                                                                             FILED

                                                                         April 9, 2013

                                                                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. 29832-9-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )        OPINION PUBLISHED
DARRELL F. SMITH,                             )        IN PART
                                              )
                     Appellant.               )

       SIDDOWAY, A.C.J. - Darrell Smith was convicted of multiple crimes arising out

of his alleged 12-hour unlawful imprisonment of Eric Chadwick. He was also convicted

for possession of methamphetamine found in a search following his arrest. While he

makes numerous assignments of error, we find one dispositive: the atypical wording of

the elements instructions given at trial could have allowed jurors to convict him even if

they entertained reasonable doubt as to his guilt.

       We reject Smith's single evidence sufficiency challenge (to his conviction for

possession of methamphetamine), reverse his convictions on the basis of the instructional

error, and remand for a new trial.
No. 29832-9-III
State v. Smith


                    FACTS ANDPROCEDlmAL BACKGROUND

      Darrell Smith was convicted of first degree robbery, unlawful imprisonment,

second degree assault, misdemeanor harassment, and second degree theft. All arose from

a scheme that Smith hatched with a drifter, Desert Sand Donini, who was then living at

the same motel in Moses Lake as was Smith. Donini had become acquainted with Eric

Chadwick, who was in Moses Lake to work a temporary construction job and had helped

her out when she ran out of money in late February 2010. Smith and Donini realized that

Chadwick, who had a good job and was then working 60 hours a week, probably had a

fair amount of money.

      The many twists and turns of what became Smith's and Donini's alleged 12-hour

imprisonment of Chadwick need not be recounted, given the basis for our decision. It

suffices to say that Smith demanded that Chadwick withdraw funds from Chadwick's

bank accounts, buy assets that Smith could traffic, and-when Chadwick's credit/debit

card was eventually frozen-forced him to drive Smith to locations where Smith could

steal merchandise and then sell it. Eventually, Chadwick claims to have seen his

opportunity to escape and did, promptly calling police.

       Smith and Donini were found and arrested. Smith agreed to speak with Moses

Lake police officers and his statement to police was recorded. A search warrant was

obtained for his motel room, resulting in discovery of a CD (compact disc) with white

residue on its surface that tested positive for methamphetamine.

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No. 29832·9-111
State v. Smith


      Donini agreed to testify for the State at trial, where she supported Chadwick's

version of his imprisonment. Smith's defense at trial was that Chadwick had been a

willing participant in the 12-hour crime spree and called police only when he became

concerned about being charged.

      At trial, the court-prepared jury instructions differed in several respects from the

Washington pattern jury instructions. The court's introduction to instructions given at the

conclusion of trial omitted some of the cautions and directions included in 11

WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 1.02

(3d ed. 2008) (WPIC) (Conclusion of Trial-Introductory Instruction).

      The elements instructions were generally based on WPIC 4.21 (Elements of the

Crime) but had been modified with respect to directions given the jury depending on how

it weighed the evidence. After stating the elements of it given crime, WPIC 4.21

provides:

              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 ... , then it will be your duty to return a verdict of not
      guilty.

(Emphasis added.)

       The court's elements instructions to the jury generally read, instead:




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No. 29832-9-111
State v. Smith


              If you find from the evidence that each of these elements has been
       proved beyond a reasonable dOllbt, then you should return a verdict of
       guilty ....
              On the other hand, if, after weighing all the evidence, you have a
       reasonable doubt ... , then you should return a verdict of not gUilty.

Clerk's Papers (CP) at 60 (Instruction 12, second degree assault); 62 (Instruction 14,

possession of a controlled substance); 66 (Instruction 18, second degree theft); 71

(Instruction 23, unlawful imprisonment); 74 (Instruction 26, misdemeanor harassment);

52-53 (Instruction 5, robbery1). Smith did not object to any of these instructions.

       The jury began its deliberations late in the afternoon. At around 11 a.m. the next

morning, the jury asked to watch Smith's recorded statement again. The trial judge

initially declined the request. After further deliberations, the jury sent out the following

statement:

               We have come to a stand-still and don't believe we can get any
       closer to a unanimous decision without seeing the parts of the interview
       video between Officer Loyd and Darrell Smith that we viewed during triaL

CP at 80. The judge then allowed the video to be replayed for the jury in open court,

over Smith's objection. In replaying the video, portions that had not earlier been

admitted into evidence were inadvertently presented. The jury thereafter reached its

verdict.



