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           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


                                            DIVISION II


STATE OF WASHINGTON,                                                 No. 43154 -8 -II


                                  Respondent,                  UNPUBLISHED OPINION


       v



WAYNE ALAN HOUSER,


                                  I1


       MORGEN, J. —         Wayne Alan Houser appeals his convictions for attempted unlawful


manufacture of a controlled substance and conspiracy to manufacture a controlled substance by

claiming that the State presented insufficient evidence to convict him because it failed to show

he took the first step in   methamphetamine     synthesis.   We reject Houser' s contention and hold


that the State presented sufficient evidence at trial to allow the jury to determine that Houser took

a substantial   step toward the   manufacture of methamphetamine.      We therefore affirm Houser' s


convictions.
No. 43154 -8 -II.



                                           FACTS AND PROCEDURAL HISTORY


           On        July   15, 2010,         around   2: 00   a. m.,   law enforcement officers responded to an armed


home       burglary         call   in    Spanaway,       Washington.            While approaching the scene in his police .

vehicle, one of the responding officers, Deputy Jonathon Collins, noticed two men " hunkered

down" in the back of a truck bed on a property adjacent to 22nd Avenue. Verbatim Report of

Proceedings ( VRP) ( Feb. 13, 2012)                      at   43.    Because the men were within the radius the burglars


could      have       reached      after   fleeing     the     scene    on     foot, Collins decided to investigate.             Collins


stopped        his   vehicle and         illuminated the       men with        his   vehicle' s   spotlight.   When Collins got out


of his vehicle to speak with the men, they jumped out of the truck and ran.

            Collins leaped          over      the property' s       low fence to       pursue     the   men.   Once on the property,

Collins noticed a small structure with two vehicles parked nearby, the truck and a Chevy Tahoe.

As Collins approached the vehicles, Houser appeared and aggressively challenged Collins' s right

to   be   on   his property.            Houser was extremely agitated and Collins had difficulty communicating

with      him.       Only when a second deputy appeared on the scene as backup did Houser calm down

enough for Collins to make clear that the officers would not leave the property without

identifying          the two       men    because   of   their      possible connection       to the     burglary.    At this point, the


two men, Mark Mangan and Joshua Isaacson, emerged from the small structure.


            As Collins         moved       toward Mangan             and   Isaacson, he    passed       the truck.   In the truck' s bed,


in   plain view,        he   saw a      hot   plate and several         duffel bags. Collins became concerned because his


experience            taught       him     that   hot     plates        were frequently used for the manufacture of

methamphetamine.




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No. 43154 -8 -II



        A third     deputy, Michael    Phipps,     arrived          on   the   scene   around   this time.   As Phipps, a


member of the department' s clandestine lab response team, passed the truck bed, he noticed a


 strong"   chemical odor.     VRP ( Feb. 13, 2012)        at    123.      Phipps determined that it came from a bag

in the truck' s bed,    although   he did   not open     the    bag. Phipps noticed that one of the other bags

had ice crystals forming on it and some kind of gas emanating from it. He found the ice crystals

surprising, since it was July and the temperature was moderate.

         As Phipps continued past the truck, he discovered a fourth man, Roy Smith, hiding in its

passenger compartment.         Phipps ordered Smith out of the truck and discovered lithium batteries,


another telltale marker of methamphetamine production, where Smith had lain across the seat.


The officers arrested all four men and impounded both the Tahoe and the truck.

         The truck belonged to Houser.           Police personnel performing an inventory search of the

vehicle discovered the hot plate; ammonia sulfate; drain cleaner; a bag that had contained dry

ice; acetone; a scale; plastic baggies containing methamphetamine residue; an apparatus used to

generate hydrogen chloride gas; and receipts for the purchase of ammonia sulfate, dry ice, and

drain   cleaner.     The manufacture of methamphetamine involves the materials and equipment


found in the Houser' s truck.


         The State charged Houser with attempted manufacture of a controlled substance in

violation   of     RCW 69. 50. 401( 1)( 2)( b)     and    RCW 9A. 28. 020,               conspiracy to manufacture a

controlled substance in violation of RCW 69. 50.401( 1)( 2)( b) and RCW 69. 50. 407, attempted

unlawful possession of ammonia with intent to manufacture methamphetamine in violation of

RCW 69. 50. 407       and   RCW 69. 50. 440( 1),    and conspiracy to unlawfully possess ammonia with




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No. 43154 -8 -II



intent to manufacture methamphetamine in violation of RCW 69. 50. 407. 1, 2,3 The State initially

charged Smith, Isaacson, and Mangan as co- defendants, but they each pleaded guilty and agreed

to testify against Houser.

