State v. Michlitsch, CR

• Decision Date: 27 March 1989
• Docket Number: No. CR,CR
• Citation: 438 N.W.2d 175
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. DeVerne M. MICHLITSCH, Defendant and Appellant. 880084.
• Court: North Dakota Supreme Court

Page 175

438 N.W.2d 175

STATE of North Dakota, Plaintiff and Appellee, v. DeVerne M. MICHLITSCH, Defendant and Appellant.

No. CR. 880084.

Supreme Court of North Dakota.

March 27, 1989.

Patricia L. Burke (argued), State's Atty., Bismarck, for plaintiff and appellee.

Michael Ray Hoffman (argued), Bismarck, for defendant and appellant.

GIERKE, Justice.

DeVerne Michlitsch appeals from a judgment of conviction entered on a jury verdict finding her guilty of possession of marijuana with intent to deliver in violation of Sec. 19-03.1-23(1), N.D.C.C. We reverse and remand for a new trial.

As the result of an undercover drug investigation, law enforcement officers obtained search warrants and searched trailers 12 and 13 at Mr. B's Estates in Burleigh County late in the evening of July 8, 1987. Michlitsch was the tenant of trailer 12 and Ronald Zuraff was the tenant of trailer 13. When the officers arrived, Zuraff was in a bedroom of trailer 12 but Michlitsch was not present. Zuraff did not live in trailer 12, but often spent the night there and some of his clothing and personal effects were found in the bedroom as well as throughout other areas of the trailer. Two cake pans containing several bags of marijuana were found in a dresser in the bedroom, along with a triple beam scale and two smoking devices. Another pan containing bags and marijuana was found in a kitchen cupboard.

Michlitsch returned to the trailer at approximately 12:30 a.m. on July 9, 1987, while the officers were still there, and became angry with Zuraff and told him she was "through with" him. Zuraff and Michlitsch were arrested. Michlitsch's purse was searched and in it was found a brown pill bottle containing marijuana cigarette butts. When Michlitsch was searched at the Morton County Jail, where she had been transported for housing, a marijuana cigarette fell out of her bra.

Zuraff, who had pled guilty to the charges against him, testified at trial that the marijuana found in Michlitsch's trailer was owned by him alone. Michlitsch also testified to the effect that she had no knowledge of the marijuana in her trailer. The jury was instructed with regard to possession with intent to deliver as well as the lesser included offense of simple possession. The jury returned a verdict finding Michlitsch guilty of possession of marijuana with intent to deliver, a class B felony, and she received a five year suspended sentence. Michlitsch appealed.

I

The dispositive issue in this case is whether the trial court committed reversible error in refusing to give Michlitsch's requested affirmative defense instruction to the jury. That instruction states in part:

"It is an affirmative defense to the crime of possession with intent to deliver or the crime of simple possession that the defendant (1) had no knowledge of the presence of the drug or (2) had no knowledge of the identity of the substance. If the accused can affirmatively establish she possessed the controlled substance unknowingly, then she will not be held to have unlawfully possessed the substance in violation of the law."

The State asserts that for the trial court to have given this instruction, it would have had to "completely ignore" this court's holdings in State v. Rippley, 319 N.W.2d 129 (N.D.1982), and State v. Morris, 331 N.W.2d 48 (N.D.1983).

In Rippley we held that Sec. 19-03.1-23(1), N.D.C.C., ¹ which prohibits possession of a controlled substance with intent to deliver, is a strict liability offense requiring no proof of guilty knowledge. We further held that the defendant was not in a position to argue that the statute violated his constitutional due process rights because the defendant could challenge the statute only as applied to him and he did "not argue that he mistakenly or unwittingly delivered a controlled substance or that he is the subject of selective law enforcement." State v. Rippley, supra, 319 N.W.2d at 134.

