                                                                        FILED
                                                                    OCTOBER 18, 2016
                                                                 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,                          )
                                              )        No. 33575-5-111
                     Respondent,              )
                                              )
       V.                                     )
                                              )
CHARLES D. COLE,                              )        UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, J. -    Charles Cole appeals his conviction of one count of possession

ofmethamphetamine and two counts of bail jumping. He challenges the sufficiency of

the evidence to support one of the bail jumping counts, an evidentiary ruling, the court's

limitation of his closing argument, alleged prosecutorial misconduct in the State's closing

argument, the constitutionality of two statutes under which he was charged, and the legal

financial obligations imposed.
No. 33575-5-111
State v. Cole


       We find the court's exclusion of evidence of Mr. Cole's pattern of appearing in

court to be reversible error as to the second bail jumping count, reverse that conviction,

and remand for a new trial on that count. We find no other error or abuse of discretion

and affirm his convictions of unlawful possession of a controlled substance and the first

bail jumping count.

                      FACTS AND PROCEDURAL BACKGROUND

       In June 2014, a Wenatchee police officer arrested Charles Cole on an active

misdemeanor warrant. During a search incident to arrest, he found a cigarette package

containing a glass smoking pipe in the pocket of a pair of shorts Mr. Cole was carrying.

Residue in the pipe proved to be methamphetamine. The State charged Mr. Cole with

one count of unlawful possession of a controlled substance--methamphetamine.

       At the time of Mr. Cole's preliminary appearance, the court set bail and entered an

order establishing conditions of release, including that Mr. Cole personally appear in

court for "all hearings scheduled in this matter." Report of Proceedings (RP) at 155-57.

Mr. Cole signed the order, acknowledging its terms. Id.; Ex. 24.

       On September 29, 2014, Mr. Cole appeared in court for a readiness hearing. The

court entered a new scheduling order, setting trial for October 21, 2014, and a new

readiness hearing for October 15, 2014. Mr. Cole signed, acknowledging the order.

       Mr. Cole failed to appear for the readiness hearing on October 15, so the court

struck the trial date and issued a warrant for his arrest. Mr. Cole did appear in court the

                                              2
No. 33575-5-111
State v. Cole


next day, October 16, for a CrR 3.5 hearing that had been specially set, but by the time of

Mr. Cole's appearance, the CrR 3.5 hearing had been stricken because of his failure to

appear the day before. The State amended the information to include a count of bail

jumping. Mr. Cole later explained that he did not appear in court on October 15 because

upon receiving notice of the October 16 hearing, he thought it was a rescheduling of the

October 15 hearing.

      Five days after his failure to appear, Mr. Cole and his lawyer appeared in court on

a motion to quash the arrest warrant. The court quashed the warrant and set a new trial

date for December 16, 2014, setting the readiness hearing for December 1, 2014. Mr.

Cole signed, acknowledging the order.

       On December 1, Mr. Cole again failed to appear for his readiness hearing. The

court issued another warrant for his arrest and the State amended the information to

include a second count of bail jumping.

      Mr. Cole later explained that he failed to appear in court on December 1 because

while en route to court that morning from his home on Badger Mountain, he "put [his]

vehicle into a ditch." RP at 232. According to him, "I didn't have any transportation

because my vehicle was in the ditch. And because it was Monday early, the roads up

there hadn't been plowed and so I had to go find somebody to help me get my truck out

of the ditch." RP at 233.




                                             3
No. 33575-5-111
State v. Cole


       The case ultimately proceeded to trial on June 18, 2015. As an affirmative defense

to the December 1 bail jumping charge, Mr. Cole asserted that the automobile mishap

that morning prevented him from appearing. See RCW 9A.76.l 70(2) ("uncontrollable

circumstances" defense). He sought to offer evidence that he had appeared in court for

the criminal case on 23 other occasions as support for his claim that he wasn't able to

make it to court on December 1. The State objected on grounds of relevance and the

court sustained the objection.

       During closing argument, Mr. Cole's lawyer attempted to explain the State's

burden of proving guilt beyond a reasonable doubt by contrasting it with other burdens of

proof. The State objected when he began to discuss the "clear and convincing" burden of

proof, on the basis that it was outside of the instructions. RP at 307-08. The court

sustained the objection.

