No. 45354-8-I.The Court of Appeals of Washington, Division One.
Filed: May 20, 2002. UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 98-1-10258-2, Hon. Michael C. Hayden, October 4, 1999, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Gregory C. Link, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Jill A. Otake, Hawaii Supreme Court, 417 S King St, Honolulu, HI 96813.
PER CURIAM.
Alphonso Gray appeals his conviction for possession of a controlled substance, challenging the trial court’s refusal to give an unwitting possession instruction. Because Gray’s mistaken belief that he had smoked all of the cocaine in his pipe earlier the day of his arrest did not support an unwitting possession instruction, we affirm.
In June 1999, Seattle Police Officer David Blackmer arrested Gray after responding to a disturbance call. Officer Blackmer searched Gray incident to arrest and discovered in Gray’s possession a glass crack pipe containing suspected cocaine residue. Gray volunteered that he had been caught in a `bullshit drug deal’ and asked Blackmer to give him a break. Residue from the pipe tested positive for the presence of cocaine, and the State charged Gray with possession of a controlled substance. At trial Gray testified that he did not know there was any residue in the pipe because he thought he had smoked all of his cocaine in the pipe earlier that day. He was carrying the pipe because he hoped to purchase more cocaine. The trial court refused to give Gray’s proposed unwitting possession instruction. A jury convicted Gray as charged, and the trial court sentenced him to a drug treatment sentence.[1]
Gray argues that the trial court erred by refusing to instruct the jury on the defense of unwitting possession. A party is entitled to an instruction only if the proposed instruction accurately states the law and substantial evidence supports the proposed instruction.[2] We review the trial court’s refusal to submit Gray’s proposed instruction to the jury for an abuse of discretion.[3] Guilty knowledge and intent are not elements of the crime of simple possession of a controlled substance.[4] To `ameliorate the harshness of the almost strict criminal liability our law imposes for [this offense],’ our courts have adopted the unwitting possession defense.[5] This is an affirmative defense, which the defendant may establish by showing either that he did not know he was in possession of the controlled substance, or that he did not know the nature of the substance he possessed.[6] A defendant must establish unwitting possession by a preponderance of the evidence.[7]
Gray argues that the trial court should have instructed the jury on unwitting possession because he did not realize that residue remained in his pipe that would test positive for the presence of cocaine. We disagree.
In State v. Buford, the State charged the defendant with possession of cocaine based on residue found in a crack pipe.[8] We noted that “the only evidence that could arguably support [the defendant’s] claim that he unwittingly possessed the cocaine is that the amount of cocaine was small and had to be scraped out of the crack pipe with a scalpel.”[9] Because this evidence `was not sufficient to permit a reasonable juror to find, by a preponderance of the evidence, that [the defendant] unwittingly possessed the cocaine[,]’ we held that the trial court had properly refused the defendant’s proposed unwitting possession instruction.[10]
As in Buford, Gray’s possession of a very small amount of cocaine at the time of his arrest does not in itself support an unwitting possession instruction. Gray argues that his case is unlike Buford because he testified that he believed there was no cocaine in his pipe and ‘[a] reasonable juror could have found his claim credible and thus concluded his possession was unwitting.’[11] Such an argument ignores the inescapable inference the jury would draw from his actual testimony. Gray testified that he was a cocaine addict, that the pipe Officer Blackmer found was his and that he intended to use it to smoke more cocaine. The reason Gray believed that his pipe was empty was because he had used it to smoke cocaine earlier that day. Gray was charged with possession of cocaine `on or about March 16, 1998.’[12] His testimony was that he had used the pipe early that morning — March 16, 1998 — to consume cocaine.
As the trial court observed in denying the instruction, `the only logical conclusion’ the jury could draw from Gray’s testimony was that he had known cocaine was in the pipe that morning when he smoked it.[13]
Gray’s testimony did not provide a basis for `a reasonable juror to find, by a preponderance of the evidence, that the defendant unwittingly possessed the contraband.’[14] To allow Gray to assert unwitting possession under these circumstances would not serve the purpose of this judicially created defense. Our courts adopted the unwitting possession defense to ameliorate the harshness of what would otherwise be a strict liability offense, not to provide a windfall to defendants who admit their knowing violation of the law in court.[15] We decline to extend the unwitting possession defense to a defendant who testifies to knowing possession of cocaine the same day as his arrest, and for that reason also reject Gray’s invitation to reconsider Buford in this case.
Affirmed.