Opinion
Nos. 29050-2-II (consolidated with), 29051-1-II
Filed: July 13, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Skamania County. Docket No: 00-1-00098-5. Judgment or order under review. Date filed: 06/27/2002. Judge signing: Hon. E. Thompson Reynolds.
Counsel for Appellant(s), Suzan L. Clark, Attorney at Law, 1101 Broadway St. Ste 250, Vancouver, WA 98660-3320.
Anthony James Lowe, Attorney at Law, 1010 Esther St, Vancouver, WA 98660-3028.
Counsel for Respondent(s), Randall Charles Krog, Law Office of Randall Charles Krog, PO Box 102, Stevenson, WA 98648.
Roxanne Ober and Kelly Thompson appeal their convictions for various methamphetamine crimes and for possessing a short-barreled shotgun. Ober and Thompson raise numerous issues, but their primary arguments concern evidence seized after police stopped Thompson's vehicle in Clark County and after police entered a trailer and camper in Skamania County without a search warrant. We affirm.
FACTS I. Facts A. Clark County Traffic Stop
Neither defendant assigns specific error to the trial court's findings of fact from the CrR 3.6 motions to suppress evidence obtained during the Clark County traffic stop and the initial Kellet Road searches. Accordingly, they are verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994) (citing In re Riley, 76 Wn.2d 32, 33, 454 P.2d 820 (1969)).
On October 14, 2000, the Clark County Sheriff's Office impounded Roxanne Ober's vehicle at Action Towing following her arrest for driving while license suspended. On November 1, Ober and Kelly Thompson approached Terry Morton, the owner of Action Towing, and requested permission to remove certain items from Ober's vehicle. Morton allowed Ober and Thompson to drive a black pickup truck into the impound yard in order to retrieve Ober's personal items.
As he stood nearby, Morton watched Ober and Thompson remove various items of personal property from Ober's vehicle and place it in Thompson's pickup, including glassware that Morton associated with methamphetamine manufacturing. Morton also saw Thompson drink from a flask he believed contained alcohol. After Ober and Thompson left the impound yard in Thompson's pickup, Morton called 911 to report `suspicious circumstances,' including a drinking driver. I Clerk's Papers (CP) at 70. But the trial court could not find that Morton included information about the removal of glassware in his initial report to the authorities.
The Clark County Sheriff's Office dispatched officers to the area. One of the officers, Deputy Kevin Gadaire, saw Thompson's pickup near Action Towing. The pickup made an abrupt turn in front of a semi-truck, nearly causing an accident. Deputy Gadaire also noticed that the vehicle lacked a front license plate and had expired tabs.
To the extent Thompson challenges this fact in the joint statement of additional grounds for review, the court may still treat it as a verity because substantial evidence supports it. Hill, 123 Wn.2d at 647.
Deputy Gadaire activated his marked patrol car's lights and sirens and turned around to contact Thompson's pickup. As he turned, the pickup sped up and then abruptly turned into the parking lot of a recreational vehicle repair shop. Ober exited from the passenger side; Thompson exited the driver's side. Both walked quickly toward the back of the repair shop.
Ober refused Deputy Gadaire's order to return and he began arguing. But after a few seconds, Ober and Thompson returned to the vehicle. When Deputy Gadaire asked Thompson for identification, Thompson gave a false name and said he did not have a driver's license. Deputy Gadaire suspected this information was false and asked Thompson for his social security number. Ober interrupted and tried to help Thompson by providing a false social security number. After successfully identifying Thompson, Deputy Gadaire arrested both him and Ober on outstanding warrants.
A search incident to Ober's arrest yielded three glass pipes, a folding knife, a container holding additional glass pipes, and several zip lock baggies. One of the baggies contained a yellowish substance that tested positive for methamphetamine.
While standing outside the pickup, Deputy Gadaire noticed steam and a strong odor coming from the truck bed. He also saw two containers with various colored liquids, which he associated with methamphetamine manufacturing. A black nylon bag in the bed was giving off a strong sulfuric odor and appeared to be smoking or steaming. Deputy Gadaire also saw what appeared to be a bottle of iodine within the partially open black nylon bag.
