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                                                                                                                             APPEALS
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                                                                                                          2114 NAR I I    All P: n
    IN THE COURT OF APPEALS OF THE STATE OF W

                                                  DIVISION II

STATE OF WASHINGTON,                                                               No. 4341


                                      Respondent,


       V.



DANIELLE PRICE NEWTON,                                                      UNPUBLISHED OPINION




                               1—
       PENOYAR, J. P. T.               Danielle Newton appeals her convictions for possession of a


controlled substance with           intent to deliver— methamphetamine             ( count one) and possession of a



controlled    substance— lnethamphetamine ( count                 three).    Newton      argues (   1)    the trial   court



improperly gave an unwitting possession jury instruction on count one and that her counsel was
ineffective for requesting the instruction; ( 2)            the search warrant was unconstitutionally overbroad

and her counsel was ineffective for failing to challenge the search warrant and file a motion to

suppress     evidence   seized       pursuant    to   the    search   warrant; (   3)   the trial court violated her


constitutional right to present a defense when it refused to admit a portion of her statement under

ER 106; and ( 4) the accomplice liability statute is unconstitutional. We hold the warrant was not

overbroad, Newton' s counsel was not ineffective for failing to file a motion to suppress, the trial

court did not violate Newton' s right to present a defense, and the accomplice liability statute is

                                                              Newton' s                  for   count     three.   However,
not unconstitutional.      Accordingly,         we affirm                   conviction




because the unwitting possession instruction improperly shifted the burden of proof on count

one, we reverse that conviction and remand for further proceedings.




1. Judge Joel Penoyar is serving as a judge pro tempore of the Court of Appeals, Division II,
pursuant    to CAP 21(   c).
43413 -0 -II



                                                              FACTS


I.       BACKGROUND


         On the evening            of     December 9,         2011,       police officers stopped the vehicle Nathan


Gadberry     was    driving      and    Newton       was    riding   as       a passenger.    After removing Gadberry and

Newton fxom the vehicle, the officers placed them under arrest and conducted a search of their


persons incident to their arrest. While conducting a search of Newton, an officer asked her if she

had    any     weapons      or     sharp       objects,     and   she         responded      that   she   had   a   syringe   with


methamphetamine in her pocket. The officers then placed Newton in the back of a police vehicle

and read her Miranda2 rights. Newton waived her Miranda rights and again told the officers that

the   syringe     found in her     pocket contained methamphetamine.                         The officers also found a digital


weighing scale on Gadberry.

         Detective Bill Sofianos testified that he saw a blue container holding what appeared to be

methamphetamine in the center console area when the officers removed Newton and Gadberry

from the     vehicle.   The officers sealed the vehicle and towed it to a secure facility until a search

warrant could be obtained. Sofianos applied for and obtained a search warrant for the vehicle.

         When searching the vehicle, officers found a glass smoking pipe, a scale, two spoons,

several cell phones, and Newton' s identification, in addition to the blue container Sofianos

already saw. The scale found on Gadberry, the syringe found on Newton, and the scale, spoons,

and   pipe   found in the        vehicle       all   contained    methamphetamine.              The blue container from the


center console contained           4. 8   grams of methamphetamine.                   Detective Scott Holmes analyzed the


 data from one of the seized cell phones and found several text messages from the day before and

                  Newton'                                                     Newton           Gadberry.    The State charged
the   day    of             s    arrest   as   well    as   photos       of            and




 2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
                                                                     2
43413 -0 -II



Newton       with possession of a controlled substance with             intent to deliver —methamphetamine        and



possession of a controlled substance—               methamphetamine. 3

Il.         PROCEDURAL HISTORY


            The State tried Newton, along            with     Gadberry. On the day of the readiness hearing on

February 2, 2012, the State provided Newton with a CD containing evidence obtained from one

of    the   cell   phones   seized   from the      vehicle.    At the readiness hearing, Newton was given the

opportunity to continue the trial in order to move to suppress the recently produced evidence.

