State v. George

Becker, J.

¶1 Appellant Graeme George was convicted of possession of marijuana and possession of drug paraphernalia. The superior court affirmed. We granted discretionary review and now reverse and remand for dismissal with prejudice. The citation for possession of drug paraphernalia contained insufficient notice of the elements of the crime, the trial judge improperly refused to give an unwitting possession instruction unless George testified, and the evidence was insufficient to show that George had dominion and control over the pipe and its contents.

FACTS

¶2 One evening in March 2005, Washington State Patrol Trooper Brian Thompson stopped a two-door Ford Explorer in Bellingham for driving 43 miles per hour in a 25-mile-per-hour zone. When he walked up to the driver’s side of the vehicle and the driver rolled the window down, Trooper Thompson immediately smelled the strong odor of burnt marijuana wafting from the vehicle. There were three men in the vehicle: the driver, the vehicle’s registered owner in the front passenger seat, and George. George was in the back seat behind the driver. Trooper Thompson asked whether there was any marijuana in the vehicle. All three denied that there was.

¶3 Trooper Thompson placed the occupants under arrest “for the odor of marijuana in the vehicle.” He had each of the men step out of the vehicle one at a time, patting them down as he did so. He placed the driver and the registered owner in the back of his patrol car. He handcuffed George and had him stand in front of the vehicle while he searched it.

¶4 Trooper Thompson found an eight-inch-long, six-and-a-half-inch-wide blue glass water pipe among empty beer cans and bottles on the floorboard behind the driver’s seat, next to where George had been sitting. There was burned marijuana in the pipe. Trooper Thompson asked the occupants if “somebody wanted to own up” to the pipe. All three denied owning it. Trooper Thompson then took the pipe for entry into evidence, cited all three occupants for possession of marijuana and possession of drug paraphernalia, and booked them into jail. George’s citation read that he was charged with:

RCW 69.50.412(i)^[1]

Possession of drug paraphernalia

RCW 69.50.401

Possession of marijuana less than 40g.

¶5 George was tried in the Whatcom County District Court for both misdemeanor possession of marijuana and misdemeanor possession of drug paraphernalia. He wanted to argue that if found to have possession, it was unwitting. To this end, he sought to have the jury instructed consistent with the pattern unwitting possession instruction, 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 52.01 (2d ed. 1994). The court refused to give the instruction.

¶6 George was convicted on both counts. The superior court affirmed. We granted discretionary review of all three issues raised by George in his appeal to the superior court.

UNWITTING POSSESSION INSTRUCTION

¶7 George contends that he was entitled to have the jury instructed on the defense of unwitting possession with respect to the possession of marijuana charge.

¶8 The trial court accepted the State’s argument that there was insufficient evidence to warrant the instruction unless George testified:

THE COURT: Well counsel the instruction says the possession of a controlled substance is unwitting if the person . . . didn’t know what the substance was or did not know the nature of the substance, and we are not going to allow his testimony on this instruction through the trooper. I mean if he is going to get up and testify to that then I will give the instruction.

[DEFENSE COUNSEL]: .... I don’t think it matters where the evidence comes from—

THE COURT: How does the trooper know what your client knows? ....

[PROSECUTOR]: .... I don’t see how defense can try to shoehorn an affirmative defense the State’s witness [sic]. I think it’s clearly inappropriate.

THE COURT [to defense counsel]: And I am not going to give the instruction unless your client testifies.

At the conclusion of the State’s case in chief, George again asked the court to give the unwitting possession instruction. The trial court again refused to do so unless George testified.

¶9 George had previously been convicted of making a false statement to a public official. The prosecutor indicated that he planned to introduce the prior conviction to impeach George’s credibility should George testify.

¶10 George did not testify in his own defense, and he did not call any other witnesses. The jury was instructed that George was not required to testify but was not instructed on his proposed defense of unwitting possession. In closing, the prosecutor argued that it was immaterial whether George knew there was marijuana in the pipe:

[PROSECUTOR]: .... I just want to talk to you about . . . things that defense is arguing that don’t matter . . . . [Y]ou won’t find in the jury instructions . . . anything about knowledge .... So I would ask you to disregard that argument because it is not in the jury instructions; it is not in evidence.