Deputy Gadaire then impounded Thompson's pickup and contacted Detective Steve Nelson of the Clark/Skamania Drug Task Force. The next day, Detective Nelson observed the items described by Deputy Gadaire and a bottle of Red Devil lye. Based on this information, Detective Nelson obtained a search warrant for the pick-up. The search yielded miscellaneous items commonly used in methamphetamine manufacture and various documents identifying Ober and Thompson.
B. Searches at the Kellet Road Property
The same day, someone called Brent Holman, the Skamania County Public Works Director and Fire Marshal, to report a large amount of smoke issuing from a mobile home on Kellet Road. Holman was responsible for enforcing the County's building code and the uniform fire code. And Holman's office had previously cited the mobile home because it was illegally sited. The County did not allow any use of the mobile home.
Holman, Deputy Sheriff Chris Ford, and Deputy Prosecuting Attorney Chris Dumm then drove to the Kellet Road property. Ford accompanied Holman and Dumm as civil standby to provide security. Holman did not call the fire department.
Upon arrival, Holman and Ford noticed smoke coming from a `jerry-rigged' stove pipe sticking out of a window of the trailer. I Report of Proceedings (RP) at 16. The trailer was 5 to 10 feet from several 12-inch diameter trees and brush. Also on the property were a Ford pickup truck attached to a camper and a red Mazda.
Ford approached the front of the camper, walked along its side, and knocked on the camper's back door. He noticed propane cylinders on the ground and a beaker containing a liquid on top of the camper. Ford's knock caused the door to open 4 to 12 inches. When the door opened, Ford saw Pyrex glassware on a table and numerous matches, some on the floor and others in a large container. Ford also saw garbage, starting fluid, and a lye canister on the ground.
Ford then walked down the right side of the trailer, knocked on the two trailer doors, and periodically announced his presence as a member of the sheriff's department. As they walked around the left side of the trailer, the men saw the large stove sticking out of a window, which was hot to the touch.
Holman decided to enter the trailer to investigate the situation and asked Deputy Ford to accompany him. After he and Holman entered the trailer, Ford `peeked' in each room to see if anyone was in the trailer. I RP at 69. Ford saw a huge number of extension cords, glassware, and a tri-level beaker of liquid. At this point, Ford told Dumm and Holman that they likely were in a methamphetamine lab. And after Holman and Dumm assured Ford the fire was almost extinguished, the three men exited the trailer. Ford testified that Holman and Dumm determined the fire was almost out at the same time he discovered the beaker containing multi-layer liquids.
After exiting the trailer, Ford entered the camper to check for occupants. He was concerned because there is `usually some sort of protection' at drug labs. I RP at 49. Inside the camper, Ford saw and seized an illegal sawed-off shotgun.
After Ford secured the scene, Detective Monty Buettner of the Clark/Skamania County Drug Task Force arrived. Buettner did not enter the camper or trailer. But inside the camper he observed numerous cases of matches, a large metal pot with white powder stains, and a large amount of glassware, including chemical beakers. At least one chemical beaker appeared to be heat-stained. Inside the trailer, Buettner saw a gallon milk jug containing a bi-layer liquid and a lye container. And Buettner observed propane tanks on the ground outside the trailer. Buettner subsequently obtained a search warrant.
These tanks initially raised Buettner's concern because they are often used to store anhydrous ammonia, but apparently were not used for this purpose.
A November 2 warrant search of the Kellet Road property yielded items used in the manufacture of methamphetamine. The search also yielded miscellaneous paper items, checkbook carbons, a VISA receipt, and financial statements belonging to Roxanne Ober. The police also seized a Kaiser Permanente card belonging to a `K. Michael Thompson' and three prescription medicine bottles for `Michael Thompson.' V RP at 538-39.
II. Procedure
The State charged Thompson with manufacturing methamphetamine, possession of methamphetamine with intent to deliver, possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine, possession of methamphetamine, second degree unlawful possession of a short firearm, possession of a short-barreled shotgun, and conspiracy to manufacture methamphetamine.
The jury convicted Ober of manufacturing methamphetamine, possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine, possession of methamphetamine, and unlawful possession of a short-barreled shotgun, and it acquitted her of possession with intent to deliver and conspiracy charges. The jury also acquitted Thompson of the conspiracy and possession with intent to deliver charges, but convicted him of all other charges.
