### FILED 

### JANUARY 19, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, V. WENDELL 

### L. MUSE, Appellant. 

### ) ) ) ) ) ) ) ) ) No. 34056-2-111

UNPUBLISHED OPINION

LAWRENCE-BERREY, 

### J. -WendellMuse appeals his conviction for possessionof methamphetamine. He argues thatRCW 69.50.4013 violates theEighth andFourteenth Amendmentstothe United States Constitutionbecause itmakes it a felony to possess drug residue without a culpable mental state. He also challengesthe constitutionality of the trial court'sreasonable doubt instruction. Wedisagree withhis arguments and affirm. FACTS OnApril 14, 2015, Mr. Muse returnedtohis apartment afterreceiving a call that it
was on fire. OfficerHolly Baynes respondedtothe fire. She askedMr. Muse for identification. She ran his identification inthe law enforcement database and learned that Mr. Musehad an outstanding arrestwarrant. Shethen arrestedMr. Muse and searchedNo. 34056-2-III State v. Muse
him incidentto arrest. She found a glass pipe in his pocket andnoticed a whitepowdery substance in the bowlpart ofit. The State chargedMr. Muse withpossession ofmethamphetamine. Attrial, the scientist from the Washington State Patrol Crime Laboratory testified thathe received the pipe and it had a "whiteresidue" in it. Report ofProceedings (RP) at 30. He testified he analyzed the white residue and determined it contained methamphetamine. Mr. Muse claimed the pipebelongedto his girlfriend, and he hadplacedthe pipe in his pocketbecause he was worried about her drug use. His defense was thathe did not know there was any methamphetamine in the pipe. The trial court instructed thejuryregarding the State's burden ofproofand reasonable doubt. Thetrial court gave an instructionbased 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 ofevidence. It is such a doubt as would exist in the mind ofa reasonable person after fully, fairly, and carefully considering all ofthe evidence or lack ofevidence. If, from such consideration, you have an abidingbeliefin the truth ofthe charge, you are satisfiedbeyond a reasonable doubt. Clerk's Papers (CP) at 11. Mr. Muse did not objectto this instruction. Thejury convicted Mr. Muse, and he filed a timely appeal.

2No. 34056-2-111 

### State v. Muse
ANALYSIS A. CONSTITUTIONALITY OF RCW 69.50.4013 Mr. Muse argues that RCW 69.50.4013 violates the Eighth Amendmentto the United States Constitution's prohibition ofcruel and unusual punishment and the Fourteenth Amendment's guarantee ofdue process because it makes possession ofdrug residue a felony withoutrequiring any culpable mental state. RCW 69.50.4013 makes it unlawful to possess a controlled substance without a validprescription or as otherwise authorized. This statute prohibits possessing 

### any amount ofa 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 rearequirement. 

### State v. Bradshaw, 152 Wn.2d 528, 539, 98 PJd 1190 (2004). This courtreviews the constitutionality ofa statute de novo. 

### Schmeling, 191 Wn. App. at 798. A statute is presumedto be constitutional, andthe party challenging the constitutionality ofa statute mustprove its unconstitutionality beyond a reasonable doubt. 

### Id. 1. 

### EighthAmendment Challenge The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. There are two types ofEighth Amendment analyses:
3No. 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 ofcrimes
or offenders. Graham v. Florida, 560 U.S. 48, 59-60, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (holding thatjuvenile offenders cannot be sentencedto life imprisonment without parole for nonhomicide offenses). The categorical analysis addresses whether aparticular punishment is categorically unconstitutional given the nature ofthe offense orthe characteristics ofthe offender. Id. at 60. The categorical analysis involves two steps: the court first determines "whetherthere is a national consensus against the sentencing practice at issue," and ifso, the courtthen exercises its own independentjudgmentin determining whetherthe punishment is unconstitutional in light ofthe culpability ofthe offenders and the severity ofthe punishment. Id. at 61, 67. Mr. Muse brings his Eighth Amendment challenge solely under the categorical analysis. Division Two ofthis 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 Courthas only applied
4No. 34056-2-III 

### State v. Muse
the Eighth Amendment categorical analysis to death penalty cases and cases involving life imprisonment forjuveniles. 

