Opinion
No. 35116-1-II.
October 23, 2007.
Appeal from a judgment of the Superior Court for Pacific County, No. 05-1-00218-1, Michael J. Sullivan, J., entered July 7, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Hunt and Quinn-Brintnall, JJ.
James Heslen seeks reversal of his convictions for possession of methamphetamine and driving with a suspended license, arguing that the State wrongfully obtained evidence of his crimes because the police officer stopped his car on a pretext. Heslen also contends that the trial court erroneously instructed the jury that unwitting possession was an affirmative defense and that his trial counsel ineffectively represented him by failing to object to the instruction. Finding no error, we affirm.
FACTS
One night after dark, State Patrol Trooper Shane Madsen pulled Heslen over in his 1978 Camaro because the license plate light was out. When Trooper Madsen discovered that Heslen's license was suspended, he arrested Heslen and, during a search incident to the arrest, found methamphetamine in Heslen's pocket. The State charged Heslen with possession of a controlled substance and driving with a suspended license in the second degree.
Heslen moved to suppress the methamphetamine, arguing that his license plate light was not out and that he was stopped on a pretext. At the hearing, both Heslen and his companion, Traci Vaughn, testified that the light was working before and after the stop. Trooper Madsen testified that Heslen had been driving in the opposite direction and as he passed, Madsen saw in his rear view mirror that the Camaro's license plate light was out. He checked again after making the stop, bending down and confirming that no light illuminated the license plate. Trooper Madsen also testified that he stopped Heslen only because of the failed license plate light and that he could not see the license plate. He estimated that he had made over 100 license plate light stops during his career and that he routinely stops cars without working license plate lights unless he is busy with another call or investigation.
The trial court issued a five-page memorandum opinion upholding the search. The trial court identified two disputed facts:
1. Whether the defendant's license plate['s] white light was working at the time the trooper observed it when defendant's vehicle passed by trooper[']s vehicle.
2. Whether the trooper's stop of the defendant's vehicle for an unlit license plate was actually a pretext for trying to discover some criminal activity.
Clerk's Papers (CP) at 12. The opinion then reviewed the testimony and concluded that "the initial stop for failing to properly illuminate the rear license plate was not a pretext stop based upon the evidence presented." CP at 14.
The court directed the State to prepare findings of fact and conclusions of law. The State did so by simply restating verbatim the "Undisputed Facts" and the "Disputed Facts" from the trial court's memorandum opinion; this included phrasing the "Disputed Facts" as questions or issue statements, not affirmative findings. The "Decision" at the end stated that "[t]he stop for failing to illuminate the license plate light pursuant to RCW 46.37.050 was lawful." The court signed the document. CP at 30.
Jury instruction number 8 stated as follows:
A person is not guilty of possession of a controlled substance if the possession is unwitting. Possession of a controlled substance is unwitting if a person did not know the substance was in his possession or did not know the nature of the substance.
The burden is on the defendant to prove by a preponderance of the evidence that the substance was possessed unwittingly. Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true.
Supplemental CP at 62. This instruction is identical to 11 Washington Practice: Washington Pattern Jury Instruction: Criminal 52.01 (2d ed. 2005) (WPIC). Neither counsel objected to instruction number 8.
ANALYSIS I. Validity of the Warrantless Traffic Stop
We presume that a search and seizure without the benefit of a warrant is not reasonable. State v. Acrey, 148 Wn.2d 738, 746, 64 P.3d 594 (2003). The State has the burden of proving that a valid exception to the warrant requirement applies to a warrantless search or seizure. State v. Evans, 159 Wn.2d 402, 407, 150 P.3d 105 (2007). A traffic stop is a "seizure" for constitutional purposes. State v. Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999). Here, the State asserts that Trooper Madsen had probable cause to stop Heslen's vehicle because Heslen was driving without a license plate light in violation of RCW 46.37.050(3). Heslen argued below that Trooper Madsen used the traffic infraction as a pretext, and the real reason he stopped Heslen was to conduct a criminal investigation unrelated to driving. Pretextual stops are prohibited under article I, section 7 of the Washington Constitution. Ladson, 138 Wn.2d at 358.
RCW 46.37.050(3) states: "Either a tail lamp or a separate lamp shall be so constructed and placed as to illuminate with a white light the rear registration plate and render it clearly legible from a distance of fifty feet to the rear."
