmissible in a state court. Id. Warrantless searches are considered per se unreasonable under the Fourth Amendment. State v. Thompson, 151 Wn.2d 793, 802, 92 P.3d 228 (2004). However, there are exceptions to the warrant requirement. Id. One of the exceptions to this requirement is consent to search. Id. at 803. In order to establish lawful consent to search, the State must establish that: (1) consent was voluntarily given, (2) the person who gave consent had the authority to do so, and (3) the search did not exceed the scope of the consent. Id. Here, Mr. Meckelson challenges the lawfulness of the search based on the assertion that Mr. Blount lacked the authority to consent to the search.
There can be `common authority' to consent to a search by law enforcement. Id. at 803. Common authority which permits third-party consent `rests . . . on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection.' State v. Mathe, 102 Wn.2d 537, 543, 688 P.2d 859 (1984). A co-inhabitant is one with equal control over the premises. Thompson, 151 Wn.2d at 805.
The consent of an individual with common authority over the premises is valid even if the other person is not on the premises and is therefore unable to consent. Thompson, 151 Wn.2d at 803; United States v. Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). A person has common authority to consent to a search if that party could permit the search in his own right and it is reasonable to find that the other party assumed the risk that the co-occupant could permit a search. Thompson, 151 Wn.2d at 803.
Here, there is some dispute as to whether the arrangement between Mr. Blount and Mr. Meckelson was a landlord-tenant or a host-guest relationship. If the relationship was a host-guest relationship, then Mr. Blount had the right of control over the basement where Mr. Meckelson stored his personal items and therefore could permit the search in his own right. See, e.g., State v. Koepke, 47 Wn. App. 897, 904, 738 P.2d 295 (1987). Factors in the determination of whether the relationship is a host-guest relationship rather than a landlord-tenant relationship include whether rent was paid, whether there were any sort of locks on the doors that would prevent others from accessing the premises, the length of time the defendant had stayed at the premises, whether other people were allowed to use the premises and/or store personal items there, and whether there was any indication as to when and how frequently the defendant would return. Id.
In this case, the arrangement between Mr. Blount and Mr. Meckelson was a host-guest relationship rather than a landlord-tenant relationship. There was no formal payment arrangement between Mr. Blount and Mr. Meckelson. At best, the two appeared to have a barter agreement in which Mr. Meckelson received the right to store some of his personal items at Mr. Blount's home in exchange for tires and furniture. Mr. Meckelson only stayed in the basement eight or nine times during the year 2003, and would only stay there when he and his girl friend were fighting. Mr. Blount allowed his friend, Jill, to use the basement in order to store some of her things. Finally, Mr. Blount stated that Mr. Meckelson would show up to stay in the basement only infrequently and with little or no notice beforehand. Each of these factors strongly indicates that the arrangement between Mr. Blount and Mr. Meckelson was a host-guest rather than a landlord-tenant relationship.
Because Mr. Blount was the owner of the premises, and Mr. Meckelson was merely a guest, Mr. Blount could permit the search of his basement in his own right. Also, given that Mr. Meckelson was a guest, it is reasonable to find that he assumed the risk that Mr. Blount would permit law enforcement officers to search the basement where Mr. Meckelson stored his personal items and sometimes stayed.
The result would be the same even if Mr. Meckelson and Mr. Blount had a landlord-tenant relationship. In determining whether a landlord can allow a search based on common authority the deciding factor is whether the defendant was in `undisputed sole possession of the premises.' Thompson, 151 Wn.2d at 804. See also State v. Christian, 95 Wn.2d 655, 659-60, 628 P.2d 806 (1981). A person has a subordinate interest, and therefore is not the sole possessor of the premises, when use of the premises is clearly conditioned on the permission of the owner. Thompson, 151 Wn.2d at 806. Courts also focus on whether the defendant is a current or a former tenant in analyzing whether a landlord has authority to consent to a search. Mathe, 102 Wn.2d at 542. This is because it is the right to possession of a premises that ordinarily determines who may consent to a search. See City of Seattle v. McCready, 124 Wn.2d 300, 305, 877 P.2d 686 (1994). Here, Mr. Meckelson was not in undisputed sole possession of the basement. Mr. Blount's permission for Jill to enter the basement in order to store her things underscores the fact that Mr. Blount did not consider the basement to be Mr. Meckelson's residence. It also demonstrates that the arrangement between Mr. Meckelson and Mr. Blount did not give Mr. Meckelson the right to sole possession of the basement.
