Filed
Washington State
Court of Appeals
Division Two
January 20, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53970-5-II
Respondent,
v.
DALTON RAY TRAPP, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Dalton Trapp appeals his conviction for unlawful possession of a
controlled substance—methamphetamine. Trapp argues that (1) the evidence was insufficient to
support his conviction and that (2) the trial court erred in refusing to give an affirmative defense
jury instruction for unwitting possession. The State argues that the evidence was overwhelming
and that Trapp waived this affirmative defense when he failed to raise the issue at the omnibus
hearing.
We hold that the evidence was sufficient to support Trapp’s conviction, but that Trapp
was entitled to an unwitting possession jury instruction and refusal to give this instruction was
not harmless. Thus, we reverse and remand.1
1
Alternatively, Trapp argues that he received ineffective assistance of counsel when his defense
counsel failed to object to the trial court’s refusal to give the jury an instruction on the
affirmative defense of unwitting possession and that the trial court erred when it imposed a
Department of Corrections supervision fee. Because we reverse and remand, we do not consider
these arguments.
No. 53970-5-II
FACTS
In February 2019, detectives from the Longview Police Department served a search
warrant at a single-wide mobile home in Castle Rock. That warrant named a person other than
Trapp as its target, but it permitted officers to search the residence for illegal narcotics and
related contraband. Prior to the search, the investigating detective briefed the search team that
Dalton Trapp might be present at the residence, but it was not confirmed that he lived there.
When officers entered the mobile home, they encountered numerous people, including
Trapp. When officers first saw Trapp, he was exiting a room into a long hallway that led to the
back of the mobile home, where two bedrooms were located. Trapp’s girlfriend, Desiree
Fletcher, was staying in the mobile home. A detective interviewed Trapp at the scene, and Trapp
made statements to the detective, the substance of which was disputed at trial. Fletcher told
police that she was staying in the bedroom.
Officers searched Fletcher’s bedroom. The room contained both male and female
clothing. During the search, police officers found a metal tin, plastic “baggy,” and a loaded
syringe, all containing suspected methamphetamine. Other empty, apparently used syringes
were also found in the room. Photographs of the bedroom showed the syringes were located in a
bag on a desk and in between books on a shelf. Photographs also showed that the plastic bag
was located on a sliding keyboard shelf in a desk. A test performed by the Washington State
Patrol Crime Laboratory concluded that the suspected methamphetamine was methamphetamine.
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No. 53970-5-II
No drugs were found on Trapp’s person. Trapp was arrested and charged with one count of
unlawful possession of a controlled substance—methamphetamine.2
Before trial, Trapp and the State completed an omnibus order stating that Trapp would
assert a general denial defense. The trial court held an omnibus hearing in April 2019, and Trapp
confirmed the omnibus order, which was signed by the trial court judge. During a July 18
pretrial conference, Trapp confirmed he had been given the State’s proposed jury instructions
and said that they looked appropriate. These proposed instructions did not contain an unwitting
possession instruction.
At trial, Officer Jordan Sanders testified about his conversation with Trapp. Detective
Sanders testified that he asked Trapp which room was his room and that Trapp identified the
room where the illegal narcotics were found. Detective Sanders also testified that he asked
Trapp what would be found in the room, and Trapp said they would find roughly a “quarter of a
gram of meth.” Verbatim Report of Proceedings (VRP) at 113. Detective Sanders further
testified that Trapp said that if Fletcher was going to be charged, she “wasn’t the only one
responsible,” that they were “his drugs” just as much as they were hers, and that “he was just as
much responsible.” VRP at 116-17. According to Detective Sanders, Trapp admitted to being
an intravenous methamphetamine user and that he was “just as much responsible as Mrs.
Fletcher for the illegal narcotics that [were] in the room.” VRP at 117.
2
RCW 69.50.4013(1).
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No. 53970-5-II
Trapp also testified. Trapp said that he did not live in the mobile home and only visited
Fletcher there “from time to time.” VRP at 153. Trapp denied that he identified the room where
he was staying as his room, and had said only that it was a room he was staying in at the time of
the raid. Trapp also testified that Fletcher had been living in the mobile home for six months, but
that he lived in his own home with his mother. Trapp further testified that he was visiting
Fletcher after his shift at work and had been in the mobile home for only a few hours the day of
his arrest. Trapp said that he kept no belongings in the bedroom where he visited Fletcher except
for his tattooing equipment.
