State v. Bradshaw , 152 Wash. 2d 528 ( 2004 )

Fairhurst, J.

Petitioners Donald Bradshaw and Christian Latovlovici (hereinafter defendants) seek review of an unpublished per curiam Court of Appeals decision affirming their convictions of unlawful possession of a controlled substance. They ask us to overrule State v. Cleppe, 96 Wn.2d 373, 635 P.2d 435 (1981), cert. denied, 456 U.S. 1006 (1982), and imply a mens rea element into the unlawful possession of a controlled substance statute (hereinafter the mere possession statute).¹ We refuse to do so and affirm the Court of Appeals.

I. FACTS

Bradshaw, a Canadian citizen, approached the Blaine crossing to enter the United States in a borrowed truck. Border patrol discovered 73.65 pounds of marijuana in a modified propane tank in the truck.

Latovlovici, a commercial truck driver for GLT Transportation in Vancouver, British Columbia, approached the Blaine crossing in a semitrailer loaded with 18 pallets of beer. Border patrol discovered at least 77 pounds of marijuana in the void in front of the pallets.

The State charged Bradshaw and Latovlovici with one count of unlawful possession of a controlled substance (over 40 grams of marijuana) and one count of possession of a controlled substance with intent to deliver. In separate trials, defendants asserted the affirmative defense of unwitting possession. The trial court instructed the juries that defendants had the burden of proving by a preponderance of the evidence that they did not know the marijuana was in their possession. The juries acquitted defendants of the intent to deliver charge; however, the juries rejected defendants’ affirmative defense of unwitting possession and convicted them of unlawful possession.

Defendants “appeal[ed] their convictions, arguing that the trial court erred in failing to require the State to prove that they knowingly possessed a controlled substance, and that the evidence was insufficient to prove actual or constructive possession.” State v. Bradshaw, noted at 117 Wn. App. 1019, 2003 WL 21322200, at *1, 2003 Wash. App. LEXIS 1142. The Court of Appeals linked the cases and affirmed in an unpublished per curiam opinion. Id. We granted review. State v. Bradshaw, 151 Wn.2d 1009, 89 P.3d 712 (2004).

II. ISSUE

Should this court overrule Cleppe and imply a mens rea element of knowingly or intentionally into the mere possession statute?

III. STANDARD OF REVIEW

This court reviews statutory construction issues and constitutional issues de novo. City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004).

IV. ANALYSIS

The legislature has the authority to create a crime without a mens rea element. State v. Anderson, 141 Wn.2d 357, 361, 5 P.3d 1247 (2000). To determine whether the legislature did so, we consider the language and legislative history of a statute. Id.; State v. Bash, 130 Wn.2d 594, 604-05, 925 P.2d 978 (1996).

As enacted in 1923, the mere possession statute made it a crime to possess an unprescribed controlled substance with the “intent to sell, furnish, or dispose” of it. Laws of 1923, ch. 47, § 3. The next iteration of the statute did not include the “intent” language. Laws of 1951, 2d Ex. Sess., ch. 22, § 2. In interpreting that revised statute, this court recognized that “[wjhether intent or guilty knowledge is to be made an essential element of this crime is basically a matter to be determined by the legislature.” State v. Henker, 50 Wn.2d 809, 812, 314 P.2d 645 (1957). “Had the legislature intended to retain guilty knowledge or intent as an element of the crime of possession, it would have spelled it out as it did in the previous statute. The omission of the words with intent evidences a desire to make mere possession or control a crime.” Id.

In 1971, the legislature adopted the Uniform Controlled Substances Act, chapter 69.50 RCW. Laws of 1971, 1st Ex. Sess., ch. 308, §§ 69.50.101-.608. Section 401(c) of the model uniform act made it a crime to “knowingly or intentionally” possess a controlled substance. Unif. Controlled Substances Act § 401(c) (1970). Senate Bill 146 included these mens rea words in the section corresponding to section 401(c) of the model uniform act. S.B. 146, 42d Leg., Reg. Sess. (Wash. 1971). However, Substitute Senate Bill 146 and Second Substitute Senate Bill 146 did not. Substitute S.B. 146, 42d Leg., Reg. Sess. (Wash. 1971); Second Substitute S.B. 146, 42d Leg., Reg. Sess. (Wash. 1971). The legislation as passed and enacted as the mere possession statute did not contain the “knowingly or intentionally” language.²

In the late 1970s and in 1980, a split of opinion developed among the divisions of the Court of Appeals as to whether a mens rea element was implied in the mere possession statute. Compare State v. Weaver, 24 Wn. App. 83, 90-91, 600 P.2d 598 (1979) (Division One held intent or knowledge is an element), with State v. Sainz, 23 Wn. App. 532, 539, 596 P.2d 1090 (1979), and State v. Hartzog, 26 Wn. App. 576, 593, 615 P.2d 480 (1980) (Division Three held intent or knowledge is not an element), aff’d, 96 Wn.2d 383, 406, 635 P.2d 694 (1981).

