Opinion
No. 62649-3-I.
February 1, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-1-01337-1, Palmer Robinson, J., entered October 22, 2008.
Affirmed by unpublished opinion per Dwyer, A.C.J., concurred in by Becker and Leach, JJ.
Jose Anaya was charged with possession with intent to deliver a controlled substance, in violation of RCW 69.50.401, after police officers found him in a public park with two rocks of cocaine. At trial, Anaya admitted that he intended to share the cocaine. Apparently, neither he nor his trial attorney knew that intent to deliver includes the intent to share. Anaya appeals from the judgment entered on the jury's guilty verdict, contending that because his trial attorney was unaware of the legal definition of deliver, he received ineffective assistance of counsel. Because Anaya fails to show that his attorney's performance prejudiced his defense, we affirm.
I
On February 4, 2008, officers with the Seattle Police Department observed Anaya engaging in what appeared to be narcotics transactions in Victor Steinbrueck Park. Anaya was subsequently charged with possession with intent to deliver a controlled substance. At trial, the officer who had conducted surveillance of Anaya testified that he observed Anaya give white rocks to three different men in exchange for money. The officer who arrested Anaya after receiving the surveillance information testified that, as he approached, Anaya dropped what appeared to be two rocks of cocaine onto the sidewalk. Laboratory analysis later confirmed that this substance was cocaine. The arresting officer further testified that he found $40 in Anaya's pants pocket.
Anaya also testified at trial. In so doing, he provided a different account of the events leading to his arrest. He testified that, upon arriving at the park, he purchased a rock of cocaine worth $10 and placed $40 in change into his pants pocket. Anaya further testified that, after purchasing the cocaine, he gave a cigarette butt to another man. Defense counsel asked Anaya why the arresting officer observed him drop two pieces of cocaine if he had purchased only one. Anaya responded that he had broken one large piece into two smaller pieces in order to share the cocaine with someone who had a pipe so that he could use the pipe himself.
During closing argument, the State emphasized the police officers' experience and the reliability of their testimony regarding the three separate drug transactions. The State concluded by explaining that, even if the jury believed Anaya's version of events, the jurors should nevertheless find Anaya guilty of possessing cocaine with the intent to deliver because Anaya had admitted that he intended to share the cocaine with someone else and sharing falls within the definition of deliver.
The trial court instructed the jury on the elements of the charged offense and of the lesser included offense of possession of a controlled substance. The critical difference between the two offenses is the intent to deliver element. During deliberations, the jury requested clarification on the definition of intent to deliver; specifically, whether sharing constituted delivering. Defense counsel informed the court that she did not think that there was a legal definition of deliver. The court then produced the Washington Pattern Jury Instruction in which deliver or delivery is defined as "the actual or attempted transfer of a controlled substance from one person to another." 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 50.07, at 960 (3d ed. 2008); Defense counsel objected to providing the jury with the additional instruction but the court overruled the objection and so instructed the jury.
The jury found Anaya guilty as charged. He appeals.
II
Anaya contends that his trial attorney provided ineffective assistance because she was unaware of the legal definition of deliver in a case where the critical issue was whether Anaya intended to deliver a controlled substance. However, in order to establish ineffective assistance of counsel, a defendant must show that counsel's performance (1) was deficient and (2) prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). It is unnecessary to address both prongs of the Strickland test if the defendant makes an inadequate showing as to either prong. State v. Standifer, 48 Wn. App. 121, 126, 737 P.2d 1308 (1987). "The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Strickland, 466 U.S. at 697. Thus, we address only the latter question.
Prejudice occurs where there is a reasonable probability that, but for the deficient performance, the outcome of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). The defendant bears the burden of showing prejudice based on the record developed in the trial court. McFarland, 127 Wn.2d at 337. Speculative or conclusory arguments are not sufficient to demonstrate that the outcome of the proceeding would have been different. State v. Goldberg, 123 Wn. App. 848, 853, 99 P.3d 924 (2004).
Anaya's arguments are speculative. Nothing in the trial record indicates that there is a reasonable probability that Anaya would not have been convicted had his attorney known the definition of deliver. Anaya contends that because a defendant's attorney is expected to consult with her client and assist her client in deciding whether to testify, his attorney could have encouraged him not to testify or, at least, steered him away from testifying about his intent to share the drugs. However, the record is silent as to whether Anaya would have testified had he been informed of the legal definition of deliver. Nor does the record indicate that his counsel knew in advance that Anaya planned to admit that he intended to share the drugs.
Moreover, accepting Anaya's testimony as being truthful, it is difficult to conceive of how his testimony as to his intent would not have arisen during cross-examination, even had his attorney attempted to steer clear of the subject on direct examination.
Anaya further contends that there is a reasonable probability that, without his admission, he would not have been convicted. To support this claim, he baldly asserts that prior to being instructed on the definition of deliver the jury "obviously harbored some doubt." The record contains the jury note inquiring about the definition of deliver but, of course, it does not indicate the weight the jury placed on this definition. Even without Anaya's testimony, we are satisfied that overwhelming evidence was introduced at trial from which the jury could reasonably find beyond a reasonable doubt that Anaya was in possession of cocaine with the intent to deliver some or all of it to another person. It is purely speculative to conclude that the jury would have ignored the State's evidence and acquitted Anaya but for his counsel's allegedly deficient performance. Thus, Anaya has failed to show that he received ineffective assistance of counsel.
Affirmed.
We concur: