State of Washington v. Michael Steven Thompson ( 2022 )

FILED
JANUARY 6, 2022
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 37375-4-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
MICHAEL S. THOMPSON, )
)
Appellant. )
LAWRENCE-BERREY, J. — Michael Thompson appeals his convictions for
attempting to elude a police vehicle, two counts of possession of a stolen motor vehicle,
second degree possession of stolen property, possession of a controlled substance—
methamphetamine, and possessing a motor vehicle theft tool.
The State concedes that Mr. Thompson’s two convictions for possession of a
stolen motor vehicle and his conviction for possession of a controlled substance must be
reversed and dismissed. We agree. We affirm Mr. Thompson’s remaining convictions
and remand for resentencing.
No. 37375-4-III
State v. Thompson
FACTS
Michael Thompson was charged with several offenses following his attempt to
elude a sheriff’s deputy conducting a lawful traffic stop.
Initial pursuit of the Chevrolet Blazer
In the early morning of December 18, 2016, Spokane County Deputy Sheriff Jason
Hunt attempted to pull over a Chevrolet Blazer towing a loaded snowmobile trailer with
expired registration. After Deputy Hunt activated his emergency lights, the Blazer
accelerated and began to flee, eventually driving into a snowy field. The deputy was
unable to pursue in his patrol vehicle, but he and other units set up perimeter containment
of the field. He did not get a good look at the driver.
Deputy Hunt proceeded into the field on foot, where he found the Blazer crashed
down an embankment. The vehicle was unoccupied and no one was present. The snow
plainly showed a single set of footprints emerging from the vehicle, but they did not lead
away into the distance. The trailer was missing one of the two snowmobiles Deputy Hunt
had previously seen loaded on it, leaving behind broken orange tie-down straps.
Inside the abandoned Blazer, a number of Mr. Thompson’s personal belongings
were found, including a motorcycle helmet with the word “Thompson” spelled in sticker
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letters. Report of Proceedings (RP) at 267. Deputies also found a number of shaved keys
and methamphetamine in the Blazer.
Tracking the snowmobile
While arriving to assist in the containment, Deputy Brandon Wilson saw a
snowmobile leaving the containment area. He was separated from the snowmobile due to
a train crossing the road, but was then able to follow the snowmobile tracks to a nearby
house. He observed the tracks leading from the road through a chain link gate into the
backyard and disappearing under a blue tarp.
Behind the house was a large open field, and Deputy Krystal1 Bitzer and her
training officer circled around into the field to look into the yard through the chain link
fence. From the open field behind the house, the deputies saw a snowmobile in the corner
of the yard, partially covered by the tarp. The snowmobile had orange tie-down straps
attached that appeared to be broken, matching the remnants on the trailer.
Search of the property
While Deputy Bitzer was in the field behind the house, her sergeant was speaking
with the homeowner, Erin Morris, at the front door. The sergeant communicated to the
1
Deputy Bitzer’s first name is alternately spelled “Crystal” and “Krystal” in the
reports of proceedings; police reports in the record indicate the spelling is “Krystal.”
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State v. Thompson
other deputies that Ms. Morris gave consent to enter the backyard. Three deputies
including Deputy Bitzer went into the backyard, moved the tarp off the snowmobile, and
felt that the snowmobile engine was still warm. Deputy Bitzer went to the front of the
house and spoke with Ms. Morris, who denied Mr. Thompson was home but gave
permission to go into the house to search for him.
The computer aided dispatch (CAD) report from the incident shows that a deputy
reported the snowmobile was warm to the touch at 2:32 a.m. on December 18. The
search consent waiver form was signed by Ms. Morris indicating consent to search her
“‘house and yard including back’” after that time, at either 2:35 or 2:39 a.m. Clerks
Papers (CP) at 89.
Deputies Bitzer and Wilson entered the residence after Ms. Morris gave informed
consent. Mr. Thompson was standing in the living room of the residence and had a
flushed face as though he had just been out in the cold. Deputy Wilson, who had
experience snowmobiling, noted the flush was similar to what he experienced when he
came inside a warm building after snowmobiling without protective gear. Mr. Thompson
told the deputies he had been snowmobiling the previous day, but had been home since
10:00 p.m. that evening and had been asleep for several hours. He said he had recently
purchased the snowmobile in the backyard from a friend. He retrieved his winter boots to
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show the deputies, which were wet but did not match the tread of the prints at the scene of
the truck. As they left, Deputy Bitzer noticed that the flush in Mr. Thompson’s face was
almost gone.
