STATE v. REVETRIA, 30200-4-II (Wash.App. 6-22-2004)

No. 30200-4-II.The Court of Appeals of Washington, Division Two.
Filed: June 22, 2004. UNPUBLISHED OPINION

Appeal from Superior Court of Lewis County. Docket No: 02-1-00827-0. Judgment or order under review. Date filed: 04/04/2003. Judge signing: Hon. David Draper.

Counsel for Appellant(s), David William Brown, Enbody Dugaw, 107 S Tower Ave, Centralia, WA 98531-4221.

Counsel for Respondent(s), Brandy Marshelle Meyer, Eklund Rockey Stratton PS, 521 2nd Ave W, Seattle, WA 98119-3927.

QUINN-BRINTNALL, C.J.

A jury convicted Debbie May Revetria of one count of manufacturing methamphetamine. Revetria appeals, claiming that there was insufficient evidence to support her conviction because the State failed to prove that she actually manufactured methamphetamine and that she manufactured methamphetamine on or about January 4, 2002, as alleged in the charging document. Because Revetria raised an alibi defense and the State failed to establish that Revetria was present on the property after November 20, 2001, we reverse and remand for dismissal of Revetria’s conviction with prejudice.

FACTS
In October 2001, co-defendant Gott placed a trailer on Venus Hamilton’s property in Lewis County and began living in it with his fianc’e, Revetria. Revetria and Gott agreed to pay Hamilton $75 per week as rent. In late November 2001, Hamilton and Revetria argued and Hamilton ordered Revetria off her property. Between November 20, 2001 and January 4, 2002, Revetria stayed in motels and with friends. Revetria also spent two weeks in jail during November and December 2001.

On January 4, 2002, Deputy Bruce Kimsey and Sergeant Steven Aust from the Lewis County Sheriff’s Office went to the Hamilton property to investigate a possible methamphetamine laboratory in a trailer. With Hamilton’s permission, Kimsey and Aust inspected the area around the trailer and saw several items used in manufacturing methamphetamine and also noticed a strong chemical odor. Aust then sealed the trailer with evidence tape and had it towed to a wrecking yard. On January 8, 2002, members of the Unified Narcotics Enforcement Team, the Lewis County Sheriff’s Office, and the Centralia Police Department executed a search warrant on the trailer. The investigators recovered several items that indicated the presence of a methamphetamine laboratory, including red-stained coffee filters, muriatic acid, anhydrous ammonia, a pressure cooker, and allergy medicines from which to extract ephedrine. The investigators also recovered processed methamphetamine. The State then charged both Revetria and Gott with one count of manufacturing methamphetamine and a jury convicted both defendants. Revetria filed a motion to arrest the jury’s judgment, which the trial court denied. Revetria appeals.

ANALYSIS
On appeal, Revetria challenges both the jury’s verdict and the trial court’s denial of her motion to arrest judgment. Both of these challenges are based on Revetria’s assertion that there is insufficient evidence that she manufactured methamphetamine. Revetria claims that the State failed to prove two elements: (1) that she personally manufactured methamphetamine and (2) that the manufacturing of methamphetamine occurred on or about January 4, 2002. The State asserts that there was sufficient evidence of a methamphetamine laboratory on the property where Revetria acknowledged having lived. And it argues that the jury was free to disbelieve Revetria’s defense that she was not present on the property at the time of the charged crime.

Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). `A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.’ Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

To demonstrate that Revetria manufactured methamphetamine, the State must show that Revetria either produced, prepared, propagated, compounded, converted, or processed methamphetamine. State v. Todd, 101 Wn. App. 945, 952, 6 P.3d 86 (2000) (citing RCW 69.50.101(p)), overruled on other grounds by State v. Rangel-Reyes, 119 Wn. App. 494, 81 P.3d 157 (2003). When the State produces evidence that included components of a methamphetamine laboratory and can link those components to the defendant, the evidence is sufficient for the trier of fact to convict the defendant. Todd, 101 Wn. App. at 952-53. Although some of the necessary materials may be absent, the evidence is sufficient if police find several necessary materials that suggest no purpose other than to manufacture methamphetamine. State v. McPherson, 111 Wn. App. 747, 758-59, 46 P.3d 284 (2002).

We first note that there is sufficient evidence to prove that there was a methamphetamine laboratory in Revetria’s trailer. Detective Lee executed the search warrant on Revetria’s trailer on January 8, 2002. Several items were seized that indicated the presence of a methamphetamine laboratory. The recovered items included:

A seven-gallon propane tank with anhydrous ammonia, which is used to manufacture methamphetamine;
A strainer, surgical tubing, and a plastic bottle used as a hydrochloric acid generator in methamphetamine manufacture;
Muriatic acid, drain opener, and Heat, which are used in various stages of methamphetamine manufacture;
Coffee filters with a ground red substance, which is indicative of red phosphorus;
Yellow pressure cooker, which cooks the Mason jar to produce methamphetamine;
Five-gallon bucket containing a coffee carafe, with a yellow liquid and coffee filters;
Microwave oven, used to dry newly manufactured methamphetamine; and Several types of allergy medicine, which is used to extract ephedrine, a primary precursor to manufacturing methamphetamine.

