FILED APRIL 2, 2019 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STATE OF WASHINGTON, ) ) No. 35384-2-III Respondent, ) ) v. ) ) THOMAS JACKSON BARTON, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, J. — Thomas Barton appeals his convictions for possession of a
controlled substance, resisting arrest, and obstructing a law enforcement officer. We
reject two constitutional challenges to his convictions that this court has repeatedly
rejected before. His challenge to his offender score was waived when his trial lawyer
explicitly agreed with the score, and error, if any occurred, cannot be raised on direct
appeal. We affirm.
FACTS AND PROCEDURAL BACKGROUND
On a spring day in 2017, Ferry County Deputy Sheriff Patrick Rainer was tasked
with serving a protective order on Mr. Barton. When Mr. Barton saw the deputy pull his
patrol vehicle into an area where Mr. Barton was fueling a truck, Mr. Barton stopped No. 35384-2-III State v. Barton
what he was doing and started to run. Although the deputy yelled at Mr. Barton to stop,
and that he was under arrest, Mr. Barton continued to hide or flee until he was
immobilized by the deputy’s stun gun and handcuffed.
In a search incident to arrest, Deputy Rainer retrieved two pocket knives and a
metal marijuana pipe from the pockets of Mr. Barton’s bib overalls. A search of shorts
Mr. Barton was wearing underneath the overalls yielded, among other items, a glass
smoking device that the deputy recognized as a type commonly used to smoke
methamphetamine. The glass smoking device later tested positive for the presence of
methamphetamine. Mr. Barton was charged with possession of a controlled substance,
resisting arrest, use of drug paraphernalia, and obstructing a law enforcement officer.
At Mr. Barton’s jury trial, the forensic scientist who testified to the presence of
methamphetamine in the glass smoking device acknowledged that what she tested was
residue scraped out of the device with a wooden stick. On cross-examination, she
admitted that looking at the device, even closely, one would not have been able to tell
that it contained a controlled substance. She agreed that only by doing the type of testing
she did would one know that the device contained a controlled substance.
Mr. Barton testified in his own defense. He denied knowing that the glass
smoking device was in the pocket of the shorts. He claimed to have borrowed all the
2 No. 35384-2-III State v. Barton
clothing he was wearing from a friend earlier on the day of the arrest, after falling into a
river and soaking his own clothing.
The jury found him guilty of all but the drug paraphernalia offense. At sentencing,
the parties agreed that Mr. Barton’s offender score was four. The criminal history
presented consisted of four adult felonies, for three of which he was sentenced in 2015.
The fourth, a conviction for attempting to elude a pursuing police vehicle, dated back to
2000. He was sentenced to eight months’ incarceration and appeals.
ANALYSIS
Mr. Barton makes three assignments of error. The first two are constitutional
contentions previously rejected by this court. We touch briefly on this court’s history of
rejecting those challenges and then turn to his third assignment of error, which challenges
his offender score.
I. RCW 69.50.4013 DOES NOT VIOLATE THE EIGHTH AMENDMENT OR DUE PROCESS AS APPLIED TO THE POSSESSION OF DRUG RESIDUE
RCW 69.50.4013 makes it unlawful to possess a controlled substance without a
valid prescription or unless otherwise authorized by chapter 69.50 RCW. It contains no
mens rea requirement. State v. Bradshaw, 152 Wn.2d 528, 539, 98 P.3d 1190 (2004).
If the State presents prima facie evidence of possession, “the defendant may . . .
affirmatively assert that his possession of the drug was ‘unwitting, or authorized by law,
3 No. 35384-2-III State v. Barton
or acquired by lawful means in a lawful manner, or was otherwise excusable under the
statute.’” State v. Staley, 123 Wn.2d 794, 799, 872 P.2d 502 (1994) (quoting State v.
Morris, 70 Wn.2d 27, 34, 422 P.2d 27 (1966)). “The defense of ‘unwitting’ possession
may be supported by a showing that the defendant did not know he was in possession of
the controlled substance” or “that he did not know the nature of the substance he
possessed.” Id.
