                                                         Filed
                                                   Washington State
                                                   Court of Appeals
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                    Division Two

                                          DIVISION II                                        June 18, 2019

 STATE OF WASHINGTON,                                                 No. 50952-1-II

                                Respondent,                    UNPUBLISHED OPINION

         v.

 SHYLEE BARTLETT,

                                Appellant.

       GLASGOW, J. — Shylee Bartlett was sitting on a bed in a garage living area when police

executed a search warrant for the garage. Police found methamphetamine in a briefcase under

the bed that also contained a hospital bracelet with Bartlett’s name on it. They also found heroin

on a nearby dresser. The State charged Bartlett with one count of methamphetamine possession

and one count of heroin possession. Bartlett was convicted on the methamphetamine charge but

acquitted on the heroin charge. She appeals the conviction for possession of methamphetamine.

       Bartlett argues that there was insufficient evidence to support her conviction,

prosecutorial misconduct deprived her of a fair trial because in closing argument the prosecutor

referred to facts not established at trial, and she received ineffective assistance of counsel

because her attorney failed to object. Bartlett also challenges the imposition of a criminal filing

and a DNA collection fee, as well as the related interest provision, as part of her sentence.

       We hold that Bartlett’s conviction was supported by sufficient evidence, the prosecutor’s

remark was not so flagrant and ill-intentioned that an instruction could not have cured the

resulting prejudice, and Bartlett was not prejudiced by the lack of objection. We affirm

Bartlett’s conviction. We remand, however, so that the fees and the related interest provision can

be stricken from the judgment and sentence.
No. 50952-1-II

                                              FACTS

       Police executed a search warrant at the home of Brandon Coons. Coons was the named

target of the warrant and lived in the garage, while two other women lived in the house. When

police entered the garage they saw Coons and Bartlett sitting on a bed, as well as drugs and drug

paraphernalia in plain sight. On the floor there was a pipe containing methamphetamine, and in

and on the dresser police found a bag of methamphetamine, a spoon with heroin residue, and

other drug paraphernalia. Under the bed, police found a briefcase containing a digital scale, a

plastic container of methamphetamine, and a hospital bracelet with Bartlett’s name that was

dated the day before.

       The State charged Bartlett with one count of possession of methamphetamine and one

count of possession of heroin.

       At trial, the State asked one of the police detectives if he had seen male and female

clothing in the dresser, but the court sustained Bartlett’s objection before the detective answered.

The detective then testified that he could not remember what was inside the dresser apart from a

bag of methamphetamine and some drug paraphernalia.

       During closing argument, the State argued the following:

       We also heard that the drawer—the dresser that was searched contained male and
       female clothing. . . . And if Ms. Bartlett is in this room staying with Mr. Coons or
       visiting Mr. Coons, we have this female clothing in the dresser. . . . You’ve got
       some clothes in the dresser, you clearly have an established presence there.

Verbatim Report of Proceedings (VRP) at 139-41. Defense counsel did not object to these

statements, but did refer to the clothes in her own closing argument, pointing out that there were

other women that lived in the home who could have owned the clothes.




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No. 50952-1-II

       The court instructed the jury on constructive possession. As discussed in more detail

below, the jury instruction explained that constructive possession occurs when a person does not

have actual physical possession but has dominion and control over the substance.

       The jury acquitted Bartlett of possession of heroin but found her guilty of possession of

methamphetamine. The court sentenced her to 10 days of confinement, and then converted the

sentence to 80 hours of community service and 12 months of community custody. The court

also imposed a $200 criminal filing fee and a DNA collection fee, while also finding Bartlett to

be indigent. Bartlett appeals her conviction and the imposition of the criminal filing fee, the

DNA collection fee, and related interest.

                                            ANALYSIS

                                 I. SUFFICIENCY OF THE EVIDENCE

       Bartlett argues the State failed to prove beyond a reasonable doubt that she possessed

methamphetamine. We disagree.

