STATE v. RAMSTAD, 21297-1-III (Wash.App. 8-19-2003)

No. 21297-1-IIIThe Court of Appeals of Washington, Division Three. Panel Two.
Filed: August 19, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Spokane County Docket No: 01-1-02533-4 Judgment or order under review Date filed: 07/08/2002

Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206-6827.

Robert Melvin Ramstad, 1006 W. Mansfield #210, Spokane, WA 99205.

Counsel for Respondent(s), Kevin Michael Korsmo, Spokane County Prosecutors Office, Ms:st 1116 West Broadway Ave, Spokane, WA 99260.

Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.

SCHULTHEIS, J.

Police officers executed a search warrant at a house rented by Robert Ramstad and discovered a marijuana grow operation in the basement, where Mr. Ramstad’s housemate was living. A jury found Mr. Ramstad guilty of manufacture of a controlled substance. On appeal, he contends the evidence is insufficient to support a jury instruction on accomplice liability or to support his verdict. We disagree and affirm.

Facts
One morning in July 2001, four officers representing the Spokane Regional Drug Task Force executed a search warrant at the house rented by Mr. Ramstad. After knocking and announcing several times, the officers broke into the front door and found Mr. Ramstad standing in the hallway between two bedrooms. The odor of fresh marijuana permeated the house. In the basement, officers discovered Skycee Manuel in a bed. They also found 46 marijuana plants growing under fluorescent bulbs. The plants were over five feet tall and from three to four months old.

Mr. Ramstad denied knowledge of the marijuana growing in his basement. Officers found a cigarette rolling machine, drug paraphernalia, and a bowl filled with what appeared to be combined tobacco and marijuana on a living room table. A bowl of the same mixture was found in the dining room and in a jar in one of the main floor bedrooms. This same bedroom contained photos of Mr. Ramstad as a professional wrestler and prescription bottles in his name. Officers also found drug paraphernalia and books on growing marijuana and mushrooms in this bedroom. Four sets of scales were found in the kitchen, along with a bowl of marijuana.

The State charged Mr. Ramstad by information with one count of the manufacture of a controlled substance: marijuana (RCW 69.50.401(a)). At trial, defense counsel established that although Mr. Ramstad was the renter of the property and was responsible for paying all utilities, Mr. Manuel had paid $200 to Mr. Ramstad for rent in both April and May 2001.

At the close of the State’s case, defense counsel moved to dismiss for insufficient evidence. He argued that the State proved nothing more than a landlord-tenant relationship between Mr. Ramstad and Mr. Manuel. Citing the obvious odor of marijuana in the house and the book on growing marijuana in Mr. Ramstad’s bedroom, the trial court denied the motion. The defense rested without presenting evidence. Defense counsel’s exception to the court’s instruction on accomplice liability was unsuccessful. The jury found Mr. Ramstad guilty as charged. Jury Instruction on Accomplice Liability

Mr. Ramstad first contends the trial court erred in giving a jury instruction on accomplice liability. He argues that the evidence does not support such an instruction.

A party is entitled to jury instructions that are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law. State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002). We review the adequacy of jury instructions de novo, and will find prejudicial error if the instructions submit an issue to the jury that is not warranted by the evidence. Id. at 626-27.

In this case the accomplice instruction, closely following the provisions of the complicity statute, RCW 9A.08.020, states as follows:

A person who is an accomplice in the commission of the crime is guilty of that crime whether present at the scene or not.

A person is an accomplice in the commission of the crime if, with knowledge that it will promote or facilitate the commission of the 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.

The word `aid’ means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.

Clerk’s Papers at 15. Mr. Ramstad does not challenge the legal legitimacy of the instruction, which is modeled on a version of 11 Washington Pattern Jury Instructions: Criminal 10.51 (2d ed. 1994) that complies with RCW 9A.08.020(3)[1] and State v. Borrero, 147 Wn.2d 353, 364, 58 P.3d 245 (2002). He confines his argument to the evidentiary basis for the instruction.

To establish accomplice liability, the State must present evidence demonstrating more than the defendant’s physical presence at the scene and assent to the crime committed. State v. Roberts, 80 Wn. App. 342, 355, 908 P.2d 892 (1996). `The State must prove that the defendant was ready to assist in the crime.’ State v. Luna, 71 Wn. App. 755, 759, 862 P.2d 620 (1993). In determining whether the evidence supports a particular jury instruction, we view the evidence in the light most favorable to the party that requested the instruction. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000).

Here, viewed in the light most favorable to the State, the evidence at trial (1) established that Mr. Ramstad rented and resided in the house wherein the growing marijuana was found; (2) suggested that Mr. Ramstad knew of the marijuana because the house was permeated with the strong scent of fresh marijuana; and (3) suggested that Mr. Ramstad assisted in the growing and processing of the plants, due to the presence of the book on growing marijuana found in Mr. Ramstad’s bedroom as well as the scales and cigarette rolling machine found in the common areas of the house. Viewed in the light most favorable to the State, this evidence is sufficient to support the theory that Mr. Ramstad aided in the manufacture of marijuana. Consequently, the trial court did not err in instructing the jury on accomplice liability.

Sufficiency of the Evidence

Mr. Ramstad also contends the evidence does not support the verdict. As with his challenge to the accomplice liability instruction, he argues that the State failed to prove more than a landlord-tenant relationship with Mr. Manuel, who he contends was the actual manufacturer of the marijuana.

The State is required to prove beyond a reasonable doubt each element of the crime charged. State v. Martinez, 105 Wn. App. 775, 785, 20 P.3d 1062 (2001). We will find the evidence sufficient if, viewed in the light most favorable to the State, the evidence would allow a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. Id. Circumstantial evidence is deemed as reliable as direct evidence. Id. at 786.

Mr. Ramstad was charged with manufacture of a controlled substance, RCW 69.50.401(a). Manufacture is defined as `the production, preparation, propagation, compounding, conversion, or processing of a controlled substance.’ RCW 69.50.101(p). Production is further defined as `the manufacturing, planting, cultivating, growing, or harvesting of a controlled substance.’ RCW 69.50.101(y). Mr. Ramstad contends the evidence shows at most that he knew Mr. Manuel had marijuana growing in the basement. He asserts that nothing in the record indicates he propagated, cultivated, grew, harvested, or processed marijuana, or that he aided or encouraged Mr. Manuel to do so.

As noted in the discussion of the accomplice liability instruction, the evidence offered at trial indicates that Mr. Ramstad knew marijuana was being grown in the basement and that he was present at the scene of its production. Because mere presence and assent are not sufficient to establish complicity, we must also find evidence of Mr. Ramstad’s readiness to assist in the manufacture of marijuana. In re Welfare of Wilson, 91 Wn.2d 487, 491, 588 P.2d 1161 (1979).

Mr. Ramstad assisted this crime if the evidence shows he associated himself with the manufacture of marijuana, participated in it as something he desired to bring about, and sought by his action to make it succeed. Id. (quoting State v. J-R Distribs., Inc., 82 Wn.2d 584, 593, 512 P.2d 1049 (1973)). The book on growing marijuana found in Mr. Ramstad’s bedroom, when viewed in the light most favorable to the State, creates a reasonable inference that he was at least poised to participate in the manufacture of marijuana and to assist in the success of the enterprise. As the State notes, the presence of marijuana throughout the house indicates that Mr. Ramstad’s interest in its growth was not purely academic. Additionally, the scales found in the kitchen suggest that he participated in processing the marijuana. This evidence allowed a rational juror to find the essential elements of manufacture of a controlled substance beyond a reasonable doubt. Martinez, 105 Wn. App. at 785.

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.