Summary
holding possession is not a lesser included offense of manufacturing because under applicable Washington statutes, manufacturing can be committed if a defendant is working with lab equipment and partially processed methamphetamine; therefore, it is possible to be guilty of manufacturing without possessing the controlled substance
Summary of this case from State v. UsherOpinion
No. 49423-6-I, c/w 49445-7-I, 49708-1-I.
Filed: July 21, 2003. PUBLISHED IN PART. DO NOT CITE UNPUBLISHED PORTION. SEE RAP 10.4(h).
John R. Crowley (of Crowley Leen), for appellant Davis.
Dana M. Nelson (of Nielsen, Broman Koch, P.L.L.C.), for appellant Pecheos.
Rita Joan Griffith, for appellant Fahrenkrug.
Norm Maleng, Prosecuting Attorney, and Robin E. Sheridan, Deputy, for respondent.
In these three consolidated appeals, appellants challenge their convictions and sentences for manufacturing methamphetamine. Appellant Michael Fahrenkrug also challenges his conviction for unlawful possession of a firearm, as well as the jury's special verdict finding that he possessed the firearm while he manufactured methamphetamine. In the published portion of this opinion, we hold that drug possession cannot be a lesser included offense of drug manufacturing. In the unpublished portion of this opinion, we affirm all three defendants' convictions but reverse Fahrenkrug's firearm enhancement, which we dismiss due to insufficient evidence.
FACTS
On March 6, 2001, Cameron Wilson called the Federal Way police department to report his suspicions that people were manufacturing methamphetamine at the house of his neighbor, Joyce Hackett. Wilson reported seeing constant car and foot traffic at the house. He also could see people moving tanks, canisters, and buckets in and out of his neighbor's basement and into a moving truck. Federal Way Detective Casey Jones, who specialized in investigating methamphetamine laboratories (`meth labs'), asked Wilson to keep track of the cars and license plate numbers at Hackett's house.
Two days later, Detective Jones and another detective conducted surveillance outside Hackett's home. They saw at least five cars come and go, each remaining for less than five minutes. They also noticed a U-Haul truck parked in the driveway, which several people opened at various times. In the meantime, Wilson continued to write down license numbers of people visiting Hackett's house. He recorded 23 different plate numbers within four days.
A week later, Wilson called the police again, this time by dialing 911. He had been sitting at his kitchen table eating breakfast when he saw four men carrying several tanks and supplies from Hackett's basement and putting them into the moving van. He called 911 and described the activity to the operator. He said someone had removed the van's license plate and replaced it with another. He also said one of the men was carrying a silver gun with a black handle in a shoulder holster. Wilson later identified that man as appellant Fahrenkrug. Wilson repeatedly asked that he remain anonymous, and he asked the operator to tell the police to wait until the suspects left the driveway to make any arrest so the suspects would not know he was involved.
The 911 operator dispatched several police officers to the scene. When they arrived, the moving van's door was open and the contents were exposed. From several feet away, they could see that the truck contained several propane and ammonia tanks. They noticed a strong, acidic odor emanating from the moving van.
A man, later identified as Martin Davis, came out of the front door of the house carrying a jacket. Police told him to stop and drop his jacket. He dropped the jacket and started to run, but he stopped when police threatened to shoot. Police arrested him and found a revolver in his front pocket, another gun in his jacket, and three knives on his belt and in his pockets.
Police shouted for the people inside the house to come out. Hackett and her children came out of the house, followed soon thereafter by defendants Fahrenkrug and Constance Pecheos. All were arrested. Police learned that defendant Scott Davis, Martin's brother, was still inside the house.
Detective Casey Jones arrived about 15 minutes after the 911 call. Other officers told him that Davis was still inside the house. Police shouted and left a message on the house's answering machine urging Davis to come out. Another meth lab specialist, Detective Hanson, arrived about a half hour later. Jones and Hanson assembled a team who donned protective gear and went inside the house. They swept each room until they found Davis hiding in an upstairs closet. They arrested him and then continued to go into each room of the house. As they did so, they opened windows to ventilate the house and used a meter to measure the oxygen level. When they went into the basement, the oxygen level dropped. In the basement, Jones saw pots and pans, bases, solvents, lithium battery remnants, and empty packages of pseudoephedrine-based cold medicine, all of which he testified are used to make methamphetamine. He left and wrote an application for a search warrant, which police served the next day.
The State charged six defendants — including the appellants, Hackett, and two others — with manufacturing methamphetamine. The court set the joint trial for May 30, 2001, with a speedy trial expiration date of June 1. On May 30, the trial court held the case until June 1 because the deputy prosecutor assigned to the case was in trial. At that time five defendants remained. On June 1, the State informed defense counsel that Joyce Hackett intended to testify for the State. That same day, the court placed the case on `standby' because the deputy prosecutor was starting another trial that day with an earlier speedy trial expiration date. On Monday, June 4, 2001, the State requested a one-day extension. On that same day, Hackett entered a plea and became a witness for the State. The trial court granted the extension to June 5. On June 5, Fahrenkrug requested a continuance because defense counsel was scheduled to attend a legal seminar. Both parties signed an order continuing the trial until June 18, 2001. On June 14, Fahrenkrug filed his trial brief, which contained his motion to dismiss for violation of his CrR 3.3 speedy trial rights. On June 18, the State requested a one-day extension because the prosecutor was still in trial on another matter.
On June 19, the four remaining parties convened and the court granted the State's motion to exclude witnesses, which commenced the trial for speedy trial purposes. The parties then discussed their scheduling situations. Counsel for codefendant Daniel Longan participated by teleconference because he was in trial on another matter. He said he expected the other trial to conclude by June 25. Counsel for appellant Scott Davis noted she had a vacation scheduled for July 16-27. Further, the parties informed the court that an interview with witness Wilson still had to take place. The defendants also noted that the speedy trial period had expired on June 1. The court granted a recess until June 25.
The parties reconvened on June 27, the day Longan's attorney finished his trial. Fahrenkrug and the other defendants moved to dismiss on speedy trial grounds and for prosecutorial mismanagement. The trial court denied the motions, finding no mismanagement and finding good cause for extensions due to the attorneys' scheduling conflicts. Defendant Longan pleaded guilty and the remaining three defendants proceeded to trial.
The jury convicted all three defendants of manufacturing methamphetamine. They also convicted Fahrenkrug of unlawful possession of a firearm and found he possessed the firearm while manufacturing methamphetamine.
Additional facts are discussed where relevant.
1. Possession as Lesser Included Offense of Manufacturing
Appellant Davis argues that the trial court improperly denied his request for an instruction on the lesser included offense of drug possession. We hold that a defendant need not possess a drug to manufacture it, so possession cannot be a lesser included offense of the crime of manufacturing. The trial court, therefore, did not err in failing to give the proposed instruction.
Under the `Workman test,' a trial court should give a lesser included offense instruction where (1) each element of the lesser offense is a necessary element of the greater offense, and (2) the facts support an inference that only the lesser offense was committed. State v. Berlin, 133 Wn.2d 541, 545-46, 947 P.2d 700 (1997) (citing State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978)). The first prong of this test is a legal prong, whereas the second is a factual prong. Berlin, 133 Wn.2d at 546. If the legal prong is not satisfied, the lesser crime cannot be included within the greater, and we need not address the factual prong of the test.