      During the State's closing argument, the prosecutor argued that Mr. Cole was not

entitled to the affirmative defense of "uncontrollable circumstances." The statutory

defense does not apply if a defendant contributes to creating the circumstances that

prevent his appearance, in reckless disregard of the requirement to appear. The

prosecutor asked the jurors whether someone living on a mountain shouldn't know that

"between November 1st and March 31st, you might want to put some studs on your car

... or you might want to put some chains on your car? . . . [And] maybe you should

work on your car, maybe get your car prepped[?]" RP at 300. Mr. Cole's lawyer did not

                                             4
No. 33575-5-111
State v. Cole


object, but in his own closing argument he told jurors that the State's attorney "made

several remarks that were not supported by the evidence" reminding them that closing

arguments are not evidence. RP at 305.

       The jury found Mr. Cole guilty on all three counts. The court imposed a standard

range sentence totaling six months and ran the sentences concurrently. It imposed $1,850

in legal financial obligations (LFOs ), observing:

       You previously testified that you work, I think collecting firewood, and
       have a job selling that and so the Court believes that in fact you can make
       payments on these financial obligations and have this paid off over time.

RP at 347.

       Mr. Cole appeals.
                                        ANALYSIS

       Mr. Cole makes the following assignments of error on appeal: that (1) the State

presented insufficient evidence on one of the count's of bail jumping, (2) the trial court

erred when it excluded evidence of 23 other occasions when Mr. Cole appeared in court,

(3) the trial court erred when it prohibited defense counsel from discussing the clear,

cogent, and convincing burden of proof, (4) the prosecutor improperly argued facts not in

evidence during closing argument, (5) RCW 69.50.4013 and RCW 9A.76.l 70, under

which Mr. Cole was charged, violate due process, and (6) the trial court improperly




                                              5
No. 33575-5-111
State v. Cole


imposed LFOs on Mr. Cole. 1 We address the assignments of error in the order stated

                   I. Evidence Sufficiency: Bail Jumping on October 15

       Mr. Cole first challenges the sufficiency of the evidence to support his conviction

of the first count of bail jumping. He challenges its sufficiency to support only the first

element: "That on or about the 15th day of October, 2014, the defendant failed to appear

before a court." Clerk's Paper's (CP) at 44. He argues that his appearance before the

court on October 16, 2014, was "on or about October 15."

       In reviewing a challenge to the sufficiency of evidence, we review the evidence in

the light most favorable to the State to determine "' whether any rational fact finder could

have found the essential elements of the crime beyond a reasonable doubt.'" State v.

Drum, 168 Wn.2d 23, 34-35, 225 P.3d 237 (2010) (quoting State v. Wentz, 149 Wn.2d

342, 347, 68 P.3d 282 (2003)). "In claiming insufficient evidence, the defendant

necessarily admits the truth of the State's evidence and all reasonable inferences that can

be drawn from it." Id. at 35.

       Because October 16 is "on or about" October 15, Mr. Cole argues that the State

did not prove that "Mr. Cole did not appear in court 'on or about' October 15th"-a

slight, but critical, misstatement of the instruction. Br. of Appellant at 9 (emphasis



       1 Mr. Cole also argues cumulative error, but since we find no error or abuse of
discretion affecting his convictions of possession of a controlled substance and the first
bail jumping count, there can be no "cumulative" error as to the convictions we affirm.

                                              6
No. 33575-5-111
State v. Cole


added). We agree that October 16 is "on or about" October 15. But proving that Mr.

Cole did not appear in court at all on or about October 15 is different from proving that

Mr. Cole, who had notices of hearings scheduled at specific times on October 15 and 16

and only appeared for one, "failed to appear before a court" during that period of time.

       The jury had been instructed that "[a] person commits the crime of bail jumping

when he or she fails to appear as required ... with knowledge of the requirement of a

subsequent personal appearance before a court." CP at 43. Undisputed evidence

established that Mr. Cole had two court appearance obligations on or about October 15,

and that he failed to appear for the first. That was sufficient to prove the required

element that "on or about the 15th day of October, 2014, the defendant failed to appear

before a court." CP at 44.

                        11 Excluding Evidence of 23 Appearances

       Mr. Cole next argues the trial court erred when it sustained an objection to the

relevance of evidence that he had made 23 other appearances in court in connection with

his criminal case. On appeal, he argues the evidence was relevant "to show that he did

not knowingly or intentionally fail to appear on October 15 and December 1." Br. of

Appellant at 11. He argues the exclusion was not harmless in part because "credibility

was a key issue at trial on all three counts," and the evidence bore on "trustworthiness,"

which the prosecutor treated as key in argument to the jury. Id. at 12.




