                                                                          FILED 

                                                                        JAN. 12,2016 

                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                         )
                                             )        No. 32824-4-III
                    Respondent,              )
                                             )
      v.                                     )
                                             )
CARL KEITH MATHENY,                          )        UNPUBLISHED OPINION
                                             )
                    Appellant.               )

      KORSMO, J.      In this appeal, Carl Matheny challenges his convictions for

possession of a controlled substance, possession of a dangerous weapon, and driving

while license suspended. He primarily argues that the court erred in admitting evidence

that after arrest he was covered with powdered Viagra and in denying his request for a

Drug Offender Sentencing Alternative. We affirm.

                                         FACTS

      Mr. Matheny was stopped for a traffic infraction and immediately got out of the car

and told the officer that he was going to jail. Corporal Schwarder of the Benton County

Sheriffs Office arrested him after learning that Matheny's driver's license had been

suspended. A search incident to the arrest revealed a butterfly knife and a hollow portion

of a pen. Field testing disclosed the presence of methamphetamine residue in the pen.
No. 32824-4-II1
State v. Matheny


       Mr. Matheny was placed in the back of a patrol car and driven to the Benton

County Jail. When removing Mr. Matheny from the car, Corporal Schwarder noticed

white residue on the back seat and on Mr. Matheny's hands. The corporal gathered as

much of the material as he could. Testing later identified the powder as Viagra.

       The noted charges were filed and the matter proceeded to jury trial. Defense

counsel moved to exclude evidence of the white powder, arguing that it had not been

tested. The prosecutor indicated that the powder had been tested and determined to be

Viagra. Defense counsel noted that Viagra was not a controlled substance and might

confuse the jury. The prosecutor subsequently argued that the Viagra was admissible to

show that Mr. Matheny was "secreting something" on his person. Defense counsel

responded that it was not relevant and that it had "prejudicial value." The trial court

permitted the testimony.

       Mr. Matheny testified in his own defense that he had picked up the pen at a

friend's house and removed it so that little kids would not pick it up. He knew that the

pen had been used for drugs, but did not know there was any residue in the pen. Without

objection from either party, the court instructed the jury on the defense of unwitting

possession. The instruction placed the burden on the defendant to prove unwitting

possession by a preponderance of the evidence. Clerk's Papers (CP) at 21. Neither

counsel examined Mr. Matheny about the powder.




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No. 32824-4-III
State v. Matheny


       The prosecutor did not address the Viagra evidence until rebuttal argument. There

he told the jury that "the one thing you can conclude" from the Viagra "is that the

defendant was secreting something on his person." Report of Proceedings (RP) at 133.

Unable to destroy the pen, he destroyed the Viagra.

       The jury convicted the defendant as charged. Armed with a supportive evaluation

from a chemical dependency evaluator, Mr. Matheny sought a Drug Offender Sentencing

Alternative (DOSA). The court rejected the request, stating "I don't think he's ready for

treatment. He doesn't want treatment." RP at 162. The court noted that Mr. Matheny

had denied that he had a drug problem and claimed to be acting the hero rather than

acknowledging his drug problem. A standard range term was imposed.

       Before imposing sentence, the court heard from the defendant and his counsel.

The defense indicated that Mr. Matheny had worked as a smoke jumper and a mechanic,

but would soon be reporting to prison upon the issuance of the mandate in the appeal of

an earlier conviction. The court then imposed legal financial obligations (LFOs) totaling

$3,070. 1 That figure included $1,170 in discretionary costs and a $1,000 fine. 2 The court


       IErroneously tallied as $3,570 in the judgment. CP at 109. The judgment form
notes assessed amounts of $500, $1,370, $1,000, $100, and $100; those figures total
$3,070. The total should be corrected by the trial court.
      2 The context of the sentencing discussion suggested this was a VUCSA fine, but
that box on the judgment and sentence form is not checked, nor is the deferral box
checked. CP at 109. If error, this also should be corrected by the trial court.



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State v. Matheny


initially indicated it was imposing a "mandatory" $2,000 fine, but reduced it to $1,000 at

defense request due to financial hardship that included the fines imposed in the other case.

       Mr. Matheny then timely appealed to this court.

                                       ANALYSIS

       Mr. Matheny presents four arguments in support of his appeal. He contends that

the court erred in admitting the powdered Viagra evidence, erroneously instructed the

jury on the burden of proof concerning unwitting possession, erred in ordering the

discretionary LFOs without adequate consideration of his finances, and erred in not

granting a DOSA. We address those four concerns in the order indicated.

       Powdered Viagra Evidence

       Mr. Matheny first argues that the court erred in admitting the powdered Viagra

evidence in violation of both ER 401 and ER 404. We agree that the evidence was not

relevant, but also conclude any error was harmless. 3

       ER 401 provides in part that evidence is relevant if it makes "the existence of any

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

probable." Evidentiary rulings are reviewed for abuse of discretion. State v. Guloy, 104

Wn.2d 412, 429-430, 705 P.2d 1182 (1985). "In close cases, the balance must be tipped

in favor of the defendant." State v. Wilson, 144 Wn. App. 166, 177, 181 P.3d 887 (2008).



