State Of Washington, V Sophia Fatima Thomas ( 2015 )

FILED
COURT OF APPEALS
DIVISION II
2015 FEB 24
NI 9: 28
STATE OF
WASHINGTON
By
CITY.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 45101 -8 - II
Respondent, UNPUBLISHED OPINION
v.
SOPHIA F. THOMAS,
Appellant.
BJORGEN, A.C. J. — A jury found Sophia Thomas guilty of three counts of possession of
a controlled substance, one count of possession of a controlled substance with intent to deliver,
and one count of money laundering. The jury also found that Thomas or her accomplice was
armed with a firearm during two of these offenses. Thomas now appeals, claiming that
insufficient evidence supports ( 1) the jury' s guilty verdict for possession with intent to deliver,
2) the jury' s guilty verdict for money laundering, and ( 3) the jury' s findings that Thomas or her
accomplice was armed with a firearm. In a pro se statement of additional grounds, Thomas also
contends that she received ineffective assistance of counsel and that juror misconduct tainted her
trial.
No. 45101 -8 -II
Permissible inferences drawn from evidence presented by the State allowed a rational
jury to find that the State had proven beyond a reasonable doubt that ( 1) Thomas was an
accomplice to the possession with intent to deliver offense, ( 2) Thomas committed money
laundering, and ( 3) Thomas or her accomplice was armed with a firearm while committing two
offenses. To the extent that Thomas bases her SAG arguments on the trial record, they do not
show any error. To the extent that Thomas' s SAG relies on matters outside the record, we
decline to address them in her direct appeal. We affirm Thomas' s convictions and the firearm
enhancements.
FACTS
Sometime in late 2011 or early 2012, the Pierce County Sheriff' s Department began
investigating Kenneth Criswell for trafficking narcotics. The investigators turned their interest to
Thomas when officers noticed Criswell arriving at several controlled drug sales while driving her
cars. Investigators also discovered that in December 2011 and January 2012, just after she began
dating Criswell, Thomas made several large cash deposits and immediate withdrawals at her
credit union.
Through surveillance of Criswell, police determined that he spent a " majority of time" at
Thomas' s house, although he maintained a separate apartment. II Verbatim Report of
Proceedings ( VRP) at 129 -31, 133. Accordingly, police served a search warrant on Thomas' s
house early one morning in February 2012. Officers found Thomas and Criswell asleep in the
upstairs bedroom and took both into custody.
In the bedroom where they arrested Thomas and Criswell, police found a loaded pistol,
hydrocodone pills, and $ 3, 500 in cash. The pistol was hanging from the bed' s headboard, and
the hydrocodone was in Thomas' s purse. The purse also contained the cash, stuffed inside an
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envelope. Writing on the envelope appeared to detail Criswell' s sale of controlled substances,
recording the names of buyers, the quantity of drugs sold to each, and the cash value of the
transactions.
A search of the house yielded two additional firearms, other drugs, and items linked to
trafficking in drugs. Police found one of the guns, a loaded assault rifle, behind window drapes
in Thomas' s living room. The rifle was placed so that it was " grabable" without moving any
furniture. III VRP at 179. Police found another loaded handgun on the passenger seat of one of
Thomas' s cars, which was parked in her garage. The search also turned up 29 grams of cocaine
in a bag on Thomas' s kitchen counter, along with a digital scale, and oxycodone and
oxymorphone pills in Thomas' s kitchen. Finally, in one of the house' s closets, an officer found
an electronic currency counter.
The State charged Thomas with four counts of possession of a controlled substance with
intent to deliver in violation of RCW 69. 50. 401( 1)( 2)( a), ( c), and one count of money laundering
in violation of RCW 9A.83. 010( 7) and RCW 9A.83. 020( 1). 1 The State alleged that Thomas or
1
RCW 69. 50. 401( 1) provides that "[ e] xcept as authorized by this chapter, it is unlawful for any
person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled
substance." RCW 69. 50. 401( 2) prescribes that a violation of RCW 69. 50. 401( 1) is either a class
B or class C felony depending on the controlled substance involved.
