STATE v. MOLES (2005)

PART PUBLISHED OPINION

 ¶ 1 William Chesley Moles, Louis Gouveia Cambra, and Alan Robert Conn appeal their convictions for unlawful possession of pseudoephedrine with intent to manufacture methamphetamine as well as Cambra's separate conviction for unlawful possession of a controlled substance, and Moles' separate convictions for first degree possession of stolen property and making a false or misleading statement to a public servant.   They assert that:  (1) the evidence fails to support their convictions for possession of pseudoephedrine with intent to manufacture methamphetamine;  (2) the trial court erred by denying their motion to suppress;  and (3) jury instruction number 11 was ambiguous and thus, the State's argument based on jury instruction number 11 was a misstatement of the law.   We affirm.

FACTS

¶ 2 On August 9, 2003, Officer Byerley was on routine patrol when he received a dispatch informing him that three males in an unconfirmed stolen red Geo Prism had purchased the maximum allowed quantity of psuedoephedrine from two local grocery stores.

¶ 3 Byerley observed a red Geo Prism matching the dispatch description and license plate number parked in a drug store parking lot.   Two males exited the store and got into the car.   Byerley stopped the car as it left the parking lot and requested back-up assistance.   Once Officer Scott Lane arrived on the scene, the officers asked the three individuals to exit the vehicle one at a time.   The officers then handcuffed and searched the defendants before placing them in a police car.

¶ 4 Byerley found store receipts from two grocery stores in Conn's right pocket, reflecting the purchase of three Allerfed packets and three Triphed packets.   Byerley found a plastic bag containing brown powder residue, a second bag containing white powder residue, and several coffee filters in Cambra's pockets.   Byerley advised Cambra of his Miranda¹ rights.   Cambra acknowledged that he understood his rights and agreed to talk to the officer.   He stated that Moles had possessed the stolen car for several days and that the three defendants had been purchasing pseudoephedrine from various stores.

¶ 5 After taking the defendants into custody, Byerley noticed that the Prism's ignition had been “punched,” and  contacted dispatch to confirm that the Prism was stolen.   Report of Proceedings (RP) at 25.   A subsequent search of the Prism revealed (1) four empty blister packs;  (2) one box of Suphedrine;  (3) a grocery bag containing two empty blister packs and one full package of pseudoephedrine and several loose white pills;  (4) a second grocery bag containing two empty boxes of Suphedrine, two blister packs, and numerous loose white pills;  and (5) a black bag with two sealed packages of Contac® Cold Medicine.²  According to Byerley's trial testimony, he found close to 440 loose white pills in the vehicle.

¶ 6 The State charged all three defendants with unlawful possession of pseudoephedrine with intent to manufacture methamphetamine.   The State charged Cambra with unlawful possession of a controlled substance.   The State also charged Moles with first degree possession of stolen property and with making a false or misleading statement to a public servant.

¶ 7 At the pretrial suppression hearing, Byerley testified that he stopped the Prism “because it was a reported stolen vehicle.” RP at 25.   The court denied the defendants' motion to suppress.

¶ 8 At trial, Byerley testified that he was a member of the Pierce County Sheriff's clandestine lab team and that he had training in identifying controlled substances.   He further testified that the first stage of the manufacturing process is the acquisition of pseudoephedrine tablets that are then crushed and mixed with a solvent.   The mixture is strained through a coffee filter, separating the drug from the liquid mixture.   Frank Boshears, a forensic scientist, testified that he tested the white tablets, the tan powder, and the white powder residue on the coffee filters.   The pills contained pseudoephedrine.   He further testified that the brown powder and the white powder residue on the coffee filters tested positive for methamphetamine.

 ¶ 9 Chung Hoon Lee testified that he shared the Prism with his parents and that it had been stolen.   He testified that he called 911 to inform the police about the theft but that it was “probably” his brother who filled out the written report.   RP at 212.

¶ 10 The jury found all three defendants guilty as charged.   Defendants filed timely notices of appeal.

ANALYSIS

Sufficiency of the Evidence

 ¶ 11 Defendants argue that their convictions must be reversed because the jury did not have sufficient evidence to find that they possessed pseudoephedrine with intent to manufacture methamphetamine.   The State responds that the evidence was sufficient because the jury could infer intent to manufacture from the quick succession of cold pill purchases, the drugs in Cambra's pocket, and the large number of loose pseudoephedrine tablets in the car.

