Opinion
No. 33530-1-II.
November 7, 2006.
Appeal from a judgment of the Superior Court for Thurston County, No. 01-1-01290-1, Chris Wickham, J., entered June 10, 2005.
Counsel for Appellant(s), Patricia Anne Pethick, Attorney at Law, Po Box 7269, Tacoma, WA, 98406-0269.
Thomas Edward Doyle, Attorney at Law, Po Box 510, Hansville, WA, 98340-0510.
Counsel for Respondent(s), James C. Powers, Thurston County Prosecuting Attorney Ofc, 2000 Lakeridge Dr Sw, Olympia, WA, 98502-6001.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Bridgewater and Hunt, JJ.
Patricia Joann Wrzesien appeals her conviction of unlawful manufacture of methamphetamine, arguing that the trial court should have granted her motion for mistrial after the prosecutor, unknown to defense counsel, projected the word "guilty" on the wall during the beginning of defense counsel's closing argument. She also argues that the State presented insufficient evidence to support her conviction, that the trial court erred in sentencing her under former RCW 69.50.401(a)(1)(ii) (2000) when the jury never identified the particular substance underlying the conviction, and that her counsel was ineffective in failing to object to the trial court sentencing her under former RCW 69.50.401(a)(1)(ii). Finding no reversible error, we affirm.
FACTS
Law enforcement officers discovered a suspected methamphetamine manufacturing site on a property containing a mobile home, a garage, a camper, a tent, and a cabin. Patricia Wrzesien, who rented the property from George Damitio, lived in the cabin; her sister, Sandra Gundy, lived on the property without Damitio's permission. Wrzesien was not on the property when the officers initially entered the property. The officers obtained a search warrant for the buildings and vehicles on the property, but decided to wait until the next day when it was day light to serve it. Officer Dan Saboe, who secured the property overnight, had orders to arrest Wrzesien if she returned.
That evening, Officer Saboe saw a vehicle pull into the driveway to the adjacent property. The driver stopped the car and turned the car's lights off. Because two people were in the car, Officer Saboe called for backup. When Deputy DuPrey arrived, he and Officer Saboe approached the car. Officer Saboe found Wrzesien in the driver's seat and Frank Anderson in the front passenger seat. As Officer Saboe ordered Wrzesien out of the car and placed her under arrest, he noticed a strong chemical smell coming from the vehicle. The officers released Anderson.
While searching the car incident to Wrzesien's arrest, Officer Saboe discovered a backpack behind the driver's seat and noticed a "strong chemical smell coming from that area." Report of Proceedings (May 3, 2005) at 39. Believing that he had discovered a mobile methamphetamine lab, Officer Saboe stopped the search and obtained a telephonic search warrant for the car.
Officer Aaron Jelcick searched the car's rear hatchback and found some tubing, plastic bags, and a two-and-a-half-gallon bucket that contained three glass jars. The three glass jars contained methamphetamine in various stages of production. Although Anderson said nothing when the officers arrested Wrzesien, at trial he claimed that he had placed the bucket and jars in the car without Wrzesien's knowledge.
Officer Jelcick also found a metal valve connected to some plastic tubing and a bottle of muriatic acid, which is commonly used in methamphetamine manufacturing operations. Inside the backpack, Officer Jelcick found several valves, two bottles of Heet, and several boxes of pseudoephedrine tablets, many of which had been removed from the blister packets and ground into powder. Officer Jelcick testified that each of these items is associated with manufacturing methamphetamine. Anderson denied knowing about these additional items. Officer Jelcick also found mail addressed to Wrzesien inside the car.
Heet is the brand name of an ether-containing, water-removing agent used for removing water from vehicle gasoline tanks. Officer Jelcick and state patrol forensic scientist Jane Boysen testified that it is commonly used in methamphetamine production.
The police officers could not identify the registered owner of the car, but they found a document signed by Wrzesien's sister releasing her interest in the vehicle. The document stated that Wrzesien's sister had given it to an undisclosed person. Wrzesien claimed that the car belonged to her sister.
The officers also searched the buildings and vehicles on the property. The cabin, the garage, and the mobile home were roughly equidistant from each other and surrounded an open central driveway. The tent was near the mobile home. Inside the tent, officers found filter papers with white crystalline residue. In the cabin, they found hypodermic needles and several documents belonging to Wrzesien. In the mobile home, officers found a methamphetamine smoking device, syringes, a piece of mail with Wrzesien's name on it, a triple-beam scale, denatured alcohol, and plastic baggies, one of which contained methamphetamine.