       I Instruction 5, dealing with robbery, was worded slightly different but still
directed the jury that "if, after weighing the evidence, you have a reasonable doubt ... ,
then you should return a verdict of not guilty."

                                              4

No. 29832-9-III
State v. Smith


       Smith was convicted of first degree robbery, unlawful imprisonment, second

degree assault, possession of methamphetamine, misdemeanor harassment, and second

degree theft. A motion for a new trial on the burglary charge was granted but the court

denied a motion for a new trial based on the inadvertent airing of video footage that had

not been admitted in evidence, the court finding no prejudice.

       Smith was sentenced to 17 years in prison. He appeals.

                                        ANALYSIS

                                              I

       The trial court's introductory instruction to the jury at the conclusion of the

evidence did not include 12 cautions or directions usually included; among those omitted

were that the jurors accept the law "regardless of what [they] personally believe the law

is," and "apply the law from [the court's] instructions to the facts that [they] decide have

been proved, and in this way decide the case." WPIC 1.02, compare with CP at 47-49.

More significantly, the elements instructions directed the jurors that "if, after weighing all

the evidence, you have a reasonable doubt ... , then you should return a verdict of not

guilty." Smith argues that modifications to the pattern instructions created a "free for

all," including leaving the jury with no constitutional guidance.

       Generally, a party who fails to object to jury instructions in the trial court waives a

claim of error on appeal. RAP 2.5(a); State v. Schaler, 169 Wn.2d 274,282,236 P.3d

858 (2010). Our general refusal to entertain issues that were not raised in the trial court

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No. 29832-9-III
State v. Smith


has a specific applicability to most jury instructions in criminal cases in light of

erR 6.15(c), requiring that timely and well stated objections be made to instructions

given or refused'" in order that the trial court may have the opportunity to correct any

error. '" State v. Scott, 11 0 Wn.2d 682, 685-86, 757 P.2d 492 (1988) (quoting City of

Seattle v. Rainwater, 86 Wn.2d 567, 571, 546 P.2d 450 (1976». Manifest errors

affecting a constitutional right may be ra~sed for the first time on appeal, however. Id. at

685.

       Smith argues that the trial court's instructions relieved the State ofits burden of

proving all of the required elements beyond a reasonable doubt, thereby violating due

process and constituting manifest constitutional error. We agree that his challenge to the

elements instructions presents an issue of manifest error affecting a constitutional right.

See State v. Dow, 162 Wn. App. 324, 330,253 P.3d 476 (2011) (citing State v. O'Hara,

167 Wn.2d 91, 100-01,217 P.3d 756 (2009»; State v. Mills, 154 Wn.2d 1,6, 109 P.3d

415 (2005) (observing that the elements instruction "carries with it a special weight

because the jury treats the instruction as a 'yardstick' by which to measure a defendant's

guilt or innocence").

       With respect to the claimed omissions from the trial court's introduction to its

concluding instructions, though, we disagree. The requirements of due process usually

are met when the jury is informed of all the elements of an offense and instructed that

unless each element is established beyond a reasonable doubt the defendant must be

                                              6

No. 29832-9-111
State v. Smith


acquitted. Scott, 110 Wn.2d at 690. The directions and cautions included in WP1C 1.02

can prove important on appeal if a defendant contends that jurors reached their verdict for

an improper reason; in such cases, appellate courts regularly rely on a trial court's

introductory instructions and the presumption that juries follow those instructions. See,

e.g., Diaz v. State, 175 Wn.2d 457,474,285 P.3d 873 (2012). Smith has not

demonstrated that the trial court's omissions of some of the cautions and directions

included in WP1C 1.02 amounted to constitutional error, however, let alone manifest

constitutional error.

       We therefore review only the elements instructions. Review is de novo, in the

context of the instructions as a whole. Gregoire v. City o/Oak Harbor, 170 Wn.2d 628,

635,244 P.3d 924 (2010).

       The specific language of the instructions is left to the discretion of the trial court.

