STATE v. GRIST, 34647-8-II (Wash.App. 6-26-2007)

No. 34647-8-II.The Court of Appeals of Washington, Division Two.
June 26, 2007.

Appeal from a judgment of the Superior Court for Pacific County, No. 05-1-00288-1, Michael J. Sullivan, J., entered March 6, 2006.

Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, A.C.J., and Bridgewater, J.

QUINN-BRINTNALL, J.

Don Grist appeals his convictions for two counts of unlawful possession of a controlled substance, marijuana and methamphetamine. He argues that: (1) his counsel was ineffective for opening the door to the State’s use of his confession; (2) insufficient evidence supported the marijuana possession conviction because the jury should have believed his testimony over that of a sheriff’s deputy; (3) the unwitting possession jury instruction misstates the law; (4) the prosecutor committed misconduct by characterizing his theory of unwitting possession as “magical static cling” (Report of Proceedings (RP) (Feb. 28, 2006) at 66) and by saying that the State need not prove that he knew he possessed methamphetamine; and (5) the cumulative error doctrine warrants reversal. We affirm.

FACTS
Pacific County Deputy Sheriff Pat Matlock pulled over the car that Grist drove and arrested him for driving with a suspended license. During a search incident to arrest, deputies found a baggie of marijuana on the driver’s seat floorboard. Grist admitted to deputies that he had recently purchased the marijuana. In the later search at the jail, Corrections Officer Penny Drake lifted Grist’s shirt out of his pants and found a plastic baggie containing methamphetamine.

The State charged Grist by amended information with knowing possession of a controlled substance, methamphetamine, while under custody or supervision of a correctional institution in violation of RCW 69.50.4013
and 9.94.041(2) (Count I) and unlawful possession of marijuana under 40 grams in violation of RCW 69.50.4014 (Count II).

The parties agreed to forego a CrR 3.5 suppression hearing of Grist’s admission in exchange for the State’s promise not to use the admission as substantive evidence in its case-in-chief. The State did not introduce the confession in its case-in-chief. But during the defense casein-chief, Grist’s attorney asked Grist whether he knew there was marijuana in the car he drove. Grist denied that he did and, on this basis, the State presented Deputy Matlock’s testimony that Grist admitted that the marijuana belonged to him.

Grist asserted an unwitting possession defense to both charges. Regarding the marijuana, he pointed out that the car did not belong to him and many people used it, implying that another person placed the marijuana on the floorboard without Grist’s knowledge. Regarding the methamphetamine, Grist testified that he did not know how it got there, “[u]nless it came from a dryer or — there’s no way. It’s not possible. Static cling. I don’t know.” RP (Feb. 28, 2006) at 63. The State cross-examined him about the “magical static cling” theory he suggested. RP (Feb. 28, 2006) at 66. The jury convicted Grist of the lesser included offense of unlawful possession of methamphetamine, not in a correctional institution, and of unlawful possession of marijuana.

This appeal requires that we consider whether: (1) Grist’s counsel was ineffective; (2) sufficient evidence supported the marijuana possession conviction; (3) the unwitting possession jury instruction improperly shifted the burden of proof to the defense; (4) the prosecutor committed misconduct by saying the words “magical static cling”; and (5) cumulative error requires reversal.

ANALYSIS
Effective Assistance of Counsel

Grist asserts that his counsel was ineffective for opening the door to the State’s use of his confession. Grist’s counsel made a tactical decision to ask Grist whether he possessed marijuana. But it was Grist’s own decision to commit perjury that opened the door to use of his confession on rebuttal. We, therefore, affirm on this ground.

To show ineffective assistance of counsel, an appellant must prove both (1) that his attorney’s performance was deficient and (2) that this deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Deficient performance is that which falls below an objective standard of reasonableness. State v. Horton, 116 Wn. App. 909, 912, 68 P.3d 1145 (2003). But we begin with a strong presumption that defense counsel is competent. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). To satisfy the prejudice prong of the ineffective assistance of counsel claim, the appellant must show that counsel’s performance was so inadequate that there is a reasonable probability that, but for the deficient performance, the result would have differed, thereby undermining this court’s confidence in the outcome. Strickland, 466 U.S. at 694.

