                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         August 4, 2020
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                              No. 52401-5-II

                           Respondent,

        v.

 RICKY RAY SEXTON,                                           UNPUBLISHED OPINION

                            Appellant.


       GLASGOW, J.—A confidential informant told police that Ricky Ray Sexton was selling

methamphetamine out of his home. The police obtained a warrant to search the home for any

evidence related to the sale of methamphetamine. As the police arrived to execute the warrant, a

man on the porch of the home saw them and ran inside. The police then announced their presence

and the fact that they had a warrant over a loudspeaker as they rushed to and breached the door.

The police seized methamphetamine and other drugs, as well as a firearm and several items

typically used for packaging methamphetamine for sale.

       The trial court denied Sexton’s motions to suppress the evidence from the search and to

represent himself. After a jury trial, Sexton was convicted of possession of methamphetamine with

intent to deliver, possession of methylphenidate with intent to deliver, possession of oxycodone,

and unlawful possession of a firearm.

       Sexton appeals, arguing that the evidence seized from his home should have been

suppressed because the police violated the knock and announce rule and probable cause had

become stale by the time they executed the search warrant. He argues that the trial court violated

his right of self-representation and improperly commented on the evidence in the jury instructions.
No. 52401-5-II


Sexton also alleges errors related to the maximum sentence for his methylphenidate conviction

and the imposition of a community custody condition. He claims that several legal financial

obligations were improperly imposed. He also filed a statement of additional grounds (SAG)

alleging ineffective assistance of counsel.

       We affirm Sexton’s convictions. The police’s actions satisfied the knock and announce rule

and were independently justified by exigent circumstances. Probable cause had not become stale.

The trial court did not err in denying Sexton’s motion to represent himself because his request was

equivocal. The jury instructions on possession did not constitute a judicial comment on the

evidence. None of the arguments in Sexton’s SAG requires reversal.

       We remand for the trial court to strike the improper legal financial obligations from

Sexton’s judgment and sentence, reexamine the imposition of the supervision assessment fee,

correct the challenged community custody condition to prohibit Sexton from knowingly

associating with drug users or sellers, and determine whether Sexton had a qualifying prior

conviction under RCW 69.50.408(2) and resentence him if necessary.

                                              FACTS

       A confidential informant told the police that they had recently been to Sexton’s home and

witnessed him selling methamphetamine. The informant said that Sexton regularly sold

methamphetamine out of his home. The informant also said that they saw varying amounts of

methamphetamine in different sized baggies, other packaging of various sizes, a handgun, and a

drug scale. Based on this information, police obtained a warrant to search Sexton’s home for

evidence of the crime of possession of a controlled substance with intent to deliver, including

methamphetamine, firearms, and equipment and other items “of any kind which are used, or


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No. 52401-5-II


intended for use, in the manufacturing, compounding, processing, delivering, packaging,

importing or exporting of methamphetamine and/or any controlled substances.” Clerk’s Papers

(CP) at 21. The warrant was issued within 72 hours of the informant being in Sexton’s home.

       The police conducted a threat assessment, identified this warrant as high risk, and

assembled a special weapons and tactics team (SWAT) to execute the warrant. The threat

assessment was based on information that Sexton was selling drugs at his home, he was known to

carry a firearm, he had a large dog at his residence that could be used for counter surveillance, and

it would be difficult for police to surprise the occupants when executing the warrant due to the

home’s location and local topography.

       In the early morning, nine days after the police received the tip from the informant, a

SWAT team went to Sexton’s home to serve the warrant. As the SWAT armored vehicle

approached Sexton’s home, police officers observed a man on the front porch who saw them and

then ran inside the home. An officer yelled out that the operation was compromised, and several

officers rushed up to the home to breach the door. The officer tasked with breaching the door

testified that he did not knock and announce his presence because “compromise” had been called,

although another officer testified that he was continuously broadcasting over the vehicle’s

loudspeaker system identifying the officers as police, explaining that they had a warrant, and

ordering the occupants of the home to get on the ground. 1 Verbatim Report of Proceedings (VRP)

(Feb. 13-14, 2018) at 59, 91.

       Once inside, the police seized digital scales, a spiral notebook with names and numbers, a

handgun, bottles containing oxycodone and methylphenidate, and several bags containing

methamphetamine. The officers arrested Sexton, and the State charged him with one count of


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No. 52401-5-II


possession of methamphetamine with intent to deliver, one count of possession of methylphenidate

with intent to deliver, one count of possession of oxycodone, and one count of unlawful possession

of a firearm. The two counts of possession with intent to deliver also carried firearm enhancements.

        Sexton moved to suppress evidence seized from the search of his home. At the hearing on

the motion, police officers testified that in their experience methamphetamine is easily disposable

and that suspects often try to dispose of drugs in similar circumstances. There was also testimony

on the basis for classifying the warrant as high risk and the reasons for using a SWAT team to

execute the warrant, as described above.

        There was conflicting testimony about what message the police announced over the

loudspeaker just before the officers breached the door, as well as the length of the delay between

the beginning of those announcements and the breach. One officer testified that he announced over

the loudspeaker, “[T]his is the police, we have a warrant, get on the ground,” and that the other

officers breached the door 10 to 15 seconds later. Id. at 91-92. Another officer testified that the

announcement was, “[P]olice, search warrant, open the door,” and the breach occurred three to

five seconds later. Id. at 57, 64.

        The trial court denied the motion to suppress. The court found that the basis for using a

SWAT team was “information that the defendant may be dealing controlled substance out of his

residence, was known to carry a firearm, had a large dog at his residence, and the difficulty of

maintaining concealment while approaching the defendant’s residence based upon its location and

topography.” CP at 121. The trial court found that each of the testifying officers was credible in

their testimony. The court entered findings concerning the officers’ conflicting testimony, finding

that the officers informed the occupants of Sexton’s home “of their presence, their identity, their


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No. 52401-5-II


purpose for being there, and to demand admittance.” CP at 126. The court found that about 15

seconds passed between the beginning of the announcements and the moment the police breached

the door.

        The trial court orally concluded that the officers’ actions satisfactorily complied with the

knock and announce rule. In its written conclusions, the court determined that the delay in time

between the officers’ announcements and the forced entry was reasonable and did not violate the

law. The court also ruled that exigent circumstances justified the officers’ “expedient entry” into

Sexton’s home, based on the fact that the officers “had been observed by a person at the

defendant’s residence resulting in ‘compromise’ being called out, that the search warrant was

issued for evidence that could be easily and quickly destroyed, and that Deputies had been advised

that the defendant was known to carry a firearm.” CP at 126.

