State Of Washington, V Whitney Jean Whited ( 2014 )

FILED
COURT
r APPEALS
iI IOv 11
20111 JUN 10 H LF 1
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TO
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO
DIVISION II
STATE OF WASHINGTON, No. 44167 -5 -II
Respondent,
v.
WHITNEY JEAN WHITED, UNPUBLISHED OPINION
Appellant.
LEE, J. — Whitney Jean Whited appeals her convictions of unlawful possession of a
controlled substance ( methamphetamine) and unlawful use of drug paraphernalia, arguing that
she received ineffective assistance of counsel when her attorney failed to request a jury
instruction on unwitting possession. She also argues that the community custody condition
prohibiting her from associating with those who use, sell, possess, or manufacture controlled
substances is unconstitutionally vague. Because an unwitting possession instruction would not
have changed the trial' s result, Whited did not receive ineffective assistance of counsel. And,
because the challenged community custody condition is sufficiently clear to give Whited notice
of what conduct is prohibited, it is not unconstitutionally vague. Accordingly, we affirm.
FACTS
Trooper Ryan Santhuff made a traffic stop of a car driven by Joseph Flock. Whited, his
girlfriend of two years, was his passenger. During the stop, Flock gave Santhuff permission to
search the car and told Santhuff that there was a methamphetamine pipe in the driver' s door.
No. 44167 -5 -I1
Santhuff then asked Whited whether she knew of any drugs in the car and whether she used
methamphetamine. She said that she had used methamphetamine a few weeks ago, but she was
not addicted to it. She gave Santhuff permission to search the purse and clothing she had in the
vehicle.
During his search, Trooper Santhuff found a used methamphetamine pipe in the driver' s
door, a broken methamphetamine pipe in a Crown Royal bag in the glove compartment, a
syringe in the center console, and two baggies containing suspected methamphetamine in the
car' s ashtray. The baggies were underneath some coins. Santhuff also found syringes in a
shaving kit behind the driver' s seat. He did not find any drugs or paraphernalia in Whited' s
purse or clothing. Flock stated that the methamphetamine belonged to Whited, but Whited said
it was " both of theirs." 1 Report of Proceedings ( RP) at 48.
The State charged Whited with possessing methamphetamine and using drug
paraphernalia. The parties stipulated at trial that the baggies from the car contained
methamphetamine and that the pipes contained methamphetamine residue. Trooper Santhuff and
another trooper who was at the traffic stop testified about the evidence seized and the statements
made during the stop. Santhuff also testified that Whited referred to the vehicle as " my car." 1
RPat57.
Whited testified in her own defense. She admitted knowing that Flock was using drugs
and that she had used drugs with him, but she denied knowing that drugs were in the car at the
time of the stop. She did not remember telling Santhuff that the methamphetamine belonged to
her and Flock, and she denied that it belonged to her in any way. Although Whited testified that
she and Flock had lived together for a year and a half and that she supported him, she denied ,
No. 44167 -5 -II
having any ownership interest in the car or referring to it as her vehicle. She said she did not
drive, but she admitted that she often rode with Flock in his car. On cross -examination, Whited
testified that she was " unsure" whether she had told the trooper that the methamphetamine in the
car belonged to both her and Flock. 1 RP at 96.
Flock testified that the pipe in the Crown Royal bag was his, but that both he and Whited
told the troopers that it was hers. He testified further that although the methamphetamine was
his, he and Whited told the troopers that it was Whited' s. He admitted that he had never before
absolved Whited of responsibility for the methamphetamine or the pipe, but he maintained that
he was now telling the truth. Flock added that he and Whited were living in the car at the time of
the stop.
The State recalled Trooper Santhuff as a rebuttal witness. Santhuff testified that Flock
told him that the methamphetamine and the pipe in the Crown Royal bag belonged to Whited.
During his testimony, the State played the videotape of the stop for the jury. As it played,
Santhuff pointed out where Whited stated that the methamphetamine belonged to both her and
Flock.
In its instructions to the jury, the trial court defined " possession" as follows:
Possession means having a substance in one' s custody or control. It may
be either actual or constructive. Actual possession occurs when the item is in the
actual physical custody of the person charged with possession. Constructive
possession occurs when there is no actual physical possession . but there is
dominion and control over the substance.
Proximity alone without proof of dominion and control is insufficient to
establish constructive possession. Dominion and control need not be exclusive to
support a finding of constructive possession.
In deciding whether the defendant had dominion and control over a
substance, you are to consider all the relevant circumstances in the case. Factors
that you may consider, among others, include whether the defendant had the
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immediate ability to take actual possession of the substance, whether the
defendant had the capacity to exclude others from possession of the substance,
and whether the defendant had dominion and control over the premises where the
substance was located. No single one of these factors necessarily controls your
decision.
Instruction 10, Suppl. Clerk' s Papers at 37.
During closing argument, the State contended that Whited constructively possessed the
methamphetamine found in the car. In arguing that she exercised dominion and control over the
drugs, the State emphasized Whited' s statements in the video about the methamphetamine
belonging to both Flock and her, as well as her references to " my car" and her use of the vehicle.