                                              7
No. 33575-5-III
State v. Cole


       At trial, however, Mr. Cole offered the evidence as bearing only on the charge of

bail jumping on December 1. He asserted the affirmative defense of uncontrollable

circumstances only as to that count, and the jury was so instructed. See RP at 12; CP at

4 7. In explaining why he was offering the evidence, he told the court it was in

connection with the failure to appear on December 1:

       Q This case has been pending for almost a year. How many times have
      you been to court on this case?
            [PROSECUTOR]: Objection, relevance.
            [DEFENSE COUNSEL]: Well, it is relevant because it goes to
      whether or not he had knowledge and intentionally missed a court date or
      whether or not he wasn't able to make it to court on December 1st.
            THE COURT: The objection is sustained.

RP at 234 (emphasis added). At trial, Mr. Cole's lawyer did not argue that the evidence

of the 23 appearances was relevant to the missed court date on October 15. He did not

claim to be offering the evidence on issues of credibility or trustworthiness. We will not

consider those arguments for the first time on appeal. RAP 2.5(a).

      Turning to the objection that was made in the trial court, evidence of the 23

appearances was not relevant to the elements the State was required to prove. Bail

jumping has a knowledge element, but it falls short of intentional failure to appear. RCW

9A.76.170(1) defines the crime ofbailjumping:

      Any person having been released by court order or admitted to bail with
      knowledge of the requirement of a subsequent personal appearance before
      any court of this state ... and who fails to appear ... as required is guilty
      of bail jumping.



                                             8
No. 33575-5-111
State v. Cole


Thus the knowledge element the State must prove is that the defendant was "released ...

or admitted to bail with knowledge of the requirement of a subsequent personal

appearance."

       The State is not required to prove that when the hearing date arrives, the defendant

still has it in mind. See State v. Ball, 97 Wn. App. 534, 536-37, 987 P.2d 632 (1999)

(finding knowledge where defendant signed a document that set the date for his next

court appearance). And '"I forgot' is not a defense to the crime of bail jumping." State

v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004).

       But to say that evidence of 23 prior appearances was not relevant to the State's

case is not to say that it was irrelevant to Mr. Cole's affirmative defense.

"Uncontrollable circumstances" are the one, sufficient, excuse for a failure to appear,

unlike other insufficient excuses such as "I forgot." RCW 9A.76.170(2) provides:

       It is an affirmative defense to a prosecution under this section that
       uncontrollable circumstances prevented the person from appearing or
       surrendering, and that the person did not contribute to the creation of
       such circumstances in reckless disregard of the requirement to appear or
       surrender, and that the person appeared or surrendered as soon as such
       circumstances ceased to exist.

An automobile accident is an "uncontrollable circumstance." RCW 9A.76.010(4). A

defendant must establish the affirmative defense of uncontrollable circumstances by a

preponderance of the evidence. See, e.g., State v. Jeffrey, 77 Wn. App. 222,225, 889

P.2d 956 (1995).



                                              9
No. 33575-5-111
State v. Cole


       Relevant evidence is "evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence." ER 401. "The threshold to admit

relevant evidence is very low[; e]ven minimally relevant evidence is admissible." State

v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002).

       "A trial court's ruling on the admissibility of evidence is reviewed for abuse of

discretion." Id. at 619. "A trial court abuses its discretion if its decision is manifestly

unreasonable or based on untenable grounds or untenable reasons." Teter v. Deck, 174

Wn.2d 207,215, 274 P.3d 336 (2012).

       Evidence of Mr. Cole's 23 other appearances has a tendency to make his

contention that an auto accident prevented him from appearing on December 1 more

probable than ifhe had a lesser track record for court appearances. Cf Allard v. Nw.

Contract Co., 64 Wash. 14, 17, 116 P. 457 (1911) (trial court erred in excluding evidence

of plaintiffs prior conduct during quarry blasts, which "afforded some ground for belief

that such might have been his conduct on this occasion"). Indeed, if Mr. Cole had a poor

track record for appearances, the State might well seek to offer evidence of that history to

challenge his claim of uncontrollable circumstances on December 1. Cf United States v.

Luttrell, 612 F.2d 396 (8th Cir. 1980) (in prosecution for failure to file tax returns,

Federal Rule of Evidence 406 supported admission of failure to file earlier returns).




