Opinion
No. 39644-1-II.
January 11, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 08-1-00568-5, F. Mark McCauley, J., entered August 3, 2009.
Affirmed by unpublished opinion per Penoyar, C.J., concurred in by Quinn-Brintnall, J., and Bridgewater, J. Pro Tem.
Michael O. Rieken appeals from his unlawful possession of a controlled substance conviction, claiming an invalid "to convict" instruction, prosecutorial misconduct in closing arguments, and ineffective assistance of counsel. We affirm.
Facts
On July 26, 2008, Washington State Patrol Trooper Justin Eisfeldt was travelling westbound on State Route 8 in Grays Harbor County when a yellow Chevrolet Camaro pulling a boat and trailer, travelling eastbound, caught his attention. Eisfeldt turned around, activated his lights, and caught up to the Camaro, which was driving 72 miles per hour in a 60-mile per hour zone. Debris was flying out of the old boat as Eisfeldt stopped the Camaro.
Eisfeldt's records check showed that the driver, Rieken, had a suspended license. Eisfeldt then asked Rieken to step out of the car, handcuffed him, read him the Miranda warnings, and searched him, finding a container in Rieken's front pants pocket. According to Eisfeldt, Rieken responded, "It's meth. I forgot it was in my pocket." Report of Proceedings (RP) at 10. Later crime lab analysis confirmed that the substance in the container was methamphetamine.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State charged Rieken with unlawful possession of a controlled substance, methamphetamine. In addition to the testimony set out above from Eisfeldt and Rebecca Brewer, the crime lab forensic scientist, Karina Henke and Rieken testified.
A violation of RCW 69.50.4013(1).
Henke testified that she and Rieken were a couple and had been for 5 to 6 years. She explained that that day they had gone to visit her parents' home because her father had broken his back and her mother had broken her arm. While there, she explained, Rieken helped fix her brother's car and got clean clothes from her sister-in-law so that he could wear clean clothes home. She said that later, while pulled over on the highway, she heard the conversation between Rieken and Eisfeldt through the open windows of the car. She said that Rieken never admitted having methamphetamine in his pocket and, instead, had told the officer that he had borrowed the jeans and shirt he was wearing.
Rieken testified similarly. He explained that he never admitted having methamphetamine, that he was stunned when Eisfeldt discovered it, and that he tried to explain that the pants he was wearing were not his.
In rebuttal testimony, Eisfeldt explained that he and Rieken were 25 feet from the car when they were talking, that Rieken never told him that he was wearing borrowed clothing, and that Rieken did in fact admit that he possessed methamphetamine.
The trial court instructed the jury on the unwitting possession defense. During closing argument, the State argued:
Good afternoon. Thank you, Ladies and Gentlemen of the Jury. I'm going to go through some of the jury instructions that the judge just went through and sum up some the evidence that you have heard here today.
As part of instruction Number 1, the law indicates that you're the sole judges of the credibility for each witness and the evidence that you've heard. You can look at the manner in which the witness testified and any personal interest that a witness might have in the outcome as to this case.
Well, testimony that we've heard here today is a — Trooper Eisfeldt in this case never met this people before, never met them. He doesn't have any bias or prejudice as far as the outcome of this particular case. I would suggest to you that the defendant and his girlfriend of the last five years have an interest of prejudice in the outcome of this case.
This instruction also indicates that you can waive [sic] the reasonableness of the witness's statements in the context of the other evidence. Well, the State would suggest to you that the self-serving statements of the defendant and the defendant's witness just simply are not reasonable. And that's entirely your call based upon the observations that you made today here while you observed the witnesses testifying.
Instruction Number 4 talks about reasonable doubt. Well, this is a case that's not just proof beyond a reasonable doubt, this is proof beyond all doubt. The defendant was found with the substance in his pocket on the side of the road, tells — tells the trooper it's methamphetamine that I forgot about. You heard the trooper testify, you observed him take the stand, and then he points when directly questioned by the State at any point did this individual tell you that he changed his clothes or he didn't know what the substance is? His answer was unequivocally no.
And Instruction Number 10, the to convict instruction. That on or about July 26th, 2008 the defendant possessed a control[led] substance. Well, none of that in this particular case has been refuted. Every element of that, by the defendant's own testimony, this occurred on July 26, 2008 and that apparently he was in possession of a controlled substance and that the act occurred in the State of Washington. The defendant and the trooper both testified to that. You'll notice also what's missing from Instruction Number 10, there's no knowledge requirement for this crime. If you're in possession of it — of a controlled substance, you're in possession of meth, you're guilty of the crime charged based on the law that's been provided to you, which brings us to the defense, defense of unwitting possession. I either didn't know what it was or didn't know that I had it. He wasn't aware of a container, the size of apparently a Skoal can in diameter that was in his pocket. You have to find that believable. You have to find it believable that he didn't know what the substance was. You have to entirely disregard the testimony of the trooper in this case to reach that conclusion. And by asserting the unwitting possession defense, the defendant hasn't admitted to every element of the crime and asking you to believing that he didn't know that this item was in his possession.
