STATE v. CROMWELL (2005)

OPINION PUBLISHED IN PART

¶ 1 Appellants challenge their convictions for delivery and possession with intent to deliver methamphetamine under former RCW 69.50.401(a)(1)(ii).   Relying upon State v. Morris, 123 Wash.App. 467, 474, 98 P.3d 513 (2004), they argue that they could not be convicted under the statute prohibiting possession and delivery of “methamphetamine” when the evidence presented established that they delivered and possessed salts of methamphetamine, not free base methamphetamine.   Based on the expert criminalist's unrebutted testimony and the structure of the relevant statutes and schedules, we conclude the Legislature intended to penalize possession, delivery and possession with intent to deliver methamphetamine in any form.   We therefore respectfully disagree with Morris and affirm the convictions here.¹

FACTS

¶ 2 Following a series of undercover buys orchestrated by the Kent Police Department between paid confidential informant Kevin Collins and Jennifer Reynolds-Cromwell in February 2001, the State charged Reynolds-Cromwell and her husband George Cromwell with violations of former RCW 69.50.401(a)(1)(ii) for delivery of methamphetamine and possession of methamphetamine with intent to deliver.   In particular, the State charged Jennifer Reynolds-Cromwell with four counts of delivery of methamphetamine, each with a school zone enhancement, and one count of possession with intent to deliver methamphetamine, with a firearms enhancement.   The State charged George Cromwell as an accomplice on three counts of delivery of methamphetamine, each with a school zone enhancement, and one count of possession of methamphetamine with intent to deliver.

¶ 3 At trial, Dr. Edward Suzuki, a supervising forensic scientist at the Washington State Patrol Crime Lab, testified that all four substances delivered to Collins, as well as that recovered from the Cromwell residence, consisted of white powder containing methamphetamine.   He testified that the substances were in the salt form, which may have been methamphetamine hydrochloride, the most common type, but he was certain that all the substances were salts.

¶ 4 Following Dr. Suzuki's testimony, the defendants moved to dismiss, arguing that they had been charged with crimes involving methamphetamine, but the proof was limited to salts of methamphetamine, a substance they argued was treated differently in the relevant statutes.   The trial court denied the motion and the jury found Jennifer Reynolds-Cromwell guilty as charged, with the exception of the firearms enhancement, and found George Cromwell guilty of two counts of delivery and the lesser included crime of simple possession rather than the possession with intent to deliver.   The trial court imposed exceptional sentences below the standard range for each defendant.

¶ 5 The defendants appeal, arguing that the evidence at trial was insufficient to support the verdicts because they were charged with delivery and possession under RCW 69.50.401(a)(1)(ii), which they contend prohibits delivery and possession of pure, that is, base methamphetamine, while the evidence at trial merely supported a finding that they possessed and delivered methamphetamine salts.

ANALYSIS

I

¶ 6 The State charged the defendants under former RCW 69.50.401(a)(1)(ii).   Former RCW 69.50.401 provided:

(a) Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.

(1) Any person who violates this subsection with respect to:

․

(ii) amphetamine or methamphetamine, is guilty of a crime and upon conviction may be imprisoned for not more than ten years, or (A) fined not more than twenty-five thousand dollars if the crime involved less than two kilograms of the drug, or both such imprisonment and fine;  or (B) if the crime involved two or more kilograms of the drug, then fined not more than one hundred thousand dollars for the first two kilograms ․;

(iii) any other controlled substance classified in Schedule I, II, or III, is guilty of a crime and upon conviction may be imprisoned for not more than five years[.]

¶ 7 Schedule II includes in pertinent part:

(d) Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system:

(1) Amphetamine, its salts, optical isomers, and salts of its optical isomers;

(2) Methamphetamine, its salts, isomers, and salts of its isomers[.]

RCW 69.50.206.

 ¶ 8 The defendants contend that the term “methamphetamine” in former RCW 69.50.401(a)(1)(ii) includes only the liquid form of the drug, not methamphetamine in salt form.   This court reviews questions of statutory construction de novo.  State v. J.M., 144 Wash.2d 472, 480, 28 P.3d 720 (2001).   When a statute is plain and unambiguous, its meaning must be derived from wording of the statute itself.  State v. Keller, 143 Wash.2d 267, 276, 19 P.3d 1030 (2001), cert. denied, 534 U.S. 1130, 122 S.Ct. 1070, 151 L.Ed.2d 972 (2002).   This court must discern and carry out the intent of the Legislature, but must also avoid a literal interpretation leading to an absurd result.  State v. Watson, 146 Wash.2d 947, 954-55, 51 P.3d 66 (2002).

¶ 9 In State v. Halsten, 108 Wash.App. 759, 762-63, 33 P.3d 751 (2001) another division of this court held that former RCW 69.50.440, prohibiting possession of “ephedrine, pseudoephedrine, or anhydrous ammonia with intent to manufacture methamphetamine,” was plain and clear in that it named only pseudoephedrine, not pseudoephedrine hydrochloride.   Given the other sections of the Uniform Controlled Substances Act, Chapter 69.50 RCW, covering both a drug and its “salts,” as well as the section listing other forms of pseudoephedrine, the Halsten court concluded, “[W]hen the legislature intended a section to cover a drug and its salts, it was capable of saying so.”  Id. at 763, 33 P.3d 751.