                                              10
l
l   No. 33575-5-111
    State v. Cole


            Mr. Cole's lawyer's argument at trial for why evidence of the prior appearances

    was relevant was partly correct and partly wrong. It was wrong insofar as he argued, "[i]t

    goes to whether or not he had knowledge and intentionally missed a court date." It was

    right insofar as he argued, "[i]t goes to ... whether or not he wasn't able to make it to

    court on December 1st." RP at 234. A reasonable juror could infer from 23 prior

    appearances that Mr. Cole was not allowing run-of-the-mill conflicts or inconveniences

    to interfere with his court appearances. Because that would make it more likely that

    something uncontrollable came up on December 1, it was error to exclude the evidence as

    irrelevant. 2

            Since evidentiary errors are not of constitutional magnitude, they are harmless unless

    "' within reasonable probabilities, the outcome of the trial would have been materially

    affected had the error not occurred."' State v. Bourgeois, 133 Wn.2d 389,403, 945 P.2d

    1120 (1997) (quoting State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981)). An error

    in an evidentiary ruling is harmless if "the evidence is of minor significance in reference

    to the overall, overwhelming evidence as a whole." Id.



            2 The State addresses "character evidence" in its response brief, which was fairly
    invited by the appellant's argument for the first time on appeal that the evidence of the 23
    appearances went to Mr. Cole's character. By limiting ourselves to Mr. Cole's objection
    in the trial court, we need not discuss character evidence issues. The 23 appearances do
    not bear on Mr. Cole's character, which could be bad or good. They only bear on the fact
    that he had a pattern of appearing at court when required.



                                                    11
lI
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i     No. 33575-5-111
      State v. Cole
I
I
I
             We do not find this error to have been harmless. Mr. Cole presented third party

      evidence that he appeared in court as soon as possible after the missed appearance on


I     December 1. But he presented no evidence of his early morning accident other than his

      own testimony. His trial lawyer would reasonably have expected that evidence of Mr.

!I'   Cole's practice of appearing would be admitted. Within reasonable probabilities, the


!     verdict on the December 1 bail jumping charge would have been materially affected had

I     the evidence been admitted. We reverse the conviction on count three and remand for a

      new trial on that count.

'
I                                III. Closing Argument re Burdens ofProof
I
             Mr. Cole next argues the trial court erred when it sustained a State objection to its
I     argument comparing the criminal burden of proof to burdens of proof in civil cases.
I
I
             Mr. Cole's lawyer began by telling jurors,

             [W]hat I want to talk to you about is the fact that this is a criminal matter
             and beyond a reasonable doubt, that's the highest standard of proof that we
             have in the law.

      RP at 306-07. When he contrasted that with "preponderance of the evidence," he drew

      an objection from the State that the court overruled because "[t]he jurors have the

      instructions in front of them regarding the definitions," and "[T]his is argument." RP at

      307. "Preponderance of the evidence" had been defined for jurors because it was the

      burden Mr. Cole bore in proving his affirmative defense to the December 1 bail jumping

      charge.

                                                   12
No. 33575-5-III
State v. Cole


       When Mr. Cole's lawyer turned to "[t]he next level of proof that we have in the

law[,] ... clear and convincing proof," however, the State's objection that "[a]rgument is

outside the instructions" was sustained. RP at 307-08. The jurors had received no

instruction on clear and convincing evidence.

       During closing, "argument by counsel must be restricted to the facts in evidence

and the applicable law, lest the jury be confused or mislead." State v. Perez-Cervantes,

141 Wn.2d 468,474, 6 P.3d 1160 (2000). Accordingly, "[c]ounsel's statements ... must

be confined to the law as set forth in the instructions to the jury." Id. at 475. Burdens of

proof are matters of law. A trial court's decision to limit the scope of closing argument is

reviewed for abuse of discretion. State v. Frost, 160 Wn.2d 765, 771, 161 P.3d 361

(2007).

       Members of the panel recognize that the argument Mr. Cole sought to advance is

not uncommon in criminal trials and in many cases comes in without objection. When

the burdens are correctly stated and compared, such argument will not mislead a jury.

Nonetheless, where Mr. Cole had not sought and obtained a court instruction explaining

the intermediate clear and convincing standard of proof, it was the trial court's

prerogative to strictly enforce the principle that the court, not the lawyers, provides jurors

with the applicable law.

       State v. Osman, 192 Wn. App. 355, 377, 366 P.3d 956 (2016), which Mr. Cole

cites as supporting his challenge, is inapposite. There, the trial court abused its discretion

                                              13
No. 33575-5-111
State v. Cole


when it limited the defendant's nonmisleading discussion of "abiding belief," a term that

appeared in the jury's instructions. Here, the trial court did not abuse its discretion.

                             IV. Prosecutor's Closing Argument

       Mr. Cole next contends the prosecutor argued evidence outside the record during

closing argument when he implied to jurors that Mr. Cole was reckless in failing, before

December 1, 2014, to mount studded tires, place chains on his tires, or otherwise "prep"

his car for winter driving. On that basis, he argued that Mr. Cole could not assert the

uncontrollable circumstances defense to the December 1 bail jumping charge.