Here, Grist declined a CrR 3.5 hearing to suppress his admission to police that he had recently purchased the marijuana that he was charged with possessing. In exchange, the State agreed that it would not use his statement in its case-in-chief. During trial, Grist’s attorney asked Grist whether he had “any knowledge of any marijuana in th[e] vehicle?” RP (Feb. 28, 2006) at 55. Grist answered, “No.” RP (Feb. 28, 2006) at 55. This answer opened the door for the State to impeach Grist’s denial by introducing his admission that the marijuana was his and that he had recently purchased it.

The State argues that counsel’s question was part of a legitimate strategy to help Grist prevail on the felony methamphetamine possession charge, a more serious offense than the misdemeanor marijuana possession charge. If counsel’s conduct was a legitimate trial strategy or tactic, it cannot provide a basis for a claim of ineffective assistance of counsel. State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999).

The charge of marijuana possession was a misdemeanor that would likely carry a very small penalty if Grist were convicted. But the methamphetamine possession charge was a felony with a much greater penalty. The trial transcript reveals that it would be extremely unlikely that Grist could prevail on the methamphetamine charge unless the jury found that he was a credible witness. Grist’s counsel had very limited means to bolster Grist’s credibility and if Grist failed to explain the marijuana possession charge, this omission would further diminish Grist’s credibility. A jury would be more likely to believe Grist’s testimony regarding the methamphetamine charge if he accepted responsibility for the marijuana charge. Thus, it was a legitimate trial tactic for Grist’s counsel to ask him to explain the marijuana possession in order to strengthen the defense on the methamphetamine possession charge.

Further, Grist’s counsel did not open the door to the State’s use of the admission. Had Grist not committed perjury by saying he did not knowingly possess the marijuana, the State would not have had the authority to use the admission to impeach Grist’s credibility. Grist’s counsel surely did not anticipate that Grist would lie on the stand. Grist received effective assistance of counsel.

Sufficient Evidence of Marijuana Possession

Grist next argues that insufficient evidence supported his conviction for marijuana possession. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt based on all evidence in the record. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068
(1992).

Grist asks this court to reweigh the evidence and find him a credible witness. Deputy Matlock testified that, after he found the marijuana, Grist told him and Deputy Robbins that “he had just returned from buying the marijuana down the road.” RP (Feb. 28, 2006) at 69. When the deputies asked whether the drugs belonged to him, Grist “said it was his, said he just bought it.” RP (Feb. 28, 2006) at 69. On appeal, Grist asks us to disbelieve Deputy Matlock’s testimony in favor of his own account at trial that he did not know that the car he drove had a bag of marijuana inside. But we do not reweigh evidence or assess witness credibility, as that is the exclusive province of the trier of fact. State v. Boot, 89 Wn. App. 780, 791, 950 P.2d 964, review denied, 135 Wn.2d 1015
(1998). And when reviewing for sufficiency of evidence, we are required to view all evidence in the State’s favor. Salinas, 119 Wn.2d at 201. Under these standards, the evidence was clearly sufficient to support the conviction.

Unwitting Possession Jury Instruction

Grist claims that the unwitting possession jury instruction improperly shifts the burden of proof to the defendant. We disagree.

The instruction at issue, No. 7, reads:

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 his 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.

Clerk’s Papers at 33; 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 52.01, at 679 (2d ed. 1994).

Grist asks us to expand the ruling in State v. Carter, 127 Wn. App. 713, 718, 112 P.3d 561 (2005). In that case, Division Three of this court held that a similar instruction was erroneous as a matter of law because it shifted the burden of proof to the defendant to prove that possession of a firearm was unwitting. But Carter was premised on the fact that possession of a firearm is unlawful only if the defendant knowingly possessed the firearm. Thus, the State has the burden to prove beyond a reasonable doubt that the defendant knowingly (i.e., not unwittingly) possessed a firearm. See State v. Anderson, 141 Wn.2d 357, 365, 5 P.3d 1247 (2000) (interpreting RCW 9.41.040, which defines unlawful possession of a firearm).