In 1981, this court agreed with Division Three and held that the mere possession statute did not contain a mens rea element. Cleppe, 96 Wn.2d at 380-81. The Cleppe court gave three reasons for its conclusion. Id. First, legislative history showed that the legislature deleted the “knowingly and intentionally” language from the uniform act language which was in the first senate bill. Id. at 380. Second, the court recognized that any correction must come from the legislature, not the court. Id. Finally, the court recognized that the affirmative defense of unwitting possession “ameliorates the harshness of the almost strict criminal liability our law imposes for unauthorized possession of a controlled substance.” Id. at 381.

Since Cleppe, the legislature has amended RCW 69-.50.401 seven times and has not added a mens rea element to the mere possession statute. See Laws of 1987, ch. 458, § 4; Laws of 1989, ch. 271, § 104; Laws of 1996, ch. 205, § 2; Laws of 1997, ch. 71, § 2; Laws of 1998, ch. 82, § 2; Laws of 1998, ch. 290, § 1; Laws of 2003, ch. 53, § 331.

Defendants ask us to overrule Cleppe and read a mens rea element into the mere possession statute. Defendants argue that such a conclusion is warranted because (1) RCW 69.50.603 requires uniformity, (2) some mens rea is required, (3) possession is a term of art which requires knowledge and the affirmative defense of unwitting possession improperly shifts the burden of proof, and (4) Cleppe’s interpretation of the mere possession statute is unconstitutional. We disagree.

A. RCW 69.50.603 Does Not Add a Mens Rea Element to the Mere Possession Statute

RCW 69.50.603, enacted in 1971 as part of the legislation adopting the Uniform Controlled Substances Act, provides “[t]his chapter shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among those states which enact it.” RCW 69.50.603; Laws of 1971, 1st Ex. Sess., ch. 308, § 69.50.603. RCW 69.50.603 applies to the whole chapter and its general purpose.

Defendants argue that RCW 69.50.603 requires us to interpret the mere possession statute uniformly with other states that enacted the Uniform Controlled Substances Act. Defendants then ask us to take judicial notice of a 1988 Maryland case, Dawkins v. Maryland, 313 Md. 638, 646-49, 547 A.2d 1041 (1988), which indicated how other states through legislation and case law addressed the mens rea element in their mere possession statutes. Dawkins found that the majority of states require a mens rea element. Dawkins, 313 Md. at 646. It also recognized that Washington and North Dakota are the exception. Id. at 647 n.7.

Defendants’ arguments are unpersuasive. The legislature passed RCW 69.50.401 and .603 at the same time. Laws of 1971, 1st Ex. Sess., ch. 308, §§ 69.50.401, .603. Although RCW 69.50.603 states that the model uniform act is to be read in conformity with other states, the legislature deleted the "knowingly or intentionally” language that was in the model uniform act when it enacted the mere possession statute. In doing so, the legislature made the elements of our crime of mere possession different from the model uniform act’s elements. RCW 69.50.603 should not be read to imply a mens rea element into the mere possession statute when the legislature has enacted a statute that deleted the language of the model uniform act. See State v. Jackson, 137 Wn.2d 712, 723, 976 P.2d 1229 (1999) (concluding that the legislature’s omission of a provision of the Model Penal Code “was purposeful and evidenced its intent to reject” the language). Also, the legislature has not acted to change the Cleppe interpretation of the mere possession statute in the intervening 22 years. State v. Edwards, 84 Wn. App. 5, 12-13, 924 P.2d 397 (1996) (“The Legislature’s failure to amend [a criminal statute] in light of [an appellate opinion omitting an intent requirement] suggests a legislative intent to omit an intent requirement.”). Under these circumstances, the general desire of the legislature to promote uniform laws as evidenced in RCW 69.50.603 gives way to the legislature’s specific direction in the mere possession statute that possession alone — not knowledge or intent to possess — is culpable conduct.