       Since we reverse that conviction and remand, we need not address the issue.

Should it arise in a retrial, it can be addressed at that time.

          V. Due Process Challenges: RCW 69.50.4013 and RCW 9A. 76.170(1)

       Mr. Cole next argues that the two statutes under which he was convicted, RCW

69.50.4013 (controlled substance violations) and RCW 9A.76.170(1) (bail jumping)

violate due process because they require the defendant to prove the absence of a culpable

mental state rather than requiring the State to prove a culpable mental state beyond a

reasonable doubt. At one point in his brief, he contends that criminalizing conduct

without a mens rea requirement violates due process by relieving the State of the burden

of proving guilt beyond a reasonable doubt. Br. of Appellant at 20-21. Elsewhere, he

concedes such legislation is merely disfavored and subjected to strict scrutiny in cases




                                               14
No. 33575-5-111
State v. Cole


such as Morisette v. United States, 342 U.S. 246, 250, 72 S. Ct. 240, 96 L. Ed. 288

(1952). Br. of Appellant at 23.

       We review constitutional challenges de novo. In re Welfare ofA. W., 182 Wn.2d

689, 701, 344 P.3d 1186 (2015). "[I]t is well established that statutes are presumed

constitutional and that a statute's challenger has a heavy burden to overcome that

presumption; the challenger must prove that the statute is unconstitutional beyond a

reasonable doubt." Sch. Dists. 'All. for Adequate Funding ofSpecial Educ. v. State, 170

Wn.2d 599,605,244 P.3d 1 (2010).

                                   A. RCW 69.50.4013

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

valid prescription or unless otherwise authorized by chapter 69.50 RCW. It contains no

mens rea requirement. State v. Bradshaw, 152 Wn.2d 528, 539, 98 P.3d 1190 (2004). In

not requiring the State to prove either knowledge of possession of the substance or its

illicit nature, the Washington statute is said to be exceptional. State v. Adkins, 96 So. 3d

412,429 (Fla. 2012) (Pariente, J., concurring) (identifying Washington and North Dakota

as the only two states to eliminate knowledge entirely from the offense of possession of a

controlled substance; observing that North Dakota thereafter amended its statute to

include "willfulness.").

       Yet in Washington, "[o]nee the State establishes prima facie evidence of

possession, the defendant may ... affirmatively assert that his possession of the drug was

                                             15
No. 33575-5-III
State v. Cole


'unwitting, or authorized by law, or acquired by lawful means in a lawful manner, or was

otherwise excusable under the statute."' State v. Staley, 123 Wn.2d 794, 799, 872 P.2d

502 (1994) (quoting State v. Morris, 70 Wn.2d 27, 34,422 P.2d 27 (1966)). "The

defense of 'unwitting' possession may be supported by a showing that the defendant did

not know he was in possession of the controlled substance" or "that he did not know the

nature of the substance he possessed." Id.

       In Bradshaw, the defendant argued that RCW 69.50.4013 implicitly "requires

knowledge and the affirmative defense of unwitting possession improperly shifts the

burden of proof." 152 Wn.2d at 534. Our Supreme Court rejected the argument:

               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 of possession. Defendants then can prove the
       affirmative defense of unwitting possession. This affirmative defense
       ameliorates the harshness of a strict liability crime. It does not improperly
       shift the burden of proof.

Id. at 538 (citations omitted).

       Division Two of our court recently rejected the same due process challenge to

RCW 69.50.4013 advanced by Mr. Cole, pointing out that a categorical attack on strict

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

Washington courts:

              Strict liability crimes-crimes with no mens rea requirement-do
       not necessarily violate due process. "We do not go with Blackstone in
       saying that 'a vicious will' is necessary to constitute a crime, for conduct
       alone without regard to the intent of the doer is often sufficient. There is

                                             16
No. 33575-5-111
State v. Cole


       wide latitude in the lawmakers to declare an offense and to exclude
       elements of knowledge and diligence from its definition." Lambert v.
       California, 355 U.S. 225, 228, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957). Our
       Supreme Court repeatedly has stated that the legislature has the authority to
       create strict liability crimes that do not include a culpable mental state.
              Our Supreme Court twice has directly addressed whether the
       elements of possession of a controlled substance under prior versions of
       RCW 69.50.4013 contains a mens rea element. In both cases, the court
       held that the legislature deliberately omitted knowledge and intent as
       elements of the crime and that it would not imply the existence of those
       elements. The court did not express any concerns in either Bradshaw or
       [State v.] Cleppe[, 96 Wn.2d 373, 635 P.2d 435 (1981)] that allowing a
       conviction for the possession of a controlled substance without showing
       intent or knowledge somehow was improper.

