Opinion
No. 50610-2-I c/w 50611-1-I
Filed: June 9, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County Docket No: 00-1-01082-9 Judgment or order under review Date filed: 05/28/2002
Counsel for Appellant(s), Michael John Tario, Tario Associates PS, 119 N Commercial St. Fl 10, Bellingham, WA 98225-4446.
Counsel for Respondent(s), Laura D. Hayes, Attorney at Law, Whatcom County Pros Ofc, 311 Grand Ave, Bellingham, WA 98225-4048.
Rosemary Hawkins Kaholokula, Whatcom Cty Pros Atty Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Melinda Beth Miller, Preston Gates Ellis LLP, 925 4th Ave Ste 2900, Seattle, WA 98104-1158.
Kimberly Anne Thulin, Whatcom Cty Pros Atty's Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Donald Bradshaw, who was driving a borrowed pickup truck, and Christian Latovlovici, a commercial truck driver transporting a shipment of beer, were stopped crossing the Canada and United States border. They were both arrested and charged with possession of more than 40 grams of marijuana after border agents discovered bags of marijuana hidden in their respective trucks. In separate trials, Bradshaw and Latovlovici asserted unwitting possession defenses. Their juries were instructed that Bradshaw and Latovlovici had the burden of proving, by a preponderance of the evidence, that they did not know the marijuana was in their possession. In these linked cases, Bradshaw and Latovlovici appeal their convictions, arguing that the trial court erred in failing to require the State to prove they knowingly possessed a controlled substance, and that the evidence was insufficient to prove actual or constructive possession. We affirm.
Bradshaw and Latovlovici have filed a motion for oral argument after this case was referred to the panel for consideration on the merits without oral argument. After considering the motions, the panel has determined that oral argument is not necessary in this case. The motions are thus denied. RAP 11.6.
Bradshaw and Latovlovici contend that RCW 69.50.401(d) should require proof that the defendant knew of or intended to possess a controlled substance. They argue that assigning the burden of proving unwitting possession to them violated due process. In State v. Cleppe, our Supreme Court interpreted RCW 69.50.401 and held that knowledge or intent are not essential elements of unlawful possession of a controlled substance. Instead, "unwitting possession" is an affirmative defense that defendants must prove by a preponderance of the evidence. In so holding, Cleppe noted that the terms "knowingly or intentionally" were included in the first draft of the bill introduced for passage, but were removed from the substitute bill that ultimately became the law. In changing the sequential drafts of the law, the Court concluded that the Legislature manifested a clear intent to exclude scienter from the definition of the crime. Courts have reaffirmed this interpretation numerous times in the 22 years since Cleppe. Bradshaw and Latovlovici urge reconsideration of Cleppe, contending that knowledge must be implied using the framework set forth in Staples v. United States and State v. Bash, and that a scienter element is necessary to prevent ambiguity in RCW 69.50.401(d). They also observe that RCW 69.50.401 is based on a uniform act. They point out that a majority of states adopting the act have explicitly or implicitly included knowledge as an element. They ask us to take a fresh look at Cleppe in order to bring our statute in line with the majority approach because RCW 69.50.603 provides: "This chapter shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among those states which enact it." But Cleppe has already gleaned the legislative intent behind RCW 69.50.401(d) using well established rules of statutory construction. Thus, application of the Bash and Staples factors — also tools of statutory construction — are unnecessary. Moreover, as interpreted by Cleppe, RCW 69.50.401 unambiguously excludes knowledge from the definition of actual or constructive possession. And regardless of how other states interpret the uniform law, and regardless of the wisdom of our rule, this court is bound by Cleppe, which is directly on point. The request to revisit Cleppe must be addressed to the Supreme Court. Bradshaw and Latovlovici also assert that without a scienter element, RCW 69.50.401 is unconstitutionally vague and violative of substantive due process principles. But they have not adequately briefed these arguments.
State v. Cleppe, 96 Wn.2d 373, 380, 635 P.2d 435 (1981). The subsection interpreted by Cleppe is now set forth in RCW 69.50.401(d). See Laws 1979, ch. 67, § 1.