A.     Standard of Review and Evidence Required to Establish Constructive Possession

       Evidence is sufficient to support a conviction if, viewing the evidence in the light most

favorable to the State, any rational trier of fact could find the essential elements of the crime

beyond a reasonable doubt. State v. Imokawa, 4 Wn. App. 2d 545, 560, 422 P.3d 502 (2018). A

claim of insufficiency admits the truth of the State’s evidence. Id. We draw all reasonable

inferences in favor of the State and interpret them most strongly against the defendant. Id.

Circumstantial evidence and direct evidence carry equal weight. State v. Goodman, 150 Wn.2d

774, 781, 83 P.3d 410 (2004). We defer to the trier of fact on issues of conflicting testimony,




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No. 50952-1-II

credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d

821, 874-75, 83 P.3d 970 (2004).

       To convict Bartlett, the State had to prove that she possessed methamphetamine. RCW

69.50.206(d)(2), .4013(1). Possession may be actual or constructive. A person actually

possesses something that is in her physical custody, and constructively possesses something that

is not in her physical custody but still is within her “‘dominion and control.’” State v. Davis, 182

Wn.2d 222, 227, 340 P.3d 820 (2014) (quoting State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400

(1969)). Dominion and control need not be exclusive. State v. Summers, 107 Wn. App. 373,

384, 28 P.3d 780 (2001).

       For either form of possession, the State “‘must prove more than passing control; it must

prove actual control.’” Davis, 182 Wn.2d at 227 (quoting State v. Staley, 123 Wn.2d 794, 801,

872 P.2d 502 (1994)). Whether one has actual control “depends on the totality of the

circumstances presented.” Id. Close proximity is not enough to establish constructive

possession; there must be other facts from which the jury could infer dominion and control.

State v. Turner, 103 Wn. App. 515, 521, 13 P.3d 234 (2000).

       Consistent with the law, the court instructed the jury that constructive possession “occurs

when there is no actual physical possession but there is dominion and control over the

substance.” Clerk’s Papers at 29. The instruction explained that proximity alone is not enough

to establish constructive possession, and dominion and control need not be exclusive to warrant a

finding of constructive possession. Finally, the court instructed the jury to consider all relevant

circumstances when making this determination, including whether Bartlett had the immediate




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No. 50952-1-II

ability to take actual possession of the substance, capacity to exclude others from possessing it,

or dominion and control over the premises.

B.     Constructive Possession of the Methamphetamine

       Bartlett argues that the proximity of the methamphetamine was insufficient to prove she

possessed it, analogizing this case to Callahan and State v. Spruell, 57 Wn. App. 383, 788 P.2d

21 (1990). In Callahan, our Supreme Court held there was insufficient evidence of constructive

possession where the police found drugs near the defendant while searching a houseboat where

he was a guest, even though the defendant admitted to handling the drugs earlier that same day.

77 Wn.2d at 30-31. Another occupant of the houseboat testified that the drugs belonged to him

and he had not sold them or given them to anyone else including Callahan. Id. at 31. This

testimony was uncontradicted. Id.

       In Spruell, Division One of this court likewise held there was no constructive possession

where the police found the defendant in a kitchen where drugs and paraphernalia were on the

table, even though the defendant’s fingerprints were on a plate containing cocaine residue. 57

Wn. App. at 384, 388-89. There was no evidence that the defendant lived or was staying in the

home. Id. at 387.

       Both of these cases are distinguishable. In each, the corroborating evidence of

possession, apart from the defendants’ close proximity to the drugs, suggested only that the

defendants had handled the drugs in the past. Callahan, 77 Wn.2d at 31; Spruell, 57 Wn. App. at

384-85. In other words, the defendants at most had only passing control over the drugs. See

Davis, 182 Wn.2d at 227; Callahan, 77 Wn.2d at 29; Spruell, 57 Wn. App. at 386.




