Opinion
No. 33420-8-II.
August 14, 2007.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 04-1-01616-6, Jill M. Johanson, J., entered June 8, 2005.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton, C.J., and Penoyar, J.
Jodi Lynne Grant appeals the jury's verdict finding her guilty of one count of manufacturing marijuana (Count I) and one count of possession of methamphetamine (Count II). On appeal, Grant challenges (1) the trial court's denial of her proposed unwitting possession instruction; (2) her trial counsel's failure to object to the deputy's testimony about the search warrant; and (3) contends that she was denied a fair trial because the trial court staff failed to redact information from the paper evidence bags presented to the jury. Grant also raises at least 10 issues in her statement of additional grounds (SAG). We affirm.
RAP 10.10.
FACTS
In November of 2004, Jessica Alexander, Grant's niece, and her sometime boy friend, Lewis C. Smith, went to the Cowlitz County Sheriff's Department to get help retrieving their personal property from Grant's house and garage. According to the couple, Smith had a medical marijuana certificate and, until their relationships disintegrated, had been growing marijuana in Grant's garage. Alexander told Deputy Nathan Hockett that Grant had moved Smith's plants from the garage into the house and that Grant frequently used a small scale to measure methamphetamine at the computer desk in her bedroom. Having obtained the necessary warrants, Hockett searched Grant's home and the van parked in her locked garage and seized: two knives with heat blackened tips; a multi-colored smoking pipe; some plastic improvised marijuana smoking devices; a small bag with crystal residue and a large crystal; black insulating sheeting hung up on a closet wall; pieces of reflective hoods used in marijuana growing operations; an altered electrical box; one plant pot tipped on its side; a clear glass pipe with residue and some heat blackening; marijuana growing operation with at least 13 plants; a small digital gram scale; methamphetamine hidden inside a pill bottle; a 900-watt halogen grow-type light bulb; a large roll of black insulating material; and they found a small room within the garage containing evidence of an old marijuana growing operation.
The crystal substances later tested positive for methamphetamine.
The residue in the pipe tested positive for methamphetamine. This pipe was found in the pocket of pants belonging to Norman Schmidt, who was visiting Grant at the time the search warrant was executed.
At trial, Ashlee England, Grant's daughter, testified that she knew about the marijuana plants in the garage; that Grant allowed her to smoke marijuana; and that Grant's co-defendant, Schmidt, did not live with Grant. A jury convicted Grant as charged and returned a special verdict form stating that it found Grant guilty of possessing the methamphetamine seized from under the cushion of the bedroom chair and the van. Grant appeals.
DISCUSSION
Unwitting Possession Jury Instruction
Grant argues the trial court erred when it refused to instruct the jury using her proposed "unwitting possession" instruction.
Generally, we review a trial court's decision to give certain jury instructions and not to give others for an abuse of discretion. Tennant v. Roys, 44 Wn. App. 305, 308, 722 P.2d 848 (1986). A trial court may only give jury instructions when there is evidence to support them. Tennant, 44 Wn. App. at 309. We read the instructions as a whole, to see whether they permit the parties to argue their theory of the case; are not misleading; and, when read as a whole, properly inform the jury of the applicable law. State v. Linehan, 147 Wn.2d 638, 643, 56 P.3d 542 (2002), cert. denied, 538 U.S. 945 (2003).
Unwitting possession is a judicially created affirmative defense; it requires the same level of proof as other affirmative defenses. State v. Hundley, 72 Wn. App. 746, 866 P.2d 56 (1994), aff'd, 126 Wn.2d 418 (1995). Accordingly, for Grant to be entitled to an unwitting possession instruction, she has the burden to produce some evidence from which the jury could find by preponderance of the evidence that she unwittingly possessed the illegal substances. State v. Riker, 123 Wn.2d 351, 368, 869 P.2d 43 (1994).
To convict Grant of the crime of possession of a controlled substance as charged, the State was required to prove beyond a reasonable doubt:
(1) That on or about the 6th day of December, 2004, the defendant or one with whom the defendant acted as accomplice, possessed a controlled substance, to-wit: methamphetamine; and
(2) That the acts occurred in the State of Washington.
