DocketNumber: No. 31931-4-II
Citation Numbers: 131 Wash. App. 58
Judges: Deren, Hunt
Filed Date: 12/28/2005
Status: Precedential
Modified Date: 11/16/2024
— Victor Albert Lyle Whalen appeals his conviction for unlawful possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine, RCW 69.50.440. Whalen argues that (1) under the corpus delicti rule, the trial court should have granted his motion to suppress his statements made to an Olympia police officer; (2) the evidence is insufficient to support his conviction; (3) the prosecutor’s closing argument was improper; and (4) his defense counsel was ineffective. Whalen asserts numerous other arguments in his Statement of Additional Grounds for Review.
FACTS
¶2 On October 24, 2003, Whalen entered a Target store in Olympia. Store security observed him remove seven boxes of nasal decongestant containing pseudoephedrine from a shelf and place them in his cart.
¶3 After handcuffing Whalen, store security escorted him to the store’s security office and removed six of the seven boxes of pseudoephedrine from Whalen’s shirt. The
¶4 Store security contacted the Olympia Police Department regarding the incident and Officer Lyle Schaeffer responded. Schaeffer advised Whalen of his Miranda
¶5 At that point, Schaeffer patted Whalen down and discovered the seventh box of pseudoephedrine. All seven boxes of pseudoephedrine were returned to the store and were not taken into evidence by the Olympia Police Department.
¶6 On October 29, 2003, the State charged Whalen with one count of unlawful possession of ephedrine or pseudo-ephedrine with intent to manufacture methamphetamine, contrary to ROW 69.50.440, and one count of second degree robbery, contrary to ROW 9A.56.210. The State later amended the information eliminating the robbery charge.
¶7 During a CrR 3.5 hearing, Whalen stipulated to his responses to Schaeffer’s questions prior to being taken to the Olympia Police Department. A jury trial commenced that same day, resulting in a guilty verdict. Whalen timely appealed.
Corpus Delicti Rule
¶8 Whalen argues that the trial court should have granted his motions to suppress his admissions to Schaeffer and dismissed the charge of possession with intent to manufacture under the corpus delicti rule. More specifically, he contends that the lack of sufficient independent evidence corroborating his admissions to Schaeffer warranted their exclusion at trial.
¶9 The confession or admission of a defendant charged with a crime cannot be used to prove the defendant’s guilt in the absence of independent evidence corroborating that confession or admission.
¶10 To be sufficient, independent corroborative evidence need not establish the corpus delicti, or “body of the crime,” beyond a reasonable doubt, or even by a preponderance of the evidence. Riley, 121 Wn.2d at 32. Rather, independent corroborative evidence is sufficient if it prima facie establishes the corpus delicti. State v. Smith, 115 Wn.2d 775, 781, 801 P.2d 975 (1990). Prima facie in this context means evidence of sufficient circumstances supporting a logical and reasonable inference of criminal activity. Aten, 130 Wn.2d at 656; State v. Vangerpen, 125 Wn.2d 782, 796, 888 P.2d 1177 (1995). In determining whether the State has produced sufficient prima facie evidence, we must assume the truth of the State’s evidence and all reasonable inferences drawn therefrom. See Bremerton v. Corbett, 106 Wn.2d 569, 571, 723 P.2d 1135 (1986); State v. Pineda, 99
¶11 Whalen concedes that he possessed pseudoephed-rine, but he argues that possession alone is insufficient to show intent to manufacture methamphetamine without independent corroborative evidence. Whalen asserts that the State failed to establish his intent to manufacture and that the trial court unreasonably and erroneously inferred intent solely from his possession of pseudoephedrine.
¶12 Whalen is correct that bare possession of pseudoephedrine is not enough to prima facie establish the corpus delicti for an intent to manufacture conviction; at least one additional factor, suggestive of intent, must be present. See State v. McPherson, 111 Wn. App. 747, 759, 46 P.3d 284 (2002). To satisfy the corpus delicti rule in this case, the State was required to present prima facie proof that Whalen (1) possessed pseudoephedrine and (2) intended to manufacture methamphetamine. See State v. Cobelli, 56 Wn. App. 921, 924, 788 P.2d 1081 (1989). Because Whalen concedes possession of pseudoephedrine, the crucial inquiry is whether the State produced sufficient independent corroborative evidence suggesting Whalen’s intent to manufacture methamphetamine.
