Filed Washington State Court of Appeals Division Two IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON December 15, 2015 DIVISION II STATE OF WASHINGTON, No. 46218-4-II
Respondent,
v.
RICHARD SCHMELING, PART PUBLISHED OPINION
Appellant.
MAXA, J. — Richard Schmeling appeals his conviction under RCW 69.50.4013 for
possession of a controlled substance. He argues that RCW 69.50.4013 is unconstitutional as
applied under the Eighth Amendment and under the Fourteenth Amendment’s due process clause
because the statute makes possession of very small amounts of a controlled substance a felony
without requiring a culpable mental state; i.e., knowledge of possession or intent to possess. We
disagree. In the unpublished portion of this opinion, we reject Schmeling’s additional
arguments. Accordingly, we affirm Schmeling’s conviction and sentence.
FACTS
As part of a theft investigation, law enforcement officers searched Schmeling’s car and
uncovered two small baggies that contained white residue. The residue was tested and turned out
to be methamphetamine. The State charged Schmeling with possession of a controlled
substance.1
Schmeling’s first trial ended in a mistrial because of a hung jury. On retrial, the jury
convicted Schmeling of possession of a controlled substance. Schmeling appeals his conviction.
1 Schmeling also was charged with and convicted of theft. However, he does not appeal his theft conviction. No. 46218-4-II
ANALYSIS
Schmeling argues that RCW 69.50.4013 violates the Eighth Amendment prohibition of
cruel and unusual punishment and the Fourteenth Amendment’s guarantee of due process
because it makes possession of drug residue2 a felony without requiring any culpable mental
state. We disagree.
A. STANDARD OF REVIEW
We review constitutional challenges de novo. In re Welfare of A.W. & M.W., 182 Wn.2d
689, 701, 344 P.3d 1186 (2015). Statutes are presumed constitutional. Id. The challenger bears
the heavy burden of convincing the court that there is no reasonable doubt that the statute is
unconstitutional. Id.
B. EIGHTH AMENDMENT CHALLENGE
The Eighth Amendment to the United States Constitution prohibits cruel and unusual
punishment. The basic concept of the Eighth Amendment is that punishment for a crime must be
proportionate to the offense. Graham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 176 L. Ed. 2d
825 (2010). There are two types of Eighth Amendment analysis: (1) determining whether a
sentence is disproportionate to the particular crime, and (2) using categorical rules to define
constitutional standards for certain classes of crimes or offenders. Graham, 560 U.S. at 59-60.3
2 Schmeling emphasizes that he was convicted of possessing “drug residue” rather than a larger amount of methamphetamine. Under Washington law, possession of any amount of a controlled substance will support a conviction. State v. Higgs, 177 Wn. App. 414, 436-38, 311 P.3d 1266 (2013), review denied, 179 Wn.2d 1024 (2014). 3 Article I, section 14 of the Washington Constitution also prohibits cruel punishment. Our Supreme Court applies four factors in determining whether punishment is prohibited as cruel under article I, section 14. State v. Witherspoon, 180 Wn.2d 875, 887, 329 P.3d 888, as amended, (Aug. 11, 2014). However, because Schmeling relies only on the Eighth Amendment, we do not apply the article I, section 14 analysis.
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We hold that the first approach does not support Schmeling’s claim and the second approach is
inapplicable here.
1. Proportionality Analysis
Many Eighth Amendment cases address whether a particular punishment is
disproportionate to the crime. Id. The Eighth Amendment “does not require strict
proportionality between crime and sentence” and “forbids only extreme sentences that are
‘grossly disproportionate’ to the crime.” Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S. Ct.
2680, 115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring). The Court has shown a reluctance to
review legislatively mandated sentences. Rummel v. Estelle, 445 U.S. 263, 274, 100 S. Ct. 1133,
63 L. Ed 2d 382 (1980). As a result, successful challenges to the proportionality of sentences are
“exceedingly rare.” Id. at 272.