In State v. Morris, supra, 331 N.W.2d at 56, we reaffirmed our conclusion in Rippley that Sec. 19-03.1-23(1) is a strict liability offense, stating that "although a jury need not consider whether or not an accused had the intent to possess a controlled substance or knew that the material he possessed was a controlled substance before it can find him guilty of possession with intent to deliver it must consider whether or not the accused had the intent to deliver, before it can find him guilty of possession of a controlled substance with intent to deliver." (Footnote omitted.) We further held that Sec. 19-03.1-23(3), N.D.C.C., ² which defines the crime of unlawful possession, is also a strict liability offense and that, under the statute, the "State does not have to prove either that the accused intended to possess the controlled substance or that he had knowledge of the existence or identity of the substance." State v. Morris, supra, 331 N.W.2d at 57 (Footnote omitted.) We observed that the instruction given in that case, which essentially required the State to prove beyond a reasonable doubt that the defendants intentionally and knowingly possessed marijuana with the intent to deliver it, placed a greater burden of proof on the State than our interpretation of the statutes required. We further rejected the argument that one of the defendants' due process and equal protection rights were violated, concluding that that defendant could not show that he was convicted of simple possession solely on the basis of innocent conduct.

In Morris we discussed the Washington Supreme Court's decision in 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), upon which Michlitsch relies as authority for her affirmative defense instruction. We noted that "there is an important difference between our views and those expressed by the Washington courts" because, although simple possession does not require proof of guilty knowledge in Washington, that jurisdiction, unlike ours, requires proof of guilty knowledge to convict of possession of a controlled substance with intent to deliver. State v. Morris, supra, 331 N.W.2d at 54 n. 3. We further stated:

"Also of some consequence is the Washington Supreme Court's recognition of an affirmative defense to the crime of simple possession. Interestingly, the court refers to its simple-possession statute as creating an almost strict-liability offense. Even though, the court explains, an accused may be convicted of simple possession without having guilty knowledge or an intent to possess a controlled substance, if the accused can affirmatively establish he possessed the controlled substance unwittingly, then he will not be held to have unlawfully possessed the substance in violation of the statute. Cleppe, supra, 635 P.2d at 440-441." State v. Morris, supra. (Emphasis in original).

In the present case, the State contends that this court "specifically rejected" the affirmative defense instruction in footnote 3 of Morris. We disagree. Our discussion in Morris constituted neither an approval nor disapproval of the Cleppe affirmative defense instruction. An affirmative defense instruction based upon Cleppe was not requested in either the Morris or Rippley cases, and therefore the issue was not before us. The issue is squarely before us in this case, and we conclude that, if the evidence so warrants and the defendant requests, the defendant is entitled to an affirmative defense instruction based upon Cleppe in prosecutions for the strict liability offenses of simple possession of controlled substances and possession with intent to deliver.

We agree with the Washington Supreme Court's rationale in adopting such an affirmative defense:

"That unwitting possession has been allowed as an affirmative defense in simple possession cases may seem anomalous. If guilty knowledge or intent to possess are not elements of the crime, of what avail is it for the defendant to prove his possession was unwitting? Such a provision 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...." State v. Cleppe, supra, 635 P.2d at 439-440 (Emphasis in original).

We have often said that when a statute is subject to two possible constructions, one which is of doubtful constitutionality and one which is not, the latter must be adopted. See, e.g., State v. Knittel, 308 N.W.2d 379, 383 (N.D.1981). Although we adhere to our conclusion that the Legislature intended that possession of a controlled substance and possession with intent to deliver constitute strict liability offenses, it would be difficult to sustain these statutory provisions, the violation of which are punishable as felonies in many circumstances, against a constitutional attack when mounted by a person who possessed the controlled substance unwittingly. See, e.g., United States v. Wulff, 758 F.2d 1121 (6th Cir.1985); McCrary v. State, 429 So.2d 1121, 1125-1127 (Ala.Ct.Crim.App.1982), cert. denied, 464 U.S. 913, 104 S.Ct. 273, 78 L.Ed.2d 254 (1983); Exotic Coins, Inc. v. Beacom, 699 P.2d 930, 947-948 (Colo.), appeal dismissed, 474 U.S. 892, 106 S.Ct. 214, 88 L.Ed.2d 214 (1985); Commonwealth v. Buckley, 354 Mass. 508, 238 N.E.2d 335, 337-338 (1968); see generally State v. Carpenter, 301 N.W.2d 106, 111 (N.D.1980). The Cleppe affirmative defense scheme is a logical accommodation which recognizes the reasons for both the legislative designation of the crimes as strict liability offenses and the constitutional interests of the accused. See generally State v. Buttrey, 293 Or. 575, 651 P.2d 1075, 1083 (1982).

We therefore conclude that it is an affirmative defense to a charge of possession of a controlled substance or possession with intent to deliver that the defendant...