State v. Missieur

• Citation: 165 P.3d 381,140 Wn. App. 181
• Decision Date: 20 August 2007
• Docket Number: No. 58164-3-I.,58164-3-I.
• Parties: STATE of Washington, Appellant, v. David F. MISSIEUR, Respondent.
• Court: Court of Appeals of Washington

165 P.3d 381

140 Wn. App. 181

STATE of Washington, Appellant, v. David F. MISSIEUR, Respondent.

No. 58164-3-I.

Court of Appeals of Washington, Division 1.

August 20, 2007.

As Amended August 31, 2007.

Lisa Danette Paul, Thomas Marshal Curtis, Snohomish County Prosecutor's Office, Everett, for Appellant.

Nielsen Broman Koch PLLC, Dana M. Lind, Seattle, for Respondent.

BECKER, J.

¶ 1 The State appeals the dismissal of charges against David Missieur. The State had charged Missieur with possession of pseudoephedrine with intent to manufacture methamphetamine. He was caught shoplifting approximately 30 boxes of pseudoephedrine cold medicine. More cold medicine was found in his car, along with 64 lithium batteries. The presence of the lithium batteries sufficiently supported the inference that Missieur possessed the pseudoephedrine with intent to manufacture methamphetamine. The trial court erred in dismissing the State's case.

FACTS

¶ 2 According to police reports, David Missieur and Hope Ashworth shoplifted numerous boxes of cold medicine from a grocery store in Edmonds around 2:45 a.m. on June 29, 2005, then drove away. Police officers, alerted by store personnel, pulled their car over a few minutes later. The officers arrested Missieur and Ashworth after observing unopened boxes of pseudoephedrine cold medicine and packages of lithium batteries on the floor and in a duffel bag in the back of the car. The officers counted 78 boxes of cold medicine, including 30 within the coat Missieur had been wearing at the grocery store. There were 64 new, unopened lithium batteries.

¶ 3 The State charged Missieur and Ashworth with the crime of possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine. Missieur moved to dismiss under State v. Knapstad, 107 Wash.2d 346, 356, 729 P.2d 48 (1986). At a hearing on the motion, a detective trained in methamphetamine manufacture testified that methamphetamine can be made using substances extracted from cold medicine, lithium batteries, and ammonia. He said that, other than in a retail store, he had "never seen large quantities of lithium batteries and cold medicine together without it being related to a lab."¹ Lithium batteries, he explained, contain lithium metal. "Lithium metal is one of only a couple of metals, and it's the most easily obtainable metal, that's needed to convert the ephedrine to methamphetamine".²

¶ 4 Missieur argued that the case should be dismissed because the activity of collecting ingredients was not enough to prove an intent to engage in the actual manufacture of methamphetamine. The trial court agreed and granted the motion to dismiss.³ The State appeals.

¶ 5 We review de novo the trial court's decision to dismiss under Knapstad, viewing the facts and all reasonable inferences in the light most favorable to the State. State v. Jackson, 82 Wash.App. 594, 608, 918 P.2d 945 (1996). To prevail on a motion to dismiss under Knapstad, the defendant must establish that no material facts are in dispute and the undisputed facts are insufficient as a matter of law to establish a prima facie case of guilt. If allegations of material fact are denied or disputed by the State, the trial court must deny the motion. State v. Knapstad, 107 Wash.2d at 356, 729 P.2d 48. We will uphold a trial court's dismissal of an information under Knapstad if no rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. State v. Wilhelm, 78 Wash.App. 188, 191, 896 P.2d 105 (1995).

¶ 6 The charging statute, former RCW 69.50.440(1), made it unlawful for a person to possess pseudoephedrine or other precursor drugs "with intent to manufacture methamphetamine". The statute defines "manufacture" as "the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly". RCW 69.50.101(p). 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(1)(a).

¶ 7 Generally, bare possession of a controlled substance is not enough to support a conviction of possession with intent to manufacture. At least one other factor supporting an inference of intent must exist. The defendant's intent must logically follow as a matter of probability from the evidence. State v. McPherson, 111 Wash.App. 747, 759, 46 P.3d 284 (2002).

¶ 8 In McPherson, the State charged the defendant in Count 1 with manufacturing methamphetamine or alternatively with possession of precursor drugs with intent to manufacture. The court found ample evidence to support either a completed manufacture or intent to manufacture even though not all necessary ingredients were present. McPherson, 111 Wash.App. at 758, 46 P.3d 284.

