State v. Bradshaw
| Citation | 98 P.3d 1190,152 Wash.2d 528 |
| Decision Date | 14 October 2004 |
| Docket Number | No. 74410-6.,74410-6. |
| Parties | STATE of Washington, Respondent, v. Donald Edward BRADSHAW, Petitioner. State of Washington, Respondent, v. Christian S. Latovlovici, Petitioner. |
| Court | United States State Supreme Court of Washington |
Michael John Tario, Tario & Associates, PS, Bellingham, for Petitioner.
Melinda Beth Miller, Laura D. Hayes, Kimberly Anne Thulin, Rosemary Hawkins Kaholokula, Whatcom County Pros. Atty's Office, Philip James Buri, Buri Funston PLLC, Bellingham, for Respondents.
Petitioners Donald Bradshaw and Christian Latovlovici (hereinafter defendants) seek review of an unpublished per curiam Court of Appeals decision affirming their convictions of unlawful possession of a controlled substance. They ask us to overrule State v. Cleppe, 96 Wash.2d 373, 635 P.2d 435 (1981), cert. denied, 456 U.S. 1006, 102 S.Ct. 2296, 73 L.Ed.2d 1300 (1982), and imply a mens rea element into the unlawful possession of a controlled substance statute (hereinafter the mere possession statute).1 We refuse to do so and affirm the Court of Appeals.
Bradshaw, a Canadian citizen, approached the Blaine crossing to enter the United States in a borrowed truck. Border patrol discovered 73.65 pounds of marijuana in a modified propane tank in the truck.
Latovlovici, a commercial truck driver for GLT Transportation in Vancouver, British Columbia, approached the Blaine crossing in a semitrailer loaded with 18 pallets of beer. Border patrol discovered at least 77 pounds of marijuana in the void in front of the pallets.
The State charged Bradshaw and Latovlovici with one count of unlawful possession of a controlled substance (over 40 grams of marijuana) and one count of possession of a controlled substance with intent to deliver. In separate trials, defendants asserted the affirmative defense of unwitting possession. The trial court instructed the juries that defendants had the burden of proving by a preponderance of the evidence that they did not know the marijuana was in their possession. The juries acquitted defendants of the intent to deliver charge; however, the juries rejected defendants' affirmative defense of unwitting possession and convicted them of unlawful possession.
Defendants "appeal[ed] their convictions, arguing that the trial court erred in failing to require the State to prove that they knowingly possessed a controlled substance, and that the evidence was insufficient to prove actual or constructive possession." State v. Bradshaw, noted at 117 Wash.App. 1019, 2003 WL 21322200, at *1 (2003). The Court of Appeals linked the cases and affirmed in an unpublished per curiam opinion. Id. We granted review. State v. Bradshaw, 151 Wash.2d 1009, 89 P.3d 712 (2004).
Should this court overrule Cleppe and imply a mens rea element of knowingly or intentionally into the mere possession statute?
This court reviews statutory construction issues and constitutional issues de novo. City of Redmond v. Moore, 151 Wash.2d 664, 668, 91 P.3d 875 (2004).
The legislature has the authority to create a crime without a mens rea element. State v. Anderson, 141 Wash.2d 357, 361, 5 P.3d 1247 (2000). To determine whether the legislature did so, we consider the language and legislative history of a statute. Id.; State v. Bash, 130 Wash.2d 594, 604-05, 925 P.2d 978 (1996).
As enacted in 1923, the mere possession statute made it a crime to possess an unprescribed controlled substance with the "intent to sell, furnish, or dispose" of it. LAWS OF 1923, ch. 47, § 3. The next iteration of the statute did not include the "intent" language. LAWS OF 1951, 2d Ex.Sess., ch. 22, § 2. In interpreting that revised statute, this court recognized that "[w]hether intent or guilty knowledge is to be made an essential element of this crime is basically a matter to be determined by the legislature." State v. Henker, 50 Wash.2d 809, 812, 314 P.2d 645 (1957). Id.