B. A Mens Rea Element Is Unnecessary when Legislative Intent to Omit a Mens Rea Element Is Clear

Defendants argue that Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994), and Anderson, 141 Wn.2d 357, require a mens rea element. They assert that a public welfare mens rea element should be read into the statute if the legislature intended mere possession to be a public welfare offense or, in the alternative, a traditional mens rea element should be read into the statute if the legislature’s intent was unclear.

In Staples, the United States Supreme Court reviewed a conviction for possession of an unregistered machine gun under the National Firearms Act, 26 U.S.C. §§ 5801-5872. Staples, 511 U.S. at 602. The issue was whether the government had to prove the defendant knew the weapon had the characteristics that brought it within the statutory definition. Id. The Court said that the issue of whether knowledge was an element of the crime was a question of statutory construction. Id. at 605. The Court recognized that “ ‘[t]he definition of the elements of a criminal offense is entrusted to the legislature.’ ” Id. at 604 (quoting Liparota v. United States, 471 U.S. 419, 424, 105 S. Ct. 2084, 85 L. Ed. 2d 434 (1985)). The Court construes the language and infers congressional intent. Id. at 605. Silence does not necessarily mean there is no mens rea element. Id. Offenses that do not have a mens rea element are generally disfavored under the common law. Id. at 606. The Court has “suggested that some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.” Id.

In Staples, where there was no express or implied congressional intent, the government argued that the act concerned a public welfare or regulatory offense, which the Court construed to have no mens rea element if the statutes were silent. Id. The Court found the statute was not one for which it would find silence indicative of no mens rea element because finding no mens rea element would require the defendant to have knowledge of only traditionally lawful conduct (possession of a firearm). Id. at 610-12. The Court also found the severe penalty of up to 10 years’ imprisonment suggested that Congress did not intend to eliminate the mens rea element. Id. at 616. The bottom line for the Court was “our holding depends critically on our view that if Congress had intended to make outlaws of gun owners who were wholly ignorant of the offending characteristics of their weapons, and to subject them to lengthy prison terms, it would have spoken more clearly to that effect.” Id. at 620.

Anderson, like Staples, involved the crime of possession of a firearm. 141 Wn.2d at 359. In Anderson, this court decided whether second degree unlawful possession of a firearm is a strict liability offense — one where knowledge of unlawful possession is not an element. Id. The court recognized that the legislature may create strict liability crimes. Id. at 361. To determine whether it did, the court looks to the language of the statute and any legislative history. Id. The court found the statute and legislative history inconclusive on the mens rea element. Id. at 362. Given that offenses with no mens rea element are disfavored and “that a statute will not be deemed to be one of strict liability where such construction would criminalize a broad range of apparently innocent behavior,” the court found that the legislature did intend for the State to prove a culpable mens rea. Id. at 364.

Defendants err in relying on Staples and Anderson because both cases support our holding that we must not imply a mens rea element into the mere possession statute. Both cases state that the legislature has the authority to define crimes. Staples, 511 U.S. at 604; Anderson, 141 Wn.2d at 361. Both cases characterize the issue of whether a statute defines a strict liability crime as an issue of statutory construction and/or legislative intent. Staples, 511 U.S. at 605; Anderson, 141 Wn.2d at 361. Both cases turn to the language of the statute to determine legislative intent. Staples, 511 U.S. at 605; Anderson, 141 Wn.2d at 361. After finding the language inconclusive, Anderson turned to legislative history. 141 Wn.2d at 362.

The legislative history of the mere possession statute is clear. The legislature omitted the “knowingly or intentionally” language from the Uniform Controlled Substances Act. The Cleppe court relied on this legislative history when it refused to imply a mens rea element into the mere possession statute. The legislature has amended RCW 69.50.401 seven times since Cleppe and has not added a mens rea element. Given that the legislative history is so clear, we refuse to imply a mens rea element.

