 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      )
                                          )       No. 76973-1-1




                                                                                    SZ :01 WV S- 081111
                     Respondent,          )
                                          )       DIVISION ONE
              v.                          )
                                          )       UNPUBLISHED OPINION
JASON MICHAEL BUTCHER,                    )
                                          )
                     Appellant.           )       FILED: November 5, 2018
                                          )
       BECKER, J. — A jury convicted Jason Butcher of heroin possession. He

contends that flawed jury instructions diluted his defense of unwitting possession.

He also contends that his lawyer was ineffective for not objecting to the flawed

instructions. We affirm.

       Butcher's trial on one count of possession of a controlled substance

occurred on April 17 and 18, 2017. A police officer testified that he approached

Butcher on the evening of October 16, 2015. They had a brief conversation

during which Butcher gave his name. After they parted ways, the officer quickly

ascertained that there was an outstanding warrant for Butcher's arrest. He

caught up with Butcher, who had continued walking, and arrested him. The

officer searched a backpack Butcher was wearing. It contained "unused syringes

still in the initial packaging as well as a scale with a brown tar-like substance

which appeared to be heroin." Testing confirmed the substance was heroin.
No. 76973-1-1/2

       During the defense case-in-chief, Butcher did not dispute that the scale

was found in his possession or that the substance on the scale was heroin. He
                    I
argued that his possession was unwitting. Butcher was the only defense

witness. He testified that on the day of the crime, a man he was with put the
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syringes and a small case in Butcher's backpack and asked him to take the

syringes to a homeless shelter and the case to the man's girlfriend. Butcher said

that he did not look inside the case. When asked to describe it, Butcher said it

was a small case with a floral design and a white zipper on top. Butcher

explained that he was on his way to deliver the items when he was arrested. He

testified that he learned the case contained the scale when the officer opened it.

When asked by defense counsel if he knew before that point that he was

possessing heroin, Butcher responded,"No I did not."

       The officer testified on rebuttal that he did not remember a floral-patterned

case like the one described by Butcher. During the State's case-in-chief, the

officer had testified that the scale "might have been in another case or

something" but he could not recall.

       The jury found Butcher guilty as charged. Based on Butcher's stipulation

to the aggravating factor that he committed the offense shortly after being

released from incarceration, the court imposed an exceptional sentence of 366

days' confinement, one day above the high end of the standard range. Butcher

filed this timely appeal.

       Butcher challenges instruction 10, a pattern to-convict instruction:




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             To convict the defendant of the crime of possession of a
      controlled substance, each of the following elements of the crime
      must be proved beyond a reasonable doubt:
             (1)That on or about October 16, 2015, the defendant
      possessed a controlled substance - Heroin; and
             (2)That this act occurred in the State of Washington.
              If you find from the evidence that each of these elements
      has been proved beyond a reasonable doubt, then it will be your
      duty to return a verdict of guilty.
              On the other hand, if, after weighing all the evidence, you
      have a reasonable doubt as to any one of these elements, then it
      will be your duty to return a verdict of not guilty.

Butcher contends that the instruction should have stated that there was no duty

to convict if his possession was unwitting.

       Butcher did not object to this instruction when it was given. He claims that

it can be reviewed as manifest constitutional error under RAP 2.5(a)(3). This

requires a showing that the error is manifest, meaning that it caused actual

prejudice. State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756(2009). Butcher

asserts that instruction 10 prejudiced him by eliminating his unwitting possession

defense from the jury's consideration. But the unwitting possession defense was

accurately stated in instruction 11, which was proposed by Butcher:

              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 that the
       substance was in his possession.
              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.

Butcher's argument that this information should also have been stated in the to-

convict instruction ignores the general rule that jury instructions are to be read as

a whole. State v. Brown, 130 Wn.App. 767,770, 124 P.3d 663(2005).

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       Butcher suggests that failing to include language about unwitting

possession in the to-convict Instruction is akin to omission of an essential

element. But when pursuing a possession charge, the State is not required to

prove that the defendant knew he possessed an illegal substance. Rather,

unwitting possession is an affirmative defense. As instruction 11 correctly

explained, it was Butcher's burden to prove he did not know the heroin was in his

possession. State v. Deer, 175 Wn.2d 725,735,287 P.3d 539(2012), cert.

denied 568 U.S. 1148, 133 S. Ct. 991, 184 L. Ed. 2d 770(2013). The State

explained the relationship of the two instructions in closing argument:

       What is unwitting possession? Possession of a controlled
       substance is unwitting if the person did not know the substance
       was in his possession. And this instruction Number 11 talks about
       the fact that the burden is now on the defendant to demonstrate
       that. When we talked all about what the State's burden is, the
       State's burden is to prove everything [in] the to convict instruction
       beyond a reasonable doubt. This instruction for unwitting
       possession says it's the defendant's burden to prove by a
       preponderance that the substance was possessed unwittingly.

       Butcher argues that instructions 10 and 11 are prejudicial because they

are inconsistent. Butcher asserts that instruction 10, telling jurors they had a

"duty to convict" if they found he possessed heroin, nullified instruction 11, which

told them he was not guilty if they found his possession was unwitting. This is an

overly technical reading. While the court might have been able to improve the

wording of the instructions if a timely objection had been raised, it is not

reasonably likely that the instructions as given led jurors to believe they had a

duty to convict even if they found Butcher's possession was unwitting. We




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conclude Butcher has not shown a manifest error with respect to instructions 10

and 11.

       Butcher also challenges instruction 6:"The defendant is not required to

testify. You may not use the fact that the defendant has not testified to infer guilt

or to prejudice him in any way." CP at 52. Because Butcher did testify, this

pattern instruction was not needed. Butcher did not object to including it. He

argues on appeal that the instruction effectively told jurors to Ignore" his

testimony as if the trial court had ruled it was inadmissible.

       Butcher makes no meaningful effort to demonstrate that instruction 6

constitutes manifest constitutional error. It is not reasonably likely jurors would

have understood it as a directive to ignore Butcher's testimony, especially when

both parties discussed his testimony at length during closing arguments.

       Butcher argues in the alternative that he was deprived of effective

assistance due to trial counsel's failure to object to the allegedly erroneous

instructions. To prove this claim he must show both deficient conduct and

prejudice. State v. Thomas, 109 Wn.2d 222, 225-26,743 P.2d 816(1987). For

the reasons explained above, Butcher has not shown that the instructions were

prejudicial.

       Butcher has filed a statement of additional grounds for review as permitted

by RAP 10.10. He claims his speedy trial rights were violated; he was improperly

searched; jail staff opened and kept his mail, including correspondence with his

attorney; his trial attorney failed to interview certain witnesses; the Skagit County

community has targeted him with false reports and beatings; the verbatim report


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of proceedings contains errors; and a member of the jury was prejudiced against

him. Because these claims lack adequate support, they do not warrant review in

this appeal.

      Affirmed.




WE CONCUR:




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