No. 32887-9-II.The Court of Appeals of Washington, Division Two.
Filed: April 11, 2006.
UNPUBLISHED OPINION
[EDITORS’ NOTE: This case is unpublished as indicated by the issuing court.]
Appeal from Superior Court of Pierce County. Docket No: 04-1-04917-4. Judgment or order under review. Date filed: 02/11/2005. Judge signing: Hon. Beverly. G. Grant.
Counsel for Appellant(s), Kathryn A. Russell Selk, Russell Selk Law Office, 1037 NE 65th St Box 135, Seattle, WA 98115-6655.
Counsel for Respondent(s), N. Antonio Hill, Attorney at Law, PO Box 3833, Federal Way, WA 98063-3833.
HUNT, J.
Douglas Clark appeals his conviction for methamphetamine possession. He argues insufficiency of evidence, prosecutorial misconduct, and ineffective assistance of counsel. Finding no reversible error, we affirm.
I. Methamphetamine Possession
A community corrections officer (CCO), accompanied by several Tacoma Police Officers, sought Douglas Clark at 1522-B Sixth Avenue, a Tacoma apartment. Although Clark had not formally provided this address to the Department of Corrections (DOC), the CCO believed it to be Clark’s residence based on a prior conversation with Clark. The property owner had earlier told police that Clark lived in that apartment.
When the CCO and police arrived, they saw Clark, shoeless, carrying an apparent bag of garbage out the door onto the porch. They arrested him,[1]
searched him incident to his arrest, but found no contraband on Clark’s person. Clark asked the officers to retrieve his shoes from inside the apartment, where, he said, there was another man. Clark also asked the officers to lock the apartment to protect it from theft, telling them where to locate the key. Inside the apartment, the officers found the other man[2] sitting in the living room near an apparent[3] drug pipe on a coffee table. The apartment contained two bedrooms. In one of the bedrooms, the CCO found 12 to 14 pieces of mail addressed to Clark[4]
and a backpack containing a baggie with methamphetamine residue inside. None of the items in the backpack identified its owner, and Clark denied it belonged to him. The CCO turned the methamphetamine over to the officers.
II. Procedure
The State charged Clark with possession of methamphetamine.
At the beginning and end of the trial, the court instructed the jury that the lawyers’ remarks were not evidence and the jury should disregard any arguments the evidence did not support. Rejecting specialized instructions proposed by the State and Clark, the trial court gave instruction 13, the standard WPIC instruction[5] defining actual and constructive possession. This instruction provided in relevant part:
Constructive possession occurs when there is no actual physical possession but there is dominion and control over the substance. Dominion and control need not be exclusive to establish constructive possession.
Clerk’s Paper (CP) at 69.
During deliberations, the jury sent the following query to the court: `If this is one’s dominion, is one responsible for everything inside the domain in all circumstance’? CP at 50. After consulting with both parties and at their request, the trial court responded to the jury, `Please re-read the dominion control instruction. No additional information will be provided.’ CP at 50. The jury later found Clark guilty.
Before sentencing, Clark’s attorney filed a written form motion for an exceptional sentence below the standard range, without specifying any particular basis. At sentencing, he argued for an exceptional sentence downward on several grounds, including the small quantity of methamphetamine,[6] citing State v. Alexander[7] in support. The State complained that Clark had not provided this citation in advance of argument. Nonetheless, the State rebutted Clark’s argument, pointing out that Clark faced a standard range prison sentence because of his prior choices (failing drug court) and his nine prior felony convictions, which Clark acknowledged.
Rejecting Clark’s claim that he wished to be a kidney donor, the trial court considered Clark’s other arguments and declined to impose an exceptional downward sentence, solely because of Clark’s extensive criminal record:
I am taking into consideration all the other arguments however, presented by both sides, and what I’m going to do is order — in particular the fact that you have been a good candidate for the trustee program, but then I look at your record and if your record had been, let’s say, to be kind, more stellar, I might be inclined to consider the downward sentence or a lower range, but because of your record I am going to adopt the recommendation of the State on this matter for 18 months only because of that record. I think if you had given me a little bit more to work with, I might have really considered the other way. So the Court will adopt the recommendation.
