Opinion
No. 35604-0-II.
January 8, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 05-1-00183-0, Richard D. Hicks, J., entered November 22, 2006.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Armstrong and Van Deren, JJ.
Raymond Timothy Hankins appeals his conviction of unlawful methamphetamine manufacture. He argues that numerous errors require reversal of his conviction and vacation of his sentence. We affirm.
FACTS
On January 25, 2005, Detective Eugene DuPrey obtained a search warrant to search Duane's and Robert Cullens' adjoining properties, based on a confidential informant's tip that he would find remnants of a methamphetamine lab there that had been operated at Hankins's residence. The confidential informant was Kim Gautreaux, Hankins's girl friend. In obtaining the search warrant, DuPrey did not disclose to the issuing magistrate the informant's name, her criminal history, or that she was incarcerated at the time that she gave him the tip.
This name is also appears in the record as "Dwayne."
Gautreaux's criminal record spanned 1986 to 2002, and included a violation for making a false statement to a public servant.
Relevant to the present case, Gautreaux was incarcerated in Thurston County jail on November 16, 2004; she was released for five hours under the county's work release program on November 17, and again for a 10-day period on December 5. She reported to DuPrey that, while out on work release, she cleaned up a methamphetamine lab at Hankins's residence after Hankins made a batch of methamphetamine and he then cleft for Mexico. She reported that she had been trying to contact DuPrey ever since, out of fear of the consequences of her association with a methamphetamine lab while out on work release.
On December 15, Gautreaux returned to the main jail population for failing a urinalysis test, where she remained until her transfer to the Benton County jail on May 1, 2005.
Gautreaux provided DuPrey with details about the cleanup, notably that: garbage bags containing methamphetamine lab remnants had been loaded into Hankins's blue pickup truck and dumped on the Cullenses' properties; methamphetamine lab sludge had been stored in paint cans in Hankins's garage; the bathroom walls had been painted to cover up iodine stains on the walls; and Hankins regularly cleaned up his lab after cooking methamphetamine because he had visitation with his daughter and did not want to expose her to the lab hazards.
After receiving Gautreaux's tip, DuPrey visited the Cullenses' properties. He found numerous garbage bags containing materials matching her description of the type that he recognized as commonly found in red phosphorus-type (red-P) methamphetamine manufacture, at which point he obtained a search warrant to continue searching the properties.
Based on his search, DuPrey made a second request to the magistrate the same day to obtain a warrant to search Hankins's residence. DuPrey reported to the magistrate his discovery of methamphetamine lab waste matching Gautreaux's description and also that the garbage contained notes and records with Hankins's name on them, a work release bag with Gautreaux's name on it, and evidence that work release prisoners were using Hankins's painting company as a place of employment.
DuPrey also informed the magistrate of the following: (1) he had received a crime stoppers tip regarding a methamphetamine lab at Hankins's residence, a report that Hankins had purchased a gallon of iodine, and information from prisoners that Hankins was allowing work release inmates to use his company address to falsify their place of employment; (2) the Cullenses had confirmed that the garbage dumped on their property had earlier been located in the back of Hankins's blue pickup truck, which was parked on their property for a period of time; (3) Hankins's name had come up several times in connection with investigations of methamphetamine lab activity; and (4) DuPrey had visited Hankins's residence multiple times to follow up, but Hankins had always been reluctant to allow a search. The magistrate found probable cause and issued the warrant.
DuPrey and other officers then searched Hankins's residence. Hankins arrived home while the search was in progress, and police found a bag of methamphetamine on his person. Inside the residence, officers found: (1) a container of HEET; (2) electric burners; (3) glass jars containing bi-layer and tan liquids; (4) a plastic straw with methamphetamine residue; (5) a pen altered to ingest narcotics; (6) prescription bottles missing labels; (7) a baggy with methamphetamine residue in a child's bedroom; (8) a funnel; (9) stained coffee filters; (10) two bottles of hydrogen peroxide; (11) cold tablets; (12) a bottle of muriatic acid; (13) a bottle of drain opener; (14) a bottle of Clorox detergent; and (15) flares containing red phosphorus. Officers also found a glass jar in the freezer containing a bi-layer liquid and clear white cloudy substance, later determined to be methamphetamine dissolved in acetone.