¶ 9 Sufficient evidence to support a conviction for possession of pseudoephedrine with intent to manufacture was also found in State v. Moles, 130 Wash.App. 461, 466, 123 P.3d 132 (2005), rev. denied, 157 Wash.2d 1019, 142 P.3d 607 (2006) (three consolidated appeals). The court followed McPherson and reiterated the test: "Bare possession of a controlled substance is not enough to support an intent to manufacture conviction; at least one additional factor, suggestive of intent, must be present." Moles, 130 Wash.App. at 466, 123 P.3d 132. The defendants in Moles purchased pseudoephedrine from three different stores within a short period of time. Close to 440 pseudoephedrine tablets, removed from their blister packs, were found loose in the defendants' stolen vehicle. An officer testified that the first stage in the manufacturing process is to acquire pseudoephedrine tablets and then process them. "The fact that so many pills had been removed from the blister packs leads to the only plausible inference: that the defendants were in the process of preparing the pseudoephedrine for the first stage of the manufacturing process." Moles, 130 Wash.App. at 466, 123 P.3d 132. The court held this evidence alone was sufficient to support the jury's finding of intent to manufacture, while noting the presence of other factors that were also indicative of intent to manufacture: possession of a coffee filter with methamphetamine residue, and a pattern of acting in concert with other individuals to make numerous individual purchases of cold medicine in a short period of time.

¶ 10 In contrast to McPherson and Moles, evidence of intent to manufacture was held insufficient in State v. Whalen, 131 Wash. App. 58, 64, 126 P.3d 55 (2005). Whalen was caught stealing seven boxes of a nasal decongestant that contained pseudoephedrine. His conduct violated RCW 69.43.110(2), which makes it a gross misdemeanor to acquire more than three packages of pseudoephedrine in a 24-hour period. Whalen was charged and convicted of the more serious crime of possession of pseudoephedrine with intent to manufacture, a class B felony. Defending the conviction on appeal against a challenge to the sufficiency of the evidence, the State argued that Whalen's intent to manufacture was shown by the amount of pseudoephedrine in his possession and the illicit method of acquisition. The State also argued that "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." Whalen, 131 Wash.App. at 63-64, 126 P.3d 55. The court rejected this line of reasoning and held that Whalen's acquisition of more than the legal daily limit of pseudoephedrine could not, by itself, subject him to punishment for the more serious crime. "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." Whalen, 131 Wash.App. at 65, 126 P.3d 55.

¶ 11 The Supreme Court found both Moles and Whalen persuasive in State v. Brockob, 159 Wash.2d 311, 331, 150 P.3d 59 (2006) (three consolidated appeals). Appellant Brockob shoplifted a large quantity of Sudafed and left some of the packaging in the store. The court concluded the facts were more like Whalen than Moles and determined the evidence was insufficient to convict. Brockob, 159 Wash.2d at 338, 150 P.3d 59. "He did not have any coffee filters or other equipment used in the manufacturing process. In short, nothing pointed to Brockob's intent to manufacture rather than merely possess Sudafed." Brockob, 159 Wash.2d at 338-39, 150 P.3d 59. On the other hand, the court concluded the evidence against one of the other appellants, Gonzalez, was sufficient to convict him of attempted manufacture. Gonzalez had been caught in a vehicle with three sealed bottles of ephedrine tablets and unused coffee filters in two different sizes. Another person who was in the car had another bottle of ephedrine tablets. The court held the evidence sufficient because "at least two of the three factors cited in Moles were present. Coffee filters were found on the backseat of the vehicle, and the amount of ephedrine in the vehicle seems excessive but for the likely connection to methamphetamine manufacturing." Brockob, 159 Wash.2d at 340, 150 P.3d 59.

¶ 12 Under Whalen, Missieur's possession of as many as 78 stolen boxes of pseudoephedrine would arguably not, by itself, be enough to sustain the charge of possession with intent to manufacture. The issue here, then, is whether Missieur's simultaneous possession of the lithium batteries adequately distinguishes his case from Whalen and brings it within the ambit of the Moles test requiring "at least one additional factor, suggestive of intent". Moles, 130 Wash.App. at 466, 123 P.3d 132.

¶ 13 Missieur begins with the premise that the statutory element of "intent to manufacture" means intent to become personally involved in combining the ingredients, as opposed...