Opinion
40834-1-II
01-31-2012
STATE OF WASHINGTON, Respondent, v. MICHAEL WAYNE JONES, Appellant.
UNPUBLISHED OPINION
Hunt, J.
Michael Wayne Jones appeals his sentence and jury trial convictions for two counts of unlawful possession of a firearm and one count of unlawful possession of methamphetamine and his special verdict enhanced sentence for the drug possession count. He argues that (1) the trial court erred when it instructed the jury that it must unanimously agree to answer "no" on the special verdict forms; (2) his trial counsel rendered ineffective assistance in failing to propose "unwitting possession" instructions and in failing to propose an instruction directing the jury to consider the evidence separately for each count; and (3) his total sentence, including his community custody term, on his unlawful possession of a controlled substance conviction exceeds the five-year statutory maximum for the offense. We affirm.
FACTS
I. Unlawful Possession of Firearm and Methamphetamine
On September 9, 2009, Pierce County Sheriff's Deputy James Oetting was on patrol when he noticed a silver car, pulling out of a store parking lot, which fit the description of a car connected to several recent armed robberies. As Oetting drove by, instead of leaving the parking lot, the silver car backed up and parked. Thinking this was unusual, Oetting returned and pulled into the parking lot. Michael Wayne Jones, who Oetting had seen driving the silver car, and Tamera Numsen, who matched the description of one of the people involved in the recent robberies, were standing outside the car smoking cigarettes; the car's windows were down. Oetting told Numsen and Jones that the car matched the description of a car involved in some armed robberies; then he walked back to his patrol car to run records checks on Jones and Numsen.
While Oetting was at his patrol car, Jones and Numsen rolled up the silver car's windows from outside the car. Thinking that Jones' and Numsen's behavior was strange, Oetting looked through the car's windshield and saw two open beer containers on the floorboards. Although Jones had previously told Oetting that he (Jones) had locked the keys in the car, Jones opened the car door without having to unlock it and removed the beer cans. After more deputies arrived, Oetting again looked through the car's windshield and saw a loaded black 9 mm semiautomatic firearm "sitting on the floorboard directly in front of the driver's seat . . . right between where the driver's legs would have been." 3 Verbatim Report of Proceedings (VRP) at 97.
Oetting arrested Jones for being a "[f]elon in possession of a firearm" and placed him in a patrol car. 3 VRP at 99. After advising Jones of his Miranda rights, Jones told Oetting that "he was relatively sure [the gun in the car] was a real gun." 3 VRP at 100. Jones denied owning the gun, but he stated that he knew it was in the car. Without removing the gun, Oetting impounded the silver car and ran a registration check on the car. The car's previous owner was Douglas Brudene; a report of sale had been filed about three weeks earlier, but Oetting was unable to confirm the car's new owner.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
After obtaining search warrants, the deputies searched the car twice. They found the loaded 9 mm semiautomatic handgun that Oetting had seen on the driver's side floorboard; inside the car's engine compartment they found a stuffed animal containing an unloaded .22 caliber semiautomatic handgun. In the car's trunk, they found (1) a locked metal "lockbox" containing a magazine that appeared to be for a 9 mm handgun, what appeared to be methamphetamine, a digital scale, a tin containing a baggie of a "white crystal powder, " a "piece of glass that's commonly used to smoke methamphetamine, " several small baggies marked with a dollar sign, and several unmarked baggies; and (2) a black zippered bag that contained several bags of "white crystal-type substance." 4 VRP at 198. The deputies also found a photograph of Jones and a key under the floor mat near the front passenger seat, but they were unable to determine if that key fit the lockbox because the deputies had damaged the lock when they pried the box open with a screwdriver.
3 VRP at 141.
4 VRP at 194.
4 VRP at 196.
Lab tests later revealed that some of the white substances the deputies found in the trunk were methamphetamine and some were methylsulfonylmethane, a substance commonly used to cut methamphetamine. The forensic investigator determined that the two guns were fully operational, but found no fingerprints on them.
II. Procedure
The State charged Jones with two counts of first degree unlawful possession of a firearm and one count of unlawful possession of a controlled substance (methamphetamine) with intent to deliver. At trial, the State's witnesses testified as described above. Pierce County Deputy Sheriff Seth Huber, who had responded to back up Oetting, and Det. James Loeffelholz, who had later searched the silver car, also testified that someone in the car's driver's seat could have easily reached the 9 mm firearm that the deputies found on the driver's side floorboard. Jones stipulated to having a prior conviction for a serious offense. He presented no witnesses.