 ¶ 12 Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.  State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).  “A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.”  Salinas, 119 Wash.2d at 201, 829 P.2d 1068 (citation omitted).   Circumstantial evidence and direct evidence are equally reliable.  State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980) (citing State v. Gosby, 85 Wash.2d 758, 539 P.2d 680 (1975)).

¶ 13 To establish that defendants possessed pseudoephedrine with intent to manufacture methamphetamine, the State had to prove that they:  (1) possessed pseudoephedrine;  and (2) intended to use the pseudoephedrine to manufacture methamphetamine.  RCW 69.50.440.   Manufacture is “the production, preparation, propagation, compounding, conversion, or processing of a controlled  substance, either directly or indirectly.”  RCW 69.50.101(p);  State v. Davis, 117 Wash.App. 702, 708, 72 P.3d 1134 (2003), review denied, 151 Wash.2d 1007, 87 P.3d 1185 (2004).

 ¶ 14 Bare possession of a controlled substance is not enough to support an intent to manufacture conviction;  at least one additional factor, suggestive of intent, must be present.  State v. McPherson, 111 Wash.App. 747, 759, 46 P.3d 284 (2002).   A person acts with intent when he acts with the objective or purpose to accomplish a result that constitutes a crime.  RCW 9A.08.010(1)(a).   A person who knowingly plays a role in the manufacturing process can be guilty of manufacturing, even if someone else completes the process.  Davis, 117 Wash.App. at 708, 72 P.3d 1134.

¶ 15 Here, the State presented sufficient evidence for a rational trier of fact to find the defendants guilty of unlawful possession ³ of pseudoephedrine and/or ephedrine with intent to manufacture methamphetamine.  RCW 69.50.440.   Byerley counted close to 440 loose white pseudoephedrine pills in the defendants' stolen vehicle.   The pills had been removed from the blister packs.   Byerley testified that the first stage in the manufacturing process is to acquire pseudoephedrine tablets and then process them.   The fact that so many pills had been removed from the blister packs leads to the only plausible inference:  that the defendants were in the process of preparing the pseudoephedrine for the first stage of the manufacturing process.   We hold that this alone is sufficient to support the jury's finding of intent to manufacture.   Further, Byerley found a coffee filter with methamphetamine residue in defendant Cambra's pocket.   And the defendants were acting in concert to purchase the maximum allowable amount of cold pills containing pseudoephedrine from various stores over a short period of time.   Thus, additional factors suggesting manufacture exist, and the evidence was sufficient  to support a manufacturing conviction for each of the three defendants.

¶ 16 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

I. Motion to Suppress

¶ 17 Moles, Cambra, and Conn all challenge the trial court's denial of their motion to suppress the evidence found in the Prism after they were taken into custody.   We review the trial court's denial of a suppression motion by determining whether substantial evidence supports its findings of fact.   State v. Mendez, 137 Wash.2d 208, 214, 970 P.2d 722 (1999).   Substantial evidence exists when there is a sufficient quantity of evidence to persuade a fair-minded, rational person that a finding is true.  State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994).   We review only those findings to which appellants assign error;  unchallenged findings are verities on appeal.   Hill, 123 Wash.2d at 644, 870 P.2d 313.

¶ 18 We review the trial court's conclusions of law de novo. Mendez, 137 Wash.2d at 214, 970 P.2d 722.   Whether a person has been seized under the Fourth Amendment is a mixed question of law and fact.  State v. Armenta, 134 Wash.2d 1, 9, 948 P.2d 1280 (1997).

¶ 19 Here, the defendants assign error to findings 5, 6, 7, 16, 17, and 18 of the trial court's “Reasons for Admissibility or Inadmissibility of the Evidence.” 4  These assignments of error present mixed questions of law and fact.

¶ 20 The defendants argue that the police dispatch did not establish sufficient probable cause to arrest them.   The State counters that Byerley had probable cause because the issuing agency had reliable information that the vehicle was stolen.

