unwitting possession defense in Washington

43 Washington opinions name it 2 courts 1989–2021 3 in the last five years

The cases below were cited by Washington courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.

Followed or applied (14)

Case	Followed	Cited
State v. Cleppegreen wash · 1981 · cited in 5 Washington opinions naming this issue, 1989–2020 2 sentences 1989A jury convicted him. 1 Mr. Sharkey contends RCW 9.41.050(3) (c) implicitly requires proof of knowledge that the gun being carried in the vehicle is loaded, analogizing to drug cases in which the defendant is entitled to an unwitting possession instruction, citing State v. Cleppe, 96 Wn.2d 373 , 635 P.2d 435 (1981), cert. denied, 456 U.S. 1006 , 73 L. 1989A jury convicted him. 1 Mr. Sharkey contends RCW 9.41.050(3) (c) implicitly requires proof of knowledge that the gun being carried in the vehicle is loaded, analogizing to drug cases in which the defendant is entitled to an unwitting possession instruction, citing State v. Cleppe, 96 Wn.2d 373 , 635 P.2d 435 (1981), cert. denied, 456 U.S. 1006 , 73 L.	4	5
State v. Bradshawgreen wash · 2004 · cited in 5 Washington opinions naming this issue, 2014–2019 2 sentences 2019State v. Bradshaw, 152 Wn.2d 528, 538 , 98 P.3d 1190 (2004). 2018See Bradshaw, 152 Wn.2d at 538 .	2	5
State v. Michlitschgreen nd · 1989 · cited in 3 Washington opinions naming this issue, 1998–2000 2 sentences 2000See State v. Michlitsch, 438 N.W.2d 175 310 (N.D.1989) (adopting defense of unwitting possession); Dawkins v. State, 313 Md. 638 , 547 A.2d 1041 (1988) (choosing to infer a knowledge requirement in its statute, rather than adopt Washington's unwitting possession defense). 2000*See State v. Michlitsch, 438 N.W.2d 175 (N.D. 1989) (adopting defense of unwitting possession); Dawkins v. State, 313 Md. 638 , 547 A.2d 1041 (1988) (choosing to infer a knowledge requirement in its statute, rather than adopt Washington’s unwitting possession defense).	2	3
State v. Stensongreen wash · 1997 · cited in 2 Washington opinions naming this issue, 2005–2005 2 sentences 2005See State v. Stenson, 132 Wn.2d 668, 705 , 940 P.2d 1239 (1997). 2005See State v. Stenson, 132 Wash.2d 668, 705 , 940 P.2d 1239 (1997).	2	2
State v. Stensongreen wash · 1997 · cited in 2 Washington opinions naming this issue, 2005–2005 2 sentences 2005See State v. Stenson, 132 Wn.2d 668, 705 , 940 P.2d 1239 (1997). 2005See State v. Stenson, 132 Wash.2d 668, 705 , 940 P.2d 1239 (1997).	2	2
State v. W.R.green wash · 2014 · cited in 2 Washington opinions naming this issue, 2015–2021 2 sentences 2021See, e.g., W.R., 181 Wn.2d at 769 . 2015CP at 54 (Jury Instruction 16). 5 No. 46618-0-II Buurman relies on State v. W.R., 181 Wn.2d 757 , to support his claim that the unwitting possession defense violates due process because the State did not show he had actual possession and his “lack of knowledge cannot coexist with dominion and control.” Br. of Appellant at 6.	1	2
State v. Semakulagreen washctapp · 1997 · cited in 2 Washington opinions naming this issue, 2001–2001 2 sentences 2001See State v. May, 100 Wash.App. 478, 481-82 , 997 P.2d 956 , review denied, 142 Wash.2d 1004 , 11 P.3d 825 (2000); State v. Anderson, 94 Wash.App. 151, 155 , 971 P.2d 585 (1999), rev'd, 141 Wash.2d 357 , 5 P.3d 1247 (2000); see also State v. Semakula, 88 Wash.App. 719, 726-27 , 946 P.2d 795 (1997) (approving an unwitting possession instruction), review denied, 134 Wash.2d 1022 , 958 P.2d 317 (1998). 2001App. 719, 726-27 , 946 P.2d 795 (1997) (approving an unwitting possession instruction), review denied, 134 Wn.2d 1022 (1998).	1	2
State v. Saundersgreen washctapp · 1998 · cited in 2 Washington opinions naming this issue, 2001–2001 2 sentences 2001App. 575, 580-81 , 958 P.2d 364 (1998) (admission of defendant’s prior drug conviction was not harmless where the jury would have been more likely to believe the defendant’s unwitting possession defense but for the evidence of the conviction). 2001See State v. Saunders, 91 Wash.App. 575, 580-81 , 958 P.2d 364 (1998) (Admission of defendant's prior drug conviction was not harmless where the jury would have been more likely to believe the defendant's unwitting possession defense but for the evidence).	1	2
State v. Birdwellgreen washctapp · 1972 · cited in 1 Washington opinions naming this issue, 2021–2021 1 sentence 2021App. 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.	1	1
State v. McNealgreen wash · 2002 · cited in 1 Washington opinions naming this issue, 2020–2020 1 sentence 2020See State v. McNeal, 145 Wn.2d 352, 362 , 37 P.3d 280 (2002) (holding that a legitimate trial strategy cannot serve as a basis for an ineffective assistance of counsel claim).	1	1
State v. McNealgreen wash · 2002 · cited in 1 Washington opinions naming this issue, 2020–2020 1 sentence 2020See State v. McNeal, 145 Wn.2d 352, 362 , 37 P.3d 280 (2002) (holding that a legitimate trial strategy cannot serve as a basis for an ineffective assistance of counsel claim).	1	1
State v. Maygreen washctapp · 2000 · cited in 1 Washington opinions naming this issue, 2001–2001	1	1
State v. Maygreen washctapp · 2000 · cited in 1 Washington opinions naming this issue, 2001–2001	1	1
State v. Janesgreen washctapp · 1992 · cited in 1 Washington opinions naming this issue, 1998–1998	1	1

Distinguished, questioned or overruled (0)

Case	Negative	Cited
No negative-treatment citations attached to this issue in Washington. Read the followed side critically anyway.

Also cited on this issue (36)

Case	Cited	Years
State v. Balzer green washctapp · 1998 2 sentences 2016State v. Balzer, 91 Wn. 2014State v. Staley, 123 Wn.2d 794 , 799 -800, 872 P. 2d 502 ( 1994); State v. Balzer, 91 Wn.	4	2010–2016
State v. Carter green washctapp · 2005 2 sentences 2014State v. Carter, 127 Wn. 2014Carter, 127 Wn.	4	2011–2014
State v. George green washctapp · 2008 2 sentences 2021George, 146 Wn. 2017Santos relies on George, where the court held that an unwitting possession instruction was proper. 146 Wn.	3	2014–2021
State v. Bradshaw green wash · 2004 2 sentences 2019State v. Bradshaw, 152 Wn.2d 528, 538 , 98 P.3d 1190 (2004). 2016However, this argument is directly contrary to controlling case law, including State v. Bradshaw, 152 Wn.2d 528, 538 , 98 P.3d 1190 (2004) and State v. Cleppe, 96 Wn.2d 373, 380 , 635 P.2d 435 (1981).	3	2015–2019
State v. Sundberg green wash · 2016 2 sentences 2018State v. Sundberg, 185 Wn.2d at 149 . 2018State v. Sundberg, 185 Wn.2d at 149 .	2	2018–2018
State v. Staley green · 1994 2 sentences 2015The unwitting possession defense “assumes that the State has established a prima facie showing of ‘possession.’” Staley, 123 Wn.2d at 800 . 2014State v. Staley, 123 Wn.2d 794 , 799 -800, 872 P. 2d 502 ( 1994); State v. Balzer, 91 Wn.	2	2014–2015
McDevitt v. HARBORVIEW MEDICAL CENTER green wash · 2011 2 sentences 2011App. 677, 679-81 , 243 P.3d 936 (2010), review denied, 171 Wn.2d 1013 , 249 P.3d 1029 (2011), the case again largely turned on the jury’s credibility determinations between Johnson, who presented an unwitting possession defense, and the arresting officers. 2011Venegas, 155 Wash.App. at 526-27 , 228 P.3d 813 . ¶ 42 Finally, in State v. Johnson, 158 Wash.App. 677, 679-81 , 243 P.3d 936 (2010), review denied, No. 85486-6, 171 Wash.2d 1013 , 249 P.3d 1029 (Wash. Mar. 30, 2011) the case again largely turned on the jury's credibility determinations between Johnson, who presented an unwitting possession defense, and the arresting officers.	2	2011–2011
State v. Johnson green washctapp · 2010 2 sentences 2011App. 677, 679-81 , 243 P.3d 936 (2010), review denied, 171 Wn.2d 1013 , 249 P.3d 1029 (2011), the case again largely turned on the jury’s credibility determinations between Johnson, who presented an unwitting possession defense, and the arresting officers. 2011Venegas, 155 Wash.App. at 526-27 , 228 P.3d 813 . ¶ 42 Finally, in State v. Johnson, 158 Wash.App. 677, 679-81 , 243 P.3d 936 (2010), review denied, No. 85486-6, 171 Wash.2d 1013 , 249 P.3d 1029 (Wash. Mar. 30, 2011) the case again largely turned on the jury's credibility determinations between Johnson, who presented an unwitting possession defense, and the arresting officers.	2	2011–2011
Spokane County v. Miotke green wash · 2011 2 sentences 2011App. 677, 679-81 , 243 P.3d 936 (2010), review denied, 171 Wn.2d 1013 , 249 P.3d 1029 (2011), the case again largely turned on the jury’s credibility determinations between Johnson, who presented an unwitting possession defense, and the arresting officers. 2011Venegas, 155 Wash.App. at 526-27 , 228 P.3d 813 . ¶ 42 Finally, in State v. Johnson, 158 Wash.App. 677, 679-81 , 243 P.3d 936 (2010), review denied, No. 85486-6, 171 Wash.2d 1013 , 249 P.3d 1029 (Wash. Mar. 30, 2011) the case again largely turned on the jury's credibility determinations between Johnson, who presented an unwitting possession defense, and the arresting officers.	2	2011–2011
