Opinion
No. 37248-7-II.
April 28, 2009.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 07-1-00417-1, James E. Warme, J., entered January 8, 2008.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, C.J., and Penoyar, J.
A jury found Wendy Smotherman guilty of one count of unlawful possession of a controlled substance — methamphetamine. The Cowlitz County Superior Court imposed a standard range sentence of 15 days. On appeal, Smotherman challenges the sufficiency of the evidence supporting the jury verdict and argues that she was deprived of her right to effective assistance of counsel when her counsel failed to request an unwitting possession instruction. Because the decision not to request an unwitting possession instruction is a tactical one and the court's instructions allowed Smotherman to fully argue her case, her counsel's assistance was not ineffective. And because sufficient evidence supports the jury's verdict, we affirm.
Facts
On March 26, 2007, at about 11:00 pm, Sergeant Raymond Hartley of the Longview Police Department responded to a noise complaint about a loud portable electric generator at 264 17th Avenue, Longview, Washington. When Hartley knocked on the back door of the residence, Smotherman answered. Hartley testified that he asked if he could come inside and talk with Smotherman about the noise complaint to which she agreed. They went into the living room. A videogame was "paused" on the television set. Officer Kevin Sawyer arrived three or four minutes after Hartley and knocked loudly on the front door. Smotherman let him in. As he entered the residence, Sawyer saw a couple of marijuana pipes sitting on the coffee table about three to five feet from where Smotherman was seated. Sawyer picked up the pipes and found a baggie of crystal substance on the coffee table next to the pipes. Smotherman admitted that she smokes marijuana and that the marijuana pipes were hers. But she told the police that night that the methamphetamine (crystal substance) was not hers and that she did not know that it was there. Smotherman was arrested on an unrelated outstanding warrant. Under a blanket next to where Smotherman had been sitting, police found a methamphetamine pipe. Smotherman immediately stated that the methamphetamine pipe was not hers and that her mother and sister use methamphetamine and had left it there. Tests conducted by the Washington State Patrol Crime Lab confirmed that the crystalline material found in the baggie next to Smotherman's marijuana pipes was 0.2 grams of methamphetamine.
Smotherman's trial testimony differed slightly.
Marijuana pipes and methamphetamine pipes differ in design.
The jury found Smotherman guilty as charged of one count of unlawful possession of a controlled substance — methamphetamine in violation of RCW 69.50.4013(1) and (2), and the court imposed a 15-day standard range sentence. On appeal, Smotherman maintains, as she has throughout, that the methamphetamine was not hers. She argues that the evidence is insufficient to support the verdict and that her counsel was unconstitutionally ineffective for failing to request an unwitting possession defense. We disagree and affirm.
Smotherman also raises a number of ineffective assistance of counsel arguments in her statement of additional grounds for review that we do not address here because they involve matters outside the record. If Smotherman wishes to raise issues on appeal that require evidence or facts not in the existing trial record, the appropriate means is through a personal restraint petition. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Discussion Ineffective Assistance of Counsel: Failure to Propose "Unwitting Possession" Jury Instruction
Smotherman argues that she received ineffective assistance of counsel when her trial counsel failed to propose the "unwitting possession" jury instruction. We disagree.
To carry the burden of demonstrating that counsel was ineffective, Smotherman must show that (1) her counsel's performance was deficient and (2) that this deficient performance prejudiced her. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Horton, 116 Wn. App. 909, 912, 68 P.3d 1145 (2003). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have been different. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). Tactical decisions are insufficient to support an ineffective assistance of counsel claim. State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994). To prevail on a claim of ineffective assistance of counsel, the defendant must overcome a strong presumption that defense counsel was effective. McFarland, 127 Wn.2d at 335.
A defendant must satisfy both prongs of the ineffective assistance of counsel test. If one prong of the test fails, we need not address the remaining prong. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Smotherman alleges trial counsel was ineffective for failing to propose an "unwitting possession" jury instruction. Unwitting possession is a judicially-created affirmative defense; it requires the same level of proof as other affirmative defenses. State v. Hundley, 72 Wn. App. 746, 749-51, 866 P.2d 56 (1994), aff'd on other grounds, 126 Wn.2d 418, 895 P.2d 403 (1995). An unwitting possession defense raises the issue of knowledge and can create reasonable doubt. A defendant has the burden to prove by preponderance that she unwittingly possessed the methamphetamine. State v. Riker, 123 Wn.2d 351, 368, 869 P.2d 43 (1994).