In not requiring the State to prove either knowledge of possession of the substance
or its illicit nature, RCW 69.50.4013 is said to be exceptional. State v. Adkins, 96 So. 3d
412, 429 (Fla. 2012) (Pariente, J., concurring) (identifying Washington and North Dakota
as the only two states to eliminate knowledge entirely from the offense of possession of a
controlled substance; observing that North Dakota thereafter amended its statute to
include “willfulness.”). Mr. Barton argues that beyond being exceptional, the statute
violates the Eighth Amendment to the United States Constitution when applied to simple
possession of drug residue in the absence of any culpable mental state. He argues that
unless we exercise our authority to recognize proof of a culpable mental state as a
nonstatutory element of the crime, RCW 69.50.4013 violates due process by authorizing
a felony conviction for an act the accused person did not cause.
Mr. Barton acknowledges that this court rejected these arguments in 2015 in State
v. Schmeling, 191 Wn. App. 795, 365 P.3d 202, a decision by a Division Two panel. He
concedes that as of the filing of his brief in this appeal, Schmeling had been followed by
4 No. 35384-2-III State v. Barton
Divisions One and Three in State v. Muse, No. 34056-2-III (Wash. Ct. App. Jan. 19,
2017) (unpublished);1 State v. McBride, No. 33139-3-III, slip op. at 3-7 (Wash. Ct. App.
July 12, 2016) (unpublished);2 and State v. Henderson, No. 74136-5-I, slip op. at 21-23
(Wash. Ct. App. Feb. 16, 2016) (unpublished),3 review denied, 186 Wn.2d 1008, 380
P.3d 458 (2016). A panel from Division One again rejected Mr. Barton’s due process
argument in In re Matter of Fuller, No. 76933-2-I, slip op. at 11-13 (Wash. Ct. App. Jun.
18, 2018) (unpublished),4 review denied sub nom. State v. M. F., 191 Wn.2d 1023, 428
P.3d 1177 (2018). Division Two reaffirmed the reasoning of Schmeling in State v.
Holman, No. 46765-8-II, slip op. at 8-10 (Wash. Ct. App. May 3, 2016) (unpublished).5
We recognize that Mr. Barton may wish to preserve arguments that have not yet
been considered by the highest state and federal courts. We reject the arguments again in
this case and see no need to repeat the reasons.
II.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED APRIL 2, 2019 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. 35384-2-III Respondent, ) ) v. ) ) THOMAS JACKSON BARTON, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, J. — Thomas Barton appeals his convictions for possession of a
controlled substance, resisting arrest, and obstructing a law enforcement officer. We
reject two constitutional challenges to his convictions that this court has repeatedly
rejected before. His challenge to his offender score was waived when his trial lawyer
explicitly agreed with the score, and error, if any occurred, cannot be raised on direct
appeal. We affirm.
FACTS AND PROCEDURAL BACKGROUND
On a spring day in 2017, Ferry County Deputy Sheriff Patrick Rainer was tasked
with serving a protective order on Mr. Barton. When Mr. Barton saw the deputy pull his
patrol vehicle into an area where Mr. Barton was fueling a truck, Mr. Barton stopped No. 35384-2-III State v. Barton
what he was doing and started to run. Although the deputy yelled at Mr. Barton to stop,
and that he was under arrest, Mr. Barton continued to hide or flee until he was
immobilized by the deputy’s stun gun and handcuffed.
In a search incident to arrest, Deputy Rainer retrieved two pocket knives and a
metal marijuana pipe from the pockets of Mr. Barton’s bib overalls. A search of shorts
Mr. Barton was wearing underneath the overalls yielded, among other items, a glass
smoking device that the deputy recognized as a type commonly used to smoke
methamphetamine. The glass smoking device later tested positive for the presence of
methamphetamine. Mr. Barton was charged with possession of a controlled substance,
resisting arrest, use of drug paraphernalia, and obstructing a law enforcement officer.
