No. 20652-1-III.The Court of Appeals of Washington, Division Three. Panel Two.
Filed: November 5, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Spokane County, No. 011000218, Hon. James M. Murphy, November 13, 2001, Judgment or order under review.
Counsel for Appellant(s), David N. Gasch, P.O. Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Kevin M. Korsmo, Spokane County Prosecutor’s Office, W. 1100 Mallon, Spokane, WA 99260.
Andrew J. Metts III, Deputy Prosecuting Attorney, 1100 W Mallon Ave, Spokane, WA 99260-0270.
KENNETH H. KATO, J.
Douglas E. McGowan appeals his conviction for manufacturing methamphetamine. He contends the court improperly failed to determine whether the search of his residence was consensual. He also contends the evidence was insufficient to convict him. We affirm.
Officers went to Mr. McGowan’s residence to arrest him on August 24, 2000, for violating probation conditions. While inside the residence, officers noticed various items that made them suspect that a methamphetamine lab was present. Also, while Mr. McGowan was handcuffed on a couch, a woman entered the room and motioned with her head as if she wanted to talk to Mr. McGowan in an adjacent room.
An officer asked Mr. McGowan to consent to a search of the residence. He testified later that he `had no problem with signing a consent.’ Report of Proceedings at 130. Officers then searched the entire residence and found various items that led an expert to conclude methamphetamine was being manufactured there.
Mr. McGowan was charged with manufacturing a controlled substance, and a jury found him guilty.
On appeal, Mr. McGowan first contends the court erred by failing to determine whether his consent to search the residence was valid. A warrantless search conducted with consent is proper if the State shows by clear and convincing evidence that the consent was valid. State v. Hastings, 119 Wn.2d 229, 234, 830 P.2d 658 (1992); State v. Flowers, 57 Wn. App. 636, 644-45, 789 P.2d 333, review denied, 115 Wn.2d 1009
(1990). Consent is valid if `voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances.’ Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Smith, 115 Wn.2d 775, 789, 801 P.2d 975 (1990).
Mr. McGowan did not raise this issue before the trial court, thus depriving it of the opportunity to conduct a factfinding hearing on the question. An appellate court generally will not consider an issue raised for the first time on review. RAP 2.5(a). However, a party who failed to object to the court below may raise an issue on appeal if it is a `manifest error affecting a constitutional right.’ RAP 2.5(a)(3). To demonstrate an error is manifest, an appellant must show the alleged error `actually affected his or her rights.’ State v. McNeal, 145 Wn.2d 352, 357, 37 P.3d 280 (2002). `If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest.’ State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
Here, the only evidence in the record relating to the issue of consent actually indicates the consent was voluntary. Mr. McGowan thus has failed to establish the existence of a `manifest error,’ and we decline to address the issue.
Mr. McGowan next contends the evidence was insufficient to establish that he participated in the manufacturing of methamphetamine. We must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). We must draw all reasonable inferences in the State’s favor and interpret them most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136
(1977). The elements of a crime may be established by either direct or circumstantial evidence, and one type of evidence is no less valuable than the other. State v. Thompson, 88 Wn.2d 13, 16, 558 P.2d 202, appeal dismissed, 434 U.S. 898 (1977); State v. Brooks, 45 Wn. App. 824, 826, 727 P.2d 988 (1986).
Mr. McGowan concedes there was ample evidence that a methamphetamine lab was operating in his residence, but he contends the State failed to present evidence linking him either to it or to the woman who was temporarily occupying the north upstairs bedroom, where most of the methamphetamine manufacturing materials were found.
Mr. McGowan testified the woman had arrived at the residence 24 hours earlier, carrying only a backpack, a laundry basket, and some other items. He said she was an overnight guest, whom he accommodated at the request of a friend. He testified he showed the woman to the north bedroom, and that was their last contact until police arrived. Mr. McGowan also testified the south upstairs bedroom was his bedroom, although one officer testified there was no bed in that room. He denied any knowledge that a methamphetamine lab was operating in the residence.
Although it is true that most of the lab equipment and materials were found in the north bedroom, other materials were found in the hallway and the bathroom. Also, an officer testified he smelled a chemical odor before entering the north bedroom. This evidence suggests Mr. McGowan knew about the lab’s operation. Moreover, the absence of a bed in his bedroom and the woman’s gesture to him suggests a closer relationship with her than he acknowledged at trial. These facts and inferences permitted the jury to find Mr. McGowan was manufacturing methamphetamine. The evidence was sufficient to convict him.
The conviction is affirmed.
A majority of the panel has determined 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: BROWN, C.J., SCHULTHEIS, J.