Trapp further testified that he did not have anything to do with the drugs or where they
were located in the mobile home. Trapp said he “had no idea” about the drugs in the room, and
that he had never seen the drugs and paraphernalia that were seized by the police until the
officers showed them to him. Trapp testified that he occasionally smoked methamphetamine,
but Trapp denied telling Detective Sanders that he was an intravenous drug user. Trapp also
testified that Fletcher and Terry McDonald, who owned the home and who was the subject of the
search warrant, were both intravenous drug users and that Trapp was falsely accredited for the
related items found in the mobile home.
After the defense had rested its case, the trial court asked Trapp’s attorney if he had any
objection to the proposed jury instructions. Trapp’s attorneys stated, “I think we need to add
unwitting possession. I wasn’t entirely sure how he dealt with that issue, because I hadn’t asked
him that. And I think that from what he testified, unwitting possession would be an appropriate
addition.” VRP at 162.
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No. 53970-5-II
The State objected based on Trapp not identifying unwitting possession as an affirmative
defense sooner, stating, “[W]e have never been informed that the Defense would be pursuing an
unwitting possession defense; and, to tell us this now, after we’ve rested our case, is
unacceptable.” VRP at 162. Trapp’s attorney replied that he was not aware of the defense until
Trapp testified.
The trial court denied Trapp’s request to give the unwitting possession instruction,
stating:
Well, I think—I think that’s a defense that really needs to be stated. In reviewing
the Omnibus Order filed the 22nd of April, it is a general denial. No other—nothing
else was indicated at that point in time.
I have to agree with the State, in that if they were aware that that was a
possibility, I think the testimony may have changed somewhat, or there would be
some additional testimony that would’ve been presented. I think unless—and I
don’t know that the State is in a position where even if I allowed that instruction in,
that they would be able to reopen—and allow them to reopen their case if they could
get any of their witnesses back to testify. So, I do not think I’m going to allow that
at this point.
VRP at 162-63. The jury returned a verdict of guilty of unlawful possession of a controlled
substance—methamphetamine. Trapp appeals.
ANALYSIS
I. SUFFICIENCY OF THE EVIDENCE
Trapp argues that the evidence was insufficient to convict him because the State failed to
prove that he had dominion and control over the methamphetamine. He argues that the evidence
proved only that he was an occasional visitor of the bedroom and that the methamphetamine
found there was “not readily observable.” Br. of Appellant at 12. Trapp also argues that his
alleged statements at the scene did not amount to an admission of possession by him and that
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No. 53970-5-II
“there was very little evidence connecting [him] to the methamphetamine or the premises where
the methamphetamine was located.” Br of Appellant at 13. We disagree.
A. Legal Principles
1. Standard of Review
“Evidence is sufficient to support a guilty verdict if any rational trier of fact, viewing the
evidence in the light most favorable to the State, could find the elements of the charged crime
beyond a reasonable doubt.” State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 19
(2017). A defendant admits the truth of all the State’s evidence when he or she challenges the
sufficiency of the evidence. Cardenas-Flores, 189 Wn.2d at 265. “Circumstantial evidence and
direct evidence are equally reliable” and “[c]redibility determinations are for the trier of fact and
are not subject to review.” State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). We defer
to the trier of fact on conflicting testimony, credibility, and the persuasiveness of evidence. State
v. Raleigh, 157 Wn. App. 728, 736-37, 238 P.3d 1211 (2010).
2. Constructive Possession
Possession, for purposes of the crime of possession of a controlled substance, may be
constructive. State v. Reichert, 158 Wn. App. 374, 390, 242 P.3d 44 (2010). Constructive
possession occurs if the defendant has dominion and control over the item. Reichert, 158 Wn.
App. at 390. Substantial evidence must exist to prove dominion and control. State v. Davis, 182
Wn.2d 222, 235, 340 P.3d 820 (2014) (Stephens, J., dissenting). We consider the totality of the
circumstances when deciding whether substantial evidence supports a reasonable inference of
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No. 53970-5-II
dominion and control therefrom. State v. Enlow, 143 Wn. App. 463, 468-69, 178 P.3d 366
(2008).
When a defendant can immediately convert the item to their actual possession, they have
dominion and control over the item. Reichert, 158 Wn. App. at 390. We consider physical
proximity as evidence of dominion and control, but physical proximity alone is insufficient to
establish dominion and control. State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002).