Trial court proceedings
Charges
Deputies determined that the snowmobiles and trailer had been stolen shortly
before the pursuit. Mr. Thompson was charged with six offenses:
(1) attempt to elude a police vehicle;
(2) possession of a stolen motor vehicle, a 2007 Polaris snowmobile;
(3) possession of a stolen motor vehicle, a 2007 Polaris snowmobile;
(4) second degree possession of stolen property other than a firearm or
a motor vehicle, a 2004 Triton trailer valued over $750;
(5) possession of a controlled substance, methamphetamines; and
(6) making or possessing a motor vehicle theft tool, shaved keys.
CP at 104-05.
Suppression hearings
Before trial, Mr. Thompson moved to suppress the evidence gained as a result of
the warrantless search of the home’s backyard. Mr. Thompson argued the deputies
entered the backyard before they had consent from Ms. Morris for a search, as reflected in
the CAD report. The State argued deputies observed the snowmobile from outside the
property until Ms. Morris gave consent to search the backyard. The evidence at the
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State v. Thompson
hearing persuaded the trial court that the deputies uncovered the snowmobile and touched
it before Ms. Morris gave informed consent to search her home and yard. Accordingly, it
suppressed the evidence from the illegal search of the yard and evidence after the search
as fruit of the poisonous tree.
The court left open the possibility that it would reconsider its ruling upon a motion
by the State and testimony by Ms. Morris. The State accordingly moved the court to
reconsider. The State argued that additional testimony from Ms. Morris would clarify the
timing and voluntariness of her consent to search her backyard. It also argued that any
evidence obtained after the search of the backyard should not have been suppressed under
the independent source doctrine because Ms. Morris’s consent to search the house was
obtained due to information other than the heat of the snowmobile. Mr. Thompson did
not address the application of the independent source doctrine, opposing the
reconsideration solely on the grounds that Ms. Morris’s testimony had been available at
the prior hearing and the State was not entitled to remedy its tactical error.
At the hearing to reconsider the suppression, the superior court declined to hear
new testimony based on its intervening review of case law and its conclusion that the
State had no new evidence to present. The court nonetheless partly reversed its ruling
excluding evidence based on the independent source doctrine, which had not been briefed
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before the prior hearing. In relevant part, the trial court’s reconsideration conclusions of
law state:
III. For evidence to be suppressed as “fruit of the poisonous tree” there
must be a causal connection between the illegal action and the
evidence.
....
V. However, there is no proximate cause between the search of the yard
and the search of the home;
....
VII. Here consent to search the house was gained from independent
evidence outside of the illegal search of the yard, i.e. observing the
snowmobile and tie down strap from a legal vantage point, tracking
the snow-mobile [sic] to the specific residence;
VIII. “[E]vidence tainted by unlawful governmental action is not subject
to suppression under the exclusionary rule, provided that it ultimately
is obtained pursuant to a valid warrant or other lawful means
independent of the unlawful action.” State v. Gaines, 154 W[n].2d
711, 718, 116 P.3d 993 (2005).
....
X. Again, here there was no causal connection between the initial
search of the yard and the [subsequent] search of the house which
was conducted after Ms. Morris provided consent.
CP at 102.
Accordingly, the court suppressed the evidence from the entry and search of the
backyard, but ruled admissible the evidence gained after Ms. Morris’s informed consent
to search her home.
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State v. Thompson
Trial and sentencing
Mr. Thompson proceeded to a jury trial. The State presented testimony from
several deputies about the pursuit of the Blazer and the subsequent tracking of the
snowmobile to Ms. Morris’s house. Deputy Bitzer’s testimony included her observation
of Mr. Thompson’s flushed face inside the house, his statements about riding a
snowmobile earlier that day, and her observation of Mr. Thompson’s snow boots. Deputy
Wilson similarly testified about Mr. Thompson’s flushed face as though he had been
snowmobiling without protective gear.
Ms. Morris testified that a friend of Mr. Thompson brought the Blazer and
snowmobiles to her house the day before the pursuit. She recalled that Mr. Thompson left
to ride the snowmobile along the train tracks around 10:00 p.m. the night of the pursuit
and was still out when she went to sleep around 11:00 p.m. She slept until the deputies
knocked on her door. When the deputies at the door asked about Mr. Thompson, she
closed the door, looked for him, and found him in the upstairs living room. This was
unusual because Mr. Thompson rarely spent time upstairs and their children primarily
used the living room. It also indicated he had entered the house from the backyard
because he would have awakened Ms. Morris using other entrances. This was in itself
unusual because there was no reason for him to come in from the backyard at night.
