FILED JANUARY 19, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 34056-2-111 ) Respondent, ) ) V. ) UNPUBLISHED OPINION ) WENDELL L. MUSE, ) ) Appellant. )
LAWRENCE-BERREY, J. -Wendell Muse appeals his conviction for possession of
methamphetamine. He argues that RCW 69.50.4013 violates the Eighth and Fourteenth
Amendments to the United States Constitution because it makes it a felony to possess
drug residue without a culpable mental state. He also challenges the constitutionality of
the trial court's reasonable doubt instruction. We disagree with his arguments and affirm.
FACTS
On April 14, 2015, Mr. Muse returned to his apartment after receiving a call that it
was on fire. Officer Holly Baynes responded to the fire. She asked Mr. Muse for
identification. She ran his identification in the law enforcement database and learned that
Mr. Muse had an outstanding arrest warrant. She then arrested Mr. Muse and searched No. 34056-2-III State v. Muse
him incident to arrest. She found a glass pipe in his pocket and noticed a white powdery
substance in the bowl part of it.
The State charged Mr. Muse with possession of methamphetamine. At trial, the
scientist from the Washington State Patrol Crime Laboratory testified that he received the
pipe and it had a "white residue" in it. Report of Proceedings (RP) at 30. He testified he
analyzed the white residue and determined it contained methamphetamine.
Mr. Muse claimed the pipe belonged to his girlfriend, and he had placed the pipe
in his pocket because he was worried about her drug use. His defense was that he did not
know there was any methamphetamine in the pipe.
The trial court instructed the jury regarding the State's burden of proof and
reasonable doubt. The trial court gave an instruction based on Washington Pattern Jury
Instruction: Criminal (WPIC) 4.01 in defining reasonable doubt:
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. If, 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 11. Mr. Muse did not object to this instruction.
The jury convicted Mr. Muse, and he filed a timely appeal.
2 No. 34056-2-111 State v. Muse
ANALYSIS
A. CONSTITUTIONALITY OF RCW 69.50.4013
Mr. Muse argues that RCW 69.50.4013 violates the Eighth Amendment to the
United States Constitution's prohibition of cruel and unusual punishment and the
Fourteenth Amendment's guarantee of due process because it makes possession of drug
residue a felony without requiring any culpable mental state.
RCW 69.50.4013 makes it unlawful to possess a controlled substance without a
valid prescription or as otherwise authorized. This statute prohibits possessing any
amount of a controlled substance, including residue. State v. Schmeling, 191 Wn. App.
795, 797 n.2, 365 P.3d 202 (2015). This statute also contains no mens rea requirement.
State v. Bradshaw, 152 Wn.2d 528, 539, 98 PJd 1190 (2004).
This court reviews the constitutionality of a statute de novo. Schmeling, 191 Wn.
App. at 798. A statute is presumed to be constitutional, and the party challenging the
constitutionality of a statute must prove its unconstitutionality beyond a reasonable doubt.
Id.
1. Eighth Amendment Challenge
The Eighth Amendment to the United States Constitution prohibits cruel and
unusual punishment. There are two types of Eighth Amendment analyses:
3 No. 34056-2-III State v. Muse
( 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 v. Florida, 560 U.S. 48, 59-60, 130 S. Ct. 2011, 176 L. Ed. 2d 825
(2010) (holding that juvenile offenders cannot be sentenced to life imprisonment without
parole for nonhomicide offenses). The categorical analysis addresses whether a particular
punishment is categorically unconstitutional given the nature of the offense or the
characteristics of the offender. Id. at 60. The categorical analysis involves two steps: the
court first determines "whether there is a national consensus against the sentencing
practice at issue," and if so, the court then exercises its own independent judgment in
determining whether the punishment is unconstitutional in light of the culpability of the
offenders and the severity of the punishment. Id. at 61, 67. Mr. Muse brings his Eighth
Amendment challenge solely under the categorical analysis.
Division Two of this court recently addressed an identical Eighth Amendment
categorical challenge to RCW 69.50.4013 in Schmeling, 191 Wn. App. at 799-800. Like
Mr. Muse argues in this case, Mr. Schmeling also argued that Graham required the court
to find RCW 69.50.4013 unconstitutional as applied because it makes possessing drug
residue without any culpable mental state a felony. Id. at 800-01. The Schmeling court
rejected this argument, reasoning that the United States Supreme Court has only applied
4 No. 34056-2-III State v. Muse
the Eighth Amendment categorical analysis to death penalty cases and cases involving life
imprisonment for juveniles. Id. at 800. Because Graham "did not hold or even suggest
that the categorical approach should be applied to all adult sentences under the Eighth
Amendment," the Schmeling court declined to apply it to punishment of adult drug
offenders in the absence of any authority extending it to cases not involving the death
penalty or juvenile offenders. Id.