Although Smotherman's brief does not set out the language of an acceptable unwitting possession instruction, it is frequently phrased as follows:
A person is not guilty of possession of a controlled substance if the possession is unwitting. Possession of a controlled substance is unwitting if a person did not know that the substance was in her possession or did not know the nature of the substance.
The burden is on the defendant to prove by a preponderance of the evidence that the substance was possessed unwittingly. Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true.
See 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 52.01 (3d ed. 2008).
The State does not contend that the evidence was insufficient to support the giving of an unwitting possession instruction. But it points out that the decision to request an unwitting possession instruction is a tactical one. In addition, an unwitting possession instruction places the burden of proof on the defense to prove that their admitted possession is unwitting and that, because the State bears the burden of proving possession, unwitting possession instructions can confuse the burden of proof for juries. Here, at trial Smotherman testified in response to leading questions that she "[had no] knowledge of that item." Report of Proceedings (Dec. 19, 2007) at 93. She did not testify that she did not know that the crystalline powder found next to her marijuana pipes was methamphetamine, but that it was not hers. Essentially, Smotherman maintained that she did not own the methamphetamine or the methamphetamine pipes (found under a blanket next to where she was sitting) and that the house was not her residence. But someone may possess an item without owning it and defense counsel's tactical decision to put the State to the burden of proving that Smotherman, who asserted that she stayed at her boyfriend's house only intermittently, possessed the methamphetamine police seized.
Our review of the record indicates that defense counsel's decision not to request an unwitting possession instruction was a legitimate trial tactic that does not provide a basis for a claim of ineffective assistance of counsel. Garrett, 124 Wn.2d at 520. By not offering the unwitting possession instruction, Smotherman was able to argue that she did not know what was on the messy coffee table in her boyfriend's living room and did not possess it without admitting that she possessed the items but that, unknown to her, one of the items was methamphetamine. By making an unwitting possession argument, Smotherman would unnecessarily risk confusing the jury with distinct burdens of proof. Smotherman's defense counsel's tactical decision to put the State to its burden of proving possession was reasonable and his performance was not deficient. Smotherman was not denied effective assistance of counsel. Sufficiency of the Evidence
Smotherman also argues that in light of her testimony that she did not live in the house, the evidence was insufficient to establish the dominion and control necessary to prove possession. Evidence is sufficient to support a conviction if, 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. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004); State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). A claim of insufficiency admits the truth of the State's evidence and all inferences this court reasonably can draw from that evidence. Thomas, 150 Wn.2d at 874 (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). Circumstantial and direct evidence are considered equally reliable. Thomas, 150 Wn.2d at 874. Whether Smotherman "possessed" the methamphetamine was a question for the jury. See State v. Staley, 123 Wn.2d 794, 802, 872 P.2d 502 (1994). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75.
Possessing a controlled substance is unlawful under RCW 69.50.4013. Methamphetamine is a controlled substance. RCW 69.50.206(d)(2). To prove possession beyond a reasonable doubt, the State must establish that Smotherman actually or constructively possessed the plastic baggie containing what she identified as methamphetamine. Staley, 123 Wn.2d at 798 (citing State v. Walcott, 72 Wn.2d 959, 968, 435 P.2d 994 (1967), cert. denied, 393 U.S. 890 (1968)); State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). "Actual possession means that the goods are in the personal custody of the person charged with possession; whereas, constructive possession means that the goods are not in actual, physical possession, but that the person charged with possession has dominion and control over the goods." Callahan, 77 Wn.2d at 29. Smotherman was not in actual possession of the contraband when police arrested her. The question is whether the State's evidence is sufficient to establish that she had dominion and control over the baggie and prove her constructive possession.
RCW 69.50.4013 states:
(1) It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter.
(2) Except as provided in RCW 69.50.4014, any person who violates this section is guilty of a class C felony punishable under chapter 9A.20 RCW.
Methamphetamine is listed as a controlled substance in Schedule II of the Uniform Controlled Substances Act under RCW 69.50.206:
(d) Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system:
. . . .