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Ms. Morris admitted that she denied Mr. Thompson was home to the deputies even after
locating him, but consented to their entry to search for him.
Ms. Morris testified that after the deputies left, Mr. Thompson told her he did not
know that the snowmobiles were stolen when she asked why he ran from the police. She
also identified several items of Mr. Thompson’s that were found in the Blazer and
testified that Mr. Thompson decorated many of his personal items with sticker letters.
She acknowledged that there were items found in the Blazer that she could not identify as
his.
The State presented footage from a neighbor’s security camera that showed the
Blazer and loaded snowmobile trailer leaving first at 10:24 p.m. and returning at 10:38
p.m., then leaving again at 1:39 a.m. and not returning.2 This was several hours later than
Thompson had said he went riding and during the period he claimed to be home asleep.
The jury found Mr. Thompson guilty on all six counts. He was sentenced to a
50-month prison-based drug offender sentencing alternative.
Mr. Thompson timely appealed to this court.
2
The neighbor’s recording system had the time set incorrectly, leading to a 51
minute discrepancy between the time displayed on the videos and the actual time. The
recording of the Blazer and trailer leaving, returning, and leaving again displayed times of
11:15 p.m., 11:29 p.m., and 2:30 a.m., respectively, which corresponds to actual times of
10:24 p.m., 10:38 p.m., and 1:39 a.m.
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ANALYSIS
SUPPRESSION OF EVIDENCE IN MR. THOMPSON’S HOME
Mr. Thompson contends the evidence obtained subsequent to the illegal search of
his backyard must be suppressed. We disagree.
We review the trial court’s conclusions of law from an order regarding the
suppression of evidence de novo. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513(2002). Unchallenged findings of fact are treated as verities on appeal. State v. O’Neill,
148 Wn.2d 564, 571, 62 P.3d 489 (2003).
Article I, section 7 of the Washington Constitution protects against unwarranted
governmental intrusion into a person’s private affairs. The Fourth Amendment to the
United States Constitution provides similar protection, prohibiting unreasonable searches
and seizures. Based on these constitutional protections, “warrantless seizures are per se
unreasonable.” State v. Doughty, 170 Wn.2d 57, 61, 239 P.3d 573 (2010).
If a search or seizure is made without a warrant, the State must show by clear and
convincing evidence that the search or seizure falls into one of the “‘few jealously and
carefully drawn exceptions to the warrant requirement . . . .’” State v. Garvin, 166 Wn.2d
242, 249, 207 P.3d 1266 (2009) (quoting Duncan, 146 Wn.2d at 171). Consent is one
such exception that requires the State to show consent to search is voluntary, the
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No. 37375-4-III
State v. Thompson
consenting party has authority to consent, and the search does not exceed the scope of the
consent. State v. Reichenbach, 153 Wn.2d 126, 131, 101 P.3d 80 (2004). If no exception
applies, evidence derived from the illegal search or seizure must be suppressed under the
exclusionary rule. State v. Mayfield, 192 Wn.2d 871, 883-84, 434 P.3d 58 (2019).
The exclusionary rule itself has exceptions that permit the admission of evidence
even in the wake of official misconduct. Id. at 886. Washington’s exclusionary rule is
much broader than the federal rule, however, and our Supreme Court has rejected many
of the exceptions recognized by the United States Supreme Court. Id. at 886-88 (listing
rejected federal exceptions and noting that Washington’s exclusionary rule has “no
exceptions that rely on speculation, the likelihood of deterrence, or the reasonableness of
official misconduct”). The only federally recognized exceptions to the exclusionary rule
that Washington has also expressly recognized are the independent source doctrine and
the attenuation doctrine, the latter on extremely narrow grounds. Id. at 889, 895-96.
The independent source doctrine permits the admission of “evidence tainted by
unlawful governmental action . . . provided that it ultimately is obtained pursuant to a
valid warrant or other lawful means independent of the unlawful action.” Gaines, 154
Wn.2d at 718. Washington’s attenuation doctrine, by contrast, operates on the same
principles as proximate cause in tort law: the connection between the unlawful
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governmental action and the discovery of the evidence is “‘so attenuated as to dissipate
the taint.’” Mayfield, 192 Wn.2d at 892 (quoting Nardone v. United States, 308 U.S. 338,
341, 60 S. Ct. 266, 84 L. Ed. 307 (1939)). Evidence is admissible under the attenuation
doctrine only if an “unforeseeable intervening act genuinely severs the causal connection
between official misconduct and the discovery of evidence.” Id. at 898.
