                                                                                                        i` t.!-12T1 OF APPEN S
                                                                                                                 VISION 11

                                                                                                       2014 OC           AM 8: 55
    IN THE COURT OF APPEALS OF THE STATE OF WASI                                                             N
                                                                                                         I/ T

                                                    DIVISION II                                          y


STATE OF WASHINGTON,                                                                No. 44515 -8 -II


                                      Respondent,


          v.



KENNETH CHENEY,                                                             UNPUBLISHED OPINION


                                      Appellant.


          A jury found Kenneth Cheney guilty of possession of a controlled substance,

methamphetamine.              Cheney appeals and argues that he was denied his right to effective

assistance of counsel when          his attorney did       not object    during   the State'   s   closing   argument.    He


asserts   that the   prosecutor    improperly      shifted   the burden of   proof    to him.       We hold that defense


counsel was not ineffective; he properly failed to object. We affirm Cheney' s conviction.

                                                               FACTS


          On October 18, 2012         at   approximately 9: 30 P. M.,      Cowlitz County Deputy Mark Johnson

stopped a pickup driven by Cheney and occupied by his passenger, Robert Downey. The vehicle

had proceeded the wrong way on a public street. Johnson approached the vehicle on the driver' s

side and asked Cheney for his operator' s license, proof of insurance, and vehicle registration.
                            his license                   he did   not   have insurance.           With the assistance of
Cheney         produced                    and   stated




illumination from Johnson' s flashlight, Cheney reached up to the visor to look for the vehicle' s

registration. He flipped the visor down, and pulled out some papers. They were bound together

with a    strap.   The deputy noticed a red drug smoking device, a pipe, on top of the pile. This pipe

is commonly          used    for smoking     methamphetamine.            Upon request, Cheney gave Johnson the

pipe.
44515 -8 -I1



           When     asked about    the   pipe,   Johnson   said   Cheney   attempted   to   cover   it up.   Cheney and

Downey said he did not. According to both, Cheney also denied owning the pipe but did say he

took responsibility for the contents of his vehicle only after Johnson told him that was the law.

Johnson was unsure if he ever advised Cheney about constructive possession, i.e. that an owner

would be responsible for and in possession of items found in his vehicle. Johnson arrested

Cheney and escorted him to the patrol car. Johnson testified that Cheney, after being advised of

his Miranda' warnings and waiving them, said he would take responsibility for the pipe because

it   was   in his   vehicle.     Johnson also said that Cheney told him the pipe was used to smoke

methamphetamine.          RP106, 108.            Cheney    denied telling Johnson " it      was     a meth pipe."   1B


Report of Proceedings ( RP) at 194.


           At trial, the jurors heard the above inconsistent testimony.               They also heard that Cheney

owned the vehicle and frequently lent it to his roommate and other people. The parties stipulated

that the powder found inside the pipe tested positive for methamphetamine.

           Cheney     asserted   the     affirmative   defense    of   unwitting   possession.      At the end of the


testimony, the court instructed the jury that the State had the burden of proving every element of

the   crime charged     beyond     a reasonable     doubt.    The court further instructed the jury that Cheney

had the burden of proving unwitting possession by a preponderance of the evidence.

           During closing argument the prosecutor argued his theory of Cheney possessing the
methamphetamine. He then stated:




 1 Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
                                                              2
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                Now it is their turn to show that they should not be held responsible, and this is
         where this case is unique for this one purpose. The burden shifts. And up to this point, I
         would surmise that [ the defendant' s attorney] will agree with everything I' ve said, that
         possession has been established. Now it is their job to prove unwitting possession. And
         only —only once they' ve prove that, can he not be held responsible for being in
         possession.




1B RPat251.


         The defense did        not   object      during      the State' s closing argument.         The jury returned a

guilty verdict.

                                                          ANALYSIS


         Cheney appeals, claiming he did not receive effective assistance of counsel because his

attorney did not object to the prosecutor' s closing argument which he claims shifted the entire

burden of proof to him and made it seem as though he conceded possession. We disagree.

         To prevail on an ineffective assistance of counsel claim, a criminal defendant must

demonstrate ( 1)       deficient    performance          by    counsel   and (   2)    resulting prejudice. Strickland v.

Washington, 466 U. S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).                              If the court finds


either   prong has     not   been   met,   it   need not address      the other prong.       Strickland, 466 U. S. at 700;


accord    State   v.   Garcia, 57 Wn.           App.    927, 932, 791 P. 2d 244 ( 1990).           To establish deficient


performance, the defendant must show that trial counsel' s performance fell " below' an objective

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


          Courts presume counsel' s representation was effective. Strickland, 466 U. S. at 689; State

v.   McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995).                           The presumption is rebutted if there


is   no possible   tactical explanation           for   counsel' s action.   State v. Reichenbach, 153 Wn.2d 126,


 130, 101 P. 3d 80 ( 2004).




                                                                  3
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          In evaluating Cheney' s claim for ineffective assistance of counsel, it must be emphasized

that   Cheney    claimed    the    affirmative        defense    of   unwitting    possession. "   This defense assumes that


the    State has    established          a    prima   facie showing        of ` possession'.       If   one   is    an `   unwitting'


possessor[,] ...         the defendant is permitted to ` explain' that the drugs were possessed either

without    knowledge       of    their   existence or      the   nature of   the   substance."     State v. Staley, 123 Wn.2d

794, 800, 872 P. 2d 502 ( 1994); see also State v. Cleppe, 96 Wn.2d 373, 381, 635 P. 2d 435


 1981); State      v.   Adame, 56 Wn.           App. 803, 807,         785 P. 2d 1144 ( 1990).       The defendant claiming

the defense     has the burden           of   proving it   by    a preponderance of      the   evidence.      State v. Balzer, 91


Wn. App. 44, 67, 954 P. 2d 931 ( 1998).

           In the       context    of    closing      arguments,       the prosecuting attorney         has ` wide latitude in


making arguments to the jury and prosecutors are allowed to draw reasonable inferences from
the    evidence. "'      State    v.   Fisher, 165 Wn.2d 727, 747, 202 P. 3d 937 ( 2009) (                         quoting State v.

Gregory,     158 Wn.2d 759, 860, 147 P. 3d 1201 ( 2006)).                       We review allegedly improper comments

in the context of the entire argument. State v. Fisher, 165 Wn.2d at 747.

          In the present case, the State did not make improper comments in closing argument and

did not impermissibly shift the burden of proof. The prosecutor explained the procedural scheme

applicable      to the    case.        The State clearly argued it had the burden to prove possession of the

                                                           the burden                                                      Therefore,
controlled substance;            then,   Cheney had                        of   proving unwitting       possession.




Cheney has failed          to show the           first prong      of   the Strickland test.        Cheney' s counsel was not

deficient.




                                                                       4
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        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:




                           A.c.X


         Lee, J.




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