STATE v. SWITZER, 144 Wn. App. 1034 (2008)

No. 36358-5-II.The Court of Appeals of Washington, Division Two.
May 13, 2008.

Appeal from a judgment of the Superior Court for Jefferson County, No. 06-1-00061-2, Craddock D. Verser, J., entered June 1, 2007.

Affirmed by unpublished opinion per Houghton, C.J., concurred in by Hunt and Penoyar, JJ.

HOUGHTON, C.J.

Nina Switzer appeals her conviction of unlawful possession of a controlled substance with intent to manufacture or deliver. She argues that she received ineffective assistance of counsel. Pro se, she raises additional claims of ineffective assistance of counsel and prosecutorial misconduct. We affirm.

FACTS[1]

On March 29, 2006, while Jefferson County Sheriff’s Deputy Andrew Pernsteiner was on routine patrol around midnight, he observed Switzer and her husband Randy in a grocery store. Pernsteiner watched the two leave the store and walk toward the parking lot. He radioed dispatch to check their driving status. The records check disclosed that each had a suspended driver’s license.[2]

Pernsteiner watched Switzer get into the driver’s seat of a white Ford Explorer parked in the grocery store parking lot. He waited for her to drive away. He and Sergeant Smith stopped the vehicle. Randy, Shane Potter, and Joshua Enders were passengers in the vehicle.

Smith arrested Switzer for driving with a suspended license, and Pernsteiner searched the vehicle incident to her arrest. He found Switzer’s purse on the driver’s side floorboard. Inside, he found a plastic container holding small amounts of what later tested positive as methamphetamine and cocaine. He also found a cigarette case containing marijuana.

Pernsteiner noticed a loose console between the vehicle’s two front seats and when he lifted the cover, he discovered a baggie later determined to contain 6.4 ounces of methamphetamine with an estimated street value of between $8,000 and $10,000.[3] He also found several smaller baggies he recognized as commonly used to package methamphetamine for distribution, a digital scale, and a factory-sealed box of insulin-type syringes. He testified that in his training and experience, the presence of a scale, small baggies, and a large amount of methamphetamine indicated that the possessor intended to sell methamphetamine; he also testified that the syringes were of a type commonly used to inject drugs.

Pernsteiner testified that, at the scene, Randy objected to his search of the vehicle.[4] He testified that he and Smith discussed whether it was possible to also charge Randy with possession in addition to Switzer; they ultimately concluded it was not because Switzer was the driver and ultimately controlled the vehicle.

Pernsteiner further testified that Randy denied any knowledge of the drugs, and Pernsteiner did not otherwise attempt to interview him because Switzer claimed sole responsibility for them. He testified that he was concerned about the presence of the three passengers because he knew all three to be convicted felons with extensive criminal histories, they were all “relatively large statured men,” and one carried a knife. II Report of Proceedings (RP) at 228. But he determined that none of the passengers was subject to search as a result of arresting Switzer for driving with a suspended license, and he released them because he could not demonstrate possession.[5]

Pernsteiner testified that although Switzer told him at the scene that Randy had no involvement with the drugs, she also advised him that she did not want to talk to him there and appeared afraid to speak with him out on the street. He testified that after arriving at the jail, she told him that she had purchased the large quantity of methamphetamine for $2,400 from a person named Todd in Olympia and believed the amount to be four ounces; she had been “fronted” the drugs to sell because she was trying to raise money for a place to live after she and Randy had been evicted. RP at 226. She denied that Randy had any involvement.

The State charged Switzer with one count of possession with intent to manufacture or deliver a controlled substance, amphetamine or methamphetamine, RCW 69.50.401(2)(b). A jury heard the matter. During voir dire, the trial court told the jury pool that the State had the burden of proving each element of the crime charged beyond a reasonable doubt.

In addition to Pernsteiner, Jefferson County Jail Superintendent Steven Richmond and Jefferson County Sheriff’s Detective David Miller testified that Switzer told them she had purchased the methamphetamine from a person named Todd in Olympia, she was selling the drugs in an attempt to raise money to save her house, Randy was not involved, and she was afraid of Randy. Miller testified that certain details of Switzer’s account of how she came to purchase the drugs, such as the amount she expected to collect from the sale, were inaccurate and did not reflect the level of knowledge he would have expected from someone involved in the business of selling drugs.

At trial, defense counsel presented a defense that the methamphetamine in the vehicle’s console actually belonged to Randy and that Switzer made up a story that she was responsible for it because she feared Randy and was protecting him. In opening statement, he told the jury that he would be asking it to find Switzer guilty of possession and of driving with a suspended license but not guilty of possession with intent to deliver.

