State Of Washington v. A.m. ( 2018 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 76758-5-1
Respondent,
V. DIVISION ONE
A.M., a minor, UNPUBLISHED OPINION
Appellant. FILED: July 30, 2018
LEACH, J. — A.M.1 appeals her conviction for possession of a controlled
substance for possession of methamphetamine. She challenges the sufficiency of
the evidence supporting the trial court's conclusion that she did not prove the
affirmative defense of unwitting possession. She also claims manifest
constitutional error on the ground that the trial court admitted her compelled
statement that the backpack containing the methamphetamine was her property.
And she contends that the offense of possession of a controlled substance violates
due process.
The fact that A.M. was the only person observed touching or handling the
backpack, in addition to the trial court's other findings, supports the court's
conclusion that A.M. did not prove unwitting possession. Because A.M. does not
1 The court grants A.M.'s motion to change the caption and use her initials
in the opinion. The court denies the balance of her motion.
No. 76758-5-1/ 2
show that admitting her allegedly compelled statement prejudiced her and our
Supreme Court has affirmed the legislature's authority to make possession a strict
liability offense, A.M. does not show manifest constitutional error or a due process
violation. We affirm.
BACKGROUND
On October 24, 2015, Kent Caldwell, loss prevention manager at Goodwill,
became suspicious of two juvenile females and one adult female who were
shopping together in the store. He saw the adult female put two Halloween
costumes into a shopping cart. Then he saw a juvenile, later identified as A.M.,
remove the costumes from their hangers and put them in the large pocket of a
backpack that was in the cart. He testified that as the women moved toward the
front door and abandoned the shopping cart, A.M. put on the backpack and exited
the store. Caldwell detained her outside of the store.
Police Officer Rodney Wolfington arrested A.M. and then searched the
backpack. In a small compartment of the backpack he found a medicine bottle
with methamphetamine in it. The State charged A.M. with possession of a
controlled substance and third degree theft. After a bench trial, the trial court found
A.M. guilty as charged. A.M. appeals her conviction for possession of a controlled
substance.
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No. 76758-5-1 / 3
ANALYSIS
Unwitting Possession
A.M. challenges the trial court's decision that she did not prove an unwitting
possession defense by a preponderance of the evidence. We affirm the trial court.
This court reviews de novo whether the trial court's findings of fact support
its conclusions of law.2 We treat unchallenged findings of fact as true on appea1.3
And we review whether substantial evidence supports the trial court's challenged
factual findings,4 viewing the record in the light most favorable to the prevailing
party—in this case, the State.5 "Substantial evidence exists where there is a
sufficient quantity of evidence in the record to persuade a fair-minded, rational
person of the truth of the finding."6 In the absence of a finding on a factual issue,
a reviewing court presumes that the party with the burden of proof failed to sustain
her burden.7
Possession of a controlled substance is a strict liability crime, which means
a crime without an intent requirement.9 The State must prove the nature of the
2 Dep't of Labor & Indus. v. Shirley, 171 Wn. App. 870, 879, 288 P.3d 390(2012).
3 Shirley, 171 Wn. App. at 879.
4 State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313(1994).
5 Harrison Mem'l Hosp. v. Gagnon, 110 Wn. App. 475, 485, 40 P.3d 1221(2002).
6 Hill, 123 Wn.2d at 644.
7 State v. Beaver, 184 Wn. App. 235, 251, 336 P.3d 654(2014)(explaining
that because the defendant had the burden to prove that he had regained his sanity
and the trial court did not make any findings about his mental health, he bore the
consequences of failing to obtain such a finding), aff'd, 184 Wn.2d 321, 358 P.3d
385 (2015).
8 RCW 69.50.4013.
9 State v. Bradshaw, 152 Wn.2d 528, 537-38, 98 P.3d 1190 (2004).
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No. 76758-5-1 /4
substance and the fact of possession but not that the defendant knowingly
possessed the substance.1° To avoid criminal liability, the defendant can prove,
by a preponderance of the evidence, the affirmative defense of unwitting
possession.11
Here, the trial court stated in its conclusions of law, "[A.M.] has not proven
unwitting possession by a preponderance of the evidence." Because the trial court
did not make a factual finding that A.M. persuaded the court of her unwitting
possession, we presume, consistent with the trial court's conclusion of law, that
A.M. failed to meet her burden., Because we are reviewing whether the absence
of a finding that A.M. proved unwitting possession supports the court's conclusion
that A.M. did not meet her burden, we review A.M.'s failure to meet her burden as
we would a challenged finding of fact. We must therefore determine whether,
considering the evidence in the light most favorable to the State, a rational trier of
fact could have found that A.M.failed to prove the defense of unwitting possession
by a preponderance of the evidence.
