State Of Washington v. Mary Yokel ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
October 18, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 47871-4-II
Respondent,
v.
MARY ALICE YOKEL, PUBLISHED OPINION
Appellant.
WORSWICK, J. — Mary Yokel appeals her conviction for one count of possession of a
controlled substance (hydrocodone). She argues that (1) the trial court misinterpreted former
RCW 69.50.4013(1) (2012)1 by concluding that the statutory language “a valid prescription”
does not include a third party’s valid prescription and (2) the trial court denied her the right to
present a defense by excluding evidence of her daughter’s valid Vicodin prescription at trial and
declining to instruct the jury on the affirmative defense of lawful possession of a controlled
substance.
1
The pertinent language of the 2012 statute was unchanged by the statute’s 2015 amendment.
No. 47871-4-II
We consider as a matter of first impression in the state of Washington whether an
affirmative defense exists for an “ultimate user”2 who possesses a controlled substance pursuant
to a household member’s valid prescription. We hold that former RCW 69.50.4013(1) provides
such a defense. Accordingly, we reverse Yokel’s conviction and remand for a new trial.
FACTS
On February 15, 2015, Officer Buddy Croy discovered Mary Yokel’s car parked in front
of a motel room. Yokel had an active arrest warrant. Officer Croy knocked on the motel room
door and made contact with Yokel. He then arrested Yokel on the warrant and searched her
person incident to arrest.
During the search, Officer Croy located one pill in Yokel’s pants pocket and verified it
was Vicodin, containing hydrocodone. The State charged Yokel with two counts of possession
of a controlled substance.3
At trial, Yokel sought to introduce evidence that she possessed the Vicodin pursuant to
her 16-year-old daughter’s valid prescription. Yokel made an offer of proof that, on the day in
question, she had taken two of the pills out of the bottle, gave one to her daughter, and put the
other one in her pocket after determining that her daughter should not take two pills. The trial
2
Former RCW 69.50.308 (2013). Former RCW 69.50.101(ss) (2013) defines an “ultimate user”
as “an individual who lawfully possesses a controlled substance for the individual’s own use or
for the use of a member of the individual’s household or for administering to an animal owned
by the individual or by a member of the indivdidual’s household.” Similary, the definition of
“ultimate user” was unchanged by the statute’s 2015 amendment.
3
Former RCW 69.50.4013(1). The second count of possession of a controlled substance was
based on methamphetamine residue found in a glass pipe nearby. The jury found Yokel not
guilty of this charge, and it is not part of this appeal.
2
No. 47871-4-II
court denied Yokel’s motion to continue the case to allow her daughter to testify and further
granted the State’s motion in limine to exclude any evidence regarding Yokel’s daughter’s valid
Vicodin prescription. The trial court stated:
Well, you’re not going to be allowed to [present the defense that Yokel had a
valid prescription for her minor daughter], because the circumstances here are
totally different than having the pill in the bottle and having the minor present or
close.
....
. . . Just because there is some circumstance under which it might be a
legitimate defense does not mean that it’s a legitimate defense under the facts as
going to be presented here.
....
Any mention of a prescription is out other than it’ [sic] a prescription drug
and there was no prescription for it for [Yokel]. . . .
Verbatim Report of Proceedings (VRP) July 16, 2015 at 17-18.
In granting the State’s motion in limine, the trial court said:
[M]aybe I would allow that as a defense if [the circumstances were that] the police
broke down the door just as she was handing the medicine to her daughter at the
appropriate time, and then maybe we would—you’d be able to present that, but
not under the circumstances here.
VRP July 16, 2015 at 17-18.
At trial, witnesses testified to the above facts. Yokel testified in her defense, but
she was not allowed to testify that she possessed the controlled substance for the purpose
of administering it to her daughter.
Yokel proposed a pattern form jury instruction directing the jury to find her not
guilty of possession of a controlled substance if it found the substance was obtained
3
No. 47871-4-II
directly from or pursuant to a valid prescription.4 The trial court refused to give this
instruction.
The jury found Yokel guilty of one count of possession of a controlled substance
(hydrocodone). Yokel appeals.
ANALYSIS
This case presents the issue of whether former RCW 69.50.4013(1) includes an
affirmative defense to an ultimate user in possession of a controlled substance pursuant to a
household member’s valid prescription. We agree with Yokel that former RCW 69.50.4013(1)
permits an ultimate user to possess a household member’s valid prescription for a controlled
substance.5
I. FORMER RCW 69.50.4013(1) PROVIDES FOR AN ULTIMATE USER DEFENSE
Yokel argues the trial court misinterpreted former RCW 69.50.4013(1) by concluding the
statute’s affirmative defense did not apply to a person in possession of a controlled substance
pursuant to a third party’s valid prescription. Because Yokel presented sufficient facts to entitle
her to an ultimate user defense, we agree.