¶ 21 Probable cause to arrest exists when facts and circumstances, within the arresting officer's knowledge and of which the officer has reasonably trustworthy information, are sufficient to warrant a person of reasonable caution to believe that the defendant has committed an offense.  State v. Terrovona, 105 Wash.2d 632, 643, 716 P.2d 295 (1986).   Although more than a bare suspicion of criminal activity is necessary, proof beyond a reasonable doubt is not required.  State v. Gillenwater, 96 Wash.App. 667, 670, 980 P.2d 318 (1999).   We look to the totality of the circumstances and determine whether all facts, taken together in light of the officer's experience and knowledge, are sufficient to establish probable cause.  State v. Fore, 56 Wash.App. 339, 343, 783 P.2d 626 (1989).

¶ 22 The fellow officer rule justifies an arrest on the basis of a police bulletin, such as a hot sheet, if the police agency issuing the bulletin has sufficient information to form a basis for probable cause.  O'Cain, 108 Wash.App. 542, 550, 31 P.3d 733 (2001) (citing State v. Mance, 82 Wash.App. 539, 542, 918 P.2d 527 (1996)).   The bulletin does not, however, insulate the arresting officer from problems with the sufficiency or reliability of the agency's information.  O'Cain, 108 Wash.App. at 550, 31 P.3d 733 (citing Mance, 82 Wash.App. at 542, 918 P.2d 527).   In O'Cain, Division I of this court explained:

The State's burden to establish reliability of its dispatches regarding stolen automobiles is not particularly onerous, and there is more than one way that the burden can be satisfied.   Presenting testimony regarding the procedures utilized by [the Washington Criminal Identification Center] might be one way.

108 Wash.App. at 556, 31 P.3d 733.

¶ 23 At the suppression hearing, Byerley testified about police procedures for generating a stolen vehicle report.5  He testified that before a vehicle is entered into the Washington Criminal Identification Center (WACIC) system, certain procedures are generally followed.   First, the individual reporting the theft must complete and sign a form providing the information needed to identify the stolen vehicle.   Employees in law enforcement then enter that information into the WACIC computer system.   Once the report is entered, the vehicle is labeled “unconfirmed stolen.”   RP at 12.   According to Byerley's testimony, in order to change the status of a vehicle from “unconfirmed stolen” to “confirmed stolen” an officer must physically locate the vehicle and confirm its identifying information with the originating agency.   RP at 12.

¶ 24 Additionally, the State offered an Auburn Police stolen vehicle report into evidence.   The report, signed and dated by Joong Hoon Lee, stated:

I did not give anyone permission to use, drive, or otherwise possess my vehicle or any of its parts or accessories.   I will assist in any prosecution resulting from this incident.   As the registered/legal owner of this vehicle, I give the police agency recovering the vehicle permission to search any and all areas of the vehicle and any containers within which are not specifically claimed by the suspect.   I understand that if I regain possession of this vehicle, I must immediately notify the police.   I also understand that I may be charged with a violation of ACC 9.01.1490, Making a False or Misleading Statement, by filing a false report.

Exhibit 1. The stolen vehicle report clearly identified the vehicle that Moles was driving.

¶ 25 Byerley's testimony and the Auburn police stolen vehicle report were sufficient to establish the reliability of the dispatch and, thus, we hold that Byerley had probable cause to arrest the defendants and to search the vehicle.   See, e.g., O'Cain, 108 Wash.App. at 556, 31 P.3d 733.

II. Jury Instruction 11 and State's Argument

¶ 26 For the first time on appeal, defendants challenge jury instruction 11 6 on the grounds that it is ambiguous and allows the jury to employ an incorrect definition of manufacturing.   Further, defendants argue that the State's argument based on the instruction was improper.   The State responds that (1) defendants failed to properly preserve the challenge on appeal;  (2) instruction 11 correctly stated the law;  and (3) the State's argument was proper.

¶ 27 We may refuse to review any claim of error that was not raised in the trial court.  RAP 2.5(a).   But a party may raise a manifest error affecting a constitutional right for the first time on appeal.  State v. Scott, 110 Wash.2d 682, 685, 757 P.2d 492 (1988).

A. Jury Instruction 11

¶ 28 The elements of the crime are straightforward:  unlawful possession of pseudoephedrine with intent to manufacture.  RCW 69.50.440.   Instruction 11 merely supplies the definition of one of the statutory elements-manufacture.