Whether a search occurred
The State argues for the first time on appeal that the deputies’ entry into the house
was not a search within the meaning of article I, section 7 and the Fourth Amendment.
We disagree.
The State relies on State v. Khounvichai, 149 Wn.2d 557, 566, 69 P.3d 862 (2003),
in which our Supreme Court held Ferrier3 warnings are not required to enter a residence
to question a suspect or for other legitimate, nonsearch investigatory purposes. There, the
police suspected the resident’s grandson of malicious mischief, and she gave consent—
without Ferrier warnings—for the police to enter and speak to her grandson. Id. at 559.
In the course of questioning the grandson, the police saw the defendant in possession of
cocaine in plain view. Id. at 560. The defendant sought to suppress the evidence because
the resident did not give informed consent to the search of her home, but the court held
3
State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).
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that “Ferrier warnings were not required because the officers did not enter for the
purpose of obtaining consent to a warrantless search.” Id. at 566-67.
While the State asserts the deputies entered Ms. Morris’s house to question Mr.
Thompson, not conduct a search, this is not borne out by the record. The superior court
found at the suppression hearing that Ms. Morris “gave consent to go into the residence to
search for Mr. Thompson.” CP at 89. Ms. Morris similarly testified at trial she had
denied Mr. Thompson was home but gave officers consent to enter the house to search for
him. While the deputies may have ultimately wished to question Mr. Thompson, their
first objective in entering the home was to find him. Accordingly, we decline to
reclassify the entry into Ms. Morris’s home as anything other than a search.
Application of the exclusionary rule
Mr. Thompson argues the superior court erred by failing to suppress evidence
gained from the search of the home, namely, the observations of Mr. Thompson’s flushed
face and his statements he had ridden a snowmobile earlier that night.4 He argues that
Washington’s narrow version of the attenuation doctrine does not provide an exception to
the exclusionary rule because Ms. Morris’s consent to search the house was not an
4
Mr. Thompson does not take issue with the admission of the deputies’
exculpatory observations about his snow boots.
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State v. Thompson
unforeseeable superseding cause.
The superior court, however, never considered the attenuation doctrine in
admitting the evidence. In its initial suppression ruling, the court considered solely
whether the consent exception to the warrant requirement applied to the facts of the case.
It found the State did not meet its burden to establish consent to search the backyard and
concluded it was an illegal search. Applying the exclusionary rule, it further concluded
the illegal search of the backyard tainted Ms. Morris’s later informed consent to search
the house. After the State raised the independent source doctrine on reconsideration,
however, the court concluded that the doctrine provided an exception to the exclusionary
rule that permitted admission of the evidence from the home.
Mr. Thompson nonetheless attempts to frame this as an attenuation issue, asserting
the superior court held “Ms. Morris’s consent to search broke the causal chain between
the deputies’ illegal behavior and the evidence discovered in the house.” Br. of Appellant
at 23. This misstates the court’s ruling. The superior court in fact concluded there was
“no causal connection between the initial search of the yard and the search of the house”
and that “consent to search the house was gained from independent evidence outside of
the illegal search of the yard.” CP at 102. The court never held the causal chain was
broken by the consent; it simply concluded there was no causal link in the first place.
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Due to his reliance on the attenuation doctrine, Mr. Thompson fails to explain why
the independent source doctrine does not permit the admission of the evidence obtained in
the home. He did not address the issue below at the suppression hearing and he does not
address it on appeal. For this reason, neither do we.
Despite the court’s reliance on the independent source doctrine to admit the
evidence, Mr. Thompson advances additional arguments to exclude the evidence that
relies on the attenuation doctrine. We address these arguments in turn.
Whether informed consent to search triggers an analysis under the
attenuation doctrine
In a footnote, Mr. Thompson acknowledges that the superior court’s suppression
decision was based on the independent source doctrine, but appears to argue that the
Mayfield court created a bright-line rule: cases involving subsequent informed consent are
analyzed under the attenuation doctrine, while cases involving a subsequent valid warrant
are analyzed under the independent source doctrine. This distinction is unsupported by
any authority and ignores the rationale underlying each exception to the exclusionary rule.
The relevant inquiry is how the legal and illegal search or seizure are causally connected,
not on what basis the legal search or seizure was conducted, as the Mayfield court makes
clear.