In the garage, police found a funnel and mason jars. Thurston County Sheriff's Deputy Ben Elkins testified that those objects are useful in manufacturing methamphetamine. The officers also found sodium silicate, plastic tubing, a propane tank containing anhydrous ammonia, Red Devil lye, and a gas mask, all commonly associated with methamphetamine labs. The officers found traces of methamphetamine on a food dehydrator and two containers of ammonia. State patrol forensic scientist Jane Boysen testified that someone could use a food dehydrator as a heat source in the final stage of manufacturing methamphetamine.
The State charged Wrzesien with one count of unlawful manufacture of a controlled substance as a principle or an accomplice (count I), and one count of unlawful possession of a controlled substance (count II). Count I carried a sentence enhancement due to the manufacture site's alleged proximity to a school bus route.
The trial court denied Wrzesien's motions to suppress the evidence.
At the beginning of defense counsel's closing argument, the prosecutor began preparing new Power Point slides for his rebuttal closing argument. The prosecutor had not turned off the projector and projected the word "guilty" on the courtroom screen. Defense counsel was not aware of the projection and although the court saw the projection, it did not advise defense counsel because the word appeared on the wall for less than 15 seconds.
The jury convicted Wrzesien of the unlawful manufacture charge but did not return a special verdict finding that she manufactured a controlled substance within 1,000 feet of a school bus stop. The court did not submit the possession charge to the jury.
Wrzesien moved to arrest judgment due to the prosecutor's alleged misconduct in projecting the word "guilty" on the wall during defense counsel's closing argument. In his declaration, the prosecutor admitted that he displayed the word "guilty" on the courtroom screen for "a portion of the 30 seconds during which the monitor display was up." Clerk's Papers (CP) at 174. He maintained that he inadvertently displayed "guilty" for less than a minute, not the several minutes claimed in several defense declarations. The State also moved for a protective order preventing Wrzesien's trial counsel from contacting the jurors. The court granted that motion.
Before receiving the verdict, defense counsel moved for a mistrial based on the incident. The trial court would not entertain the motion because the attorney taking the verdict did not represent Wrzesien during the trial, but the court subsequently allowed Wrzesien's trial counsel to file the motion. Wrzesien's trial counsel later filed a motion for arrest of judgment alleging that prosecutorial misconduct and a violation of the appearance of fairness doctrine denied Wrzesien a fair trial.
The trial court recalled that it "looked over as soon as it flashed on the screen . . . [and] as soon as [he] looked at the screen, [the prosecutor] observed [the judge] looking at him and immediately dealt with it." RP (June 10, 2005) at 15. According to the court, the word was on the screen "less than 15 seconds total . . . and 15 seconds is probably very generous." RP (June 10, 2005) at 15. The court denied Wrzesien's motion for arrest of judgment, ruling that the prosecutor inadvertently projected the image and that the incident did not unfairly prejudice Wrzesien.
The principal issues on appeal center on the prosecutor's projection of "guilty" on the courtroom screen during defense counsel's closing argument; whether the trial court erred in preventing the defense from questioning the jurors about the effect of the incident on their decisions; whether the court commented on its view of the evidence when it remained silent when the incident occurred; whether the court's rulings on these issues showed bias; and whether this misconduct warranted a new trial. In addition to these issues, Wrzesien challenges the sufficiency of the evidence supporting her conviction.
ANALYSIS I. Wrzesien's Motion for Mistrial 1. Standard of Review
We will reverse a trial court's ruling on a motion for mistrial only if the court abuses its discretion. State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000) (citing State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996)). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable reasons or grounds. State v. Borboa, 157 Wn.2d 108, 121, 135 P.3d 469 (2006) (quoting State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003)). A trial court should grant a mistrial only when the defendant has suffered prejudice such that nothing short of a new trial will ensure the defendant a fair trial. State v. Rodriguez, 146 Wn.2d 260, 270, 45 P.3d 541 (2002) (quoting State v. Mak, 105 Wn.2d 692, 701, 718 P.2d 407, (1986), abrogated by State v. Hill, 123 Wn.2d 641, 645, 870 P.2d 313 (1994)).
2. Protective Order Preventing Wrzesien from Contacting the Jury
Wrzesien argues that the trial court's order preventing her from interviewing the jurors kept her from substantiating the prosecutor's misconduct and insulated the trial court from evidence regarding its failure to halt the proceedings and inform her counsel of what the State had done.