         At trial, Mangan and Smith testified that they had manufactured methamphetamine in the

late 1990s   and   early 2000s before       breaking   their   addictions   to the   drug.      However, both Mangan


and Smith had resumed using methamphetamine just prior to their arrests on Houser' s property.

Mangan       and   Smith   were     disappointed        with     the    potency      of   the    available    supply   of


methamphetamine and they decided to begin manufacturing the drug to have access to more

potent   methamphetamine.         However, Mangan and Smith faced difficulties in obtaining the

materials necessary to manufacture methamphetamine, including anhydrous ammonia, because

the legislature had acted to curtail methamphetamine production during their break from use.




1 RCW 69. 50.401 provides, in relevant part, that:
       1) Except as authorized by this chapter, it is unlawful for any person to manufacture,
deliver, or possess with intent to manufacture or deliver, a controlled substance.
          2) Any person who violates this section with respect to:

        b) Amphetamine, including its salts, isomers, and salts of isomers, or methamphetamine,
including its salts, isomers, and salts of isomers, is guilty of a class B felony.
2
    RCW 69. 50. 407   provides    that "[   a] ny person who attempts or conspires to commit any offense
defined in this chapter is punishable by imprisonment or fine or both which may not exceed the
maximum punishment prescribed for the offense, the commission of which was the object of the
attempt or conspiracy."

3
    RCW 69. 50. 440 provides, in relevant part that:
        1) It is unlawful for any person to possess ephedrine or any of its salts or isomers or salts
of isomers, pseudoephedrine or any . of its salts or isomers or salts of isomers, pressurized
ammonia       gas,    or   pressurized        ammonia          gas     solution   with       intent   to     manufacture


methamphetamine, including its salts, isomers, and salts of isomers.
           2) Any person who violates this section is guilty of a class B felony.

                                                           0
No. 43154 -8 -II



         Smith told Mangan he knew someone, Houser, who could make anhydrous ammonia.


Mangan purchased the materials Houser required to make the anhydrous ammonia, and Mangan


and Smith took these materials, along with chemicals and equipment necessary to produce

methamphetamine, to Houser' s property the night of their arrest.

         At times, Smith and Mangan told the jury that they went to Houser' s house solely to

make anhydrous ammonia. However, both also told the jury that they went to Houser' s to make

the anhydrous ammonia for the sole purpose of producing methamphetamine.

         The     jury   returned    a   verdict   of   guilty   on   all   counts.   Houser timely appeals only his

convictions for attempted unlawful manufacture of a controlled substance and conspiracy to

manufacture a controlled substance.



                                                        ANALYSIS


             Due process requires that the State prove every element of a charged offense beyond a

reasonable      doubt. State   v.   O' Hara, 167 Wn.2d 91, 105, 217 P. 3d 756 ( 2009). We review claims


that the State presented insufficient evidence to meet this burden of proof by looking to

  whether, after 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.   Green, 94 Wn.2d 216, 221, 616 P. 2d 628 ( 1980) (                 quoting Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 ( 1980).                   Any appellant challenging the sufficiency of

the State' s evidence " admits the truth of the State' s evidence and all inferences that reasonably

can   be drawn from that       evidence."         State v. Caton; 174 Wn.2d 239, 241, 273 P. 3d 980 ( 2012).

Further, "[     w] e defer to the trier of fact' s resolution of conflicting testimony, evaluation of




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No. 43154 -8 -II



witness credibility,       and    decisions regarding the     persuasiveness   of evidence."     State v. Curtiss,


161 Wn. App. 673, 693, 250 P. 3d 496, review denied, 172 Wn.2d 1012, 259 P. 3d 1109 ( 2011).

A.       The State presented sufficient evidence that Houser or his accomplices took a substantial


step toward the unlawful manufacture of a controlled substance

         Houser first argues that we must reverse his conviction for the unlawful attempted


manufacture of a controlled substance because the State presented insufficient evidence that he


took a substantial step toward the manufacture of methamphetamine as required for a conviction

for   a criminal attempt.         Specifically, he claims that the State failed to show that he had extracted

pseudoephedrine,          which several . witnesses testified was the first step in any synthesis of

methamphetamine.             However, because Houser had made significant progress towards the


manufacture of methamphetamine, we hold that he had taken a substantial step toward the

commission of unlawful manufacture of a controlled substance and affirm his conviction.


