Opinion
No. 28498-7-II consolidated with 28499-5-II.
Filed: September 30, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 01-1-01990-6. Judgment or order under review. Date filed: 03/01/2002.
Counsel for Appellant(s), Patricia Anne Pethick, Attorney at Law, P.O. Box 7269, Tacoma, WA 98406-0269.
Thomas Edward Doyle, Attorney at Law, P.O. Box 510, Hansville, WA 98340-0510.
Counsel for Respondent(s), Steven Curtis Sherman, Thurston County Pros Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6045.
Walter Reichel and Mark Tremblay appeal their convictions for manufacturing methamphetamine. We affirm.
In December 2001, Reichel owned property about 9 miles from Yelm. Reichel lived in a mobile home on the property. He also had outbuildings, other mobile homes, and various vehicles.
At 3 p.m. on December 10, 2001, officers executed a search warrant for the property. They were looking for a suspected methamphetamine lab. They found a bulldozer, a Chevrolet, and several people.
The bulldozer was parked about 25-30 feet from Reichel's residence. On its seat was a tank that previously had been used to store anhydrous ammonia.
The Chevrolet was also parked on the premises. Looking into it, Deputy DuPrey saw a glass jar decorated with Christmas trees that appeared to contain manufacturing residue. The officers impounded it, obtained a second warrant, and later seized the jar.
The people included Reichel and Mark Tremblay. They were standing together near a shed. When the officers searched Reichel, they found nothing. When they searched Tremblay, they found a 'light brown powdery substance' in a baggie in his pocket. The baggie contained pseudoephedrine and traces of antihistamine consistent with having extracted pseudoephedrine from cold or allergy tablets. Tremblay claimed possession of the Chevrolet, saying it belonged to his girlfriend.
Report of Proceedings (RP) at 157.
The people also included Heather Reichel and a two-year-old child.
They were inside Reichel's mobile home. Officers did not find evidence of a meth lab in that mobile home, but they did find evidence near a shop and lean-to which, according to various witnesses, was between 50 and 150 feet away. Reichel and Tremblay had been standing next to the shed and lean-to when the officers had first observed them, and the officers had seen that the ground was 'freshly dug up.' The officers then dug up the area themselves, finding mason jars, a thermos wrapped in brown paper, coffee cups, and filter paper.
RP at 95, 100.
On December 13, 2001, the State charged Tremblay and Reichel with unlawful manufacture of methamphetamine, committed when a person under the age of 18 was present. The State alleged that Tremblay and Reichel were accomplices as well as principals.
A trial was held from February 19-21, 2002. Kim Hefton, a forensic scientist, described the alkali metal/anhydrous ammonia method of manufacturing methamphetamine. The first step is to extract pseudoephedrine from cold or allergy pills, which can require the use of filter paper. The next step is to mix the pseudoephedrine with anhydrous ammonia and alkali metal, 'instantaneously form{ing}' a sludge-like material. The remaining steps are to add solvents, 'salt . . . out' the material, 'bubble {the} gas through' a tube, and filter out a whitish powder that is the finished product.
RP at 182.
RP at 183.
Hefton testified that the evidence from Reichel's property suggested the alkali metal/anhydrous ammonia method of manufacturing methamphetamine.
The mason jars found in the ground contained methamphetamine and a byproduct of the alkali metal/anhydrous ammonia method of methamphetamine manufacturing. Other mason jars contained various solvents and waste material. The thermos contained methamphetamine and a manufacturing byproduct. The tank manifested corrosion and discoloration of the type caused by anhydrous ammonia. The Christmas tree jar from the Chevrolet contained residue consistent with the extraction of pseudoephedrine from cold pills. The baggie found in Tremblay's pocket contained 10. grams of pseudoephedrine and traces of antihistamine consistent with the extraction step of manufacturing methamphetamine. But the filter paper and glass vial had tested negatively for controlled substances.
RP at 257.
Reichel testified that he had not manufactured methamphetamine and that he had not buried the thermos or the mason jars near the lean-to. He and Tremblay had recently found an abandoned truck along the side of the road, from which Tremblay had taken the Christmas tree jar. He had recently evicted a tenant for manufacturing methamphetamine, and he surmised that she must have planted the evidence before leaving.
Tremblay testified that he had not manufactured any methamphetamine.
When he had taken the jar from an abandoned truck he liked it because it was 'hand painted with Christmas trees on {it}'5 he had mistakenly thought the white residue inside of it was dried latex paint. He has an aquarium at home, and he had believed the brown substance in his pocket was fish food.
At the end of the evidence, Tremblay proposed two lesser included offense instructions. The first would have described possession of a controlled substance with intent to manufacture, in violation of RCW 69.50.401(a). The second would have described possession of pseudoephedrine with intent to manufacture methamphetamine, in violation of RCW 69.50.440. He proposed the first but not the second in writing. The trial court rejected both.
RCW 69.50.401(a) ('it is unlawful for any person to . . . possess with intent to manufacture . . . a controlled substance').
RCW 69.50.440 ('It is unlawful for any person to possess ephedrine or . . . pseudoephedrine . . . with intent to manufacture methamphetamine.').
At the end of the evidence, the court instructed the jury on how to determine whether a person under 18 had been on the premises at the time of manufacture. The court stated in Instruction 16:
If you find the defendant guilty of manufacturing a controlled substance, it will then be your duty to determine whether or not the manufacture of the controlled substance took place when a person under the age of eighteen was present in or upon the premises of manufacture. You will be furnished with a special verdict form for this purpose.
