     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                               No. 76758-5-1
                     Respondent,
       V.                                      DIVISION ONE

 A.M., a minor,                                UNPUBLISHED OPINION

                     Appellant.                FILED: July 30, 2018


      LEACH, J. — A.M.1 appeals her conviction for possession of a controlled

substance for possession of methamphetamine. She challenges the sufficiency of

the evidence supporting the trial court's conclusion that she did not prove the

affirmative defense of unwitting possession.         She also claims manifest

constitutional error on the ground that the trial court admitted her compelled

statement that the backpack containing the methamphetamine was her property.

And she contends that the offense of possession of a controlled substance violates

due process.

      The fact that A.M. was the only person observed touching or handling the

backpack, in addition to the trial court's other findings, supports the court's

conclusion that A.M. did not prove unwitting possession. Because A.M. does not


        1 The court grants A.M.'s motion to change the caption and use her initials
in the opinion. The court denies the balance of her motion.
No. 76758-5-1/ 2


show that admitting her allegedly compelled statement prejudiced her and our

Supreme Court has affirmed the legislature's authority to make possession a strict

liability offense, A.M. does not show manifest constitutional error or a due process

violation. We affirm.

                                  BACKGROUND

       On October 24, 2015, Kent Caldwell, loss prevention manager at Goodwill,

became suspicious of two juvenile females and one adult female who were

shopping together in the store. He saw the adult female put two Halloween

costumes into a shopping cart. Then he saw a juvenile, later identified as A.M.,

remove the costumes from their hangers and put them in the large pocket of a

backpack that was in the cart. He testified that as the women moved toward the

front door and abandoned the shopping cart, A.M. put on the backpack and exited

the store. Caldwell detained her outside of the store.

       Police Officer Rodney Wolfington arrested A.M. and then searched the

backpack. In a small compartment of the backpack he found a medicine bottle

with methamphetamine in it.       The State charged A.M. with possession of a

controlled substance and third degree theft. After a bench trial, the trial court found

A.M. guilty as charged. A.M. appeals her conviction for possession of a controlled

substance.




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No. 76758-5-1 / 3


                                    ANALYSIS

                               Unwitting Possession

      A.M. challenges the trial court's decision that she did not prove an unwitting

possession defense by a preponderance of the evidence. We affirm the trial court.

       This court reviews de novo whether the trial court's findings of fact support

its conclusions of law.2 We treat unchallenged findings of fact as true on appea1.3

And we review whether substantial evidence supports the trial court's challenged

factual findings,4 viewing the record in the light most favorable to the prevailing

party—in this case, the State.5 "Substantial evidence exists where there is a

sufficient quantity of evidence in the record to persuade a fair-minded, rational

person of the truth of the finding."6 In the absence of a finding on a factual issue,

a reviewing court presumes that the party with the burden of proof failed to sustain

her burden.7

       Possession of a controlled substance is a strict liability crime, which means

a crime without an intent requirement.9 The State must prove the nature of the

       2   Dep't of Labor & Indus. v. Shirley, 171 Wn. App. 870, 879, 288 P.3d 390
(2012).
       3 Shirley, 171    Wn. App. at 879.
       4 State  v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313(1994).
       5 Harrison Mem'l Hosp. v. Gagnon, 110 Wn. App. 475, 485, 40 P.3d 1221
(2002).
       6 Hill, 123 Wn.2d at 644.
       7 State v. Beaver, 184 Wn. App. 235, 251, 336 P.3d 654(2014)(explaining
that because the defendant had the burden to prove that he had regained his sanity
and the trial court did not make any findings about his mental health, he bore the
consequences of failing to obtain such a finding), aff'd, 184 Wn.2d 321, 358 P.3d
385 (2015).
       8 RCW 69.50.4013.
       9 State v. Bradshaw, 152 Wn.2d 528, 537-38, 98 P.3d 1190 (2004).



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No. 76758-5-1 /4


substance and the fact of possession but not that the defendant knowingly

possessed the substance.1° To avoid criminal liability, the defendant can prove,

by a preponderance of the evidence, the affirmative defense of unwitting

possession.11

       Here, the trial court stated in its conclusions of law, "[A.M.] has not proven

unwitting possession by a preponderance of the evidence." Because the trial court

did not make a factual finding that A.M. persuaded the court of her unwitting

possession, we presume, consistent with the trial court's conclusion of law, that

A.M. failed to meet her burden., Because we are reviewing whether the absence

of a finding that A.M. proved unwitting possession supports the court's conclusion

that A.M. did not meet her burden, we review A.M.'s failure to meet her burden as

we would a challenged finding of fact. We must therefore determine whether,

considering the evidence in the light most favorable to the State, a rational trier of

fact could have found that A.M.failed to prove the defense of unwitting possession

by a preponderance of the evidence.