1 RP at 171 -74. Defense counsel responded that the videotaped statements were not clear and
that any references to " my car" were casual statements that carried no significance because
Whited was merely a passenger. 1 RP at 191. Defense 'counsel also argued that there was no
evidence of dominion and control because there was no evidence that Whited knew that Flock
had put drugs in the car.
After the jury found Whited guilty as charged, the trial court imposed a first -ime
t
offender sentence that included 12 months of community custody. One of the community
custody conditions stated as follows:
The defendant shall not use, possess, manufacture or deliver controlled substances
without a valid prescription, not associate with those who use, sell, possess, or
manufacture controlled substances and submit to random urinalysis at the
direction of his /her [ Community Corrections Officer] to monitor compliance with
this condition.
Clerk' s Papers ( CP) at 11. On appeal, Whited challenges this condition, as well as her
conviction for possessing methamphetamine.
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ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Whited argues that she received ineffective assistance of counsel when her attorney failed
to propose a jury instruction on the affirmative defense of unwitting possession. Whether a
defendant received ineffective assistance of counsel is a mixed question of law and fact that we
review de novo. State v. McLean, 178 Wn. App. 236, 246, 313 P.3d 1181 ( 2013), review denied,
179 Wash. 2d 1026 ( 2014). To prove ineffective assistance, a defendant must show ( 1) that her
counsel' s performance was deficient and ( 2) that the deficient performance was prejudicial to
defendant' s case. State v. Hendrickson, 129 Wash. 2d 61, 77 -78, 917 P.2d 563 ( 1996). A failure to
satisfy either prong is fatal to a claim of ineffective assistance of counsel. McLean, 178 Wn.
App. at 246.
When determining whether counsel' s performance was deficient, we begin with a strong
presumption of counsel' s effectiveness. State v. McFarland, 127 Wn.2d .322, 335, 899 P.2d
1251 ( 1995). Counsel' s performance is deficient if it falls below an objective standard of
reasonableness and cannot be characterized as legitimate trial strategy or tactics. State v. Kyllo,
166 Wash. 2d 856, 862 -63, 215 P.3d 177 ( 2009). Prejudice occurs when there is a reasonable
probability that the trial' s result would have differed had the deficient performance not occurred.
Hendrickson, 129 Wash. 2d at 78.
To convict Whited of the possession charge, the State had to prove beyond a reasonable
doubt that she possessed methamphetamine. Guilty knowledge and intent are not elements of
this crime. State v. Cleppe, 96 Wash. 2d 373, 379 -80, 635 P.2d 435 ( 1981). To ameliorate the
harshness of the crime' s strict liability nature, a defendant may assert the affirmative defense of
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unwitting possession. State v. Bradshaw, 152 Wash. 2d 528, 538, 98 P.3d 1190 ( 2004), cert.
denied, 544 U.S. 922 ( 2005). This defense assumes that the State has established a prima facie
showing of . possession"
" and requires the defendant to prove, by a preponderance of the
evidence, either that she did not know she was in possession of the controlled substance or that
she did not know the nature of the substance she possessed. State v. Staley, 123 Wash. 2d 794, 799-
800, 872 P.2d 502 ( 1994); State v. Balzer, 91 Wash. App. 44, 67, 954 P.2d 931, review denied, 136
Wash. 2d 1022 ( 1998). A defendant satisfies her burden of proof by persuading the trier of fact that
her claim of unwitting possession is more probably than not true. 11 WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 52. 01 at 1007 ( 3d ed. 2008).
As Whited asserts, each party is entitled to have the trial court instruct on its theory of the
case if there is evidence to support that theory. State v. Hughes, 106 Wash. 2d 176, 191, 721 P.2d
902 ( 1986). In evaluating whether evidence is sufficient to support an instruction on an
affirmative defense, the court must interpret the evidence in the defendant' s favor and must not
weigh the proof or judge the witnesses' credibility. State v. May, 100 Wash. App. 478, 482, 997
P.2d 956, review denied, 142 Wash. 2d 1004 ( 2000). The affirmative defense of unwitting
possession " must be considered in light of all the evidence presented at trial, without regard to
which party presented it." State v. Olinger, 130 Wn. App. 22, 26, 121 P.3d 724 ( 2005), review
denied, 157 Wash. 2d 1009 ( 2006).
Whited testified that she did not know the drugs were in the car, and she denied having
any ownership interest in the car. In addition, Flock claimed exclusive ownership of the drugs.
Because this evidence was sufficient to support an instruction on unwitting possession and there
is no legitimate trial tactic evident on the record before us to support a decision to not request
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such an instruction, defense counsel was deficient in failing to propose such an instruction.
But, based on the record, we do not see that this deficiency resulted in prejudice. There
was strong evidence that Whited exercised dominion and control over the car and the
methamphetamine it contained. See State v. Brett, 126 Wash. 2d 136, 200, 892 P.2d 29 ( 1995)
given the weight of the evidence supporting premeditation, defendant failed to show reasonable
probability that the inclusion of a voluntary intoxication instruction would have changed the
outcome of the proceedings), cert. denied, 516 U.S. 1121 ( 1996). Whited told Trooper Santhuff
that the methamphetamine belonged to both her and Flock, and Flock told the trooper that the
methamphetamine was Whited.'s. Although Flock later testified at trial that the
methamphetamine belonged to him, he admitted that he was then claiming ownership for the first
time and only after his own charges had been resolved. Whited testified that she was unsure
whether she had admitted to joint ownership of the methamphetamine, but her admission was
recorded, as were her references to the vehicle as " my car." 1 RP at 57, 171 - 74. Flock' s
testimony that he and Whited were living in the car at the time of the stop supported the State' s
theory that they shared possession of the drugs in the car. We see no reasonable probability that
an instruction on unwitting possession would have changed the trial' s result, and we reject
Whited' s claim of ineffective assistance of counsel.
B. COMMUNITY CUSTODY CONDITION
Whited also argues that the community custody . condition prohibiting her from
associating with those " who use, sell, possess, or manufacture controlled substances" is
unconstitutionally vague. CP at 11.
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A trial court has discretion to order an offender to refrain from contact with a specified
class of individuals during community custody. RCW 9. 94A.703( 3)( b). Such discretionary
conditions will be reversed only if their imposition is manifestly unreasonable. State v. Valencia,
169 Wash. 2d 782, 791 -92, 239 P.3d 1059 ( 2010). The imposition of an unconstitutional condition
is manifestly unreasonable. Valencia, 169 Wash. 2d at 792.
In challenging a condition of community custody, as opposed to a statute or ordinance,
the challenger does not have to overcome a presumption of constitutionality. Valencia, 169
Wash. 2d at 792. A sentencing condition is not a law enacted by the legislature and does not have
the same presumption of validity. State v. Bahl, 164 Wash. 2d 739, 753, 193 P.3d 678 ( 2008). Nor
does the challenger need to demonstrate that the condition has been enforced; a pre- enforcement
challenge that turns on a question of law is ripe for review. Bahl, 164 Wash. 2d at 752.
The due process vagueness doctrine under the state and federal constitutions requires that
citizens have fair warning of proscribed conduct. Bahl, 164 Wash. 2d at 752 ( citing WASH. CONST.
art I, § 3;. U. S. CONST., amend. XIV). A sentencing condition is unconstitutionally vague if it
does not define the proscribed conduct with sufficient definiteness that ordinary people can
understand what is prohibited. Bahl, 164 Wash. 2d at 752 -53. The requirement of sufficient
definiteness does not demand impossible standards of specificity or absolute agreement
concerning a term' s meaning; some amount of imprecision in the language is allowed. State v.
Coria, 120 Wash. 2d 156, 163, 839 P.2d 890 ( 1992); see also City ofSeattle v. Eze, 111 Wash. 2d 22,
27, 759 P.2d 366 ( 1988) ( statute is not unconstitutionally vague merely because person cannot
predict with complete certainty the exact point at which his actions would be classified as
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prohibited conduct). And, in deciding whether a term is unconstitutionally vague, it is
considered in the context in which it is used. Bahl, 164 Wash. 2d at 754.
Whited contends that the order that she " not associate with those who use, sell, possess,
or manufacture controlled substances" is similar to a condition that was found unconstitutionally
vague in Valencia. There, the defendant was ordered not to possess or use " any paraphernalia
that can be used for the ingestion or processing of controlled substances or that can be used to
facilitate the sale or transfer of controlled substances." Valencia, 169 Wash. 2d at 785. The
Supreme Court held that the reference to " any paraphernalia" failed to provide fair notice of
what the petitioners could and could not do and also failed to protect against arbitrary
enforcement. Valencia, 169 Wash. 2d at 794 -95.
While acknowledging that the term " controlled substance" is defined by statute, Whited
contends that the language at issue is unconstitutionally vague because many controlled
substances have legitimate medical uses. She argues that the condition puts her at risk of
violation if she associates with a person who, unbeknownst to her, uses a legitimate, medically
prescribed controlled substance for a medical purpose. Whited also argues that this condition
prevents her from visiting a pharmacy to pick up a needed prescription.
The State responds that the language Whited challenges must be read as part of the
broader condition that also prohibits her from using, possessing, manufacturing, or delivering
controlled substances without a valid prescription. The State contends that when the additional
language prohibiting Whited from associating with those who use, sell, possess or manufacture
controlled substances is read in context, it dictates only that her association with illegal
substances and the abusers thereof is prohibited.
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We agree with the State that when the challenged language is read in context, ordinary
people can understand what is prohibited. Any imprecision is not likely to expose Whited to
arrest, but if it does, she can explain that she was picking up a prescription at the pharmacy or
visiting a friend who had a medically prescribed controlled substance. See State v. Llamas -Villa,
67 Wn. App. 448, 455 -56, 836 P.2d 239 ( 1992) ( rejecting similar challenge after noting that if
the defendant was arrested for violating the condition, he would have an opportunity to assert
that he was not aware that the individuals with whom he had associated were using, possessing,
or dealing drugs).
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.
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