Newton' s counsel stated that Newton felt her constitutional right to a speedy trial was more

important than addressing            potential   CrR 3. 6 issues.    On the first day of trial on February 6, 2012,

Newton' s counsel verbally objected to the introduction of three photographs from the CD and

argued      the    search warrant was overbroad.            Newton' s counsel, however, did not file a motion to


suppress, and stated that he saw no basis to bring a suppression motion and that Newton wanted

to proceed to trial instead of continuing to allow time to file a motion to suppress.

            The State also iterated on the record that Newton wished to proceed to trial versus


continuing to pursue a motion to suppress:

             W] e   want [ the]   Defendants to be      advised of all   their   rights as well.   And, I think
            in this case, we have some unusual circumstances that I want to make sure that the
            Court makes very clear to the Defendants that this is the first trial setting, that
            we' re —   let' s see, at least right now I don' t know if there are any other motions
            from Defendants but that we are proceeding to trial and there has been no motion
            to suppress and that they are aware that they have waived that right because they
            think their right to a speedy trial is more important than possibly filing a motion
            to suppress.




3
      The State also charged Gadberry with possession of a controlled substance with intent to
deliver —methamphetamine               (   count     one)      and   possession     of   a   controlled   substance -

methamphetamine ( count two).
                                                                 3
43413 -0 -II



1 Report      of   Proceedings ( RP)        at    81.     Newton' s counsel confirmed that Newton wished to


proceed to trial rather than continue the trial. The trial court did not suppress any of the evidence

and admitted three text messages and three photographs taken from the phone seized from the

vehicle.




        At a CrR 3. 5 hearing before trial, the trial court admitted Newton' s post -Miranda

confession     that the syringe found in           her    pocket contained methamphetamine.     At trial, Newton


also attempted to admit a pre -Miranda statement she allegedly made to the officer that conducted

the search incident to her arrest that the syringe with the methamphetamine in her pocket was the


only   methamphetamine         she   had.        The trial court ruled this statement inadmissible hearsay and

that it did not meet any of the hearsay exceptions.

        Newton' s counsel requested that the trial court give an unwitting possession instruction

for   count    one,   which   the trial   court         gave.   The trial court also gave an accomplice liability

instruction.       The jury found Newton guilty on both count one and .count three and agreed to the

special verdict regarding a school zone sentencing enhancement for count one. Newton appeals.

                                                           ANALYSIS


I.         UNWITTING POSSESSION JURY INSTRUCTION


           Newton argues the jury instruction on unwitting possession violated her Fourteenth

Amendment right to due process because it improperly shifted the burden of proof on count one

to the defense.        Newton also argues that her trial counsel was ineffective for requesting the

unwitting      possession     instruction.              Because Newton' s counsel erroneously requested the

unwitting possession jury instruction, which we presume prejudiced Newton because it misstated

the law, we reverse Newton' s conviction on count one and remand for further proceedings.



                                                                 rd
43413 -0 -II




           When an instruction given is one defense counsel proposed, the invited error doctrine

restrains   us    from reversing the          conviction        based     on an   error   in that   jury   instruction.    State v.


Henderson, 114 Wn.2d 867, 870, 792 P. 2d 514 ( 1990); see also State v. Studd, 137 Wn.2d 533,


546 -47, 973 P. 2d 1049 ( 1999).              Even where constitutional rights are involved, we are " precluded


from reviewing jury instructions when the defendant has proposed an instruction or agreed to its

wording."         State   v.    Winings, 126 Wn.              App.   75, 89; 107 P. 3d 141 ( 2005).               We review such


challenges,      however, through            an   ineffective     assistance     of counsel claim.         Studd, 137 Wn.2d at


550 -51.    Because Newton' s trial counsel proposed the unwitting possession instruction, we do

not consider Newton' s direct constitutional challenge to the instruction and, instead, consider

only Newton' s ineffective assistance of counsel claim.

