State v. McPherson

• Decision Date: 16 May 2002
• Docket Number: No. 19988-6-III.,19988-6-III.
• Citation: 46 P.3d 284,111 Wash.App. 747
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Jeri L. McPHERSON, Appellant.

46 P.3d 284

111 Wash.App. 747

STATE of Washington, Respondent, v. Jeri L. McPHERSON, Appellant.

No. 19988-6-III.

Court of Appeals of Washington, Division 3, Panel One.

May 16, 2002.

Gary C. Hugill, Attorney at Law, Kennewick, Counsel for Appellant.

Andrew K. Miller, Prosecuting Attorney, Kennewick, Counsel for Respondent.

BROWN, C.J.

A jury convicted Jeri McPherson of one count of manufacturing methamphetamine (meth) and one count of possessing methamphetamine with intent to manufacture or deliver. Ms. McPherson appeals, alleging (A) insufficient evidence, and trial court error, (B) when admitting as expert testimony a detective's meth lab evidence, and (C) by failing to strike one of the detective's responses to a question asked during cross-examination. We reject each allegation and affirm.

FACTS

The State charged Ms. McPherson with manufacture of a controlled substance, to-wit: methamphetamine (Count I), with possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine charged in the alternative. The State also charged Ms. McPherson with possession of methamphetamine with intent to manufacture/deliver (Count II), with possession of methamphetamine charged in the alternative. The trial court consolidated Ms. McPherson's trial with her co-defendant, Leiton L. Zunker. Accomplice liability was included in the State's case theory.

Pasco City Police Officer John Baker testified he stopped a vehicle having false license tabs. Mr. Zunker was the driver, Ms. McPherson was the center front seat passenger, and Terrence Bowers was in the right-front passenger seat. When asked about the false license tabs, Mr. Zunker claimed he had borrowed the vehicle from a friend whom he was unable to name. Both Ms. McPherson and Mr. Bowers lied about their names. When Mr. Bowers' true identity was discovered, he was arrested on a warrant unrelated to this case.

Concerned the vehicle may have been stolen, and for officer safety reasons, Officer Baker and his cover man, Richland Police Officer Barry Gilk, detained, handcuffed, and conducted a pat-down search of the occupants. In Mr. Zunker's right front pants pocket, Officer Baker discovered a vial containing a grayish-white powder. Suspecting a controlled substance, Officer Baker arrested Mr. Zunker.

Incident to Mr. Zunker's arrest, the officers searched the car's passenger compartment. Significantly, two black bags were discovered, one made of canvas, the other leather; Ms. McPherson claimed both bags. The canvas bag was found on the middle-front floorboard. The leather bag was found on the rear floorboard. In the canvas bag, officers found a large number of unopened bottles of pseudoephedrine. Under these bottles, the officers found a plastic baggie containing ground-up pseudoephedrine. Found separately from the canvas bag, a pseudoephedrine bottle was located in the back seat, and an unopened box of pseudoephedrine was located on the rear floorboard.

In the leather bag, which apparently served as Ms. McPherson's purse, the officers discovered among other items a citation and court notice belonging to Ms. McPherson, a notebook containing credit card numbers with names that did not match the occupants of the vehicle, a small knife with an unidentified residue on it, and a small box containing a small plastic scale with white powder residue on it. Ms. McPherson specifically claimed the scale, which lab-tested positive for methamphetamine.

With consent from Mr. Zunker, Officer Baker looked in the car's trunk. Officer Baker found a 35-pound cylinder containing what Mr. Zunker said was anhydrous ammonia. The tank contained a trace amount of the gas. Officers found Mr. Zunker possessed $220 cash and Ms. McPherson possessed $80 cash when arrested.

West Richland Police Department Detective Terry Boehmler, assigned to the Metro Drug Task Force, testified in detail about the methamphetamine manufacturing process. Detective Boehmler had attended a 40-hour DEA course on "assessment, analysis and cleanup of methamphetamine labs." Report of Proceedings (RP) at 159. Detective Boehmler related he had attended several conferences in Washington and other states concerning meth labs. The detective indicated he conducted meth lab training for two local police departments and had just completed a two-day meth lab recertification course. In his undercover operations concerning meth labs during the previous six or seven months, Detective Boehmler had investigated 40 to 60 meth labs.

