Filed Washington State Court of Appeals Division Two
December 15, 2015
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 46618-0-II
Respondent,
v.
TODD ANTHONY BUURMAN, UNPUBLISHED OPINION
Appellant.
LEE, J. — Todd Anthony Buurman was convicted of possession of a controlled substance
and third degree theft. Buurman appeals his convictions and sentence, arguing that (1) the
unwitting possession defense violates his due process rights because it shifts the State’s burden of
proof; (2) the possession of a controlled substance conviction violates his right against cruel and
unusual punishment and his right to due process because it imposes a felony punishment without
establishing a criminal intent; (3) the charging document failed to provide adequate notice of the
theft charge against him; and (4) the trial court erred in assessing two crime victim penalty
assessments against him. No. 46618-0-II
We hold that Buurman’s first three arguments fail because (1) the unwitting possession
does not negate an element of the offense; (2) both our state legislature and our Supreme Court
have decided that a class C felony is a constitutional punishment for strict-liability crimes; and (3)
the charging document alleged all of the requisite elements and necessary facts. However, we
agree with Buurman that the trial court erred in assessing two crime victim penalty assessments
against him. Therefore, we affirm Buurman’s convictions, but remand to the trial court to vacate
one crime victim penalty assessment.
FACTS
Buurman lost his job and home, and had been staying with friends for several weeks.
Around 12:00 p.m. on June 30, 2014, Buurman picked up a pair of his cargo shorts from a pile of
laundry and put them on. Around 9:00 or 10:00 that evening, Buurman walked out of a grocery
store in Clark County without paying for the merchandise he had placed in his cart. A grocery
store employee saw Buurman leave without paying and called the police.
When the police stopped Buurman outside the grocery store, they read him his Miranda1
rights and he admitted to the theft. Buurman was then placed under arrest.
During the search incident to arrest, the police discovered a small baggie containing
methamphetamine in one of the cargo pockets of Buurman’s shorts. Buurman acknowledged to
the police that the shorts were his, but he denied having any knowledge of the baggie or its
contents.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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The State charged Buurman with possession of a controlled substance–methamphetamine
and third degree theft. Buurman asserted the affirmative defense of unwitting possession of a
controlled substance.
Buurman elected to testify in his own defense. He testified that he stole the merchandise
from the grocery store, but again denied having any knowledge of the baggie or its contents.
Pursuant to Buurman’s request, the trial court instructed the jury on Buurman’s affirmative
defense of unwitting possession of a controlled substance. The jury found Buurman guilty of both
charges. The trial court ordered him to pay two victim penalty assessments, both in the amount of
$500: one for the possession conviction and one for the theft conviction. Buurman appeals.
ANALYSIS
A. UNWITTING POSSESSION
Buurman argues the unwitting possession affirmative defense violated his due process
rights by shifting the State’s burden to prove the essential element of constructive possession. He
argues that the unwitting possession negates the element of constructive possession “because a
lack of knowledge cannot coexist with dominion and control over a controlled substance.” Br. of
Appellant at 6. We hold that unwitting possession does not negate an element of the crime because
possession of a controlled substance is a strict liability crime that does not require the possessor’s
knowledge of his possession.
We review constitutional issues de novo. State v. Robinson, 171 Wn.2d 292, 301, 253 P.3d
84 (2011). Due process requires that the State prove every element of the crime charged beyond
a reasonable doubt. 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. W.R., 181 Wn.2d 757, 761-62, 336 P.3d 1134 (2014). An
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affirmative defense “merely ‘excuse[s] conduct that would otherwise be punishable.’” Id. at 762
(quoting Smith v. United States, __ U.S. ____, 133 S. Ct. 714, 719, 184 L. Ed. 2d 570 (2013))
(alteration in original). “But when a defense necessarily negates an element of an offense, it is not
at true affirmative defense, and the legislature may not allocate to the defendant the burden of
proving the defense.” W.R., 181 Wn.2d at 762. “The key to whether a defense necessarily negates
an element is whether the completed crime and the defense can coexist.” Id. at 765.
