State v. Holman

• Decision Date: 03 May 2016
• Docket Number: 46765-8-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. PHYLLIS HOLMAN, Appellant.

STATE OF WASHINGTON, Respondent, v. PHYLLIS HOLMAN, Appellant.

No. 46765-8-II

Court of Appeals of Washington, Division 2

May 3, 2016

UNPUBLISHED OPINION

Bjorgen, C.J.

Phyllis Holman appeals her conviction and sentence for possession of methamphetamine. She argues that her conviction was unconstitutional because the statute defining the crime, RCW 69.50.4013, ^[1] imposes criminal liability and felony punishment without any mens rea (mental state) requirement subject only to an affirmative defense of unwitting possession. She also argues that the State committed prosecutorial misconduct by referring in closing argument to a lack of evidence and that she received ineffective assistance of counsel because her attorney did not object to the argument. In supplemental briefs, Holman argues that the trial court erred by imposing discretionary legal financial obligations (LFOs) without first inquiring into her ability to pay and that she should not be assessed costs on appeal.

We hold that (1) the trial court properly instructed the jury that unwitting possession is an affirmative defense for which the defendant bears the burden of proof, (2) under controlling case law, RCW 69.50.4013 does not violate Holman's constitutional right to due process by imposing severe penalties for a strict liability crime, (3) neither does RCW 69.50.4013 impose cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution (4) the State did not commit prosecutorial misconduct because its argument was not improper, and (5) Holman did not receive ineffective assistance of counsel, because her attorney's performance was not deficient. We also exercise our discretion to consider Holman's LFO challenge, reverse the imposition of discretionary LFOs, and remand for the trial court to make an individualized inquiry into her ability to pay, consistently with State v Blazina, 182 Wn.2d 827, 839, 344 P.3d 680 (2015) and RCW 10.01.160(3), before imposing any discretionary LFOs. Finally, we decline to impose appellate costs on Holman. Accordingly, we affirm Holman's conviction, reverse the imposition of discretionary LFOs, and remand for consideration of whether discretionary LFOs should be imposed.

FACTS

On March 15, 2014, Holman brought her sister to her home in Longview, where Holman and her teenage daughter lived. When they arrived, Holman's daughter was hosting 10 to 14 other teenagers. Pursuant to a "house rule, " the guests had placed their bags and backpacks near a couch in the living room. Report of Proceedings (RP) at 102-03. Holman put her own bag, a gold-colored tote bag, in the same general area. At some point, Holman's sister saw one of the guests reach down into one of the bags.

Later that day, Holman took her bag and went with her sister to a grocery store at which police were subsequently called to investigate whether Holman was using counterfeit money. An officer asked to search her bag and, after Holman consented, found a substance that appeared to be methamphetamine. The officer arrested Holman and seized the bag. Later chemical analysis revealed that the substance was methamphetamine.

The State charged Holman with possession of methamphetamine in violation of RCW 69.50.4013. The case initially produced a mistrial, but was later retried before a jury.

At trial, Holman and her sister testified that Holman's purse was among some six purses and ten backpacks in Holman's living room. Holman told the jury that all of the purses and backpacks were positioned "[a]t the end of the couch in front of the window" in a "pretty big area." RP at 105, 108. Holman also stated that "[t]here were three [bags] that were gold at the end of the couch." RP at 104. This was the only evidence she presented as to her bag's location and the relative proximity of the couch and the other bags.

Holman proposed an instruction on the defense of unwitting possession. That instruction, which the trial court gave to the jury as instruction 9, read:

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 her possession.

The burden is on the defendant to prove by a preponderance of the evidence that the substance was possessed unwittingly. Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true.

Clerk's Papers (CP) at 16. Holman's case was focused on establishing this defense. She argued that the jury could infer that the guest whom Holman's sister saw reach into a bag may have placed the methamphetamine in Holman's bag without Holman's knowledge.

