                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       December 15, 2015




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 46618-0-II

                               Respondent,

        v.

 TODD ANTHONY BUURMAN,                                        UNPUBLISHED OPINION

                               Appellant.


       LEE, J. — Todd Anthony Buurman was convicted of possession of a controlled substance

and third degree theft. Buurman appeals his convictions and sentence, arguing that (1) the

unwitting possession defense violates his due process rights because it shifts the State’s burden of

proof; (2) the possession of a controlled substance conviction violates his right against cruel and

unusual punishment and his right to due process because it imposes a felony punishment without

establishing a criminal intent; (3) the charging document failed to provide adequate notice of the

theft charge against him; and (4) the trial court erred in assessing two crime victim penalty

assessments against him.
No. 46618-0-II


         We hold that Buurman’s first three arguments fail because (1) the unwitting possession

does not negate an element of the offense; (2) both our state legislature and our Supreme Court

have decided that a class C felony is a constitutional punishment for strict-liability crimes; and (3)

the charging document alleged all of the requisite elements and necessary facts. However, we

agree with Buurman that the trial court erred in assessing two crime victim penalty assessments

against him. Therefore, we affirm Buurman’s convictions, but remand to the trial court to vacate

one crime victim penalty assessment.

                                              FACTS

         Buurman lost his job and home, and had been staying with friends for several weeks.

Around 12:00 p.m. on June 30, 2014, Buurman picked up a pair of his cargo shorts from a pile of

laundry and put them on. Around 9:00 or 10:00 that evening, Buurman walked out of a grocery

store in Clark County without paying for the merchandise he had placed in his cart. A grocery

store employee saw Buurman leave without paying and called the police.

         When the police stopped Buurman outside the grocery store, they read him his Miranda1

rights and he admitted to the theft. Buurman was then placed under arrest.

         During the search incident to arrest, the police discovered a small baggie containing

methamphetamine in one of the cargo pockets of Buurman’s shorts. Buurman acknowledged to

the police that the shorts were his, but he denied having any knowledge of the baggie or its

contents.




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


                                                  2
No. 46618-0-II


       The State charged Buurman with possession of a controlled substance–methamphetamine

and third degree theft. Buurman asserted the affirmative defense of unwitting possession of a

controlled substance.

       Buurman elected to testify in his own defense. He testified that he stole the merchandise

from the grocery store, but again denied having any knowledge of the baggie or its contents.

       Pursuant to Buurman’s request, the trial court instructed the jury on Buurman’s affirmative

defense of unwitting possession of a controlled substance. The jury found Buurman guilty of both

charges. The trial court ordered him to pay two victim penalty assessments, both in the amount of

$500: one for the possession conviction and one for the theft conviction. Buurman appeals.

                                            ANALYSIS

A.     UNWITTING POSSESSION

       Buurman argues the unwitting possession affirmative defense violated his due process

rights by shifting the State’s burden to prove the essential element of constructive possession. He

argues that the unwitting possession negates the element of constructive possession “because a

lack of knowledge cannot coexist with dominion and control over a controlled substance.” Br. of

Appellant at 6. We hold that unwitting possession does not negate an element of the crime because

possession of a controlled substance is a strict liability crime that does not require the possessor’s

knowledge of his possession.

       We review constitutional issues de novo. State v. Robinson, 171 Wn.2d 292, 301, 253 P.3d

84 (2011). Due process requires that the State prove every element of the crime charged beyond

a reasonable doubt. WASH. CONST. art. I, § 3; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068,

25 L. Ed. 2d 368 (1970); State v. W.R., 181 Wn.2d 757, 761-62, 336 P.3d 1134 (2014). An



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No. 46618-0-II


affirmative defense “merely ‘excuse[s] conduct that would otherwise be punishable.’” Id. at 762

(quoting Smith v. United States, __ U.S. ____, 133 S. Ct. 714, 719, 184 L. Ed. 2d 570 (2013))

(alteration in original). “But when a defense necessarily negates an element of an offense, it is not

at true affirmative defense, and the legislature may not allocate to the defendant the burden of

proving the defense.” W.R., 181 Wn.2d at 762. “The key to whether a defense necessarily negates

an element is whether the completed crime and the defense can coexist.” Id. at 765.