### Id. at 800. Because 

### Graham "did not hold or even suggest that the categorical approach should be applied to all adult sentences underthe Eighth Amendment," the 

### Schmeling court declined to apply it to punishment ofadult drug offenders in the absence ofany authority extending it to cases not involving the death penalty orjuvenile 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 onthe difference betweenjuveniles and adults and the propriety ofsentencingjuvenilesto 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 otherjurisdictions have applied the categorical analysis to adult sentences that do not involve the death penalty. He cites several examples. 

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


### 5No. 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 ofmurder under accomplice liability); 

### Iowa v. Oliver, 812 N.W.2d 636, 641-47 (Iowa 2012) (mandatory life withoutparole is constitutional as applied to adult convicted ofsecond 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 ofauthority-including a split between federal circuits-onthe issue ofwhether the EighthAmendment categorical analysis applies to cases not involving the death penalty or life sentences forjuveniles. 

### See Mossman, 294 Kan. at 926-27 (highlighting this split ofauthority). 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

1The 

### Schmeling court also noted that even ifthe categorical analysis was applicable, Mr. Schmeling failed to demonstrate a national consensus against punishing the possession ofdrug residue as a felony. 

### Schmeling, 191 Wn. App. at 800 n.4. The 

### Graham court reasoned that 39 of50 states did not impose a life withoutparole sentence for nonhomicidejuvenile offenses. 

### See Graham, 560 U.S. at 64. Here, Mr. Muse points to only 18 of50 states that do not impose a felony sentence for possessing drug residue without a culpable mental state. 

### See Br. ofAppellant at 7-8. 6No. 34056-2-III State v. Muse
2. Due Process Challenge Mr. Muse also raises a due process challenge to RCW 69.50.4013. Schmelingheld that RCW 69.50.4013 does not violate due process even though it makespossession of drug residue a felony without requiring any culpable mental state. Schmeling, 191 Wn. App. at 800-01. TheSchmeling courtreasoned thatthe legislature has wide latitude to create strict liability crimes that do not include a culpable mental state, andthatthe Washington Supreme Court has repeatedly statedthatthe legislature has this authority. 

### Id. The court further reasoned that the Washington Supreme Courthas considered whetherthe possession ofa 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 ofthose elements. Id at 801 (citing Bradshaw, 152 Wn.2d at 534-38; State v. Cleppe, 96 Wn.2d 373, 380-81, 635 P.2d435 (1981)). Mr. Muse acknowledges Schmelingbut asks this court notto follow it. He argues that Cleppe andBradshawwere only decided on principles ofstatutory construction and
are not controlling on the question ofwhetherthe lack ofa mens rea for possession violates due process. Mr. Muse is correct, butthis does not undermine the Schmeling court's reasoning. The Schmeling court's central pointwas that a due process challenge
7No. 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 thatthe Schmeling court "failedto 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. ofAppellant at 16. Although Mr. Schmeling cited several cases from otherjurisdictions holdingthat strict liability offenses violate due process, the Schmeling court found them unpersuasive in light ofour Supreme Court's repeated approval ofthe legislature's authority to adopt strict liability crimes and the express findings inBradshaw and Cleppe thatthe possession statute contains no mens rea element. See Schmeling, 191 Wn. App. at 802. Because Mr. Muse cites the same cases from otherjurisdictions that Mr. Schmeling did, we find his argument unpersuasive. B. REASONABLE DOUBT INSTRUCTION Mr. Muse argues, for the first time on appeal, thatthe trial court's reasonable doubt instruction violated his rights to ajurytrial and due process. Specifically, he contends the language instructing thejurymembers that they must "have an abiding belief in the truth ofthe charge" improperly encouraged thejuryto undertake a search for "the truth." Br. ofAppellant at 17.
8No. 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 ofmanifest error affecting a constitutional right. RAP 2.5(a)(3). This exception applies if: (1) the alleged error is truly ofa constitutional magnitude, and (2) the error is manifest. State v. Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253 (2015). 1. Constitutionalmagnitude Mr. Muse meets the first part ofthe RAP 2.5(a)(3) test. Whether an instruction misstates reasonable doubt is an issue ofconstitutional magnitude. Kalebaugh, 183 Wn.2d at 584.2. Manifest error An error is manifest ifit 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" ofthe error. Id. As explained below, there was no error, much less "manifest error." Our Supreme Courthas expressly approved WPIC 4.01 as a correct statement of the law and has directed trial courts to exclusively use it to instructjuries on the burden of proofand the definition ofreasonable doubt. See State v. Bennett, 161 Wn.2d 303,318,

