Opinion
No. 24688-4-III.
April 19, 2007.
Appeal from a judgment of the Superior Court for Benton County, No. 04-1-00423-7, Vic L. VanderSchoor, J., entered November 3, 2005.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Kulik, J., and Kato, J. Pro Tem.
UNPUBLISHED OPINION
This is a prosecution for possession of methamphetamine. The defendant's friend slipped him a foil wrapper under a table. The defendant took it to a bathroom stall and tried to light it. He admitted that the substance was probably illegal but denied knowing that it was methamphetamine. At trial, the court refused to admit character evidence or a corresponding character instruction. The court also refused to instruct on a lesser included offense. We find no abuse of discretion and the evidence does not support a lesser included instruction. We therefore affirm.
FACTS
James Robinson and Raylene Rabal met for drinks. They first drank at her home. They then went to a casino where they drank more. Mr. Robinson was drunk by the early morning hours of April 1, 2004.
Ms. Rabal slipped Mr. Robinson a piece of foil. Mr. Robinson took the foil into a restroom, opened the foil, and found a white powder. He tried to light the powder. He later told a jury that the substance burst into flames so he blew it out without inhaling it. He told the jury that he had used over-the-counter ephedrine before, but that he had never used methamphetamine. He said he never would have lit it had he known the substance was methamphetamine. On cross-examination, the security guard testified that ephedrine and methamphetamine have a similar appearance — a white powder.
A security guard watched Mr. Robinson through the crack in the stall door. He confronted Mr. Robinson and took the foil of charred residue away from him. Casino security then called the police. Mr. Robinson told a police officer that he did not know what the substance was, but that he thought it was an "upper." Report of Proceedings (RP) at 24, 71. He refused to tell the officer where he got the substance. The foil contained methamphetamine. The State charged Mr. Robinson with possession of methamphetamine.
The court instructed the jury on Mr. Robinson's defense of voluntary intoxication (drinking affected his ability to form the necessary mental state for the crime charged). The court also instructed on unwitting possession (unwitting if he did not know that the substance was in his possession). Clerk's Papers at 23, 25; RP at 75-76.
But the court refused to allow Mr. Robinson to present evidence of his reputation for sobriety. And the court refused to instruct the jury on character and good reputation evidence. The court also refused to instruct the jury on a "lesser included offense" of possession of a legend drug. The jury rejected Mr. Robinson's defense and found him guilty of possession of methamphetamine.
DISCUSSION
Evidence of Reputation for Sobriety Mr. Robinson relies on the case of City of Kennewick v. Day for the proposition that a trial judge must admit evidence of a defendant's reputation for sobriety if that defendant presents evidence that he did not know the identity of the substance that he accepted. He testified that, " I didn't really know. I suspected it might be illegal but I had no inkling of an idea." RP at 67 (emphasis added).
142 Wn.2d 1, 11 P.3d 304 (2000).
"We review a trial court's decision to admit or exclude evidence for abuse of discretion." Day, 142 Wn.2d at 5. This means that the trial judge must have had a tenable reason or tenable grounds for refusing to allow evidence that Mr. Robinson did not use illegal drugs. Id.
The factual scenario here is easily distinguishable from that presented in Day. In Day, the defendant's car had been in the body and repair shop for four months before police found drugs inside of it. Id. at 4. The shop had fired an employee for suspected drug use. And a prior customer complained of finding drug paraphernalia in a car after it was picked up from the shop. Id. The Day court held that the defendant should have been permitted to show that he never used drugs. Thus, "if a defendant claims to have been unaware of the presence of a controlled substance at all, the defendant's nonuse of drugs lends support to this claim." Id. at 12 (emphasis added). Because "[a] person who does not use drugs (by reputation) is less likely to possess drugs," this reputation evidence is admissible under ER 404(a)(1). Id.
Here, Mr. Robinson did not deny that Ms. Rabal may have given him drugs. He merely says that they were different drugs than what he thought they were. But that did not stop Mr. Robinson from (1) securing matches from the bartender, (2) going to a private toilet stall, (3) opening the foil, and then (4) lighting the powder in the foil. Unlike Day, there is an explanation in this case as to how Mr. Robinson came into possession of these drugs — he accepted them from Ms. Rabal. The court nevertheless gave an unwitting possession instruction and allowed Mr. Robinson to argue the nature of his knowledge. State v. Bradshaw, 152 Wn.2d 528, 537, 98 P.3d 1190 (2004) ("The legislative history of the mere possession statute is clear. The legislature omitted the `knowingly or intentionally' language from the Uniform Controlled Substances Act [chapter 69.50 RCW].").
