FILED
JAN. 12,2016
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 32824-4-III
Respondent, )
)
v. )
)
CARL KEITH MATHENY, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. In this appeal, Carl Matheny challenges his convictions for
possession of a controlled substance, possession of a dangerous weapon, and driving
while license suspended. He primarily argues that the court erred in admitting evidence
that after arrest he was covered with powdered Viagra and in denying his request for a
Drug Offender Sentencing Alternative. We affirm.
FACTS
Mr. Matheny was stopped for a traffic infraction and immediately got out of the car
and told the officer that he was going to jail. Corporal Schwarder of the Benton County
Sheriffs Office arrested him after learning that Matheny's driver's license had been
suspended. A search incident to the arrest revealed a butterfly knife and a hollow portion
of a pen. Field testing disclosed the presence of methamphetamine residue in the pen.
No. 32824-4-II1
State v. Matheny
Mr. Matheny was placed in the back of a patrol car and driven to the Benton
County Jail. When removing Mr. Matheny from the car, Corporal Schwarder noticed
white residue on the back seat and on Mr. Matheny's hands. The corporal gathered as
much of the material as he could. Testing later identified the powder as Viagra.
The noted charges were filed and the matter proceeded to jury trial. Defense
counsel moved to exclude evidence of the white powder, arguing that it had not been
tested. The prosecutor indicated that the powder had been tested and determined to be
Viagra. Defense counsel noted that Viagra was not a controlled substance and might
confuse the jury. The prosecutor subsequently argued that the Viagra was admissible to
show that Mr. Matheny was "secreting something" on his person. Defense counsel
responded that it was not relevant and that it had "prejudicial value." The trial court
permitted the testimony.
Mr. Matheny testified in his own defense that he had picked up the pen at a
friend's house and removed it so that little kids would not pick it up. He knew that the
pen had been used for drugs, but did not know there was any residue in the pen. Without
objection from either party, the court instructed the jury on the defense of unwitting
possession. The instruction placed the burden on the defendant to prove unwitting
possession by a preponderance of the evidence. Clerk's Papers (CP) at 21. Neither
counsel examined Mr. Matheny about the powder.
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No. 32824-4-III
State v. Matheny
The prosecutor did not address the Viagra evidence until rebuttal argument. There
he told the jury that "the one thing you can conclude" from the Viagra "is that the
defendant was secreting something on his person." Report of Proceedings (RP) at 133.
Unable to destroy the pen, he destroyed the Viagra.
The jury convicted the defendant as charged. Armed with a supportive evaluation
from a chemical dependency evaluator, Mr. Matheny sought a Drug Offender Sentencing
Alternative (DOSA). The court rejected the request, stating "I don't think he's ready for
treatment. He doesn't want treatment." RP at 162. The court noted that Mr. Matheny
had denied that he had a drug problem and claimed to be acting the hero rather than
acknowledging his drug problem. A standard range term was imposed.
Before imposing sentence, the court heard from the defendant and his counsel.
The defense indicated that Mr. Matheny had worked as a smoke jumper and a mechanic,
but would soon be reporting to prison upon the issuance of the mandate in the appeal of
an earlier conviction. The court then imposed legal financial obligations (LFOs) totaling
$3,070. 1 That figure included $1,170 in discretionary costs and a $1,000 fine. 2 The court
IErroneously tallied as $3,570 in the judgment. CP at 109. The judgment form
notes assessed amounts of $500, $1,370, $1,000, $100, and $100; those figures total
$3,070. The total should be corrected by the trial court.
2 The context of the sentencing discussion suggested this was a VUCSA fine, but
that box on the judgment and sentence form is not checked, nor is the deferral box
checked. CP at 109. If error, this also should be corrected by the trial court.
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State v. Matheny
initially indicated it was imposing a "mandatory" $2,000 fine, but reduced it to $1,000 at
defense request due to financial hardship that included the fines imposed in the other case.
Mr. Matheny then timely appealed to this court.
ANALYSIS
Mr. Matheny presents four arguments in support of his appeal. He contends that
the court erred in admitting the powdered Viagra evidence, erroneously instructed the
jury on the burden of proof concerning unwitting possession, erred in ordering the
discretionary LFOs without adequate consideration of his finances, and erred in not
granting a DOSA. We address those four concerns in the order indicated.
Powdered Viagra Evidence
Mr. Matheny first argues that the court erred in admitting the powdered Viagra
evidence in violation of both ER 401 and ER 404. We agree that the evidence was not
relevant, but also conclude any error was harmless. 3
ER 401 provides in part that evidence is relevant if it makes "the existence of any
fact that is of consequence to the determination of the action more probable or less
probable." Evidentiary rulings are reviewed for abuse of discretion. State v. Guloy, 104
Wn.2d 412, 429-430, 705 P.2d 1182 (1985). "In close cases, the balance must be tipped
in favor of the defendant." State v. Wilson, 144 Wn. App. 166, 177, 181 P.3d 887 (2008).