Courts generally disfavor post-verdict interviewing of jurors. State v. Finch, 137 Wn.2d 792, 866, 975 P.2d 967 (1999) (citations omitted). Wrzesien cites Finch for the proposition that "the denial of leave to interview jurors is grounds for reversal" where the defendant presents specific "evidence of misconduct as shown by testimony or affidavit." Br. of Appellant at 11 (citing Finch, 137 Wn.2d at 867). But the Finch case dealt with juror misconduct, not prosecutorial misconduct. Finch, 137 Wn.2d at 867-68. And Wrzesien does not allege that any juror misconduct took place during her trial; rather, she claims that the prosecutor committed prosecutorial misconduct. Finch does not help Wrzesien.
Wrzesien also argues that the court should have allowed her counsel to contact the jurors to "determine whether they had seen [the word "guilty" projected on the screen] and to ascertain whether they had been distracted [or] influenced by the State's actions." Br. of Appellant at 12. Generally, the jurors' beliefs about the evidence and the credibility of witnesses inhere in the jury's thought process in arriving at its verdict. State v. Rooth, 129 Wn. App. 761, 771-72, 121 P.3d 755 (2005) (citing Ayers v. Johnson Johnson Baby Prods. Co., 117 Wn.2d 747, 768-69, 818 P.2d 1337 (1991)). And a party may not impeach the jurors' verdict with evidence of their mental processes. Rooth, 129 Wn. App. at 772 (citing Ayers, 117 Wn.2d at 769).
We question whether the rule applies here, however, where counsel sought to inquire not about the jurors deliberative process but about an incident of misconduct that occurred in court. See O'Brien v. Seattle, 52 Wn.2d 543, 547, 327 P.2d 433 (1958). Certainly, if the parties had disputed whether the flashing occurred or the length of the flashing, the court should have allowed counsel to interview the jurors about these facts. But Wrzesien's trial counsel admitted, during the argument on the protective order, that "after [the prosecutor] . . . admitted that the Power Point projector had been turned on, at that point [he] had an admission from [the prosecutor] so [he] did not need to interview the jury at any rate." RP (June 10, 2005) at 13. Counsel was obviously satisfied that, for purposes of his argument, he had proved the incident. And his argument focused not on the jurors' reactions to the flashing but on whether the prosecutor acted purposely or accidentally, representing to the court that the prosecutor had committed the same misconduct in another case. Thus, in his concession, counsel signaled that he was no longer interested in exploring the jurors' reactions to the flashing. Given this concession, we conclude that Wrzesien waived any error stemming from the court's protective order. See e.g., State v. Smith, 82 Wn. App. 153, 162-63, 916 P.2d 960 (1996) (where defense counsel conceded that the State had proved an aggravating circumstance and that the court could consider that fact in sentencing, counsel waived argument on appeal that the court improperly relied on that aggravating factor) and State v. Belgarde, 62 Wn. App. 684, 694-95, 815 P.2d 812 (1991), aff'd by State v. Belgarde, 119 Wn.2d 711, 837 P.2d 599 (1992) (where defendant allowed his attorney to testify for the limited purpose of impeaching a witness's testimony, he could not argue that the trial court erred in permitting the attorney to testify without withdrawing from the case); see also State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (a party cannot set up an error at trial and then complain of it on appeal).
Counsel said he learned this from talking with another defense counsel. But counsel did not call the other defense counsel to testify or offer the other counsel's declaration. CrR 7.8(c)(1) (motions for vacation of judgment must be supported by affidavits setting forth a concise statement of the facts or errors upon which the motion is based). And as the prosecutor pointed out, counsel did not even allege that the same prosecutor was involved in the other case.
3. Did the Trial Court Comment on the Evidence?
Wrzesien argues that the trial court "unconstitutionally commented on the evidence" when it failed to (1) stop the proceedings and tell defense counsel that the prosecutor had projected the word "guilty" on the wall and (2) reprimand the State or instruct the jury to disregard the prosecutor's action. Br. of Appellant at 13-14.
Article IV, section 16 of the Washington Constitution provides: "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." This constitutional provision prohibits judges from expressing to the jury their personal attitudes regarding the merits of the case. State v. Foster, 91 Wn.2d 466, 481, 589 P.2d 789 (1979) (citing State v. Cerny, 78 Wn.2d 845, 480 P.2d 199 (1971)). The touchstone of error in a trial court's comment on the evidence is whether the court communicates to the jury its feeling as to the truth of the evidence. State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995) (citing State v. Trickel, 16 Wn. App. 18, 25, 553 P.2d 139 (1976)).
