Opinion
No. 30863-1-II
Filed: April 26, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No: 03-1-00122-8. Judgment or order under review. Date filed: 07/24/2003. Judge signing: Hon. Toni a Sheldon.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.
Harriet Pulsifer appeals her conviction of possession of a controlled substance, heroin, arguing that the trial court erred in allowing the case to go to the jury and that insufficient evidence supported her conviction. She also argues that the trial court was required to advise her that she was entitled to counsel during sentencing after it allowed her second appointed counsel to withdraw from representation during a hearing on a motion for a new trial. We affirm.
FACTS Offense and Trial Testimony
On April 1, 2003, a Pierce County officer arrested Pulsifer on a Mason County warrant. The next day, Pierce County transferred her to Mason County. Pierce County also transferred the personal items the jail had taken from her at her booking. During an item inventory, Mason County jail staff discovered some plastic containing what later proved to be heroin wrapped in a wad of tissues.
The State charged Pulsifer with one count of possession of heroin. The case went to a jury trial. Appointed counsel represented Pulsifer at trial. Corrections officers from Pierce and Mason Counties testified about their booking and property procedures and their contacts with Pulsifer.
The Pierce County officers testified that during the booking process, they search detainees and place their personal items in envelopes; the officers list the items on an inventory sheet if they appear to have any value. They mark the envelopes with identifying information and keep them in a secure area. The officers conduct search and inventory processes for safety and accountability purposes and to ensure that no contraband items enter the jail. The booking officers further testified that they usually dispose of items that appear to be trash and report unlawful items to law enforcement. The Pierce County officers testified that they followed these procedures with Pulsifer.
The officers also recalled finding tissues among Pulsifer's personal items during her booking. But none of the officers specifically recalled placing any of these tissues in the property envelope. One officer testified, however, that to the best of her knowledge the items in the envelope were the items the officers found on Pulsifer's person during the booking process. And another officer recalled throwing away several tissues while sorting Pulsifer's property and testified that the tissues the State presented as evidence were similar to the tissues Pulsifer had at booking. Additionally, one of the Pierce County officers testified that she did not recall whether the arresting officer had already taken some of Pulsifer's personal items before her booking, but she did not believe that he had.
Although none of the Pierce County officers testified about sealing Pulsifer's property envelope, they testified that they stored Pulsifer's property in a secured room and prepared for transport to Mason County via Thurston County after booking her. The officers admitted that occasionally they overlook contraband and other items during the booking and inventory process and that the tissues containing the drugs possibly could have been retained without anyone realizing that they contained drugs.
Mason County officers, Angela Langston and Audra Sushak, testified that Pulsifer's property arrived in Mason County in a large manila envelope that contained a smaller envelope. Inside the smaller envelope, the officers found the wad of tissues and inside the tissues, a pierce of plastic containing a black, sticky, tarry substance. The officers testified that the plastic and drugs were not visible until they opened the wad of tissues. Although the officers testified that the smaller envelope was sealed and stapled shut when it arrived in Mason County and that usually someone accompanies transferred property throughout the transfer process, they admitted that they could not say for sure that no one tampered with Pulsifer's property after her booking in Pierce County.
The parties stipulated that a forensic scientist would have testified that the substance was heroin.
Following the State's evidence, Pulsifer testified, claiming unwitting possession. She admitted the tissues containing the heroin may have come from her pockets, but she asserted that the tissues were not hers and were likely picked up off the ground with some of her other property by the arresting officer after he searched her in the street during her arrest.
Pulsifer further testified that Sushak questioned her about the tissues and the substance after the officers discovered this evidence. She stated that she told Sushak that she recognized the substance as heroin but that the items were not hers.
The trial court had previously ruled that the State could not introduce evidence related to Sushak's questioning in its case-in-chief.
To rebut this testimony, Sushak testified that when she asked Pulsifer about the tissues and their contents, Pulsifer initially denied knowing anything about the items. But when she asked again, Pulsifer stated that the substance was probably heroin and admitted that she possessed the items when she was booked in Pierce County. The State also re-called Langston, who confirmed Sushak's testimony.
Part of the record related to this testimony is missing.
The jury convicted Pulsifer of the possession charge. Motions and Sentencing
After the verdict, Pulsifer's appointed trial counsel asked the trial court to set the sentencing date to allow for a DOSA screening. The trial court scheduled the sentencing hearing for June 26.
Drug Offender Sentencing Alternative. RCW 9.94A.660.
On June 26, Pulsifer filed a letter with the trial court asking for a new trial and new counsel, alleging inadequate trial counsel representation. She also asked the trial court to continue the sentencing hearing to allow her to obtain new counsel. At the hearing, Pulsifer reiterated her desire to move for a new trial and for new counsel.
The trial court concluded that it would not be appropriate for her appointed trial counsel to continue to represent her in light of the nature of her proposed motion and allowed trial counsel to withdraw. The court then appointed substitute counsel and continued the sentencing hearing to July 24.
On July 22 and 23, Pulsifer filed two more letters with the trial court. In these letters, Pulsifer again asked for new counsel, asserting that her newly appointed counsel had failed to communicate with her and failed to represent her adequately. In her July 22 letter, she also requested that the trial court continue the sentencing hearing once again so she could obtain different counsel. On July 24, Pulsifer filed what appeared to be a pro se motion for a new trial, alleging that her trial counsel had not provided her with adequate representation and that the State had presented a surprise witness.
At the July 24 hearing, Pulsifer raised her objections in person and requested new counsel. The trial court noted that her newly appointed counsel had not filed a motion for a new trial, and counsel informed the trial court that he had spoken to Pulsifer several times, reviewed her file, and advised her that the issues she wanted to raise in her motion were more properly addressed on appeal. Counsel further stated that Pulsifer was not satisfied with his answers.
The trial court questioned Pulsifer about her request for new counsel and she confirmed that she was not satisfied with her new counsel's representation and reiterated that he had failed to communicate with her. The trial court asked Pulsifer if she wanted to represent herself, and she initially responded that she did not want to proceed pro se because she did not know how. But she continued to assert that she wanted new `outside' counsel and that she wanted to present her own motion for a new trial. V Report of Proceedings (RP) at 124.
After a break, the trial court attempted once again to determine whether Pulsifer was asking to represent herself. Pulsifer continued to assert that she did not want to represent herself but also stated that she did not want her current counsel to continue to represent her. She claimed that although counsel met with her in jail and tried to answer her questions, that she `[felt] that the communication was not properly done.' V RP at 127.
The trial court inquired of counsel, who replied:
I responded to all of her kites, I went to see her and I explained to her what was going on as far as — read through her materials of what she felt her issues were or what she wanted to raise for her motion for a new trial. I reviewed the file, I explained to her that I didn't think that under the law there was [sic] valid reasons to bring a motion for a new trial, but felt they were more proper for an appeal.
V RP at 127. The trial court then told Pulsifer:
The court will not provide substitute counsel for you. I don't find that there is something that has occurred in the relationship between you and Mr. Lane that would cause the court to appoint someone else to represent you.
Now, you may want to either hire a lawyer, or represent yourself, but the court is not going to provide a different person other than Mr. Lane to be your court appointed counsel. And based upon that ruling are you looking to either hire another lawyer, represent yourself, or continue with Mr. Lane?
V RP at 128. Pulsifer replied that she wanted to continue on her own behalf and the court allowed her second appointed counsel to withdraw.
Pulsifer does not challenge the court's decision to allow her second appointed counsel to withdraw.
After verifying one more time that Pulsifer wanted to represent herself rather than continue with her appointed counsel, the trial court allowed her to argue her pro se motion for a new trial. The trial court denied the motion and then proceeded to sentencing without discussing the representation issue further.
During sentencing, Pulsifer stated that she did not want a DOSA sentence, requested a mid-range sentence with `half-time granted to [her] on that,' and indicated she intended to appeal. V RP at 136. Pulsifer also read a prepared statement in which she asked for leniency, insisted she was innocent of this offense, and offered to apologize publicly for the crimes she was guilty of in the past. The trial court rejected the possibility of a DOSA sentence because Pulsifer had indicated she did not want one and imposed a high-end standard range sentence of 17 months. The trial court then advised Pulsifer of her right to appeal and, when she said she was not prepared with her notice of appeal, the court directed her recently removed counsel, as a friend of the court, to assist her with her notice of appeal.
Pulsifer appeals her conviction and sentence.
ANALYSIS Sufficiency of the Evidence
Pulsifer first contends that her conviction must be reversed because (1) the trial court should not have sent the case to the jury after she presented evidence of unwitting possession, and (2) the evidence failed to establish that she possessed the heroin. Both of these arguments require us to analyze the sufficiency of the evidence.
When reviewing a conviction for sufficient evidence, we view the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Bencivenga, 137 Wn.2d 703, 706, 974 P.2d 832 (1999). A defendant's claim of insufficient evidence admits the truth of the State's evidence and all inferences that can reasonably be drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Both circumstantial evidence and direct evidence are equally reliable, Bencivenga, 137 Wn.2d at 711; State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980), and we defer to the trier of fact for credibility determinations and for resolution of contradictory evidence. State v. Lubers, 81 Wn. App. 614, 619, 915 P.2d 1157, review denied, 130 Wn.2d 1008 (1996). Sufficient evidence here supported the conviction.
Unwitting possession of a controlled substance is a defense to a possession charge, State v. Cleppe, 96 Wn.2d 373, 381, 635 P.2d 435 (1981), cert. denied, 456 U.S. 1006 (1982), but the defendant bears the burden of proving unwitting possession by a preponderance of the evidence. State v. Balzer, 91 Wn. App. 44, 67, 954 P.2d 931, review denied, 136 Wn.2d 1022 (1998). The trial court so instructed the jury in this case.
With the appropriate instruction before it, the jury was entitled to disbelieve Pulsifer's story that she was unaware she possessed the drugs and that the arresting officer may have inadvertently picked up the tissues containing the drugs in the street during her initial search and then placed them in her pockets. Not only did the resolution of this issue involve credibility issues that this court will not review, but also the State presented evidence through its witnesses that Pulsifer knew what the substance was and that she admitted she had it in her possession when she was initially booked.
Pulsifer also claims insufficient evidence of possession. Possession may be either actual or constructive. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). A person constructively possesses property if he or she has dominion and control over it. Callahan, 77 Wn.2d at 29. A person need not have exclusive control to establish constructive possession. State v. Hagen, 55 Wn. App. 494, 499, 781 P.2d 892 (1989). We must examine the totality of the circumstances to determine whether sufficient evidence supported the jury finding constructive possession. State v. Amezola, 49 Wn. App. 78, 86, 741 P.2d 1024 (1987).
The trial court instructed the jury that it had to find that Pulsifer possessed the heroin on or about April 2, in the State of Washington. Because the drugs were found in her personal property held by either the Pierce or Mason County Jails on April 2, they could not have been in Pulsifer's actual possession at that time. But, sufficient evidence supports the jury finding that Pulsifer constructively possessed the drugs on April 2.
Although part of Pulsifer's defense strategy suggested that the wad of tissues was not in her possession when she was booked in Pierce County, her own testimony asserting that the tissues were inadvertently placed in her pockets and the State's evidence related to her booking was sufficient circumstantial evidence that the tissues and their contents came directly from Pulsifer when she was booked at Pierce County. Thus, there was sufficient evidence to allow the jury to conclude that she had actual possession of the tissues and, therefore, their contents when she was booked in Pierce County. From that point, the drugs were part of her personal property, which she clearly had some degree of dominion and control over, despite the fact she no longer had physical possession of the items. Accordingly, Pulsifer's sufficiency arguments fail.
Representation at Sentencing
Pulsifer next argues that the trial court erred when it failed to advise her that she was entitled to representation at sentencing and when it did not appoint new counsel to represent her at sentencing. We disagree.
Pulsifer's letters to the trial court and her statements and argument to the trial court establish that she asked the trial court to allow her second appointed counsel to withdraw from all proceedings, including sentencing. In our view, Pulsifer understood that she was waiving her right to counsel at her sentencing hearing when she opted to represent herself rather than allow her second appointed counsel to continue to represent her. Accordingly, this argument fails.
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., Concur.
When Pulsifer requested different counsel at sentencing, the trial court had three lawful courses of action: (1) continue current counsel despite the objection, (2) appoint new counsel, or (3), if Pulsifer chose to offer a waiver of counsel, interrogate her on the record and find that her waiver was knowing, voluntary, and intelligent. But the trial court erroneously chose a fourth course of action: relieving current counsel without appointing new counsel and without taking a waiver of counsel on the record. This fourth course deprived Pulsifer of her right to counsel at a critical stage of the proceeding, and, unless she chooses to waive counsel on the record, she is entitled to be resentenced with counsel present. I respectfully dissent from the majority's affirmance of her sentence, although I agree with its affirmance of her conviction.
State v. Bandura, 85 Wn. App. 87, 97-98, 931 P.2d 174, review denied, 132 Wn.2d 1004 (1997); State v. Christensen, 40 Wn. App. 290, 292-95, 698 P.2d 1069, review denied, 104 Wn.2d 1003 (1985).
Bandura, 85 Wn. App. at 97-98.