ANALYSIS I. Clark County Traffic Stop A. Seizure of Ober
Ober argues that all evidence from the Clark County stop should be suppressed because Deputy Gaudaire unlawfully seized her.
When reviewing findings of fact from a suppression hearing, we consider only those facts to which error has been assigned. Hill, 123 Wn.2d at 647. Unchallenged findings are verities on appeal. City of Seattle v. Muldrew, 69 Wn.2d 877, 878, 420 P.2d 702 (1966). The ultimate determination of whether the facts constitute a seizure is a question of law, which we review de novo. State v. Thorn, 129 Wn.2d 347, 351, 917 P.2d 108 (1996), overruled on other grounds by State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003). Because Ober has not challenged the factual findings, the question is whether these findings support the trial court's conclusion that Deputy Gadaire had reasonable suspicion to detain Ober.
An investigative detention is a seizure, State v. Armenta, 134 Wn.2d 1, 10, 948 P.2d 1280 (1997), and must therefore be reasonable under the Fourth Amendment and article I, section 7 of the Washington Constitution. State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986). Here, Deputy Gaudaire seized Ober when he ordered her to stop and return to the pickup. See State v. Mendez, 137 Wn.2d 208, 222-23, 970 P.2d 722 (1999) (passenger seized when officer ordered passenger to get back in vehicle, not when officers stopped the vehicle).
An officer may briefly detain a vehicle passenger for investigation if the circumstances satisfy the Terry reasonable suspicion standard. Mendez, 137 Wn.2d at 220. To justify a Terry stop under the state and federal constitutions, a police officer must be able to identify specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. Mendez, 137 Wn.2d at 223 (citing Terry, 392 U.S. at 21). `Articulable suspicion' means `a substantial possibility that criminal conduct has occurred or is about to occur.' Kennedy, 107 Wn.2d at 6 (citing 3 W. LaFave, Search and Seizure (1978) at 65). But flight alone may not justify a Terry stop. Mendez, 137 Wn.2d at 224.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
The following non-exclusive factors may justify an officer detaining a passenger at a traffic stop: `the number of officers, the number of vehicle occupants, the behavior of the occupants, the time of day, the location of the stop, traffic at the scene, affected citizens, or officer knowledge of the occupants.' Mendez, 137 Wn.2d at 220-21. No one factor automatically justifies an officer detaining a passenger. Mendez, 137 Wn.2d at 220-21. Rather, the inquiry `requires consideration of the circumstances present at the scene of the traffic stop.' Mendez, 137 Wn.2d at 220-21.
Ober relies on Mendez. In Mendez, the court considered whether, under article I, section 7, police could detain a passenger at the scene of a traffic infraction if the passenger wanted to leave the scene, the police lacked reasonable suspicion that the passenger was engaged in criminal activity, and the passenger posed no apparent danger to the police. The court held that the officers must have an articulable rationale predicated on safety concerns to order passengers out of a vehicle or to remain in the vehicle. Mendez, 137 Wn.2d at 212. And the passenger's attempt to walk away after exiting the vehicle did not by itself satisfy Terry. Mendez, 137 Wn.2d at 223-24.
The court acknowledged that Mendez reached inside his clothing and disobeyed the officer's commands as he walked away, but because it had held that he was seized as soon as the officer ordered him to get back in the vehicle, these subsequent actions could not be used to justify the seizure. Mendez, 137 Wn.2d at 223-24.
Here, the trial court did not find that Deputy Gadaire knew Ober and Thompson had removed a suspicious glass beaker from Ober's impounded vehicle and placed it in Thompson's pickup. But the deputy did know that Ober had helped remove items from her impounded vehicle and that the vehicle's driver had been reported drinking from a flask. Finally, after the deputy turned on his lights, the vehicle sped up, made an abrupt turn into the repair shop, and both Ober and Thompson exited the vehicle and quickly walked to an area where they apparently were not expected.
Mendez is distinguishable. There, the officers stopped a car for running a stop sign. They had no reason to suspect the passenger of any criminal activity. See Mendez, 137 Wn.2d at 212. Here, the officer knew Ober was involved in transferring items from the car to the truck, the driver of the truck may have been drinking, it was nearly in a collision, the truck sped up in response to the officer's lights, and both occupants quickly left the truck. This was sufficient for the officer to briefly detain Ober to investigate the circumstances.
