                                                                           F,ILED
                                                                ....,URT OF'APPE3_01Y,I
                                                                SIATE OF WASIINGTON

                                                                2018 JUL 30 All 8:31




      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                    No. 76608-2-1
                        Respondent,
         V.                                         DIVISION ONE

 JOSEPH DANIEL HEAD,                                UNPUBLISHED OPINION

                       Appellant.                   FILED: July 30, 2018


       LEACH, J. — Joseph Head appeals his felony sentence for possession of a

controlled substance. He claims that the imposition of a mandatory $200 filing fee

violates his equal protection rights because GR 34 permits a court to waive a filing

fee for civil litigants. But civil litigants pay a filing fee to gain access to the courts,

and courts levy the criminal filing fee only after conviction or guilty plea. So access

to justice concerns provide a rational basis for a waiver of the former and not of

the latter.

       Head also argues that the failure of the to-convict instruction to specifically

identify the controlled substance he possessed—methamphetamine—requires

remand for the imposition of a misdemeanor-length sentence.                 Because the

identity of the controlled substance is an essential element of the charged crime

and its omission is not subject to harmless error analysis as to Head's sentence,
'No. 76608-2-1 /2


the jury verdict does not support the court's sentence. The arguments in Head's

statement of additional grounds have no merit. We affirm Head's conviction,

reverse his sentence, and remand for resentencing.

                                  BACKGROUND

       The State charged Joseph Head with possession of methamphetamine, a

controlled substance. At trial, Head did not challenge the identity of the controlled

substance jail staff found in his possession. Instead, he based his defense on a

claim of unwitting possession. The trial court's to-convict instruction did not require

 proof that the controlled substance Head possessed was methamphetamine.1 The

jury convicted Head as charged.

       The court sentenced Head to 18 months' confinement followed by 12

 months' community custody. At Head's request, the court imposed only strictly

 mandatory costs as part of his sentence. These included the $200 criminal filing

fee. The court waived all other costs and fees based on its finding that Head was

 indigent.



       1 The to-convict instruction stated,
       To convict the defendant of the crime of possession of a controlled
       substance, each of the following elements must be proved beyond a
       reasonable doubt:
              (1) That on or about the 10th day of August, 2016, the
       defendant possessed a controlled substance; 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.

                                          -2-
No. 76608-2-1 / 3


       Head challenges the constitutionality, as applied to an indigent defendant,

of a statute that requires the court impose a $200 criminal filing fee. He also

challenges his sentence for a class C felony because the to-convict instruction did

not require that the State prove the controlled substance he possessed was

methamphetamine.

                                     ANALYSIS

                                 Criminal Filing Fee

       For the first time on appeal, Head alleges that imposition of the $200

criminal filing fee on an indigent defendant violates equal protection. Generally,

an appellant must first raise an objection to a court-imposed fee at trial before this

court will review it on appea1.2 An exception exists for manifest errors that affect a

constitutional right.3 But this exception requires a trial court error.4 Before applying

it, we preview and assess the claimed constitutional violation.5 If no violation

occurred, there is no manifest error. Head has not made this threshold showing.

       Equal protection, guaranteed by article I, section 12 of the Washington State

Constitution and by the Fourteenth Amendment to the United States Constitution,

requires that similarly situated parties receive similar treatment under the law.6

Depending on the nature of the alleged violation, courts apply one of three

standards of review. Strict scrutiny applies for classifications based on a suspect


       2 State  v. Blazina, 182 VVn.2d 827, 832, 344 P.3d 680(2015).
       3 RAP 2.5(a).
       4 In re Det. of Brown, 154 Wn. App. 116, 121, 225 P.3d 1028 (2010).
       5 Brown, 154 Wn. App. at 121-22.
       6 See Harris v. Charles, 171 Wn.2d 455, 462, 256 P.3d 328 (2011).