Here, Schmeling does not challenge the length of his sentence. Instead, he argues that
classifying possession of small amounts of a controlled substance as a felony without a mens rea
requirement constitutes cruel and unusual punishment. Our Supreme Court rejected a similar
argument in State v. Smith, 93 Wn.2d 329, 345, 610 P.2d 869 (1980). Smith was convicted of
possession of more than 40 grams of marijuana, which was punished as a felony. Id. at 332. He
argued that the seriousness of the offense did not warrant classifying his crime as a felony. Id. at
342. The court rejected Smith’s argument, noting that it was unaware of any authority
supporting the proposition that classification alone could constitute cruel and unusual
punishment. Id. at 342, 345. The court also held that Smith’s actual sentence was not grossly
disproportionate to his offense. Id. at 344-45.
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Under the traditional proportionality analysis, Smith controls. Classification of a crime as
a felony despite the absence of a mens rea requirement does not result in grossly disproportionate
punishment.
2. Categorical Analysis
The second type of Eighth Amendment analysis addresses whether a particular
punishment is categorically unconstitutional given the nature of the offense or the characteristics
of the offender. Graham, 560 U.S. at 60. This analysis involves two steps. First, the reviewing
court considers “ ‘objective indicia of society’s standards, as expressed in legislative enactments
and state practice’ to determine whether there is a national consensus against the sentencing
practice at issue.” Id. at 61 (quoting Roper v. Simmons, 543 U.S. 551, 572, 125 S. Ct. 1183, 161
L. Ed. 2d 1 (2005)). Second, the reviewing court considers precedent and its own understanding
and interpretation of the Eighth Amendment to determine in the exercise of its own independent
judgment whether the punishment is unconstitutional. Graham, 560 U.S. at 611.
Schmeling argues that we should apply the categorical approach here. However, until
Graham, the only cases the United States Supreme Court had addressed under this classification
involved the death penalty. Id. at 60. In Graham, the Court applied the categorical approach in
holding that the Eighth Amendment prohibits the imposition of a life sentence without the
possibility of release on a juvenile offender who did not commit homicide. Id. at 61-62, 82. As
our Supreme Court has recognized, the holding in Graham was based on the difference between
juveniles and adults and the propriety of sentencing juveniles to life in prison. State v.
Witherspoon, 180 Wn.2d 875, 890, 329 P.3d 888, as amended, (Aug. 11, 2014).
Graham stands for the proposition that the categorical analysis applies to certain
punishments involving juveniles. But the Court did not hold or even suggest that the categorical
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approach should be applied to all adult sentences under the Eighth Amendment. In the absence
of any authority extending the categorical approach to cases not involving the death penalty or
juvenile offenders, we decline to apply the categorical approach to punishment of adult drug
offenders like Schmeling.4
We hold that under Smith, RCW 69.50.4013 does not violate the Eighth Amendment
even though it punishes the possession of small amounts of controlled substances as a felony
without imposing a mens rea requirement.
C. DUE PROCESS CHALLENGE
The Fourteenth Amendment to the United States Constitution provides that no state may
deprive a person of liberty without due process of law. We hold that RCW 69.50.4013 does not
violate due process even though it makes possession of drug residue a crime without requiring
any culpable mental state.
Strict liability crimes – crimes with no mens rea requirement – do not necessarily violate
due process. “We do not go with Blackstone in saying that ‘a vicious will’ is necessary to
constitute a crime, for conduct alone without regard to the intent of the doer is often sufficient.
There is wide latitude in the lawmakers to declare an offense and to exclude elements of
knowledge and diligence from its definition.” Lambert v. California, 355 U.S. 225, 228, 78 S.
Ct. 240, 2 L. Ed. 2d 228 (1957) (citation omitted). Our Supreme Court repeatedly has stated that
the legislature has the authority to create strict liability crimes that do not include a culpable
4 Even if the categorical analysis was applicable, Schmeling fails to demonstrate that there is a national consensus against the challenged sentencing practice. In Graham, the juvenile offender was able to show that 39 states did not impose a life without parole sentence for non-homicide juvenile offenses. Here, Schmeling can point to only 19 states that do not impose a felony sentence for residue controlled substance possession. Therefore, while Schmeling presents some indicia of states following the standard he asks us to adopt, he has failed to demonstrate that there is a national consensus for that sentencing standard.