In ruling on Wrzesien's motion for arrest of judgment, the court accepted that the prosecutor unintentionally projected the word on the wall and stated that it did not believe the projection significantly distracted the jury. The court said that if it believed the prosecutor intentionally projected the word "guilty" on the wall, it "would have dealt with it at the time." RP (June 10, 2005) at 16. Nothing in the record shows that the trial court expressed or communicated its feeling about the incident to the jury. And Wrzesien fails to cite any authority supporting her argument that the trial court's silence constituted an impermissible comment on the evidence. The trial court did not violate article IV, section 16. See Lane, 125 Wn.2d at 838 (the touchstone of error is communication of the trial court's feeling regarding the truth value of evidence).
4. Appearance of Fairness Doctrine
Wrzesien argues that the trial court violated the appearance of fairness doctrine when it (1) failed to stop the proceedings and inform defense counsel that the prosecutor had flashed "guilty" on the wall, (2) ordered Wrzesien's counsel to file a formal motion for mistrial, (3) granted the State's request for a protective order prohibiting defense counsel from questioning the jury, (4) found that the State had acted unintentionally despite defense counsel's declaration that the prosecutor had done the same thing in the past, and (5) "exonerat[ed] itself by stating that the word `guilty'" had been on the wall for only 15 seconds at the beginning of defense counsel's closing argument. Br. of Appellant at 15-16.
A defendant claiming a violation of the appearance of fairness doctrine must make a threshold showing of the trial court's actual or potential bias. State v. Post, 118 Wn.2d 596, 619, 826 P.2d 172, 837 P.2d 599 (1992). We presume that a trial judge properly discharged his official duties without bias or prejudice. In re Pers. Restraint of Davis, 152 Wn.2d 647, 692, 101 P.3d 1 (2004) (citing Kay Corp. v. Anderson, 72 Wn.2d 879, 885, 436 P.2d 459 (1967)). The party seeking to overcome that presumption must provide specific facts supporting an allegation of bias. Davis, 152 Wn.2d at 692 (citing Post, 118 Wn.2d at 619 n. 9). And "[j]udicial rulings alone almost never constitute a valid showing of bias." Davis, 152 Wn.2d at 692 (citing Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994)).
Wrzesien's assertion that the trial court would not entertain a motion for mistrial but "made [her] counsel file a formal motion for a mistrial" paints an incomplete picture of the court's conduct. Br. of Appellant at 15. In denying Wrzesien's motion, the court explained that it had approved a stand-in counsel to represent Wrzesien for the sole purpose of receiving the verdict. When stand-in counsel attempted to move for mistrial, the court refused to allow the motion. The court explained that Wrzesien's trial counsel should make the motion because "it seemed inappropriate to . . . allow a stand-in counsel to argue a motion that was important for the defense without [Wrzesien's trial counsel] present and [to allow] someone [to make the motion] who[,] as far as this Court knew[,] had not been present during the entire trial." RP (June 10, 2005) at 17. Contrary to Wrzesien's assertion, the court's decision shows no actual or potential bias; rather, it evidences the court's attempt to ensure that Wrzesien had the best possible representation.
And we are not persuaded by Wrzesien's argument that the court's protective order and its finding that the prosecutor displayed "guilty" for 15 seconds demonstrate that the court was simply protecting itself. The State supported its motion for a protective order by citing the general rule that the jurors' deliberative process is protected. Defense counsel did not cite O'Brien, 52 Wn.2d at 547, or argue that misconduct outside the jurors' deliberations is not protected. In fact, counsel said that he no longer needed to interview the jurors because the prosecutor had conceded misconduct. Given defense counsel's failure to challenge the State's legal basis for the protective order, and his failure to argue that the facts surrounding the display were critical to his motion, we cannot say that the court's ruling was based on anything other than the record and arguments.
The record contains no evidence of the trial court's actual or potential bias. Moreover, we have declined to find an appearance of fairness violation where the defendant offered stronger evidence of actual or potential bias than Wrzesien's does here. See e.g., State v. Dominguez, 81 Wn. App. 325, 914 P.2d 141 (1996) (no actual or potential bias existed where the trial judge had previously represented the defendant in one case and prosecuted him in another case). Wrzesien's bald assertion that the trial court's conduct violated the appearance of fairness doctrine fails to provide specific facts establishing the court's actual or potential bias. See e.g., Davis, 152 Wn.2d at 692-93. Accordingly, her appearance of fairness claim fails, as does her claim that she is entitled to a new trial without demonstrating prejudice. See Post, 118 Wn.2d at 619.