B. Admission of Evidence Under ER 404(b)
The defendants argue that the trial court erred in admitting evidence of the Clark County traffic stop under the res gestae exception to ER 404(b).
Under ER 404(b), evidence of other crimes, wrongs, or acts is inadmissible to prove a person's character to show action in conformity therewith, but it may be admissible for other purposes, including proof of motive, opportunity, intent, preparation, or knowledge. Under ER 404(b)'s res gestae exception, evidence of other bad acts is admissible `to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.' State v. Powell, 126 Wn.2d 244, 263, 893 P.2d 615 (1995) (citations omitted). Each act must be `a piece in the mosaic,' necessarily admitted in order to depict a complete picture for the jury. Powell, 126 Wn.2d at 263 (quoting State v. Tharp, 96 Wn.2d 591, 594, 637 P.2d 961 (1981)).
To admit evidence under ER 404(b), the trial court must state on the record: (1) why the evidence is proferred, (2) whether the evidence is relevant to prove an element of the crime charged, and (3) how the probative value of the evidence balances against its prejudicial effect. State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997). And the party offering the evidence of prior misconduct has the burden of proving by a preponderance of the evidence that the misconduct actually occurred. State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995). We review a trial court's decision to admit evidence under ER 404(b) for a manifest abuse of discretion. State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). The trial court abuses its discretion only if no reasonable person would have taken the same view. State v. Henderson, 26 Wn. App. 187, 190, 611 P.2d 1365 (1980).
In State v. Boot, 89 Wn. App. 780, 791, 950 P.2d 964 (1998), Division Three held that the trial court properly admitted several incidents of the defendant's collateral criminal activity under the res gestae exception to ER 404(b). The defendant was convicted of aggravated first degree murder after shooting the victim three times in the face. The trial court admitted evidence of the defendant's: (1) unlawful discharge of a firearm toward people walking on the street two days before the murder, (2) participation in the robbery of a pizza delivery man one day before the murder, (3) alleged assault two nights before the murder where he held a gun to an acquaintance's head, (4) unlawful taking of a motor vehicle, (5) gang affiliation or membership, and (6) possession or use of a firearm. Boot, 89 Wn. App. at 787-88. The court reasoned that Boot and his codefendant's actions close in time to the murder were necessary to show how the two acted together and that the `evidence established an escalating chain of events of increasingly serious crimes in a short period of time . . . necessary to permit the jury to get the whole picture.' Boot, 89 Wn. App. at 790.
The court also affirmed the admission of the evidence under the motive and premeditation exceptions. Boot, 89 Wn. App. at 791.
The trial court ruled the evidence admissible under the res gestae or same transaction exception. The court found the evidence relevant because the Skamania County charges were methamphetamine-related; the court further concluded that the probative value of the evidence outweighed its prejudicial effect. Accordingly, the court complied with the on-the-record requirements for admitting the evidence under ER 404(b).
The Clark County traffic stop and the discovery of the methamphetamine lab at the Kellet Road location occurred during the afternoon of November 1. Accordingly, the events were close in place and time. And the Clark County crime implicated Ober and Thompson in the methamphetamine manufacturing at the Kellet Road property in Skamania County. The truck contained ingredients for manufacturing methamphetamine and Ober was carrying methamphetamine and drug paraphernalia when the officer arrested her. In addition, a neighbor often saw Thompson's pickup parked at the property, including the day before it was stopped in Clark County. Accordingly, the trial court did not abuse its discretion when it admitted the evidence under the res gestae exception to ER 404(b).
II. Searches of Trailer and Camper
Ober and Thompson contend that all evidence found in the camper and the trailer should be suppressed because the officers entered without a search warrant. The State seeks to justify the warrantless entry of the trailer under the emergency exception and its community caretaking function and the warrantless entry of the camper as a protective sweep for officer safety.