          The legislature codified the mens rea and actus reus elements of the crime of attempt in

RCW 9A.28. 020( 1),         which provides     that "[   a] person is guilty of an attempt to commit a crime if,

with intent to commit a specific crime, he or she does any act which is a substantial step toward

the   commission of        that   crime."   The law requires a substantial step towards the commission of

the completed crime to ensure that the State does not punish an individual for criminal intent

alone.    State   v.   Dent, 123 Wn.2d 467, 475, 869 P. 2d 392 ( 1994).           Instead, the act constituting the

substantial   step     serves as    the proscribed   conduct which    the State   punishes.   Dent, 123 Wn.2d at


475.


          While the legislature provided no definition of a substantial step, the Model Penal Code

 MPC) has done so, and our Supreme Court has adopted the MPC' s definition of the term. State




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No. 43154 -8 -II



v.   Smith, 115 Wn.2d 775, 782, 801 P. 2d 975 ( 1990) (                                citing State v. Workman, 90 Wn.2d 443,

452, 584 P. 2d 382 ( 1978)).                   Under the MPC,             conduct "`          strongly corroborative of the actor' s

criminal purpose "'            constitutes a substantial              step toward the           commission of         the   offense.   Smith,


115 Wn.2d        at   782 ( quoting Workman, 90 Wn.2d                          at    451).     The MPC provides a list of conduct,


which, "`     if strongly corroborative of the actor' s criminal purpose, shall not be held insufficient as

a matter of      law "' to sustain an attempt conviction; our Supreme Court has also adopted this list.


Workman, 90 Wn.2d                  at   451 - 52   n. 2   ( quoting MPC § 5. 01( 1)(            c) (   Proposed Official Draft, 1962)).


The MPC' s list of conduct sufficient to sustain an attempt conviction was drafted for the express

purpose of      drawing        a   line separating          a criminal attempt           from    mere preparation.          MPC § 5. 01, at


297 ( expl.     note).    Included within this list of conduct sufficient to sustain an attempt conviction is

     possession of materials to be employed in the commission of the crime, which are specially

designed for such unlawful use or which can serve no lawful purpose of the actor under the.

circumstances."'          Workman, 90 Wn.2d                   at   451 - 52   n. 2   ( quoting MPC § 5. 01( 2)).


          The substantial step formulation of a criminal attempt used by the MPC " broaden[ s] the

scope of attempt         liability"       beyond      what     the   common          law     allowed.     MPC § 5. 01, at 329 cmt. 6( a).


Rather than focusing on what the actor still needs to accomplish in order to complete the crime,

the    substantial      step   analysis      focuses        on what     the    actor    has already done.           See generally MPC §

5. 01,   at   321 -54    cmts.     4, 5, 6.        This focus contrasts with common law attempt doctrines like the


indispensible element test and physical or dangerous proximity tests, which look to whether the

defendant has everything necessary to commit the crime, or whether the defendant has come

close    to completing the              offense.     MPC § 5. 01,        at    321 - 54      cmts.     4, 5, 6.   The premise of the MPC


     is that one who engages in such purposive conduct is sufficiently dangerous to justify state



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No. 43154 -8 -II



intervention     even   if   she    is   not   yet   close   to   consummation    of   the       offense."    Joshua Dressler,


UNDERSTANDING CRIMINAL LAW § 27. 09B, at 443 ( 4th ed. 2006).


         Here, there is "      sufficient evidence to support a logical and reasonable deduction that a

substantial step" to the production of methamphetamine had occurred. Smith, 115 Wn.2d at 782.

Mangan, Smith, and Houser met at Houser' s property with plans to produce anhydrous ammonia
                                                                                             4
that   they   planned    to then         use   to   manufacture     methamphetamine.               Houser possessed all the


materials     necessary to    make        liquefied   anhydrous ammonia:         the ammonium sulfate fertilizer and


drain cleaner necessary for synthesizing the compound and the dry ice necessary to condense the

anhydrous ammonia into the liquid form required for the production of methamphetamine.

