State v. Keena
State v. Keena
Opinion of the Court
Gary Dean Keena appeals his conviction for manufacturing methamphetamine. He argues that the evidence is insufficient to support a finding of completed
On February 7,2002, Detective Eugene Duprey and other officers went to Keena’s residence. They were investigating an anonymous tip of “possible manufacturing methamphetamine.”
Duprey went to the gazebo and spoke with Keena, who gave consent for Duprey to enter. On top of a wood stove, Duprey observed “a thermos, glass jar with a paper towel over the top of it, white film layer and then the blue liquid.”
On February 12, 2002, the State charged Keena with manufacturing methamphetamine. A jury trial was held two months later. Jane Boysen, a forensic scientist with the Washington State Patrol Crime Laboratory, testified that the “Nazi” method of manufacturing methamphetamine involves extracting ephedrine from over-the-counter cold medications, combining the ephedrine with lithium and anhydrous ammonia, and “salting out” the result.
At the close of the State’s case, Keena moved for a directed verdict. He argued that the evidence was insufficient to show “that methamphetamine was actually manufactured on the date and time in question,” and that “[w]ithout a controlled substance there cannot be a violation of the statute.”
Keena requested a jury instruction on the attempted manufacture of methamphetamine. He argued that attempted manufacture of methamphetamine is a lesser included offense of the crime of manufacturing methamphetamine. The trial court declined to give such an instruction, and the jury convicted as charged.
Two issues arise on appeal. (1) Is the evidence sufficient to support a conviction for manufacturing methamphetamine? (2) Did the trial court err by declining to instruct on the attempted manufacture of methamphetamine?
I
Keena argues that the evidence does not show that he succeeded in producing methamphetamine, and thus that the evidence is not sufficient to support his conviction for the crime of manufacturing methamphetamine. Evidence is sufficient if a rational trier of fact taking it in the light most favorable to the State could find beyond a
The statutes answer yes. RCW 69.50.101(p) defines “Manufacture” as “the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container.” (Emphasis added.) RCW 69.50.101(d) defines a “Controlled substance” as a “drug, substance, or immediate precursor included in Schedules I though V as set forth in federal or state laws, or federal or board rules.”
The cases also answer yes. In State v. Davis,
*148 [T]he pivotal question is whether, under. . . chapter 69.50 RCW, it is possible to manufacture a drug without possessing it. It is.[14 ]
The Davis court quoted RCW 69.50.101(p), then continued:
As the evidence in this case demonstrates, one can make a number of drugs, including methamphetamine, from ingredients that are not in themselves controlled substances. And under [RCW 69.50.101(p)], a person who knowingly plays even a limited role in the manufacturing process is guilty, even if someone else completes the process. Thus, a person need not possess the final product in order to engage “indirectly” in the “production, preparation, propagation, compounding, conversion, or processing of a controlled substance.” RCW 69.50.101-(p). In fact, courts have found evidence sufficient to support convictions for manufacturing methamphetamine where the defendants possessed lab equipment and partially processed methamphetamine, but not the final product.[15 ]
In State v. Todd,
Based on all these authorities, we conclude that if the defendant had a combination of items that generally has no purpose other than the manufacture of methamphetamine, the evidence is sufficient to support reasonable inferences of “preparation” and “processing,” and thus of manufacture, even if the evidence does not show that the defendant had the completed drug. As a result, the evidence is sufficient here.
Keena also argues that he was entitled to an instruction on the lesser included offense of attempting to manufacture methamphetamine. A trial court must instruct on a lesser offense when two “prongs,” one legal and one factual, are met:
Preliminarily, the legislature may have conflated attempted manufacture and completed manufacture into a single crime. Although RCW 69.50.401 does not expressly include attempts to manufacture,
This case does not require us to decide whether the legislature has conflated attempted manufacture and completed manufacture, for even assuming that it has not, and that each element of attempted manufacture is included within completed manufacture, the evidence here will not support a reasonable inference that Keena attempted to manufacture without also completing such manufacture. As seen above, completed “manufacture” includes “preparing,” “processing,” or extracting a controlled substance (includ
Affirmed.
Quinn-Brintnall, C.J., and Hunt, J., concur.
2 Report of Proceedings (RP) (Apr. 23, 2002) at 42.
2 RP at 43.
2 RP at 44.
2 RP at 49.
2 RP at 49-50.
2 RP at 91-92.
2 RP at 95.
2 RP at 97.
2 RP at 112.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
RCW 69.50.401(a); 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 50.11, at 650 (2d ed. 1994).
See also State v. Hepton, 113 Wn. App. 673, 681-82, 54 P.3d 233 (2002), review denied, 149 Wn.2d 1018 (2003).
117 Wn. App. 702, 72 P.3d 1134 (2003).
101 Wn. App. 945, 6 P.3d 86 (2000).
101 Wn. App. at 952. See also State v. Zunker, 112 Wn. App. 130, 139, 48 P.3d 344 (2002) (grinding pseudoephedrine powder “is a preparatory step to the meth ‘cooking’ process”), review denied, 148 Wn.2d 1012 (2003).
State v. Berlin, 133 Wn.2d 541, 545-46, 947 P.2d 700 (1997).
State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000); State v. Bergeson, 64 Wn. App. 366, 369, 824 P.2d 515 (1992); State v. Pettus, 89 Wn. App. 688, 697-98, 951 P.2d 284, review denied, 136 Wn.2d 1010 (1998).
Compare State v. Gjertson, 71 Wn.2d 757, 759 n.3, 430 P.2d 972 (1967) (collecting substantive criminal statutes that refer to attempt).
See State v. Austin, 105 Wn.2d 511, 515-16, 716 P.2d 875 (1986); State v. Langworthy, 20 Wn. App. 822, 825-26, 583 P.2d 1231 (1978), rev’d, 92 Wn.2d 148, 594 P.2d 908 (1979). Cf. State v. Roby, 67 Wn. App. 741, 840 P.2d 218 (1992).
Cf. Hepton, 113 Wn. App. at 681-83.
Reference
- Full Case Name
- The State of Washington v. Gary Dean Keena
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- 2 cases
- Status
- Published