                                                                      FILED
                                                                  NOVEMBER 1, 2018
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )         No. 35368-1-III
                     Respondent,             )
                                             )
       v.                                    )
                                             )
JONATHAN RAY THACKER,                        )         UNPUBLISHED OPINION
                                             )
                     Appellant.              )

       SIDDOWAY, J. — Following convictions for possession of methamphetamine,

multiple violations of a no-contact order, and obstructing a law enforcement officer, Mr.

Thacker appeals only the controlled substance conviction. He argues that “duty to

convict” language in the to-convict instruction for possession of a controlled substance

deprived him of his right to present his defense of unwitting possession. Read as a

whole, as they would have been, the instructions were not misleading. We affirm.

                    FACTS AND PROCEDURAL BACKGROUND

       On February 13, 2017, Sergeant Donnelly Tallant of the Omak Police Department

responded to a call from a woman who reported that Jonathan Thacker was parked

outside her apartment complex in violation of a no-contact order between Mr. Thacker

and another resident. Sergeant Tallant checked Mr. Thacker’s name against police
No. 35368-1-III
State v. Thacker


records and verified that there was an active protection order in the system, signed by Mr.

Thacker.

       Sergeant Tallant responded to the location, where he saw Mr. Thacker standing

outside of a white car. Mr. Thacker was standing roughly 120 feet from the protected

person’s apartment. As the sergeant approached, Mr. Thacker spoke up, volunteering

that he wasn’t in violation of any protection orders. When the sergeant asked why he

thought he was not, Mr. Thacker responded that he was more than 100 feet from the

protected person’s residence. Sergeant Tallant called dispatch to verify the distance

listed on the protection order and, confirming that the order prohibited Mr. Thatcher from

being within 300 feet of the residence, he arrested Mr. Thacker and placed him in

handcuffs.

       The sergeant then conducted a search incident to arrest. Mr. Thacker was initially

compliant but began to stiffen up and resist, making it difficult for the sergeant to search

his hands and one of his coat pockets. The sergeant saw what appeared to be a syringe in

Mr. Thacker’s hand and became concerned that Mr. Thacker was trying to poke him with

it, so he took Mr. Thacker to the ground to get better control of him. Mr. Thacker

eventually released the syringe and a vial that he was holding in his hand, and Sergeant

Tallant retrieved them.




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State v. Thacker


       Sergeant Tallant spoke with Mr. Thacker after he was transported to jail and was

read his Miranda1 rights. Mr. Thacker told the sergeant that he was not trying to assault

the officer, he just “didn’t want [the officer] to—find the—the needle and the—and the

vial.” Report of Proceedings (RP) at 103. He told the sergeant that “they weren’t his.”

Id. When Sergeant Tallant asked what he thought was in the vial, Mr. Thacker said

“he—believed it was meth’, but he said he didn’t really know for sure.” Id. Mr. Thacker

claimed he was not the owner of the syringe or the vial, and had just been cleaning out

his car when Sergeant Tallant responded to the call. The vial tested positive for

methamphetamine.

       The State charged Mr. Thacker with possession of methamphetamine, violation of

a domestic violence no-contact order, and obstructing a law enforcement officer. It later

amended the information to add additional counts of violation of a domestic violence no-

contact order based on phone calls Mr. Thacker made while in jail.

       Consistent with his statements to Sergeant Tallant, Mr. Thacker defended against

the controlled substance charge by claiming unwitting possession.

       Among the jury instructions given at trial were the pattern to-convict instruction

for the controlled substance charge and a pattern instruction on the defense of unwitting

possession. They read as follows:



       1
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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State v. Thacker


                                   INSTRUCTION NO. 7

             To convict the defendant of the crime of Possession of a Controlled
       Substance as charged in count 1, each of the following elements of the
       crime must be proved beyond a reasonable doubt:

              (1) That on or about February 13th 2017, the defendant possessed a
       controlled substance, to wit: Methamphetamine; 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.

Clerk’s Papers (CP) at 58, which is based on 11 Washington Practice: Washington

Pattern Jury Instructions: Criminal 50.02, at 1118 (4th ed. 2016) (WPIC), and

                                  INSTRUCTION NO. 11

              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.

CP at 62, which is based on WPIC 52.01, at 1196.