At Mr. Barton’s jury trial, the forensic scientist who testified to the presence of
methamphetamine in the glass smoking device acknowledged that what she tested was
residue scraped out of the device with a wooden stick. On cross-examination, she
admitted that looking at the device, even closely, one would not have been able to tell
that it contained a controlled substance. She agreed that only by doing the type of testing
she did would one know that the device contained a controlled substance.
Mr. Barton testified in his own defense. He denied knowing that the glass
smoking device was in the pocket of the shorts. He claimed to have borrowed all the
2 No. 35384-2-III State v. Barton
clothing he was wearing from a friend earlier on the day of the arrest, after falling into a
river and soaking his own clothing.
The jury found him guilty of all but the drug paraphernalia offense. At sentencing,
the parties agreed that Mr. Barton’s offender score was four. The criminal history
presented consisted of four adult felonies, for three of which he was sentenced in 2015.
The fourth, a conviction for attempting to elude a pursuing police vehicle, dated back to
2000. He was sentenced to eight months’ incarceration and appeals.
ANALYSIS
Mr. Barton makes three assignments of error. The first two are constitutional
contentions previously rejected by this court. We touch briefly on this court’s history of
rejecting those challenges and then turn to his third assignment of error, which challenges
his offender score.
I. RCW 69.50.4013 DOES NOT VIOLATE THE EIGHTH AMENDMENT OR DUE PROCESS AS APPLIED TO THE POSSESSION OF DRUG RESIDUE
RCW 69.50.4013 makes it unlawful to possess a controlled substance without a
valid prescription or unless otherwise authorized by chapter 69.50 RCW. It contains no
mens rea requirement. State v. Bradshaw, 152 Wn.2d 528, 539, 98 P.3d 1190 (2004).
If the State presents prima facie evidence of possession, “the defendant may . . .
affirmatively assert that his possession of the drug was ‘unwitting, or authorized by law,
3 No. 35384-2-III State v. Barton
or acquired by lawful means in a lawful manner, or was otherwise excusable under the
statute.’” State v. Staley, 123 Wn.2d 794, 799, 872 P.2d 502 (1994) (quoting State v.
Morris, 70 Wn.2d 27, 34, 422 P.2d 27 (1966)). “The defense of ‘unwitting’ possession
may be supported by a showing that the defendant did not know he was in possession of
the controlled substance” or “that he did not know the nature of the substance he
possessed.” Id.
In not requiring the State to prove either knowledge of possession of the substance
or its illicit nature, RCW 69.50.4013 is said to be exceptional. State v. Adkins, 96 So. 3d
412, 429 (Fla. 2012) (Pariente, J., concurring) (identifying Washington and North Dakota
as the only two states to eliminate knowledge entirely from the offense of possession of a
controlled substance; observing that North Dakota thereafter amended its statute to
include “willfulness.”). Mr. Barton argues that beyond being exceptional, the statute
violates the Eighth Amendment to the United States Constitution when applied to simple
possession of drug residue in the absence of any culpable mental state. He argues that
unless we exercise our authority to recognize proof of a culpable mental state as a
nonstatutory element of the crime, RCW 69.50.4013 violates due process by authorizing
a felony conviction for an act the accused person did not cause.
Mr. Barton acknowledges that this court rejected these arguments in 2015 in State
v. Schmeling, 191 Wn. App. 795, 365 P.3d 202, a decision by a Division Two panel. He
concedes that as of the filing of his brief in this appeal, Schmeling had been followed by
4 No. 35384-2-III State v. Barton
Divisions One and Three in State v. Muse, No. 34056-2-III (Wash. Ct. App. Jan. 19,
2017) (unpublished);1 State v. McBride, No. 33139-3-III, slip op. at 3-7 (Wash. Ct. App.