Constructive possession need not be exclusive; more than one person can be in
possession of the same item. Reichert, 158 Wn. App. at 390. Dominion and control over a
premises creates a rebuttable presumption for dominion and control over the items on the
premises. Reichert, 158 Wn. App. at 390. However, knowledge of an item on the premises,
without more, is not sufficient to establish dominion and control. State v. Chouinard, 169 Wn.
App. 895, 899, 282 P.3d 117(2012).
Here, viewing the evidence in favor of the State, Trapp told Detective Sanders that he
was a methamphetamine user, and police officers would find methamphetamine in the room that
he was observed exiting. Trapp specifically identified the room where methamphetamine was
located as his room. Trapp told Detective Sanders that he was just as responsible as Fletcher
because the methamphetamine was also his. Trapp’s testimony contradicted Detective
Sanders’s, but we view the evidence in the light most favorable to the State. Cardenas-Flores,
189 Wn.2d at 265. We defer to the trier of fact on its credibility, persuasiveness, and for
resolving conflicting testimony. State v. Andy, 182 Wn.2d 294, 303, 340 P.3d 840 (2014).
Trapp’s words were later corroborated when a search of the room revealed the presence of
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No. 53970-5-II
methamphetamine, paraphernalia, and his personal items. The State argued that the approximate
quantity of drugs that Trapp had relayed to the detectives was accurate, which was, arguably,
further circumstantial evidence of his constructive possession.
Trapp relies primarily on State v. Callahan, 77 Wn.2d 27, 459 P.2d 400 (1969), and State
v. Spruell, 57 Wn. App. 383, 788 P.2d 21 (1990) to argue that the totality of circumstances is
insufficient to support a conviction under constructive possession. In Callahan, Callahan
admitted to handling drugs earlier in the day after drugs were found throughout a houseboat
where he had been staying for two or three days. Callahan, 77 Wn.2d at 28. Callahan admitted
to ownership of numerous personal possessions found onboard, including books on narcotics and
scales typically used to measure drugs. 77 Wn.2d at 28. Callahan held that the evidence was
insufficient to show dominion and control because there was no showing that Callahan had
dominion or control over the houseboat, and he was only a temporary guest who did not pay rent.
77 Wn.2d at 31. Importantly, another witness testified that the drugs belonged to him, that he
had sole control over them, and that he had not given them to anyone else. 77 Wn.2d at 31; but
see State v. Isom, 181 Wn. App. 62, 66, 567 P.2d at 31.248 (1977) (discussing Callahan and
explaining that direct proof of exclusive possession of another does not, as a matter of law,
negate circumstantial evidence that another was also in possession of contraband). This
witness’s testimony was substantiated by other witnesses. Callahan, 77 Wn.2d at 28.
Callahan, is distinguishable. Here, Trapp specifically made incriminating admissions to
the police about the drugs and his dominion and control of the premises. Trapp told police they
would find drugs in a room of the mobile home that he claimed possession over and that he
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No. 53970-5-II
shared with Fletcher. Trapp told police that he and Fletcher were both equally responsible for
the drugs. Although Trapp contends that the evidence shows he was “just an occasional visitor
who happened to be present during the execution of a warrant unrelated to him,” Br. of Appellant
at 12, we view the evidence and all reasonable inferences in the light most favorable to the state.
Cardenas-Flores, 189 Wn.2d at 265.
In Spruell, police raided a house and found Spruell in close proximity to drugs and drug
paraphernalia. 57 Wn. App. at 384-85. The State had no evidence of any connection between
Spruell and the house, including the purpose of his presence or the duration of his visit. 57 Wn.
App. at 388. Reasoning that “presence and proximity to the drugs is not enough,” the Spruell
court held that the evidence was insufficient to support dominion and control. 57 Wn. App. at
389.
Spruell is also distinguishable. Spruell had little to no apparent connection to the
premises where the drugs were found; whereas here, Trapp laid a claim over the room and the
drugs when interviewed by police. The evidence against Trapp in this case goes beyond mere
presence, proximity, and knowledge.
The State has presented substantial evidence of constructive possession in this case. That
evidence, viewed in the light most favorable to the State, showed that Trapp was in the room
where drugs were found and that he knew those drugs were there. Going beyond that evidence
of his proximity and knowledge, Trapp also claimed ownership over the illegal narcotics and the
room. Trapp also admitted he was an intravenous methamphetamine user. Trapp’s statements
regarding where and what kind of drugs would be found were corroborated by physical evidence.