A. Initial Search of the Trailer
The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit unreasonable searches. State v. Gibson, 104 Wn. App. 792, 796, 17 P.3d 635 (2001). These protections extend to administrative or regulatory searches. State v. Browning, 67 Wn. App. 93, 95, 834 P.2d 84 (1992). And `[i]nspections for health, safety, and other violations of municipal codes must be conducted pursuant to a warrant, or fall within one of the narrowly drawn exceptions to the warrant requirement.' Thurston County Rental Owners Ass'n v. Thurston County, 85 Wn. App. 171, 183, 931 P.2d 208 (1997) (citing Camara v. Mun. Court of San Francisco, 387 U.S. 523, 534, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)). The community caretaking function of the emergency exception "exists so officers can assist citizens and protect property." State v. Schlieker, 115 Wn. App. 264, 270, 62 P.3d 520 (2003) (quoting State v. Menz, 75 Wn. App. 351, 353, 880 P.2d 48 (1994)). The State bears the burden of proving that a search falls within an exception. Schlieker, 115 Wn. App. at 270.
If the State invokes the emergency exception, we "must be satisfied that the claimed emergency was not simply a pretext for conducting an evidentiary search." Schlieker, 115 Wn. App. at 270 (quoting State v. Lynd, 54 Wn. App. 18, 21, 771 P.2d 770 (1989)). The emergency exception permits a warrantless entry if: (1) the officer subjectively believed that a person likely needed assistance for health and safety reasons; (2) a reasonable person in the same situation would have believed there was a need for assistance; and (3) there was a reasonable basis to associate this need with the place searched. Schlieker, 115 Wn. App. at 270. The emergency exception applies where `premises contain . . . objects likely to burn, explode or otherwise cause harm.' State v. Downey, 53 Wn. App. 543, 544-45, 768 P.2d 502 (1989).
We evaluate whether an exigency existed and whether the police response was reasonable `in relation to the scene as it could appear to the officers at the time, not as it may seem to a scholar after the event with the benefit of leisured retrospective analysis.' State v. Bakke, 44 Wn. App. 830, 837, 723 P.2d 534 (1986) (quoting Commonwealth v. Young, 416 N.E.2d 944, 950 (1981)). The court balances the competing polices of `(1) allowing police to help people who are injured or in danger and (2) protecting citizens against unreasonable searches.' State v. Johnson, 104 Wn. App. 409, 418, 16 P.3d 680 (2001). And the home is a `highly private place' entitled to `heightened constitutional protection.' Johnson, 104 Wn. App. at 415 (quoting State v. Young, 123 Wn.2d 173, 185, 867 P.2d 593 (1994)).
Here, Holman received a call that a large amount of smoke was coming from the trailer, which he knew to be illegally sited. When he, Dumm, and Ford arrived, he saw smoke coming from a `jerry-rigged' stove pipe sticking out of the trailer window. I RP at 16. This condition violated uniform building and fire codes; the trailer should not have been occupied at all. Moreover, the trailer was located five to ten feet from trees and brush and the stove pipe was hot to the touch. We agree with the trial court; the officers were justified in entering the trailer to examine the stove.
B. Initial Search of the Camper
The State seeks to justify Deputy Ford's initial search of the camper as a protective sweep. When officers make a lawful arrest, they may conduct a reasonable protective sweep of the premises for security purposes. State v. Hopkins, 113 Wn. App. 954, 959, 55 P.3d 691 (2002) (citing Maryland v. Buie, 494 U.S. 325, 334-35, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990)). But here, no arrest preceded Deputy Ford's brief entry into the camper. Nonetheless, we conclude that the search was reasonable.
In United States v. Clark, 617 F. Supp. 693 (E.D. Pa. 1985), three firemen and a police officer responded to a neighbor's report of smoke coming from an adjacent residence. Clark, 617 F. Supp. at 694. After the men discovered a methamphetamine lab in the basement, they summoned specially trained narcotics officers to dismantle the lab. Clark, 617 F. Supp. at 695. While the lab was being dismantled, one of the narcotics officers went to the second floor to see if anyone was in the residence and to look for additional chemicals and smoke. Clark, 617 F. Supp. at 695. The officer discovered evidence identifying the defendant. Clark, 617 F. Supp. at 695. Conceding that the initial entry by firemen and police was justified given the exigent circumstances and that the lab was lawfully seized, the defendant argued that the narcotics officer's upstairs search was unlawful. Clark, 617 F. Supp. at 696. The court held that the search was justified by the need to remove any additional hazardous chemicals that may have been there. Clark, 617 F. Supp. at 698. The court also analogized to a hot pursuit, reasoning that discovery of the basement methamphetamine lab and related evidence at the top of the stairs to the main floor strongly suggested that `the responsible chemist had fled the basement, possibly for another part of the house.' Clark, 617 F. Supp. at 698.