Buurman was charged with unlawfully possessing a controlled substance in violation of
RCW 69.50.4013(1). RCW 69.50.4013(1)2 states, “It is unlawful for any person to possess a
controlled substance unless the substance was obtained directly from, or pursuant to, a valid
prescription or order of a practitioner while acting in the course of his or her professional practice,
or except as otherwise authorized by this chapter.” “The State is not required to prove either
knowledge or intent to possess, nor knowledge as to the nature of the substance in a charge of
simple possession.” State v. Staley, 123 Wn.2d 794, 799, 872 P.2d 502 (1994).
Possession may be actual or constructive. Id. at 798. “A defendant has actual possession
when he or she has physical custody of the item and constructive possession if he or she has
dominion and control over the item. Dominion and control means that the object may be reduced
to actual possession immediately.” State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002)
(citation omitted). To “ameliorate[] the harshness of [the] strict liability” nature of the crime, a
defendant may assert the affirmative defense of unwitting possession. State v. Bradshaw, 152
Wn.2d 528, 538, 98 P.3d 1190 (2004). “To establish the defense, the defendant must prove, by a
2 Buurman does not allege any of the exceptions in RCW 69.50.4013 apply to him.
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preponderance of the evidence, that his or her possession of the unlawful substance was
unwitting.” State v. Balzer, 91 Wn. App. 44, 67, 954 P.2d 931, review denied, 136 Wn.2d 1022
(1998). The unwitting possession defense “assumes that the State has established a prima facie
showing of ‘possession.’” Staley, 123 Wn.2d at 800.
Here, the trial court instructed the jury that to find Buurman guilty, the State had the burden
to prove: “(1) That on or about June 30, 2014, the defendant possessed a controlled substance
Methamphetamine; and (2) That this act occurred in the State of Washington.” Clerk’s Papers
(CP) at 51 (Jury Instruction 13). The trial court also instructed the jury that “[p]ossession means
having a substance in one’s custody or control”; that possession may be “actual or constructive”;
and on the definitions of actual possession and of constructive possession. CP at 52 (Jury
Instruction 14). Furthermore, the trial court’s instructions provided that in analyzing “dominion
and control,”
Factors that you may consider, among others, include whether the defendant had the immediate ability to take actual possession of the substance, whether the defendant had the capacity to exclude others from possession of the substance, and whether the defendant had dominion and control over the premises where the substance is located. No single one of these factors necessarily controls your decision.
CP at 52 (Jury Instruction 14).
At Buurman’s request, the trial court also instructed the jury on the affirmative defense of
unwitting possession. The trial court’s instruction on the affirmative defense stated:
A person is not guilty of possession of a controlled substance if the possession is unwitting. Possession of a controlled substance is unwitting if a person did not know that the substance was in his possession or did not know the nature of the substance.
CP at 54 (Jury Instruction 16).
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Buurman relies on State v. W.R., 181 Wn.2d 757, to support his claim that the unwitting
possession defense violates due process because the State did not show he had actual possession
and his “lack of knowledge cannot coexist with dominion and control.” Br. of Appellant at 6. In
W.R., the challenged affirmative defense violated the defendant’s due process rights because it
required the defendant to prove consent, which negated the element of forcible compulsion in the
crime of rape by forcible compulsion. 181 Wn.2d at 759.
In support of his assertion that the State relied on a showing of constructive possession,
Buurman cites “See RP generally.” Br. of Appellant at 6. But, Buurman’s citation is not supported
by the record. See e.g. 1 Report of Proceedings (RP) at 128 (the court tells the State and defense
counsel after trial: “There doesn’t appear to me that they’re [the members of the jury] going to
have a lot of disagreement as to whether he possessed the drug. It’s going to be really focused on
the unwitting possession.”). Therefore, Buurman’s challenge fails for lack of support in the record.
See RAP 10.3(a)(5)-(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d
549 (1992); Mills v. Park, 67 Wn.2d 717, 721, 409 P.2d 646 (1966) (“We are not required to search
the record for applicable portions thereof in support of the plaintiffs’ arguments.”).