No Washington case directly addresses whether drug possession can be a lesser included offense of drug manufacturing under the legal prong of the Workman test. A crime can be a lesser included offense of another crime if the greater crime, as charged and prosecuted, necessarily encompasses all the elements of the lesser crime. But where certain crimes are included within another only under the facts of a particular case, the first Workman prong is not satisfied. Seth Fine Douglas J. Ende, 13A Washington Practice: Criminal Law sec. 106, at 10 (2d ed. 1998) (citing State v. Harris, 121 Wn.2d 317, 849 P.2d 1216 (1993)). If it is possible to commit the greater offense without committing the lesser offense, the latter is not an included crime. Harris, 121 Wn.2d at 321.
In this case, therefore, the pivotal question is whether, under the Washington Uniform Controlled Substance Act, chapter 69.50 RCW, it is possible to manufacture a drug without possessing it. It is. The UCSA defines the crime of drug manufacturing broadly:
`Manufacture' means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container. . . .
RCW 69.50.101(p). As the evidence in this case demonstrates, one can make a number of drugs, including methamphetamine, from ingredients that are not in themselves controlled substances. And under the above definition, a person who knowingly plays even a limited role in the manufacturing process is guilty, even if someone else completes the process. Thus, a person need not possess the final product in order to engage `indirectly' in the `production, preparation, propagation, compounding, conversion, or processing of a controlled substance.' RCW 69.50.101(p). In fact, courts have found evidence sufficient to support convictions for manufacturing methamphetamine where the defendants possessed lab equipment and partially processed methamphetamine, but not the final product. See State v. Todd, 101 Wn. App. 945, 952, 6 P.3d 86 (2000); State v. Hepton, 113 Wn. App. 673, 682-83, 54 P.3d 233 (2002).
Davis argues that even though a person need not actually possess drugs to be guilty of manufacturing them, possession is still a lesser included offense because a person must at least constructively possess drugs to manufacture them. We disagree. A person constructively possesses drugs if he or she exercises dominion or control over them. See State v. Roberts, 80 Wn. App. 342, 353, 908 P.2d 892 (1996). Exclusive control is not necessary to establish constructive possession, but mere proximity to drugs is insufficient. State v. Bradford, 60 Wn. App. 857, 862, 808 P.2d 174 (1991). But even under a broad definition of constructive possession, a person could knowingly manufacture a controlled substance without constructively possessing it. A person who participates in the beginning stages of manufacture does not exercise dominion or control over the eventual finished product by merely taking part in the process of creating it. Rather, such a person merely exercises dominion and control over the components of the drug before they become a controlled substance.
Further, it is immaterial, under the legal prong of the Workman analysis, that the case as presented by the State involved possession and use of the finished product by all the defendants. The question is whether it is possible to commit the greater offense, as charged, without committing the lesser offense. Harris, 121 Wn.2d at 321; Berlin, 133 Wn.2d at 550. Although possession is usually inherent in manufacture, that is not invariably the case, so possession cannot be a lesser included offense. See Seth Fine and Douglas Ende, supra, at 10 (citing State v. Markle, 118 Wn.2d 424, 433-37, 823 P.2d 1101 (1992)).
Davis's reliance on State v. Moore, 54 Wn. App. 211, 219, 773 P.2d 96 (1989) is misplaced. In Moore, this court held that it did not violate double jeopardy to convict a defendant of both possessing over 40 grams of marijuana and manufacturing a controlled substance. In reaching that decision, we neither agreed nor disagreed with Moore's contention that `one cannot manufacture marijuana without possessing it.' Instead, we based our holding on the fact that there is no minimum weight requirement for manufacturing, so the elements of the two crimes are not identical. Moore, 54 Wn. App. at 219. Thus, we never directly addressed the issue of whether possession is included in manufacture.
Davis also cites cases from two jurisdictions that have held that drug possession may be a lesser included offense of manufacturing. See Patton v. People, 35 P.3d 124, 130-31 (Colo. 2001); Craig v. State, 314 Ark. 585, 863 S.W.2d 825 (1993). See also Amado v. State, 585 So.2d 282 (Fla. 1991); People v. Freeman, 460 N.E.2d 125 (Ill.App. 1984). But the majority of jurisdictions that have decided the issue have reached the opposite conclusion. See Hardie v. State, 79 S.W.3d 625 (Tex.Crim.App. 2002); State v. Spivie, 581 N.W.2d 205 (Iowa App. 1998); State v. Guzman, 914 P.2d 1120, 1123 (Or. App. 1996); Galbreath v. State, 443 S.E.2d 664, 665 (Ga.App. 1994); State v. Peck, 422 N.W.2d 160 (Wis.App. 1988); State v. Jenkins, 328 S.E.2d 460 (N.C. App. 1985). See also United States v. Campbell, 652 F.2d 760 (8th Cir. 1981) (holding marijuana possession not necessarily included in crime of attempting to introduce marijuana into federal correctional facility); Kelly v. United States, 125 U.S.App.D.C. 205, 370 F.2d 227 (1966) (holding possession not necessarily included in crime of facilitating narcotic sale or concealment).
Further, the cases from other jurisdictions that Davis cites in support of his argument lack persuasive reasoning. In Patton, the court analogized to cases holding that possession is necessarily included in unlawful use of a controlled substance. Patton, 35 P.3d at 131 (citing People v. Villapando, 984 P.2d 51 (Colo. 1999). The court reasoned that `[s]imilarly, we can envision no scenario in which an individual can manufacture methamphetamine without also possessing it.' Patton, 35 P.3d at 131. As the above discussion illustrates, however, such a scenario can be envisioned under Washington's broad manufacturing statute.
We also find Craig unpersuasive. In that case, the court reasoned that possession includes both actual and constructive possession, so `[i]n proving the offense of manufacturing, the state must necessarily show the defendant has control of the controlled substance in order to manufacture it. That being so, possession of the substance is necessarily a lesser included of the offense of manufacturing.' Craig, 863 S.W.2d at 827. The court therefore held that it violated double jeopardy to charge the defendant with manufacturing a marijuana plant after convicting him of possessing the same plant. But the Craig court failed to envision the applicability of its holding on drugs other than marijuana, such as methamphetamine, in which the manufacturing process begins with components that are not themselves controlled substances. As concluded above, a defendant can engage in methamphetamine manufacturing without possessing, actually or constructively, the controlled substance that is the final product.
The statutory definition of `manufacture' in Craig was functionally identical to Washington's. Craig, 863 S.W.2d at 827 (citing Ark. Code Ann. sec. 5-64-101(m) (Supp. 1991).
We therefore conclude that the legal prong of the Workman test was not satisfied in this case. Drug possession cannot be a lesser included offense of manufacturing. Accordingly, the trial court properly refused to give the Davis proposed instruction on possession.
The remainder of this opinion has no precedential value. Therefore, it will be filed for public record but will not be published. RCW 2.06.040.
GROSSE and APPELWICK, JJ., concur.