       In lieu of the latter, unwitting possession instruction, the defense had proposed the

WPIC but with a final sentence added, which stated, “If you find the defendant has

established this defense . . . it will be your duty to return a verdict of not guilty.” RP at


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No. 35368-1-III
State v. Thacker


140. Upon confirming that the sentence was not included in the pattern instruction, the

trial court declined to give Mr. Thacker’s proposed instruction, explaining it was not

going to venture out beyond the pattern instruction without a good reason. When the

instructions were finalized and the time came for formal objections, the defense made

none. See RP at 233 (“Looks good, [Y]our Honor.”).

       The jury found Mr. Thacker guilty as charged. The trial court sentenced Mr.

Thacker to 18 months’ incarceration. Mr. Thacker appeals.

                                        ANALYSIS

       Mr. Thacker argues that the court erred by giving WPIC 52.01 and failing to

include the concluding sentence proposed by his trial lawyer. He contends that “the to-

convict and unwitting possession instructions provide inconsistent decisional standards.”

Br. of Appellant at 10. He continues:

       Instruction 7 told jurors they must convict if the State met its burden, while
       Instruction 11 told jurors a person is not guilty of methamphetamine
       possession if they did not know they possessed it. One can only speculate
       how jurors interpreted these two instructions when [they] convicted
       Thacker of methamphetamine possession.

Id. (citation omitted).

       “Jury instructions are sufficient when they allow counsel to argue their theory of

the case, are not misleading, and when read as a whole properly inform the trier of fact of

the applicable law.” Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927 P.2d 240

(1996).


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No. 35368-1-III
State v. Thacker


       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).

Yet “[o]nce the State establishes prima facie evidence of possession, the defendant may

. . . affirmatively assert that his possession of the drug was ‘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 “duty to convict” language in Washington’s pattern to-convict instructions has

been challenged on several bases but has been consistently upheld. E.g., State v. Brown,

130 Wn. App. 767, 770, 124 P.3d 663 (2005); State v. Bonisisio, 92 Wn. App. 783, 794,

964 P.2d 1222 (1998); State v. Meggyesy, 90 Wn. App. 693, 705, 958 P.2d 319 (1998),

abrogated on other grounds by State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005).

In Meggyesy, one of the defendant’s arguments was that the to-convict instruction and the

self-defense instructions were “irreconcilable” because they contradicted each other.

Meggyesy, 90 Wn. App. at 705. This court rejected this argument, explaining that at trial,

       [T]he court first informed the jury that it had a duty to convict if the State
       proved the elements of the charged crime. It also instructed the jury that if
       the State was unable to prove the absence of self-defense, the jury must
       acquit [the defendant]. The second of these instructions supplemented the
       first. The instructions are not erroneous.

Id. at 706.

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No. 35368-1-III
State v. Thacker


       The Meggyesy court relied in reaching this conclusion on State v. Hoffman, 116

Wn.2d 51, 108-09, 804 P.2d 577 (1991), in which the defendant had argued it was error

for the trial court not to have made the self-defense instructions a part of the “to convict”

instructions. The Supreme Court rejected the argument, noting that “the jury was

instructed to consider the instructions as a whole,” and, “No prejudicial error occurs

when the instructions taken as a whole properly instruct the jury on the applicable law.”

Id. at 109. The court “perceive[d] no error” in the pattern instructions’ approach to

instructing separately on defenses. Id.

       Mr. Thacker’s argument is the same as that made and rejected in Meggyesy and

Hoffman. While the trial court instructed the jury in instruction 7 that it had a duty to

convict Mr. Thacker if the elements of possession of a controlled substance were met, it

told jurors in instruction 11 that “[a] person is not guilty of possession of a controlled

substance if the possession is unwitting.” CP at 62. Exercising common sense, jurors

would understand the relationship of the instructions. And in instruction 1, the court told

the jurors:

              The order of these instructions has no significance as to their relative
       importance. They are all important. In closing arguments, the lawyers may
       properly discuss specific instructions. During your deliberations, you must
       consider the instructions as a whole.

CP at 52.2

       2
        Recognizing that we might refuse to review the jury instruction challenge
because it is raised for the first time on appeal, Mr. Thacker makes an alternative

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No. 35368-1-111
State v. Thacker



       Affirmed.

       A majority of the panel has determ.ined 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:



  ~
Fearin~l
                    s

Pennell, A.CJ.




 argument of ineffective assistance of counsel. Since we exercise our discretion to review
 the jury instruction issue and find no error, we need not address the ineffective assistance
 of counsel issue.

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