Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       DIVISION ONE 
                                            )
              Respondent,                   )       No. 66244-9-I
                                            )
          v.                                )
                                            )
DAVID MENDEZ FERNANDEZ,                     )       UNPUBLISHED OPINION
                                            )
              Appellant.                    )       FILED:  March 5, 2012
________________________________)

       Dwyer, C.J.  --  David Fernandez was charged with possession of a 

controlled substance after a police officer searching Fernandez incident to arrest 

discovered methamphetamine in his jacket.  The officer testified at trial that 

Fernandez told him that the methamphetamine belonged to Fernandez.  

Fernandez was convicted on that charge.

       Fernandez now appeals his conviction, contending that the trial court 

erred by declining to instruct the jury regarding the defense of unwitting 

possession.  Because Fernandez presented no evidence that he was unaware 

that he was in possession of the controlled substance, the trial court did not err 

by declining to issue the requested instruction.  Accordingly, we affirm.

                                            I

       On November 2, 2009, Island County Sheriff's Deputy Darren Crownover  

No. 66244-9-I/2

responded to a call reporting a disturbance at Fernandez's home.  Fernandez 

was thereafter arrested.  Deputy Crownover searched Fernandez incident to the 

arrest and found two plastic bags containing a white substance in a zippered 

pocket inside Fernandez's jacket.  

       In his probable cause report, Deputy Crownover noted that Fernandez 

told him that another person, named Dusty, had earlier been present at the 

scene.  Deputy Crownover further stated in his report:  "I asked Fernandez about 

the white powder.  Initially Fernandez told me that [his wife] had the green bag 

earlier and he did not know that was in there.  Later when I was asked [sic] 

Fernandez about 'Dusty' he told me that the substance 'methamphetamine' was 

his and that he had recently relapsed."  Clerk's Papers at 81.  Testing later 

confirmed that the substance was methamphetamine.  Fernandez was thereafter 

charged with possession of a controlled substance.  

       At trial, Deputy Crownover testified -- consistent with his probable cause 

report -- that Fernandez had initially stated that the bag was in his wife's 

possession and that Fernandez was not aware of the contents of the bag.  

Deputy Crownover further testified that Fernandez, when later questioned about 

the contents of the bag, stated that it was methamphetamine, "[t]hat it was his," 

and "that he had recently relapsed."  Report of Proceedings (RP) (Nov. 3, 2010) 

at 62.  

       During cross-examination, defense counsel questioned whether Deputy 

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No. 66244-9-I/3

Crownover had intended in his report to state that Fernandez told him that the 

methamphetamine was Dusty's, not Fernandez's, and that it was Dusty, rather 

than Fernandez, who had relapsed.  Although Deputy Crownover admitted that 

his report may have been confusing, he affirmed that Fernandez had told him 

that the methamphetamine belonged to Fernandez, not to Dusty.  Thus, Deputy 

Crownover testified, he intended his report to state the facts as such.  Deputy 

Crownover reiterated multiple times during his testimony that the report was 

intended to convey that Fernandez stated that the methamphetamine belonged 

to Fernandez.  

       Fernandez requested that the trial court instruct the jury regarding the 

defense of unwitting possession, based upon the ambiguous statement in 

Deputy Crownover's probable cause report regarding to whom Fernandez said

the methamphetamine belonged.  The trial court denied Fernandez's request, 

stating:  "Possession of a controlled substance is unwitting if a person did not 

know that the substance was in his possession.  And there's absolutely nothing 

that indicates that [Fernandez] was unaware that it was in his possession."  RP 

(Nov. 4, 2010) at 114.

       The jury convicted Fernandez of possession of a controlled substance.  

The trial court sentenced Fernandez to five months of incarceration.  

       Fernandez appeals.

                                           II

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No. 66244-9-I/4

       Fernandez contends that the trial court erred by declining to instruct the 

jury regarding the defense of unwitting possession.  Because no evidence was 

presented at trial supporting such a theory of the case, we disagree.

       A party is entitled to have the jury instructed on its theory of the case only 

where there is evidence to support that theory.  State v. Williams, 132 Wn.2d 

248, 259, 937 P.2d 1052 (1997).  Thus, "a criminal defendant is not entitled to 

an unwitting possession instruction unless the evidence presented at trial is 

sufficient to permit a reasonable juror to find, by a preponderance of the 

evidence, that the defendant unwittingly possessed the contraband."  State v. 