3 We thus need not decide ifER 404(b) was violated.
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No. 32824-4-111
State v. Matheny
An erroneous evidentiary ruling is not prejudicial "unless, within reasonable probabilities,
had the error not occurred, the outcome of the trial would have been materially affected."
State v. Cunningham, 93 Wn.2d 823,831,613 P.2d 1139 (1980).
The prosecutor argued that "secreting" the Viagra was relevant to show that Mr.
Matheny also was secreting the pen. We disagree. Whether or not the pen was secreted
was determined by its own facts. Here, the pen was found in the defendant's pocket, a
typical place for carrying a pen. It does not appear to have been secreted. 4
Moreover, the purpose of showing that the pen was secreted was to establish the
defendant's guilty knowledge of his possession of the methamphetamine. However, the
prosecutor had no obligation to prove knowledge. Knowledge only became an issue, as
noted in the next section of this opinion, once the defendant contended that his possession
was unwitting. The defendant's knowledge was not at issue during the State's case.
We thus believe the court erred in admitting the evidence. However, we do not
believe the evidence materially affected the verdict. The charged offense involved the
pen found at the time of the arrest, not the powder subsequently discovered in the car.
The issue presented for the jury was whether or not Mr. Matheny knew the miniscule
amount of the controlled substance was present in the pen. The Viagra evidence was
4 The pen had already been seized and tested before Mr. Matheny undertook to
destroy the Viagra, thus strongly suggesting that the purpose of his actions was related to
his possession of the Viagra rather than the pen's contents.
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No. 32824-4-111
State v. Matheny
very briefly mentioned in argument, and only then in the limited context of whether it
showed that Mr. Matheny had also secreted the pen containing the methamphetamine.
Mr. Matheny did not testify about the powder. There also is nothing inherently bad about
possessing Viagra, a widely advertised substance. In sum, the destruction of the Viagra
tablet had nothing to do with the jury's verdict about whether or not Mr. Matheny
possessed the methamphetamine.
Accordingly, although it was error to admit the evidence, the powder did not
impact the verdict.
Unwitting Possession Instruction
Mr. Matheny also argues that the jury instructions improperly placed the burden of
proving unwitting possession on the defense. His argument is controlled by binding
Washington State Supreme Court precedent to the contrary.5
The Washington legislature did not include a knowledge element in the unlawful
possession statute. Our court subsequently concluded that the omission was intentional
and that a knowledge element should not be read into the statute. State v. Cleppe, 96
Wn.2d 373,635 P.2d 435 (1981). Reviewing the issue a generation later, our court again
concluded that Cleppe was correctly decided. State v. Bradshaw, 152 Wn.2d 528, 98 PJd
5 We therefore do not address the question of whether Mr. Matheny has established
manifest constitutional error that permits him to raise this issue initially on appeal. RAP
2.5(a)(3).
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No. 32824-4-111
State v. Matheny
1190 (2004). Those decisions are binding on this court. State v. Gore, 101 Wn.2d 481,
487,681 P.2d 227 (1984).
In order to ameliorate the harshness of strict liability, the court created a common
law defense of unwitting possession. Cleppe, 96 Wn.2d at 381. The defense can be
applied either when the defendant does not know he is in possession of a controlled
substance or ifhe did not know the nature of the substance in his possession. State v.
Staley, 123 Wn.2d 794,799,872 P.2d 502 (1994). The burden of proof is on the
defendant. Cleppe, 96 Wn.2d at 381.
Mr. Matheny now argues that the defense cannot bear the burden of proof on an
affirmative defense after State v. W.R., Jr., 181 Wn.2d 757,336 P.3d 1134 (2014). That
decision does not support his position. There the court concluded that the consent
defense to rape negates the forcible compulsion element of the crime and that due process
therefore requires the State to disprove consent. Id. at 765-768.
In contrast to the rape charge at issue in WR., the affirmative defense of unwitting
possession does not negate any element of the crime of possession of a controlled
substance. Instead, it involves a judicially-created excuse for the offense. Due process
does not therefore require that the State disprove a defense that negates an element of the
crime. W.R. is inapplicable.
The court properly instructed the jury on the defense of unwitting possession.
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No. 32824-4-III
State v. Matheny
Legal Financial Obligations
Mr. Matheny also argues that the trial court erred in imposing significant
discretionary LFOs without making the inquiry required by RCW 10.01.160(3). Since
the trial court attempted to fulfill its statutory obligations, we conclude that any error is
not manifest in light of Mr. Matheny's failure to object and decline to address the merits
of the claim.
RCW 10.01.160(3) states:
The court shall not order a defendant to pay costs unless the defendant is or
will be able to pay them. In determining the amount and method of payment
of costs, the court shall take account of the financial resources of the
defendant and the nature of the burden that payment of costs will impose.
The statutory inquiry is required only for discretionary LFOs. State v. Lundy, 176 Wn.
