161 Wash. App. 634 | Wash. Ct. App. | 2011
¶1 — A jury found Jennifer Joy Hathaway guilty of unlawful possession of a controlled substance (methamphetamine), in violation of RCW 69.50.4013. Hathaway appeals, arguing that a law enforcement officer’s review of her driver’s licensing records violated her privacy rights protected by article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution. She also challenges (1) sufficiency of the evidence, (2) the trial court’s refusal to give a requested “mere proximity” jury instruction, (3) the elements included in the “to-convict” jury instruction, and (4) a $1,604.53 “jury demand fee” imposed at sentencing. Because Hathaway’s privacy rights were not violated, sufficient evidence supports the jury’s verdict, and the jury instructions were proper, we affirm Hathaway’s conviction. But we agree with Hathaway that the trial court exceeded its statutory authority when it imposed a $1,604.53 jury demand fee. Accordingly, we affirm the conviction, but we remand to the trial court to correct Hathaway’s judgment and sentence by reducing the jury demand fee to that allowed by statute.
FACTS
¶2 On July 16, 2008, Hathaway visited an inmate at the Jefferson County Jail. Because the jail was short staffed that day, Jefferson County Sheriff’s Deputy Brian Anderson helped screen visitors. Specifically, Anderson ran a computer check of visitor names looking for outstanding warrants per the jail’s standard visitor screening procedures; this standard check also provides driver licensing information. When Anderson learned that Hathaway’s driving privileges were suspended, he asked jail staff to advise him if she left by driving a vehicle.
¶3 While sitting in his patrol car, Deputy Anderson learned from jail staff that Hathaway had entered a car. Anderson spotted the car, noted only a driver occupied it, and followed the car out of the jail parking lot. Anderson
¶4 Deputy Anderson approached the vehicle and when he asked Hathaway for her driver’s license, she said she did not have it with her. Anderson confirmed with his dispatch that Hathaway’s driver’s license had been suspended and he arrested her. He handcuffed her and walked her to his patrol car, where he performed a search of her person incident to arrest. While Anderson searched Hathaway’s legs, he heard a “tink” like “something hitting the ground.” 1 RP at 43. He looked over and saw a small clear plastic vial containing a white crystalline substance about six inches from Hathaway’s foot. At trial, Anderson testified that the vial was underneath and behind his patrol car’s rear wheel such that he would have run over it if it had been there before the stop. Anderson put Hathaway in his patrol car and read her Miranda
¶5 The State charged Hathaway with unlawful possession of a controlled substance (methamphetamine), under RCW 69.50.4013(1), and third degree driving with a suspended license, under former RCW 46.20.342(l)(c) (2004).
¶6 The next day, the trial court acknowledged that the parties had agreed to include unlawful possession as an element in the to-convict jury instruction. But Hathaway said that further research after the parties met revealed that possession did not have to include “unlawful” as an element. When the trial court asked Hathaway if she had any exceptions to the use of a to-convict jury instruction that included unlawful possession as an element, Hathaway responded, “I don’t have any exceptions to what you proposed.” 2 RP at 81. The trial court also denied Hathaway’s request to instruct the jury that “[m]ere proximity alone is not enough to establish constructive possession.” CP at 37.
¶7 A jury found Hathaway guilty of unlawful possession of a controlled substance. The trial court sentenced Hathaway to 3 months confinement and/or work release and 12 months community custody. The trial court also imposed $3,967.35 in legal financial obligations, which included a $1,604.53 “[j]ury demand fee” that Hathaway stated she felt was excessive. CP at 56. Hathaway timely appeals.
ANALYSIS
Privacy Rights in Driver’s Licensing Records
¶8 Hathaway challenges Deputy Anderson’s investigation of her driver’s licensing records, arguing that it was a
¶9 When presented with challenges under both the state and federal constitutions, we review state constitutional challenges first. State v. Puapuaga, 164 Wn.2d 515, 521, 192 P.3d 360 (2008). It is well established that article I, section 7 of the Washington Constitution qualitatively differs from, and in some areas provides greater protections than, the Fourth Amendment. Puapuaga, 164 Wn.2d at 521-22; State v. McKinney, 148 Wn.2d 20, 26, 60 P.3d 46 (2002). Accordingly, a Gunwall
¶10 Interpreting and applying article I, section 7 requires a two-part analysis. Puapuaga, 164 Wn.2d at 522. The first step requires determining whether the State “ ‘unreasonably intruded into a person’s private affairs.’ ” State v. Cheatam, 150 Wn.2d 626, 641-42, 81 P.3d 830 (2003) (internal quotation marks omitted) (quoting State v. Boland, 115 Wn.2d 571, 577, 800 P.2d 1112 (1990)); see also Puapuaga, 164 Wn.2d at 522. Private affairs are those that reveal intimate or discrete details of a person’s life. State v. Jorden, 160 Wn.2d 121, 126, 156 P.3d 893 (2007). Private affairs are determined, in part, by examining the historical
¶11 Here, the private affairs inquiry focuses on a jail visitor’s asserted privacy interest in her driver’s licensing information contained in a state government database that a law enforcement officer accessed. Our Supreme Court has definitively held that citizens of this state have no protected privacy interest under article I, section 7 of our state constitution in their Department of Licensing (DOL) driver’s records. McKinney, 148 Wn.2d at 32. As our Supreme Court explained,
DOL records are kept by a government agency for use by that agency and law enforcement. Considering the purpose for which these records are created, citizens of this state are not entitled to expect that their information is private and protected from disclosure for law enforcement purposes.
