       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                 •••»        (/) o
                                                                                             -H '•.-'

STATE OF WASHINGTON,
                                              No. 70364-1-1
                     Respondent,
                                              DIVISION ONE
             v.

                                                                                        ro

JUSTIN J. FORD,                               UNPUBLISHED OPINION


                    Appellant.                FILED: July 29, 2013
                                        .)

       Becker, J. — A jury convicted Justin Ford of possession of heroin after

police found drugs and drug paraphernalia in his backpack. He argues the trial

court committed reversible error by using a modified version of the standard jury

instruction on reasonable doubt. He also contends there was insufficient

evidence to support the conviction and the prosecutor's improper comments

during closing argument deprived him of a fair trial. We affirm.

       Grays Harbor sheriffs deputies encountered Ford when they arrived to

serve an arrest warrant on Hali Ochsner in Ochsner's condominium in Westport.

When the deputies arrived and came into the living room, Ford was there along

with Ochsner and Jordan Lilja. Drugs and numerous items of drug paraphernalia

were visible on the coffee table. The officers obtained a search warrant and

found heroin in various locations. Ford's black backpack, located on one of the
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couches in the living room, was searched and found to contain heroin and digital

scales. This discovery led to Ford's arrest.

       Ford did not have controlled substances on his person or in his car. The

State's evidence to support the charge of possession of heroin relied on the

heroin in Ford's backpack. At trial, Ochsner testified that when the police arrived,

she started putting drugs and other items from the coffee table into Ford's

backpack. She said that none of these items were Ford's. She disputed a

deputy's testimony that she told him, before the search took place, that Ford

brought the drugs to the apartment. The same deputy testified that when he and

his partner entered the living room, Oschner was closer to the backpack than

Ford was. Lilja testified that he saw Ochsner put items from the table into Ford's

backpack before the police came in. Ford argued in closing that he "never had

possession of the controlled substance because it was never in his custody or

control. Somebody just throws something in your backpack, you're not

possessing it."

       The jury found Ford guilty of possession of heroin, and the trial court

sentenced him to 24 months.


       Ford first assigns error to the court's instruction on reasonable doubt. He

contends a manifest constitutional error occurred because a key sentence in the

pattern instruction was omitted.

       Our Supreme Court, exercising its inherent supervisory power, has

directed trial courts to use only the current pattern instruction "to inform the jury

of the government's burden to prove every element of the charged crime beyond
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a reasonable doubt." State v. Bennett. 161 Wn.3d 303, 318, 165 P.3d 1241

(2007). The pattern instruction describes the State's burden as follows,

enclosing in brackets those portions that are used in particular circumstances:

               [T]he [Each] defendant has entered a plea of not guilty. That
       plea puts in issue every element of [the] [each] crime charged. The
       [State] [City] [County] is the plaintiff and has the burden of proving
       each element of [the] [each] crime beyond a reasonable doubt.
       The defendant has no burden of proving that a reasonable doubt
       exists [as to these elements].
              A defendant is presumed innocent. This presumption
       continues throughout the entire trial unless during your
       deliberations you find it has been overcome by the evidence
       beyond a reasonable doubt.
              A reasonable doubt is one for which a reason exists and
       may arise from the evidence or lack of evidence. It is such a doubt
       as would exist in the mind of a reasonable person after fully, fairly,
       and carefully considering all of the evidence or lack of evidence. [If,
       from such consideration, you have an abiding belief in the truth of
       the charge, you are satisfied beyond a reasonable doubt.]

11 Washington Practice: Washington Pattern Jury Instructions: Criminal

4.01, at 85 (3d. ed. 2008) (WPIC).

       The instruction Ford proposed conformed to WPIC 4.01. The instruction

the State proposed conformed to the pattern instruction except that it lacked the

sentence, "The defendant has no burden of proving that a reasonable doubt

exists [as to these elements]." The trial court gave the instruction as proposed by

the State. The record does not reflect that anyone commented on the

discrepancy, or even noticed it, during the proceedings in the trial court.

       In Bennett, the Supreme Court stated, "Even if many variations of the

definition of reasonable doubt meet minimal due process requirements, the

presumption of innocence is simply too fundamental, too central to the core of
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the foundation of our justice system not to require adherence to a clear, simple,

accepted, and uniform instruction.... We have approved WPIC 4.01 and

conclude that sound judicial practice requires that this instruction be given until a

better instruction is approved." Bennett, 161 Wn.2d at 317-18. Under Bennett,

as the State recognizes, the instruction given was erroneous.

       This court reversed a conviction where the trial judge gave a completely

nonstandard instruction. State v. Castillo, 150 Wn. App. 466, 470, 475, 208 P.3d

1201 (2009). In Castillo, the defendant proposed WPIC 4.01, but the court

replied that the WPIC was gobbledygook and refused to give it. Castillo, 150

Wn. App. at 470.

       However, erroneous modification to WPIC 4.01 does not automatically

constitute reversible error. State v. Lundv. 162 Wn. App. 865, 871-73, 256 P.3d

466(2011).

       Unlike in Castillo, where the defendant objected to the nonstandard

instruction, here Ford did not object. Because a violation of the Supreme Court's

mandate in Bennett is not in itself an error of constitutional magnitude, Ford is not

entitled to review as a matter of right. See State v. Jimenez-Macias, 171 Wn.

App. 323, 331-32, 286 P.3d 1022 (2012) (noting that in Lundv the court should

have found the instructional error was not of constitutional magnitude instead of

reviewing it under the constitutional harmless error standard).