Mr. Muse acknowledges Schmeling but argues it was wrongly decided for two
reasons. He first argues that Schmeling erroneously cited State v. Witherspoon, 180
Wn.2d 875, 329 P.3d 888 (2014) for the proposition that the Washington Supreme Court
has "rejected the categorical approach for adult offenders in non-capital cases." Br. of
Appellant at 15. The Schmeling court actually cited Witherspoon for the proposition that
"the holding in Graham was based on the difference between juveniles and adults and the
propriety of sentencing juveniles to life in prison." Schmeling, 191 Wn. App. at 800
(citing Witherspoon, 180 Wn.2d at 890). This was correct. See Witherspoon, 180 Wn.2d
at 890.
Mr. Muse also argues that other jurisdictions have applied the categorical analysis
to adult sentences that do not involve the death penalty. He cites several examples. See
United States v. Williams, 636 F.3d 1229, 1233-34 (9th Cir. 2011) (lifetime supervised
5 No. 34056-2-III State v. Muse
release is constitutional as applied to adult sex offenders); Illinois v. Brown, 2012 IL App
(1st) 091940, ,i,i 58-76, 967 N.E.2d 1004, 359 Ill. Dec. 974 (mandatory life without
parole is constitutional as applied to developmentally disabled adult convicted of murder
under accomplice liability); Iowa v. Oliver, 812 N.W.2d 636, 641-47 (Iowa 2012)
(mandatory life without parole is constitutional as applied to adult convicted of second
statutory rape offense); Kansas v. Mossman, 294 Kan. 901, 925-30, 281 P.3d 153 (2012)
(mandatory lifetime supervision is constitutional as applied to first-time adult sex
offenders).
There is a split of authority-including a split between federal circuits-on the
issue of whether the Eighth Amendment categorical analysis applies to cases not
involving the death penalty or life sentences for juveniles. See Mossman, 294 Kan. at
926-27 (highlighting this split of authority). Because the authorities Mr. Muse cites are
not binding, we agree with Schmeling's persuasive reasoning and similarly decline to
extend the categorical analysis here. 1
1 The Schmeling court also noted that even if the categorical analysis was applicable, Mr. Schmeling failed to demonstrate a national consensus against punishing the possession of drug residue as a felony. Schmeling, 191 Wn. App. at 800 n.4. The Graham court reasoned that 39 of 50 states did not impose a life without parole sentence for nonhomicide juvenile offenses. See Graham, 560 U.S. at 64. Here, Mr. Muse points to only 18 of 50 states that do not impose a felony sentence for possessing drug residue without a culpable mental state. See Br. of Appellant at 7-8.
6 No. 34056-2-III State v. Muse
2. Due Process Challenge
Mr. Muse also raises a due process challenge to RCW 69.50.4013. Schmeling held
that RCW 69.50.4013 does not violate due process even though it makes possession of
drug residue a felony without requiring any culpable mental state. Schmeling, 191 Wn.
App. at 800-01. The Schmeling court reasoned that the legislature has wide latitude to
create strict liability crimes that do not include a culpable mental state, and that the
Washington Supreme Court has repeatedly stated that the legislature has this authority.
Id. The court further reasoned that the Washington Supreme Court has considered
whether the possession of a controlled substance statute contains a mens rea element
twice, and it concluded both times that the legislature intentionally omitted a mens rea
element and also declined to imply the existence of those elements. Id at 801 (citing
Bradshaw, 152 Wn.2d at 534-38; State v. Cleppe, 96 Wn.2d 373, 380-81, 635 P.2d 435
(1981)).
Mr. Muse acknowledges Schmeling but asks this court not to follow it. He argues
that Cleppe and Bradshaw were only decided on principles of statutory construction and
are not controlling on the question of whether the lack of a mens rea for possession
violates due process. Mr. Muse is correct, but this does not undermine the Schmeling
court's reasoning. The Schmeling court's central point was that a due process challenge
7 No. 34056-2-III State v. Muse
to strict liability crimes lacks historical support in both the United States Supreme Court
and in Washington courts.