RCW 9A. 83. 020( 1) provides, in relevant part, that
a] person is guilty of money laundering when that person conducts or attempts to
conduct a financial transaction involving the proceeds of specified unlawful activity
and:
a) [ k] nows the property is proceeds of specified unlawful activity; or
b) [ k] nows that the transaction is designed in whole or in part to conceal or disguise
the nature, location, source, ownership, or control of the proceeds, and acts
recklessly as to whether the property is proceeds of specified unlawful activity.
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an accomplice was armed with a firearm during the commission of each of the possession with
intent to deliver offenses. 2
At trial, the State presented evidence connecting Thomas to drug possession and
trafficking. Police officers testified about their search of Thomas' s house and their seizure of
controlled substances and other paraphernalia, including the cocaine, oxymorphone, and
oxycodone found in her kitchen; the hydrocodone and the envelope of cash with drug
transactions written on it found in her purse in her bedroom; and the digital scale and currency
counter. Officers testified that the digital scale, currency counter, and the notations on the
envelope in Thomas' s purse were hallmarks of the drug trade. Officers also testified that the
volume of drugs found in Thomas' s home were not the small quantities associated with personal
use.
The manager of security risk who oversaw the fraud and investigations group at
Thomas' s credit union testified about three suspicious transactions Thomas had made in
December 2011 and January 2012, just after she began dating Criswell. In the first, Thomas
deposited $9, 055 in small denomination bills and immediately withdrew the same amount in
large denomination bills. In the second, Thomas again deposited $ 9, 000 in small bills and then
immediately withdrew the same amount in large denomination bills. In the third, Thomas
deposited $ 1, 250 in small bills and immediately withdrew the same amount in large bills.
Thomas had never made transactions like these before the first December 2011 deposit. A Pierce
2 RCW 9. 94A.533 provides that certain additional time " shall be added to the standard sentence
range fo r felony crimes ... if the offender or an accomplice was armed with a firearm ... and
the offender is being sentenced for one of the crimes listed in this subsection as eligible for any
firearm enhancements." Possession of a controlled substance with intent to deliver and
possession of a controlled substance are crimes eligible for an enhanced sentence under RCW
9. 94A. 533. RCW 9. 94A.533( f); RCW 69. 50. 401( 2).
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No. 45101 -8 -II
County sheriff testified that drug sales typically involved smaller denomination bills, usually
10s] and $ 20s," II VRP at 124 -25, the types of bills Thomas deposited. 3 Another Pierce
County sheriff' s detective testified that Thomas reacted oddly when asked, after her arrest, if the
deposits involved cash from Criswell.
Finally, testimony at trial connected Thomas and Criswell to several firearms. Officers
described finding the loaded pistols in Thomas' s master bedroom and car and the assault rifle
behind the curtains in her living room while searching her house.
Thomas testified in her defense. She .denied knowing that Criswell dealt drugs, kept
drugs in her house, or kept firearms there. Thomas explained that Criswell could have used her
cars without her knowledge because he had access to her house and her spare keys. Thomas also
testified that Criswell had put the hydrocodone and cash in her purse the night before their arrest
without her knowledge.
Thomas explained that each of the large cash deposits involved in the money laundering
charges were unconnected to Criswell or drug trafficking. She stated that the first consisted of
funds sent to her by family members to care for a sick uncle and to pay for funeral expenses.
She explained the exchange of small for large bills as necessary to get the type of cash her
culture required her family to give to people attending her uncle' s funeral. Thomas claimed that
the second deposit consisted of a collection of the cash tips she earned at her second job, which
she exchanged for large bills for a trip to Las Vegas. She testified that the third cash deposit was
rental income from her second home.