        The trial court also ruled that the nine-day delay in executing the warrant had not rendered

probable cause stale. The warrant was served within 10 days and the suspected criminal activity

as described in the affidavit establishing probable cause was ongoing in nature. The court also

reasoned that the fact that Sexton was operating out of a single-family home, as opposed to a car

or boat, suggested that the operation was ongoing rather than merely transitory.

        The following day, when jury selection was set to begin, Sexton fired his attorney and

verbally asked to represent himself, without filing a formal motion. The trial court asked Sexton if

he intended to represent himself and Sexton replied, “At this time, yes.” 2 VRP (Feb. 15, 2018) at

7. When the court asked him to clarify, Sexton discussed at length his frustrations with the

proceeding up to that point and the emotional turmoil he was going through, saying he was

“reluctantly” firing his attorney. Id. at 8. He indicated that the reasons he wanted to fire his attorney


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No. 52401-5-II


were personal disagreements, frustrations over numerous delays in the proceeding, the court’s

denial of his suppression motion, and the fact that he could no longer afford to pay the attorney.

Sexton also informed the court that he had attempted to contact an attorney in Seattle that he

indicated would assist him with his case. The court then engaged in a lengthy colloquy in which

he asked about Sexton’s knowledge of the legal system, discussed the risks of self-representation,

and advised Sexton that he would be held to the same technical and procedural requirements as an

attorney.

       The trial court ultimately denied the motion, finding that Sexton’s request was untimely

and made for the purposes of delaying the proceedings, that Sexton’s request was equivocal, and

that Sexton was not prepared to try his own case.

       At trial, police officers testified regarding the items seized from Sexton’s home. The trial

court issued substantively identical jury instructions on possession with respect to the firearm and

the drugs. The jury instructions stated that possession can be actual or constructive, and

constructive possession occurs when there is dominion or control over the item in question. The

instructions continued:

              In deciding whether the defendant had dominion and control over [an item],
       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 [item], whether the defendant had the capacity to exclude others
       from possession of the [item], and whether the defendant had dominion and control
       over the premises where the [item] was located. No single one of these factors
       necessarily controls your decision.

CP at 61, 76.

       The jury found Sexton guilty on all counts but did not find that the firearm enhancements

applied. The trial court sentenced Sexton to 85 months of confinement on each of the drug


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No. 52401-5-II


possession counts and 24 months on the one count of firearm possession, all to be served

concurrently. The court listed the maximum sentence for the methylphenidate conviction, a class

C felony, as 10 years. Sexton’s statement of criminal history and offender score identified the

methylphenidate conviction as a class B felony.

       During the sentencing hearing, the trial court stated that it would impose a condition of

community custody forbidding Sexton from knowingly associating with drug users or sellers, as

that is what the State requested. On Sexton’s judgment and sentence, the court forbade him from

associating with all drug users and sellers, leaving out the word “knowingly.” CP at 112. The trial

court also imposed a criminal filing fee, DNA collection fee, and community supervision fee.

       Sexton appeals.

                                           ANALYSIS

        I. SEXTON’S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES

       Sexton argues the police violated his right to be free from unreasonable searches and

seizures when they raided his home, and all evidence from that search should have been

suppressed. First, he argues the police violated the knock and announce rule when they broke down

his door without first asking for and being denied permission to enter. Second, he argues the police

no longer had probable cause to search his home when they executed the search warrant. We reject

both arguments.

A.     Knock and Announce

       Sexton argues that the police violated the knock and announce rule when they executed the

search warrant because they did not knock on his door and announce their presence before breaking

in. We disagree. The trial court did not err when it concluded that the police complied with the


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No. 52401-5-II


knock and announce rule, but even if they had not complied, exigent circumstances supported

immediate entry into Sexton’s home.

       1.      The knock and announce rule generally

       The Fourth Amendment to the United States Constitution and article I, section 7 of the

Washington Constitution both require that the police comply with the knock and announce rule

before entering a person’s home without consent. State v. Ortiz, 196 Wn. App. 301, 307, 383 P.3d

586 (2016). Washington has codified this requirement in RCW 10.31.040: “To make an arrest in

criminal actions, the officer may break open any outer or inner door, or windows of a dwelling

house or other building, or any other inclosure, if, after notice of his or her office and purpose, he

or she be refused admittance.” This statute applies to both arrest warrants and search warrants.

State v. Shelly, 58 Wn. App. 908, 910, 795 P.2d 187 (1990).

       “‘To comply with the statute, the police must, prior to a nonconsensual entry, announce

their identity, demand admittance, announce the purpose of their demand, and be explicitly

or implicitly denied admittance.’” Ortiz, 196 Wn. App. at 307-08 (quoting State v. Coyle, 95

Wn.2d 1, 6, 621 P.2d 1256 (1980)). Denial of admittance may be inferred by lack of response. Id.

at 308. The police must observe a reasonable “‘waiting period’” before they may enter without

permission. Id. (quoting State v. Richards, 136 Wn.2d 361, 370, 962 P.2d 118 (1998)).

       “‘Whether an officer waited a reasonable time before entering a residence is a factual

determination to be made by the trial court and depends upon the circumstances of the case.’” Id.

at 308 (quoting Richards, 136 Wn.2d at 374). The trial court evaluates the reasonableness of the

waiting period by considering the purposes of the rule: “‘(1) [R]eduction of potential violence to

both occupants and police arising from an unannounced entry, (2) prevention of unnecessary


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No. 52401-5-II


property damage, and (3) protection of an occupant’s right to privacy.’” Id. (quoting Coyle, 95

Wn.2d at 5).

       Courts require strict compliance with the rule unless the police can show the existence of

exigent circumstances or that compliance with the rule was futile because police presence was

likely known. Id.; Coyle, 95 Wn.2d at 11-12. Exigent circumstances may exist where “the police

had ‘a reasonable suspicion that knocking and announcing their presence, under the particular

circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of

the crime by, for example, allowing the destruction of evidence.’” State v. Cardenas, 146 Wn.2d

400, 411, 47 P.3d 127 (2002) (quoting Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416,

137 L. Ed. 2d 615 (1997)). “To prove exigent circumstances, the State must ‘point to specific,

articulable facts and the reasonable inferences therefrom which justify the intrusion.’” State v.

Muhammad, 194 Wn.2d 577, 597, 451 P.3d 1060 (2019) (quoting Coyle, 95 Wn.2d at 9).

       The State can make this showing either with evidence that police received specific, prior

information that the suspect may create an exigency, or that in the moment they were “‘confronted

with some sort of contemporaneous sound or activity alerting them’ to the possible presence of an

exigent circumstance.” Coyle, 95 Wn.2d at 10 (quoting State v. Mueller, 15 Wn. App. 667, 670,

552 P.2d 1089 (1976)). It is the State’s burden to show compliance or exigent circumstances

excusing noncompliance. Muhammad, 194 Wn. App. at 596. “‘The proper remedy for an

unexcused violation is suppression of the evidence obtained by the violation.’” Ortiz, 196 Wn.