I would also point out that, pursuant to this instruction, if you're 50 percent sure the defendant is telling the truth in this case then it's your duty as jurors to find him guilty, because he has to — he has the burden of persuasion, you have to be 51 percent sure that the defendant is telling the truth in this case to find him not guilty.
I would also point out that the uncontradicted testimony from the crime lab personnel was that she tested the substance and the substance was methamphetamine thus proving every element of the case. Thank you very much for your time, Ladies and Gentlemen of the Jury.
RP at 51-54.
The jury returned a guilty verdict and the trial court imposed a standard range sentence. Rieken appeals.
Analysis
I. "To Convict" Instruction
Rieken first argues that the trial court's instructions to the jury deprived him of due process because the "to-convict" instruction did not include the identity of the specific controlled substance and it was error to fail to require the State to prove the identity of the substance to a jury.
Rieken concedes in his reply brief that our Supreme Court's recent decision in State v. Sibert, 168 Wn.2d 306, 230 P.3d 142 (2010), unfavorably disposes of his claim. We agree that Sibert controls and accept his concession. In Sibert, the Court relied on several factors pertinent here. First, the charging document specified that the controlled substance alleged was methamphetamine. Second, the "to convict" instructions listed the proper elements of the offense. Third, the only evidence before the jury, mentioned in the charging document and jury instructions, proven with expert testimony, and discussed in closing arguments was methamphetamine.
While the "to convict" instruction here omitted the as charged language the Sibert Court relied on, here the court gave two important instructions having the same effect. Sibert, 168 Wash.2d at 312-13. Instruction Three explained that Rieken was charged with possession of a controlled substance, to wit: methamphetamine, and Instruction 9 explained that methamphetamine is a controlled substance. Because no meaningful distinction exists between our case and Sibert, we accept Rieken's concession.
II. Closing Arguments
Rieken next argues that the prosecutor committed misconduct in closing argument that prejudiced his right to due process of law. Specifically, he complains that the prosecutor (a) improperly told the jury that they could only acquit if they entirely disregarded Eisfeldt's testimony and (b) misstated the burden of proof on his affirmative defense by saying he had to prove his affirmative defense by 51 percent. He argues that these were incorrect statements because a jury could acquit if they found the defense established its burden by a fraction above 50 percent and would not have needed to entirely disregard the trooper's testimony; i.e., the jury could find that Eisfeldt's testimony was fractionally less persuasive than the defense witnesses. He argues that by distorting the burden of proof, the prosecutor violated his right to a fair trial.
The State responds that Rieken fails to show misconduct but also fails to show manifest constitutional error or flagrant and ill-intentioned conduct that caused actual prejudice. Cf. RAP 2.5(a); State v. Jones, 71 Wn. App. 798, 809-10, 863 P.2d 85 (1993) (court reviews for manifest constitutional error and applies harmless error analysis); State v. Henderson, 100 Wn. App. 794, 800, 998 P.2d 907 (2000) (review for flagrant and ill-intentioned misconduct when defendant failed to object at trial and misconduct implicates only the defendant's right to a fair trial).
We find neither manifest constitutional error nor flagrant and ill-intentioned misconduct. We view the allegedly improper statements "within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions." State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) (citing State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
First, as to the 50-51 percent argument, this was not improper. While Rieken argues that his burden only extended to a fraction over 50 percent and not to 51 percent, we agree with the State that the jury understood that Rieken had only to persuade it on a more probable than not basis that his testimony was more credible than Eisfeldt's. It is implausible that any jury would measure its certainty with such precision that the distinction between 50.1 percent or 50.01 percent and 51 percent would sway its decision.
Second, as to the prosecutor's remark that to believe Rieken you would have to entirely disregard Eisfeldt's testimony, we also find no reversible error. In the context of the prosecutor's argument, he was explaining the different burdens of proof, the jury's need to assess credibility, and the improbability that the defense evidence was true, suggesting quite rightly that the jury would have to believe that Rieken was unaware of a can the diameter of Skoal container in his pants pocket, that he did not tell Eisfeldt that he had forgotten about it, and that he did not admit that it contained methamphetamine. This was neither manifest constitutional error nor ill-intentioned misconduct. The record simply does not support Rieken's claim of error.
III. Effective Assistance of Counsel
Rieken argues alternatively that he was denied his Sixth Amendment right to effective assistance of counsel because counsel should have objected to the prosecutor's improper remarks. But because we have found no impropriety in these remarks, objections were unwarranted and the bases of his claim of ineffective assistance necessarily fail. See State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (appellant must show both deficient performance and prejudice)).
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.
BRIDGEWATER, J. and QUINN-BRINTNALL, J., concur.