                                          -3-
No. 76608-2-1/ 4


class or that affect a fundamental right.7         Intermediate scrutiny applies for

classifications based on a semisuspect class or that affect a liberty right.8 If neither

of these classes or rights are implicated, rational basis review applies.8

        Rational basis review seeks to determine if the challenged law rationally

relates to a legitimate government interest.10 This is an exceedingly deferential

standard.11 Only when a law is wholly irrelevant to maintaining a state objective

or creates an arbitrary classification will a court find an equal protection violation.12

        Head acknowledges that his claim warrants rational basis review. So the

relevant inquiry is if the different treatment of criminal defendants and civil litigants

is rationally related to a legitimate government interest. In this instance, it is.

        RCW 36.18.020(2)(h) requires superior court clerks to collect a $200 filing

fee from adult criminal defendants upon conviction or guilty plea. This is a

mandatory fee.13 Similarly, RCW 36.18.020(2)(a) requires a plaintiff initiating a

civil action to pay a $200 filing fee. However, GR 34 allows a court to waive this

fee for indigent civil litigants.




       7Harris, 171 Wn.2d at 462 (quoting State v. Harner, 153 Wn.2d 228, 235-
36, 103 P.3d 738 (2004)).
      8 Harris, 171 Wn.2d at 462(quoting Harner, 153 Wn.2d at 235-36).
      9 See Harris, 171 Wn.2d at 462 (quoting Harner, 153 Wn.2d at 235-36).
      10 Harris, 171 Wn.2d at 463.

      11 Harris, 171 Wn.2d at 463 (citing DeYoung v. Providence Med. Ctr., 136
Wn.2d 136, 144, 960 P.2d 919(1998)).
      12 Harris, 171 Wn.2d at 463 (quoting State v. Simmons, 152 Wn.2d 450,
458, 98 P.3d 789(2004)).
      13 See State v. Gonzalez, 198 Wn. App. 151, 155, 392 P.3d 1158, review
denied, 188 Wn.2d 1022(2017).

                                          -4-
No. 76608-2-1 / 5


       Our Supreme Court adopted the GR 34 waiver to address an equal access

to judicial relief concern, one not present in the criminal context: civil filing fees act

as a barrier to court access for indigent persons. "[P]rinciples of due process or

equal protection require that indigent litigants have access to the courts and

require a complete waiver of fees."14 Recovery of the criminal filing fee after

conviction raises no similar concerns. Unlike the civil filing fee, the court levies the

criminal filing fee only after a conviction or guilty plea.15 Its recovery does not deny

a criminal defendant access to the courts.

       So the government has a legitimate interest for distinguishing between a

waiver of a filing fee to allow indigent civil litigants equal access to the court and

recouping a filing fee from a convicted defendant who received access. Also, GR

34 does not prohibit recouping fees from an unsuccessful civil litigant, with

collection dependent upon ability to pay. Thus, Head's equal protection claim fails.

                                To-Convict Instruction

       Head claims that the trial court did not have authority to sentence him for a

class C felony. He argues that because the to-convict instruction only required

that the State prove that he possessed a "controlled substance" and not specifically

methamphetamine, the jury's verdict supports only a misdemeanor-length



       14   Jafar v. Webb, 177 Wn.2d 520, 529, 303 P.3d 1042(2013).
       15 Compare     RCW 36.18.020(2)(a)(the party filing the first or initial document
in any civil action. . . shall pay, at the time the document is filed, a fee of two
hundred dollars), and RCW 36.18.020(2)(h) ("[u]pon conviction or plea of
guilty, . . . an adult defendant in a criminal case shall be liable for a fee of two
hundred dollars").

                                           -5-
No. 76608-2-1 /6


sentence—the lowest and only other punishment authorized for possession of a

controlled substance. Head does not challenge his underlying conviction.

       The "omission of an element from [a to-convict] instruction is of sufficient

constitutional magnitude to warrant review when raised for the first time on

appeal."16 Appellate courts also review alleged instructional errors de novo.17

       A to-convict instruction must include each essential element of the crime

charged; no other jury instructions can supplement it.18 The identity of a controlled

substance is an essential element if it increases the maximum sentence a

defendant may face.19 As Head correctly notes, violation of RCW 69.50.4013 is a

class C felony with a maximum sentence of 5 years' confinement unless the

possession is for less than 40 grams of marijuana.           Then, the crime is a

misdemeanor with a maximum sentence of 90 days' confinement. The identity of

the controlled substance thus determines the status of the crime and its

subsequent penalty, making it an "essential element."2°

       Head contends that due to the to-convict instruction's wording, the jury's

verdict does not support his sentence for a class C felony.21 He bases this claim


