State v. George
| Decision Date | 13 October 2008 |
| Docket Number | No. 59624-1-I.,59624-1-I. |
| Citation | 146 Wn. App. 906,193 P.3d 693 |
| Parties | STATE of Washington, Respondent, v. Graeme A. GEORGE, Petitioner. |
| Court | Washington Court of Appeals |
Joseph L. Broadbent, Attorney at Law, Mount Vernon, WA, for Petitioner.
Ann Lindsay Stodola, Whatcom County Prosecutors Office, Bellingham, WA, for Respondent.
¶ 1 Appellant Graeme George was convicted of possession of marijuana and possession of drug paraphernalia. The superior court affirmed. We granted discretionary review, and now reverse and remand for dismissal with prejudice. The citation for possession of drug paraphernalia contained insufficient notice of the elements of the crime; the trial judge improperly refused to give an unwitting possession instruction unless George testified; and the evidence was insufficient to show that George had dominion and control over the pipe and its contents.
¶ 2 One evening in March 2005, Washington State Patrol Trooper Brian Thompson stopped a two-door Ford Explorer in Bellingham for driving 43 miles per hour in a 25 mile-per-hour zone. When he walked up to the driver's side of the vehicle and the driver rolled the window down, Trooper Thompson immediately smelled the strong odor of burnt marijuana wafting from the vehicle. There were three men in the vehicle: the driver; the vehicle's registered owner in the front passenger seat; and George. George was in the back seat behind the driver. Trooper Thompson asked whether there was any marijuana in the vehicle. All three denied that there was.
¶ 3 Trooper Thompson placed the occupants under arrest "for the odor of marijuana in the vehicle." He had each of the men step out of the vehicle one at a time, patting them down as he did so. He placed the driver and the registered owner in the back of his patrol car. He handcuffed George and had him stand in front of the vehicle while he searched it.
¶ 4 Trooper Thompson found an eight-inch long, six-and-a-half-inch wide blue glass water pipe among empty beer cans and bottles on the floorboard behind the driver's seat, next to where George had been sitting. There was burned marijuana in the pipe. Trooper Thompson asked the occupants if "somebody wanted to own up" to the pipe. All three denied owning it. Trooper Thompson then took the pipe for entry into evidence, cited all three occupants for possession of marijuana and possession of drug paraphernalia, and booked them into jail. George's citation read that he was charged with:
RCW 69.50.412(i)1
Possession of drug paraphernalia RCW 69.50.401
Possession of marijuana less than 40g.
¶ 5 George was tried in the Whatcom County District Court for both misdemeanor possession of marijuana and misdemeanor possession of drug paraphernalia. He wanted to argue that if found to have possession, it was unwitting. To this end, he sought to have the jury instructed consistent with the pattern unwitting possession instruction, WPIC 52.01. The court refused to give the instruction.
¶ 6 George was convicted on both counts. The superior court affirmed. We granted discretionary review of all three issues raised by George in his appeal to the superior court.
¶ 7 George contends that he was entitled to have the jury instructed on the defense of unwitting possession with respect to the possession of marijuana charge.
¶ 8 The trial court accepted the State's argument that there was insufficient evidence to warrant the instruction unless George testified:
....
[PROSECUTOR]:.... I don't see how defense can try to shoehorn an affirmative defense the State's witness [sic]. I think it's clearly inappropriate.
THE COURT [to defense counsel]: And I am not going to give the instruction unless your client testifies.
At the conclusion of the State's case in chief, George again asked the court to give the unwitting possession instruction. The trial court again refused to do so unless George testified.
¶ 9 George had previously been convicted of making a false statement to a public official. The prosecutor indicated that he planned to introduce the prior conviction to impeach George's credibility should George testify.
¶ 10 George did not testify in his own defense and he did not call any other witnesses. The jury was instructed that George was not required to testify, but was not instructed on his proposed defense of unwitting possession. In closing, the prosecutor argued that it was immaterial whether George knew there was marijuana in the pipe:
[PROSECUTOR]:.... I just want to talk to you about ... things that defense is arguing that don't matter .... you won't find in the jury instructions ... anything about knowledge.... So I would ask you to disregard that argument because it is not in the jury instructions; it is not in evidence.
