State v. Whalen

131 Wash. App. 58

• Court: Court of Appeals of Washington
• Decided: December 28, 2005
• Docket: No. 31931-4-II
• Status: Published

Opinions

¶1

Van Deren, A.C.J.

— 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.¹ We reverse and vacate his conviction because the State had insufficient independent corroborative evidence of intent to manufacture methamphetamine.

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.² Whalen then walked to another section of the store, concealed the boxes of pseudoephedrine in another box containing an unrelated product, and exited the store. Approximately 30 minutes to one hour later, Whalen returned to the store and walked to the aisle where he had concealed the pseudoephedrine. He removed the pseudoephedrine from its hiding place, concealed it in his shirt, and walked toward the store’s exit. After he passed the store’s registers without paying for the items, store security asked him to stop. Whalen ran out of the store where he was tackled and eventually detained by store security.

¶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 store’s security manager photographed the pseudoephed-rine and prepared a report on the incident.

¶4 Store security contacted the Olympia Police Department regarding the incident and Officer Lyle Schaeffer responded. Schaeffer advised Whalen of his Miranda³ rights. Whalen indicated that he understood his rights and Schaeffer began questioning him. Specifically, Schaeffer said, “We both know why people take Sudafed®,” and Whalen responded, “[Y]es.” Report of Proceedings (RP) (May 17-18, 2004) at 80. Schaeffer then asked Whalen if he was a “cook” and Whalen explained that he was not. RP at 80. Schaeffer then asked who the cook was and Whalen responded with the name of a third party. He further explained that he was obtaining the pseudoephedrine for the third party to satisfy a marijuana debt owed to the third party.

¶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.

ANALYSIS

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.⁴ State v. Aten, 130 Wn.2d 640, 655-56, 927 P.2d 210 (1996). The State has the burden of producing evidence sufficient to satisfy the corpus delicti rule. State v. Riley, 121 Wn.2d 22, 32, 846 P.2d 1365 (1993). If sufficient corroborative evidence exists, the confession or admission of a defendant may be considered along with the independent evidence to establish a defendant’s guilt. Aten, 130 Wn.2d at 656.

¶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 , 992 P.2d 525 (2000). But the independent evidence must support a logical and reasonable inference of criminal activity only. Aten, 130 Wn.2d at 659-60. If the independent evidence also supports logical and reasonable inferences of noncriminal activity, it is insufficient to establish the corpus delicti. Aten, 130 Wn.2d at 659-60.

¶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 pseudoephedrine in a 24-hour period implies an intent to manufacture if one buys or shoplifts more than the legal limit.

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.⁵ Nor were there other indications that Whalen was part of a manufacturing plan. The dissent emphasizes that Whalen’s attempt to acquire more than three boxes of pseudoephedrine within the statutory 24-hour time period creates the reasonable inference in and of itself that Whalen intended to manufacture methamphetamine.⁶ But acquiring more than three packages of pseudoephedrine within a 24-hour period does not constitute possession of pseudoephedrine with intent to manufacture, a class B felony. RCW 69.50.440. Rather, it constitutes a violation of Washington’s regulation of the acquisition of pseudoephedrine, a gross misdemeanor. RCW 69-.43.110. RCW 69.50.440 and RCW 69.43.110 are distinct offenses punishable by highly disparate penalties. That there are two distinct offenses with disparate punishments indicates that the legislature did not intend to equate the acquisition of more than three boxes of cold medicine containing pseudoephedrine within a 24-hour period with intent to manufacture methamphetamine.

¶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.

¶17 More recently, we addressed a similar issue in State v. Moles, 130 Wn. App. 461, 123 P.3d 132 (2005). In Moles, the defendants shoplifted pseudoephedrine from three different stores within a short timeframe and had over 400 loose tablets in their stolen vehicle. We held that the short timeframe involving three purchases at three separate stores, the loose pills, and evidence of a coffee filter containing methamphetamine in a defendant’s pocket constituted sufficient evidence of intent to manufacture. Moles, 130 Wn. App. at 466-67. Here, the State had to prove more than mere possession of unopened boxes of pseudoephedrine to carry its burden of a prima facie showing of Whalen’s intent to manufacture methamphetamine.

¶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.

1 RAP 10.10.

2 Three of the boxes were Sudafed and four were Target brand.

3 Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4 The independent corroborative evidence may be either direct or circumstantial. State v. Aten, 130 Wn.2d 640, 655, 927 P.2d 210 (1996).

5 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.

6 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.