¶11 The law regarding the defense of unwitting possession is well established. The State has the burden of proving the elements of unlawful possession of a controlled substance as defined in the statute — the nature of the substance and the fact of possession. Defendants then can prove the affirmative defense of unwitting possession. This affirmative defense ameliorates the harshness of a strict liability crime. State v. Bradshaw, 152 Wn.2d 528, 538, 98 P.3d 1190 (2004). Unwitting possession must be proved by a preponderance of the evidence. State v. Balzer, 91 Wn. App. 44, 67, 954 P.2d 931 (1998).

¶12 A defendant in a criminal case is “entitled to have the trial court instruct upon its theory of the case if there is evidence to support the theory.” State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d 902 (1986). A trial court errs by not instructing the jury on the defense of unwitting possession when evidence supporting the defense is adduced at trial. State v. May, 100 Wn. App. 478, 482-83, 997 P.2d 956 (2000). “In evaluating whether the evidence is sufficient to support a jury instruction on an affirmative defense, the court must interpret it most strongly in favor of the defendant and must not weigh the proof or judge the witnesses’ credibility, which are exclusive functions of the jury.” May, 100 Wn. App. at 482. The affirmative defense of unwitting possession “must be considered in light of all the evidence presented at trial, without regard to which party presented it.” State v. Olinger, 130 Wn. App. 22, 26, 121 P.3d 724 (2005) (emphasis added).

¶13 Here, the testimony of the only witness— Trooper Thompson — provided a wealth of evidence that justified the jury being instructed on the defense of unwitting possession. Trooper Thompson testified that all three vehicle occupants denied knowing anything about any marijuana being present. He testified that George denied knowledge of any marijuana in the vehicle and denied ownership of the pipe. He testified that George was not driving the vehicle and did not own the vehicle; the vehicle owner was present in the front passenger seat. He testified that there was no fingerprint evidence linking George to the pipe. He testified that it was at least theoretically possible that someone in the front seat could have placed the pipe in the back seat after the vehicle was stopped. He testified that he did not know when the pipe had last been used, who placed it on the floorboard, or when it was placed there.

¶14 In view of Trooper Thompson’s testimony, the trial court erred by concluding that George was required to testify in order to have the jury instructed on his requested defense. Trooper Thompson’s testimony provided a sufficient evidentiary basis to warrant the requested instruction. The error was not harmless. This error alone warrants reversal of George’s conviction for misdemeanor possession of marijuana.

ESSENTIAL ELEMENTS RULE

¶15 George contends that his conviction for possession of drug paraphernalia must also be reversed because the citation by which he was charged did not state the elements of the offense of which he was charged.

¶16 A person may not be convicted of a crime with which he or she was not charged. City of Auburn v. Brooke, 119 Wn.2d 623, 627, 836 P.2d 212 (1992). In order to meet this requirement, all of the essential elements of the charged offense, statutory or otherwise, must be included in a charging document in order to afford to the accused the constitutional requirement of notice. State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). An “essential element” is one whose specification is necessary to establish the very illegality of the behavior charged. State v. Ward, 148 Wn.2d 803, 811, 64 P.3d 640 (2003).

¶17 In Brooke, two defendants were charged by citations issued by police officers — one for “[Auburn Municipal Code] 9.40.010(A)(2) Disorderly Conduct,” and one for “[Seattle Municipal Code] 11.56.420 Hit/Run; Attended.” Brooke, 119 Wn.2d at 625-26. For the first time on appeal, both defendants challenged the constitutional sufficiency of their citations as charging documents. The Supreme Court accepted review of both cases, describing the issue presented as: “Does a misdemeanor or gross misdemeanor citation used as the final charging document in a criminal prosecution satisfy the ‘essential elements’ rule if it states only a numerical code section and the name of a criminal offense?” Brooke, 119 Wn.2d at 627.