Based on the historical treatment of driver’s license records, the fact that these records reveal little about a person’s associations, financial dealings, or movements, and the purpose for which the State compiles and maintains these records, we hold that there is no protected privacy interest in the information contained in a DOL driver’s record under article I, section 7 of our state constitution.
McKinney, 148 Wn.2d at 32. McKinney controls and Hathaway’s private affairs were not intruded on by Deputy Anderson’s review of her driver’s licensing records. Because Hathaway’s private affairs were not intruded on, our article
¶12 An analysis of Hathaway’s argument under the Fourth Amendment fails for similar reasons. Division One of the Court of Appeals squarely addressed Hathaway’s Fourth Amendment argument when it considered State v. Martin, 106 Wn. App. 850, 25 P.3d 488 (2001), aff’d, sub nom. McKinney, 148 Wn.2d 20 (2002).
¶13 Accordingly, Hathaway’s arguments that Deputy Anderson’s search of her licensing records violated her article I, section 7 and Fourth Amendment privacy rights fail. Anderson’s search of Hathaway’s licensing information when she visited the jail did not invalidate her arrest and
Sufficiency of the Evidence
¶14 Hathaway next argues that the State failed to prove beyond a reasonable doubt that she constructively possessed methamphetamine. The State responds that it proved Hathaway’s actual possession of methamphetamine. We agree with the State.
¶15 Evidence is sufficient to support a conviction if, viewed in the light most favorable to the jury’s verdict, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State’s evidence and all reasonable inferences that a trier of fact can draw from that evidence. Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). The trier of fact is the sole and exclusive judge of the evidence. State v. Bencivenga, 137 Wn.2d 703, 709, 974 P.2d 832 (1999). We defer to the trier of fact’s resolution of conflicting testimony, evaluation of witness credibility, and decisions regarding the persuasiveness of evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
¶16 To prove unlawful possession of a controlled substance, the State must prove only “the nature of the substance and the fact of possession.” State v. Bradshaw,
¶17 Here, the evidence established Hathaway’s actual possession of the methamphetamine.
Jury Instruction: “Mere Proximity” Instruction
¶18 Next, Hathaway argues that the trial court prevented her from arguing her theory of the case — that she did not constructively possess the methamphetamine — by failing to give her proposed jury instruction that “[m]ere proximity alone is not enough to establish constructive possession.” CP at 37. We hold that the trial court did not abuse its discretion when denying Hathaway’s proposed instruction.
¶20 Hathaway correctly asserts that under Washington law, mere proximity, without more, is insufficient to establish constructive possession. See State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969); Portrey, 102 Wn. App. at 902-03. But decisions from both Division One and Division Three of the Court of Appeals have rejected the necessity of a mere proximity instruction under facts similar to Hathaway’s. In Castle, police discovered paraphernalia with cocaine residue in a bag behind the driver’s seat of Castle’s car after a traffic stop. 86 Wn. App. at 50. Castle told the police that the bag of drug paraphernalia was not his, that his car had been stolen about a month earlier, and that he had just recovered his car. Castle, 86 Wn. App. at 51. Castle proposed a mere proximity jury instruction, and Division One upheld the trial court’s decision rejecting the proposed language and instructing the jury using 11
¶21 Here, as in Portrey and Castle, the trial court gave the jury a complete and accurate statement of the law concerning possession that did not deprive Hathaway of the ability to present her theory of the case. And Hathaway actually argued to the jury that the only evidence of her guilt was her proximity to the methamphetamine because Deputy Anderson did not see where the vial came from. The trial court’s legally correct general jury instruction on possession allowed both sides an opportunity to present their theories of the case.
