State of Washington v. Thomas Jackson Barton

FILED
FEBRUARY 1, 2021
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. 37191-3-III
Respondent, )
)
v. )
)
THOMAS JACKSON BARTON, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. — To convict for unlawful use of drug paraphernalia under RCW
69.50.412(1), the State must prove beyond a reasonable doubt that the accused has used
drug paraphernalia in one of 21 specified ways1 or has used it in some other way to
introduce a controlled substance other than marijuana into the human body. Possession
by itself is not a crime. We agree with Thomas Barton that the State’s evidence of a glass
1
Uses identified by the statute are using the drug paraphernalia to “plant,
propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process,
prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, [or] inhale.”
RCW 69.50.412(1).
No. 37191-3-III
State v. Barton
pipe found in his jacket proved only possession, not use. We reverse his conviction for
use of drug paraphernalia.
FACTS AND PROCEDURAL BACKGROUND
In July 2019, Thomas Barton was arrested on an outstanding warrant by Colville
Tribal Police Officer McKenzie Shaffer, who transported him to the Okanogan County
Jail. Upon his arrival, corrections deputies took possession of Mr. Barton’s jacket and
other belongings to inventory his property. While conducting the inventory, corrections
deputies heard an object “clink” inside Mr. Barton’s jacket pocket and notified Officer
Shaffer. Report of Proceedings (RP) at 64. Officer Shaffer searched the jacket and
discovered, in one of its pockets, a glass pipe, a piece of folded foil, and within the foil, a
piece of folded notebook paper with a white powdery substance inside.
Officer Shaffer suspected the white substance was methamphetamine. He knew
that the usual method of ingesting methamphetamine in crystal form is using a smoking
device, such as a pipe. He could see that the bowl end of the pipe had been “burned at
some point.” RP at 70.
Officer Shaffer placed the foil and the folded paper with its contents into an
evidence bag that was sealed and sent to the Washington State Patrol (WSP) Crime
Laboratory. The record is silent as to whether the pipe, which was placed in a different
evidence bag, was ever sent to the crime lab. The State charged Mr. Barton with one
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State v. Barton
count of possession of a controlled substance (methamphetamine) and one count of use of
drug paraphernalia.
At Mr. Barton’s jury trial a few months later, a forensic scientist from the WSP
crime lab testified he had received the suspected methamphetamine recovered from Mr.
Barton’s pocket, which he determined to be 0.1 grams of methamphetamine
hydrochloride. On cross-examination, he admitted that he did not test the blue glass pipe.
The defense moved for dismissal of the use of drug paraphernalia charge for
insufficient evidence, given that no test was performed on the pipe. The motion was
denied.
In closing argument, the State described its evidence that the pipe had been used in
a manner violating RCW 69.50.412(1) as being “how the pipe was discovered, what it
was discovered with” and Officer Shaffer’s testimony that “the pipe exhibited signs of
use.” RP at 140-41.
The jury found Mr. Barton guilty as charged. The court imposed a sentence for
the drug possession count of 12 months and a day of confinement and 12 months’
community custody. It imposed a sentence for the use of drug paraphernalia count of 90
days, to run concurrently. Mr. Barton appeals.
ANALYSIS
Mr. Barton challenges the sufficiency of the evidence to prove the use of drug
paraphernalia charge. Evidence is sufficient to support a conviction where, “‘after
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State v. Barton
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 (1979)). “When the sufficiency of
the evidence is challenged in a criminal case, all reasonable inferences from the evidence
must be drawn in favor of the State and interpreted most strongly against the defendant.”
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). “In determining the
sufficiency of the evidence, circumstantial evidence is not to be considered any less
reliable than direct evidence.” State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99(1980). We review the sufficiency of evidence de novo. State v. Rich, 184 Wn.2d 897,
903, 365 P.3d 746 (2016).