Mr. Muse argues that the Schmeling court "failed to articulate a framework for
analyzing due process challenges to strict liability crimes," but this was because Mr.
Schmeling failed to cite any Washington precedent for such a challenge. Br. of Appellant
at 16. Although Mr. Schmeling cited several cases from other jurisdictions holding that
strict liability offenses violate due process, the Schmeling court found them unpersuasive
in light of our Supreme Court's repeated approval of the legislature's authority to adopt
strict liability crimes and the express findings in Bradshaw and Cleppe that the possession
statute contains no mens rea element. See Schmeling, 191 Wn. App. at 802. Because Mr.
Muse cites the same cases from other jurisdictions that Mr. Schmeling did, we find his
argument unpersuasive.
B. REASONABLE DOUBT INSTRUCTION
Mr. Muse argues, for the first time on appeal, that the trial court's reasonable
doubt instruction violated his rights to a jury trial and due process. Specifically, he
contends the language instructing the jury members that they must "have an abiding belief
in the truth of the charge" improperly encouraged the jury to undertake a search for "the
truth." Br. of Appellant at 17.
8 No. 34056-2-III State v. Muse
A party generally waives an issue on appeal when he or she fails to raise the issue
at trial. RAP 2.5(a). An exception exists for a claim of manifest error affecting a
constitutional right. RAP 2.5(a)(3). This exception applies if: (1) the alleged error is
truly of a constitutional magnitude, and (2) the error is manifest. State v. Kalebaugh, 183
Wn.2d 578, 583, 355 P.3d 253 (2015).
1. Constitutional magnitude
Mr. Muse meets the first part of the RAP 2.5(a)(3) test. Whether an instruction
misstates reasonable doubt is an issue of constitutional magnitude. Kalebaugh, 183
Wn.2d at 584.
2. Manifest error
An error is manifest if it had practical and identifiable consequences at trial. Id.
And an error is practical and identifiable if, at the time the error was made, the "trial court
should have known" of the error. Id. As explained below, there was no error, much less
"manifest error."
Our Supreme Court has expressly approved WPIC 4.01 as a correct statement of
the law and has directed trial courts to exclusively use it to instruct juries on the burden of
proof and the definition of reasonable doubt. See State v. Bennett, 161 Wn.2d 303,318,
9 No. 34056-2-III State v. Muse
165 PJd 1241 (2007). Our Supreme Court has also specifically approved the "abiding
belief in the truth" language. State v. Pirtle, 127 Wn.2d 628,658,904 P.2d 245 (1995).
In arguing that the trial court's reasonable doubt instruction impermissibly
encouraged the jury to undertake a search for "the truth," Mr. Muse cites State v. Emery,
174 Wn.2d 741, 278 PJd 653 (2012). In Emery, the prosecutor told the jury in closing
argument that its verdict needed to "' speak the truth'" and then asked the jury to "' speak
the truth'" by finding the defendants guilty. Id. at 751. The Emery court held that these
statements were improper because it is not the jury's role to determine the truth of what
happened. Id. at 760. Rather, the jury's role is to determine whether the State has proved
its case beyond a reasonable doubt. Id.
Mr. Muse argues that WPIC 4.01 's "belief in the truth" language is similar to the
prosecutor's impermissible "speak the truth" remarks at issue in Emery. However,
Divisions One and Two have expressly rejected this argument, reasoning that WPIC
4.01 's "belief in the truth" language, when read in context, accurately informs the jury
that its role is to determine whether the State has proved its case beyond a reasonable
doubt. See State v. Jenson, 194 Wn. App. 900, 902, 378 PJd 270, review denied,_ PJd
_, 2016 WL 7166674; State v. Fedorov, 181 Wn. App. 187, 199-200, 324 PJd 784,
review denied, 181 Wn.2d 1009, 335 PJd 941 (2014); see also State v. Kinzle, 181 Wn.
10 No. 34056-2-III State v. Muse
App. 774, 784, 326 P.3d 870 (reasoning that the "belief in the truth" language "merely
elaborates on what it means to be 'satisfied beyond a reasonable doubt'"), review denied,
181 Wn.2d 1019, 337 P.3d 325 (2014). While the prosecutor's remarks in Emery
suggested that the jury's role was to solve the case, the "belief in the truth" language in
WPIC 4.01 correctly invites the jury to weigh the evidence. Jenson, 194 Wn. App. at
902.