9

### No. 34056-2-III State v. Muse
165 PJd 1241 (2007). Our Supreme Courthas also specifically approved the "abiding beliefin 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 thejuryto undertake a search for "thetruth," Mr. Muse cites State v. Emery, 174 Wn.2d 741, 278 PJd 653 (2012). InEmery, the prosecutortold thejuryin closing argument that its verdict needed to "'speakthe truth'" and then asked thejuryto "'speak the truth'" by finding the defendants guilty. Id. at 751. TheEmery courtheld that these statements were improperbecause it is not thejury'srole to determine the truth ofwhat happened. Id. at 760. Rather, thejury'srole is to determine whetherthe State has proved its case beyond a reasonable doubt. Id. Mr. Muse argues that WPIC 4.01 's "beliefin the truth" language is similarto the prosecutor's impermissible "speakthe truth" remarks at issue in Emery. However, Divisions One and Two have expressly rejected this argument, reasoning that WPIC 4.01 's "beliefin the truth" language, when read in context, accurately informs thejury 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 PJd784, review denied, 181 Wn.2d 1009, 335 PJd941 (2014); see also State v. Kinzle, 181 Wn.
10

### No. 34056-2-III State v. Muse 

### App. 774, 784, 326 P.3d 870 (reasoning that the "beliefin the truth" language "merely elaborates on what it means to be 'satisfiedbeyond a reasonable doubt'"), review denied, 

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

### suggested that thejury'srole was to solve the case, the "beliefin the truth" language in WPIC 4.01 correctly invites thejuryto 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

### andPirtle 

### argued infavor 

### ofWPIC 4.01. While this is true, it is unclear why this is relevant-it does not change the Bennett

### court's approval ofWPIC 4.01 orthe Pirtle 

### court's approval ofWPIC 4.01 's "beliefin the truth" language. Mr. Muse also argues that the defendants in Bennett 

### and Pirtle 

### never challenged the constitutionality ofthe "beliefin the truth" language. This is also true, butDivisions One and Two never citedBennett 

### orPirtle 

### for this proposition. Rather, Divisions One and Two reasoned that the "beliefin the truth" language, when read in context, accurately informs thejury ofits role, invites thejuryto weigh the evidence, and does not ask the jury to solve the case.
11No. 34056-2-III State v. Muse Although Mr. Muse highlights several differences betweenBennett andPirtle 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 manifesterror. C. APPELLATE COSTS Mr. Muse also asks this courtto 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, "theparty 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, pursuantto 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 whenthe State substantiallyprevails

2 "A 'prevailingparty' is any party thatreceives somejudgmentin its favor. If neitherparty completely prevails, the court must decide which, ifeither, substantially prevailed." Guillen v. Contreras, 169 Wn.2d 769, 775, 238 P.3d 1168 (2010) (citations omitted) (quotingRiss v. Angel, 131 Wn.2d 612,633,934 P.2d 669 (1997)). Here, the State is the substantially prevailingparty. 12No. 34056-2-III State v. Muse

on appeal. 

