                                                                                           FILAE
                                                                                      COURT OF
                                                                                                       PPEALS
                                                                                           0 /VISION II
                                                                                    2015 JAN 13
                                                                                                A/ 111: 15
                                                                                    STATE OF
                                                                                                  WASHINGTON
                                                                                    BY

    IN THE COURT OF APPEALS OF THE STATE OF WAS                                                    UN' I'ON

                                              DIVISION II

 STATE OF WASHINGTON,                                                          No. 45088 -7 -11


                                     Respondent,


        v.

                                                                         UNPUBLISHED OPINION
 JEFFREY SITTON,


                                     Appellant.




       MAXA, J. —       Jeffrey Sitton appeals his convictions for two counts of possession of a

controlled substance ( heroin and methamphetamine) and the trial court' s imposition of legal

financial   obligations ( LFOs).    He argues that ( 1) the prosecutor engaged in misconduct by

misstating the law regarding constructive possession during closing argument, (2) we should find

as a matter of law that evidence of drug residue is insufficient to support convictions for felony

drug possession crimes, and ( 3) the trial court erred in imposing LFOs to a county drug fund and

for attorney fees as part of his sentence.

        We hold that the prosecutor did not commit prosecutorial misconduct and that under


well -established precedent, residue constitutes a sufficient quantity of drugs to support a

conviction for possession. Because Sitton did not object to the imposition of LFOs below, we

decline to   review   that issue.   Accordingly,   we affirm   Sitton'   s convictions and sentence.
45088 -7 -I1



                                              FACTS


        Sitton lived in a garage apartment in Centralia: He was an admitted heroin addict with

whom the Centralia police were familiar. In August 2012, police officers came to Sitton' s

apartment to investigate the theft of a video game console. The officers spoke with Sitton, who


was not a suspect in that crime, apparently based on a suspicion that money from the sale of the

stolen console had been used to purchase drugs at his apartment.

        An officer asked Sitton if there were drug paraphernalia in the apartment. Sitton said

there might be and offered to collect them and give them to the officer. Sitton entered the


apartment and later returned with a pipe and a small wooden box containing items associated

with heroin use. The items were covered in what appeared to be the residue of heroin and

methamphetamine. He gave the box and the items inside to the police, and the police left. Sitton

was later arrested and charged with two counts of possession of a controlled substance ( heroin

and methamphetamine) on the basis of residue found on the items.


        Laboratory reports confirmed residual amounts of heroin and methamphetamine on the

items Sitton gave the police. The items and laboratory reports were introduced as evidence at

trial; and a forensic chemist from the state crime laboratory testified that the items contained

residual amounts of heroin and methamphetamine. The State produced no other evidence of


heroin or methamphetamine in Sitton' s possession.


        The key issues at trial were whether Sitton possessed the drugs and whether the defense

of unwitting possession applied. During the opening phase of closing argument, the prosecutor

tried to describe to the jury the doctrine of constructive possession generally, and the concept of

dominion and control specifically, describing the latter concept as " the capacity to act, to

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45088 -7 -I1



exercise control over something."                Report of Proceedings ( RP) at 172. During rebuttal, the

prosecutor again revisited constructive possession, telling the jury that a defendant is guilty of a

drug possession crime if he " can exercise dominion and control" over the drugs. RP at 180

 emphasis added).




         The jury returned guilty verdicts, and Sitton was convicted of felony possession of heroin

and methamphetamine. As part of Sitton' s sentence, the trial court imposed LFOs amounting to

 4, 200. Sitton did not object to the imposition of the LFOs.

                                                        ANALYSIS


A.       PROSECUTORIAL MISCONDUCT


         Sitton argues that the prosecutor engaged in misconduct by arguing that Sitton could be

found guilty on the possession charges if he " can exercise" dominion and control over the drugs.

He argues that this statement misstated the law because a person is guilty of possession only if he

actually has dominion and control over the drugs, not if he merely had the opportunity to gain
dominion and control. We disagree that the prosecutor' s argument was improper when viewed


in context.