State v. Schmeling, 191 Wn. App. 795, 801-02, 365 P.3d 202 (2015) (some citations

omitted). Notwithstanding Mr. Schmeling's citation of two cases from other jurisdictions

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

unpersuasive, "given 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 of controlled substances statute contains no intent or knowledge elements."

Id. at 802.

       Mr. Cole nonetheless claims that three non-Washington decisions support his

argument that RCW 69.50.4013 violates due process. The first, the United States

Supreme Court's 1957 decision in Lambert, was cited in the excerpt in Schmeling, above,

for its support of the "wide latitude in lawmakers to declare an offense and to exclude

elements ofknowledge and diligence from its definition." 191 Wn. App. at 801. While


                                            17
No. 33575-5-111
State v. Cole


Lambert found that a Los Angeles felony registration ordinance violated due process, it is

clearly distinguishable, having turned on a critical characteristic of that ordinance: it

criminalized wholly passive conduct-the failure to register with Los Angeles police as a

felon after being or remaining in the city for a period of more than five days-without

even requiring that the individual have notice of the registration requirement. 355 U.S. at

225-230. 3 As the Supreme Court observed 25 years after deciding Lambert (and 34 years

before the decision we reach today), "[Lambert's] application has been limited, lending

some credence to Justice Frankfurter's colorful prediction in dissent that the case would

stand as 'an isolated deviation from the strong current of precedents-a derelict on the

waters of the law."' Texaco, Inc. v. Short, 454 U.S. 516, 538 n.33, 102 S. Ct. 781, 70 L.

Ed. 2d 738 (1982) (citing 355 U.S. at 232).

       RCW 69.50.4013 does not unlawfully criminalize wholly passive conduct. A

defendant does not unlawfully possess a controlled substance in Washington unless he or


       3
         A recent law review article on Lambert states, as its objective, "to suggest that its
holding can be cabined by a narrow and defensible, and we believe correct, rationale[:]
... that Lambert should be understood as a variant on the vagueness doctrine." Peter W.
Low & Benjamin Charles Wood, Lambert Revisited, 100 Va. L. Rev. 1603, 1604-05
(2014).
       The Los Angeles ordinance at issue in Lambert was an illustration of law
       by cop, not law by law. It authorized arrests without probable cause, and
       diversion of the arrestee to another crime if interrogation and search did not
       establish the motivating offense. It authorized gratuitous, arbitrary, and
       unfair punishment for behavior the state did not need to prohibit in order to
       accomplish any conceivable legitimate public protection objective.
Id.

                                              18
No. 33575-5-111
State v. Cole


she obtains or is placed in possession of a controlled substance which he or she does not

then discard. And unwitting possession remains an affirmative defense.

       The other two decisions on which Mr. Cole relies were not addressed in

Schmeling. They are Shelton v. Sec'y, Dep't of Corr., 802 F. Supp. 2d 1289, 1296 (M.D.

Fla. 2011) (Shelton I), rev'd, 691 F.3d 1348 (11th Cir. 2012), and Adkins, 96 So. 3d 412,

both of which involve prosecution of controlled substance violations under a Florida

statute.

       Mr. Shelton was convicted in a Florida state court of delivery of cocaine. Shelton

I, 802 F. Supp. 2d at 1295-96. The Florida statute that applied required the State to prove

knowing possession of a substance, but not knowledge that the substance was illicit. Id.

at 1294 (citing FLA. STAT.§ 893.101). Any claim that the defendant did not know that

the substance he possessed was illicit was an affirmative defense. Id. Mr. Shelton

appealed in state court several times, challenging the constitutionality of the statute on

due process grounds. Id. at 1296. His conviction was affirmed and further relief denied.

Id.

       He then filed for federal habeas corpus relief based on his due process challenge.

Id. The district court granted the petition in part. Relying on cases in which courts had

inferred a mens rea element in a criminal statute in order to avoid any due process

infirmity, it found the Florida statute unconstitutional because it either imposed strict




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     No. 33575-5-111

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     State v. Cole


'
!

I    liability, or improperly shifted the burden to the defendant to prove lack of knowledge.

I!   Id. at 1296-1308.
I

I
I
            The Eleventh Circuit Court of Appeals reversed. In the interim between the

     district court's decision and its own, the Florida Supreme Court had rejected a due
!    process challenge to the Florida law in Adkins. The Eleventh Circuit court held that

I    decisions of the Florida state courts in Mr. Shelton's case were entitled to deference
I    under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
I
     110 Stat. 1214, and in order for Mr. Shelton to prevail,
I
            he must be able to point to Supreme Court precedent clearly establishing
            that the Due Process Clause forbids the partial elimination of mens rea as
            an element of crimes analogous to those in Florida's Drug Abuse
            Prevention and Control Act, beyond any possibility for fairminded
            disagreement. That is a tall order, and as it happens, an impossible one.

