State v. Staley

• Decision Date: 21 April 1994
• Docket Number: No. 60415-1,60415-1
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Benny Dean STALEY, Respondent.

Page 794

123 Wn.2d 794

872 P.2d 502

STATE of Washington, Petitioner, v. Benny Dean STALEY, Respondent.

No. 60415-1.

Supreme Court of Washington En Banc.

April 21, 1994.

Donald Brockett, Spokane County Prosecutor and John F. Driscoll, Deputy County Prosecutor, Spokane, for petitioner.

Mark E. Vovos, Spokane, for respondent.

MADSEN, Justice.

The State petitioned for, and was granted review of, a Court of Appeals decision reversing Benny Dean Staley's conviction for violation of the Uniform Controlled Substances Act. We reverse the Court of Appeals and reinstate Staley's conviction.

STATEMENT OF THE CASE

Defendant Staley is a musician. On the night of his arrest he was playing at the Pepperdine restaurant in Spokane. At trial Staley testified that he routinely maintains a tip jar which he places on a stool next to his instruments. At the end of an evening's performance, Staley typically counts the contents of the jar and leaves for home. On the evening of his arrest Staley testified he had been playing into the early morning hours. At the end of his performance, Staley began to count the tips from his jar and discovered a glass vial containing white powder. The vial was wrapped in a $20 bill. At the moment that he discovered the vial, the lights came on in the restaurant. Staley testified that he was embarrassed and immediately rolled up all of the bills and placed them in his right pants pocket. He placed the vial in his shirt pocket. Staley remained at the bar to drink a beer and then left for home. According to Staley he had forgotten about the vial. On the way home, Staley was stopped by police and, following sobriety tests, was arrested for DWI. As he was being handcuffed, he volunteered the vial to the officers. Staley testified "I told [the officer] that I had cocaine in my pocket. That I had found it in my tip jar and it wasn't mine". Partial Verbatim Report of Proceedings (Mar. 20, 1991, and Apr. 2, 1991), at 15. When asked why he did not throw the vial away, Staley stated that he had forgotten to do so. Between 15 and 30 minutes had passed since the defendant had first discovered the vial.

At trial, Staley requested a jury instruction which stated that "fleeting, momentary, temporary or unwitting" possession of cocaine is not unlawful. Clerk's Papers, at 62. Staley also proposed a "to convict" instruction which placed the burden on the State to prove that Staley intended to possess the cocaine. Excerpt of Verbatim Report of Proceedings, at 3-4. Clerk's Papers, at 43.

The court declined to give these proposed instructions. The trial court did, however, instruct the jury that "possession of a controlled substance is not unlawful if the defendant did not know that it was in his possession". Clerk's Papers, at 71. See also WPIC 52.01 (Supp.1986).

Defense counsel took exception to the court's failure to include an intent element in the "to convict" instruction, stating "I understand what Your Honor is doing with the 'to convict' instruction, but by not including as an element of intent or knowledge, it takes away our theory of the case". Excerpt of Verbatim Report of Proceedings (Mar. 20, 1991), at 3-4. Staley's attorney also excepted to the court's failure to give his proposed instruction that "fleeting, momentary, temporary or unwitting" possession is not punishable. Excerpt of Verbatim Report of Proceedings (Mar. 20, 1991), at 4. Counsel took no exception to WPIC 52.01 but stated that "I want it in conjunction with the definition of unlawfully, the definition of knowingly, and the statement that possession that is fleeting, momentary, temporary or unwitting. It's not unlawful to that extent". Excerpt of Verbatim Report of Proceedings (Mar. 20, 1991), at 4.

During the jury's deliberations, the jury sent the following written inquiry to the court:

If agreed that the defendant was in the possession & knew he had the controlled substance--[b]ut felt that under the circumstances it was not "unlawful"[,] [a]re the circumstances alone reason to find a verdict of not guilty? [I]n other words--can the circumstances [be] enough to out[weigh] the "letter" of the law.

Clerk's Papers, at 78. The court responded: "Please read the instructions". Clerk's Papers, at 78. The jury convicted the defendant.

A divided Court of Appeals reversed the conviction concluding that the trial court erred in failing to give Staley's "fleeting, momentary, temporary or unwitting" instruction. The Court of Appeals' majority opinion, written by Judge Green (pro tempore), stated:

It is apparent from the jury's inquiry that some or all of the jury may have found Mr. Staley to be an unwitting possessor and acquitted him if the proposed instruction had been given. The court's refusal to instruct the jury regarding the defense of unwitting possession was error.

State v. Staley, 69 Wash.App. 222, 226, 848 P.2d 1274 (1993). The State petitioned for, and was granted, review before this court.