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mental state. State v. Bradshaw, 152 Wn.2d 528, 5322, 98 P.3d 1190 (2004); State v. Anderson,
141 Wn.2d 357, 361, 5 P.3d 1247 (2000); State v. Rivas, 126 Wn.2d 443, 452, 896 P.2d 57
(1995).
Our Supreme Court twice has directly addressed whether the elements of possession of a
controlled substance under prior versions of RCW 69.50.4013 contains a mens rea element.
Bradshaw, 152 Wn.2d 528; State v. Cleppe, 96 Wn.2d 373, 635 P.2d 435 (1981). In both cases,
the court held that the legislature deliberately omitted knowledge and intent as elements of the
crime and that it would not imply the existence of those elements. Bradshaw, 152 Wn.2d at 534-
38; Cleppe, 96 Wn.2d at 380-81; see also State v. Staley, 123 Wn.2d 794, 799, 872 P.2d 502
(1994) (“The State is not required to prove either knowledge or intent to possess” a controlled
substance). The court did not express any concerns in either Bradshaw or Cleppe that allowing a
conviction for the possession of a controlled substance without showing intent or knowledge
somehow was improper.
In Bradshaw, the defendant argued that the possession statute violated due process
because it criminalized innocent behavior. 152 Wn.2d at 539. The court summarily rejected the
argument without discussion, noting that the defendant had offered little analysis in support of
the argument and had failed to cite any relevant authority to show how the statute violated
substantive due process. Id.
Here, Schmeling cites two cases from other jurisdictions holding that a strict liability
offense violated due process. See United States v. Wulff, 758 F.2d 1121, 1125 (6th Cir. 1985);
Louisiana v. Brown, 389 So. 2d 48, 51 (La. 1980). However, given our Supreme Court’s
repeated approval of the legislature’s authority to adopt strict liability crimes and the express
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findings in Bradshaw and Cleppe that the possession of controlled substances statute contains no
intent or knowledge elements, we do not find Schmeling’s authority persuasive.
We hold that RCW 69.50.4013 does not violate due process even though it does not
require the State to prove intent or knowledge to convict an offender of possession of a small
amount of a controlled substance.
We affirm Schmeling’s conviction and sentence.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for
public record in accordance with RCW 2.06.040, it is so ordered.
ADDITIONAL FACTS
Sergeant David Chaney of the Camas Police Department identified Schmeling as the
perpetrator of a theft at a convenience store. Camas police officer Jeffrey Smith subsequently
radioed Chaney to report that he had spotted Schmeling driving downtown. Chaney asked Smith
to stop the car so Chaney could come and interview Schmeling about the theft.
Chaney arrived a few minutes later and saw Schmeling in his car with a female
passenger. Chaney had Schmeling step out of the car and then told Schmeling about the theft
investigation and read him the Miranda5 warnings. Chaney told Schmeling that there was a
surveillance recording of him stealing male enhancement pills. Schmeling admitted to Chaney
that he had stolen the pills.
Chaney arrested Schmeling for the theft and put him in Smith’s patrol car, which was
parked behind Schmeling’s car. Chaney asked Schmeling whether he still had any of the pills
5 Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
7 No. 46218-4-II
left. Schmeling said he had consumed the pills, but Chaney asked for permission to search
Schmeling’s car for any remaining stolen property. Schmeling agreed to the search, and Chaney
read him Ferrier6 warnings describing his right to refuse, revoke, or limit consent. Schmeling
said he understood his rights and agreed to the search.
Smith then conducted the search of Schmeling’s car while Schmeling remained in the
patrol car. Chaney rolled the patrol car window down and stood near Schmeling so he could
hear if Schmeling wanted to stop or limit the search.