     Shelton v. Sec'y, Dep't of Corr., 691 F.3d 1348, 1354 (11th Cir. 2012) (Shelton II). It

     pointed out that not only had the U.S. Supreme Court never addressed the due process

     issue in Mr. Shelton's favor, but that "a number of the Court's cases cut Florida's way,

     many of which the Florida Supreme Court relied on" in upholding the constitutionality of

     the controlled substances law in Adkins. Id. at 1355 (footnote omitted). It noted that

     "only once, in Lambert," had the Supreme Court held a criminal provision

     unconstitutional under the due process clause "for failing to require sufficient mens rea."

     Id. at 1354. The constitutional avoidance cases on which the district court relied, it




                                                  20
No. 33575-5-III
State v. Cole


added, "are not square due process holdings. Rather, those cases avoid the due process

question, sometimes invoking the rule of lenity." Id. at 1355.

       The district court's decision in Shelton I is no longer good law, then, albeit based

on the deference issue. Its reasoning is unpersuasive.

       Finally, Mr. Cole relies on the opinion of a single concurring justice in the Florida

Supreme Court's decision in Adkins-Justice Pariente-who reasoned that the Florida

statute was constitutional only because ( 1) (like Washington's statute) it permits a

defendant to assert lack of knowledge of the illicit nature of the controlled substance as

an affirmative defense and (2) (unlike Washington's statute) "continues to require the

State to prove that a defendant had knowledge of the presence of the controlled

substance." 96 So. 3d at 424 (Pariente, J., concurring). The reasoning that garnered the

most support on the Florida Supreme Court was that of the three-member plurality, who

focused only on the availability of an affirmative defense that would protect against

criminalizing entirely conduct-reasoning under which RCW 69.50.4013 passes

constitutional muster.

       Mr. Cole characterizes Justice Pariente as the "deciding justice" in Adkins. Br. of

Appellant at 24. She was not. While the decisions uphold the constitutionality of the

Florida statute, they offer no majority holding as to why the statute is constitutional. See

Robert Batey, Mens Rea and Constitutional Law: A Report Card for the Florida Supreme

Court in State v. Adkins, 43 Stetson L. Rev. 3, 13, 15 (2013) (suggesting that the justice

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No. 33575-5-III
State v. Cole


who concurred only in the result "surveyed what his colleagues had written and decided

to give none of it precedential value"); United States v. Epps, 707 F.3d 337, 348 (D.C.

Cir. 2013) (under Marks v. United States, 430 U.S. 188, 97 S. Ct. 990, 51 L. Ed. 2d 260

(1977)), the holding of a fragmented court is the position concurring on the narrowest

grounds only where "' the concurrence posits a narrow test to which the plurality must

necessarily agree as a logical consequence of its own, broader position'" (quoting King

v. Palmer, 950 F.2d 771, 782 (D.C. Cir. 1991)). No other justice agreed with the

reasoning of Justice Pariente on the issue presented here.

       Given our Supreme Court's decisions in Bradshaw and Cleppe, Division Two's

decision in Schmeling, the authorities they cite, and the reasoning set forth above, we do

not find Justice Pariente's opinion persuasive. Mr. Cole does not demonstrate that RCW

69.50.4013 is unconstitutional.

                                   B. RCW9A.76.170(1)

       In arguing that RCW 9A.76.170(1) violates due process, Mr. Cole relies not only

on the argument, just rejected, that a criminal statute lacking a mens rea element

unconstitutionally shifts the burden of proof, 4 but he also argues, incorrectly, that the

statute requires a defendant to negate an element of the crime.


       4
        And as previously discussed, RCW 9A.76.l 70(1) contains a knowledge
requirement; it is not fairly characterized as a strict liability crime.



                                              22
No. 33575-5-111
State v. Cole


       The affirmative defense of uncontrollable circumstances does not negate an

element of bail jumping. To prove bail jumping, the State must show that "the defendant

( 1) was held for, charged with, or convicted of a particular crime; (2) had knowledge of

the requirement of a subsequent personal appearance; and (3) failed to appear as

required." State v. Downing, 122 Wn. App. 185, 192, 93 P.3d 900 (2004). A defendant

who shows that an uncontrollable circumstance prevented him from appearing does not

negate proof that he was (1) charged with a crime, (2) had notice of the requirement to

appear, or (3) failed to appear.