State v. Coe, 101 Wn.2d 772, 787, 684 P.2d 668 (1984). The instructions as a whole

must, however, correctly state the law. Boeing Co. v. Key, 10 1 Wn. App. 629, 633, 5

P.3d 16 (2000). While pattern jury instructions are intended to be accurate, concise,

unbiased statements of the law, they are not the law and are not mandatory. In re Pers.

Restraint o/Domingo, 155 Wn.2d 356,369, 119 P.3d 816 (2005).

       "What the factfinder must determine to return a verdict of guilty is prescribed by

the Due Process Clause." Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S. Ct. 2078, 124

L. Ed. 2d 182 (1993) (emphasis added). The prosecution bears the burden of proving all

                                               7

No. 29832-9-III
State v. Smith


elements of the offense charged and must persuade the fact finder beyond a reasonable

doubt of the facts necessary to establish each ofthose elements. Id. at 277 -78 (citing,

e.g., In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068,25 L. Ed. 2d 368 (1970». The

beyond-a-reasonable-doubt requirement applies in state as well as federal proceedings.

Id. at 278.

       A corollary of the due process requirement that a jury find proof beyond a

reasonable doubt in order to return a verdict of guilty is that it must return a verdict of not

guilty if the State does not carry its burden. Jury instructions must convey this. It is

reversible error to instruct the jury in a manner relieving the State of its burden. State v.

Bennett, 161 Wn.2d 303,307, 165 P.3d 1241 (2007).

       Smith argues that the substitution of the word "should" reduced the State's burden

by connoting what is proper rather than what is required. By directing the jury that it

"should" return a verdict of not guilty if the State failed to meet its burden of proof,

Smith argues that the jury was left with the impression that it ought to acquit if possessed

of reasonable doubt but that it was not mandatory. No Washington decisions address the

substitution of "should" for "duty" in an elements instruction, but Smith cites the

observation of a Massachusetts appellate court that the "use ofthe permissive 'should'

rather than the mandatory 'must'" is a serious misstep that "goes to the heart of the

[matter]: where reasonable doubt remains, acquittal is mandatory." Commonwealth v.

Caramanica, 49 Mass. App. Ct. 376, 729 N.E.2d 656,659 (2000). Even so, the

                                               8

No. 29832-9-II1
State v. Smith


Massachusetts court held that "[wJere this the only flaw ... , reversal might not be

required." Id.

       Leavitt v. Arave, 383 F.3d 809 (9th Cir. 2004) supports Smith's position more

strongly. In that case, the Ninth Circuit reviewed a district court's grant of habeas relief

based, among other claimed error, on the court's instruction 10, which explained that

before the jury could convict, it '" should require the Prosecution to prove every material

allegation contained in the Information beyond a reasonable doubt.'" Id. at 821 n.5

(emphasis added). While the Ninth Circuit reversed the district court's grant of habeas

relief, it explained that any error in instruction 10 was immediately cured by a following

statement that if" 'you entertain a reasonable doubt of the truth of anyone of these

material allegations, then it is your duty to give the Defendant the benefit of such doubt

and acquit him,'" and by summing up with the unequivocal statement: "'There must be

proof beyond a reasonable doubt.'" Id. at 822. In a footnote, the court explained why

use of the term "should" may have misstated the jury's obligation, which was

       by no means clear, as common definitions of "should," "shall" and "must"
       include both an obligatory and an exhortatory connotation. See, e.g.,
       Webster's Third New International Dictionary (unabridged 1986).

Id. at 822 n.6; see also Caudill v. Judicial Ethics Comm., 986 S.W.2d 435, 438 (Ky.

1998) (concluding, in a different context, that "[s]hould, while definitely strongly

encouraging a particular course of action, is permissive. Shall requires a particular

course of action and accordingly, is mandatory"); Louisiana Seafood Mgmt. Council v.