       16 State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 415 (2005).
       17 Mills, 154 Wn.2d at 7 (citing State v. DeRvke, 149 Wn.2d 906, 910, 73
P.3d 1000 (2003)).
       18 State v. Sibert, 168 Wn.2d 306, 311, 230 P.3d 142(2010)(quoting State
v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917(1997)).
       19 Sibert, 168 Wn.2d at 311-12 (citing State v. Goodman, 150 Wn.2d 774,
785-86, 83 P.3d 410 (2004)).
       29 Sibert, 168 Wn.2d at 311-12 (citing Goodman, 150 Wn.2d at 785-86).
       21 Head does not allege that the erroneous instruction necessitates a
reversal of his conviction. When reviewing convictions, errors in to-convict
instructions are subject to a harmless error analysis. Harmless error analysis does

                                         -6-
No. 76608-2-1 /7


on the right to a jury trial afforded by the federal and Washington constitutions.

Both require that a jury's verdict authorize the sentence imposed.22 This means

that, with exceptions not applicable here, the maximum sentence a court may

impose is a sentence based on facts reflected in the jury's verdict or admitted by

the defendant.23

       RCW 69.50.4013 makes possession of a controlled substance a class C

felony unless the controlled substance is 40 grams or less of marijuana. In that

case, RCW 69.50.4014 makes the crime a misdemeanor. So the maximum

sentence for a controlled substance depends upon the identity and quantity of the

controlled substance.

       Here, the to-convict instruction did not require the jury to decide what

controlled substance Head possessed. So he claims the jury did not make the

finding about its identity needed to support a felony sentence. Indeed, the jury's

verdict reflects a finding only that Head possessed a controlled substance, not that

he possessed methamphetamine. Where the court imposes a sentence not

supported by the jury's verdict, it must be reversed for resentencing.24

       This case is similar to Division Two's recent decision in State v. Gonzalez.25

There, the jury found the defendant guilty "of unlawful possession of a controlled



not apply to sentencing errors. See State v. Clark-El, 196 Wn. App. 614, 624-25,
384 P.3d 627(2016).
       22 State v. Williams-Walker, 167 Wn.2d 889, 896, 225 P.3d 913(2010).
       23 Williams-Walker, 167 Wn.2d at 896.
       24 Williams-Walker, 167 Wn.2d at 900-01.
       25 2 Wn. App. 2d 96, 408 P.3d 743, review denied, 190 Wn.2d 1021 (2018).



                                        -7-
No. 76608-2-1 / 8


substance."26 The to-convict instruction similarly did not identify the relevant

controlled substance. Under these circumstances, the court held that the jury's

verdict supported only a misdemeanor-length sentence.27 We follow Gonzalez

and reverse Head's sentence.

                          Statement of Additional Grounds

       Head filed a statement of additional grounds for review, alleging a litany of

errors in the trial court proceedings. They are without merit.

       Head first alleges that a prosecution witness, Officer Shein, violated a

motion in limine. Officer Shein testified, "I first contacted Mr. Head over the phone."

Head alleges this violated the motion in limine prohibiting mention of Officer

Shein's prior contact with Head. But this technical reading of the motion does not

consider context. Defense counsel specifically directed the motion in limine to

exclude mention of prior violations of a no-contact order. Officer Shein's eight

words did not approach the boundaries of this forbidden topic. Accordingly, this

argument fails.

       Head also alleges an ER 403 error and a Sixth and Fourteenth Amendment

violation by Officer Shein identifying and holding up trial exhibits 2, 3, and 4. These

exhibits were photographs of a small bag and substance found in Head's shoe.

Possession of a controlled substance—Head's charged crime—necessarily

requires that the prosecution prove possession of a controlled substance. These



       26   Gonzalez, 2 Wn. App. 2d at 104.
       27   Gonzalez, 2 Wn. App. 2d at 114.

                                         -8-
No. 76608-2-1 / 9


exhibits all relate to the controlled substance found on Head. The evidence is

overwhelmingly probative and is in no way unfairly prejudicial. This argument fails.