         Buurman was charged with unlawfully possessing a controlled substance in violation of

RCW 69.50.4013(1). RCW 69.50.4013(1)2 states, “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.” “The State is not required to prove either

knowledge or intent to possess, nor knowledge as to the nature of the substance in a charge of

simple possession.” State v. Staley, 123 Wn.2d 794, 799, 872 P.2d 502 (1994).

         Possession may be actual or constructive. Id. at 798. “A defendant has actual possession

when he or she has physical custody of the item and constructive possession if he or she has

dominion and control over the item. Dominion and control means that the object may be reduced

to actual possession immediately.” State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002)

(citation omitted). To “ameliorate[] the harshness of [the] strict liability” nature of the crime, a

defendant may assert the affirmative defense of unwitting possession. State v. Bradshaw, 152

Wn.2d 528, 538, 98 P.3d 1190 (2004). “To establish the defense, the defendant must prove, by a



2
    Buurman does not allege any of the exceptions in RCW 69.50.4013 apply to him.



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No. 46618-0-II


preponderance of the evidence, that his or her possession of the unlawful substance was

unwitting.” State v. Balzer, 91 Wn. App. 44, 67, 954 P.2d 931, review denied, 136 Wn.2d 1022

(1998). The unwitting possession defense “assumes that the State has established a prima facie

showing of ‘possession.’” Staley, 123 Wn.2d at 800.

       Here, the trial court instructed the jury that to find Buurman guilty, the State had the burden

to prove: “(1) That on or about June 30, 2014, the defendant possessed a controlled substance

Methamphetamine; and (2) That this act occurred in the State of Washington.” Clerk’s Papers

(CP) at 51 (Jury Instruction 13). The trial court also instructed the jury that “[p]ossession means

having a substance in one’s custody or control”; that possession may be “actual or constructive”;

and on the definitions of actual possession and of constructive possession. CP at 52 (Jury

Instruction 14). Furthermore, the trial court’s instructions provided that in analyzing “dominion

and control,”

       Factors that you may consider, among others, include whether the defendant had
       the immediate ability to take actual possession of the substance, whether the
       defendant had the capacity to exclude others from possession of the substance, and
       whether the defendant had dominion and control over the premises where the
       substance is located. No single one of these factors necessarily controls your
       decision.

CP at 52 (Jury Instruction 14).

       At Buurman’s request, the trial court also instructed the jury on the affirmative defense of

unwitting possession. The trial court’s instruction on the affirmative defense stated:

               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 or did not know the
       nature of the substance.

CP at 54 (Jury Instruction 16).



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No. 46618-0-II


       Buurman relies on State v. W.R., 181 Wn.2d 757, to support his claim that the unwitting

possession defense violates due process because the State did not show he had actual possession

and his “lack of knowledge cannot coexist with dominion and control.” Br. of Appellant at 6. In

W.R., the challenged affirmative defense violated the defendant’s due process rights because it

required the defendant to prove consent, which negated the element of forcible compulsion in the

crime of rape by forcible compulsion. 181 Wn.2d at 759.

       In support of his assertion that the State relied on a showing of constructive possession,

Buurman cites “See RP generally.” Br. of Appellant at 6. But, Buurman’s citation is not supported

by the record. See e.g. 1 Report of Proceedings (RP) at 128 (the court tells the State and defense

counsel after trial: “There doesn’t appear to me that they’re [the members of the jury] going to

have a lot of disagreement as to whether he possessed the drug. It’s going to be really focused on

the unwitting possession.”). Therefore, Buurman’s challenge fails for lack of support in the record.

See RAP 10.3(a)(5)-(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d

549 (1992); Mills v. Park, 67 Wn.2d 717, 721, 409 P.2d 646 (1966) (“We are not required to search

the record for applicable portions thereof in support of the plaintiffs’ arguments.”).

