FILED 

JANUARY 19, 2017 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division Ill 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

STATE OF WASHINGTON, 

Respondent, 

V. 

WENDELL L. MUSE, 

Appellant. 

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No. 34056-2-111 

UNPUBLISHED OPINION 

LAWRENCE-BERREY, J. -Wendell Muse appeals his conviction for possession of 

methamphetamine. He argues that RCW 69.50.4013 violates the Eighth and Fourteenth 

Amendments to the United States Constitution because it makes it a felony to possess 

drug residue without a culpable mental state. He also challenges the constitutionality of 

the trial court's reasonable doubt instruction. We disagree with his arguments and affirm. 

FACTS 

On April 14, 2015, Mr. Muse returned to his apartment after receiving a call that it 

was on fire. Officer Holly Baynes responded to the fire. She asked Mr. Muse for 

identification. She ran his identification in the law enforcement database and learned that 

Mr. Muse had an outstanding arrest warrant. She then arrested Mr. Muse and searched 
No. 34056-2-III 

State v. Muse 

him incident to arrest. She found a glass pipe in his pocket and noticed a white powdery 

substance in the bowl part of it. 

The State charged Mr. Muse with possession of methamphetamine. At trial, the 

scientist from the Washington State Patrol Crime Laboratory testified that he received the 

pipe and it had a "white residue" in it. Report of Proceedings (RP) at 30. He testified he 

analyzed the white residue and determined it contained methamphetamine. 

Mr. Muse claimed the pipe belonged to his girlfriend, and he had placed the pipe 

in his pocket because he was worried about her drug use. His defense was that he did not 

know there was any methamphetamine in the pipe. 

The trial court instructed the jury regarding the State's burden of proof and 

reasonable doubt. The trial court gave an instruction based on Washington Pattern Jury 

Instruction: Criminal (WPIC) 4.01 in defining reasonable doubt: 

A reasonable doubt is one for which a reason exists and may arise 

from the evidence or lack of evidence. It is such a doubt as would exist in 

the mind of a reasonable person after fully, fairly, and carefully considering 

all of the evidence or lack of evidence. If, from such consideration, you 

have an abiding belief in the truth of the charge, you are satisfied beyond a 

reasonable doubt. 

Clerk's Papers (CP) at 11. Mr. Muse did not object to this instruction. 

The jury convicted Mr. Muse, and he filed a timely appeal. 

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ANALYSIS 

A. CONSTITUTIONALITY OF RCW 69.50.4013 

Mr. Muse argues that RCW 69.50.4013 violates the Eighth Amendment to the 

United States Constitution's prohibition of cruel and unusual punishment and the 

Fourteenth Amendment's guarantee of due process because it makes possession of drug 

residue a felony without requiring any culpable mental state. 

RCW 69.50.4013 makes it unlawful to possess a controlled substance without a 

valid prescription or as otherwise authorized. This statute prohibits possessing any 

amount of a controlled substance, including residue. State v. Schmeling, 191 Wn. App. 

795, 797 n.2, 365 P.3d 202 (2015). This statute also contains no mens rea requirement. 

State v. Bradshaw, 152 Wn.2d 528, 539, 98 PJd 1190 (2004). 

This court reviews the constitutionality of a statute de novo. Schmeling, 191 Wn. 

App. at 798. A statute is presumed to be constitutional, and the party challenging the 

constitutionality of a statute must prove its unconstitutionality beyond a reasonable doubt. 

Id. 

1. Eighth Amendment Challenge 

The Eighth Amendment to the United States Constitution prohibits cruel and 

unusual punishment. There are two types of Eighth Amendment analyses: 

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No. 34056-2-III 

State v. Muse 

( 1) determining whether a sentence is disproportionate to the particular crime, and 

(2) using categorical rules to define constitutional standards for certain classes of crimes 

or offenders. Graham v. Florida, 560 U.S. 48, 59-60, 130 S. Ct. 2011, 176 L. Ed. 2d 825 

(2010) (holding that juvenile offenders cannot be sentenced to life imprisonment without 

parole for nonhomicide offenses). The categorical analysis addresses whether a particular 

punishment is categorically unconstitutional given the nature of the offense or the 

characteristics of the offender. Id. at 60. The categorical analysis involves two steps: the 

court first determines "whether there is a national consensus against the sentencing 

practice at issue," and if so, the court then exercises its own independent judgment in 

determining whether the punishment is unconstitutional in light of the culpability of the 

offenders and the severity of the punishment. Id. at 61, 67. Mr. Muse brings his Eighth 

Amendment challenge solely under the categorical analysis. 

