Opinion
65467-5-I
03-05-2012
STATE OF WASHINGTON, Respondent, v. FELIZ RAMIREZ WILHITE, Appellant.
UNPUBLISHED OPINION
Leach, Judge.
Constructive possession of drugs found on premises is established if the person charged with possession had dominion and control over the premises. Because the evidence in this case was sufficient to support an inference that Felix Wilhite had dominion and control over premises where cocaine was found and because his challenges to his conviction and sentence either lack merit or need not be considered, we affirm his conviction for possession of cocaine with intent to deliver.
Both the superior court record and the pleadings on appeal refer to Mr. Wilhite variously as "Feliz" and "Felix." We refer to him as "Felix" throughout this opinion.
FACTS
In November 2009, police executing a search warrant at a Burien residence found and opened three locked safes in an upstairs bedroom. Two were located in the bedroom closet. The third was on the floor next to the bed. The latter safe contained $5,000 in cash, a digital scale, and three baggies of a substance that tested positive for cocaine. A safe in the closet contained $2,920. Based on evidence linking Felix Wilhite to the bedroom, the State charged him with possession of cocaine with intent to deliver.
At trial, Detective Todd Salter of the King County Sheriff's Office testified that the room where police found the cocaine was furnished and appeared to be lived-in. There were clothes in the closet, and the trash can was full. A copy of Wilhite's expired temporary driver's license was in a file folder next to the safe containing the cocaine. The license had expired in October 2008 and listed an address different than the one for the searched residence. The detective also found a receipt for a Western Union money order sent on September 29, 2009. The receipt listed Wilhite as the sender and his address as 825 South 176th Street—the address of the searched residence.
The bedroom also contained an envelope postmarked August 11, 2009. It was addressed to Wilhite's father, Felix Ramirez, at the 176th Street address. A handwritten letter to "Lil Felix" and a flyer for an October 17, 2009, event honoring Wilhite's father were also found in the room. In other parts of the house, officers found a copy of Wilhite's birth certificate and a postcard addressed to him at the 176th Street address. The postcard was postmarked October 9, 2009.
Detective Salter testified that the cocaine found in the safe had a street value of $7,200 to $9,000 and that the amount was much larger than an average user would possess. When the prosecutor asked Salter what purpose that amount of cocaine would commonly be possessed for, defense counsel objected on the grounds that the question called for an ultimate conclusion and invaded the province of the jury. The prosecutor clarified that the he was asking the question based on the detective's training and experience, and the court overruled the objection. The detective then testified that "the amount of cocaine . . ., the money we found, the scale we found, . . . clearly indicated to me that this stuff was being sold."
Detective Salter also testified that Stephen Huff, who lived at the Burien residence at the time of the search, told him Wilhite was one of his roommates. The court sustained a hearsay objection to a subsequent question regarding which room Huff identified as Wilhite's. The court instructed the jury "to disregard the witness's testimony with respect to witness Huff and who lived in the subject room."
The jury convicted Wilhite as charged. At sentencing, the court ordered Wilhite to pay $1,048.28 in court costs. This sum reflected the cost of sending two detectives to Mexico to extradite Wilhite for trial. Wilhite appeals.
DECISION
Wilhite first contends the State presented insufficient evidence to prove, beyond a reasonable doubt, that he possessed cocaine. Evidence is sufficient if, when viewed in a light most favorable to the State, it permits any rational trier of fact to find the elements of the crime beyond a reasonable doubt. A claim of insufficient evidence admits the truth of the evidence and all reasonable inferences that can be drawn from that evidence. Circumstantial evidence and direct evidence are equally reliable, and we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. Applying these principles here, we conclude the evidence was sufficient to prove that Wilhite possessed cocaine beyond a reasonable doubt.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Salinas, 119 Wn.2d at 201.
State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Walton, 64 Wn.App. 410, 415–16, 824 P.2d 533 (1992).
The State's theory at trial was that Wilhite constructively possessed the cocaine found in the bedroom of the 176th Street residence. Constructive possession of drugs found on premises "is established when the person charged with possession has dominion and control over either the drug or the premises."Evidence of temporary residence or the mere presence of personal possessions is insufficient to establish dominion and control. There must be evidence demonstrating "that the defendant resides at the premises and is not merely visiting." Whether a defendant had dominion and control over premises is determined by considering the totality of the circumstances.
State v. Amezola, 49 Wn.App. 78, 86, 741 P.2d 1024 (1987) (citation omitted).
State v. Alvarez, 105 Wn.App. 215, 222, 19 P.3d 485 (2001).
Amezola, 49 Wn.App. at 87; see Alvarez, 105 Wn.App. at 221-22.
Alvarez, 105 Wn.App. at 221.
The totality of the circumstances in this case supports an inference that Wilhite had dominion and control over the bedroom where the cocaine was found. Detective Salter testified without objection that an occupant of the 176th Street residence told him Wilhite resided there at the time of the search. The bedroom containing the cocaine showed signs of current occupancy, including recent mail, a full trash can, and men's clothing in the closet. Documents in the room, including Wilhite's expired driver's license, the recent money order receipt, a flyer for a recent event honoring Wilhite's father, and the letter to "Lil Felix" supported an inference that the room was Wilhite's. The safe containing the cocaine, digital scale, and $5,000 was found on the bedroom floor next to the bed and Wilhite's license.
Wilhite's claim that this testimony was "apparently stricken" is not supported by the record. The defense did not object to this testimony. A subsequent objection, ruling, and motion to strike only concerned the detective's testimony that Wilhite's roommate said Wilhite lived in the bedroom where police found the cocaine.
State v. Weaver, 38 Wn.App. 17, 19, 683 P.2d 1136 (1984) (evidence of dominion and control includes letters and other documents bearing the defendant's name and the address of the premises and the defendant's driver's license).
Viewed in a light most favorable to the State, this evidence was sufficient to support a finding that Wilhite had constructive possession of the bedroom and its contents, including the cocaine.
Contrary to Wilhite's assertions, this case bears no resemblance to State v. Knapstad, 107 Wn.2d 346, 348, 729 P.2d 48 (1986) (insufficient evidence of constructive possession where drugs were found in attic of house rented by defendant's brother, defendant's car was parked at the residence on three occasions, receipt bearing defendant's name was found in a bedroom and showed a different address for defendant, and ticket bearing defendant's name was found in common area and showed different address); State v. Knapstad, 41 Wn.App. 781, 783-84, 706 P.2d 238 (1985).
Wilhite next contends his counsel was ineffective for failing to object when, on three occasions, the prosecutor and Detective Salter referred to the bedroom containing the cocaine as "the Defendant's" or "Mr. Wilhite's." To establish ineffective assistance of counsel, Wilhite must demonstrate both deficient performance and a reasonable probability that, but for counsel's omissions, the result of the proceeding would have been different. He must overcome a strong presumption of effective assistance and demonstrate "in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel."
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
McFarland, 127 Wn.2d at 335.
McFarland, 127 Wn.2d at 336.
Wilhite has not carried this burden. He fails to demonstrate the absence of any tactical basis for counsel's failure to object. Whether to object to evidence is a classic example of a tactical decision. In this case, defense counsel could have reasonably concluded that objecting to the few references to "Wilhite's" bedroom would have done more harm than good. Furthermore, there is no reasonable probability that the references affected the verdict. The court instructed the jury that the lawyers' statements were not evidence and that they should disregard "any remark, statement, or argument that is not supported by the evidence." In addition, the evidence of occupancy pointed solely and strongly to Wilhite. He has not overcome the strong presumption that he received effective assistance of counsel.
State v. Madison, 53 Wn.App. 754, 763, 770 P.2d 662 (1989).
Wilhite also contends the trial court abused its discretion in allowing Detective Salter to testify that, based on his "training and experience, the amount of cocaine . . . that we found, the money we found, the scale we found, . . . clearly indicated to me that this stuff was being sold." Wilhite claims this testimony constituted an impermissible opinion on guilt. We disagree.
The general rule is that no witness may offer an opinion regarding the defendant's guilt because such opinions invade the province of the jury. But Washington courts have "expressly declined to take an expansive view of claims that testimony constitutes an opinion on guilt." Instead, our courts have held that opinion testimony, including testimony embracing an ultimate issue, is admissible if it does not directly comment on the defendant's guilt, is helpful to the jury, and is based on inferences from the evidence. The detective's testimony in this case did not directly comment on Wilhite's guilt. It was also based on inferences from the evidence and assisted the jury in understanding that evidence. The court did not abuse its discretion in admitting it.
City of Seattle v. Heatley, 70 Wn.App. 573, 577, 854 P.2d 658 (1993); State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001).
Heatley, 70 Wn.App. at 579; State v. Cruz, 77 Wn.App. 811, 815, 894 P.2d 573 (1995).
Heatley, 70 Wn.App. at 578.
See Cruz, 77 Wn.App. at 815 (detective's testimony about typical heroin transaction was not opinion on defendant's guilt).
A case cited by Wilhite—State v. Montgomery —is distinguishable. In Montgomery, the State charged the defendant with possessing pseudoephedrine with intent to manufacture methamphetamine. At trial, police officers and a forensic chemist expressed their personal belief that the defendant and an accomplice "'were, in fact, buying ingredients to manufacture methamphetamine, '" "'purchased [the items] for manufacturing, '" and "'possessed [pseudoephedrine] with intent.'" Because these opinions explicitly commented on the defendant's intent and "went to the core issue and the only disputed element" in the case, they were improper. The court noted that it would have been proper for the detective to testify that "[t]he chemicals possessed and the manner in which they were obtained was consistent with intent to manufacture methamphetamine."
163 Wn.2d 577, 183 P.3d 267 (2008).
Montgomery, 163 Wn.2d at 588.
Montgomery, 163 Wn.2d at 594-95.
Montgomery, 163 Wn.2d at 594 n.8.
Detective Salter's testimony, by contrast, did not go to the core issue in this case (constructive possession) or the only disputed element. Nor did Salter explicitly comment on Wilhite's intent. While it would have been better if Salter had not used the words "to me, " his testimony was otherwise proper and distinguishable from the improper statements in Montgomery. Furthermore, because the challenged statements were essentially cumulative of the detective's other unchallenged testimony, any error was harmless beyond a reasonable doubt.
See Montgomery, 163 Wn.2d at 594.
Last, Wilhite contends the trial court exceeded its authority in requiring him to pay extradition costs of $1,048.28. He contends RCW 10.01.160(2) limits such costs to $100.00. The statute provides in pertinent part that "[c]osts for preparing and serving a warrant for failure to appear may not exceed one hundred dollars." In its response, the State points out that the statute nowhere mentions extradition costs and that extradition and the service of warrants for failure to appear are distinct processes. It concludes that the statute does not apply to extradition costs.
Compare CrR 2.2(b)(4), (c), (d) (providing process for issuance of arrest warrants following failure to appear), with ch. 10.88 RCW (providing process for extradition); see also State v. Cintron-Cartegena, 79 Wn.App. 600, 603, 904 P.2d 781 (1995) ("Although another state may hold a defendant through the provisions of the Uniform Criminal Extradition Act, Ch. 10.88 RCW, a warrant of arrest has no independent validity beyond the borders of the state by whose authority it is issued.").
In his reply brief, Wilhite does not dispute the State's observations about the statute or the difference between extradition proceedings and failure to appear warrants. Instead, he argues for the first time that the trial court lacked statutory authority to award any costs for extradition. We need not consider claims raised for the first time in a reply brief. Moreover, Wilhite's argument overlooks a decision from this court-State v. Lass —upholding the imposition of extradition costs under RCW 10.01.160.
State v. Wilson, 162 Wn.App. 409, 417 n.5, 253 P.3d 1143 (2011), review denied, No. 86336-9 (Wash. Nov. 28, 2011).
55 Wn.App. 300, 307-08, 777 P.2d 539 (1989).
Wilhite also overlooks the fact that RCW 10.01.160 is based on an Oregon statute, that "we consider as authoritative that state's construction of [its statute], " and that Oregon courts have held that extradition costs are recoverable under their statute. Utter v. Dep't of Soc. & Health Servs., 140 Wn.App. 293, 305, 309-10, 165 P.3d 399 (2007); see also Maroney v. State, 849 N.E.2d 745, 749 (Ind.Ct.App. 2006) ("The majority of jurisdictions having considered the question regarding extradition expenses as costs have held that the definition of prosecution costs includes extradition costs.").
Affirmed.