       Even accepting Buurman’s assertion that the State relied on a showing of constructive

possession as true, Buurman’s argument fails because knowledge or intent is not an element of the

crime of unlawful possession of a controlled substance. See RCW 69.50.4013(1); Staley, 123

Wn.2d at 799 (“The State is not required to prove either knowledge or intent to possess, nor

knowledge as to the nature of the substance in a charge of simple possession.”). Showing the

absence of knowledge or intent for the affirmative defense does not negate any element of unlawful

possession of a controlled substance because that crime does not require a showing of knowledge



                                                 6
No. 46618-0-II


or intent. Therefore, the completed crime of unlawful possession of a controlled substance, and

the affirmative defense of unwittingly possessing that controlled substance can coexist. And, in

fact, the affirmative defense of unwitting possession, “assumes that the State has established a

prima facie showing of ‘possession.’” Staley, 123 Wn.2d at 800.

       Buurman’s argument is further belied by the jury instructions given at his trial. As is

apparent from the jury instructions, Buurman’s knowledge or lack thereof was not considered by

the jury in determining whether he possessed a controlled substance. State v. Anderson, 153 Wn.

App. 417, 428, 220 P.3d 1273 (2009) (holding that this court presumes juries follow the trial

court’s instructions), review denied, 170 Wn.2d 1002 (2010). In contrast, the jury did consider

Buurman’s knowledge when determining if the affirmative defense of unwitting possession should

be applied. Anderson, 153 Wn. App. at 428 (presumption that jurors follow instructions). Thus,

under established case law, and pursuant to the jury instructions given at Buurman’s trial, the

completed crime of unlawful possession of a controlled substance could coexist with the

affirmative defense of unwitting possession because demonstrating the absence of Buurman’s

knowledge would not have negated any element of the crime of unlawful possession of a controlled

substance.

B.     CONSTITUTIONALITY OF RCW 69.50.4013

       Buurman argues the imposition of a felony as the penalty for a crime without a requisite

mens rea, such as RCW 69.50.4013, violates both the Eighth Amendment’s protection against

cruel and unusual punishment, and the Fourteenth Amendment’s protection of due process. We

disagree because Buurman’s arguments fail to overcome the presumption of validity that

legislatively enacted statutes are afforded. We review challenges to the constitutionality of a



                                               7
No. 46618-0-II


statute de novo. State v. Shultz, 138 Wn.2d 638, 643, 980 P.2d 1265 (1999), cert. denied, 529 U.S.

1066 (2000).

       1.      Cruel and Unusual Punishment

       “The Eighth Amendment states: ‘Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.’” Graham v. Florida, 560 U.S. 48, 58, 130

S. Ct. 2011, 176 L. Ed. 2d 825 (2010). “The Cruel and Unusual Punishments Clause prohibits the

imposition of inherently barbaric punishments.” Id. at 59. Under the Eighth Amendment, the

punishment for a crime must be proportionate to the offense. Id. at 59. “There are two types of

Eighth Amendment analysis: (1) determining whether a sentence is disproportionate to the

particular crime, and (2) using categorical rules to define constitutional standards for certain

classes of crimes or offenders.” State v. Schmeling, No. 46218-4-II, slip op. at 2 (Wash. Ct. App.

Dec. 15, 2015).

       In Schmeling, we considered arguments very similar to those raised by Buurman.

Schmeling, slip op. at 1-2. During a search of Schmeling’s car, police found two baggies

containing methamphetamine residue. Schmeling, slip op. at 1. Schmeling was convicted of

possession of a controlled substance in violation of RCW 69.50.4013, and on appeal argued that

his conviction violated the Eighth Amendment’s protection against cruel and unusual punishment.

Schmeling, slip op. at 1-2.

       The Schmeling court considered his cruel and unusual punishment arguments under both

(1) the “proportionality analysis” and (2) the “categorical analysis.” Schmeling, slip op. at 3, 4.

With respect to the proportionality analysis, we held that “[c]lassification of a crime as a felony

despite the absence of a mens rea requirement does not result in grossly disproportionate



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No. 46618-0-II


punishment.” Schmeling, slip op. at 4. And, “we decline[d] to apply the categorical approach to

punishment of adult drug offenders” convicted of possession of a controlled substance under RCW

69.50.4013. Schmeling, slip op. at 5. Therefore, pursuant to our holding in Schmeling, slip op. at

3-5, we hold Buurman’s conviction for possession of a controlled substance does not violate the

Eighth Amendment’s protection against cruel and unusual punishment.3

       2.      Due Process

       Buurman also argues that this court should create the “non-statutory element of requiring

proof of some culpable mental state,” and then reverse Buurman’s conviction because it “would

be based on insufficient evidence, in violation of his right to due process.” Br. of Appellant at 15.