Mr. Muse acknowledges these cases but argues they were wrongly decided
because Divisions One and Two wrongly relied on Bennett, 161 Wn.2d 303 and Pirtle,
127 Wn.2d 628. He first argues that the defendants in Bennett and Pirtle argued in favor
of WPIC 4.01. While this is true, it is unclear why this is relevant-it does not change the
Bennett court's approval of WPIC 4.01 or the Pirtle court's approval of WPIC 4.01 's
"belief in the truth" language.
Mr. Muse also argues that the defendants in Bennett and Pirtle never challenged
the constitutionality of the "belief in the truth" language. This is also true, but Divisions
One and Two never cited Bennett or Pirtle for this proposition. Rather, Divisions One
and Two reasoned that the "belief in the truth" language, when read in context, accurately
informs the jury of its role, invites the jury to weigh the evidence, and does not ask the
jury to solve the case.
11 No. 34056-2-III State v. Muse
Although Mr. Muse highlights several differences between Bennett and Pirtle and
the cases from Divisions One and Two, he ultimately fails to explain how Division One's
and Division Two's reasoning is wrong. Accordingly, he fails to establish the trial court's
reasonable doubt instruction was error, much less manifest error.
C. APPELLATE COSTS
Mr. Muse also asks this court to decline to impose appellate costs in its decision
terminating review.
An appellate court has discretion to require a convicted defendant to pay appellate
costs to the State. See RCW 10.73.160(1); RAP 14.2. Generally, "the party that
substantially prevails on review" will be awarded appellate costs, unless the court directs
otherwise in its decision terminating review. 2 RAP 14.2. An appellate court's authority
to award costs is "permissive," and a court may, pursuant to RAP 14.2, decline to award
costs at all. See State v. Nolan, 141 Wn.2d 620, 628, 8 P.3d 300 (2000).
On June 10, 2016, this court issued a "General Court Order" (General Order)
regarding defendants' requests to deny cost awards when the State substantially prevails
2 "A 'prevailing party' is any party that receives some judgment in its favor. If neither party completely prevails, the court must decide which, if either, substantially prevailed." Guillen v. Contreras, 169 Wn.2d 769, 775, 238 P.3d 1168 (2010) (citations omitted) (quoting Riss v. Angel, 131 Wn.2d 612,633,934 P.2d 669 (1997)). Here, the State is the substantially prevailing party.
12 No. 34056-2-III State v. Muse
on appeal. It directs defendants who want this court to exercise its discretion not to
impose appellate costs to make their request, together with citations to legal authority and
references to relevant parts of the record, either in their opening brief or in a motion
pursuant to RAP 17. Mr. Muse has complied with this particular requirement in his
opening brief.
If inability to pay is a factor alleged to support the defendant's request, the General
Order also requires defendants to include in the appellate record the clerk's papers,
exhibits, and the reports of proceedings relating to the trial court's determination of
indigency and the defendant's current or likely ability to pay discretionary legal financial
obligations. Mr. Muse designated the trial court's order of indigency with the clerk's
papers and the transcript of his sentencing hearing. 3 However, the General Order requires
defendants to file a report as to continued indigency with this court no later than 60 days
after they file their opening briefs. Although Mr. Muse's opening brief was filed one
month after the General Order went into effect, Mr. Muse has not complied with this
requirement. Because Mr. Muse has not complied with the court's General Order, we
will not exercise our discretion to waive appellate costs.
3 The transcript indicates that Mr. Muse is capable of working and has worked his entire life, but also indicates that he was unemployed at the time of sentencing and also lost many of his possessions in the house fire.
13 No. 34056-2-III State v. Muse
Mr. Muse asks this court to not impose appellate costs because the trial court
found him indigent for purposes of appeal. While orders of indigency entered pursuant to
RAP 15.2 allow criminal defendants to pursue appeals at public expense, they do not
prevent the State from attempting to recoup costs if the defendant's appeal is
unsuccessful. See generally State v. Obert, 50 Wn. App. 139, 143, 747 P.2d 502 (1987).
Mr. Muse also asks this court to not impose appellate costs because the problems
recognized in State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015) apply equally to
appellate costs. However, unlike RCW 10.01.160(3), which was at issue in Blazina, the
statute authorizing appellate costs does not require an inquiry into the defendant's
financial resources before appellate costs are imposed. See RCW 10.73.160; State v.
