DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
Docket Number: |
41804-5 |
Title of Case: |
State Of Washington, Respondent V. Charles W. Wynn, Appellant |
File Date: |
03/27/2012 |
SOURCE OF APPEAL
----------------
Appeal from Cowlitz Superior Court |
Docket No: | 10-1-00462-6 |
Judgment or order under review |
Date filed: | 02/02/2011 |
Judge signing: | Honorable James J Stonier |
JUDGES
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Authored by | Lisa Worswick |
Concurring: | Christine Quinn-Brintnall |
| Marywave Van Deren |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| Thomas Michael Kummerow |
| Washington Appellate Project |
| 1511 3rd Ave Ste 701 |
| Seattle, WA, 98101-3647 |
Counsel for Respondent(s) |
| Sean M Brittain |
| Cowlitz Co Prosecutors Office |
| Hall Of Justice |
| 312 Sw 1st Ave |
| Kelso, WA, 98626-1739 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 41804-5-II
Plaintiff/Respondent,
v.
CHARLES WILLIAM WYNN,
UNPUBLISHED OPINION
Defendant/Appellant.
Worswick, A.C.J. -- Charles Wynn appeals his conviction for unlawful possession of
methamphetamine. He contends that the evidence was insufficient to disprove his claim of
unwitting possession. We affirm.1
FACTS
On May 18, 2010, Department of Corrections officers, Eric Morgan and Tracy Peters,
went to Wynn's apartment to conduct a home visit. Wynn had been released from prison in
March and Morgan was his supervising officer. When the corrections officers arrived, they found
a woman standing in the apartment's doorway. Asked her name, she responded, "Every time you
guys run my name I get arrested." Report of Proceedings (RP) at 81. She eventually told the
officers her name was Jane Carlson and soon thereafter left the apartment building.
As the officers walked in, Morgan saw Wynn quickly get up from the bed where he was
sitting and walk into the bathroom. The two made eye contact. Wynn remained in the bathroom
for less than 10 seconds. When Morgan asked what Wynn was doing, he replied, "Oh, I was just
1 A commissioner of this court initially considered Wynn's appeal as a motion on the merits under
RAP 18.14 and then transferred it to a panel of judges.
41804-5-II
getting up to put away some deodorant." RP at 37.
Noticing that Wynn was acting strangely, Morgan had Wynn accompany him back to the
bathroom to ensure there were no people hiding there. Wynn appeared to be acting nervous:
rocking back and forth, speaking quickly and rambling, and breathing heavily. Morgan noted that
Wynn acted differently than he had at past home visits. Typically, Wynn would rush the officers
to complete their visit, would never sit down and would be more assertive.
Morgan then walked into the bathroom again. He noticed that, under the sink where the
wall met the floor, two plastic bags and a syringe had been placed where there was a missing tile.
The bags contained a white crystalline substance that appeared to Morgan to be
methamphetamine. The substance later tested positive for methamphetamine.
Also present in the apartment was Wynn's roommate, Alex DeWolf. The officers detained
both DeWolf and Wynn. Morgan contacted the Longview Police Department to assist in an
arrest. Longview Police Officer Eric Hendrickson responded. Officer Hendrickson asked Wynn
about the methamphetamine. Wynn told him that the drugs were not his roommate's. Officer
Hendrickson asked DeWolf if the drugs were his, to which DeWolf responded by shaking his head
that they were not. When Morgan questioned Wynn on the way to jail, Wynn admitted having
used methamphetamine with a syringe the previous night.
The State charged Wynn with possession of methamphetamine. At trial, Officer
Hendrickson, Peters, and Morgan testified as described above. DeWolf and Wynn testified that
Carlson had spent forty-five minutes to an hour in the bathroom prior to the officers' arrival.
Both men stated that they did not permit drugs in the apartment. DeWolf testified that he had
never observed anyone using drugs at the apartment. Wynn testified that he did not know about
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the drugs. Wynn accused the corrections officers of planting the drugs in his bathroom. He also
denied telling Morgan that he had used methamphetamine the previous night. The jury found
Wynn guilty as charged.
ANALYSIS
Wynn argues that he proved his possession of the methamphetamine was unwitting, such
that the State failed to prove that he was guilty of unlawful possession. Unwitting possession is a
judicially created affirmative defense that may excuse a defendant's behavior, notwithstanding the
fact that the defendant has violated the letter of the statute. State v. Balzer, 91 Wn. App. 44, 67,
954 P.2d 931 (1998). In order to successfully assert the affirmative defense of unwitting
possession, Wynn had to prove by a preponderance of the evidence that he was unaware of his
possession or did not know the nature of the substance. Balzer, 91 Wn. App. at 67. If the
defendant presents adequate evidence, the existence of the defense becomes a question for the
trier of fact. State v. Mathews, 4 Wn. App. 653, 658, 484 P.2d 942 (1971).
Wynn argues that his agreement with DeWolf that the apartment would be drug-free, the
fact that DeWolf had never seen Wynn use drugs, and Carlson's hour-long trip to the bathroom
proved by a preponderance of the evidence that he did not know the methamphetamine was in the
bathroom, making his possession unwitting. But the jury had before it evidence that Wynn acted
nervously during the visit, that he darted to the bathroom upon seeing the corrections officers
arrive, that he gave a curious reason for darting to the bathroom, that he admitted that he had
used methamphetamine with a syringe the previous evening, and that he claimed the corrections
officers had planted the methamphetamine and syringe in the bathroom. That evidence is
sufficient for the jury to find that Wynn had not satisfied his burden of proving unwitting
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possession. The jury apparently found Wynn not to be credible. We do not review a jury's
credibility determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We
affirm Wynn's conviction for unlawful possession of methamphetamine.
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, A.C.J.
We concur:
Quinn-Brintnall, J.
Van Deren, J.
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