           To     prove        ineffective    assistance        of    counsel,    Newton       must        show    that   counsel' s


performance was so deficient that it "fell below an objective standard of reasonableness" and that


the deficient      performance prejudiced                her. State v. Thomas, 109 Wn.2d 222, 225 -26, 743 P. 2d


816 ( 1987) (     quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d

674 ( 1984)).        Performance is not deficient if counsel' s conduct can be characterized as a

legitimate trial strategy. State             v.   Kyllo, 166 Wn.2d 856, 863, 215 P. 3d 177 ( 2009).                   To establish


prejudice, the defendant must show a reasonable probability that the deficient performance

affected    the    outcome of       the trial.         Thomas, 109 Wn.2d at 226 ( quoting Strickland, 466 U.S. at

694). "     A reasonable probability is a probability sufficient to undermine confidence in the

outcome."         Strickland, 466 U. S.           at   694.    We review ineffective assistance of counsel claims de


novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P. 3d 916 ( 2009).




                                                                      R
43413 -0 -II




             A.           DEFICIENT PERFORMANCE


             Here, the State charged Newton with unlawful possession of a controlled substance with


intent to deliver           and unlawful possession of a controlled substance.                          Arguably, the unwitting

possession          instruction     was   appropriate     for the           possession     charge..    However, Newton' s trial


counsel proposed an unwitting possession jury instruction for only the possession with intent to

deliver charge, which the trial court gave.


             The State has the burden to prove each element of a charged crime beyond a reasonable

doubt. In          re   Matter of    Winship,    397 U. S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 ( 1970).


Unwitting possession is an affirmative defense to unlawful possession of a controlled substance.

State   v.   Bradshaw, 152 Wn.2d 528, 538, 98 P. 3d 1190 ( 2004). In Bradshaw, our Supreme Court


clarified that unlawful possession of a controlled substance does not have a knowledge element.

152 Wn.2d            at   538.    Therefore, unwitting possession is an affirmative defense to possession,

which ameliorates            the harshness      of a strict        liability     crime.    Bradshaw, 152 Wn.2d      at   538. "`   To


establish [ this] defense, the defendant must prove, by a preponderance of the evidence, that ...

her   possession of         the [   controlled] substance was            unwitting. "'      State v. Buford, 93 Wn. App. 149,

152, 967 P. 2d 548 ( 1998) ( quoting State                    v.   Balzer, 91 Wn.          App-' 44,   67, 954 P. 2d 931 ( 1998)).


When used as a defense to possession, the unwitting possession instruction does not shift the

burden of proof. Bradshaw, 152 Wn.2d at 538.

             In contrast, the elements of the crime of unlawful possession with intent to deliver

include       a requisite mental          state —   intent.    State        v.   Sims, 119 Wn.2d 138, 142, 829 P. 2d 1075


 1992).           We presume that one who acts with the requisite mental state of intent also acts with

knowledge; thus, "           knowledge" is not a separate element of possession with intent to deliver, but

rather       is   subsumed       within "   intent."    Sims, 119 Wn.2d               at   142.   Thus, one must know it is a

                                                                        2
43413 -0 -II



controlled      substance     in   order   to " deliver" it   under   the   statute.     State v. Sanders, 66 Wn. App.

380, 390, 832 P. 2d 1326 ( 1992).             Unwitting possession is not an affirmative defense to the crime

of possession       with     intent to deliver because "[ i]t is impossible for a person to intend to .. .


deliver      a controlled substance without          knowing      what   he   or she     is   doing."   Sims, 119 Wn.2d at


142. Therefore, requiring the defendant to prove unwitting possession by a preponderance of the

evidence in an unlawful possession with intent to deliver charge improperly shifts the State' s

burden to      prove   the   mental    state element of       intent ( in   which "     knowledge" is subsumed) to the


defendant.


          Further, Division Three of this court held an unwitting possession instruction for an .

unlawful possession of a firearm charge erroneously placed the burden of proof on the defense

because under RCW 9. 41. 040, the State has the burden of proving the requisite mental state.