Division Two of this court recently addressed an identical Eighth Amendment 

categorical challenge to RCW 69.50.4013 in Schmeling, 191 Wn. App. at 799-800. Like 

Mr. Muse argues in this case, Mr. Schmeling also argued that Graham required the court 

to find RCW 69.50.4013 unconstitutional as applied because it makes possessing drug 

residue without any culpable mental state a felony. Id. at 800-01. The Schmeling court 

rejected this argument, reasoning that the United States Supreme Court has only applied 

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No. 34056-2-III 

State v. Muse 

the Eighth Amendment categorical analysis to death penalty cases and cases involving life 

imprisonment for juveniles. Id. at 800. Because Graham "did not hold or even suggest 

that the categorical approach should be applied to all adult sentences under the Eighth 

Amendment," the Schmeling court declined to apply it to punishment of adult drug 

offenders in the absence of any authority extending it to cases not involving the death 

penalty or juvenile offenders. Id. 

Mr. Muse acknowledges Schmeling but argues it was wrongly decided for two 

reasons. He first argues that Schmeling erroneously cited State v. Witherspoon, 180 

Wn.2d 875, 329 P.3d 888 (2014) for the proposition that the Washington Supreme Court 

has "rejected the categorical approach for adult offenders in non-capital cases." Br. of 

Appellant at 15. The Schmeling court actually cited Witherspoon for the proposition that 

"the holding in Graham was based on the difference between juveniles and adults and the 

propriety of sentencing juveniles to life in prison." Schmeling, 191 Wn. App. at 800 

( citing Witherspoon, 180 Wn.2d at 890). This was correct. See Witherspoon, 180 Wn.2d 

at 890. 

Mr. Muse also argues that other jurisdictions have applied the categorical analysis 

to adult sentences that do not involve the death penalty. He cites several examples. See 

United States v. Williams, 636 F.3d 1229, 1233-34 (9th Cir. 2011) (lifetime supervised 

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No. 34056-2-III 

State v. Muse 

release is constitutional as applied to adult sex offenders); Illinois v. Brown, 2012 IL App 

(1st) 091940, ,i,i 58-76, 967 N.E.2d 1004, 359 Ill. Dec. 974 (mandatory life without 

parole is constitutional as applied to developmentally disabled adult convicted of murder 

under accomplice liability); Iowa v. Oliver, 812 N.W.2d 636, 641-47 (Iowa 2012) 

(mandatory life without parole is constitutional as applied to adult convicted of second 

statutory rape offense); Kansas v. Mossman, 294 Kan. 901, 925-30, 281 P.3d 153 (2012) 

(mandatory lifetime supervision is constitutional as applied to first-time adult sex 

offenders). 

There is a split of authority-including a split between federal circuits-on the 

issue of whether the Eighth Amendment categorical analysis applies to cases not 

involving the death penalty or life sentences for juveniles. See Mossman, 294 Kan. at 

926-27 (highlighting this split of authority). Because the authorities Mr. Muse cites are 

not binding, we agree with Schmeling's persuasive reasoning and similarly decline to 

extend the categorical analysis here. 1 

1 The Schmeling court also noted that even if the categorical analysis was 

applicable, Mr. Schmeling failed to demonstrate a national consensus against punishing 

the possession of drug residue as a felony. Schmeling, 191 Wn. App. at 800 n.4. The 

Graham court reasoned that 39 of 50 states did not impose a life without parole sentence 

for nonhomicide juvenile offenses. See Graham, 560 U.S. at 64. Here, Mr. Muse points 

to only 18 of 50 states that do not impose a felony sentence for possessing drug residue 

without a culpable mental state. See Br. of Appellant at 7-8. 

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No. 34056-2-III 

State v. Muse 

2. Due Process Challenge 

Mr. Muse also raises a due process challenge to RCW 69.50.4013. Schmeling held 

that RCW 69.50.4013 does not violate due process even though it makes possession of 

drug residue a felony without requiring any culpable mental state. Schmeling, 191 Wn. 

App. at 800-01. The Schmeling court reasoned that the legislature has wide latitude to 

create strict liability crimes that do not include a culpable mental state, and that the 

Washington Supreme Court has repeatedly stated that the legislature has this authority. 

Id. The court further reasoned that the Washington Supreme Court has considered 

whether the possession of a controlled substance statute contains a mens rea element 

twice, and it concluded both times that the legislature intentionally omitted a mens rea 

element and also declined to imply the existence of those elements. Id at 801 (citing 

Bradshaw, 152 Wn.2d at 534-38; State v. Cleppe, 96 Wn.2d 373, 380-81, 635 P.2d 435 

(1981)). 