A.M. asserts that because the trial court's findings are unrelated to the issue
of unwitting possession and the court did not find that she lied when testifying, the
evidence requires the conclusion that she proved unwitting possession by a
preponderance of the evidence. The trial court made these findings:
1. The incidents in the case at bar occurred on October 24,2016,
in Snohomish County, Washington.
2. The respondent was in Goodwill with two other persons.
10 Bradshaw, 152 Wn.2d at 537-38.
11 Bradshaw, 152 Wn.2d at 531, 538.
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No. 76758-5-1 / 5
3. The respondent pushed the shopping cart containing a blue
backpack while in the store.
4. The respondent concealed Goodwill merchandise into the
blue backpack.
5. The respondent put the backpack on her back and left the
store with concealed merchandise, passing all points of sale.
6. Methamphetamine was recovered from the backpack, as was
the stolen Goodwill merchandise.
7. No one else was observed touching or handling the backpack.
8. Respondent's possession of the controlled substance was
both actual and constructive.
A.M. challenges only the first finding of fact. Although the trial court found that the
incidents at issue occurred on October 24, 2016, the record shows that they
occurred on October 24, 2015. A.M. does not challenge the remaining findings,
so we treat them as true.
"[C]redibility determinations are solely for the trier of fact [and] cannot be
reviewed on appeal."12 The trial court did not include in its findings A.M.'s
testimony supporting her defense. Although the trial judge stated that she did not
believe that A.M. perjured herself, she explained that she and A.M. had a
"difference [of] opinion as to what happened." The trial judge stated that she
weighed most heavily in making her determination the facts that A.M."was the only
person that was putting items in the backpack,. . . was the one that walked out
with the backpack[, and] was the only one that was possessing the backpack."
Although A.M. testified that the backpack came from her friend's house,that
she returned the backpack to her friend's house after she was released from
detention, and that she did not know that the methamphetamine was in the
backpack,the court concluded that A.M. did not meet her burden. The court clearly
12 Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003).
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No. 76758-5-1 /6
made a credibility determination and found A.M.'s testimony, the primary evidence
supporting her defense, insufficient to prove unwitting possession. As the court
stated in its findings, A.M. pushed the cart, put the costumes into the backpack,
left the store with the backpack, and was the only person observed touching or
handling the backpack. From this evidence, a rational trier of fact could have found
that A.M. did not meet her burden.
Right against Self-Incrimination
Next, A.M. claims that the court violated her federal and state constitutional
rights against self-incrimination by admitting her compelled statement that the
backpack was her property.13 We disagree.
First, A.M. did not preserve the issue for appeal. Normally, a party may
appeal an evidence decision only on the specific ground the objection made at
tria1.14 But a party may raise for the first time on appeal a manifest error affecting
a constitutional right.15 Here, although A.M.'s trial counsel objected based on
relevance, he did not argue a Fifth Amendment violation. On appeal, A.M. claims
manifest constitutional error.
When a party claims manifest constitutional error, we preview the issue to
determine whether there is both error and prejudice. If not, we do not review the
claim. A showing of prejudice requires that the defendant establish that the
13 The Fifth Amendment to the United States Constitution states,"No person
shall. . . be compelled in any criminal case to be a witness against himself." Article
1, section 9 of the Washington Constitution states,"No person shall be compelled
in any criminal case to give evidence against himself."
14 State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985).
15 RAP 2.5(a)(3); State v. Walsh, 143 Wn.2d 1, 7, 17 P.3d 591 (2001).
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No. 76758-5-1 / 7
asserted error had practical and identifiable consequences in the tria1.16 Here,
because we conclude that the alleged error caused no prejudice, we do not review
the claim.
Ashley Thomas, a juvenile court supervisor at the Denny Juvenile Detention
Center, testified that as part of the intake process, juveniles review with staff and
sign a property sheet listing the items they brought in to ensure that they leave with
those same items. The statement above the signature line on the property sheet
reads, "I have read the above accounting of my property and money and find it to
be accurate. I realize that property not claimed within 30 days will be subject to
disposal." A.M.'s signed property sheet listed the items that A.M. arrived with,
including the backpack that had contained the methamphetamine. A.M. claims
that the admission of her statement that the backpack belonged to her violated her
right against self-incrimination and caused prejudice because the State used her
statement to argue that she had effectively confessed to owning the backpack.
But even if admission of A.M.'s statement violated her Fifth Amendment
right against self-incrimination, she cannot prove prejudice. In its closing, the State
reasoned, "We know that she signed for the backpack, indicated it was her
property when she was booked in. We know that she signed for it again when she
was released, even though today she has testified that it wasn't her backpack."
The trial court responded,"Quite frankly, whether [A.M.] removed the backpack or
whether the backpack went with her from detention really was not a big factor in
16 State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125(2007).
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No. 76758-5-1 / 8
my case." A.M. asserts that this statement means the evidence related to booking
was still a factor in the trial court's decision.
Even so, the trial court did not include this evidence in its findings to support
its conclusion that A.M. did not prove unwitting possession. In addition, other
evidence included in the court's findings, like the fact that A.M. was the only person
observed touching or handling the backpack, shows that the court relied on other
evidence in determining A.M.'s guilt. Because the trial court did not rely on the
evidence related to booking, A.M. cannot prove that it had identifiable
consequences at trial. She did not show manifest constitutional error, so we
decline to review the claim.
Due Process
Last, A.M. claims that Washington's possession of a controlled substance
statute, RCW 69.50.4013, violates due process because the affirmative defense
of unwitting possession shifts the burden of proof to the defendant. This
contradicts settled authority. We review constitutional issues de novo.17
The Fourteenth Amendment to the United States Constitution prohibits a
State from depriving a person of liberty without due process of law. Due process
requires the State to prove every element of the charged offense to overcome the
presumption of innocence in favor of the accused.18 As discussed above,
possession of a controlled substance is a strict liability crime.19 The State must
17 Bradshaw, 152 Wn.2d at 531.
18 In re Winship, 397 U.S. 358, 364, 90S. Ct. 1068,25 L. Ed. 2d 368(1970).
19 Bradshaw, 152 Wn.2d at 532.
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No. 76758-5-1 / 9
prove the nature of the substance and the fact of possession.20 A defendant can
avoid conviction by proving unwitting possession by a preponderance of the
evidence.21 A.M. contends that this shifts the burden of proof and deprives
defendants of their liberty without due process.
In allocating burdens of proof in a criminal case, "there are obviously
constitutional limits beyond which the States may not go."22 A.M. relies on Schad
v. Arizona23 to provide guidance about how to determine when a State exceeds its
discretion in defining an offense:
Where a State's particular way of defining a crime has a long history,
or is in widespread use, it is unlikely that a defendant will be able to
demonstrate that the State has shifted the burden of proof as to what
is an inherent element of the offense, or has defined as a single crime
multiple offenses that are inherently separate. Conversely, a
freakish definition of the elements of a crime that finds no analogue
in history or in the criminal law of other jurisdictions will lighten the
defendant's burden.
Our Supreme Court has held that the legislature has the authority to create
a strict liability crime.24 In State v. Bradshaw25 and State v. Cleppe,26 the court
determined that based on the language and legislative history of the possession
statute, the legislature clearly intended to make possession of a controlled
20 Bradshaw, 152 Wn.2d at 538; RCW 69.50.4013.
21 Bradshaw, 152 Wn.2d at 531, 533-34.
22 Patterson v. New York, 432 U.S. 197, 225, 97 S. Ct. 2319, 53 L. Ed. 2d
281 (1977).
23 501 U.S. 624, 640, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991)(footnote
omitted).
24 Bradshaw, 152 Wn.2d at 532.
25 152 Wn.2d 528, 531, 532-34, 539, 98 P.3d 1190 (2004) (rejecting
defendants' due process challenge to the possession statute because they did not
adequately brief the issue).
26 96 Wn.2d 373, 380-81, 635 P.2d 435 (1981).
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No. 76758-5-1/ 10
substance a strict liability crime.27 "In the 22 years since Cleppe, the legislature
has not added a mens rea element."28 The court explained that because mere
possession does not have an inferred knowledge requirement, the affirmative
defense of unwitting possession does not shift the burden of proving a mens rea
element to the defendant.29 Instead, it "ameliorates the harshness of a strict
liability crime."30 And the State must still meet its burden of proving the elements
of the offense beyond a reasonable doubt.31 As Schad reasons, when a State has
a long history of defining a crime, as does Washington with possession of a
controlled substance, it is "unlikely" that the defendant will be able show that the
State has shifted the burden of proof.32
In State v. Schmelinq,33 Division Two of this court recently rejected a due
process challenge to the possession statute based on our Supreme Court's
reasoning in Bradshaw. Schmelinq reasoned that because the Washington
Supreme Court has repeatedly approved of the legislature's authority to adopt
strict liability crimes and expressly stated that the possession statute contains no
mens rea requirement, the possession statute does not violate due process.34 We
follow this reasoning and reject A.M.'s due process challenge.
27 Bradshaw, 152 Wn.2d at 537.
28 Bradshaw, 152 Wn.2d at 539.
29 Bradshaw, 152 Wn.2d at 538.
30 Bradshaw, 152 Wn.2d at 538.
31 Bradshaw, 152 Wn.2d at 538.
32 Schad, 501 U.S. at 640.
33 191 Wn. App. 795, 802, 365 P.3d 202(2015).
34 Schmeling, 191 Wn. App. at 802.
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No. 76758-5-1/ 11
CONCLUSION
Substantial evidence supports the trial court's conclusion that A.M. did not
prove unwitting possession by a preponderance. A.M. cannot prove that her
alleged compelled statement constituted manifest constitutional error or that the
possession statute shifts the burden in violation of due process. We affirm.
WE CONCUR:
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