¶ 10 In State v. Morris, 123 Wash.App. 467, 474, 98 P.3d 513 (2004) the same division similarly concluded that former RCW 69.50.401(a)(1) (ii) unambiguously covered only methamphetamine in its pure form, its base.   Given the language of RCW 69.50.206(d)(2), for example, the court concluded that the Legislature recognizes that methamphetamine exists in different forms and is capable of writing a statute to cover a drug and its salts if it so intends.  Id.

 ¶ 11 We respectfully disagree with the reasoning in Halsten and Morris.   But even if Halsten was correctly decided, it is distinguishable in that it involved pseudoephedrine, which is not in and of itself a controlled substance;  its possession is prohibited only when coupled with intent to manufacture methamphetamine.   According to Schedule II, however, methamphetamine is a controlled substance in all its forms.  RCW 69.50.206(a), (d)(2);  former RCW 69.50.401(a)(1)(ii).   Thus, we think that the key inquiry for determining the penalty for crimes involving methamphetamine is not the form of the drug, but what the defendant did with the drug or intended to do with it, and how much of it he or she had.

¶ 12 The penalty for delivery, manufacturing, and possession with intent to deliver or manufacture methamphetamine depends on the number of kilograms involved.   See former RCW 69.50.401(a)(1)(ii)(A) & (B).  As the State points out, the designation of kilograms, used to measure mass, not liquid, as the appropriate unit of measure for determining the penalty indicates that the Legislature did not intend former RCW 69.50.401(a)(1)(ii) to apply only to the liquid, free-base form of the drug.

¶ 13 We agree with the State's argument that reading the statute as the court did in Morris leads to a strained result.   Under the Morris reasoning, former RCW 69.50.401(a)(1)(ii) would have prohibited possession and delivery of only a highly volatile oil that evaporates when exposed to air.   As Dr. Suzuki testified, in his 23 years at the crime lab he did not recall receiving any liquid in a solution containing methamphetamine as a base, and the vast majority of cases involved methamphetamine in a powder or salt form.   Moreover, Dr. Suzuki offered undisputed testimony that the white powder obtained from the Cromwells' residence contained methamphetamine.   He also testified that methamphetamine in a powder or salt form is “just a different form of the material, but it is methamphetamine whether it's the base or salt form.   It doesn't matter.   It's the same drug.”   Verbatim Report of Proceedings 12/19/02 at 46-47.

¶ 14 In sum, it seems highly unlikely that the Legislature reserved the highest penalty for possessing and delivering methamphetamine only in its free base form, a form that is so volatile that it evaporates upon exposure to air and could easily be lost as evidence in the course of an investigation-and in a form that is so seldom if ever brought in to the state crime lab by investigating officers that Dr. Suzuki had never even seen it in 23 years of experience.   We conclude instead that, depending upon the amount involved, the Legislature intended to penalize the possession with intent to deliver and delivery of amphetamine and methamphetamine in any form more harshly than the possession with intent and delivery of any other controlled substances listed in the Schedules.   Accordingly, we affirm the trial court's ruling on this issue.

¶ 15 A majority of the panel having determined that the remainder of this opinion lacks precedential value and will not be printed in the Washington Appellate Reports but will be filed for public record in accord with RCW 2.06.040, it is so ordered.

II

¶ 16 George Cromwell challenges the sufficiency of the evidence presented to support his convictions as an accomplice to the February 28 delivery, and for simple possession on March 1. Viewing the evidence and reasonable inferences therefrom in the light most favorable to the State, we must determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.  State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980).

¶ 17 Relying primarily on State v. Amezola, 49 Wash.App. 78, 741 P.2d 1024 (1987) George Cromwell argues that evidence indicating he performed “domestic tasks” while Jennifer Reynolds-Cromwell was dealing drugs on February 28 is insufficient to prove that he was an accomplice to her criminal activity.   Because mere presence and assent to a crime is not sufficient to establish accomplice liability, the State must show beyond a reasonable doubt that Cromwell was ready to assist in the commission of the crime, or participated in the activity as something he desired to bring about or sought by his action to make succeed.   See, e.g., In re Welfare of Wilson, 91 Wash.2d 487, 491-92, 588 P.2d 1161 (1979) (juvenile's presence, knowledge of theft and personal acquaintance with active participants was insufficient to constitute abetting crime of reckless endangerment without some showing of intent to encourage criminal conduct).   Accord:  State v. Boast, 87 Wash.2d 447, 455-56, 553 P.2d 1322 (1976) (trial court did not err by refusing to give cautionary instruction to jury regarding uncorroborated testimony of a witness who testified that three defendants left with guns and later divided personal property and discussed restaurant robbery in her presence;  witness was not an accomplice because there was no evidence that she participated in the crime or desired to bring it about);  State v. Castro, 32 Wash.App. 559, 563-64, 648 P.2d 485 (1982) (cautionary instruction regarding uncorroborated testimony of accomplice not required where no evidence was presented to suggest that witness, who was sleeping during the murder and refused to share in proceeds of robbery, possessed any criminal intent to harm the victim or participated in any phase of the crime as something she wished to bring about).