July 12, 2016) (unpublished);2 and State v. Henderson, No. 74136-5-I, slip op. at 21-23
(Wash. Ct. App. Feb. 16, 2016) (unpublished),3 review denied, 186 Wn.2d 1008, 380
P.3d 458 (2016). A panel from Division One again rejected Mr. Barton’s due process
argument in In re Matter of Fuller, No. 76933-2-I, slip op. at 11-13 (Wash. Ct. App. Jun.
18, 2018) (unpublished),4 review denied sub nom. State v. M. F., 191 Wn.2d 1023, 428
P.3d 1177 (2018). Division Two reaffirmed the reasoning of Schmeling in State v.
Holman, No. 46765-8-II, slip op. at 8-10 (Wash. Ct. App. May 3, 2016) (unpublished).5
We recognize that Mr. Barton may wish to preserve arguments that have not yet
been considered by the highest state and federal courts. We reject the arguments again in
this case and see no need to repeat the reasons.
II. THE PATTERN “REASONABLE DOUBT” INSTRUCTION, WPIC 4.01, PROPERLY STATES THE LAW
Mr. Barton next challenges language in the reasonable doubt instruction given at
his trial, which was based on the Washington pattern jury instruction. Specifically, he
1 Http://www.courts.wa.gov/opinions/pdf/340562_unp.pdf. 2 Http://www.courts.wa.gov/opinions/pdf/331393.unp.pdf. 3 Http://www.courts.wa.gov/opinions/pdf/741365.pdf. 4 Http://www.courts.wa.gov/opinions/pdf/769332.PDF. 5 Https://www.courts.wa.gov/opinions/pdf/D2%2046765-8-II..pdf.
5 No. 35384-2-III State v. Barton
objects to the pattern instruction’s optional language, used in his case, that “[i]f, from
such consideration, you have an abiding belief in the truth of the charge, you are satisfied
beyond a reasonable doubt.” Clerk’s Papers (CP) at 17; 11 WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.01, at 93 (4th ed. 2016)
(WPIC). He contends the language impermissibly suggests that the jury’s job is to search
for the truth.
In State v. Bennett, 161 Wn.2d 303, 318, 165 P.3d 1241 (2007), the Washington
Supreme Court, exercising its supervisory authority, announced that it had approved
WPIC 4.01 “and conclude that sound judicial practice requires that this instruction be
given until a better instruction is approved.” 161 Wn.2d at 317-18. As recently reiterated
by the Supreme Court, it instructed courts in Bennett “to use the WPIC instruction as it is
a ‘clear, simple, accepted, and uniform instruction.’” State v. Chacon, 192 Wn.2d 545,
552, 431 P.3d 477 (2018) (quoting Bennett, 161 Wn.2d at 318).
Mr. Barton nonetheless argues that decisions following Bennett have made clear
that a jury should not be instructed that its role is to search for the truth, and the objected-
to language in WPIC 4.01 does just that. Appellant’s Opening Br. at 20 (citing State v.
Emery, 174 Wn.2d 741, 278 P.3d 653 (2012)).
Mr. Barton acknowledges that this court, in published decisions by panels of
Division One and Division Two, has rejected this challenge to WPIC 4.01. Appellant’s
6 No. 35384-2-III State v. Barton
Opening Br. at 21 (citing State v. Kinzle, 181 Wn. App. 774, 784, 326 P.3d 870, review
denied, 181 Wn.2d 1019, 337 P.3d 325 (2014); State v. Fedorov, 181 Wn. App. 187, 200,
324 P.3d 784, review denied, 181 Wn.2d 1009, 335 P.3d 941 (2014); and State v. Jenson,
194 Wn. App. 900, 901-03, 378 P.3d 270, review denied, 186 Wn.2d 1026, 385 P.3d 119
(2016)). He concedes that a panel of this division rejected a similar challenge in Muse,
No. 34056-2-III, slip op. at 8-12. The argument was also rejected in State v. Rodriguez-
Perez, No. 33571-2-III, slip op. at 30-31 (Wash. Ct. App. Dec. 7, 2017) (published in
part),6 review denied, 190 Wn.2d 1013, 415 P.3d 1189 (2018); State v. Boyd, 1 Wn. App.
