WPIC 52.01 Unwitting Possession
11 WAPRAC WPIC 52.01Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 52.01 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
April 2021 Update
Part VIII. Drugs and Controlled Substances
WPIC CHAPTER 52. Special Defenses—Uniform Controlled Substances Act
WPIC 52.01 Unwitting Possession
A person is not guilty of possession of a controlled substance if the possession is unwitting. Possession of a controlled substance is unwitting if a person [did not know that the substance was in [his] [her] possession] [or] [did not know the nature of the substance].
The burden is on the defendant to prove by a preponderance of the evidence that the substance was possessed unwittingly. Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true.
NOTE ON USE
Use this instruction in any case of possession of a controlled substance when there is evidence to support it. Use bracketed material as applicable. Appropriate instructions may have to be drafted for the particular case to present the issue of lack of knowledge of the nature of the substance involved. See the Comment below.
This instruction should only be given if requested by the defendant. State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013) (a defendant's constitutional right to control his or her defense prohibits the giving of instructions concerning defenses over the defendant's objections).
Unwitting possession is an affirmative defense that the defendant must prove by a preponderance of the evidence. See State v. Deer, 175 Wn.2d 725, 287 P.3d 539 (2012) (discussion of unwitting possession; the defendant has the burden of proof for an affirmative defense, which is preponderance of the evidence); State v. Bradshaw, 152 Wn.2d 528, 538, 98 P.3d 1190 (2004); State v. Hundley, 126 Wn.2d 418, 419 n.1, 895 P.2d 403 (1995) (suggesting, without directly holding, that the burden of proof is a preponderance of the evidence); State v. Wiley, 79 Wn.App. 117, 900 P.2d 1116 (1995).
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 … The defendant may also show that he did not know the nature of the substance he possessed.” State v. Staley, 123 Wn.2d 794, 799, 872 P.2d 502 (1994). The trial court in Staley had correctly rejected the defendant's request to instruct the jury that “fleeting, momentary, temporary, or unwitting” possession of cocaine is not unlawful, because the duration of control goes to establishing the fact of possession, and not whether such possession was “unwitting.” The proposed instruction therefore was inaccurate in telling the jury that momentary, temporary, or fleeting possession was lawful.
For a discussion on the burden of proof for defenses in general, see WPIC 14.00 (Defenses—Introduction).
[Current as of November 2019.]
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