App. at 308 (quoting Coyle, 95 Wn.2d at 14).

       We review de novo the conclusions of law entered in connection with a suppression order.

Cardenas, 146 Wn.2d at 407. We defer to the trial court’s assessment of conflicting evidence and


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No. 52401-5-II


witness credibility. State v. Edwards, 20 Wn. App. 648, 652, 581 P.2d 154 (1978); State v.

Johnson, 94 Wn. App. 882, 889-90, 974 P.2d 855 (1999). However, such evidence must still be

“constitutionally sufficient” in order to sustain a finding of exigent circumstances. Edwards, 20

Wn. App. at 652.

       2.      Whether the police complied with the knock and announce rule

       The trial court concluded that the warrant was properly served because the officers

announced themselves and their purpose, and they waited a reasonable amount of time under the

circumstances before breaching the door. Sexton focuses on the fact that the officer who

announced the police’s arrival over the loudspeaker testified that he told the occupants of the house

to “get on the ground,” rather than to “open the door.” Br. of Appellant at 15-16 (emphasis

omitted). But the rule does not require that the police literally knock on the door and demand entry

in every case. Rather, the relevant inquiry is whether the officers’ actions effectuated the purposes

of the rule. Richards, 136 Wn.2d at 372-73. “A police officer who identifies himself and announces

that he has a search warrant has implicitly demanded admission.” Johnson, 94 Wn. App. at 889.

       Multiple officers testified that the loudspeaker announcements identified the officers as

police and stated that they had a search warrant. This testimony supported the trial court’s finding

that the officers informed the occupants of Sexton’s home “of their presence, their identity, their

purpose for being there, and [demanded] admittance.” CP at 126. This announcement was similar

to the announcement found sufficient in Richards, where the officers said simply, “‘Police. We

have a search warrant.’” 136 Wn.2d at 372. It is clear that the officers here adequately announced

themselves and their purpose and at least implicitly demanded admission by telling the occupants

that they had a search warrant and to get on the ground. The announcement was broadcast over a


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No. 52401-5-II


SWAT van loudspeaker. It was reasonable for the officers to conclude that the occupants of

Sexton’s home were on notice of their presence and purpose. See id. at 377-78.

       Turning to the reasonableness of the delay before entry, the trial court found that

“[a]pproximately [15] seconds elapsed between the time Deputies began making their PA system

announcements” and the breach. CP at 126. Although there was conflicting testimony on how

much time elapsed, the officer that made the announcements over the loudspeaker testified that the

delay was 15 seconds, and the trial court found this testimony to be credible. This testimony

adequately supported the trial court’s finding of an approximately 15-second delay between the

announcement and entry, particularly in light of the deference we give to the court’s assessment

of witness credibility when there is conflicting evidence. See Johnson, 94 Wn. App. at 889. The

Johnson court found a delay of 5 to 10 seconds to be reasonable where, as here, the police

reasonably believed there was a danger that evidence was being destroyed. Id. at 890-91. And as

the court explained in Richards, the knock and announce rule does not require the police to wait

longer when doing so would be futile: “To wait for grant or denial of admission after an occupant

has been made aware of a police officer’s presence and purpose would serve no logical purpose.

The police officer is already authorized by the search warrant to enter the premises without

permission from the occupant.” 136 Wn.2d at 378.

       Given the factually dependent nature of the inquiry, we defer to the trial court’s evaluation

of witness credibility, and we agree with the trial court that a delay of several seconds was

reasonable under the circumstances. It would have served no logical purpose for the officers to

delay their entry any longer where they were already broadcasting their presence and purpose over

a loudspeaker.


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No. 52401-5-II


       Under the circumstances, the police adequately announced their presence and purpose, and

a reasonable delay occurred before they breached Sexton’s door. Accordingly, there was no

violation of the knock and announce rule.

       3.      Whether exigent circumstances justified immediate entry

       Even if the police had not strictly complied with the knock and announce rule, the trial

court explicitly concluded that exigent circumstances justified immediate entry into the home. The

trial court found that the warrant had been classified as high risk and necessitated SWAT

involvement, someone on the porch of Sexton’s home saw the police arrive, the police were

looking for evidence that could easily and quickly be destroyed, the police had been advised that

there was a large dog on the property, and Sexton was known to carry a firearm. Sexton challenges

these findings and argues that they did not support the trial court’s legal conclusions regarding

exigency. We disagree.

       In Cardenas, the Washington Supreme Court held that exigent circumstances existed

where the officers reasonably believed the occupants were armed, the officers were aware that the

occupants had recently used force against their robbery victims, the officers observed the

occupants running away from the door, and the evidence was easily disposable. 146 Wn.2d at 412.

The court reasoned that under these circumstances it was reasonable for the officers to be

concerned that the suspects would attempt to escape, confront the officers, or try to destroy

evidence, and so the knock and announce requirement was excused. Id.

       In Edwards, police serving a search warrant for drugs knocked on the door and saw a man

appear at a nearby window and then quickly disappear. 20 Wn. App. at 649. The officers then

announced their presence and purpose, but did not wait for a response and instead immediately


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No. 52401-5-II


kicked down the door. Id. at 649-50. We held that the fact that somebody saw the officers through

a window and then moved away, even when combined with the “perishable nature of the

evidence,” did not justify a finding of exigent circumstances. Id. at 652. We reasoned that there

was no other evidence of unusual activity, noise, or conduct indicating an exceptional situation.

Id.

       In State v. Johnson, 11 Wn. App. 311, 312, 522 P.2d 1179 (1974), the defendant saw police

arresting his friend outside his home and then quickly went inside. The police thought the

defendant might have been getting a weapon to stop the arrest and ran up to the door. Id. The

officers could see through the door that the defendant had not obtained a weapon but, nevertheless,

immediately entered the home and found a variety of stolen property. Id. Division One of this court

held that although there initially existed exigent circumstances, they were no longer present once

the officers could see that the defendant was not acting suspiciously. Id. at 318-19.

       Sexton relies on State v. Dugger, 12 Wn. App. 74, 528 P.2d 274 (1974) and State v. Jeter,

30 Wn. App. 360, 634 P.2d 312 (1981). In Dugger, Division One noted that the mere possibility

of destruction of evidence is insufficient to create an exigent circumstance, and although concern

for officer safety can create the requisite exigency, such concern must be supported by “[s]ome

credible evidence, such as knowledge that the occupants might possess weapons and be

predisposed to respond violently.” Id. at 83. In Jeter, we similarly held that the mere knowledge

that a convicted felon kept a gun by his bed was insufficient to show exigent circumstances absent

specific information that the defendant was predisposed to use the gun, and the risk of destruction

of evidence was likewise an insufficient basis because there was no evidence to suggest that the

defendant might destroy contraband. 30 Wn. App. at 362.