Mr. Blount had actual authority to consent to the search of his basement. The trial court did not err in admitting evidence that was discovered as a result of that lawful search.
II. Sufficiency of the Evidence
Mr. Meckelson also contends that there was insufficient evidence to support his manufacturing conviction, since there was no evidence that he knew the substance being manufactured was methamphetamine or that he ever participated in any of the activities that constitute manufacturing a controlled substance. Mr. Meckelson contends that the State failed to prove he knew methamphetamine was a controlled substance (as articulated as an essential element in the trial court's instructions to the jury); that he engaged in any of the activities within the definition of manufacturing methamphetamine; and that he had constructive possession of methamphetamine.
Sufficiency of the evidence generally
Where a criminal defendant challenges the sufficiency of the evidence, we review the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence and all of the inferences that can reasonably be drawn therefrom. Id. Circumstantial and direct evidence are of equal weight upon review by an appellate court. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). A fact finder is permitted to draw inferences from the facts, so long as those inferences are rationally related to the proven fact. State v. Bencivenga, 137 Wn.2d 703, 707, 974 P.2d 832 (1999). If there is insufficient evidence to prove an element, reversal is required and retrial is `unequivocally prohibited.' State v. Hickman, 135 Wn.2d 97, 103, 954 P.2d 900 (1998) (quoting State v. Hardesty, 129 Wn.2d 303, 309, 915 P.2d 1080 (1996)).
Knowledge that methamphetamine is a controlled substance While knowledge that the substance at issue is a controlled substance is an element of some drug offenses (i.e., delivery of a controlled substance), it is not an element of the crime of possession of a controlled substance. See State v. Cleppe, 96 Wn.2d 373, 379-80, 635 P.2d 435 (1981); State v. Boyer, 91 Wn.2d 342, 344, 588 P.2d 1151 (1979). What is less clear is whether the element of knowledge is an essential element of the crime of unlawful manufacture of a controlled substance. See, e.g., State v. Wallway, 72 Wn. App. 407, 412, 865 P.2d 531 (1994) (assuming knowledge as an element of unlawful manufacture of a controlled substance for purposes of appeal); State v. Warnick, 121 Wn. App. 737, 742, 90 P.3d 1105 (2004) (discussing potential guilty knowledge requirement for offense of manufacture of a controlled substance).
However, regardless of whether there is a non-statutory essential element of guilty knowledge for the charge of manufacture of a controlled substance, the State was required to prove this element based on the trial court's instructions to the jury. Under the `law of the case' doctrine, elements in the trial court's `to convict' instruction that are not objected to become the law of the case that the State must prove beyond a reasonable doubt. Hickman, 135 Wn.2d at 99. On appeal, a defendant may challenge the sufficiency of the State's evidence to establish the added element. Id. at 102.
The trial court's `to convict' instruction stated that the jury was required to find that Mr. Meckelson, `knew that the substance manufactured was a controlled substance, methamphetamine,' in order to convict him of the crime of manufacture of a controlled substance. CP at 51. The trial court also defined `[a]cting knowingly or with knowledge,' to include acting intentionally. CP at 54.
Knowledge, like intent, is a fact that `resides exclusively within the mind of the criminal.' See Bencivenga, 137 Wn.2d at 710. However, such facts may be proved by `facts and circumstances more readily perceived by others.' Id.
Evidence of flight or an attempt to leave the premises to avoid an arrest may be evidence of `consciousness of guilt' from which a jury may be able to infer the defendant's knowledge of the unlawfulness of his actions. See, e.g., State v. Spruell, 57 Wn. App. 383, 387, 788 P.2d 21 (1990). Here, there was evidence that Mr. Meckelson fled Mr. Blount's home upon being confronted by Mr. Chulos.
Additionally, the State presented evidence that all of the stages for the manufacture of methamphetamine were present at the basement lab. Expert testimony indicated that the lab was assembled by someone who, `appeared to know exactly what they [were] doing.' RP (Nov. 30, 2004) at 201. A container in the basement tested positive for methamphetamine. These circumstances, viewed in the light most favorable to the State, provide sufficient evidence for a reasonable juror to conclude that Mr. Meckelson was acting knowingly, with the specific intent and purpose to manufacture methamphetamine.