The State charged Hankins, either as a principal or accomplice, with one count of unlawful manufacture of a controlled substance, methamphetamine, RCW 69.50.401(1)(2)(b), on January 25, 2005.
Hankins filed an amended CrR 3.6 motion to suppress, arguing that the magistrate issued the warrant to search his residence without probable cause because Gautreaux's tip was not contemporaneous, she did not meet the Aguilar-Spinelli test and the affidavit did not provide probable cause to search Hankins's residence. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). The trial court denied his motion, finding in part that "[e]vidence of methamphetamine labs is long-lived." Clerk's Papers (CP) at 97 (finding of fact 2.3). It also denied his motion for reconsideration.
Hankins's original CrR 3.6 motion to suppress, arguing that police officers initially seized evidence without a warrant at the Cullenses' properties and then obtained a warrant based on the illegally seized evidence, is not at issue on appeal.
A jury heard the matter. The State presented no theory that Hankins acted as an accomplice to an identified principal. Two witnesses testified that Gautreaux participated in the methamphetamine lab cleanup inside Hankins's home while he was away in Mexico and that Hankins was out of the country for the entire period that Gautreaux was on work release.
One trial judge presided over the hearing for Hankins's motion to suppress and motion for reconsideration and a different trial judge presided over the jury trial. Hankins assigns error to rulings of both trial judges.
At the close of trial, the trial court instructed the jury that to convict Hankins it must find him guilty as an accomplice to the manufacture of a controlled substance. The State offered no alternative instruction to find him guilty as either a principal or accomplice. The jury convicted him of one count of methamphetamine manufacture on January 25, 2005.
Hankins then filed a motion to arrest judgment, arguing that the evidence was insufficient to convict him because already-manufactured methamphetamine mixed in acetone does not constitute manufacture and because the State failed to present any evidence that he was an accomplice to another person who mixed methamphetamine in acetone. The trial court denied his motion. He appeals.
ANALYSIS Confidential Informant's Tip
Hankins first assigns error to the trial court's conclusion that Gautreaux's information was not stale and its denial of his motion to suppress and motion for reconsideration on that basis. He argues that Gautreaux's tip was not sufficiently contemporaneous because she informed DuPrey about physical evidence dumped on the Cullenses' property in November 2004, but DuPrey did not execute the search warrant for Hankins's residence until January 2005. He contends it was not possible for Gautreaux to have contemporaneous information about alleged illegal activity taking place at Hankins's residence in January 2005, because she was incarcerated at the time.
We review the trial court's conclusions of law de novo. State v. Gaddy, 152 Wn.2d 64, 70, 93 P.3d 872 (2004). In reviewing the issue of staleness in a probable cause determination, we consider the information presented to the issuing magistrate and look to the totality of the circumstances to evaluate whether the facts underlying the search warrant are stale. State v. Maddox, 152 Wn.2d 499, 506, 98 P.3d 1199 (2004). Information is not stale "if the facts and circumstances in the affidavit support a commonsense determination that there is continuing and contemporaneous possession of the property intended to be seized." Maddox, 152 Wn.2d at 506. See also State v. Bohannon, 62 Wn. App. 462, 470, 814 P.2d 694 (1991) (the test for staleness is a commonsense one to determine if the facts are adequate to support a conclusion by a neutral magistrate that the evidence sought is still located on the premises).
In evaluating staleness, length of time is only one factor we consider along with other relevant circumstances, including the nature and scope of the suspected criminal activity. See Maddox, 152 Wn.2d at 506 (observing the majority rule in other jurisdictions that the staleness determination depends on the nature of criminal activity, the length of the activity, and the nature of the property to be seized, and citing Andresen v. Maryland, 427 U.S. 463, 478 n. 9, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976), for its finding of probable cause despite a three-month delay in a warrant's execution because of the nature of the documentary evidence and the defendant's ongoing criminal activity); State v. Perez, 92 Wn. App. 1, 9, 963 P.2d 881 (1998) (staleness involves not only duration but also the probability that items sought in connection with criminal activity will be on the premises at the time of the search); State v. Higby, 26 Wn. App. 457, 460-61, 613 P.2d 1192 (1980) (in determining whether criminal activity is ongoing for purposes of probable cause, a tabulation of the intervening number of days is but one factor to consider along with other circumstances, including the nature and scope of suspected criminal activity).