Mr. Robinson also relies on State v. Eakins to argue that the court erred as a matter of law by excluding his offer of character evidence. There, the court reversed a second degree assault conviction — even though the defendant admitted the assault — because the excluded character evidence for his peaceful reputation was relevant to his diminished capacity defense. The Eakins court concluded that, had the evidence been admitted, the jury could have determined that the defendant was known for his peaceful disposition and would be unlikely to intend bodily harm or the apprehension of bodily harm to another person. Eakins, 127 Wn.2d at 503. Thus, the evidence would have given weight to his diminished capacity defense.
127 Wn.2d 490, 503, 902 P.2d 1236 (1995).
But the charge there was second degree assault. Id. at 491-92. It requires a showing of intent. Id. at 492; State v. Eastmond, 129 Wn.2d 497, 499-500, 919 P.2d 577 (1996). The charge here was possession of drugs. Intent is not an element of possession of drugs.
Bradshaw, 152 Wn.2d at 532-40.
The trial judge in Mr. Robinson's case did not abuse his discretion by refusing the offer of character evidence and the related instruction. See Day, 142 Wn.2d at 4. The judge based his ruling on a correct reading of Day. Mr. Robinson does not claim that someone surreptitiously put this foil packet of unknown white powder in his pants pocket or car.
Moreover, if the court were to adopt Mr. Robinson's interpretation, it would be inviting "character evidence" to support the notion that the character of a person who uses one illegal drug is distinguishable from that of a person who uses another. That pushes the use of character evidence beyond the purpose of the rule. See State v. Thomas, 110 Wn.2d 859, 757 P.2d 512 (1988).
Instruction Good Character and Reputation Mr. Robinson also argues that he was entitled to an instruction on character. Thomas, 110 Wn.2d at 867. Again, our review is for abuse of discretion. State v. Picard, 90 Wn. App. 890, 902, 954 P.2d 336 (1998).
Mr. Robinson asked the court to instruct the jury that:
Any evidence that bears upon good character and good reputation of the defendant should be considered by you, along with all other evidence, in determining your verdict. However, even if you find that the defendant is a person of good character or reputation, you should not acquit if you are convinced beyond a reasonable doubt of the defendant's guilt.
11 Washington Practice: Washington Pattern Jury Instructions: Criminal 6.12, at 138 (2d ed. 1994).
Mr. Robinson all but conceded that he received an illegal drug. He went off to a toilet stall to light what he suspected was an illegal substance. His character is not at issue. His confusion over the powder he had been given by Ms. Rabal was the factual issue he raised.
We conclude that the trial judge did not abuse his discretion by refusing the character instruction after correctly refusing to admit evidence that Mr. Robinson did not use methamphetamine. Picard, 90 Wn. App. at 902.
Lesser Included Offense — Possession of a Legend Drug Mr. Robinson next argues that he was entitled to a lesser included offense instruction of possession of ephedrine, because ephedrine is a component of methamphetamine. He maintains that there is an inference that the lesser crime was committed. Mr. Robinson provided evidence that his possession of methamphetamine was unwitting because he did not know the nature of the substance he possessed, but he thought that it might be ephedrine.
The State responds that the statutory definition of a legend drug is contrary to his assertion. Mr. Robinson's mere belief that he possessed some kind of ephedrine is not competent evidence to support an instruction.
We review the trial judge's refusal to give a lesser included instruction de novo. State v. Tamalini, 134 Wn.2d 725, 729, 953 P.2d 450 (1998). The defendant is entitled to the instruction if the facts of the case warrant the lesser included instruction. Id. at 728-29.
A trial court should give a lesser included offense instruction when: (1) each element of the lesser offense is a necessary element of the offense charged (the legal test), and (2) the facts support an inference that only the lesser offense, not the charged offense, was committed (the factual test). State v. Berlin, 133 Wn.2d 541, 545-46, 947 P.2d 700 (1997) (citing State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978)). If the party seeking the instruction does not satisfy the legal prong of the test, the court need not address the factual prong. State v. Davis, 117 Wn. App. 702, 707, 72 P.3d 1134 (2003).
Even if we accept Mr. Robinson's version of the facts, it does not support the second prong of Workman. He did not say, "I had compound A (methamphetamine), but I thought I had compound B (ephedrine)." He said that he did not know what he had, but that he suspected it was illegal.
The Workman test was not satisfied here.
We affirm the conviction.
A majority of the panel has determined that 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.
Kulik, J. Kato, J. Pro Tem. CONCUR