State Of Washington, Respondent V. Jeffrey J. Palmer, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53376-6-II
Respondent,
v.
JEFFREY J. PALMER, UNPUBLISHED OPINION
Appellant.
LEE, C.J. — Jeffrey J. Palmer appeals his convictions for possession of a controlled
substance by a jail inmate and possession of a controlled substance—methamphetamine. The State
concedes that Palmer’s convictions should be reversed. We accept the State’s concessions.
Accordingly, we reverse Palmer’s convictions for possession of a controlled substance by a jail
inmate and possession of a controlled substance—methamphetamine, and we remand for the trial
court to dismiss with prejudice the possession of a controlled substance by a jail inmate charge
and vacate Palmer’s possession of a controlled substance—methamphetamine conviction.
FACTS
After Palmer was arrested after allegedly trespassing on a hospital’s property, the State
charged Palmer with possession of a controlled substance by prisoner or jail inmate, possession of
a controlled substance—methamphetamine, criminal trespass in the second degree, and
obstructing a law enforcement officer.
Filed
Washington State
Court of Appeals
Division Two
November 16, 2021

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At Palmer’s jury trial, Deputy Alan Earhart of the Clark County Sheriff’s Office, testified
that he was dispatched to the hospital on April 5. When Deputy Earhart arrived at the hospital, he
placed Palmer under arrest.
When Deputy Earhart searched Palmer incident to the arrest, Deputy Earhart found a glass
pipe, a black plastic container from a marijuana dispensary, and some aluminum foil that had burn
marks on it. Deputy Earhart then transported Palmer to the Clark County jail parking lot. In the
parking lot, Deputy Earhart filled out a form called a “Prebook,” which is needed to book someone
into the Clark County jail, and a probable cause statement. 2 Verbatim Report of Proceedings
(VRP) (May 20, 2019) at 182. To complete the booking process, Deputy Earhart needed to walk
Palmer into a “sally port” and wait in line for booking. 2 VRP (May 20, 2019) at 182. While
Deputy Earhart was trying to fill out the forms, Palmer stated that he urgently needed to use the
restroom. Deputy Earhart asked him if he could wait for 15 minutes, and Palmer stated that he
could not. In order to accommodate Palmer’s need to urinate, Deputy Earhart did not finish his
forms but walked Palmer inside the jail.
Deputy Earhart and corrections Deputy Hatcher took Palmer to the bathroom. They had a
visual of Palmer the entire time. Deputy Earhart observed that “[Palmer] stood in front of the
toilet; he moved around a lot. He appeared to be positioning things at his—I’ll just say his groin
or crotch area, moved around a lot. His pants were unzipped at one point, and he urinated very,
very little.” 2 VRP (May 20, 2019) at 184. The officers stopped Palmer because he appeared to
be intent on doing something other than urinating. Deputy Earhart told Palmer that it was a felony
crime for an inmate to smuggle contraband into the jail. The corrections deputy decided that based
on the finding of the drug paraphernalia and Palmer’s actions in the bathroom, a strip search was

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necessary. The corrections deputy conducted the strip search and handed Deputy Earhart a small
black canister containing marijuana, and a blue glove containing two “baggies” of marijuana. 2
VRP (May 20, 2019) at 185. After these items were discovered, Deputy Earhart looked at the
items he had found on Palmer at the hospital. The canister that Deputy Earhart had found during
the initial search contained crystal meth.1
After the strip search, Deputy Earhart could not book Palmer into the jail until Palmer got
a medical clearance because Palmer told him that he had eaten a razor blade. Despite not seeing
Palmer with a razor blade during the two hours that Deputy Earhart had been with Palmer, Deputy
Earhart took Palmer back to the hospital. A hospital x-ray showed no razor blade present.
When they got back into the patrol car, Palmer showed Deputy Earhart some white wire.
The end of the wire was missing, and Palmer stated that he swallowed it. Deputy Earhart found
the end of the wire tucked between Palmer’s body and the waistband of his pants. Then Palmer
claimed that there were two wires and that he had swallowed the other one. Deputy Earhart called
the hospital staff and asked them that if there were other pieces of wire missing, and the hospital
staff answered in the negative. Deputy Earhart took Palmer back to the Clark County jail for
booking.
The jury found Palmer guilty of possession of a controlled substance by prisoner or jail
inmate, possession of a controlled substance—methamphetamine, and obstructing a law
enforcement officer. The jury found Palmer not guilty of criminal trespass in the second degree.
1 The Washington State Patrol Crime Lab tested the substance and confirmed that it was
methamphetamine.