ANALYSIS

The only issue in this case is whether the defendant was entitled to his proposed instruction that "fleeting, momentary, temporary or unwitting" possession is not unlawful.

In a prosecution for unlawful possession under RCW 69.50.401(a) and (d) the State must establish two elements: the nature of the substance and the fact of possession by the defendant. State v. Cleppe, 96 Wash.2d 373, 378, 635 P.2d 435 (1981), cert. denied, 456 U.S. 1006, 102 S.Ct. 2296, 73 L.Ed.2d 1300 (1982); see State v. Morris, 70 Wash.2d 27, 34, 422 P.2d 27 (1966) (the State's burden is to prove possession of a narcotic drug beyond a reasonable doubt). Possession is defined in terms of personal custody or dominion and control. State v. Callahan, 77 Wash.2d 27, 29, 459 P.2d 400 (1969).

The State may establish that possession is either actual or constructive. State v. Walcott, 72 Wash.2d 959, 968, 435 P.2d 994 (1967), cert. denied, 393 U.S. 890, 89 S.Ct. 211, 21 L.Ed.2d 169 (1968). "Actual possession means that the goods are in the personal custody of the person charged with possession; whereas, constructive possession means that the goods are not in actual, physical possession, but that the person charged with possession has dominion and control over the goods." Callahan, 77 Wash.2d at 29, 459 P.2d 400. To meet its burden on the element of possession the State must establish "actual control, not a passing control which is only a momentary handling". Callahan, at 29, 459 P.2d 400.

The State is not required to prove either knowledge or intent to possess, nor knowledge as to the nature of the substance in a charge of simple possession. Cleppe, 96 Wash.2d at 380, 635 P.2d 435. See, e.g., Walcott, 72 Wash.2d at 968, 435 P.2d 994 (defendant claimed error in failure to give instruction that State must prove that he knew existence of drugs), cert. denied, 393 U.S. 890, 89 S.Ct. 211, 21 L.Ed.2d 169 (1968). Once the State establishes prima facie evidence of possession, the defendant may, nevertheless, affirmatively assert that his possession of the drug was "unwitting, or authorized by law, or acquired by lawful means in a lawful manner, or was otherwise excusable under the statute". Morris, 70 Wash.2d at 34, 422 P.2d 27. ¹

The defense of "unwitting" possession may be supported by a showing that the defendant did not know he was in possession of the controlled substance. Cleppe, 96 Wash.2d at 381, 635 P.2d 435. See, e.g., State v. Bailey, 41 Wash.App. 724, 728, 706 P.2d 229 (1985) (trial court properly instructed jury that possession not unlawful if defendant did not know drug was in his or her possession). The defendant may also show that he did not know the nature of the substance he possessed. See State v. Adame, 56 Wash.App. 803, 806, 785 P.2d 1144, review denied, 114 Wash.2d 1030, 793 P.2d 976 (1990) (trial court correctly instructed the jury that possession was unwitting if the person did not know that the substance was present or did not know the nature of the substance). If the defendant affirmatively establishes that "his 'possession' was unwitting, then he had no possession for which the law will convict". Cleppe, 96 Wash.2d at 381, 635 P.2d 435.

Staley's proposed instruction ² combines the defense of "unwitting" possession discussed in Cleppe with the terms "momentary and fleeting" derived from language in Callahan. The Court of Appeals cited as reversible error the trial court's refusal to instruct on the defense of "unwitting" possession in the language proposed by Staley. Staley, 69 Wash.App. at 226, 848 P.2d 1274. In so deciding it is apparent that the Court of Appeals confused the concept of "passing control" with the defense of "unwitting" possession. ³

As noted earlier, evidence of "unwitting" possession may establish an affirmative defense to the charge of possession. This defense assumes that the State has established a prima facie showing of "possession". If one is an "unwitting" possessor, it will ordinarily make no difference how long the drugs were in the defendant's possession since, under this theory, the defendant is permitted to "explain" that the drugs were possessed either without knowledge of their existence or the nature of the substance. Cleppe, 96 Wash.2d at 381, 635 P.2d 435; Adame, 56 Wash.App. at 807, 785 P.2d 1144.

The terms "momentary, temporary and fleeting" are not related to the defense of "unwitting" possession but go rather to the element of possession. To understand the import of those terms to the issue of possession it is useful to review the facts before the court in Callahan. The police, executing a premises warrant, discovered drugs in several locations on a houseboat. The issue on appeal was whether sufficient evidence existed on which the jury could find the defendant possessed the drugs. The defendant, Callahan, was merely a visitor to the houseboat but admitted to police that earlier on the day of the search he had handled the drugs later found in the houseboat. The court considered first whether the...