2. ER 404(b)
Appellant Pecheos argues that the trial court abused its discretion under ER 404(b) when the court admitted drug paraphernalia, packaging, and methamphetamine residue police found in her purse. Pecheos argues that because the State charged Pecheos with manufacture but not possession of methamphetamine, those items were not relevant. We disagree. The items were relevant because they helped establish that Pecheos was involved in the manufacturing operation, and the trial court properly determined that their probative value outweighed their prejudicial effect.
At trial, the State sought to introduce a pipe, tubing and lighter, a baggie containing methamphetamine, and a number of empty baggies, all of which police found inside Pecheos' purse. The jury heard testimony that baggies of the kind found in Pecheos' purse are commonly used to package and sell methamphetamine. Pecheos objected, arguing that because the State did not charge her with possession or delivery, those items were irrelevant and highly prejudicial. The trial court ruled that evidence of methamphetamine use and delivery was relevant to show that Pecheos was also involved in manufacturing.
Evidence of other crimes or misconduct is inadmissible to prove character or action in conformity therewith, but such evidence is admissible if it is relevant for another, permissible purpose. ER 404(b). Evidence is relevant if it has `any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' ER 401. Even where evidence of prior bad acts is relevant, the court has the discretion to exclude it if it is unfairly prejudicial and its potential for unfair prejudice outweighs its probative value. ER 403. This court will not reverse a trial court's decision to admit evidence under ER 404 unless the trial court has abused its discretion. Radford v. City of Hoquiam, 54 Wn. App. 351, 354, 773 P.2d 861 (1989).
The trial court properly admitted the items found in Pecheos' purse that tended to show use or distribution of methamphetamine. Pecheos told the police that she was merely helping Hackett remove equipment because Hackett was tired of people cooking drugs in her house. The fact that methamphetamine was found in Pecheos' purse, along with a number of small street-sized baggies, is highly relevant because it raises the strong inference that her involvement with the lab was more than she asserted. Further, the baggies tended to show that Pecheos was involved in `packaging,' which is included in the definition of drug manufacturing. RCW 69.50.101(p). The evidence was relevant to establish Pecheos' involvement with the meth lab, and the trial court did not abuse its discretion in determining that its probative value outweighed any incidental prejudice under the facts of this case.
3. Community Custody
Pecheos and Davis also ask this court to remand their sentences for recalculation of the community custody periods. They argue that the trial court's imposition of community custody for 9 to 12 months `or up to the period of earned early release awarded . . . whichever is longer' is too imprecise. See State v. Jones, 93 Wn. App. 14, 17, 968 P.2d 2 (1998) (citing Grant v. Smith, 24 Wn.2d 839, 840, 167 P.2d 123 (1946)) (sentence must be `definite and certain'). But we already decided this issue in State v. Mitchell, 114 Wn. App. 713, 59 P.3d 717 (2002) (holding sentence of 9 to 12 months or entire period of earned early release sufficiently definite and certain where potential early release award exceeded maximum community placement period). Pecheos and Davis are both eligible for earned early release that exceeds the 12-month maximum period of community custody. This case is therefore distinguishable from State v. Nelson, 100 Wn. App. 226, 231, 996 P.2d 651 (2000), on which the defendants rely, and indistinguishable from Mitchell. Accordingly, we need not reach the State's argument that Nelson was wrongly decided. Under Mitchell, the language of the sentencing order was sufficiently precise and does not require remand.
The aggregate earned release award may equal but not exceed one-third of the total sentence. RCW 9.94A.728 (formerly RCW 9.94A.150(1)). The portion of the sentence that represents a firearm enhancement is not eligible for earned early release. RCW 9.94A.728(1). Pecheos was sentenced to 75 months, so her maximum earned early release award would be 25 months. Davis was sentenced to 90 months for the manufacturing count, so his maximum earned early release award would be 30 months.
4. Speedy Trial
Appellant Fahrenkrug argues that the trial court should have dismissed his case for violation of his right to a speedy trial under CrR 3.3. But Fahrenkrug waived this issue by failing to timely object. Further, the parties' scheduling conflicts constituted tenable bases for continuing the trial date, so the trial court did not abuse its discretion in doing so. A defendant who is in custody must be brought to trial within 60 days after the date of arraignment. CrR 3.3(c)(1). A court may grant extensions of the CrR 3.3 speedy trial date due to `unavoidable or unforeseen circumstances beyond the control of the court or the parties.' CrR 3.3(d)(8). In addition, a court may grant a continuance `when required in the administration of justice and the defendant will not be substantially prejudiced[.]' CrR 3.3(h)(2).
At the outset, the State argues that Fahrenkrug waived this issue. We agree. A defendant waives the right to a speedy trial under CrR 3.3 if he or she fails to raise the issue when the court could still take action to avoid a speedy trial violation. Carson, 128 Wn.2d at 818-19. Fahrenkrug's attorney failed to object to the extensions when the court notified him on June 1 that the trial would be delayed, and he again failed to preserve any objection when he asked for a continuance on June 5. Not until he filed his trial brief on June 14 did Fahrenkrug raise the speedy trial issue in any manner. Fahrenkrug argues that he had no meaningful opportunity to object because the court could not have remedied the situation on June 1 when it called to inform him that it was putting his trial on standby. But Fahrenkrug does not demonstrate that he took any steps to put the court on notice that he found the delay to be unacceptable at the time it was granted, so his assertion that the court could not have done anything to remedy the situation is purely speculative. Further, Fahrenkrug's request for another continuance four days later strongly suggests that the delay did not prejudice him. We therefore hold that Fahrenkrug waived his speedy trial rights by failing to object and by requesting a continuance without preserving the speedy trial issue.
Further, even if Fahrenkrug had not waived the issue, we would conclude that the trial court had tenable bases for all the extensions it granted. We will not reverse a trial court's grant or denial of a motion for a continuance absent a showing of abuse of discretion. State v. Cannon, 130 Wn.2d 313, 326, 922 P.2d 1293 (1996). Although a `general allegation of docket congestion is insufficient reason to extend a trial setting beyond the time limits of the speedy trial rule,' a deputy prosecutor's scheduling difficulties due to ongoing trials and delays in assignment from the presiding judge are valid reasons for an extension. State v. Palmer, 38 Wn. App. 160, 162, 684 P.2d 787 (1984). See also Cannon, 130 Wn.2d at 326. Fahrenkrug argues that the deputy prosecutor's scheduling conflicts were indistinguishable from docket congestion and therefore could not be a valid basis for a continuance or extension. See Mack, 89 Wn.2d at 793. But numerous cases have rejected this argument, holding that a deputy prosecutor's involvement in another trial is a valid basis for continuing a case beyond the speedy trial deadline. See Carson, 128 Wn.2d at 814 (`Our courts of appeal have consistently held that unavailability of counsel may constitute unforeseen or unavoidable circumstances to warrant a trial extension under CrR 3.3(d)(8).' (Footnote omitted.) Further, a different result is not warranted in this case merely because the trial deputy started more than one trial before Fahrenkrug's, or because she started a new trial on Fahrenkrug's speedy trial expiration date. See Cannon, 130 Wn.2d at 327 (approving multiple extensions for deputy's involvement in other trials); State v. Raper, 47 Wn. App. 530, 539, 736 P.2d 680 (1987) (holding court properly granted extension due to deputy prosecutor's involvement in other trial starting the same day). Although a defendant's right to a speedy trial might eventually be violated if the court's multiple continuances and extensions caused prejudice to the defense, Fahrenkrug has demonstrated no such prejudice in this case. We therefore conclude that the extensions the court granted were within its discretion. Finally, we reject Fahrenkrug's argument that his trial did not actually commence on June 19, the date that the trial court granted the State's motion to exclude witnesses. A defendant's trial commences for purposes of CrR 3.3 when the court hears and disposes of preliminary motions. Carson, 128 Wn.2d at 820. A motion to exclude witnesses is such a motion. State v. Carlyle, 84 Wn. App. 33, 36, 925 P.2d 635 (1996). Further, we have held that a trial court does not violate a defendant's rights under CrR 3.3 when it grants a motion to exclude witnesses at a time when the court and parties are not actually ready to proceed with the rest of the trial. See State v. Andrews, 66 Wn. App. 804, 809, 832 P.2d 1373 (1992). Although we have noted that a different result may be appropriate if the State were to take advantage of this rule to justify an undue delay of the remainder of the trial, this is not such a case. See Andrews, 66 Wn. App. at 811. We therefore hold that the trial commenced when the trial court granted the State's motion to exclude witnesses on June 19.