       A.M. asserts that because the trial court's findings are unrelated to the issue

of unwitting possession and the court did not find that she lied when testifying, the

evidence requires the conclusion that she proved unwitting possession by a

preponderance of the evidence. The trial court made these findings:

       1.       The incidents in the case at bar occurred on October 24,2016,
                in Snohomish County, Washington.
       2.       The respondent was in Goodwill with two other persons.
       10 Bradshaw, 152 Wn.2d at 537-38.
       11 Bradshaw, 152 Wn.2d at 531, 538.

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No. 76758-5-1 / 5

       3.      The respondent pushed the shopping cart containing a blue
               backpack while in the store.
       4.      The respondent concealed Goodwill merchandise into the
               blue backpack.
       5.      The respondent put the backpack on her back and left the
               store with concealed merchandise, passing all points of sale.
       6.      Methamphetamine was recovered from the backpack, as was
               the stolen Goodwill merchandise.
       7.      No one else was observed touching or handling the backpack.
       8.      Respondent's possession of the controlled substance was
               both actual and constructive.

A.M. challenges only the first finding of fact. Although the trial court found that the

incidents at issue occurred on October 24, 2016, the record shows that they

occurred on October 24, 2015. A.M. does not challenge the remaining findings,

so we treat them as true.

       "[C]redibility determinations are solely for the trier of fact [and] cannot be

reviewed on appeal."12 The trial court did not include in its findings A.M.'s

testimony supporting her defense. Although the trial judge stated that she did not

believe that A.M. perjured herself, she explained that she and A.M. had a

"difference [of] opinion as to what happened." The trial judge stated that she

weighed most heavily in making her determination the facts that A.M."was the only

person that was putting items in the backpack,. . . was the one that walked out

with the backpack[, and] was the only one that was possessing the backpack."

       Although A.M. testified that the backpack came from her friend's house,that

she returned the backpack to her friend's house after she was released from

detention, and that she did not know that the methamphetamine was in the

backpack,the court concluded that A.M. did not meet her burden. The court clearly

       12   Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003).

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No. 76758-5-1 /6


made a credibility determination and found A.M.'s testimony, the primary evidence

supporting her defense, insufficient to prove unwitting possession. As the court

stated in its findings, A.M. pushed the cart, put the costumes into the backpack,

left the store with the backpack, and was the only person observed touching or

handling the backpack. From this evidence, a rational trier of fact could have found

that A.M. did not meet her burden.

                          Right against Self-Incrimination

       Next, A.M. claims that the court violated her federal and state constitutional

rights against self-incrimination by admitting her compelled statement that the

backpack was her property.13 We disagree.

       First, A.M. did not preserve the issue for appeal. Normally, a party may

appeal an evidence decision only on the specific ground the objection made at

tria1.14 But a party may raise for the first time on appeal a manifest error affecting

a constitutional right.15 Here, although A.M.'s trial counsel objected based on

relevance, he did not argue a Fifth Amendment violation. On appeal, A.M. claims

manifest constitutional error.

       When a party claims manifest constitutional error, we preview the issue to

determine whether there is both error and prejudice. If not, we do not review the

claim. A showing of prejudice requires that the defendant establish that the

       13 The  Fifth Amendment to the United States Constitution states,"No person
shall. . . be compelled in any criminal case to be a witness against himself." Article
1, section 9 of the Washington Constitution states,"No person shall be compelled
in any criminal case to give evidence against himself."
       14 State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985).
       15 RAP 2.5(a)(3); State v. Walsh, 143 Wn.2d 1, 7, 17 P.3d 591 (2001).



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No. 76758-5-1 / 7


asserted error had practical and identifiable consequences in the tria1.16 Here,

because we conclude that the alleged error caused no prejudice, we do not review

the claim.

       Ashley Thomas, a juvenile court supervisor at the Denny Juvenile Detention

Center, testified that as part of the intake process, juveniles review with staff and

sign a property sheet listing the items they brought in to ensure that they leave with

those same items. The statement above the signature line on the property sheet

reads, "I have read the above accounting of my property and money and find it to

be accurate. I realize that property not claimed within 30 days will be subject to

disposal." A.M.'s signed property sheet listed the items that A.M. arrived with,

including the backpack that had contained the methamphetamine. A.M. claims

that the admission of her statement that the backpack belonged to her violated her

right against self-incrimination and caused prejudice because the State used her

statement to argue that she had effectively confessed to owning the backpack.

       But even if admission of A.M.'s statement violated her Fifth Amendment

right against self-incrimination, she cannot prove prejudice. In its closing, the State

reasoned, "We know that she signed for the backpack, indicated it was her

property when she was booked in. We know that she signed for it again when she

was released, even though today she has testified that it wasn't her backpack."

The trial court responded,"Quite frankly, whether [A.M.] removed the backpack or

whether the backpack went with her from detention really was not a big factor in


       16   State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125(2007).

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No. 76758-5-1 / 8


my case." A.M. asserts that this statement means the evidence related to booking

was still a factor in the trial court's decision.