Dawkins v. State green md · 1988 2 sentences 2000See State v. Michlitsch, 438 N.W.2d 175 (N.D. 1989) (adopting defense of unwitting possession); Dawkins v. State, 313 Md. 638 , 547 A.2d 1041 (1988) (choosing to infer a knowledge requirement in its statute, rather than adopt Washington’s unwitting possession defense). 2000See State v. Michlitsch, 438 N.W.2d 175 (N.D. 1989) (adopting defense of unwitting possession); Dawkins v. State, 313 Md. 638 , 547 A.2d 1041 (1988) (choosing to infer a knowledge requirement in its statute, rather than adopt Washington’s unwitting possession defense).	2	2000–2000
Pearson v. Callahan green scotus · 2009 2 sentences 2021Supporting amicus also notes the creation of the unwitting possession defense is a “judge-made rule” and “‘[r]evisiting precedent is particularly appropriate where, as here, a departure would not upset expectations, the precedent consists of a judge-made rule . . . , and experience has pointed up the precedent’s shortcomings.”’ Br. of Amicus Curiae Inst. for Justice at 13 n.10 (alterations in original) (quoting Pearson v. Callahan, 555 U.S. 223, 233 , 129 S. Ct. 808 , 172 L. 2021Supporting amicus also notes the creation of the unwitting possession defense is a “judge-made rule” and “‘[r]evisiting precedent is particularly appropriate where, as here, a departure would not upset expectations, the precedent consists of a judge-made rule . . . , and experience has pointed up the precedent’s shortcomings.”’ Br. of Amicus Curiae Inst. for Justice at 13 n.10 (alterations in original) (quoting Pearson v. Callahan, 555 U.S. 223, 233 , 129 S. Ct. 808 , 172 L.	1	2021–2021
State v. A.M. green wash · 2019 2 sentences 2021Due Process Claim In State v. A.M., the defendant argued that the unwitting possession defense to unlawful possession was an unconstitutional burden-shifting scheme that violated her due process rights. 194 Wn.2d 33, 36 , 448 P.3d 35 (2019). 2021Due Process Claim In State v. A.M., the defendant argued that the unwitting possession defense to unlawful possession was an unconstitutional burden-shifting scheme that violated her due process rights. 194 Wn.2d 33, 36 , 448 P.3d 35 (2019).	1	2021–2021
State v. Callahan green wash · 1969 1 sentence 2016See Cleppe, 96 Wn.2d at 377-81 ; Callahan, 77 Wn.2d at 32 .	1	2016–2016
State v. Houf green wash · 1992 2 sentences 2015App. 38, 42 , 163 P.3d 799 (2007) (holding that a court may not require restitution beyond the crime charged if the defendant did not expressly agree to pay restitution or if the state failed to establish a causal connection between the crime and damages); State v. Houf. 120 Wn.2d 327, 333 , 841 P.2d 42 (1992) (finding that sentencing decisions should only consider the actual crime of which the defendant has been convicted, his or her criminal history, and the circumstances surrounding the crime). 16 No. 70806-6-1/17 to find, by a preponderance of the evidence, that the defendant unwittingly p 2015App. 38, 42 , 163 P.3d 799 (2007) (holding that a court may not require restitution beyond the crime charged if the defendant did not expressly agree to pay restitution or if the state failed to establish a causal connection between the crime and damages); State v. Houf. 120 Wn.2d 327, 333 , 841 P.2d 42 (1992) (finding that sentencing decisions should only consider the actual crime of which the defendant has been convicted, his or her criminal history, and the circumstances surrounding the crime). 16 No. 70806-6-1/17 to find, by a preponderance of the evidence, that the defendant unwittingly p	1	2015–2015