State   v.    Carter, 127 Wn.        App.    713, 717, 112 P. 3d 561 ( 2005) (                citing State v. Anderson, 141

Wn.2d 357, 366, 5 P. 3d 1247 ( 2000)).                 In Carter, defense counsel' s proposal of an unwitting

possession      instruction    was   deficient   and was      not a legitimate trial tactic.        127 Wn..App. at 717.

             Here, the jury was given a " to convict" instruction for unlawful possession with intent to

deliver, which instructed that the State had the burden to prove every element beyond a

reasonable       doubt,   including    the   requisite mental state of        intent.    But the jury was also given the

unwitting possession instruction for the unlawful possession with intent to deliver charge, which

instructed that Newton had the burden to prove unwitting possession by a preponderance of the

evidence.        Additionally, during closing argument, Newton' s counsel argued that if the jury
somehow determined that Newton had constructive possession of the methamphetamine in the

blue container, then Newton would have to " prove by a preponderance of the evidence that it is


                                                                 7
43413 -0 -II



more   likely    true than not true that      she       didn' t know   she   had it" per the unwitting possession


instruction. 4B RP at 1050.


        The unwitting possession instruction misled the jury to believe Newton had the burden to

prove the requisite mental state of intent, which conflicted with the State' s burden to prove the

requisite   mental   state   beyond    a reasonable         doubt.     This inconsistent instruction was a clear


misstatement of the law.


        Further, requesting the unwitting possession jury instruction cannot be characterized as a

tactical decision.     While there may be the rare case where defense counsel would legitimately

want to undertake the burden of proving unwitting possession when the State has the contrary

burden of proving knowing possession beyond a reasonable doubt, the record here does not

support any purposeful strategy in undertaking that burden of proof. See State v. Michael, 160

Wn.    App.    522, 527 -28, 247 P. 3d 842 ( 2011).             Accordingly, we hold that defense counsel' s

performance was deficient in proposing the unwitting possession instruction.

        B.         PREJUDICE


            When instructions are inconsistent, it is the duty of the reviewing court to determine

whether `    the jury was misled as to its function and responsibilities under the law' by that

inconsistency."      State   v.   Wanrow, 88 Wn.2d 221, 239, 559 P. 2d 548 ( 1977) (              quoting State v.

Hayes, 73 Wn.2d 568, 572, 439 P. 2d 978 ( 1968)).                       If the inconsistency results from a clear

misstatement of the law, the misstatement is presumed to have misled the jury in a manner

prejudicial     to the defendant.    Wanrow, 88 Wn.2d           at   239. In Carter, Division Three of this court


held that giving an unwitting possession instruction when the State had the burden of proving the

requisite mental state, misled        the   jury   to   believing    the defendant had the burden   of   proving the
43413• 0 -II
       -



culpable mental state and was a misstatement of the law; therefore, the defendant was presumed


to be prejudiced. Carter, 127 Wn. App. at 718.

        Here,    the combination of the unwitting possession instruction and the to convict

instruction created a clear misstatement of the law. Newton is presumed to have been prejudiced

and is entitled to a reversal on the unlawful possession of a controlled substance with intent to

deliver charge.


        Because we reverse only count one due to the erroneous unwitting possession instruction,

we still address Newton' s remaining arguments because they may be relevant on remand and

also pertain to count three.


II.     SEARCH WARRANT


        Newton argues we should reverse her convictions because the evidence used to convict

her   was   obtained under an overbroad search warrant.        At trial, Newton objected to only three

photographs taken from a cell phone found in the car in which she was riding, arguing the search

warrant was overbroad.        She did not file a motion to suppress any evidence obtained pursuant to

the search     warrant.     Because Newton failed to properly raise this argument below, with the

exception of the three photographs, and failed to meet her burden of showing the alleged error

was a manifest constitutional error reviewable under        RAP 2. 5(   a)(   3),   we directly review only her

challenge    to the three   photographs.   Because the warrant met the probable cause and particularity

requirements, it was not overbroad.


         Newton also argues she was denied effective assistance of counsel because her attorney

failed to file a written motion to suppress evidence seized pursuant to the search warrant.


