State v. Cleppe

• Decision Date: 29 October 1981
• Docket Number: 47334-0,Nos. 47310-2,s. 47310-2
• Parties: The STATE of Washington, Petitioner, v. Gerald Paul CLEPPE, Respondent. The STATE of Washington, Petitioner, v. Velma J. SYKES, Respondent.
• Court: Washington Supreme Court

Page 373

96 Wn.2d 373

635 P.2d 435

The STATE of Washington, Petitioner, v. Gerald Paul CLEPPE, Respondent.

The STATE of Washington, Petitioner, v. Velma J. SYKES, Respondent.

Nos. 47310-2, 47334-0.

Supreme Court of Washington, En Banc.

Oct. 29, 1981.

Norman K. Maleng, Pros. Atty., Rebecca J. Roe, James M. Roe, Douglas J. Smith, Deputy Pros. Attys., Seattle, for petitioner.

Edwards & Barbieri, Charles K. Wiggins, Malcolm L. Edwards, Lee, Smart, Cook & Martin, P. S., John W. Schedler, Matson, Watkins & Scott, Chris L. Matson, Daniel T. Scott, Seattle, for respondent.

HICKS, Justice.

In these cases, consolidated on appeal, Gerald P. Cleppe was tried by jury and Velma Sykes by the court. Both were convicted of possession of a controlled substance proscribed by RCW 69.50.401(c), now RCW 69.50.401(d). ¹

On appeal, the Court of Appeals, Division One, reversed Cleppe's conviction on the ground that possession of a controlled substance is a crime mala in se requiring proof of "guilty knowledge" for conviction, which proof was lacking. In the case of Sykes, the matter was remanded to the trial court for a finding of fact as to whether the defendant had "guilty knowledge" of the presence or character of the controlled substance which she was convicted of possessing. Both opinions of the Court of Appeals are unpublished. We granted the State's petition for discretionary review and in both cases we reverse the Court of Appeals.

We are concerned here with two issues. One, confined to Cleppe's case, is whether an unnamed police informant must be disclosed. The other issue, common to both cases, is whether either "intent" or "guilty knowledge" is an element of the crime of possession of a controlled substance. Neither is specifically made so by this state's statute, RCW 69.50.401(c).

May 4, 1977, Seattle police executed search warrants covering the Playhouse Tavern and a 19th Avenue N.E. house, both owned by Cleppe. Probable cause for the warrants was established by an affidavit based upon information supplied the police by two unnamed informants, A and B. The search at the tavern turned up a miniscule amount of cocaine, as the basis for count 1. At the 19th Avenue residence a quantity of marijuana and several amphetamine pills were found, as the bases for counts 2 and 3.

Cleppe was charged with three counts of possession of a controlled substance and subsequently convicted on all counts. At trial, he excepted to the court's refusal to include "knowledge" as an element of the crime charged and offered a curative instruction. The court did, however instruct that if Cleppe's possession was unwitting, he should be acquitted.

A major question presented to the jury was that of constructive possession. Cleppe asserted the marijuana and amphetamine pills belonged to his girlfriend who rented his 19th Avenue house. In connection with this assertion, Cleppe sought disclosure of the identity of informant B. He contended B's testimony would place ownership of the controlled substance found at the 19th Avenue residence in his girlfriend and, thus, negate constructive possession in him. Cleppe denied any knowledge or ownership of the cocaine.

The companion case on appeal arises from the November 30, 1978 execution by Seattle police of search warrants covering two apartments, only one of which is here concerned. There the police found Velma Sykes and in a bedroom her two sleeping children. In a second bedroom a quantity of marijuana was discovered in match boxes stacked on a night stand. In the closet there was wearing apparel for both a man and woman, a man's plaid sport jacket with 100 Valium tablets in a pocket, and additional match boxes of marijuana in a sack on the floor.

Sykes was charged with possession of a controlled substance (marijuana) with intent to manufacture and deliver under RCW 69.50.401(a). Trial was to the court.

At trial, the State relied upon constructive possession to convict, which was the main issue in the case. A major question was whether at the time of execution of the search warrant Sykes was living in the apartment where she was found. It is undisputed that she had in the past resided there with her boyfriend. He was living in the apartment though not present at the time of the search and at trial he testified the drugs were his.