In State v. Hall, the court considered whether a two-month lapse between the informant's tip and execution of the search warrant rendered the tip stale; there, the informant had reported his earlier observations of the defendant's home marijuana grow operation. 53 Wn. App. 296, 299-300, 766 P.2d 512 (1989). The court found probable cause existed because it was reasonable to believe that the grow operation was still in existence based on the number of marijuana plants already found and the informant's description of the size of the marijuana plants in the home. Hall, 53 Wn. App. at 300.
Here, Gautreaux related that evidence of a November 2004 methamphetamine lab cleanup was dumped on the Cullenses' property and stored in Hankins's garage. Hankins's argument is misplaced because Gautreaux's tip was limited to the time period during which she was on work release and had access to his residence; she never provided information that she observed an ongoing methamphetamine lab at his residence in January 2005. Further, under Hall, that two months had elapsed between her observations and execution of the warrant does not answer the staleness question; the relevant issue is whether the evidence that she reported was of a nature that there was probable cause to find it could still be discovered at Hankins's residence in January 2005.
DuPrey reported to the magistrate that he found evidence matching Gautreaux's description preserved in garbage bags outside at the Cullenses' properties, including hydrogen peroxide and iodine bottles, a baggie that field-tested positive for methamphetamine, paint containers in the color matching Gautreaux's description of the cleanup effort, and other evidence showing that the garbage came from Hankins's residence. He had thus already discovered preserved evidence of a methamphetamine lab cleanup consistent with Gautreaux's November 2004 observations at the time he requested the search warrant for Hankins's residence. The discovery of that preserved evidence suggested that methamphetamine lab evidence stored indoors in Hankins's garage would likewise have been preserved. Further, as in Hall, the evidence itself (which included plastic bottles, glass jars, and paint) was of a nature that it could still be found after two months because it would not have substantially deteriorated. Based on DuPrey's January 2005 discovery of preserved evidence matching Gautreaux's description from November 2004, it was thus reasonable to believe that police could still find the same type of evidence at Hankins's residence at that time, and the tabulation of intervening days was not determinative. See State v. Hett, 31 Wn. App. 849, 852, 644 P.2d 1187 (1982).
Based on the totality of the circumstances presented to the magistrate, Gautreaux's tip as to evidence of a November 2004 methamphetamine lab cleanup was sufficiently contemporaneous to find probable cause to issue a warrant to search Hankins's residence in January 2005. The trial court did not err in concluding that Gautreaux's information was not stale or in denying Hankins's motions to suppress and for reconsideration on that basis.
The Trial Court's Finding That Evidence of Methamphetamine Labs is "long-lived"
Hankins next claims that substantial evidence does not support the trial court's finding that "[e]vidence of methamphetamine labs is long-lived." CP at 97 (finding of fact 2.3).
We review a trial court's findings of fact for substantial evidence to support the findings. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Substantial evidence exists when there is a sufficient quantum of proof to support the trial court's finding. Hill, 123 Wn.2d at 644. When substantial evidence supports a trial court's findings, we will not disturb those findings. State v. Smith, 84 Wn.2d 498, 505, 527 P.2d 674 (1974).
Hankins argues that the record does not support the trial court's finding because toxicity tests performed at Hankins's residence revealed no trace evidence of methamphetamine at the location of the alleged lab. But this argument mischaracterizes the trial court's finding, which was that evidence of methamphetamine labs is long-lived, not that the methamphetamine produced by the labs is long-lived.