Sentencing Report of Proceedings (SRP) at 13-14 (emphases added). The trial court imposed a standard range sentence of 18 months confinement.
Clark appeals.
ANALYSIS I. Sufficiency of Evidence
Clark first argues that the evidence was insufficient to prove that he constructively possessed the methamphetamine residue found in the backpack. This argument fails.
A. Standard of Review
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). `[W]hen the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.’ State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). In performing this review and drawing inferences, circumstantial evidence is as reliable as direct evidence. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
As an appellate court, we `must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.’ Thomas, 150 Wn.2d at 874-75.
B. Dominion and Control Over the Premises
We have previously summarized the law governing constructive possession as follows:
A person has constructive possession when he or she has dominion and control over the item. This dominion and control need not be exclusive. Courts determine whether a person has dominion and control over an item by considering the totality of the circumstances. When a person has dominion and control over a premises, it creates a rebuttable presumption that the person has dominion and control over items on the premises.
State v. Summers, 107 Wn. App. 373, 384, 28 P.3d 780 (2001) (citations omitted).
In Summers, we cited a case from Division I of our court, which explained, `It is not a crime to have dominion and control over premises where drugs are found’ because such dominion and control `is but one factor in determining whether the defendant had . . . constructive possession over the drugs themselves.’ State v. Cantabrana, 83 Wn. App. 204, 208, 921 P.2d 572 (1996). But
[w]hen the sufficiency of the evidence is challenged on the basis that the State has shown dominion and control only over premises, and not over drugs, courts correctly say that the evidence is sufficient because dominion and control over premises raises a rebuttable inference of dominion and control over the drugs.
Cantabrana, 83 Wn. App. at 208 (emphasis added).
The evidence here was sufficient to support Clark’s conviction. Based on an earlier conversation with Clark, the CCO believed that Clark lived at the apartment. In addition, the landlord had told police that Clark lived at the apartment. Clark was taking garbage out of the apartment when police arrived. Moreover, he was not wearing shoes and, after his arrest, asked the police to retrieve his shoes from inside the apartment. Inside one of the apartment’s bedrooms, the CCO found 12 to 14 pieces of mail addressed to Clark. And Clark asked the police to lock the apartment to prevent theft of its contents, instructing them where to find the keys to the apartment.
Viewing this evidence, and the inferences there from, in the light most favorable to the State, as we must, we hold that a reasonable jury could find beyond a reasonable doubt that Clark exercised dominion and control over the apartment.
C. Dominion and Control Over the Methamphetamine
Clark next argues that evidence of dominion and control over the premises is not sufficient to establish dominion and control over the drugs in the backpack because (1) the other man was also present, sitting near the drug pipe in the living room; and (2) the State failed to present evidence that Clark exercised dominion and control over the specific area where the drugs were found, citing State v. Alvarez, 105 Wn. App. 215, 217, 19 P.3d 485 (2001). This argument also fails.
Clark is correct that, as a matter of law, proof that a defendant has dominion and control over a location does not automatically constitute proof that he constructively possessed drugs within that location. But, as we noted earlier, such proof does create a rebuttable inference or presumption that the defendant constructively possessed the drugs within. Cantabrana, 83 Wn. App. at 208. And, absent rebuttal, that presumption constitutes sufficient evidence for conviction. Cantabrana, 83 Wn. App. at 208.
Even if the other man’s presence in the apartment might somewhat rebutt the inference, the State presented additional evidence establishing Clark’s dominion and control over the specific area where the CCO found the drugs in the backpack: There were two bedrooms in the apartment. The CCO found two stacks of mail addressed to Clark in the same bedroom where he found the backpack containing the methamphetamine. And the other man was not in this bedroom or anywhere near the backpack.
