City of Kennewick v. Day
11 P.3d 304 (2000)
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Rule of Law:
Under Washington Evidence Rule 404(a)(1), evidence of a defendant's reputation for sobriety is a 'pertinent trait of character' and is admissible when offered to support the defense of unwitting possession or to negate the element of intent in a drug paraphernalia possession charge.
Facts:
- Doug R. Day's truck had been undergoing major modifications at Don Simmonson's auto repair shop for approximately four months.
- An employee who worked on Day's truck was fired from the shop for suspected drug use.
- Simmonson recalled a previous incident where a customer found drug paraphernalia in their car after it had been serviced at his shop.
- Day retrieved his truck from the repair shop a couple of days before his arrest on November 4, 1996.
- On that date, a police officer stopped Day for investigation of driving under the influence after Day drove around a police barrier.
- The officer searched Day's truck and found a small amount of marijuana and a marijuana pipe in the center armrest console.
- Day immediately told the officer that the items were not his, he had never seen them before, and that he had just picked his truck up from the repair shop.
Procedural Posture:
- Doug R. Day was charged in Benton County District Court (a court of first instance) with possession of marijuana and drug paraphernalia.
- At trial, the court excluded defense testimony regarding Day's reputation for sobriety.
- A jury acquitted Day of negligent driving but convicted him on the two possession charges.
- Day, as appellant, appealed his convictions to the Benton County Superior Court.
- The Superior Court reversed the convictions, ruling that the trial court erred in excluding the character evidence.
- The City of Kennewick, as appellant, sought and was granted discretionary review by the Court of Appeals, Division Three.
- The Court of Appeals reversed the Superior Court's decision, thereby reinstating Day's convictions.
- Day, as petitioner, petitioned the Supreme Court of Washington for review, which the court granted.
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Issue:
Does evidence of a defendant's reputation for sobriety from drugs and alcohol constitute a 'pertinent trait of character' admissible under ER 404(a)(1) when the defendant is charged with possession of marijuana and paraphernalia and asserts the affirmative defense of unwitting possession?
Opinions:
Majority - Madsen, J.
Yes. Evidence of a defendant's reputation for sobriety is a pertinent character trait that is admissible when offered by the accused in a drug possession case. First, for the charge of possession of drug paraphernalia under the Kennewick Municipal Code, the City must prove the defendant possessed the item with the 'intent to use' it. A reputation for sobriety is pertinent because it makes it less probable that the defendant intended to use the paraphernalia to ingest a controlled substance. Second, for the strict liability charge of marijuana possession, while intent is not an element of the crime, it becomes relevant when the defendant raises the affirmative defense of 'unwitting possession.' Because the defendant bears the burden of proving they did not know the substance was present, evidence of their character for sobriety is pertinent to support their claim of lack of knowledge.
Concurring - Talmadge, J.
Yes. While the majority's disposition is compelled by the court's prior expansive reading of ER 404(a)(1) in State v. Eakins, this trend is a negative one. The court's adoption of the 'unwitting possession' defense is a form of judicial legislation that imports an intent element into strict liability crimes where the legislature intended none. Allowing character evidence on this judicially-created defense distracts the jury from the core factual question of whether the defendant possessed the contraband, compelling the trier of fact to decide collateral issues of the defendant's reputation instead.
Analysis:
This decision solidifies the scope of admissible character evidence under ER 404(a)(1) in Washington, particularly in the context of drug possession offenses. It establishes that a defendant's reputation for sobriety is directly relevant not only to negate a specific intent element, such as 'intent to use' paraphernalia, but also to bolster an affirmative defense, like 'unwitting possession,' in a strict liability crime. This expands the avenues for defendants in strict liability cases to introduce evidence of their state of mind, effectively making their knowledge and intent a central issue despite the nature of the underlying offense. The case reinforces the judiciary's role in using affirmative defenses to ameliorate the harshness of strict liability statutes.