The State Crime Laboratory tested several substances found at Revetria’s trailer which tested positive for methamphetamine. Though here methamphetamine substance was found at the trailer, there is sufficient evidence of manufacturing methamphetamine when the ingredients and equipment are present even if the manufacturing process is incomplete. State v. Hepton, 113 Wn. App. 673, 682-83, 54 P.3d 233 (2002), review denied, 149 Wn.2d 1018 (2003).

We now consider whether there is sufficient evidence that Revetria manufactured methamphetamine on or about January 4, 2002. `[W]here time is not a material element of the charged crime, the language `on or about’ is sufficient to admit proof of the act at any time within the statute of limitations, so long as there is no defense of alibi.’ State v. Hayes, 81 Wn. App. 425, 432, 914 P.2d 788, review denied, 130 Wn.2d 1013 (1996). Time is not a material element of the offense of manufacturing methamphetamine, thus, the State would normally only need to prove that the act occurred anytime within the statute of limitations. See RCW 69.50.401(d). But here Revetria claims that she was not present on the property after November 20, 2001; thus, by its own drafting, the charging language required the State to prove beyond a reasonable doubt that Revetria manufactured methamphetamine `on or about’ January 4, 2002.

Because Revetria asserted an alibi defense, the time of the offense alleged in the information became a material element that the State had to prove beyond a reasonable doubt. Revetria testified that she and Gott moved onto Hamilton’s property on October 15, 2001. Revetria and Gott stayed until Hamilton ordered Revetria off the property on November 20, 2001. Revetria then stayed with a friend until she went to jail around November 25, 2001. Revetria was released from jail on December 10, 2001, and she stayed with Gott at the Seasons Hotel for five days. Gott and Revetria then moved to the Mayfield Motel, where the couple stayed until December 31, 2001. Gott was arrested and placed in the King County jail until Revetria arranged bail for his release on January 4, 2002. Sometime between December 31 and January 4, Revetria did testify that she briefly returned to the property to ask Hamilton for bail money, but Hamilton refused to help. Revetria also testified that she allowed an individual named Tracy Boyd to stay in the trailer between December 31 and January 4. Revetria testified that she was in King County on January 4 arranging for Gott’s release. Revetria did not specify her exact location between December 31 and January 4, but only said that she was trying to secure bail money for Gott’s release.

A defendant who raises the alibi defense is denying the State’s claim that the defendant was present at the scene of the crime at the time of its commission. State v. Johnson, 19 Wn. App. 200, 205, 574 P.2d 741
(1978). Moreover, by asserting an alibi defense, the defendant is not expressly or impliedly admitting the State’s other averments. Cf. Johnson, 19 Wn. App. at 205 (self-defense claim). But, by asserting that she was in a different location at the time of the crime, the defendant necessarily denies responsibility for the allegations in the charge. Johnson, 19 Wn. App. at 205. Thus, alibi is an affirmative defense and the defendant must first set forth evidence supporting an alibi claim. Johnson, 19 Wn. App. at 205-06. But, because the State always retains the burden of proving that the defendant was present or had dominion and control over the crime scene during commission of a continuing offense, the defendant need not prove that she was at a particular location, but need only raise a reasonable doubt that she was not at the scene. Johnson, 19 Wn. App. at 206.

We agree with the State that the jury was free to disbelieve the defendant’s alibi. State v. Fernandez-Medina, 141 Wn.2d 448, 461 n. 11, 6 P.3d 1150 (2000) (quoting People v. Bryant, 80 Mich. App. 428, 264 N.W.2d 13, 16 (1978). But once Revetria raised the alibi defense, the State then had the burden to prove that she was present manufacturing methamphetamine `on our about January 4, 2002,’ when she established she was at the King County jail posting bail. Moreover, the State did not present evidence that Revetria was on the property after November 20, 2001, or that methamphetamine was being manufactured in the trailer when Revetria was living on the property. While the jury was free to disbelieve Revetria’s alibi, the State presented no evidence that contradicted Revetria’s alibi nor did the State establish that the methamphetamine was freshly manufactured on or about January 4, 2002, or continuously manufactured from a time when Revetria was present.

Thus, we reverse Revetria’s conviction and remand to the trial court with directions that the charge be dismissed with prejudice.

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.

MORGAN, J., HUNT, JJ., concur.