Counsel for Mr. Zunker objected when Detective Boehmler answered in the affirmative to the deputy prosecutor's question as to whether he was "the resident expert on meth labs[.]" RP at 159. The trial court did not rule on the objection before the deputy prosecutor followed up by asking the detective if the drug task force looked to him "as the expert with regard to meth labs?" RP at 159. Without objection, again Detective Boehmler answered in the affirmative. Later, in his direct examination and without objection, Detective Boehmler was asked: "Now, your role with Metro is not just as the resident expert on meth labs, you also participate in the normal controlled buys?" RP at 163.

Detective Boehmler estimated the ephedrine (the equivalent of pseudoephedrine) found in the car could have been processed into methamphetamine worth about $2,000 to $2,500. According to Detective Boehmler, anhydrous ammonia and lithium, rendered from strips or batteries, or another alkali metal-like sodium or potassium, would have been required in addition to the ephedrine to complete the process. According to the detective, approximately 50 percent of the meth labs he had investigated were missing one or two components needed to complete the manufacturing process. Detective Boehmler mentioned other common items used in manufacture like coffee filters, water, acetone, and various types of containers likely to be used in meth cooking operations.

Under cross-examination from Mr. Zunker's counsel, Detective Boehmler admitted he was not a college graduate or chemist. Later in cross-examination, counsel for Ms. McPherson and Detective Boehmler engaged in the following exchange:

Q. Okay. And then finally, because I don't want to get into the science, I was here with a headache listening but basically, whatever this stuff is and however it may be used, the guilty person is the one that has it, possesses it, knows how to and intends to actually use it. Isn't that right?

A. That's, I think, dependent upon them. But that's who we generally charge.

RP at 196.

Counsel for Mr. Zunker moved to strike Detective Boehmler's answer. Ms. McPherson's counsel did not join the motion and, without waiting for a ruling, asked an immediate follow-up question: "At least bring to Court?" RP at 197. The detective answered, "Yes." RP at 197. Neither defense counsel pursued a ruling on the motion.

On re-direct, Detective Boehmler testified that methamphetamine could be sold in an amount as small as one gram for $20 to $40, or a "teener," approximately 1.8 grams for $60 to $80. RP at 199-200.

According to Officer Gilk, Ms. McPherson admitted the scale and the two bags found in the car were hers. Based upon some 400 narcotics arrests, Officer Gilk said the scale was the type commonly used in controlled substances transactions.

Mr. Zunker testified he borrowed the car from a friend. Mr. Zunker said he helped load the anhydrous ammonia tank in the trunk of the car but otherwise had no involvement with it. He stated he was unaware of the bags in the car. Mr. Zunker denied manufacturing methamphetamine. While admitting his initial denial was false and conceding the two grams of meth was enough for transactional purposes, Mr. Zunker said the meth was for his own consumption and to share with others.

Ms. McPherson testified Mr. Zunker gave her a ride in the car, but she had never seen the car before. She admitted the scales seized from the car were hers. She denied any knowledge of the anhydrous ammonia tank and other incriminating items seized from the car. Ms. McPherson said she used the scale to measure purchases of methamphetamine for personal consumption, "because I wanted to make sure that I was not being ripped off." RP at 265. Ms. McPherson denied manufacturing methamphetamine or being aware Mr. Zunker had methamphetamine on his person.

On cross-examination, Ms. McPherson admitted giving the officer a false name shortly before her arrest. She admitted telling Officer Gilk all of the bags in the car belonged to her, but explained that did not include bags of which she was unaware.

The trial court gave an expert witness instruction over objections from both defendants on the ground Detective Boehmler was not an expert. The jury found Ms. McPherson guilty on both counts. After the trial court entered concurrent, standard-range sentences, Ms. McPherson appealed.¹

ANALYSIS

A. Evidence Sufficiency

The issue is whether the evidence was sufficient to convict Ms. McPherson for manufacture of methamphetamine (Count I), and possession with intent to deliver methamphetamine (Count II).

1. Standard of Review and Applicable Law

A defendant may challenge the sufficiency of the evidence for the first time on appeal. State v. Hickman, 135 Wash.2d 97, 103 n. 3, 954 P.2d 900 (1998); State v. Alvarez, 128 Wash.2d 1, 9, 904 P.2d 754 (1995). "The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wash.2d 216, 220-22, 616 P.2d 628 (1980)).

"When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." Salinas, 119 Wash.2d at 201,829 P.2d 1068 (citing ...