¶22 Moreover, the State did not rely only on Hathaway’s proximity to the contraband when presenting its case. Deputy Anderson testified he heard a “tink,” like “something hitting the ground,” before he saw the vial of methamphetamine on the ground. 1 RP at 43. Anderson also testified about the location of the vial on the ground near his patrol car’s wheels and how he would have driven over the vial if it had been there before the traffic stop. Here, the State did not rely on mere proximity and there was no
To-Convict Jury Instruction Elements
¶23 Hathaway argues that the to-convict jury instruction contained an extraneous element that became the law of the case. Specifically, she argues that the jury instruction required the State to prove that she unlawfully possessed a controlled substance beyond simply proving that she possessed it. We discern no error.
¶24 We review an alleged error of law in jury instructions de novo. State v. Willis, 153 Wn.2d 366, 370, 103 P.3d 1213 (2005). In Washington, “unlawful possession of a controlled substance” requires the State to prove only “the nature of the substance and the fact of possession.” Bradshaw, 152 Wn.2d at 538 (referring throughout the opinion to the “unlawful possession” statute as the “mere possession” statute). But defendants can assert an affirmative defense of unwitting or lawful possession. Bradshaw, 152 Wn.2d at 538; Staley, 123 Wn.2d at 799. This affirmative defense “ ‘ameliorates the harshness of the almost strict criminal liability our law imposes for unauthorized possession of a controlled substance.’ ” Bradshaw, 152 Wn.2d at 533 (quoting State v. Cleppe, 96 Wn.2d 373, 381, 635 P.2d 435 (1981), cert. denied, 456 U.S. 1006 (1982)).
¶25 Here, the trial court instructed the jury that
[t]o convict the defendant of the crime of possession of a controlled substance, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 16th day of July, 2008, the defendant unlawfully possessed a controlled substance; and
(2) That the acts occurred in the State of Washington.
*650 If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
CP at 49 (emphasis added).
¶26 Hathaway’s argument concerns the inclusion of “unlawfully” in this jury instruction. In the context of a methamphetamine possession case, “unlawfully” is a redundant term that does not add an element to the crime that the State had to prove. Although some controlled substances in Washington can be legally possessed and are subject to an affirmative defense of lawful possession, for example under certain conditions marijuana may be legally possessed for medicinal purposes under ch. 69.51A RCW, there are no circumstances under which a private citizen can lawfully possess methamphetamine.
¶27 Hathaway’s related argument that insufficient evidence supports her unlawful possession of methamphetamine also fails. The State alleged and presented sufficient evidence that Hathaway possessed a controlled substance, methamphetamine. Moreover, Hathaway did not raise an affirmative defense of lawful possession. Instead, she as
Juey Demand Fee
¶28 Hathaway contends that a “jury demand fee” of $1,604.53 exceeds the allowed statutory maximum. The State responds that court costs are not a final judgment appealable as a matter of right and, in the alternative, that statutes authorize the amount imposed. We remand for correction of the facially invalid jury demand fee imposed in Hathaway’s judgment and sentence.
¶29 The State raises valid points about whether a challenge to the legal financial obligation (LFO) jury demand fee is properly before us. Division One of this court addressed a related question in State v. Smits, 152 Wn. App. 514, 216 P.3d 1097 (2009). Smits sought review of a trial court’s decision denying his RCW 10.01.160(4) motion to terminate his LFOs. Smits, 152 Wn. App. at 518-19. The Smits court held that the trial court’s decision could not be appealed as a matter of right but might be eligible for discretionary review because it was not a final judgment “because the order to pay LFOs as part of the judgment and sentence is conditional, and RCW 10.01.160(4) allows a defendant to file a petition to modify or waive LFOs ‘at any time.’ ” 152 Wn. App. at 523. The court also suggested that Smits’s appeal was not ripe, and barred by RAP 3.1, because the government had not yet sought payment of the LFOs and, thus, Smits was not yet “ ‘aggrieved in a legal sense.’ ” Smits, 152 Wn. App. at 525 (quoting State v. Mahone, 98 Wn. App. 342, 347-48, 989 P.2d 583 (1999)).
¶30 Here, there is no evidence that the State has sought to enforce Hathaway’s LFOs, which include the challenged jury demand fee, and, based on Smits, her challenge is not properly before this court in this appeal as a matter of right. But RAP 1.2(c) permits us to waive or
¶31 Hathaway argues that the plain language of the court-fee-imposing statutes establishes a maximum jury fee that a sentencing court can impose. We review statutory construction de novo. State v. Wentz, 149 Wn.2d 342, 346, 68 P.3d 282 (2003). If the statute’s plain language and ordinary meaning is clear, we look only to the statute’s language to determine intent. Wentz, 149 Wn.2d at 346. We read provisions of a statute together to determine the legislative intent underlying the entire statutory scheme to achieve a harmonious and unified statutory scheme. State v. Chapman, 140 Wn.2d 436, 448, 998 P.2d 282, cert. denied, 531 U.S. 984 (2000).