While anhydrous ammonia has legitimate uses, it also has legitimate sources, although these

legitimate     purchases      are       tracked.     A person reasonably needs to clandestinely manufacture

anhydrous ammonia only if he or she plans to use the substance to produce methamphetamine.

Houser' s possession of the materials needed to produce anhydrous ammonia served no lawful

purposes under these circumstances and constituted an act strongly corroborative of his intent to

unlawfully manufacture methamphetamine. 5 Under Smith, Houser' s possession of the materials


4
  Houser' s briefing cites a portion of the record where Smith claims that he and Mangan had no
plans to make methamphetamine and merely wanted to see how to make anhydrous ammonia.
His briefing fails to reference the portions of Smith' s testimony where Smith explicitly stated
that   they   wanted    to   make methamphetamine                 using the   anhydrous ammonia.             The jury heard all
the testimony and apparently determined Smith' s statement that he and his accomplices did not
plan on making methamphetamine was not credible, especially in light of the evidence seized
during the arrest. We defer to such determinations.

5 We do not suggest that the mere possession of the materials needed to make anhydrous
ammonia without more               is   a crime.     We hold instead that possession of these materials under the
circumstances of this case is strongly corroborative of Houser' s intent to unlawfully manufacture
methamphetamine.




                                                                    H1.
No. 43154 -8 -II



needed to make anhydrous ammonia allowed the jury to determine Houser had taken a

substantial step in the production of methamphetamine.

         The State also introduced evidence of Houser' s other efforts to make methamphetamine.


The search of Houser' s truck turned up the filters necessary for extracting the pseudoephedrine

from     cold     medicine,          the   lithium    batteries       necessary     to    catalyze   the    conversion     of



pseudoephedrine              into    methamphetamine         base,      the     acetone     necessary      to   extract   the



methamphetamine               base    from    the    water   containing       the   spent    lithium    catalyst,   and   the


hydrochloric acid gas bubbler used to crystallize the methamphetamine base into its salt form.

While anhydrous ammonia, lithium batteries, and even exotic equipment like a hydrochloric acid

bubbler    all       have     legitimate     uses,   courts have affirmed methamphetamine manufacturing

convictions      based       on similar collections     of materials.         See, e. g., State v. McPherson, 111 Wn.

App.    747, 758, 46 P. 3d 284 ( 2002) (              describing      as " unusual"      a combination of materials and



precursor chemicals similar to the one at issue here, although including pseudoephedrine, and

holding that the combination was sufficient to support a conviction for unlawful manufacturing
of methamphetamine).                Again, under Smith, Houser' s possession of all these materials, collected


in   one place,      is "   strongly corroborative" of an intent to produce methamphetamine and suffices

to   sustain   his   conviction      for   attempted unlawful manufacture of methamphetamine.                    Smith, 115


Wn.2d at 782.


          Further, Houser' s claim that the State needed to present evidence that he had taken the


first step in the production of methamphetamine misreads the statute. RCW 9A.28. 020 requires

the defendant to take a substantial step toward the completion of the crime, not to the completion

of any particular stage of the crime. Any act that strongly corroborates the defendant' s criminal



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No. 43154 -8 -II



intent serves as the actus reus of a criminal attempt, no matter where in the process of the


commission of the completed criminal act it occurs. See State v. Brockob, 159 Wn.2d 311, 339,

150 P. 3d 59 ( 2006) ( "[ T] he State is correct that [ the defendant] need not have begun the


manufacturing process to be convicted of attempted manufacture of methamphetamine. He need

only have taken      some     step toward that   process. ").   Even if Houser could not complete the


synthesis of methamphetamine due to a lack of pseudoephedrine, he had successfully

accumulated most of the materials and equipment to complete the synthesis and appears to have

been    arrested   just before   beginning   production of anhydrous ammonia.         6 Once Houser

successfully obtained pseudoephedrine, the steps he had already taken to accomplish the

synthesis of methamphetamine would allow him to easily manufacture the drug. Under these

facts, the State presented sufficient evidence that Houser had taken a substantial step towards the

completion of the manufacture of methamphetamine.