Mr. Muse acknowledges Schmeling but asks this court not to follow it. He argues 

that Cleppe and Bradshaw were only decided on principles of statutory construction and 

are not controlling on the question of whether the lack of a mens rea for possession 

violates due process. Mr. Muse is correct, but this does not undermine the Schmeling 

court's reasoning. The Schmeling court's central point was that a due process challenge 

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No. 34056-2-III 

State v. Muse 

to strict liability crimes lacks historical support in both the United States Supreme Court 

and in Washington courts. 

Mr. Muse argues that the Schmeling court "failed to articulate a framework for 

analyzing due process challenges to strict liability crimes," but this was because Mr. 

Schmeling failed to cite any Washington precedent for such a challenge. Br. of Appellant 

at 16. Although Mr. Schmeling cited several cases from other jurisdictions holding that 

strict liability offenses violate due process, the Schmeling court found them unpersuasive 

in light of our Supreme Court's repeated approval of the legislature's authority to adopt 

strict liability crimes and the express findings in Bradshaw and Cleppe that the possession 

statute contains no mens rea element. See Schmeling, 191 Wn. App. at 802. Because Mr. 

Muse cites the same cases from other jurisdictions that Mr. Schmeling did, we find his 

argument unpersuasive. 

B. REASONABLE DOUBT INSTRUCTION 

Mr. Muse argues, for the first time on appeal, that the trial court's reasonable 

doubt instruction violated his rights to a jury trial and due process. Specifically, he 

contends the language instructing the jury members that they must "have an abiding belief 

in the truth of the charge" improperly encouraged the jury to undertake a search for "the 

truth." Br. of Appellant at 17. 

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No. 34056-2-III 

State v. Muse 

A party generally waives an issue on appeal when he or she fails to raise the issue 

at trial. RAP 2.5(a). An exception exists for a claim of manifest error affecting a 

constitutional right. RAP 2.5(a)(3). This exception applies if: (1) the alleged error is 

truly of a constitutional magnitude, and (2) the error is manifest. State v. Kalebaugh, 183 

Wn.2d 578, 583, 355 P.3d 253 (2015). 

1. Constitutional magnitude 

Mr. Muse meets the first part of the RAP 2.5(a)(3) test. Whether an instruction 

misstates reasonable doubt is an issue of constitutional magnitude. Kalebaugh, 183 

Wn.2d at 584. 

2. Manifest error 

An error is manifest if it had practical and identifiable consequences at trial. Id. 

And an error is practical and identifiable if, at the time the error was made, the "trial court 

should have known" of the error. Id. As explained below, there was no error, much less 

"manifest error." 

Our Supreme Court has expressly approved WPIC 4.01 as a correct statement of 

the law and has directed trial courts to exclusively use it to instruct juries on the burden of 

proof and the definition of reasonable doubt. See State v. Bennett, 161 Wn.2d 303,318, 

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No. 34056-2-III 

State v. Muse 

165 PJd 1241 (2007). Our Supreme Court has also specifically approved the "abiding 

belief in the truth" language. State v. Pirtle, 127 Wn.2d 628,658,904 P.2d 245 (1995). 

In arguing that the trial court's reasonable doubt instruction impermissibly 

encouraged the jury to undertake a search for "the truth," Mr. Muse cites State v. Emery, 

174 Wn.2d 741, 278 PJd 653 (2012). In Emery, the prosecutor told the jury in closing 

argument that its verdict needed to "' speak the truth'" and then asked the jury to "' speak 

the truth'" by finding the defendants guilty. Id. at 7 51. The Emery court held that these 

statements were improper because it is not the jury's role to determine the truth of what 

happened. Id. at 760. Rather, the jury's role is to determine whether the State has proved 

its case beyond a reasonable doubt. Id. 

Mr. Muse argues that WPIC 4.01 's "belief in the truth" language is similar to the 

prosecutor's impermissible "speak the truth" remarks at issue in Emery. However, 

Divisions One and Two have expressly rejected this argument, reasoning that WPIC 

4.01 's "belief in the truth" language, when read in context, accurately informs the jury 

that its role is to determine whether the State has proved its case beyond a reasonable 

doubt. See State v. Jenson, 194 Wn. App. 900, 902, 378 PJd 270, review denied,_ PJd 

_, 2016 WL 7166674; State v. Fedorov, 181 Wn. App. 187, 199-200, 324 PJd 784, 

review denied, 181 Wn.2d 1009, 335 PJd 941 (2014); see also State v. Kinzle, 181 Wn. 