                                              9

No. 29832-9-II1
State v. Smith


Louisiana Wildlife & Fisheries CommJn, 97-1367 (La. 5/19/98); 715 So. 2d 387,394

("The modern rule rejects [the] 'arcane' meaning [of 'should' as 'was obliged to'] and

instead defines 'should' as 'the weaker companion to the obligatory "ought."'" (quoting

WEBSTER'S NEW COLLEGIATE DICTIONARY 1065 (1979); State v. Thomas, 528 So. 2d

1274, 1275 (Fla. Dist. Ct. App. (1988»). Louisiana Seafood also relies on Bryan

Garnees A Dictionary ofModern Legal Usage, the most recent edition of which includes

the following entry addressing "ought" and "should":

       Ought should be reserved for expressions of necessity, duty, or obligation;
       should, the slightly weaker word, expresses mere appropriateness,
       suitability, or fittingness.

DICTIONARY OF LEGAL USAGE 644 (3d ed. 2011); but cf Torrence v. State, 574 So. 2d

1188, 1189 (Fla. Dist. Ct. App. 1991) (upholding the use of "should" in instructing a jury

whether to acquit).

       We suspect that in this case the jury more likely than not understood the court's

use of "should" in the elements instruction as mandatory. But we cannot be sure that it

did. One of our panel queried the lawyers during oral argument with "you should eat

your vegetables but you don't have to eat your vegetables," and "you should get more

exercise doesn't mean you shall get more exercise." Even the State did not disagree.

       Erroneously instructing the jury that it may acquit if in reasonable doubt is

structural error. United States v. Gonzalez-Lopez, 548 U.S. 140, 149, 126 S. Ct. 2557,

165 L. Ed. 2d 409 (2006) (denial of the right to trial by jury by giving of a defective

                                             10 

No. 29832-9-III
State v. Smith


reasonable doubt instruction is structural error, citing Sullivan). Structural error is not

subject to hannless error analysis; prejudice is necessarily presumed. State v. Strode, 167

Wn.2d 222, 231,217 P.3d 310 (2009). '''[T]he difficulty of assessing the effect of the

error'" is one criterion for identifying harmless error. State v. Wise, 176 Wn.2d 1, 14 n.7,

288 P.3d 1113 (2012) (quoting Gonzalez-Lopez, 548 U.S. at 149 nA). It is illustrated

here. At one point, this jury was deadlocked. We do not know why and we do not know

how the deadlock was resolved. Perhaps jurors concluded from the court's instructions

that while jurors with lingering doubts should return a verdict of not guilty, they did not

have to.

       "The jury instructions, read as a whole, 'must make the relevant legal standard

manifestly apparent to the averagejuror.'" State v. Kyllo, 166 Wn.2d 856,864,215 P.3d

177 (2009) (quoting State v. Walden, 131 Wn.2d 469,473,932 P.2d 1237 (1997)). The

elements instructions did not do so here.

       We reverse Smith's convictions and remand for a new trial.

       The remainder of this opinion has no precedential value. Therefore, it will be filed

for public record in accordance with the rules governing unpublished opinions. RCW

2.06.040.

                                              II

       All but one of Smith's remaining assignments of error are to trial events that are

unlikely to recur. He does make one sufficiency of error challenge that requires review.

                                              11 

No. 29832-9-II1
State v. Smith


He argues that possession of methamphetamine residue in only trace amounts is

insufficient to support a possession conviction. He urges us to construe Washington's

Unifonn Controlled Substances Act, chapter 69.50 RCW, to require possession of some

minimum amount of a controlled substance, beyond residue or a trace amount, to support

conviction.

       We review questions of statutory interpretation de novo. State v. Jacobs, 154

Wn.2d 596, 600, 115 P.3d 281 (2005). Our goal in interpreting a statute is to ascertain

the legislature's intent. ld. When a statute's meaning is plain on its face, we must give

effect to that meaning as expressing the legislature's intent. ld. The statute's plain

meaning is determined from the ordinary meaning of its language, the statute's general

context related provisions, and its statutory scheme as a whole. ld. When a statute is

unambiguous, words or clauses that the legislature has chosen not to include may not be

added. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003).

       The act provides:

       It is unlawful for any person to possess a controlled substance unless the
       substance was obtained directly from, or pursuant to, a valid prescription or
       order of a practitioner while acting in the course of his or her professional
       practice, or except as otherwise authorized by this chapter.

RCW 69.50.4013(1). "Controlled substance" is defined to mean "a drug, substance, or

immediate precursor included in Schedules I through V as set forth in federal or state




                                             12 

No. 29832-9-III
State v. Smith


laws, or federal or board rules." RCW 69.50.l0l(d). Nowhere does the act identify a

minimum quantity required to support conviction.