¶ 29 As long as a jury instruction properly informs the jury of the elements of the charged crime, any error in further defining terms used in the instruction on the elements is not of constitutional magnitude.  State v. Stearns, 119 Wash.2d 247, 250, 830 P.2d 355 (1992).   In Stearns, our Supreme Court held that a jury instruction improperly defining “manufacture” does not amount to a manifest error affecting a constitutional right.  119 Wash.2d at 250, 830 P.2d 355.   The Court did not reach the merits of the defendant's argument that the definition was improper because it held that the defendant's failure to raise the issue at trial precluded appellate review.  Stearns, 119 Wash.2d at 250, 830 P.2d 355.   Thus, under Stearns, we do not reach the merits of the defendants' challenge to jury instruction 11.7

B. Prosecutorial Misconduct

¶ 30 Defendants contend that the prosecutor misstated the law by making the following argument:

Even if you believe Mr. Cambra's testimony that he was just buying it to get dope or money, they are still buying it for the manufacturing.   Do they have to do the manufacturing themselves?   Absolutely not.   They don't have to.   When you look at the instruction for what manufacturing is, it says directly or indirectly involved in the processing or preparation for manufacturing.

RP at 296.   Defendants also challenge the prosecutor's rebuttal argument:

Also had a lot of issues about manufacturing and definition of manufacturing.   You have a copy of it, and it's Instruction Number 11.   Manufacturing means that production, preparation, propagation, compounding, conversion, or processing, directly or indirectly, of any controlled substances.

RP at 332.   The State responds that the prosecutor's closing and rebuttal arguments were properly based on the jury instructions and the law.

¶ 31 The defendant bears the burden of showing prejudicial misconduct.   State v. Finch, 137 Wash.2d 792, 839, 975 P.2d 967 (1999).   A prosecutor's misconduct warrants a new trial where there is a substantial likelihood that the misconduct affected the verdict. Finch, 137 Wash.2d at 839, 975 P.2d 967.   The prosecutor's statements of the law must be confined to the law as set forth in the court's instructions to the jury.  State v. Estill, 80 Wash.2d 196, 199, 492 P.2d 1037 (1972).   But a case will not be reversed for improper argument unless such error is prejudicial to the accused.  Estill, 80 Wash.2d at 200, 492 P.2d 1037.   Only those errors that may have affected the trial outcome are prejudicial.  State v. Gilcrist, 91 Wash.2d 603, 612, 590 P.2d 809 (1979).

¶ 32 Where the defendant did not object or request a curative instruction, the error is considered waived unless the remark was “so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.”  State v. Binkin, 79 Wash.App. 284, 294, 902 P.2d 673 (1995) (quoting State v. Hoffman, 116 Wash.2d 51, 93, 804 P.2d 577 (1991)).

¶ 33 Here, Moles, Cambra, and Conn failed to object to the prosecutor's remarks and did not ask for a curative instruction.   Thus, we hold that the defendants waived any objection to the prosecutor's argument.   We further note that the prosecutor's argument was confined to the law as set forth in the jury instructions and was proper under Washington law.   A person who knowingly plays even a limited role in the manufacturing process may be guilty of the crime.   State v. Keena, 121 Wash.App. 143, 148, 87 P.3d 1197 (2004) (citing Davis, 117 Wash.App. at 708, 72 P.3d 1134).   Therefore the prosecutor correctly argued that the jury could find the defendants guilty of manufacturing even if they intended to be only indirectly involved in the manufacturing process.

¶ 34 We affirm.

FOOTNOTES

1.   Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2.   The pills seized by the officers all contained pseudoephedrine or ephedrine that can be separated from the other ingredients to be used in the manufacture of methamphetamine.

3.   Possession of the pseudoephedrine is not disputed.   Alternatively, the record is sufficient to support the jury's finding of possession.   See, e.g., State v. Huff, 64 Wash.App. 641, 653-54, 826 P.2d 698 (1992).