Even accepting Buurman’s assertion that the State relied on a showing of constructive
possession as true, Buurman’s argument fails because knowledge or intent is not an element of the
crime of unlawful possession of a controlled substance. See RCW 69.50.4013(1); Staley, 123
Wn.2d at 799 (“The State is not required to prove either knowledge or intent to possess, nor
knowledge as to the nature of the substance in a charge of simple possession.”). Showing the
absence of knowledge or intent for the affirmative defense does not negate any element of unlawful
possession of a controlled substance because that crime does not require a showing of knowledge
6 No. 46618-0-II
or intent. Therefore, the completed crime of unlawful possession of a controlled substance, and
the affirmative defense of unwittingly possessing that controlled substance can coexist. And, in
fact, the affirmative defense of unwitting possession, “assumes that the State has established a
prima facie showing of ‘possession.’” Staley, 123 Wn.2d at 800.
Buurman’s argument is further belied by the jury instructions given at his trial. As is
apparent from the jury instructions, Buurman’s knowledge or lack thereof was not considered by
the jury in determining whether he possessed a controlled substance. State v. Anderson, 153 Wn.
App. 417, 428, 220 P.3d 1273 (2009) (holding that this court presumes juries follow the trial
court’s instructions), review denied, 170 Wn.2d 1002 (2010). In contrast, the jury did consider
Buurman’s knowledge when determining if the affirmative defense of unwitting possession should
be applied. Anderson, 153 Wn. App. at 428 (presumption that jurors follow instructions). Thus,
under established case law, and pursuant to the jury instructions given at Buurman’s trial, the
completed crime of unlawful possession of a controlled substance could coexist with the
affirmative defense of unwitting possession because demonstrating the absence of Buurman’s
knowledge would not have negated any element of the crime of unlawful possession of a controlled
substance.
B. CONSTITUTIONALITY OF RCW 69.50.4013
Buurman argues the imposition of a felony as the penalty for a crime without a requisite
mens rea, such as RCW 69.50.4013, violates both the Eighth Amendment’s protection against
cruel and unusual punishment, and the Fourteenth Amendment’s protection of due process. We
disagree because Buurman’s arguments fail to overcome the presumption of validity that
legislatively enacted statutes are afforded. We review challenges to the constitutionality of a
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statute de novo. State v. Shultz, 138 Wn.2d 638, 643, 980 P.2d 1265 (1999), cert. denied, 529 U.S.
1066 (2000).
1. Cruel and Unusual Punishment
“The Eighth Amendment states: ‘Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.’” Graham v. Florida, 560 U.S. 48, 58, 130
S. Ct. 2011, 176 L. Ed. 2d 825 (2010). “The Cruel and Unusual Punishments Clause prohibits the
imposition of inherently barbaric punishments.” Id. at 59. Under the Eighth Amendment, the
punishment for a crime must be proportionate to the offense. Id. at 59. “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.” State v. Schmeling, No. 46218-4-II, slip op. at 2 (Wash. Ct. App.
Dec. 15, 2015).
In Schmeling, we considered arguments very similar to those raised by Buurman.
Schmeling, slip op. at 1-2. During a search of Schmeling’s car, police found two baggies
containing methamphetamine residue. Schmeling, slip op. at 1. Schmeling was convicted of
possession of a controlled substance in violation of RCW 69.50.4013, and on appeal argued that
his conviction violated the Eighth Amendment’s protection against cruel and unusual punishment.
Schmeling, slip op. at 1-2.
The Schmeling court considered his cruel and unusual punishment arguments under both
(1) the “proportionality analysis” and (2) the “categorical analysis.” Schmeling, slip op. at 3, 4.