To convict for unlawful use of drug paraphernalia, the State must prove beyond a
reasonable doubt that the accused has used “drug paraphernalia to plant, propagate,
cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test,
analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise
introduce into the human body a controlled substance other than marijuana.” RCW
69.50.412(1). “[M]ere possession of drug paraphernalia is not a crime” under RCW
69.50.412(1). State v. McKenna, 91 Wn. App. 554, 563, 958 P.2d 1017 (1998); see also
State v. Lowrimore, 67 Wn. App. 949, 959, 841 P.2d 779 (1992).
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Reported cases have addressed the type of evidence that will support use of drug
paraphernalia in the context of convictions and probable cause to arrest. In State v.
Godsey, 131 Wn. App. 278, 286, 127 P.3d 11 (2006), after holding that the defendant’s
disclosure to medical personnel of his regular drug use was inadmissible, this court held
that the remaining evidence—two clear pipes with burn marks, a syringe, and two zip-
lock baggies containing methamphetamine residue found on his person—was insufficient
to support his conviction for use of drug paraphernalia. By way of contrast, evidence that
a plastic baggie containing marijuana, a playing card tin containing marijuana residue,
and a smoking pipe containing marijuana residue were found together in the defendant’s
backpack in a search incident to arrest was held to be sufficient to support the defendant’s
conviction in State v. O’Meara, 143 Wn. App. 638, 643, 180 P.3d 196 (2008). The
O’Meara court held that “a rational trier of fact could conclude beyond a reasonable
doubt that [the defendant] used the playing card tin for storage of marijuana and used the
pipe to inhale marijuana, both of which are violations of RCW 69.50.412.” Id.When determining whether an officer had probable cause to make an arrest, this
court has held that a defendant’s conduct and the time and location of the arrest can be
sufficient evidence, in combination with his possession of drug paraphernalia, to support
an arrest for use of the paraphernalia in violation of RCW 69.50.412(1). See, e.g., State
v. Neeley, 113 Wn. App. 100, 103, 52 P.3d 539 (2002) (passenger “bobbing her head up
and down in a strange way” in a car parked late at night in an area known for drug
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activity combined with possession of drug paraphernalia could lead an officer to
reasonably infer the defendant used the paraphernalia); Lowrimore, 67 Wn. App. at 959(defendant’s possession of paraphernalia combined with defendant’s “bizarre and
emotionally unstable behavior” supported probable cause to believe the defendant used
drug paraphernalia in violation of RCW 69.50.412(1)); but see McKenna, 91 Wn. App. at
563 (no probable cause to arrest defendant for use of drug paraphernalia under RCW
69.50.412(1) when officer found a pipe, cigarette wrapping papers, and a small set of
scales in defendant’s duffle bag because possession of drug paraphernalia, by itself, is not
a crime).
The State urges us to find sufficient evidence here because the glass pipe was
found in the same pocket of Mr. Barton’s jacket as the methamphetamine, “there was
evidence [the glass pipe] was burned at some point,” and Office Shaffer testified that a
person would “[u]sually” ingest methamphetamine in crystal form by “put[ting] it in
some sort of smoking device,—ingest it by smoking it.” RP at 70. The pipe was not
tested for residue, however, and the photograph of the pipe that was admitted in evidence
does not show residue in the glass pipe. There is no evidence Mr. Barton exhibited drug
use-related behavior during the arrest, transport, or at the jail. And Mr. Barton was
arrested in a public casino, not in a high drug-use area.
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The items found in Mr. Barton’s pocket are the equivalent of the items found in
Godsey to be insufficient evidence of use of drug paraphernalia. His conviction for use
of drug paraphernalia in violation of RCW 69.50.412(1) is reversed.
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.
_____________________________
Siddoway, A.C.J.
WE CONCUR:
_____________________________
Korsmo, J.P.T.2
_____________________________
Fearing, J.
2
Judge Kevin M. Korsmo was a member of the Court of Appeals at the time
argument was held on this matter. He is now serving as a judge pro tempore of the court
pursuant to RCW 2.06.150.
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