STATE v. CARDWELL, 21205-0-III (Wash.App. 12-18-2003)

No. 21205-0-IIIThe Court of Appeals of Washington, Division Three. Panel Two.
Filed: December 18, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Stevens County. Docket No: 01-1-00154-4. Judgment or order under review. Date filed: 05/10/2002.

Counsel for Appellant(s), David N. Gasch, Attorney at Law, PO Box 30339, Spokane, WA 99223-3005.

Counsel for Respondent(s), John Gerard Wetle, Attorney at Law, 215 S Oak St, PO Box 390, Colville, WA 99114-0390.

SCHULTHEIS, J.

Kyann Cardwell was convicted in a jury trial of manu facturing methamphetamine and driving with a suspended license. On appeal she contends the evidence is insufficient to show that she was manufacturing methamphetamine on the date charged. We disagree, and affirm.

Facts
On September 6, 2001, Kettle Falls police sergeant Audie Dixon noticed Ms. Cardwell driving a pickup truck. In August, he had run a check on Ms. Cardwell’s driver’s license and discovered she had a suspended license. Sergeant Dixon stopped Ms. Cardwell and asked for her license. When she did not have one, he arrested her and placed her in his patrol car. Her brother, James Peterson, was sitting in the passenger seat. Sergeant Dixon asked him to step out of the car while the car was searched incident to Ms. Cardwell’s arrest.

Sergeant Dixon had noticed the strong odor of cat urine when Ms. Dixon first opened the pickup’s door. In his experience, this odor was associated with methamphetamine labs. He found several cloth bags in the pickup cab containing, among other things, a small bottle of clear liquid, spoons with a burnt residue, large bottles of rubbing alcohol, hypodermic needles, and syringes. A quick look in a large bag found in the bed of the pickup revealed two gallon-size glass jars containing a brownish liquid separating into three layers. At this point suspecting that these items indicated a methamphetamine operation, Sergeant Dixon decided to impound the car and let experts search it. He determined that Ms. Cardwell was the registered owner of the pickup.

Ms. Cardwell was charged by information with three counts: (1) manufacturing methamphetamine while armed with a deadly weapon (RCW 69.50.401(a)(1)(ii); 9A.08.020; 9.94A.510(4)(b)); (2) possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine while armed with a deadly weapon (RCW 69.50.440; 9A.08.020; 9.94A.510(4)(b)); and (3) third degree driving while license suspended (RCW 46.20.342(1)(c)). Before trial, the State amended the information, dismissing by stipulation the second count and the deadly weapon elements. Mr. Peterson joined Ms. Cardwell as codefendant in the jury trial on the remaining charges.

At trial, Sergeant Dixon and another investigating officer testified that they found in the pickup the bottles of various liquids, the needles and syringes, matchbooks with their striker plates removed, and used coffee filters stained yellow and red. A forensic scientist, Arnold Melnikoff, testified that these items were commonly used in the manufacture of methamphetamine by the red phosphorus method. On cross-examination, he admitted that the smell of cat urine is not associated with the red phosphorus method and agreed that additional items necessary to the manufacturing process were missing. In his opinion, the items found represented the previous manufacture of methamphetamine.

Neither Ms. Cardwell nor Mr. Peterson took the stand, but other defense witnesses suggested that the items may have belonged to Ms. Cardwell’s ex-husband, and that she was taking them to the dump. According to the forensic scientist testifying for the defense, no methamphetamine was being manufactured at the time the items were found in Ms. Cardwell’s pickup.

The jury found Ms. Cardwell guilty of both counts as charged. She was sentenced in the standard range.

Sufficiency of the Evidence
On appeal, Ms. Cardwell contends the State failed to prove beyond a reasonable doubt that she manufactured methamphetamine. She argues that the items found in her pickup might support conviction for possession, but not for manufacture. Because she challenges the sufficiency of the evidence, we view the evidence in the light most favorable to the State to determine whether any rational trier of fact could find all the elements of the crime beyond a reasonable doubt. State v. Hepton, 113 Wn. App. 673, 681, 54 P.3d 233 (2002), review denied, 149 Wn.2d 1018 (2003). We consider circumstantial evidence as reliable as direct evidence. State v. Bencivenga, 137 Wn.2d 703, 711, 974 P.2d 832
(1999). Any questions of conflicting testimony, witness credibility, and persuasiveness of the evidence are left to the trier of fact. State v. Todd, 101 Wn. App. 945, 950, 6 P.3d 86 (2000).