C. Possession Does Not Require Knowledge and the Affirmative Defense of Unwitting Possession Does Not Improperly Shift the Burden of Proof

Defendants argue that possession is a term of art of which knowledge is an intrinsic element. They cite Morissette v. United States, 342 U.S. 246, 263, 72 S. Ct. 240, 96 L. Ed. 288 (1952), for the proposition that a term of art includes its legal tradition and meanings. While this general proposition may be true, our courts have not construed possession under the mere possession statute as a term of art, and we have specifically construed the statute not to include knowledge. Cleppe, 96 Wn.2d at 380-81; State v. Staley, 123 Wn.2d 794, 872 P.2d 502 (1994); State v. Adame, 56 Wn. App. 803, 808 n.5, 785 P.2d 1144, review denied, 114 Wn.2d 1030, 793 P.2d 976 (1990).

Defendants next rely on a minor in possession of alcohol case involving RCW 66.44.270 to argue that possession involves knowledge. In State v. Hornaday, 105 Wn.2d 120, 713 P.2d 71 (1986), this court relied on precedent from Wisconsin to state that “[a] defendant ‘possesses’ a controlled substance when the defendant knows of the substance’s presence, the substance is immediately accessible, and the defendant exercises ‘dominion or control’ over the substance.” Id. at 125 (emphasis added). We then used that definition to determine that a minor who consumed alcohol did not “possess” the alcohol because he did not have control over it in his body. Id. at 127. Defendants rely on this language to argue that the State must bear the burden of proving knowledge because it is an element of possession and that the affirmative defense of unwitting possession improperly shifts this burden to the defendant. The Hornaday factors have not been applied, nor can they appropriately be applied, to the mere possession statute. The factors were applied to the minor in possession of alcohol statute, and this court relied on case law from Wisconsin, a state that infers knowledge into its possession statute. Id. at 125; see also State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609 (1975).

The State has the burden of proving the elements of unlawful possession of a controlled substance as defined in the statute — the nature of the substance and the fact of possession. Staley, 123 Wn.2d at 798. Defendants then can prove the affirmative defense of unwitting possession. Id This affirmative defense ameliorates the harshness of a strict liability crime. Cleppe, 96 Wn.2d at 380-81. It does not improperly shift the burden of proof.

D. Cleppe’s Interpretation of the Mere Possession Statute Is Constitutional

Defendants argue that Cleppe’s interpretation of the mere possession statute is unconstitutional because the statute is vague, criminalizes innocent behavior, and adversely affects the right to intrastate and interstate travel. Defendants also contend that the doctrine of dominion or control is unconstitutionally vague.

The party asserting that a statute is unconstitutionally vague must prove vagueness beyond a reasonable doubt. City of Seattle v. Eze, 111 Wn.2d 22, 26, 759 P.2d 366 (1988). Defendants fail to meet this standard and offer little analysis to support any of their constitutional arguments. As the Court of Appeals stated:

Bradshaw and Latovlovici also assert that without a scienter element, RCW 69.50.401 is unconstitutionally vague and violative of substantive due process principles. But they have not adequately briefed these arguments. They fail to explain how persons of ordinary intelligence would not understand what the statute prohibits, nor do they cite any relevant authority to show how the statute violates substantive due process. Such “ ‘naked castings into the constitutional sea are not sufficient to command judicial consideration and discussion.’ ”

Bradshaw, 2003 WL 21322200, at *2, 2003 Wash. App. LEXIS 1142 (quoting In re Pers. Restraint of Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986) (quoting United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970))).

V. CONCLUSION

We affirm the Court of Appeals and uphold Cleppe. Cleppe properly looked to the language of the mere possession statute and because the statute did not have an explicit mens rea element, the court looked to the legislative history. The legislative history for the mere possession statute supports the court’s conclusion that no mens rea element should be implied. In the 22 years since Cleppe, the legislature has not added a mens rea element. Where legislative intent is so clear, we will not overrule Cleppe and will not read a mens rea element into the mere possession statute.

Alexander, C.J., and Johnson, Madsen, Ireland, Bridge, Chambers, and Owens, JJ., concur.

1 When appealed and argued to us, the unlawful possession of a controlled substance statute was codified at ROW 69.50.401(d). The legislature recently recodified the statute as ROW 69.50.4013. Laws of 2003, ch. 53, § 334. For clarity, will refer to the statute as the mere possession statute except where necessary track the legislative history.

2 The legislature amended RCW 69.50.401 in 1973 and 1979. Laws of 1973, 2d Ex. Sess., ch. 2, § 1; Laws of 1979, ch. 67, § 1. The 1979 amendment added a new subsection (c) which changed what was RCW 69.50.401(c) to RCW 69.50.401(d). Laws of 1979, ch. 67, § 1. No substantive change was made to the subsection. Id.