The trial court resolved the issue of constructive possession against Sykes. While she had been charged with possession of a controlled substance with intent to deliver, the State did not prove the element of intent. The court found her guilty only of the lesser included offense of simple possession of a controlled substance.

Sykes challenges as improper the way in which the findings of fact and conclusions of law were entered in her case. Because of that impropriety she asks that the findings not be regarded as verities, though she makes no specific objection to any finding in the Court of Appeals or here. A general assignment of error was made that the court's findings of fact were insufficient to support a judgment of guilty of possession of a controlled substance.

We have carefully reviewed the record. We are satisfied that substantial evidence supports the trial court's finding that Sykes had dominion and control over the premises where marijuana was found and, thus, was in constructive possession of it. The trial court made no finding that she was aware of the presence of marijuana in the apartment or that she had the intent to possess it. That is the basis of her appeal.

Both Cleppe and Sykes contend that guilty knowledge of or intent to possess a controlled substance is an essential element of the crime of simple possession. That element was not proved by the prosecution in either of these cases. Because of that omission, Division One of the Court of Appeals reversed in the one instance and remanded for a further finding in the other.

The Court of Appeals is divided on the matter of guilty knowledge or intent to possess. Division One holds that simple possgnsion of a controlled substance is a crime mala in se and that "guilty knowledge" is a necessary element of the crime. See State v. Hennings, 3 Wash.App. 483, 475 P.2d 926 (1970); State v. Smith, 17 Wash.App. 231, 562 P.2d 659 (1977); State v. Weaver, 24 Wash.App. 83, 600 P.2d 598 (1979). Division Three, on the other hand, has declined to follow Division One and holds that after establishing the nature of the substance and jurisdiction, possession alone, actual or constructive, is the sole element to be proved to convict of the crime of possession of a controlled substance under RCW 69.50.401(c). See State v. Sainz, 23 Wash.App. 532, 596 P.2d 1090 (1979) and State v. Hartzog, 26 Wash.App. 576, 615 P.2d 480 (1980).

This court's cases decided under the prior statute, the uniform narcotic drug act, rather uniformly held that neither "intent" nor "guilty knowledge" was a required element of the crime of simple possession of a narcotic drug. See State v. Henker, 50 Wash.2d 809, 314 P.2d 645 (1957); State v. Boggs, 57 Wash.2d 484, 358 P.2d 124 (1961). The reason, as set forth in Henker, 50 Wash.2d at page 812, 314 P.2d 645, is 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." The court notes that a precursor statute ² contained the words "with intent", which words had been omitted from the current statute, leading conclusively to the view that "(h)ad the legislature intended to retain guilty knowledge or intent as an element of the crime of possession, it would have spelled it out as it did in the previous statute." We are similarly compelled to that view in the cases before us.

The statute concerned in Henker, the predecessor to the current drug statute, read in part:

It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug ...

(Italics ours.) RCW 69.33.230. This statute was repealed in 1971, and replaced by RCW 69.50, the Uniform Controlled Substances Act.

RCW 69.50.401(a) and (c) were amended in 1973 to read:

(a) Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.

(c) 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 professional practice, or except as otherwise authorized by this chapter.

(Italics ours.)

We note that our legislature did not adopt the language of subsection 401(c) of the uniform act:

(c) Except as provided in Section 409, it is unlawful for any person knowingly or intentionally to possess a controlled substance ...

(Italics ours.) 9 U.L.A. 259 (Master ed. 1979). Our opinion turns on the clear manifestation of legislative intent in omitting the key words "knowingly" and "intentionally".

In reviewing the legislative history of this state's version of the Uniform Controlled Substances Act, RCW 69.50, we find it first set out in Senate Bill 146 (1971 Leg.Sess.) (SB 146). Introduced in January 1971, SB 146 followed the uniform act and the words "knowingly or intentionally" were included in subsection 401(c).

After first reading, it was referred to committee where it was replaced by Substitute Senate Bill 146 (SSB 146). The words "knowingly or intentionally" were omitted from subsection 401(c) of the substitute bill. A second Substitute Senate Bill 146 (2d SSB 146) replaced SSB 146. It, too, omitted the words "knowingly or intentionally" from subsection 401(c).

Following passage of 2d SSB 146 by the Senate, it was sent to the House, and though other changes were made in the bill the House continued to omit the words "knowingly or intentionally" from the crime of possession of a controlled substance in ...