Here, the evidence was dumped waste contained in garbage bags and cans; it included plastic and glass bottles, stained coffee filters, and paint matching Gautreaux's description of that used to cover up iodine stains on Hankins's walls. Under a commonsense determination, this evidence had physical properties such that there was a reasonable probability that police could still find it preserved after two months. Further, at the time DuPrey sought the warrant to search Hankins's residence, he had already found this type of evidence at the Cullenses' properties, supporting the trial court's determination that evidence of a methamphetamine lab, observed in November 2004, was still discoverable in January 2005, and that such evidence was long-lasting. We find a sufficient quantum of proof in the record to support the trial court's finding that evidence of methamphetamine labs is long-lived. Hankins's argument fails.
The Aguilar-Spinelli Test
Hankins next contends that the trial court erred in finding that Gautreaux satisfied the Aguilar-Spinelli test for confidential informants. He argues that she could not meet the knowledge prong because she was incarcerated in January 2005, and could not verify the existence of a methamphetamine lab at Hankins's residence at that time. He also claims that a heightened demonstration of reliability was required because DuPrey did not disclose either Gautreaux's identity or extensive criminal history to the magistrate when he requested the search warrant. Hankins argues that Gautreaux was not a reliable informant because she was a methamphetamine user and cook; had access to Hankins's home while he was out of the country; had a significant criminal history, including making a false statement to a public servant; and had not provided credible information to DuPrey since 1999.
We review the trial court's conclusion that an informant meets the Aguilar-Spinelli test de novo as a matter of law. Petersen v. State, 145 Wn.2d 789, 800, 42 P.3d 952 (2002). We review its factual determination whether an informant is credible and reliable for an abuse of discretion. Petersen, 145 Wn.2d at 800. A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (1997).
In Washington, where an informant's tip forms the basis for probable cause, the Aguilar-Spinelli test applies. State v. Jackson, 102 Wn.2d 432, 436, 443, 688 P.2d 136 (1984). Under Aguilar-Spinelli, an affidavit of probable cause supporting issuance of a search warrant must set forth facts establishing an informant's veracity and basis of knowledge. State v. Mejia, 111 Wn.2d 892, 896, 766 P.2d 454 (1989). The veracity prong requires that the magistrate determine whether the informant has truthfully related the facts; the knowledge prong requires the magistrate to determine that the informant has personal knowledge of those facts. Mejia, 111 Wn.2d at 896-97. The test is not met if the informant fails to meet either prong, unless independent police investigation corroborates the informant's tip. State v. Young, 123 Wn.2d 173, 195, 867 P.2d 593 (1994). The independent investigation should find "`probative indications of criminal activity along the lines suggested by the informant.'" Jackson, 102 Wn.2d at 438 (quoting United States v. Canieso, 470 F.2d 1224, 1231 (2d Cir. 1972)) (internal quotation marks omitted).
Washington courts continue to follow the Aguilar-Spinelli test despite the United States Supreme Court's adoption of a "totality of the circumstances" test in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), finding the Gates test inapplicable to the Washington State Constitution, article I, section 7. See State v. Vickers, 148 Wn.2d 91, 111-12, 59 P.3d 58 (2002); State v. Jackson, 102 Wn.2d 432, 440-43, 688 P.2d 136 (1984).
Aguilar-Spinelli's knowledge prong is satisfied where the informant has personally witnessed the facts asserted and is passing on firsthand information. State v. Duncan, 81 Wn. App. 70, 76, 912 P.2d 1090 (1996). Here, Gautreaux provided information that she had been to Hankins's residence in November 2004, had witnessed methamphetamine manufacture taking place, and had participated in the lab cleanup. Her firsthand knowledge of alleged criminal activity satisfies the knowledge prong.