¶ 11 The law regarding the defense of unwitting possession is well-established. The State has the burden of proving the elements of unlawful possession of a controlled substance as defined in the statute— the nature of the substance and the fact of possession. Defendants then can prove the affirmative defense of unwitting possession. This affirmative defense ameliorates the harshness of a strict liability crime. State v. Bradshaw, 152 Wash.2d 528, 538, 98 P.3d 1190 (2004). Unwitting possession must be proved by a preponderance of the evidence. State v. Balzer, 91 Wash.App. 44, 67, 954 P.2d 931 (1998).
¶ 12 A defendant in a criminal case is "entitled to have the trial court instruct upon its theory of the case if there is evidence to support the theory." State v. Hughes, 106 Wash.2d 176, 191, 721 P.2d 902 (1986). A trial court errs by not instructing the jury on the defense of unwitting possession when evidence supporting the defense is adduced at trial. State v. May, 100 Wash. App. 478, 482-83, 997 P.2d 956 (2000). "In evaluating whether the evidence is sufficient to support a jury instruction on an affirmative defense, the court must interpret it most strongly in favor of the defendant and must not weigh the proof or judge the witnesses' credibility, which are exclusive functions of the jury." May, 100 Wash.App. at 482, 997 P.2d 956. The affirmative defense of unwitting possession "must be considered in light of all the evidence presented at trial, without regard to which party presented it." State v. Olinger, 130 Wash.App. 22, 26, 121 P.3d 724 (2005) (emphasis added).
¶ 13 Here, the testimony of the only witness—Trooper Thompson—provided a wealth of evidence that justified the jury being instructed on the defense of unwitting possession. Trooper Thompson testified that all three vehicle occupants denied knowing anything about any marijuana being present. He testified that George denied knowledge of any marijuana in the vehicle and denied ownership of the pipe. He testified that George was not driving the vehicle and did not own the vehicle; the vehicle owner was present in the front passenger seat. He testified that there was no fingerprint evidence linking George to the pipe. He testified that it was at least theoretically possible that someone in the front seat could have placed the pipe in the back seat after the vehicle was stopped. He testified that he did not know when the pipe had last been used, who placed it on the floorboard, or when it was placed there.
¶ 14 In view of Trooper Thompson's testimony, the trial court erred by concluding that George was required to testify in order to have the jury instructed on his requested defense. Trooper Thompson's testimony provided a sufficient evidentiary basis to warrant the requested instruction. The error was not harmless. This error alone warrants reversal of George's conviction for misdemeanor possession of marijuana.
¶ 15 George contends that his conviction for possession of drug paraphernalia must also be reversed because the citation by which he was charged did not state the elements of the offense of which he was charged.
¶ 16 A person may not be convicted of a crime with which he or she was not charged. Auburn v. Brooke, 119 Wash.2d 623, 627, 836 P.2d 212 (1992). In order to meet this requirement, all of the essential elements of the charged offense, statutory or otherwise, must be included in a charging document in order to afford to the accused the constitutional requirement of notice. State v. Kjorsvik, 117 Wash.2d 93, 97, 812 P.2d 86 (1991). An essential element is one whose specification is necessary to establish the very illegality of the behavior charged. State v. Ward, 148 Wash.2d 803, 811, 64 P.3d 640 (2003).
¶ 17 In Brooke, two defendants were charged by citations issued by police officers—one for "9.40.010(A)(2) Disorderly Conduct," and one for "11.56.420 Hit/Run; Attended." Brooke, 119 Wash.2d at 625-26, 836 P.2d 212. For the first time on appeal, both defendants challenged the constitutional sufficiency of their citations as charging documents. The Supreme Court accepted review of both cases, describing the issue presented as: "Does a misdemeanor or gross misdemeanor citation used as the final charging document in a criminal prosecution satisfy the `essential elements' rule if it states only a numerical code section and the name of a criminal offense?" Brooke, 119 Wash.2d at 627, 836 P.2d 212.
¶ 18 The Supreme Court answered the question in the negative, holding that the essential elements rule applies to all charging documents, including citations used as final charging...
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...... ¶ 44 “Constructive possession cases are fact sensitive.” State v. George, 146 Wash.App. 906, 920, 193 P.3d 693 (2008). To determine if Macias had constructive possession of the drugs, we look at the totality of the circumstances to determine whether it supports a reasonable inference that he had dominion and control over them. State v. Jeffrey, 77 Wash.App. 222, 227, ......
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