The State proposed and the trial court gave the following jury instruction:
You will also be furnished with special verdict forms for the crime charged in count III. If you find the defendant not guilty of this crime, do not use the special verdict forms. If you find the defendant guilty of this crime, you will then use the respective special verdict forms and fill in the blank with the answer "yes" or "no" according to the decision you reach. In order to answer the special verdict forms "yes", you must unanimously be satisfied beyond a reasonable doubt that "yes" is the correct answer. If you unanimously have a reasonable doubt as to this question, you must answer "no."Clerk's Papers (CP) at 86 (Instruction 24) (emphasis added). Jones did not object. Jones did not propose, and the trial court did not give, any unwitting possession instructions or an instruction directing the jury to consider the evidence separately for each count. Again, Jones did not object.
The jury found Jones guilty of the two first degree unlawful firearm possession charges and of the lesser included offense of unlawful possession of a controlled substance. It also found by special verdict that Jones was armed with the 9 mm firearm, but not the .22 caliber firearm, when he committed the drug offense. The trial court sentenced Jones to (1) 102 months of confinement for each firearm conviction, and (2) 60 months of confinement, plus an 18-month firearm sentencing enhancement, and 12 months of community custody for the drug conviction. The judgment and sentence contained the following clause:
Jones does not challenge these sentences.
PROVIDED: That under no circumstances shall the total term of confinement plus the term of community custody actually served exceed the statutory maximum for each offense.CP at 119.
ANALYSIS
I. Special Verdict Instruction
Jones first argues that the trial court improperly instructed the jury that its "yes" or "no" findings on the firearm special verdicts had to be unanimous. Although we agree, and the State concedes, that this instruction misstated the law under Bashaw, Jones failed to object to this instruction and, thus, failed to preserve this issue for review.
State v. Bashaw, 169 Wn.2d 133, 145-47, 234 P.3d 195 (2010). See also State v. Goldberg, 149 Wn.2d 888, 892-94, 72 P.3d 1083 (2003) and our recent opinion in State v Grimes, No. 40392-7-II, 2011 WL 6018399, at *8 (Wash.Ct.App. Dec. 2, 2011) and State v Bertrand, No. 40403-6-II, 2011 WL 6097718, at *3-4, (Wash.Ct.App. Dec. 2, 2011).
We may refuse to review a claim of error that the appellant failed to raise in the trial court unless the appellant establishes that the error is manifest and constitutional. RAP 2.5(a)(3). We recently held in State v. Grimes, No. 40392-7-II, 2011 WL 6018399, at *8 (Wash.Ct.App. Dec. 2, 2011) (citing State v. Nunez, 160 Wn.App. 150, 248 P.3d 103, review granted, 172 Wn.2d 1004 (2011); State v. Morgan, 163 Wn.App. 341, 261 P.3d 167 (2011)); and State v. Bertrand, No. 40403-6-II, 2011 WL 6097718, at *3-4, (Wash.Ct.App. Dec. 2, 2011), that this type of special verdict instructional error is not an error of constitutional magnitude. Thus, under Grimes and Bertrand, Jones cannot show that he is entitled to review under the RAP 2.5(a)(3) exception to the usual preservation of error requirement and we do not further consider this argument.
II. Effective Assistance of Counsel
Jones next argues we must reverse his convictions for unlawful possession of the .22 caliber firearm and unlawful possession of methamphetamine because his trial counsel rendered ineffective assistance in failing to request unwitting possession instructions or Washington Pattern Jury Instruction: Criminal 3.01 (WPIC). This argument fails.
11 Washington Practice: Washington Pattern Jury Instructions: Criminal 3.01, at 80 (3d ed. 2008).
A. Standard of Review
In reviewing an ineffective assistance of counsel claim, we start with a strong presumption of counsel's effectiveness. State v. Breitung, No. 84580-8, 2011 WL 6824965 at *2 (Wash. Dec. 29, 2011); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). To establish ineffective assistance of counsel, Smith must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 690–91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); McFarland, 127 Wn.2d at 334–36. Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. McFarland, 127 Wn.2d at 334–35. But legitimate trial strategy does not constitute ineffective assistance of counsel. Breitung, 2011 WL 6824965 at * 2; State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011) (citing State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009); State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994)). Prejudice occurs when there is a reasonable probability that, but for counsel's deficient performance, the outcome of the case would have differed. McFarland, 127 Wn.2d at 335.
B. Unwitting Possession Instruction
Unwitting possession is an affirmative defense; it is not usually applicable to an unlawful firearm possession charge, for which the State bears the burden of proving knowing possession of the firearm. State v. Michael, 160 Wn.App. 522, 527, 247 P.3d 842 (citing State v. Cleppe, 96 Wn.2d 373, 381, 635 P.2d 435 (1981), cert. denied, 456 U.S. 1006 (1982)), review denied, 172 Wn.2d 1015 (2011). Even if defense counsel had requested an unwitting possession instruction on the firearm possession charges and the trial court had given this instruction, it would have shifted the burden to Jones to establish that his possession was unwitting and, arguably, relieved the State of its burden of proving knowing possession. See Michael, 160 Wn.App. at 527. Thus, defense counsel's failure to request an unwitting possession instruction on the unlawful possession of the .22 caliber firearm charge was a reasonable tactical decision and did not amount to deficient performance.
As to the unlawful methamphetamine possession charge, the trial court would likely have given an unwitting possession instruction had defense counsel so requested. But Jones must overcome a strong presumption of effective assistance by demonstrating that defense counsel's decision not to request this instruction was an unreasonable tactical decision. Breitung, 2011 WL 6824965 at * 2-3; Grier, 174 Wn.2d at 33-34. Jones does not demonstrate that defense counsel's decision was not based on legitimate tactical concerns, such as the risk that arguing unwitting possession, which Jones had the burden of proving, could have opened the door to other damaging evidence that could have tied Jones to the drugs in the car's trunk. Accordingly, Jones does not overcome the presumption that defense counsel's failure to request an unwitting possession instruction was a tactical decision; therefore, claim of ineffective assistance also fails.
C. WPIC 3.01
Jones next argues that (1) defense counsel should have proposed WPIC 3.01; and (2) without this instruction, there was a risk that the jury would "improperly cumulate the evidence and infer that since Jones knew about the handgun in the car, he must have known about the handgun underneath the hood and the methamphetamine in the trunk." Br. of Appellant at 16. Again, this argument fails.
This WPIC provides:
A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count.WPIC 3.01, at 80.
The evidence for each count was clear. Additionally, each "to convict" instruction properly informed the jury about the elements for each offense and other jury instructions clearly instructed the jury that it had to find each element of each offense beyond a reasonable doubt. Given the nature of the evidence in this case and the jury instructions given, Jones does not establish that there is a reasonable probability that the outcome of the trial would have been different had the trial court given WPIC 3.01. Accordingly, his ineffective assistance of counsel claim fails.
See CP at 64 (Instruction 3: advising jury that the State has the burden of establishing every "element of each crime beyond a reasonable doubt."), 67 (Instruction 6: to-convict for unlawful possession of 9 mm firearm), 68 (Instruction 7: to-convict for unlawful possession of .22 caliber firearm), and 81 (Instruction 20) (to-convict for unlawful possession of a controlled substance).
III. No Excessive Sentence
Finally, Smith argues that his sentence on the drug charge exceeded the five-year statutory maximum for the offense because his total sentence, including the 12-month community custody term, was 72 months. He contends that RCW 9.94A.701(9) requires the trial court "to remove the term of community custody" and enter a corrected judgment and sentence. Br. of Appellant at 19. Our Supreme Court recently rejected this argument in State v. Franklin, 172 Wn.2d 831, 837-43, 263 P.3d 585 (2011). Because Jones's judgment and sentence includes language specifying that "the total term of confinement plus term of community custody actually served" shall not "exceed the statutory maximum for each offense, " this argument fails.
RCW 9.94A.701(9) provides:
The term of community custody specified by this section shall be reduced by the court whenever an offender's standard range term of confinement in combination with the term of community custody exceeds the statutory maximum for the crime as provided in RCW 9A.20.021.
CP at 119.
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.
We concur: Armstrong, P.J. Johanson, J.