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While Mayfield involved the defendant’s informed consent to a search after being
illegally seized, the court’s analysis turned on the fact that there was no basis for the
search independent of the initial misconduct. There, the arresting officer unlawfully
seized the defendant without reasonable suspicion he had committed a crime. Mayfield,
192 Wn.2d at 876-77. While seized, the defendant consented to a pat-down search,
during which the officer found a large amount of cash that the officer suspected resulted
from drug transactions. Id. at 876. The officer then obtained informed consent including
Ferrier warnings to search the defendant’s vehicle, where he found methamphetamine.
Id. The officer’s requests to search therefore would not have occurred but for the initial
illegal seizure and there was a direct causal link between the illegal seizure and the
searches. Id. at 899-900.
Accordingly, our Supreme Court analyzed whether the defendant’s informed
consent to the search broke the causal link from the initial illegal seizure. It concluded
that the defendant’s consent “was the direct, foreseeable result of” the illegal seizure. Id.
at 900. The court noted the inherently coercive nature of the request to search when the
officer requesting the search and delivering Ferrier warnings is at the same time
“subjecting the person to an ongoing unlawful seizure.” Id. at 901. It further concluded
that “consent to search during an ongoing unlawful seizure, even if preceded by Ferrier
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No. 37375-4-III
State v. Thompson
warnings, is entirely foreseeable and not an independent act of free will” sufficient to
break the chain of causation and satisfy Washington’s narrow attenuation doctrine. Id.
Mr. Thompson’s situation is readily distinguishable from that of the defendant in
Mayfield. Here, the deputies had a lawful basis for requesting consent independent of the
unlawful search of the backyard. They had followed the snowmobile’s tracks to the
house and even observed the snowmobile in the backyard from a lawful vantage point
outside the property. They already knew the snowmobile had been recently driven and
covered. The evidence gained from the backyard search—that the snowmobile was still
warm—was not the proximate cause of the request to search the home for Mr. Thompson.
Indeed, it is arguably not even a “but for” cause of the request. Based on the visual
identification of the stolen snowmobile in the backyard, the deputies’ logical next step in
their investigation would have been to search for Mr. Thompson regardless of the heat of
the snowmobile.
Whether deputies relied on the unlawful search of the backyard
Mr. Thompson next argues that the State failed to prove that the deputies did not
rely on the warmth of the snowmobile to obtain Ms. Morris’s consent to search the house
or to elicit Mr. Thompson’s statements inside the house and the evidence must be
suppressed. His cited authority, however, involves a causal chain between the
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No. 37375-4-III
State v. Thompson
misconduct and the evidence in question under the attenuation doctrine. Mr. Thompson
provides no authority to support a requirement under the independent source doctrine that
the lawful means of obtaining evidence be insulated from the unlawful action.
To the contrary, Washington courts routinely admit evidence under the
independent source doctrine that is arguably tainted by an illegal search. The Mayfield
court noted that in independent source cases, the evidence can be admissible even if
official misconduct is a “but for” cause of the discovery of evidence. Id. at 889. And our
Supreme Court’s pivotal independent source cases involve search warrants based on
illegally obtained evidence that the court nonetheless found valid for admitting that same
evidence.
In Gaines, after lawfully searching the passenger cabin of a vehicle incident to
arrest, a police officer unlawfully looked into the trunk of the vehicle and saw an assault
rifle and ammunition. 154 Wn.2d at 714, 717. He closed the trunk without disturbing the
contents and the vehicle was impounded, but his observation was included in another
officer’s affidavit in support of a search warrant for the car. Id. at 714-15. The rifle and
ammunition were seized pursuant to that warrant. Id. at 715. The court found that the
remaining facts in the affidavit would have constituted probable cause even without the
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illegally obtained information about the rifle and ammunition and found the items were
properly admitted as evidence. Id. at 718.
In State v. Coates, 107 Wn.2d 882, 884, 735 P.2d 64 (1987), a detective
questioned the defendant about the location of a knife used in an assault, unaware that the
defendant had previously invoked his right to silence. The defendant told him the knife’s
location in his car, which had already been impounded, and the detective obtained a
search warrant based in part on the defendant’s statement. Id. at 884-85. The knife was
found during the search of the vehicle. Id. at 885. The court found that even though the
defendant’s illegally obtained statements were included, the remaining facts in the
affidavit were enough probable cause to support the warrant and thus found the knife was
properly admitted as evidence. Id. at 888-89.
We have held similarly in a nonwarrant independent source case. In State v.
Hilton, 164 Wn. App. 81, 85, 261 P.3d 683 (2011), a couple was murdered with an
uncommon caliber of bullet. The police began investigating local gun shops to see which
sold the ammunition and to whom. Id. Other investigative avenues implicated the
defendant and his apartment was searched pursuant to a search warrant, which we later
held was invalid. Id. at 86. In the defendant’s apartment, police located a sales receipt
for the uncommon ammunition and used shell casings that matched the bullets used to kill
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the victims. Id. While the sales receipt and the shell casings were suppressed because of
the invalid warrant, the owner of the gun shop was permitted to testify and introduce her
sales records at trial. Id. at 88. We held it was proper to admit the evidence under the
independent source doctrine because a detective was already tracing the ammunition and
continued to do so after the search of the defendant’s apartment. Id. at 92. We noted that
the detective was not “simply exploiting information” from the illegal search, but instead
“was thoroughly pursuing a lead first developed at the murder scene.” Id. at 91. We did
not require a showing that the State did not rely on the sales receipt and the shell casings
in pursuing that lead.
These cases reaffirm that the relevant question for the independent source doctrine
is not whether improperly obtained evidence is so far removed from the evidence at issue
as to dissipate any taint, but rather whether there was sufficient properly obtained
evidence to independently justify the search or seizure. Here, it is undisputed that police
lawfully tracked the snowmobile and observed it in Ms. Morris’s backyard. Entering Ms.
Morris’s home to search for Mr. Thompson is the logical result of the deputies’ thorough
pursuit of this lead.
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INSUFFICIENT EVIDENCE OF SNOWMOBILE MODEL YEARS
Mr. Thompson argues the State presented insufficient evidence to convict him for
either count of possession of a stolen motor vehicle. In making this argument, he relies
on the law of the case doctrine, on the jury instruction that required the State to prove the
model number of the snowmobiles, and the lack of this evidence in the record. The State
concedes that both convictions must be reversed and the charges dismissed. For the
reasons explained below, we accept the State’s concession.
The due process clauses of both the federal and state constitutions require the State
to prove each element of a crime beyond a reasonable doubt. U.S. CONST. amend. XIV;
WASH. CONST. art. I, § 3; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d
368 (1970); State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). When analyzing
whether the State presented sufficient evidence to meet this burden, Washington courts
look to the “law of the case” that is established by the trial court’s instructions to the jury.
State v. Johnson, 188 Wn.2d 742, 755, 399 P.3d 507 (2017). If the State does not object
to the inclusion of an “otherwise unnecessary element[ ] of the offense” in the jury’s to-
convict instruction, the State assumes the burden of proving that additional element
beyond a reasonable doubt. Id. at 756 (quoting State v. Hickman, 135 Wn.2d 97, 102, 954
P.2d 900 (1998)).
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Here, the to-convict instructions on both charges of possession of a stolen motor
vehicle included the otherwise unnecessary element of the snowmobile’s model years.
The State thus assumed the burden to prove the model years of the stolen snowmobiles
under the law of the case doctrine. It failed to present any evidence on this element of the
offenses, however, and accordingly did not meet its burden. The evidence was therefore
insufficient to support Mr. Thompson’s two convictions for possession of a stolen motor
vehicle. The convictions must be reversed and the charges dismissed. See Hickman, 135
Wn.2d at 106.
Under the law of the case doctrine, the State had the burden to prove the
snowmobile model years in the jury to-convict instructions for possession of a stolen
motor vehicle. Because it presented no evidence of the model years, the State failed to
prove every element of the crime beyond a reasonable doubt, and the convictions must be
reversed and dismissed.
VACATION OF POSSESSION OF CONTROLLED SUBSTANCE CONVICTION
Mr. Thompson argues that his drug possession conviction must be reversed and the
charge dismissed because the criminal statute unconstitutionally criminalizes innocent
conduct. The State concedes this issue.
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State v. Thompson
In State v. Blake, 197 Wn.2d 170, 195,481 P.3d 521 (2021), our Supreme Court
held that Washington's simple drug possession statute, RCW 69.50.4013, violated the
right to due process under the State and federal constitutions because it did not require the
State to prove a defendant acted with a culpable mental state. A conviction based on an
unconstitutional statute must be vacated. State v. LaBounty, 17 Wn. App. 2d 576, 581,
487 P.3d 221 (2021). We therefore reverse Thompson's drug possession conviction and
remand for resentencing.
Affirmed in part and remanded for resentencing.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J. \
j
WE CONCUR:
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Pennell, C.J. Fearing, J.
23