STATE v. KNUTSON, 146 Wn. App. 1005 (2008)

No. 36456-5-II.The Court of Appeals of Washington, Division Two.
July 22, 2008.

Appeal from a judgment of the Superior Court for Cowlitz County, No. 07-1-00409-0, James E. Warme, J., entered June 14, 2007.

Affirmed by unpublished opinion per Houghton, J., concurred in by Penoyar, A.C.J., and Hunt, J.

UNPUBLISHED OPINION

HOUGHTON, P.J.

Roy Knutson appeals his conviction of unlawful possession of a controlled substance, methamphetamine, arguing that the trial court erred in admitting his statement made during custodial interrogation. He also argues that insufficient evidence supported his conviction and that he received ineffective assistance of counsel. We affirm.

FACTS
On the evening of March 24, 2007, while on routine patrol, Castle Rock Police Officer Jeffrey Gann and his partner Officer Yeager encountered Knutson. Gann conducted a routine check on the vehicle license plate and determined that the vehicle’s registered owner had a suspended Oregon driver’s license and only a Washington State identification card. The officers pulled the vehicle over for suspicion of driving with a suspended license.

Officer Brandon McNew also arrived at the scene for routine backup. Gann contacted the driver, who presented a Washington State identification card identifying him as Knutson. Gann determined that Knutson was one of two registered owners of the vehicle.[1] Gann saw a male passenger in the vehicle’s front passenger seat; no one else was inside the vehicle. Gann placed Knutson under arrest for driving with a suspended license and secured him in the back of his patrol vehicle.[2]

Gann then conducted a search of the vehicle incident to arrest. When he opened the driver’s side door, he immediately observed a “small, bluish baggie of a ziplock baggie type, approximately . . . one and a half-inch square” containing a white crystal substance that he recognized in his training and experience as consistent with methamphetamine. Report of Proceedings (RP) at 82-83. The substance later tested positive as five one hundredths of a gram of methamphetamine. The State charged Knutson with unlawful possession of methamphetamine.

The trial court held a CrR 3.5 hearing to determine in part the admissibility of a statement made by Knutson. At the hearing, McNew testified that he advised Knutson of hi Miranda[3] rights, and Knutson indicated that he understood his rights and agreed to answer questions. McNew testified that he asked Knutson to explain the methamphetamine found in the vehicle. He testified that Knutson replied that it did not belong to him, stating, “If I had known it was there, I’d have smoked it already.” RP at 118. McNew stopped the questioning.

McNew also testified that he did not speak to Knutson until after he gave him the Miranda warnings. He also logged in the narrative report he wrote that day that he gave Knutson the Miranda warnings. He testified that he read the warnings from a “State-issued card from the Criminal Justice Training Commission.” RP at 59. He did not have the same card with him for the hearing, but he testified that he had with him a card he borrowed from another deputy, stating that it was “very similar” in language to the card he used and “not word-for-word, but it says the same thing.” RP at 60.

Defense counsel objected that the card was demonstrative only. The trial court overruled the objection. McNew read from the card and testified how the language varied from the warnings he gave Knutson on March 24. Defense counsel also argued that the State failed to demonstrate by a preponderance of the evidence that McNew gave Knutson the proper Miranda warnings.

The trial court found the State met its burden and that Knutson made his statement voluntarily, stating, “The only factual dispute is the exact wording. Mr. McNew is pretty clear about how this statement differed. There’s no showing that substantively, the recitation of rights was defective. There’s no claim by Mr. Knutson that he didn’t understand.”[4] RP at 71.

A jury heard the matter. Gann and McNew testified regarding the circumstances of Knutson’s arrest, the discovery of the methamphetamine, and Knutson’s statement. The trial court instructed the jury on actual and constructive possession, unwitting possession, and knowledge. The jury convicted Knutson of possession of methamphetamine and he appeals.

ANALYSIS Miranda Rights
Knutson first contends that the trial court violated his constitutional right to remain silent when it admitted his statement made during custodial interrogation without proof that the officers properly informed him of his Miranda
rights. He argues that McNew only testified to reading a card “similar to” the one he had with him in court, admitted the cards were not identical, and could not tell the trial court what the differences between the two cards were.

Where the trial court determines a confession voluntary, we do not disturb that determination on appeal if substantial evidence supports the trial court’s finding the confession voluntary by a preponderance of the evidence. State v. Aten, 130 Wn.2d 640, 664, 927 P.2d 210 (1996). We uphold a trial court’s CrR 3.5 findings of fact if substantial evidence supports them State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363
(1997). We review a trial court’s legal conclusions de novo State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).