         To prevail on a claim of prosecutorial misconduct, a defendant must show that in the


context of the record and the circumstances of the trial, the prosecutor' s conduct was both


improper   and prejudicial.         State   v.   Thorgerson, 172 Wn.2d 438, 442, 258 P. 3d 43 ( 2011).         We


examine the prosecutor' s conduct and whether prejudice resulted therefrom " by examining that

conduct   in the full trial   context,      including the   evidence presented, ` the   context of the total


argument, the issues in the case, the evidence addressed in the argument, and the instructions


given   to the   jury.' "   State   v.   Monday,    171 Wn.2d 667, 675, 257 P. 3d 551 ( 2011) ( internal



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45088 -7 -I1




quotation marks omitted) (         quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P. 3d 221 ( 2006)).

Misconduct is prejudicial if it had a substantial likelihood of affecting the verdict. State v.

Emery, 174 Wn.2d 741, 761, 278 P. 3d 653 ( 2012). 1
          A prosecutor' s misstatement of the law constitutes misconduct. See State v. Davenport,

100 Wn.2d 757, 764, 675 P. 2d 1213 ( 1984).            Similarly, a prosecutor acts improperly by arguing

to the jury that the applicable law differs from the law stated in the jury instructions. State v.

Perez -Cervantes, 141 Wn.2d 468, 475, 6 P. 3d 1160 ( 2000).


          Here, the jury instructions accurately described constructive possession as follows:

          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.




          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 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.


Clerk' s Papers     at   18 (   emphasis added);   see also State v. Davis, 176 Wn. App. 849, 862,

315 P. 3d 1105 ( 2013), review granted, 179 Wn.2d 1014 ( 2014).


          During rebuttal argument the prosecutor described the doctrine of constructive possession

as follows:




1 Sitton did not object to the prosecutor' s argument at trial. A defendant waives any error by
failing to object to the prosecutor' s conduct, unless that conduct was so flagrant and ill -
intentioned that an instruction could not have cured the resulting prejudice. Emery, 174 Wn.2d
at   760 -61.   Because we hold that the prosecutor' s argument was not improper, we need not
address waiver.


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45088 -7 -II



           P]   ossession   does   not mean   ownership   and    does   not mean use....     As long as you
          know [the drugs] are there and you can exercise dominion and control, guess what?
          You' re guilty. Even if you didn' t intend to use those drugs, hadn' t used those drugs,
          if you know they are there and you know what they are, you are guilty as long as
          you can exercise dominion and control.


RP at 181 ( emphasis added).


          However, in the context of the rest of the closing argument, it becomes clear that the

prosecutor accurately conveyed the concept of constructive possession to the jury. During the

opening phase of the argument, the prosecutor told the jury:

          Constructive possession occurs when there' s no actual possession, but there' s
          dominion      and control    over   the   substance.     It means that the item is not in the
          person' s hands but they have dominion and control over it.

          Dominion       and   control:   What does that        mean ?. . .    You have contents in your
          refrigerator in your house. You live there with your significant other. Because you
          both know there are certain items in the fridge, say a couple of cans of beer, you
          can be said to be both in constructive possession of those items at the same time.
          You can both go to the fridge. You can both [ open] up the refrigerator door. You
          can both take actual possession of these beers inside.

RP   at   169.   He then further clarified that dominion and control is " the capacity to act, to

exercise control over       something." RP at 172. This description of the doctrine is consistent


with   the   jury   instructions in the   case and    accurately    states    the law.   See Davis, 176 Wn.


App. at 862.

           When the prosecutor' s later statement is viewed in context as a restatement of this earlier


description, it becomes clear that he was equating the exercise of dominion and control with

taking actual possession. His description may have been inartful, but it was not a misstatement

of the law. Therefore, we hold that the prosecutor' s argument was not improper, and reject

Sitton' s prosecutorial misconduct claim.