Smith found a blue bag in the car. The bag contained empty male enhancement pill
packing and a fanny pack that contained a glass pipe, a scale, marijuana, and two small baggies
with white residue. The residue was tested and turned out to be methamphetamine.
Schmeling moved to suppress the items found during the search of his car. The trial
court denied the motion.
At sentencing, the court imposed legal financial obligations (LFO) of $800 in costs for
court appointed attorney fees.
Schmeling argues that the trial court erred in denying his motion to suppress
methamphetamine found in a search of his car because he did not voluntarily consent to the
search, and the search of the bag and fanny pack inside the car exceeded the scope of any
consent. In a statement of additional grounds (SAG), Schmeling asserts that the trial court erred
in rehearing the State’s motion for a continuance and that the evidence had been tampered with
6 State v. Ferrier, 136 Wn.2d 103, 118-19, 960 P.2d 927 (1998).
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between his first trial and his second trial. Finally, Schmeling argues the trial court erred in
imposing LFOs without a prior finding of his ability to pay. We reject Schmeling’s arguments.
A. MOTION TO SUPPRESS METHAMPHETAMINE
Schmeling argues that the methamphetamine evidence was seized in violation of his
rights under the Fourth Amendment of the United States Constitution and article I, section 7 of
the Washington Constitution because he did not freely and voluntarily consent to the search of
his car, and the search of the bag and fanny pack inside the car exceeded the scope of any
consent. We disagree.
1. Legal Principles
Both the Fourth Amendment and article I, section 7 prohibit warrantless searches unless
an exception applies. State v. Weller, 185 Wn. App. 913, 922, 344 P.3d 695, review denied, 183
Wn.2d 1010 (2015). The State has the burden of showing that an exception to the warrant
requirement applies by clear and convincing evidence. State v. Green, 177 Wn. App. 332, 340,
312 P.3d 669 (2013).
One of the exceptions to the warrant requirement is consent. State v. Monaghan, 165
Wn. App. 782, 788, 266 P.3d 222 (2012). Valid consent must be freely and voluntarily given by
a person with authority to consent, and the search must not exceed the scope of the consent
given. Id. at 788-89.
When reviewing a trial court’s denial of a suppression motion, we determine whether
substantial evidence supports the trial court’s findings of fact and whether the findings support
the conclusions of law. Weller, 185 Wn. App. at 922. Substantial evidence exists when the
record contains sufficient evidence to persuade a fair-minded, rational person of the truth of the
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finding. State v. Dancer, 174 Wn. App. 666, 670, 300 P.3d 475 (2013), review denied, 179
Wn.2d 1014 (2014). Any unchallenged findings of fact are verities on appeal. Id.
We review de novo the trial court’s legal conclusion that the warrantless search of a
vehicle did not violate the constitution. Monaghan, 165 Wn. App. at 789.
2. Voluntary Consent
“Whether consent is free and voluntary is a question of fact determined by the totality of
the circumstances, including (1) whether police gave Miranda warnings before obtaining
consent; (2) the degree of education and intelligence of the consenting person; and (3) whether
the police advised the consenting person of his right to refuse consent.” Dancer, 174 Wn. App.
at 676. Although the three listed factors are essential to the consent analysis, no single factor is
determinative, and other relevant facts, such as coercive tactics, should be considered. Id.
Schmeling does not dispute that he was given Miranda warnings or that he was told he
could refuse consent or limit the search. He also does not claim that the officers used coercive
tactics. Nevertheless, Schmeling claims that he did not give voluntary consent under the totality
of the circumstances. He argues that (1) the State presented no testimony regarding his
education and intelligence, (2) his ability to exercise his right to stop or limit the search was
impeded because he could not see the details of Smith’s search and therefore could not evaluate
whether to stop or limit the search when Smith looked at the bags, and (3) he would not have
been able to communicate his desire to stop or limit the search because Smith was out of hearing
range. We reject Schmeling’s arguments.