In closing argument, the State addressed unwitting possession, directing the jury's attention to the testimony regarding the bag's location:

[T]he area of this – of the area, sort of the jail for the purses, we've got the couch here going this way, and we've got an area from here to here where these, I believe, ten backpacks and six purses are being kept. And the couch is over here. Now we've heard that when they came in everything was orderly, everything was placed. This wasn't just a huge jumbled pile, that everything was kind of set out nicely. . . . Now, there's no testimony of where the Defendant's bag was. We've got the couch here, we have no idea in this space where her bag was. There was no evidence about that. Was her bag here? And the teenager over here flopped her arm down and put something in there? We have no idea. We have no idea whether the other three gold bags were even close to the Defendant's bag. There's no evidence about that either.

RP at 133 (emphasis added). Holman did not object to this argument.

The jury found Holman guilty as charged. The trial court sentenced her to five days in prison and imposed LFOs amounting to $2, 275. Holman asked the court to waive a $1, 000 fine against her but did not object to the imposition of any other LFOs.

Holman appeals her conviction and sentence.

ANALYSIS

I. Constitutional Challenges

Holman challenges the constitutionality of her conviction on two different grounds, arguing that the trial court violated her Fourteenth Amendment right to due process and her Eighth Amendment right to be free from cruel and unusual punishment. We hold that Holman has shown no such violations. U.S. Const. amend. VIII, XIV.

We review constitutional challenges de novo. State v. Beaver, 184 Wn.2d 321, 331, 358 P.3d 385 (2015). However, where our Supreme Court has previously resolved constitutional questions, that resolution binds us. State v. Pedro, 148 Wn.App. 932, 950, 201 P.3d 398 (2009).

1. Due Process

Holman argues that the trial court violated her Fourteenth Amendment right to due process by (1) improperly shifting the burden of proof and (2) imposing felony punishment for a strict liability crime. We disagree.

A. Improper Burden Shifting

Holman argues that requiring her to bear the burden of establishing the unwitting possession defense violated her constitutional right to due process by shifting the burden of proof as to an element of the crime. However, this argument is directly contrary to controlling case law, including State v. Bradshaw, 152 Wn.2d 528, 538, 98 P.3d 1190 (2004) and State v. Cleppe, 96 Wn.2d 373, 380, 635 P.2d 435 (1981). We hold that Holman has not raised a meritorious argument in light of that controlling law.

A criminal defendant may not bear the burden of proof on any element of a charged crime, and the legislature violates a defendant's constitutional right to due process by imposing such a burden. State v. W.R., Jr., 181 Wn.2d 757, 762, 336 P.3d 1134 (2014). Where a defendant raises an affirmative defense that negates an element of a crime, the defendant need not establish more than a reasonable doubt as to his guilt. Id. at 762. However, the legislature may assign to the defendant the burden of proving an affirmative defense "when the defense merely 'excuses[s] conduct that would otherwise be punishable.'" Id. at 762 (internal quotation marks omitted) (quoting Smith v. United States, ___U.S. ___, 133 S.Ct. 714, 719, 184 L.Ed.2d 570 (2013)). "The key to whether a defense necessarily negates an element is whether the completed crime and the defense can coexist." W.R., 181 Wn.2d at 765.

A defendant charged with possession of a controlled substance under RCW 69.50.4013 may assert as an affirmative defense that she unwittingly possessed the substance, either because she did not know she possessed it or because she was unaware of the nature of the substance. City of Kennewick v. Day, 142 Wn.2d 1, 11, 11 P.3d 304 (2000). In Cleppe, our Supreme Court addressed this unwitting possession defense and concluded that it

ameliorates the harshness of the almost strict criminal liability our law imposes for unauthorized possession of a controlled substance. If the defendant can affirmatively establish his "possession" was unwitting, then he had no possession for which the law will convict. The burden of proof, however, is on the defendant.

96 Wn.2d at 380-81 (emphasis added). Under Cleppe, the defense excuses, but does not negate, the fact of possession. More than 20 years later, our Supreme Court reaffirmed this holding in Bradshaw:

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. It does not improperly shift the burden of proof.

152 Wn.2d at 538 (internal citations omitted).

Holman argues...