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45088 -7 -II




B.           INSUFFICIENT EVIDENCE


             Sitton argues that the State' s evidence should be considered insufficient to sustain his

convictions because the evidence showed only that he possessed a residual quantity of heroin and

methamphetamine. He asks us to recognize a non -statutory element of drug possession crimes

requiring possession of a minimum quantity of the drug. We deny Sitton' s request and hold that

sufficient evidence supports his conviction..


             A criminal defendant challenging the sufficiency of the State' s evidence on appeal admits'

the truth of that evidence, and we draw all reasonable inferences therefrom in the State' s favor.

State   v.   Homan, 181 Wn.2d 102, 106, 330 P. 3d 182 ( 2014).              Evidence is legally sufficient to

support a guilty verdict if any rational trier of fact, viewing the evidence in the light most

favorable to the State, could find the elements of the charged crime beyond a reasonable doubt.

State v. Owens, 180 Wn.2d 90, 99, 323 P. 3d 1030 ( 2014).


             Sitton argues that we have the authority to designate a minimum amount element of drug

possession crimes. He states that under RCW 9A.04. 060 and State v. Chavez, 163 Wn.2d 262,

180 P. 3d 1250 ( 2008), we can recognize non -statutory elements of statutory crimes.


             RCW 9A.04. 060 recognizes that the common law supplements all statutory crimes. And

in Chavez,       our   Supreme Court held that "[ t] he legislature can be deemed to have acquiesced in


the definition [ of common law assault] when it supplemented the criminal code with the common


law in 1975."          163 Wn.2d at 274. But drug possession was never a common law crime. As a

result, the legislature did not acquiesce in any preexisting definition that might have included a

minimum amount requirement.             Because Sitton   points   to   no   authority showing that   we   may
45088 -7 -II



supplement criminal statutes with entirely new elements not derived from common law crimes,

we will not construct any such requirement.2
         Sitton also seems to suggest that we should interpret former RCW 69. 50. 4013 ( 2004) 3 as

                                                                         But,                      noted, "[   i] t is well
including     an unstated minimum           quantity     requirement.           as we   recently


settled that RCW 69. 50.4013 does not require that a defendant possess a minimum amount of a

controlled substance     in   order    to   sustain a conviction."       State v. Higgs, 177 Wn. App. 414, 436,

311 P. 3d 1266 ( 2013),       review   denied, 179 Wn. 2d 1024 ( 2014); see also State v. Bennett, 168


Wn.   App.     197, 210, 275 P. 3d 1224 ( 2012). In Higgs, we made it clear that no minimum amount


requirement      may be harmonized          with   the   statute.   177 Wn.     App.   at   436 -37. We therefore reject


Sitton' s argument and hold that sufficient evidence supports Sitton' s convictions.

C.       LEGAL FINANCIAL OBLIGATIONS


         Sitton argues that the trial court erred by imposing LFOs against him without statutory

authority and without inquiring into his ability to pay before imposing the LFOs. But Sitton did

not object to the imposition of the LFOs, and we will not address their validity for the first time

on appeal.




                                                             any issue                  below. RAP 2. 5(             Sitton
         In    general, we   may decline to        review                not raised                            a).




argues that we must consider the LFO issue under RAP 2. 5( a)( 3) because the trial court


committed a manifest error affecting a constitutional right. Specifically, he argues that imposing



2 Sitton argues that because most other states have recognized some minimum quantity
requirement, and because such a requirement would be good public policy, we should recognize
such a requirement. However, such arguments are properly directed to the legislature, not this
court.



3
    RCW 69. 50. 4013    was amended           in 2013.     LAws     OF 2013, ch.   3, § 20.

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attorney fees as LFOs at sentencing without finding that the defendant has the ability to pay

impermissibly chilled his Sixth Amendment right to counsel. But our Supreme Court has held
that the constitution does not require findings as to the defendant' s ability to pay at the time of

sentencing. State    v.   Blank, 131 Wn.2d 230, 239 -42, 930 P. 2d 1213 ( 1997). Therefore, we hold


that the trial court in this case committed no constitutional error. Because Sitton failed to object

below, we decline to review the trial court' s imposition of LFOs.

        We affirm Sitton' s convictions and sentence.


        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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