5. Prosecutorial Misconduct
In her motion for arrest of judgment, Wrzesien alleged prosecutorial misconduct arising from the prosecutor's conduct in projecting the word "guilty" on the wall. The trial court ruled that the incident did not prejudice Wrzesien.
A defendant claiming prosecutorial misconduct must establish that the prosecutor's conduct was both improper and prejudicial. State v. Korum, 2006 Wash. LEXIS 614, *55, 141 P.3d 13 (2006) (citing State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)). To prove prejudice, Wrzesien must prove a substantial likelihood that the misconduct affected the jury's verdict. Korum, 2006 Wash. LEXIS 614 at *55 (citing In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 481-82, 965 P.2d 593 (1998)). Because the trial court is in the best position to determine whether the misconduct prejudiced a defendant, we give deference to a trial court's ruling on prosecutorial misconduct. State v. Luvene, 127 Wn.2d 690, 701, 903 P.2d 960 (1995) (quoting State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 117 (1991)). Thus, we will reverse the trial court's ruling only for an abuse of discretion. State v. Ray, 116 Wn.2d 531, 549, 806 P.2d 1220 (1991) (citing State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989)).
Wrzesien argues that the prosecutor intentionally flashed the word "guilty" on the courtroom wall. To support her assertion, she argues that (1) the prosecutor has extensive experience and knowledge of Power Point; (2) the prosecutor did the same thing in another case; and (3) the prosecutor moved for an order preventing the defense from contacting the jurors. But the trial court expressly found that the prosecutor unintentionally projected the word on the courtroom screen.
We are bound by the court's factual finding if substantial evidence supports it. State v. Klein, 156 Wn.2d 102, 115, 124 P.3d 644 (2005) (citing State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994)). Substantial evidence is evidence sufficient to convince a reasonable person of the finding's truth. Klein, 156 Wn.2d at 115 (citing State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999)).
The prosecutor declared that as he prepared additional Power Point slides to show the jury in rebuttal closing argument, he "happened to look up at the courtroom screen and [he] noticed for the first time that [he] had forgotten to turn off the projector." CP at 173. He stated that "[t]he display of the laptop monitor screen to the jury was inadvertent . . . [and that he] was not attempting to distract or influence the jury." CP at 173. The prosecutor's testimony during the hearing on the motion for arrest of judgment echoed this declaration. The court accepted the prosecutor's explanation, a credibility determination that we will not disturb. See State v. Cantu, 156 Wn.2d 819, 831, 132 P.3d 725 (2006) (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)). The prosecutor's testimony is sufficient to convince a reasonable person of the truth of the court's finding.
Although the prosecutor's conduct was improper, Wrzesien fails to show a substantial likelihood that, but for the prosecutor's actions, the trial would have had a different result. See Korum, 2006 Wash. LEXIS 614 at *55 (to prove that the conduct was prejudicial, the defendant must prove that there is a substantial likelihood that the misconduct affected the jury's verdict). The trial court found that the prosecutor projected "guilty" on the courtroom screen for no more than 15 seconds of defense counsel's argument, which lasted "perhaps as long as an hour." RP (June 10, 2005) at 15-16. Wrzesien's only argument for prejudice is her bald assertion that the State's actions deprived her of a fair trial. Further, as we discuss below, the State presented ample evidence to allow the jury to convict Wrzesien. Given the level of deference we allow the trial court in ruling on prosecutorial misconduct, we find no error with the court's refusal to grant a mistrial for the prosecutor's misconduct in briefly projecting the word "guilty" on the courtroom wall.
II. Sufficiency of the Evidence
Wrzesien argues that the State presented insufficient evidence to support her conviction.
Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, 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) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)). An insufficiency claim admits the truth of the State's evidence. Salinas, 119 Wn.2d at 201 (citing State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254 (1980)). In reviewing a sufficiency challenge, we draw all reasonable inferences from the evidence in favor of the State and interpret the evidence against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977) (citing State v. Woods, 5 Wn. App. 399, 404, 487 P.2d 624 (1971)). Circumstantial evidence and direct evidence are equally reliable. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) (citing State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980)).
To convict Wrzesien, the State had to prove beyond a reasonable doubt that she manufactured or was an accomplice to the manufacture of a substance she knew was methamphetamine. The court instructed the jury that an accomplice is guilty of a crime whether present at the scene or not, and that an accomplice is someone who 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. The court defined "aid" as "all assistance whether given by words, acts, encouragement, support, or presence." CP at 142. Under these instructions, the jury could have convicted Wrzesien in association with either the lab in the car, the lab on the property, or both.
