IN THE COURT OF APPEALS OFTHE STATE OF WASHINGTON

In the Matter of Reference to MICHAEL J. FULLER, A juvenile. STATE OF WASHINGTON, Respondent, V. MICHAEL J. FULLER, Appellant. No.76933-2-1 DIVISION ONE

UNPUBLISHED OPINION

FILED: June 18,2018 SCHINDLER,J.— Michael J. Fuller' appeals the juvenile court adjudication that he

was guilty of possession ofmarijuana in violation of RCW 69.50.4013. Fuller seeks dismissal,arguing he proved unwitting possession by a preponderance ofthe evidence. Fuller also contends RCW 69.50.4013 violates due process by unconstitutionally shifting the burden to Fuller to prove lack of knowledge. We affirm. FACTS Michael J. Fuller attends Blaine High School. During the first-period class on January 20,2017,the teacher smelled marijuana on 14-and-a-half -year -old Fuller and contacted Vice Principal Wayne Vezzetti.

I See Gen.Order 2017-1 of Divisions I, Ii, & Ill, In re Changes to Case Title (Wash.Ct App.), httpl/www.courts.wa.gov/appellate_trial_courtsMa=atc.genorders_orddisp&ordnumber=1-02184iv=1.No.76933-2-1/2

School security employee Kelly Freeman accompanied Fuller from the classroom to the vice principal's office. Freeman "noted the strong smell of marijuana"coming from Fuller. Vezzetti and Freeman searched Fuller's backpack and clothing. Freeman found "[a]small quantity of a green leafy substance"In the pocket of Fuller's sweatshirt and in the bottom of his backpack. Vezzetti called the Blaine Police Department. Officer Brent Greene responded. Officer Greene identified the leafy substance as "consistent with what marijuana looks like, and the smell also consistentwith marijuana." Officer Greene "noted a strong smell of marijuana coming from [Fuller]." After Fuller "turned out some of his pockets," Officer Greene found and collected more green leafy substance. Officer Greene read Fuller his Miranda2 rights with the juvenile warnings. Fuller told Officer Greene that "he didn't realize he still had marijuana on him." Officer Greene performed a field test and the "green leafy substance"tested positive for marijuana. Officer Greene arrested Fuller. Washington State Patrol Crime Laboratory forensic scientist Karen Finney tested and confirmed the substance was marijuana. The State charged Fuller as a juvenile with possession of a controlled substance

on January 20 In violation of RCW 69.50.4013. Fuller pleaded not guilty and asserted the defense of unwitting possession. At the adjudication hearing,Vezzetti, Freeman,Officer Greene,and Finney testified on behalf of the State.

2 Miranda v Arizona 384 U.S.436,86 S. Ct. 1602, 16 L. Ed.2d 694 (1966). 2No.76933-2-1/3

Vezzetti testified that there was a "very strong smell"ofmarijuana on Fuller. Freeman testified that the "strength ofthe odor. ..was pretty strong." Freeman said she found marijuana in Fuller's backpack. Freeman said she "emptied [the backpack] out on the desk"and the contents lust kind of went all over,and ...when I searched it, there was remnants of[marijuana]in the bottom of his bag because I had gotten it on my hand." Freeman testified that she found marijuana in the side pockets of Fuller's sweatshirt. Officer Greene testified that as soon as he walked into Vezzetti's office, "there

was a strong pungent odor of marijuana"coming from Fuller. Officer Greene testified he asked Fuller "aboutthe substance"and Fuller said he had "smoked marijuana three, four days prior to that,and didn't know that he still had it on his person." Fuller testified. Fuller said he had not smoked marijuana on January 20. Fuller testified that he was not "aware or being "in possession ofany marijuana." Fuller admitted he possessed marijuana "around the week before" but he did not know "there

were bits of marijuana in the pocket of that sweatshirt." Fuller admitted there was a "green leafy substance that came out of[his]pocket." Fuller said that marijuana "sticks to the fabric of the inside ofthe pocket pretty well." On cross-examination, Fuller admitted that he possessed marijuana the week before and that no one else had access to his sweatshirt. Q. Okay,and had you testified that you had marijuana in your pocket of your jacket a week prior,correct? A. Umm,kind of,in the, I don't remember having it in my pocket,but I did encounter marijuana the week prior. Q. Okay. So you know what marijuana looks like, correct? A. Yes. Q. And it was your sweatshirt, correct? A. Yes.