In 1971, the legislature adopted the Uniform Controlled Substances Act, chapter 69.50 RCW. LAWS OF 1971, 1st Ex.Sess., ch. 308, §§ 69.50.101-608. Section 401(c) of the model uniform act made it a crime to "knowingly or intentionally" possess a controlled substance. UNIF. CONTROLLED SUBSTANCES ACT § 401(c) (1970). Senate Bill 146 included these mens rea words in the section corresponding to section 401(c) of the model uniform act. S.B. 146, 42d Leg., Reg. Sess. (Wash.1971). However, Substitute Senate Bill 146 and Second Substitute Senate Bill 146 did not. SUBSTITUTE S.B. 146, 42d Leg., Reg. Sess. (Wash.1971); SECOND SUBSTITUTE S.B. 146, 42d Leg., Reg. Sess. (Wash.1971). The legislation as passed and enacted as the mere possession statute did not contain the "knowingly or intentionally" language.2
96 Wash.2d 383, 406, 635 P.2d 694 (1981).
In 1981, this court agreed with Division Three and held that the mere possession statute did not contain a mens rea element. Cleppe, 96 Wash.2d at 380-81, 635 P.2d 435. The Cleppe court gave three reasons for its conclusion. Id. First, legislative history showed that the legislature deleted the "knowingly and intentionally" language from the uniform act language which was in the first senate bill. Id. at 380, 635 P.2d 435. Second, the court recognized that any correction must come from the legislature, not the court. Id. Finally, the court recognized that the affirmative defense of unwitting possession "ameliorates the harshness of the almost strict criminal liability our law imposes for unauthorized possession of a controlled substance." Id. at 381, 635 P.2d 435.
Since Cleppe, the legislature has amended RCW 69.50.401 seven times and has not added a mens rea element to the mere possession statute. See LAWS OF 1987, ch. 458, § 4; LAWS OF 1989, ch. 271, § 104; LAWS OF 1996, ch. 205, § 2; LAWS OF 1997, ch. 71, § 2; LAWS OF 1998, ch. 82, § 2; LAWS OF 1998, ch. 290, § 1; LAWS OF 2003, ch. 53, § 331.
Defendants ask us to overrule Cleppe and read a mens rea element into the mere possession statute. Defendants argue that such a conclusion is warranted because (1) RCW 69.50.603 requires uniformity, (2) some mens rea is required, (3) possession is a term of art which requires knowledge and the affirmative defense of unwitting possession improperly shifts the burden of proof, and (4) Cleppe's interpretation of the mere possession statute is unconstitutional. We disagree.
RCW 69.50.603, enacted in 1971 as part of the legislation adopting the Uniform Controlled Substances Act, provides "[t]his chapter shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among those states which enact it." RCW 69.50.603; LAWS OF 1971, 1st Ex. Sess., ch. 308, § 69.50.603. RCW 69.50.603 applies to the whole chapter and its general purpose.
Defendants argue that RCW 69.50.603 requires us to interpret the mere possession statute uniformly with other states that enacted the Uniform Controlled Substances Act. Defendants then ask us to take judicial notice of a 1988 Maryland case, Dawkins v. Maryland, 313 Md. 638, 646-49, 547 A.2d 1041 (1988), which indicated how other states through legislation and case law addressed the mens rea element in their mere possession statutes. Dawkins found that the majority of states require a mens rea element. Dawkins, 313 Md. at 646, 547 A.2d 1041. It also recognized that Washington and North Dakota are the exception. Id. at 647, 547 A.2d 1041 n. 7.
Defendants' arguments are unpersuasive. The legislature passed RCW 69.50.401 and.603 at the same time. LAWS OF 1971, 1st Ex.Sess., ch. 308, §§ 69.50.401, .603. Although RCW 69.50.603 states that the model uniform act is to be read in conformity with other states, the legislature deleted the "knowingly or intentionally" language that was in the model uniform act when it enacted the mere possession statute. In doing so, the legislature made the elements of our crime of mere possession different from the model uniform act's elements. RCW 69.50.603 should not be read to imply a mens rea element into the mere possession statute when the legislature has enacted a statute that deleted the language of the model uniform act. See State v. Jackson, 137 Wash.2d 712, 723, 976 P.2d 1229 (1999)
(). Also, the legislature has not acted to change the Cleppe interpretation of the mere possession statute in the intervening 22 years. State v. Edwards, 84 Wash.App. 5, 12-13, 924 P.2d 397 (1996) (). Under these circumstances, the general desire of the legislature to promote uniform laws as evidenced in RCW 69.50.603 gives way to the legislature's specific direction in the mere possession statute that possession alone—not knowledge or intent to possess—is culpable...
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