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No. 53970-5-II
The evidence showed that the room contained methamphetamine, intravenous drug
paraphernalia, men’s clothing, and Trapp’s tattoo equipment. Accordingly, we hold that
sufficient evidence supports Trapp’s conviction for unlawful possession of a controlled
substance—methamphetamine, based on Trapp’s constructive possession of the
methamphetamine.
II. UNWITTING POSSESSION JURY INSTRUCTION
Trapp argues that the trial court erred by refusing to give an unwitting possession jury
instruction. Trapp argues that this defense was supported by sufficient evidence because he
testified that he had no knowledge of and had not seen the drugs and paraphernalia that were
seized by police until they showed them to him following the search of his room. He argues that
this error was not harmless and that his conviction must be reversed and remanded for a new
trial.
The State does not disagree that evidence supported an unwitting possession instruction.3
Instead, the State argues that Trapp waived an unwitting possession defense instruction because
he failed to raise the issue at his omnibus hearing. The State argues that an additional defense
instruction beyond what was disclosed at the omnibus hearing would be a violation of discovery
rules and that the trial court was justified in refusing to administer the additional instruction
3
The State presents no argument on this issue.
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No. 53970-5-II
pursuant to CrR 4.5 and 4.7. The State also argues that there was overwhelming evidence of
Trapp’s guilt.4
We agree with Trapp and hold that Trapp did not waive his right to request an unwitting
possession jury instruction, and that the evidence in the trial entitled him to such instruction. We
further hold that the trial court’s refusal to instruct the jury on unwitting possession was an error
that requires reversal.
A. Legal Principles
1. Standard of Review
Neither party addresses the standard of review on this issue. We review a trial court’s
decision to refuse to give a jury instruction de novo when that decision is based on a legal
conclusion. State v. Knapp, 11 Wn. App.2d 375, 379, 453 P.3d 1006 (2019), review granted,
195 Wn.2d 1014 (2020). We review the type of sanctions a trial court imposes under CrR 4.7 for
an abuse of discretion. State v. Ruelas, 7 Wn. App. 2d 887, 896, 436 P.3d 362, review denied,
194 Wn.2d 1015 (2019). “A trial court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds.” In re Det. of Taylor-Rose, 199 Wn. App. 866,
880, 401 P.3d 357 (2017).
The trial court here did not state the theory upon which it denied Trapp’s instruction. It
stated it was refusing to give Trapp’s proposed instruction because the omnibus order failed to
mention the affirmative defense of unwitting possession, and because the State might not be able
4
The State does not refer to this as “harmless error,” although its analysis appears to be a
harmless error analysis.
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No. 53970-5-II
to reopen its case. This ruling was either a legal conclusion based on the omnibus order or was a
sanction for late disclosure of a defense.
If we review this ruling as the trial court’s legal conclusion that a defense is waived if it is
not listed in the omnibus order, our review is de novo. On the other hand, if we review the trial
court’s ruling as a sanction for late disclosure of an affirmative defense, our review is for an
abuse of discretion. Reviewed under either standard, we hold the trial court erred.
B. Jury Instruction Not Waived Under CrR 4.5
Trapp argues that the trial court erred when it refused to instruct the jury on the defense
of unwitting possession. The State argues that because the unwitting possession defense was not
raised at the omnibus hearing, the issue was waived, citing CrR 4.5. We disagree.
When a defendant enters a plea of not guilty, the trial court sets an omnibus hearing. CrR
4.5(a). The rule provides, in CrR4.5(d) entitled “Motions,” that “motions and other requests”
should be presented at the omnibus hearing. Failing to raise or give notice at the hearing of any
error or issue of which the party concerned has knowledge may constitute a waiver of such error
or issue. State v. Koloske, 34 Wn. App. 882, 884, 667 P.2d 635 (1982). At the conclusion of an
omnibus hearing, a trial court shall make a summary memorandum that must substantially
include a section for a “[d]efendant to state the general nature of his defense.” CrR 4.5(h)
(section II, omnibus application form).
Here, Trapp’s lawyer told the trial court that he had no knowledge that Trapp would raise
an affirmative defense of unwitting possession in his testimony. More importantly, the waiver in
CrR 4.7 is in the “motions” section. Nowhere does the rule state that a defense not stated in the
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No. 53970-5-II
order is waived. Indeed, such a rule could have serious implications on a defendant’s
constitutional right to present a defense. The United States Constitution guarantees a criminal
defendant “‘a meaningful opportunity to present a complete defense.’” Holmes v. South
Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) (quoting Crane v.
Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986)).
Moreover, the State cites no authority to support the proposition that failing to include a
specific affirmative defense under the “general nature of the defense” requirement of the
omnibus hearing summary memorandum constitutes a waiver of a defendant’s entitlement to a
jury instruction. Instead, the State relies on three cases where the trial court ruled that a
defendant had waived other issues for failing to raise them at the omnibus hearing. Koloske, 34
Wn. App. at 885 (challenge to the admissibility of prior convictions for impeachment is waived
when not properly asserted); State v. Dent, 123 Wn.2d 467, 480, 869 P.2d 392 (1994) (challenge
to venue is waived when not raised at omnibus hearing); State v. Harris, 36 Wn. App. 746, 747,
677 P.2d 202 (1984) (severance of defendants is waived when not raised at omnibus hearing).
These cases are factually distinguishable because here, the trial court refused a jury instruction
for an affirmative defense.
Accordingly, we hold that Trapp did not waive his unwitting possession defense by
failing to include the defense in his omnibus hearing disclosures.
C. Improper Sanction
Trapp argues that the trial court improperly refused his instruction. The State argues that
Trapp violated CrR 4.7, thus, this was a proper discovery sanction. Reviewing the trial court’s
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No. 53970-5-II
denial of Trapp’s request for an unwitting possession instruction as a discovery sanction, we hold
the trial court abused its discretion.
A defendant is required to “state the general nature of the defense” as an obligation of
pretrial discovery. CrR 4.7(b)(2)(xiv). A trial court may sanction a criminal defendant by
excluding evidence under CrR 4.7(h)(7)(i) for failing to comply with discovery deadlines.
Ruelas, 7 Wn. App. 2d at 896. Exclusion of evidence is an extraordinary sanction and should be
applied narrowly. State v. Vance, 184 Wn. App. 902, 911, 339 P.3d 245 (2014). Cases
discussing imposition of sanctions against a criminal defendant address excluding witness
testimony and evidence. See Ruelas, 7 Wn. App.2d at 896; see State v. Hutchinson, 135 Wn.2d
863, 881, 959 P.2d 1061 (1998), abrogated on other grounds by State v. Jackson, 195 Wn.2d
841, 467 P.3d 97 (2020). We are unable to find, and the State did not cite, any case where a trial
court refused to give an affirmative defense jury instruction as a discovery sanction.
Refusal to give a jury instruction, if ever appropriate, is a more severe sanction than
excluding testimony. Other states have held that precluding a defendant from raising an
affirmative defense as a sanction for failing to comply with a discovery rule requiring disclosure
of affirmative defenses to be proper only in extreme circumstances. See People v. Houser, 305
Ill. App. 3d 384, 390, 712 N.E.2d 355 (1999) (“Excluding an accused’s defense is an extreme
sanction, applicable only in the most extreme situations.”); see People v. Diaz, 930 N.E. 2d 264,
269, 904 N.Y.S.2d 343 (2010) (preclusion of affirmative defense bears on a defendant’s
constitutional rights).
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Before a trial court can preclude evidence based on a discovery violation, the court must
weigh four factors: the effectiveness of less severe sanctions; the impact of evidence preclusion
on the evidence at trial and the outcome of the case; the extent to which the prosecution will be
surprised or prejudiced by the evidence; and whether the violation was willful or in bad faith.
Hutchinson, 135 Wn.2d at 883.
Here, the trial court did not consider any other less extreme sanctions when it refused
Trapp’s request for an affirmative defense instruction of unwitting possession. The court made
no finding that Trapp’s alleged violation of discovery was willful or in bad faith. The trial court
reasoned that instructing the jury would be prejudicial to the State but it did not balance against
Trapp’s own rights and interests. There is no indication that Trapp himself knew that his
testimony disavowing knowledge of the drugs was an affirmative defense, and the trial court did
not inquire about counsel’s trial preparation. Because the trial court did not consider the four
factors before imposing this extreme sanction, we hold that, it was an abuse of discretion to deny
Trapp’s proposed jury instruction.
D. Sufficient Evidence for Jury Instruction
Trapp argues that there is sufficient evidence to support instructing the jury on the
affirmative defense of unwitting possession. The State does not dispute this claim. We agree
with Trapp.