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Q. And you wear that sweatshirt every other day,you say? A. Notexactly every other, but pretty often. Q. Okay,and would you say you put your hands in your pockets pretty regularly? A. Yeah. Q. And you know that marijuana had been in your pocket? A. No. Q. Okay,but you had marijuana in your possession a week ago or a week prior to the 20th? A. Right around,yes. Q. Okay,and did anyone else have access to your sweatshirt? A. Not that I can think of. Fuller also testified that "nobody messed with" his backpack. During closing argument,the prosecutor argued the evidence established proof beyond a reasonable doubt that Fuller possessed marijuana. The prosecutor argued the evidence did not show unwitting possession. "There's no person In the middle who might have had access or placed the marijuana in his possession unwitting to Mr. Fuller. Mr. Fuller had full control ofall ofthe items that the marijuana was located in." The prosecutor argued Fuller "didn't think thatthere was any[ ]more marijuana on him, because essentially he had used it all." Defense counsel argued Fuller proved by a preponderance of the evidence that he did not know he had possession ofthe marijuana on January 20. [Fuller]admitted that he had had possession of marijuana prior to this incident about a week according to his testimony, about three or four days according to the testimony of law enforcement. Thatdoes not in any way establish that he had marijuana in that pocket. We know that marijuana was found in that pocket. So it's presumed thatthere was marijuana in there previous[ly], butwhat's at issue here is whether or not [Fuller]on this day had knowledge thatthat marijuana was in his pocket. Defense counsel also argued that the "minimal amount"of marijuana found on Fuller "suggests that he could certainly have possessed that without ...knowingly being in

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possession ofthat." In rebuttal, the prosecutor pointed out that "Washington [S]tate does not require knowledge in simple possession cases." The prosecutor argued,"Simply forgetting that you still had some on you,or not realizing that you still had some on you when you knew at one point you had it on you ...is [not]unwitting possession.... I didn't realize there was any left, that's not unwitting possession? The court ruled Fuller did not prove unwitting possession by a preponderance of the evidence. The court entered an order on adjudication and disposition finding Fuller guilty of possession of marijuana. The court imposed 12 months ofprobation. On May 31,2017,Fuller filed a notice ofappeal. On November 17,Fuller filed his opening brief. The court entered written findings offact and conclusions of law on December 5.3 ANALYSIS Unwitting Possession Fuller contends the court erred by concluding he did not prove unwitting possession by a preponderance of the evidence. Unwitting possession is an affirmative defense to a charge of possessing a controlled substance. State v. Staley, 123Wn.2d 794,799,872 P.2d 502(1994). "'Unwitting possession is a judicially created affirmative defense that may excuse the defendant's behavior, notwithstanding the defendant's violation of the letter ofthe statute.'" State v. Buford, 93Wn.App. 149, 151-52, 967 P.2d 548 (1998)(quoting State v. Balzer, 91 Wn.App.44,67,954 P.2d 931 (1998)). To establish the defense of