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No. 52401-5-II


       Here, the police did not have any prior specific information that Sexton was predisposed

to violence or that the occupants were likely to destroy evidence. However, unlike in Dugger and

Jeter, the police’s risk assessment called for the deployment of a SWAT team based on a variety

of factors that were predetermined to pose threats to officer safety. Also unlike in Dugger and

Jeter, the officers saw someone on the porch recognize them as police officers and immediately

bolt inside. Deputy Philip Wylie testified that it was obvious that the person on the front porch had

seen the police approach the house and then went inside in a hurry. Deputy Derek Nielsen testified

that the man on the porch “obviously saw us and made the decision to bolt, run back into the house

and slam the door.” 1 VRP (Feb. 13-14, 2018) at 54. Nielsen believed this was why another officer

called “compromise.” Id. The trial court found the testimony of each officer credible.

       The court in Johnson concluded that a similar event there initially created exigent

circumstances. 11 Wn. App. at 318-19. The difference is that in Johnson, the exigency dissipated

when the officers saw the defendant through an open door, whereas here, the officers could not

see inside the house and did not know whether the occupants were destroying evidence or arming

themselves. And the fact that the man on the porch “bolt[ed]” inside and “slam[med] the door”

distinguishes this case from Edwards, where the occupant merely appeared at a window and then

quickly moved away, apparently with no other indication that he was alarmed by police presence.

1 VRP (Feb. 13-14, 2018) at 54; Edwards, 20 Wn. App. at 650.

       Instead, this case is similar to State v. Carson, 21 Wn. App. 318, 322, 584 P.2d 990 (1978),

where the officers’ forcible entry was justified because they had prior information that the

defendant kept a shotgun by his door for protection and saw the defendant quickly close the door

and move away when he saw the officers approach. The Carson court reasoned that the officers


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No. 52401-5-II


could reasonably have interpreted the defendant’s actions “as creating a risk that evidence would

be destroyed or that officers’ lives were in danger.” Id.

       Although the officers here did not have information that any of the occupants of the house

had recently used force against anyone, they reasonably suspected that there would be electronic

surveillance, firearms, and a large dog in the house, the evidence sought was easily disposable,

and they witnessed activity that suggested that the occupants may attempt to flee, destroy evidence,

or confront the officers. See Cardenas, 146 Wn.2d at 412; see also State v. Wilson, 9 Wn. App.

909, 914-16, 515 P.2d 832 (1973) (holding that forcible entry was reasonable where informants

told the police that the defendant was armed with a pistol and had other firearms, the officers knew

the defendant had several narcotic convictions, and there was a concern that evidence would be

destroyed). There was testimony that the specific evidence sought was easily disposable, and in

the officers’ experience, suspects have frequently tried to dispose of drugs in these circumstances.

The trial court’s findings on the justification for using a SWAT team were therefore supported by

substantial evidence, and those findings supported its conclusion that exigent circumstances

justified immediate entry into Sexton’s home.

       Viewing the totality of the circumstances, it was reasonable for the police to conclude that

the man on the porch had fled inside to warn the other occupants to destroy or hide evidence or to

prepare to physically confront the officers. In light of the police’s threat assessment and the

officers’ perceived danger to their safety, it was reasonable for the officers to conclude that taking

additional time to knock and announce could have endangered officer safety and inhibited the

effective investigation of the crime. See Cardenas, 146 Wn.2d at 411. The trial court was

convinced by the officers’ testimony that the operation was compromised when the man on the


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No. 52401-5-II


porch saw them and ran inside, and we defer to that determination of credibility. Johnson, 94 Wn.

App. at 889. For these reasons, we hold that exigent circumstances also justified the officers’ entry

several seconds after they announced their presence.

B.     Probable Cause and Staleness

       Sexton next argues that although probable cause existed when the search warrant was

originally granted, it had become stale by the time the police executed the warrant nine days later.

We disagree.

       A search warrant may only issue upon a determination of probable cause. State v. Youngs,

199 Wn. App. 472, 475, 400 P.3d 1265 (2017). Probable cause exists if the affidavit in support of

the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that a

person is probably involved in criminal activity and the evidence of the crime could be found in

the place to be searched. State v. Constantine, 182 Wn. App. 635, 646, 330 P.3d 226 (2014).

       CrR 2.3(c) provides that a warrant “shall command the officer to search within a specified

period of time not to exceed 10 days.” A delay in executing the warrant may render the

determination of probable cause stale. State v. Maddox, 152 Wn.2d 499, 505, 98 P.3d 1199 (2004).

“The information is not stale for purposes of probable cause if the facts and circumstances in the

affidavit support a commonsense determination that there is continuing and contemporaneous

possession of the property intended to be seized.” Id. at 506. A court evaluates staleness by looking

at the totality of circumstances, including the amount of time between the warrant’s issuance and

execution and the nature and scope of the suspected criminal activity and property to be seized.

State v. Lyons, 174 Wn.2d 354, 361, 275 P.3d 314 (2012).




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No. 52401-5-II


       Sexton relies in part on Maddox. In that case, probable cause was based on an informant’s

statement that he had bought methamphetamine from the defendant, and the defendant indicated

that he may have more to sell if the informant returned with cash. Maddox, 152 Wn.2d at 503. The

search warrant authorized police to search for methamphetamine and any paraphernalia or other

evidence related to the manufacture, sale, and distribution of methamphetamine. Id. Nine days

later, the informant returned with cash, but the defendant told him he did not have any

methamphetamine at the moment and the informant would have to come back in a few days. Id. at

504. The police executed the warrant the following day, seizing evidence of methamphetamine

sales but no methamphetamine. Id.

       The defendant argued probable cause was rendered stale not only because of the 10-day

delay in executing the warrant, but also because police had learned new information that negatively

impacted probable cause and did not return to the magistrate for a redetermination of probable

cause. Id. at 506-07. The Washington Supreme Court held that where new information arises that

undermines probable cause, return to the magistrate for reevaluation is required. Id. at 508. This

portion of Maddox is not helpful to Sexton. The Maddox court ultimately held that the search and

seizure were still valid because probable cause remained for the paraphernalia and other evidence

of an ongoing operation to sell and distribute methamphetamine. Id. at 512-13.

       The warrant here was served within the 10-day time limit of CrR 2.3(c) and within the time

limit stated in the warrant. The trial court reasoned that the location of the drug operation in a

single-family home suggested it was an ongoing operation instead of a transitory one. And the

informant told police that Sexton sold methamphetamine regularly. Unlike in Maddox, here the




                                                17
No. 52401-5-II


police received no new information to suggest that Sexton no longer had any drugs. For these

reasons, the warrant was not stale with regard to the search for methamphetamine.