¶ 18 In Amezola, one Ramirez did all the grocery shopping, cooking and cleaning while living in a house with three others who were selling heroin.   49 Wash.App. at 82-83, 741 P.2d 1024.   Buyers would call on the phone and the dealers would meet them to sell the drugs at other locations.  Id. at 80-81, 741 P.2d 1024.   The three dealers would process the drugs and discuss their business while Ramirez was present, but Ramirez never answered the phone or received any money when the three divided their profits.  Id. at 82-83, 741 P.2d 1024.   This court held that the State failed to present sufficient evidence to support accomplice liability because the evidence did not “show that she in any way aided in the commission of the charged crime or even knew there was criminal activity.”  Id. at 89, 741 P.2d 1024.

¶ 19 But here, Cromwell, who admitted to police that he knew that his wife was dealing drugs, answered the door and admitted Collins, escorted Collins into the bedroom where Reynolds-Cromwell was waiting, and remained in the room, watching the transaction as well as the security monitor.   This evidence raises the inference that Cromwell intended to assist his wife in her drug dealing operation by accompanying buyers while they were present in the house and by keeping watch against unwanted interruption, whether by her stalker ex-husband or the police.   Unlike the cooking and cleaning performed by Ramirez in Amezola, Cromwell's “domestic tasks” were directly connected to Reynolds-Cromwell's drug dealing business.

¶ 20 Cromwell also contends that the evidence was insufficient to support a conviction for simple possession on March 1 because the State argued only that he was an accomplice to Reynolds-Cromwell's possession with intent to deliver.   But as the State points out, the jury was also instructed on the elements of the lesser-included charge of simple possession and the definition of constructive possession.   Viewed in the light most favorable to the State, the undisputed evidence that Cromwell lived with Reynolds-Cromwell in the house where drugs were found on the bed and in the closet in the master bedroom, and that he knew that Reynolds-Cromwell was dealing drugs from the house, is sufficient for a rational trier of fact to find that Cromwell constructively possessed the drugs.   See, e.g., State v. Paine, 69 Wash.App. 873, 878-79, 850 P.2d 1369 (1993) (where defendant knew drugs were in apartment where his children and girlfriend lived, documents found in the apartment bore his name, and he admitted that he lived with his children and girlfriend there for past year, evidence was sufficient to support finding of constructive possession).

III

¶ 21 Both appellants argue that they received ineffective assistance of trial counsel because their attorneys failed to secure the testimony of Shannon Richardson, which would have directly impeached Collins' credibility, effectively, they argue, the sole issue in the case.   They contend that Richardson would have testified that Collins told her that he had lied to the police about the transactions leading to the charges against Reynolds-Cromwell and Cromwell, that the police trusted him and did not search him before and after the undercover buys, and that he targeted certain people when giving information to police so that he could get back together with his former girlfriend Tracy Bickford.

¶ 22 To establish ineffectiveness, defendants must show that counsel's performance was deficient and that prejudice resulted from the deficiency.   Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  State v. Thomas, 109 Wash.2d 222, 743 P.2d 816 (1987).   Because we strongly presume that defense counsel's conduct constituted sound trial strategy, defendants must demonstrate, in light of the entire record, that no legitimate strategic or tactical reasons support the challenged conduct.   State v. Barragan, 102 Wash.App. 754, 762, 9 P.3d 942 (2000);  State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995).   Prejudice is established where “there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different.”  McFarland, 127 Wash.2d at 334-35, 899 P.2d 1251.

¶ 23 The attorneys here served Richardson with a subpoena and obtained, but did not serve, a material witness warrant;  they attempted to arrange for her to testify despite an outstanding warrant for her arrest from the Auburn Municipal Court;  and they attempted to introduce her written statements when Richardson left the courthouse for fear of being arrested on the outstanding warrant. Appellants argue that no legitimate trial tactic could explain counsel's failure to serve the material witness warrant.   We disagree.

¶ 24 As Reynolds-Cromwell's attorney indicated on the record, he was hoping for favorable testimony from Richardson and wanted to avoid bringing her to the stand under protest and in custody.   The record demonstrates that the defense attorneys consulted with each other and attempted in various ways to arrange for Richardson's voluntary appearance and testimony.   The appellants fail to demonstrate deficient performance.   Moreover, they cannot demonstrate prejudice.   Tracy Bickford testified that Collins could not be trusted and that he had bragged that the police did not search him before undercover buys.   But Detective Trogdon testified that he searched Collins before and after each of the undercover buys at issue.   On this record, the defendants fail to establish a reasonable probability that Richardson's cumulative testimony regarding the credibility of Collins would have changed the results of the trial.

¶ 25 Affirmed.

FOOTNOTES

1.   The appellants' remaining arguments are treated in the unpublished portion of this opinion.

KENNEDY, J.