Clerk's Papers (CP) at 93. "Possession" means having a substance in one's custody or control. It may be either actual or constructive. Actual possession occurs when the item is in the actual physical custody of the person charged with possession. Constructive possession occurs when there is no actual physical possession but there is dominion and control over the substance.
Dominion and control need not be exclusive to establish constructive possession.
CP at 91.
Grant requested that the court give the following instruction:
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 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.
CP at 74.
The trial court denied Grant's proposed unwitting instruction because Grant exercised her right not to testify and no other evidence was presented suggesting that she did not know about the marijuana growing operation or the methamphetamine. The trial court further observed that Grant could argue lack of dominion and control under the "possession" instruction, Jury Instruction No. 15.
At trial, the State provided evidence showing that Grant knew that Smith established a marijuana growing operation in her garage because she gave him permission to do so; and that Grant knew the growing operation was moved into her bedroom closet because she enlisted her family's help to move it. The State also presented evidence that Schmidt did not live with Grant; that he did not have a key to the garage; and that Grant weighed and packaged methamphetamine at a computer desk in her bedroom; that investigating officers discovered methamphetamine under a chair's cushion near the computer desk and found an even larger amount of methamphetamine and a scale hidden in the same van containing the marijuana growing operation, which was parked in Grant's garage.
At trial, the court's instructions allowed Grant to fully argue that she lacked dominion and control over both illegal substances and she did so.
On appeal, Grant asserts that the evidence was very strong in favor of finding that Schmidt, not she, was the person who possessed and controlled the illegal substances. To the extent Grant is arguing that insufficient evidence supports the jury's verdict, we disagree.
Under the circumstances presented here, any rational jury could have concluded that Grant had dominion and control over the marijuana growing operation and the methamphetamine found in the van and under her bedroom chair cushion. See State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (a reviewing court examines whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," viewing the evidence in the light most favorable to the State), overruled on other grounds by Washington v. Recuenco, ___ U.S. ___, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006).
Moreover, as the owner of the property, Grant retained sufficient dominion and control over it to have possession of it and its contents. State v. Edwards, 5 Wn. App. 852, 854, 490 P.2d 1337 (1971), review denied, 80 Wn.2d 1004 (1972).
On this record the evidence does not support the giving of an unwitting possession instruction and the trial court did not abuse its discretion when it did not instruct the jury on the affirmative defense of unwitting possession.
Ineffective Assistance of Counsel
Grant contends that her trial counsel was ineffective for failing to object to "opinion" testimony when Deputy Hockett testified that (1) he based his application to the search warrant on the information provided to him by Alexander and Smith; (2) the magistrate granted the search warrant; and (3) he arrested Grant. This argument lacks merit.
The state and federal constitutions guarantee a defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). To prevail in an ineffective assistance of counsel claim, Grant must show both (1) that her attorney's performance was deficient and (2) that this deficiency prejudiced her. Strickland, 466 U.S. at 687. Deficient performance is that which falls below an objective standard of reasonableness. State v. Horton, 116 Wn. App. 909, 912, 68 P.3d 1145 (2003). To demonstrate prejudice, Grant must show that her trial counsel's performance was so inadequate that there is a reasonable probability that the result would have differed, thereby undermining this court's confidence in the outcome. Strickland, 466 U.S. at 694.
Here, Deputy Hockett did not give an opinion. He testified to facts. Fact one, Smith and Alexander provided the information Hockett used to apply for the search warrant. Fact two, Hockett had experience investigating drug crimes. Fact three, a magistrate granted the search warrant for Grant's home and then later for the van before Hockett searched those places. Fact four, based on the evidence and illegal drugs he found when executing the warrants, he arrested Grant. Hockett's testimony was not opinion testimony regarding his belief in Grant's guilt but was a recitation of his direct knowledge of the facts at issue. State v. Demery, 144 Wn.2d 753, 760, 30 P.3d 1278 (2001). See State v. Kirkman, 159 Wn.2d 918, 938, 155 P.3d 125 (2007) ("testimony of an investigating officer . . ., if not objected to at trial, does not necessarily give rise to a manifest constitutional error. Manifest error requires an explicit or almost explicit witness statement on an ultimate issue of fact.").