Buford, 93 Wn. App. 149, 153, 967 P.2d 548 (1998).  We review de novo a trial 

court's refusal to grant a jury instruction based upon a ruling of law; however, 

where the refusal to grant an instruction is based upon a matter of fact, our 

review is only for abuse of discretion.  State v. Walker, 136 Wn.2d 767, 771-72, 

966 P.2d 883 (1998).

       To establish the defense of unwitting possession, the defendant must 

demonstrate either that he did not know that he was in possession of the 

controlled substance or that he did not know the nature of the substance.  State 

v. Staley, 123 Wn.2d 794, 799, 872 P.2d 502 (1994); State v. Balzer, 91 Wn. 

App. 44, 67, 954 P.2d 931 (1998).  Fernandez does not contend that he was 

unaware that the white substance contained in the bags in his jacket pocket was 

methamphetamine.  Thus, Fernandez was entitled to have the jury instructed 

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No. 66244-9-I/5

regarding the defense of unwitting possession only if there was evidence at trial 

that Fernandez did not know that the methamphetamine was in his possession.

       Fernandez asserts that he was entitled to an unwitting possession 

instruction based upon Deputy Crownover's trial testimony regarding the 

ambiguous language in his probable cause statement.  However, Deputy 

Crownover repeatedly testified that, when he wrote that "he told me that the 

[methamphetamine] was his and that he had recently relapsed," Deputy 

Crownover intended the words "he" and "his" to refer to Fernandez.  Fernandez 

told him, Deputy Crownover testified, that the methamphetamine belonged to 

Fernandez -- not to some other third party.  Based upon this testimony, the trial 

court did not abuse its discretion by ruling that the evidence presented at trial 

was not sufficient to permit a reasonable juror to find that Fernandez unwittingly 

possessed the methamphetamine.  See Buford, 93 Wn. App. at 153.

       Moreover, as the trial court recognized, even had Fernandez told Deputy 

Crownover that the methamphetamine belonged to another person, such 

evidence does not demonstrate that Fernandez was unaware that the 

contraband was in his possession.  "The defense of 'unwitting' possession may 

be supported by a showing that the defendant did not know he was in 

possession of the controlled substance."  Staley, 123 Wn.2d at 799.  Even had 

the methamphetamine belonged to someone other than Fernandez, there is no 

evidence to indicate that Fernandez did not know that the controlled substance 

                                          - 5 - 

No. 66244-9-I/6

was in his possession.  Therefore, the trial court correctly concluded that "there's 

absolutely nothing that indicates that [Fernandez] was unaware that [the 

methamphetamine] was in his possession," and properly denied Fernandez's 
request for an unwitting possession instruction.1

       The trial court did not abuse its discretion in determining that no evidence 

indicated that Fernandez unwittingly possessed the methamphetamine.  

Accordingly, an instruction regarding such a defense was not warranted, and the 

trial court did not err by declining to so instruct the jury.

       Affirmed.

       1 Fernandez contends that, because the trial court did not limit the jury's consideration of 
the statements in Deputy Crownover's probable cause report, which was admitted into evidence, 
the jury could consider those statements as substantive evidence that Fernandez told Deputy 
Crownover that the methamphetamine belonged to Dusty -- rather than simply as impeachment 
evidence against Deputy Crownover.  Fernandez is correct that "absent a request for a limiting 
instruction, evidence admitted as relevant for one purpose is deemed relevant for others."  State 
v. Myers, 133 Wn.2d 26, 36, 941 P.2d 1102 (1997).  Here, however, because the trial court 
declined to instruct the jury regarding the defense of unwitting possession, there was no reason 
for the State to request such a limiting instruction; the question of whether Fernandez unwittingly 
possessed the controlled substance was not before the jury.
       Only had the trial court seriously entertained granting Fernandez's request to instruct the 
jury on unwitting possession would it have been necessary for the State to request an instruction 
limiting the jury's consideration of the written report.  Such a limiting instruction would have been 
warranted either because the statement made by Deputy Crownover in the report was not 
testimony given under oath "at a trial, hearing, or other proceeding, or in a deposition," or 
because the statement made by Fernandez -- construed in the manner favored by 
Fernandez -- would be exculpatory and, thus, would not constitute an admission by a party-
opponent.  See ER 801(d)(1), (2).  For either reason, the jury would have been properly 
instructed not to consider the statement in the report as substantive evidence.
       Thus, had the trial court entertained issuing Fernandez's proposed jury instruction, the 
State would have been entitled to an instruction limiting the jury's consideration of the probable 
cause statement solely to impeachment purposes.  See ER 802.  Such a limiting instruction 
would have undermined Fernandez's proposed jury instruction itself, as without substantive 
evidence of Fernandez's statement, there would have been no evidence to support an instruction 
on unwitting possession.  

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No. 66244-9-I/7

We concur:

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