      3   We thus need not decide ifER 404(b) was violated.

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No. 32824-4-111
State v. Matheny


An erroneous evidentiary ruling is not prejudicial "unless, within reasonable probabilities,

had the error not occurred, the outcome of the trial would have been materially affected."

State v. Cunningham, 93 Wn.2d 823,831,613 P.2d 1139 (1980).

       The prosecutor argued that "secreting" the Viagra was relevant to show that Mr.

Matheny also was secreting the pen. We disagree. Whether or not the pen was secreted

was determined by its own facts. Here, the pen was found in the defendant's pocket, a

typical place for carrying a pen. It does not appear to have been secreted. 4

       Moreover, the purpose of showing that the pen was secreted was to establish the

defendant's guilty knowledge of his possession of the methamphetamine. However, the

prosecutor had no obligation to prove knowledge. Knowledge only became an issue, as

noted in the next section of this opinion, once the defendant contended that his possession

was unwitting. The defendant's knowledge was not at issue during the State's case.

       We thus believe the court erred in admitting the evidence. However, we do not

believe the evidence materially affected the verdict. The charged offense involved the

pen found at the time of the arrest, not the powder subsequently discovered in the car.

The issue presented for the jury was whether or not Mr. Matheny knew the miniscule

amount of the controlled substance was present in the pen. The Viagra evidence was



       4 The pen had already been seized and tested before Mr. Matheny undertook to
destroy the Viagra, thus strongly suggesting that the purpose of his actions was related to
his possession of the Viagra rather than the pen's contents.

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No. 32824-4-111
State v. Matheny


very briefly mentioned in argument, and only then in the limited context of whether it

showed that Mr. Matheny had also secreted the pen containing the methamphetamine.

Mr. Matheny did not testify about the powder. There also is nothing inherently bad about

possessing Viagra, a widely advertised substance. In sum, the destruction of the Viagra

tablet had nothing to do with the jury's verdict about whether or not Mr. Matheny

possessed the methamphetamine.

       Accordingly, although it was error to admit the evidence, the powder did not

impact the verdict.

       Unwitting Possession Instruction

       Mr. Matheny also argues that the jury instructions improperly placed the burden of

proving unwitting possession on the defense. His argument is controlled by binding

Washington State Supreme Court precedent to the contrary.5

       The Washington legislature did not include a knowledge element in the unlawful

possession statute. Our court subsequently concluded that the omission was intentional

and that a knowledge element should not be read into the statute. State v. Cleppe, 96

Wn.2d 373,635 P.2d 435 (1981). Reviewing the issue a generation later, our court again

concluded that Cleppe was correctly decided. State v. Bradshaw, 152 Wn.2d 528, 98 PJd



       5 We therefore do not address the question of whether Mr. Matheny has established
manifest constitutional error that permits him to raise this issue initially on appeal. RAP
2.5(a)(3).

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No. 32824-4-111
State v. Matheny


1190 (2004). Those decisions are binding on this court. State v. Gore, 101 Wn.2d 481,

487,681 P.2d 227 (1984).

       In order to ameliorate the harshness of strict liability, the court created a common

law defense of unwitting possession. Cleppe, 96 Wn.2d at 381. The defense can be

applied either when the defendant does not know he is in possession of a controlled

substance or ifhe did not know the nature of the substance in his possession. State v.

Staley, 123 Wn.2d 794,799,872 P.2d 502 (1994). The burden of proof is on the

defendant. Cleppe, 96 Wn.2d at 381.

       Mr. Matheny now argues that the defense cannot bear the burden of proof on an

affirmative defense after State v. W.R., Jr., 181 Wn.2d 757,336 P.3d 1134 (2014). That

decision does not support his position. There the court concluded that the consent

defense to rape negates the forcible compulsion element of the crime and that due process

therefore requires the State to disprove consent. Id. at 765-768.

       In contrast to the rape charge at issue in WR., the affirmative defense of unwitting

possession does not negate any element of the crime of possession of a controlled

substance. Instead, it involves a judicially-created excuse for the offense. Due process

does not therefore require that the State disprove a defense that negates an element of the

crime. W.R. is inapplicable.

      The court properly instructed the jury on the defense of unwitting possession.




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State v. Matheny


       Legal Financial Obligations

       Mr. Matheny also argues that the trial court erred in imposing significant

discretionary LFOs without making the inquiry required by RCW 10.01.160(3). Since

the trial court attempted to fulfill its statutory obligations, we conclude that any error is

not manifest in light of Mr. Matheny's failure to object and decline to address the merits

of the claim.

       RCW 10.01.160(3) states:

       The court shall not order a defendant to pay costs unless the defendant is or
       will be able to pay them. In determining the amount and method of payment
       of costs, the court shall take account of the financial resources of the
       defendant and the nature of the burden that payment of costs will impose.

The statutory inquiry is required only for discretionary LFOs. State v. Lundy, 176 Wn.