Grant's counsel was not ineffective for failing to object to Deputy Hockett's factual testimony at trial. See also Kirkman, 159 Wn.2d at 935 (noting that "[n]o case of this court has held that a manifest error infringing a constitutional right necessarily exists where a witness expresses an opinion on an ultimate issue of fact that is not objected to at trial"). Evidence Tags
Grant next contends that, over her objections, the trial court allowed the jury to see improper opinion testimony and impermissible extrinsic evidence of her guilt contained within the information written on evidence tags by the Sheriff's Department.
We have reviewed the entire record, and contrary to Grant's assertion, there is no evidence that Grant objected to the evidence tags, nor is there any evidence that the trial court knowingly permitted the exhibits to go to the jury with the evidence tags intact. Instead, the record shows that at the end of the trial, prior to jury deliberations, the State offered to redact any objectionable information on the evidence tags. The evidence bags at issue have not been included in the appellate record before us. Grobe v. Valley Garbage Serv., Inc., 87 Wn.2d 217, 228-29, 551 P.2d 748 (1976); State v. Bugai, 30 Wn. App. 156, 632 P.2d 917 (in a direct appeal review limited to matters of record), review denied, 96 Wn.2d 1023 (1981).
The following colloquy occurred:
The Court: Anything else to put on the record?
[PROSECUTOR]: I don't know if Counsel wants any of the evidence bags redacted in any way before they go to the jury. Otherwise, I don't have anything else.
[DEFENSE COUNSEL]: I'd say the standard — anything that says "Defendant," we take a Sharpie to. [PROSECUTOR]: Well, if the Defendant has got a — if the Defense has got a sharpie or some white out, we can do that.
The Court: I have a couple of pens up here, here's a blue one — a blue Sharpie. And I have white out, kind of gunky.
All right, but we don't need to be on the record for that discussion, so.
[PROSECUTOR]: No.
The Court: All right, make sure the bailiff knows where your numbers are.
Report of Proceedings (May 24, 2004) at 175-76.
The record includes several unclear copies of what appear to be poor quality photocopies of the outside of some exhibit bags. But the parties never clarified whether these photocopies were taken before or after the State's offer of redaction. It is also unclear whether any redaction actually occurred.
And the record suggests that the State redacted information from the evidence tags before they went to the jury for deliberation. Thus, the record before us contains no evidence that the jury saw unredacted evidence tags. State v. Velasquez, 67 Wn.2d 138, 143, 406 P.2d 772 (1965), cert. denied, 384 U.S. 989 (1966). We also note that even if the tags were inadvertently not redacted as the State intended, Grant was not prejudiced. In Velasquez, the evidence tags provided information concerning the suspect's "name," "address," "charge," and "where found." There, our Supreme Court held that "[o]nly by the most extreme construction could the tags be said to have a testimonial content; on their face they appear to be merely identifying devices." Velasquez, 67 Wn.2d at 143.
In this case, we are told that the tags merely identified Grant as a "suspect" of a "VUCSA" offense. This information is cumulative of the charge and the evidence properly before the jury. Moreover, Grant has failed to show how the information contained on the tags prejudiced her in light of the overwhelming evidence of her guilt. There is no reasonable possibility that the jury's observation of the evidence tags affected its verdict. Velasquez, 67 Wn.2d at 143. As in Velasquez, the evidence tags had no probative effect, and thus, error, if any, was harmless. 67 Wn.2d at 143. SAG Issues
In her pro se SAG, Grant raises at least 10 issues. Essentially, Grant requests review of (1) evidence outside of the record including: the "partially true" sheriff's report (SAG at 1); trial counsel ignored evidence and refused to introduce other evidence at Grant's request; Deputy Bruce Haebe's evidence sheet "grew" in length before trial (SAG at 5); trial counsel tainted the jury during jury selection and allowed a juror Grant recognized to remain on the panel; it is suspicious that the van was searched a full day after Grant was arrested; the Sheriff's Department never investigated Smith's marijuana growing license; (2) Deputy Hockett's testimony was inconsistent with Deputy Haebe's testimony; (3) trial counsel was "working for the prosecution," telling the State how to fix its mistakes (SAG at 5), and helping it secure Grant's conviction; (4) Grant's right to a timely trial was violated; and (5) the "to convict" instruction as read by the trial court was improper because the jury never convicted Grant of possession of the pipe found in Schmidt's pants.