¶13 A person acts with intent when he acts with the objective or purpose to accomplish a result which constitutes a crime. RCW 9A.08.010(l)(a). The State argues that (1) pseudoephedrine is a primary precursor to methamphetamine; (2) the amount of pseudoephedrine in Whalen’s possession was indicative of an intent to manufacture; (3) his efforts to shoplift seven packages of cold remedies containing pseudoephedrine indicate an illicit use was intended; and (4) the fact that RCW 69.43.110 limits individuals to the purchase of three packages of
f 14 In determining whether the State’s evidence is sufficient to meet its burden, we review the evidence in the light most favorable to the State. Pineda, 99 Wn. App. at 77. Here, absent Whalen’s admissions to Schaeffer, the State’s evidence indicates only that store security apprehended Whalen attempting to shoplift more pseudoephedrine than he could legally purchase at one time. But Whalen’s mere possession of the amount of pseudoephedrine in the seven boxes may not have been illegal if acquired within the statutory timeframe.
¶15 This case is similar to Cobelli. In Cobelli, officers observed Cobelli carry out a series of short conversations with several “clusters” of people in a parking lot near a convenience store. 56 Wn. App. at 922. According to officer testimony, Cobelli made contact with a person or persons, talked briefly, and then walked away. Cobelli, 56 Wn. App. at 922. Officers did not observe any actual exchanges, but testified that, “ ‘[t]he manner in which it was happening [was] real indicative of what I’ve seen before in the sales and purchase of drugs.’ ” Cobelli, 56 Wn. App. at 922 (first alteration in original). After police arrested Cobelli, he removed baggies containing a total of 1.4 grams of marijuana and money from his pockets and admitted selling two baggies of marijuana for $10 each. Cobelli, 56 Wn. App. at 923. Cobelli was found guilty of possession of marijuana with intent to deliver. Cobelli, 56 Wn. App. at 922.
¶16 Reversing the conviction, Division One of this court held that in order for the State to satisfy the corpus delicti rule, it had to produce prima facie evidence that Cobelli (1) possessed marijuana and (2) intended to deliver it. Cobelli, 56 Wn. App. at 924. The court held that in the absence of Cobelli’s admissions, there was insufficient independent corroborative evidence of intent to deliver. Cobelli, 56 Wn. App. at 924. The court observed that while the manner in which Cobelli interacted with others in the parking lot was consistent with the sale of drugs, there was no actual observation of exchange of drugs for money. Cobelli, 56 Wn. App. at 924-25. Furthermore, although Cobelli removed marijuana and money from his pockets, the amount of marijuana was relatively small and the record did not indicate exactly how much money Cobelli had in his possession. Cobelli, 56 Wn. App. at 924-25.
¶18 Therefore, absent Whalen’s statements and assuming the truth of the State’s evidence and all reasonable inferences from it, the State failed to produce sufficient evidence that Whalen shoplifting cold tablets was the first step of a methamphetamine manufacturing process. Under these circumstances, the trial court erred when it refused to suppress Whalen’s statements to Schaeffer.
¶19 Whalen raises additional issues that we do not address because we hold that the charges should have been dismissed upon suppression of his statements to Schaeffer.
¶20 We reverse and vacate his conviction.
Houghton, J., concurs.
RAP 10.10.
Three of the boxes were Sudafed and four were Target brand.
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The independent corroborative evidence may be either direct or circumstantial. State v. Aten, 130 Wn.2d 640, 655, 927 P.2d 210 (1996).
While possession of pseudoephedrine is generally legal, possession in an amount of more than 15 grams is unlawful under certain circumstances. RCW 69.43.120. The record is unclear on how much pseudoephedrine Whalen had in his possession at the time of his arrest. Even if Whalen possessed more than 15 grams of pseudoephedrine at the time of his arrest, his offense would have been a gross misdemeanor, not a felony. Further, the State did not charge Whalen with possession of more than 15 grams of pseudoephedrine.
The dissent reasons that:
A reasonable trier of fact could reasonably infer that Whalen’s surreptitious plan to conceal, to leave the store, and later to return to steal the seven concealed boxes of pseudoephedrine cold tablets, was an unambiguous attempt to circumvent a law designed to prevent the quick collection of sufficient quantities of precursor drugs needed to manufacture methamphetamine. Rather than legally purchasing the pseudoephedrine over the course of three days, perhaps plausibly for personal use, Whalen intentionally broke the law, planned, and shoplifted seven packages at one time.
Dissent at 69.