State v. Zunker

112 Wash. App. 130
CourtCourt of Appeals of Washington
DecidedJune 6, 2002
DocketNo. 19729-8-III
StatusPublished
Cited by35 cases

This text of 112 Wash. App. 130 (State v. Zunker) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Zunker, 112 Wash. App. 130 (Wash. Ct. App. 2002).

Opinions

Sweeney, J.

—A

jury found Leiton L. Zunker guilty of one count of possession of methamphetamine with intent to deliver and one count of manufacturing methamphetamine. Mr. Zunker challenges the sufficiency of the evidence of intent to deliver on the grounds that the quantity of methamphetamine he possessed — two grams — was not enough to deliver. And while that may be true, we conclude that the evidence is sufficient here to support an intent to deliver when we consider other evidence, including ingredients to make methamphetamine, scales, and notebooks with names and numbers.

Mr. Zunker also challenges the manufacturing conviction on grounds that evidence of possession of most of the ingredients does not constitute “preparation” of the substance — one statutory definition of manufacture. RCW 69.50.101(p). “Preparation” in this statutory scheme means combining or otherwise starting the process of making methamphetamine. Here, he had most of the implements to manufacture and ground-up cold pills — the start of the process for preparation of methamphetamine. We therefore affirm his conviction on both counts.

FACTS

The police stopped Mr. Zunker because they thought that the car he was driving was stolen. They ordered him out of the car and patted him down. They found a vial containing two grams of methamphetamine in his pants pocket. They then arrested him and searched his car.

They found several bottles of cold pills in a black bag on the front floorboard and another bottle on the back seat. The bag also contained a significant amount of ground-up cold pills. A small scale with methamphetamine residue on it was found in another bag in the car. Two small notebooks [134]*134with names and phone numbers were also found. One of the notebooks had credit card numbers. At this point, the officers suspected a mobile meth lab. They asked for and received Mr. Zunker’s consent to search the trunk.

The trunk contained a large tank with “anhydrous ammonia” stamped on the side. The tank was empty except for trace amounts of anhydrous ammonia.

Mr. Zunker was charged with manufacture of methamphetamine, or in the alternative, possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine. He was also charged with possession of a controlled substance with intent to deliver, or in the alternative, unlawful possession of a controlled substance, methamphetamine.

Mr. Zunker and passenger, Jeri McPherson, were tried together before a jury.

Detective Terry Boehmler of the Tri-City Metro Drug Task Force testified that he had worked on the task force for a year and one-half. He received on-the-job training and training from the Drug Enforcement Agency. He continued to attend conferences on current trends in combating meth labs. He had also participated in investigating 40 to 60 meth labs in the first half of 2000 alone.

Detective Boehmler explained the significance of the physical evidence. He testified that people grind up cold pills for only one reason — to extract pseudoephedrine to make meth. Detective Boehmler testified that anhydrous ammonia is another ingredient of meth. He testified the only ingredient Mr. Zunker was missing was lithium. He had investigated a number of meth labs where one or more of the essential ingredients was not found.

Mr. Zunker’s defense was unwitting possession. He said he borrowed the car from a friend. He helped load the ammonia tank into the trunk. But he denied knowing anything else about it and knew nothing about the other items found in the car. Ms. McPherson said she owned the scales but used them only to buy meth for her own use.

[135]*135Mr. Zunker was convicted of manufacture of a controlled substance and possession of a controlled substance with intent to deliver.

SUFFICIENCY OF EVIDENCE

Mr. Zunker points to the lack of direct evidence that he sold or intended to sell anything. He argues that the two grams police found are more consistent with personal use than with an intent to deliver.

Standard of Review

Evidence is sufficient to support a jury verdict if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Campos, 100 Wn. App. 218, 222, 998 P.2d 893, review denied, 142 Wn.2d 1006 (2000); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). All reasonable inferences are drawn in favor of the verdict and interpreted most strongly against the defendant. State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105 (1995).

Mr. Zunker argues that the circumstantial evidence must not only be consistent with the hypothesis of guilt but also inconsistent with any reasonable hypothesis of innocence. See, e.g., State v. Sewell, 49 Wn.2d 244, 246, 299 P.2d 570 (1956). This was the law in Washington at one time, but it is no longer the rule. Washington follows the federal rule that circumstantial evidence need not be inconsistent with any hypothesis of innocence. State v. Gosby, 85 Wn.2d 758, 764-65, 539 P.2d 680 (1975). It need be sufficient only to convince a reasonable jury of guilt beyond a reasonable doubt. Id. at 766-67; State v. Kovac, 50 Wn. App. 117, 119, 747 P.2d 484 (1987).

Intent to Deliver

Possession of a controlled substance, standing alone, is not sufficient to support an inference of intent to deliver, even if the amount is greater than is deemed usual for personal use. Campos, 100 Wn. App. at 222 (citing State v. [136]*136Lopez, 79 Wn. App. 755, 768, 904 P.2d 1179 (1995)). Some additional factor must be present. Campos, 100 Wn. App. at 222 (citing State v. Hutchins, 73 Wn. App. 211, 216, 868 P.2d 196 (1994)).

A large amount of cash, is one such factor. Campos, 100 Wn. App. at 223. So is paraphernalia — scales, cell phones, address lists, and the like. Id. at 223-24 (citing State v. Brown, 68 Wn. App. 480, 482, 484-85, 843 P.2d 1098 (1993)).

Mr. Zunker had $220. By itself, this might not be enough. But he also had scales bearing meth residue, notebooks with names and credit card numbers, a cell phone battery, and meth ingredients. And the key to the trunk (containing the anhydrous ammonia tank) was in his wallet.

Numerous Washington cases hold that an inference of intent to deliver requires at least one factor indicative of distribution in addition to a large quantity of drugs. See, e.g., State v. Hagler, 74 Wn. App. 232, 236, 872 P.2d 85 (1994).

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Cite This Page — Counsel Stack

Bluebook (online)
112 Wash. App. 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-zunker-washctapp-2002.