                                                            FILED
                                                        JANUARY 19, 2017
                                                    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. 34056-2-111
                                             )
                     Respondent,             )
                                             )
             V.                              )         UNPUBLISHED OPINION
                                             )
WENDELL L. MUSE,                             )
                                             )
                    Appellant.               )

      LAWRENCE-BERREY, J. -Wendell Muse appeals his conviction for possession of

methamphetamine. He argues that RCW 69.50.4013 violates the Eighth and Fourteenth

Amendments to the United States Constitution because it makes it a felony to possess

drug residue without a culpable mental state. He also challenges the constitutionality of

the trial court's reasonable doubt instruction. We disagree with his arguments and affirm.

                                         FACTS

      On April 14, 2015, Mr. Muse returned to his apartment after receiving a call that it

was on fire. Officer Holly Baynes responded to the fire. She asked Mr. Muse for

identification. She ran his identification in the law enforcement database and learned that

Mr. Muse had an outstanding arrest warrant. She then arrested Mr. Muse and searched
No. 34056-2-III
State v. Muse


him incident to arrest. She found a glass pipe in his pocket and noticed a white powdery

substance in the bowl part of it.

       The State charged Mr. Muse with possession of methamphetamine. At trial, the

scientist from the Washington State Patrol Crime Laboratory testified that he received the

pipe and it had a "white residue" in it. Report of Proceedings (RP) at 30. He testified he

analyzed the white residue and determined it contained methamphetamine.

       Mr. Muse claimed the pipe belonged to his girlfriend, and he had placed the pipe

in his pocket because he was worried about her drug use. His defense was that he did not

know there was any methamphetamine in the pipe.

       The trial court instructed the jury regarding the State's burden of proof and

reasonable doubt. The trial court gave an instruction based 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 of evidence. It is such a doubt as would exist in
       the mind of a reasonable person after fully, fairly, and carefully considering
       all of the evidence or lack of evidence. If, from such consideration, you
       have an abiding belief in the truth of the charge, you are satisfied beyond a
       reasonable doubt.

Clerk's Papers (CP) at 11. Mr. Muse did not object to this instruction.

       The jury convicted Mr. Muse, and he filed a timely appeal.




                                             2
No. 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 Amendment to the

United States Constitution's prohibition of cruel and unusual punishment and the

Fourteenth Amendment's guarantee of due process because it makes possession of drug

residue a felony without requiring any culpable mental state.

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

valid prescription or as otherwise authorized. This statute prohibits possessing any

amount of a 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 rea requirement.

State v. Bradshaw, 152 Wn.2d 528, 539, 98 PJd 1190 (2004).

       This court reviews the constitutionality of a statute de novo. Schmeling, 191 Wn.

App. at 798. A statute is presumed to be constitutional, and the party challenging the

constitutionality of a statute must prove its unconstitutionality beyond a reasonable doubt.

Id.

              1.     Eighth Amendment Challenge

       The Eighth Amendment to the United States Constitution prohibits cruel and

unusual punishment. There are two types of Eighth Amendment analyses:



                                             3
No. 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 of crimes

or offenders. Graham v. Florida, 560 U.S. 48, 59-60, 130 S. Ct. 2011, 176 L. Ed. 2d 825

(2010) (holding that juvenile offenders cannot be sentenced to life imprisonment without

parole for nonhomicide offenses). The categorical analysis addresses whether a particular

punishment is categorically unconstitutional given the nature of the offense or the

characteristics of the offender. Id. at 60. The categorical analysis involves two steps: the

court first determines "whether there is a national consensus against the sentencing

practice at issue," and if so, the court then exercises its own independent judgment in

determining whether the punishment is unconstitutional in light of the culpability of the

offenders and the severity of the punishment. Id. at 61, 67. Mr. Muse brings his Eighth

Amendment challenge solely under the categorical analysis.

       Division Two of this 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 Court has only applied



                                              4
No. 34056-2-III
State v. Muse


the Eighth Amendment categorical analysis to death penalty cases and cases involving life

imprisonment for juveniles. Id. at 800. Because Graham "did not hold or even suggest

that the categorical approach should be applied to all adult sentences under the Eighth

Amendment," the Schmeling court declined to apply it to punishment of adult drug

offenders in the absence of any authority extending it to cases not involving the death

penalty or juvenile 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 on the difference between juveniles and adults and the

propriety of sentencing juveniles to 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 other jurisdictions have applied the categorical analysis

to adult sentences that do not involve the death penalty. He cites several examples. See

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


                                                5
No. 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 of murder

under accomplice liability); Iowa v. Oliver, 812 N.W.2d 636, 641-47 (Iowa 2012)

(mandatory life without parole is constitutional as applied to adult convicted of second

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 of authority-including a split between federal circuits-on the

issue of whether the Eighth Amendment categorical analysis applies to cases not

involving the death penalty or life sentences for juveniles. See Mossman, 294 Kan. at

926-27 (highlighting this split of authority). 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


       1
         The Schmeling court also noted that even if the categorical analysis was
applicable, Mr. Schmeling failed to demonstrate a national consensus against punishing
the possession of drug residue as a felony. Schmeling, 191 Wn. App. at 800 n.4. The
Graham court reasoned that 39 of 50 states did not impose a life without parole sentence
for nonhomicide juvenile offenses. See Graham, 560 U.S. at 64. Here, Mr. Muse points
to only 18 of 50 states that do not impose a felony sentence for possessing drug residue
without a culpable mental state. See Br. of Appellant at 7-8.