          Houser also contends that the State only introduced evidence of preparation to

manufacture methamphetamine, which is insufficient to establish an attempt to manufacture the


drug.     As discussed above, the State presented evidence that Houser possessed most of the

materials and equipment          necessary to    manufacture methamphetamine.           This conduct fell within


the MPC' s list of conduct sufficient to sustain an attempt conviction, a list adopted by our

Supreme Court in Workman.                The MPC specifically presented this list to distinguish mere


6
    As the State argued in closing, the materials assembled suggest that Houser had obtained some
pseudoephedrine         and   intended to drive his truck to that supply.            Some of the equipment or
materials, such as the filters, acetone, and hydrochloric gas bubbler have no application in the
synthesis of anhydrous ammonia,              but do have   a role   in the   synthesis of methamphetamine.   The

jury could reasonably infer that Houser would have these materials with the materials for making
anhydrous ammonia only if he intended to take the next step and manufacture methamphetamine.
Thus the jury could reasonably infer that Houser had access to pseudoephedrine.


                                                           10
No. 43154 -8 -II



preparatory    conduct    from    a substantial   step toward the    completion of an offense.   MPC § 5. 01, at


297 ( " Subsection     ( 2) elaborates on the preparation- attempt problem by indicating what is meant

by   the   concept    of a substantial    step. ").   Under the MPC, by showing Houser' s possession of

these materials under these circumstances, the State demonstrated that Houser had progressed

beyond mere preparation.


           Further, the facts of this case show that Houser had progressed beyond preparation.


Houser' s truck contained all the materials necessary for the production of anhydrous ammonia, a

necessary     component of       the   manufacture of methamphetamine.            It also contained most of the


precursor chemicals and equipment necessary to produce finished methamphetamine, including

the hydrochloric       acid gas    bubbler,   solvents,   and   filters.   The condition of the materials in the


back of the truck, especially the fact that the dry ice was exposed to open air, suggests that

Collins and the other officers arrested Houser and his accomplices just before they began

synthesizing    anhydrous ammonia.            The jury could reasonably conclude that Houser' s attempt to

manufacture methamphetamine had progressed beyond mere preparation.


B.         The State presented sufficient evidence that Houser or a co- conspirator took a substantial


step in pursuance of the agreement to manufacture methamphetamine

           Houser also challenges his conviction for conspiracy to manufacture a controlled

substance     on     similar   grounds.    Houser seems to contend that, because the State presented


insufficient evidence to show a substantial step within the context of a criminal attempt, it also

presented insufficient evidence to show a substantial step within the meaning of a criminal

conspiracy.




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No. 43154 -8 -II



         Washington' s Supreme Court has explicitly rejected Houser' s conflation of the meaning

of a substantial       step    within   the contexts    of a criminal attempt and a criminal       conspiracy.   Dent,


123 Wn.2d       at   474 -77.    To prove a criminal conspiracy, the State must show the existence of an

agreement and a substantial             step in   pursuance of    that   agreement.   RCW 9A.28. 040( 1);   Dent, 123


Wn. 2d   at    475.      However, the substantial step in the conspiracy context merely serves to

demonstrate an active agreement; it does not, as with an attempt, corroborate criminal intent.

Dent, 123 Wn.2d          at    475.   Based on this difference in purpose, the Supreme Court has held that


 the conspiracy        statute requires a      lesser   act   than does the   attempt statute."   Dent, 123 Wn.2d at


477.    Thus, "      preparatory conduct which furthers the ability of the conspirators to carry out the

agreement can         be ` a   substantial   step in   pursuance of [the]     agreement. "'   Dent, 123 Wn.2d at 477


 quoting RCW 9A.28. 040) ( alteration in original).


         As discussed above, Houser possessed most of the materials and equipment necessary to

manufacture methamphetamine.                   Houser' s assembly of the materials found in his truck furthered

his    and    his    co- conspirators'       ability to   manufacture       methamphetamine.       Under Dent, this


preparation constituted a substantial step in pursuance of the agreement to manufacture

methamphetamine.




                                                        CONCLUSION


         We hold that sufficient evidence supports the jury' s verdict and affirm Houser' s

convictions for attempted unlawful manufacture of a controlled substance and conspiracy to




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No. 43154 -8 -II



manufacture a controlled substance.




        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.


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