2d 501, 521-22, 408 P.3d 362 (2017), review denied, 190 Wn.2d 1008, 414 P.3d 578
(2018), cert. denied, 139 S. Ct. 639 (2018); State v. Raethke, No. 75079-8-I, slip op. at 3-
5 (Wash. Ct. App. Dec. 26, 2017) (unpublished),7 review denied, 190 Wn.2d 1016
(2018); and State v. Winfrey, No. 50417-1-II, slip op. at 3-4 (Wash. Ct. App. Nov. 14,
2018) (unpublished).8
Again, we recognize that Mr. Barton may wish to preserve the argument, but we
see no need to repeat the reasons we have rejecting it before. We reject it again in this
case.
6 Https://www.courts.wa.gov/opinions/pdf/335712_pub%20in%20part.pdf. 7 Http://www.courts.wa.gov/opinions/pdf/750798.PDF. 8 Https:// www.courts.wa.gov/ opinions/pdf/D2%2050417-1-II%20Unpublished %20Opinion.pdf.
7 No. 35384-2-III State v. Barton
III. ANY ERROR IN CALCULATING THE OFFENDER SCORE WAS WAIVED FOR PURPOSES OF DIRECT APPEAL
For the first time on appeal, Mr. Barton argues that the trial court counted his 2000
felony conviction for attempting to elude a pursing police vehicle toward his offender
score in error, because it should have washed out.
A defendant’s offender score, together with the seriousness level of his current
offense, dictates the standard sentence range used in determining his sentence. RCW
9.94A.530(1). To calculate the offender score, the trial court relies on its determination
of the defendant’s criminal history, which the Sentencing Reform Act of 1981 (SRA),
chapter 9.94A RCW, defines as “the list of a defendant’s prior convictions and juvenile
adjudications, whether in this state, in federal court, or elsewhere.” RCW 9.94A.030(11).
Prior convictions result in offender score “points” as outlined in RCW 9.94A.525. They
will not result in additional points in the offender score if they have “washed out” due to
time spent in the community without committing further crimes.
“In determining the proper offender score, the court ‘may rely on no more
information than is admitted by the plea agreement, or admitted, acknowledged, or
proved in a trial or at the time of sentencing.’” State v. Hunley, 175 Wn.2d 901, 909,
287 P.3d 584 (2012) (quoting RCW 9.94A.530(2)). In this case, defense counsel and the
State agreed on Mr. Barton’s offender score. The following exchange occurred at the
beginning of Mr. Barton’s sentencing hearing:
8 No. 35384-2-III State v. Barton
JUDGE: Okay and so we’re prepared to proceed with sentencing? [DEFENSE COUNSEL]: We are, Judge. JUDGE: And we have an agreed offender score and everything? [DEFENSE COUNSEL]: Your Honor, I believe my client’s score is four. [PROSECUTOR]: And that is the State’s understanding as well.
Report of Proceedings at 299.
The 15-year gap between the first conviction reflected in the criminal history in
Mr. Barton’s judgment and sentence and his other convictions supports the possibility of
a washout. The 2000 conviction was for a class C felony. The maximum sentence for a
class C felony is five years. RCW 9A.20.021(1)(c). Prior convictions for class C
felonies are not included in the offender score if, since the last date of release from
confinement for the conviction, the offender has spent five consecutive crime-free years
in the community. RCW 9.94A.525(2)(c). But the State represents that defense counsel
was aware of intervening misdemeanor convictions that would prevent the conviction
from washing out. Because no objection was made to the offender score, there was no
need for the State to present that evidence at sentencing.
Whether the 2000 conviction should have washed out presents a factual issue that
Mr. Barton waived by failing to raise it. State v. Nitsch, 100 Wn. App. 512, 520, 997
P.2d 1000 (2000). Any evidence that it should have washed out will have to be presented
in a personal restraint petition.
9 No. 35384-2-III State v. Barton
Affirmed.
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.
WE CONCUR: