Opinion
No. 35468-3-II.
January 29, 2008.
Appeal from a judgment of the Superior Court for Mason County, No. 06-1-00233-4, James B. Sawyer II, J., entered October 18, 2006.
Affirmed in part and remanded by unpublished opinion per Penoyar, J., concurred in by Bridgewater and Hunt, JJ.
James McIntyre appeals his conviction of unlawful possession of a controlled substance, claiming the trial court erred in refusing to instruct the jury on unwitting possession and in imposing community custody conditions unrelated to his offense. We affirm McIntyre's conviction but with the State's agreement, we remand to correct his judgment and sentence.
Facts
At about 11:10 p.m. on June 16, 2006, Mason County Sheriffs Deputy Kelly LaFrance responded to a reported disturbance at Harry Henslee's residence on Old Belfair Highway. As Deputy LaFrance arrived, Deputy Dotson informed her that a white Jeep Cherokee had just left the residence. Deputy LaFrance saw the Jeep pull into a driveway across the street. Deputy LaFrance recognized the Jeep as one belonging to Henslee and recognized the driver as Tonya Glen. Deputy LaFrance knew that Glen had a suspended license and an outstanding arrest warrant. Deputy LaFrance arrested Glen, learned that McIntyre, the passenger, had an outstanding felony warrant, and arrested him.
In a search incident to arrest, Deputy LaFrance found a set of keys and $408 on McIntyre. Before searching the Jeep, Glen told Deputy LaFrance that she had a syringe in the center console. Deputy LaFrance found the syringe, which contained a yellowish liquid substance. Behind the passenger seat, she found a red bag containing a coin holder, another syringe containing a yellowish liquid, men's clothing, and McIntyre's inmate picture identification card. When Deputy LaFrance opened the bottom of the coin holder, 15 bags containing a white crystal substance spilled out.
Beneath the red bag, Deputy LaFrance found a locked metal safe. The next day, after obtaining a search warrant, she opened it with one of the keys she found in McIntyre's pants pocket. Inside the safe, she found two scales, a broken glass pipe, a silver spoon, several zip lock bags, some syringes, and other items. Behind the driver's seat, Deputy LaFrance found a black backpack with Glen's name on it. Inside, he found letters addressed to her and some zip lock bags containing a powdery residue. At the police station, Glen surrendered three bags of methamphetamine and $105 in cash, which she had hidden in her bra.
Later testimony disclosed that any metal object could open the safe and that the key did not necessarily match the lock.
The State charged both McIntyre and Glen with unlawful possession of a controlled substance, methamphetamine, with intent to deliver. On the day of McIntyre's trial, Glen agreed to testify against McIntyre in exchange for a reduction in the charge she faced to unlawful possession of a controlled substance.
A violation of RCW 69.50.401(1).
During trial, Mason County Sheriffs Detective Jason Dracobly testified as an expert in the narcotics trade. He explained that drugs are cheaper per gram to purchase in large quantities and that buyers will then sell small amounts at higher per gram prices to make a profit or to pay for their own drug use. He also explained that the 15 bags discovered in the red bag demonstrated intent to deliver because one of the bags contained a large amount and 14 others contained small individual use amounts. In reaching this conclusion, he relied on the presence of scales, multiple unused zip lock bags, and the presence of drug paraphernalia.
Glen testified that the syringe in the Jeep's center console was hers but that McIntyre had the red bag and safe. She explained that she had picked up McIntyre in the late morning at Henslee's and McIntyre had the bag with him then. They drove to her mother's house to get her daughters and then to a friend's house in Belfair and a short time later, McIntyre
left with a friend's daughter, taking the red bag with him. Later that evening, McIntyre returned and Glen agreed to give him a ride to Henslee's. When she got in Jeep, she noticed that the red bag was in the back seat and assumed that McIntyre put it there before coming to the door and asking for a ride.
McIntyre proposed an unwitting possession instruction but the court refused it, ruling:
THE COURT: Counsel, I understand your argument. And of course, the instruction on unwitting possession requires that the jury find by a preponderance of the evidence that, in fact, the possession, if the possession occurred, was unwitting.
Frankly, I hear what you're saying about all of the inferences that you want to draw, but the evidence in this case simply doesn't require — or allow, I believe-this Court to give the unwitting possession instruction.