       Even so, the trial court did not include this evidence in its findings to support

its conclusion that A.M. did not prove unwitting possession. In addition, other

evidence included in the court's findings, like the fact that A.M. was the only person

observed touching or handling the backpack, shows that the court relied on other

evidence in determining A.M.'s guilt. Because the trial court did not rely on the

evidence related to booking, A.M. cannot prove that it had identifiable

consequences at trial. She did not show manifest constitutional error, so we

decline to review the claim.

                                      Due Process

       Last, A.M. claims that Washington's possession of a controlled substance

statute, RCW 69.50.4013, violates due process because the affirmative defense

of unwitting possession shifts the burden of proof to the defendant.               This

contradicts settled authority. We review constitutional issues de novo.17

       The Fourteenth Amendment to the United States Constitution prohibits a

State from depriving a person of liberty without due process of law. Due process

requires the State to prove every element of the charged offense to overcome the

presumption of innocence in favor of the accused.18            As discussed above,

possession of a controlled substance is a strict liability crime.19 The State must


       17 Bradshaw, 152 Wn.2d at 531.
       18 In re Winship, 397 U.S. 358, 364, 90S. Ct. 1068,25 L. Ed. 2d 368(1970).
       19 Bradshaw, 152 Wn.2d at 532.



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No. 76758-5-1 / 9


prove the nature of the substance and the fact of possession.20 A defendant can

avoid conviction by proving unwitting possession by a preponderance of the

evidence.21   A.M. contends that this shifts the burden of proof and deprives

defendants of their liberty without due process.

       In allocating burdens of proof in a criminal case, "there are obviously

constitutional limits beyond which the States may not go."22 A.M. relies on Schad

v. Arizona23 to provide guidance about how to determine when a State exceeds its

discretion in defining an offense:

      Where a State's particular way of defining a crime has a long history,
      or is in widespread use, it is unlikely that a defendant will be able to
      demonstrate that the State has shifted the burden of proof as to what
      is an inherent element of the offense, or has defined as a single crime
      multiple offenses that are inherently separate. Conversely, a
      freakish definition of the elements of a crime that finds no analogue
      in history or in the criminal law of other jurisdictions will lighten the
      defendant's burden.

       Our Supreme Court has held that the legislature has the authority to create

a strict liability crime.24 In State v. Bradshaw25 and State v. Cleppe,26 the court

determined that based on the language and legislative history of the possession

statute, the legislature clearly intended to make possession of a controlled


       20 Bradshaw, 152 Wn.2d at 538; RCW 69.50.4013.
       21 Bradshaw, 152 Wn.2d at 531, 533-34.
       22 Patterson v. New York, 432 U.S. 197, 225, 97 S. Ct. 2319, 53 L. Ed. 2d
281 (1977).
       23 501 U.S. 624, 640, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991)(footnote
omitted).
       24 Bradshaw, 152 Wn.2d at 532.
       25 152 Wn.2d 528, 531, 532-34, 539, 98 P.3d 1190 (2004) (rejecting
defendants' due process challenge to the possession statute because they did not
adequately brief the issue).
       26 96 Wn.2d 373, 380-81, 635 P.2d 435 (1981).



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No. 76758-5-1/ 10


substance a strict liability crime.27 "In the 22 years since Cleppe, the legislature

has not added a mens rea element."28 The court explained that because mere

possession does not have an inferred knowledge requirement, the affirmative

defense of unwitting possession does not shift the burden of proving a mens rea

element to the defendant.29 Instead, it "ameliorates the harshness of a strict

liability crime."30 And the State must still meet its burden of proving the elements

of the offense beyond a reasonable doubt.31 As Schad reasons, when a State has

a long history of defining a crime, as does Washington with possession of a

controlled substance, it is "unlikely" that the defendant will be able show that the

State has shifted the burden of proof.32

       In State v. Schmelinq,33 Division Two of this court recently rejected a due

process challenge to the possession statute based on our Supreme Court's

reasoning in Bradshaw.      Schmelinq reasoned that because the Washington

Supreme Court has repeatedly approved of the legislature's authority to adopt

strict liability crimes and expressly stated that the possession statute contains no

mens rea requirement, the possession statute does not violate due process.34 We

follow this reasoning and reject A.M.'s due process challenge.



       27 Bradshaw, 152 Wn.2d at 537.
       28 Bradshaw, 152 Wn.2d at 539.
       29 Bradshaw, 152 Wn.2d at 538.
       30 Bradshaw, 152 Wn.2d at 538.
       31 Bradshaw, 152 Wn.2d at 538.
       32 Schad, 501 U.S. at 640.
       33 191 Wn. App. 795, 802, 365 P.3d 202(2015).
       34 Schmeling, 191 Wn. App. at 802.



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No. 76758-5-1/ 11


                                 CONCLUSION

      Substantial evidence supports the trial court's conclusion that A.M. did not

prove unwitting possession by a preponderance. A.M. cannot prove that her

alleged compelled statement constituted manifest constitutional error or that the

possession statute shifts the burden in violation of due process. We affirm.




WE CONCUR:



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