### It directs defendants who want this court to exercise its discretion notto impose appellate costs to make theirrequest, together with citations to legal authority and references to relevantparts ofthe record, either in their opening briefor in a motion pursuant to RAP 17. Mr. Muse has complied with this particularrequirement in his opening brief. 

### Ifinability to pay is a factor alleged to supportthe defendant's request, the General Order also requires defendants to include in the appellate record the clerk'spapers, exhibits, and the reports ofproceedings 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 ofindigency with the clerk's papers and the transcript ofhis sentencing hearing. 3 However, the General Orderrequires defendants to file a report as to continued indigency with this court no laterthan 60 days after they file their opening briefs. Although Mr. Muse's opening briefwas filed one month after the General Orderwent into effect, Mr. Muse has not compliedwith 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 ofworking and has worked his entire life, but also indicates that he was unemployed at the time ofsentencing and also lost many ofhis possessions in the house fire. 13No. 34056-2-III State 

### v. Muse
Mr. Muse asks this courtto not impose appellate costs because the trial court found him indigent for purposes ofappeal. While orders ofindigency enteredpursuant to RAP 15.2 allow criminal defendants to pursue appeals atpublic expense, they do not preventthe State from attempting to recoup costs ifthe 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 courtto 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, whilepersuasive, is an appeal to this court's discretion, the exercise ofwhich this courthas 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 substantiallyprevailingparty on appeal. But should Mr. Muse file a statementthat comports with our June General Order within 14 days ofthe filing ofthis decision, we direct our commissionerto allow the late statement

14No. 34056-2-III State v. Muse
and consider his motion. IfMr. Muse does not file such a statementwithin 14 days, the State thereafter has 10 days to file a cost bill with this courtpursuant to RAP 14.4(a). Affirmed. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

I CONCUR: 

## j

Pennell, J.



### 15

### No. 34056-2-111 FEARING, 

### C.J. (concurring)- I concur in all rulings ofthe majority. I write separately because I question the soundness ofthe ruling that finding a person guilty of possession ofa controlled substance, when authorities capture one with a minute amount ofthe 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 ofcontrolled 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 ofthe mere possession statute is unconstitutional because the statute is vague, criminalizes innocentbehavior, and adversely affects the right to intrastate and interstate travel. Defendants also contendthatthe doctrine ofdominion or control is unconstitutionally vague. Theparty 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 meetthis standard and offer little analysis to support any oftheir constitutional arguments. As the Court ofAppeals stated: Bradshaw andLatovlovici also assertthat without a scienter element, RCW 69.50.401 is unconstitutionally vague and violative ofsubstantive due process principles. Butthey have not adequately briefedthese arguments. They fail to explain howpersons ofordinary intelligence would not understand whatthe 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 sufficientto commandjudicial 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] (quotingIn re Pers. Restraint of Rosier, 105 Wn.2d 606,616, 717 P.2d 1353 (1986) (quoting UnitedStates 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 thatneither intent nor guilty knowledge is an element ofthe crime ofpossession ofa controlled substance. The court did not entertain any constitutional argument. State v. Schmeling's reliance onthe 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. 2No. 34056-2-III 

### State v. Muse
In 

### State v. Schmeling, the defendant cited 

### UnitedStates v. Wulff, 758 F.2d 1121 (6th Cir. 1985), and

### Louisiana v. Brown, 389 So. 2d48 (La. 1980), wherein the respective courts reversed, on constitutional grounds, convictions ofcrimes without a
mens rea. In his brief, Wendell Muse cites numerous foreign decisions, wherein the respective courts heldthat one cannot be convicted ofpossession when found with trace amounts ofa controlled substance orwhen one lacks knowledge ofhis orherpossession. I would welcome our state high court thoroughly addressing whether convicting
one ofpossession ofa controlled substance, when one unknowingly possesses trace amounts ofthe substance, violates eitherthe state or federal dueprocess clause. In the meantime, I will follow ourholding in 

### State v. Schmeling.

Fe~ 1 

## j-:

3