App. 96, 102,308 P.3d 755 (2013) (mandatory fees, which include victim restitution,
victim assessments, DNA fees, and criminal filing fees, operate without the court's
discretion by legislative design); State v. Kuster, 175 Wn. App. 420, 424, 306 P.3d 1022
(2013) (victim assessment and DNA collection fee mandatory). Trial courts are not
required to enter formal, specific findings. Lundy, 176 Wn. App. at 105.
In Blazina, our court concluded that the LFO issue is not one that can be presented
for the first time on appeal because this aspect of sentencing is not one that demands
uniformity. State v. Blazina, 182 Wn.2d 827, 830,344 P.3d 680 (2015). To that end, the
appellate courts retain discretion whether or not to consider the issue initially on appeal.
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No. 32824-4-III
State v. Matheny
ld. The Blazina court then decided to exercise its discretion in favor of accepting review
due to the nationwide importance of the general issue concerning LFOs and to provide
guidance to our trial courts. ld. The court noted that trial judges have a statutory
obligation to consider RCW 10.01.160(3) at sentencing and make an individualized
determination of the defendant's ability to pay discretionary LFOs. ld. at 837.
Mr. Matheny argues that this court likewise should exercise its discretion and
remand his case for a new sentencing proceeding. However, he is not situated similarly
to the defendants in Blazina. There the trial court made no attempt to satisfY its statutory
obligations. ld. at 831-832. In contrast, here the trial court heard about Mr. Matheny's
employability as well as his financial obligations in another case. Using that information,
the court reduced the drug fine by 50 percent. He made no similar request concerning his
other obligations and did not object to the trial court's ruling.
In these circumstances, we are not convinced that we should exercise discretion to
hear this unpreserved error. Blazina requires an individualized inquiry into the ability to
pay and a consideration of various factors that weigh on that issue. ld. at 838. The
inquiry in this case probably was not sufficient to satisfy Blazina. However, unlike those
cases where no inquiry was attempted, here the trial court made an effort to satisfy the
statute. Given that Mr. Matheny did not object to the trial court's efforts, which did
benefit him, we decline to find that there clearly was error below.
Accordingly, we decline to address this issue.
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No. 32824-4-III
State v. Matheny
Consideration ofDOSA Request
The final argument presented is a contention that the trial court did not consider a
DOSA sentence in retaliation for the defendant exercising his right to a jury trial. This
issue, too, is controlled by a factually similar case. We affirm.
The governing law is clear. RCW 9.94A.660(l) contains seven criteria for
determining eligibility for a DOSA sentence. If the offender is eligible, the trial court
may impose a standard range sentence that is spent half in treatment and half in
community custody. RCW 9.94A.660(3); .662; .664. The trial court's decision to grant
or deny DOSA is not reviewable. State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183
(2005); State v. Hender, 180 Wn. App. 895, 900, 324 P.3d 780 (2014). The trial judge
has the discretion to determine whether use of the sentencing alternative is appropriate.
Hender, 180 Wn. App. at 901. However, the trial court abuses its discretion if it does not
actually consider the request. Id.
Mr. Matheny contends that the trial court did not actually consider his request
because he took the case to trial. That view misapprehends the trial court's decision. As
noted previously, the trial judge denied DOSA because Mr. Matheny was not
forthcoming about his drug problem. The essence of his defense was that the drugs were
not his and he had not used the pen to consume the methamphetamine. The trial court
was free to understand his trial testimony as refusing to acknowledge that there was a
drug problem. It did not have to accept his statements to the treatment evaluator.
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No. 32824-4-111
State v. Matheny
The trial court faced a similar situation in Hender. There the defendant had
pleaded guilty to delivering methamphetamine, but denied that methamphetamine had
made him a criminal. The trial court rejected the defendant's DOSA request due to the
defendant's refusal to accept responsibility for his conduct. 180 Wn. App. at 902. We
concluded the opinion with this observation:
Although many behavioral scientists disagree, many recognize that one
who blames others for his wrongs is detached from reality and this
detachment interferes in one's ability to benefit from treatment. If a user
does not take responsibility for his behavior, he is not likely to be receptive
to change in the behavior. Alcohol and drug addiction are common causes
of a blaming attitude. Thus, the trial court did not abuse its discretion when
concluding that a DOSA sentence does not fit the predisposition of Ronald
Hender.
Id.
Similarly here, the trial court could conclude from Mr. Matheny's own testimony
that he was not taking responsibility for his actions and not acknowledging his problems,
thus making him a poor candidate for treatment. Drug treatment should not be wasted on
those not ready to make the effort to overcome their problem. Trial judges have the
discretion to determine who to trust or not trust. Given the conflicting pronouncements
by Mr. Matheny, the trial court had a tenable basis for concluding he was not a good
candidate for DOSA at this time. There was no error.
The judgment is affirmed. The trial court is directed to correct the noted
scrivener's error(s).
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No. 32824-4-II1
State v. Matheny
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
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