3 The security risk manager testified that, in the first transaction, Thomas exchanged over 400
20 bills, a " couple of tens and a couple fives" for "[ p] rimarily hundred dollar bills." III VRP at
240. The second transaction also involved the deposit of "over 400 $ 20 bills." III VRP at 241.
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No. 45101 -8 -II
Criswell also testified for Thomas. He agreed that Thomas did not know he dealt drugs
or that he kept drugs at her house. Criswell admitted that he had sold drugs at a bar the night
before his and Thomas' s arrest, and that he had put the proceeds of those sales, as well as the
hydrocodone pills, in Thomas' s purse without her knowledge because he could not hide the
drugs on his person. Criswell also testified that he owned the guns police found in Thomas' s
house, that Thomas did not know about them because he hid them, and that he kept the guns
because of post- traumatic stress related to his military service, not because he used them in the
course of his drug operations.
Other defense witnesses testified that Thomas earned large volumes of small bills as tips
at her second job. Thomas' s sister verified Thomas' s claims that their culture required giving
cash gifts to those attending their uncle' s funeral and that Thomas was the caretaker of the funds
given by family members for the uncle' s care and funeral.
After the parties presented their evidence, the trial court instructed the jury on the State' s
burden of proof, the elements of the offenses, and the firearm enhancements. The trial court also
instructed the jury on accomplice liability, on its ability to convict Thomas as a principal or an
accomplice, and on the affirmative defense of unwitting possession.
The jury found Thomas guilty of three counts of possession of a controlled substance for
possessing the cocaine, oxymorphone, and oxycodone; possession of a controlled substance with
intent to deliver for the possession of the hydrocodone; and money laundering. The jury returned
special verdicts finding that Thomas or an accomplice was armed with a firearm while
possessing the cocaine and possessing the hydrocodone with intent to deliver.
Thomas now appeals.
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ANALYSIS
L STANDARD OF REVIEW
The due process clauses of the state and federal constitutions " require[] [ that] a criminal
defendant be convicted only when every element of the charged crime is proved beyond a
reasonable doubt." State v. O' Hara, 167 Wash. 2d 91, 105, 217 P.3d 756 ( 2009). We review
whether sufficient evidence supports the convictions by examining whether, when viewed in the
light most favorable to the prosecution, the State' s evidence permits a rational trier of fact to find
the essential elements of the charged crime beyond a reasonable doubt. State v. Kintz, 169
Wash. 2d 537, 551, 238 P.3d 470 ( 2010).
We apply similar principles to a jury' s finding that a defendant was armed with a firearm
during the commission of a crime. We review whether, when viewed in the light most favorable
to the State, the evidence allowed a rational trier of fact to find that the defendant was armed
with a firearm during the commission of an offense. State v. Eckenrode, 159 Wash. 2d 488, 494,
150 P.3d 1116 ( 2007).
By challenging the sufficiency of the State' s evidence, Thomas "' admits the truth ' of
that evidence ' and all inferences that reasonably can be drawn therefrom.' Kintz, 169 Wash. 2d
at 551 ( quoting State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 ( 1992)). We do not
distinguish between direct and circumstantial evidence: both ' are equally reliable ' in
providing evidence sufficient to sustain a jury' s guilty verdict. Kintz, 169 Wash. 2d at 551 ( quoting
State v. Thomas, 150 Wash. 2d 821, 874, 83 P.3d 970 ( 2004)). On review, we defer to the jury' s
credibility determinations and resolution of conflicting testimony. State v. McCreven, 170 Wn.
App. 444, 477, 284 P.3d 793 ( 2012), review denied, 176 Wash. 2d 1015 ( 2013).
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No. 45101 -8 -II
II. SUFFICIENCY OF THE EVIDENCE UNDERLYING THE CRIMINAL CONVICTIONS
On appeal, Thomas challenges the sufficiency of the evidence underlying her convictions
for possession of a controlled substance with intent to deliver and money laundering. Thomas
also challenges the sufficiency of the evidence underlying the findings that she or an accomplice
was armed with a firearm while committing two of the offenses. The State contends that
sufficient evidence supports the jury' s finding in each respect. We agree with the State.
A. Possession with Intent
Thomas first argues that insufficient evidence supports the conviction for possession with
intent to deliver, claiming that the State failed to show she acted as an accomplice to Criswell' s
hydrocodone sales. Thomas maintains that the State' s evidence, " at most," showed Thomas
kn[ ew]" of Criswell' s illegal activities and " assent[ ed]" to them, which is insufficient for
accomplice liability. Br. of Appellant at 14. The State contends that the jury could rationally
have found that Thomas agreed to participate in Criswell' s criminal activities and was therefore
his accomplice.