As to the reliability prong, the failure of an officer requesting a warrant to reveal an informant's identity to the magistrate is not alone determinative. State v. Rodriguez, 53 Wn. App. 571, 576, 769 P.2d 309 (1989). Washington courts have reached differing results, depending on such factors as whether reliability was corroborated by a description of the informant, his purpose for being at the crime scene, and his reason for wishing to remain anonymous; an inference could be drawn that the requesting officer knew the informant's identity; the affidavit relied on facts to establish credibility that were not related to credibility; or the affidavit was based on the requesting officer's own generic conclusions about the informant. See State v. Wilke, 55 Wn. App. 470, 477-78, 778 P.2d 1054 (1989) (discussing State v. Payne, 54 Wn. App. 240, 773 P.2d 122 (1989) (reliability established); State v. Mickle, 53 Wn. App. 39, 765 P.2d 331 (1988) (reliability not established); State v. Franklin, 49 Wn. App. 106, 112, 741 P.2d 83 (1987) (reliability not established); State v. Berlin, 46 Wn. App. 587, 731 P.2d 548 (1987) (reliability established)). But in Wilke, the court found that the magistrate could have made a reasonable inference that police knew the informant's identity, which in turn, partially established the informant's reliability. 55 Wn. App. at 479.
Gautreaux's criminal history is also not dispositive of her reliability. Generally, an issuing magistrate may consider a criminal informant less trustworthy than a citizen-informant, due to the greater likelihood of criminal involvement and motivation due to self-interest. Rodriguez, 53 Wn. App. at 576. But statements against penal interest also have some indicia of reliability, and even greater reliability may exist in post-arrest situations where the arrestee admits to participation in a crime and gives information in exchange for a promise of leniency, thereby risking disfavor with the prosecutor by lying. State v. Lair, 95 Wn.2d 706, 710-11, 630 P.2d 427 (1981); State v. Estorga, 60 Wn. App. 298, 304-05, 803 P.2d 813 (1991).
Further, Washington courts do not find informants per se unreliable because they are drug addicts or have a criminal history. See Estorga, 60 Wn. App. at 305 (finding the reliability prong met where the informant made post-arrest statements against his penal interest after being found in possession of amphetamine and marijuana obtained that day from the place in question); Hett, 31 Wn. App. at 850-52 (finding the reliability prong met where a juvenile informant was arrested for attempting to break into the defendant's home, he admitted to having purchased marijuana from the defendant in the past, and he was named in the affidavit).
Here, DuPrey told the magistrate that he knew the confidential informant and had a track record with her. DuPrey reported to the magistrate: "I had interviewed a confidential informant that I had used back in 1999 when I was working with the drug enforcement agency"; "I've made numerous cases with the assistance through this person through control buys also pointing us in the right direction we've made several lab arrests . . . that I've worked in." CP at 27, 28. Thus, even though the magistrate did not know Gautreaux's identity, her reliability was to some extent established by DuPrey's communication of his own knowledge of her identity and his history working with her as an informant. See Lair, 95 Wn.2d at 710 ("The existence of a proven `track record' of reliability reasonably supports an inference that the informant is presently telling the truth."). Gautreaux's criminal history was also not dispositive.
In reaching its conclusion that Gautreaux met the reliability prong of Aguilar-Spinelli, the trial court also reviewed the affidavit for whether probable cause would still have existed had the magistrate been aware of Gautreaux's criminal history. Arguably, the magistrate had some indication of her criminal history because DuPrey related that she acquired her information while out on work release. But DuPrey did not make the magistrate aware of the extent of Gautreaux's criminal history.
Further, Gautreaux admitted to participation in an illegal methamphetamine lab cleanup while she was on work release and provided that information after she was already incarcerated. These statements were against her penal interest, and she risked more unfavorable treatment by lying to police.
Finally, DuPrey's initial independent investigation at the Cullenses' properties corroborated Gautreaux's account of criminal activity. That investigation compensated for any deficiency in her reliability because it uncovered "`probative indications of criminal activity along the lines suggested by the informant.'" Jackson, 102 Wn.2d at 438 (quoting Canieso, 470 F.2d at 1231) (internal quotation marks omitted).
The trial court properly found that Gautreaux met the reliability prong of Aguilar-Spinelli. Likewise, the trial court correctly found that Gautreaux met the Aguilar-Spinelli test for confidential informants as a matter of law because her information was sufficiently reliable and based on firsthand observation.
Probable Cause
Hankins next contends that the trial court erred in concluding that the warrant to search his residence demonstrated probable cause. In addition to the claimed deficiencies in Gautreaux's information already addressed, he argues that her tip was not attributable to him because he was out of the country in November 2004, and that there was no information about when or how the garbage seized at the Cullenses arrived on their properties.