I know what your closing argument will be, even without it, but it just is not a-1 do not believe that it is an appropriate instruction, given the state of the facts as they have been testified to in this particular case. The bag was on the back seat directly behind his seat. The bag was identified as being — containing a direct piece of identification of his. The bag was the location and source of the methamphetamines that are the subject — the 15 bags that have been admitted into evidence.
There was other evidence in the car, essentially, however, the testimony-or, not other evidence, but other objects in the car. The testimony has been that those objects were in a bag marked Tonya, directly behind the driver, who was also the owner. Essentially I — it's my recollection that that was true of the diapers also, that they were essentially in the area behind the driver which — it just — and I may be wrong on that and that's not very critical to my thought process — but essentially, there just is not enough to submit it to the trier of fact. And I note your exception to my ruling.
2 Report of Proceedings (RP) at 215-16.
The jury found McIntyre guilty of the lesser included offense of unlawful possession of a controlled substance and the court imposed a standard range sentence.
Analysis
I. Unwitting Possession Instruction
McIntyre first argues that the trial court erred in refusing his proposed instruction on unwitting possession. He argues that because Deputy LaFrance testified that he denied possession and because Glen owned the Jeep, had other belongings in the Jeep, and her plea agreement gave her a reason to deny ownership of the red bag, the evidence supported giving the instruction. Further, he argues, there was no evidence about how the methamphetamine got in the bag, how long it had been in the bag, or that he knew it was in the bag.
Generally, we review a trial court's decisions regarding jury instructions for an abuse of discretion. State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other grounds by State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997); State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). A defendant is entitled to a proposed instruction when there is sufficient evidence in the record to support it. State v. Allery, 101 Wn.2d 591, 598, 682 P.2d 312 (1984) (citing State v. King, 92 Wn.2d 541, 599 P.2d 522 (1979)). We read the instructions as a whole to see whether they permit the parties to argue their theory of the case; are not misleading; and, when read as a whole, properly inform the jury of the applicable law. State v. Linehan, 147 Wn.2d 638, 643, 56 P.3d 542 (2002), cert. denied, 538 U.S. 945 (2003).
Unwitting possession is a judicially created affirmative defense, requiring the defendant to prove by a preponderance of the evidence that his possession was unwitting. State v. Hundley, 72 Wn. App. 746, 750-51, 866 P.2d 56 (1994), aff'd, 126 Wn.2d 418 (1995). Accordingly, for McIntyre to be entitled to an unwitting possession instruction, he had the burden to produce sufficient evidence from which the jury could find by a preponderance of the evidence that he unwittingly possessed the methamphetamine. State v. Riker, 123 Wn.2d 351, 368, 869 P.2d 43 (1994).
McIntyre proposed Washington Pattern Jury Instructions: Criminal 52.01, at 679 (2005) (WPIC), which instructs:
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 his possession or did not know the nature of the substance. 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.
The trial court denied this proposed instruction because the evidence did not support it. McIntyre did not testify and the only evidence, other than inferences from Glen's testimony, was Deputy LaFrance's testimony that McIntyre denied owning anything in the Jeep.
At trial, the State provided evidence showing that McIntyre brought the bag with him in the morning, took the bag from the car when he left Glen in the afternoon, and apparently placed the bag back in her car when she gave him a ride again later that night. She also testified that she did not own the red bag, did not know what was in it, had never seen it before, and did not own the locked safe. While McIntyre was able to show that Glen was a self-interested witness, desiring minimal jail time in order to be with her daughters, there was no evidence that she was untruthful. Further, the presence of his inmate identification card, men's clothing, a loaded syringe, packaging materials, and scales gave tremendous weight to Glen's testimony.
McIntyre fails to show that he could not argue his theory of the case without the instruction. His theory was that he had denied ownership and that Glen had a motive to fabricate her testimony. The evidence did not support an argument that McIntyre possessed the red bag but was unaware that drugs were in it. Under these circumstances, we do not find that the trial court abused its discretion in refusing the proposed instruction. See State v. Buford, 93 Wn. App. 149, 153, 967 P.2d 548 (1998) (court correctly refused proposed unwitting possession instruction when it would have invited the jury to speculate and conjure).