Here, the officers had evidence that someone was either in the trailer or camper or had recently been in them. The trailer had a fire going and a Mazda vehicle was parked at the location. Yet the officers knew that the trailer was not legal at the site and no one was supposed to be using it. Just as the officer's search in Clark was necessary to determine if dangerous chemicals and/or the person responsible for the lab were upstairs, Deputy Ford's entry was necessary to determine if the camper contained additional dangerous chemicals or the individuals responsible for the illegal trailer and the methamphetamine lab.
III. Admission of Photocopies Depicting Juvenile Nude Females
Ober and Thompson argue that they were prejudiced by the admission of photocopies of irrelevant photographs depicting a juvenile nude female. In their statement of additional grounds, the defendants claim the photographs depict Ober. The State correctly responds that no objection was made to the admission of these photographs at trial.
While it is difficult to tell whether the trial transcript supports the defendants' claim that the photographs were shown to the jury on an overhead projector and `passed around in front of the jury,' the exhibits include four photocopies, three depicting one nude juvenile female and one depicting a second nude juvenile female; the photocopies were admitted along with various other items seized from Thompson's pick-up. Stmt. of Add'l Grounds at 11. The court also admitted exhibit 14, a picture showing a law enforcement official in lab processing gear holding one of the photocopies of the first female.
The Inventory/Evidence Report refers to the first female as the `juvenile nude female' and the second female as the `nude minor female.'
Two of the photocopies depicting the first female are part of Exhibit 2.
While admission of these photographs was clearly error, there was no timely objection. Because the error did not affect a manifest constitutional right, the defendants cannot raise this issue on appeal. RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995).
IV. Failure to Dismiss Under CrR 8.3
Ober and Thompson argue that the trial court should have granted their CrR 8.3(b) motion to dismiss.
CrR 8.3(b) allows a court to dismiss a case for prosecutorial mismanagement. See State v. Flinn, 119 Wn. App. 232, 247, 80 P.3d 171 (2003). A defendant must show: (1) arbitrary action or government misconduct; and (2) prejudice affecting his right to a fair trial to secure dismissal under CrR 8.3(b). State v. Michielli, 132 Wn.2d 229, 239-40, 937 P.2d 587 (1997). The governmental misconduct `need not be of an evil or dishonest nature; simple mismanagement is sufficient.' State v. Blackwell, 120 Wn.2d 822, 831, 845 P.2d 1017 (1993). But the trial court's authority to dismiss under CrR 8.3(b) is limited to "truly egregious cases of mismanagement or misconduct by the prosecutor." State v. Koerber, 85 Wn. App. 1, 4-5, 931 P.2d 904 (1996) (quoting State v. Duggins, 68 Wn. App. 396, 401, 844 P.2d 441 (1993)). And we review a trial court's decision under CrR 8.3(b) for an abuse of discretion. Michielli, 132 Wn.2d at 240.
Here, the defendants claim that evidence from another methamphetamine-related arrest was mixed with their case. Specifically, they assert that Detective Nelson admitted to mixing several evidence bags. But the record reveals that in response to the prosecutor's question, `Is it possible that you intermixed a couple of the bags?' Detective Nelson responded, `It appears that I have my numbers mixed up.' V RP at 604. This refers to transposing the numbers from the Clark County evidence sheets to two of the actual bags of evidence containing items recovered from Thompson's pickup truck. Several documents the police obtained from another methamphetamine case on the same day the police searched the pickup were mixed with discovery documents in this case, which were then sent to defense counsel. Because these documents were not admitted into evidence, Ober and Thompson cannot show prejudice; accordingly, the trial court did not abuse its discretion when it denied the CrR 8.3(b) motion.
The evidence and inventory sheets are also part of the record, but not marked as exhibits.
V. Failure to Dismiss Juror
Ober and Thompson maintain the trial court should have dismissed a juror who overheard Thompson speaking privately with his counsel and could have seen Ober handcuffed in the hall outside the courtroom.