We disagree for the same reasons we rejected this argument in Schmeling, slip op. at 5-7.

       Schmeling argued that his conviction under RCW 69.50.4013 violated due process rights

because it imposed strict liability for the possession of a small quantity of drugs that an offender

may not know he or she possessed. Schmeling, slip op. at 1. We rejected that argument and held

that “RCW 69.50.4013 does not violate due process even though it does not require the State to

prove intent or knowledge to convict an offender of possession of a small amount of a controlled

substance.” Schmeling, slip op. at 7. Pursuant to our holding in Schmeling, we reject Buurman’s

argument and hold that his due process rights were not violated when he was convicted of

possession of a controlled substance under RCW 69.50.4013.




3
  Buurman relies only on the Eighth Amendment, thus we do not engage in an analysis of Article
I, Section 14 of the Washington Constitution. Schmeling, slip op. at 2, n.3. Furthermore, as in
Schmeling, slip op. at 5, n.4, even if the categorical analysis is applicable, Buurman similarly fails
to demonstrate a national consensus against the challenged sentencing practice.


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No. 46618-0-II


C.     CHARGING DOCUMENT

       Buurman argues, for the first time on appeal, that his charging document failed to provide

him with adequate notice of the theft charge against him and violated the Fifth and Sixth

Amendments to the United States Constitution and article I, sections 3 and 22 of the Washington

Constitution. Buurman contends that the charging document was vague and that it omitted critical

facts. We disagree because the charging document included all of the elements and critical facts

of the crimes charged.

       Buurman’s claim that the charging document was vague fails because he did not request a

“bill of particulars” at trial. “A defendant may not challenge a charging document for ‘vagueness’

on appeal if no bill of particulars was requested at trial.” State v. Leach, 113 Wn.2d 679, 687, 782

P.2d 552 (1989) (quoting State v. Holt, 104 Wn.2d 315, 320, 704 P.2d 1189 (1985)). Thus, because

Buurman did not request a bill of particulars at trial, he may not challenge the vagueness of the

charging document on appeal.

       We review a challenge to the sufficiency of a charging document de novo. State v.

Williams, 162 Wn.2d 177, 182, 170 P.3d 30 (2007); State v. Rivas, 168 Wn. App. 882, 887, 278

P.3d 686 (2012). A charging document must allege “‘[a]ll essential elements of a crime,’”

statutory and non-statutory, to provide a defendant with sufficient notice “‘of the nature and cause

of the accusation against him.’” State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013)

(quoting State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991)); U.S. CONST. amend. VI; WASH.

CONST. art. I, § 22). To satisfy this requirement, the information must allege (1) “every element

of the charged offense” and (2) “particular facts supporting them.” State v. Nonog, 169 Wn.2d

220, 226, 237 P.3d 250 (2010); see State v. Simms, 171 Wn.2d 244, 250, 250 P.3d 107 (2011).



                                                10
No. 46618-0-II


“These legal and factual requirements are designed to give the defendant adequate notice of the

charges so that he or she may prepare a defense.” Rivas, 168 Wn. App. at 887.

       When a defendant challenges a charging document’s sufficiency for the first time on

appeal, we construe the document liberally in favor of validity. Rivas, 168 Wn. App. at 887.

       In analyzing the sufficiency of an information under this liberal construction, we
       employ a two-prong test: (1) do the necessary elements appear in any form, or by
       fair construction can they be found in the information and, if so, (2) can the
       defendant show he or she was actually prejudiced by the vague or unartful
       language.

Rivas, 168 Wn. App. at 887. A caveat to our two-prong test exists where “we can neither find nor

fairly imply an essential element of the crime in the charging document,” at which point prejudice

is presumed and reversal is required. Rivas, 168 Wn. App. at 888. This is true even if the defendant

had actual knowledge of all of the essential elements of the crime charged against him. Rivas, 168

Wn. App. at 888.