5. Mismanagement
Fahrenkrug further argues that the trial court should have dismissed his case because of prosecutorial mismanagement. But the unforeseen developments of which Fahrenkrug complains were not caused by prosecutorial mismanagement, and he has not demonstrated prejudice. The trial court acted well within its discretion in refusing to dismiss under CrR 8.3.
A trial court's power to dismiss charges is reviewable under the manifest abuse of discretion standard. See State v. Warner, 125 Wn.2d 876, 882, 889 P.2d 479 (1995). "Discretion is abused when the trial court's decision is manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons." State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997) (quoting State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993)).
CrR 8.3(b) allows the trial court to dismiss cases `due to arbitrary action or governmental misconduct where there has been prejudice to the rights of the accused which materially affect the accused's rights to a fair trial.' A defendant seeking dismissal under this rule must show both (1) governmental misconduct and (2) prejudice. Blackwell, 120 Wn.2d at 831-32. The misconduct justifying dismissal need not be intentional, but may consist of simple mismanagement. Michielli, 132 Wn.2d at 243. Dismissal under this rule is, however, an "extraordinary remedy available only when there has been prejudice to the rights of the accused which materially affected his or her rights to a fair trial." Blackwell, 120 Wn.2d at 830 (quoting City of Spokane v. Kruger, 116 Wn.2d 135, 144, 803 P.2d 305 (1991)).
Courts have upheld dismissal when the State added new charges on the eve of trial, thereby forcing a defendant to choose between waiving speedy trial and going to trial unprepared. Michielli, 132 Wn.2d at 245. Courts have also dismissed where multiple acts of mismanagement by the prosecuting attorney had a cumulative detriment on the defendant's ability to prepare a case. See, e.g., State v. Sherman, 59 Wn. App. 763, 801 P.2d 274 (1990) (upholding dismissal for failing to provide discovery or witness list, amending information, and endorsing new witnesses after the trial originally scheduled to begin). But these cases are distinguishable in that they upheld the trial court's discretionary decision to dismiss, whereas, here, Fahrenkrug asks this court to hold that the trial court abused its discretion in failing to dismiss.
The multiple bases urged for dismissal are not persuasive to this court, and they are certainly not compelling enough to overturn the trial court on such a deferential standard of review. Fahrenkrug asked the trial court to dismiss because the State added new charges on the original speedy trial expiration date, failed to disclose a key witness until the original trial date, and failed to make another witness available for interviews. Fahrenkrug argues that it is `essentially unfair' for the State to prepare its case after the start of trial. Fahrenkrug also asserts mismanagement in the State's failure to disclose a 911 transcript and writing on the back of several photographs used to identify the defendants.
But viewing each of these events in context, the trial court acted well within its discretion when it refused to dismiss this case. First, the State's inability to make witnesses available sooner did not require dismissal. See State v. Wilson, 149 Wn.2d 1, 65 P.3d 657 (2003) (holding trial court abused discretion in dismissing for State's inability to make reluctant prosecution witness available for defense interview). One of the witnesses, Hackett, was a codefendant who pleaded guilty at the last minute and agreed to testify, and the State promptly informed the defendants' attorneys once the agreement was finalized. The other witness, Wilson, was extremely reluctant to testify and had asked to remain anonymous on the day that he called 911. Despite his continued reluctance to testify, the State informed Wilson that it would obtain a material witness warrant if he failed to cooperate. Wilson's interview was delayed several times because he refused to attend an interview without police or prosecutors present, and the defendants' attorneys could not meet at scheduled times. Thus, the delay was not due to State mismanagement, but to scheduling difficulties involving all the parties. Under these circumstances, the trial court properly concluded that the difficulties in arranging the interview were not grounds for dismissal.
Further, Fahrenkrug has failed to demonstrate that the State's two amendments to the information were improper or prejudicial. Under CrR 2.1(d), the trial court has broad discretion to allow amendments to the information `at any time before verdict or finding if substantial rights of the defendant are not prejudiced.' The State made all the amendments in this case before the verdict, and Fahrenkrug has made only bare allegations of prejudice. Although the State amended the information on the speedy trial expiration date, the omnibus application notified the defendants that the State would amend the charges to include the school zone enhancement, so there was no unfair surprise with regard to that amendment. Further, the amendment changing the type of gun from Beretta to Ruger also occurred prior to the verdict, and Fahrenkrug's attorney admitted he had learned before the amendment that the gun the State was testing and using as evidence in the case was a Ruger, so Fahrenkrug could not have been prejudiced by that charge. Finally, allowing the addition of the firearm charge was within the court's discretion, and Fahrenkrug has not demonstrated any prejudice arising from the State's failure to add that charge earlier.
The State's late disclosure of evidence likewise did not require dismissal. The State provided defense counsel with the 911 tape and copies of the photographs used in the identification procedure before the speedy trial expiration. The detective who conducted the identification procedure had made some notes on the back of the photographs. The State originally failed to copy the detective's notes for the defense. Further, the State failed to provide the written transcript of the 911 call at the time it provided the tape. With regard to the 911 transcript, defense counsel had the tape recording of the 911 tape and could have listened to it earlier, so the failure to provide a transcript could not be prejudicial. And Fahrenkrug does not allege any specific prejudice resulting from the State's later disclosure of the writing on the back of the photographs, nor is there any evidence that the State intentionally withheld that information. These minor omissions by the State were not the type of prejudicial mismanagement that can justify dismissal under CrR 8.3(b). Finally, the court was not required to dismiss under CrR 8.3(b) due to the State's late disclosure of the witness whose testimony the State used to prove that the meth lab was operating within a school zone. The State at first sought to prove the distance to the school by a document rather than a witness, but defense attorneys succeeded in excluding the document. The State then found a witness who could testify regarding the distance based on a computer program. When defense counsel objected to the witness, the trial court ruled that the defense was entitled to a continuance in order to prepare for the witness, but not dismissal. That ruling was not an abuse of discretion. Fahrenkrug knew at the omnibus hearing that the school zone enhancement would be an issue, so he cannot claim surprise. Further, Fahrenkrug's trial had already commenced at that point, so he was not forced to give up his right to a speedy trial in order to proceed with adequately prepared counsel. Cf. Michielli, 132 Wn.2d at 245. He could have requested a recess or continuance if he believed he was prejudiced at the time. The trial court did not abuse its discretion in failing to dismiss Fahrenkrug's case under CrR 8.3(b).