During trial, the State proposed a lesser included offense jury instruction for possession of a controlled substance and a knowledge instruction. The trial court stated that it did not intend to give the knowledge instruction because “knowingly” was not an element of the crime of possession with intent to deliver. Defense counsel then proposed an unwitting possession instruction and the State argued that if that instruction were included, a knowledge instruction was appropriate. The trial court agreed that a knowledge instruction might be appropriate depending on the testimony, but it decided not to give the unwitting possession instruction until defense counsel presented evidence justifying it.

Switzer testified at trial. She stated that she told Pernsteiner, Richmond, and Miller that the large quantity of methamphetamine was hers in order to protect Randy and keep him from going to prison. She stated that she had actually been unaware of the drugs in the console or who they belonged to, although she believed them to be Randy’s.

Switzer further testified that she was telling the truth now because she felt that Randy had abandoned her and that her efforts to protect him had only gotten her into trouble. She testified that Randy was a career drug addict who brought drug users into their home against her wishes and who had been in jail before; they had lost their home because of his involvement with drugs; he had arranged for the purchase of the vehicle she was driving when pulled over and she had only been driving it intermittently because the prior owners were still using it; she was unaware the console could be removed although she had noticed it was loose; and she typically drove Randy around because he had a suspended license but had never driven him anywhere to deliver drugs.

Switzer admitted that the drugs found in her purse belonged to her. She testified that Randy found the digital scale and put it in their vehicle when they went to collect their belongings after being evicted. She testified that she was unaware that the box of syringes was in the vehicle and had never seen them before and that, although her husband was an intravenous drug user, she had never used syringes.

Enders testified for the defense that Switzer never offered to sell him methamphetamine or any other controlled substance when she was driving him home on March 29. He testified that he was friends with Randy and would “hang out” at the Switzers’ home and that a lot of people would come to visit, stay for a short time, and then leave; drugs had been used in his presence at the home; and Switzer was present “[m]aybe a few times” when he was given drugs to share at the home. RP at 291, 295.

At the close of the case, the trial court determined it would give the defense’s unwitting possession instruction based on Switzer’s testimony. It agreed to give the State’s knowledge instruction, finding it relevant to the issue whether Switzer “did not know that the stuff was in her possession.” RP at 347.

Pertinent to our review, the trial court gave the jury the following instructions: (1) a to-convict instruction for the crime of possession with intent to deliver, stating that it must find each element proved beyond a reasonable doubt; (2) a possession instruction; (3) a knowledge instruction; (4) an intent instruction; (5) lesser included offense and to-convict instructions for the crime of possession of a controlled substance, stating that it must find each element proved beyond a reasonable doubt; and (6) an unwitting possession instruction, stating that Switzer had the burden to prove by a preponderance of the evidence that she possessed the substance unwittingly.

In closing argument, the State argued that it had provided the jury evidence to prove beyond a reasonable doubt the charge of possession with intent to deliver a controlled substance.

In closing argument, defense counsel acknowledged that the drugs in Switzer’s purse were hers but argued that the State’s case regarding the large quantity of methamphetamine found in the vehicle was one of constructive possession and that, because Switzer was the driver, police were unable to show that it was Randy who was in possession of the drugs. Defense counsel argued that, although Switzer had earlier confessed that the methamphetamine was hers, the inaccurate and “laughable” details of her story showed that she fabricated it. RP at 375. He argued that Switzer was telling the truth now because of her poor choices and Randy’s failure to help her.

Defense counsel also discussed the meaning of the unwitting possession instruction. He stated that it was the defense’s burden to prove by a preponderance of the evidence that Switzer possessed the substance unwittingly and noted that the jury heard her deny having any knowledge of the large quantity of methamphetamine.

Defense counsel went on to state:

But, this is difficult. This is difficult for me to convince you guys of: that it’s more probably true than not true that she didn’t know it was there.
You’ve heard the evidence, and, her testimony, and the testimony of the officers. So, did she know it was there? Did I prove to you that she didn’t know it was there by a preponderance that’s more likely than not? I’d submit to you it’s a close call.
But, even if I haven’t proved to you that it was unwitting possession, . . . that bag of methamphetamine she didn’t know it was there.
The State still has to show that she possessed it constructively, that it’s there is this hidden compartment. . . . She has to prove to you that she possessed that, and that . . . Ms. Switzer? intended to deliver it.
. . . .
Because the State hasn’t charged her as an accomplice to the crime, you have to find that it was Ms. Switzer that intended to sell this stuff, to deliver this stuff. And the State hasn’t proved that.
. . . .
It’s your job to determine whether [Switzer’s] testimony is credible. And, I’d submit to you it is. And, so, even if I haven’t been able to convince you that this bag of methamphetamine was unwittingly possessed, because that’s my burden, it’s like the burden shifts. Most of the time the State has to prove anything, and I can sit down there like a potted plant and do nothing. We talked a little bit about that in voir dire.[6]
But, when we’re talking about unwitting possession, I need to convince you that it was unwitting and, by . . . just a preponderance. But, it remains the State’s burden to show, even if I can’t do that, or, haven’t done it, that Nina Switzer . . . possessed this because it was in her car, or at least the car she was driving, and that she intended to deliver. Not as an accomplice, not driving anybody around so that they could do that. But, that she, herself, intended to deliver the methamphetamine found there.
I’d submit to you the Prosecutor hasn’t met its burden.