       Moreover, the informant stated that Sexton owned a scale and baggies that he used for such

transactions, as well as a handgun. Even if we assumed that probable cause became stale with

respect to the methamphetamine, under Maddox it still existed with respect to this other evidence

that the police sought. Given their informant’s information and the nature of the suspected crime

of selling methamphetamine, it was reasonable for the police to expect that Sexton’s possession of

the handgun, scale, packaging materials, and other possible evidence related to the sale of

methamphetamine was continuous and ongoing.

       Sexton also argues we should follow an Indiana case, Huffines v. State, 739 N.E.2d 1093

(Ind. Ct. App. 2000). There, the police executed a warrant to search the defendant’s house for

cocaine about a week and a half after an informant bought cocaine from the defendant. Id. at 1094.

On appeal, the court determined probable cause had dissipated because it had been based on a

single, isolated transaction and there was no evidence the activity was ongoing. Id. at 1099. Here,

in contrast, the informant told police that Sexton regularly sold methamphetamine, and the trial

court legitimately reasoned that drug sales out of a residence could reasonably be perceived as

more permanent than sales from other locations.

       We hold that the nine-day period between the informant’s visit to the house and the

execution of the warrant did not render probable cause stale. Considering the nature of the

suspected crime and the information provided by the informant, it was reasonable to expect that

Sexton’s possession of the items listed in the search warrant was continuous and ongoing.




                                                18
No. 52401-5-II


                             II. SEXTON’S RIGHT TO REPRESENT HIMSELF

       Sexton argues the trial court violated his constitutional right to represent himself by

denying his motion to proceed pro se. We disagree.

A.     Right of Self-Representation

       Both the federal and state constitutions provide that defendants have the right to represent

themselves. State v. Curry, 191 Wn.2d 475, 482, 423 P.3d 179 (2018). The unjustified denial of

this right requires reversal. State v. Burns, 193 Wn.2d 190, 202, 438 P.3d 1183 (2019).

       This right is neither self-executing nor absolute—the defendant must unequivocally and

timely request to proceed pro se. Curry, 191 Wn.2d at 482. “This requirement protects defendants

from inadvertently waiving assistance of counsel and protects trial courts from ‘manipulative

vacillations by defendants regarding representation.’” Id. at 483 (quoting State v. DeWeese, 117

Wn.2d 369, 376, 816 P.2d 1 (1991)).

       For this reason, courts must “indulge in ‘every reasonable presumption’ against a

defendant’s waiver of [their] right to counsel.” Burns, 193 Wn.2d at 202 (internal quotation marks

omitted) (quoting In re Det. of Turay, 139 Wn.2d 379, 396, 986 P.2d 790 (1999)). “[E]ven with

this presumption, a trial court may deny a request to proceed pro se only if the request is ‘equivocal,

untimely, involuntary, or made without a general understanding of the consequences.’” Id. at 202-

03 (emphasis omitted) (quoting State v. Madsen, 168 Wn.2d 496, 505, 229 P.3d 714 (2010)). This

determination entails a multistep process: first the court determines whether the request is

unequivocal and timely, and if it is, then the court asks whether the request is knowing, intelligent

and voluntary. Id. at 203.




                                                  19
No. 52401-5-II


       We review a trial court’s grant or denial of a motion to proceed pro se for abuse of

discretion. Id. at 202. “A trial court abuses its discretion if the decision is manifestly unreasonable

such that no reasonable mind could come to that decision, if the decision is not supported by the

facts, or if the judge applied an incorrect legal standard.” Id. Absent an abuse of discretion, we will

not reverse a trial court’s decision, even if we may have reached a different conclusion on de novo

review. Curry, 191 Wn.2d at 486.1 We accordingly give great deference to the trial court’s

discretion due to the trial court’s experience in evaluating requests to proceed pro se, its favorable

position compared to appellate courts to observe and evaluate the defendant, and the inherently

fact-specific nature of the inquiry. Id. at 484-85.

B.     Whether the Trial Court Abused Its Discretion

       Sexton argues that the trial court erred in its conclusions that his request to proceed pro se

was untimely, equivocal, and unintelligent. We hold that the record supports the trial court’s

conclusion that Sexton’s request was equivocal, and so the court did not err in denying the request.

       1.      Whether Sexton’s request was timely and unequivocal

               a.      Timeliness

       The trial court concluded that Sexton’s request to proceed pro se was both untimely and

equivocal. We need only uphold one of those determinations to affirm the trial court’s denial of

Sexton’s motion. See State v. Stenson, 132 Wn.2d 668, 740, 940 P.2d 1239 (1997) (“Even if we




1
 Sexton urges us to review this issue de novo, citing Justice Gordon McCloud’s concurrence in
Curry, 191 Wn.2d at 505-11 (Gordon McCloud, J., concurring). However, it is clear from our
Supreme Court’s recent decisions that we are bound to apply an abuse of discretion standard. E.g.,
Burns, 193 Wn.2d at 202.
                                               20
No. 52401-5-II


decided, which we do not, that the request to proceed pro se so late in the proceedings was timely,

we concur with the trial court’s conclusion that the request was equivocal.”).

       [T]imeliness is determined on a continuum:
       “If the demand for self-representation is made (1) well before the trial or hearing
       and unaccompanied by a motion for a continuance, the right of self[-]representation
       exists as a matter of law; (2) as the trial or hearing is about to commence, or shortly
       before, the existence of the right depends on the facts of the particular case with a
       measure of discretion reposing in the trial court in the matter; and (3) during the
       trial or hearing, the right to proceed pro se rests largely in the informed discretion
       of the trial court.”

Madsen, 168 Wn.2d at 508 (emphasis omitted) (quoting State v. Barker, 75 Wn. App. 236, 241,

881 P.2d 1051 (1994)).

       Here, the case was called for trial and motions in limine were addressed. Perhaps because

the trial court denied his motions to exclude evidence, Sexton fired his attorney and sought to

represent himself the next morning just before jury selection was set to begin. The trial court ruled

that Sexton’s request was untimely because Sexton’s request came after the court had called the

case for trial and denied Sexton’s suppression motion, and the court found there was a rational

basis for concluding the request was made primarily for the purpose of delaying the proceedings.

       Sexton argues this conclusion was unsupported by the record because he did not seek a

continuance, citing State v. Watkins, 25 Wn. App. 358, 362, 606 P.2d 1237 (1980). There is little

evidence in the record of whether Sexton was trying to delay the proceedings, other than his

indication that he was seeking the assistance of another attorney. Indeed Sexton expressed

frustration at the number of continuances sought by counsel. There accordingly may not be support

in the record for the court’s conclusion that Sexton’s request was intended to cause delay.