3 A commissioner ofthis courtgranted Fuller's motion to supplement his assignments oferror. 5No.76933-2-1/6

unwitting possession,the defendant must prove by a preponderance of the evidence that he did not know the substance was in his possession or did not know the nature of the substance. State v. Deer, 175 Wn.2d 725,735, 287 P.3d 539 (2012). In evaluating the persuasiveness of the evidence and the credibility ofwitnesses,we defer to the trier offact. State v.Andy, 182Wn.2d 294, 303,340 P.3d 840 (2014). We review challenged findings offactfor substantial evidence and challenged conclusions of law de novo. State v. Homan, 181 Wn.2d 102, 105-06,330 P.3d 182 (2014). Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth of the asserted premise. Homan,181 Wn.2d at 106. Unchallenged findings of fact are verities on appeal. State v.Acrev, 148 Wn.2d 738,745,64 P.3d 594 (2003). We review findings offact erroneously labeled conclusions of law as findings offact State v. Ross, 141 Wn.2d 304,309-10,4 P.3d 130 (2000). Fuller assigns error to conclusion of law 5(a). Conclusion of law 5 states: The Respondentfailed to prove the defense of Unwitting Possession by a preponderance of the evidence. a. Respondentfailed to show that he did not know he was in possession of marijuana. b. Respondentfailed to show that he did not know the nature of the substance located in his sweatshirt pockets and backpack. Fuller contends he proved unwitting possession by a preponderance ofthe evidence because the evidence shows he was "unaware"that he possessed marijuana. Substantial evidence supports conclusion of law 5(a)that Fuller "failed to show that he did not know he was in possession of marijuana." The uncontroverted testimony ofthree witnesses established that on January 20,

a very strong smell of marijuana emanated from Fuller. Vice Principal Vezzetti testified the "very strong smell" of marijuana was "very pungent,and so my suspicion was he

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had it on himself or he had smoked it." School security employee Freeman and Officer Greene also "noted a strong smell of marijuana coming from"Fuller. Fuller admitted he "know[s]what marijuana looks like" and possessed marijuana approximately a week before. Officer Greene testified that Fuller admitted he "smoked marijuana three,four days prior." Fuller told Officer Greene he "didn't know that he still had it on his person." Fuller testified he had "marijuana in [his]possession while ...wearing that sweatshirt." Fuller testified no one else had access to his sweatshirt or his backpack. Fuller said he put his hands in his pockets "pretty regularly." Freeman said that loose pieces of marijuana stuck to her hand when she searched Fuller's sweatshirt pockets and backpack,and Fuller testified marijuana "sticks to the fabric ofthe inside of the pocket pretty well." Fuller's testimony that"I don't remember having [marijuana]in my pocket"and that he was not "aware"he "still had it" on him does not negate knowledge and does not support an inference of unwitting possession. See,n, Buford, 93Wn.App.at 153; State v. Sundberq, 185 Wn.2d 147, 149-50, 156-57,370 P.3d 1(2016). Fuller also argues thatthe small amountofmarijuana found on him supports the defense of unwitting possession by a preponderance of the evidence. But the amount of marijuana does notdiminish the proof ofguilt. State v. Malone, 72Wn.App.429, 439,864 P.2d 990 (1994). Fuller assigns error to conclusion of law 6: The court concludes Respondent's explanation/assertion that he did not know the marijuana was in his possession is not credible based on the evidence presented at trial.

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Fuller contends substantial evidence does not support the finding because the court "did notfind [Fuller]was not credible" in its oral ruling. The trier offact decides all credibility issues. State v.Thomas, 150Wn.2d 821,874,83 P.3d 970 (2004), abrogated in part on other grounds by Crawford v.Washington 541 U.S. 36, 124 S.Ct. 1354, 158 L. Ed.2d 177 (2004). We will not set aside the court's credibility determination. See Thomas, 150Wn.2d at 874-75. Here,the court specifically found Fuller was not credible.' Of course,[Fuller]has the largest incentive to say what he had to say and to avoid a finding that he was in possession of marijuana. Lots of things are at stake,driver's license, many other things that could be impacted as a result of this. Fuller also argues the court misstated the law and improperly shifted the burden by requiring him to present evidence that the marijuana came into his possession without his knowledge. In support of his argument,Fuller cites out of context portions of the court's oral ruling. The record shows the courtweighed all the evidence and correctly stated and applied the law. The court ruled: The affirmative defense of unwitting possession which must be put forward by the Defendant requires him to show by a preponderance of the evidence either that he didn't know that he was In possession or didn't know the nature ofthe substance. The courtfound Fuller smelled strongly of marijuana. [F]our adults,all of whom stated they have some experience and some training regarding the identification [of]drugs by, particularly marijuana by odor said they smelled a strong odor— actually,three were by training, the [teacher]we didn't have testimony about his training, but he was the