6. Juror Orientation Video
Fahrenkrug also argues that he was denied a fair trial because the jury viewed an orientation video that prejudiced his defense. We disagree. Although courts should use care when showing such videos to avoid confusing or prejudicing the jury, the video used in this case could not have prejudiced Fahrenkrug's right to a fair trial.
Criminal defendants have the right to a fair and impartial jury. State v. Gentry, 125 Wn.2d 570, 615, 888 P.2d 1105 (1995). The law presumes that each juror is impartial. State v. Reid, 40 Wn. App. 319, 322, 698 P.2d 588 (1985). Courts have recognized, however, that certain structural `defect[s] affecting the framework within which the trial proceeds' can so infect the entire process that it is impossible to gauge their prejudice simply by assessing the trial evidence. Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302, (1991). Fahrenkrug argues that the orientation video the jurors watched so undermined their impartiality that the entire trial was infected. But we agree with the trial court that there is nothing in the tape that could be prejudicial. Fahrenkrug argues that the videotape prejudiced him by stating that a criminal case begins when a crime is committed. At one point in the video, the commentators explain the difference between civil and criminal cases. They first explain civil cases and then go on to explain that `[t]he other kind of case in our courts is criminal. This happens when a crime is committed.' Fahrenkrug argues that this statement denied him a fair trial and relieved the State of its burden of proving all the elements by infecting the jurors with the notion that the existence of a criminal case means a crime has been committed.
Although that brief statement could have been more carefully worded, when viewed in context of the entire video and the trial court's instructions, it could not have misled the jurors regarding the State's burden of proof at trial, and it certainly could not have undermined their impartiality to such an extent that the entire trial was unfair. Viewed in its entirety, the video does not engender prejudice, but instead stresses empathy for criminal defendants and the importance of the presumption of innocence. Fahrenkrug also argues that the video is prejudicial because it shows police arresting a criminal defendant. We disagree. The video does not show anyone in handcuffs, although it does show a police officer frisking a man. But jurors surely know that at least some criminal defendants are arrested before they are charged and tried. The average juror undoubtedly has seen numerous televisions shows portraying arrests of criminal suspects in a far more prejudicial manner than the brief arrest scene on the juror orientation tape. In context, therefore, we are convinced that the scene that briefly showed police arresting a defendant could not have prejudiced Fahrenkrug.
We further note that the trial court properly instructed the jury on the presumption of innocence, the State's burden of proof, and the requirement that they consider only the evidence presented in the case. We presume that the jurors followed those instructions. City of Bellevue v. Kravik, 69 Wn. App. 735, 743, 850 P.2d 559 (1993). See also Reid, 40 Wn. App. at 322 (jurors not removed for cause are presumed impartial and above legal exception). The fact that the jurors all watched the orientation video presented in this case, without more, is insufficient to overcome that presumption. The trial court did not violate Fahrenkrug's right to a fair trial by impaneling jurors who had viewed the video.
Fahrenkrug refers to his right to confront witnesses. That right is not implicated here, however, because the commentators on the tape were not witnesses and the tape was not introduced as evidence in his trial.
7. Severance
The trial court also acted within its discretion when it denied Fahrenkrug's motion to sever the firearm possession count from the drug manufacturing count. Fahrenkrug argues that the weapon possession count necessarily prejudiced his trial on the drug manufacturing count because to prove the weapons charge, the State had to prove that he was previously convicted of a felony. See United States v. Nguyen, 88 F.3d 812, 815 (9th Cir. 1996) (recognizing presumption in favor of severing felon-in-possession charges, but holding no prejudice under facts of case). But under CrR 4.4(a)(2), Fahrenkrug waived appellate review of this issue when he failed to renew his objection at the close of the evidence. Further, his attorney's failure to renew the motion did not constitute ineffective representation because the trial court acted within its discretion when it denied the motion to sever. See State v. Jamison, 105 Wn. App. 572, 591, 20 P.3d 1010 (2001) (attorney's failure to make motion does not support ineffective assistance claim unless defendant shows motion would properly have been granted). Although some federal courts have recognized a presumption in favor of separate trials for felon-in-possession counts, severance is not favored in Washington, and a defendant challenging the denial of a motion to sever bears a heavy burden of demonstrating abuse of discretion. State v. Robinson, 38 Wn. App. 871, 881, 691 P.2d 213 (1984). Here, the State and Fahrenkrug stipulated that he had a prior felony, which reduced the prejudice by omitting the details of his prior crime. See State v. Johnson, 90 Wn. App. 54, 62, 950 P.2d 981 (1998) (holding trial court abuses discretion in rejecting such stipulation). Although the jury still knew that he had been convicted of at least one prior felony, the trial court had tenable bases for deciding that any inherent prejudice was outweighed by the waste of judicial resources required for a separate trial on the firearm charge. Further, the court properly instructed the jury not to consider Fahrenkrug's prior conviction for any other purpose, and the jury is presumed to have followed that instruction. Kravik, 69 Wn. App. at 743. Thus, even assuming, without deciding, that Washington courts would recognize a general presumption in favor of severance for felon-in-possession counts, the trial court's decision would not be an abuse of discretion given the concerns of judicial economy present in this case and the steps the court took to minimize any prejudice. See Nguyen, 88 F.3d at 817-18.
8. The Search of Hackett's House
Fahrenkrug argues that the trial court should have suppressed the evidence found in Hackett's home because police entered it without a warrant. This argument also fails. Under the emergency exception to the warrant requirement, police were justified in conducting a sweep of the house to find a missing suspect and secure hazardous materials they reasonably believed to be inside the house.
Warrantless searches are presumed unreasonable, subject to a few `jealously and carefully drawn' exceptions. State v. Wheless, 103 Wn. App. 749, 753, 14 P.3d 184 (2000) (citing State v. Hendrickson, 129 Wn.2d 61, 70-71, 917 P.2d 563 (1996)). Courts have recognized one such exception, called the `emergency exception,' where `premises contain . . . objects likely to burn, explode or otherwise cause harm[.]' State v. Downey, 53 Wn. App. 543, 544-47, 768 P.2d 502 (1989). Police may therefore enter a home without a warrant where `[t]he need to protect or preserve life, avoid serious injury, or protect property in danger of damage justifies an entry that would otherwise be illegal absent an exigency or emergency.' State v. Bakke, 44 Wn. App. 830, 834, 723 P.2d 534 (1986). This court has repeatedly applied this exception to homes suspected of containing meth labs or other drug labs. See Downey, 53 Wn. App. at 544-47 (holding warrantless entry into residence with strong chemical odor fell within emergency exception to warrant requirement); State v. Thompson, 112 Wn. App. 787, 51 P.3d 143, 148 (2002), review granted, 148 Wn.2d 1020 (2003) (upholding cursory warrantless investigation of burn barrels on defendant's property where trailer believed to be operating as meth lab).