But possession of a controlled substance is unlawful even if the defendant did not know he possessed the controlled substance. The legislature prohibits mere possession. State v. Bradshaw, 152 Wn.2d 528, 534, 98 P.3d 1190 (2004), cert. denied, 544 U.S. 922 (2005).[1]
Moreover, our Supreme Court acknowledged that it is the defendant’s burden to prove the affirmative defense of unwitting possession and rejected the argument that this scheme improperly shifts the burden of proof to the defendant. Bradshaw, 152 Wn.2d at 538. In short, Bradshaw
controls and Carter has no bearing on this case.

Grist also urges reversal based on ineffective assistance of counsel because his attorney did not object to this jury instruction based o Carter. Because Carter is inapposite, Grist’s attorney did not act deficiently for failing to object.[2]

No Prosecutorial Misconduct

Grist further argues that the prosecutor committed misconduct. To prove prosecutorial misconduct, Grist must show that the prosecutor’s conduct was both improper and prejudicial. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997) (citing State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995)), cert. denied, 523 U.S. 1007 (1998). But “[t]he prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury.” State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997) (citing State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991); State v. Fiallo-Lopez, 78 Wn. App. 717, 728, 899 P.2d 1294 (1995)), cert. denied, 523 U.S. 1008 (1998). We review allegedly improper argument “in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.” Brown, 132 Wn.2d at 561 (citing Russell, 125 Wn.2d at 85-86).

A. “Magical Static Cling”

Grist first challenges the State’s questions on cross-examination:

Q. [by State] Your testimony is that magical static cling caused this methamphetamine to come out of nowhere and stick to your sock; is that right?

The Court: Overruled.

Q . . . . Is that right? You need to answer yes or no for the record, Mr. Grist.

A. [by Grist] I said hypothetically speaking.

Q. Hypothetically speaking.

A. I’ve had static bounce come out of my sock and pant leg.

RP (Feb. 28, 2006) at 66-67 (emphasis added). The prosecutor was responding to Grist’s own comment that static cling may have caused the methamphetamine to stick to his clothes without his knowledge. Grist asserts that the prosecutor’s words “magical static cling” are an improper comment on the evidence. While it is misconduct for counsel to clearly express his personal opinion as to a witness’s credibility, there is no misconduct unless it is clear that counsel is expressing a personal opinion. State v. Price, 126 Wn. App. 617, 654, 109 P.3d 27, review denied, 155 Wn.2d 1018 (2005); State v. Allen, 57 Wn. App. 134, 142, 788 P.2d 1084 (1990). The prosecutor’s addition of the word “magical” to Grist’s own explanation did not deprive Grist of a fair trial and did not constitute prosecutorial misconduct warranting reversal.

B. Knowing Possession

Grist also argues that the prosecutor misstated the law when he asserted that the State need not prove that Grist “knowingly” possessed the controlled substances. Grist’s attorney did not object, and, thus, reversal is warranted only if the remark was so “flagrant and ill intentioned” that it causes enduring and resulting prejudice that a curative instruction could not have remedied. Price, 126 Wn. App. at 654.

Grist’s argument rests on his misinterpretation of the law regarding the unwitting possession affirmative defense discussed above. The State was not required to prove that Grist knowingly possessed methamphetamine or marijuana. Under the law, this is an affirmative defense and it is the defendant’s burden to prove that possession is unwitting. Bradshaw, 152 Wn.2d at 538. Grist also argues that his counsel was ineffective for failing to object to the comment during closing argument. We reject both arguments as clearly contrary to binding Supreme Court jurisprudence.

No Cumulative Error

Last, Grist requests reversal based on cumulative error. The cumulative error doctrine applies when several errors occurred at the trial court level but none alone warrants reversal. State v. Hodges, 118 Wn. App. 668, 673-74, 77 P.3d 375 (2003), review denied, 151 Wn.2d 1031 (2004). Instead, the combined errors effectively denied the defendant a fair trial. Hodges, 118 Wn. App. at 673-74. Because Grist has demonstrated no error, this doctrine does not apply. Accordingly, 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.

QUINN-BRINTNALL, J.

We concur:

BRIDGEWATER, J.

VAN DEREN, A.C.J.