Because the warrant was not overbroad, Newton' s counsel was not ineffective for not filing a

motion to suppress.

                                                      9
43413 -0 -II



           The Fourth Amendment to the United States Constitution provides that " no warrants shall


issue, but upon probable cause, supported by oath or affirmation, and particularly describing the

place   to   be, searched,    and   the   persons or   things to be     seized."     Similarly, article I; section 7 of the

Washington Constitution             provides    that "[   n] o person shall be disturbed in his private affairs, or


his home invaded,             without     authority    of   law."     These constitutional provisions impose two


requirements; first, that the warrant be supported by probable cause, and second, that the warrant

particularly     describe the       place   to be   searched and      the   items to be   seized.    State v. Perrone, 119


Wn.2d 538, 545, 834 P. 2d 611 ( 1992).


             Probable cause exists if the affidavit in support of the warrant sets forth facts and

circumstances sufficient to establish a reasonable inference that the defendant ' is probably

involved in criminal activity and that evidence of the crime can be found at the place to be

searched."       State   v.   Thein, 138 Wn.2d 133, 140, 977 P. 2d 582 ( 1999). "                   Accordingly, ` probable

cause requires a nexus between criminal activity and the item to be seized, and also a nexus

between the item to be           seized and    the    place   to be   searched. "'    Thein, 138 Wn.2d at 140 ( quoting

State   v.   Goble, 88 Wn.       App.     503, 509, 945 P. 2d 263 ( 1997) (          citing WAYNE R. LAFAVE, SEARCH

   SEIZURE § 3. 7( d), at 372 ( 3d ed. 1996)).


             To meet the particularity requirement " a search warrant must be sufficiently definite so

that the officer executing the warrant can identify the property sought with reasonable certainty."

State   v.   Stenson, 132 Wn.2d 668, 692, 940 P. 2d 1239 ( 1997).                     The required degree of specificity

 varies      according to the       circumstances and         the type of    items involved."       Stenson, 132 Wn.2d at


692.       The particularity         requirement       serves   the    dual functions      of "   limit[ ing] the executing


officer' s discretion" and " inform[ ing] the person subject to the search what items the officer may

 seize."     State v. Riley, 121 Wn.2d 22, 29, 846 P. 2d 1365 ( 1993).
                                                                 10
43413 -0 -II



         A warrant is " overbroad" if either requirement is not satisfied. State v. Maddox, 116 Wn.


App.    796, 805, 67 P. 3d 1135 ( 2003), aff'd 152 Wn.2d 499, 98 P. 3d 1199 ( 2004).                 Therefore, a


warrant can be overbroad " either because it fails to describe with particularity items for which

probable cause exists, or because it describes, particularly or otherwise, items for which probable

cause   does   not exist."   Maddox, 116 Wn. App. at 805 ( footnotes omitted).

         We review the trial court' s probable cause and particularity determinations de novo,

giving deference to the magistrate' s determination. State v. Neth, 165 Wn.2d 177, 182, 196 P. 3d
658 ( 2008).      We evaluate search warrants in a common sense, practical manner and not in a

hypertechnical sense. Perrone, 119 Wn.2d at 549.


         The    warrant   here   met   the   probable cause requirement.        The affidavit sufficiently set out

facts and circumstances relating to the crimes of possession of a controlled substance with intent

to deliver     and possession of a controlled substance.           It stated that the officers had a warrant for


Newton' s and Gadberry' s arrest; when the officer' s contacted Newton and Gadberry' s vehicle

neither Newton nor Gadberry followed commands to put their hands up; when the officers

conducted searches incident to their arrest, they found a scale in Gadberry' s pocket that field

tested positive for methamphetamine and a syringe with liquid in Newton' s pocket that field

tested positive .
                for methamphetamine; from outside the vehicle the officers observed a cell phone

and blue container in the center console area that appeared to contain large shards of

methamphetamine        that   had   not yet   been "   stepped on" (   or broken down to smaller shards that




                                                             11
43413 -0 -II


                                                                                              4;
look   more     like the cutting       agents    added     to the    methamphetamine)              and Newton admitted that


she had methamphetamine on her person and that the methamphetamine in the car was not hers.