With respect to the proportionality analysis, we held that “[c]lassification of a crime as a felony
despite the absence of a mens rea requirement does not result in grossly disproportionate
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punishment.” Schmeling, slip op. at 4. And, “we decline[d] to apply the categorical approach to
punishment of adult drug offenders” convicted of possession of a controlled substance under RCW
69.50.4013. Schmeling, slip op. at 5. Therefore, pursuant to our holding in Schmeling, slip op. at
3-5, we hold Buurman’s conviction for possession of a controlled substance does not violate the
Eighth Amendment’s protection against cruel and unusual punishment.3
2. Due Process
Buurman also argues that this court should create the “non-statutory element of requiring
proof of some culpable mental state,” and then reverse Buurman’s conviction because it “would
be based on insufficient evidence, in violation of his right to due process.” Br. of Appellant at 15.
We disagree for the same reasons we rejected this argument in Schmeling, slip op. at 5-7.
Schmeling argued that his conviction under RCW 69.50.4013 violated due process rights
because it imposed strict liability for the possession of a small quantity of drugs that an offender
may not know he or she possessed. Schmeling, slip op. at 1. We rejected that argument and held
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.” Schmeling, slip op. at 7. Pursuant to our holding in Schmeling, we reject Buurman’s
argument and hold that his due process rights were not violated when he was convicted of
possession of a controlled substance under RCW 69.50.4013.
3 Buurman relies only on the Eighth Amendment, thus we do not engage in an analysis of Article I, Section 14 of the Washington Constitution. Schmeling, slip op. at 2, n.3. Furthermore, as in Schmeling, slip op. at 5, n.4, even if the categorical analysis is applicable, Buurman similarly fails to demonstrate a national consensus against the challenged sentencing practice.
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C. CHARGING DOCUMENT
Buurman argues, for the first time on appeal, that his charging document failed to provide
him with adequate notice of the theft charge against him and violated the Fifth and Sixth
Amendments to the United States Constitution and article I, sections 3 and 22 of the Washington
Constitution. Buurman contends that the charging document was vague and that it omitted critical
facts. We disagree because the charging document included all of the elements and critical facts
of the crimes charged.
Buurman’s claim that the charging document was vague fails because he did not request a
“bill of particulars” at trial. “A defendant may not challenge a charging document for ‘vagueness’
on appeal if no bill of particulars was requested at trial.” State v. Leach, 113 Wn.2d 679, 687, 782
P.2d 552 (1989) (quoting State v. Holt, 104 Wn.2d 315, 320, 704 P.2d 1189 (1985)). Thus, because
Buurman did not request a bill of particulars at trial, he may not challenge the vagueness of the
charging document on appeal.
We review a challenge to the sufficiency of a charging document de novo. State v.
Williams, 162 Wn.2d 177, 182, 170 P.3d 30 (2007); State v. Rivas, 168 Wn. App. 882, 887, 278
P.3d 686 (2012). A charging document must allege “‘[a]ll essential elements of a crime,’”
statutory and non-statutory, to provide a defendant with sufficient notice “‘of the nature and cause
of the accusation against him.’” State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013)
(quoting State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991)); U.S. CONST. amend. VI; WASH.
CONST. art. I, § 22). To satisfy this requirement, the information must allege (1) “every element
of the charged offense” and (2) “particular facts supporting them.” State v. Nonog, 169 Wn.2d
220, 226, 237 P.3d 250 (2010); see State v. Simms, 171 Wn.2d 244, 250, 250 P.3d 107 (2011).
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“These legal and factual requirements are designed to give the defendant adequate notice of the
charges so that he or she may prepare a defense.” Rivas, 168 Wn. App. at 887.
When a defendant challenges a charging document’s sufficiency for the first time on
appeal, we construe the document liberally in favor of validity. Rivas, 168 Wn. App. at 887.
In analyzing the sufficiency of an information under this liberal construction, we employ a two-prong test: (1) do the necessary elements appear in any form, or by fair construction can they be found in the information and, if so, (2) can the defendant show he or she was actually prejudiced by the vague or unartful language.
Rivas, 168 Wn. App. at 887. A caveat to our two-prong test exists where “we can neither find nor
fairly imply an essential element of the crime in the charging document,” at which point prejudice
is presumed and reversal is required. Rivas, 168 Wn. App. at 888. This is true even if the defendant
had actual knowledge of all of the essential elements of the crime charged against him. Rivas, 168
Wn. App. at 888.