Manufacturing a controlled substance
RCW 69.50.101(p) defines `manufacture' as, `the production, preparation, propagation, compounding, conversion, or processing of a controlled substance.' Manufacture of methamphetamine may be inferred from evidence of methamphetamine found in close proximity to precursor materials for the manufacture of methamphetamine. See, e.g., State v. Zunker, 112 Wn. App. 130, 139, 48 P.3d 344 (2002); State v. McPherson, 111 Wn. App. 747, 757-59, 46 P.3d 284 (2002).
Mr. Meckelson asserts that the only evidence in this case that he manufactured methamphetamine is his fingerprint on a container that held pseudoephedrine hydrochloride in a methanol solution. Where fingerprint evidence is the only evidence linking the defendant to the crime, the fingerprint evidence is sufficient if a reasonable trier of fact could infer from the surrounding circumstances that it could only have been impressed at the time the crime was committed. State v. Todd, 101 Wn. App. 945, 951, 6 P.3d 86 (2000) (overruled in part by State v. Rangel-Reyes, 119 Wn. App. 494, 81 P.3d 157 (2003)). However, if such a fingerprint is found on a moveable object, the State must show that the fingerprint could have been impressed only during the commission of the crime, and not earlier. Id.
Despite Mr. Meckelson's claims to the contrary, the fingerprint is not the only evidence connecting Mr. Meckelson to the methamphetamine lab in this case. It is undisputed that Mr. Meckelson had access to Mr. Blount's basement and that Mr. Blount did not go into the basement himself due to his disability. While Mr. Meckelson and Mr. Blount do not appear to have a standard landlord-tenant relationship, Mr. Meckelson's nearly unfettered access to the basement and storage of his things there indicate that Mr. Meckelson enjoyed a degree of dominion and control over the basement area. The search by law enforcement officers revealed that this basement contained a lab with all of the elements required for the manufacture of methamphetamine. The officers also discovered traces of finished methamphetamine in a container within the lab. In this context, a reasonable juror could conclude beyond a reasonable doubt that Mr. Meckelson was guilty of manufacturing methamphetamine.
Possession of a controlled substance
Possession of an unlawful item may be either actual or constructive. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). "Actual possession means that the goods are in the personal custody of the person charged with possession; whereas, constructive possession means that the goods are not in actual, physical possession, but that the person charged with possession has dominion and control over the goods." Id. (quoting State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969)).
Since Mr. Meckelson was not in actual possession of the white container that tested positive for traces of methamphetamine, the State was required to prove that he was in constructive possession.
To establish constructive possession, courts examine the totality of the circumstances to determine whether there is substantial evidence supporting the inference that the defendant had dominion and control over the unlawful items. State v. Porter, 58 Wn. App. 57, 60, 791 P.2d 905 (1990). As previously noted, Mr. Meckelson was the only person to enter the basement prior to the discovery of the methamphetamine lab. As such, he had dominion and control over the premises. This evidence, in combination with the evidence of Mr. Meckelson's fingerprint on one of the items in this lab, supports the inference that Mr. Meckelson exercised the degree of dominion and control necessary to support the charge of possession of methamphetamine.
There was sufficient evidence to support Mr. Meckelson's convictions for both possession and manufacture of a controlled substance. Mr. Meckelson asserts additional grounds for review.
III. Right to Self-Representation
Mr. Meckelson challenges the trial court's refusal to allow him to represent himself at trial. We review the denial of a defendant's request to proceed pro se for abuse of discretion. State v. Vermillion, 112 Wn. App. 844, 855, 51 P.3d 188 (2002). A trial court abuses its discretion if its decision is manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons. Id.
The Sixth Amendment allows a criminal defendant to waive the right to the assistance of counsel and to personally make his or her own defense. Faretta v. California, 422 U.S. 806, 819-21, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The right to self-representation is also guaranteed in the state constitution. See Wash. Const. art. I, sec. 22; Vermillion, 112 Wn. App. at 850. In order to exercise this right, the defendant must affirmatively request to proceed pro se, and the trial court is under no obligation to inform a defendant of the right to self-representation. State v. Fritz, 21 Wn. App. 354, 359, 585 P.2d 173 (1978). An unjustified denial of the right to self-representation, once requested by the defendant, requires reversal without any showing of prejudice. State v. Woods, 143 Wn.2d 561, 585-86, 23 P.3d 1046 (2001); State v. Breedlove, 79 Wn. App. 101, 110, 900 P.2d 586 (1995).
The Sixth Amendment right to self-representation is made binding on the states through the Fourteenth Amendment. See State v. Luvene, 127 Wn.2d 690, 698, 903 P.2d 960 (1995).
The right to self-representation, however, is not absolute and may be `limited in the interest of both fairness and efficient judicial administration.' State v. DeWeese, 117 Wn.2d 369, 375, 816 P.2d 1 (1991). The waiver of the right to counsel must be unequivocal, knowing and intelligent, and made in a timely fashion. Id. at 376-77. Courts are required to "indulge in every reasonable presumption" against finding a waiver of the right to counsel. In re Det. of Turay, 139 Wn.2d 379, 396, 986 P.2d 790 (1999) (quoting Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977)).
A motion to proceed pro se must be timely or the right to self-representation is relinquished and the issue of the defendant's representation is left to the discretion of the trial court. State v. Stenson, 132 Wn.2d 668, 738, 940 P.2d 1239 (1997). In determining if a request to proceed pro se is timely, the trial court generally must determine whether the request is made for the purpose of delay or for tactical advantage, and whether granting the request would hinder the efficient administration of justice. Id.
Here, Mr. Meckelson made a pro se request on the eve of trial. As noted by the trial court, the request was, `literally five minutes before the jury panel [was] to be brought up for voir dire.' RP (Nov. 29, 2004) at 10. The trial court also found that the timing of the request was, `as close to the end of . . . being untimely as I can imagine.' RP (Nov. 29, 2004) at 11.
Given that Mr. Meckelson made his request to represent himself was untimely, whether to allow the request became discretionary. The trial court did not abuse that discretion when it denied Mr. Meckelson's request to represent himself at trial.
IV. `On or about' Jury Instruction
As part of the trial court's `to convict' instructions, it instructed the jury that they were required to find that Mr. Meckelson manufactured a controlled substance, `on or about the 28th day of September, 2003.' CP at 51. Mr. Meckelson contends that the jury was required to find that the manufacture occurred on the exact date of September 28, 2003 based on this instruction.
If time is not a material element of the crime charged, `the language `on or about' is sufficient to admit proof of the act at any time within the statute of limitations, so long as there is no defense of alibi.' State v. Hayes, 81 Wn. App. 425, 432, 914 P.2d 788 (1996). Mr. Meckelson did not assert a defense of true alibi at trial. Further, time is not an element of the offense of manufacturing a controlled substance. See RCW 69.50.101(p), .401. Therefore, the State was required to show only that the manufacture occurred within the statute of limitation period. See Hayes, 81 Wn. App. at 433.
The charge of manufacture of a controlled substance is a felony. RCW 69.50.401(2). The relevant statute of limitations period for this offense is three years from the date of trial. RCW 9A.04.080(1)(h). To be within the limitations period, this required the manufacture to have occurred on or after November 29, 2001.
Mr. Chulos testified that the methamphetamine lab found in Mr. Blount's basement had been operating recently when he first observed it on September 28, 2003. This conclusion was based in part on the absence of any dust on any of the materials in the lab. While he could not state exactly when the lab had been operating, Mr. Chulos expressed the opinion that the lab had been active within one or two months from the date that it was discovered. Officer Bahr likewise concluded that the lab could not have been inactive for very long based on the fact that the lab had equipment and materials present for all stages of the manufacture and the absence of any dust on any of the equipment.
The evidence in this case indicates that the lab was operating within a relatively short time of its discovery on September 28, 2003. This is well within the three-year statute of limitations period. As such, there was sufficient evidence to support a finding that Mr. Meckelson had manufactured a controlled substance `on or about' September 28, 2003.
We affirm.
A majority of the panel has determined 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.
SWEENEY, C.J., SCHULTHEIS, J., Concur.
Judge Philip J. Thompson is serving as pro tempore of the Court of Appeals pursuant to RCW 2.06.150.