Ms. Cardwell was charged with manufacture of a controlled substance — methamphetamine, RCW 69.50.401(a)(1)(ii). Manufacture is defined in part as `the production, preparation, propagation, compounding, conversion, or processing of a controlled substance.’ Former RCW 69.50.101(p) (1998). A controlled substance is a `drug, substance, or immediate precursor included in Schedules I through V as set forth in federal or state laws, or federal or board rules.’ Former RCW 69.50.101(d). Methamphetamine is a Schedule II drug. RCW 69.50.206(d)(2).

The jury was instructed on manufacture of methamphetamine and on accomplice liability. To prove guilt as an accomplice, the State had to show that, with knowledge that it would promote or facilitate the commission of the crime, Ms. Cardwell aided or agreed to aid in manufacturing endeavors. RCW 9A.08.020(3)(a)(ii); State v. Gallagher, 112 Wn. App. 601, 613, 51 P.3d 100 (2002), review denied, 148 Wn.2d 1023 (2003). If Ms. Cardwell `associated with the criminal venture and participated in it expecting success, [she] could be found guilty as an accomplice.’ Id. at 613-14.

Viewing the evidence and the reasonable inferences arising from the evidence in the light most favorable to the State, we find substantial evidence to support Ms. Cardwell’s liability as both a principal and as an accomplice. Both forensic experts at trial testified that the items found in the pickup indicated manufacture of methamphetamine by the red phosphorus method. The only ingredients or equipment missing were the ephedrine or pseudoephedrine that is the source of the methamphetamine and a hydrochloric acid gas generator, which is usually a large plastic or mason jar with tubes coming out of it. State v. Zunker, 112 Wn. App. 130, 138, 48 P.3d 344 (2002), review denied, 148 Wn.2d 1012 (2003). Mr. Melnikoff testified that in his experience as a forensic scientist, mobile labs take the manufacturing to different locations to complete different stages of the process. Consequently, no one site will contain all the ingredients or equipment necessary to complete manufacture. Additionally, the forensic experts explained that pseudoephedrine could be absent because it was all converted into methamphetamine and byproducts.

The items found with Ms. Cardwell included brown sludgy liquid containing methamphetamine byproducts, matchbooks with their phosphorus-impregnated strike plates removed, acids commonly used in `salting out’ the methamphetamine from liquid solution (Report of Proceedings at 293), coffee filters with red phosphorus and methamphetamine residue, and a bottle containing a water solution of methamphetamine. Ms. Cardwell’s fingerprint was found on one of the bottles of brown liquid, which contained byproducts from methamphetamine manufacture.

Almost everything needed to manufacture methamphetamine was found in Ms. Cardwell’s pickup. As she points out, however, the police did not actually observe her produce, prepare, or process methamphetamine. A manufacturer of controlled substances does not have to be caught red-handed if the evidence raises a reasonable inference that the accused was preparing to make a new batch or had recently finished the process. See Zunker, 112 Wn. App. at 139 (reasonable inference that some manufacturing had already taken place and preparations had been made to process a new batch).

Most significant here is the bottle found in Ms. Cardwell’s front seat that contained methamphetamine in a liquid solution. The experts testified that methamphetamine had been salted out of the solution, leaving some of the product behind, or that the salting out process was still to occur. Whether the process had been completed or was being moved to another lab for completion, the evidence is sufficient to convince a reasonable juror that Ms. Cardwell — whether as a principal producer or as an accomplice — was somewhere in the process of manufacturing methamphetamine `on or about the 6th day of September, 2001.’ Clerk’s Papers at 81.

Affirmed.

A majority of the panel has determined that 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.

BROWN, C.J. and KATO, J., concur.