RP at 380-82.

Defense counsel then reminded the jury that if it found the State had not met its burden, it should turn to the lesser included offense instruction, stating:

And, if after full and careful deliberation on that charge you’re not satisfied beyond a reasonable doubt that [Switzer] is guilty of possessing that, because it was in her car, and you don’t believe it was unwitting by a preponderance, and that she intended to deliver it herself, then you will consider whether the defendant is guilty of the lesser included crime of Possession of a Controlled Substance Other than Marijuana, to wit: Methamphetamine.
. . . .
But, if you decide that she’s not guilty, because the State hasn’t proved beyond a reasonable doubt that she possessed this, because she was driving the car and was there, and she intended to deliver it, then you fill in the words “Not Guilty,” and you move on to Verdict Form B, which is, did she possess it without any intent to deliver.

RP at 383-84.

Defense counsel asked the jury to find Switzer not guilty of possession with intent to deliver methamphetamine but guilty of possession of methamphetamine, whether from the small amount in her purse or the large amount possessed “because she happened to be driving the car.” RP at 384.

The jury convicted Switzer of unlawful possession with intent to manufacture or deliver a controlled substance, methamphetamine. She appeals.

ANALYSIS Ineffective

Assistance of Counsel

Switzer contends that she received ineffective assistance of counsel because, in closing argument, defense counsel erroneously assumed the burden of proving by a preponderance of the evidence her lack of intent to deliver when the State bore the burden of proving intent to deliver beyond a reasonable doubt. She argues that defense counsel also erroneously related an unwitting possession defense to the charge of possession with intent to deliver because there can be no intent to deliver where a person is unaware that the drug is present. She argues that defense counsel’s error was not harmless because the State’s entire case rested on proof of her knowledge and intent regarding the drugs found in the vehicle and because a reasonable probability existed that the jury, had it properly understood the burdens of proof, could have found she confessed to protect Randy. She also contends that use of an unwitting possession jury instruction was questionable here because defense counsel’s strategy was to argue a lesser included offense rather than seek an acquittal.

We review an ineffective assistance of counsel claim de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995). To demonstrate ineffective assistance of counsel, a defendant must show that counsel’s deficient performance prejudiced the defense such that, but for the deficient conduct, the proceeding’s outcome would have differed Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). A defendant must make a showing as to both prongs and must also overcome a strong presumption that defense counsel’s conduct was effective Strickland, 466 U.S. at 687; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Legitimate trial strategy or tactics cannot serve as the basis of an ineffective assistance of counsel claim. State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978).

The State has the burden to prove each element of a charged crime beyond a reasonable doubt. In the Matter of Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The crime of unlawful possession with intent to deliver does not include a separate “knowledge” element because we presume that one who acts with the requisite mental state of intent (to manufacture or deliver a controlled substance) also acts with knowledge; thus, “knowledge” is subsumed within “intent.” State v. Sims, 119 Wn.2d 138, 142, 829 P.2d 1075 (1992). Accordingly, unwitting possession is not an affirmative defense to the crime of possession with intent to deliver because it is impossible for a person to intend to manufacture or deliver a controlled substance without knowledge that he is doing so. State v. Sanders, 66 Wn. App. 380, 390, 832 P.2d 1326
(1992).

On the other hand, unwitting possession is recognized as a defense to the crime of possession of a controlled substance, primarily to “ameliorate? the harshness” of what would otherwise be a strict liability crime. State v. Cleppe, 96 Wn.2d 373, 381, 635 P.2d 435 (1981). The availability of the defense does not impermissibly shift the burden of proof because “knowledge” is not an element the State must prove. See Sanders, 66 Wn. App. at 389-90. Thus, the burden remains on the State to prove the elements of unlawful possession of a controlled substance (the nature of the substance and the fact of possession), and the defendant then properly assumes the burden to prove the affirmative defense of unwitting possession. State v. Bradshaw, 152 Wn.2d 528, 538, 98 P.3d 1190 (2004).