Thus, even if the other man had been a resident exercising some dominion and control over the apartment,[8] the location of Clark’s mail in the backpack bedroom was evidence from which a reasonable jury could find beyond a reasonable doubt that Clark exercised dominion and control over that bedroom and the items within, including the methamphetamine in the backpack. Moreover, there was no evidence that anyone other than Clark occupied the bedroom where the methamphetamine was found with his mail.
II. Prosecutorial Misconduct
Clark next argues that the prosecutor committed misconduct in closing argument by telling the jury that (1) to convict Clark, it had to find merely that he had dominion and control over the apartment; (2) in order to acquit, it had to find a government conspiracy to frame Clark; and (3) the CCO had investigated where Clark lived before going to the apartment to find him. Clark did not object to any of this purported misconduct.
A. Standard of Review
We will not reverse for prosecutorial misconduct unless the prosecutor (1) acted improperly and (2) prejudiced Clark’s right to a fair trial. See State v. Boehning, 127 Wn. App. 511, 518, 111 P.3d 899 (2005). When evaluating purportedly improper remarks, we consider them in the context of the entire case, including the entire argument, the issues presented, the evidence at issue, and the court’s instructions. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). There is reversible prejudice only when there is a substantial likelihood that the conduct in question affected the jury’s decision. State v. Stenson, 132 Wn.2d 668, 718-19, 940 P.2d 1239 (1997).
Clark bears the burden of proof. See Stenson, 132 Wn.2d at 718. Because he failed to object to the claimed misconduct at trial, he has thereby waived the error, `unless the remark is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been’ remedied by a curative instruction. Russell, 125 Wn.2d at 86. Such is not the case here.
B. Dominion and Control
Clark contends that the State improperly told the jury it needed to prove only dominion and control over the premises in order to convict Clark. Clark seriously misstates the prosecution’s argument.[9]
Dominion and control of the apartment was certainly at issue here as a circumstance that could establish constructive possession of the methamphetamine. The State argued that it had proved Clark exercised dominion and control over the apartment as well as over the location of the methamphetamine in the backpack in the bedroom that also contained stacks of Clark’s mail. In the first challenged part of its closing, for example, the State properly argued that Clark constructively possessed the drugs, emphasizing the evidence establishing his dominion and control over the bedroom containing the backpack. In the second challenged portion, the State properly urged the jury to consider the totality of the circumstances when deciding whether Clark had exercised dominion and control over the drugs, again arguing reasonable inferences from the evidence of Clark’s dominion and control over the bedroom, and therefore, the drugs, on the day of his arrest namely, that the backpack containing the drugs and Clark’s mail were in the same bedroom.
Moreover, the State more than once acknowledged factual situations in which a person could live at a particular residence and yet not be in constructive possession of drugs found inside. The State further acknowledged that the other man in the apartment was also a potential possessor of the drugs, but it argued that the inferences from the evidence supported that Clark possessed the drugs. More than once, the State accurately told the jury that the issue was whether Clark had dominion and control over the drugs,[10] and it then legitimately proceeded to argue to the jury how they could reach this conclusion.
C. Government Conspiracy
Clark next argues that the State improperly told the jury it must find a government conspiracy to frame him in order to acquit. Clark analogizes to cases in which the State improperly argued that, in order to acquit, the jury must find a police officer lied. This argument also fails.
The challenged argument came during the State’s rebuttal, after Clark had argued extensively in closing that (1) the substance tested and found to be methamphetamine was not the same substance discovered in the backpack, and (2) the State was using instead some other random item from the police property room to convict Clark. The State’s `conspiracy’ argument in rebuttal was a direct response to Clark’s argument and merely pointed out the logical flaws in this defense theory.[11] Contrary to Clark’s assertions, the State did not affirmatively tell the jury that the jury must find such a conspiracy in order to acquit. Instead, the State summarized the evidence supporting the accuracy of the test results and the chain of custody, and then it returned to its argument that it had proved constructive possession under the totality of the circumstances.[12] `It is not misconduct . . . for a prosecutor to argue that the evidence does not support the defense theory’; rather, `the prosecutor, as an advocate, is entitled to make a fair response to the arguments of defense counsel.’ Russell, 125 Wn.2d at 87.