Because trial counsel adequately preserved this issue, we do not address McIntyre's alternative ineffective assistance claim.
II. Community Custody Conditions
McIntyre challenges the sentencing court's imposition of three community custody conditions: (1) that he "shall not go into bars, taverns, lounges, or other places whose primary business is the sales of liquor"; (2) that he "shall participate in the MRT +/or Victim Awareness Education Program at the direction of his Community Corrections Officer"; and (3) that he "shall participate in and successfully complete a certified Domestic Violence counseling program." Clerk's Papers (CP) at 32-33.
He argues that because there was no individual victim and no domestic violence, these conditions are unrelated to the circumstances of the offense and were beyond the trial court's authority to impose. State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993). The State concedes that there is no evidence of domestic violence here and that we should strike that condition. We accept the State's concession and remand for the sentencing court to correct the judgment and sentence.
We disagree, however, that the other two challenged conditions are improper. A defendant may raise claims relating to sentencing conditions for the first time on appeal because when those conditions do not relate to the circumstances of the crime, they are unlawful. State v. Jones, 118 Wn. App. 199, 204 n. 9, 207-08, 76 P.3d 258 (2003). While acknowledging that RCW 9.94A.700(5) allows a court to preclude a defendant from consuming alcoholic beverages even when the offense is not alcohol-related, McIntyre argues that the court lacked authority to order him not go anywhere that sells alcoholic beverages by the drink for consumption or where alcohol is the primary sale item. See Jones, 118 Wn. App. at 207.
RCW 9.94A.715(1) required the sentencing court to impose a one-year term of community custody. The conditions allowed are set out in RCW 9.94A.700(4) and (5). Relevant here are: RCW 9.94A.700(5)(c), which allows the court to require the offender to participate in crime-related treatment or counseling services; RCW 9A.94A.700(5)(d), which allows the court to order the offender not to consume alcohol; and RCW 9.94A.700(5)(e), which allows the court to order the offender to comply with any-crime-related prohibitions. Additionally, RCW 9.94A.715(2)(a) allows the court to "order the offender to participate in rehabilitative programs or otherwise perform affirmative conduct reasonably related to the circumstances of the offense, the offender's risk of reoffending, or the safety of the community." See Jones, 118 Wn. App. at 205 (recognizing this rationale and approving a condition that the offender obey all laws and engage in law-abiding behavior).
It is this latter rationale that allowed the sentencing court to order McIntyre to participate in MRT and/or victim awareness education and to not go to establishments that primarily serve alcohol. As the sentencing court noted, McIntyre had an offender score of over 9, having 11 felony convictions, which included five Violation of the Uniform Controlled Substance Act (VUCSA) convictions. The sentencing court clearly deemed Mclntryre's risk of reoffending high and imposed these conditions to reduce the chance that McIntyre would reoffend. When McIntyre stated at sentencing that his conviction under this appeal was simply the result of his being at "the wrong place at the wrong time [with the] [w]rong people," the trial court succinctly pointed out that his rationale:
Doesn't work. . . [T]he reason it doesn't work is [because] you've got 11 felony convictions. Wrong place, wrong time maybe works once, but 11 convictions? Start looking in the mirror, Mr. McIntyre. . . . You're the guy. You're the one that's committing these crimes. You're the one that's the mover on this, and it isn't wrong person, wrong place, wrong time. You need to start accepting your responsibility. You're absolutely responsible.
2 RP at 299-300.
III. Statement of Additional Grounds
Pro se, McIntyre claims that his attorney should have called witnesses to help his defense. He does not identify these witnesses or what testimony they could have provided that would have helped him. As such, his claim is nothing more than speculation and not a basis for this court to reverse his convictions.
He also argues that defense counsel misinformed him about the lesser-included offense, leading him to believe that the jury's alternative charge was unlawful possession of drug paraphernalia. Again, he fails to provide any support from the record to support this claim. Further, it would have been error for the trial court to give such an instruction as possession of drug paraphernalia is not a lesser included offense to possession of a controlled substance with intent to deliver. State v. Gocken, 127 Wn.2d 95, 108, 896 P.2d 1267 (1995).
We affirm McIntyre's conviction but remand to strike the domestic-violence-education condition of his community custody.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, PJ. and HUNT, J., concur.