Buurman argues the charging document omitted “critical facts” because it did not
specifically detail which items he stole from the grocery store. Buurman also argues that the
absence of “critical facts” could subject him to a subsequent prosecution for the same offense in
violation of double jeopardy. Br. of Appellant at 17-19.
The information in the charging document consisted of the following language:
COUNT 02–THEFT IN THE THIRD DEGREE – 9A.56.020(1)(a) / 9A.56.050 / 9A.56.050(1)(a)
That he, TODD ANTHONY BUURMAN, in the County of Clark, State of Washington, on or about June 30, 2014, did wrongfully obtain or exert unauthorized control over the property or services of another, of a value less than $750, with intent to deprive that person of such property or services, to-wit: various items belonging to Safeway; contrary to Revised Code of Washington 9A.56.050(1)(a) and 9A.56.020(1)(a).
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CP at 1. The charging document mirrors the language of every statutory element enumerated in
RCW 9A.56.050(1)(a) and .020(1)(a), and no non-statutory elements are alleged to be missing.
The charging document in this case gave Buurman sufficient notice that he was required to defend
against the charge of third degree theft for stealing items belonging to Safeway, on June 30, 2014,
and the stolen items amounted to less than $750. Consequently, the first prong of the inquiry is
satisfied and we move to the second prong. Rivas, 168 Wn. App. at 887.
The second prong asks whether Buurman has shown he was actually prejudiced by the
alleged unclear charging document. Rivas, 168 Wn. App. at 887. Buurman confessed to having
stolen the items when he was stopped by the police. During trial, Buurman testified that he had
confessed to police. One of the responding officers testified to what items Buurman had stolen.
And, Buurman testified that he stole the items that the police officer described. Thus, Buurman
fails to show prejudice. Moreover, if Buurman is charged in a subsequent proceeding for a similar
offense, it will be clear what items Buurman is charged with stealing and whether any subsequent
proceeding violates double jeopardy. See State v. Greathouse, 113 Wn. App. 889, 904, 56 P.3d
569 (2002) (noting that parol evidence may “‘be introduced for the purpose of identifying the
offense where a plea of former jeopardy is interposed.’” (quoting State v. Easton, 69 Wn.2d 965,
968, 422 P.2d 7 (1966))), review denied, 149 Wn.2d 1014 (2003). Therefore, we hold Buurman
fails to establish he was actually prejudiced, and the second prong of the inquiry fails.
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Because the charging document contained all of the necessary elements of the crime of
third degree theft, the crime with which Buurman was charged, and because Buurman fails to show
he was actually prejudiced by the absence of an enumerated list of stolen items on the charging
document, we hold that Buurman’s challenge to the sufficiency of the charging document fails.
D. VICTIM PENALTY ASSESSMENT
Buurman argues, and the State concedes, that the trial court erred in ordering Buurman to
pay the statutory crime victim penalty assessment twice. We accept the State’s concession.
RCW 7.68.035 authorizes crime victim penalty assessments. In relevant part, RCW
7.68.035(1)(a) provides: “The assessment shall be in addition to any other penalty or fine imposed
by law and shall be five hundred dollars for each case or cause of action that includes one or more
convictions of a felony or gross misdemeanor.”
Buurman was convicted of one felony and one gross misdemeanor pursuant in a single
cause of action. The trial court ordered Buurman to pay the crime victim assessment on the felony
judgement and sentence. The trial court also wrote in $500 as the crime victim penalty assessment
on Buurman’s misdemeanor judgment and sentence form. Pursuant to RCW 7.68.035, requiring
Buurman to pay two crime victim penalty assessments for offenses contained in a single cause of
action was in error. Therefore, we remand to the trial court to vacate one crime victim penalty
assessment.
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We affirm the convictions, but remand to the trial court to vacate one victim penalty
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Lee, J. We concur:
Bjorgen, A.C.J.
Maxa, J.