(2) Methamphetamine, its salts, isomers, and salts of its isomers.
Either proximity to the controlled substance or the ability to reduce the substance to immediate possession does not, by itself, prove dominion and control beyond a reasonable doubt. State v. Hagen, 55 Wn. App. 494, 499, 781 P.2d 892 (1989); State v. Mathews, 4 Wn. App. 653, 656, 484 P.2d 942 (1971). But dominion and control over the substance need not be exclusive. State v. Cote, 123 Wn. App. 546, 549, 96 P.3d 410 (2004). Establishing constructive possession is a fact-specific inquiry that requires examining the totality of the situation to determine whether the jury could have reasonably inferred that Smotherman had dominion and control over the methamphetamine. Cote, 123 Wn. App. at 549 (citing State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977)).
Various factors determine dominion and control and the cumulative effect of a number of factors is a strong indication of constructive possession. State v. Ibarra-Raya, 145 Wn. App. 516, 525, 187 P.3d 301 (2008) (citing Partin, 88 Wn.2d at 906). As a practical matter, control over the premises raises a rebuttable inference that the defendant possessed the drugs. 13A Seth A. Fine Douglas J. Ende, Washington Practice: Criminal Law, § 906 at 174 (1998); see also Callahan, 77 Wn.2d at 30. Although Smotherman testified that she was not living at the residence, she also admitted that her name was on the lease. In addition, when the police came to the residence in response to a neighbor's noise complaint, Smotherman was the only person in the house and she gave police permission to enter. Moreover, the baggie containing the methamphetamine was found between two glass pipes which Smotherman admitted were hers. She also admitted that she used the pipes to smoke marijuana.
Smotherman argues that, although the State proved that she owned the marijuana pipes, it proved only that she had mere proximity to the baggie of methamphetamine and that proof of mere proximity to the substance is not enough. She relies on Callahan, 77 Wn.2d at 29, and State v. Spruell, 57 Wn. App. 383, 388, 788 P.2d 21 (1990), for support. She argues that the State did not provide sufficient evidence showing that Smotherman could immediately reduce the baggie to her actual possession and that, therefore, proof of constructive possession fails. We disagree.
Smotherman's reliance on Callahan is misplaced. In Callahan, Charles Weaver testified that the drugs belonged to him and that he had sole control over them. 77 Wn.2d at 31. Others corroborated his account. Callahan, 77 Wn.2d at 31. In contrast, here there was no "undisputed direct proof plac[ing] exclusive possession in some other person." Callahan, 77 Wn.2d at 31-32. Smotherman's reliance on Spruell is also misplaced. In Spruell, more than one person was near the drugs when police entered the residence and the State did not present any evidence that the defendant was an occupant of the residence or that he had any connection with the house other than being present on the day police seized the illegal drugs. 57 Wn. App. at 388.
Here, despite Smotherman's claims, the totality of the evidence presented at trial sufficiently supports the jury's verdict. Smotherman's name was on the lease and she was the only one in the house when police arrived. She admitted owning and using the two glass marijuana pipes found on the coffee table next to the baggie which she readily identified as containing methamphetamine. Smotherman apparently believed that if she did not own the methamphetamine she could not unlawfully possess it. This is incorrect. See State v. Turner, 103 Wn. App. 515, 522, 13 P.3d 234 (2000) ("Another person claiming ownership is only one factor in evaluating whether the defendant has constructive possession."). The methamphetamine was found within three to five feet of where Smotherman was sitting and, the State argued, had been sitting when Sergeant Hartley first knocked on the door. On the couch under a blanket next to where Smotherman sat was a methamphetamine pipe that Smotherman claimed belonged to her mother and sister. Viewed in the light most favorable to the State, this evidence supports the jury's apparent finding that Smotherman's excuses were incredible and that, on March 26, she had dominion and control over the methamphetamine found next to her marijuana pipes on the coffee table. We will not substitute our view of the credibility of the witness for that of the jury, which is in a better position to make such determinations. Thomas, 150 Wn.2d at 874-75. Accordingly, we affirm Smotherman's unlawful possession of a controlled substance conviction.
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.
VAN DEREN, C.J. and PENOYAR, J., concur.