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No. 50952-1-II

       Here, the briefcase was found underneath the bed Bartlett was sitting on. The police

found methamphetamine inside the briefcase next to a hospital bracelet bearing Bartlett’s name

that was dated the previous day. The presence of the hospital bracelet is circumstantial evidence

that she owned the briefcase. It supports an inference that the briefcase and its contents were

within Bartlett’s dominion and control, even though Bartlett did not have dominion and control

over the entire premises.

       Because we consider the totality of the circumstances, treating circumstantial evidence as

equal to direct evidence and drawing all reasonable inferences in the State’s favor, we hold that

there was sufficient evidence of Bartlett’s constructive possession of methamphetamine to

support the conviction.

                                II. PROSECUTORIAL MISCONDUCT

       Bartlett argues the prosecutor’s statements during closing argument that the dresser

contained female clothing amounted to misconduct depriving her of a fair trial. We disagree.

A.     Prosecutorial Misconduct and Standard of Review

       Prosecutorial misconduct may deprive a defendant of their constitutional right to a fair

trial. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673 (2012). To

establish prosecutorial misconduct, a defendant must show that the prosecutor’s remarks were

both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 759-60, 278 P.3d 653 (2012).

The prosecutor has wide latitude in making arguments to the jury and they are allowed to draw

reasonable inferences from the evidence. In re Pers. Restraint of Yates, 177 Wn.2d 1, 58, 296




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No. 50952-1-II

P.3d 872 (2013). “The prosecutor’s conduct is reviewed in its full context.” Id. Nevertheless,

closing arguments that are unsupported by the admitted evidence are improper. Id.

       With regard to prejudice, it is the defendant’s burden to show a substantial likelihood that

misconduct affected the jury’s verdict. Emery, 174 Wn.2d at 760. A defendant who fails to

object to an improper remark also must show the remark was so flagrant and ill-intentioned that

an instruction could not have cured the resulting prejudice. Id. at 760-61. A defendant who does

not object to the remark must show both that no curative instruction would have eliminated the

prejudicial effect and the misconduct resulted in prejudice that had a substantial likelihood of

affecting the verdict. Id. at 761.

       If the improper argument was central to the State’s case, prejudice is more likely to be

found. For example, Bartlett cites to State v. Jungers, where we held it was improper for the

prosecutor to mention that police officers believed Jungers had given a truthful and willing

confession, despite the fact that the trial court had earlier sustained Jungers’s objection to that

line of questioning. 125 Wn. App. 895, 904-06, 106 P.3d 827 (2005). We reasoned that the

jury’s verdict turned on whether jury members believed Jungers was being truthful when she

confessed at the scene that the drugs belonged to her, rather than her testimony at trial that the

drugs belonged to her boyfriend. Id. at 904-05. In these circumstances, the improper reference

to excluded evidence about what the police officers believed was prejudicial. Id. at 902.

B.     The Prosecutor’s Remark Was Not So Flagrant and Ill-Intentioned that an Instruction
       Could Not Have Cured the Resulting Prejudice

       Here, the prosecutor said that the dresser contained female clothing, which suggested

Bartlett had “an established presence there.” VRP at 141. The court had sustained Bartlett’s




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No. 50952-1-II

earlier objection to the line of questioning regarding whether the dresser contained both male and

female clothing, but Bartlett did not object to this remark in closing argument.

       While reliance on excluded evidence was improper, it was not so flagrant and ill-

intentioned that an instruction could not have cured the resulting prejudice. Emery, 174 Wn.2d

at 760-61. The prosecutor’s remark went to facts important to the jury’s determination of

whether the drugs on the dresser were in Bartlett’s possession, as the presence of women’s

clothes in the dresser may have supported an inference that she had control and dominion over

the rest of the dresser’s contents. However, the jury acquitted Bartlett of possession of the

heroin, which was found only on the dresser. Although the presence of methamphetamine and

drug paraphernalia on top of the dresser could conceivably have factored into the jury’s decision

to convict Bartlett for methamphetamine possession, that conviction was independently

supported by the circumstances of the methamphetamine found in the briefcase. Thus, any harm

from the jury learning improperly that the dresser contained female clothing was minimal and

would easily have been negated by a curative instruction.

       This case is distinguishable from Jungers, on which Bartlett relies, because here, the

crime for which Bartlett was convicted was independently supported by other facts and

circumstances besides the excluded evidence. In sum, Bartlett cannot show the remark was so

flagrant and ill-intentioned that an instruction could not have cured the resulting prejudice.

                            III. INEFFECTIVE ASSISTANCE OF COUNSEL

       Bartlett argues her counsel’s failure to object to the prosecutor’s remarks about the

dresser constituted ineffective assistance of counsel. We disagree.




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No. 50952-1-II

A.     Background on Ineffective Assistance of Counsel

       Both the Sixth Amendment to the United States Constitution and article 1, section 22 of

the Washington Constitution guarantee the right of a criminal defendant to 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. Thomas, 109 Wn.2d 222, 229, 743 P.2d 816 (1987). To prevail on her

ineffective assistance claim, Bartlett must show both that counsel’s performance was deficient

and she was prejudiced. Strickland, 466 U.S. at 687; State v. Cienfuegos, 144 Wn.2d 222, 226-

27, 25 P.3d 1011 (2011). Trial counsel’s performance is deficient if it falls “below an objective

standard of reasonableness.” Strickland, 466 U.S. at 688.

       To demonstrate prejudice, Bartlett must show a reasonable probability that “but for

counsel’s deficient performance, the outcome of the proceedings would have been different.”

State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). In the context of an alleged failure to

object, the defendant must show both that the objection would have been sustained and the result

of the trial would have been different had the evidence been excluded. In re Det. of Monroe, 198

Wn. App. 196, 205, 392 P.3d 1088 (2017).

B.     Counsel Was Not Deficient and Bartlett Was Not Prejudiced

       The decision of whether to object is a classic example of trial tactics, and only in

egregious circumstances will the failure to object constitute ineffective assistance of counsel.

State v. Kolesnik, 146 Wn. App. 790, 801, 192 P.3d 937 (2008). Here, defense counsel chose to

argue that the women living in the house were just as likely to own any women’s clothes found

in the dresser, rather than object and call undue attention to the prosecutor’s argument. This

tactical decision did not amount to deficient representation.



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No. 50952-1-II

       For the same reasons discussed above, even if counsel were deficient, Bartlett cannot

show she was prejudiced by the lack of objection. Even assuming the court would have

sustained an objection, there is no reasonable probability the outcome of the trial would have

been different. Bartlett’s conviction for methamphetamine possession was independently

supported by the evidence that she had constructive possession of the drugs in the briefcase.

       Because we find no prejudice, this argument fails.

                                IV. LEGAL FINANCIAL OBLIGATIONS

       Bartlett argues the $200 criminal filing fee, the $100 DNA collection fee, and the interest

provision in her judgment and sentence were improperly imposed. The State concedes all three

should be stricken. We agree.

       In 2018 the legislature amended the laws regarding legal financial obligations, including

the challenged fees and interest. LAWS OF 2018, ch. 269. These amendments apply

prospectively to cases on direct appeal when the law changed. State v. Ramirez, 191 Wn.2d 732,

747, 426 P.3d 714 (2018).

       The State concedes that under the new law, which is applicable here, the fees and interest

provision should be stricken on remand. We accept the State’s concessions.

                                         CONCLUSION

       We affirm Bartlett’s conviction and remand for the trial court to strike the portions of her

judgment and sentence identified above: the criminal filing fee, the DNA collection fee, and the




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No. 50952-1-II

interest provision.

        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.



                                                      Glasgow, J.
 We concur:



 Melnick, P.J.




 Sutton, J.




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