In this case, police testified that they arrived at the house and saw an open moving van backed up to the house. They could see inside the van from the driveway and smell noxious fumes emanating from the area. As officers gathered at the house, all but one suspect came outside and surrendered. Two detectives were summoned who were specially trained to investigate meth labs and hazardous materials. The detectives were informed that one of the suspects, Davis, was still inside the house. His brother had already been arrested and was heavily armed. The officers donned protective suits and approached the house. They looked into the open moving van and saw that it contained tanks of anhydrous ammonia and several unlabeled tanks. The tanks appeared to be badly corroded and unstable. The officers testified that anhydrous ammonia and other chemicals associated with meth labs were toxic, cancer causing, and explosive. Police also knew that the house was in a residential neighborhood and a school was located a few blocks away. They testified that such chemicals are heated in the process of making methamphetamine, so a lab that is quickly abandoned could result in unstable chemicals left unattended and boiling, creating a high risk of explosion. Jones further testified that on a damp, rainy day such as the day of the raid, anhydrous ammonia, if released, would likely seep along the ground rather than rising and dissipating in the atmosphere. He testified that this would pose a particular danger to the school and any residence that was downhill of the meth lab, since the vapors would travel downhill along the ground if released.
Police entered the house and began sweeping each room. They found Davis hiding in a closet and then proceeded to sweep the rest of the house. As they went into the basement, their instruments indicated that the oxygen level was decreasing. In the basement, they found a Ruger pistol lying on the floor in a shoulder holster. After they swept the entire house and opened windows to provide ventilation, they left and waited for a warrant. The sweep took between 15 and 25 minutes.
Fahrenkrug argues that the sweep was unreasonable because police could have obtained a telephonic warrant in the time it took the meth lab detectives to arrive at the scene, don their protective gear, and enter the house. See State v. Goodin, 67 Wn. App. 623, 630, 838 P.2d 135 (1992) (noting amount of time necessary to obtain warrant is one factor in determining whether exigent circumstances justified warrantless entry). But the time required to obtain a warrant is only one factor, and it must be balanced against the degree of urgency. Goodin, 67 Wn. App. at 630. Further, the procedure utilized in this case waiting until detectives with specialized training and protective suits arrive before conducting a protective sweep of a meth lab is the same as that approved of in Thompson, 112 Wn. App. at 792, 797-98. Given the dangerous situation described above, the detectives would have been remiss to wait even a short time before securing the situation once they were suited up, briefed, and ready to sweep the house. The record indicates that the detectives entered the house as soon as it was safe to do so, and there is no indication from the record that the sweep was a pretext to discover evidence. Further, the fact that police then left the chemicals under guard while they secured a warrant does not evidence a lack of exigency in going into the house; the fact that the dangers they feared were not present in this particular meth lab does not mean they did not have legitimate safety concerns before they conducted the sweep.
`When the use of the emergency exception is challenged on appeal, the reviewing court must satisfy itself that the claimed emergency was not simply a pretext for conducting an evidentiary search.' State v. Angelos, 86 Wn. App. 253, 256, 936 P.2d 52, review denied, 133 Wn.2d 1034 (1997) (citing State v. Gocken, 71 Wn. App. 267, 857 P.2d 1074 (1993). Fahrenkrug does not argue pretext.
Fahrenkrug also argues that once the detectives found Davis hiding in the closet, they were required to stop the sweep. But the sweep had two purposes to find anyone left in the house and to identify and lessen risks from recently abandoned hazardous chemicals that could be boiling or aerating in the house. Once the detectives found Davis, they were entitled to continue their sweep of the house in order to secure the dangerous chemicals inside and ventilate the house. The trial court, therefore, properly ruled that the evidence seen during the sweep was admissible against Fahrenkrug and a permissible basis for the subsequent search warrant.
9. Identification Procedure
The witness who reported the crime on the day of the arrests identified a photograph of Fahrenkrug from a stack of photographs shown to him four days later. All the photographs were of people in custody for the meth lab operation. We hold that this identification procedure was not so impermissibly suggestive or unreliable as to require suppression.
To establish that an identification procedure violates due process, a defendant must first show that the identification procedure was suggestive. State v. Linares, 98 Wn. App. 397, 401, 989 P.2d 591 (1999). Once the defendant makes this showing, there is a presumption that the identification evidence obtained through the suggestive procedure is inadmissible. Linares, 98 Wn. App. at 401 (discussing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)). The State may overcome that presumption, however, by showing that other factors indicate reliability sufficiently to outweigh the corruptive effect of the suggestive procedure. The overriding question is whether, considering the totality of the circumstances, the suggestiveness created a substantial likelihood of irreparable misidentification. Linares, 98 Wn. App. at 401.
The factors courts generally consider include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Linares, 98 Wn. App. at 401 (citing State v. Shea, 85 Wn. App. 56, 930 P.2d 1232 (1997)). See also Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (outlining above factors). The `linchpin' of this inquiry is the identification's reliability. Brathwaite, 432 U.S. at 114. Even if there is `some questionable feature' to an identification procedure, such questions generally go to the weight of the evidence rather than its admissibility, except in those cases where there is "a very substantial likelihood of irreparable misidentification." Brathwaite, 432 U.S. at 116 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)).
The State argues that the photo identification procedure used in this case was not impermissibly suggestive because it contained single photographs of a number of people, not just a single photograph of Fahrenkrug. The State cites State v. Eacret, 94 Wn. App. 282, 285, 971 P.2d 109 (1999) (per curiam), for the proposition that a group of photographs showing a number of codefendants is not impermissibly suggestive. This case is somewhat different from Eacret, however, because here every photo shown to the witness was a person associated with the meth lab operation, whereas in Eacret the witness viewed an eight-photograph montage, including three codefendants and five individuals unrelated to the investigation. See Eacret, 94 Wn. App. at 284.
Still, Fahrenkrug has failed show that the identification procedure was impermissibly suggestive. Courts have held that a one-photo identification procedure is inherently suggestive. See State v. Maupin, 63 Wn. App. 887, 896, 822 P.2d 355, review denied, 119 Wn.2d 1003 (1992). But here, the witness was shown nine separate photographs. Although such a procedure could be impermissibly suggestive depending on the circumstances, the photographs are not a part of the record on appeal, and the testimony at trial indicates that at least one of the suspects looked very similar to Fahrenkrug. Thus, Fahrenkrug has failed to carry his burden of demonstrating that the identification procedure was impermissibly suggestive. See Linares, 98 Wn. App. at 401 (defendant has initial burden of demonstrating suggestive procedure).
The witness's testimony at trial indicated that two of the men, Scott Davis and Fahrenkrug had `scruffy' beards. And during a witness interview, the witness said those two men `could be brothers,' implying that they looked alike. This testimony suggests that the procedure was not necessarily suggestive with regard to Fahrenkrug, since at least one of the suspects looked similar to him.