Unwitting possession is an affirmative defense that can be raised in a prosecution for
unlawful possession of a controlled substance. State v. George, 146 Wn. App. 906, 915, 193
P.3d 693 (2008). Because unlawful possession is a strict liability crime where the State has the
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No. 53970-5-II
burden of proving only the nature of the substance and the fact of possession beyond a
reasonable doubt, the defense of unwitting possession “ameliorates the harshness of . . . strict
liability.” State v. Bradshaw, 152 Wn.2d 528, 538, 98 P.3d 1190 (2004) (quoting State v.
Cleppe, 96 Wn.2d 373, 381, 635 P.2d 435 (1981). This defense must be proved by a
preponderance of the evidence. State v. Balzer, 91 Wn. App. 44, 67, 954 P.2d 931 (1998).
A defendant in a criminal case is “‘entitled to have the trial court instruct upon its theory
of the case if there is evidence to support the theory.’” George, 146 Wn. App. at 915 (quoting
State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d 902 (1986)). Failure to give a warranted
unwitting possession instruction for an unlawful possession of a controlled substance charge is
generally a reversible error. “‘State v. Mullins, 128 Wn. App. 633, 639, 116 P.3d 441 (2005).
“In evaluating whether the evidence is sufficient to support a jury instruction on an affirmative
defense, the court must interpret it most strongly in favor of the defendant and must not weigh
the proof or judge the witnesses’ credibility, which are exclusive functions of the jury.’”
George, 146 Wn. App. at 915 (quoting State v. May, 100 Wn. App. 478, 482, 997 P.2d 956
(2000)).
When viewed most strongly in favor of Trapp, and without weighing the proof or judging
the witnesses’ credibility, sufficient evidence supported a finding by a rational trier of fact, by a
preponderance of the evidence, that Trapp unwittingly possessed methamphetamine. Trapp
testified that he never admitted to (1) being an intravenous drug user, (2) knowledge of the
presence of drugs in the bedroom, and (3) ownership or responsibility over the drugs.
Additionally, Trapp testified that he had no knowledge of the drugs that were seized in the
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No. 53970-5-II
bedroom until after the police raid. Trapp also argues that the drugs and paraphernalia were not
particularly observable in the room, a fact which is borne out in the exhibit photographs.
Accordingly, we hold that the evidence was sufficient to support a jury instruction on the
affirmative defense of unwitting possession.
E. Refusal Demands Reversal
Refusal to give a jury instruction may be harmless error “if the factual question posed by
the omitted instruction was necessarily resolved adversely to the defendant under other, properly
given instructions.” See State v. Hansen, 46 Wn. App. 292, 297, 730 P.2d 706, (1986), aff’d 737
P.2d 670 (1987) (holding that failing to instruct on a lesser included offense was harmless where
the jury rejected an intermediate offense and convicted of the greater offense). Similarly,
Division One of this court in State v. Birdwell, 6 Wn. App. 284, 297, 492 P.2d 249, 257 (1972)
held that failure to give an unwitting possession instruction was harmless where Birdwell was
able to argue his theory of the case under the given possession with intent to sell instructions.
The court reasoned that the intent to sell instructions were sufficient because—“it is manifestly
impossible for one to have an intent to sell something that he does not know he possesses.” 6
Wn. App. 298. The Birdwell court noted, however that having only a possession instruction
would present a different case. 6. Wn. App. at 298.
Relying on the logic of Birdwell, Division One of this court held that failure to give an
unwitting possession instruction on a simple possession charge is reversible error because the
elements of the crime do not include intent or knowledge. George, 146 Wn. App. at 915. We
agree with George.
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Accordingly, we hold that Trapp was entitled to a jury instruction on the affirmative
defense of unwitting possession. Because Trapp was entitled to the instruction that the trial court
refused to give, this is an error demanding reversal. George, 146 Wn. App. at 915.
III. CONCLUSION
We hold that sufficient evidence was presented to the jury to sustain Trapp’s conviction
for unlawful possession of a controlled substance. However, the trial court erred in not
instructing the jury on the affirmative defense of unwitting possession at Trapp’s request.
Because the evidence shows Trapp was entitled to this defense, we reverse Trapp’s conviction
and remand to the trial court.
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 in accordance with RCW
2.06.040, it is so ordered.
______________________________
Worswick, J.
We concur:
_______________________________
Lee, C.J.
_______________________________
Glasgow, J.
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