State v. Whalen

¶21

Hunt, J.

(dissenting) — I respectfully dissent. I disagree with the majority’s holding that the evidence does not sufficiently establish the corpus delicti independent of Whalen’s voluntary confession. I would uphold the trial court’s finding that (1) Whalen’s secretive possession and shoplifting of seven boxes of pseudoephedrine was not reasonably consistent with an innocent purpose and (2) a trier of fact could reasonably conclude that Whalen intended to use this excessive quantity of pseudoephedrine (as compared to an innocuous quantity for personal use) to *67manufacture methamphetamine, whether as the principal manufacturer or as an accomplice supplying the precursor drugs to another for methamphetamine manufacture.

¶22 Accordingly, I would affirm the trial court’s ruling that these facts constitute sufficient independent corroborative evidence to establish the corpus delicti of the charged crime. And I would hold that admission of Whalen’s statement to the police did not violate the corpus delicti rule.

¶23 As the majority acknowledges, under the corpus delicti rule,

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. State v. Aten, 130 Wn.2d 640, 655-56, 927 P.2d 210 (1996). ... 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.
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. [State v. [Riley, 121 Wn.2d [22, ]32[, 846 P.2d 1365 (1993)]. 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 Wn. App. 65, 77-78, 992 P.2d 525 (2000).

Majority at 62 (footnote omitted; emphasis added).

¶24 I agree that mere possession of pseudoephedrine tablets is insufficient to prove intent to manufacture methamphetamine and that “at least one additional factor, *68suggestive of intent, must be present.” Majority at 63 (emphasis added). But here there is other evidence “suggestive of intent,” in addition to mere possession, that is sufficient to satisfy the corpus delecti rule.

¶25 RCW 69.43.110(2) and (4) make it a gross misdemeanor to “purchase or acquire” more than three boxes of pseudoephedrine within a 24-hour period.7 The legislature has amended this statute to lower the number to two boxes per 24-hour period, effective next year. Laws of 2005, ch. 388, § 4. In enacting this law, the legislature has *69expressly recognized that restricting access to certain “precursor drugs” used to manufacture methamphetamine is an “essential step to controlling the manufacture of methamphetamine.” Laws of 2005, ch. 388, § 1. The seven boxes of pseudoephedrine that Whalen shoplifted are therefore, by definition, such precursor drugs.

¶26 That pseudoephedrine possession can also have an innocent purpose does not require exclusion of this evidence under the corpus delecti rule here. 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. That Whalen chose to collect, to conceal, and then to steal seven boxes all at once sufficiently supports the reasonable inference that he intended to use them for the manufacture of methamphetamine, most likely shortly thereafter.

¶27 This case is unlike Aten, where the facts logically and reasonably supported an inference of the baby’s death by either innocent sudden infant death syndrome or criminal smothering. 130 Wn.2d at 660-62. Here, in contrast, the only logical and reasonable conclusion was that Whalen intended to use the tablets for manufacturing methamphetamine. Unlike Aten, here, there are no logical or reasonable inferences that Whalen needed to steal seven boxes of decongestant in a single action for a noncriminal purpose. Even the majority hints at this reasonable inference of Whalen’s illegal purpose when it states, “Whalen’s mere possession of the amount of pseudoephedrine in the seven boxes may not have been illegal if acquired within the statutory timeframe” Majority at 64 (emphasis added). *70The negative implication of this observation is that since Whalen did not acquire this quantity of pseudoephedrine within the legal statutory timeframe, the reasonable inference is that his possession and, therefore, his purpose, was illegal.

¶28 The facts here also contrast with those in State v. Cobelli, where the defendant possessed a small amount of marijuana from which the court could infer it was solely simple possession without the intent to deliver. 56 Wn. App. 921, 925, 788 P.2d 1081 (1989). Here, the sheer number of boxes and the amount of cold tablets that Whalen stole does not give rise to a similar inference of a lesser degree of culpability. Instead, as in State v. Moles, the corroborating evidence of his multistep plan and the amount of pseudoephedrine he attempted to steal lead to the logical and reasonable inference that Whalen intended either to manufacture methamphetamine himself or to deliver it to someone else to use in its manufacture. 130 Wn. App. 461, 466-67, 123 P.3d 132 (2005). Regardless, the evidence showed that Whalen intended to use the pseudoephedrine to manufacture methamphetamine either as a principal or as an accomplice.

¶29 Given the purpose of RCW 69.43.110, to control an essential step in the manufacture of methamphetamine, and Whalen’s multi-step plan to circumvent this law, the only reasonable inference available for Whalen’s actions was his illegal purpose — the manufacture of methamphetamine. Reiterating the well-settled standard of review that the trial court has broad discretion in deciding what evidence to admit, I would hold that Whalen has failed to show that the trial court abused its discretion in allowing his voluntary admissions into evidence.

¶30 With the admission of Whalen’s statement of his intent to deliver the tablets to another to use in manufacturing methamphetamine, to repay a drug debt, I would also hold, as the majority acknowledges, that sufficient evidence supports Whalen’s conviction for unlawful posses*71sion of ephedrine or pseudoephedrine with the intent to manufacture.8

¶31 Again, I would affirm.

The majority’s assertion at note 5 on page 64 that Whalen possessed a legal quantity of pseudoephedrine is in error. RCW 69.43.110(2) and (4) clearly make it a gross misdemeanor to “purchase or acquire” more than three boxes of pseudoephedrine within a 24-hour period. Subsection (1) of this statute uses the disjunctive “or” between subsections (a) and (b), which references three grams of the listed substances rather than the number of packages. RCW 69.43.110(1).

RCW 69.43.110, Ephedrine, pseudoephedrine, phenylpropanolamine— Sales restrictions — Penalty, provides:

(1) It is unlawful for a pharmacy licensed by, or shopkeeper or itinerant vendor registered with, the department of health under chapter 18.64 RCW, or an employee thereof, or a practitioner as defined in RCW 18.64.011, knowingly to sell, transfer, or to otherwise furnish, in a single transaction:

(a) More than three packages of one or more products that he or she knows to contain ephedrine, pseudoephedrine, or phenylpropanolamine, their salts, isomers, or salts of isomers; or

(b) A single package of any product that he or she knows to contain more than three grams of ephedrine, pseudoephedrine, or phenylpropanolamine, their salts, isomers, or salts of isomers, or a combination of any of these substances.

(2) It is unlawful for a person who is not a manufacturer, wholesaler, pharmacy, practitioner, shopkeeper, or itinerant vendor licensed by or registered with the department of health under chapter 18.64 RCW to purchase or acquire, in any twenty-four hour period, more than the quantities of the substances specified in subsection (1) of this section.

(3) It is unlawful for any person to sell or distribute any of the substances specified in subsection (1) of this section unless the person is licensed by or registered with the department of health under chapter 18.64 RCW, or is a practitioner as defined in RCW 18.64.011.

(4) A violation of this section is a gross misdemeanor.

(Emphasis added.)

RCW 69.43.120(1), which the majority cites in support of its assertion, describes a separate crime, not at issue here — simple, passive possession of more than 15 grams of pseudoephedrine, also a gross misdemeanor. This statute does not, however, as the majority implies, decriminalize Whalen’s actively acquiring more than three packages, a gross misdemeanor under RCW 69.43.110(2).

Reiterating the Supreme Court’s explanation of the corpus delecti rule in Aten, if sufficient corroborative evidence exists, the confession or admission of a defendant may be considered alongside the independent evidence to establish a defendant’s guilt. 130 Wn.2d at 656.