FN4.  Finding 5 states:The court finds Officer Byerley had a reasonable articulable suspicion to conduct a Terry [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] stop due to the purchase of the pseudoephedrine.   Due to officer safety concerns Officer Byerley lawfully placed the three defendants in handcuffs.Finding 6 states:The court finds Officer Byerley had probable cause to arrest the defendants for possession of stolen property based on the following information:  the defendants were in the same area as the reported stolen vehicle and the suspicious white males who were purchasing pseudoephedrine.   The vehicle they were in matched the license plate, color, make, and model as the reported stolen vehicle.   Officer Byerley observed the punched out ignition of the vehicle when he removed defendant Conn from the vehicle.   Defendant Cambra's statement that they were out buying pseudoephedrine from several stores also corroborates the probable cause to arrest the defendants.Finding 7 states:The court finds the dispatch reporting the vehicle stolen was reliable and based on a sufficient factual foundation to support the probable cause for the arrest of the defendants.   Therefore, the reliability of the dispatch satisfies the test laid out in State v. O'Cain, 108 Wash.App. 542, 31 P.3d 733 (2001).Finding 16 states:The search of the vehicle was a lawful search incident to arrest.Finding 17 states:The search of the defendants was a lawful search incident to arrest.Finding 18 states:The items of evidence obtained during the search incident to arrest are hereby admissible.Clerk's Papers (CP) at 127-129 (Moles);  CP at 69-71 (Cambra);  CP at 84-86 (Conn)..  FN4.  Finding 5 states:The court finds Officer Byerley had a reasonable articulable suspicion to conduct a Terry [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] stop due to the purchase of the pseudoephedrine.   Due to officer safety concerns Officer Byerley lawfully placed the three defendants in handcuffs.Finding 6 states:The court finds Officer Byerley had probable cause to arrest the defendants for possession of stolen property based on the following information:  the defendants were in the same area as the reported stolen vehicle and the suspicious white males who were purchasing pseudoephedrine.   The vehicle they were in matched the license plate, color, make, and model as the reported stolen vehicle.   Officer Byerley observed the punched out ignition of the vehicle when he removed defendant Conn from the vehicle.   Defendant Cambra's statement that they were out buying pseudoephedrine from several stores also corroborates the probable cause to arrest the defendants.Finding 7 states:The court finds the dispatch reporting the vehicle stolen was reliable and based on a sufficient factual foundation to support the probable cause for the arrest of the defendants.   Therefore, the reliability of the dispatch satisfies the test laid out in State v. O'Cain, 108 Wash.App. 542, 31 P.3d 733 (2001).Finding 16 states:The search of the vehicle was a lawful search incident to arrest.Finding 17 states:The search of the defendants was a lawful search incident to arrest.Finding 18 states:The items of evidence obtained during the search incident to arrest are hereby admissible.Clerk's Papers (CP) at 127-129 (Moles);  CP at 69-71 (Cambra);  CP at 84-86 (Conn).

FN5.  Defendants argue that Byerley's testimony was inadequate to establish probable cause because he could not testify to the specific procedures WACIC uses.   This argument is somewhat misleading because the actual stolen vehicle reports originate in local police departments, and Byerley properly testified about the procedures typically used to generate such reports.   WACIC is merely the center that provides statewide computer access to reports taken locally..  FN5.  Defendants argue that Byerley's testimony was inadequate to establish probable cause because he could not testify to the specific procedures WACIC uses.   This argument is somewhat misleading because the actual stolen vehicle reports originate in local police departments, and Byerley properly testified about the procedures typically used to generate such reports.   WACIC is merely the center that provides statewide computer access to reports taken locally.

FN6.  Jury instruction 11 provides:Manufacture means the production, preparation, propagation, compounding, conversion, or processing directly or indirectly of any controlled substance.CP at 53 (Moles);  CP at 19 (Cambra);  CP at 21 (Conn)..  FN6.  Jury instruction 11 provides:Manufacture means the production, preparation, propagation, compounding, conversion, or processing directly or indirectly of any controlled substance.CP at 53 (Moles);  CP at 19 (Cambra);  CP at 21 (Conn).

FN7.  We further note that under the invited error doctrine, a party may not request a jury instruction and later argue that the instruction is erroneous on appeal.  State v. Aho, 137 Wash.2d 736, 744-45, 975 P.2d 512 (1999).   Since defendant Moles proposed a jury instruction that was substantially similar to jury instruction 11, he cannot claim error on appeal..  FN7.  We further note that under the invited error doctrine, a party may not request a jury instruction and later argue that the instruction is erroneous on appeal.  State v. Aho, 137 Wash.2d 736, 744-45, 975 P.2d 512 (1999).   Since defendant Moles proposed a jury instruction that was substantially similar to jury instruction 11, he cannot claim error on appeal.

VAN DEREN, A.C.J.