Opinion
No. 36316-0-II.
July 2, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-03873-0, Stephanie A. Arend, J., entered April 27, 2007.
Affirmed by unpublished opinion per Houghton, J., concurred in by Penoyar, A.C.J., and Hunt, J.
John Herring appeals from a conviction of one count of unlawful delivery of a controlled substance and one count of unlawful possession of a controlled substance with intent to deliver. He argues that insufficient evidence supported his conviction of either count. We affirm.
FACTS
On August 17, 2006, between approximately 11 and 11:15 a.m., police released Herring from custody following a hearing at Fife Municipal Court. Belinda Banks picked him up in her vehicle and drove to an area that police had under surveillance due to a high level of narcotics activity.
When Banks parked at a convenience store, a confidential informant (CI) approached Banks's vehicle and bought $40 worth of cocaine using pre-marked $20 bills supplied by a police officer. The CI observed that at the time of delivery of the cocaine, the driver's side backseat window was rolled down revealing a black male seated behind the driver. Herring is an African American male.
Moments after completion of the controlled buy, police officers stopped the vehicle. In the time between the interaction between Banks and the CI and the time of the traffic stop, the officers did not observe anyone getting into or out of the vehicle. Once stopped, the officers ordered the occupants to raise their hands. The officers noted that Herring, the only passenger in the backseat, slowly complied with this command and bent over focusing on something below eye level.
The police discovered that Herring held the two marked $20 bills given by the CI to Banks in the controlled buy. In searching the vehicle, the police also recovered two bags of cocaine and two crack pipes on the backseat next to where Herring had been sitting. The officers testified that the bags of cocaine looked as if they had been tucked down into the seat.
Herring stated to police that he was unsure where the money had come from, did not know what had happened in the car, and was not sure how the drugs came to be near him. Surveillance indicated that Herring made no direct contact with the CI.
The State charged Herring with one count of unlawful delivery of a controlled substance and one count of unlawful possession of a controlled substance with intent to deliver, and a jury heard the matter. The jury found him guilty of unlawful possession of a controlled substance and unlawful delivery of a controlled substance. He appeals.
ANALYSIS Sufficiency of the Evidence
Herring argues that insufficient evidence proved his unlawful possession and unlawful delivery of a controlled substance conviction. He asserts that the evidence does not support his actual or constructive possession of the cocaine. Similarly, he further argues that the charge of unlawful delivery of a controlled substance fails because nothing indicates that he aided in the transaction.
We review sufficiency of the evidence by determining whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997). We draw all reasonable inferences from the evidence in favor of the State. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977).
A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385, 622 P.2d 1240 (1980). We consider circumstantial evidence as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the fact finder on issues of conflicting testimony, credibility, and the persuasiveness of the evidence. Hernandez, 85 Wn. App. at 675.
With respect to Herring's conviction of possession of a controlled substance, the State must establish the nature of the substance and possession by the defendant. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). The State need not prove either knowledge or intent to possess, nor knowledge as to the nature of the substance in a charge of simple possession. State v. Cleppe, 96 Wn.2d 373, 380, 635 P.2d 435 (1981).
Possession of narcotics may be either actual or constructive. State v. Sanders, 7 Wn. App. 891, 892, 503 P.2d 467 (1972). Constructive possession is established when an individual has dominion and control over goods, regardless of whether they are in actual possession. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). It is possible to prove constructive possession through substantial circumstantial evidence. Sanders, 7 Wn. App. at 893.
Herring argues that State v. Spruell, 57 Wn. App. 383, 788 P.2d 21 (1990), demonstrates that mere proximity and momentary handling is not enough to establish dominion and control over a controlled substance. Spruell is distinguishable from the case here because the police officers located the drugs in a common area of the home with no evidence that the defendant was anything more than a visitor. 57 Win. App. at 388-89.
Here, in searching the vehicle, the police found a majority of the positively identified cocaine located in the backseat immediately next to Herring, indicating that he had control over the drugs. Furthermore, he was the only occupant of the backseat of the vehicle and the only individual in the vehicle to continue to focus on something below eye level after the officers ordered the occupants to raise their hands. From these facts, the jury could infer that Herring pushed the bags of cocaine into the seat. Therefore, sufficient evidence exists to allow a rational fact finder to conclude that he was in possession of a controlled substance.
Herring further argues insufficient evidence proves that he was a principal or accomplice for any part of the charged crimes. Constructive delivery is the transfer of a controlled substance belonging to the defendant or under the defendant's control by some other person or manner at the instance and direction of the defendant. State v. Martinez, 123 Wn. App. 841, 846, 99 P.3d 418 (2004). To prove Herring guilty of unlawful delivery of a controlled substance, the jury needed to find that either he, or a person he was acting with as an accomplice, possessed a controlled substance with intent to deliver.
The jury instruction stated in part:
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or (2) aids or agrees to aid another person in planning or committing the crime.
The word "aid" means all assistance whether given by words, acts, encouragement, support, or presence.
Clerk's Papers at 39.
An individual who is ready to assist in a crime is aiding in its commission. State v. Galisia, 63 Wn. App. 833, 839, 822 P.2d 303 (1992). The evidence strongly shows that Herring met the criteria of an accomplice because he was present for the entire interaction between Banks and the CI. In searching the vehicle, the discovery of a majority of the cocaine next to Herring supports an inference that he was not only in possession but also supplying Banks with the drugs to sell to the CI. Herring also held the two marked twenty dollar bills used in the controlled buy, further enforcing the conviction.
Herring argues that the facts presented in this case are similar to those in State v. Robinson, 73 Wn. App. 851, 872 P.2d 43 (1994). In Robinson, the court determined that the defendant did not meet the definition of an accomplice of robbery for the purpose of accomplice liability. 73 Wn. App. at 858. The facts in Robinson are clearly distinguishable from here; because in Robinson, the crime took place outside the vehicle that the defendant was driving without his prior knowledge of the crime. 73 Wn. App. at 857.
Here, Herring was present for the entire commission of the crime. Furthermore, his actions of focusing on something below eye level near where the cocaine was recovered when confronted by the police officers allows a fact finder to conclude that he was aiding in criminal activity.
The State presented sufficient evidence to allow a fact finder to find Herring guilty of both unlawful possession of a controlled substance and unlawful delivery of a controlled substance.
Statement of Additional Grounds Issues
Pro se, Herring raises two additional issues for appeal in his statement of additional grounds. First, he points to potentially exculpatory testimony. Second, he argues that he received ineffective assistance of counsel.
RAP 10.10(a).
Herring's first argument is essentially a question regarding the credibility of witnesses presented at trial. He argues that the witnesses offer conflicting testimony to that of what the jury determined. We defer to the fact finder in credibility determinations and do not review them on appeal. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). Herring's argument fails.
With respect to the second issue Herring raises, to prove ineffective assistance of counsel, he must show that counsel's deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance is that which falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997).
Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In the Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). We give great deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
The only support that Herring offers for an ineffective assistance of counsel claim is that counsel failed to call or interview witnesses, particularly Banks. Failing to call a possible witness is a legitimate trial strategy, and legitimate trial tactics are not deficient performance. State v. Hayes, 81 Wn. App. 425, 442, 914 P.2d 788 (1996). Herring's counsel obtained a witness statement from Banks; however, he declined to present her as a witness during trial, a legitimate strategy. Herring's argument regarding ineffective assistance of counsel fails the first prong of the test; therefore, we do not address the prejudice prong.
Affirmed.
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.
Hunt, J. and Penoyar, A.C.J., concur.