       The legislature does not violate a defendant's due process rights when it
       allocates to the defendant the burden of proving an affirmative defense
       when the defense merely "' excuse[ s] conduct that would otherwise be
       punishable.'" Smith [v. United States,_ U.S. _J, 133 S. Ct. [714,]
       719[, 184 L. Ed. 2d 570 (2013)] ([first] alteration in original) (quoting
       Dixon v. United States, 548 U.S. 1, 6, 126 S. Ct. 2437, 165 L. Ed. 2d 299
       (2006)); see also Martin v. Ohio, 480 U.S. 228, 107 S. Ct. 1098, 94 L. Ed.
       2d 267 (1987).

State v. W.R., 181 Wn.2d 757, 762, 336 P.3d 1134 (2014).

       Neither statute violates due process.

                                         VI LFOs

       Finally, Mr. Cole argues that insufficient evidence supports the trial court's

finding that he has the ability to pay LFOs, and that the imposition of LFOs on indigent

defendants-even mandatory LFOs-violates RCW 10.01.160(3), GR 34, the principles




                                               23
No. 33575-5-111
State v. Cole


of equal protection and substantive due process, and the right to travel. The court

imposed a total of $1,850 in LFOs. 5

       Mr. Cole was sentenced on June 24, 2015, several months after our Supreme

Court's decision in State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015). At the time of

sentencing, the trial court had in mind Mr. Cole's trial testimony that he was 46 years old,

had graduated from high school,joined the military, served in the Gulf War, was

honorably discharged, and, at the time of his arrest, was employed "recovering timber up

on Badger Mountain," by virtue of "a grant up there with the Forest Service." RP at 220.

       As a preliminary matter, we consider whether to review the issue. Mr. Cole made

no objection to the trial court's finding that he had the present and future ability to pay,

and thereby failed to preserve a claim of error. RAP 2.5(a); Blazina, 182 Wn.2d at 833

("[u ]npreserved LFO errors do not command review as a matter of right"). The rationale

for refusing to review an issue raised for the first time on appeal is well settled: issue

preservation helps promote judicial economy by ensuring "that the trial court has the

opportunity to correct any errors, thereby avoiding unnecessary appeals." State v.

Robinson, 171 Wn.2d 292, 304-05, 253 P.3d 84 (2011).


       5
         "A $500 crime victim's compensation, $200 in court costs, a $450 public
defender fund reimbursement, a $250 jury fee, a $100 DNA (deoxyribonucleic acid)
collection fee, a $100 crime lab fee and a $250 Wenatchee P.D. drug fund assessment."
RP at 347. The discretionary or mandatory character of the jury fee remains unclear. See
State v. Clark, No. 32839-2-111, slip op. at 4 (Wash. Ct. App. Sept. 8, 2016),
http://www.courts.wa.gov/opinions/pdf/328392_pub.pdf.

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No. 33575-5-111
State v. Cole


       An exception to the issue preservation requirement exists for "manifest error

affecting a constitutional right." RAP 2.5(a)(3). To qualify for the exception provided

by RAP 2.5(a)(3), an appellant must demonstrate "(1) the error is manifest and (2) the

error is truly of constitutional dimension." State v. O'Hara, 167 Wn.2d 91, 98,217 P.3d

756 (2009). An error will be considered manifest when there is actual prejudice, meaning

a plausible showing by the appellant that the asserted error had practical and identifiable

consequences in the trial. State v. Irby, 187 Wn. App. 183, 193, 347 P.3d 1103 (2015),

review denied, 184 Wn.2d 1036 (2016). "[T]he focus of the actual prejudice [inquiry]

must be on whether the error is so obvious on the record that the error warrants appellate

review." O'Hara, 167 Wn.2d at 99-100.

       While Mr. Cole includes several constitutional challenges to the LFOs imposed,

he does not address whether any errors were manifest or point to identifiable

consequences in the trial. Because Mr. Cole unquestionably waived his right to appeal

the trial court's finding of ability to pay, we decline to review that issue. Because he fails

to support any contention that constitutional errors, if any, were manifest, we do not

consider his constitutional challenges further. See RAP 10.3(a)(6) (requiring a party's

brief to include "argument in support of the issues presented for review, together with

citations to legal authority and references to relevant parts of the record").

       We reverse Mr. Cole's conviction on count III, otherwise affirm, and remand for

proceedings consistent with this opinion.

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No. 33575-5-111
State v. Cole


      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.




WE CONCUR:




                                                Lawrence-Berrey, A.C ..




                                           26