Cleppe, 96 Wn.2d at 380-82.
Cleppe 96 Wn.2d at 379-80.
State v. Johnson, 119 Wn.2d 143, 146, 829 P.2d 1078 (1992); State v. Sims, 119 Wn.2d 138, 142, 829 P.2d 1075 (1992); State v. Staley, 123 Wn.2d 794, 798-99, 872 P.2d 504 (1994); State v. Vike, 125 Wn.2d 407, 412, 885 P.2d 824 (1994); City of Kennewick v. Day, 142 Wn.2d 1, 11, 11 P.3d 304 (2000).
Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 1797, 128 L.Ed.2d 608 (1994).
Bash, 130 Wn.2d at 605-06; see also 1 Wayne R. LaFave Austin W. Scott, Substantive Criminal Law sec. 3.8, at 341-44 (1986).
Uniform Laws Annotated, Master Edition, volume 9, p. II (1971).
See Dawkins v. State, 313 Md. 638, 648-50, 547 A.2d 1041 (1988) (noting that of the 15 states that have adopted a version of the Uniform Controlled Substances Act that does not explicitly include a mens rea element, only two — Washington and North Dakota, have held that knowledge or intent is not an implied element of possessing a controlled substance); see also Day 142 Wn.2d at 10-11 ("The unwitting possession defense is unique to Washington and North Dakota.").
See e.g. Bellevue Fire Fighters Local 1604 v. Bellevue, 100 Wn.2d 748, 750-51, 675 P.2d 592 (1984) (prior drafts of statute relevant in determining legislative intent); State v. Jackson 137 Wn.2d 712, 723, 976 P.2d 1229 (1999) (Legislature's omission of language contained in a Model Penal Code provision that was otherwise adopted as statute indicated a deliberate choice to reject the omitted portion).
See Bash, 130 Wn.2d at 604-05 (Noting that "deciding whether a statute sets forth a strict liability crime is a statutory construction question aimed at ascertaining legislative intent. The inquiry begins with the statute's language and legislative history."); see also State v. Anderson, 141 Wn.2d 357, 362-63, 5 P.3d 1247 (2000) (distinguishing Cleppe and applying Staples and Bash factors to unlawful possession of a firearm statute after noting that the Legislature did not employ the measures it could easily have used to evidence an intent to make the offense a strictly liability crime.); see also State v. Seek, 109 Wn. App. 876, 882-83 n. 16, 37 P.3d 339 (2002) (noting that Bash analysis unnecessary because other tools of statutory construction reveal that Legislature intended to include mens rea element in bigamy statute).
See Greene v. Rothchild, 68 Wn.2d 1, 8, 414 P.2d 1013 (1966).
They fail to explain how persons of ordinary intelligence would not understand what the statute prohibits, nor do they cite any relevant authority to show how the statute violates substantive due process. Such "naked castings into the constitutional sea are not sufficient to command judicial consideration and discussion."
In re Personal Restraint of Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986) (quoting United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970)); see also Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998) ("Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.").
Finally, Bradshaw and Latovlovici challenge the sufficiency of the evidence to support their convictions, arguing the State failed to prove they actually or constructively possessed the marijuana found in their trucks. But both Bradshaw and Latovlovici were driving alone in vehicles where drugs were found, which establishes dominion and control of the "premises" sufficient to prove they constructively possessed drugs found inside.
State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969) (whereas actual possession requires personal custody of drugs, constructive possession merely requires dominion and control over the drugs).
See State v. Dodd, 8 Wn. App. 269, 274-75, 505 P.2d 830 (1973) (exclusive control, as operator, of vehicle sufficient evidence of dominion and control over drugs found in car); see also State v. Cantabrana, 83 Wn. App. 204, 208, 921 P.2d 572 (1996) (actual control over the premise where drugs are found establishes rebuttable presumption of dominion and control over the drugs found on premises).
We affirm both convictions. FOR THE COURT:
ELLINGTON and COX, JJ., concur.