On appeal, Heslen argues that the State did not meet its burden to justify the stop because (1) the trial court failed to enter a finding of fact as to whether the stop was pretextual, (2) the State bears the burden to disprove pretext, and (3) based on the trial court's failure to find that the stop was not pretextual, we must presume that the State failed to meet its burden under State v. Armenta, 134 Wn.2d 1, 14, 948 P.2d 1280 (1997). We disagree.
A. The Trial Court's Finding
CrR 3.6(b) requires the court to enter written findings of fact and conclusions of law following an evidentiary hearing on a motion to suppress. Here, the trial court was required to enter written findings resolving the factual disputes as to whether the license plate light was on and whether, even if it was, the stop was a pretext. The court delegated the drafting of the findings to the State, which did not directly address either disputed fact. Rather, the State-drafted document merely concluded in the "Decision" that "[t]he stop for failing to illuminate the license plate light pursuant to RCW 46.37.050 was lawful." CP at 30. Thus, Heslen is correct that the trial court did not directly address the license plate light in its written findings.
But in the absence of formal findings, we may still review findings in a trial court's memorandum opinion. See State v. Radka, 120 Wn. App. 43, 48, 83 P.3d 1038 (2004) ("although the trial court did not enter written findings . . . the court's oral opinion and the findings contained in its order provide sufficient information for review"); State v. Riley, 69 Wn. App. 349, 352-53, 848 P.2d 1288 (1993) ("although `failure to submit written findings . . . is error, such error is harmless where the trial court's oral findings are sufficient to permit appellate review'") (quoting State v. Smith, 67 Wn. App. 81, 87, 834 P.2d 26 (1992), aff'd by 123 Wn.2d 51 (1993)).
The memorandum opinion here comprehensively reviews the testimony at the hearing and concludes that "the initial stop for failing to properly illuminate the rear license plate was not a pretext stop based upon the evidence presented to the Court." CP at 14. Heslen does not challenge the sufficiency of this finding in the trial court's memorandum opinion, only its absence in the formal findings of fact. And the language of the trial court's memorandum — "not a pretext stop based upon the evidence presented to the Court" — satisfies us that the court also resolved the license plate light question in favor of the State.
II. Jury Instruction No. 8
Heslen argues that jury instruction number 8 erroneously characterized unwitting possession of a controlled substance as an affirmative defense, thereby shifting the burden of proof to him, citing State v. Carter, 127 Wn. App. 713, 718, 112 P.3d 561 (2005).
Heslen's argument fails. Carter concerned the unwitting possession of a firearm under RCW 9.41.040(1)(a), which requires proof of knowledge as an element of the crime. The Carter court held that the legislature intended to place the burden of proving a culpable mental state on the State and that requiring a defendant to disprove knowledge as a defense was inconsistent with the burden of proof instruction. See Carter, 127 Wn. App. at 717 (quoting State v. Anderson, 141 Wn.2d 357, 366, 5 P.3d 1247 (2000)). In contrast, possession of a controlled substance has no mens rea requirement. See RCW 69.50.4013. The Supreme Court has "specifically construed the statute not to include knowledge." State v. Bradshaw, 152 Wn.2d 528, 538, 98 P.3d 1190 (2004), cert. denied, 544 U.S. 922 (2005). The State has the burden of proving only the nature of the substance and the fact of possession. Bradshaw, 152 Wn.2d at 538.
At that point a defendant may offer the affirmative defense of unwitting possession, which mitigates the harshness of the strict liability offense and does not improperly shift the burden of proof. Bradshaw, 152 Wn.2d at 538. The trial court did not err in giving instruction number 8. See also State v. Rowell, 138 Wn. App. 780, 785, 158 P.3d 1248 (2007).
III. Ineffective Assistance
To show that counsel's representation was ineffective, Heslen must demonstrate both that (1) counsel's performance was so deficient that it "fell below an objective standard of reasonableness" and (2) the deficient performance prejudiced Heslen. State v. Brockob, 159 Wn.2d 311, 344-45, 150 P.3d 59 (2006); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). Here, Heslen's counsel's performance was not deficient because the instruction given was proper. The argument fails.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
Hunt, J. Quinn-Brintnall, J.