Further, even if we were to assume that the procedure was impermissibly suggestive, the State has rebutted any presumption of unreliability by showing that the procedure did not result in a substantial likelihood of misidentification under the totality of the circumstances. On the day of the arrests, the witness observed the person he identified as Fahrenkrug from ten feet away. At trial, he testified that he had seen the man at the house frequently before that day. He could see that the man was loading equipment into the moving van and was wearing a gun in a shoulder holster. The photo identification took place four days after the arrests. When the witness saw Fahrenkrug's photograph, he spontaneously volunteered that he was the man he saw with the gun. Although at trial the witness was not certain he could identify Fahrenkrug, by that point Fahrenkrug had changed his appearance significantly he had shaved his beard, cut his hair, and gained about 40 pounds. But when shown the original photograph, the witness was certain that the person in the picture was the person he saw at the house on the day of the arrests. Under all the circumstances, therefore, the identification was reliable. Fahrenkrug was able to argue that the inconsistencies of which he complains affected the weight of Wilson's identification, but they do not make the identification so unreliable as to affect its admissibility.
Fahrenkrug asserts that Wilson's primary description of him was unreliable because he misjudged Fahrenkrug's height. But that discrepancy clearly went to the weight of the evidence, not to its admissibility. When Wilson called 911, the operator asked him to describe the man with the gun:
Caller: He's a white guy with . . .
Operator: Approximately how old, sir?
Caller: Probably 28 or so.
Operator: Okay.
Caller: He's got long black hair.
Operator: Hold on a second, how tall? Just approximately.
Caller: I don't' know that.
Operator: Just do your best guess.
Caller: Huh?
Operator: Just do your best guess. I've got them started for you, okay.
Caller: 5'11.
Defendant's Trial Exhibit 28, Transcript of 911 Tape, at 3. From this evidence it is clear that Wilson was not in a good position to judge Fahrenkrug's height and was merely making a guess after the operator prompted him to do so. Weighed against other relevant factors, this missed detail does not so undermine the reliability of the identification as to make it inadmissible.
10. Hearsay
We also hold that the trial court properly admitted the 911 tape. Wilson called 911 and described events as he was watching them out his window. The trial court listened to the tape, heard Wilson's testimony, and concluded that Wilson was excited throughout the call. The trial court did not abuse its discretion in concluding that the 911 tape was admissible under both the present sense impression and excited utterance exceptions to the hearsay rule. Further, under the facts of this case, the trial court did not abuse its discretion by declining to redact Wilson's conclusions to the effect that his neighbors were running a meth lab.
Fahrenkrug argues that the trial court abused its discretion in concluding that Wilson's statements to the 911 operator fell within the present sense impression and excited utterance exceptions to the hearsay rule. See ER 803(1)-(2). See also State v. Davis, 141 Wn.2d 798, 10 P.3d 977 (2000) (applying abuse of discretion standard). But Fahrenkrug's attorney waived appeal of this issue by specifically stating that his objection to the tape was based on its cumulative and prejudicial effect rather than its status as hearsay. RAP 2.5(a); State v. Mak, 105 Wn.2d 692, 719, 718 P.2d 407 (1986). Further, Wilson was talking to the operator while he was describing events occurring outside his window, and both the court and Fahrenkrug's attorney noted that his voice sounded distressed. His statements therefore fall squarely within both exceptions.
Fahrenkrug's attorney stated that he was objecting to the tape `on two grounds, but not under 801. The two grounds are that it is cumulative. . . [and] I also feel that parts of it are prejudicial, your Honor, the parts that were originally excised and what was said is something you relate to the kids. And I feel there is potential for prejudicing my client because this witness is referring to I have got two small children at home, and his voice is kind of wavery, and I feel that injects emotion and passion and prejudice in the case . . . [.]' (Emphasis added.) Not only is this a waiver of any hearsay objection, it also further supports the court's interpretation of the tape as demonstrating that Wilson was under the stress of a startling event when he called 911.
Fahrenkrug further argues that the trial court abused its discretion in failing to redact Wilson's statement to the 911 operator that his neighbors had a `portable meth lab' because those statements amounted to nothing more than Wilson's opinion regarding Fahrenkrug's guilt. We disagree. First, Fahrenkrug failed to preserve this issue for appeal. He moved to redact that portion of the 911 tape, but the only reason he gave was that it was `conclusory.' That objection was insufficient to put the trial court on notice of the constitutional issues Fahrenkrug raises on appeal. See State v. Sanders, 66 Wn. App. 380, 387, 832 P.2d 1326 (1992) (per curiam). Moreover, Sanders and the cases Fahrenkrug cites are distinguishable because they concerned live testimony, whereas this case concerns present sense impressions and excited utterances made during a 911 call. See Sanders, 66 Wn. App. at 387 (citing cases). Finally, assuming that Wilson's remark could be characterized as an inadmissible opinion on an ultimate fact, the statement could not have prejudiced Fahrenkrug. Even if the court had redacted that portion of the 911 tape, it would have been obvious to the jury that Wilson suspected some criminal activity, otherwise he would not have called 911 in the first place. Wilson was not an expert or police officer, so the heightened prejudice associated with such testimony is not present here. See Sanders, 66 Wn. App. at 387 (quoting State v. Carlin, 40 Wn. App. 698, 700 P.2d 323 (1985)). And in light of the qualified experts who testified that the components Wilson observed were, in fact, associated with production of methamphetamine, it is highly unlikely that the jury gave any undue weight to Wilson's opinion on the subject. We therefore hold that the trial court acted within its discretion when it admitted the 911 tape in its entirety.
11. Hackett's Drug Use
Fahrenkrug argues that the trial court violated his right of confrontation by excluding evidence that Hackett continued to use drugs after making a plea bargain with the State. We disagree. Fahrenkrug failed to demonstrate the relevance of that testimony at trial. Further, the jury heard testimony that Hackett used drugs less than a week before trial, so no prejudice could have resulted from the court's ruling.
The Sixth Amendment of the federal Constitution and article 1, section 22 of the Washington Constitution guarantee criminal defendants the right to confront and cross-examine witnesses. State v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983). This right is sometimes violated by the exclusion of evidence relevant for impeachment of a State witness. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (holding witness's probation status relevant to bias and therefore improperly excluded); State v. Roberts, 25 Wn. App. 830, 611 P.2d 1297 (1980) (reversing conviction where court excluded evidence suggesting that parents pressured witness to cooperate with prosecution). But the right to cross-examine witnesses is not absolute, and the right of confrontation does not give a defendant the right to introduce irrelevant evidence. ER 401, 611(b); State v. Darden, 145 Wn.2d 612, 620-21, 41 P.3d 1189 (2002).
