Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 )         No. 67636-9-I
                      Respondent,                )
                                                 )         DIVISION ONE
              v.                                 )
                                                 )         UNPUBLISHED OPINION
SHANNON LYNN DONOVAN,                            )

                      Appellant.                 )         FILED: April 23, 2012

                                                 )
                                                 )

                                                 )

       Appelwick,  J.    --    Donovan appeals her convictions for driving while 

license suspended in the third degree and possession of a controlled substance.  

Her Sixth Amendment right to confrontation was violated by the admission of an 

affidavit from the Department of Licensing, and the State has not asserted 

harmless error. Therefore, we reverse her conviction for DWLS 3.          We need not 

address whether     she  received ineffective assistance of counsel when her 

attorney failed to raise objections to hearsay testimony from the arresting officer 

about the suspended status of her license.  Substantial evidence supports her 

possession conviction.  We reverse in part, affirm in part, and remand for further 

proceedings consistent with this opinion.

                                        FACTS

       On May 26, 2010, Officer Sherri Murphy  initiated a traffic stop on the  

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vehicle Shannon Donovan was driving, because the license plate tabs did not 

match the registration on record for the van.  When Officer Murphy requested 

Donovan's driver's license, registration, and insurance information, Donovan 

eventually responded that she did not have a driver's license, and was only able 

to supply an identification card.  Officer Murphy testified at trial that Donovan 

said, "I'm not supposed to drive, but I had to drive today.  I just had to go to the 

Department of Licensing and get this printout, but I can get my license now."  

Officer Murphy also testified that she ran a driver's check on Donovan, which 

indicated that Donovan's driving privilege was suspended in the third degree.  

Officer Murphy then arrested Donovan for driving while license suspended in the 

third degree (DWLS 3).  

       On a search incident to arrest, Officer Murphy found drug paraphernalia 

in Donovan's coat pocket, including a plastic straw with white powder residue.  A 

subsequent lab test of residue from the straw revealed the presence of 

methamphetamine.  

       The State charged Donovan with one count of possession of a controlled 

substance and with one count of DWLS 3.  

       The State offered as an exhibit a certified copy of Donovan's driving

record (CCDR).  The CCDR included a copy of a suspension letter and an 

affidavit from the custodian of driving records at the Department of Licensing 

from May 27, 2010.  The affidavit states that it pertains to the driving record of 

Donovan, and that "[a]fter a diligent search, our official record indicates that the 

status on May 26, 2010, was: . . . Personal Driver License Status: . . .

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Suspended in the third degree."  (Boldface omitted.)

       Before trial, Donovan's counsel moved to exclude  the CCDR on the 

grounds that admission would violate her rights under the confrontation clause.  

The trial court denied the motion as premature.  During trial, Donovan again 

objected to the admission of the CCRD on confrontation grounds and also asked 

the court to strike Officer Murphy's testimony recounting Donovan's statements 

about her license status.  The trial court overruled Donovan's objections and 

admitted the CCDR.  

       Donovan presented an unwitting possession defense to the possession 

charge.  Her boyfriend, Jeffrey Lucey, testified that he was addicted to 

methamphetamine, that he had borrowed the coat she was wearing on the day of 

the arrest, and that the straw with the methamphetamine belonged to him.  

Donovan admitted the coat belonged to her but denied knowing the straw was in 

the pocket.  

       The jury convicted Donovan of both charges.  Donovan timely appeals.  

                                    DISCUSSION

   I.  Confrontation Clause Violation

       Donovan contends the trial court's admission of her CCDR amounted to 

admission of testimonial hearsay in violation of her Sixth Amendment right to 

confrontation.  An alleged violation of the confrontation clause is reviewed de 

novo.  State v. Jasper, ___ Wn.2d ___, 271 P.3d 876, 883 (2012) (Jasper II).

       The State concedes that the CCDR admitted into evidence in Donovan's 

case contained an affidavit almost identical to the affidavit submitted in State 

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v.Jasper, but it disagrees with the reasoning and the outcome in that case.  158 

Wn. App. 518, 525, 254 P.3d 228 (2010) (Jasper I), aff'd, ___Wn.2d ___ (2010).  

After the parties submitted their appellate briefing, the Washington State 

Supreme Court issued an opinion affirming our holding in Jasper I.  Jasper II, 

271 P.3d 876 (2012).  The Supreme Court stated:

       After Melendez-Diaz[ v. Massachusetts, 557 U.S. 305, ___, 129 S. 
       Ct. 2527, 2539-40, 174 L. Ed. 2d 314 (2009)], it is difficult to regard 
       certifications of the type here . . . as akin to business records, 
       which may be admitted into evidence without confrontation.  
       Instead, as other courts have recognized since Melendez-Diaz, 
       they are best understood as testimonial statements falling within 
       the ambit of the Sixth Amendment.  Accordingly, we hold the clerk's 
       affidavits involved in these three cases are testimonial statements . 
       . . . Because the defendants were not given the opportunity to 
       cross-examine the official who authored the certifications, the 
       admission of the certifications into evidence violated the 
       defendants' rights under the confrontation clause.

Id. at 887.  The law established in Jasper II is clear, and is plainly applicable 

here, in light of the State's concession and the similarities between the affidavits 

used in this case and in Jasper II.  The affidavit pertaining to Donovan's driving 

record was testimonial hearsay, just as was the affidavit in Jasper II.  We hold 

that the trial court erred in admitting the CCDR, in violation of Donovan's Sixth 

Amendment rights.

       Confrontation clause errors are subject to harmless error analysis.  Id.  

Constitutional error is presumed to be prejudicial, and the State bears the 

burden of proving that the error was harmless.  State v. Stephens, 93 Wn.2d 

186, 190-91, 607 P.2d 304 (1980).  Here, the State raises no argument that the 

error was harmless.  As in Jasper II, we hold that "the constitutional error in 

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admitting the affidavit was not harmless beyond a reasonable doubt" as to the 

DWLS 3 conviction.  271 P.3d at 887.  We reverse that conviction.  

       In light of our reversal of this conviction under the confrontation clause

analysis, we need not address Donovan's ineffective assistance of counsel 

claim.

   II. Sufficiency of the Evidence for Possession of a Controlled Substance

       Donovan argues there was insufficient evidence presented to sustain her 

conviction for possession of a controlled substance, methamphetamine.  When 

reviewing a party's challenge to the sufficiency of the evidence, we view the 

evidence in the light most favorable to the State, and ask whether any rational 

trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt.  State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009).

       In order to convict a defendant for possession of a controlled substance, 

the State must prove that the person possessed a controlled substance and, 

specifically, what the substance is.  RCW 69.50.4013.  Knowledge is not an 

element of the crime of possession of a controlled substance.  State v. 

Bradshaw, 152 Wn.2d 528, 537-38, 98 P.3d 1190 (2004).  A defendant may 

raise an unwitting possession defense, which requires the defendant to show, by 

a preponderance of the evidence, that they did not knowingly possess the 

controlled substance.  State v. Balzer, 91 Wn. App. 44, 67, 954 P.2d 931 (1998).  

       Donovan does not dispute that she possessed methamphetamine residue 

on her person, nor does she raise an argument about the jury's rejection of her 

unwitting possession defense.  Instead, she essentially asks us to read into 

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No. 67636-9-I/6

RCW    69.50.4013  an additional requirement that there must be              proof of a 

minimum measureable quantity of the substance.  We have expressly 

considered such an argument in State v. Malone and rejected it, holding that the 

possession of a controlled substance statute "does not require that a minimum 

amount of drug be possessed, but that possession of any amount can support a 
conviction."  72 Wn. App. 429, 439, 864 P.2d 990 (1994).1          The legislature had 

the power to create such a minimum requirement in the statutory language, but 

has not done so.  We will not substitute our judgment for that of the legislature 

by reading a new requirement into the statute.  See State v. Larkins, 79 Wn.2d 

392, 394, 486 P.2d 95 (1971).  

       We hold that there is sufficient evidence to support Donovan's conviction 

for possession of a controlled substance, methamphetamine.  

       We reverse in part, affirm in part, and remand for further proceedings 

consistent with this opinion.

       WE CONCUR:

1 In Malone, the contested statute was Former RCW 69.50.401(d) (1998), the 
former version of RCW 69.50.4013.  Laws of 2003, ch. 53, § § 331, 334.  Both 
statutes provide that it is unlawful to possess a controlled substance, and are 
silent with regards to any minimum quantity.
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