Sinclair, 192 Wn. App. 380,389, 367 P.3d 612, review denied, 185 Wn.2d 1034, 377
P.3d 733 (2016). This argument, while persuasive, is an appeal to this court's discretion,
the exercise of which this court has already delineated in its General Order.
Because Mr. Muse has not complied with this court's General Order, we
tentatively award costs to the State as the substantially prevailing party on appeal. But
should Mr. Muse file a statement that comports with our June General Order within 14
days of the filing of this decision, we direct our commissioner to allow the late statement
14 No. 34056-2-III State v. Muse
and consider his motion. If Mr. Muse does not file such a statement within 14 days, the
State thereafter has 10 days to file a cost bill with this court pursuant to RAP 14.4(a).
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.
j I CONCUR:
Pennell, J.
15 No. 34056-2-111
FEARING, C.J. (concurring)- I concur in all rulings of the majority. I write
separately because I question the soundness of the ruling that finding a person guilty of
possession of a controlled substance, when authorities capture one with a minute amount
of the controlled substance, does not violate the due process clause.
The majority grounds its ruling, in response to Wendell Muse's due process claim,
on State v. Schmeling, 191 Wn. App. 795, 365 P.3d 202 (2015). In Schmeling, this court
held that convicting an accused under RCW 69.50.4013, the possession of controlled
substance statute, does not violate the due process clause.
When rejecting a due process challenge to the controlled substance act, the
Schmeling court relied on State v. Bradshaw, 152 Wn.2d 528, 532, 98 P.3d 1190 (2004)
and State v. Cleppe, 96 Wn.2d 373,635 P.2d 435 (1981). In each decision, our state high
court held that the State need not show any mens rea under RCW 69.50.4013. In
Bradshaw, the court also addressed a constitutional challenge from Donald Bradshaw and
coappellant by writing: No. 34056-2-III State v. Muse
Defendants argue that Cleppe's interpretation of the mere possession statute is unconstitutional because the statute is vague, criminalizes innocent behavior, and adversely affects the right to intrastate and interstate travel. Defendants also contend that the doctrine of dominion or control is unconstitutionally vague. The party asserting that a statute is unconstitutionally vague must prove vagueness beyond a reasonable doubt. City ofSeattle v. Eze, 111 Wn.2d 22, 26, 759 P.2d 366 (1988). Defendants fail to meet this standard and offer little analysis to support any of their constitutional arguments. As the Court of Appeals stated: Bradshaw and Latovlovici also assert that without a scienter element, RCW 69.50.401 is unconstitutionally vague and violative of substantive due process principles. But they have not adequately briefed these arguments. They fail to explain how persons of ordinary intelligence would not understand what the statute prohibits, nor do they cite any relevant authority to show how the statute violates substantive due process. Such "' naked castings into the constitutional sea are not sufficient to command judicial consideration and discussion.' " [State v.] Bradshaw, [117 Wn. App. 1019], 2003 WL 21322200, at *2, 2003 Wash. App. LEXIS 1142 [aff'd, 152 Wn.2d 528] (quoting In re Pers. Restraint ofRosier, 105 Wn.2d 606,616, 717 P.2d 1353 (1986) (quoting United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir.1970))).
State v. Bradshaw, 152 Wn.2d at 539.
In State v. Cleppe, the high court also held that neither intent nor guilty knowledge
is an element of the crime of possession of a controlled substance. The court did not
entertain any constitutional argument.
State v. Schmeling's reliance on the two Supreme Court decisions is shaky.
Bradshaw summarily dismissed the due process challenge principally because of
inadequate briefing, cleverly characterized as naked castings. Cleppe does not answer
any due process question. 2 No. 34056-2-III State v. Muse
In State v. Schmeling, the defendant cited United States v. Wulff, 758 F.2d 1121
(6th Cir. 1985), and Louisiana v. Brown, 389 So. 2d 48 (La. 1980), wherein the
respective courts reversed, on constitutional grounds, convictions of crimes without a
mens rea. In his brief, Wendell Muse cites numerous foreign decisions, wherein the
respective courts held that one cannot be convicted of possession when found with trace
amounts of a controlled substance or when one lacks knowledge of his or her possession.
I would welcome our state high court thoroughly addressing whether convicting
one of possession of a controlled substance, when one unknowingly possesses trace
amounts of the substance, violates either the state or federal due process clause. In the
meantime, I will follow our holding in State v. Schmeling.
Fe~ 1 j-: