                                                                                            L.
                                                                                            IL.
                                                                                             D
                                                                                 COURT OF APPEALS
                                                                                       DI's ISIM 11

                                                                                2013 MAY 14            9: 01
                                                                                            A
                                                                                 ST     0       ASI; N
                                                                                                   I     OP4

                                                                                 By
                                                                                         0EP       Y



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II



STATE OF WASHINGTON,
                                Respondent,                         No. 43228 5 II
                                                                              - -


         v..

                                                             iiii     Z]
                                                                      iyI
                                                                      : I
JASON A. KEITH,
                                Appellant.



         VAN DEREK, J. —Jason     Keith appeals from his conviction for unlawful possession of

oxycodone, arguing that he presented sufficient evidence that his possession was unwitting.' He
also appeals from two of his community custody conditions. We affirm his conviction but

remand for_
          resentencing consistent with this opinion:?

          On June 26, 2011, Mason County Deputy Sheriff Larry Ellis arrested Keith on an

outstanding warrant. During a search incident to that arrest, Ellis retrieved a pill bottle from

Keith's pocket. The bottle had no label. It contained 30 smaller pills and three larger pills. The

larger pills proved to be oxycodone. Keith gave Ellis a written statement that the oxycodone

pills were her sister's and that he was bringing them to her at her request.




    He was also convicted of bail jumping, from which he does not appeal.
2
    A commissioner of this court initially considered Keith's appeal as a motion on the merits
under RAP 18. 4 and then transferred it to
            1                                 a
                                                panel of judges.
No. 43228 5 II
          - -



        The State charged.Keith with unlawful possession of oxycodone. At trial,Ellis testified

as described above. Keith's sister testified that she had asked Keith to bring her the oxycodone

that she had been prescribed. She said she asked him to bring her her medication and assiimed

he would bring her the whole bottle. After Keith was arrested, she counted the pills in the bottle

and found three were missing. But earlier she told Keith's counsel that she had spilled the pills,

that Keith had found them and returned them to her,but that three pills were missing. Keith

testified that he found the pills on the floorboard of his sister's car, did not know what they were,

texted her, learned they were hers, and told her he would bring them to her. Ellis testified in

rebuttal that Keith initially insisted that there was only one kind of pill in the bottle and that the

pills were his. Only after being shown the different size pills dial Keith say that he had found

them on the floorboard of his sister's vehicle.


        The trial court gave the following unwitting possession instruction at Keith's request:

               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 now know that the substance in his possession or did not know the.
        nature of the substance.
                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 the evidence in the
        case, that it is more probably true than not true.

Clerks Papers (CP)at 32.

        The jury found Keith guilty. The trial court sentenced him to 19. months' confinement,
                                                                        5

to be followed by 12 months of community custody. Among the conditions of his community

custody were that "[ he defendant shall not go into bars, taverns, lounges, or other places whose
                  t]

primary business is the sale of liquor"and "[ he defendant shall have a [chemical dependency]
                                           t]

evaluation within 30 days of release from custody."CP at 14.


                                                   2
No. 43228 5 II
          - -



       First, Keith argues that because he testified that he did not know what the larger pills

were,he presented sufficient evidence to show by a preponderance that he did not know the pills

were a controlled substance and, thus,presented sufficient evidence that his possession of them

was unwitting. But where a claim of unwitting possession hinges on the defendant's credibility,

we defer to the trial court. State v. Pierce, 134 Wn. App. 763, 774 75, 142 P. d 610 (2006).
                                                                    -        3

Given the changing nature of Keith's description of his possession of the oxycodone, the jury

was obliged to assess his credibility. It apparently found him not credible and we defer to that

determination. The trial court did not err in rejecting his claim of unwitting possession and in

finding him guilty of unlawful possession of oxycodone.

       Second, Keith argues that the trial court erred in imposing the community custody

condition that he not go into places where the primary business is the sale of liquor because there

was no evidence that alcohol played a role in his crimes. State v. McKee, 141 Wn.App. 22, 34,

167 P. d 575 (2007);
     3             State v. Jones,118 Wn. App. 199, 207 08,76 P. d 258 (2003).The State
                                                        -      3

concedes that he is correct. Thus, we remand his sentence to the trial court with instructions to

vacate that condition.


       Finally, Keith argues that the trial court erred in imposing the community custody

condition that he undergo a chemical dependency evaluation because the court did not snake a

finding under RCW 9. ) he had a chemical dependency that contributed to his
                  607( 4A.that
                     1
                     9

offense. Jones, 118 Wn. App. at 209 210. The State concedes that the trial court did not make
                                    -

such a finding,but it contends that the condition is proper because the nature of Keith's crime,

unlawful possession of a controlled substance, is sufficient to establish that chemical dependency

contributed to his defense. But Jones holds that even where the record would support a finding

of chemical dependency as a contributor to the offense, the condition cannot be imposed without

                                                 3
No. 43228 5 II
          - -



the trial court having made such a finding. 118 Wn. App. at 209 210. Thus, we remand his
                                                                -

sentence to the trial court with instructions to determine whether to make a finding Keith had a

chemical dependency that contributed to his offense, under RCW 9. ) if it does not
                                                               607( 4A.and,
                                                                  1
                                                                  9

make such a finding,to vacate the condition requiring him to undergo a chemical dependency

evaluation.


       We affirm Keith's conviction but remand his sentence for resentencing consistent with

this opinion.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
  0


                                                      VAN DEREN, I
We concur:




 LJNT, J.
        t        V


BJ   GE ,   J.




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