       Even if the omission were subject to a constitutional harmless error

analysis, the error would not require reversal as long as it did not relieve the

State of its burden to prove each element of the crime charged. State v. Brown.
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147 Wn.2d 330, 332, 58 P.3d 889 (2002). Ford argues the harmful potential

prejudice of the instruction given here was that the jury might believe it was his

burden to establish doubt and that the potential for prejudice was realized when

the State made a burden shifting remark during argument.

       The defense closing argument emphasized that the police did not know

what the coffee table looked like before they arrived and that the testimony of

Ochsner and Lilja should be believed as to what happened before the police

arrived. Defense counsel also suggested that Ochsner might have flushed drugs

down the toilet before the police came into the living room. The prosecutor

responded in rebuttal:

       Well, she never said that she flushed anything down the toilet and
       he certainly would have asked her about it. There were no drugs in
       the vehicle, so what. I - I - it's a - that's neither here nor there.
       And do you really think that Deputy Wilson lied to get a search
       warrant to search the apartment and the vehicle. Do you really
       think he lied to do that?

It is difficult to see how this argument about the possible flushing of drugs down

the toilet has any relevance to the heroin that was found in Ford's backpack. It is

even more difficult to imagine the jury taking it as a direction that Ford had the

burden of establishing reasonable doubt.

       The instruction in this case did not misstate the State's burden of proof.

The instruction correctly communicated the fundamental concept that the

defendant was presumed innocent until the State proved each element of the

crime beyond a reasonable doubt. There is no reason to believe the jury was

influenced by the omission of the sentence stating the defense has no burden.
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       Next, Ford argues there was insufficient evidence to prove he possessed

the heroin in his backpack. The test for determining the sufficiency of the

evidence is whether, after viewing the evidence in the light most favorable to the

State, any rational trier of fact could have found guilt beyond a reasonable doubt.

State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citations omitted).

In claiming insufficient evidence, the defendant admits the truth of the State's

evidence and all reasonable inferences that can be drawn from it. Salinas, 119

Wn.2dat201.


       Ford argues the State failed to prove he constructively possessed the

heroin in his backpack. Constructive possession occurs when there is no actual

physical possession but there is dominion and control over the substance. Jury

Instruction 8; State v. Callahan. 77 Wn.2d 27, 30-31, 459 P.2d 400 (1969).

Courts will look at the totality of the situation to determine sufficiency of the

evidence of dominion and control. State v. Cote, 123 Wn. App. 546, 549, 96

P.3d 410 (2004).

       A defendant's mere proximity to drugs is insufficient to prove constructive

possession. State v. George, 146 Wn. App. 906, 920, 193 P.3d 693 (2008).

Unlike in George, the evidence here does not boil down to mere proximity.

Ochsner testified she put the heroin and other items from the coffee table into the

backpack, but Deputy Sheriff Robert Wilson said Ochsner told him at the scene

that Ford had brought the drugs into her home. The jury was free to discount

Ochsner's credibility and the corroborating testimony of Lilja, and to rely instead

on Wilson's testimony. There is no question that the backpack belonged to Ford.
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He had the right to exclude others from the backpack. Thus, the evidence was

sufficient.


        Finally, Ford argues he was deprived of a fair trial by prosecutorial

misconduct during closing arguments. To establish misconduct, a defendant

must show that the remark was "both improper and prejudicial in the context of

the entire record and the circumstances at trial." State v. Magers, 164 Wn.2d

174, 191, 189 P.3d 126 (2008), quoting State v. Hughes, 118 Wn. App. 713, 727,

77 P.3d 681 (2003). The defendant establishes prejudice by showing there is "a

substantial likelihood" that the remark affected the jury's verdict. Magers. 164

Wn.2d at 191. If the defendant objected to the allegedly improper comment, we

evaluate the trial court's ruling for abuse of discretion. State v. Gregory. 158

Wn.2d 759, 810, 147 P.3d 1201 (2006).

       The remark at issue came in the course of the prosecutor's discussion of

the term "abiding belief in the reasonable doubt instruction. The prosecutor

characterized it as "knowing that you have done the right thing":

              An abiding belief in the truth of the charge. Ifyou can walk
       out—if you can find the defendant guilty and walk out of here
       knowing that you have done the right thing, that you don't have any
       question in your mind that you've done the right thing, you've been
       convinced beyond a reasonable doubt.

Ford objected. The trial court referred the jury to the instructions and told the

jury, "The instructions speak for themselves. Remarks and statements of

counsel are not evidence." The State made no further reference to reasonable

doubt. At sentencing, Ford moved for a new trial based on the remark about "the

right thing." The trial court denied the motion.
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       The remark was improper. Attempts to describe the meaning of

reasonable doubt in terms other than the approved jury instruction are chancy at

best. Nevertheless, we perceive no likelihood that the remark affected the jury's

verdict. It bore no relationship to the omission, in instruction 7, of the sentence

stating that the defendant has no burden of proving that a reasonable doubt

exists. The prosecutor consistently affirmed that the State had the burden of

proof, as did defense counsel. Immediately after the objectionable comment, the

trial court correctly referred the jury to the instructions, saying "The jury will follow

the instructions." We presume the jury followed the instructions given. State v.

Brown. 132 Wn.2d 529, 618, 940 P.2d 546 (1997). cert, denied. 523 U.S. 1007

(1998).

       Affirmed.




WE CONCUR:




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