No. 28225-9-II.The Court of Appeals of Washington, Division Two.
Filed: August 30, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 018023737, Hon. James R. Orlando, December 4, 2001, Judgment or order under review.
Counsel for Appellant(s), Pattie Mhoon, Attorney At Law, Ste 488, 949 Market St, Tacoma, WA 98402.
Counsel for Respondent(s), Kathleen Proctor, Pierce Co. Dep. Pros. Atty., Co City Bldg, 930 Tacoma Ave So Rm 946, Tacoma, WA 98402-2177.
CARROLL C. BRIDGEWATER, J.
Anwar Lateef Riggins, a juvenile, appeals his conviction for unlawful possession of oxycodone, a controlled substance. Riggins asserts for the first time on appeal that his possession of the oxycodone was authorized under Chapter 69.50 RCW because he was holding it for his mother’s use and she had a valid prescription for it. He also asserts the evidence was insufficient to convict because it established unwitting possession. Holding that Riggins waived his right to assert that his possession was authorized under Chapter 69.50 RCW by failing to raise this defense below, and that the trial court did not err when it determined that Riggins failed to establish unwitting possession, we affirm.
Facts
On October 16, 2001, a juvenile detention officer discovered two oxycodone tablets in a plastic bag inside the watch pocket of Riggins’ pants during a routine search of his clothing.[1]
The State charged Riggins with one count of possession of a controlled substance in violation of RCW 69.50.401(d). During a bench trial, Riggins asserted the affirmative defense of unwitting possession.
Riggins’ mother was the only witness for the defense. She testified that the tablets were hers, that she had a prescription for them, and that Riggins was aware that the tablets were strong prescription pain medication. She stated that several weeks before the detention officer discovered the tablets she asked Riggins to keep a supply of tablets for her during a short trip, and, when they returned, she instructed him to put the remaining tablets on her dresser. After the detention officer discovered the tablets, Riggins told his mother that he had forgotten the tablets were in his pocket.
During his closing argument, Riggins argued only that he had forgotten the tablets were in his pocket, and that he was not aware carrying his mother’s prescription medication was illegal. He did not argue that he was carrying the tablets pursuant to a valid prescription or as otherwise authorized under Chapter 69.50 RCW; in fact, he suggested that this exception did not apply because he was not carrying the medication in the original container.[2]
The trial court found Riggins guilty of possession. Riggins appeals.
Analysis
Riggins argues, for the first time on appeal, that he cannot be guilty of illegal possession of a controlled substance because Chapter 69.50 RCW authorized his possession. The State contends that Riggins is not entitled to raise this defense because he did not assert it below.[3]
We agree.
`Arguments not raised in the trial court generally will not be considered on appeal.’ State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365
(1993); see also RAP 2.5(a). But we may address an argument raised for the first time if it relates to (1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, or (3) a manifest error affecting a constitutional right. RAP 2.5(a).
I. Authorized Possession
The trial court convicted Riggins under RCW 69.50.401(d), which provides that it is unlawful to possess a controlled substance unless the substance was obtained pursuant to a valid prescription or as otherwise authorized by Chapter 69.50 RCW. Riggins appears to contend that his due process rights were violated because the facts establish that he legally possessed the tablets under RCW 69.50.302(c)(3), which provides that an ultimate user may lawfully possess prescription drugs, and, thus, the State did not `prove beyond a reasonable doubt all facts necessary to constitute the crime charged.’ Br. of Appellant at 8. Riggins misapprehends the State’s burden.
Under RCW 69.50.401(d), the State need only prove that Riggins possessed a controlled substance. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). The exceptions to RCW 69.50.401(d), unwitting possession and authorized possession, are affirmative defenses; thus, the burden of proving that RCW 69.50.302(c)(3) authorized his possession fell to Riggins, not the State. RCW 69.50.506(a); State v. Brown, 33 Wn. App. 843, 847-48, 658 P.2d 44, review denied, 99 Wn.2d 1012
(1983). A defendant waives his right to assert an affirmative defense if he fails to raise the defense at trial. State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988) (applying RAP 2.5(a)); City of Seattle v. Lewis, 70 Wn. App. 715, 718-19, 855 P.2d 327 (1993) (a defense must be raised at trial and ruled on by a judge in order to be reviewable), review denied, 123 Wn.2d 1011 (1994). Riggins did not raise the defense of `authorized possession’ below; accordingly, he has waived his right to assert it on appeal.
II. Unwitting Possession
Riggins next contends that the evidence is insufficient to support the trial court’s verdict because it establishes that his possession was unwitting. Evidence is sufficient to support a verdict if, viewed in the light most favorable to the State, the evidence permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068
(1992).
A defendant claiming insufficient evidence admits the truth of the State’s evidence and all reasonable inferences drawn in favor of the State. Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We `defer to the trier of fact on issues involving conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence.’ State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997). See also State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Once the State established the unlawful nature of the substance and possession, Riggins was entitled to raise the affirmative defense of unwitting possession. Staley, 123 Wn.2d at 798-99. To prove unwitting possession, he had to show by a preponderance of the evidence that he did not know he possessed the substance or that he did not know the substance was a controlled substance. Staley, 123 Wn.2d at 799.
Riggins does not assert that the State failed to establish the unlawful nature of the substance or possession; instead, he contends that the evidence establishes that he did not know the tablets were in his pocket at the time the detention officer discovered them and that he did not know that they were a controlled substance. We disagree.
The unchallenged findings of fact and the trial transcript show that Riggins knew he placed the tablets in his pocket when his mother gave them to him. The trial court could reasonably infer from this that Riggins knew he possessed the tablets. The only testimony indicating Riggins forgot he had the tablets was his mother’s testimony that he told her he had forgotten he had them. The trial court, here the finder of fact, was not required to believe this testimony, and we do not evaluate the trial court’s credibility determinations on appeal. Camarillo, 115 Wn.2d at 71.
Because it was reasonable for the trial court to infer that Riggins knew he possessed the tablets and the trial court was not required to believe the testimony indicating that Riggins forgot he had the tablets, there was sufficient evidence for the trial court to find that Riggins failed to establish that he did not know he possessed the tablets.
Similarly, Riggins’ mother testified that he was aware that she took the medication for severe pain and that it was prescription medication. It was reasonable for the trial court to infer from this testimony that Riggins was aware that the tablets were a controlled substance. Thus, the evidence supports the trial court’s conclusion that Riggins failed to establish unwitting possession, and his insufficient evidence claim fails.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: MORGAN, P.J., SEINFELD, J.
(1998).
And, you know, we can talk about whether or not novelty of the law or absence of novelty of the law constitutes a defense, old saw is that it doesn’t. But it seems to me somewhat common-sensical that to be committed — to commit a crime, one must have a notion that one is committing that crime in some way or another. And to be carrying something for your mother because your mother asked you, and it’s not itself a dangerous thing or a wrong thing, I guess if it’s in the prescription bottle, it’s perfectly fine, it seems to me to be convicting someone of a crime that they themselves didn’t know they were committing. And that, properly speaking, I submit to you should be bothersome, sufficiently bothersome to give you a reasonable doubt.
Report of Proceedings (RP) at 54.