Opinion
No. 37743-8-II.
April 14, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 08-1-00287-0, Robert A. Lewis, J., entered April 30, 2008.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton and Hunt, JJ .
UNPUBLISHED OPINION
A jury found Rickie Eugene Cellestine guilty of unlawful possession of a controlled substance. Cellestine appeals his conviction, arguing that sufficient evidence does not support it. In his statement of additional grounds (SAG), Cellestine also argues that he received ineffective assistance of counsel. Because sufficient evidence supports Cellestine's conviction and his counsel's assistance was effective, we affirm.
RAP 10.10 allows a criminal defendant/appellant to present issues in his appeal independently of his attorney's brief.
FACTS
On February 15, 2008, police officers executed a search warrant on a residence in Clark County, Washington. When officers entered, they found Cellestine and a woman in the living room and a teenage boy in a bedroom. Cellestine's Washington State identification card was found on a dresser in a second bedroom. And a large cardboard box containing adult male clothing and shoes, a letter addressed to Cellestine, drug paraphernalia, and a substance that field-tested positive for heroin was located in a third bedroom. After being advised of his Miranda rights, Cellestine told the officer that he had lived at the house for about three days and had used heroin the previous day. He denied any knowledge of the heroin found in the box.
Later testing confirmed that the substance police found was heroin.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
A jury found Cellestine guilty of one count of possession of a controlled substance as charged. Cellestine appeals.
ANALYSIS
Cellestine argues that the evidence was insufficient to prove beyond a reasonable doubt that he was guilty of possessing a controlled substance because the State failed to prove that he had actual or constructive possession of the controlled substance. We disagree.
Sufficiency of the evidence is a question of constitutional magnitude and can be raised for the first time on appeal. State v. Alvarez, 128 Wn.2d 1, 13, 904 P.2d 754 (1995). In determining whether sufficient evidence supports a conviction, we review "whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt." State v. Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134 (1990) (citing State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980)).
A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally reliable for purposes of drawing inferences. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact for purposes of resolving conflicting testimony and evaluating the persuasiveness of the evidence. State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997) (citing State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992)). In other words, credibility determinations are for the trier of fact and are not subject to our review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Possession of a Controlled Substance
To convict Cellestine of possession of a controlled substance, the State had to prove that he (1) unlawfully possessed (2) a controlled substance. RCW 69.50.4013. Heroin is a controlled substance. RCW 69.50.204(b)(13) (heroin is a schedule I controlled substance).
RCW 69.50.4013 states:
(1) It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter.
Possession of a controlled substance may be either actual or constructive. State v. Mathews, 4 Wn. App. 653, 656, 484 P.2d 942 (1971). Actual possession occurs when officers find a controlled substance in a person's physical possession. Mathews, 4 Wn. App. at 656 (citing State v. Callahan, 77 Wn.2d 27, 459 P.2d 400 (1969)). Constructive possession occurs when a person has dominion and control over either the controlled substance or the premises where the controlled substance is found. Mathews, 4 Wn. App. at 656. "The fact of temporary residence, personal possessions on the premises, or knowledge of the presence of the drug without more is insufficient to show dominion and control necessary to establish constructive possession of the drugs." State v. Hystad, 36 Wn. App. 42, 49, 671 P.2d 793 (1983) (emphasis added). Instead, we look to the totality of the situation to determine if substantial evidence exists that tends to establish circumstances from which any trier of fact could reasonably infer that the defendant had dominion and control over the area in question and the drugs found there. State v. Porter, 58 Wn. App. 57, 60, 791 P.2d 905 (1990) (quoting State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977)).
Here, there is sufficient circumstantial evidence that Cellestine constructively possessed the heroin. First, the officers found the heroin in a box with men's clothing. Cellestine was the only man in the house. Second, Cellestine told officers that he had used heroin the previous day and had been at the house for three days. Most telling, the box contained a letter addressed to Cellestine at a previous address. Cellestine's statements support the reasonable inference that the heroin found in the box belonged to him. Additionally, viewing the totality of the situation and reasonable inferences therefrom, Cellestine was temporarily staying at the home and was keeping personal belongings in the box as well as in other rooms of the home. The evidence clearly supports a finding that Cellestine possessed the heroin.
Viewing the facts in favor of the State, any rational trier of fact could find beyond a reasonable doubt that Cellestine possessed a controlled substance. Cellestine's sufficiency of the evidence challenge fails. Ineffective Assistance of Counsel
In his SAG, Cellestine argues that he received ineffective assistance of counsel because his attorney (1) did not test the heroin to confirm the crime lab results, (2) failed to have the items found in the box fingerprinted, and (3) waited until closing argument to tell the jury that the items had not been fingerprinted.
To demonstrate ineffective assistance of counsel, a defendant must prove (1) defense counsel's representation fell below an objective standard of reasonableness and (2) the deficient representation prejudiced the defendant. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). A defendant is prejudiced if there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different. McFarland, 127 Wn.2d at 337. We strongly presume that defense counsel's representation was effective. McFarland, 127 Wn.2d at 335. Reasonable trial tactics are not deficient performance. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996).
The alleged failures of Cellestine's attorney were reasonable trial tactics. First, absent evidence that the police testing was incomplete or substandard, Cellestine's attorney had no reason to retest the heroin. Second, the decision to rely on an absence of fingerprint evidence rather than risk having the heroin container fingerprinted mid-trial and Cellestine's fingerprints being found was a legitimate trial strategy as was trial counsel's decision not to mention the lack of fingerprints until closing argument. Additionally, Cellestine does not establish any prejudice resulting from these tactical decisions.
Cellestine's counsel provided effective assistance and sufficient evidence supports the jury's verdict. Accordingly, we affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J., and HUNT, J., concur.