Probable cause is established where the affidavit sets forth specific facts leading to a reasonable, commonsense determination that there is a probability that the defendant is involved in criminal activity and that evidence of the activity can be found at the place to be searched. State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). We review a magistrate's probable cause determination for an abuse of discretion. State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002). We find discretion abused when the court bases its decision on unreasonable or untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). We give great deference to the magistrate's determination and resolve all doubts in favor of the warrant's reliability. See State v. Coates, 107 Wn.2d 882, 888, 735 P.2d 64 (1987).
Here, the affidavit of probable cause included the following information: (1) Gautreaux reported that a methamphetamine lab was in operation at Hankins's residence in November 2004; (2) the lab had been running long enough to stain walls in the residence; (3) some evidence of the lab's cleanup had already been found as Gautreaux described; (4) the evidence found matched what was typically found at a red-P lab; (5) DuPrey found items in the garbage tying it to Hankins's residence; (6) Hankins owned the blue truck reported as being parked on the Cullenses' properties and as initially containing the garbage bags that were later searched; and (7) DuPrey received a crime stoppers tip and reports from other prisoners that Hankins was running a methamphetamine lab and providing his address as a false place of employment for work release prisoners.
From this detailed information, the magistrate could make a reasonable and commonsense inference that alleged criminal activity had taken place at Hankins's residence and there was a reasonable probability that DuPrey could still find evidence of criminal activity there. A sufficient nexus thus existed between the place to be searched and the alleged criminal activity, regardless of the extent of Hankins's actual involvement, whether he was out of the country, or whether he was participating in ongoing criminal activity on January 25, 2005. Granting deference, the magistrate did not err in finding probable cause and issuing a warrant to search Hankins's residence.
"Manufacture"
Hankins next assigns error to his conviction of unlawful methamphetamine manufacture and the trial court's refusal to arrest judgment on the basis that he did not engage in manufacturing. Specifically, he argues that already-manufactured methamphetamine dissolved in acetone cannot support a manufacturing conviction because changing the form of methamphetamine does not meet the legal definition of "manufacture." He urges us to review this definition in light of the stricter sentencing guidelines imposed for manufacture versus simple possession. He also argues that the State could not establish the timing of manufacture here and there was otherwise insufficient evidence to convict him of the charge.
We review statutory construction de novo as a question of law. State v. Bright, 129 Wn.2d 257, 265, 916 P.2d 922 (1996). We look first to the statute's plain language to give effect to legislative intent and, where the statute is unambiguous, derive that intent from the plain language alone. In re Pers. Restraint of Skylstad, 160 Wn.2d 944, 948, 162 P.3d 413 (2007); State v. Wilson, 125 Wn.2d 212, 216-17, 883 P.2d 320 (1994). We look to the dictionary to define nontechnical terms. State v. McDougal, 120 Wn.2d 334, 350, 841 P.2d 1232 (1992).
RCW 69.50.101(p) defines "manufacture" in relevant part as "the production, preparation, propagation, compounding, conversion, or processing of a controlled substance." (Emphasis added.) "Conversion" means "to change from one form . . . into another." Webster's Third New Intern'l Dictionary 499 (2002). Mixing already-manufactured methamphetamine into acetone to change the form meets the statutory definition of "manufacture" on its face and constitutes manufacture as a matter of law. Because the statutory meaning is unambiguous, we look no further to determine the legislative intent.
Hankins also concedes that mixing already-manufactured methamphetamine with acetone constitutes "changing the form." Appellant's Br. at 32.
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 charged 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. We draw all reasonable inferences from the evidence in favor of the State and interpret them most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977).
Here, the jury heard testimony that, on January 25, 2005, officers found two glass jars, one of which was in the freezer, containing already-manufactured methamphetamine mixed with acetone in Hankins's residence. It heard expert testimony that methamphetamine dissolved into acetone and frozen results in crystallization of the product into a purer form of methamphetamine commonly known as "ice" and that the crystallized form is more popular and of greater street value than the powder form. Viewed in the light most favorable to the State, there was thus sufficient evidence by which the jury could have found that Hankins was manufacturing methamphetamine by converting it into "ice" on January 25. Hankins's argument fails.
Whether Hankins Could be Convicted as an Accomplice
Finally, Hankins contends that the trial court erred in denying his motion to arrest judgment because there was insufficient evidence to convict him as an accomplice. He argues that the State's "to convict" jury instruction required that it prove beyond a reasonable doubt that he acted in concert with or aided another person in manufacturing methamphetamine but that it failed to prove the existence of a principal.
The State originally charged Hankins as a principal or an accomplice. It is not clear from the record why the case ultimately went to the jury solely on accomplice liability theory, but this fact does not affect our analysis.
In presenting its case at trial, the State did not identify a principal with whom Hankins acted as an accomplice, although there was testimony confirming Gautreaux's participation in the methamphetamine lab cleanup and that she had access to Hankins's house while he was out of the country. The trial court instructed the jury that, to convict, it must find beyond a reasonable doubt that Hankins "was an accomplice to the manufacture of a controlled substance." CP at 162.
Washington case law establishes that, to prove accomplice liability, it need not be demonstrated how a defendant acted in concert with another person but only that a crime was committed and that the defendant was a participant; this is so because the premise underlying accomplice liability theory is that, if one is guilty as an accomplice, he is guilty as a principal and should be similarly punished. See, e.g., State v. Nichols, 148 Wash. 412, 415-16, 269 P. 337 (1928) ("[E]very person concerned in the commission of a felony . . . whether he directly commits the act constituting the offense, or aids or abets in its commission, and whether present or absent, is a principal, and shall be proceeded against and punished as such.").
None of the cases cited by either party in support of their argument is directly on point with the factual scenario presented here because each involves two clearly identified criminal participants. But in State v. Cleman, 18 Wn. App. 495, 499-500, 568 P.2d 832 (1977), finding that the actual perpetrator need not be convicted to sustain a conviction for aiding and abetting, the court relied on Carothers, Taplin, Frazier, and Brown to note that Washington law is settled that a verdict may be sustained on evidence that a person participated in the commission of the crime charged, even if not expressly accused of aiding and abetting and even if he is the only one charged. State v. Carothers, 84 Wn.2d 256, 525 P.2d 731 (1974), overruled on other grounds, State v. Harris, 102 Wn.2d 148, 685 P.2d 584 (1984); State v. Frazier, 76 Wn.2d 373, 456 P.2d 352 (1969); State v. Brown, 75 Wn.2d 611, 452 P.2d 958 (1969); State v. Taplin, 9 Wn. App. 545, 513 P.2d 549 (1973). The Cleman court emphasized Judge Callow's concurrence in Taplin:
The parties cite State v. McDonald, 138 Wn.2d 680, 981 P.2d 443 (1999); State v. Carothers, 84 Wn.2d 256, 525 P.2d 731 (1974), overruled on other grounds, State v. Harris, 102 Wn.2d 148, 685 P.2d 584 (1984); State v. Frazier, 76 Wn.2d 373, 456 P.2d 352 (1969); State v. Barry, 43 Wn.2d 807, 264 P.2d 233 (1953); State v. Galisia, 63 Wn. App. 833, 822 P.2d 303 (1992), overruled on other grounds, State v. Trujillo, 75 Wn. App. 913, 883 P.2d 329 (1994); State v. Cleman, 18 Wn. App. 495, 568 P.2d 832 (1977); State v. Taplin, 9 Wn. App. 545, 513 P.2d 549 (1973); State v. Nikolich, 137 Wash. 62, 241 P. 664 (1925). As noted, each involves two clearly identified criminal participates and therefore are inapposite to this case.
[T]he old chestnut that one cannot aid and abet himself ignores the purpose of the statute. I conceive this purpose to be to eliminate the necessity of proving the existence or identity of a principal-perpetrator of the crime charged (the existence of "another") if the elements of the crime are proven, and it is also proven that the defendant was "concerned" in its commission. The statutory purpose is to clarify that criminal responsibility exists from culpable involvement as defined under the statute. The statute does not eliminate the necessity of proving the elements of the crime but only that the defendant was the actual perpetrator.