       Nevertheless, because Sexton’s request was made after the case was called for trial and on

the day that jury selection was set to begin, the trial court had discretion to determine whether

                                                 21
No. 52401-5-II


granting the request was appropriate. In Madsen, the Supreme Court held that such a request was

timely because the trial court had been given significant advance notice that the defendant wished

to proceed pro se. 168 Wn.2d at 507-08. Here, in contrast, there was no indication such a request

was forthcoming until the day of jury selection. As a result, we afford the trial court significant

discretion to deny the request under Madsen.

               b.      Equivocation

       The trial court separately concluded that Sexton’s request was equivocal because Sexton

indicated that he was hoping to get help from a different attorney in Seattle and said only that “[a]t

this time” he wanted to proceed pro se. 2 VRP (Feb. 15, 2018) at 7. This reasoning is supported

by the record, and in light of the discretion afforded the trial judge, we uphold the trial court’s

denial of Sexton’s motion on this basis.

       In determining whether a request is equivocal, courts must examine the nature of the

request. Curry, 191 Wn.2d at 489. “Relevant considerations include whether the request was made

as an alternative to other, preferable options and whether the defendant’s subsequent actions

indicate the request was unequivocal.” Id.

       The record supports the trial court’s conclusion that Sexton was equivocal in his request,

especially in light of the necessary deference to the trial court’s evaluation of Sexton’s request

after a long colloquy. Sexton did not file a formal motion, but rather told the court just before jury

selection that he wanted to fire his attorney and represent himself “[a]t this time.” 2 VRP (Feb. 15,

2018) at 7. Sexton said he wanted to proceed pro se, but also discussed at length his frustrations

with the proceeding up to that point and the emotional turmoil he was going through, saying he

was “reluctantly” firing his attorney. Id. at 8. Finally, Sexton did not seek a continuance, and


                                                 22
No. 52401-5-II


instead indicated that the reasons he wanted to fire his attorney were his personal disagreements

with the attorney, frustrations over numerous delays in the proceeding, the court’s denial of his

suppression motion, and the fact that he could no longer afford to pay the attorney.

       Importantly, Sexton had already attempted to contact an attorney in Seattle that he

indicated would assist him. Although an alternative request for new counsel does not necessarily

render a request to proceed pro se equivocal, it “‘may be an indication to the trial court, in light of

the whole record, that the request is not unequivocal.’” Curry, 191 Wn.2d at 489

(quoting Stenson, 132 Wn.2d at 740-41).

       These reasons supported the trial court’s conclusion that Sexton did not necessarily want

to proceed pro se, but merely wanted a different attorney. It was reasonable for the court to

conclude that Sexton was not certain he wanted to proceed pro se for the remainder of his case.

The trial court did not abuse its discretion when it concluded that Sexton’s request was equivocal

and denied his motion to proceed pro se.

                       III. CONSTRUCTIVE POSSESSION JURY INSTRUCTIONS

       Sexton argues that the trial court’s instructions to the jury defining “dominion and control”

as it related to the crimes of possession of methamphetamine and possession of a firearm

constituted an impermissible comment on the evidence. We disagree.

A.     Judicial Comments on the Evidence

       Article IV, section 16 of the Washington Constitution prohibits judges from conveying to

the jury their personal attitudes regarding the case “or instructing a jury that ‘matters of fact have

been established as a matter of law.’” State v. Jackman, 156 Wn.2d 736, 743-44, 132 P.3d 136

(2006) (quoting State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997)). A jury instruction that


                                                  23
No. 52401-5-II


“essentially resolve[s] a contested factual issue” amounts to an improper judicial comment because

it “effectively relieve[s] the prosecution of its burden of establishing an element of the [crime].”

State v. Brush, 183 Wn.2d 550, 557, 353 P.3d 213 (2015). In contrast, a jury instruction that merely

states the law does not constitute an impermissible comment on the evidence. Id.

       We review jury instructions de novo, within the context of the instructions as a whole. State

v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). If we conclude a jury instruction amounted

to an improper comment on the evidence, we presume the error to be prejudicial and the State

bears the burden of showing that no prejudice could have resulted. Id. at 725.

B.     Whether the Trial Court’s Instructions on Dominion and Control Were Improper

       Sexton argues that the trial court erred in defining “dominion and control” in its jury

instructions on possession of controlled substances and a firearm. The instructions informed the

jury that possession can be actual or constructive, and constructive possession occurs when there

is dominion or control over the item. The jury instructions continued:

              In deciding whether the defendant had dominion and control over [an item],
       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 [item], whether the defendant had the capacity to exclude others
       from possession of the [item], and whether the defendant had dominion and control
       over the premises where the [item] was located. No single one of these factors
       necessarily controls your decision.

CP at 61, 76. These instructions were based on Washington Pattern Jury Instructions 50.03 and

133.52. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL

(WPIC) 50.03, 133.52 (2016).

       Sexton argues these jury instructions were improper because they defined the contours of

dominion and control by relying on tests developed in case law for evaluating sufficiency of the


                                                24
No. 52401-5-II


evidence. In developing the pattern instructions that established the instructions given in this case,

the Washington Pattern Instructions Committee noted that appellate courts analyze “possession”

in part by deciding whether the evidence was sufficient to convict in a particular case. WPIC 50.03.

       Sexton relies on Brush, where the Washington Supreme Court stated that “legal definitions

should not be fashioned out of courts’ findings regarding legal sufficiency.” 183 Wn.2d at 558.

There, the jury was tasked with determining whether the offense was part of an ongoing pattern of

abuse over “‘a prolonged period of time.’” Id. at 555. The trial court used a pattern instruction

defining “a prolonged period of time” as longer than two weeks, based on prior case law that

determined that two weeks was not legally sufficient to be a prolonged period of time. Id. at 557-

58. Brush held that the jury instruction was a comment on the evidence because it resolved a factual

question for the jury and relieved the State of its burden to prove that the pattern of abuse occurred

over a prolonged period of time. Id. at 559.

       In State v. Sandoval, we cautioned that Brush’s admonition that legal definitions not be

based on rulings on legal sufficiency “should not be read in isolation.” 8 Wn. App. 2d 267, 279,

438 P.3d 165 (2019). Rather, “the reason for this admonition is because appellate courts review

the sufficiency of evidence for whether any rational jury could have found guilt beyond a

reasonable doubt and construe facts in the light most favorable to the state, while juries must find

guilt beyond a reasonable doubt.” Id. at 278-79. “‘Therefore, fashioning a jury instruction based

on an appellate court’s sufficiency holding effectively replaces the jury standard with the lesser

appellate standard.’” Id. at 279 (quoting State v. Sinrud, 200 Wn. App. 643, 651, 403 P.3d 96

(2017)).




                                                 25
No. 52401-5-II


       In Sinrud, the trial court instructed the jury that to convict the defendant of possession of a

controlled substance with intent to deliver, the law requires substantial corroborating evidence of

such intent. 200 Wn. App. at 650. The instruction continued, “‘The law requires at least one

additional corroborating factor.’” Id. (emphasis omitted). Division One of this court held this last

sentence was a comment on the evidence because it improperly implied that the presence of only

one additional factor necessarily meant that the jury should find intent. Id. at 651.

       Sexton argues that the trial court here made the same error as in Sinrud, claiming that by

instructing the jury that no single factor necessarily controls the jury’s decision, the court implied

that a single factor may control the jury’s decision. But unlike Sinrud, the trial court here did not

tell the jury that a certain number of factors was required. Rather, the court told the jury that it did

not even have to consider the factors listed and was free to consider other factors.

       Unlike the jury instructions in Brush and Sinrud, the instructions here did not resolve the

factual issue of dominion and control for the jury. Although the instructions were based in part on

sufficiency of the evidence case law, they did not compel the jury to make a specific determination

of whether Sexton had dominion and control over the methamphetamine or the firearm. The

instructions correctly stated that there are several possible indicia of dominion and control, any or

none of which the jury may consider along with all of the relevant circumstances in the case, and

none of which necessarily controlled the jury’s decision. The trial court did not indicate that any

one of the factors listed would be sufficient to convict, and so did not make the same error as the

trial courts in Brush and Sinrud by replacing the jury standard with the lesser appellate standard.

       We hold that the challenged jury instructions did not constitute improper judicial comment

on the evidence.


                                                  26
No. 52401-5-II


                                      IV. SENTENCING ISSUES

A.     Incorrect Maximum Sentence

       Sexton argues that the trial court improperly sentenced him to 85 months on his conviction

for possession of methylphenidate with intent to deliver, because the maximum sentence on that

count, a class C felony, should have been 5 years, not 10 years. RCW 9A.20.021(1)(c); RCW

69.50.401(2)(c). The State says that the trial court incorrectly identified this conviction as a class

B felony. However, the State argues that Sexton does not need to be resentenced because, based

on his criminal history, the trial court should have doubled the statutory maximum sentence, so 10

years ultimately was the correct maximum sentence.

       “Any person convicted of a second or subsequent offense under [chapter 69.50 RCW] may

be imprisoned for a term up to twice the term otherwise authorized.” RCW 69.50.408(1). An

offense is considered a second or subsequent offense if the defendant was ever previously

convicted under chapter 69.50 RCW “or under any statute of the United States or of any state

relating to narcotic drugs, marihuana, depressant, stimulant, or hallucinogenic drugs.” RCW

69.50.408(2). The Washington Supreme Court recently held that RCW 69.50.408 automatically

doubles the maximum sentence. State v. Cyr, 195 Wn.2d 492, 504, 461 P.3d 360 (2020).

       Sexton’s criminal history lists multiple prior felony convictions for possession of a

controlled substance. However, it is unclear from the record the statutory basis for these

convictions. In Cyr, the Supreme Court remanded for the trial court to determine whether the

defendant had a qualifying prior conviction under RCW 69.50.408(2). Id. at 511.

       We do the same. The trial court should determine on remand whether Sexton’s prior

convictions implicate the statute’s doubling provision. If Sexton’s prior convictions for unlawful


                                                 27
No. 52401-5-II


possession of a controlled substance arose under chapter 69.50 RCW “or under any statute of the

United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant, or

hallucinogenic drugs,” then the maximum sentence for his methylphenidate conviction doubled

automatically from 5 years to 10 years and the maximum sentence reflected on the judgment and

sentence, 10 years, is correct. RCW 69.50.408(2). If not, the sentence imposed for count II, 85

months, would exceed the statutory maximum of 5 years and resentencing would be required.

B.     Condition of Community Custody

       Sexton next challenges the trial court’s community custody order that Sexton have no

contact with drug users or sellers. Sexton reasons that the record makes clear that the trial court

intended to forbid him from knowingly associating with drug users or sellers. That is what the State

requested and what the court stated it would order. The State concedes that the trial court erred in

this regard and agrees we should remand to correct this community custody provision.

       It is clear from the record that the trial court intended to limit Sexton’s contact only with

those he knows to be drug users or sellers. We remand for the trial court to make this correction.

C.     Legal Financial Obligations

       Sexton argues the criminal filing fee and DNA collection fee were improperly imposed.

The State concedes that both fees were improper. We agree.

       RCW 36.18.020(2)(h) prohibits the imposition of the criminal filing fee if a defendant is

indigent as defined in RCW 10.101.010(3) (a)-(c). RCW 43.43.7541 authorizes the imposition of

a DNA collection fee “unless the state has previously collected the offender’s DNA as a result of

a prior conviction.”




                                                28
No. 52401-5-II


       The State concedes that the trial court found Sexton indigent, Sexton’s DNA is on file with

the Washington State Patrol Crime Laboratory, and these statutes apply. We accordingly remand

for the trial court to strike the DNA collection fee and criminal filing fee.

       Sexton also argues that the trial court improperly imposed a community supervision fee.

RCW 9.94A.703(2)(d) governs supervision fees and states, “Unless waived by the court, as part

of any term of community custody, the court shall order an offender to . . . [p]ay supervision fees

as determined by the [Department of Corrections].” The supervision fee is a discretionary financial

obligation. State v. Lundstrom, 6 Wn. App. 2d 388, 396 n.3, 429 P.3d 1116 (2018), review denied,

193 Wn.2d 1007 (2019).

       However, the supervision fee is not a discretionary “cost” merely because it is a

discretionary financial obligation. Rather, the supervision fee fails to meet the RCW 10.01.160(2)

definition of a “cost” because it is not an expense specially incurred by the State to prosecute the

defendant, to administer a deferred prosecution program, or to administer pretrial supervision.

Because the supervision fee is not a “cost” as defined under RCW 10.10.160, the statutes do not

prohibit the trial court from imposing the fee even where a defendant is indigent.

       We note, however, that “[t]he barriers that [legal financial obligations] impose on an

offender’s reintegration to society are well documented . . . and should not be imposed lightly

merely because the legislature has not dictated that judges conduct the same inquiry required for

discretionary costs.” State v. Clark, 191 Wn. App. 369, 376, 362 P.3d 309 (2015). We agree that

this important policy should be broadly supported. Therefore, we encourage the trial court on

remand to reexamine the imposition of the supervision assessment fee.