                                             6
No. 34056-2-III
State v. Muse


              2.      Due Process Challenge

       Mr. Muse also raises a due process challenge to RCW 69.50.4013. Schmeling held

that RCW 69.50.4013 does not violate due process even though it makes possession of

drug residue a felony without requiring any culpable mental state. Schmeling, 191 Wn.

App. at 800-01. The Schmeling court reasoned that the legislature has wide latitude to

create strict liability crimes that do not include a culpable mental state, and that the

Washington Supreme Court has repeatedly stated that the legislature has this authority.

Id. The court further reasoned that the Washington Supreme Court has considered

whether the possession of a 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 of those elements. Id at 801 (citing

Bradshaw, 152 Wn.2d at 534-38; State v. Cleppe, 96 Wn.2d 373, 380-81, 635 P.2d 435

(1981)).

       Mr. Muse acknowledges Schmeling but asks this court not to follow it. He argues

that Cleppe and Bradshaw were only decided on principles of statutory construction and

are not controlling on the question of whether the lack of a mens rea for possession

violates due process. Mr. Muse is correct, but this does not undermine the Schmeling

court's reasoning. The Schmeling court's central point was that a due process challenge



                                               7
No. 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 that the Schmeling court "failed to 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. of Appellant

at 16. Although Mr. Schmeling cited several cases from other jurisdictions holding that

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

in light of 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

statute contains no mens rea element. See Schmeling, 191 Wn. App. at 802. Because Mr.

Muse cites the same cases from other jurisdictions that Mr. Schmeling did, we find his

argument unpersuasive.

       B.     REASONABLE DOUBT INSTRUCTION


       Mr. Muse argues, for the first time on appeal, that the trial court's reasonable

doubt instruction violated his rights to a jury trial and due process. Specifically, he

contends the language instructing the jury members that they must "have an abiding belief

in the truth of the charge" improperly encouraged the jury to undertake a search for "the

truth." Br. of Appellant at 17.



                                              8
No. 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 of manifest error affecting a

constitutional right. RAP 2.5(a)(3). This exception applies if: (1) the alleged error is

truly of a constitutional magnitude, and (2) the error is manifest. State v. Kalebaugh, 183

Wn.2d 578, 583, 355 P.3d 253 (2015).

                1.    Constitutional magnitude

       Mr. Muse meets the first part of the RAP 2.5(a)(3) test. Whether an instruction

misstates reasonable doubt is an issue of constitutional magnitude. Kalebaugh, 183

Wn.2d at 584.

              2.     Manifest error

       An error is manifest if it 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" of the error. Id. As explained below, there was no error, much less

"manifest error."

       Our Supreme Court has expressly approved WPIC 4.01 as a correct statement of

the law and has directed trial courts to exclusively use it to instruct juries on the burden of

proof and the definition of reasonable doubt. See State v. Bennett, 161 Wn.2d 303,318,




                                              9
No. 34056-2-III
State v. Muse


165 PJd 1241 (2007). Our Supreme Court has also specifically approved the "abiding

belief in 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 the jury to undertake a search for "the truth," Mr. Muse cites State v. Emery,

174 Wn.2d 741, 278 PJd 653 (2012). In Emery, the prosecutor told the jury in closing

argument that its verdict needed to "' speak the truth'" and then asked the jury to "' speak

the truth'" by finding the defendants guilty. Id. at 751. The Emery court held that these

statements were improper because it is not the jury's role to determine the truth of what

happened. Id. at 760. Rather, the jury's role is to determine whether the State has proved

its case beyond a reasonable doubt. Id.

       Mr. Muse argues that WPIC 4.01 's "belief in the truth" language is similar to the

prosecutor's impermissible "speak the truth" remarks at issue in Emery. However,

Divisions One and Two have expressly rejected this argument, reasoning that WPIC

4.01 's "belief in the truth" language, when read in context, accurately informs the jury

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 PJd 784,

review denied, 181 Wn.2d 1009, 335 PJd 941 (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 "belief in the truth" language "merely

elaborates on what it means to be 'satisfied beyond a reasonable doubt'"), review denied,

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

suggested that the jury's role was to solve the case, the "belief in the truth" language in

WPIC 4.01 correctly invites the jury to 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 and Pirtle argued in favor

of WPIC 4.01. While this is true, it is unclear why this is relevant-it does not change the

Bennett court's approval of WPIC 4.01 or the Pirtle court's approval of WPIC 4.01 's

"belief in the truth" language.