      The plain language of the act, then, does not support the requirement that an

offender possess any minimum amount of a controlled substance. See State v. Alexander,

125 Wn.2d 717,726,888 P.2d 1169 (1995) (concluding that the legislature did not

establish a minimum amount for which a defendant could be prosecuted in determining

whether an "extraordinarily small amount" could be the basis of an exceptional reduced

sentence). Smith nonetheless urges us to recognize a quantity requirement as a common

law element of the offense, lest Washington be the only state in the union that

criminalizes possession of a trace amount of a controlled substance without at the same

time requiring knowledge as an element of the crime. Our Supreme Court has already

held that knowledge is not an element of the crime of possession. State v. Bradshaw, 152

Wn.2d 528,530-40,98 P.3d 1190 (2004).

      As Smith acknowledges, Division One of our court rejected the construction of the

act that he asks us to adopt in State v. Malone, 72 Wn. App. 429, 438, 864 P.2d 990

(1994). And this division held in State v. Rowell, 138 Wn. App. 780, 785, 158 P.3d 1248

(2007) that an offender's lack of knowledge that she or he possesses a controlled

substance is properly considered in connection with the affirmative defense of unwitting

possession. While Smith suggests that neither Malone nor Rowell engaged in a full

analysis, we are satisfied that they do. The act does not require that a minimum amount

                                            13 

No. 29832-9-III
State v. Smith


be possessed in order to sustain a conviction. Malone, 72 Wn. App. at 439. As to

knowledge or lack thereof,

        once the State proves the elements of unlawful possession of a controlled
        substance, the burden then falls on the defendant to prove the affinnative
        defense of unwitting possession. Bradshaw, 152 Wn.2d at 538; State v.
        Staley, 123 Wn.2d 794, 799, 872 P.2d 502 (1994). The affinnative defense
        of unwitting possession "does not improperly shift the burden of proof."
        Bradshaw, 152 Wn.2d at 538. Instead, it is a "'judicially created
        affinnative defense that may excuse the defendant's behavior,
        notwithstanding the defendant's violation of the letter of the statute.'"
        State v. Buford, 93 Wn. App. 149, 151-52,967 P.2d 548 (1998) (quoting
        State v. Balzer, 91 Wn. App. 44,67,954 P.2d 931 (1998)); Staley, 123
        Wn.2d at 799.

Rowell, l38 Wn. App. at 785-86. Possession of an "extraordinarily small amount" is also

a substantial and compelling reason for downward departure from the standard sentence

range. Alexander, 125 Wn.2d at 727.

                       STATEMENT OF ADDITIONAL GROUNDS

        In his pro se statement of additional grounds (SAG), Mr. Smith raises three issues,

two of which relate to the airing of the video. Given our remand for a new trial, there is

no need to address that event.

        The third issue is his claim that the trial court erred in failing to make written

findings supporting its decision to admit the statements made by Mr. Smith to Officer

Loyd.

        When a defendant's statement is to be offered in evidence, the court is required to

set a hearing for the purpose of determining whether the statement is admissible.

                                               14
No. 29832~9-III
State v. Smith


CrR 3.5(a). Although a CrR 3.5 hearing is mandatory, under proper circumstances a

defendant can waive a voluntariness hearing and the formal entry of written findings.

State v. Nogueira, 32 Wn. App. 954, 957, 650 P~2d 1145 (1982).

       Here, Mr. Smith and the State signed a "Stipulation for the Admission of

Defendant's Statements Pursuant to CrR 3.5." SAG app. C. The stipulation provides

"that all statements made by the defendant to investigating officers during the pendency

of the investigation with regards to this case were made with the defendant's knowledge

of his constitutional rights pursuant to Miranda[2] and with the defendant waiving his/her

rights; and that the statements were freely and voluntarily given." ld.

       The written findings required by CrR 3.5(c) are of the evidence presented and

conclusions reached at a CrR 3.5 hearing. Where the hearing is waived there is no record

to be made. The trial court did not err.

       We reverse Smith's convictions and remand for a new trial.




WE CONCUR:


                            .
                                              Brown, J.



       2 Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                             15