State v. Buford green washctapp · 1998 1 sentence 2015Buford, 93 Wn.	1	2015–2015
State v. Osborne green washctapp · 2007 2 sentences 2015A criminal defendant is not entitled to an unwitting possession instruction unless the evidence presented at trial is sufficient to permit a reasonable juror 5See State v. Osborne. 140 Wn. 2015App. 38, 42 , 163 P.3d 799 (2007) (holding that a court may not require restitution beyond the crime charged if the defendant did not expressly agree to pay restitution or if the state failed to establish a causal connection between the crime and damages); State v. Houf. 120 Wn.2d 327, 333 , 841 P.2d 42 (1992) (finding that sentencing decisions should only consider the actual crime of which the defendant has been convicted, his or her criminal history, and the circumstances surrounding the crime). 16 No. 70806-6-1/17 to find, by a preponderance of the evidence, that the defendant unwittingly p	1	2015–2015
Strickland v. Washington green scotus · 1984	1	2014–2014
State v. Riker green wash · 1994 2 sentences 2014State v. Riker. 123 Wn.2d 351, 368 , 869 P.2d 43 (1994). -13- No. 71644-1-1/14 A review of the record indicates that defense counsel's decision not to accept an unwitting possession instruction was a legitimate trial tactic. 2014State v. Riker. 123 Wn.2d 351, 368 , 869 P.2d 43 (1994). -13- No. 71644-1-1/14 A review of the record indicates that defense counsel's decision not to accept an unwitting possession instruction was a legitimate trial tactic.	1	2014–2014
Miranda v. Arizona green scotus · 1966	1	2014–2014
State v. Teal green wash · 2004 1 sentence 2014Teal, 152 Wn.2d at 339 .	1	2014–2014
State v. Smith green washctapp · 2013	1	2014–2014
State v. George neutral washctapp · 2008 2 sentences 2014App. 906 , 193 P.3d 693 (2008), Mr. Cantrell argues defense counsel's decision to not request an unwitting possession instruction was not tactical because it was based on an misunderstanding of the law specifically, that defense counsel did not understand the unwitting possession defense applies in constructive possession cases. 2014App. 906 , 193 P.3d 693 (2008), Mr. Cantrell argues defense counsel's decision to not request an unwitting possession instruction was not tactical because it was based on an misunderstanding of the law specifically, that defense counsel did not understand the unwitting possession defense applies in constructive possession cases.	1	2014–2014
State v. Foster green wash · 1998	1	2013–2013
State v. Foster green wash · 1998	1	2013–2013
State v. Carter green washctapp · 2005	1	2011–2011
State v. Venegas green washctapp · 2010	1	2011–2011
State v. Venegas green washctapp · 2010	1	2011–2011
State v. Johnson green washctapp · 2010	1	2011–2011
State v. Anderson green wash · 2000	1	2001–2001
State v. Anderson green wash · 2000	1	2001–2001
State v. Anderson green washctapp · 1999	1	2001–2001
State v. Vike green wash · 1994	1	1999–1999
State v. Baldwin green washctapp · 1992	1	1999–1999
State v. Chapin green washctapp · 1994	1	1998–1998
Alabama v. McCurley green scotus · 1982	1	1989–1989
Thompson v. Woltenberg green scotus · 1982	1	1989–1989

Statutes the citing opinions construe

WA § Wash. Rev. Code § 2.06.040 (14) WA § Wash. Rev. Code § 69.50.4013 (13) WA § Wash. Rev. Code § 69.50.401 (7)

Counted by distinct opinions that both name this issue and are annotated to the section; sections every opinion cites regardless of issue are not filtered here, so read the counts against the total above.

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