App. 96, 102,308 P.3d 755 (2013) (mandatory fees, which include victim restitution,

victim assessments, DNA fees, and criminal filing fees, operate without the court's

discretion by legislative design); State v. Kuster, 175 Wn. App. 420, 424, 306 P.3d 1022

(2013) (victim assessment and DNA collection fee mandatory). Trial courts are not

required to enter formal, specific findings. Lundy, 176 Wn. App. at 105.

       In Blazina, our court concluded that the LFO issue is not one that can be presented

for the first time on appeal because this aspect of sentencing is not one that demands

uniformity. State v. Blazina, 182 Wn.2d 827, 830,344 P.3d 680 (2015). To that end, the

appellate courts retain discretion whether or not to consider the issue initially on appeal.


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No. 32824-4-III
State v. Matheny


ld. The Blazina court then decided to exercise its discretion in favor of accepting review

due to the nationwide importance of the general issue concerning LFOs and to provide

guidance to our trial courts. ld. The court noted that trial judges have a statutory

obligation to consider RCW 10.01.160(3) at sentencing and make an individualized

determination of the defendant's ability to pay discretionary LFOs. ld. at 837.

       Mr. Matheny argues that this court likewise should exercise its discretion and

remand his case for a new sentencing proceeding. However, he is not situated similarly

to the defendants in Blazina. There the trial court made no attempt to satisfY its statutory

obligations. ld. at 831-832. In contrast, here the trial court heard about Mr. Matheny's

employability as well as his financial obligations in another case. Using that information,

the court reduced the drug fine by 50 percent. He made no similar request concerning his

other obligations and did not object to the trial court's ruling.

       In these circumstances, we are not convinced that we should exercise discretion to

hear this unpreserved error. Blazina requires an individualized inquiry into the ability to

pay and a consideration of various factors that weigh on that issue. ld. at 838. The

inquiry in this case probably was not sufficient to satisfy Blazina. However, unlike those

cases where no inquiry was attempted, here the trial court made an effort to satisfy the

statute. Given that Mr. Matheny did not object to the trial court's efforts, which did

benefit him, we decline to find that there clearly was error below.

       Accordingly, we decline to address this issue.

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No. 32824-4-III
State v. Matheny


       Consideration ofDOSA Request

       The final argument presented is a contention that the trial court did not consider a

DOSA sentence in retaliation for the defendant exercising his right to a jury trial. This

issue, too, is controlled by a factually similar case. We affirm.

       The governing law is clear. RCW 9.94A.660(l) contains seven criteria for

determining eligibility for a DOSA sentence. If the offender is eligible, the trial court

may impose a standard range sentence that is spent half in treatment and half in

community custody. RCW 9.94A.660(3); .662; .664. The trial court's decision to grant

or deny DOSA is not reviewable. State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183

(2005); State v. Hender, 180 Wn. App. 895, 900, 324 P.3d 780 (2014). The trial judge

has the discretion to determine whether use of the sentencing alternative is appropriate.

Hender, 180 Wn. App. at 901. However, the trial court abuses its discretion if it does not

actually consider the request. Id.

       Mr. Matheny contends that the trial court did not actually consider his request

because he took the case to trial. That view misapprehends the trial court's decision. As

noted previously, the trial judge denied DOSA because Mr. Matheny was not

forthcoming about his drug problem. The essence of his defense was that the drugs were

not his and he had not used the pen to consume the methamphetamine. The trial court

was free to understand his trial testimony as refusing to acknowledge that there was a

drug problem. It did not have to accept his statements to the treatment evaluator.

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No. 32824-4-111
State v. Matheny


       The trial court faced a similar situation in Hender. There the defendant had

pleaded guilty to delivering methamphetamine, but denied that methamphetamine had

made him a criminal. The trial court rejected the defendant's DOSA request due to the

defendant's refusal to accept responsibility for his conduct. 180 Wn. App. at 902. We

concluded the opinion with this observation:

       Although many behavioral scientists disagree, many recognize that one
       who blames others for his wrongs is detached from reality and this
       detachment interferes in one's ability to benefit from treatment. If a user
       does not take responsibility for his behavior, he is not likely to be receptive
       to change in the behavior. Alcohol and drug addiction are common causes
       of a blaming attitude. Thus, the trial court did not abuse its discretion when
       concluding that a DOSA sentence does not fit the predisposition of Ronald
       Hender.

Id.

       Similarly here, the trial court could conclude from Mr. Matheny's own testimony

that he was not taking responsibility for his actions and not acknowledging his problems,

thus making him a poor candidate for treatment. Drug treatment should not be wasted on

those not ready to make the effort to overcome their problem. Trial judges have the

discretion to determine who to trust or not trust. Given the conflicting pronouncements

by Mr. Matheny, the trial court had a tenable basis for concluding he was not a good

candidate for DOSA at this time. There was no error.

       The judgment is affirmed. The trial court is directed to correct the noted

scrivener's error(s).



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No. 32824-4-II1
State v. Matheny


      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: 





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