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No. 34056-2-III 

State v. Muse 

App. 774, 784, 326 P.3d 870 (reasoning that the "belief in the truth" language "merely 

elaborates on what it means to be 'satisfied beyond a reasonable doubt'"), review denied, 

181 Wn.2d 1019, 337 P.3d 325 (2014). While the prosecutor's remarks in Emery 

suggested that the jury's role was to solve the case, the "belief in the truth" language in 

WPIC 4.01 correctly invites the jury to weigh the evidence. Jenson, 194 Wn. App. at 

902. 

Mr. Muse acknowledges these cases but argues they were wrongly decided 

because Divisions One and Two wrongly relied on Bennett, 161 Wn.2d 303 and Pirtle, 

127 Wn.2d 628. He first argues that the defendants in Bennett and Pirtle argued in favor 

of WPIC 4.01. While this is true, it is unclear why this is relevant-it does not change the 

Bennett court's approval of WPIC 4.01 or the Pirtle court's approval of WPIC 4.01 's 

"belief in the truth" language. 

Mr. Muse also argues that the defendants in Bennett and Pirtle never challenged 

the constitutionality of the "belief in the truth" language. This is also true, but Divisions 

One and Two never cited Bennett or Pirtle for this proposition. Rather, Divisions One 

and Two reasoned that the "belief in the truth" language, when read in context, accurately 

informs the jury of its role, invites the jury to weigh the evidence, and does not ask the 

jury to solve the case. 

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No. 34056-2-III 

State v. Muse 

Although Mr. Muse highlights several differences between Bennett and Pirtle and 

the cases from Divisions One and Two, he ultimately fails to explain how Division One's 

and Division Two's reasoning is wrong. Accordingly, he fails to establish the trial court's 

reasonable doubt instruction was error, much less manifest error. 

C. APPELLATE COSTS 

Mr. Muse also asks this court to decline to impose appellate costs in its decision 

terminating review. 

An appellate court has discretion to require a convicted defendant to pay appellate 

costs to the State. See RCW 10.73.160(1); RAP 14.2. Generally, "the party that 

substantially prevails on review" will be awarded appellate costs, unless the court directs 

otherwise in its decision terminating review. 2 RAP 14.2. An appellate court's authority 

to award costs is "permissive," and a court may, pursuant to RAP 14.2, decline to award 

costs at all. See State v. Nolan, 141 Wn.2d 620, 628, 8 P.3d 300 (2000). 

On June 10, 2016, this court issued a "General Court Order" (General Order) 

regarding defendants' requests to deny cost awards when the State substantially prevails 

2 "A 'prevailing party' is any party that receives some judgment in its favor. If 

neither party completely prevails, the court must decide which, if either, substantially 

prevailed." Guillen v. Contreras, 169 Wn.2d 769, 775, 238 P.3d 1168 (2010) (citations 

omitted) (quoting Riss v. Angel, 131 Wn.2d 612,633,934 P.2d 669 (1997)). Here, the 

State is the substantially prevailing party. 

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State v. Muse 

on appeal. It directs defendants who want this court to exercise its discretion not to 

impose appellate costs to make their request, together with citations to legal authority and 

references to relevant parts of the record, either in their opening brief or in a motion 

pursuant to RAP 17. Mr. Muse has complied with this particular requirement in his 

opening brief. 

If inability to pay is a factor alleged to support the defendant's request, the General 

Order also requires defendants to include in the appellate record the clerk's papers, 

exhibits, and the reports of proceedings relating to the trial court's determination of 

indigency and the defendant's current or likely ability to pay discretionary legal financial 

obligations. Mr. Muse designated the trial court's order of indigency with the clerk's 

papers and the transcript of his sentencing hearing. 3 However, the General Order requires 

defendants to file a report as to continued indigency with this court no later than 60 days 

after they file their opening briefs. Although Mr. Muse's opening brief was filed one 

month after the General Order went into effect, Mr. Muse has not complied with this 

requirement. Because Mr. Muse has not complied with the court's General Order, we 

will not exercise our discretion to waive appellate costs. 

3 The transcript indicates that Mr. Muse is capable of working and has worked his 

entire life, but also indicates that he was unemployed at the time of sentencing and also 

lost many of his possessions in the house fire. 

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No. 34056-2-III 

State v. Muse 

Mr. Muse asks this court to not impose appellate costs because the trial court 

found him indigent for purposes of appeal. While orders of indigency entered pursuant to 

RAP 15.2 allow criminal defendants to pursue appeals at public expense, they do not 

prevent the State from attempting to recoup costs if the defendant's appeal is 

unsuccessful. See generally State v. Obert, 50 Wn. App. 139, 143, 747 P.2d 502 (1987). 