If you find the defendant not guilty of manufacturing a controlled substance do not use the special verdict form. If you find the defendant guilty, you will complete the special verdict form. Since this is a criminal case, all twelve of you must agree on the answer to the special verdict. If you find that the State has proved beyond a reasonable doubt that the defendant manufactured a controlled substance, or was an accomplice to the manufacture of a controlled substance, when a person under the age of eighteen was present in or upon the premises of manufacture, it will be your duty to answer the special verdict 'yes.'
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt that the defendant manufactured a controlled substance, or was an accomplice to the manufacture of a controlled substance, when a person under the age of eighteen was present in or upon the premises of manufacture, it will be your duty to answer the special verdict form 'no.'
Reichel Clerk's Papers (CP) at 20; Tremblay CP at 46.
The jury found Tremblay and Reichel guilty of unlawful manufacture, and the court sentenced each to 45 months total confinement and 45 months community custody. The court enhanced each sentence because a person younger than 18 had been on Reichel's premises.
The issues on appeal are whether the trial court erred by not giving a lesser included offense instruction; whether the evidence is sufficient to support both convictions; whether each sentence enhancement was proper; and whether each defendant received effective assistance from counsel. We address each in turn.
I.
Tremblay contends on appeal that the trial court erred by not giving his proposed lesser included offense instruction on possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine. He may not have preserved this proposal for review, as he failed to submit it in writing. The trial court seems to have ruled on it, however, so we will review it here.
CrR 6.15(a) ('Proposed jury instructions shall be served and filed').
A trial court must give a lesser included offense instruction only if two prongs are met. One is legal, the other factual. The legal prong requires that each element of the lesser offense be a necessary element of the offense charged. The record in this case does not show whether it is possible or impossible to manufacture methamphetamine without using, and thus without possessing, ephedrine or pseudoephedrine. Thus, the record does not show that each element required by the proposed lesser offense is included within the charged offense, and we cannot hold that the legal prong has been met.
State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000); State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978); State v. Baggett, 103 Wn. App. 564, 569, 13 P.3d 659 (2000), review denied, 143 Wn.2d 1011 (2001).
Fernandez-Medina, 141 Wn.2d at 454.
Nor do we have any idea whether this is possible or impossible.
We note in passing that Tremblay does not, and could not, predicate error on the trial court's refusal to instruct on possession of a controlled substance with intent to manufacture a controlled substance. The record contains no evidence that Tremblay possessed a controlled substance, so it will not support an inference that Tremblay committed the offense of possession with intent to manufacture.
II.
Each defendant claims that the evidence is insufficient to support his conviction. Evidence is sufficient if a rational trier of fact taking it in the light most favorable to the State could find beyond a reasonable doubt each element of the crime. Circumstantial evidence is no less reliable than direct evidence, and facts may be inferred where 'plainly indicated as a matter of logical probability.'
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
The evidence is sufficient to support Tremblay's conviction. The police found numerous items associated with the manufacture of methamphetamine on Reichel's premises. Tremblay was not just present on the premises; he had precursors in his pocket and residue in his car. He offered implausible explanations for both, and a jury could rationally conclude he was lying about both. If a trier of fact chose to take this evidence in the light most favorable to the State, it could rationally find that Tremblay was participating in, or knowingly aiding or encouraging, the manufacture of methamphetamine.
The evidence is sufficient to support Reichel's conviction. He owned and possessed property on which the police found multiple methamphetamine precursors, methamphetamine manufacturing waste, and other manufacturing components. He owned or possessed the bulldozer on which an empty tank used to store anhydrous ammonia was found. Within 50-150 feet of his house, someone had recently buried a mason jar containing methamphetamine and byproduct of methamphetamine manufacture, a mason jar containing solvents, and a thermos containing a waste product of methamphetamine manufacture. The burial was apparent even to the police, due to disturbed earth. Viewing this evidence in the light most favorable to the State, a trier of fact could rationally find that Reichel was manufacturing methamphetamine.
III.
Citing State v. Schelin, which involved a deadly-weapon enhancement rather than a presence-of-minor enhancement, each defendant argues that his sentence was improperly increased by the presence of a minor on the premises. The defendants reason that the law requires a nexus between a minor and the manufacture of a controlled substance, and that the requirement of such a nexus was erroneously omitted from Instruction 16.
147 Wn.2d 562, 55 P.3d 632 (2002).
The State responds that a nexus was not required, or, if it was, that Instruction 16 included it.
Instruction 16 told the jury 'to determine whether or not the manufacture of the controlled substance took place when a person under the age of eighteen was present in or upon the premises of manufacture.' To find that a minor 'was present in or upon the premises of manufacture' is also to find a nexus between the minor and the manufacture, at least with the premises in issue here. Even assuming that Schelin should be extended from deadly weapons to the presence of minors, the present argument fails.
IV.
Tremblay argues that his counsel rendered ineffective assistance by failing to file with the clerk his lesser included offense instruction. Each defendant alleges that his trial counsel rendered ineffective assistance by failing to object to Instruction 16's omission of a nexus requirement. To prove ineffective assistance, a defendant must show deficient performance and resulting prejudice.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995); State v. McKinnon, 110 Wn. App. 1, 5, 38 P.3d 1015 (2001).
Tremblay has not shown that his counsel rendered ineffective assistance by not filing a proposed lesser included offense instruction with the clerk. After reviewing the proposed instruction, we have concluded that the trial court would not have been obligated to give it if Tremblay had properly proposed it. Even if the failure to file was deficient performance, it did not cause prejudice.
Neither defendant has proven ineffective assistance by not objecting to Instruction 16. Instruction 16 was adequate under the circumstances here, and not objecting to it was neither deficient or prejudicial.
Affirmed.
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.
BRIDGEWATER, J. and QUINN-BRINTNALL, A.C.J., concur.