Fahrenkrug argues that he was denied the right to confront witness Hackett because the trial court prohibited questioning regarding Hackett's drug use after her plea agreement. But that evidence was not relevant, so the trial court properly excluded it. Fahrenkrug argues that Hackett's use of drugs after her plea agreement gave her a motive to fabricate testimony favorable to the State in order to avoid prosecution for her drug use. But the State did not condition Hackett's plea agreement on her avoiding drugs, but on her telling the truth at trial, so the State could not have revoked her plea based on her subsequent drug use. And as the trial court noted, the State could not have prosecuted Hackett based solely on her admissions of drug use unless they had some other evidence to corroborate her statements. See State v. C.M.C., 110 Wn. App. 285, 289, 40 P.3d 690 (2002) (discussing corpus delicti rule). The trial court properly allowed Fahrenkrug to inquire whether Hackett had used drugs recently or was using drugs at the time of the events to which she testified. See State v. Russell, 125 Wn.2d 24, 83, 882 P.2d 747 (1994). But Fahrenkrug failed to establish any logical nexus between Hackett's use of drugs after the plea agreement and a motive to lie. The trial court, therefore, properly limited inquiry to drug use that was relevant for impeachment purposes.
Further, even if it had been erroneous, the trial court's ruling could not have prejudiced Fahrenkrug. An evidentiary error is grounds for reversal only if `within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.' State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981). And even an error of constitutional magnitude is not reversible if harmless beyond a reasonable doubt. See Tharp, 96 Wn.2d at 599. Under either standard, reversal would not be required in this case. When the deputy prosecutor asked Hackett when she had last used methamphetamine, she answered `Last Tuesday.' The jury therefore heard that she had used drugs after her plea agreement, which was exactly the evidence Fahrenkrug sought to admit. Thus, even if the trial court had erred in its ruling, any error would be harmless beyond a reasonable doubt under the facts of this case.
12. Mistrial Motion
We also reject Fahrenkrug's argument that the trial court abused its discretion in denying his motion for a mistrial. Although a detective technically violated the court's order when he referred to `court' papers he found in Hackett's home, the trial court was in the best position to determine whether the violation was intentional or prejudicial. The court therefore acted well within its discretion when it denied Fahrenkrug's mistrial motion.
A court may grant a mistrial when misconduct or irregularities during trial prejudice a criminal defendant. In reviewing a trial irregularity, this court examines the seriousness of the irregularity, whether it involved cumulative evidence, and whether the trial court properly instructed the jury to disregard it. State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994). This court reviews the trial court's decision to deny a motion for a mistrial for abuse of discretion. Johnson, 124 Wn.2d at 76.
In this case, a detective found court papers with Fahrenkrug's name on them in the Hackett house. The State sought to have the detective testify to his observations of those papers in order to show Fahrenkrug lived in the house. The court ruled in limine that the detective could testify to having seen papers with Fahrenkrug's name on them, but prohibited any mention of the fact that the papers were `court' papers, in order to avoid any inference of prior criminal proceedings. During his testimony, the detective referred to the papers as `court' papers. Fahrenkrug objected, and the court struck the statement and instructed the jury to disregard it. Fahrenkrug later moved for a mistrial. The court denied the motion, noting that the statement was barely audible and ruling that it was not unduly prejudicial.
That ruling was not an abuse of discretion. First, the court's ruling in limine was abundantly cautious `court' papers could be civil or criminal, and there is not necessarily any prejudice to the defendant by that statement. Further, the record suggests that the detective's violation of the court's order was accidental. Although the deputy prosecutor had gone over the rulings with the detective, she noted that there were many rulings made in the case and the detective had been testifying for two and a half days at that point without violating any of the court's orders. The trial court was in the best position to assess the demeanor of the detective and the impact of the statement on the jury. We therefore hold that the trial court's ruling on this matter was well within its discretion.
13. Sufficiency of the Evidence
Fahrenkrug argues that the evidence was insufficient to prove the unlawful firearm possession charge and the weapon enhancement. We agree that the evidence was insufficient to support the jury's conclusion that Fahrenkrug possessed a firearm while manufacturing methamphetamine. But we affirm his conviction for possession of a stolen firearm because the evidence was sufficient to prove beyond a reasonable doubt that Fahrenkrug knew his handgun was stolen.
Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bowman, 36 Wn. App. 798, 806, 678 P.2d 1273 (1984). Knowledge may be established with circumstantial evidence, and `the specific criminal intent of the accused may be inferred from the conduct where it is plainly indicated as a matter of logical probability.' State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). In analogous cases dealing with possession of other stolen property, this court has stated that `actual knowledge is unnecessary. It is sufficient if [the defendant] had knowledge of facts sufficient to put him on notice that they were stolen.' State v. Rockett, 6 Wn. App. 399, 402, 493 P.2d 321 (1972). The evidence was sufficient in this case to prove that Fahrenkrug knowingly possessed a stolen gun. The record indicates that the gun contained visible scratches over the serial number. The State also presented testimony from the gun's owner indicating that the scratches had not been there before it was stolen. Viewing the record in the light most favorable to the State, scratch marks over a serial number are sufficient to put a reasonable person on notice that a firearm is stolen. But even though the evidence was sufficient to prove that Fahrenkrug knowingly possessed the stolen gun at some point, the evidence was not sufficient to prove that Fahrenkrug possessed it while manufacturing methamphetamine. Two witnesses testified to seeing Fahrenkrug with the gun. Hackett testified that she saw the gun once when Fahrenkrug had just arrived and was standing at the front door of her house. She told him to get the gun out of her house, and he left. In addition, Wilson testified that on the day of the arrest, he looked out his window and saw Fahrenkrug wearing the gun and using a wrench to adjust one of the tanks that had been loaded into the back of the moving van. This evidence might have been sufficient to prove Fahrenkrug possessed meth lab components while armed, but that was not the crime charged. The court defined `manufacture' as `the production or preparation or propagation or compounding or converting or processing, directly or indirectly, as well as the packaging or repackaging of any controlled substance.' Court's Instruction to the Jury No. 21, Pecheos CP 64; RCW 69.50.101(p). But Fahrenkrug was not engaged in any of those activities when seen with the gun, and the State presented no evidence that Fahrenkrug or the other defendants were manufacturing on the day of the arrest or the day Hackett told him to leave her house.
Fahrenkrug does not dispute that he possessed the weapon at some point, and the evidence, consisting of the testimony of two witnesses who saw him with the gun, was clearly sufficient on that point.
The State argues that the jury could infer from these two sightings that Fahrenkrug carried the firearm throughout the manufacturing process. In other words, the jury could assume that Fahrenkrug always carried the gun and therefore carried it on the days he manufactured methamphetamine as well as the two days he was seen with the weapon. But even viewing every inference from the evidence in the light most favorable to the State, two isolated sightings, without more, are insufficient to prove beyond a reasonable doubt that Fahrenkrug possessed the weapon while manufacturing drugs. We therefore dismiss the weapon enhancement.
14. Cumulative Error
Finally, Fahrenkrug argues that even if reversal is not required under any one of the above issues, the cumulative effect of the trial court's errors denied him a fair trial. We disagree. Where a reviewing court finds a number of errors that are harmless individually, their cumulative effect can sometimes require reversal. State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984). But we have not found any trial court error, only a lack of sufficient evidence with regard to the firearm enhancement. We therefore find no cumulative error.
CONCLUSION
We affirm the defendants' convictions and sentences in every respect except Fahrenkrug's firearm enhancement, which we dismiss for lack of sufficient evidence.