No. 26653-9-IIThe Court of Appeals of Washington, Division Two.
Filed: October 14, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County Docket No: 99-1-01115-5 Judgment or order under review Date filed: 11/03/2000
Counsel for Appellant(s), R. A. Lewis, Attorney at Law, 430 N.E. Everett St, Camas, WA 98607-2115.
Counsel for Respondent(s), Michael Whitworth II Vaughn, Attorney at Law, 1200 Franklin St, P.O. Box 5000, Vancouver, WA 98666-5000.
QUINN-BRINTNALL, A.C.J.
A jury convicted Brian J. Hongel of manufacturing methamphetamine and added firearm and school zone enhancements to his sentence. Hongel challenges the trial court’s accomplice liability instruction and the sufficiency of the evidence supporting each enhancement. We affirm Hongel’s conviction for manufacturing methamphetamine and the school zone and firearm enhancement.
FACTS
On February 9, 1999, the Washington State Patrol, through its Clark-Skamania Drug Task Force and Statewide Incidents Response Team, searched Brian Hongel’s property in Brush Prairie, located in Clark County[1] . Several individuals frequented Hongel’s property, including Duane Otterson, co-defendant Eugene Peck, and Trina Gloor. On either February 7 or 8, 1999, Peck and Otterson made and consumed a small amount of methamphetamine in Peck’s trailer, which was on Hongel’s property.
During the search, officers entered Peck’s trailer and found Peck and a female in bed. Police seized an operable firearm found within Peck’s reach. Officers also searched a loft above a garage on the property. There, they recovered several items consistent with manufacturing methamphetamine.
(1) a white liquid with white powder; consistent with pill extraction in methamphetamine laboratories;
(2) several cans of starter fluid containing ether. Ether is used to extract methamphetamine from the mixture;
(3) Lye; used to neutralize the methamphetamine mixture; and
(4) red phosphorus and iodine used at different stages of methamphetamine manufacture.
Clerk’s Papers (CP) at 102-105, 112.
A forensic scientist from the state patrol crime lab testified that the items seized indicated the presence of a methamphetamine laboratory. Duane Otterson also testified at Hongel’s trial. He stated that sometime before February 8, 1999, he observed a man known as `Kiko’ give Hongel $800. An unidentified person told Otterson that this money was for red phosphorus, which is used to manufacture methamphetamine.
Trina Gloor testified that she went to Hongel’s property on February 8, to retrieve her personal possessions. Hongel arrived late that night. She also testified that approximately one to two weeks before February 8, she heard Hongel and Peck discussing using chemicals to cook methamphetamine. In this conversation, Hongel and Peck indicated that chemicals used to manufacture methamphetamine were buried in a nearby wooded area.
On October 29, 2000, the State charged Hongel with unlawful manufacture of methamphetamine. Included in the information were a firearm enhancement and a drug free zone enhancement for committing the crime within 1,000 feet of a school bus stop (school zone enhancement).[2]
Hongel was convicted of both charges, as well as both enhancements, and he appealed to this court. Hongel stipulates that his property was within 1,000 feet of a school bus stop, but he argues that the evidence linking him to the manufacturing of methamphetamine on his property was insufficient as a matter of law to support the charges and enhancements.
ANALYSIS
Accomplice Liability Instruction
Hongel first challenges the trial court’s accomplice liability instruction, citing State v. Cronin, 142 Wn.2d 568, 14 P.3d 752 (2000) and State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000). Jury instruction No. 18 provided that:
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 a crime if, with knowledge that it will promote or facilitate the commission of a crime, he or she 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.
Clerk’s Papers (CP) at 82 (emphasis added). Hongel contends that because the first and second sentence of the instruction contains the words `a crime’ and the two parallel portions include the words `the crime’, the jury could have found Hongel an accomplice for any crime Peck committed. The State argues that any instructional error was harmless.
The language of the instruction at issue was declared deficient in Roberts, 142 Wn.2d at 509-13.[3] Roberts held that, for accomplice liability to attach, the state must prove beyond a reasonable doubt that the accomplice did not merely aid in any crime, but had knowledge of and solicited or aided in the principal’s committing the crime charged. See State v. Borrero, 147 Wn.2d 353, 364, 58 P.3d 245 (2002).
Here, Hongel and Peck discussed manufacturing methamphetamine and Hongel gave Peck money to purchase ingredients needed to manufacture methamphetamine. No other crime was charged or argued and the record does not include evidence of any other crime being committed that the jury could have considered. Thus, the jury could only find Hongel guilty if it found that he had knowledge of the crime of manufacturing methamphetamine as charged.
An instruction is harmless when it `it appears `beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (quoting Neder v. United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). If an erroneous accomplice liability instruction does not relieve the State’s burden to prove every element of the crime charged, the error is harmless. Borrero, 147 Wn.2d at 365.
The jury only addressed whether Hongel was an accomplice to the manufacturing of methamphetamine on his property, which was the crime charged. The erroneous instruction did not relieve the State of its burden and was, therefore, harmless.
School Zone Enhancement
Although Hongel stipulated that his property was within the proscribed distance from a bus stop to satisfy the school zone enhancement, he now asserts that this enhancement was improper because the evidence presented was insufficient to link him to the manufacturing activities on his property. RCW 69.50.435 enhances an offender’s sentence if the manufacturing of a controlled substance occurs ‘[w]ithin one thousand feet of a school bus route stop designated by the school district.’
RCW 69.50.435(a)(3). School zone enhancements apply to an accomplice’s sentence. State v. Silva-Baltazar, 125 Wn.2d 472, 483, 886 P.2d 138
(1994).
Hongel claims only that there is no evidence that he participated in the manufacturing activities that occurred on his property between February 7 and 9, 1999. Evidence is sufficient if, viewing the evidence in the light most favorable to the State, any rational trier of fact could find the defendant guilty beyond a reasonable doubt. State v. Gallagher, 112 Wn. App. 601, 613, 51 P.3d 100 (2002), review denied, 148 Wn.2d 1023 (2003) (citing State v. Bencivenga, 137 Wn.2d 703, 706, 974 P.2d 832 (1999)). Hongel was on the property on February 8 and 9. Hongel and Peck discussed chemicals used to manufacture methamphetamine. Hongel gave Peck money to purchase red phosphorous used in manufacturing methamphetamine. And Peck and Otterson manufactured methamphetamine in Peck’s trailer on Hongel’s property on February 7 or 8. Therefore, there is sufficient evidence for a rational trier of fact to conclude that methamphetamine was manufactured on Hongel’s property with his knowledge and assistance and within 1,000 feet of a school bus stop. The school bus zone enhancement was proper.
Firearm Enhancement
Hongel also contends that there is insufficient evidence to support the firearm enhancement. If the jury finds that `the accused or an accomplice was armed with a deadly weapon at the time of the commission of the crime,’ the sentence of the defendant and the accomplice may be increased. RCW 9.94A.602, .510(3). The defendant or accomplice must be within proximity to the deadly weapon and that weapon must be accessible and readily available. State v. Schelin, 147 Wn.2d 562, 572, 55 P.3d 632
(2002). There must also be a nexus between the defendant or accomplice, the weapon, and the crime. Schelin, 147 Wn.2d at 572. The mere presence of a weapon is not sufficient to impose a firearm enhancement. Schelin, 147 Wn.2d at 570. The record shows that a firearm was present on Hongel’s property and was within proximity of Peck’s reach when Peck was arrested. The jury could infer from this evidence that Peck was using the weapon to protect his methamphetamine manufacturing and could have used it against the police when they entered. See Schelin, 147 Wn.2d at 574-75. The evidence is, therefore, otherwise sufficient for the firearm enhancement.
Accordingly, we affirm Hongel’s conviction for manufacturing methamphetamine with both the school zone enhancement and the firearm enhancement. 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.
ARMSTRONG and SEINFELD, JJ., concur.