On June 14, 2002, Thompson's counsel reported that a juror had entered a public restroom while Thompson and his counsel were inside. Thompson's counsel expressed concern that the juror may have overheard a communication between them. But the court stated that it talked to the juror in chambers and that the juror had assured him that `he heard absolutely nothing regarding any communication between [Thompson's counsel] and Mr. Thompson.' VI RP at 725. Thompson's counsel concurred with this assessment, stating, `as soon as we saw him, our conversation ceased.' VI RP at 725-26.
Ober's counsel then moved to strike the same juror because when the juror left the judge's chambers, the jailer was removing Ober's handcuffs as the juror passed. The court and prosecutor initially agreed. But when the court questioned the juror in chambers, the juror stated that he had not seen either defendant in the hallway. The State then withdrew its stipulation to dismiss the juror and the court denied Ober's motion.
We review a trial court's decision on a motion to dismiss a juror for an abuse of discretion. State v. Jorden, 103 Wn. App. 221, 226, 11 P.3d 866 (2000) (citing State v. Hughes, 106 Wn.2d 176, 204, 721 P.2d 902 (1986)). Because there was no evidence the juror overhead a confidential communication between Thompson and his counsel or saw Ober in handcuffs, the court did not abuse its discretion when it refused to dismiss the juror.
VI. Sufficiency of the Evidence
Thompson and Ober challenge the sufficiency of the evidence supporting their convictions. They argue the evidence is insufficient to establish that they exercised dominion and control over the Kellet Road property and the items seized there.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). `A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.' Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). In determining whether the necessary quantum of proof exists, we need not be convinced of the defendant's guilt beyond a reasonable doubt; only that substantial evidence supports the State's case. State v. Fiser, 99 Wn. App. 714, 718, 995 P.2d 107 (2000).
`Evidence of temporary residence, personal possessions on premises, or knowledge of presence of drugs, without more,' is insufficient to show dominion and control. State v. Collins, 76 Wn. App. 496, 501, 886 P.2d 243 (1995). But constructive possession need not be exclusive. State v. Summers, 107 Wn. App. 373, 389, 28 P.3d 780 (2001), opinion modified by 43 P.3d 526 (2002). And that a different person owns an item does not make the evidence insufficient. Summers, 107 Wn. App. at 389. A defendant's dominion and control over the premises gives rise to a rebuttable presumption that he or she has dominion and control over items in the premises. Summers, 107 Wn. App. at 389.
Here, the State produced no evidence that either Ober or Thompson owned the trailer, camper, or Mazda vehicle on the property. But Dennis Weisenfluh lived near the Kellet Road property and testified that Ober and Thompson once came to his front door in October 2001, said they were his neighbors, and that they were looking for a litter of puppies. Weisenfluh also saw Thompson's pickup at the property on multiple occasions, sometimes in the morning on his way to work; he believed that Ober and Thompson seemed to be getting more established at the property. And around mid-August or September 2001, the landowner's son told Weisenfluh that his friends were going to be staying at the trailer and Weisenfluh never saw anyone other than this individual and Ober and Thompson at the property. The officers found papers identifying Ober in the trailer and camper, including a VISA receipt and checkbook carbons. They also found paperwork identifying Thompson, including a `K. Michael Thompson' Kaiser Permanente card and three prescription medicine bottles for `Michael Thompson' in the camper. V RP at 536-39. Accordingly, there was sufficient evidence to establish the defendants' dominion and control over the trailer and camper.
Ober and Thompson also challenge the sufficiency of the evidence for the possession of ephedrine or pseudoephedrine with intent to manufacture. Jason Dunn, a forensic scientist with the Washington State Patrol's crime lab, testified that a pink, cloudy liquid found in a bottle at the Kellet Road location contained pseudoephedrine. His report noted that a sample of this liquid and some blue and black papers also found at Kellet Road were `consistent with the extraction of pseudoephedrine from commercially available tablets.' Exh. 62. Accordingly, because Ober and Thompson exercised dominion and control over the property, the evidence is sufficient to support these convictions.
Thompson also challenges the sufficiency of the evidence to support his conviction for manufacturing methamphetamine. `Manufacture' includes the `preparation . . . 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.' RCW 69.50.101(p). Dunn's testimony and report established that the pseudoephedrine or ephedrine extraction process had begun at the Kellet Road property. Accordingly, there is sufficient evidence to support the manufacturing convictions.
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.
QUINN-BRINTNALL, C.J. and SEINFELD, J.P.T., Concur.