We review interpretation of a statute de novo. State v. Bunker, 169 Wash. 2d 571, 577, 238
P.3d 487 (2010). When engaging in statutory interpretation, we endeavor to determine and give
effect to the legislature’s intent. State v. Evans, 177 Wash. 2d 186, 192, 298 P.3d 724 (2013). In
4
11 Washington Practice: Washington Pattern Jury Instructions: Criminal 52.02, at 1009 (3d
ed. 2008).
5
We recognize that the parties did not bring the ultimate user defense to the attention of the trial
court. As a result, the trial court did not have the chance to rule on the State’s motion with this
defense in mind.
4
No. 47871-4-II
determining the legislature’s intent, we must first examine the statute’s plain language and
ordinary meaning. State v. J.P., 149 Wash. 2d 444, 450, 69 P.3d 318 (2003). We consider the
specific text of the relevant provision, the context of the entire statute, any related provisions,
and the statutory scheme as a whole when analyzing a statute’s plain language. Evans, 177
Wash. 2d at 192.
We read a statute to give effect to all the language in the statute, without rendering any
portion meaningless or superfluous, and we recognize that the legislature intends to use the
words it uses. J.P., 149 Wash. 2d at 450. If there is more than one reasonable interpretation of the
plain language, the statute is ambiguous. State v. Conover, 183 Wash. 2d 706, 711-12, 355 P.3d
1093 (2015). When a statute is ambiguous, we engage in statutory construction to discern
legislative intent. Evans, 177 Wash. 2d at 192. In interpreting a statute, we avoid a reading that
results in absurd results because “‘it will not be presumed that the legislature intended absurd
results.’” J.P., 149 Wash. 2d at 450 (quoting State v. Delgado, 148 Wash. 2d 723, 733, 63 P.3d 792
(2003) (Madsen, J., dissenting)). “Washington courts should construe the Uniform [Controlled
Substances] Act in conjunction with decisions from other states that have enacted it.” State v.
Ramirez, 62 Wash. App. 301, 307-08, 814 P.2d 227 (1991) (citing RCW 69.50.603).
Former RCW 69.50.4013(1) provides an affirmative defense to a person who lawfully
possesses a controlled substance obtained “directly from” or “pursuant to” a valid prescription.
By including these different phrases in the statute, the legislature indicated its intent that each
phrase have a different meaning. State v. Contreras, 124 Wash. 2d 741, 747, 880 P.2d 1000 (1994).
Neither chapter 69.50 RCW nor Washington cases define “directly from” or “pursuant to” for
purposes of former RCW 69.50.4013(1). The plain meaning of “directly from” a valid
5
No. 47871-4-II
prescription pertains to the possession of a controlled substance by the prescription holder.
Lawful possession “pursuant to” a valid prescription, however, is not as clear. The plain
language of the statute does not state who must hold the valid prescription; possession is
arguably lawful if “pursuant to” a third party’s prescription as well as one’s own. Because of
this ambiguity, we look to other, related statutes and former RCW 69.50.4013(1)’s statutory
scheme to determine whose valid prescription possession must be pursuant to.
Former RCW 69.50.308 (2013), one of the Uniform Controlled Substances Act’s statutes,
allows practitioners to dispense controlled substances to an ultimate user pursuant to a
prescription. The Act defines an “ultimate user” as
an individual who lawfully possesses a controlled substance for the individual’s
own use or for the use of a member of the individual’s household or for
administering to an animal owned by the individual or by a member of the
individual’s household.
Former RCW 69.50.101(ss) (2013). This definition of “ultimate user” indicates the legislature’s
intent to allow an ultimate user to possess a controlled substance for the use of another household
member. The legislature then limited the scope of an ultimate user’s lawful possession of a
controlled substance by requiring that possession be pursuant to a prescription. See former RCW
69.50.4013(1). Therefore, the legislature intended to provide an affirmative defense to ultimate
users who possess a controlled substance pursuant to a household member’s valid prescription.
Although the legislature did not expressly include the ultimate user defense in former
RCW 69.50.4013(1), we hold that an ultimate user defense nonetheless exists. This is because
interpreting former RCW 69.50.4013(1) as prohibiting ultimate users from lawfully possessing a
controlled substance prescribed to another household member leads to an absurd result. Reading
the statute in such a way criminalizes behavior that may involve a common caretaking function.
6
No. 47871-4-II
For example, a son who picks up his bedridden father’s prescription medication or a mother who
administers a prescription medication to her infant daughter would be in violation of the statute.
Further, such an interpretation is contrary to the legislature’s expressed intent in former RCW
69.50.308. Former RCW 69.50.308 specifically allows practitioners to dispense controlled
substances to an ultimate user, who then necessarily possesses that controlled substance. It
cannot be presumed that the legislature intended this absurd result.