4 We also note an oral decision "has no binding or final effect unless It is formally Incorporated Into findings offact, conclusions of law,and judgment' State v. Dailey, 93Wn.2d 454,458-59,610 Wn.2d 357 (1980). An oral decision may support,but not contradict, the findings offact State v Hinds 85 Wit.App.474,486,936 P.2d 1135(1997). 8No. 76933-2-1/9

one that first reported it and said Mr. Fuller smelled like marijuana. Ms. Freeman who has been trained and has a lot experience,mostly experience,said I smelled it. It was a strong odor. The same for the [vice] principal and the officer who clearly has been trained said,yes,it was a strong odor,and I smelled it as well. The court noted the marijuana found on Fuller was "a very small quantity.. ..It's not a whole lot in the sense that it would be obvious to someone that it existed if they

were to just put their hand in his pocket or his bag unless it stuck to their hand as Ms. Freeman testified it did to her." But the courtfound,"It's pretty clear from his testimony that he knows the nature of marijuana. He has had some in the past. He's aware of it." The courtfound the evidence established Fuller knew that he possessed marijuana and that he put the marijuana in his sweatshirt and backpack.

There is no indication or anything offered to the Court as to how the marijuana could have gotten into Mr. Fuller's backpack or his pockets other than from him. It is his testimony that within a matter of[a]few days or a week,he had had marijuana in his possession. It's his testimony that he wore this sweatshirtfrequently,every other day or more often,because it was one of his favorites. He testified that no one had messed with his backpack In the locker room,and no one else had worn,there's no evidence that anyone else had worn the sweatshirt. It is his testimony that he,the testimony was that he told the officer that he didn't know he still had any,which is consistentwith his previous admission that he had had some at sometime previously. . . . There needs to be,I think,some evidence ofa reason or a basis for the Court to find that it gotthere without his knowledge. I have no basis for that. In fact,the only evidence I have is evidence that it would have been there with his knowledge,quite possibly because ofthe factthat he had had some previously,and he wore the sweatshirt regularly,and nobody else had anything else to do with his backpack,and since the substance that was tested and found positive came from both the backpack and the pockets,and since the odor was noticeable by people around him,...there is sufficient evidence that someone in his position should have and would have known whatwas in his backpack,whatwas In his pockets,and would have noticed the odor.

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The court concluded Fuller did not prove by a preponderance ofthe evidence that he did not know he possessed marijuana. [T]he evidence requires the Court to make a determination based on all of that evidence,and for the defense to be supported would require the Court to have a basis in that evidence to determine that the marijuana got there without his knowledge,and all the evidence that I do have,what little I have,is that he is likely to have known about it. We conclude the court did not err in concluding Fuller failed to prove unwitting possession by a preponderance ofthe evidence. Entry of Findings of Fact and Conclusions of Law Fuller contends we must reverse the conviction and strike the untimely findings of fact and conclusions of law because they are tailored to meet the issues raised in his opening brief. We will not reverse a conviction based on the failure to enter timely findings and conclusions where the delay causes no prejudice to the defendant. State v. Byrd, 83 Wn.App.509,512,922 P.2d 168 (1996). "[Al defendant might be able to show prejudice resulting from the lack ofwritten findings and conclusions where there is strong indication thatfindings ultimately entered have been 'tailored'to meet issues raised on appeal? State v. Head, 136 Wn.2d 619,624-25,964 P.2d 1187(1998). An appellant cannot show prejudice where the findings and conclusions are consistent with the trial court's oral opinion and do not contain unanticipated information. State v. Brockob, 159Wn.2d 311,344, 150 P.3d 59(2006); State v. Cannon, 130Wn.2d 313, 330,922 P.2d 1293(1996). Fuller contends the findings "omit the trial court's erroneous understanding and application ofthe unwitting possession defense." But as previously noted,the record

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shows the court correctly stated and applied the defense of unwitting possession. Fuller asserts prejudice because the courtdid not include Officer Greene's testimony that Fuller told him "he did not know he was in possession ofany marijuana"and Fuller's testimony that he was not aware that he possessed marijuana in the findings. The findings offact make clear the court took into account that testimony. For example, findings offact 14 and 15 state: 14. Prior to the evidentiary portion of the trial, Respondent stipulated that his statements were voluntary and waived a [CrR]3.5 hearing. 15. On January 20,2017,Respondent told Officer Greene that he had marijuana three or four days prior. During his testimony, Respondent admitted to having possession of marijuana about a week prior to January 20,2017. Fuller cannot show prejudice from the delayed entry ofthe findings offact and conclusions of law. Due Process Fuller contends that requiring a defendant to prove unwitting possession violates due process because it allows the State to prove possession without requiring any culpable mental state.5 We review the constitutionality of a statute de novo. State v. Bradshaw, 152 Wn.2d 528,531,98 P.3d 1190(2004). A statute is presumed to be constitutional,and the party challenging a particular statute has the burden to prove it is unconstitutional. Homan, 181 Wn.2d at 113.

5 RCW 69.50.4013(1)states,"It Is unlawful for any person to possess a controlled substance unless the substance was obtained directly from,or pursuantto,a valid prescription or order of a practitioner while acting In the course of his or her professional practice,or except as otherwise authorized by this chapter.' 11No.76933-2-1/12

The Fourteenth Amendmentto the United States Constitution provides that no state may deprive a person of liberty withoutdue process of the law. Strict liability crimes do not necessarily violate due process. State v. Schmelinq, 191 Wn.App.795, 801,365 P.3d 202(2015). The legislature has the authority to create strict liability crimes thatdo not include a culpable mental state. Bradshaw, 152 Wn.2d at 532. In Schmelinq, we considered and rejected the same due process challenge to RCW 69.50.4013. Schmelinq, 191 Wn.2d at 801-02. We concluded the legislature has wide latitude to create strict liability crimes thatdo not require a culpable mental state and the Washington Supreme Court has repeatedly affirmed the legislature's authority to do so. Schmelinq, 191 Wn.2d at 801. We also concluded our Supreme Court has twice held the legislature intentionally omitted a mens rea elementfor the crime of possession of a controlled substance. Schmelinq, 191 Wn.2d at 801 (citing Bradshaw, 152Wn.2d at 534-38 (declining to imply a mens rea element where legislative Intent is clear): State v. Clerice, 96 Wn.2d 373, 380-81,635 P.2d 435(1981)). Thus,we held RCW 69.50.4013 does not violate due process even though it does not contain a mens
rea element. Schmelinq, 191 Wn.2d at 802. Fuller acknowledges but asks this court not to follow Schmelinq. Citing a federal district court case,Fuller contends RCW 69.50.4013 violates due process by shifting the burden to the defendant to prove his innocence. See May v. Ryan, 245 F.Supp.3d 1145, 1157-61 (D.Ariz. 2017)(removing sexual intentfrom child molestation law required defendant to prove a negative and unconstitutionally shifted burden of proof).

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But in Bradshaw, the Washington Supreme Court concluded the affirmative defense of unwitting possession did not shift the burden of proof:

The State has the burden of proving the elements of unlawful possession of a controlled substance as defined in the statute—the nature of the substance and the fact ofpossession. Defendants then can prove the affirmative defense of unwitting possession. This affirmative defense ameliorates the harshness ofa strict liability crime. It does not improperly shift the burden of proof. Bradshaw 152 Wn.2d at 538.6 Contrary to Fuller's assertion,RCW 69.50.4013does not require him to prove his innocence. RCW 69.50.4013 requires the State prove beyond a reasonable doubt that Fuller possessed marijuana. Accordingly,we hold RCW 69.50.4013does not violate due process. We affirm.

WE CONCUR: 

# cited,/

6 Citations omitted. 13