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The trial court imposed a standard range sentence of 21 months confinement. Palmer
appeals.
ANALYSIS
A. POSSESSION OF A CONTROLLED SUBSTANCE BY AN INMATE
Palmer argues that “[t]he government failed to establish Mr. Palmer was confined in a
county or local correctional institution when marijuana was found on him, as required by RCW
9.94.041(2).” Br. of Appellant at 30 (boldface omitted). Palmer contends that “[a]t no time prior
to the discovery of marijuana on his body was Mr. Palmer booked into the county jail or otherwise
transferred into the custody of the institution.” Br. of Appellant at 35-36. The State concedes that
there is insufficient evidence to sustain Palmer’s conviction for being a prisoner or jail inmate in
possession of marijuana. We accept the State’s concession.
1. Legal Principles
We review questions of statutory interpretation de novo. State v. Bao Dinh Dang, 178
Wn.2d 868, 874, 312 P.3d 30 (2013). “The purpose of statutory interpretation is to determine and
carry out the intent of the legislature.” State v. Sweat, 180 Wn.2d 156, 159, 322 P.3d 1213 (2014)
(citing State v. Alvarado, 164 Wn.2d 556, 561-62, 192 P.3d 345 (2008)). “‘Statutory interpretation
begins with the statute’s plain meaning.’” State v. Derenoff, 182 Wn. App. 458, 463, 332 P.3d
1001 (2014) (quoting Lake v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526, 243 P.3d 1283
(2010). We evaluate the plain meaning of the statute “from the ordinary meaning of the language
at issue, the context of the statute in which that provision is found, related provisions, and the
statutory scheme as a whole.” State v. Engel, 166 Wn.2d 572, 578, 210 P.3d 1007 (2009) (citing
State v. Jacobs, 154 Wn.2d 596, 600-01, 115 P.3d 281 (2005).

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RCW 9.94.041 (Narcotic drugs, controlled substances, alcohol, marijuana, other
intoxicant, cell phone, or other form of electronic telecommunications device—Possession, etc.,
by prisoners—Penalty) states:
(2) Every person confined in a county or local correctional institution who,
without legal authorization, while in the institution or while being conveyed to or
from the institution, or while under the custody or supervision of institution
officials, officers, or employees, or while on any premises subject to the control of
the institution, knowingly possesses or has under his or her control any narcotic
drug or controlled substance, as defined in chapter 69.50 RCW, alcohol, marijuana,
or other intoxicant, or a cell phone or other form of an electronic
telecommunications device, is guilty of a class C felony.
The plain language of the statute shows that RCW 9.94.041(2) pertains to those who are
“confined” in a county or local correctional institution. RCW 9.94.041(2). The term is not defined
in the statute. The dictionary defines “confined” as “kept in confines.” WEBSTER’S THIRD
INTERNATIONAL DICTIONARY 476 (1993). Therefore, the RCW 9.94.041(2) applies to those who
are kept in the confines of a county or local correctional institution.
A challenge to the sufficiency of the evidence to convict is a constitutional question this
court reviews de novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). Our Supreme
Court in Rich explained this court’s review on a sufficiency of the evidence challenge as follows:
The State bears the burden of proving all the elements of an offense beyond
a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d
368 (1970); U.S. CONST. amend. XIV; WASH. CONST. art. I, § 3. To determine
if sufficient evidence supports a conviction, we consider “ ‘whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’ ”
State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (plurality opinion) (some
emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979)). “[I]nferences based on circumstantial evidence must be
reasonable and cannot be based on speculation.” State v. Vasquez, 178 Wn.2d 1,
16, 309 P.3d 318 (2013). A “ ‘modicum’ ” of evidence does not meet this standard.
Jackson, 443 U.S. at 320.