The legislature has directed us to construe the Uniform Controlled Substances Act in
conjunction with other states that have enacted it. RCW 69.50.603. Recognizing this directive,
we note that we have found no other state with similar versions to Washington’s Uniform
Controlled Substances Act that has disallowed an ultimate user defense. Missouri and Iowa have
enacted the same version of the Uniform Controlled Substances Act as Washington.6 Missouri’s
and Iowa’s statutes prohibiting the possession of a controlled substance are nearly identical to
Washington’s, permitting the lawful possession of a controlled substance if obtained “directly
from, or pursuant to, a valid prescription.” MO. REV. STAT. § 195.180.1 (1989); IOWA CODE §
124.401(5) (2014). Similar to Washington’s definition, Missouri and Iowa define an ultimate
user as “a person who lawfully possesses a controlled substance or an imitation controlled
substance for his own use or for the use of a member of his household.” Former MO. REV. STAT.
§ 195.010(40) (2001); see also former IOWA CODE § 124.101(30) (2009).
The Supreme Court of Missouri determined that its legislature intended to allow ultimate
users to possess the prescriptions of household members, reasoning that a contrary conclusion
6
State v. Morrow, 535 S.W.2d 539, 542 (Mo. Ct. App. 1976); State v. Gallardo, 871 N.W.2d
703, 2015 WL 5278948, at *6 (Iowa Ct. App. 2015).
7
No. 47871-4-II
would produce absurd results. State v. Blocker, 133 S.W.3d 502, 505 (Mo. 2004). Similarly, the
Court of Appeals of Iowa applied Blocker’s reasoning in interpreting its controlled substance
statute as including an ultimate user defense. State v. Gallardo, 871 N.W.2d 703, 2015 WL
5278948, at *6-7 (Iowa Ct. App. 2015). The Iowa court recognized that possession of a
controlled substance pursuant to a valid prescription was an exception to that offense. 2015 WL
5278948, at *7-8 (citing State v. Gibbs, 239 N.W.2d 866 (Iowa 1976)).7
We hold that former RCW 69.50.4013(1) (2012)’s plain language includes an affirmative
defense for ultimate users who lawfully possess a controlled substance pursuant to a household
member’s valid prescription. The plain language of the statute, taken with the statutory scheme
of chapter 69.50 RCW, allows ultimate users to lawfully possess a household member’s
prescription for a controlled substance and, as a result, provides ultimate users with a defense to
the possession. Therefore, the trial court misinterpreted former RCW 69.50.4013(1) in
concluding it does not apply to ultimate users.
II. RIGHT TO PRESENT A DEFENSE
Yokel argues the trial court denied her the right to present a defense by granting the
State’s motion in limine to exclude evidence that she obtained the Vicodin found in her pocket
7
A number of other states have acknowledged an ultimate user defense to possession of a
controlled substance as well. Walker v. State, 358 So. 2d 800, 808 (Ala. Crim. App. 1978) (“It
should be noted that possession of a controlled substance by an ‘ultimate user . . . does not
constitute a violation of the Controlled Substances Act.’” (quoting ALA. CODE § 20-2-51)); State
v. Miller, 2008 UT 61, 193 P.3d 92, 95-96 (2008) (finding temporary possession of pills
belonging to another can constitute innocent possession).
8
No. 47871-4-II
through her daughter’s valid prescription and declining to give the jury her proposed affirmative
defense instruction on lawful possession.8 We agree.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee a criminal defendant the right to present a defense to the
crimes charged. A defendant has the right to present admissible evidence in her defense and
must show the evidence is at least minimally relevant to the fact at issue in her case. State v.
Phillips, 160 Wash. App. 36, 48, 246 P.3d 589 (2011). Further, a defendant is entitled to a jury
instruction supporting her theory of the case if there is substantial evidence in the record
supporting it. State v. Powell, 150 Wash. App. 139, 154, 206 P.3d 703 (2009).
The trial court effectively barred Yokel from presenting a defense because it excluded all
evidence regarding her daughter’s prescription and declined to give her proposed affirmative
defense instruction. In light of our ruling above, the instruction and all evidence in support
thereof should have been allowed at trial. Accordingly, the trial court violated Yokel’s
constitutional right to present a defense.
8
We recognize that Yokel did not present the trial court with the complete law on the ultimate
user defense. She sought only a valid prescription instruction, and this instruction, on its own, is
not complete because it does not set forth the elements of an ultimate user defense. Courts that
have discussed this defense have required a defendant to show she was an ultimate user.
Gallardo, 2015 WL 5278948, at *8 (“To come within the exception, the defendant would have to
introduce some evidence establishing each of the following: (1) the controlled substance was
obtained pursuant to a valid prescription; (2) the defendant came into lawful possession of the
controlled substance; and (3) the defendant lawfully possessed the controlled substance for his or
her own lawful use pursuant to a valid prescription or for the lawful use of a member of the
defendant’s household pursuant to a valid prescription.”).
9
No. 47871-4-II
CONCLUSION
The trial court misinterpreted former RCW 69.50.4013(1) and, as a result, denied Yokel
the right to present a defense. Therefore, we reverse Yokel’s conviction and remand for a new
trial.9
Worswick, J.
We concur:
Maxa, A.C.J.
Melnick, J.
9
Yokel also argues that the prosecutor committed misconduct and that one of her community
custody conditions was unconstitutionally vague. Because we reverse Yokel’s conviction, we do
not reach these arguments.
10