The jury also had to find that the acts occurred in Washington on or about August 15, 2001, but those elements were not in dispute.
The accomplice liability instruction stated:
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 the crime for which he or she is ultimately charged if, with knowledge that it will promote or facilitate the commission of that crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit that crime; or
(2) aids or agrees to aid another person in planning or committing that crime.
The word "aid" means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.
CP at 142.
Wrzesien testified that she did not know that any items associated with manufacturing methamphetamine were in the car. But the police found numerous items used in manufacturing methamphetamine in the back of the car. These included Heet, muriatic acid, several valves, tubing, and pseudoephedrine tablets, some still in the package and some ground into powder. And Officer Saboe testified that he detected a strong chemical odor coming from the car when Wrzesien opened the door.
Although Anderson claimed that he placed the bucket and jars in the car without Wrzesien's knowledge, he testified that he knew nothing about the additional items associated with manufacture that the police found in the car. The jury could have inferred that Wrzesien knew about the methamphetamine lab in her car and that she was aiding Anderson in the manufacture of the methamphetamine law enforcement officers found in the car.
Wrzesien admitted that she used methamphetamine at the time of this incident. She testified that she knew people often entered and left the garage and that she suspected that "something was going on in the garage." RP (May 3, 2005) at 295. And although Wrzesien testified that she rented the cabin, and did not have authority to access the other buildings on the property, the jury could have inferred that her status as a methamphetamine user surrounded by methamphetamine manufacturers was more than the pure coincidence she claimed. The jury could also have inferred that Wrzesien planned on returning to the property with the Heet, muriatic acid, valves, tubing, and pseudoephedrine to facilitate the manufacturing process.
Wrzesien cites State v. Bencivenga, 137 Wn.2d 703, 711, 974 P.2d 832 (1999), for the proposition that "proof of guilt cannot be supplied solely by a pyramiding of inferences" where the inferences and underlying evidence are insufficient to allow a rational trier of fact to find guilt beyond a reasonable doubt. Br. of Appellant at 23-24. But in Bencivenga, our Supreme Court rejected this notion and held that regardless of whether the evidence is direct or circumstantial, or a combination of the two, the court need only instruct the jury that it must be convinced of the defendant's guilt beyond a reasonable doubt. Bencivenga, 137 Wn.2d at 711 (citing 1 Clifford S. Fishman, Jones on Evidence: Civil and Criminal § 5.17, at 450 (7th ed. 1992)) ("[i]f the inferences and underlying evidence are strong enough to permit a rational fact finder to find guilt beyond a reasonable doubt, a conviction may be properly based on `pyramiding inferences'").
The State presented evidence showing that Wrzesien returned to the property in a car containing an active methamphetamine lab. From this evidence, and Wrzesien's presence on the property where people manufactured methamphetamine, the jury could have found, beyond a reasonable doubt, the essential elements to convict Wrzesien of manufacturing methamphetamine.
III. Sentencing Under Former RCW 69.50.401(a)(1)
Wrzesien argues that the trial court erred in sentencing her under former RCW 69.50.401(a)(1)(ii) when the jury never identified the particular substance underlying the conviction. She contends that the court should have sentenced her "under the version of RCW 69.50.401 in effect at the time [she committed the crime], and, under Blakely, by doing so[, the court] would have invaded the province of the jury." Br. of Appellant at 31-32. She also argues that her counsel was ineffective for not raising these issues before the trial court.
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Our Supreme Court recently held that former RCW 69.50.401(a)(1)(ii) encompasses all forms of methamphetamine. State v. Cromwell, 157 Wn.2d 529, 536-37, 140 P.3d 593 (2006). Although the court addressed the 2002 version of the statute, that version is the same as the version in effect at the time the State charged Wrzesien. And when our Supreme Court construes a statute, it clarifies the statute's original meaning. In re Pers. Restraint of Greening, 141 Wn.2d 687, 693 n. 7, 9 P.3d 206 (2000) (citing State v. Moen, 129 Wn.2d 535, 538, 919 P.2d 69 (1996)). The trial court did not err when it sentenced Wrzesien under former RCW 69.50.401(a)(1)(ii). Furthermore, because the trial court did not err, Wrzesien cannot show that her counsel was ineffective for failing to challenge the court's sentencing procedure.
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, P.J. and HUNT, J., concur.