       Buurman argues the charging document omitted “critical facts” because it did not

specifically detail which items he stole from the grocery store. Buurman also argues that the

absence of “critical facts” could subject him to a subsequent prosecution for the same offense in

violation of double jeopardy. Br. of Appellant at 17-19.

       The information in the charging document consisted of the following language:

       COUNT 02–THEFT IN THE THIRD DEGREE – 9A.56.020(1)(a) / 9A.56.050 /
       9A.56.050(1)(a)

       That he, TODD ANTHONY BUURMAN, in the County of Clark, State of
       Washington, on or about June 30, 2014, did wrongfully obtain or exert unauthorized
       control over the property or services of another, of a value less than $750, with
       intent to deprive that person of such property or services, to-wit: various items
       belonging to Safeway; contrary to Revised Code of Washington 9A.56.050(1)(a)
       and 9A.56.020(1)(a).



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No. 46618-0-II



CP at 1. The charging document mirrors the language of every statutory element enumerated in

RCW 9A.56.050(1)(a) and .020(1)(a), and no non-statutory elements are alleged to be missing.

The charging document in this case gave Buurman sufficient notice that he was required to defend

against the charge of third degree theft for stealing items belonging to Safeway, on June 30, 2014,

and the stolen items amounted to less than $750. Consequently, the first prong of the inquiry is

satisfied and we move to the second prong. Rivas, 168 Wn. App. at 887.

       The second prong asks whether Buurman has shown he was actually prejudiced by the

alleged unclear charging document. Rivas, 168 Wn. App. at 887. Buurman confessed to having

stolen the items when he was stopped by the police. During trial, Buurman testified that he had

confessed to police. One of the responding officers testified to what items Buurman had stolen.

And, Buurman testified that he stole the items that the police officer described. Thus, Buurman

fails to show prejudice. Moreover, if Buurman is charged in a subsequent proceeding for a similar

offense, it will be clear what items Buurman is charged with stealing and whether any subsequent

proceeding violates double jeopardy. See State v. Greathouse, 113 Wn. App. 889, 904, 56 P.3d

569 (2002) (noting that parol evidence may “‘be introduced for the purpose of identifying the

offense where a plea of former jeopardy is interposed.’” (quoting State v. Easton, 69 Wn.2d 965,

968, 422 P.2d 7 (1966))), review denied, 149 Wn.2d 1014 (2003). Therefore, we hold Buurman

fails to establish he was actually prejudiced, and the second prong of the inquiry fails.




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No. 46618-0-II


       Because the charging document contained all of the necessary elements of the crime of

third degree theft, the crime with which Buurman was charged, and because Buurman fails to show

he was actually prejudiced by the absence of an enumerated list of stolen items on the charging

document, we hold that Buurman’s challenge to the sufficiency of the charging document fails.

D.     VICTIM PENALTY ASSESSMENT

       Buurman argues, and the State concedes, that the trial court erred in ordering Buurman to

pay the statutory crime victim penalty assessment twice. We accept the State’s concession.

       RCW 7.68.035 authorizes crime victim penalty assessments. In relevant part, RCW

7.68.035(1)(a) provides: “The assessment shall be in addition to any other penalty or fine imposed

by law and shall be five hundred dollars for each case or cause of action that includes one or more

convictions of a felony or gross misdemeanor.”

       Buurman was convicted of one felony and one gross misdemeanor pursuant in a single

cause of action. The trial court ordered Buurman to pay the crime victim assessment on the felony

judgement and sentence. The trial court also wrote in $500 as the crime victim penalty assessment

on Buurman’s misdemeanor judgment and sentence form. Pursuant to RCW 7.68.035, requiring

Buurman to pay two crime victim penalty assessments for offenses contained in a single cause of

action was in error. Therefore, we remand to the trial court to vacate one crime victim penalty

assessment.




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No. 46618-0-II


       We affirm the convictions, but remand to the trial court to vacate one victim penalty

assessment.

       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

2.06.040, it is so ordered.



                                                                       Lee, J.
 We concur:



                  Bjorgen, A.C.J.




                     Maxa, J.




                                               14