       Next, Head claims there was no calibration of instruments used by the

State's expert witness, Jamie Daily. But this assertion, unsupported by any

evidence, does not provide a sufficient basis for us to consider the claim.28 We

therefore decline to consider it.

       Head alleges a violation of a different motion in limine by the State's trial

exhibit 8. But the prosecutor did not offer this exhibit as evidence. The jury heard

nothing about the exhibit; the prosecutor merely informed the judge of its existence

outside of the presence of the jury. So this claim fails.

       Head next claims another violation of a motion in limine: this time pertaining

to the prosecutor asking how much methamphetamine Head would typically use

in a single sitting. Head alleges this is an improper question about prior bad acts.

But Head's direct examination opened the door to this line of questioning: he

specifically testified to his use of methamphetamine, and it formed the basis of part

of his defense.

       Head asserts a few errors about the prosecutor's reference to a pipe and

torch found in Head's backpack. Head claims this violates a motion in limine. No

such motion was granted. While the judge did initially postpone judgment on such




       28 See RAP 10.10(c) (appellate court will not consider statement of
additional grounds for review unless it informs the court of the nature and
occurrence of alleged errors).

                                         -9-
No. 76608-2-1 / 10


a motion, he ultimately allowed the evidence in as rebuttal evidence. There was

no error.

       Head also makes several allegations of prosecutorial misconduct in closing

argument. First, he claims the prosecutor misstated the law in closing by failing to

state that Head "knowingly" possessed a controlled substance. But knowledge is

not an element of RCW 69.50.4013. Unwitting possession—and thus lack of

knowledge—is an affirmative defense to the crime. Second, Head seems to argue

that the prosecutor referred to jury instructions out of their numerical order in

closing and that this improperly "confused the jury." We disagree.

       Next, Head claims that the prosecutor erred in describing "actual

possession" as "physical control."      Instead, Head believes the definition is

"dominion and control." Head confuses the definition of "actual" versus

"constructive" possession. "Dominion and control" is only a factor for determining

if constructive possession exists.29 "Physical control" is an accurate way to

characterize actual possession.30

       Head also claims the prosecutor described facts not in evidence in her

closing. But the part of the record Head cites to ignores the next question and

answer by the witness. When viewed within the complete context, evidence

supports all of the prosecutor's challenged statements.




       29  See, e.q., State v. Spruell, 57 Wn. App. 383, 385, 788 P.2d 21(1990)
(citing State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400(1969)).
        30 See, e.g., Spruell, 57 Wn. App. at 385 (citing Callahan, 77 Wn.2d at 29).


                                       -10-
No. 76608-2-1 / 11


       Head's final allegations also relate to alleged prosecutorial misconduct in

closing. As he failed to object to any of these comments at trial, Head must

demonstrate that the challenged statements were so flagrant and ill-intentioned

that a curative instruction could not have fixed any resulting prejudice.31 He fails

to do this. A majority of these claims—such that the prosecutor committed a

"flagrant foul" violation by stating "the possession was not unwitting, and I ask you

to find him guilty of the crime for which he's been charged"—do not merit any

substantive discussion.

       One claim is not entirely frivolous. Head objects to the prosecutor stating

both "Mr. Head thought he had a really good hiding spot, and it was a good hiding

spot," and "Mr. Head was surprised because he thought it was well hidden and he

was surprised it got found." It is improper for a prosecutor to step into the shoes

of a defendant and represent his thought process when those facts are not in

evidence.32 But a curative instruction could have corrected this error.33 Head's

failure to object at trial defeats his claim.




       31 State v. Emery, 174 Wn.2d 741,760-61, 278 P.3d 653(2012)(citing State
v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997)).
       32 See State v. Pierce, 169 Wn. App. 533, 554, 280 P.3d 1158 (2012).
       33 For example, instructing the jury that these were not Head's actual
thoughts but inferences drawn from the evidence presented.

                                          -11-
No. 76608-2-1/ 12


                            CONCLUSION

      We affirm Head's conviction, reverse his sentence, and remand for

resentencing.




WE CONCUR:




                                 -12-