Cleman, 18 Wn. App. at 500 (quoting Taplin, 9 Wn. App. at 552, 553 (Callow, J. concurring)) (some emphasis added).
In State v. Sutherland, the court addressed whether it was prejudicial error to instruct the jury that it could find the defendant guilty as an aider and abettor when he was the only one charged. 24 Wn. App. 719, 604 P.2d 957 (1979), rev'd on other grounds, 94 Wn.2d 527, 617 P.2d 1010 (1980). There, a witness had assisted the defendant with the cleanup after a robbery and murder and then testified against him; the evidence established beyond doubt that the crimes had been committed and that the only remaining question was whether the defendant was guilty. Sutherland, 24 Wn. App. at 721-222, 732-33.
The Sutherland court noted Carothers for its recognition that Brown and Frazier disavowed the view that when only one individual is indicted for a felony he may not be convicted of aiding and abetting and that such viewpoint was out of harmony with the expressed intent of RCW 9.01.030 that every person concerned in the commission of a felony, whether directly or as an accomplice, is a principal to be proceeded against and punished as such. Sutherland, 24 Wn. App. at 731.
The court held that an accomplice instruction was proper in that the jury could have believed all of the witness's testimony or could also have found that the witness lied as to his own participation and the defendant had actually been aided and abetted by him. Sutherland, 24 Wn. App. at 732-33.
In State v. Peterson, the court addressed whether it was error to give an accomplice liability instruction when the principal, on whose "crime" accomplice liability was predicated, was actually a police informer acting in concert with police. 54 Wn. App. 75, 772 P.2d 513 (1989). The court found that, although the principal did not have the requisite criminal mens rea, the substantive crime itself was committed and under RCW 9A.08.020(6), prosecution of a principal was not required to establish accomplice liability. Peterson, 54 Wn. App. at 80-81. Because substantial evidence showed that the crime had been committed and that the appellant had aided in the crime, the Peterson court found no error in the accomplice liability instruction, even though the principal was essentially a "fake." 54 Wn. App. at 81.
Sutherland and Peterson inform our analysis in the present case because here, the jury heard that Gautreaux was involved in the cleanup of Hankins's alleged crime. Although the State did not present a theory that she was the principal to the crime, the jury could have believed either that the cleanup was the extent of her participation, or that Hankins was serving as her accomplice by providing his residence as a location for her methamphetamine lab. Under Sutherland, it was not required that the jury determine the extent of the role of each but only that the crime of methamphetamine manufacture was committed and that Hankins was a participant in that crime, whatever the nature of his participation.
Likewise here, sufficient evidence demonstrated that the crime of methamphetamine manufacture was committed and that Hankins was a participant because that criminal activity was taking place in his home. Under Peterson, the jury could find him guilty as an accomplice on that basis alone, without predicating his liability on that of an identified principal.
At the motion to suppress hearing, Hankins's counsel acknowledged that the trial court could find Hankins liable as an accomplice if it determined he was providing access to his home for a methamphetamine lab.
In sum, Washington treats principal and accomplice liability as an "empty distinction" when sufficient evidence exists that a crime was committed and that the defendant was a participant. Here, sufficient evidence supported the jury's finding that Hankins was a participant in the crime of methamphetamine manufacture, and the State was not required to prove the existence of a principal beyond a reasonable doubt. We find sufficient evidence supported Hankins's conviction and find no error in the trial court's denial of his motion to arrest judgment.
We note that no issue existed here about whether the State sufficiently apprised Hankins of his accomplice liability because the original information charged him as either a principal or accomplice. See, e.g., State v. Rodriguez, 78 Wn. App. 769, 771-74, 898 P.2d 871 (1995) (addressing whether the State sufficiently apprised the defendant of the charges against her where the information charged her only as a principal but the jury convicted her as an accomplice).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J., VAN DEREN, J., concur.