Opinion
No. 25387-2-III.
April 8, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 06-1-00521-3, Dennis D. Yule, J., entered July 5, 2006.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Sweeney, C.J., and Thompson, J. Pro Tem.
Bruce Russert appeals his conviction for possession of methamphetamine, contending that his trial counsel was ineffective and that the evidence was not sufficient to support the verdict. The record is inadequate to consider one of the two asserted bases for finding counsel ineffective. The record shows that the other challenged tactic was clearly a strategic decision of counsel and his client. Accordingly, we cannot find that counsel was ineffective. Since the evidence also supports the jury's verdict, we affirm.
Officer Stan Howard of the Kennewick Police Department was patrolling near the city's wastewater treatment plant when he saw the taillights of a car on the plant's property. He drove over and stopped about 25 feet behind the car. Russert, sitting in the passenger's seat, got out and started quickly walking toward the officer. Howard activated his vehicle's lights. Russert returned to the car and started "nonchalantly" doing something on the floorboards of the car. Russert and the car's driver and owner, Debbie Tozzer, eventually were arrested for trespassing. A search of the vehicle incident to arrest revealed a glass pipe and a small Tupperware bowl containing methamphetamine on the floorboard where Russert had been sitting.
He was charged with possession of methamphetamine. No motion to suppress was filed and the matter proceeded to jury trial. Defendant and his sister both testified that Tozzer had picked Russert up. Her car was full of objects; it appeared she was living in it. Russert told jurors the methamphetamine found in the car was not his. The prosecutor proposed an instruction on unwitting possession. Defense counsel objected, stating that the defense theory of the case was that defendant never possessed the drugs rather than unwittingly doing so. After discussion with his client, defense counsel reiterated that he did not want an unwitting possession instruction. The court acquiesced and did not give the instruction. The jury convicted as charged. Mr. Russert then appealed.
While on appeal, the prosecution sought to add evidence concerning the location of the arrest. The motion was granted and a hearing held. The trial court determined that the vehicle was off the street and not in a parking spot. The trial court concluded that defendant was arrested on city property. The defense filed written objection to the findings in the trial court, but did not file a supplemental brief or challenge the findings in this court.
Ineffective Assistance
The Sixth Amendment guarantees the right to counsel. More than the mere presence of an attorney is required. The attorney must perform to the standards of the profession. Counsel's failure to live up to those standards will require a new trial when the client has been prejudiced by counsel's failure. State v. McFarland, 127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to counsel's decisions. A strategic or tactical decision is not a basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-691, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
Mr. Russert first contends his counsel erred in not agreeing to the instruction on unwitting possession, claiming that it was complementary to his theory of non-possession. It was not. An unwitting possession instruction admits possession and shifts the burden to the defense to show that the possession was unwitting. State v. Staley, 123 Wn.2d 794, 799, 872 P.2d 502 (1994). The decision not to use the instruction, proffered by the prosecutor, was clearly a strategic one. Counsel twice, including once after consultation with his client, objected to the instruction and preferred to go with the straight-forward strategy of denying any possession. It is a reasonable tactic to forego an unwitting possession instruction since it shifts the burden to the defense. Defense counsel might not want to undertake that obligation. See State v. Cuble, 109 Wn. App. 362, 369-370, 35 P.3d 404 (2001) (unwitting possession instruction amplified error in unlawful firearms possession elements instruction). The decision to forego the defense was one within the reasonable choice of defense strategy.
Similarly, the decision to use an unwitting possession instruction is not error. State v. Rowell, 138 Wn. App. 780, 785-786, 158 P.3d 1248 (2007) (counsel not ineffective for offering unwitting possession instruction).
Appellant also contends that counsel erred in not challenging the validity of his arrest. The primary problem with this argument is that there is little in the record that supports it. A defendant claiming that counsel was ineffective in failing to bring a motion to suppress must show that the court most likely would have granted the motion if made. McFarland, 127 Wn.2d at 333-334. Appellant fails that test here. The car was improperly parked on the wastewater facility's property at night. The arrest for trespassing was therefore lawful. Trial counsel understandably did not bring a motion to suppress.
Mr. Russert cannot show that a motion to suppress would have succeeded. Thus, he has not shown that counsel was ineffective.
Sufficiency of the Evidence
Appellant also contends that the evidence was insufficient to prove that he possessed the methamphetamine. In reviewing a challenge to the sufficiency of the evidence, the question is whether there was evidence from which the jury could find each element of the offense was proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980).
The only contested issue here is whether Mr. Russert, as a passenger, "possessed" the methamphetamine found by his seat. A passenger may be found in constructive possession of a controlled substance if there is some evidence beyond mere proximity tying him to the controlled substance. State v. Mathews, 4 Wn. App. 653, 656-658, 484 P.2d 942 (1971). Here, there was more than mere proximity. In addition to being found at his feet, the record reflects that defendant was "messing" with that area, apparently in an unsuccessful effort to hide the contraband. His actions permitted the jury to conclude that he was in constructive possession of the methamphetamine.
The evidence supported the jury's verdict. The conviction is affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, C.J. and THOMPSON, J. PRO TEM. concur.