STATE v. COLEMAN, 19728-0-III (Wash.App. 12-6-2001)

No. 19728-0-III.The Court of Appeals of Washington, Division Three. Panel Seven.
Filed: December 6, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Benton County, No. 001005648, Hon. Carolyn A. Brown, November 15, 2000, Judgment or order under review.

Counsel for Appellant(s), Arthur J. Bieker, Attorney At Law, 2520 N Road 72, Pasco, WA 99301-1923.

Counsel for Respondent(s), Andrew K. Miller, Benton County Prosecutor, #e, 7320 W Quinault, Kennewick, WA 99336.

Terry J. Bloor, Benton Co Pros Office, 7320 W Quinault, Kennewick, WA 98336.

SCHULTHEIS, J.

Timothy Coleman appeals his convictions for possession of ephedrine or psuedoephedrine with intent to manufacture and for possession of methamphetamine. He contends that the jury’s verdicts were based upon circumstantial evidence, and that this evidence was insufficient because it also was consistent with hypotheses tending to establish his innocence. In addition, Mr. Coleman contends that the court erred when it instructed the jury on accomplice liability. He argues the evidence did not support the giving of such an instruction.[1] We affirm.

At about 1 a.m. on July 10, 2000, Mr. Coleman rented a room at a Best Western hotel in Kennewick. The desk clerk testified that he paid the single occupancy rate for one day and told her he would pay for a second day if he decided to stay. The clerk gave him a key. Sometime later, a woman came to the hotel and asked the clerk for a key to enter the room. She stated that she was there to pick up her belongings. The clerk refused her request. When hotel employee Michelle Carrillo entered the room to clean it, she discovered a small coffeepot with white residue and immediately called the police.

Detective Rick Runge of the Tri-Cities Metro Drug Task Force obtained a search warrant for the hotel room. He and Officer Darren Pitt conducted the search. They seized the coffeepot with the residue and a bottle of Heet, a gasoline antifreeze. The Heet had white tablets floating in it. A wastebasket below the shelf where they found the Heet contained packaging for the cold medicine, Actifed. The officers testified, based upon their law enforcement experience, that these items are used to produce methamphetamine.

Detective Runge also testified that the police seized a Fred Meyer receipt during the search of the room. The receipt reflected a purchase of batteries and a dozen roses, and included the time and date (July 11 at 8:39 a.m.), and the location of the store (10th and Highway 395). Lithium, which is found in some batteries, is also used to manufacture methamphetamine.

Detective Runge then went to the Fred Meyer store in question. The store’s security department reviewed its videotape for that date and time.

The tape showed Mr. Coleman in the area of the store where the lithium batteries are located. And, he was wearing a do rag that appeared to be the same as one that the police seized from the room during the search.

Mr. Coleman testified in his own defense. He admitted that he had rented the room with a female companion at about 1 a.m. on July 10. He left several hours later. He took his belongings when he left, but he returned briefly the next morning to give his companion the roses he had purchased at Fred Meyer. The receipt was in the bag with the roses. Mr. Coleman testified that he had purchased the batteries for his camera. He stated he also purchased film at the same time. He had no explanation for the fact that the receipt did not reflect the film purchase. Mr. Coleman admitted that the do rag that the police found in the room was his. But, he stated he knew nothing about the various methamphetamine components the police found there.

The jury convicted Mr. Coleman, and he appeals.

First, Mr. Coleman contends that the evidence, even when viewed in the light most favorable to the State, was not sufficient for a rational trier of fact to find that he committed the essential elements of these drug offenses beyond a reasonable doubt. See State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). Mr. Coleman correctly states the evidentiary standard for criminal convictions. But, he goes on to argue that, to support convictions such as his that are based solely upon circumstantial evidence, `the circumstances proved by the state . . . must be inconsistent with any hypothesis or theory which would establish, or tend to establish, his innocence.’ State v. Gillingham, 33 Wn.2d 847, 854, 207 P.2d 737 (1949). Mr. Coleman asserts that the circumstances proved here are not inconsistent with his testimony that another person placed the methamphetamine and its components in the hotel room after he left.

However, the language from Gillingham that Mr. Coleman cites was disapproved many years ago by the Washington Supreme Court in State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975). See also State v. Benn, 120 Wn.2d 631, 655-56, 845 P.2d 289 (1993). The court in Gosby observed that the rule was `predicated upon the assumption that circumstantial evidence is inherently suspicious and less trustworthy than is direct evidence.’ Gosby, 85 Wn.2d at 765-66. Gosby rejected that assumption, holding that `{i}t is simply untenable to assume that circumstantial evidence is less reliable than is direct evidence. . . . {M}any times circumstantial evidence may be more probative or reliable. For instance, clear fingerprints found at the scene of a crime may be strong and reliable circumstantial evidence as to who committed the crime.’ Id. at 766.

Here, the court properly instructed the jury that, to convict, it had to find that Mr. Coleman committed all the elements of the crimes charged beyond a reasonable doubt. See Instructions 7 and 13, Clerk’s Papers at 19 and 21. The evidence, as set forth above, meets the standard articulated in Green. We therefore reject Mr. Coleman’s first argument.

Second, Mr. Coleman contends that the superior court erred when it instructed the jury on accomplice liability. According to Mr. Coleman, the evidence does not support a finding that he acted as an accomplice. Specifically, he believes that the fact that he and his female companion were in the room at the same time is insufficient to sustain a conviction on an accomplice liability theory.

The evidence is not so limited as Mr. Coleman suggests. He was the person who rented the room and had the key. A reasonable inference exists that he was at the hotel room as late as the morning of July 11, because the police found the time/dated Fred Meyer receipt and the do rag there when they searched the room. This evidence, coupled with other circumstantial evidence that he had purchased batteries containing lithium, a methamphetamine component, supports the jury’s finding beyond a reasonable doubt that he at least facilitated his female companion in committing the charged offenses. There was no error.

Affirmed.[2]

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.

WE CONCUR: KURTZ, C.J., KATO, J.