Here, the trial court determined that the State met its burden to show by a preponderance of the evidence that McNew advised Knutson of his Miranda rights and that Knutson made his statement voluntarily. It found that (1) the only factual dispute was as to the exact wording of the warnings, (2) McNew testified clearly as to how the two statements differed, (3) there was no showing that the recitation of rights was substantively defective, and (4) Knutson made no claim he did not understand.[5]

A suspect must be advised of his Fifth Amendment rights before a State agent may conduct a custodial interrogation Miranda, 384 U.S. 444. Miranda protections apply “whenever a person in custody is subjected to . . . express questioning.” Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). Unde Miranda, a suspect must be advised of his right to remain silent; that his statements may be used against him; that he may confer with an attorney; and that if he is unable to afford an attorney, he is entitled to have one appointed without charge. Miranda, 384 U.S. at 479; CrR 3.1(c)(1). A suspect may waive these rights as long as the waiver is made knowingly, voluntarily, and intelligently. State v. Davis, 73 Wn.2d 271, 282, 438 P.2d 185 (1968). A confession is voluntary, and therefore admissible, if made after the defendant is advised of his right then knowingly, voluntarily, and intelligently waives them. Aten, 130 Wn.2d at 663. The State must prove by a preponderance of the evidence that a defendant validly waived his constitutional Miranda
rights. State v. Earls, 116 Wn.2d 364, 379, 805 P.2d 211 (1991).

Here, no one disputes that Knutson was under arrest for driving with a suspended license and that McNew was conducting a custodial interrogation of Knutson at the time he made the statement. The law required that Knutson receiv Miranda warnings. Innis, 446 U.S. at 300-01.

At the CrR 3.5 hearing, the State asked McNew how the card he borrowed from another deputy for the hearing differed from the one he read to Knutson on March 24, 2007. McNew stated: “My card is about the size of your driver’s license; it’s made out of the same material; and it’s, I don’t know, laser printed on there; and it’s this, pretty much, line by line. You have the right to remain silent, and on and on and on.” RP at 61.

He testified that there was no substantial difference between the card he read on March 24 and the card he had with him at the 3.5 hearing, stating, “they say the same thing, they’re just in slightly different language.” RP at 62. He said that immediately following his reading of the Miranda warnings, he asked Knutson if he understood the warnings, stating, “The question would have been: Do you understand these rights as I’ve explained them to you and he replied, `Yes.'” RP at 62. He testified that he asked Knutson if it would be all right to ask him some additional questions, and Knutson agreed.

On cross-examination, defense counsel asked McNew if he had a memory of the exact Miranda warnings he gave Knutson. McNew stated, “I’ve read it so many times I could do it nearly word for word. I would hate to say it’s exact, though, but I have — I mean, I’ve read it so many times from that card, that most the time it just flows right off.” RP at 64. He testified that he kept the card in his uniform pocket. Defense counsel asked if McNew could testify as to the exact differences between the current card and the one used at the time of arrest. McNew replied, “This one says, `You have the right to consult with counsel,’ I believe mine says, `You have the right to an attorney.’ This says, `Any statements you make can and will be used against you as evidence in a court of law,’ I don’t believe that’s the exact wording on mine, I think it’s — it’s very similar, but I think it’s worded slightly different.” RP at 64. He agreed that he could not testify as to the exact differences and agreed that the two cards were not word for word the same. But he testified that they meant the same thing to him.

On redirect, the State reviewed the card line by line with McNew and confirmed that the first line, “You have the right to remain silent,” was identical on both cards. RP at 67. McNew confirmed that the second line, “You have the right to consult with counsel before answering any questions,” and the third line, “You have the right to have your lawyer present during the interview,” were different in that his card read “attorney” instead of “counsel.” RP at 67-68. He testified that the fourth line, “Any statement you make can and will be used against you in a court of law,” differed from his card which read, “Any statement you make may be used against you in a court of law.” RP at 68. He testified that the fifth line, “If you cannot afford a lawyer, one will be appointed for you without cost . . . prior to questioning, if you desire,” was the same on both cards. RP at 68. He testified that the line, “If you wish to answer questions now, without a lawyer present, you have the right to stop answering questions at any time” was similar but he could not recall the exact wording on his own card. RP at 68-69. Finally, he testified that his card also read, “`Do you understand your rights as I’ve explained them to you?'” and “`Having these rights in mind, do you wish to answer questions at this time?'” and that he asked Knutson both questions on March 24. RP at 69.

Miranda warnings need not follow word-for-word the precise language in Miranda, but they must inform the defendant of his rights in a manner conveying their full importance to adequately inform the defendant of his constitutional rights. California v. Prysock, 453 U.S. 355, 355-56, 101 S. Ct. 2806, 69 L. Ed. 2d 696 (1981); State v. Rupe, 101 Wn.2d 664, 677, 683 P.2d 571 (1984). The essence of the Miranda warnings is to advise the defendant of his rights in a way which conveys their full importance. Rupe, 101 Wn.2d at 677. McNew read a version of the rights that conveyed all the essential aspects o Miranda to Knutson. Sufficient evidence supports concluding that the State met its burden of proof in showing that Knutson properly received his Miranda rights. Knutson’s argument fails.

Ineffective Assistance of Counsel
Knutson next contends that he received ineffective counsel. He argues that his counsel failed to object when the State repeatedly elicited evidence that the officer arrested Knutson, handcuffed him, read Miranda warnings to him, and searched him incident to arrest.[6] He asserts that none of this information was relevant for any purpose other than to voice to the jury the officers’ belief that Knutson committed the charged offense. He further argues that trial counsel failed to make relevance or ER 404(b) objections when the State twice introduced the defendant’s statement that had he known the methamphetamine was present he would have used it.

Both United States Constitution amendment VI and Washington Constitution article I, section 22 guarantee effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563
(1996). To prove ineffective assistance of counsel, appellant must show that (1) counsel’s deficient performance (2) prejudiced him. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). Counsel’s performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In the Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).

To prevail on a claim of ineffective assistance of counsel based on defense counsel’s failure to object, the defendant must show (1) the absence of a legitimate strategic or tactical reason for not objecting, (2) that the trial court would have sustained the objection if made, and (3) the result of the trial would have differed if the evidence had not been admitted State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364
(1998). If trial counsel’s conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the defendant received ineffective assistance of counsel. State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978).

Citing Warren v. Hart, 71 Wn.2d 512, 429 P.2d 873
(1967) and State v Carlin, 40 Wn. App. 698, 700 P.2d 323 (1985), Knutson argues that evidence of his arrest was highly prejudicial and not relevant. These cases are distinguishable. Both address a jury prejudiced by statements made during trial, by both witnesses and counsel, which clearly relayed an opinion of guilt or innocence to the jury. Here, the witnesses only testified about circumstances surrounding Knutson’s arrest for driving with a suspended license. They offered no opinion testimony on his guilt for methamphetamine possession. Thus, even assuming deficient performance, Knutson’s argument fails.

As for the admission of the statement Knutson made to police, trial counsel objected during the CrR 3.5 hearing. The trial court found the statement made by Knutson admissible. Nothing suggests that had defense counsel objected again during trial, the trial court would have sustained it. Rather, because objecting could have drawn the jury’s attention to Knutson’s statement, it was a legitimate trial tactic not to do so. Knutson’s ineffective assistance of counsel claims fail.

Sufficiency of the Evidence
Finally, Knutson contends that insufficient evidence supports his conviction of unlawful possession of methamphetamine. He argues that the small amount recovered and the lack of evidence of personal use shows that he did not know it was in the vehicle. He further asserts that the only evidence that places the methamphetamine in his dominion and control is his name on the joint registration for the vehicle.

Sufficient evidence supports a conviction if, 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 charged beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State’s evidence and all inferences that can reasonably be drawn therefrom Salinas, 119 Wn.2d at 201. On review, circumstantial evidence and direct evidence carry equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). We leave credibility and persuasiveness of the evidence determinations to the fact finder, and we do not review them on appeal. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997).

To prove unlawful possession of a controlled substance, the State must establish two elements: the nature of the substance and possession by the defendant. State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994). The State need not prove either knowledge or intent to possess, or knowledge as to the nature of the substance in a charge of simple possession Cleppe, 96 Wn.2d at 380.

Possession of a narcotic may be either actual or constructive State v. Sanders, 7 Wn. App. 891, 892, 503 P.2d 467
(1972). An individual is in constructive possession if he has dominion and control over the goods, regardless of whether he is in actual possession. State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). It is possible to prove constructive possession through circumstantial evidence. Sanders, 7 Wn. App. at 893.

Knutson was one of two registered owners of the vehicle and the vehicle’s driver at the time of the traffic stop. The officers discovered the substance that tested positive as methamphetamine readily observable and immediately next to Knutson by the driver’s door.

During the time when the police observed the vehicle, they saw no furtive movements by the passenger toward the driver side. Viewed in the light most favorable to the State, sufficient evidence supported the fact finder’s determination of guilt here.

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.

HUNT, J. and PENOYAR, A.C.J., concur.