¶18 The Supreme Court answered the question in the negative, holding that the essential elements rule applies to all charging documents, including citations used as final charging documents. The recitation of no more than a numerical code section and the title of an offense does not satisfy that rule “unless such abbreviated form contains all essential elements of the crime(s) charged.” Brooke, 119 Wn.2d at 627. Criminal defendants should not “have the burden of locating the relevant code . . . and determining the elements of the offense from the proper code section.” Brooke, 119 Wn.2d at 635. It is “an unfair burden to place on an accused,” especially in misdemeanor and gross misdemeanor cases where defendants are often unrepresented by counsel. Brooke, 119 Wn.2d at 635. Based on this conclusion and the absence of necessary elements from the misdemeanor citations issued to the defendants, the court reversed both defendants’ convictions and remanded their causes for dismissal of the charges against them without prejudice. Brooke, 119 Wn.2d at 639-40.

¶19 The State does not directly address Brooke. The State relies on the rule that citations issued by officers need not be as detailed as complaints issued by prosecutors. State v. Leach, 113 Wn.2d 679, 698, 782 P.2d 552 (1989). What the State’s argument ignores, however, is that the court in Brooke specifically examined and rejected the contention that Leach stands for the proposition that citations need not state all of the essential elements of a charged misdemeanor offense. See Brooke, 119 Wn.2d at 638-39. In a post conviction challenge, charging documents are liberally construed. Kjorsvik, 117 Wn.2d at 102. But even under the most liberal interpretation of the standard, “all essential elements of an alleged crime must be included” in the charging document in some form. Kjorsvik, 117 Wn.2d at 101, 105. Kjorsvik does not allow the State to charge by citation to a code section and the common name of an offense without stating all of the elements necessary to sustain a conviction. See Brooke, 119 Wn.2d at 636.

¶20 The State’s reliance on State v. Grant, 104 Wn. App. 715, 17 P.3d 674 (2001), is also unavailing. In that case, we recognized that the shorthand phrase “DWI” sufficiently charged the crime of “driving while intoxicated,” or, more properly, driving “under the influence of or affected by intoxicating liquor .... RCW 46.61.502(1)(b).” Grant, 104 Wn. App. at 719-20. This shorthand was sufficient because it contained the “necessary facts of the offense.” Grant, 104 Wn. App. at 717.

¶21 Here, the citation at issue alleged that George was guilty of “possession of drug paraphernalia.” But no Washington statute criminalizes “possession of drug paraphernalia.” See, e.g., State v. Neeley, 113 Wn. App. 100, 107, 52 P.3d 539 (2002) (“bare possession of drug paraphernalia is not a crime”); State v. McKenna, 91 Wn. App. 554, 563, 958 P.2d 1017 (1998) (“mere possession of drug paraphernalia is not a crime”); State v. Lowrimore, 67 Wn. App. 949, 959, 841 P.2d 779 (1992) (“RCW 69.50.412 does not, ipso facto, make possession of drug paraphernalia a crime.”).

¶22 For possession of drug paraphernalia to be a crime, a defendant must either “use 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,” RCW 69.50.412(1), or “deliver, possess with intent to deliver, or manufacture with intent to deliver drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used 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.” RCW 69.50.412(2).

¶23 Even under the most liberal construction of the citation issued by Trooper Thompson, none of the possible circumstances under which George’s possession of the pipe could have been found to be criminal were alleged in the citation. This error alone requires reversal of George’s conviction for possession of drug paraphernalia.

SUFFICIENCY OF THE EVIDENCE

¶24 If our reversal of the two convictions were based only on the instructional error and the charging defect, the State would be permitted to cure the charging defect and try George again on both counts. But we agree with George that both convictions must also be reversed for insufficiency of the evidence. As a result, both convictions must be dismissed with prejudice.