Based on the facts and his experience, Sofianos authored an affidavit and requested a warrant to


search Gadberry and Newton' s car.

          Newton      argues    the   officers relied on "    conclusory         predictions [ and] [   b] lanket inferences . .


  substituting]         generalities      for the    required        showing        of   reasonably     specific `   underlying


circumstances. "'           Thein, 138 Wn.2d at 147 -48 ( quoting State v. Dalton, 73 Wn. App. 132, 140,

868 P. 2d 873 ( 1994)).         We disagree.


          The       affidavit provided          specific     facts that controlled            substances      and    distribution


equipment that tested positive for methamphetamine were found on Gadberry' s and Newton' s

person after they were removed from the vehicle and that a large quantity of methamphetamine

was observed inside the vehicle. This was sufficient " to establish a reasonable inference that the


defendant[ s were] probably involved in criminal activity and that evidence of the crime can be

found    at   the   place   to be   searched;"    here, the car Gadberry and Newton were in when .they were

arrested. Thein, 138 Wn.2d at 140.


          The warrant also met the particularity requirement. Although the search warrant did not

state the crimes under investigation, it did specifically list the items to be searched for and

seized,       which    included       methamphetamine               and       paraphernalia    used     in   the    ingestion   or


consumption of methamphetamine, methamphetamine distribution equipment, and " photographs

       in order to establish dominion and control of the vehicle, as well as to confirm the identity of


4 The State' s expert witness testified that dealers " step on" the methamphetamine to increase the
amount        of    methamphetamine          they    can      sell       to   make,   more    money.         By crushing the
methamphetamine and adding a similar looking cutting agent, a dealer can turn one pound of
methamphetamine              into three   pounds.    This raised the likelihood that items related to processing
the methamphetamine would be found somewhere in the vehicle.
                                                                    12
43413 -0 -II



                        5
the defendant( s). "        See Ex. 62.    This description was sufficiently definite, allowing the officers

    executing the    warrant [ to]   identify      the property     sought with reasonable         certainty."      Stenson, 132


Wn.2d at 692. Because the warrant met the probable cause and particularity requirements, it was

not overbroad.         Accordingly, Newton' s counsel was not ineffective for not filing a motion to

suppress.



III.       OPPORTUNITY TO PRESENT A DEFENSE


           Newton argues she was denied her constitutional right to present a defense when the trial

court refused to admit a portion of her statement under ER 106 and the common law rule of

completeness. Because ER 106 does not apply to Newton' s alleged oral statement, this argument

fails.


           A defendant in a criminal trial has a constitutional right to present relevant, admissible

evidence      in her defense. State       v.   Sublett, 156 Wn.            App.    160, 198, 231 P. 3d 231 ( 2010). "        The


right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity

to defend     against   the State' s   accusations."          Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct.


1038, 35 L. Ed. 2d 297 ( 1973).            However, a criminal defendant' s right to present a defense is not


5
     The   search warrant also       authorized      the      search and seizure       of "[   c] ellular telephones and their

electronically       stored   memory."         Ex. 62.         Newton argues a search of a cellular telephone is
                    the First Amendment                                         exactitude" when describing the
protected      by                                   and    requires " scrupulous

materials     to be   seized.    Appellant'    s   Br.   at   16.   But she provides no law to support her argument
that     cellular   telephones   are protected        by      the First Amendment. "           Parties raising constitutional
issues     must present considered arguments                  to this    court."   State v. Johnson, 119 Wn.2d 167, 171,
829 P. 2d 1082 ( 1992). "` [            N] aked castings into the constitutional sea are not sufficient to
command        judicial     consideration and        discussion. "'         Johnson, 119 Wn. 2d        at   171 (   quoting In re
Request of Rosier, 105 Wn.2d 606, 616, 717 P. 2d 1353 ( 1986)).                                The Supreme Court recently
held that a defendant has a privacy interest in text message conversations from warrantless
intrusion. State       v.   Hinton, No. 87663 -1, 2014 WL 766680,                    at *   1 ( Wash. Feb. 27, 2014).      In this
case, however, there was a search warrant for the cell phone and thus Hinton is not controlling.
Because Newton did not substantiate this constitutional argument and did not cite to any legal
authority that a search and seizure of a person' s cellular phone implicates First Amendment
rights, we do not consider this argument.
                                                                    13
43413 -0 -II