Here, defense counsel offered an unwitting possession instruction as an affirmative defense to the lesser included offense of possession. This was clearly a strategic choice by defense counsel because, had the jury determined that Switzer was only guilty of the lesser charge of possession, the instruction would have given it a means to acquit her if it believed her testimony that she was unaware of the methamphetamine in the vehicle console.

With regard to his statements during closing argument, although defense counsel may not have articulated the respective burdens of proof artfully, the record shows that he correctly stated multiple times that the State had the burden to prove possession with intent to deliver and that the defense had the burden of proving unwitting possession by a preponderance of the evidence. His statements regarding the defense’s burden of proof were made in the context of explaining the affirmative defense of unwitting possession.

Defense counsel veered closest to inverting the burdens of proof when he stated, “And, if after full and careful deliberation on that charge you’re not satisfied beyond a reasonable doubt that [Switzer] is guilty of possessing that, because it was in her car, and you don’t believe it was unwitting by a preponderance, and that she intended to deliver it herself, then you will consider whether the defendant is guilty of the lesser included crime of Possession.” II RP at 383. But even this statement communicates to the jury that if it did not find beyond a reasonable doubt that Switzer possessed the drugs with intent to deliver but only that she possessed them, and if it did not believe that that possession was unwitting, it should convict her of the lesser included offense of possession. Although defense counsel stated these burdens out of order, the substance of his statement itself was not incorrect.[7]

Further, the State reiterated its burden to prove guilt beyond a reasonable doubt during closing argument when it argued that it met that burden. We also note that the jury heard the testimony of three law enforcement officers who stated that Switzer confessed to possessing the large quantity of methamphetamine for the purpose of selling it and heard Switzer’s testimony that she fabricated that story to protect Randy and out of fear of him. Had the jury found her testimony credible, it could have convicted her of the lesser charge of possession and/or acquitted her because it decided that her possession was unwitting. We do not review the jury’s credibility determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

The trial court and jury instructions also properly informed the jury regarding the correct burdens of proof, including that the State had the burden to prove possession with intent to deliver beyond a reasonable doubt and the defense had the burden to prove unwitting possession by a preponderance of the evidence. In the absence of evidence to the contrary, we presume juries to have followed the court’s instructions in their deliberations. State v. Allen, 50 Wn. App. 412, 421, 749 P.2d 702
(1988). Switzer presents no evidence that the jury failed to follow the trial court’s instructions.

In sum, Switzer fails to establish either that defense counsel’s performance fell below an objective standard of reasonableness or that, but for his statements during closing argument, there is a reasonable probability that the trial result would have differed. Strickland, 466 U.S. at 687. Her claim fails.

Statement of Additional Grounds[8]

In her statement of additional grounds (SAG), Switzer argues that she received ineffective assistance of counsel because defense counsel opened the door to suppressed evidence, namely, the content of a taped statement she made to police before she was read her Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The record demonstrates that Pernsteiner made an audio and video recording of the traffic stop on Switzer’s vehicle, including a conversation he had with Switzer while she was in the back of the patrol vehicle. He made an audio-only recording of his later interview of Switzer at the jail. In a pretrial CrR 3.5 hearing, the trial court ruled that the recorded confession from the patrol vehicle and any related testimony was inadmissible because that portion of the recording did not reflect that Pernsteiner first read Switzer the Miranda warnings.

During cross-examination, defense counsel questioned Pernsteiner about statements Switzer made to him at the scene and at the jail. He used a portion of the recording of the traffic stop to refresh Pernsteiner’s recollection of statements he made about his concern regarding the presence of three other convicted felons at the scene. On redirect, the State sought to admit the entirety of defense exhibit 27 that included a transcript of the jail interview.[9] Defense counsel objected to it as hearsay, and the trial court sustained the objection to admission of the transcript but allowed the State to use it for cross-examination.

On the record, the State appears to only have been seeking to admit the transcript of the jail interview, which was not subject to the trial court’s CrR 3.5 ruling. In any event, no one disputed that Switzer initially confessed to the crime because she herself testified to this and Pernsteiner, Richmond, and Miller all properly testified to her confessions. Even assuming that defense counsel opened the door on evidence that was otherwise inadmissible, and it is not clear from the record that he did so, any error was harmless. See State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).

Switzer also contends that the State presented a noncredible witness at trial who had a Page 16 prior drug and criminal history, a head injury, and could not recall his surroundings. She argues that defense counsel refused to subpoena the witness. Switzer appears to be referring to Enders. Enders was a defense witness and the record does not support Switzer’s contention that he was not fit to testify or was unaware of his surroundings. Further, we do not review the jury’s credibility determination or matters beyond the record. Camarillo, 115 Wn.2d at 71 McFarland, 127 Wn.2d at 338 n. 5. In sum, all of Switzer’s SAG claims fail.

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, J., concur.

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