¶25 Sufficient evidence supports a jury’s determination of guilt if, 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). All reasonable inferences are drawn in favor of the verdict and interpreted most strongly against the defendant. State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105 (1995).

¶26 Possession of a controlled substance is a strict liability crime. See Bradshaw, 152 Wn.2d at 538. Possession of drug residue in a pipe can appropriately be charged as possession of a controlled substance because there is no minimum amount of drug that must be possessed in order to sustain a conviction. State v. Williams, 62 Wn. App. 748, 751, 815 P.2d 825 (1991). To prove possession of drug paraphernalia, the State had to prove not only that George possessed the pipe but also that he used it in a drug-related activity. RCW 69.50.412(1).

¶27 Possession may be either actual or constructive. The State argued in closing that George had both. But actual possession requires physical custody. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). Because George did not have physical custody of the pipe, the question is whether the State proved that he had constructive possession of the pipe and its contents.

¶28 “Constructive possession is proved when the person charged with possession has dominion and control over either the drugs or the premises upon which the drugs were found.” State v. Mathews, 4 Wn. App. 653, 656, 484 P.2d 942 (1971) (citing Callahan, 77 Wn.2d 27). An automobile may be considered a “premises.” State v. Potts, 1 Wn. App. 614, 617, 464 P.2d 742 (1969). Here, there was insufficient evidence to support a finding that George exercised dominion and control over the vehicle. He was a mere backseat passenger, not the driver or the owner.

¶29 The State argued George had constructive possession of the pipe and its contents. “It’s at his feet, he’s the only one in the back seat and it is sitting right there on the floorboard.”

¶30 Exclusive control by the defendant is not required to establish possession; more than one defendant may be in possession of the same prohibited item. State v. Turner, 103 Wn. App. 515, 522, 13 P.3d 234 (2000). However, a defendant’s mere proximity to drugs is insufficient to prove constructive possession. This is so even where there is evidence that the defendant handled the drugs, because “possession entails actual control, not a passing control which is only a momentary handling.” Callahan, 77 Wn.2d at 29. As established by Callahan, the rule is that “where the evidence is insufficient to establish dominion and control of the premises, mere proximity to the drugs and evidence of momentary handling is not enough to support a finding of constructive possession.” State v. Spruell, 57 Wn. App. 383, 388, 788 P.2d 21 (1990); see also State v. Cote, 123 Wn. App. 546, 548-50, 96 P.3d 410 (2004).

¶31 Constructive possession cases are fact sensitive. For guidance, we look not only to the rule as established by Callahan but also to the results reached in decisions on comparable facts. In Spruell, police entered a room and found appellant Hill and another individual near a table on which there was cocaine residue, a scale, vials, and a razor blade. The defendant’s conviction for possession of the cocaine was reversed for insufficient evidence.

There is no evidence in this case involving Hill other than the testimony of his presence in the kitchen when the officers entered and the testimony of the conditions there described by Detective Greenbaum and Detective Sergeant McClure. There is no evidence relating to why Hill was in the house, how long he had been there, or whether he had ever been there on days previous to his arrest. There is no evidence of any activity by Hill in the house. So far as the record shows, he had no connection with the house or the cocaine, other than being present and having a fingerprint on a dish which appeared to have contained cocaine immediately prior to the forced entry of the police. Neither of the police officers testified to anything that was inconsistent with Hill being a mere visitor in the house. There is no basis for finding that Hill had dominion and control over the drugs. Our case law makes it clear that presence and proximity to the drugs is not enough. There must be some evidence from which a trier of fact can infer dominion and control over the drugs themselves. That evidence being absent, Hill’s conviction must be reversed and dismissed on double jeopardy grounds.

Spruell, 57 Wn. App. at 388-89. In Cote, the evidence was held insufficient to prove constructive possession where the defendant was a passenger in a truck containing components of a methamphetamine lab, and his fingerprints were found on Mason jars containing chemicals in the back of the truck. Cote, 123 Wn. App. at 550.