       Mr. Muse also argues that the defendants in Bennett and Pirtle never challenged

the constitutionality of the "belief in the truth" language. This is also true, but Divisions

One and Two never cited Bennett or Pirtle for this proposition. Rather, Divisions One

and Two reasoned that the "belief in the truth" language, when read in context, accurately

informs the jury of its role, invites the jury to weigh the evidence, and does not ask the

jury to solve the case.


                                              11
No. 34056-2-III
State v. Muse


       Although Mr. Muse highlights several differences between Bennett and Pirtle 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 manifest error.

       C.     APPELLATE COSTS


       Mr. Muse also asks this court to 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, "the party 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, pursuant to 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 when the State substantially prevails



       2
          "A 'prevailing party' is any party that receives some judgment in its favor. If
neither party completely prevails, the court must decide which, if either, substantially
prevailed." Guillen v. Contreras, 169 Wn.2d 769, 775, 238 P.3d 1168 (2010) (citations
omitted) (quoting Riss v. Angel, 131 Wn.2d 612,633,934 P.2d 669 (1997)). Here, the
State is the substantially prevailing party.

                                            12
No. 34056-2-III
State v. Muse


on appeal. It directs defendants who want this court to exercise its discretion not to

impose appellate costs to make their request, together with citations to legal authority and

references to relevant parts of the record, either in their opening brief or in a motion

pursuant to RAP 17. Mr. Muse has complied with this particular requirement in his

opening brief.

       If inability to pay is a factor alleged to support the defendant's request, the General

Order also requires defendants to include in the appellate record the clerk's papers,

exhibits, and the reports of proceedings 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 of indigency with the clerk's

papers and the transcript of his sentencing hearing. 3 However, the General Order requires

defendants to file a report as to continued indigency with this court no later than 60 days

after they file their opening briefs. Although Mr. Muse's opening brief was filed one

month after the General Order went into effect, Mr. Muse has not complied with 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 of working and has worked his
entire life, but also indicates that he was unemployed at the time of sentencing and also
lost many of his possessions in the house fire.

                                             13
No. 34056-2-III
State v. Muse


       Mr. Muse asks this court to not impose appellate costs because the trial court

found him indigent for purposes of appeal. While orders of indigency entered pursuant to

RAP 15.2 allow criminal defendants to pursue appeals at public expense, they do not

prevent the State from attempting to recoup costs if the 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 court to 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, while persuasive, is an appeal to this court's discretion,

the exercise of which this court has 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 substantially prevailing party on appeal. But

should Mr. Muse file a statement that comports with our June General Order within 14

days of the filing of this decision, we direct our commissioner to allow the late statement




                                             14
No. 34056-2-III
State v. Muse


and consider his motion. If Mr. Muse does not file such a statement within 14 days, the

State thereafter has 10 days to file a cost bill with this court pursuant to RAP 14.4(a).

       Affirmed.

       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.




                                                                                 j
I CONCUR:




Pennell, J.




                                              15
                                      No. 34056-2-111

       FEARING,   C.J. (concurring)- I concur in all rulings of the majority. I write

separately because I question the soundness of the ruling that finding a person guilty of

possession of a controlled substance, when authorities capture one with a minute amount

of the 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 of controlled

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 of the mere possession
      statute is unconstitutional because the statute is vague, criminalizes
      innocent behavior, and adversely affects the right to intrastate and interstate
      travel. Defendants also contend that the doctrine of dominion or control is
      unconstitutionally vague.
              The party asserting that a statute is unconstitutionally vague must
      prove vagueness beyond a reasonable doubt. City ofSeattle v. Eze, 111
      Wn.2d 22, 26, 759 P.2d 366 (1988). Defendants fail to meet this standard
      and offer little analysis to support any of their constitutional arguments. As
      the Court of Appeals stated:
                      Bradshaw and Latovlovici also assert that without a
              scienter element, RCW 69.50.401 is unconstitutionally vague
              and violative of substantive due process principles. But they
              have not adequately briefed these arguments. They fail to
              explain how persons of ordinary intelligence would not
              understand what the 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 sufficient to command judicial 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] (quoting In re Pers.
      Restraint ofRosier, 105 Wn.2d 606,616, 717 P.2d 1353 (1986) (quoting
      United States 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 that neither intent nor guilty knowledge

is an element of the crime of possession of a controlled substance. The court did not

entertain any constitutional argument.

      State v. Schmeling's reliance on the 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.
                                             2
No. 34056-2-III
State v. Muse


       In State v. Schmeling, the defendant cited United States v. Wulff, 758 F.2d 1121

(6th Cir. 1985), and Louisiana v. Brown, 389 So. 2d 48 (La. 1980), wherein the

respective courts reversed, on constitutional grounds, convictions of crimes without a

mens rea. In his brief, Wendell Muse cites numerous foreign decisions, wherein the

respective courts held that one cannot be convicted of possession when found with trace

amounts of a controlled substance or when one lacks knowledge of his or her possession.

       I would welcome our state high court thoroughly addressing whether convicting

one of possession of a controlled substance, when one unknowingly possesses trace

amounts of the substance, violates either the state or federal due process clause. In the

meantime, I will follow our holding in State v. Schmeling.




                                          Fe~ 1                j-:




                                             3