Under Washington' s complicity statute, "[ a] person is guilty of a crime if it is committed
by the conduct of another person for which he or she is legally accountable." RCW 9A.08. 020( 1).
A person is " legally accountable for the conduct of another person," among other circumstances,
if "[h] e or she is an accomplice of such other person in the commission of the crime." RCW
9A.08. 020( 2)( c). One of the ways a person may become an accomplice to another person' s
commission of a crime is by "[ a] id[ ing] or agree[ ing] to aid such other person in .planning or
committing" the crime "[ w]ith knowledge that it will promote or facilitate the commission of the
crime." RCW 9A.08. 020( 3)( a)( ii).
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No. 45101 -8 -II
A person' s mere presence at the scene of a crime and assent to its commission does not
make the person an accomplice to the crime. In re Welfare of Wilson, 91 Wash. 2d 487, 491, 588
P.2d 1161 ( 1979) ( quoting State v. - Distribs., Inc., 82 Wash. 2d 584, 593, 512 P.2d 1049 ( 1973)).
JR
Instead, to become an accomplice, a person must "` associate[] himself [ or herself] with the
undertaking [ and] participate[] in it as in something he [ or she] desires to bring about, and seeks
by his [ or her] action to make it succeed.'" Wilson, 91 Wash. 2d at 491 ( quoting State v. J R
- Distribs.,
Inc., 82 Wash. 2d 584, 593, 512 P.2d 1049 ( 1973)).
The jury could rationally have found that these requirements of complicity were met,
because the evidence allowed it (1) to infer that Thomas knew any aid would facilitate Criswell' s
possession of a controlled substance with intent to deliver and ( 2) to find that Thomas gave
Criswell aid. First, the jury could rationally find beyond a reasonable doubt that Thomas knew
her activities would promote or facilitate Criswell' s possession of the hydrocodone with intent to
deliver. Criswell testified that he put the drugs in Thomas' s purse because he had so many of
them that he could not hide them on his person. The jury saw evidence of the volume of pills
involved. From this evidence the jury could reasonably infer that Thomas must have known why
Criswell had put the drugs in her purse and that by carrying them for him she would promote or
facilitate his possession of the hydrocodone with intent to deliver.
This jury could also find beyond a reasonable doubt that Thomas aided Criswell in his
hydrocodone sales. Thomas carried Criswell' s hydrocodone away from the bar where he sold
drugs the evening before their arrest. As noted, above, Criswell placed the drugs in Thomas' s
purse because he could not successfully hide them on himself and he did not want to " get caught
with [ them]." IV VRP at 362. At the time of her arrest, Thomas was still in constructive
possession of the drugs, which were still in her purse, inside her house, inside her bedroom, near
No. 45101 -841
4
where she lay sleeping when police found her. Carrying and hiding Criswell' s drugs falls
within the meaning of "aid" in the accomplice liability statute. RCW 9A.08. 020.
Thomas analogizes her conviction to one reversed by Division One of our court in State
v. Amezola, 49 Wn. App. 78, 741 P.2d 1024 ( 1987), overruled on other grounds by State v.
MacDonald, 138 Wash. 2d 680, 689, 981 P.2d 443 ( 1999), and asks that we reverse her conviction
as well. The appellant in Amezola, Ramirez, had lived with her alleged accomplices; the State
presented evidence that she cooked and cleaned their shared residence. The State argued that
Ramirez' s cooking and cleaning enabled her housemates to engage in the delivery of heroin,
making her an accomplice in their criminal enterprise. 49 Wash. App. at 89. Division One
rejected the argument, holding that Ramirez' s housework was legally insufficient to show that
she had associated herself with her housemate' s illegal activities, thereby making her their
accomplice. Amezola, 49 Wn..App. at 89 -90.
Any analogy to Amezola fails. Unlike Ramirez, Thomas actively engaged in activity
related to Criswell' s drug sales, not just routine domestic tasks unconnected to illegal activities.