absolute;     a defendant seeking to present evidence must show that the evidence is at least

minimally      relevant   to   a   fact   at   issue in the    case.     State v. Jones, 168 Wn.2d 713, 720, 230 P. 3d


576 ( 2010).     We review a trial court's ruling on the. admission of evidence to determine whether

it   was   manifestly   unreasonable or              based   on untenable grounds or reasons.      State v. Powell, 126


Wn.2d 244, 258, 893 P. 2d 615 ( 1995).

           ER 106   provides       that: "     When a writing or recorded statement or part thereof is introduced

by a party, an adverse party may require the party at that time to introduce any other part, or any

other writing or recorded statement, which ought in fairness to be considered contemporaneously

with   it."   ER 106 is limited to a writing or recorded statement. State v. Perez, 139 Wn. App. 522,

531, 161 P. 3d 461 ( 2007).


           Here, Newton contends she told the arresting officers that the syringe found in her pocket

after her arrest was the only methamphetamine she had. When questioned at the CrR 3. 5 hearing

regarding her statements to the officers, Newton did not testify that she told the officers that the

methamphetamine           in her    pocket was          the only   methamphetamine she      had.   Instead, she testified


that when an officer conducted a search incident to her arrest, he asked her if she had any sharp

objects or weapons in her pockets, and she responded that she had a syringe that contained

methamphetamine           in her      pocket.         At trial, when Newton' s counsel cross -examined the lead

detective     investigating    Newton' s         case,   he   asked, "   she said, all the methamphetamine she had was


in her     syringe, right ?"       2A RP        at   274.    The State objected and the trial court ruled the alleged


statement was hearsay and did not fall under any of the exceptions, and was thus inadmissible

unless Newton took the stand in her defense.




                                                                    14
43413 -0 -II




          Because ER 106 applies only to a writing or a recorded statement, it does not apply

Newton' s alleged oral statement and does not require that Newton' s statement be admitted to the


jury. Rather, as the trial court found, ER 801 provides the proper framework.

IV.       CONSTITUTIONALITY OF ACCOMPLICE LIABILITY STATUTE


          Newton next argues that the accomplice liability statute is unconstitutionally overbroad

because it     criminalizes        speech protected       by   the First    and    Fourteenth Amendments.     Prior case


law compels us to reject this argument.


          Division One        of   this    court rejected an        identical   argument.   State v. Coleman, 155 Wn.


App. 951,      961, 231 P. 3d 212 ( 2010). The Coleman court held that because the accomplice


liability statute " requires the criminal mens rea to aid or agree to aid the commission of a specific

crime with     knowledge the             aid   will further   the   crime, ... [   the statute' s] sweep avoids protected


speech activities that are not performed in aid of a crime and that only consequentially further the

crime."      155 Wn.        App.    at   960 -61 (   citing Brandenburg v. Ohio, 395 U.S. 444, 448, 89 S. Ct.

1827, 23 L. Ed. 2d 430 ( 1969)).                  In State v. Ferguson, 164 Wn. App. 370, 376, 264 P. 3d 575

 2011),     we explicitly adopted Division One' s rationale in Coleman and held that the accomplice

liability    statute   is   not    unconstitutionally         overbroad.        Ferguson controls here, and Newton' s


argument fails.




                                                                    15
43413 -0 -II



        We     affirm   Newton' s   conviction   for   count   three.   Because the unwitting possession

instruction improperly shifted the burden of proof on count one, we reverse Newton' s conviction

on count one and remand for further proceedings.


        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.




We concur:




         Maxa, J. ,




         Lee, _
              J.




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