¶32 The State relies on Mathews, where evidence of proximity coupled with “other circumstances linking him to the heroin” was held sufficient to justify a finding that a backseat passenger had constructive possession of drugs found near his feet. Mathews, 4 Wn. App. at 658. In Mathews, the defendant and three other individuals were in a car stopped by the police. A small package of heroin was found underneath the carpet near the right back seat, where the defendant had been sitting since the foursome left Portland. While recognizing that the defendant’s proximity to the heroin was not enough to prove constructive possession, the court identified other evidence that established the necessary link. The defendant was a known heroin user with a three-bag-a-day habit. He had purchased and used heroin before starting out for Longview. Paraphernalia used by heroin addicts was found not only in his coat but also underneath the right back seat where he was sitting. The occupants of the front seat, also heroin addicts, testified that the heroin in the back seat was not theirs and they did not know it was there. The court noted that the jury could have found that experienced heroin users, such as the front seat occupants, would not hide their heroin within ready access of a known heroin user. The other backseat passenger was not a heroin user.

¶33 Sufficient evidence in addition to proximity was also found in State v. Ibarra-Raya, 145 Wn. App. 516, 521, 187 P.3d 301 (2008), where the defendant, who was observed standing near a freshly-dropped bindle of cocaine, said, “ Tf you saw me drop it, then I’ll admit it’s mine.’ ” This admission was sufficient to take the issue of constructive possession to the jury.

¶34 Here there was no evidence about George’s past use or ownership of marijuana or paraphernalia. No drugs or paraphernalia were found on his person. There was no evidence such as dilated pupils, odor on his person, matches, or a lighter to suggest that George had been smoking marijuana with or without the pipe. There was no testimony tending to rule out the other occupants of the vehicle as having possession of the pipe. There was no testimony establishing when George got into the vehicle or how long he had been riding in it. There was no fingerprint evidence linking George to the pipe. And George made no statements or admissions probative of guilt.

¶35 The trooper could not remember whether he first spotted the pipe before or after the occupants stepped out of the car. For safety purposes, he did an initial scan inside the car with his flashlight to see what the occupants had in their hands and whether there were guns, but he did not recall seeing the pipe at this time. “I’ll just say the first time I seen it was after they stepped out but at least while they were stepping out.” The trooper acknowledged that he was not sure how long the pipe had been on the floorboard or how recently it was used. “Based on the strong odor of it, that it was fairly recent it could have been there days but it had been used before days had gone by. . . . As strong as it was to me, I would have been really surprised if it would have been more than three hours.” Thus, the trooper’s testimony does not support an inference that George had been using the pipe and then tried to hide it by putting it at his feet.

¶36 The State contends it was sufficient that the pipe was found on the floorboard behind the driver’s seat, and that while sitting behind the driver George could have easily reduced the pipe to his actual possession. This is not enough to distinguish the facts from Callahan and Spruell, where the drugs were likewise found close enough to the defendants that they could easily have been reduced to actual possession. The State cites no cases holding that proximity plus knowledge of a drug’s presence establishes dominion and control over the drug. We have held that knowledge of the presence of marijuana is insufficient to prove dominion and control. State v. Davis, 16 Wn. App. 657, 659, 558 P.2d 263 (1977).

¶37 On the spectrum of cases with Callahan and Spruell at one end and Mathews at the other, these facts are closer to Callahan and Spruell. The State’s evidence boils down to mere proximity. While there is evidence that a crime was committed, the State did not succeed in clearly associating the crime with George. Cf. State v. Grande, 164 Wn.2d 135, 187 P.3d 248 (2008). We hold the evidence insufficient to sustain a finding that George either used the pipe to smoke marijuana or that he constructively possessed the pipe and its contents.

¶38 The convictions are reversed and remanded for dismissal with prejudice.

Lau, J., concurs.

[1] 1 We liberally construe the subsection reference as “i” even though the officer’s handwriting makes it appear to be an “L” on first glance. Our analysis does not depend on a resolution of whether this figure is an “L” or an “i.”