                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                           October 18, 2016




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                              No. 47871-4-II

                                Respondent,

          v.

    MARY ALICE YOKEL,                                            PUBLISHED OPINION

                                Appellant.

         WORSWICK, J. — Mary Yokel appeals her conviction for one count of possession of a

controlled substance (hydrocodone). She argues that (1) the trial court misinterpreted former

RCW 69.50.4013(1) (2012)1 by concluding that the statutory language “a valid prescription”

does not include a third party’s valid prescription and (2) the trial court denied her the right to

present a defense by excluding evidence of her daughter’s valid Vicodin prescription at trial and

declining to instruct the jury on the affirmative defense of lawful possession of a controlled

substance.




1
    The pertinent language of the 2012 statute was unchanged by the statute’s 2015 amendment.
No. 47871-4-II


       We consider as a matter of first impression in the state of Washington whether an

affirmative defense exists for an “ultimate user”2 who possesses a controlled substance pursuant

to a household member’s valid prescription. We hold that former RCW 69.50.4013(1) provides

such a defense. Accordingly, we reverse Yokel’s conviction and remand for a new trial.

                                              FACTS

       On February 15, 2015, Officer Buddy Croy discovered Mary Yokel’s car parked in front

of a motel room. Yokel had an active arrest warrant. Officer Croy knocked on the motel room

door and made contact with Yokel. He then arrested Yokel on the warrant and searched her

person incident to arrest.

       During the search, Officer Croy located one pill in Yokel’s pants pocket and verified it

was Vicodin, containing hydrocodone. The State charged Yokel with two counts of possession

of a controlled substance.3

       At trial, Yokel sought to introduce evidence that she possessed the Vicodin pursuant to

her 16-year-old daughter’s valid prescription. Yokel made an offer of proof that, on the day in

question, she had taken two of the pills out of the bottle, gave one to her daughter, and put the

other one in her pocket after determining that her daughter should not take two pills. The trial



2
  Former RCW 69.50.308 (2013). Former RCW 69.50.101(ss) (2013) defines an “ultimate user”
as “an individual who lawfully possesses a controlled substance for the individual’s own use or
for the use of a member of the individual’s household or for administering to an animal owned
by the individual or by a member of the indivdidual’s household.” Similary, the definition of
“ultimate user” was unchanged by the statute’s 2015 amendment.
3
 Former RCW 69.50.4013(1). The second count of possession of a controlled substance was
based on methamphetamine residue found in a glass pipe nearby. The jury found Yokel not
guilty of this charge, and it is not part of this appeal.



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No. 47871-4-II


court denied Yokel’s motion to continue the case to allow her daughter to testify and further

granted the State’s motion in limine to exclude any evidence regarding Yokel’s daughter’s valid

Vicodin prescription. The trial court stated:

       Well, you’re not going to be allowed to [present the defense that Yokel had a
       valid prescription for her minor daughter], because the circumstances here are
       totally different than having the pill in the bottle and having the minor present or
       close.
               ....
               . . . Just because there is some circumstance under which it might be a
       legitimate defense does not mean that it’s a legitimate defense under the facts as
       going to be presented here.
               ....
               Any mention of a prescription is out other than it’ [sic] a prescription drug
       and there was no prescription for it for [Yokel]. . . .

Verbatim Report of Proceedings (VRP) July 16, 2015 at 17-18.

       In granting the State’s motion in limine, the trial court said:

       [M]aybe I would allow that as a defense if [the circumstances were that] the police
       broke down the door just as she was handing the medicine to her daughter at the
       appropriate time, and then maybe we would—you’d be able to present that, but
       not under the circumstances here.

VRP July 16, 2015 at 17-18.

       At trial, witnesses testified to the above facts. Yokel testified in her defense, but

she was not allowed to testify that she possessed the controlled substance for the purpose

of administering it to her daughter.

       Yokel proposed a pattern form jury instruction directing the jury to find her not

guilty of possession of a controlled substance if it found the substance was obtained




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No. 47871-4-II


directly from or pursuant to a valid prescription.4 The trial court refused to give this

instruction.

       The jury found Yokel guilty of one count of possession of a controlled substance

(hydrocodone). Yokel appeals.

                                             ANALYSIS

       This case presents the issue of whether former RCW 69.50.4013(1) includes an

affirmative defense to an ultimate user in possession of a controlled substance pursuant to a

household member’s valid prescription. We agree with Yokel that former RCW 69.50.4013(1)

permits an ultimate user to possess a household member’s valid prescription for a controlled

substance.5

           I. FORMER RCW 69.50.4013(1) PROVIDES FOR AN ULTIMATE USER DEFENSE

       Yokel argues the trial court misinterpreted former RCW 69.50.4013(1) by concluding the

statute’s affirmative defense did not apply to a person in possession of a controlled substance

pursuant to a third party’s valid prescription. Because Yokel presented sufficient facts to entitle

her to an ultimate user defense, we agree.

       We review interpretation of a statute de novo. State v. Bunker, 169 Wn.2d 571, 577, 238

P.3d 487 (2010). When engaging in statutory interpretation, we endeavor to determine and give

effect to the legislature’s intent. State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013). In



4
 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 52.02, at 1009 (3d
ed. 2008).
5
 We recognize that the parties did not bring the ultimate user defense to the attention of the trial
court. As a result, the trial court did not have the chance to rule on the State’s motion with this
defense in mind.


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No. 47871-4-II


determining the legislature’s intent, we must first examine the statute’s plain language and

ordinary meaning. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). We consider the

specific text of the relevant provision, the context of the entire statute, any related provisions,

and the statutory scheme as a whole when analyzing a statute’s plain language. Evans, 177

Wn.2d at 192.

       We read a statute to give effect to all the language in the statute, without rendering any

portion meaningless or superfluous, and we recognize that the legislature intends to use the

words it uses. J.P., 149 Wn.2d at 450. If there is more than one reasonable interpretation of the

plain language, the statute is ambiguous. State v. Conover, 183 Wn.2d 706, 711-12, 355 P.3d

1093 (2015). When a statute is ambiguous, we engage in statutory construction to discern

legislative intent. Evans, 177 Wn.2d at 192. In interpreting a statute, we avoid a reading that

results in absurd results because “‘it will not be presumed that the legislature intended absurd

results.’” J.P., 149 Wn.2d at 450 (quoting State v. Delgado, 148 Wn.2d 723, 733, 63 P.3d 792

(2003) (Madsen, J., dissenting)). “Washington courts should construe the Uniform [Controlled

Substances] Act in conjunction with decisions from other states that have enacted it.” State v.

Ramirez, 62 Wn. App. 301, 307-08, 814 P.2d 227 (1991) (citing RCW 69.50.603).

       Former RCW 69.50.4013(1) provides an affirmative defense to a person who lawfully

possesses a controlled substance obtained “directly from” or “pursuant to” a valid prescription.

By including these different phrases in the statute, the legislature indicated its intent that each

phrase have a different meaning. State v. Contreras, 124 Wn.2d 741, 747, 880 P.2d 1000 (1994).

Neither chapter 69.50 RCW nor Washington cases define “directly from” or “pursuant to” for

purposes of former RCW 69.50.4013(1). The plain meaning of “directly from” a valid



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No. 47871-4-II


prescription pertains to the possession of a controlled substance by the prescription holder.

Lawful possession “pursuant to” a valid prescription, however, is not as clear. The plain

language of the statute does not state who must hold the valid prescription; possession is

arguably lawful if “pursuant to” a third party’s prescription as well as one’s own. Because of

this ambiguity, we look to other, related statutes and former RCW 69.50.4013(1)’s statutory

scheme to determine whose valid prescription possession must be pursuant to.

       Former RCW 69.50.308 (2013), one of the Uniform Controlled Substances Act’s statutes,

allows practitioners to dispense controlled substances to an ultimate user pursuant to a

prescription. The Act defines an “ultimate user” as

       an individual who lawfully possesses a controlled substance for the individual’s
       own use or for the use of a member of the individual’s household or for
       administering to an animal owned by the individual or by a member of the
       individual’s household.

Former RCW 69.50.101(ss) (2013). This definition of “ultimate user” indicates the legislature’s

intent to allow an ultimate user to possess a controlled substance for the use of another household

member. The legislature then limited the scope of an ultimate user’s lawful possession of a

controlled substance by requiring that possession be pursuant to a prescription. See former RCW

69.50.4013(1). Therefore, the legislature intended to provide an affirmative defense to ultimate

users who possess a controlled substance pursuant to a household member’s valid prescription.

       Although the legislature did not expressly include the ultimate user defense in former

RCW 69.50.4013(1), we hold that an ultimate user defense nonetheless exists. This is because

interpreting former RCW 69.50.4013(1) as prohibiting ultimate users from lawfully possessing a

controlled substance prescribed to another household member leads to an absurd result. Reading

the statute in such a way criminalizes behavior that may involve a common caretaking function.


                                                 6
No. 47871-4-II


For example, a son who picks up his bedridden father’s prescription medication or a mother who

administers a prescription medication to her infant daughter would be in violation of the statute.

Further, such an interpretation is contrary to the legislature’s expressed intent in former RCW

69.50.308. Former RCW 69.50.308 specifically allows practitioners to dispense controlled

substances to an ultimate user, who then necessarily possesses that controlled substance. It

cannot be presumed that the legislature intended this absurd result.

       The legislature has directed us to construe the Uniform Controlled Substances Act in

conjunction with other states that have enacted it. RCW 69.50.603. Recognizing this directive,

we note that we have found no other state with similar versions to Washington’s Uniform

Controlled Substances Act that has disallowed an ultimate user defense. Missouri and Iowa have

enacted the same version of the Uniform Controlled Substances Act as Washington.6 Missouri’s

and Iowa’s statutes prohibiting the possession of a controlled substance are nearly identical to

Washington’s, permitting the lawful possession of a controlled substance if obtained “directly

from, or pursuant to, a valid prescription.” MO. REV. STAT. § 195.180.1 (1989); IOWA CODE §

124.401(5) (2014). Similar to Washington’s definition, Missouri and Iowa define an ultimate

user as “a person who lawfully possesses a controlled substance or an imitation controlled

substance for his own use or for the use of a member of his household.” Former MO. REV. STAT.

§ 195.010(40) (2001); see also former IOWA CODE § 124.101(30) (2009).

       The Supreme Court of Missouri determined that its legislature intended to allow ultimate

users to possess the prescriptions of household members, reasoning that a contrary conclusion


6
 State v. Morrow, 535 S.W.2d 539, 542 (Mo. Ct. App. 1976); State v. Gallardo, 871 N.W.2d
703, 2015 WL 5278948, at *6 (Iowa Ct. App. 2015).



                                                 7
No. 47871-4-II


would produce absurd results. State v. Blocker, 133 S.W.3d 502, 505 (Mo. 2004). Similarly, the

Court of Appeals of Iowa applied Blocker’s reasoning in interpreting its controlled substance

statute as including an ultimate user defense. State v. Gallardo, 871 N.W.2d 703, 2015 WL

5278948, at *6-7 (Iowa Ct. App. 2015). The Iowa court recognized that possession of a

controlled substance pursuant to a valid prescription was an exception to that offense. 2015 WL

5278948, at *7-8 (citing State v. Gibbs, 239 N.W.2d 866 (Iowa 1976)).7

       We hold that former RCW 69.50.4013(1) (2012)’s plain language includes an affirmative

defense for ultimate users who lawfully possess a controlled substance pursuant to a household

member’s valid prescription. The plain language of the statute, taken with the statutory scheme

of chapter 69.50 RCW, allows ultimate users to lawfully possess a household member’s

prescription for a controlled substance and, as a result, provides ultimate users with a defense to

the possession. Therefore, the trial court misinterpreted former RCW 69.50.4013(1) in

concluding it does not apply to ultimate users.

                                II. RIGHT TO PRESENT A DEFENSE

       Yokel argues the trial court denied her the right to present a defense by granting the

State’s motion in limine to exclude evidence that she obtained the Vicodin found in her pocket




7
  A number of other states have acknowledged an ultimate user defense to possession of a
controlled substance as well. Walker v. State, 358 So. 2d 800, 808 (Ala. Crim. App. 1978) (“It
should be noted that possession of a controlled substance by an ‘ultimate user . . . does not
constitute a violation of the Controlled Substances Act.’” (quoting ALA. CODE § 20-2-51)); State
v. Miller, 2008 UT 61, 193 P.3d 92, 95-96 (2008) (finding temporary possession of pills
belonging to another can constitute innocent possession).




                                                  8
No. 47871-4-II


through her daughter’s valid prescription and declining to give the jury her proposed affirmative

defense instruction on lawful possession.8 We agree.

       The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee a criminal defendant the right to present a defense to the

crimes charged. A defendant has the right to present admissible evidence in her defense and

must show the evidence is at least minimally relevant to the fact at issue in her case. State v.

Phillips, 160 Wn. App. 36, 48, 246 P.3d 589 (2011). Further, a defendant is entitled to a jury

instruction supporting her theory of the case if there is substantial evidence in the record

supporting it. State v. Powell, 150 Wn. App. 139, 154, 206 P.3d 703 (2009).

       The trial court effectively barred Yokel from presenting a defense because it excluded all

evidence regarding her daughter’s prescription and declined to give her proposed affirmative

defense instruction. In light of our ruling above, the instruction and all evidence in support

thereof should have been allowed at trial. Accordingly, the trial court violated Yokel’s

constitutional right to present a defense.




8
  We recognize that Yokel did not present the trial court with the complete law on the ultimate
user defense. She sought only a valid prescription instruction, and this instruction, on its own, is
not complete because it does not set forth the elements of an ultimate user defense. Courts that
have discussed this defense have required a defendant to show she was an ultimate user.
Gallardo, 2015 WL 5278948, at *8 (“To come within the exception, the defendant would have to
introduce some evidence establishing each of the following: (1) the controlled substance was
obtained pursuant to a valid prescription; (2) the defendant came into lawful possession of the
controlled substance; and (3) the defendant lawfully possessed the controlled substance for his or
her own lawful use pursuant to a valid prescription or for the lawful use of a member of the
defendant’s household pursuant to a valid prescription.”).



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No. 47871-4-II


                                          CONCLUSION

          The trial court misinterpreted former RCW 69.50.4013(1) and, as a result, denied Yokel

the right to present a defense. Therefore, we reverse Yokel’s conviction and remand for a new

trial.9



                                                                     Worswick, J.
    We concur:



    Maxa, A.C.J.




    Melnick, J.




9
 Yokel also argues that the prosecutor committed misconduct and that one of her community
custody conditions was unconstitutionally vague. Because we reverse Yokel’s conviction, we do
not reach these arguments.


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