D. Facts Not in Evidence
Clark further contends that the State urged the jury to convict based on unadmitted evidence when it argued that `[t]hrough investigation and so forth [the CCO] found out [Clark was] living at the residence.’ Report of Proceedings (RP) at 323. This argument also fails.
The CCO testified that, before seeking Clark, he believed Clark was living at the apartment because of Clark’s own statements. Further, the police team accompanying the CCO had learned from the landlord that Clark lived there. The trial court admitted this testimony as substantive evidence without objection from Clark. Nor does Clark claim on appeal that this evidence was erroneously admitted. Thus, contrary to Clark’s assertion, the evidence supported the prosecutor’s argument.
Considering the State’s arguments as a whole, as we must, we find no prosecutorial misconduct.
III. Ineffective Assistance of Counsel
Finally, Clark argues that he received ineffective assistance of counsel because his lawyer did not effectively argue for an exceptional sentence below the standard range.[13] He fails to meet his burden of proof.
A. Standard of Review
To prove ineffective assistance, Clark must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). `[S]crutiny of counsel’s performance is highly deferential, and there is a strong presumption of reasonableness.’ State v. Day, 51 Wn. App. 544, 553, 754 P.2d 1021, review denied, 111 Wn.2d 1016 (1988). `If counsel’s conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim of ineffective assistance.’ Day, 51 Wn. App. at 553.
Under the prejudice prong, Clark `must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ State v. Lord, 117 Wn.2d 829, 883-84, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992), (quoting Strickland, 466 U.S. at 694.) Moreover, because Clark must prove both ineffective assistance and resulting prejudice, a lack of prejudice will resolve the issue without requiring an evaluation of counsel’s performance. Lord, 117 Wn.2d at 884. Clark’s argument fails on both grounds.
B. Exceptional Sentence Downward
As we note above, Clark’s trial counsel filed a written motion notifying the court and the State of his intent to seek an exceptional sentence downward, although he did not provide a supporting legal memorandum. On appeal, Clark points to no rule, statute, or precedent requiring even a written motion, let alone a legal memorandum in support, in order to seek an exceptional sentence downward. And we are unaware of any such authority.
In contrast, the record shows that (1) Clark’s lawyer ably argued several bases for a sentence below the standard range, including the one Clark advances on appeal the small quantity of methamphetamine possessed; and (2) the trial court considered this argument
More importantly, Clark cannot demonstrate prejudice flowing from ineffective assistance of counsel in light of the fact that the trial court explicitly denied Clark’s request for a lower sentence solely because of his extensive criminal history nine prior felony convictions. Clark attempts to characterize one of the trial court’s statements as an admonishment of his trial counsel, purportedly for failing to provide supporting law in advance of oral sentencing argument: `I think if you had given me a little bit more to work with, I might have really considered the other way.’ SRP at 14. But this assertion takes the trial court’s remark out of context. As the trial court imposed and explained its sentence, it said directly to Clark, not to his lawyer:
[B]ecause of your record I am going to adopt the recommendation of the State on this matter for 18 months only because of that record. I think if you had given me a little bit more to work with, I might have really considered the other way. So the Court will adopt the recommendation.
SRP at 13-14. Taking this quote in context, the trial court was clearly telling Clark that if his criminal record had not contained so many felonies, then the court might have considered a lower sentence. The court was clearly not lecturing Clark’s counsel for failure to provide briefing. On the contrary, the court explicitly stated it had considered the legal arguments of Clark’s counsel. SRP 13.
Clark fails to establish ineffective assistance of counsel.
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.
BRIDGEWATER, J. and VAN DEREN, A.C.J., concur.