Mr. Muse also asks this court to not impose appellate costs because the problems 

recognized in State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015) apply equally to 

appellate costs. However, unlike RCW 10.01.160(3), which was at issue in Blazina, the 

statute authorizing appellate costs does not require an inquiry into the defendant's 

financial resources before appellate costs are imposed. See RCW 10.73.160; State v. 

Sinclair, 192 Wn. App. 380,389, 367 P.3d 612, review denied, 185 Wn.2d 1034, 377 

P.3d 733 (2016). This argument, while persuasive, is an appeal to this court's discretion, 

the exercise of which this court has already delineated in its General Order. 

Because Mr. Muse has not complied with this court's General Order, we 

tentatively award costs to the State as the substantially prevailing party on appeal. But 

should Mr. Muse file a statement that comports with our June General Order within 14 

days of the filing of this decision, we direct our commissioner to allow the late statement 

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No. 34056-2-III 

State v. Muse 

and consider his motion. If Mr. Muse does not file such a statement within 14 days, the 

State thereafter has 10 days to file a cost bill with this court pursuant to RAP 14.4(a). 

Affirmed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

I CONCUR: j 

Pennell, J. 

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No. 34056-2-111 

FEARING, C.J. (concurring)- I concur in all rulings of the majority. I write 

separately because I question the soundness of the ruling that finding a person guilty of 

possession of a controlled substance, when authorities capture one with a minute amount 

of the controlled substance, does not violate the due process clause. 

The majority grounds its ruling, in response to Wendell Muse's due process claim, 

on State v. Schmeling, 191 Wn. App. 795, 365 P.3d 202 (2015). In Schmeling, this court 

held that convicting an accused under RCW 69.50.4013, the possession of controlled 

substance statute, does not violate the due process clause. 

When rejecting a due process challenge to the controlled substance act, the 

Schmeling court relied on State v. Bradshaw, 152 Wn.2d 528, 532, 98 P.3d 1190 (2004) 

and State v. Cleppe, 96 Wn.2d 373,635 P.2d 435 (1981). In each decision, our state high 

court held that the State need not show any mens rea under RCW 69.50.4013. In 

Bradshaw, the court also addressed a constitutional challenge from Donald Bradshaw and 

coappellant by writing: 
No. 34056-2-III 

State v. Muse 

Defendants argue that Cleppe's interpretation of the mere possession 

statute is unconstitutional because the statute is vague, criminalizes 

innocent behavior, and adversely affects the right to intrastate and interstate 

travel. Defendants also contend that the doctrine of dominion or control is 

unconstitutionally vague. 

The party asserting that a statute is unconstitutionally vague must 

prove vagueness beyond a reasonable doubt. City of Seattle v. Eze, 111 

Wn.2d 22, 26, 759 P.2d 366 (1988). Defendants fail to meet this standard 

and offer little analysis to support any of their constitutional arguments. As 

the Court of Appeals stated: 

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. 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.' " 

[State v.] Bradshaw, [117 Wn. App. 1019], 2003 WL 21322200, at *2, 

2003 Wash. App. LEXIS 1142 [aff'd, 152 Wn.2d 528] (quoting In re Pers. 

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))). 

State v. Bradshaw, 152 Wn.2d at 539. 

In State v. Cleppe, the high court also held that neither intent nor guilty knowledge 

is an element of the crime of possession of a controlled substance. The court did not 

entertain any constitutional argument. 

State v. Schmeling's reliance on the two Supreme Court decisions is shaky. 

Bradshaw summarily dismissed the due process challenge principally because of 

inadequate briefing, cleverly characterized as naked castings. Cleppe does not answer 

any due process question. 

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State v. Muse 

In State v. Schmeling, the defendant cited United States v. Wulff, 758 F.2d 1121 

(6th Cir. 1985), and Louisiana v. Brown, 389 So. 2d 48 (La. 1980), wherein the 

respective courts reversed, on constitutional grounds, convictions of crimes without a 

mens rea. In his brief, Wendell Muse cites numerous foreign decisions, wherein the 

respective courts held that one cannot be convicted of possession when found with trace 

amounts of a controlled substance or when one lacks knowledge of his or her possession. 

I would welcome our state high court thoroughly addressing whether convicting 

one of possession of a controlled substance, when one unknowingly possesses trace 

amounts of the substance, violates either the state or federal due process clause. In the 

meantime, I will follow our holding in State v. Schmeling. 

Fe~1 j-: 

3