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Id. Where there is insufficient evidence to support a necessary element of the crime, we will
reverse and remand to vacate the conviction and dismiss the charge with prejudice. See State v.
Smith, 155 Wn.2d 496, 498, 120 P.3d 559 (2005).
2. Insufficient Evidence To Convict
Here, under both the statute and the jury instructions, Palmer was not confined to a county
or local correctional institution. See RCW 9.94.041(2). Based on the record, there is no evidence
that Palmer was confined or kept in the confines of a county or local correctional institution at the
time that the marijuana was found on him. Deputy Earhart testified that he transported Palmer to
the Clark County jail parking lot. In the parking lot, Deputy Earhart needed to fill out a form called
a “Prebook” and a probable cause statement in order for Palmer to be booked in the Clark County
jail. 2 VRP (May 20, 2019) at 182. Also, in order to get booked, Deputy Earhart needed to walk
Palmer into a “sally port” and wait in line to be booked. 2 VRP (May 20, 2019) at 182. Deputy
Earhart completed neither requirement.
While Deputy Earhart was trying to fill out the forms, Palmer stated that he urgently needed
to use the restroom. In order to accommodate Palmer’s need to urinate, Deputy Earhart did not
finish his forms but walked him inside. Deputy Earhart and a corrections deputy took him to the
bathroom. While keeping watch over Palmer, Deputy Earhart and Deputy Hatcher noted that
Palmer was doing something other than urinating, so Deputy Hatcher conducted a strip search of
Palmer. Deputy Hatcher found marijuana on Palmer. After the strip search, Deputy Earhart could
not book Palmer into the jail but had to take Palmer back to the hospital because Palmer told

No. 53376-6-II
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Deputy Earhart that he had swallowed a foreign object. It was not until after the hospital visit that
Deputy Earhart took Palmer back to the Clark County jail for booking.
Even when the evidence is viewed in the light most favorable to the State, no rational trier
of fact could have found that Palmer was confined or kept in the Clark County jail at the time that
the marijuana was found. Palmer had not yet been booked at the jail and was taken by Deputy
Earhart, not the correctional deputy, to the hospital. Thus, we hold that there is insufficient
evidence to support Palmer’s conviction for possession of a controlled substance by prisoners or
jail inmate. Therefore, we reverse the conviction and remand to the trial court to dismiss the charge
with prejudice.
B. POSSESSION OF A CONTROLLED SUBSTANCE—METHAMPHETAMINE
Palmer also argues that his conviction for possession of a controlled substance—
methamphetamine is unconstitutional under State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021).
The State concedes that Palmer’s conviction is unconstitutional under Blake. We agree and reverse
Palmer’s conviction for possession of a controlled substance—methamphetamine.
In Blake, our Supreme Court held that RCW 69.50.4013(1), the statute criminalizing
simple possession, was unconstitutional. 197 Wn.2d at 186. Therefore, we accept the State’s
concession. Accordingly, we reverse Palmer’s conviction for possession of a controlled
substance—methamphetamine and remand to the trial court to vacate this conviction.2
We reverse Palmer’s convictions for possession of a controlled substance by a jail inmate
and possession of a controlled substance—methamphetamine, and we remand for the trial court to
2 Palmer also raised additional issues in his statement of additional grounds (SAG) under RAP
10.10. Because we reverse both of Palmer’s convictions, we do not address Palmer’s SAG claims.

No. 53376-6-II
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dismiss with prejudice the possession of a controlled substance by a jail inmate charge and vacate
Palmer’s possession of a controlled substance—methamphetamine conviction.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, C.J.
We concur:
Worswick, J.
Glasgow, J.