                                                  29
No. 52401-5-II


                            V. STATEMENT OF ADDITIONAL GROUNDS

A.     Ineffective Assistance of Counsel

       Sexton argues that he received ineffective assistance of counsel in several respects. We

reject each of his arguments.

       The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee effective assistance of counsel. State v. Grier, 171 Wn.2d 17,

32, 246 P.3d 1260 (2011). To demonstrate that he received ineffective assistance of counsel,

Sexton must show both that defense counsel’s performance was deficient and that the deficient

performance resulted in prejudice. State v. Linville, 191 Wn.2d 513, 524, 423 P.3d 842 (2018).

Defense counsel’s performance is deficient if it falls below an objective standard of

reasonableness. State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017). Prejudice ensues if the

result of the proceeding would have been different had defense counsel not performed deficiently.

Id. Because both prongs of the ineffective assistance of counsel test must be met, the failure to

demonstrate either prong will end our inquiry. State v. Classen, 4 Wn. App. 2d 520, 535, 422 P.3d

489 (2018).

       We strongly presume that defense counsel’s performance was not deficient. State v. Emery,

174 Wn.2d 741, 755, 278 P.3d 653 (2012). To overcome this presumption, the defendant must

show “‘the absence of legitimate strategic or tactical reasons supporting the challenged conduct

by counsel.’” Id. (quoting State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995)).

       1.      Stipulation to prior serious offenses

       Sexton argues counsel was ineffective for convincing him to stipulate that he had a prior

serious offense, a necessary element for his conviction of first degree unlawful possession of a


                                                30
No. 52401-5-II


firearm. See RCW 9.41.040(1)(a). Sexton argues that counsel should have instead requested an

instruction on second degree unlawful possession of a firearm, which does not include the element

of having a prior serious offense. He argues counsel was deficient for failing to argue that his prior

conviction for second degree burglary was not a serious offense and so could not have formed the

basis of raising his firearm conviction to the level of first degree. We reject these arguments.

       RCW 9.41.010(27)(a) defines “‘[s]erious offense’” as including “[a]ny crime of violence.”

RCW 9.41.010(4)(a) identifies “second degree burglary” as a crime of violence. It is therefore

clear that Sexton’s prior conviction for second degree burglary qualified as a serious offense for

the purposes of his conviction for first degree unlawful possession of a firearm. Sexton points out

that this definition is inconsistent with RCW 9.94A.030(56), which does not include second degree

burglary in its definition of “‘[v]iolent offense.’” But the applicable definition here is not the one

defining “violent offense” in RCW 9.94A.030(56), but the one defining “crime of violence” under

RCW 9.41.010(4)(a). Counsel was not deficient on this basis.

       Sexton also suggests it was improper for the prosecutor to refer to his prior offenses during

the State’s opening statement because Sexton had not yet signed the stipulation at that time, citing

State v. Humphries, 181 Wn.2d 708, 336 P.3d 1121 (2014). He claims therefore that defense

counsel was deficient for failing to contest the existence of a prior serious offense. But the State

had other evidence of Sexton’s criminal history and did not need to rely on Sexton’s stipulation.

Sexton does not explain how, absent his stipulation, the State would have been unable to prove the

existence of a prior serious offense. Sexton therefore has not shown that counsel was deficient or

that this issue would have resolved differently had counsel challenged this particular point.




                                                 31
No. 52401-5-II


       2.      Failure to object to prosecutorial misconduct

       Sexton next argues that counsel was deficient for failing to object to an alleged instance of

prosecutorial misconduct during the State’s closing argument. We disagree.

       Arguments that shift or misstate the State’s burden of proving guilt beyond a reasonable

doubt constitute prosecutorial misconduct. State v. Lindsay, 180 Wn.2d 423, 434, 326 P.3d 125

(2014). We review a prosecutor’s closing argument “in the context of the issues in the case, the

total argument, the evidence addressed in the argument, and the jury instructions.” State v. Curtiss,

161 Wn. App. 673, 699, 250 P.3d 496 (2011). “During closing argument, a prosecutor has ‘wide

latitude in drawing and expressing reasonable inferences from the evidence.’” Id. (quoting State v.

Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991)).

       Sexton claims the State misstated its burden of proof when it analogized the evidence

presented at trial to pieces of a jigsaw puzzle and explained that the jury’s job was to determine

whether there were enough pieces of the puzzle to find Sexton guilty of the charges beyond a

reasonable doubt. Sexton claims this comment was improper when read together with the State’s

later statement that, similar to the question of possession, the question of whether the crimes

occurred in the state of Washington was not a “close call.” 5 VRP (Feb. 28, 2018) at 16. According

to Sexton, these statements trivialized the State’s burden of proof and constituted misconduct.

       An analogy to jigsaw puzzles in closing argument is permissible if the prosecutor “made

no reference to any number or percentage and merely suggested that one could be certain of the

picture beyond a reasonable doubt even with some pieces missing.” Lindsay, 180 Wn.2d at 436.

Such an analogy becomes improper when the prosecutor uses it to somehow quantify the standard

of proof. Id. Here, the prosecutor merely stated that the jury had to determine if enough pieces


                                                 32
No. 52401-5-II


were present to find Sexton guilty beyond a reasonable doubt. This was not a misstatement of the

State’s burden of proof under Lindsay.

        As for the State’s reference to the element of possession when discussing whether the acts

occurred in Washington, this statement also did not improperly misstate or trivialize the State’s

burden to prove Sexton’s crimes beyond a reasonable doubt. In the context of the prosecutor’s

entire closing argument, it is clear that he was merely arguing that the State had definitively met

its burden to show the elements of possession beyond a reasonable doubt and the acts in question

occurred in Washington. Given the prosecutor’s wide latitude to argue reasonable inferences from

evidence, we hold these comments were not improper. Defense counsel was therefore not deficient

for not objecting.

        3.     Failure to argue same criminal conduct

        Finally, Sexton argues counsel was deficient for failing to argue that some of his prior

convictions constituted same criminal conduct, and Sexton should have been sentenced with a

lower offender score. This argument relies on information outside the record and we do not

consider it.

B.      Cumulative Error

        Sexton also argues that cumulative error requires reversal, based on the alleged errors he

describes in his SAG. As discussed above, Sexton has not shown that counsel was ineffective.

Because Sexton has not identified any errors, reversal is not required.

                                         CONCLUSION

        We affirm Sexton’s convictions. We remand for the trial court to strike the improper legal

financial obligations, reexamine the imposition of the supervision assessment fee, correct the


                                                33
No. 52401-5-II


challenged community custody condition to prohibit Sexton from knowingly associating with drug

users or sellers, and determine whether Sexton had a qualifying prior conviction under RCW

69.50.408(2) and resentence him if necessary.

        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:



 Maxa, J.




 Sutton, A.C.J.




                                                34