It appears that Grant is questioning the length of time it took the deputies to search the van (one day). The deputies impounded the van, sealed it, and transported it to a secure location until a search warrant could be obtained.
A. Facts Outside of the Record
Without reference or argument, Grant recites to facts outside of the record. A defendant who files a SAG need not cite to cases or the record, but she must provide details sufficient to inform the court of the objection for review. RAP 10.10(c). Our review is limited to issues contained in the record. See McFarland, 127 Wn.2d at 338 n. 5 ("a personal restraint petition is the appropriate means of having the reviewing court consider matters outside the record."). We cannot review Grant's claims based on facts outside the record.
B. Conflicting Testimony
Reviewing courts defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence because it is the trier of fact who saw the witnesses as they testified and is in the best position to evaluate their credibility. State v. Fiser, 99 Wn. App. 714, 719, 995 P.2d 107, review denied, 141 Wn.2d 1023 (2000).
C. Ineffective Assistance of Counsel
Grant claims her counsel was ineffective for "working for the prosecution." SAG at 5. As discussed above, it is Grant's burden to show that her trial counsel's assistance was deficient and prejudiced her. See State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996) (defendant must show both deficiency and prejudice); State v. White, 81 Wn.2d 223, 225, 500 P.2d 1242 (1972) (performance of counsel is viewed against the entire record). Our review of the entire record does not support Grant's general assertion that her counsel was working for the prosecution. To the contrary, counsel rigorously cross-examined all the State's witnesses and extensively argued, throughout the trial, that Grant lacked dominion or control over the illegal substances.
D. Timely Trial
Grant claims she was denied her timely trial right under CrR 3.3. But she waived any objection to the trial setting. Under CrR 3.3(d)(3), a defendant objecting to a new trial date must, within 10 days of the trial court's notice, file a motion to set the trial date within the limits. Not only did Grant fail to timely object, she requested at least one continuance so that she could recover from surgery. Grant was not in custody pending trial and does not demonstrate that the continuances prejudiced her ability to present her defense. Thus, she has not demonstrated that her constitutional speedy trial rights were violated by the trial court's grant of continuances.
E. "To Convict" Instruction
Grant appears to be arguing that because the jury found her guilty of only two of the three instances of possession, the verdict was not unanimous. The jury was instructed to unanimously decide whether Grant was guilty of all, some, or none of the instances of possession outlined in the special verdict form. Here, the jury decided whether or not Grant (1) committed the crime of possession of a controlled substance; and (2) which controlled substance did Grant possessed: (A) methamphetamine found in the cushion of the chair; (B) methamphetamine found in the glass pipe; or (C) methamphetamine found in the van. The jury unanimously found Grant guilty of possession of A and C. The jury clearly followed the trial court's instructions that its verdict be unanimous. Hizey v. Carpenter, 119 Wn.2d 251, 269-70, 830 P.2d 646 (1992) (citing Bordynoski v. Bergner, 97 Wn.2d 335, 342, 644 P.2d 1173 (1982)).
Grant's speculation that the jury's failure to convict her on all three instances caused a new judge to read the verdict is without merit and is not reviewable because it is outside of the record. McFarland, 127 Wn.2d at 338.
The trial court instructed the jury as follows:
There are allegations that the defendant committed acts of Possession of a Controlled Substance on multiple occasions.
To convict the defendant, one or more particular acts must be proved beyond a reasonable doubt and you must unanimously agree as to which act or acts have been proved beyond a reasonable doubt. You need not unanimously agree that all the acts have been proved beyond a reasonable doubt.
CP at 94.
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, C.J., PENOYAR, J. concur