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First, the record shows that Schmeling’s education and intelligence were considered
during the suppression hearing. The trial court noted in its CrR 3.6 ruling7:
[T]he way it’s being described to me, it appears that the officer is engaged in this type of conversation and is getting appropriate responses without the showing of confusion. [The officer], of course, doesn’t know if [Schmeling] got a high-school education, two years at Clark College after that, or a master’s degree somewhere. But basic commands, conversations — there’s nothing here that I’ve heard that would alert the officer that we may have an issue here about the intelligence level and the ability, intellectually, to consent.
Report of Proceedings (RP) at 34. Although brief, the trial court’s finding was appropriate. The
court in Dancer similarly stated:
Although the police did not specifically ascertain the level of Dancer’s education, [the officer] testified that he had numerous prior experiences with individuals unable to consent and that nothing about this situation indicated to him that Dancer was unable to provide voluntary consent.
174 Wn. App. at 676-77.
Second, Schmeling does not cite any authority to support his argument that his distance
from the search prevents a finding that he voluntarily consented. There is no indication in the
case law that whether the consenting person can actually observe the search is a relevant inquiry
to voluntary consent. What is relevant is whether the officers advised Schmeling of his right to
refuse consent, which they did. Schmeling was told that he could refuse consent and that he
could stop or limit the search at any time.
Third, again Schmeling cites no authority to support his argument that his inability to
communicate with the searching officer prevents a finding that he voluntarily consented. There
is no indication in the case law that whether the consenting person can communicate with the
7 The trial court did not enter written findings of fact and conclusions of law supporting its ruling as required by CrR 3.6(b), but its oral ruling is sufficiently detailed to permit our review. See Weller, 185 Wn. App. at 923.
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searching officer is a relevant inquiry to voluntary consent. In any event, Chaney testified that
he rolled the patrol car window down and stood near Schmeling so he could hear if Schmeling
wanted to stop or limit the search.
Under the totality of the circumstances, Schmeling’s consent was voluntary. He was
given both Miranda and Ferrier warnings. He communicated with the officers appropriately and
clearly, indicating that he had sufficient intelligence to understand his rights. And the fact that
he could not see the search or communicate directly with the searching officer does not negate
his voluntary consent. Accordingly, we hold that Schmeling voluntarily consented to the search
of his car.
3. Scope of the Search
Schmeling argues that there was no evidence that he consented to a search of the bag or
fanny pack found inside his car. We disagree.
“A general and unqualified consent to search an area for particular items permits a search
of personal property within the area in which the material could be concealed.” State v. Mueller,
63 Wn. App. 720, 722, 821 P.2d 1267 (1992). Mueller concerned whether consent to search a
car for guns and drugs permitted the search of a zipped gym bag inside the car. Id. It was
undisputed on appeal that Mueller had given valid consent to a general, unqualified search of his
car for drugs and guns. Id. at 722. Division One of this court held that the search of the gym bag
did not exceed the scope of the consent under either the Fourth Amendment or article I, section 7
because the gym bag reasonably could have contained the objects of the search. Id. at 723-24.
On the other hand, in State v. Monaghan the question was whether opening a locked safe
found in the trunk of a car exceeded the scope of consent to search the trunk. 165 Wn. App. at
789. Monaghan had given an officer consent to search his trunk and chose not to stop or limit
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the search, despite being aware of his right to do so. Id. Inside the trunk the officer found a
small, locked safe that he was able to open using a key retrieved from the driver’s area of the car.
Id. at 790. Division One of this court ruled that consent to search the trunk did not extend to the
locked safe inside of it, noting that locked containers within vehicles have an added expectation
of privacy. Id. at 791. The search of the locked safe without warrant or specific consent violated
Monaghan’s rights under the Washington Constitution. Id.
Mueller applies here rather than Monaghan. Because the bag and fanny pack were not
locked containers, a search of them would not require a warrant or specific consent as was
needed in Monaghan. Whether Schmeling’s consent extended to the bag and fanny pack then
turns on whether they reasonably could have contained the objects of the search: male
enhancement pills. Because both the bag and the fanny pack were large enough to contain the
small pill packets, the consent to search the car for the packets extended to those items within the
car. Therefore, we hold that the search did not exceed the scope of consent.
Because Schmeling voluntarily consented and the search did not exceed the scope of his
consent, we hold that the search did not violate Schmeling’s constitutional rights.
B. SAG CLAIMS
Schmeling presents two arguments in his SAG: (1) the trial court erred in rehearing a
motion for continuance for the retrial, and (2) evidence was tampered with between the first trial
and second trial. We reject both arguments.
1. Motion for Continuance
Schmeling argues that the trial court erred in allowing the State to bring a second motion
for continuance after another judge denied the first motion for continuance. We disagree.
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CrR 8.2 specifies that “CR 7(b) shall govern motions in criminal cases.” CR 7(b) does
not prohibit a second judge’s consideration of a motion after another judge has denied the first
motion. Clark County LR 7(b)(1)(B) prohibits a second judge from considering a motion denied
by another judge based on the same facts, but does allow a subsequent motion before a different
judge based on different facts.
Here, Judge Lewis held the readiness hearing for Schmeling’s retrial on April 3, 2014.
He then heard the State’s motion for continuance based on the unavailability of a State’s witness
and denied the motion. However, Judge Lewis granted the State’s request for supplemental
review the next day by Judge Collier, who presided over the first trial and was scheduled to hear
the retrial.
The State’s second motion contained more facts than the motion previously presented. It
included the fact that the State had made no objection to the defense’s three requests for
continuance and also confirmed that all of the State’s witnesses were available for the proposed
new trial date. Those facts were not presented to Judge Lewis in the initial motion. Because the
State presented different facts in the second motion, the motion did not violate local rules.
Accordingly, we hold that the trial court did not err in allowing the State to bring a second
motion for continuance.
2. Evidence Tampering
Schmeling argues that the trial court erred by (1) admitting evidence that was tampered
with between the first trial and the retrial and (2) denying Schmeling’s motion for dismissal
based on the tampered evidence. We disagree because there is no evidence of tampering.
The record indicates that the small baggies containing methamphetamine remained in the
clerk’s locked exhibit room between Schmeling’s mistrial and retrial. The record does not
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indicate that Schmeling ever moved to dismiss as he asserts in his SAG. The record does
indicate that he moved to exclude the evidence. But the trial court admitted the evidence, finding
that there was no indication that the evidence had been tampered with or was in any way
compromised.8 Accordingly, we reject Schmeling’s assertion.
C. IMPOSITION OF LEGAL FINANCIAL OBLIGATIONS
Schmeling argues that the trial court impermissibly chilled his Sixth Amendment right to
counsel by ordering him to pay LFOs without conducting an inquiry into his present or future
ability to pay. We disagree.
Schmeling asserts that “neither party provided the court with information about Mr.
Schmeling’s present or likely future ability to pay attorney’s fees” and that the trial court
imposed LFOs “without conducting any inquiry into his present or future ability to pay.” Br. of
Appellant at 23. However, the trial court did consider Schmeling’s ability to pay.
At sentencing Schmeling told the trial court he worked in landscaping and remodeling.
Schmeling said he had not been working for a few weeks because he was injured. The State
specifically asked the trial court if it was making a finding regarding future ability to pay LFOs.
The trial court responded:
I am. I mean, he’s just indicated he’s been working some. He hasn’t the last few weeks. There’s no indication to me that he’s not able. I recognize right now he’s not able, but the future, I — I do believe he has the ability to pay legal fees, fines, and costs.
8 Schmeling asserts that the baggies were “clearly tampered with and compromised” and “obviously not in the same shape as it was in first trial.” SAG at 2. The record does not mention the condition of the baggies. Because this argument relies on matters outside the record, we need not consider it. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
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RP at 647. Because Schmeling did provide the trial court with information about his ability to pay
and the trial court made an assessment of Schmeling’s current and future ability to pay before
assigning costs, we reject Schmeling’s LFO challenge.
_____________________________ MAXA, J.
We concur:
_________________________________ BJORGEN, A.C.J.
_________________________________ LEE, J.