By doing so, Thomas associated with and aided Criswell' s criminal enterprise and became his
accomplice. Wilson, 91 Wash. 2d at 491 ( quoting J R
- Distribs., Inc., 82 Wash. 2d at 593).
B. Money Laundering
Thomas also contends that the State failed to present sufficient evidence that she engaged
in money laundering by depositing the proceeds of Criswell' s illicit drug sales. She contends
that she " was receiving significant amounts of cash from legitimate sources" and that the State
4 Actual possession involves " physical custody of" an object; constructive possession involves
dominion and control over the object." State v. Jones, 146 Wash. 2d 328, 333, 45 P.3d 1062
2002). Dominion and control means that the defendant may reduce the object " to actual
possession immediately." Jones, 146 Wash. 2d at 333.
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No. 45101 -8 -II
failed to prove she knowingly deposited the proceeds of Criswell' s drug sales. Br. of Appellant
at 21.
The crime of money laundering is defined in RCW 9A.83. 020, which provides, in
relevant part, that
1) A person is guilty of money laundering when that person conducts or attempts
to conduct a financial transaction involving the proceeds of specified unlawful
activity and:
a) Knows the property is proceeds of specified unlawful activity; or
b) Knows that the transaction is designed in whole or in part to conceal or
disguise the nature, location, source, ownership, or control of the proceeds, and
acts recklessly as to whether the property is proceeds of specified unlawful
activity.
The possession of a controlled substance with intent to deliver is "[ s] pecified unlawful activity"
within the meaning of RCW 9A. 83. 020. RCW 9A.83. 010( 7); RCW 9A.82. 010( 4)( q).
Here, the State presented evidence that Thomas had not engaged in suspicious
transactions before she began dating Criswell. Shortly after the two met, however, she engaged
in three such transactions. In each of these transactions, Thomas deposited large numbers of
small denomination bills, the type that police testified were generated by drug sales, and then
immediately withdrew an amount of money equivalent to the deposit in large denomination bills.
The jury also heard that, at the time of her arrest, Thomas' s purse contained an envelope filled
with the proceeds of Criswell' s drug sales. When viewing this evidence in the light most
favorable to the State, a rational trier of fact could find beyond a reasonable doubt that Thomas
engaged in a continuing money laundering scheme that ended only with her arrest while in
constructive possession of Criswell' s drug money.
Thomas contends also that her exculpatory explanations for the transactions create
reasonable doubt. We, however, are not the jury. " An essential function of the fact finder is to
discount theories which it determines unreasonable," State v. Bencivenga, 137 Wash. 2d 703, 709,
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No. 45101 -8 -II
974 P.2d 832 ( 1999), and the jury did so here. By Thomas' s own explanations, the second and
third deposits were the type of recurring event that should have occurred before she met
Criswell. The jury could readily infer from the lack of previous, similar deposits that Thomas' s
explanations were not truthful, and we defer to that determination. McCreven, 170 Wash. App. at
477.
III. SUFFICIENCY OF THE EVIDENCE UNDERLYING THE FIREARM SPECIAL VERDICTS
Thomas next argues that insufficient evidence supports the jury' s finding that she or an
accomplice was armed with a firearm while possessing the cocaine or hydrocodone.
Specifically, Thomas contends that the State' s evidence did not establish a nexus between herself
or Criswell, the firearms, and the drugs. We hold that the evidence was sufficient to sustain the
firearm finding.
Washington has proscribed the constitutionally unprotected use of firearms to commit
crimes. State v. Schelin, 147 Wash. 2d 562, 575, 55 P.3d 632 ( 2002) ( lead opinion of Ireland, J.)
no constitutional protection for criminal use of a firearm); RCW 9. 94A.533( 3) ( enhanced
sentence for offenders armed with a firearm during the commission of a crime). Accordingly,
the State may seek a finding that " the offender or an accomplice was armed with a firearm"
during the commission of an offense. RCW 9. 94A. 533( 3); RCW 9. 94A. 825. If a jury makes the
finding, the trial court must add statutorily prescribed time to the offender' s sentence. RCW
9. 94A.533( 3).
A person is armed during the commission of a crime " if a weapon is easily accessible and
readily available for use, either for offensive or defensive purposes." State v. Valdobinos, 122
Wash. 2d 270, 282, 858 P.2d 199 ( 1993). These purposes include using the weapon " to facilitate
the commission of the crime, escape from the scene of the crime, protect contraband or the like,
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No. 45101 -8 -II
or prevent investigation, discovery, or apprehension by the police." State v. Gurske, 155 Wash. 2d
134, 139, 118 P.3d 333 ( 2005). In constructive possession cases such as this, the State must
show both a nexus between the defendant and the firearm and between the firearm and the crime.
Gurske, 155 Wash. 2d at 140 -42. To determine whether these connections exist, the factfinder must
look to ' the nature of the crime, the type of weapon, and the circumstances under which the
weapon was found. "' Gurske, 155 Wash. 2d at 142 ( quoting Schelin, 147 Wash. 2d at 570).
The State' s evidence allowed a rational jury to find beyond a reasonable doubt a nexus
between the defendant and a firearm. Police discovered a loaded pistol on the headboard of the
bed where they had just arrested Thomas and Criswell after finding them asleep. Thomas' s and
Criswell' s constructive possession of the pistol establishes a nexus between each of them and the
firearm. Schelin, 147 Wash. 2d 574 -75 ( proximity to firearm at time of arrest for ongoing drug
operation satisfies nexus test); State v. Taylor, 74 Wash. App. 111, 124 -26, 872 P.2d 53 ( 1994)
affirming firearm enhancement because defendant was in constructive possession of firearm
during arrest for drug offenses); State v. Sabala, 44 Wash. App. 444, 447 -49, 723 P.2d 5 ( 1986)
same); cf.State v. Mills, 80 Wn. App. 231, 907 P.2d 316 ( 1995) ( no nexus where the defendant
is not in physical proximity to the firearm).5
The State' s evidence also allowed a rational jury to find beyond a reasonable doubt that a
nexus existed between the firearm recovered in the bedroom and the possession of the
hydrocodone and cocaine for several reasons.
5 Taylor and Sabala were decided before the Supreme Court adopted the nexus requirement, but
the Supreme Court has stated that Sabala is " instructive because there was clearly a nexus
between the defendant and the weapon." Gurske, 155 Wash. 2d at 142. This same reasoning would
apply to Taylor as well. See Taylor, 74 Wash. App. at 125 ( " the gun was sitting on a table next to
the couch where Taylor was sitting and was easily accessible to him. ").
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No. 45101 -8 -II
First, with regard to only the hydrocodone, the State' s evidence shows that Thomas and
Criswell kept the pistol in the same room as the drug. The hydrocodone and the firearm were
thus in close proximity to each other, and this proximity establishes a nexus between the two.
Schelin, 147 Wash. 2d at 564, 574 -75; 6 see Mills, 80 Wash. App. at 236. The jury could rationally
have inferred that Criswell kept the gun in the same room as the hydrocodone in order to protect
the contraband or to thwart law enforcement officers coming to search the room.
Second, the extensive evidence of the drug operation recovered in Thomas' s house
allowed the jury to infer Thomas or Criswell was armed in the commission of possession of the
cocaine and hydrocodone. Where evidence of the drug trade " pervade[ s] [ a] house," the jury
may rationally infer that firearms recovered in the house "[ are] there to protect the criminal
enterprise." Eckenrode, 159 Wash. 2d at 494, 497 -99 ( Alexander, C. J. concurring) ( Madsen, J.
concurring); see State v. Simonson, 91 Wn. App. 874, 883, 960 P.2d 955 ( 1998). As noted,
police found various types of drugs in various places in Thomas' s kitchen and bedroom and
other items of paraphernalia associated with drug dealing in the house. The evidence of a large
drug operation in Thomas' s house allowed the jury to infer that Thomas or Criswell kept
firearms there to protect the operation.
Third, the locations of the weapons in the house allowed the jury to infer that each was
used in the drug operation. The firearms were in strategic positions for use in a drug operation.
The pistol in the bedroom was available to protect both Thomas and Criswell and the drugs, to
thwart investigators, and to aid in flight from.arrest. The assault rifle in the living room, a
6 Although the lead opinion of Schelin did not command a majority, the Gurske court used
Schelin as an example where there was a nexus between the defendant, crime, and firearm
because police arrested the defendant in close proximity to the firearm and the drug operation.
155 Wash. 2d at 140.
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No. 45101 -8 -II
readily " grabable" large capacity weapon, III VRP at 179, was available to thwart attempts by
law enforcement or any intruder to force entry through the house' s main door; and the pistol in
the car was available to aid in flight from the house. See Gurske, 155 Wash. 2d at 139 ( listing
possible uses for a firearm in a drug operation). The jury could infer from the strategic
positioning of each of these firearms that all were used for specific purposes related to the drug
operations, and that a nexus therefore existed between each of them and Thomas and Criswell' s
possessory crimes.
IV. STATEMENT OF ADDITIONAL GROUNDS ( SAG) ARGUMENTS
In her SAG, Thomas contends that her trial counsel provided ineffective assistance by
failing to communicate the State' s plea offers, failing to advise her of her right to a bench trial,
and failing to prepare for trial. Thomas also asserts that a biased juror tainted her trial.
Thomas' s claims about communication of the State' s offer and the biased juror concern matters
discussed in the record, and we address and reject them below. Thomas' s other claims require
consideration of evidence not in the trial record and we do not address them on direct appeal;
Thomas must instead seek relief with a personal restraint petition. State v. McFarland, 127
Wash. 2d 322, 335, 899 P.2d 1251 ( 1995).
A. Ineffective Assistance
Both the state and federal constitutions guarantee criminal defendants the right to
effective representation by their counsel. State v. Grier, 171 Wash. 2d 17, 32, 246 P.3d 1260
2011). We review ineffective assistance claims de novo using the federal test announced in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). State v.
Cienfuegos, 144 Wash. 2d 222, 226, 25 P.3d 1011 ( 2011). To obtain relief under Strickland, the
defendant must show that counsel performed deficiently and that this deficient performance
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No. 45101 -8 -II
prejudiced her or him. Strickland, 466 U.S. at 687. We may reject an ineffective assistance
claim where the defendant fails to make the necessary showing on either prong. State v. Kyllo,
166 Wash. 2d 856, 862, 215 P.3d 177 ( 2009).
With regard to her claim that her counsel failed to apprise her of the State' s acceptance of
her plea offer, we find no deficient performance because the record is contrary to Thomas' s
claim. The sentencing colloquy shows that she rejected the best plea offer that the State would
make. The State did not accept her counter offer and there was nothing for her counsel to
communicate to her, meaning her counsel did not perform deficiently.
B. Right to An Impartial Jury
The state and federal constitutions also protect the right to trial by an impartial jury.
State v. Davis, 141 Wash. 2d 798, 824, 10 P.3d 977 ( 2000). Based on this right, a party may
challenge the seating of a potential juror for cause where he or she has shown actual bias. RCW
4. 44. 130, . 170( 2), . 190.
Thomas' s claims of juror bias fail on the record before us. At sentencing, her attorney
did state that one of the jurors appeared to have known Thomas. But Thomas' s attorney
specifically stated that the juror appeared to harbor no bias against Thomas. Thomas therefore
cannot show a violation of her right to an impartial jury. RCW 4.44. 190 ( right to challenge a
juror for cause requires actual bias).
7 If Thomas does have evidence that the juror harbored bias, it exists outside the trial record and,
again, she must seek relief through a personal restraint petition. McFarland, 127 Wash. 2d at 335.
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CONCLUSION
We hold that sufficient evidence supported the jury' s finding that Thomas was guilty of
possession of a controlled substance with intent to deliver and money laundering and that
Thomas or an accomplice was armed with a firearm while possessing the cocaine and
hydrocodone with intent to deliver it. 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 in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
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