¶32 RCW 10.01.160(1) permits the trial court to impose costs on a convicted defendant.
¶33 The plain language of the statutory scheme expressly allows a superior court to impose a jury demand fee in criminal cases on a defendant after his or her conviction. RCW 10.01.160(1); former RCW 10.01.160(2); RCW 10.46.190. And the jury demand fee cannot exceed $125.00 for a 6-person jury or $250.00 for a 12-person jury. RCW 36.18.016(3)(b). Here, the trial court imposed a $1,604.53 jury demand fee in Hathaway’s judgment and sentence. The trial court erred when it imposed a jury demand fee in excess of its statutory authority specified in RCW 36.18.016(3)(b). Accordingly, we remand to the trial court to impose fees based on the jury
¶34 We affirm Hathaway’s conviction but remand to the trial court for a correction to the judgment and sentence in accordance with this opinion.
Review denied at 172 Wn.2d 1021 (2011).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
At the beginning of Hathaway’s jury trial, the trial court granted the State’s motion to dismiss the driving with a suspended license charge.
The State’s proposed jury instructions are not included in the record on appeal. At trial, the State indicated it proposed the to-convict jury instruction
11 WPIC 50.02, at 946, states in relevant part,
To convict the defendant of the crime of possession of a controlled substance, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant possessed [a controlled substance] [(fill in controlled substance)]; and
(2) That this act occurred in the State of Washington.
(Alterations in original.)
State v. Gunwall, 106 Wn.2d 54, 61-62, 720 P.2d 808 (1986) (setting forth the factors for evaluating whether an issue merits independent state constitutional interpretation).
Our Supreme Court addressed only article I, section 7 in its review of Martin. McKinney, 148 Wn.2d at 23-24.
Hathaway also claims that her counsel was ineffective for failing to file a motion to suppress the evidence found in the search incident to her arrest that stemmed from the warrantless search of her driver’s licensing records. To establish ineffective assistance of counsel, Hathaway must show that (1) her counsel’s performance was deficient and (2) the deficient performance prejudiced her. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Because Deputy Anderson’s accessing of Hathaway’s driver’s licensing records did not violate her constitutional rights, it could not have formed the basis of a successful motion to suppress. Hathaway’s ineffective assistance of counsel claim fails.
Hathaway inaccurately states that “the State did not allege actual possession [and] the court instructed the jury on constructive possession.” Br. of Appellant at 12. The trial court’s jury instructions included the law on both actual possession and constructive possession.
Hathaway asserts that the proper standard of review is de novo. She believes the trial court committed an error of law by failing to give the requested mere proximity instruction. But even if this were a constructive possession case, which it is not, 11WPIC 50.03, at 949, in the form the trial court gave in this case, is a “complete and accurate” statement of the law of constructive possession. State v. Castle, 86 Wn. App. 48, 61, 935 P.2d 656, review denied, 133 Wn.2d 1014 (1997).
Methamphetamine is a schedule II drug. RCW 69.50.206(d)(2). Although RCW 69.50.308 allows for the prescribing and dispensing of schedule II drugs, this authority is limited to “medical treatment or authorized research” uses. RCW 69.50.308(a), (b)(1), (g).
Hathaway’s brief states that “the Information and the to-convict instruction” include the same extraneous unlawful element. Br. of Appellant at 15. Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration. State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992).
RCW 10.01.160(1) states,
The court may require a defendant to pay costs. Costs may be imposed only upon a convicted defendant, except for costs imposed upon a defendant’s entry into a deferred prosecution program, costs imposed upon a defendant for pretrial supervision, or costs imposed upon a defendant for preparing and serving a warrant for failure to appear.
Former RCW 10.01.160(2) states in relevant part,
Costs shall be limited to expenses specially incurred by the state in prosecuting the defendant or in administering the deferred prosecution program under chapter 10.05 RCW or pretrial supervision. . .. Expenses incurred for serving of warrants for failure to appear and jury fees under RCW 10.46.190 may be included in costs the court may require a defendant to pay.
(Emphasis added.)
RCW 10.46.190 states,
Every person convicted of a crime or held to bail to keep the peace shall be liable to all the costs of the proceedings against him or her, including, when*653 tried by a jury in the superior court or before a committing magistrate, a jury fee as provided for in civil actions for which judgment shall be rendered and collected. The jury fee, when collected for a case tried by the superior court, shall be paid to the clerk and applied as the jury fee in civil cases is applied.
The size of the jury is not clear in the record, but a criminal defendant in superior court has a right to 12 jurors unless he or she waives this right. Wash. Const, art I, § 21; see CrR 6.1(b); State v. Lane, 40 Wn.2d 734, 736-37, 246 P.2d 474 (1952).